On appeal from the Supreme Court.
For the appellant, McCarter, English & Egner (Augustus C. Studer, Jr.).
For the respondent, Osborne, Cornish & Scheck (Emanuel P. Scheck and Ervin S. Fulop).
The opinion of the court was delivered by
BODINE, J. The plaintiff was engaged in business in Harrison, New Jersey. The defendant had issued to it a policy of insurance to indemnify it for loss occasioned by robbery of money intended for payrolls.
On July 21st, 1942, while the policy was still in force a large sum of money was received for the indicated purpose. Shortly thereafter the office manager Goodman, having receipted for the money, placed it in one of the safes in the office, locking the door and turning the key. A few minutes later while studying some blueprints with a fellow worker named Schneider, two armed men entered the main office from the anteroom and said, "This is a holdup, fellows." One of them pointed to Goodman and said, "Get up and get the money out of the safe. Make it snappy." The other armed man, in the meantime, covered Schneider with a revolver. Goodman opened the safe, took out the money and gave it to the bandits who, still covering the two office men, disappeared out of the window. The office was on the second floor. The street door was locked so the entry was made by means of a ladder brought for that purpose. There was no armed guard in the office and the money was not to be used till about four-thirty in the afternoon. It was delivered about one o'clock.
There was proof of prior statements that the money was not placed in the safe but was left on a desk and also that the safe was not locked. For the purposes of this case the fact question seems not material.
The pertinent provisions of the policy were as follows:
"In consideration of the premium charged for the policy of which this endorsement forms a part, it is agreed that the
insurance hereunder is limited to apply to loss of or damage to money and checks intended solely for the payroll of the insured occasioned by robbery occurring within the premises designated in the declaration.
"It is further agreed that one armed guard with no other duties will be on duty within the premises at all times when money and checks, intended for the payroll of the insured, is exposed to robbery ...