Hartford Fire Ins. Co. v. Lewis, 41259

Decision Date25 May 1965
Docket Number3,Nos. 1,No. 41259,2,41259,s. 1
Citation143 S.E.2d 556,112 Ga.App. 1
PartiesHARTFORD FIRE INSURANCE COMPANY v. Harold LEWIS
CourtGeorgia Court of Appeals

Syllabus by the Court

The evidence authorized the verdict and the trial court did not err in overruling the defendant's amended motion for new trial for any reason assigned.

Harold Lewis sued Hartford Fire Insurance Company to recover upon a policy of automobile insurance covering loss by theft. The defendant insurance company defended upon the ground that an agent of a corporation took the automobile under a bona fide claim of title and was not guilty of taking such automobile with an intent to steal. On the trial of the case the jury returned a verdict for the plaintiff for the value of the automobile plus the penalty and attorney's fees provided for in Code Ann. § 56-1206. Thereafter, the trial court overruled the defendant's amended motion for new trial and it is to such adverse judgment that the defendant now excepts.

Harris, Russell & Watkins, H. D. Russell, Macon, W. B. Mitchell, Forsyth, for plaintiff in error.

Harold G. Clarke, Forsyth, for defendant in error.

NICHOLS, Presiding Judge.

1. The evidence showed that the plaintiff had purchased the automobile in question from a used car dealer who had in turn purchased it from another dealer at an auction. The selling dealer at the auction had purchased the automobile from Dan McCullage Leasing Company under an oral agreement whereby title was to remain in the seller until the purchaser's check cleared the bank (the title was attached to such check and was to be delivered to the purchaser when the check was paid). Shortly after the above transaction took place an employee or agent of Dan McCullagh Leasing Company went to Toccoa, Ga., where the original purchaser was located, to either repossess the automobile or collect the purchase price. When he found that the original purchaser did not have the necessary funds to pay for the automobile and that it had been sold, he found out the identity of the ultimate purchaser, the plaintiff, and without contacting the plaintiff personally he removed the automobile from the plaintiff's premises at 3:30 a. m., with keys he made before leaving Detroit, and drove the automobile back to Detroit. The agent or employee of Dan McCullagh Leasing Company testified for the defendant insurance company by deposition, and on cross examination testified that he found out from the county records and from information obtained from 'Western Auto' the identity of the purchaser of the automobile, that he contacted the police but did not tell them his purpose, that he went by the plaintiff's home in daylight hours but did not attempt to contact the plaintiff personally and that he waited until 3:30 a. m., in the morning, when everyone was sleeping, to pick up the automobile so that he could get it with 'as least problems as possible,' that he wanted to obtain possession peacefully.

In South Carolina Insurance Co. v. Jackson, 103 Ga.App. 3, 117 S.E.2d 878, relied upon by the insurance company, it was held that where property is taken under a fair claim of right it is not larceny. In that case the 'taker' placed the property taken on his front yard a block from the place where it was taken in 'plain view.' In support of such decision cases were cited where the taker 'seemed to desire it to be known and observed by all men' that he had the property.

In the case sub judice the 'taker seemed to desire that no man see him take the property and that no one know who took the property.' The very opposite from the situation in cases relied upon by the insurance company. The evidence authorized the verdict finding that the automobile was stolen within the terms of the policy. Accordingly the trial court did not err in overruling the usual general grounds of the defendant's motion for new trial. Special ground 1, being a mere amplification of the usual general grounds, was likewise properly overruled.

2. Error is assigned upon the charge authorizing the jury to consider whether the insurance company had been guilty of the bad faith referred to in Code Ann. § 56-1206 so as to authorize the award of attorneys fees and penalty.

