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Action on insurance policy. Douglas Superior Court. Before Judge Foster.
FELTON, Chief Judge.
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.
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, the plaintiff could not recover under the policy of insurance. Simple larceny is the wrongful and fraudulent taking and carrying away, by any person, of the personal goods of another, with intent to steal the same. Code 26-2602. The other crimes named include stealing. The issue then is whether or not Hunt "intended" to steal the motorcycle. The evidence adduced at the trial indicates that Harris and Kinney concluded from statements made to them that Hunt desired to eliminate himself as a party in interest to the motorcycle and to the debt at the bank. Hunt's testimony is contradictory of theirs. The evidence is clear that Hunt did take the motorcycle and chain it in plain view to a tree in the front yard of his residence a mere block away from the point of taking. The police officer discovering the vehicle left the parties in statu quo and left the motorcycle chained to the tree. "If one, in good faith, takes the property of another, believing it to be legally his own, or that he has a legal right to its possession, he is not guilty of larceny." 36 C. J. 764, 105. Even though the claim of the taker is unfounded, he is not guilty of larceny due to the lack of felonious intent. Walker v. State, 86 Ga. App. 875 (72 S. E. 2d 774). While this is not a criminal case, the following principles of criminal law must bear on our decision. (a) The proceeds of the insurance contract are collectible only if there has been a "loss caused by theft, larceny, robbery or pilferage." (b) Intention to commit one of the specified crimes must be present. (c) Hunt must have possessed the intention or the jury must have determined by the evidence that he did intend to steal the motorcycle to justify their verdict. On the contrary, if the absence of intention to steal was demanded by the evidence it was not within the province of the jury to determine that that intention did exist. "When one takes property under a fair claim of right, it is not larceny." Causey v. State, 79 Ga. 564 (5 S. E. 121, 11 Am. St. Rep. 447). It is interesting to note in the Causey case in which Causey's conviction for larceny was reversed, that Causey had taken a bell, which he considered to belong to him, off of a milk wagon. The driver was absent from the wagon and Causey, who "seemed to desire it to be known and observed by all men," rang the bell for nearly a minute and before departing told a bystander to inform the driver that he had taken the bell. Hunt, who "seemed to desire it to be known and observed by all men" that he had a claim to and did take the motorcycle, chained it in open view. The circumstances of the nature of the taking by Hunt require the conclusion that there was no intent to steal, and the court erred in overruling the motion for a judgment notwithstanding the verdict.
Judgment reversed with direction. Nichols and Bell, JJ., concur.
Smith, Field, Ringel, Martin & Carr, Palmer H. Ansley, H. A. Stephens, Jr., Charles Drew, for plaintiff in error.
Friday May 22 23:46 EDT

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