
    NATIONAL SURETY CO. v. MURPHY.
    (No. 8203.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 18, 1919.)
    i. INSURANCE <&wkey;665(4) — SUFFICIENCY OF EVIDENCE IN ACTION ON BURGLARY POLICY.
    In an action on burglary and theft policy, evidence held sufficient to warrant - a finding that articles disappearing from plaintiff’s residence were taken by burglars or thieves without his consent.
    ■2. Insurance <&wkey;635 — Pleading in action ON BURGLARY AND TIIEET, POLICY SUFFICIENT TO COVER LOSS BY THEFT.
    In an action on burglary and theft policy, an allegation that property was feloniously abstracted from the interior of plaintiff’s residence was sufficient, especially when not challenged, by demurrer, to cover a* loss by -theft, as distinguished from burglary.
    Appeal from Dallas County Court; W. L. Thornton, Judge.
    Action by M. Murphy against the National Surety Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    
      Brooks, Worsliam & Grayham, of Dallas, for appellant.
    • Cockrell, Gray, McBride & O’Donnell, of Dallas, for appellee.
   TALBOT, J.

Appellee, Murphy, sued the appellant, National Surety Company, to recover the sum of $1,000 alleged to be due under the terms of an insurance policy issued to appellee, whereby the appellant undertook and agreed to indemnify appellee against loss from burglary, theft, or larceny of any of the property described in the schedule attached to said policy, for the term of 12 months beginning on the 10th day of July, 1917, at noon and ending on the 10th day of July, 1918, at noon. The appellant answered by general demurrer and general denial. The case was tried before the court without a jury, and judgment rendered in favor of the appellee for the sum of $1,000, together with interest at the rate of 6 per cent, per annum from date of judgment. Appellant’s motion for rehearing having been overruled, it appealed.

The only assignment of error presented is that the testimony introduced “is insufficient to sustain a judgment herein against the defendant in this, to wit, ‘The plaintiff failed to prove the essential elements of either burglary, theft, or larceny necessary to constitute a recovery herein, and the policy sued on not covering any loss for anything except loss by burglary, theft, or larceny, the testimony is insufficient in law to sustain the judgment rendered herein and the court erred in not so holding.’ ” The proposition presented is as follows:

“Where an insurer issues its policy of insurance in favor of an insured covering direct loss by burglary, theft, or larceny, in order to warrant a recovery by the insured against the insurer under the terms of said policy, the insured must prove every element necessary to constitute the crime or offense of burglary, theft, or larceny, and a failure to prove all of said elements, constituting either burglary, theft, or larceny, plaintiff is not entitled to recover against the defendant.”

The sufficiency of the appellee’s pleading was not questioned upon the trial. A general demurrer was filed, but it does not appeal that it was presented to the court and acted upon. Appellee alleged, in substance, that on July 10, 1917, in consideration of $10 paid by appellee to appellant as a premium thereon, appellant issued to appellee its policy of insurance, whereby appellant contracted and agreed to indemnify appellee in the sum of $1,000 for the term of 12 months beginning July 10, 1917, and ending July 10, 1918, for direct loss by burglary, theft, or larceny, of any of the property described in the schedule mentioned therein; that among the various articles of property mentioned in said schedule were watches, jewelry, precious stones and their settings, articles made of gold and silver, wearing apparel, and' other personal effects common in residence generally, located in the building used as plaintiff’s private residence at 3503 Hall street in the city of Dallas, Tex.; that about November 13, 1917, plaintiff’s residence was entered and burglarized by some person to plaintiff unknown, and there was feloniously abstracted from the interior of said residence of plaintiff the following articles of property of the respective net actual cash values at the time of the robbery: One diamond shield of the value of $1,200; one diamond ring of the value of $400; one gold watch of the value of. $50; one diamond pin of the value of $50; one pearl handled revolver of the value of $10 — the aggregate value of which was $1,710. Appellee further alleged proper and timely notice to the appellant of such loss and prayed for judgment against appellant for $1,000.

The policy of insurance declared on was introduced in evidence, and" showed that appellant thereby insured appellee as alleged against loss from burglary, theft, or larceny, of the property charged to have been taken from appellee’s residence, “occasioned by its felonious abstraction from within the interior of the house : — by any domestic servant or employe of the assured, or by any other person or persons, excepting any person whose property is insured hereunder; and, for direct loss by damage to said property and to said premises caused by burglars and thieves.” The appellee did not testify in so many words that his house was entered without his consent, or that the property charged to have been abstracted therefrom was taken without his consent. Nor is there any direct testimony that the windows and doors of appellee’s house were closed at the time the house was entered. He did testify, however, as follows:

