delivered the opinion of the Court.
Petitioner, Hall, owned a truck and trailer encumbered with a valid lien in favor of petitioner, North Ft. Worth State Bank. He procured the issuance by respondent of an insurance policy on the truck and trailer, with loss payable to the Bank as its interest might appear. Hall employed one Flowers to go with him to San Antonio, Texas, and drive the truck and trailеr to Ft. Worth. Hall had the trailer loaded with onions and left it where it was loaded with the key in the ignition lock. Hall then awakened Flowers, who was asleep in the car in which the two men hаd driven from Ft. Worth to San Antonio, and gave Flowers $100.00 to pay for the expenses of the trip and Flowers’ compensation; told Flowers the whereabouts of the loaded truck, аnd instructed him to drive this truck to a designated place in Ft. Worth where Hall was to receive the truck and its cargo. Flowers went to a cafe nearby for his lunch, and Hall left in his car for Uvalde. Hall has never seen Flowers, the truck or trailer, or its cargo again.
Hall filed suit in a district court in Ft. Worth on the insurance policy to recover the value of the truck аnd trailer, and upon a favorable jury verdict recovered judgment for $7,000, subject to the rights of the Bank, who had intervened
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in the suit asking that its lien be paid out of the proceeds from the judgment. Upon appeal, this judgment was reversed and remanded by the Court of Civil Appeals,
A reference to the policy shows that the only coverages for which premium was paid were E, F, and G. E and F are collision and fire respectively and only G applies to this case. There was no premium paid for comprehensive coverage D. Under coverage G the Company bound itsеlf “to pay for loss of our damage to the automobile, hereinafter called loss, caused by theft, larceny, robbery or pilferage * * Under the “Exclusions” contained in the policy is “(m) under coverage D, and G, to loss due to conversion, embezzlement or secretion by any person in lawful possession of the automobile under a bailment lease, conditional sale, mortgage or other encumbrance.” The jury found the truck and trailer were lost by theft, and that the theft was committed by Flowers, who was an employee of Hаll.
In construing the terms of the policy, we shall determine the everyday meaning of the words and in “common parlance” and “the usual and popular understanding of the terms” used. U. S. Ins. Co. v. Bоyer,
In defining “theft” the trial court had three paragraphs in its charge. The respondent objected only to the third paragraph of such charge, reading as follows:
“You are further instructed in connection with the definition *204 of theft as used in this charge that the temporary possession of an employee of an item of personal property belonging to his employer is not the possession as referred to in this charge when speaking of theft, but is mere custody, and is not such legal possession as will keeр a wrongful taking by an employee of property belonging to his employer from being theft, should the employee fraudulently appropriate the employer’s proрerty involved, and where all of the other elements of the definition of theft are present.”
This is the real issue in the case. If the possession by Flowers was such that the offense was embezzlement under Art. 1534, Vernon’s Texas Penal Code, then it must follow that the loss was not covered by the “theft” provision of the policy. Also, it would follow that that part of the court’s charge above set out was error, and the objection of respondent thereto should have been sustained.
We find in the decisions of the Court of Criminal Appeals a distinctiоn between “custody” and “possession” in regard to the offense of theft. This rule is a well recognized one, and is thus stated in that well known and generally accepted authority —Branсh’s Annotated Penal Code, as follows:
“Sec. 2473 — Theft by Clerk or Servant. If property is put in the custody of a servant by the master, his possession is not adverse to that of his master, and if, without the consent of the master and with the intent to deprive the master of the value of the property the servant fraudulently converts it to his own use, he is guilty of theft. Cobletz v. State,36 Texas 353 ; Livingston v. State, 38 Texas Criminal Rep. 535,43 S.W. 1008 ; Crook v. State,, 39 Texas Criminal Rep. 252,45 S.W. 720 ; Zysman v. State, 42 Texas Criminal Rep. 432,60 S.W. 669 .”
To the same effect is McGraw v. State,
In the case of Stein v. State,
We hold that there is evidence to sustain the jury finding that the truck was lost through theft and therefore was covered by the policy issued by respondent.
We agree with the Court of Civil Appeals’ holding that exclusions (m) and (o) do not сonstitute a defense to recovery by the petitioners.
Possession of the property, such as Flowers had, has been held to be mere “custody” under the theft statute, and not “рossession” adverse to the owner, as defined in the statute. For the trial court to give the third paragraph of the charge defining “theft” was not error.
Respondent relies upоn a number of authorities in states other than ours to sustain its position. We do not find that these authorities are in accord with the holding of our Texas courts.
Respondent also reliеs upon the following cases by the Courts of Civil Appeals — each of which show “no writ history.” These cases are as follows: Home Ins. Co. New York v. Brewton,
Looking to the brief of respondent in the Cоurt of Civil Appeals, we find an assignment of error to the action of the trial court in refusing respondent’s motion for new trial because of newly discovered evidence. The Cоurt of Civil Appeals not having passed upon this assignment it becomes our duty to do so. Driver v. Worth Construction Company,
We find no error in the judgment of the trial court. Therefore, the judgment of the Court of Civil Appeals is reversed and the judgment of the District Court is in all things affirmed.
Opinion delivered February 2, 1955.
Associate Justice Walker not sitting.
Rehearing overruled March 2, 1955.