Imperial Ins. Co. v. Ellington

• Decision Date: 06 June 1973
• Docket Number: No. 15144,15144
• Citation: 498 S.W.2d 368
• Parties: IMPERIAL INSURANCE COMPANY, Appellant, v. Russell E. ELLINGTON, Appellee.
• Court: Texas Court of Appeals

Page 368

498 S.W.2d 368

IMPERIAL INSURANCE COMPANY, Appellant, v. Russell E. ELLINGTON, Appellee.

No. 15144.

Court of Civil Appeals of Texas San Antonio.

June 6, 1973.

Rehearing Denied Sept. 5, 1973.

Robert Summers, Huson, Clark & Thornton, San Antonio, for appellant.

Carson, Manning & Kozlowski, San Antonio, for appellee.

CADENA, Justice.

Plaintiff, Russell E. Ellington, sued to recover on an insurance policy issued by defendant, Imperial Insurance Company, for the loss of a boat, motor and trailer stolen from plaintiff by J. A. Cavanaugh. Defendant appeals from a judgment, following trial to a jury, awarding plaintiff $3,200.

Plaintiff insists that defendant has not timely perfected its appeal. We disagree.

In answer to special issues, the jury found that Cavanaugh had taken the property from plaintiff under circumstances amounting to theft under our criminal statutes; that the actual cash market value of the boat and trailer was $3,200; and that the actual cash market value of the trailer was $500. Based on these findings, the trial court, on March 8, 1972, signed a judgment awarding plaintiff $3,700 .

Defendant's motion for new trial was timely filed on March 17, 1972. On May 1, 1972, less than 45 days after the filing of the motion for new trial, and while the motion was still pending, the trial court signed an order setting aside the judgment signed on March 8, 1972. By separate order, also signed May 1, 1972, the trial court signed a new judgment disregarding the jury's answers to issues relating to the loss of the trailer and awarding plaintiff the sum of $3,200, which amount, according to the verdict, represented the value of the boat and motor. ¹

On May 10, 1972, nine days after the signing of the second judgment, defendant filed a motion for new trial, which was overruled on June 22, 1972, at which time defendant gave notice of appeal and filed its supersedeas and appeal bonds.

The effect of the two orders of May 1, 1972, was to set aside the judgment of March 8, 1972, and to substitute a new judgment in its stead. When a judgment is withdrawn and a new judgment is substituted, if such action takes place within thirty days after the rendition of the first judgment or the order overruling motion for new trial, the action of the trial court is but an exercise of its power to control its judgment; and the times within which steps necessary to the perfection of appeal must be taken are determined by reference to the date of the second judgment. A. F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853 (1952); Swanson v. Holt, 126 Tex. 383, 87 S.W.2d 1090 (1936); Rule 329b, Subd. 5, Texas Rules of Civil Procedure; 4 McDonald, Texas Civil Practice, Section 18.03 (1971 rev.).

The orders of May 1, 1972, were entered while the trial court still had control of its judgment. Defendant's motion for new trial was filed within ten days from the rendition of such judgment, and all other procedures for perfecting an appeal were taken within the time prescribed by law. The appeal is properly before us.

In his petition, plaintiff alleged that the property had been stolen by false pretext. In addition to a general denial, defendant specially pleaded that the circumstances under which Cavanaugh took the property brought the case within one of the exclusionary provisions of the policy.

The facts of the case are largely undisputed. In early April, 1971, in response to newspaper advertisements placed by plaintiff offering a boat, motor and trailer for sale, cavanaugh inspected the property in San Antonio. Cavanaugh did not, at that time, announce his decision to purchase the property. Instead, after telling plaintiff that he had to go to Houston to sell a bus, Cavanaugh promised to call plaintiff the next day. On or about April 7, 1971, Cavanaugh, by means of a long distance telephone call from Houston, told plaintiff that he had decided to buy the property, but that it was necessary for him to remain in Houston about a week longer.

On the night of April 15, 1971, Cavanaugh went to plaintiff's home in San Antonio, and plaintiff sold him the boat, motor and trailer for $3,700. Cavanaugh gave plaintiff a check dated five days later, April 20, 1971, explaining that the money he had realized from the sale of the bus in Houston would not reach his bank until April 20; and plaintiff agreed to hold the check until April 20. In addition, Cavanaugh gave plaintiff a promissory note, payable April 20, 1971, explaining to plaintiff that he was giving the note 'just so you'll trust me.'

