Hodges Food Stores, Inc. v. Gulf Ins. Co.
| Decision Date | 16 May 1969 |
| Docket Number | No. 17303,17303 |
| Parties | HODGES FOOD STORES, INC., Appellant, v. GULF INSURANCE COMPANY, Appellee. . Dallas |
| Court | Texas Court of Appeals |
Emil Corebleth, Dallas, for appellant.
W. Richard Bernays, of Touchstone, Bernays & Johnston, Dallas, for appellee.
This is an appeal from a take nothing judgment, following a jury trial, denying appellant any recovery in its action against appellee based upon a safe burglary policy or, in the alternative, to enforce an agreement of appellee's adjuster to pay appellant's claim under the policy.
The facts are without dispute. Gulf Insurance Company had issued to Hodges Food Stores, Inc., its Texas Standard Form Burglary Policy containing provision for coverage of safe burglary but expressly providing that safe burglary insurance was not effective unless entry thereto was shown to have been made by actual force and violence, being demonstrable by visible marks made by tools, explosives, electricity or chemicals upon the exterior of the door of such safe. On or about March 1, 1968 a burglary occurred on the premises of one of Hodges Food Stores' places of business covered by the policy. The store contained a safe which had been opened and contents valued at approximately $14,000 had been taken therefrom. However, it is undisputed that there were not any marks or other signs of forceable entry to the safe. The loss was reported to the insurance company and one of its adjusters, a Mr. Lang, was assigned to investigate the incident. Mr. Lang went to the store and was shown the evidence of the burglary and theft. At the conclusion of Mr. Lang's investigation he said to the manager of the store: 'It looks like we owe you seventy-five hundred.' The maximum limits of liability for safe burglary as enumerated in the policy was the sum of $7,500. The manager of the store testified that there was no discussion about any doubtful claim or compromise but only that Gulf owed 'seventy-five hundred dollars to Hodges.' Mr. Robert Hodges, Vice-President of Hodges Food Stores, Inc., testified that there was no dispute between the parties and that both Mr. Lang and he thought that there was coverage under the policy for the loss. Mr. Lang testified that after investigating the scene of the loss he concluded that Gulf owed the claim and made no effort to secure a proof of loss from the insured. Mr. Lang stated that he wanted to expedite the claim and get Hodges the money as fast as he could. Lang testified that he and Hodges never discussed the claim as being doubtful, but only that there was a loss in excess of the policy limits and that Gulf would pay. Mr. Lang therefore prepared a draft on Gulf Insurance Company in the sum of $7,500 payable to Hodges Food Stores, Inc. and transmitted same to Hodges. In the meantime it was discovered that the policy did not cover the loss and Mr. Lang telephoned Mr. Hodges and informed him of the mistake. Hodges deposited the draft and when it was presented Gulf refused to honor same.
Hodges brought this action both on the policy itself and, in the alternative, based upon the agreement to settle. Gulf responded with a plea of (1) no coverage; (2) mutual mistake; and (3) no consideration for any agreement to pay the sum of $7,500.
In response to special issues submitted the jury found (1) that there was no safe burglary within the meaning of the insurance policy; (2) that Gulf agreed to pay Hodges the sum of $7,500 in full satisfaction of the claim; (3) that Hodges agreed to accept from Gulf the sum of $7,500 in full satisfaction of its claim; (4) that there was not a good faith dispute between Hodges and Gulf as to whether the loss in question was covered by the insurance policy; and (5) that when the draft was issued and mailed by Gulf to Hodges the representatives of the parties were acting under a mutual mistake as to whether there was a safe burglary within the meaning of the policy. The trial court rendered judgment denying Hodges any relief...
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