
    SUPREME COURT—APP. DIVISION—FIRST DEPT.,
    March 24, 1911
    SOLOMON M. ROSENTHAL et al. v. AMERICAN BONDING COMPANY OF BALTIMORE.
    (143 App. Div. 362.)
    (1) Burglary—Entry by opening op closed door.
    Under sections 498 and 499 of the former Penal Code, persons who turned the handle and opened the closed door of a store and on entering stole, goods after binding the clerks in attendance, committed burglary, the turning of the' knob and the opening of the door being a breaking within the meaning of the statute.
    (2) Same—Insurance against burglary—Contract construed.
    Where a policy insured against burglary on premises situate in this State, the burglary insured against is that defined by our statutes-rather than a common-law burglary.
    (3) Same—Absence op visible marks op violence on premises.
    Where said policy insured against direct loss by burglary, a provision that the insurer should not be liable “unless there are visible marks upon the premises of the actual force and violence used in making entry into the said premises or exit therefrom," should not be construed as a limitation of liability, or as a description of the risk, but as a mere evidentiary provison inserted to prevent fraudulent-claims in cases where there are no witnesses to an alleged burglary. Hence, such clause does not discharge the insurer where there is evidence that the burglars actually entered, bound the clerks and stole goods, although they left no visible marks of actual force upon the premises.
    Scott, J., and Ingraham, P. J., dissented, with opinion.
    Appeal by the defendant, the American Bonding Company of Baltimore, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 31st day of May, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in aid clerk’s office on the 27th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      John Ewen of counsel (Wilder, Ewen & Patterson attorneys), for the appellant.
    , Ernest Hall, for the respondents.
   Clarke, J.:

This is an action on a, burglary insurance policy. At the close of plaintiff’s case both sides moved, for the direction of a verdict. The court directed a verdict for the plaintiffs and from the judgment entered thereon and from the order denying a motion for a new trial the defendant appeals. The plaintiffs are merchants dealing in silks at wholesale. Their place of business was in the first loft of the premises 463 Broome street. The defendant isued to plaintiffs a policy whereby it insured them “ For direct loss1 by burglary of any of the merchandise described in the schedule hereinafter contained and stated to be insured hereunder occasioned by its felonious abstraction from the store, warehouse, office, loft or rooms, hereinafter called the premises and actually occupied by the Assured in the manner set forth in the schedule, by any person or persons who have made forcible and violent entrance upon the premises, or exit therefrom, of which force and violence there shall be visible evidence ;** *. Special agreements. (A) The company shall not be liable: (1) Unless there are visible marks upon the premises of the actual force and violence used in making entry into the said premises or exit therefrom; * *

The proof established that at about half past seven o’clock on Monday morning, June 17, 1907, two of plaintiffs’ employees entered the store or loft which was up one flight of stairs to prepare for business. They opened the door with a key, and shut the door after entering, but did not lock it. The stock clerk testified:- “I walked over to the electric box and gave the Holmes people the signal everything was all right, and they gave me two bells back. I walked back to open the shutters. I no sooner got to the rear of the store when the door was flung open. I saw a man come in with a gun in each hand. He ordered me to throw up my hands and I refused .to- do it, * * * and he started to beat me. He was punching me right 'along.

* * * He took the butt of his gun and struck me in the back of the head with it. I fell over the counter, and as I fell over he told the young fellow that was with him to bind my hands.

* * * That door was closed on that morning when I was in the store. .Q. When these people came in did they throw open the door? A. Yes, sir.”

The clerks were tied up hand; and foot by straps, taken into the back office, a bandanna, tied -over their faces, and the two-men, a discharged employee and his brother, carried away about $1,000' worth of goods. There was a subsequent arrest and indictment. It is not disputed that there was'a “felonious abstraction ” of good of the plaintiffs from their store accompanied with violence, threats and the display of deadly weapons.

There is no doubt that the transaction constituted burglary in -the third degree under section 498 of the Penal Code, in force at the time of the acts complained of: “ A person who either, 1. With intent to commit a crime therein, breaks and enters a building, or a room, or any part: of a building; or, 2. Being in any building, commits a crime therein and breaks out of the same-; i guilty of 'burglary in the third degree.” Section 49.9' defines “ break ” 'as follows: “ * * * 2. Opening, for the purpose of entering therein, by any means whatever, any outeir door of a building, or of any apartment or set of apartments therein separately used or occupied, or any window, shutter, scuttle or other thing used for covering or closing an opening thereto, or therein, or which gives passage from one pair* thereof to another.”

