49 N.C. App. 408 | N.C. Ct. App. | 1980
The judgment of the trial court included inter alia the following finding of fact: “13. The International tractor and Brown trailer were stolen between February 4,1977 and April 27, 1977 by an unknown person or persons.”
Defendant argues on appeal that the evidence did not support the above quoted finding of fact. We agree. Plaintiff presented the testimony of three witnesses: Strickland, the owner of the truck; Jack Roger Westmoreland, an independent insurance adjuster who investigated the alleged theft for defendant; and Charlie David Bennett, manager of plaintiffs Installment Loan Department in Goldsboro.
Strickland testified that on the 2nd or 3rd of February 1977, he was hauling a load of potatoes from Mars Hill, Maine to Baltimore, Maryland. It was snowing heavily at the time and the temperature was down to about sixty degrees below zero. The truck engine blew up outside of Mars Hill, about two miles from Smith’s Truck Stop, at about six or seven o’clock. Strickland called a wrecker and had the unit towed to Smith’s Truck Stop where he requested and was given permission to park the
Westmoreland testified that he was employed on 21 April 1977 to investigate the loss. He went to Smith’s Truck Stop in Mars Hill, Maine, and to Presque Isle, Maine, but he did not find the tractor or the trailer. As a result of his investigation, he recommended that defendant deny the claim. From his investigation, he could not find any evidence of a theft loss.
Bennett testified that he learned of the loss of the tractor-trailer in February of 1977 and reported it to defendant sometime in April 1977. Bennett identified and testified as to a complaint filed by plaintiff in July 1977 in a bankruptcy proceeding instituted by Strickland, in which plaintiff sought to have Strickland’s truck loan debt to plaintiff declared non-dischargeable. Plaintiff, in its complaint, alleged that Strickland either knew of the whereabouts of the vehicle or that in the alternative, he had abandoned it. Plaintiff further alleged that Strickland never reported the loss of the vehicle to defendant or to the police.
The policy provision as to theft is as follows: “Coverage D - Theft (Broad Form) To pay for loss or damage to the automobile, hereinafter called loss, caused by theft, larceny, robbery, or pilferage.”
This appears to be a case of first impression before our courts. Defendant cites Auto Co. v. Insurance Co., 239 N.C. 416, 80 S.E. 2d 35 (1954) and Adler v. Insurance Co., 280 N.C. 146, 185 S.E. 2d 144 (1971) as being instructive. The facts in Auto Co.
Larceny, according to the common-law meaning of the term, may be defined as the felonious taking by trespass and carrying away by any person of the goods or personal property of another, without the latter’s consent and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker’s own use.
Auto Co. v. Insurance Co., supra, at 418, 80 S.E. 2d at 37.
We do not find Auto Co. apposite here. In Auto Co. the taking was only temporary and no intent on the part of the “taker” to deprive the insured of its property was demonstrated. Neither was there any showing in Auto Co. of an act, or of acts, of abandonment of the vehicle by the insured.
For different reasons, we find Adler inapposite here. Adler involved the mysterious disappearance of two diamond rings from the insured’s home. Not only was there no evidence of abandonment, but the physical dimensions of the missing items made them susceptible to being mislaid or lost.
We have examined cases from other jurisdictions and have found no case having factual circumstances analogous to those here. What distinguishes this case is the extraordinary behavior of Strickland, the owner of the rig. His testimony shows that he was self-employed and engaged in trucking for a living. He testified that he had been in business for better than twenty
Plaintiffs evidence, taken in the light most favorable to it, shows at best a permanent abandonment of the insured property by its owner under circumstances such as to leave the ultimate fate of the property in the realm of pure speculation.
We hold that plaintiffs evidence does not raise an inference of theft as the more reasonable hypothesis for the loss of the insured property, and that the evidence does not support the trial judge’s disputed finding of fact upon which judgment for plaintiff was predicated. Under such circumstances, the judgment of the trial court cannot stand. Morse v. Curtis, 276 N.C. 371, 172 S.E. 2d 495 (1970).
Our holding on the issue of theft makes it unnecessary for us to reach defendant’s other assignments of error.
Reversed.