Hartford Fire Insurance Company v. Lewis., 112 Ga. App. 1, 143 S.E.2d 556 (1965)

Status: ARGUED

Docket Number: 41259

Parts: Action on insurance policy. Monroe Superior Cou...

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Summary

Judgment affirmed. Felton, C. J., Frankum, Russell and Pannell, JJ., concur. Jordan and Hall, JJ., concur as to Division 1 and 3 only. Bell, P. J., and Eberhardt, J., dissent.

Summary

Judgment affirmed. Felton, C. J., Frankum, Russell and Pannell, JJ., concur. Jordan and Hall, JJ., concur as to Division 1 and 3 only. Bell, P. J., and Eberhardt, J., dissent.

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Harold G. Clarke, contra.Harris, Russell & Watkins, H. D. Russell, W. B. Mitchell, for plaintiff in error.

The evidence authorized the verdict and the trial court did not err in overruling the defendant's amended motion for new trial for any reason assigned.

Harold Lewis sued Hartford Fire Insurance Company to recover upon a policy of automobile insurance covering loss by theft. The defendant insurance company defended upon the ground that an agent of a corporation took the automobile under a bona fide claim of title and was not guilty of taking such automobile with an intent to steal. On the trial of the case the jury returned a verdict for the plaintiff for the value of the automobile plus the penalty and attorney's fees provided for in Code Ann. 56-1206. Thereafter, the trial court overruled the defendant's amended motion for new trial and it is to such adverse judgment that the defendant now excepts.

1. The evidence showed that the plaintiff had purchased the automobile in question from a used car dealer who had in turn purchased it from another dealer at an auction. The selling dealer at the auction had purchased the automobile from Don McCullagh Leasing Company under an oral agreement whereby title was to remain in the seller until the purchaser's check cleared the bank (the title was attached to such check and was to be delivered to the purchaser when the check was paid). Shortly after the above transaction took place an employee or agent of Don McCullagh Leasing Company went to Toccoa, Ga., where the original purchaser was located, to either repossess the automobile or collect the purchase price. When he found that the original purchaser did not have the necessary funds to pay for the automobile and that it had been sold, he found out the identity of the ultimate purchaser, the plaintiff, and without contacting the plaintiff personally he removed the automobile from the plaintiff's premises at 3:30 a.m., with keys he made before leaving Detroit, and drove the automobile back to Detroit. The agent or employee of Don McCullagh Leasing Company testified for the defendant insurance company by deposition, and on cross examination testified that he found out from the county records and from information obtained from "Western Auto" the identity of the purchaser of the automobile, that he contacted the police but did not tell them his purpose, that he went by the plaintiff's home in daylight hours but did not attempt to contact the plaintiff personally and that he waited until 3:30 a.m., when everyone was sleeping, to pick up the automobile so that he could get it with "as least problems as possible," that he wanted to obtain possession peacefully.

In South Carolina Ins. Co. v. Jackson, 103 Ga. App. 3 (117 SE2d 878), relied upon by the insurance company, it was held that where property is taken under a fair claim of right it is not larceny. In that case the "taker" placed the property taken on his front yard a block from the place where it was taken in "plain view." In support of such decision, cases were cited where the taker "seemed to desire it to be known and observed by all men" that he had the property.

In the case sub judice the "taker seemed to desire that no man see him take the property and that no one know who took the property," the very opposite from the situation in cases relied upon by the insurance company. The evidence authorized the verdict finding that the automobile was stolen within the terms of the policy. Accordingly, the trial court did not err in overruling the usual general grounds of the defendant's motion for new trial. Special ground 1, being a mere amplification of the usual general grounds, was likewise properly overruled.

2. Error is assigned upon the charge authorizing the jury to consider whether the insurance company had been guilty of the bad faith referred to in Code Ann. 56-1206 so as to authorize the award of attorney's fees and penalty.

The defendant insurance company relies upon cases holding that if the question of liability is a close one, the courts, for the furtherance of justice should see to it that verdicts which illegally carry a penalty for bad faith are not allowed to stand. While, under such circumstances, where the question of liability is close or the facts are in dispute, so that the insurer has reasonable grounds to contest the claim, no penalty should be permitted, yet where as here the automobile was taken in the early hours of the morning by one who admitted that he purposely waited until everyone was asleep so that he could take the car with keys he had made before coming to Georgia, and the automobile was immediately, under cover of night, taken from the State of Georgia, the evidence authorized the jury to consider whether the refusal to pay was in bad faith notwithstanding the insurer's claim that the automobile was taken under a claim of right. The jury was authorized to find that the circumstances of the taking spoke louder than the taker's words as to his intent, and that the insurer had no reasonable or probable cause to believe that the automobile was not in fact stolen. The trial court did not err in overruling special ground 2 of the amended motion for new trial.