The turning of the handle and the opening, of the closed dóor was a breaking. If, therefore, the prisoner in entering the cellar unlatched the door immediately communicating with it, there was a breaking and entry which would constitute burglary, provided the other constituent of the offense was made out, viz., that the prisoner entered with the intent to commit a crime.” (McCourt v. People, 64 N. Y. 583. See, also, People v. Bush, 3 Park. Cr. Rep. 552; Tickner v. People, 6 Hun, 657.)

In People v. Gartland (30 App. Div. 534) it was said: There can be no doubt that the prisoner, with two companions, went into the apartment through that entrance door. * * * But he claims that there was not sufficient proof to show that there was any breaking or force, used in uny way, to gain an entrance, so as to- bring hie acts within the statutory definition of burglary. * * * That definition [Penal Code, § 499] is satisfied if the proof -shows that the appellant opened, by any means, the outer do-or of the apartment named in the indictment. That he gained entrance through that door is, as said before, admitted. If that door was shut at the time he made his entrance to the apartment, -and he opened it by any means whatever, he was guilty o-f the offense.”

So that the proof clearly established that there was a direct loss by burglary of merchandise occasioned by its felonious abstraction from the store, warehouse, office, loft or rooms- by persons who made a, forcible and violent entrance upon the premises and of which force and violence there was visible evidence in the testimony of the witnesses who- saw the criminals forcibly throw tine -door open and advance upon them pistol in hand. The provisions of the 1st paragraph of the policy cited supratare, therefore, fully met by the proof. The question is whether a felonious asportation of goods completely proved under Buch circumstances was covered by the policy, because of the further clause thereof, “ The company shall not he liable * * * unless there are visible marks upon the premises of the actual force and' violence used in making entry into the said premises or exit therefrom.”

It is suggested that the language of the policy is to be read as referring not to statutory but common-law burglary. But the policy was written upon premises situate in the State of Hew York. If a loss occurred and it became necessary to bring suit thereon the courts of this State were undoubtedly to pass thereon. The burglary ” insured against was clearly “ burglary ” as defined by the statutes of this State. Common-law burglary could not have been intended for the building was not a dwelling house. Said Sir William Blackstone in his Commentaries (Vol. 4, p. 224) : The definition of a burglar, as given us by Sir Edward Coke (3 Inst. 63) is ‘ He that by night breaketh and entereth into a mansion house, with intent; to- commit a felony.’ ” Btit so far' -as the breaking and entering ” is concerned, the facts bring this case within the common law for the same learned commentator says (at p-. 226) : There must in general be an actual breaking; not a mere clausum fregii (by leaping over invisible ideal boundaries which may constitute a civil trespass), but -a, substantial and forcible irruption. A at least by breaking or taking out the glass of, or otherwise opening a window picking a lock, or opening it with a key; nay, by lifting up the latch o-f a door, or unloosing any other fastening which the owner has provided.”

There is a sufficient breaking at common law, and -a ‘ forcible breaking ’ within the meaning of a statute, when a person enters a house by unlocking or unlatching a door, or even by pushing open a door which is shut, but neither locked nor latched * * * land in, many other cases where a very ¡slight degree of force is used.” (6 Cyc. 174, 175.)

In a statute punishing any one who shall “ forcibly break: ¡and -enter ” a dwelling house, the word “ forcibly ” only expresses the degree of force that was implied at common law from the word “ break,” and a, breaking sufficient at common law is sufficient under the statute. (Timmons v. State, 34 Ohio St. 426.

The risk insured against having been fully -and clearly set forth in the paragraph: commencing For direct loss by burglary ” we interpret the clans© “ unless there are visible marks upon the premises of the actual force and violence used in making entry into the said premises or exit therefrom,” not as a limitation of liability, not as description of the risk, but as mere evidentiary provisions inserted to- prevent fraudulent claims, to provide for cases where in the absence of witnesses a burglary is sought to be established by the mere loss of goods with no evidence direct or circumstantial of a breaking and entering, cases of pilfering by employees and the like.

Cases under policies insuring against death caused by accident are analogous and instructive.

In Root v. London Guarantee & Accident Co. (92 App. Div. 578), by the provisions of the policy the defendant insured decedent in the sum of $5,000 “ against, bodily, injuries sustained wholly land exclusively through external violence occasioned accidentally by visible means.” It further provided, “ that this insurance does not cover injuries of which there is no visible mark on the body (the body itself in case of death not being deemed such mark).” Decedent bad fallen from a bicycle on the 20th of June, 1902, fracturing his right femur. He died on the tenth of August of angina: pectoris. The fractured femur recovered. The physicians testified that the heart spasms were not attributable to a broken femur. There was no visible mark on the back or chest and the appellant contended that the anginal pains, even though resulting from the accident, did not bring the case within the compass of the policy. The court said: “We think this is too narrow a construction to put upon its language. Where it is plain that an accident has occurred and severe injuries have resulted and it is a fair deduction from the circumstances that death ensued as the 'direct consequence of such accident the policy should be construed to hold the defendant liable even though no contusions or marks appear upon the body. A man may be killed by a blow over tine heart, or by drowning or by falling from a balloon and death ensue before reaching the ground and in each instance there may he no mark upon the body, yet the death is by accidental means and should .be within the purview of the policy.”

