Gibson v. St. Paul Fire & Marine Ins. Co.
| Decision Date | 26 February 1936 |
| Docket Number | 8258. |
| Citation | 184 S.E. 562,117 W.Va. 156 |
| Parties | GIBSON v. ST. PAUL FIRE & MARINE INS. CO. |
| Court | West Virginia Supreme Court |
Submitted February 11, 1936.
Syllabus by the Court.
1. Under a policy insuring an owner against loss of his automobile by theft, a clause excluding coverage where the automobile is voluntarily placed by the owner in the possession of another, does not preclude recovery if the automobile is stolen by an employee of a public garage wherein the owner stored the car when it was not in use.
2. Where an automobile under theft coverage is stored by its owner in a public garage, and appropriated by one of the garage employees to his own use, the question of whether there was intent to steal is for jury determination under a preponderance of the evidence.
3. Point 3 of the syllabus of Shelton v. Insurance Company, 115 W.Va. 268, 174 S.E. 887, is disapproved.
Error to Circuit Court, Cabell County.
Action by Richard L. Gibson against the St. Paul Fire & Marine Insurance Company. To review a judgment for plaintiff defendant brings error.
Affirmed.
John E Jenkins, of Huntington, for plaintiff in error.
Vinson Thompson, Meek & Scherr, of Huntington, for defendant in error.
This is a writ of error to a judgment of the circuit court of Cabell county for $350.00 rendered on verdict in favor of Richard L. Gibson against St. Paul Fire & Marine Insurance Company.
The action is based on a policy of insurance covering the plaintiff's automobile. The protection of the policy was against fire, theft and transportation.
Plaintiff kept his automobile, when not in use, in Mullineaux's Garage in the city of Huntington. Late in the afternoon of August 4, 1934, he drove the automobile into the garage and left it. The proprietor of the garage had gone to supper, leaving an employee in charge. When the proprietor returned within about half an hour, he found that the employee had gone from the garage, and that the plaintiff's car and some money in the cash register had disappeared. He at once called the police, who, in a little while, apprehended the employee in a distant part of the city. He was in plaintiff's automobile, and in trying to escape from the police he wrecked the machine. There was no contradiction of the plaintiff's testimony that the damage was $391.00.
The plaintiff relies on the theft coverage of the policy, but the defendant urges that there was not sufficient proof of theft. We are impressed that the circumstances are clearly indicative of theft. In the absence of explanation to the contrary, the facts presented constitute prima facie proof that the automobile was stolen. Weir v. Central Nat. Fire Ins. Co., 194 Iowa 446, 189 N.W. 794. In such situation, the question of whether the employee intended to steal the property is a jury question. Miller v. Newark Fire Ins. Co., 12 La.App. 315, 125 So. 150. A preponderance of evidence will sustain the point. Proof beyond reasonable doubt is not necessary as in a criminal prosecution. In the light of the uncontradicted testimony that after his arrest, the employee admitted he had stolen the automobile and was trying to escape with it from the community, the preponderance seems clear.
The court, over objection of the defendant, admitted the testimony of the clerk of the common pleas court of Cabell County that Jimmie Kincaid, the employee of Mullineaux's Garage who took the automobile, was subsequently indicted in the latter court for the theft of said property. This testimony was improper, but it was not prejudicially erroneous in the light of the fact that the theft was otherwise clearly established.
By its terms, the policy is made applicable to loss by theft, robbery and pilferage "excepting by any person, or agent thereof, or by the agent of any firm or corporation to which person, firm or corporation the Assured, or any one acting under express or implied authority of the Assured, voluntarily parts with the title and/or possession, whether or not induced so to do by any fraudulent scheme, trick, device or false pretense. * * *"
It is urged by the defendant that the facts disclose that the plaintiff voluntarily parted with possession of the automobile within manner banned by the said exception, and, therefore, there can be no recovery.
The plaintiff says...
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