3. The sole remaining special ground of the amended motion for new trial complains of an excerpt from the court's charge which, when considered with the entire charge, shows no reversible error.

The trial court did not err in overruling the defendant's motion for new trial for any reason assigned.

JORDAN, Judge, concurring specially. 1. The dissenting opinion in effect says that a person who "thinks" or is "advised" that he has title to personal property may summarily recover it where found, under any conditions and circumstances, he being protected because he is acting under a "claim of right." I think this conclusion is error under the facts of this case.

In this case the car was located in the possession of an innocent purchaser for value, the car having been sold to him through regular channels of trade. Such was known to the agent of McCullagh, who must know under such circumstances that the plaintiff would also have a claim to title. Indeed it must be assumed that he knew that the sale of the car to the plaintiff under the facts of this case divested his principal of title thereto. Cook Motor Co. v. Richardson, 103 Ga. App. 129 (118 SE2d 502) and authorities therein cited. With such knowledge, and abandoning the legal remedy available to test the title, McCullagh's agent chose instead to steal upon the plaintiff's premises under the cloak of darkness in the early morning hours and drive the car away. All the elements of theft were thus present, including the intent to deprive plaintiff of possession of his property. By taking the car in this manner, the agent waived any bona fide claim of right his principal might have had and in effect "took the law in his own hands."

The dissent states that the result reached therein "does not leave the plaintiff without remedy," and that if he in fact has title to the car he can institute that proper action to recover it or its value. If such be true, can he abandon his legal remedy, proceed to Michigan and take the car under the circumstances whereby it was taken from him? I think not, though the dissent approved such action on the part of McCullagh's agent because he was acting under a "claim of right."

2. I agree with Division 2 of the dissent dealing with penalty and attorney's fees. The facts here are certainly such that reasonable minds might differ as to whether there was coverage, and under such conditions the insurance company must be free to make a defense.

I would affirm on condition that the penalty and attorney's fees be written off, otherwise reverse.

EBERHARDT, Judge, dissenting. If, agreeably to the law as I find and understand it to be, we could join in the affirming of this judgment we would do so. Our sympathies are with the insured who, for reasons not attributable to himself, lost an automobile which he felt quite confidently was insured under a theft policy issued to him by Hartford Fire Insurance Company. The facts make a strong moral case for the plaintiff, but this is a court of law and not of morals. The question, then, is whether the loss of the car, under the circumstances shown, was a "theft" within the terms of the policy. If it was, recovery for the value of the car was proper, but if not it was not within the coverage of the contract and no recovery was authorized.

1. What is a theft, within the meaning of the policy? What are the essential ingredients? What must be shown by the insured, and what may appear in defense? "Where a policy of insurance indemnifies an owner of an automobile against loss or damage occasioned 'by theft, robbery or pilferage,' the owner can not under this clause of the policy recover for damage to a machine which had been taken by another and used without the consent of the owner, but without any intent to steal. At common law, and under the statutes of this State, 'theft' is synonymous with 'larceny.' The word 'robbery' as used in the contract sued on, should be given the meaning set forth in the Penal Code of this State. 'Pilferage' is petty larceny. The intent to steal is a necessary ingredient in all three offenses." Hartford Fire Ins. Co. v. Wimbish, 103 Ga. App. 3, 6 (117 SE2d 878), and see Gunn v. Globe &c. Fire Ins. Co., 111 Ga. App. 221 (141 SE2d 216).The Governor, or his designees, is authorized to negotiate reciprocal agreements with other States whereby titles issued under their title certificate laws will be recognized in Georgia and vice versa. Code Ann. 68-1001. Whether this was accomplished with Michigan does not appear from this record. But in any event, the Motor Vehicle Title Certificate Act of 1961 specifically applies only to 1963 and subsequent model vehicles. Code Ann. 68-406a. The vehicle here involved was a 1962 model.

It must be obvious that in giving the advice that title and ownership remained in Don McCullagh Leasing the attorney had some basis for his opinion and the credit manager, Kellar, who came to Georgia to get the car, had basis for relying upon it. If in fact the title and ownership did remain in Don McCullagh Leasing, it follows as a matter of law that there could have been no intent to steal on Kellar's part when he took it, for one can have no intent to steal that to which he has title and right of possession. Walker v. State, 86 Ga. App. 875, 879 (72 SE2d 774). Kellar was acting, of course, for the corporation--his employer, and as soon as he got back to Detroit with the car delivered it over to it. It does not appear whether the attorney may have been in possession of information which would indicate that Hill obtained possession of the car by artifice, trick or fraud of a kind amounting to larceny so that title did not pass to him under C. L. Fain Co. v. Baltimore Ins. Co., 81 Ga. App. 105 (57 SE2d 879), Hewitt v. Malone, 105 Ga. App. 281 (124 SE2d 501) and Winton v. Butler, 102 Ga. App. 536 (117 SE2d 224).

