Hanover Fire Ins. Co. of N. Y. v. Scroggs

• Decision Date: 13 July 1955
• Docket Number: No. 35754,No. 2,35754,2
• Citation: 92 Ga.App. 548,88 S.E.2d 703
• Parties: HANOVER FIRE INSURANCE CO. OF NEW YORK v. J. H. SCROGGS
• Court: Georgia Court of Appeals

Page 703

88 S.E.2d 703

92 Ga.App. 548

HANOVER FIRE INSURANCE CO. OF NEW YORK v. J. H. SCROGGS.

No. 35754.

Court of Appeals of Georgia, Division No. 2.

July 13, 1955.

Rehearing Denied July 25, 1955.

Syllabus by the Court.

1. Although it was held in Hanover Fire Insurance Co. v. Scroggs, 90 Ga.App. 539, 83 S.E.2d 295, when this case was before this court for a decision on the judgment of the trial court overruling the general demurrer to the petition, that a cause of action was stated, this decision did not preclude the defendant from establishing as a defense that the circumstances of the taking came within an exclusion clause of the policy of insurance upon which the action was based and copy of which was attached to the petition, the allegations of the petition not disclosing these facts.

2. Under the exclusion clause of the policy that it 'does not apply to loss resulting from either the insured voluntarily parting with title and possession of any automobile if induced so to do by any fraudulent scheme, trick, device, false pretense, or from embezzlement, conversion, secretion, theft, larceny, robbery or pilferage committed by any person including any employee, entrusted by the insured with either custody or possession of the automobile,' the defendant was entitled to set up as a defense that the loss to the insured resulted from larceny by a person entrusted by the insured through his agent with the custody of the automobile.

3. Under the undisputed evidence as disclosed by the record and as interpreted by counsel for both sides in their briefs the insured left his place of business in Gainesville in charge of an employee who placed an automobile in the custody of a thief in order for him to try it out, he having represented himself as a prospective purchaser, and that the automobile was stolen in this manner. The evidence therefore demanded a finding that this loss came within one of the exclusion provisions of the policy.

J. H. Scroggs filed an action in the City Court of Hall County against Hanover Fire Insurance Company of New York alleging that the defendant had issued to the plaintiff its standard automobile policy insuring the plaintiff against theft of automobiles, that his 1947 Studebaker club coupe was stolen, and that the defendant, although liable for the value of the same under the terms of its policy, attached to the petition, in bad faith refused to pay. The pleadings are set out in detail in Hanover Fire Ins. Co. v. Scroggs, 90 Ga.App. 539, 83 S.E.2d 295, wherein it was held that the trial court properly overruled the general demurrers to the petition. The second count of the petition, seeking to recover under a collision provision of the policy, is immaterial here, as the case went to trial and the jury returned a verdict in favor of the plaintiff under the first count on the theory of theft, and assessed a penalty for bad faith.

Prior to verdict the defendant moved for a directed verdict, which was overruled, and thereafter he moved for a judgment notwithstanding verdict. He filed his motion for a new trial on the general grounds and later amended by the addition of several special grounds. The judgments of the court denying the motion for judgment notwithstanding verdict and the motion for a new trial are here assigned as error.

Wheeler, Robinson & Thurmond, A. C. Wheeler, R. F. Schuder, Gainesville, for plaintiff in error.

Stow & Andrews, Robert E. Andrews, Gainesville, for defendant in error.

TOWNSEND, Judge.

1. In an action on an insurance policy, the proof that the car was stolen makes out a prima facie case for recovery under policy provisions insuring against theft, Staten v. General Exchange Ins. Corp. of New York, 38 Ga.App. 415, 144 S.E. 53, and the burden of proving that the defendant is not liable because the loss falls within the terms of an exclusion clause is upon the defendant. North British & Mercantile Ins. Co. v. Mercer, 90 Ga.App. 143, 82 S.E.2d 41. Accordingly, the fact that the petition (which alleged the policy, the theft, and that the theft came within the terms of the policy, but which did not set out evidentiary matter as to how the theft occurred) stated a cause of action does not...