Under the allegations of the petition, the appropriation of the plaintiff's automobiles 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 that judgment.
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 Ins. Co. v. Gusman, 80 Ga. App. 471 (1) (56 SE2d 319); Martin v. State, 123 Ga. 478 (51 SE 334); Kelley v. State, 24 Ga. App. 155 (2) (100 SE 23); McNatt v. State, 27 Ga. App. 642 (2) (109 SE 514); Kent v. State, 66 Ga. App. 147 (1) (17 SE2d 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 coverage of the instant policy, and was not among the risks excepted in the exclusion clause. Great American Ins. Co. v. Guzman, 80 Ga. App. 471
, supra; American Fire &c. Co. v. Barfield, 81 Ga. App. 887 (60 SE2d 383)
In these cases it was held that the provisions of exclusion clauses, substantially the same as the exclusion clause in the instant policy, in policies of automobile theft insurance, excepted from the risks covered the loss of an automobile due to conversion, embezzlement or secretion of the automobile by one who had acquired some interest in the property under a bailment lease, conditional sale, mortgage or other encumbrance.
The loss of the automobile in this case was not "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," as provided in the exclusion clause; for, under the allegations of the petition, the original taking was unlawful and constituted a theft or larceny (the terms theft and larceny being synonymous under the statutes of this State. Hartford Fire Ins. Co. v. Wimbish, 12 Ga. App. 712, 78 SE 265); and the alleged thief thereby acquired no interest in the automobile under the forged instrument.
The case of Hanover Fire Ins. Co. v. Scroggs, 92 Ga. App. 548 (88 SE2d 703)
, relied upon by the defendant insurance company, is clearly distinguishable from the instant case; for in that case, the exclusion clause in the policy under consideration excepted from the risks covered "loss resulting from either the insured voluntarily parting with title and possession of any automobile if induced so to do by any fraudulent scheme, trick, device, false pretense, or from embezzlement, conversion, secretion, theft, larceny, robbery or pilferage committed by any person including any employee, entrusted by the insured with either custody or possession of the automobile."
The petition therefore stated a cause of action, and the trial court did not err in overruling the general demurrers.
2. The allegation in paragraph 11 of the petition, charging the defendant with "fraudulent conduct" was a mere general allegation of fraud without specifying issuable facts constituting fraud, which "amounts to nothing" (Regenstein v. J. Regenstein Co., 213 Ga. 157
, 161, 97 SE2d 693
;) and the trial court erred in overruling the fourth ground of the defendant's demurrers, which demurred specially to said allegation. The remaining ground of the special demurrers was with out merit.
Judgment affirmed in part and reversed in part. Nichols, P. J., and Frankum, J., concur.