Iowa Mut. Ins. Co. v. Faulkner, 10424

• Decision Date: 24 October 1956
• Docket Number: No. 10424,10424
• Citation: 294 S.W.2d 911
• Court: Texas Court of Appeals
• Parties: IOWA MUTUAL INSURANCE COMPANY, Appellant, v. Clarence F. FAULKNER et al., Appellees.

Page 911

294 S.W.2d 911

IOWA MUTUAL INSURANCE COMPANY, Appellant, v. Clarence F. FAULKNER et al., Appellees.

No. 10424.

Court of Civil Appeals of Texas, Austin.

Oct. 24, 1956.

Rehearing Denied Nov. 14, 1956.

Coleman Gay, James R. Meyers, Austin, for appellant.

Dan Moody, Jr., Austin, for appellees.

ARCHER, Chief Justice.

This suit was instituted by appellees to recover under a policy burglary insurance issued by appellant.

Upon a trial without a jury the court rendered judgment for appellees for $510. Appellant admits liability for $122.50, the amount of the damages to the safe. The remainder of the judgment is made up as follows: damage to cash register $16; $50 cash taken from the cash register; $60 from a stamp box; $200 in 'hot check' money; $60 from an envelope and $1.50 from a dues box, all taken from an unlocked storage cabinet, a total of $387.50, for which liability is denied.

The appeal is based on one point of error, towit:

'The county court erred in allowing recovery for the loss of money from an unlocked cabinet and cash register and for damage to the latter where such loss and damage were not occasioned by burglary as defined by coverage of the policy.'

The policy is divided into three parts: Declarations, Insuring Agreements and General Conditions. The issue here is confined to Coverage D, which is 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 all such damage to the premises provided the insured is 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 of 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 through such doors) while all the doors of such safe or vault are duly closed and locked by combination or time lock and while such safe or vault is located in the premises, or elsewhere after removal therefrom by burglars.'

It is admitted that an attempt to burglarize the safe was made within the meaning of the policy. The appellant takes the position that nothing else which occurred during the burglary, i. e.: the loss of money from and damage to a cash register, and loss of money from an unlocked cabinet was within the risk which insured paid the defendant insurance company to assume such not being covered by the risk, and that such loss was not 'occasioned by burglary or attempt thereat' by violent and forceful means.

Appellees insist that the phrase 'occasioned by' harbors an ambiguity in that 'reasonable' conclusion can be drawn that all property named is insured against loss or damage provided that an attempt at the safe be part of the same transaction, and that 'occasioned by' means 'incidental to.'

The issue primarily is one of interpretation of the language of the insurance policy, the question being whether the contested portion of the loss and damage was covered by the coverage which appellees purchased.

Coverage D has been set out hereinabove.

We are therefore concerned with the interpretation of the portion of...