Mock v. Missouri Union Ins. Co.
| Decision Date | 05 October 1959 |
| Docket Number | No. 22913,22913 |
| Parties | Richard MOCK, d/b/a Richard Mock Motors, Plaintiff-Appellant, v. MISSOURI UNION INSURANCE COMPANY, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Carl H. Willbrand, and Solbert M. Wasserstrom, Kansas City, for appellant.
C. William Garver and Clark S. Ullom, Kansas City, for respondent.
This is a suit on an automobile dealer's open theft insurance policy. Trial to a jury resulted in a verdict and judgment for defendant. Plaintiff appealed.
The petition alleges the issuance of the policy insuring the plaintiff against the 'theft' of a certain automobile; that said automobile was stolen at Los Angeles, California; that defendant had vexatiously refused to pay, and prayed judgment for the value of the car and penalty for vexatious delay and attorneys' fees. The answer consisted of a general denial, together with affirmative defenses alleging that plaintiff's loss came within certain exclusion clauses, quoted infra, which relieved defendant of liability for the loss.
The pertinent insuring clause of the master policy provides: . There was attached to the policy an 'endorsement'. It incorporated the exclusions pleaded by defendant as affirmative defenses. The first exclusion provides: '(7) This policy does not apply: * * * (d) Under any Coverage--to loss resulting 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.' (Italics supplied.) Thus the exclusion clause relieves defendant of liability for 'theft' or any of the other enumerated acts, only if such act was committed by a person entrusted, by the insured, with custody or possession of the automobile.
Plaintiff first contends there is no substantial evidence that the automobile was entrusted to the person who made away with it, and the court erred in submitting that issue in defendant's Instruction 3. If this contention is well founded, other criticisms of the instruction need not be discussed.
A general statement of the facts will first be made.
Plaintiff was engaged in the business of buying and selling automobiles. His principal business was acquiring automobiles in Kansas City, Missouri, and selling them to other dealers in the State of California. These automobiles were usually delivered by individuals who would agree to drive them to California in consideration of their own free transportation. In July, 1956, plaintiff agreed orally to sell the automobile in question to a dealer in San Francisco by the name of Goggins. The sale was not to be consummated until delivery of the automobile and the title thereto. On August 2d plaintiff entered into an arrangement with Miss Reba Woodmansee whereby she was to drive the car to California and deliver the same to Goggins. Plaintiff knew that Miss Woodmansee intended to permit other parties to ride with her, but he did not know them. Some of the parties changed their minds, and she was accompanied only by a Mr. Sunderland. They agreed to exchange driving every three hours, and drove directly through to Lakewood, California, without stopping except for food and car service. On arrival they stopped at the home of Miss Woodmansee's sister, and remained about two and one-half hours, visiting and having coffee. Miss Woodmansee intended to return to her sister's home from San Francisco, so she and her sister and Sunderland went to the car to get her luggage. Sunderland unlocked the trunk and removed the luggage and Miss Woodmansee and her sister carried it into the house, where she remained a few minutes, and when she returned, Sunderland and the car were gone. Nothing was heard from him, or the car located, until about 10 months later. It was delivered to plaintiff in damaged condition.
It is undisputed that Sunderland unlawfully made away with the automobile. The question is, Does the evidence, presently to be considered, bring the unlawful act within exclusion 7(d)? If so, it would make no difference whether he committed theft, larceny, embezzlement, or conversion, because all such offenses are excluded under one condition: that is, that the insured entrusted the custody or possession of the automobile to Sunderland. For the purpose of this opinion, we will assume, without deciding, that Miss Woodmansee was the agent of the plaintiff, and could entrust the car to Sunderland. But see White v. Gifis, D.C., 172 F.Supp. 296, wherein the court considered facts almost identical with those in this case and held that the driver (Woodmansee) was an independent contractor and not an employee of the owner.
In Pacific Indemnity Co. v. Harrison, Tex.Civ.App., 277 S.W.2d 256, the court was construing the identical exclusion as in the instant case and said (261), 'The word entrust has been defined by both lay and legal authorities in substance to mean to commit something to another with a certain confidence regarding his care, use or disposal of it.' In 22A, Words and Phrases, page 135, are cited cases defining 'entrust' and 'intrust' as being synonymous and that each means more than naked possession or custody of, or access to, the property appropriated. See also 48 C.J.S. page 754, and Webster's New International Dictionary, Second Edition.
With this understanding of the meaning of 'entrust', we review additional evidence to determine whether it is sufficient to submit to the jury the issue of entrustment of the automobile to Sunderland. Defendant had the burden of proof of this affirmative defense.
The only evidence of entrustment is the testimony of Miss Woodmansee. She testified that when they reached her sister's home in California, .
On cross-examination the following appears:
'Q. I will ask you whether or not you were talking to him about having the car serviced and Kenny (Sunderland) said, 'I will do it', and that was a long time before he left? A. We were talking at the table when we went for coffee, before we started to Frisco we would have to service the car. * * * We talked about the car being serviced before we went out--that we would have to gas up the car before we went on to Frisco. * * * My sister, myself and Kenny went out to the driveway where the car was parked, and the lock on the trunk was evidently stuck and we had trouble getting the trunk lid up. * * * When we got the thing open, we took the bags out.
* * *'
Re-direct examination:
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