Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1966, No. 3120, in case of Paul F. Rothstein v. Aetna Insurance Company.
S. Robert Levant, with him Bennett, Bricklin & Saltzburg, for appellant.
Robert L. Arangio, with him William L. Meritz, and Zarwin, Prince, Baum, Steerman, Somerson & Meritz, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J. Montgomery, J., dissents. Dissenting Opinion by Hoffman, J. Cercone, J., joins in this dissenting opinion.
[ 216 Pa. Super. Page 419]
The principal issue in this case involves the construction of an exclusionary clause in an all-risk jewelry insurance policy.
[ 216 Pa. Super. Page 420]
Appellee, a manufacturing and wholesale jeweler, purchased the policy from appellant. While the policy was in effect a manufacturer's representative, who was representing appellee, parked his automobile one afternoon in a parking lot in Fort Wayne, Indiana. A case containing appellee's sample jewelry was locked in the trunk of the automobile. When the representative returned in approximately one hour to get his automobile, it had been stolen. The automobile was found later, but the trunk had been pried open and the jewelry and case were missing.
When appellant refused to pay his claim, appellee started this suit on the policy. Appellant denied liability on the basis of an unattended automobile clause. Judge Joseph Sloane tried the case, without a jury, and found for appellee in the amount of $9,046.42.
In order to understand the issues it is necessary that we briefly review the terms of the policy and quote certain parts. The policy was labeled a jeweler's block policy. Admittedly it insured property such as that taken from the trunk of appellee's automobile. The appellant denied liability for the loss of appellee's property because of the following provisions under "Insuring Conditions" of the policy:
"5. This policy insures against all risks of loss of or damage to the above described property arising from any cause whatsoever except:
"(I) Loss or damage to property insured hereunder while in or upon any automobile, motorcycle or any other vehicle unless, at the time the loss occurs, there is actually in or upon such vehicle, the Insured, or a permanent employee of the Insured, or a person whose sole duty it is to attend the vehicle. This exclusion shall not apply to ...