Cavanaugh took the boat, motor and trailer on April 15, 1971, and his whereabouts are now unknown, as are the whereabouts of the property. The check was worthless, and the note has not been paid.

By its first point, defendant asserts that there was no evidence that plaintiff suffered a loss within the coverage provisions of the policy, and that, therefore, the trial court erred in not granting defendant's motions for instructed verdict and for judgment n.o.v. This contention is based on the theory that the evidence shows as a matter of law that plaintiff sold the boat to Cavanaugh.

Ignoring, for the moment, the exclusionary provision of the policy relied on by defendant, which will be considered in connection with the discussion of defendant's second point, the policy insures the described property '. . . against all risks of direct physical loss of or damage to the property insured from any external cause . . ..'

A policy insuring against 'all risks' creates a special type of coverage, and recovery under such a policy is generally allowed for all losses of a fortuitous nature in the absence of fraud or other intentional misconduct of the insured, unless the policy contains a specific provision excluding the loss from coverage. Anno: 88 A.L.R .2d 1122 (1963). Such a policy covers a loss resulting from theft. Advance Piece Dye Works v. Travelers Indemnity Co., 64 N.J.Super. 405, 166 A.2d 173 (1960). ²

We agree with the defendant that the facts of the case show a sale of the insured property by plaintiff to Cavanaugh. However, the facts also show a theft of the property by Cavanaugh.

The facts of this case parallel closely the facts before the Supreme Court in Bomar v. Insurors Indemnity & Ins. Co., 150 Tex. 484, 242 S.W.2d 160 (1951). In that case, O'Boyle obtained possession of a car which Bomar was offering for sale by giving a check, which he asked Bomar to hold until title to the automobile was 'cleared' by the State Highway Department. O'Boyle represented to Bomar that arrangements had been made with O'Boyle's bank so that the check would be honored by the bank as soon as the title cleared. Bomar executed the title documents and delivered them, and the car, to O'Boyle. In fact, o'Boyle had made no arrangements with the bank for payment of the check, and had no account at the bank. As the Supreme Court pointed out, the evidence showed that O'Boyle had, by '. . . fraudulent pretext, inducing the belief that the purported purchaser of insured's automobile had made arrangements with a bank whereby a check given for the purchase price of the automobile would be paid when title cleared with the State Highway Department . . . obtained possession of insured's automobile, and a certificate of title to it, with intent to appropriate the property to his own use and benefit, and did so appropriate it.' 242 S.W.2d at 161. The Supreme Court held that O'Boyle was guilty of '. . . the crime of theft as known to the laws of Texas,' 242 S.W.2d at 163, and that the loss was covered under a policy insuring against loss by theft.

The crime in Bomar, and in the case before us, is commonly known as theft by false pretext. Article 1410, Vernon's Tex. Penal Code Ann., defines theft as '. . . the fraudulent taking of corporeal personal property belonging to another from his possession . . . without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.' Article 1413 of the Penal Code provides: '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, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.'

Article 1413 does not create a crime separate and distinct from the crime, commonly referred to as 'ordinary theft,' denounced by Article 1410. That is, theft and theft by false pretext are not distinct offenses. They are the same offense, differing only in the facts and circumstances surrounding the taking. Cameron v. State, 401 S.W.2d 809, 813 (Tex.Crim.App.1966). It is for this reason that an indictment charging ordinary theft will support a conviction for theft by false pretext even though the indictment does not allege that accused obtained possession of the property by false pretext. Mount v. State, 167 Tex.Cr.R. 7, 317 S.W.2d 212 (1958); Hilliard v. State, 401 S.W.2d 814 (Tex.Crim.App.1966). Since, as pointed out in Cameron, to constitute theft under Articles 1410 and 1413, the taking must be wrongful, it is clear that gaining possession by false pretext is a wrongful taking. 401 S.W.2d at 813.

It must be concluded that plaintiff's loss of the property by theft was one of the risks covered by the 'all risks' policy, and that defendant is liable for such loss unless, as it contends in its second point, the policy provisions exclude the loss from coverage.

The pertinent exclusion exempts from coverage losses resulting from the 'Infidelity of persons . . . to whom the insured property is entrusted.'

The word 'entrusted,' as used in the exclusionary provision, conveys the idea of the delivery or...