Firemans Fund Ins. Co. of San Francisco, Cal. v. Boyd
| Decision Date | 11 April 1950 |
| Citation | 45 So.2d 499 |
| Parties | FIREMANS FUND INS. CO. OF SAN FRANCISCO, CAL. v. BOYD. |
| Court | Florida Supreme Court |
D. Niel Ferguson, Ocala, and Smith, Partridge, Field, Doremus & Ringel, Atlanta, Ga., and Estes Doremus, Atlanta, Ga., for appellant.
Greene & Ayres, Ocala, for appellee.
Plaintiff-appellee filed suit in the court below to recover, under the theft provision of an insurance policy, for damage alleged to have been sustained by his trailer-truck after it had been stolen from him by his employee, one L. F. Howard. The defendant insurance company, appellant here, filed a motion for a directed verdict at the close of plaintiff's case, which motion was denied, and the case went to the jury on the evidence introduced by plaintiff and two exhibits filed in evidence by defendant, one being a statement of loss filed by plaintiff with defendant's agent, and the other, a copy of an affidavit charging Howard with embezzlement, which had been sworn out by plaintiff's attorney at the time of the alleged theft. The jury found for the plaintiff, defendant's motion for a new trial was denied, judgment for plaintiff was entered, and appeal has been perfected here from the verdict and judgment below.
The policy sued upon provided coverage, under Item D-1--Theft (Broad Form) for 'Loss of or damage to the automobile caused by theft, larceny, robbery or pilferage.' It specifically excluded from that coverage, however, loss or damage due to 'conversion, embezzlement or secretion by any person in lawful possession of the automobile under a bailment lease, conditional sale, mortgage or other encumbrance,' and furhter provided, as a condition thereof, that 'The insurance afforded by this policy shall not enure directly or indirectly to the benefit of any carrier or bailee liable for loss to the automobile.'
The evidence offered by plaintiff, which was undisputed by defendant, showed that the plaintiff was in the long-distance hauling business, and in such business employed drivers to assist him on a haul or, occasionally, to make a trip alone. In July of 1945, plaintiff employed one L. F. Howard as a driver. Howard had made one trip with plaintiff and one trip alone prior to the trip during which Howard made off with plaintiff's truck. On the trip in question, Howard made the trip alone, under instructions from plaintiff to pick up a load in Miami, Florida, deliver it to Philadelphia, Pa., and to return to plaintiff's home terminal in Wildwood, Florida, with a return load of possible.
Howard picked up and delivered the load in Philadelphia, as instructed, but then the trouble began. He advised plaintiff, by wire and by telephone, that he was picking up a return load at the Terminal Service Station in New Brunswick, N. J., one of plaintiff's 'contacts,' and would leave there on Monday for Wauchula. This was on September 15th. On September 18th, not having heard further from Howard, plaintiff called the Terminal Service Station and was advised that Howard had been drinking and they had not loaded him. Plaintiff then tried to locate Howard in New York City and, failing in this, reported to his insurance agent that Howard had stolen the truck.
On the same day, September 18th, Howard wired plaintiff from New York, as follows: On September 22nd, Howard wired plaintiff from Chicago, as follows: On September 24th, plaintiff received another wire from Chicago from Howard, saying And finally on September 29th, Howard advised plaintiff, from Chicago, that
The truck and Howard were identified in Greensboro, North Carolina, on October 5th by a former driver of plaintiff's, one Robert Barrow, who knew that the truck and Howard were missing. Barrow testified that he saw Howard in a restaurant in Greensboro; that, although he had known Howard for some time (and in fact had recommended Howard to plaintiff for the job as a driver), Howard hastily left the restaurant without speaking to Barrow and without flnishing his meal. The truck was found parked on the street, with the keys in it, and was later re-possessed by plaintiff. Howard was apprehended in a hotel in Greensboro, registered under an assumed name. He was returned to Florida to answer to a charge of embezzlement based on an affidavit filed by plaintiff's attorney. He has never been tried on the charge, and his whereabouts were unknown at the time of the trial.
The defendant contends, on this appeal, that the foregoing facts were insufficient to show a 'theft' within the meaning of the theft provision...
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