H. Liebes & Co. v. United States Casualty Co.

[759]

LANGDON, P. J.

This is an appeal by the plaintiffs from a judgment against the defendant for $200 in an action to recover upon a policy of burglary insurance issued by defendant to the plaintiff. Appellant contends that the judgment in its favor should have been for $1,885, the agreed value of the property which was stolen.

It is conceded, however, that if the condition marked “t” in the policy applies to the facts in the instant ease, the judgment must be affirmed. That condition reads as follows: “The company shall not be liable for any loss of or damage to . . . (t) Merchandise contained in a show window in the premises for an amount in excess of $200.00 occasioned by any person or persons who, from the outside of the premises, bréales the glass in any such show window. ’ ’

We are • asked to determine whether or not the goods stolen were contained within a show window, as the words are used in condition “t” of the policy. It is the contention of appellant that there was no show window in the store, but that this store was of the type known as “glass front.” The case was submitted to the trial court upon a stipulation as to facts.

The trial court, having reached the conclusion that the goods which had been stolen were contained in a “show window,” gave judgment in favor of appellant and against respondent in the sum of $200. From the agreed statement of facts and the exhibits attached thereto we think the court could have reached no other conclusion, for from these it appears that a platform of polished oak, three feet wide and thirteen inches high, extended across the front of the store immediately behind the plate glass. On the surface of this platform, or on racks placed thereon, the goods which were stolen had been placed for the purpose of display to persons passing along the sidewalk or within the store. The goods were removed from the platform by a person or persons from the outside of the premises, who broke the plate glass separating the platform from the street. While, with the exception of a doorway, the plate glass extended across the front of the building in two sections, and there were no walls or curtains behind the platform to interfere with the view of the entire interior of the store from a position outside of the plate glass front, nevertheless, the fact re