Morris Plan Co. of R.I. v. Firemen's Fund Ins. Co.
| Decision Date | 09 April 1928 |
| Docket Number | No. 6471.,6471. |
| Citation | 141 A. 182 |
| Parties | MORRIS PLAN CO. OF RHODE ISLAND v. FIREMEN'S FUND INS. CO. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Herbert L Carpenter, Judge.
Action by the Morris Plan Company of Rhode Island against the Firemen's Fund Insurance Company. Directed verdict for defendant, and plaintiff excepts. Exception sustained, and case remitted for new trial.
Harold R. Semple, of Providence, for plaintiff.
Hinckley, Allen, Tillinghast & Phillips and Harold A. Andrews, all of Providence, for defendant.
STEARNS, J. Assumpsit to recover on a policy insuring plaintiff and others as their interests may appear from, among other things, "theft, robbery or pilferage" of an automobile. At the conclusion of plaintiff's evidence, defendant rested, and the trial justice, on motion made, directed a verdict for defendant on the grounds that there was no proof of loss, of damages, and of theft. The case is here on the plaintiff's bill of exceptions.
The sole exception is to the direction of the verdict. The only ground on which defendant relies to support this direction is that there was no evidence of theft. The other reasons given by the court for its action are untenable. The evidence is brief.
September 21, 1925, one Fecteau, a dealer in automobiles, by a conditional sale agreement sold an automobile to Charles L. Smith and his wife, Theresa. A partial cash payment was made, and the balance of the purchase price was to be paid in installments. The agreement provided for a trade acceptance by plaintiff of a draft by Fecteau on the Smiths, that title was to remain in the seller until full payment was made, and that an assignment of title to the automobile and of all rights under the agreement should be made to plaintiff. The agreement contained a recital that this assignment to plaintiff had been duly made. The policy in question was issued by defendant at the same time, and, by special indorsement thereon, the coverage granted was to be for the benefit of the seller or the plaintiff only; the liability at no time to exceed the amount due from the purchaser.
The last payment received by plaintiff was on April 8, 1926. The balance still due on the draft was over $200. April 24, Fecteau committed suicide. The following day plaintiff made an investigation of Fecteau's obligations to it and discovered that the automobile either had been taken from the Smiths by Fecteau or had been returned by them to him; just how or when Fecteau got possession of the automobile again does not appear. Plaintiff, by examination of the state records of automobile registrations, found that the...
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