“My. name is M. Murphy. I live at 3508 Hall street. I am the M. Murphy who was insured under policy No. 739927 in the National Surety Company. At the time that policy was issued T was the general agent for the National Surety Company. About the 12th dr 13th of November last year I was called home by my wife. I got home ’about 5 o’clock p. m. My wife had been absent from home. On my .arrival my wife was greatly excited. When I went into the house X found that the bed was littered over with the contents of my desk and my suit case was filled with stuff, evidently intended to be taken away — with things in general, including my clothing, collars, razor, and strap. My other effects had all been taken out and spread out in another room, and a lot of it had been taken away. The desk in the room was broken open, and the contents scattered around, and the things described in here (indicating proof of loss made to National Surety Company) were all taken away. A revolver was also taken. The razors and razor strap and a cake of Ivory soap and some clothes — a tie and some collars and other things in the grip. The drawers of the desk were broken open. It looked like some iron instrument had been used to open the desk. There were marks on the desk and on a door which looked as though an iron instrument such as an ice pick had been used to open them. The articles mentioned in the schedule which you now show me were taken from my house at that time. The articles taken were one diamond shield, one diamond ring, one gold watch, one small diamond pin, one pearl handled revolver. This schedule which I now have is a copy of that which I furnished to the company with the exception of my signature.”

Appellee also introduced in evidence, seemingly for all purposes and without objection, a copy of the proof of loss furnished appellant shortly after the alleged burglary or theft of his property. In the schedule of articles claimed to have been taken from his house, all of the items of property mentioned in his petition and mentioned in his testimony above were set forth. In the proofs of loss furnished appellant, appellee stated that the “burglar evidently entered back door with skeleton key and closed the door behind him.” He further stated in said proofs of loss in substance, among other things, that the house from which his property was taken was occupied by him as a residence, and no person other than himself occupied any part of it; that the occurrence of the burglary or theft was first known to him about 6 o’clock p. m. on the 12th day of November; that he notified the insurance company thereof at its home office or its agent at Austin by letter on the 13th day of November; that the burglary or theft did not originate by act, design, or procurement of appellee, or in consequence of any collusion, fraud, or evil practice done or suffered hy him; and that nothing was done by him or with his consent to violate the conditions of the issuance. The testimony was undisputed that the value of the property lost by the burglary or theft alleged was in amount greater than the face of the policy.

We have thus very fully stated and quoted the material testimony in the case, with conclusion reached that it is sufficient to authorize and support the judgment rendered in appellee’s favor. The authorities to which our attention has been called, and of which we have knowledge, do not seem to require the same quantum of proof to support a recovery under a policy of the kind sued on as is required to support a conviction under an indictment for theft or burglary. Neither the case of National Surety Co. v. Silberberg Bros., 176 S. W. 97, nor the case of National Surety Co. v. Redmon, 173 Ky. 294, 190 S. W. 1081, cited by appellant, determine that such quantum of proof is necessary. Indeed, in the first case mentioned, the Court of Civil Appeals for the Eighth District of this state held, as argued by appellee, that the evidence therein presented was sufficient to support the judgment rendered on a policy more exacting in its terms regarding the technical proof required, than the policy involved here, though the evidence introduced was no more conclusive on the question of theft and burglary fhan the evidence attacked in the present case as being insufficient to authorize a recovery. In the second case mentioned, the plaintiff sued to recover on a policy of insurance indemnifying him against loss by burglary, theft, or larceny of diamond stud. He predicated his recovery on a loss by burglary alone,' and the only proof of burglary were marks on one .of the screens to the house and footprints on the roof, discovered some three weeks after the alleged loss of the diamond stud. In holding that the evidence was insufficient to take the case to the jury, the court said:

“While it may he true that a loss followed by physical evidence of an entrance from the outside of the premises on the occasion of the loss may be sufficient to justify the inference of loss by burglary, and therefore to take the case .to the jury, we are not prepared to say that marks on a window screen and footprints on a roof, discovered three weeks after the loss, are sufficient for that purpose. The law requires an open, visible connection between the principal and evidentiary facts and the deductions from them, and does not permit a decision to be made upon remote inferences. * * * Here no reasonable connection between the established facts and the loss itself is shown. The evidence merely presents a few circumstances about which one might theorize as to the cause of the loss. Any conclusion that the loss occurred by burglary would be mere conjecture, and conjecture affords no. sound basis for a verdict.”

Such is not, we think, the character of the evidence in the present case. The testimony of the appellee is to, the effect that, when he arrived home on the day his property was taken from his house, he discovered marks on one of the doors of the house which looked as though an iron instrument, such as an ice pick, had been used to open it. This was a. fact or circumstance from which the court trying the case might infer an entry into the house by force and without the consent of appellee.