In Paul v. Travelers’ Insurance Co. (112 N. Y. 472) the policy provided: “ Provided always, that this insurance shall not extend, to any bodily injury of which 'there shall he no external and visible sign upon the body of the insured, * * * nor to any death or disability which may have been caused * * * by herniai, bodily infirmities, * * * nor by the taking of poison, contact with poisonous substances, or inhaling of gas.” The decedent was found dead in his bed like a man asleep, without any outward indications that he was dead, and without .any external or visible signs of injury upon his body. His death was caused by his breathing the atmosphere of his room, full of illuminating gas. The defendant resisted recovery, and Gray, J., said: “A careful consideration of this instrument and of the .scope and design of its provisions, leads ns to the conclusion that the appellant must fail in its contention. At the foundation lie the facts, conceded and found,, that there was a death caused by accidental means, and that the accidental means were the decedent’s * breathing the atmosphere of the room, full of illuminating .gas.’ The absence of any external and visible sign upon the body of the insured presents no embarrassment. * '* * Such' a provision, obviously, was designed as a proper precaution to guard the company against a liability upon a fraudulent claim by the insured for indemnity for bodily injuries, of which the only evidence might he the word of the person. This policy, like any other contract between parties, is to he construed,.not merely by the letter, but by the spirit. We must read it in connection with- the whole subject-matter to which it relates, and give to language its ordinary and natural meaning. If, then, the intention of the parties becomes manifest, such intention must prevail.” And it was held that the plaintiff could recover.

In Menneiley v. Employers’ Liability Assurance Co. (148 N. Y. 596) the policy contained the following clause: “This policy does not insure against death or disablement * * * from accidents that shall bear no external and visible marks * * *, nor against death or disablement arising from 'anything accidentally taken, administered or inhaled, contact of poisonous substances, inhaling gas, or any surgical operation or exhaustion consequent thereon.” Judgment was directed for the defendant at General Term on the ground that it was not liable because the cause of death of the insured was within the exception in the policy as to death arising, from anything accidentally taken, administered or inhaled. (Menneiley v. Employers’ Corporation, 72 Hun, 477.) This was likewise a gas case. The Court of Appeals held that the facts were- so nearly like those in the Paul case that no distinction between them existed. The court went on to say: “ The only remaining question relates to the provision which declares that tine policy ( does not insure against death or disablement * * * from accidents that- shall bear no external and visible marks.’ It is somewhat difficult to understand precisely what was intended by this clause of the policy. We are, however, of the opinion that the language employed, when fairly construed, indicates' that its purpose was to provide that a case of death oir injury should not be regarded asi within the policy, unless there was some external or visible evidence which: indicated that it was accidental. In other words, that only such injury as could be shown by external and visible evidence to have been accidental should be regarded as within the policy. In this case it is admitted that the decedent’s death was occasioned by his involuntarily and accidentally breathing illuminating gas which had accidentally escaped into- his room; that there were no visible marks of the accident upon the body of the deceased!, but when artificial respiration was produced illuminating gas emanated therefore to the perception of the-person producing such artificial respiration; that upon entering the room it was perceived to he full of gas, and that gas was then escaping therein, and -that an inspection of the body showed life to be extinct. W'e think this admission furnishes, sufficient evidence of an external and visible character that the death of the decedent was accidental to exclude it from this exception in the policy, and hence that it was one of the accidents -against which the defendant intended -to- insure.”

In that ease the exhalation of gas was momentary; it was- not . visible; it did not remain for the inspection of the company’s officers or doctors; it is difficult to conceive of anything more evanescent, and yet the clause did not stand in the way of a recovery. The court interpreted the language “ visible marks ” upon the body as meaning unless there was some external or visible evidence which indicated that it was accidental.”

This burglary was evidenced by visible signs and marks upon the premises, because the witnesses saw the forcible and violent entry thereon and the attending circumstances., to- which they testified, and about which there is no- dispute. I think that the loss came within the risk covered by the policy.

The judgment and order appealed from should be -affirmed, with costs.

Laughlin and Miller, J. J., concurred; Ingraham, P. J., and Scott, J., dissented.

