Ferguson v. Phoenix Assurance Company Of New York

370 P.2d 379 (1962)

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Nature of the Case

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Facts

Ferguson (P) was insured under a Storekeepper’s Burglary and Robbery Policy from Phoenix (D). His place of business, a Rexall drug store, was robbed at night with $70 in damages to the premises, narcotics taken from a storage drawer with a $32.59 value and $433.76 was taken from a safe. The insurance company confessed judgment for $152.59, and the only amount in dispute was the remaining $383.76 taken from the safe. The policy defined a safe burglary as one, which had been made by force and violence with visible evidence of that force or violence on both doors of the safe. The trial court found that there was no question that a burglary had occurred, the money was taken, and the insurance was procured for that purpose. The trial court gave judgment to P for $536.35. It held that the provision relied upon by D was an escape clause. D appealed.