Bank of Fruitvale v. Fidelity & Casualty Co.

KERRIGAN, J.

This is an appeal from a judgment in favor of the defendant after an order sustaining its demurrer to the plaintiff’s fifth amended complaint.

The action ivas brought upon a policy of insurance against inside or outside robbery for a loss alleged to be covered by the policy. The complaint is in two counts, and the facts therein stated show that plaintiff is a banking corporation doing business in the city of Oakland, where it maintains a main office and a branch office in different parts of the city, keeping its money and valuables at the main office and conveying some portion thereof by a custodian to and from its branch office every day before and after business hours, which were from 8 A. M. to 5 P. M. daily except on Saturday, when its two places of business were kept open until 9 P. M.

On October 8, 1913, having received a request from plaintiff for a policy of insurance protecting it against loss from robbery and burglary, defendant sent one of its agents to plaintiff to obtain its application therefor. At this visit the agent of the defendant was told by one of the officials of plaintiff that the bank desired a policy of insurance to protect it against loss by robbery, such loss to be covered in Saturday evenings up to 9 o’clock. No assurance was given to the plaintiff that such a policy would be issued, but the application was reduced to writing by the agent and sent to the defendant, which in acknowledging its receipt on October 10, 1913, in a letter to its agent, stated that the company was covering the plaintiff as of the date of October 15, 1913, on which date the defendant issued and delivered a policy of insurance, which by its terms covered plaintiff against loss of the character indicated but only up to 8:30 P. M. on Satur

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days. Upon receipt of this policy the plaintiff placed it in its vaults without reading it, and had no further communication with the defendant with reference thereto until after the occurrence of the loss.

On Saturday evening, February 21, 1914, and for a long time prior thereto, plaintiff had in its employ an armed guard, a trustworthy person, who was specially directed and instructed by plaintiff to accompany its custodian while conveying plaintiff’s money and valuables between its places of business, such attendance on Saturday evenings being required of him between the hours 5 and 9 o’clock. On said evening the guard remained constantly with plaintiff’s custodian until about the hour of 8:15, when, without the knowledge or consent of plaintiff, he left his place of duty, and the custodian remained unattended. A few minutes thereafter, about the hour of 8:34 P. M. standard time at Oakland, California, and 8:25 P. M. mean time for the meridian of that city, while plaintiff’s custodian was conveying money and valuables from its branch office to its main office, he was held up and robbed of two thousand three hundred dollars, the property of plaintiff. Other allegations of the complaint will appear in the course of this opinion.