Aetna Cas. & Sur. Co. v. Florentine Marble & Tile Corp.

• Decision Date: 09 March 1977
• Docket Number: No. 6522,6522
• Citation: 549 S.W.2d 24
• Parties: The AETNA CASUALTY & SURETY CO., Appellant, v. FLORENTINE MARBLE & TILE CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 24

549 S.W.2d 24

The AETNA CASUALTY & SURETY CO., Appellant, v. FLORENTINE MARBLE & TILE CORPORATION, Appellee.

No. 6522.

Court of Civil Appeals of Texas, El Paso.

March 9, 1977.

Law Offices of Alfred W. Offer, Alfred W. Offer, San Antonio, for appellant.

Wolff & Wolff, Walter C. Wolff, Jr., San Antonio, for appellee.

OPINION

WARD, Justice.

Florentine Marble & Tile Corporation sued The Aetna Casualty and Surety Company for an alleged burglary loss of certain marble, tile, and personal property under a merchant's property policy. Trial was to a jury which found issues in favor of the Plaintiff, and based on the verdict, judgment was entered for Florentine in the amount of $112,503.51. On this appeal, Aetna presents evidentiary points attacking the finding by the jury that a theft occurred in the burglary and the amount of the alleged loss, and alleged jury misconduct. We affirm on condition of remittitur.

Lawrence Iacono, the Plaintiff's President, formed a Texas corporation called Florentine Marble & Tile Corporation in which he and his wife owned all of the capital stock. It started in business June 1, 1973, at 10820 Gulfdale Drive in San Antonio. Marble and tile were imported from Italy into its stock, but a portion of its business came from it acting as broker where the material would be imported direct to the customer. The amount of material that was received into inventory at the Plaintiff's business was disputed, but it seems certain that during the period very few sales were ever made out of the inventory in San Antonio, except that considerable material was sold to Mr. Iacono individually. He had purchased some property at 16207 San Pedro Avenue in San Antonio, and as owner had constructed a large building between February and October, 1974, intending to lease the building to the corporation. With this in mind, he purchased from the corporation a considerable amount of the marble and tile that was on hand. On August 23, 1974, a fire occurred at Benny's Pool Maintenance, which was next door to the leased premises on Gulfdale, and damage was sustained to the equipment, machinery, and stock of merchandise of the corporation. On August 27, 1974, Florentine Marble & Tile Corporation made a claim against Benny's Pool Maintenance and its liability carrier, Great American Insurance Company, claiming a loss of $70,289.66, of which amount $44,277.94 was claimed as destroyed merchandise. The day after the fire, Iacono applied for the merchant's property insurance policy in question, and the policy was issued effective August 26, 1974. On September 27th, Mr Iacono closed his office on Gulfdale at 5:00 o'clock P.M. At about 10:00 o'clock that night, he returned to the office and found the front door open, the main items of his office equipment missing, and, according to him, the warehouse behind his office emptied of its inventory. During the next two days, and after Iacono and his wife had checked, a list was prepared of the missing items which included office equipment, machinery, marble works, marble sills, decorative ceramic tiles, onyx ashtrays, and bathroom accessories. This claim totaled $84,616.70, and a copy was furnished to The Aetna Casualty and Surety Company. On October 10th they furnished additional information to the insurance company, at which time they reported a claim loss of $112,553.51 as being the total amount including their lost profit on the materials. On November 11, 1974, a proof of loss was submitted to the Defendant setting the claim at $84,616.70.

The Defendant first challenges the findings of the jury that the theft occurred on September 27, 1974, by a series of no evidence and insufficient evidence points. Included in this attack are also against the great weight points regarding negative findings of the jury on the Defendant's defensive issues regarding the theft. In the main, the Defendant has to rely on the unusual circumstances of the case and claimed inconsistencies in the insured's own proof. Thus, it points to the insured's poor financial condition, the two serious losses occurring within the period of a month, and to the theft loss occurring within the short period after the coverage was secured. The Defendant further argues that even the circumstances of the theft were questionable as Iacono closed the building at 6:00 o'clock P.M., returned after 10:00 o'clock P.M., and at that time he found his front door open and the place ransacked. The police officer who was called testified that at 8:00 o'clock P.M. he had patrolled the area, found it normal, that the company forklift in the warehouse was cold when he examined it after being called, and that he could not testify as to what was missing. Additional testimony was introduced which showed that the missing marble and tile would have weighed between 100,000 and 200,000 pounds; that more than two large trucks would have had to have been loaded and moved within the period of time that the theft had occurred; and that it was unreasonable to assume that such an amount could have been taken between the times when the police visited the area and the time that the policeman examined the premises.

On the other hand, Iacono and his wife were the only two people who really knew the business, what the inventory consisted of, how it was added to, how it was disposed, what happened to the items damaged in the fire, and the circumstances of the theft. He testified that on the night of the theft the premises were secured, and when he returned, the front door was opened, the padlock on the warehouse had been broken, there was dust in the air, and the inventory which he reported was missing. He immediately contacted the police, cooperated with them, and, under his version, there would have been an adequate period of over four hours to have loaded the material and carried it away.

Without adding further, we have examined the record, and after considering only the favorable evidence and the inferences arising which support the jury finding, the legal insufficiency point concerning the theft is overruled. After considering all of the evidence, the factual insufficiency of the evidence point and against the great weight points as to the theft and the related defensive issues are likewise overruled.

One of the Defendant's great weight points complains of the jury's negative answer to a special issue inquiring if the Plaintiff failed to submit a proper proof of loss to the Defendant as required by the policy. Iacono testified that he notified the Defendant and furnished invoices immediately after the loss, and, on October 10, 1974, notified the Defendant again in writing, furnished copies of his original invoices, packing lists, and a copy of the Police Department Report. Finally, on November 11th, he furnished a sworn proof of loss on a form provided by the Defendant's adjuster for a total claim of $84,616.70, and attached...