{ "id": 3258189, "name": "Bankers State Bank, Appellee, v. New Jersey Fidelity & Plate Glass Insurance Company of Newark, New Jersey, Appellant", "name_abbreviation": "Bankers State Bank v. New Jersey Fidelity & Plate Glass Insurance", "decision_date": "1931-10-21", "docket_number": "Gen. No. 34,904", "first_page": "205", "last_page": "211", "citations": [ { "type": "official", "cite": "263 Ill. App. 205" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "133 Ill. 556", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5426641 ], "opinion_index": 0, "case_paths": [ "/ill/133/0556-01" ] }, { "cite": "100 Ill. 644", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2822726 ], "opinion_index": 0, "case_paths": [ "/ill/100/0644-01" ] }, { "cite": "197 Ill. 9", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 844081 ], "opinion_index": 0, "case_paths": [ "/ill/197/0009-01" ] }, { "cite": "343 Ill. 44", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5254268 ], "opinion_index": 0, "case_paths": [ "/ill/343/0044-01" ] }, { "cite": "257 Ill. App. 227", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3263006 ], "opinion_index": 0, "case_paths": [ "/ill-app/257/0227-01" ] } ], "analysis": { "cardinality": 491, "char_count": 8716, "ocr_confidence": 0.499, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.09178604621350511 }, "sha256": "315aada4bd78a76fc3ddcdd18ab26e67f223a816b176da5ffcb487766f8cdac7", "simhash": "1:233ff30712053087", "word_count": 1500 }, "last_updated": "2023-07-14T19:54:13.137776+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bankers State Bank, Appellee, v. New Jersey Fidelity & Plate Glass Insurance Company of Newark, New Jersey, Appellant." ], "opinions": [ { "text": "Mr. Justice Wilson\ndelivered the opinion of the court.\nThis was an action to recover on an insurance policy-known as a burglar policy issued to the Savoy Ball Booms, Inc., under which a loss occurred in the amount of $5,110.05, on the morning of November 13, 1928. The claim under the policy was subsequently assigned to the Banker\u2019s State Bank, plaintiff herein, as security for a loan negotiated by the Savoy Ball Booms, Inc. The policy limited the loss to $7,500 and contained, among other things, a clause entitled, \u201cSpecial protection to avoid \u2018Hold-up\u2019 is adopted as follows: \u2018Two Armed guards on duty at all times while said Policy is in force.\u2019 \u201d The policy also contained a clause under the sub-head \u201cSpecial Agreements,\u201d which read as follows:\n\u201cD. If the Assured is unable, because of some contingency beyond his control, to maintain any service or to perform any act specified in the Schedule, thus increasing the hazard, the liability of the Company shall be limited to such proportion of the insurance provided in the Policy as the premium paid would have purchased for such increased hazard under the Company\u2019s published Manual of Bates in force at the time of the issue of this Policy.\u201d\nThe premium paid for the policy was $516.90. Evidence was introduced on behalf of the plaintiff, showing that the premium paid for the policy in question was more than sufficient under the regular manual of rates, to cover the loss without the \u201cArmed Guard\u201d clause in the policy. This evidence was admitted for the purpose of permitting the insured to come within the contingency clause of the policy in the event the \u201cArmed Guards\u201d were not present at the time of the burglary or the insured was unable to maintain the service. The policy also provided that the defendant company would not be liable for any loss \u201cunless effected by forcible, violent and felonious means during the hours beginning at 7 a. m. and ending at 4 a. m. and only when the premises were open for business.\u201d\nFrom the facts it appears that the Savoy Ball Rooms, Inc. was held up by three men at about 10 o\u2019clock on the morning of November 13, 1928. There were present on the premises at the time William Steward, the firengan, Charles Scott, Frank Miller and E. C. Hall, who were janitors and general utility men about the premises, together with Miss Eunice Smith, stenographer and secretary to the president of the company. While the hold-up was going on Faggen, the president of the company, entered the premises and he was ordered to open the safe and the inner vault contained therein. The money which was taken, and for which this suit was brought, was in this safe, which had been provided in conformity with the terms of the policy.\nIt is unquestioned that the amount found by the trial court was taken in the hold-up, but, upon demand by the insured, payment was refused on the ground that the Savoy Ball Rooms, Inc. had failed to provide two Armed Guards, as required by the terms of the policy. To meet this position of the defendant, plaintiff introduced evidence to the effect that Matthews was the night, watchman and chief janitor and was armed and that two others, Chilton and Hodges, carried guns. Chilton was the general manager and Hodges was the advertising manager. Matthews carried a gun in a holster. There were always two guns on the premises for use, if needed. Matthews also had an assistant by the name of Hall and when Matthews was not on the premises he would tell Hall where the guns were kept.