But appellee did not base his éntire case on the claim of burglary alone. The' allegations in his petition that the property was “feloniously abstracted” from the interior of his residence is sufficient, especially in the absence of a demurrer challenging its sufficiency, to cover a loss by theft, and its effect is not changed by the further allegation that appellee’s residence was on the occasion in question burglarized. The case of Great Eastern Casualty Co., v. Boli, 187 S. W. 686, is not referred to in appellant’s brief, and probably was overlooked. In that case the appellee sued to recover the value of a diamond stud alleged to have been stolen, and the loss covered by a policy of insurance issued by tlie appellant. Tbe policy provided that tbe company should insure tbe appel-lee against loss from burglary, tbeft, or larceny, and stipulated that “mere disappearance of property shall not be deemed sufficient evidence of burglary, tbeft, or latceny.” Tbe question for decision was whether tbe appellee sufficiently proved, as a jury question, tbe loss of tbe diamond stud within tbe purview of tbe provisions of tbe policy. Tbe appellee testified, as shown by tbe report of tbe case, that on Saturday night, May 9,1914, according to bis custom, be took tbe diamond stud out of bis necktie, placed tbe same.on the chiffonier in bis room, and next morning be discovered tbe loss of tbe same, on search. He said be remembered distinctly taking tbe stud from the tie and examining it under tbei electric light in bis room to see if tbe prongs were intact, and if tbe diamond needed cleaning, as he intended to clean it next morning. The next morning, as be went to place bis collar and- cuff buttons in his shirt, he noticed that the stud was gone. This was the only testimony that tbe loss of tbe diamond stud was by burglary, tbeft, or larceny and tbe court held this testimony sufficient to take tbe question to tbe jury, and differentiated tbe case from Duschenes v. National Surety Co., 79 Misc. Rep. 232, 139 N. Y. Supp. 881, relied on by tbe, appellant, in which a recovery upon somewhat similar facts was denied on the ground that in tbe latter ease tbe insurance provided that—

“The assured shall also produce direct and affirmative, evidence that the loss of the article or articles for which claim is made was due to the commission of a burglary, tbeft, or larceny ; the disappearance of such article or articles not to be deemed such evidence.”

After pointing out that tbe decision of tbe New York court was evidently based upon that provision of tbe policy just quoted and which required that tbe insured produce not circumstantial but direct and affirmative evidence that the loss of tbe article for which claim was made was due to tbe commission' of a burglary, tbeft, or larceny, tbe court in Great Eastern Casualty Co. v. Boli, supra, said:

■ ‘.‘The present policy and the one quoted from in the case cited, aá will be readily seen, present a marked difference as to the quantum of proof necessary to establish theft, and, unless the clause, ‘mere disappearance of property shall not be deemed sufficient evidence,’ negatives the sufficiency of the proof, we think, upon the evidence, the cause was subject to submission to the jury. By process of elimination the New York Case, supra, could be considered an authority against the contention of appellant. It is noted that the court said: ‘At most, the plaintiff has submitted evidence which shows that the piece of jewelry has disappeared under circumstances that might perhaps permit an inference that it was stolen.’ If that be true, the controlling point in that case must have been influenced by the clause requiring that the assured should produce direct and affirmative evidence that the loss of the article was due to the commission of a crime. We think the clause in this particular policy, that mere disappearance should not be deemed sufficient evidence, is merely the statement of a general truth; however, disappearance of the diamond under the conditions stated by appellee, after having been placed upon the chiffonier by him in the evening and missing therefrom the morning thereafter, would not constitute a ‘mere disappearance’ exempting the insurer from liability. If appellee’s testimony is to be believed, and the jury resolved it, the inference is reasonably deducible, as we think the New York court really admitted that the property disappeared under circumstances exhibiting loss by a criminal act, sufficiently proven as at common law, though in the New York case not sufficiently established, measured by the quantum of proof contracted for in that policy.”

Tbe facts and circumstances shown in tbe case before us are at least as strong and cogent in support of tbe court’s judgment as were tbe facts and circumstances in support of tbe judgment rendered in tbe case from which we have just quoted, and we believe they are sufficient to support tbe judgment. Tbe inference from them that appellee’s house was entered by force, without bis consent, and bis property taken therefrom, or that if entered without force appellee’s property was fraudulently taken without bis consent and without tbe consent of any one bold-ing tbe same for him, is not remote. It is not true, we think, that “any conclusion that tbe loss occurred by burglary or tbeft would be mere conjecture.” On tbe contrary, a reasonable connection between tbe established facts and the loss itself is fairly shown. These facts fully appear from our quotations and statement of the evidence. When appel-lee reached bis home in response to a call from bis wife, be found her greatly excited. He found marks on the door which indicated that some iron instrument bad been used to open it. Tbe desk in bis room bad been broken open and tbe contents scattered around. His suit case was filled with articles including clothing, razor, and strap, ready to be taken away, and other personal effects bad been spread out in another room and portions of bis personal effects, including the articles involved in this suit, had been taken away. Aside from the proofs of loss introduced in evidence, the circumstances were sufficient to show that tbe entry into, appellee’s bouse and the taking of bis property was without bis consent. But in making the proof of loss which was required of him, by appellant, be swore in effect that tbe entry into bis bouse and tbe taking of bis property “did not originate by any act, design or procurement on bis part or consequence of any collusion, fraud, evil practice done or suffered by him, and that nothing had been done by or with, bis privity or consent to violate the conditions of the insurance.”

' The judgment is affirmed. . 
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