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Action on insurance policy. Before Judge Etheridge. Fulton Civil Court. March 29, 1957.
The trial court did not err in overruling the demurrers to the plaintiff's amended petition.
Frank V. Ashbaugh brought an action against Great American Indemnity Company to recover on an insurance policy for the loss of his automobile by theft. The petition, in addition to the allegations of jurisdiction, amount of loss, issuance of the policy covering the automobile allegedly stolen, payment of the premiums on the policy, prayers for process and service, etc., alleged: that on or about September 12, 1956 the plaintiff suffered a theft loss of his said automobile in that one Carl Gaddis took the said car, intending at the time to deprive plaintiff of it permanently, that on discovery of said theft loss, that the following coverage was afforded the plaintiff under comprehensive loss under the policy, "Coverage D--Comprehensive loss of or damage to automobile, except by collison or upset. To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, except loss caused by collision of the automobile with another object or by upset of the automobile or by collision of the automobile with a vehicle to which it is attached. Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, malicious mischief, or vandalism, riot or civil commotion shall not be deemed loss caused by upset.' that the plaintiff has complied with all terms of the policy, and that the defendant has denied coverage of petitioner's claim and refused to pay the same; that the aforementioned person, Carl Gaddis, has pleaded guilty to a criminal charge of the wrongful taking and theft of petitioner's vehicle, and was found guilty by one of the Judges of Fulton Superior Court, and sentenced to serve ten years for said crime, and that the said Carl Gaddis not only caused a theft loss to petitioner, but during a period of approximately five or six months, caused thirty-five others "to suffer theft losses also." It was also alleged that there was attached to the petition and made a part thereof, "the criminal charge and allied papers against Carl O. Gaddis, defendant in the criminal action referred to, showing that he plead guilty to the crime alleged to have been committed by him in connection with the plaintiff's automobile." The exhibit showed that the said Carl O. Gaddis was indicted, and pleaded guilty to four counts of "larceny after trust," including the following count thereof: "And the grand jurors aforesaid, on their oaths aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse Carl O. Gaddis with the offense of larceny after trust, for the said accused, in the County of Fulton, State of Georgia, on the 14th day of September, 1956, with force and arms, having been then and there entrusted by F. V. Ashbaugh with one Chrysler sedan automobile of the value of $3,250 and the property of the said F. B. [sic] Ashbaugh, for the purpose of selling the same and paying the proceeds of such sale to the said F. B. [sic] Ashbaugh, did after having been so entrusted, and after having sold the said automobile, wrongfully, fraudulently and feloniously convert the proceeds of said sale to his own use; contrary to the laws of said State, the good order, peace and dignity thereof."
The defendant's demurrers to the petition as finally amended were overruled and it excepts.
1. The defendant contends that construing the allegations of the petition most strongly against the plaintiff, as must be done on general demurrer, it fails to set forth a cause of action.
One of the defendant's contentions is that since the indictment attached to the petition as an exhibit shows a bailment of the automobile and since the policy expressly excludes coverage if the automobile is subject to a "bailment lease" that there is no liability on the policy. No Georgia case has been found expressly construing the term "bailment lease", but it appears to have only one meaning which is: "An approved and legal method by which one, desiring to purchase an article of personal property, but unable to pay for it at the time, may secure possession of it, with the right to use and enjoy it as long as he pays the stipulated 'rental,' and the further right to become the absolute owner, on completing the installment payments called for in the lease, by payment of an additional sum, which may be nominal in amount." 8 C. J. S. 220, 111. The plaintiff's automobile was not, according to the allegations of the petition, subject to a "bailment lease," therefore, this contention of the defendant is without merit.
The defendant also contends that since the indictment attached to the petition as an exhibit shows that Carl Gaddis was charged with, and pleaded guilty to larceny after trust, the policy does not cover the plaintiff's loss inasmuch as no coverage was offered the plaintiff for larceny after trust. In American Fire & Cas. Co. v. Barfield, 81 Ga. App. 887, 892 (60 S. E. 2d 383), it was said: "The word 'theft' in the insurance policy is sufficiently broad to cover both simple larceny and larceny after trust, and the fact that the offense committed by . . . [Gaddis] might be larceny after trust rather than simple larceny would have no bearing upon the liability of the defendant."
Therefore, the contention that the petition fails to set forth a cause of action because it shows that the theft committed may have been larceny after trust rather than larceny is without merit, and the contention that the loss, if by larceny after trust, is not a direct and accidental loss is without merit. Accordingly, it was not error to overrule the general demurrer.
2. The remaining grounds of the defendant's demurrers attack the allegations of the petition which deal with the criminal charge brought against Gaddis and his plea of guilty thereto. After careful consideration, it does not appear that the trial court erred in overruling these grounds of demurrer.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.
Rex T. Reeves, contra.
T. J. Long, Ben Weinberg, Jr., for plaintiff in error.
Saturday May 23 01:47 EDT

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