\nFaggen, the president, over objection testified that his instructions to Matthews and his assistant, who were supposed to perform the duties of Armed Guards, were to guard the place from closing time until opening time the next morning.\nMatthews on the morning in question left at 9 o\u2019clock, leaving Miller, Hall, Scott and Steward in the place. The force had been working until 5 o\u2019clock in the morning, but Chilton, Cross and Faggen overslept and did not go on duty at 9' o\u2019clock, as was required. Hall, the assistant to Matthews, was on duty, however, at the time.\nPlaintiff insists that there is sufficient evidence to support the contention that \u201cArmed Guards\u201d were provided, as required by the terms of the policy and that, even though they were not on the premises at the time of the hold-up, nevertheless, the insured had fully performed the terms of the policy and was, in any event, covered by the terms of the contingency clause which provided that if the Armed Guards were not present at the time of the burglary or hold-up, the amount of the recovery could only be that amount which would have been recoverable under a premium which would have been required in the absence of this special clause.\nDefendant insists that it is not liable, (a) because of the failure of the insured to maintain Armed Guards; (b) the hold-up took place when the premises were not open for business; (c) that the plaintiff\u2019s declaration charged that the insured had fully performed when, in fact, it had not; (d) that the trial court erred in admitting evidence as to the regular manual rates; and (e) that the trial court erred in admitting certain evidence, as to the facts and circumstances surrounding the issuance of the policy.\nAs to the first of these contentions, we are of the opinion that there is ample evidence to support the contention of plaintiff that Armed Guards were supplied and, furthermore, we are of the opinion that, even though they may not have been present at the time of the hold-up, nevertheless, the insured was covered by the contingency clause in the policy and that, for the purpose of proving under this contingency clause, testimony was admissible as to the regular manual of rates. Under this evidence as to manual rates, it is apparent that the premium charged was amply sufficient, even in the absence of Armed Guards, to cover the loss under the policy. Both the questions, as to whether the insured complied with the provisions of the policy with regard to maintaining Armed Guards and as to whether or not the loss came under the contingency clause, were questions of fact for the trial court and the jury. Whether certain employees were designated as \u201cporters\u201d or otherwise, would not prevent their being used for the purpose of protecting the property, and there appears to be ample evidence in the record to the effect that they were instructed to use arms, if necessary, and were provided with guns for the purpose of protecting the property of the insured. Fee v. Zurich General A. & L. Ins. Co., 257 Ill. App. 227; Kaplan v. United States Fidelity & Guaranty Co., 343 Ill. 44.\nThe Supreme Court in the case of Kaplan v. United States Fidelity & Guaranty Co., supra, in its opinion, says:\n\u201cBy its assignment of errors defendant insists upon a strict construction of the conditions of its policy, blit in construing policies of insurance the courts are inclined to lean against a narrow construction. (Terwilliger v. Masonic Accident Ass\u2019n, 197 Ill. 9; Monahan v. Fidelity Mutual Life Ins. Co., 242 id. 488.) Equivocal expressions in a policy of insurance whereby it is sought to narrow the range of the obligations these companies profess to assume are to be interpreted most strongly against the company. (Niagara Fire Ins. Co. v. Scammon, 100 Ill. 644; Schroeder v. Trade Ins. Co., 109 id. 157.) The contract is always to be liberally construed in favor of the insured, so as not to defeat, without a plain necessity, his claim to the indemnity. Healey v. Mutual Accident Ass\u2019n, 133 Ill. 556.\u201d\nDefendant sought to introduce evidence showing that at the time the policy was written, the risk was a dangerous one and had been rejected by other insurance companies and that the rate was based upon the fact that it was a dangerous risk because of the location of the premises. The premises in question were located at 4733-37 South Parkway, Chicago, Illinois. We are of the opinion that the court correctly ruled out this proffered testimony. The policy speaks for itself and the terms written therein constitute the agreement of the parties. It should not be varied by parol evidence. The jury found the issue in favor of the plaintiff and assessed its damages at the sum of $5,593.13, upon which verdict judgment was entered and we see no reason for disturbing the judgment.\nFor the reasons stated in this opinion the judgment of the circuit court is affirmed.\nJudgment affirmed.\nHebel, P. J., and Friend, J., concur.", "type": "majority", "author": "Mr. Justice Wilson" } ], "attorneys": [ "Philip H. Treacy, for appellant.", "John A. Bloomingston and Philip Weinstein, for appellee." ], "corrections": "", "head_matter": "Bankers State Bank, Appellee, v. New Jersey Fidelity & Plate Glass Insurance Company of Newark, New Jersey, Appellant.\nGen. No. 34,904.\nOpinion filed October 21, 1931.\nPhilip H. Treacy, for appellant.\nJohn A. Bloomingston and Philip Weinstein, for appellee." }, "file_name": "0205-01", "first_page_order": 235, "last_page_order": 241 }