concurring specially.
The able Judge of the Civil Court of Fulton County who heard and decided this case held in the final order: “The court’s ruling in this matter is based on the ruling of the Georgia Court of Appeals in Cleveland
*433Avenue Liquor Store, Inc. v. Home Ins. Co., 115 Ga. App. 864.” The Cleveland Ave. Liquor Store case involved an insurance policy with identical provisions, and identical fact situation, except that in that case the messenger stopped at his home to eat lunch and left the money in an unlocked automobile. The fact that the trial judge here understandably felt that he was bound by the decision in the Cleveland Ave. Liquor Store case granting summary judgment to the insurance company amply demonstrates to my mind the practical necessity of overruling it. In that case (Cleveland Ave. Liquor Store v. Home Ins. Co., 115 Ga. App. 864 (156 SE2d 202)), the sole issue for decision was correctly stated as “whether the money was stolen ‘while being conveyed by a messenger’ within the meaning of the insurance contract.” The opinion, however, then stated: “We find it unnecessary to determine whether the money was being ‘conveyed’ at the time of the theft, for' we conclude that the custody required by the insurance contract was lacking.” P. 867. As noted in the majority opinion here, it is not necessary for the employee, in order to be a messenger, to have actual manual possession of the money at the time of its theft or disappearance, but only that he be “in the regular service of and duly authorized by the insured to have the care and custody.” Cases from other jurisdictions involving the words “care and custody,” “while in the custody of” designated persons, as well as “while being conveyed,” “in transit,” “in actual transit,” and so on give no such drastic limitation to the meaning of the words.
2. Insofar as it imports the idea of actually being in transit, it was held in National Fire Ins. Co. v. Davis, (Tex. Civ. App.) 179 SW2d 316, where under the applicable policy the goods were insured only “while in the custody of the insured” and “in actual transit” that where the driver left the car unattended with the motor running while he stopped for lunch, and an unauthorized person drove it off and overturned it, damaging the merchandise, the loss of the latter was covered. The court relied on the definition of “Custody” in 25 CJS 88: “It means to have in charge or safekeeping, connotes control, and includes as well, although it does not require the element of physical or manual possession, implying a temporary physical control merely, and responsibility *434for the protection and preservation of the thing in custody.” (Emphasis supplied.) In Chemstrand Corp. v. Maryland Cas. Co., 266 Ala. 626 (98 S2d 1), covering theft “only while the property insured is in the custody of . . . public truckmen” where it was proved that the theft of the merchandise occurred after it fell to the highway from a van when the tailgate jerked open in transit, the court found that “this provision was not inserted in the policy to except from liability an incident such as occurred in this cause, but rather to designate the methods by which the insured goods could be transported.” Where the policy excludes liability unless the theft is committed in the presence of a custodian, actual physical presence is required. Great American Indem. Co. v. Southern Feed Stores, 51 Ga. App. 591 (181 SE 115). “However, a policy covering property while it is in the care and custody of designated persons does not require that such persons have actual physical possession and control of the property at the time of the loss.” 45 CJS 959, Insurance, § 886; Birgbauer v. Aetna Cas. & Surety Co., 251 Mich. 614 (232 NW 403); Fox West Coast Theaters v. Union Indemnity Co., 167 Wash. 319 (9 P2d 78); American Indem. Co. v. Swartz, 250 F2d 532; J. J. Newberry Co. v. Continental Cas. Co., 229 Cal. App. 2d 728 (40 Cal. Rptr. 509); Kamar Fur. Corp. v. Century Ins. Co., 142 N. Y. S. 2d 904.
I am authorized to state that Presiding Judges Bell and Jordan and Judge Pannell concur in this special concurrence.
Hall, Judge, concurring specially. I concur in the judgment reached by the majority opinion; however, I do not agree that Cleveland Avenue Liquor Store v. Home Ins. Co., 115 Ga. App. 864 (156 SE2d 202), should be overruled. That case is distinguishable on its facts. It held: “No sufficient reason appears why the money in the plastic zipper moneybag could not have been manually carried by McIntyre into his home, where it would have been covered under a policy provision relating to the home of the messenger, or why it was necessary to leave the moneybag on the seat of an unlocked car. When he left it unprotected in the car, parked on a public street, as an open invitation to any who passed along to take it, it was not in his custody, within the provisions of the policy.” P. 868. In the present *435case the money was still in the messenger’s protective custody (locked glove compartment of a locked car) during a 10-minute interval while in the process of being conveyed.
This insurance policy provides protection for property being conveyed by a messenger. Custody (actual or protective) is a necessary element of the process of conveying. How can one be conveying an object which he has neither on his person nor within his protective custody? Realism and common sense tell us that a messenger in the process of conveying a package does not have to eat, perform his daily body functions and at the same time be grasping his package in order for the same to be in his custody. Realism and common sense also tell us that when a messenger leaves his package totally unprotected in an open car on a public street while he eats lunch in his home, it cannot be said that the messenger has protective custody of the package and is thereby in the process of conveying the same.
The requirements of the insuring agreement were not present in the Cleveland case. They are present in the case sub judice.
I am authorized to state that Chief Judge Felton, and Judge Whitman concur in this special concurrence.