South Carolina Ins. Co. v. Jackson
| Decision Date | 05 January 1961 |
| Docket Number | No. 1,No. 38576,38576,1 |
| Citation | 103 Ga.App. 3,117 S.E.2d 878 |
| Parties | SOUTH CAROLINA INSURANCE CO. v. C. W. JACKSON |
| Court | Georgia Court of Appeals |
Syllabus by the Court
An insured cannot recover from the insurer under a policy of insurance which provides that the loss of the subject property must be 'caused by theft, larceny, robbery or pilferage' where the property was taken under circumstances which exclude the idea of an intent to steal.
Carrol W. Jackson brought action in the Superior Court of Douglas County, Georgia, against South Carolina Insurance Co., seeking recovery for the face amount of an insurance policy insuring a motorcycle against theft. It appears from the evidence that the plaintiff purchased a motorcycle from one Kinney, Kinney having purchased it from one Harris who had purchased it from Hunt, the original purchaser. Hunt originally obtained insurance against theft of the motorcycle and the policy later was endorsed to reflect the change of the named insured to the plaintiff Jackson. The plaintiff alleged that on or about October 2, 1958, the motorcycle was stolen from the front yard of his residence. The policy provided that it was 'to pay for loss of or damage to the automobile, hereinafter called loss, caused by theft, larceny, robbery or pilferage.'
The evidence showed that Hunt, who first acquired the motorcycle, financed a portion of the purchase price through a bank, later sold his equity to Harris for $250, which, although it never was, was to be paid later and Harris was to assume the amount due the bank. After the motorcycle passed from Harris to Kinney to the plaintiff, the plaintiff satisfied the bank and paid Kinney for his equity. It appears from the evidence that it was at this time that the plaintiff first learned of Hunt's unsatisfied equity. On the night of the taking of the motorcycle it appears that Hunt, who lived but one block from the plaintiff, took possession of the motorcycle and chained it to a tree in his front yard. The investigating officer, who discovered the motorcycle, learned of the conflict of claims by the parties and took no action. The plaintiff filed claim under his policy and the defendant denied liability. Thereupon, the plaintiff brought action against the defendant, and the jury found in favor of the plaintiff in the amount of $500. The defendant filed a motion for a directed verdict, for judgment notwithstanding the verdict, and motion for a new trial upon the general grounds, together with two special grounds. The court overruled all of the motions made by the defendant and to these rulings the defendant excepts.
Smith, Field, Ringel, Martin & Carr, Palmer H. Ansley, H. A. Stephens, Jr., Atlanta, for plaintiff in error.
Murphy & Murphy, Thomas B. Murphy, Bremen, for defendant in error.
There is here only one question to be answered, i. e., whether the taking of the motorcycle covered by the policy of insurance was done by theft, larceny, robbery or pilferage under the terms of the insurance contract or whether it was taken under a claim of right by Hunt. Our interpretation of the policy is that if Hunt took the motorcycle with the intent to steal it, the plaintiff could recover. If Hunt did not so take the motorcycle, ...
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