Lower Main St. Bk. v. Caledonian Ins. Co.

This is an action upon a policy of insurance issued by the defendant to L.T. Lester, Jr., dated April 22, 1924, insuring an automobile in the sum of $1,650 against loss by theft or fire. The plaintiff Lester had mortgaged the automobile to his coplaintiff, the bank, to secure a note due to it, and the insurance policy, without a loss payable clause, was delivered by Lester to the bank; hence its connection with this case.

At the hearing of this appeal, it was admitted in open Court, by counsel for the respective parties, that the automobile was stolen by a man named Gore, from the garage of Lester, driven to Atlanta; and later found upon a bridge, about 12 miles east of Atlanta, destroyed by fire; and that the sole question in the case was whether any other reasonable inference could be drawn from the evidence than that Gore was, at the time of the theft, a servant or employee of the insured, so as to bring the case within the provision of the policy excepting "theft * * * by any person or persons * * * in the assured's service or employment, whether such theft * * * occurred during the hours of such employment or not."

Upon the trial in the County Court, counsel for the plaintiffs made the following admission:

"If Gore was a thief, then the fire provision does not apply, and the theft provision would have to apply, because the only time the fire provision does not apply is when the theft provision applies" — an admission which was entirely justified under the law and under the provisions of the policy.

The case was tried by his Honor, Judge Whaley, of the Richland County Court, and a jury on December 16, 1924. At the close of the evidence, the defendant moved for a directed verdict upon the ground that the evidence shows that the theft of the automobile was committed by Gore, an employee of the insured, and was within the exception contained in the policy above set forth. The motion was overruled, and the jury returned a verdict in favor of the plaintiffs for the full amount claimed, $1,650, with interest from July 4, 1924, 60 days after the theft. The defendant has appealed upon the single assignment of error, the refusal of its motion to direct a verdict.

The question of the company's liability for the destruction of the automobile by fire having been eliminated, the sole question in the case is whether the trial Judge should have granted the defendant's motion for a directed verdict upon the ground above stated.

It is unquestionably true that Lester actually employed Gore. He claims that he employed him as president and manager of a corporation, the Ideal Theater Corporation, and that consequently Gore was not in his "service or employment"; and that Gore "worked there for the Ideal, also for the Rivoli, a corporation, and also for my wife's theater, the Rialto, and also the Royal, run by a corporation. When I took charge his salary was $60 per week and he got $25 from the Ideal. We divided up his salary among the theaters." It thus appears that Gore was employed by Lester to work at four different theaters, three corporations and Mrs. Lester. As to the Ideal Theater Corporation, Lester states: "I ran and controlled it and could fire and hire anyone there."

It does not appear that Lester made any communication to Gore indicating that Gore was to work for four distinct undisclosed principals of Lester, and under the familiar principle, in such cases, Lester was personally responsible upon his contract of employment with Gore. Tiffany, Agency, 273. Davenport v. Riley, 2 McCord, 198. Conyersv. Magrath, 4 McCord, 392. Long v. McKissick, 50 S.C. 218;27 S.E., 636. Jones v. Parker, 81 S.C. 214;62 S.E., 261. Lanham v. Jennings, 122 S.C. 461;113 S.E., 791. According then to his own statement, he had the right to "hire and fire" Gore; he actually employed him; he did not disclose the principals for whom he claims to have been acting. In addition, he declared, "It could be said that I was a theater owner"; he reported to a detective agency shortly after the theft, in his own handwriting, that he was a "theater owner"; he published an advertisement in the State Newspaper that the theaters "were owned and operated by a citizen of Columbia" (himself); referred to them as "Lester's Theaters"; and the policy sued upon contains the statement that he was "proprietor of the Ideal and Rivoli Theaters."

Considering, too, the prospective purpose of making the exception contained in the policy, the Court should not indulge in too strict a construction of the words used. In the case of Rydstrom v. Ins. Co., 137 Md., 349; 112 A., 586; 14 A.L.R., 212, it is said:

"The object and purpose of an exception like the one we are here dealing with in this policy was to guard the company against liability for such thefts as we have in this case, and to prevent fraud and collusion by and between the assured and persons in a household or in the assured's services or employment."

Would the risk to the company from the thefts of Gore be less if Lester employed him for the company owned and controlled by him, with the power to "hire and fire," than if an individual employment had been made?

In the case of Schmid v. Health, 173 Ill. App. 649, cited by counsel for the respondent, it is very clearly intimated that if the employee had been under the contract and direction of the agent employing him he would have been considered as the employee of such agent.

The charge of his Honor, Judge Whaley, upon the effect of the warranty in the policy is entirely satisfactory to the Court. Let the charge be reported.

While there was error in not directing a verdict for the defendant, it appears that the delinquency is rather a deficiency of evidence than otherwise, and substantial justice will be attained by reversing the judgment and remanding the case for a new trial.

So ordered.

MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concurs.