Reserve Ins. Co. v. Interurban Transit Lines, 39228

• Decision Date: 29 January 1962
• Docket Number: No. 39228,No. 2,39228,2
• Parties: RESERVE INSURANCE COMPANY v. INTERURBAN TRANSIT LINES. . Division
• Court: Georgia Court of Appeals

Page 498

124 S.E.2d 498

105 Ga.App. 278

RESERVE INSURANCE COMPANY v. INTERURBAN TRANSIT LINES.

No. 39228.

Court of Appeals of Georgia. Division No. 2.

Jan. 29, 1962.

Rehearing Denied Feb. 8, 1962.

Syllabus by the Court

Under the allegations of the petition, the appropriation of the plaintiff's automobile by the fraudulent conduct of the alleged thief was a loss caused by theft or larceny within the coverage of the instant policy, and was not among the risks excepted in the exclusion clause.

Interurban Transit Lines, d/b/a Hertz U-Drive-It System, filed suit in the City Court of Richmond County against Reserve Insurance Company to recover on a policy of theft insurance. The petition as amended alleged that, on May 19, 1960, the defendant issued a policy of insurance to the plaintiff protecting its automobiles against the following occurrences:

'COVERAGE D--THEFT (BROAD FORM): To pay for loss of or damage to the automobile, hereinafter called loss, caused by theft, larceny, robbery or pilferage.'

It was also alleged that the same policy contained the following exclusion:

'(g) Under coverages A and D to loss due to conversion, embezzlement or secretion by any person in possession of the automobile under a bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance.'

The petition alleged that premiums had been paid; that the policy was in full force and effect on October 14, 1960; and that the loss occurred on that day in the following manner. At approximately 5:30 p. m. some person, a male, whose name was unknown to petitioner, obtained possession of an automobile which was described in the insurance policy by forging the name of Lloyd L. Short of 106 Roslind Place, Toledo, Ohio on a rental agreement; and petitioner has not seen the automobile nor had possession of it since that time. A copy of the rental agreement was attached as an exhibit to the petition.

The petition as amended was demurred to generally on the ground that it showed on its face that the loss of the automobile was due to a conversion of the automobile by a person placed in possession of same under a bailment lease, and that such loss therefore came within the exclusion clause set out in the petition. The petition was also demurred to specially. The trial judge overruled the demurrers, both general and special, and the exception is to the judgment.

Fulcher, Fulcher, Hagler & Harper, J. Walker Harper, Augusta, for plaintiff in error.

Harris, Chance, McCracken & Harrison, Henry T. Chance, Augusta, for defendant in error.

JORDAN, Judge.

1. If a person obtains possession of property of another by trick or fraud, or under false pretense of bailment, with intent to appropriate the property to his own use and the owner intends to part with possession only of the property, the possession is obtained unlawfully, and the subsequent appropriation in pursuance of the original intent is larceny. Great American Insurance Co. v. Gusman, 80 Ga.App. 471(1), 56 S.E.2d 319; Martin v. State, 123 Ga. 478, 51 S.E. 334; Kelley v. State, 24 Ga.App. 155(2), 100 S.E. 23; McNatt v. State, 27 Ga.App. 642(2), 109 S.E. 514; Kent v. State, 66 Ga.App. 147(1), 17 S.E.2d 301.

Clearly under the allegations of the instant petition, the appropriation of the plaintiff's automobile by the fraudulent conduct of the alleged thief was a loss caused by theft or larceny within the...