Home Ins. Co. v. Mathis

• Decision Date: 04 March 1941
• Docket Number: 16349.
• Citation: 32 N.E.2d 108,109 Ind.App. 25
• Parties: HOME INS. CO. v. MATHIS.
• Court: Indiana Appellate Court

32 N.E.2d 108

109 Ind.App. 25

HOME INS. CO. v. MATHIS.

No. 16349.

Appellate Court of Indiana, in Banc.

March 4, 1941

Slaymaker Merrell & Locke and Lawrence B. Moore, all of Indianapolis, Frank S. Houston, of Salem, and Bulleit &amp Orbison, of New Albany, for appellant.

L A. Douglass, of Jeffersonville, and Lorch & Lorch, of New Albany, for appellee.

CURTIS Chief Judge.

The appellee, Henry F. Mathis, as sole plaintiff, by his amended complaint against the appellant and Commercial Credit Company, sought to recover from the appellant upon a policy of theft insurance executed by the appellant to the appellee and Commercial Credit Company for loss and damage to an automobile in connection with an alleged theft thereof.

The appellee, by leave of court, filed an amended complaint and made the Commercial Credit Company a party defendant. It filed a disclaimer. The appellant filed a motion to make the amended complaint more specific, which motion was overruled whereupon it demurred unsuccessfully to the amended complaint for want of sufficient facts. The appellant then filed an answer in general denial and three paragraphs of special answer relying upon the exceptions in the policy hereafter set out as a defense to the action. The appellee replied to the appellant's second, third and fourth paragraphs of answer by a general denial. The plaintiff, appellee, then dismissed his cause of action as to the Commercial Credit Company.

The cause was tried before a jury resulting in verdict for the appellee in the sum of $425 and costs. The appellant thereupon filed its motion for a new trial, which the court overruled and judgment was then entered in accordance with the verdict. From that judgment this appeal has been prosecuted. The error relied upon for reversal is the ruling on the motion for a new trial. Under the motion for a new trial the appellant relies upon the causes or grounds of the motion that the verdict of the jury is not sustained by sufficient evidence, is contrary to law, alleged error in the giving of each of certain specified instructions to the jury and claimed error in certain designated rulings in the admission of evidence.

A fair summary of the evidence shows that at about 7 p. m. on April 25, 1935, the appellee left his automobile at the Ohio Auto Park, a public parking lot, in Indianapolis, stating to Virgil Anderson, the employee of the parking lot owner, then on duty, that he would be gone about a week and wished to store his car there in his absence, and paid a week's storage in advance; that around 11:30 p. m. the same evening, after all the cars which were to be called for that evening had been checked out, said Virgil Anderson drove appellee's car to his brother's home on the south side of Indianapolis, some four or five miles south of the parking lot, to get some socks and underwear which his brother, who worked at Real Silk Hosiery Mills, had earlier in the same week promised to get for him from the Real Silk Hosiery Mills at a discount granted to employees; that after calling at his brother's home, he started driving back to the parking lot with appellee's car, and at Troy and Madison Avenue, when at a point about three miles south of the parking lot, in attempting to drive around a partial barricade in the street, he collided with a telephone pole, thereby damaging appellee's car; that Anderson was slightly injured by the collision, but stopped a passing motorist who drove him first to a nearby tavern where he called the sheriff of Marion County and reported to the sheriff the accident. He then proceeded to his brother's home and asked him to return with him to the scene of the accident, which the brother and his wife did, arriving there before the deputy sheriff arrived. When the deputy sheriff arrived, Anderson made himself known and told him what had occurred, and was then taken in custody by the deputy. There was no direct evidence of an attempt at flight by Anderson after the accident; the evidence showed that Anderson had no luggage with him in the car and was dressed in his working clothes; that he had not been paid his weekly wages which were due him the following day, and that all his belongings were at his room located on the north side of Indianapolis and north of the parking lot. He denied any intention whatever to steal the car.

There was no evidence introduced to show that Anderson took the car or used it for any other purpose than to drive to his brother's home upon a personal errand and to return it to the parking lot; and no evidence raising any legitimate inference that Anderson, at any time, intended to steal the appellee's automobile.

A copy of the insurance policy relied upon was filed with the amended complaint as Exhibit A and made a part thereof. The policy had a theft coverage from which we quote as follows:

"Theft, Robbery and Pilferage, excepting * * * by the agent of any firm or corporation to which person, firm or corporation the Assured, or any one acting under express or implied authority of the Assured, voluntarily parts with title and/or possession whether or not induced so to do by any fraudulent scheme, trick, device or false pretense."

"This policy does not insure against the wrongful conversion, embezzlement or secretion by the mortgagor, vendee, lessee or other person in lawful possession of the insured property under a mortgage, conditional sale, lease or other contract or agreement, whether written or verbal".

In the case of Michigan Commercial Ins. Co. v. Wills, 57 Ind.App. 256, 106 N.E. 725, 726, this court reversed a judgment for the plaintiff where it was sought to recover upon a similar policy of theft insurance where the plaintiff's automobile was taken out of a garage where it was stored by some boys for a joy ride, without the plaintiff's consent or permission and driven from Logansport to Peru and at a point about six miles west of Peru, was driven into a fence, wrecked and then abandoned. This court there said,

"'Under this contract, if the thief carries away a machine with intent to steal it, and it is never recovered, and loss occurs, the owner may recover the full value of the automobile. If the thief be apprehended and the machine recovered, then the owner is entitled to recover for whatever damage has been done the machine, if it exceeds $25. But in both cases it must appear that the person taking the machine intended to steal it. If he had the animus revertendi, he is not guilty of theft, or robbery, or pilferage, even though he took the machine without the owner's consent.' Such holding is fully supported by the decisions of our Supreme Court. Malone v. State [1907], 169 Ind. 72, 81 N.E. 1099; Stillwell v. State [1900], 155 Ind. 552, 58 N.E. 709; Robinson v. State [1888], 113 Ind. 510, 16 N.E. 184; Umphrey v. State [1878], 63 Ind. 223; Starck v. State [1878], 63 Ind. 285, 30 Am.Rep. 214. See, also, People v. Brown [1894], 105 Cal. 66, 38 P. 518.

"The facts in this case, as in the case quoted from, are sufficient to rebut any inferred intent that might be included in the unlawful taking."

The great weight of authority is in line with the Wills case supra. For cases in point and closely paralleling the facts of the instant case see: Hartford Fire Ins. Co. v. Wimbish, 12 Ga.App. 712, 78 S.E. 265, 266. The court there said, "It is argued that the word 'theft,' as used in this policy,...