Columbia Casualty Co. v. Rogers Co.

Bussell, C. J.,

concurring. At first glance a statement in a policy of insurance against loss from burglary, that the company would not be liable in case of loss unless there were visible marks on the exterior of the safe,, would seem to preclude a recovery upon such policy where there were no visible marks of violence or of forcible entry on the outside of the receptacle in which the money lost by a burglary was contained. However, there is no principle of law better settled than that “policies of insurance will be lib*160erally construed in favor of the object to be accomplished, and the conditions and provisions of every contract of insurance will be construed against the insurer who prepares and proposes the contract. . . .” If such conditions, “when construed in connection with the terms of the policy as a whole,” will effect the result intended to be reached by the payment of the premium which has been paid, or if a stipulation is subject to two constructions, the construction of the contract most favorable to the insured will prevail. Perkins v. Empire Life Insurance Co., 17 Ga. App. 658 (87 S. E. 1094); Arnold v. Empire Life Insurance Co., 3 Ga. App. 695 (60 S. E. 470); Massachusetts Benefit Life Association v. Robinson, 104 Ga. 256 (30 S. E. 918, 42 L. R. A. 261). As remarked by Mr. Justice Harlan in Thompson v. Phenix Insurance Co., 136 U. S. 287, 297 (10 Sup. Ct. 1019, 34 L. ed. 408), “If a policy is so drawn as to require interpretation, and to be fairly susceptible of two different constructions, the one will be adopted that is most favorable to the insured. This rule, recognized in all the authorities, is a just one, because those instruments are drawn by the company. National Bank v. Insurance Co., 95 U. S. 673, 678.” As appears from the record, the defendant in the lower court contests and denies its liability under the eighth “special agreement,” that “the company shall not be liable for loss of . . money, . . unless entry into such safe or vault has been effected by the use of tools, explosives, electricity, or chemicals directly upon the exterior thereof.” The words “fireproof safe or vault,” twice used in this provision, clearly require interpretation. It is not clear whether the words “safe or vault” refer to one receptacle which may be both a safe and a vault or to a safe included within a vault or a vault included within a safe. But under the rule above stated, the meaning of this clause must be ascertained by construing it with other provisions of the contract of insurance; and yet in the first statement in the contract of insurance the company “agrees to indemnify the assured for all loss of money, . . occasioned by the felonious abstraction of the same from within the safe or safes described in the schedule, . . after entry into such safe or safes has been effected by force and violence by the use of tools, explosives, electricity, or chemicals directly thereupon, of which force and violence there shall be visible marks.” What is a safe ? It must be said to be the actual receptacle in which valuables *161are placed to complete their safety. The petition alleges that there were two doors to the safe; an outer door one fourth of an inch thick, which was worked by a combination, and an inner door of steel, three sixteenths of an inch in thickness. No money was intended to be stored nor could it be stored between 'these two doors; and therefore there was no entry to the safe until both doors were opened or destroyed. There were visible marks upon the inner door; and therefore the question is whether the middle door, regardless of the presence of another door, was not in fact exterior to the real safe which itself contained a chest which in turn held the money which was lost. Everything not within a safe is exterior to it, and marks upon either the outer or inner door were clearly intended, because proviso number 8, which requires that the visible marks shall be upon the exterior, does not accord with the first assumption of liability which we have quoted. All that is said in the agreement of the company is that there shall be visible marks, and there is no provision whatever as to where they shall be located. It is for the court to say which of these conflicting provisions shall prevail; and under the rule by which doubts must be resolved in favor of the insured who has been induced to pay for protection and not for pretense, the trial court was right in overruling the general demurrer, and the Court of Appeals correctly affirmed that judgment.