Ducote v. U.S. Fidelity & Guar. Co., 21448

• Citation: 125 So.2d 176
• Decision Date: 05 December 1960
• Docket Number: No. 21448,21448
• Court: Court of Appeal of Louisiana (US)
• Parties: Adrast DUCOTE, d/b/a Orleans Tile Works, v. UNITED STATES FIDELITY & GUARANTY CO.

Page 176

125 So.2d 176

Adrast DUCOTE, d/b/a Orleans Tile Works, v. UNITED STATES FIDELITY & GUARANTY CO.

No. 21448.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 5, 1960.

Rehearing Denied Jan. 3, 1961.

Montgomery, Barnett, Brown & Read, Peter H. Beer, New Orleans, for defendant-appellant.

Gertler, Hart & Duran, Melvin J. Duran, New Orleans, for plaintiff-appellee.

SAMUEL, Judge.

The plaintiff permitted his employee, whose duties included those of warehouseman and truck driver, to use one of his business trucks for transportation by the employee between the latter's home and the business, with the further privilege of keeping the truck at home each night and on weekends. The permission was withdrawn, and the employee was forbidden to take the truck home or use it for anything other than business purposes, after the plaintiff discovered that the employee had been using the truck for his own pleasure and had been in an accident while on such a venture.

Early one Sunday morning, in disobedience of this order and while the business was closed for the weekend, the employee entered the building in which the truck was kept and drove it away on another venture of his own. He did not intend to keep the truck or to permanently deprive his employer of the vehicle; the intention was to put the truck back in its garage after he had used it. He was intoxicated at the time and ran into the back of a parked vehicle causing damage to the truck. He was arrested and later, upon arraignment, pleaded guilty to the criminal charges of unauthorized use of moveables, operating a vehicle while intoxicated, and reckless operation of a vehicle.

At the time of this incident the truck was insured under a comprehensive liability policy issued by the defendant. This policy specifically excepted collision but did cover loss or damage caused by theft or by malicious mischief or vandalism. Because of the additional cost involved the plaintiff did not carry collision insurance, although he knew the same was available.

In the trial court the plaintiff obtained a judgment for the damage to the truck occasioned by running into the parked vehicle. The defendant has appealed.

All of the witnesses who testified were plaintiff's witnesses and the facts are not in dispute. Only one question, and that of law, is involved. Is the defendant liable under the policy provisions which covers damage caused by theft or malicious mischief or vandalism?

An intent to deprive the owner of whatever may be the subject of the taking is an essential element of the crime of theft. LSA-R.S. 14:67.

The law is well settled in Louisiana that there can be no recovery under an automobile policy insuring against theft where there is no intent to permanently deprive the owner of the vehicle. Standard Chevrolet Co. v. Federal H. & I. Mutuals, La.App., 178 So. 642; Laird v. Home Ins. Co. of New York, La.App., 177 So. 603; Boddie v. Home Ins. Co., La.App., 166 So. 178; Gulf & S.I.R. Co. v. Sutter Motor Co., 12 La.App. 495, 126 So. 458.

To the same effect are Daniel et al. v. Transcontinental Ins. Co., 8 La.App. 616, and Miller v. Newark Fire Ins. Co. of New Jersey, 12 La.App. 315, 125 So. 150. For, although the Daniel case is...