Ledvinka v. Home Ins. Co. of New York

• Decision Date: 17 November 1921
• Docket Number: 13.
• Citation: 115 A. 596,139 Md. 434
• Parties: LEDVINKA v. HOME INS. CO. OF NEW YORK.
• Court: Maryland Court of Appeals

115 A. 596

139 Md. 434

LEDVINKA v. HOME INS. CO. OF NEW YORK.

No. 13.

Court of Appeals of Maryland

November 17, 1921

Appeal from Baltimore City Court; James M. Ambler, Judge.

Action by Charles S. Ledvinka against the Home Insurance Company of New York. Directed verdict and judgment for the defendant and the plaintiff appeals. Affirmed.

Simon Silverberg, of Baltimore, for appellant.

Hilary W. Gans and W. Calvin Chesnut, both of Baltimore, for appellee.

OFFUTT J.

Charles S. Ledvinka, on December 19, 1919, purchased from the Colonial Garage & Repair Company of Baltimore a secondhand automobile for $800 and certain additional equipment for $200, of which sums he paid $400 in cash and gave notes for the balance. The contract for the sale of the automobile contained, among others, this clause:

"It is understood and agreed that title of ownership of car *** does not pass to me until final cash payment is made."

After purchasing the car Ledvinka took out an insurance policy from the Home Insurance Company of New York, the appellee in this case, insuring him to the extent of $1,000 against its loss through "theft, robbery or pilferage." This policy was issued upon the condition that it should be "null and void" if the assured's interest in the car were "other than unconditional and sole ownership," or if it were "incumbered by any lien or mortgage," except as stated in a warranty contained in the policy.

At the time the appellant bought the automobile, the vendor agreed to "give him a man to teach him how to drive it," and John C. Alderhardt, the chauffeur furnished by the company, under that agreement brought the car to the appellant's home four or five times, and gave him lessons in driving it, and on one of these occasions the appellant directed Alderhardt to bring the automobile to his home on Sunday, January 11, 1920, for another lesson. The chauffeur was to bring the automobile from the garage of the Colonial Garage & Repair Company, where it had remained from the time appellant had purchased it from that company. The chauffeur came on that day at about 10 o'clock in the morning, and was with the plaintiff in the automobile for about two hours teaching him how to operate it. It was then agreed between them that the chauffeur should return with the car at 2 o'clock in the same afternoon to give the appellant a final lesson. Alderhardt did not come at the hour named, and the appellant was later told that the car had been wrecked and Alderhardt, the chauffeur, fatally injured in an accident on the Annapolis road some time during that afternoon.

After he learned of the damage to his automobile the plaintiff filed with the appellee a claim for the loss he had suffered on the theory that the chauffeur had stolen the car, and that the loss was therefore covered by the policy of insurance. The insurance company refused to pay the claim, and the plaintiff then instituted this action in the Baltimore city court to recover the amount he claimed to be due him under the policy. At the close of the plaintiff's case, the jury, under the direction of the court, returned a verdict for the defendant, and from the judgment entered on that verdict this appeal was taken.

The only question presented by the record for our consideration is whether under the facts stated the plaintiff was entitled to recover in that suit against the defendant. There were set up three defenses to the appellant's claim; one that the car had not been stolen at all; two that, if stolen, the theft was committed by a person in the assured's employment, and three that at the time the policy was issued the appellant did not have the legal title to the automobile, and the policy was for that reason void, because the appellant had taken it upon the expressed condition that it should be "null and void" if his interest in the automobile were other than unconditional or sole ownership, or if it was when the policy issued, or afterwards became incumbered by any lien or mortgage, except as stated in the assured's warranty, which warranty was that it was "fully paid for by him and was not mortgaged or otherwise incumbered," whereas in fact the legal title to it had been retained by the Colonial Garage & Repair Company to insure the payment of the balance of the purchase money due on it.

Because of its relation to the other questions we will first consider the proposition that Alderhardt was in Ledvinka's employment. There is nothing in the record to sustain the contention that he was so employed. It is true that the proprietor of the company from which Ledvinka bought the car testified that Alderhardt was not in his employ on the day in question, but the company had sent him to Ledvinka in accordance with its understanding to furnish him a chauffeur to teach him how to operate the car, which undertaking was a part of the consideration for the purchase of the car. The mere fact that Ledvinka gave him "tips" did not make the chauffeur his employee any more than would the casual tipping of a railway porter by a passenger make the porter the passenger's employee. Alderhardt was intrusted with the car by the company, and by it sent to perform a promise it had made, that is, to teach the purchaser of the automobile how to drive it, and for the purposes of this case it must be assumed that Alderhardt was its agent, and not in the service or employment of Ledvinka.

"Service" and "employment" are words commonly and constantly used, "and therefore ought to be received as understood in common parlance" (20 C.J. 1245), and when so received are generally associated with the idea of selection and compensation. But neither of those elements can be found in the relation between Ledvinka and Alderhardt. Alderhardt was selected by the garage company, and if compensated at all was compensated by it. The object of his employment was the instruction of Ledvinka, who neither selected nor compensated him for the employment. Alderhardt was not therefore either in the service or the employment of Ledvinka. McCluskey v. Cromwell, 11 N.Y. 593, 599.

Assuming then, under the...