Slomowitz v. Un. Ins. Co., Ltd.

Argued March 7, 1927. The defendant insured an automobile belonging to the plaintiff. The policy contained a clause covering loss or damage by reason of theft, robbery, or pilferage, excepting by a person in the assured's household, or in his service or employment. The plaintiff had three cars which he kept in a garage owned by Howell Davis; one of these, a National Roadster covered by the insurance policy, was taken from the garage on a night in November, 1923, by Edward Klein, and driven by him to a remote part of the City of Wilkes-Barre on the mountain side, where the car collided with a post and a wall, as a result of which it was badly damaged. Klein abandoned the car and, as claimed by the plaintiff, did not notify him or his family of his possession of the car, or of its condition or whereabouts. It was found that night or the next day by persons living near the place where it was left and was subsequently recovered by the owner. As stated by the plaintiff Klein had been in his service for about three months as a driver of another car used by the family. The roadster was used by the plaintiff and generally driven by him. The evidence in support of the action shows that Klein had been discharged some weeks before the car was taken, and that he had not permission while he was working for the plaintiff, nor after his discharge, to take the car from the garage or to use it. The defense was that Klein was at the time in the service of the plaintiff, and that he had permission from the latter to take the car from the garage. He gave an account of his movements up to the time when the collision occurred. He was corroborated in part by a man employed by Davis as a night watchman at the garage who said he had instructions to permit Klein to take the car. The court instructed the jury that if they were satisfied from the preponderance of the evidence that Klein took the car feloniously and with an intent to convert it to his own use, the plaintiff was entitled to recover; and that on the other hand, if the owner gave his consent to Klein to take the car out, the verdict should be for the defendant. The first inquiry to be answered was whether Klein was in the employ of the plaintiff when the car was taken. If so, the action could not be maintained. If he had been discharged before the taking of the car, then the jury was instructed to ascertain from the evidence and the circumstances attending the taking whether the intention of Klein was to take the property for the purpose of depriving the owner of it and applying it to his own use. The evidence was reviewed at length and the attention of the jury directed to the relevant facts disclosed. The amount claimed by the plaintiff was the expense to which he was subjected in repairing the car. The defendant asked for binding instructions on the ground that there was no evidence of larceny. There was also contention in regard to the amount of damage, and the admissibility of evidence relating thereto. The appellant's position is that evidence of larceny does not exist in the case and that the court should have so instructed the jury. It is to be observed that the same degree of evidence is not necessary in sustaining an action on a contract of this character which is required in the trial of a criminal case in the Court of Quarter Sessions. In the latter court as is well understood the evidence must satisfy the jury beyond reasonable doubt. Here the burden is on the plaintiff to convince the jury by the preponderance of evidence that there was an intent to steal. It is not necessary that there should have been a final conversion of the property. The fraudulent depriving of the owner of the use of a chattel may be evidence of a felonious intent although the property is abandoned by the taker. In State v. Davis, 38 N.J. Law 176, the defendant was indicted for the larceny of a horse and carriage which he took from the roadside and drove recklessly on the highway for a distance, after which he abandoned the property. In which case it was held that the evidence was sufficient to support a prosecution for larceny at common law. In Brennan v. Commonwealth, 169 Ky. 815, the defendant took possession of an automobile on the street, and with some companions drove it for a distance and abandoned it on the highway. This was held to be evidence of larceny. In Price v. Royal Insurance Co., 204 Pacific Rep. 803 (Washington), it was held that an intent to steal could be inferred where the property was taken and converted for a short time. The question we are considering arose in Weir v. Central National Fire Insurance Co., 189 Northwestern Rep. 794 (Iowa), where it was held that the removal of an automobile at night from a garage without the knowledge or consent of the owner or anyone authorized to permit it, raised a presumption of larceny. That this presumption may arise from circumstantial evidence is well settled: Kansas City Regal Auto Co. v. Old Colony Insurance Company, 174 Southwestern Rep. 153, (Missouri); Miller v. Bond Insurance Co., 247 Pa. 182; State v. Davis, supra. All of the allegations tending to show the permission of the plaintiff to Klein to use the car were contradicted unequivocally, as were other allegations made by him as to his movements the afternoon preceding the night when the car was taken. As it is admitted that Klein took the car and used it for a time, and there is direct evidence that this was done fraudulently and without the owner's knowledge or consent, the question whether it was done animo, furandi was one for consideration by the jury, and the court was not in error in refusing to give binding instructions for the defendant. The jury evidently declined to credit the testimony of Klein and Bloom as to permission to take the car, and this was justifiable if they believed the plaintiff. The explanation of Klein as to his use of the car at the time and his presence and abandonment of it at the place where it was afterward found, was evidently not satisfactory to the jury; it had the appearance of fabrication to relieve him from misconduct.

The objection to the evidence received with respect to the cost of repair of the automobile cannot be sustained. Nor do we regard the other assignments as meritorious. The trial judge carefully reviewed the trial in his opinion on the motion for binding instructions and for a new trial. We are not convinced that error appears in the record which would support a reversal.

The judgment is affirmed.