Northwestern Casualty & Surety Co. v. Barzune

42 S.W.2d 100, 1931 Tex. App. LEXIS 1425
CourtCourt of Appeals of Texas
DecidedJuly 3, 1931
DocketNo. 10846.
StatusPublished
Cited by7 cases

This text of 42 S.W.2d 100 (Northwestern Casualty & Surety Co. v. Barzune) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northwestern Casualty & Surety Co. v. Barzune, 42 S.W.2d 100, 1931 Tex. App. LEXIS 1425 (Tex. Ct. App. 1931).

Opinions

VAUGHN, J.

This suit originated in justice court No. 2, precinct No. 1, of Dallas county. Appellee sued appellant to recover’ upon a policy of insurance duly issued August 3, 1927, indemnifying appellee against loss by burglary under certain limitations and conditions from a certain safe fully described in said policy. The recovery sought was for a loss of $168.50 in money alleged to have been taken from appellee’s safe on or about April 19, 1929, and $11.50 for damage to said safe. The case properly reached the court from which this appeal was prosecuted, and judgment in that court was rendered in favor of appellee for $180, plus interest and costs. As a general discussion will suffice to dispose of the two propositions upon which this appeal is predicated, .and will fully develop the issues presented by pleadings and the evidence introduced thereon, no further statement of the case will be made. This appeal is presented upon the following agreed statement of facts:

“It is agreed that on or about the 2nd day of August, 1927, the defendant Northwestern *101 Casualty & Surety Company issued to the plaintiff its certain Burglary Policy No. VB. 937502, which was in force on or about April 19, 1929, the date of the loss and damage complained of by the plaintiff herein. That by the terms of said policy the defendant agreed to indemnify plaintiff:
“Eor all loss by burglary of money, securities and merchandise, as hereinafter defined, by its abstraction from within that part of any .safe or vault to which the insurance under this policy applies, by any person or persons making felonious entry into such safe or vault by actual force and violence of which force and violence there shall be visible marks made upon such safe or vault by tools, explosives, electricity, gas or other chemicals, while such safe or vault is duly closed and locked and located in the assured’s premises, described in the schedule, or located elsewhere after removal therefrom by burglars.
“Eor all loss by damage (except by fire) to such safe or vault and to money, securities and merchandise therein and to the premises and all furniture, fixtures and other property therein, caused by such forcible and violent entry into such safe or vault as aforesaid, or attempt thereat.”
“That said policy contained, among others, the following, viz.:
“ ‘Special agreements:
“ ‘5. The Company shall not be 'liable for any loss or damage:
“ ‘(a) Unless the doors of all vaults, safes and chests covered hereby are equipped with combination or time lock, and unless at the time of the burglary or attempt thereat all such doors are properly closed and locked by combination or time lock;
“ ‘(b) Effective by opening any safe, chest or vault by the use of any key or by the manipulation of any lock;
“ ‘(j) Of or to money, securities or merchandise contained in a fire-proof safe, unless entry into such safe has been effected by the use of tools, explosives, chemicals or electricity directly upon the exterior thereof.’
“II. That the plaintiff’s safe, described in the schedule to said policy, was a Mosler Fireproof Safe, equipped with an outer door, three inches thick, locked by a combination lock, and said safe also contained an inner compartment with a door of thin metal, locked by a key lock; that such thin metal door was surrounded by a cast iron casing.
“III. That on or about April 19, 1929, the premises of plaintiff were burglarized by some person or persons unknown, making felonious entry into such safe, and plaintiff sustained a loss of $168.50 in money, and his safe was damaged to the extent of $11.50, substantially as alleged by him. That such loss and damage occurred under the following circumstances: The $168.50 in money which was lost by the plaintiff was contained within the inner compartment of said safe, and the door to said inner compartment, as well as the outer door of said safe, were both duly locked. The combination lock with which the outer door of said safe was equipped was worked or manipulated, and entry into the inner compartment was effected by the use of some character of tool, the cast iron casing surrounding the door thereof being broken and the door thereof being pried open.
“IV. There were no visible marks made upon the exterior of such safe by tools, explosives, electricity, gas or other chemicals, and the opening of the outer door of said safe was effected by working or manipulating the combination lock thereof, and was not effected by the use of any tools, explosives, chemicals, .or electricity, directly upon the exterior thereof.”

The result of this cause depends upon the construction and interpretation of thp provisions of the policy, above quoted.

Appellant by its propositions insists: (1) That as the policy declared upon indemnified appellee only against loss incurred under the conditions specified in provisions (a), (b), and (j), supra, by a person making a felonious entry into appellee’s safe by some one or all of the means specified in said policy, and it was shown by the undisputed evidence that appellee’s loss was effected by working or manipulating the combination lock on the outer door of the safe, and that entry into it ■was not made by actual force and violence, and there were no visible marks made on the exterior of said safe by tools, explosives, electricity, gas, or other chemicals, the court erred in rendering judgment in favor of appellee; and (2) that, under the provisions of (b) and (j), supra, the undisputed evidence establishing that the safe in question was fireproof, that entry into same was not effected by the use of tools, explosives, chemicals, or electricity, directly upon the exterior thereof, but was effected by working or manipulating the combination lock thereof, the trial court erred in including in its judgment the item of $168.50 for money abstracted from the safe, and that its judgment should be corrected and reformed in that particular.

Appellee counters said propositions as follows: “(1) The policy in suit indemnifies ap-pellee — provisions (a) and (b) of said policy, supra, quoted — and by the undisputed evidence- it was shown that appellee’s loss was effected by some person or persons unknown, making felonious entry into such safe, that appellee sustained a loss in money of $168.50 and his safe was damaged to the extent of $11.50; the judgment in his favor was prop-.crly rendered. (2) The provisions of the policy that the company shall not be liable for any loss or damage, (b) and (j), supra, quot *102 ed, are not applicable in this case and should in no wise effect appellee’s right of recovery, because the undisputed evidence shows that entry to said safe was made into inner compartments of such safe by some person or persons unknown, by the use of some character of tools, and that the inner door was broken and pried open, and that the opening was in the exterior part of said safe.”

The determination of this appeal must abide the application of the generally accepted rule that insurance policies are to be construed in favor of the insured and against the company.

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Bluebook (online)
42 S.W.2d 100, 1931 Tex. App. LEXIS 1425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northwestern-casualty-surety-co-v-barzune-texapp-1931.