Blacknall v. Maryland Casualty Co. , 1932 Tex. App. LEXIS 711 ( 1932 )

Suit was brought by appellant against appellee on a policy of insurance against burglary of a safe "through the forcible opening upon the premises, when not open for business of such safe, effected by means of explosives, tools or chemicals, of which forcible opening there shall remain visible marks upon the exterior of such safe while such safe is duly closed and locked by at least one combination or time lock."

The case was tried by the court, who found that, while the policy was in force, while plaintiff's place of business was closed and locked, his safe was opened, that there were visible marks upon the doors to the interior locked compartments of the safe, and that $240.67 was abstracted from such inner locked compartments of the safe. Judgment was rendered in favor of defendant because the loss sustained was not covered by the policy of insurance sued upon. The plaintiff has appealed.

The case presents the single issue whether the policy of insurance sued upon covers losses through the manipulation of the outer lock of the safe and through the use of force upon the exterior of the compartments therein, of which force marks remain visible.

The policy of insurance covered loss through the manipulation of the outer lock of the safe and the use of force upon the exterior of the inner compartment, of which force marks remained visible upon the exterior thereof. National Surety Co. v. Chalkley (Tex.Civ.App.)260 S.W. 216; National Surety Co. v. Silberberg (Tex.Civ.App.) 176 S.W. 97,98; Ætna Casualty Surety Co. v. Sengel, 183 Ark. 151,35 S.W.2d 67; Maryland Casualty Co. v. Bank, 134 Ky. 354, 120 S.W. 301; Schubach v. American Surety Co., 73 Utah, 332, 273 P. 974, 978; Johnston v. Fidelity Deposit Co. of Maryland, 220 Mo. App. 753, 275 S.W. 973; 41 A.L.R. 856, 857, note.

There was no attempt to show how the money was abstracted and how the entry was made, but the facts of the case lead us to conclude that the money was taken through some fraud, thus making a prima facie case. The judgment is reversed, and judgment is here rendered for appellant for the sum of $240.67.

Reversed and rendered.