Scott, J. (dissenting) :

This -is am -appeal from a judgment against a -surety company upon a policy of insurance against loss by burglary. There is mo dispute as to tibie facts, -the only question involved in the appeal being whether or not the loss which the plaintiffs suffered was covered by the terms: of the policy. The plaintiffs were merchants dealing at wholesale in silk goods. The circumstances attending the loss were as follows: On June 17, 1907, and while this policy was in full force, two of the employees of plaintiffs entered the store at about seven-thirty in the morning to prepare for business. They opened the door of the loft with a key (there being no other fastening than a lock) and shut the door -after entering, but did not lock it, and it was left so that by turning the handle of the door attached to the lock the tongue would slide -and the door could be opened. A few minutes, later Kennedy, a former employee of plaintiffs, accompanied by his, younger brother, threw open the door of said store and entered, 1 with iai pistol in each hand, and threatened and beat one of the clerks and then hound ¡and gagged both of them and robbed the store of silks valued at -about $1,050. The police and the defend-anticompany were -at once notified and an examination was made ; the burglars were afterwards arrested hut the goods were never recovered.

A verdict was directed in favor of plaintiffs for the value of the stolen property and interest.

The policy sued upon undertook -to insure the plaintiffs For direct loss by burglary of any of the merchandise described in the schedule hereinafter contained1 and stated to- he insured hereunder occasioned by its felonious abstraction from the store, warehouse, office, loft or rooms, hereinafter called the premises and actually occupied by the Assured in the manner set forth in the schedule, by any person or persons who have made forcible and violent entrance upon the -premises, or exit therefrom, of which force and violence there shall be visible evidence.”

Included in the terms of the policy were certain clauses, de-nominated special agreements,” the first of - which read as follows: (A) The company shall not be liable: (1) Unless there are visible marks upon the premises of the actual force and violence used in malting entry into the ©aid premises or exit therefrom.” Haturally, since it had been necessary to use no force to effect an entrance beyond that required to turn the doorknob, there were no visible marks upon the premises of factual foir'ee or violence used in making entry, and the claim of the appellant is that it did not undertake to insure against loss 'by such a crime as ithe evidence shows was committed in this case. If the policy had undertaken in general terms to insuré the plaintiffs against loss by “ burglary,” without limiting or defining the meaning of that word -as used in the policy, there would be no doubt of the defendant’s liability, for the crime as described by tthe witnesses undoubtedly amounted fo a burglary in this State. (Penal Code, §§ 496-504; now Penal Law, §§ 400-404.) That, however, is not what the defendlant insured against. Its undertaking was to indemnify plaintiffs against-a loss by burglary committed by persons who not only have made “ forcible and violent ” entrance upon or exit from the premises, but of whose force and violence there shall be “visible evidence.”' The words “ force ” and “ violence ” are words in common use and of perfectly well-understood meaning. It is said that the conduct of the thieves was forcible and violent towards the clerks whom they found in the store, but that this is not what was contemplated by the policy is made clear by the special agreement, which relieves defendant from responsibility unless the visible marks of force and violence are to be found “ upon the premises.” The respondents urge that the provision in the special agreement is a mere rule of evidence. It is undoubtedly that, but it also serves to define the nature of the force and violence which must accompany the crime in order to bring the loss within the policy.

The respondents reply upon a line of well-known cases which have arisen under life and accident insurance policies wherein, it has been stipulated that they should not extend to death or disability of which there should be no external or visible signs.. (Gale v. Mutual Aid & Accident Assn., 66 Hun, 600; Root v. London Guarantee & Accident Co., 92 App. Div. 578; Menneiley v. Employers’ Liability Assurance Co., 148 N. Y. 596; Paul v. Travelers’ Ins. Co., 112 id. 472; Mutual Accident Assn., v. Barry, 131 U. S. 100.) In all of these cases it was considered that the condition was merely a rule of evidence, designed to-protect the insurer against fraud, and when it clearly appeared,, by evidence other than the external or visible signs, that the-death or injury was one of those against which it was intended to insure, the courts have found the condition satisfied by almost-anything, however slight, that could by any possibility be construed as an external or visible sign. The present case differs) from those in two respects. In the first place there is not the slightest evidence of any visible marks at all upon the premises-resulting from actual force and violence, and in the second, place, as already pointed out, the fact that the burglary must be accompanied by force and violence in order to be covered by the-insurance, characterizes the nature of the loss against which the-plaintiffs were insured. In my opinion the plaintiffs failed to-show that they had suffered loss from the kind of burglary-which the policy insured against, and, therefore, the judgment-should be reversed and a new trial granted, with cost to appellant to abide the event.

Ingraham, P. J., concurred.

Judgment and order affirmed, with costs.  