Hanes Funeral Home Inc v. Dixie Fire Ins. Co, 675.

• Decision Date: 13 December 1939
• Docket Number: No. 675.,675.
• Citation: 5 S.E.2d 820,216 N.C. 562
• Parties: HANES FUNERAL HOME, inc. v. DIXIE FIRE INS. CO.
• Court: North Carolina Supreme Court

5 S.E.2d 820

216 N.C. 562

HANES FUNERAL HOME, inc.

v.DIXIE FIRE INS. CO.

No. 675.

Supreme Court of North Carolina.

Dec. 13, 1939.

Appeal from Superior Court, Guilford County; John J. Clement, Judge.

Action by the Hanes Funeral Home, Inc., against the Dixie Fire Insurance Company on a motor vehicle theft insurance policy. Judgment for plaintiff, and defendant appeals.

Reversed.

Civil action on a contract of insurance to recover damages alleged to have been sustained as a result of alleged theft of a motor vehicle.

On about July 1, 1938, the defendant issued its policy covering the plaintiff's fleet of motor vehicles, including the motor vehicle mentioned and described in the complaint, insuring against theft and any damages caused thereby.

Henry L. Hanes was the President and Treasurer of plaintiff corporation. The La Salle automobile described in the complaint and two others, when not in use, were kept in a garage at his home. On October 7, 1938, Hanes left the La Salle in the garage and gave the keys to the car to a negro employee of the plaintiff to be delivered to the office. He and his wife left for a trip to New York. One L. H. Nelson, who is the nephew of Mrs. Hanes, was staying temporarily in the Hanes' home andwas there while Mr. and Mrs. Hanes were on their trip to New York.

On the night of October 7, 1938, Nelson had planned to go in his own automobile to Siler City to keep an engagement with a girl friend. He discovered that his car was not running satisfactorily. The negro employee of the plaintiff having theretofore delivered to him the keys to the car, Nelson took the La Salle from the garage to use on his trip. On his return he was forced off the road and the car was badly damaged and he suffered physical injuries.

It is admitted that the damage to the car was in excess of $1,000, the face amount of the policy in respect to theft. There was a verdict and judgment for the plaintiff and the defendant excepted and appealed.

Brooks, McLendon & Holderness, of Greensboro, for defendant-appellant.

Frazier & Frazier, of Greensboro, for plaintiff-appellee.

BARNHILL, Justice.

That the policy of insurance was issued and was in full force and effect at the time of the damage to plaintiff's car was admitted. The plaintiff offered evidence tending to show that the car was left in the garage at the home of its President; that subsequently it was found on the road between Greensboro and Siler City in a badly damaged condition, and that the damage thereto exceeded $1,000. The plaintiff then rested and the defendant moved to dismiss as of nonsuit, which motion was overruled and the defendant excepted.

The defendant then offered the testimony of L. H. Nelson, nephew of Mrs. Hanes, tending to show that he took the car for use on a trip to Siler City and the circumstances under which he took it. Thereupon, the defendant renewed his motion to dismiss as of nonsuit, which was overruled and the defendant excepted.

Was there error in the refusal of the court to dismiss the action as of nonsuit, on motion of the defendant, at the conclusion of all the evidence?

Theft is the felonious taking and removing of personal property with intent to deprive the rightful owner of it; larceny. Webster's New International Diet. (2d). Larceny is the wrongful and fraudulent taking and carrying away by one person of the personal goods of another with the felonious intent to convert them to his, the taker's, use, and make them his proper ty without the consent of the owner. To constitute larceny the property must be...