Saks v. St. Paul Mercury Indemnity Co.

Michigan Supreme Court

Saks v. St. Paul Mercury Indemnity Co.

14 N.W.2d 547, 308 Mich. 719, 1944 Mich. LEXIS 293

CourtMichigan Supreme Court

DecidedMay 17, 1944

DocketDocket No. 45, Calendar No. 42,678.

StatusPublished

Cited by4 cases

This text of 14 N.W.2d 547 (Saks v. St. Paul Mercury Indemnity Co.) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Saks v. St. Paul Mercury Indemnity Co., 14 N.W.2d 547, 308 Mich. 719, 1944 Mich. LEXIS 293 (Mich. 1944).

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Opinions

Boyles, J.

Plaintiff brought suit against the defendant indemnity company to recover for money taken from plaintiff by robbers, for the loss of which plaintiff claims to have been indemnified by the defendant in a robbery policy. The case was submitted to the circuit court for Wayne county on a stipulation of facts, the circuit judge filed a written opinion finding for plaintiff, and entered judgment against defendant for $765. The only ground urged by defendant for reversal is that the policy of insurance on which suit was based does not cover the loss sustained by. plaintiff, under the agreed facts-. •

Prior to November 30, 1941, plaintiff leased from the Kahn Bealty Company the premises described in said lease as “store known as 8231 Woodward avenue, ’ ’ Detroit, Michigan. On September 15,1941, there was issued to plaintiff by defendant a mercantile robbery and safe burglary policy for a period of one year, correctly describing the location of the premises. That part of the policy under consideration insuring plaintiff against loss by robbery inside the premises is as follows:

“Bobbery Inside Premises. II To indemnify the insured (if insurance is provided under sections (c) or (d) or item 7 of the declarations but not otherwise) for all loss or damage (hereinafter called loss) to such property while in the premises, and for damage to the premises if the insured is the owner thereof or is liable for such damage, provided such loss is occasioned by:” (robbery)

*721 Item 7, section (c), referred to above, reads:

“Within the designated premises while at least one custodian is on duty therein.”

No issue is raised as to whether there was a custodian on duty at the time of the loss. Defendant bases its claim that the loss is not. covered by the policy on paragraph A in the policy under the heading “This policy is subject to the following agreements, limitations and conditions,” which described “premises” as follows:

“Premises means the interior of that portion of the building designated in item 3 of the declarations which is occupied solely by the insured in conducting his business.”

In short, defendant claims that it is not liable because the loss did not occur inside the building.

The Saks Cafe, operated by the plaintiff and described in said policy, is a night club so-called. On November 30, 1941, at about 2 a.m., plaintiff had closed his place of business, had counted the day’s receipts, segregated the money for business purposes into four different envelopes, and after the money had been thus segregated it was turned over to plaintiff’s wife who put it in her purse. The total amount of the cafe money was $1,185.50. Besides this, she had other money belonging to herself in the purse. At the time of closing the place of business and while the money was being counted, the plaintiff, his wife, the headwaiter, and the night watchman were in the cafe. Having completed the counting of the money and turning it over to Mrs. Saks, the parties went out of the cafe to get into their cars which were parked in the driveway on the north side of the building. When Mr. Saks and the other parties left the cafe to go to their cars, they left by .the side door. Mrs. Saks and the headwaiter left ahead of Mr. Saks and were in their cars waiting for him. *722 Mr. Saks got into the car after the door of the cafe, by 'which he had left, had’ closed and automatically locked. Then three masked men came up, exhibited guns and forced all parties to get out of their cars and re-enter the cafe. They returned to the cafe by the same side door from which they had left.

After re-entering the cafe, one of the robbers took the plaintiff into the cafe kitchen and cross-examined him as to where the money was. Although plaintiff’s wife had put all the money from the cafe busi- ■ ness into her purse and had left her purse with the money in it in the car, plaintiff thought the robbers had taken her purse at the time they made them get out of the car. While the one robber was questioning the. plaintiff in the cafe kitchen, another one had forced the night watchman tó lie on the floor in the main part of the cafe and had the headwaiter standing with his face to the wall. The remaining robber was questioning plaintiff’s wife.

Plaintiff did not know that the money was still in the car and kept insisting he did not have any more money. The robber watching plaintiff struck him on the side of the head with his revolver. Plaintiff’s wife heard the blow and told the one with her that the money was in her purse in the car. Thereupon the robber who was questioning plaintiff’s wife went out to the car, got the purse and the money and brought it back into the cafe. He took the money out of the purse and kept it. He left the purse on a table, called the other robbers and they all left the cafe.

