La Motte v. Retail Hardware Mut. Fire Ins. Co. of Minn.

• Decision Date: 09 December 1930
• Citation: 233 N.W. 566,203 Wis. 41
• Parties: LA MOTTE v. RETAIL HARDWARE MUT. FIRE INS. CO. OF MINNESOTA.
• Court: Wisconsin Supreme Court

203 Wis. 41

233 N.W. 566

LA MOTTE

v.RETAIL HARDWARE MUT. FIRE INS. CO. OF MINNESOTA.

Supreme Court of Wisconsin.

Dec. 9, 1930.

Appeal from a judgment of the Circuit Court of Shawano County; Edgar V. Werner, Circuit Judge.

Action by Theresa La Motte against the Retail Hardware Mutual Fire Insurance Company of Minnesota. Judgment for defendant, and plaintiff appeals.--[By Editorial Staff.]

Affirmed.

Action begun February 13, 1929, by plaintiff to recover on a policy insuring plaintiff's automobile, among other things, against “loss or damage caused by theft, robbery, or pilferage, excepting by any person or persons in the insured's household or in the insured's service or employment.” At the conclusion of the testimony the defendant moved for a directed verdict, which the court concluded should be granted, but reserved a ruling and submitted a special verdict of two questions to the jury for the purpose only of avoiding a new trial should the judgment be reversed upon appeal.

The verdict of the jury was as follows:

“Question No. 1. Did the said Joe LaMotte take and drive the plaintiff's automobile away on December 13, 1928, with intent permanently to deprive her of the ownership of said automobile? Answer: Yes.

Question No. 2. Was said Joe LaMotte a member of the household of said Theresa La Motte on December 13, 1928? Answer: No.”

Upon coming in of the verdict the trial court, on motion duly made, promptly changed the answers of the jury and rendered judgment July 3, 1929, in favor of the defendant.

The plaintiff contends that the court erred in changing the answer of the jury to the first question from “yes” to “no” and the second question from “no” to “yes.”

The facts of the case are practically undisputed. The plaintiff, her husband, Peter LaMotte, and Joe LaMotte, the alleged thief, are Indians residing at Neopit, upon a reservation. Joe is a nephew of Theresa LaMotteand Peter LaMotte. When he was four years old his mother died, and just before her death an agreement was entered into between her and the plaintiff and plaintiff's husband that the plaintiff and her husband would bring up Joe and care for him. Joe thereafter stayed with the plaintiff and her husband until he married. In the meantime he attended various Indian schools, including Carlisle and Haskell. He always returned to the LaMotte home when not in school or not employed. After marrying, Joe and his wife lived for some time with the plaintiff and then set up housekeeping for themselves. About a year before the trial Joe's wife died and thereafter he brought his bed and trunk to the home of the plaintiff. He has spent considerable time off and on at the plaintiff's home since the death of his wife. On the 13th day of December, the date of the alleged theft, Joe returned to Neopit from a lumber camp where he was employed. He spent some time that day and early evening in the pool hall operated by Peter LaMotte, his uncle. He also went to the plaintiff's home and changed his socks. Later in the evening he met one Peter Beauprey and some girls with the result that it was planned to take a ride in an automobile. It was suggested by Beauprey that the plaintiff's car be taken for the purpose of the ride planned. Thereafter, at about 12 o'clock, Joe and Beauprey went to the plaintiff's garage, opened it, and removed the plaintiff's car. Whether the garage was locked or not is in dispute. The two young men then picked up the girls and started for a ride. They drove to Gresham towards Shawano and then turned back towards Neopit. While they were approaching Neopit and within a comparatively short distance therefrom the car skidded at a turn due to the wet and slippery condition of the highway and the car went into the ditch and wrecked. The car was thereafter removed from the ditch, brought to within about a block and a half of the plaintiff's home, and was then driven to the plaintiff's home by two Indian boys who were requested by Joe and Beauprey to take the car home. It is undisputed that the young men had absolutely no right to take the car that night. What they did was clearly without plaintiff's consent. Both Beauprey and Joe were thereafter prosecuted and convicted for driving the car without the owner's consent. At the time of the trial both were confined in the Green Bay Reformatory.

Winter & Winter, of Shawano, for appellant.

Fisher, Cashin & Reinholdt, of Stevens Point, for respondent.

NELSON, J.

The plaintiff contends that the trial court erred in changing the answers of the jury to the questions submitted. Although both assignments of error are argued in the briefs of counsel, we find it unnecessary to discuss the question as to whether there was evidence to support the finding of the jury that Joe La Motte was not a member of the plaintiff's household at the time of the alleged theft, in view of our conclusion that the trial court was clearly right in changing the answer of the jury to the first question submitted. If Joe, or his companion Beauprey, did not steal the plaintiff's car (and the evidence seems to leave no question of doubt in that respect), then whether or not Joe was a member of plaintiff's household at the time of the alleged theft is of no material importance.

That the trial court was clearly right in changing the answer of the jury to the first question and in rendering judgment for the defendant notwithstanding the verdict seems too clear for serious dispute. Numerous decisions involving theft provisions in automobile policies, identically or substantially identical with the provision involved in this action, have been cited, and it appears that the holding of the courts therein has been entirely uniform.

[1][2] The law is well settled that in actions of this kind no recovery can be had under a theft provision of an automobile policy unless it be affirmatively shown that the wrongdoer, at the time of taking the car or at some time thereafter, had an intent to steal the car; that is to say, had an intent to wholly or permanently deprive the owner of his automobile. It is also well settled that, if at the time of the taking there was present in the mind of the wrongdoer an intent to return the automobile to...