Chemstrand Corp. v. Maryland Cas. Co.
Decision Date | 09 May 1957 |
Docket Number | 8 Div. 815 |
Citation | 266 Ala. 626,98 So.2d 1 |
Parties | The CHEMSTRAND CORP., and J. B. Steen, Jr. v. The MARYLAND CASUALTY COMPANY. |
Court | Alabama Supreme Court |
Peach, Caddell & Shanks, Decatur, for appellants.
Eyster & Eyster, Decatur, for appellee.
Pursuant to an agreement with its employees whereby it undertook to pay the cost of their movement, including the cost of moving household goods and the insurance premium thereon, the Chemstrand Corporation, appellant, acting through its assistant treasurer, A. W. Lucas, procured a blanket transportation policy from the Maryland Casualty Company, appellee. This policy went into effect September 1, 1953.
In October 1953, J. B. Steen, Jr., appellant, and William C. Blackwood, employees of Chemstrand, arranged to have their household goods moved by Burnham's Van Service, from Martinsville, Virginia, to Pensacola, Florida. Burnham's Van Service was a public carrier of household goods, operating under ICC Certificate No. 682. Blackwood's goods were loaded first in a 28-foot van, and then Steen's. There was insufficient space inside the trailer for all of Steen's goods, so the rear doors of the trailer were closed, and the remainder of the load consisting of mattresses and box springs and nine compressed cardboard barrels filled with Steen's household goods, and two empty barrels and some empty cartons belonging to Burnham were placed on the tail gate of the van, covered with a tarpaulin and secured to the van with ropes. While en route, at a point some twelve miles north of Monticello, Georgia, on Georgia State Highway No. 11, the iron ring on the right-hand side of the tail gate of the van broke, and the load which was being transported on the tail gate tilted from the van. The driver, one J. K. Fountain, did not notice the loss until he was some two miles west of Monticello. When he returned to the scene of the accident, he found some wrapping paper and the two empty barrels, but the goods, except for a single glass, had been taken from the point where they had fallen from the van. Fountain was able to recover a portion of the goods.
Burnham's Van Service was a self insurer of its losses of thirty cents per pound of released value on each shipment. When notified of the loss, Otis Burnham, a partner in Burnham's Van Service, and its Assistant General Manager settled with Steen for $360, of which $309 was for the loss of goods.
The appellee denied that the loss resulted from an insured risk. This cause was commenced in the Circuit Court of Morgan County, Alabama, to recover the actual cash value of the lost goods less the amount recovered from Burnham. Counts 1 and 2 of the complaint predicate liability upon the policy of insurance being an 'all risk' policy. Count 3 predicates liability upon the loss being the result of an 'overturning of vehicle,' and Count 5 upon the loss being the result of 'theft of the entire shipping package.'
The trial court, at the request of the defendant, gave to the jury the following written charge:
The appellants assign as error the trial court's giving of the foregoing charge, and the refusal of a like charge to the appellant. Appellants also assign as error the sustaining of appellee's objections to questions propounded by the appellants on cross-examination of the witness, M. R. Rankin.
There was no error in the trial court's refusal to give the affirmative charge for the appellants.
The purpose of this policy of insurance which the appellant obtained from the appellee was to insure against damage, while in transit, the household goods and personal effects of Chemstrand's employees. The 'overturning of vehicle' was one of the risks insured against, and as stated above, was made the basis of Count 3 of the complaint. For there to be an 'overturning of vehicle,' the vehicle must lose its equilibrium. Jack v. Standard Marine Ins. Co., 33 Wash.2d 265, 205 P.2d 351, 8 A.L.R.2d 1426, Annotation, 8 A.L.R.2d 1433, 1436. It is immaterial whether there was a partial or a complete overturn of the vehicle. So long as the articles being transported were damaged as a result of the vehicle losing its equilibrium, this was damage caused by an insured risk. Carl Ingalls, Inc., v. Hartford Fire Ins. Co., 137 Cal.App. 741, 31 P.2d 414; Moore v. Western Assurance Co., 186 S.C. 260, 195 S.E. 558. There may be an overturn to the front or to the rear, as well as to either side. Mercury Ins. Co. v. Varner, Tex.Civ.App., 231 S.W.2d 519. A tail gate is not in and of itself a vehicle, but a part of a vehicle. In the present cause, there was no evidence showing that the vehicle (the van) lost its equilibrium, and this accident was not covered by this clause of the policy. In Orlando v. Manhattan Fire & Marine Ins. Co., 266 App.Div. 319, 320, 321, 42 N.Y.S.2d 228, 229 ( ), it was stated;
'At the time that the shovel was damaged it was being transported from the District of Columbia to an airport in the State of Maryland. It was being moved on a platform trailer consisting of a wooden platform mounted and suspended on a wheel carriage. The width of the trailer was eight feet. It was equipped with a flap on either side of the platform which when opened increased the width of the platform to ten feet, and four inches in width. The shovel was being supported by the platform and flaps. During the course of transportation, the flap on the right side broke, causing the shovel, which was in part resting on said flap, to tilt and slip and fall from the trailer to the ground. The precise question presented is whether such occurrence was an 'overturning of conveyances' within the meaning of the policy.
The trial court erred in giving Charge 1, set out above, for the defendant.
One coverage of the suit policy was:
'(c) Against theft of an entire shipping package only, but does not include pilferage.'
Count 5 of the complaint is founded on this provision of the policy of insurance.
It has been broadly stated that 'theft' as used in an insurance policy is synonymous with 'larceny.' Illinois Automobile Ins. Exchange v. Southern Motor Sales Co., 207 Ala. 265, 92 So. 429, 24 A.L.R. 734. Larceny may be committed on a public highway. Griggs v. State, 58 Ala. 425. For an act to constitute 'theft' or 'larceny,' the taking must be made with the felonious intent on the part of the taker to deprive the owner of the property. Home Ins. Co. of New York v. Trammell, 230 Ala. 278, 160 So. 897; Bankers Fire & Marine Ins. Co. v. Terry, 35 Ala.App. 233, 45 So.2d 324. In determining whether the acquisition of found goods constitutes larceny, it is important to ascertain whether the finder knew, or had means of knowing, or endeavored to discover the owner; whether he concealed or made known his acquisition; and how he conducted himself with the goods in general. Griggs v. State, supra. Whether or not the requisite intent existed is a question of fact for the jury, and the burden is on the insured to establish the existence of the taker's criminal intent, not beyond a reasonable doubt, but only by a preponderance of the evidence. Home Ins. Co. v. Trammell, 27 Ala.App. 476, 174 So. 536; Gibson v. St. Paul F. & M. Ins. Co., 117 W.Va. 156, 184 S.E. 562, Annotation, 48 A.L.R.2d 8, 50, 51.
There was sufficient evidence to go to the jury on the question of whether there had been a theft of the goods...
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