While the robbers were questioning Mr. Saks in the kitchen, they made continuous threats of bodily harm to all of the parties if they did not divulge the whereabouts of the money. They were very loud in their threats and inflicted a gash in the head of the plaintiff, After the robbers had removed’ the money *723 from the purse they threatened all parties with bodily harm if they made any outcry as the robbers ran from the building. The amount taken by the robbers was in excess of $1,000.- The policy of insurance limited recovery to a loss of $700, so that the maximum amount that could be recovered by plaintiff would be $700 plus interest.

The stipulation of facts which we find in the record recites that a copy of the policy is thereto annexed. There is no copy of the policy in the record. However, the circuit judge in his opinion found, and the statement is not controverted, that “robbery” is defined in the policy as “the felonious and forcible taking of insured property.” Defendant makes no claim that the offense shown by the facts does not constitute the crime of robbery. Under our statutes, an essential element of robbery armed is assaulting another and stealing or taking away money or other property from his person or in Ms presence. Act No. 328, § 529, Pub. Acts 1931 (Michigan penal code) (Comp. Laws Supp. 1940, § 17115-529, Stat. Ann. § 28.797).

This is a case of first impression in this State. Counsel for defendant relies on Axt v. London & Lancashire Indemnity Company of America (C. C. A.), 131 Fed. (2d) 370. Plaintiff relies on Cartier Drug Co. v. Maryland Casualty Company of Baltimore, Maryland, 181 Wash. 146 (42 Pac. [2d] 37). The facts in the latter case are quite similar to those in the instant case and the reasoning of the court is convincing. The court said:

“The sole question in the case, as we see it, is: At what place was Cartier robbed of the $473.57 ? In the administration of criminal law, two distinct elements are held to be necessary to the crime of robbery: (1) Putting the victim in fear of violence to his person or property; and (2) the taking of money, *724 property, or thing of value from his person or in his presence.

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Boyles, J.

Plaintiff brought suit against the defendant indemnity company to recover for money taken from plaintiff by robbers, for the loss of which plaintiff claims to have been indemnified by the defendant in a robbery policy. The case was submitted to the circuit court for Wayne county on a stipulation of facts, the circuit judge filed a written opinion finding for plaintiff, and entered judgment against defendant for $765. The only ground urged by defendant for reversal is that the policy of insurance on which suit was based does not cover the loss sustained by. plaintiff, under the agreed facts-. •

Prior to November 30, 1941, plaintiff leased from the Kahn Bealty Company the premises described in said lease as “store known as 8231 Woodward avenue, ’ ’ Detroit, Michigan. On September 15,1941, there was issued to plaintiff by defendant a mercantile robbery and safe burglary policy for a period of one year, correctly describing the location of the premises. That part of the policy under consideration insuring plaintiff against loss by robbery inside the premises is as follows:

“Bobbery Inside Premises. II To indemnify the insured (if insurance is provided under sections (c) or (d) or item 7 of the declarations but not otherwise) for all loss or damage (hereinafter called loss) to such property while in the premises, and for damage to the premises if the insured is the owner thereof or is liable for such damage, provided such loss is occasioned by:” (robbery)

*721 Item 7, section (c), referred to above, reads:

“Within the designated premises while at least one custodian is on duty therein.”

No issue is raised as to whether there was a custodian on duty at the time of the loss. Defendant bases its claim that the loss is not. covered by the policy on paragraph A in the policy under the heading “This policy is subject to the following agreements, limitations and conditions,” which described “premises” as follows:

“Premises means the interior of that portion of the building designated in item 3 of the declarations which is occupied solely by the insured in conducting his business.”

In short, defendant claims that it is not liable because the loss did not occur inside the building.

The Saks Cafe, operated by the plaintiff and described in said policy, is a night club so-called. On November 30, 1941, at about 2 a.m., plaintiff had closed his place of business, had counted the day’s receipts, segregated the money for business purposes into four different envelopes, and after the money had been thus segregated it was turned over to plaintiff’s wife who put it in her purse. The total amount of the cafe money was $1,185.50. Besides this, she had other money belonging to herself in the purse. At the time of closing the place of business and while the money was being counted, the plaintiff, his wife, the headwaiter, and the night watchman were in the cafe. Having completed the counting of the money and turning it over to Mrs. Saks, the parties went out of the cafe to get into their cars which were parked in the driveway on the north side of the building. When Mr. Saks and the other parties left the cafe to go to their cars, they left by .the side door. Mrs. Saks and the headwaiter left ahead of Mr. Saks and were in their cars waiting for him. *722 Mr. Saks got into the car after the door of the cafe, by 'which he had left, had’ closed and automatically locked. Then three masked men came up, exhibited guns and forced all parties to get out of their cars and re-enter the cafe. They returned to the cafe by the same side door from which they had left.

