United States Casualty Co. v. Medcalf & Thomas

• Decision Date: 22 April 1925
• Docket Number: (No. 7340.)
• Citation: 272 S.W. 539
• Parties: UNITED STATES CASUALTY CO. v. MEDCALF & THOMAS.
• Court: Texas Court of Appeals

272 S.W. 539

UNITED STATES CASUALTY CO. v. MEDCALF & THOMAS.

(No. 7340.)

Court of Civil Appeals of Texas. San Antonio.

April 22, 1925.

Rehearing Denied May 20, 1925.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by Medcalf & Thomas against the United States Casualty Company. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

Burgess, Burgess, Sadler, Chrestman & Brundidge, of Dallas, for appellant.

Massingill & Belew, of Fort Worth, and Thompson, Knight, Baker & Harris, of Dallas, for appellees.

SMITH, J.

Appellees, Medcalf & Thomas, a partnership, were engaged in the dental supply business in two rooms on the ninth floor of an office building in the city of Fort Worth, and in other than office hours kept certain gold and other materials, as well as cash, in a safe on the premises. During the year 1920 they carried burglary insurance covering said materials, in a policy issued by appellant, the United States Casualty Company, which they had obtained through Alvin H. Sellers, its agent. Shortly prior to the expiration of the policy issued for the year 1920, appellees arranged with Sellers for a renewal of said policy in the terms of the expiring policy. Among the provisions common to both policies were those providing that, in event of loss of the articles covered by the policy, the insured could not recover unless such loss be "occasioned by any person or persons who shall have made felonious entry into the said safe or safes by actual force and violence, by tools, explosives, electricity, or chemicals, directly upon the outer doors or walls thereof," and that the insurer should not be liable for loss or damage if the same was "effected by opening any safe chest, or vault by the use of a key or the manipulation of any lock."

It appears from the record that some time between the hour of closing appellees' place of business on Saturday evening, July 2, 1921, and Monday morning, July 4, certain articles usually kept in the safe, and covered by the insurance policy mentioned, were removed and carried away. The door into the place of business was secured by a special lock and keys. There were three of these keys, one each of which was carried by Medcalf, Thomas, and a young lady employee, respectively. It was shown that no violence of any character was used in gaining entrance either into the office or into the safe in which the lost articles were kept. On the contrary, the evidence in the record leads inevitably to the conclusion that entrance into the office was effected by the use of the key usually carried by the young lady, which had been stolen from her in her sleep by a relative, and without her knowledge. This relative disappeared from Fort Worth during the week-end of the burglary, was apprehended a few days later in the state of Kansas, and surrendered a substantial portion of the stolen articles for the theft of which he was subsequently convicted and imprisoned. Because of the death in the meantime of Medcalf, one of the partners, who was the last leaving the office on the Saturday evening of July 2, 1921, and the first entering it on the morning of July 4, there was no testimony showing whether or not the safe was closed or locked at the close of business on that evening. So far as the record shows to the contrary, the thief may have found the safe open or unlocked when he entered the office and secured the loot. As a practical matter, it may well be assumed, in view of the showing that no violence was used in effecting entrance into the safe, that the guilty person found it unlocked, for while he had apparently procured a key to the office door, it does not appear that he had a key to the safe, or the secret of the combination to the lock thereof. The record is silent as to his means of entry into the safe, except that it was not opened by means of any violence or force.

The record shows that, in negotiating with the agent for the renewal of the existing policy, appellees and the agent together went over the printed conditions therein for the purpose of determining the nature and extent of the protection afforded by those conditions, and at the conclusion of the conference appellees accepted the policy as then written, and retained it without question of its effect until the loss occurred some months later. Subsequently, they brought suit on the policy. Appellant in its answer set out the provisions now relied on as a defense, whereupon appellees in a supplemental petition alleged, appellee Thomas testified, and the court found, while the agent stoutly denied, that, in discussing its terms with appellees, appellant's agent "construed the several provisions of the policy form, and represented to the" appellees that the policy covered "all of the risks to which plaintiffs' business was subjected" except daylight holdups, to cover which appellees then ordered and appellant issued to them an additional policy; that "pursuant to such conversation (appellant) issued the policy * * * and (appellees) relied on such representations and constructions of (appellant's) agent in taking, accepting and...