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Gross v. Fidelity & Deposit Co.

July 9, 1934

GROSS ET AL.
v.
FIDELITY & DEPOSIT CO. OF MARYLAND



Appeal from the District Court of the United States for the Eastern District of New York.

Author: Chase

Before MANTON, L. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

On March 22, 1930, armed robbers entered the jewelry store of Harry L. Gross & Bro., at Jamaica, N.Y., held up Harry L. Gross, who is one of the plaintiffs in this suit, and an employee who was there with him, and stole certain jewelry including some which the plaintiffs claim was covered by a policy of insurance issued by the defendant.

That part of the jewelry with which this suit is concerned was then stolen from a safe on the premises. It had belonged to Celia F. Gross, who had been the wife of Harry L. Gross until her death on November 28, 1928, and had all been used by Mrs. Gross for her personal adornment. It was not of a kind suitable to be worn by a man or by children. Mrs. Gross had died intestate and no administrator of her estate was appointed until Harry L. Gross was granted letters of administration on July 24, 1930, about four months after the robbery. After that this suit was brought by him both individually and as administrator and by the three minor children of Celia F. Gross appearing as plaintiffs by him as their guardian ad litem. All the plaintiffs are residents of New York.

The defendant, a Maryland corporation licensed to do business in New York, issued to Harry Gross, who is one of the plaintiffs, a policy of burglary, theft, and larceny insurance which took effect July 24, 1929, and was in force when the Jamaica store was robbed and this jewelry stolen. This insurance covered, under clause I, loss of the property insured by burglary, robbery, theft, or larceny at premises occupied by Mr. Gross at 643 Empire boulevard, Brooklyn, N.Y. Under clause II, loss of property from any of the above-named causes if taken from within any safe deposit box in a vault in a bank or trust or safe deposit company in the United States or Canada was covered. Under clause III, the defendant agreed to indemnify the assured for all damage, except by fire, to such property or premises caused in the ways named or by attempts to do those acts. Only under clause IV, do the plaintiffs claim the right to recover in this suit. These clauses read as follows:

"Indemnity for Loss.

"I. To Indemnify the Assured for all loss by burglary, robbery, theft or larceny, of any of the property issued hereunder, from within the premises occupied by the Assured and as hereinafter defined, committed by a guest or by any domestic servant or other employee of the Assured, or by any person whose property is not covered hereby.

"Loss from Safe Deposit Boxes.

"II. To Indemnify the Assured for all loss by burglary, robbery, theft or larceny, committed as aforesaid, of such property from within any safe deposit box in a vault in any bank or trust or safe deposit company situate in the United States of America or the Dominion of Canada.

"Indemnity for Damage.

"III. To Indemnify the Assured for all damage (except by fire) to such property and premises caused by such burglary, robbery, theft or larceny, or attempt thereat.

"Personal Hold-up.

"IV. To Indemnify the Assured (if insurance is provided in section (d) of Item 8 of the Declarations but not otherwise) for all loss or damage by robbery, of money and securities not exceeding $50.00, and jewelry, watches, clothing and articles of personal adornment, owned by any of the persons whose property is covered hereby as specified in Condition A hereof, provided such loss or damage shall occur within the limits of the United States of America or the Dominion of Canada. "Robbery" as used herein shall mean a felonious and forcible taking of such property from any of the individuals covered hereby, who is over eighteen yeas ...


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