(dissenting). It is here urged that the loss was not within the terms of the bond. The loss occurred just before bank opening time in the morning. The robbers, under pretense of desiring to make a deposit, gained admission to the building while three officers or employés were transferring funds from a safe in a vault to the tellers’ cages and were otherwise preparing for the day’s business. The robbers, with pistols, intimidated the bank employés and robbed the safe. The safe was in a vault which opened into the inclosure reserved for employés and officers. The policy covered robbery (by holdup) of money and securities:
“(1) From within the banking inclosure reserved for the use of the officers or office employés of the assured, while at least one officer or office employs of the assured is present and regularly at work in the premises; (2) from an officer or office employs of the assured while transferring the same during the assured’s regular office hours, either way between the said banking inclosures and any safe or vault described in the schedule as located in the premises outside of the said inclosures; (3) from within that part of the safe or safes or vault insured hereunder, caused by robbers during the day or night, by compelling under threat of personal violence an officer or employe of the assured to unlock and open the safe or safes or vanlt.”
It is claimed that the safe, being in the vault, was not “within the banking inclosure” as used in above quotation; that the employés were not “regularly at work in the premises,” and that the policy does not cover robbery from an unlocked safe.
I think the .vault was clearly within the meaning of “banking enclosure reserved for the use of officers or office employés of the Assured.” It was a place opening only into that portion from which the public was excluded and in which the officers and employés worked and it was used by them in the ordinary work of the bank. The safe being within the vault was therefore within the “banking inclosure.”
I think there is no merit to the second point as the employés were regularly at work just before banking hours doing those things necessary and usual in preparation for the business of the day.
*718The third contention seems unsound to me. The provision as to loss within the banking inclosure naturally covers all money and securities within that inclosure, and I find no limitation, within that clause or elsewhere in the bond, which would except money or securities within that inclosure because they were in an open safe therein. The case of Franklin State Bank v. Maryland Casualty Co. (5th Cir.) 256 Fed. 356, 167 C. C. A. 526, is squarely to the contrary, but it is neither controlling nor convincing. There was no such binding obligation on the trial court to follow the Franklin Bank decision that its failure to do so was reversible error.
I think the judgment should be affirmed.