Great Nat. Lloyds v. Hall, 15484

• Decision Date: 12 February 1954
• Docket Number: No. 15484,15484
• Citation: 265 S.W.2d 875
• Parties: GREAT NATIONAL LLOYDS v. HALL et al.
• Court: Texas Court of Appeals

Page 875

265 S.W.2d 875

GREAT NATIONAL LLOYDS v. HALL et al.

No. 15484.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 12, 1954.

Rehearing Denied March 19, 1954.

Chas. J. Murray and M. Hendricks Brown, Fort Worth, for appellant.

Johnson & Johnson and Joe J. Johnson, Jr., Fort Worth, for appellee A. L. Hall.

Freeman & Ward and Harry Ward, Fort Worth, for appellee North Fort Worth State Bank.

McDonald, Sanders, Nichols, Ludlum, Wynn & Ginsburg and Atwood McDonald, Fort Worth, for appellee North Fort Worth State Bank.

BOYD, Justice.

Appellee A. L. Hall, suing upon an insurance contract, recovered judgment against appellant Great National Lloyds for $7,000 for the loss of a truck and trailer, it having been alleged by him and found by the jury that the loss was occasioned by theft. Hall will be referred to as appellee, although North Fort Worth State Bank, an intervener and Hall's mortgagee, has an interest in the judgment.

The insurance policy issued by appellant to appellee contained the following provisions:

'Coverage D-Comprehensive Loss of or Damage to the Automobile, Except by Collision or Upset.

'To pay for any direct and accidental loss of or damage to the automobile, hereinafter called loss, except loss caused by collision of the automobile with another object or by upset of the automobile or by collision of the automobile with a vehicle to which it is attached. Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset.

'Coverage G-Theft

'To pay for loss of or damage to the automobile, hereinafter called loss, caused by theft, larceny, robbery or pilferage, * * *.

'Exclusions

'This policy does not apply:

'(m) under coverages D, and G, to loss 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;

'(o) under coverages * * * G, * * * while the automobile is used in any illicit trade or transportation.'

The jury found that the truck and trailer were lost by theft, and that the person committing the theft was an employee of appellee. Appellant contends that the evidence does not support the finding that the loss was caused by theft, but shows conclusively that the employee was guilty of embezzlement and not theft.

Appellee testified that he engaged one J. D. Flowers to accompany him from Fort Worth to San Antonio for the purpose of driving appellee's truck, which was then in San Antonio, to Fort Worth; that Flowers slept in appellee's automobile about one-half block from the truck while appellee loaded the truck with six hundred sacks of onions, which cost him $1,000; that the truck was loaded in a parking lot, and he left it there with the key in the ignition switch, and went to his automobile and awakened Flowers and gave him $100 for expenses and compensation for driving the truck to Fort Worth, but that he did not know whether Flowers ever had the key in his possession, and he never did see Flowers in the truck and does not know whether he was ever in the truck; that Flowers, after his conversation with him, went to a cafe for the purpose of getting his lunch, and he, appellee, left immediately for Uvalde, and that he has not since seen Flowers, the truck, or the cargo.

The court instructed the jury as follows:

'Theft, as used in this charge, means the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of same, and to appropriate it to the use of the person taking it.

'In this connection you are instructed that the taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft.

'You are further instructed in connection with the definition of theft as used in this charge that the temporary possession of an employee of an item of personal property belonging to his employer is not the possession as referred to in this charge when speaking of theft, but is mere custody, and is not such legal possession as will keep a wrongful taking by an employee of property belonging to his employer from being theft, should the employee fraudulently appropriate the employer's property involved, and where all of the other elements of the definition of theft are present.'

Appellant objected to the last quoted paragraph; there was no objection to the first two.

While the question is not free from difficulty, we have reached the conclusion that the evidence does not support the findings of the jury that appellee's loss of the truck was due to theft by Flowers.

Vernon's Annotated Penal Code of Texas, Art. 1534, Embezzlement, provides: 'If any officer, agent, clerk, employe, or attorney at law or in fact, of any incorporated company or institution, or any clerk, agent, attorney at law or in fact, servant or employe of any private person, copartnership or joint stock association, or any consignee or bailee of money or property, shall embezzle, fraudulently misapply or convert to his own use, without the consent of his principal or employer, any money or property of such principal or employer which may have come into his possession or be under his care by virtue of such office, agency or employment, he shall be punished in the same manner as if he had committed a theft of such money or property.'

It is generally held that theft and embezzlement are distinct and separate crimes. Bernhardt v. United States, 6 Cir., 169 F.2d 983; 29 C.J.S., Embezzlement, § 4, page 673; Johnson v. State, 46 Tex.Cr.R. 415, 80 S.W. 621; Lott v. State, 24 Tex.App. 723, 14 S.W. 277; Edwards v. State, 47 Tex.Cr.R. 65, 79 S.W. 542; 18 Am.Jur., p. 572, sec. 3. The distinction between them seems to be that whereas theft is the fraudulent taking of property with intent to appropriate it, embezzlement is the fraudulent appropriation of another's property by a person to whom it has been intrusted. 29 C.J.S., Embezzlement, § 1, page 670; Henry v. United States, 50 App.D.C. 366, 273 F. 330, certiorari denied 257 U.S. 640, 42 S.Ct. 51, 66 L.Ed. 411; Gunn v. Globe & Rutgers Fire Ins. Co., 24 Ga.App. 615, 101 S.E. 691; 17 R.C.L., p. 7, sec. 6; 9 R.C.L., p. 1264, sec. 2, and p. 1266, sec. 4; 16 Tex.Jur., p. 318, sec. 2; 18 Am.Jur., pp. 572 and 573, sec. 3.

A rule to be followed in the construction of contracts-that statutes bearing on the subject matter become a part of the contract-applies to the construction of contracts of insurance. Harkins v. Indiana Lumbermens Mut. Ins. Co. of Indianapolis, Inc., Tex.Civ.App., 234 S.W.2d 430; Camden Fire Ins. Ass'n v. Moore, Tex.Civ.App., 206 S.W.2d 104, ref. n. r. e.; American Indemnity Co. v. Higgenbotham, Tex.Civ.App., 52 S.W.2d 653; Home Ins. Co., New York, v. Brewton, Tex.Civ.App., 46 S.W.2d 359. Another rule is that the language must be construed according to the intent of the parties, to be ascertained from the words used and the subject matter to which they relate. Insurance policies issued in this state will be interpreted according to the laws of this state. Security Ins. Co. v. Sellers-Sammons-Signor Motor Co., Tex.Civ.App., 235 S.W. 617. If the terms of the contract are susceptible of more than one meaning, they will be construed strictly against the insurer. 24 Tex.Jur., p. 705, sec. 29, and cases there cited.

If the terms of the policy in dispute are free from ambiguity, we must give to its words their usual and ordinary meaning. And we think the words 'theft,' 'larceny,' 'robbery' and 'pilferage' usually and ordinarily mean the fraudulent and wrongful taking of the property of another, and that this meaning excludes the idea of the violation of confidence by an employee, who, in the course of his employment, receives the property from the owner by an intrustment. In Gunn v. Globe & Rutgers Fire Ins. Co., supra (24 Ga.App. 615, 101 S.E. 692), the facts were that the plaintiff had bought an automobile on the recommendation of one Miller; shortly thereafter the car got out of order, and the plaintiff told Miller that it was 'up to him to fix it;' the car was turned over to Miller for such purpose, without any understanding that he was to receive any compensation for his services in repairing it; and after the car had been so intrusted to him,...