Eastwood, Freund and Francis. The opinion of the court was delivered by Francis, J.A.D.
The issue here is whether the loss suffered by respondent is within the coverage provided by a policy of burglary insurance issued by appellant. A recovery was allowed by the district court judge who sat without a jury, and the carrier appeals.
The assured was engaged in the manufacture of metal furniture at 967 McCarter Highway, Newark, New Jersey.
According to the policy the company agrees, among other things:
"1. To indemnify the assured for all loss of merchandise, furniture, fixtures and equipment, occasioned by burglary which shall mean the felonious abstraction of such property from within the premises , by any person or persons making felonious entry therein by actual force and violence when the premises are not open for business, of which there shall be visible marks made upon the exterior of the premises at the place of such entry by tools , explosives, electricity or chemicals."
The word "premises" is defined in the declarations as follows:
"Item 3(b). The portion of the building occupied solely by the assured in conducting his business and herein called the 'premises' is 1st and 2nd floors."
It is apparent from the record that Professional Metals Manufacturing Co. occupied the whole of the second floor but only a portion of the first floor. However, no point is made by the carrier that the declarations are not accurate.
In any event, on August 2, 1952 a fire took place on the first floor of the building in a portion thereof occupied by the New Jersey Display Service, Inc., and which was directly below the assured's premises. As a result the Display Service ceiling and the floor above it were damaged and weakened. Both ceiling and floor gave way on three sides and created a large opening, about 20 feet square, into the assured's premises.
The condition remained unchanged for the ensuing 11 days, and on August 13, 1952 a door leading from the exterior of the building into the premises of Display Service was forced upon by a breaking of the lock. This was not an entrance to the "premises" of the assured. The evidence indicates that after gaining admission the intruders took two long, heavy planks and placed them side by side on an incline extending from the edge of the burned and charred floor of the assured's second floor premises to the floor or to the debris piled on the floor of Display Service. These planks were then used as a ramp for purposes of access to the assured's place of business, the burglars simply going up the ramp and through the open hole in the floor. Then, according to the detective who investigated the crime, the stolen articles were slid down the ramp to the first floor. This was demonstrated by scrape marks down the planks. Thereupon the articles were removed from the building.
The detective also noted that the heavy planks had hit against the edges of the assured's floor as they were being put in place and had left scrape marks on the charred surface. He said that the bright wood could be seen where this contact had occurred.
The trial court concluded that the breaking of the lock on the entrance door of Display Service and the marks of violence resulting therefrom did not constitute a felonious entry into Professional metals premises within the contemplation of the policy. However, he held that a felonious entry had been made therein by means of the planks; that the planks constituted "tools" and the scrape marks on the charred floor satisfied the requirement that such entry be made "by actual force and ...