After re-entering the cafe, one of the robbers took the plaintiff into the cafe kitchen and cross-examined him as to where the money was. Although plaintiff’s wife had put all the money from the cafe busi- ■ ness into her purse and had left her purse with the money in it in the car, plaintiff thought the robbers had taken her purse at the time they made them get out of the car. While the one robber was questioning the. plaintiff in the cafe kitchen, another one had forced the night watchman tó lie on the floor in the main part of the cafe and had the headwaiter standing with his face to the wall. The remaining robber was questioning plaintiff’s wife.

Plaintiff did not know that the money was still in the car and kept insisting he did not have any more money. The robber watching plaintiff struck him on the side of the head with his revolver. Plaintiff’s wife heard the blow and told the one with her that the money was in her purse in the car. Thereupon the robber who was questioning plaintiff’s wife went out to the car, got the purse and the money and brought it back into the cafe. He took the money out of the purse and kept it. He left the purse on a table, called the other robbers and they all left the cafe.

While the robbers were questioning Mr. Saks in the kitchen, they made continuous threats of bodily harm to all of the parties if they did not divulge the whereabouts of the money. They were very loud in their threats and inflicted a gash in the head of the plaintiff, After the robbers had removed’ the money *723 from the purse they threatened all parties with bodily harm if they made any outcry as the robbers ran from the building. The amount taken by the robbers was in excess of $1,000.- The policy of insurance limited recovery to a loss of $700, so that the maximum amount that could be recovered by plaintiff would be $700 plus interest.

The stipulation of facts which we find in the record recites that a copy of the policy is thereto annexed. There is no copy of the policy in the record. However, the circuit judge in his opinion found, and the statement is not controverted, that “robbery” is defined in the policy as “the felonious and forcible taking of insured property.” Defendant makes no claim that the offense shown by the facts does not constitute the crime of robbery. Under our statutes, an essential element of robbery armed is assaulting another and stealing or taking away money or other property from his person or in Ms presence. Act No. 328, § 529, Pub. Acts 1931 (Michigan penal code) (Comp. Laws Supp. 1940, § 17115-529, Stat. Ann. § 28.797).

This is a case of first impression in this State. Counsel for defendant relies on Axt v. London & Lancashire Indemnity Company of America (C. C. A.), 131 Fed. (2d) 370. Plaintiff relies on Cartier Drug Co. v. Maryland Casualty Company of Baltimore, Maryland, 181 Wash. 146 (42 Pac. [2d] 37). The facts in the latter case are quite similar to those in the instant case and the reasoning of the court is convincing. The court said:

“The sole question in the case, as we see it, is: At what place was Cartier robbed of the $473.57 ? In the administration of criminal law, two distinct elements are held to be necessary to the crime of robbery: (1) Putting the victim in fear of violence to his person or property; and (2) the taking of money, *724 property, or thing of value from his person or in his presence.

“Whatever the crime may he, under any state of facts where one of such elements exists and the other does not, it is not robbery. The first element being present, the crime of robbery is consummated only when the victim is deprived of dominion over his money or property.”

The money taken in the instant case by the robbers was the property of Mr. Saks, not his wife’s property. The offense of robbery armed was perpetrated against Mr. Saks, in his presence, inside the building, when the robber removed his money from his wife’s purse and took it away. The crime was not consummated until the whereabouts of the money had been disclosed, it had been taken into the building, appropriated by the robbers and taken away. If Mr. Saks had been able to prevent the taking away of the money, after it had been returned to the building, the crime of robbery armed would not have been consummated. It would have been an attempt, only. The crime of robbery armed was committed inside the building, within the meaning of the policy.

We conclude that plaintiff’s loss is within the coverage of the policy. Judgment affirmed.

North, C. J., and Starr, Butzel, Bushnell, and Reid, JJ., concurred with Boyles, J.

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14 N.W.2d 547, 308 Mich. 719, 1944 Mich. LEXIS 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saks-v-st-paul-mercury-indemnity-co-mich-1944.

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