Ætna Accident & Liability Co. v. White
| Decision Date | 08 May 1915 |
| Docket Number | (No. 7232.)<SMALL><SUP>†</SUP></SMALL> |
| Parties | ÆTNA ACCIDENT & LIABILITY CO. v. WHITE et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Kenneth Foree, Judge.
Action by Lou White and others against the Ætna Accident & Liability Company. From judgment for plaintiffs, defendant appeals. Affirmed.
Harry P. Lawther, of Dallas, for appellant. Locke & Locke, of Dallas, for appellees.
Appellees sued appellant upon a policy of insurance indemnifying them against loss by burglary, alleging that by the terms of the policy appellant agreed to indemnify appellees, who were engaged in the banking business at Wilmer, Tex., against all direct loss by burglary of money, bullion, bank notes, etc., not in excess of $5,000, if feloniously abstracted from appellees' safe. It was further alleged that a loss did occur by burglary, and that appellees had complied with all the provisions of the policy, but that appellant refused to pay the loss. Judgment was sought for the amount of the loss, approximating $3,300, together with 12 per cent. on the amount of the loss as damages, and together with $500 attorney's fees; the right to recover the last two items being based upon the provisions of article 4746, R. S. 1911.
Appellant admitted the issuance of the policy of insurance, denied any knowledge of a character sufficient upon which to base any belief concerning the burglary and consequent loss and damage, but specifically charged as defensive matter that appellees had breached certain warranties in the policy, and made certain false representations concerning the safe kept by appellees in their banking house, which would reduce the amount of appellant's liability, it being provided by said policy that in case of misstatement in the description of safe, etc., the policy should not be forfeited, but that appellant would in case of loss pay the amount only which the premium actually paid would have purchased at the rate charged by the appellant for the actual hazard. The defenses referred to generally above were pleaded specifically by appellant as follows:
(1) That the plaintiffs warranted that the price paid for safe by present owner was $500, and that the warranty was breached, in that the plaintiffs were not the owners of the safe, and had not paid either $500 or any sum therefor.
(2) That the plaintiffs warranted that "the safe proper is fire and burglar proof"; that "fire and burglar proof," as so used, was defined in the policy to mean "that class of safe or vault so designated by safe manufacturers to denote construction intended to protect against loss by fire and burglary"; that, in fact, the safe was not of such class, and was known by the plaintiffs not to be so.
(3) That the policy contained a provision authorizing the company to cancel it on five days' notice on return of unearned premium; that after the policy had been delivered by it to the plaintiffs and accepted by the plaintiffs, to wit, on September 21, 1910, its general agents wrote to the plaintiffs a letter as follows:
And the plaintiffs replied:
"Replying to your inquiry of the 21st inst., will state that the outer doors of our bank safe at this place are of solid steel construction four and one-half inches thick."
That, in fact, the outer doors were iron cases with concrete filling, and that, if the company had known this fact, it would have canceled the policy.
In response to the foregoing pleas appellees pleaded certain facts, not necessary to enumerate, but which will be referred to in our discussion of the issues when necessary.
There was trial by jury, to whom the case was submitted on special issues of fact. Upon the findings of the jury judgment was rendered for appellees, the court refusing to allow the damages and attorneys' fees. From the judgment appellant has appealed, and appellees file a cross-assignment challenging the court's action concerning the damages and attorney's fees.
The facts necessary to a disposition of the appeal are that appellant did issue to appellees, who were bankers in the town of Wilmer, Tex., a policy of insurance by which appellant agreed to indemnify appellees against direct loss by burglary of money, bullion, bank notes, etc., to the extent of $5,000, which might be feloniously abstracted from appellees' safe and their other office furniture, fixtures, etc. The policy issued to appellees was not based upon a written application made therefor by appellees. One C. R. Rea, of Lancaster, solicited appellees to take the insurance, and after appellees agreed to take the insurance Rea offered the business to the general agency of appellant in Dallas, where it was accepted, and the policy prepared and delivered to Rea, who made all representations of fact upon which the policy was issued, and who in turn delivered it to appellees. The policy was issued August 25, 1910. Thereafter C. H. Verschoyle, appellant's general agent at Dallas, wrote and forwarded to appellees the following letter:
To the foregoing the following reply was received:
Subsequent to the foregoing appellees did suffer a loss by burglary approximating $3,300, which appellant refused to pay. In the policy were certain conditions which the parties agreed should be conditions precedent to any recovery by appellees under the policy, among such conditions being the following:
Certain information furnished by appellees and made in the form of statements of fact was contained in the policy, which was warranted by appellees to be true, and among which statements were the following: (1) The safe proper is fire and burglar proof (i. e., fireproof with steel lining and exposed bolt work — steel); (2) thickness of outer burglar proof door, exclusive of bolt work, is four inches; (3) safe was purchased secondhand August, 1910; (4) price paid for safe by present owner was $500. The safe was burglarized in the early morning of February 15, 1913. Entry was effected by forcing the safe open or apart by some character of explosive. Verschoyle, appellant's general agent, was informed of the burglary promptly, and proceeded to Wilmer, arriving there about 8 or 9 o'clock of the morning of the burglary. He inspected the safe and the premises and examined and checked the books, counted the cash, and said everything was satisfactory, and informed appellees that as soon as he could prepare proof of loss, which would be the following Saturday, and appellees could sign same, the loss would be paid. Verschoyle, in effect, admitted the promise to pay, but said that the promise was made upon the assumption that everything was, in fact, satisfactory, and because the conditions of the policy, upon which liability was afterwards denied, did not occur to him, although he examined the safe while adjusting the loss, and saw that it was not as represented in the policy. Returning to Dallas, Verschoyle examined his records and prepared and forwarded proofs of loss to appellees for the amount of the adjustment for appellees' signature. In the meanwhile Verschoyle gathered portions of the safe and some of the silver left by the burglars and placed them in a display window in a building on one of the principal streets of Dallas, accompanied by the following placard:
"Burglars.
"Pieces of Safe of White Banking Company,
"Blown at Wilmer, Texas.
"Burglary February 15th, 3 a. m.
"Loss adjusted February 15th, 11:30 a. m.
"Ætna Accident & Liability Company,
"C. H. Verschoyle & Co."
It was shown at the trial practically without dispute that the safe installed in appellees' bank was that class of safe designated generally by safe manufacturers as a fire and burglar proof safe. The safe, however, while fireproof, did not have steel lining and exposed bolt work, nor was the thickness of the outer door, exclusive of bolt work, four inches. The character of the safe was known to Rea when he solicited the insurance from appellees. Rea claims to have imparted his knowledge to Verschoyle,...
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