The defendant insurance company relies upon cases holding that if the question of liability is a close one the courts, for the furtherance of justice should see to it that verdicts which illegally carry a penalty for bad faith are not allowed to stand. While, under such circumstances, where the question of liability is close or the facts are in dispute, so that the insurer has reasonable grounds to contest the claim, no penalty should be permitted, yet where as here the automobile was taken in the early hours of the morning, by one who admitted that he purposely waited until every one was asleep so that he could take the car with keys he had made before coming to Georgia, and the automobile was immediately, under cover of night, taken from the State of Georgia, the evidence authorized the jury to consider whether the refusal to pay was in bad faith notwithstanding the insurer's claim that the automobile was taken under a claim of right. The jury was authorized to find that the circumstances of the taking spoke louder than the taker's words as to his intent, and that the insurer had no reasonable or probable cause to believe that the automobile was not in fact stolen. The trial court did not err in overruling special ground 2 of the amended motion for new trial.

3. The sole remaining special ground of the amended motion for new trial complains of an excerpt from the court's charge which, when considered with the entire charge, shows no reversible error.

The trial court did not err in overruling the defendant's motion for new trial for any reason assigned.

Judgment affirmed.

FELTON, C. J., and FRANKUM, RUSELL and PANNELL, JJ., concur.

JORDAN and HALL, JJ., concur as to Divisions 1 and 3 only.

BELL, P. J., and EBERHARDT, J., dissent.

JORDAN, Judge (concurring specially).

1. The dissenting opinion in effect says that a person who 'thinks' or is 'advised' that he has title to personal property may summarily recover it where found, under any conditions and circumstances, he being protected because he is acting under a 'claim of right.' In think this conclusion is error under the facts of this case.

In this case the car was located in the possession of an innocent purchaser for value, the car having been sold to him through regular channels of trade. Such was known to the agent of McCullagh, who must know under such circumstances that the plaintiff would also have a claim to title. Indeed it must be assumed that he knew that the sale of the car to the plaintiff under the facts of this case divested his principal of title thereto. Cook Motor Co. of Panama City, Inc. v. Richardson, 103 Ga.App. 129, 118 S.E.2d 502 and authorities therein cited. With such knowledge, and abandoning the legal remedy available to test the title, McCullagh's agent chose instead to steal upon the plaintiff's premises under the cloak of darkness in the early morning hours and drive the car away. All the elements of theft were thus present, including the intent to deprive plaintiff of possession of his property. By taking the car in this manner, the agent waived any bona fide claim of right his principal might have had and in effect 'took the law in his own hands.'

The dissent states that the result reached therein 'does not leave the plaintiff without remedy,' and that if he in fact has title to the car he can institute that proper action to recover it or its value. If such be true, can be abandon his legal remedy, proceed to Michigan and take the car under the circumstances whereby it was taken from him? I think not, though the dissent approves such action on the part of McCullagh's agent because he was acting under a 'claim of right.'

It is not a requirement under the policy that the plaintiff show a conviction for laceny before he can recover under the theft coverage. He was insuring himself against someone illegally and unlawfully taking his property from him, as was done in this case, and his right to recover would not be defeated even if the person so taking were acquired of a charge of larceny.

2. I agree with Division 2 of the dissent dealing with penalty and attorney's fees. The facts here are certainly such that reasonable minds might differ as to whether there was coverage, and under such conditions the insurance company must be free to make a defense.

I would affirm on condition that the penalty and attorney's fees be written off, otherwise reverse.

EBERHARDT, Judge (dissenting).

If, agreeably to the law as I find and understand it to be, I could join in the affirming of this judgment I would do so. My sympathies are with the insured who, for reasons not attributable to himself, lost an automobile which he felt quite confidently was insured under a theft policy issued to him by Hartford Fire Insurance Company. The facts make a strong moral case for the plaintiff, but this is a court of law and not of morals. The question, then, is whether the loss of the car, under the circumstances shown, was a 'theft' within the terms of the policy. If it was, recovery for the value of the car was proper, but if not it was not within the coverage of the contract and no recovery was authorized.

1. What is a theft, within the meaning of the policy? What are the essential ingredients? What must be shown by the insured, and what may appear in defense? 'Where a policy of insurance indemnifies an owner of an automobile against loss or damage occasioned by theft, robbery or pilferage, the owner cannot, under this clause of the policy, recover for damage to a machine which had been taken by another and used without the consent of the owner, but without any intent to steal. At common law, and under the statutes of this state, theft is...

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