Great Am. Ins. Co v. Gusman

• Citation: 56 S.E.2d 319,80 Ga.App. 471
• Decision Date: 18 November 1949
• Docket Number: No. 32511.,32511.
• Parties: GREAT AMERICAN INS. CO. v. GUSMAN.
• Court: Georgia Court of Appeals

56 S.E.2d 319

80 Ga.App. 471

GREAT AMERICAN INS. CO.

v.GUSMAN.

No. 32511.

Court of Appeals of Georgia,

Division No. 2.

Nov. 18, 1949.

Action by Betty R. Gusman against the Great American Insurance Company on insurance policy covering loss of automobile by theft.

The Civil Court of Fulton County, Paul S. Etheridge, J., entered a judgment for the plaintiff and the defendant sued on a writ of error.

The Court of Appeals, MacIntyre, P. J., held that the loss in question was covered by the policy and affirmed the judgment.

Virlyn B. Moore, Jr., Atlanta, Matthews, Long & Moore, Atlanta, for plaintiff in error.

Fine & Efurd, Atlanta, for defendant in error.

Syllabus Opinion by the Court

MacINTYRE, Presiding Judge.

1. "If a person obtains possession of goods or money by trick or fraud, or under false pretense of a bailment, with intent to appropriate the thing to his own use, and the owner intends to part with the possession only [to that person], and not with the property, the possession is obtained unlawfully, and the subsequent appropriation in pursuance of the original intent is [simple] larceny." Martin v. State, 123 Ga. 478, 51 S.E. 334; Walker v. State, 117 Ga. 260, 43 S.E. 701; Bryant v. State, 8 Ga.App. 389, 69 S.E. 121; Harris v. State, 81 Ga. 758, 7 S.E. 689, 12 Am.St.Rep. 355; Munn v. State, 12 Ga.App. 479, 77 S.E. 591.

2. Where in a policy of insurance, covering "loss of or damage to * * * [an] automobile caused by theft, robbery or pilferage, " it is provided that the risk shall not include "loss due to conversion, embezzlement by any person in lawful possession of the automobile under a bailment lease, conditional sale, mortgage or other encumbrance, " this provision excepts, from the risk covered, the loss of the automobile due to conversion, embezzlement or secretion by one having some interest in the property. Williams v. General Motors Acceptance Corp., 61 Ga.App. 750, 751, 7 S.E.2d 402; and

3. Where, in a suit on such a policy, to recover damages for the loss ofthe automobile, it appears from the evidence that the owner of the automobile was induced to part with the possession of the automobile under the belief that the person so inducing her had a prospective purchaser for the automobile and would act as her agent in the sale of the automobile; and such other person gave to the owner his mother's check for a certain sum drawn on a bank in which his mother had had no account for at least two years; and it was agreed between the owner and such...