But even if the attorney was mistaken in his advice that title and ownership remained in Don McCullagh Leasing and it should appear that title in fact passed to Wright when Hill sold the car at the auction, under Capital Automobile Co. v. Ward, 96 Ga. App. 279 (99 SE2d 711), and Cook Motor Co. v. Richardson, 103 Ga. App. 129 (118 SE2d 502), the element of intent to steal, or animus furandi, is nevertheless absent, for Kellar took the car under a claim of right. "To take another's property under a bona fide claim of right is a trespass; but it is not larceny, however unfounded the claim may be in law." Lee v. State, 103 Ga. App. 3, 5, supra. "Where one takes property under a fair claim of right, it is not larceny." Causey v. State, 220 Ga. 323 (138 SE2d 668).

It is beyond any peradventure that under the facts in this case there was at least a jury question presented as to whether an intent to steal was shown. "The question of intent should have been submitted to the jury," even where it did not appear that the vehicle was taken under either title or claim of right. Hartford Fire Ins. Co. v. Wimbish, 105 Ga. App. 746 (3) (125 SE2d 709)." American Cas. Co. v. Seckinger, 108 Ga. App. 262 (5) (132 SE2d 794). "The jury are not authorized to find that the refusal to pay was in bad faith merely because in their opinion the company ought to have paid the claim." Georgia Life Ins. Co. v. McCranie, 217 Ga. 206, 213 (220 Ga. 323, 326, supra.

By holding, as they do, that the evidence merely authorized the jury to find that the automobile was stolen, the majority opinion necessarily concedes that reasonable minds could differ on this question; yet, at the same time they would refuse the insurer the right to go to the jury on this very question. They penalize it for doing so

The burden is on the insured to show that the refusal to pay was in bad faith, Life & Cas. Ins. Co. v. Freemon, 105 Ga. App. 746, 747, supra. That burden was not carried in this case. The charge of bad faith cast no burden on the defendant to show good faith, Interstate Life &c. Ins. Co. v. Williamson, 220 Ga. 323, 326, supra, though it was amply demonstrated by defendant's evidence.

It is beyond our understanding how those of our brothers in the majority opinion who give approval to the award of penalty and attorney's fees can so cavalierly ignore the cases cited in this division of our dissent. We can only conclude that the task of distinguishing is too much for them and that any suggestion of overruling is forestalled by the decisions of the Supreme Court.

Bell, P. J., concurs in this dissent; Jordan and Hall, JJ., concur in the second division of it.

ON MOTION FOR REHEARING.

The insurance company, in its motion for rehearing, strongly urges that the testimony of the person taking the automobile as to his intent "not to steal" it, together with the advice he obtained from his employer's attorney as to the title to such automobile demanded a finding that there was no intent to steal and therefore no theft under the provisions of the insurance contract.

The testimony of the employee of Don McCullagh Leasing Company as to his good faith (intent) was admissible, but as was held in Royce & Co. v. Gazan, 211 Ga. 350, 354 (86 SE2d 227), and citations. "It is well settled that circumstantial evidence may sometimes outweigh positive testimony." Minter v. Kent, 98 Ga. App. 565, 566 (106 SE2d 358). As was held by the Supreme Court in Bowie & Co. v. Maddox & Goldsmith, 94 Ga. App. 83, 85 (93 SE2d 779), and citations. Under all the circumstances in the case the jury could have determined that the employee of Don McCullagh Leasing Company knew of the above law in Georgia, thus explaining his reasons for taking the automobile under the circumstances as shown above. Again, the circumstantial evidence can speak louder than the direct evidence.

The contention that the plaintiff could recover from Don McCullagh Leasing Company is not a proper defense since in every case where property is stolen, if located, it can be recovered in trover. The insured, in order to recover, must show the theft, but he is not required to show in addition that he cannot locate the thief or the whereabouts of the stolen property. Nor is the contention that the plaintiff could recover from the dealer from whom he purchased the automobile any defense, or any reason why the plaintiff should not recover, since the plaintiff obtained a title good against the world from such dealer. On what ground would he sue? To ask the question is to answer it.

Motion for rehearing denied.

1965

Notes:

1. This appears to be the situation in all States where the uniform Motor Vehicle Title Certificate Law has been adopted. See 37 Mich. L.R. 758. There can be no authority, "apparent" or otherwise, to sell or transfer title to any vehicle subject to its terms except by a transfer of the title certificate.