Iowa Mut. Ins. Co. v. Faulkner

• Decision Date: 27 March 1957
• Docket Number: No. A-6138,A-6138
• Citation: 300 S.W.2d 639,157 Tex. 183
• Parties: IOWA MUTUAL INSURANCE COMPANY, Petitioner, v. Clarence E. FAULKNER et al., Respondents.
• Court: Texas Supreme Court

Page 639

300 S.W.2d 639

157 Tex. 183

IOWA MUTUAL INSURANCE COMPANY, Petitioner, v. Clarence E. FAULKNER et al., Respondents.

No. A-6138.

Supreme Court of Texas.

March 27, 1957.

Rehearing Denied May 1, 1957.

James R. Meyers and Coleman Gay, Austin, for petitioner.

Dan Moody, Jr., Austin, for respondents.

CULVER, Justice.

The respondents, Faulkner and Toungate, own and operate a retail drug store in the City of Austin. During the nighttime persons broke into and entered these premises. From an unlocked cash register and filing cabinet they stole some $350 and unsuccessfully attempted to burglarize respondents' steel safe. In this attempt the safe was damaged.

Petitioner, Iowa Mutual Casualty Company, had issued to respondents a burglary policy in force at the time of the loss. The provisin of the policy pertinent here is described as 'Coverage D. Safe or Vault Burglary. Fireproof-Schwab safe, Underwriters label #19-244'. The insuring agreement as to this coverage reads as follows:

'Coverage D-Safe Burglary. For all loss of or damage (except fire) to money, securities and merchandise including the furniture, fixtures and other property in the premises occasioned by burglary or attempt thereat of any safe or vault in the premises; and also for such damage to the premises provided the insured is the owner thereof or is liable for such damage. 'Burglary' as used herein shall mean a felonious entry into such safe or vault by actual force and violence (of which force and violence there shall be visible marks made by tools, explosives, electricity, gas or chemicals, upon the exterior of (a) all of the doors of the safe or vault if entry is made through such doors, or (b) the top, bottom or walls of the safe or vault, through which entry is made if not made through such doors) while all the doors of such safe or vault are duly closed and locked by the combination or time lock and while such safe or vault is located in the premises, or elsewhere after removal therefrom by burglars.' (Emphasis ours.)

The trial court held that under the terms of this provision the petitioner, insurer, was liable for the loss of money sustained by the respondents. The Court of Civil Appeals affirmed with a dissenting opinion. 294 S.W.2d 911. We disagree with the result arrived at by the majority.

The petitioner admits liability for the damage to the safe but denies that the loss of the money is covered by its policy. It is conceded that but for the attempted burglary of the safe no liability at all on the policy would be here incurred. The respondents contend that the provision should be construed so as to permit them to recover even if the words 'caused by' had been used instead of 'occasioned by', but that the latter term is a broader one and more inclusive and connotes the idea of 'incidental or furnishing the opportunity for'. The verb 'occasion' is defined in Webster's New International Dictionary, Second Edition, 1954, as follows:

1. 'To give (one) a prompting opportunity or ground; also, to prompt or induce in this way habitually; hence, to habituate. Obs 2. 'To give occasion to; to cause, esp. incidentally; to bring about; as, to occasion anxiety or mirth.'

Two decisions cited by respondents discuss the use and meaning of the word. In Smart v. Raymond, 142 S.W.2d 100, Missouri Court of Appeals, complaint was directed to the Court's charge in the use of the words "defendants' negligence directly occasioned the automobile truck * * * to strike and collide with plaintiff". The opinion points out that when the word 'occasion' is used as a verb it often means to cause or bring about by furnishing the condition or opportunity for the action of some other cause, but on the other hand it is also employed synonymously with 'cause' in the sense of proximate cause and the Court thought that the jury would understand the latter to be the meaning of the word. Respondents quote from Curry v. Chicago & Northwestern Railway Co., 43 Wis. 665, 676, 'what is caused seems to follow naturally; what is occasioned follows incidentally.' In that case the Court explains that the want of a fence cannot be the direct cause of injury to cattle, but brings it about incidentally in giving the occasion for the animals to go upon the railroad tracks and be there injured. Also in the same sense it is said that a defect in a street is not the cause of an injury, but rather gives the opportunity for injury to the traveler. Following this reasoning we may draw the somewhat fine distinction that the asportation of funds from a safe is not caused by the violent entry but rather occasioned thereby. Even giving the broad meaning ascribed to the word 'occasioned' we do not agree that the attempt to burglarize the safe, even incidentally, caused or furnished the opportunity for the pilferage of the cabinet and the cash register. To our minds the only connection between the attempted burglary and the theft was one of time. The two events happened somewhat contemporaneously. What did afford the opportunity for the theft was the unlawful breaking into and entering the premises. The theft must...