133 S.E. 553 | S.C. | 1926
Lead Opinion
June 9, 1926. The opinion of the Court was delivered by L.T. Lester, Jr., as owner of an automobile, and Lower Main Street Bank, as the holder of a mortgage covering the automobile, as plaintiffs, brought suit against the defendant *159 on a policy insuring the automobile against theft and fire. The defendant set up the defense that the policy of insurance, involved in the action, contained the provision excepting "theft * * * by any person or persons * * * in the assured's service or employment, whether such theft * * * occurred during the hours of such employment or not," and denied that the property insured was stolen by any one not in the employ of the plaintiff Lester, and further denied that the loss of the property was covered by the policy of insurance. The trial of the cause was in the County Court of Richland County. There was a motion on the part of the defendant for a directed verdict in its favor, on the ground that the evidence was conclusive that an employee of Lester, one of the plaintiffs, stole the property in question, and that the theft by such employee was a risk not assumed by the defendant under the terms of the policy. This motion was refused. The verdict of the jury was in favor of the plaintiffs for the full amount claimed in their complaint. From the verdict and the judgment entered thereupon, the defendant has appealed. The sole ground of appeal is that the County Judge erred in overruling the motion for a directed verdict.
The testimony of the plaintiff Lester, as shown in the record which comes to this Court, discloses the fact that at various times he said things and did things tending to establish that the car was stolen by his employee, but in his testimony he also said that Gore was an employee of a corporation by which Lester was also employed. The well-established rule in this State is that if there is any testimony whatever to go to the jury on an issue involved in a cause, or even if more than one inference can be drawn from the testimony, then it is the duty of the Judge to submit the cause to the jury. This is true, even if witnesses for the plaintiff contradict each other, or if a witness himself in his testimony makes conflicting statements. The credibility of witnesses is entirely for the jury. On a motion for a directed verdict, the evidence in the cause *160
must be considered most favorably to the plaintiff. Andersonv. Hampton Branchville Railroad Lumber Co.
(S.C.),
The exception is overruled, and the judgment of the County Court of Richland County is affirmed.
MESSRS. JUSTICES WATTS and STABLER concur.
MR. JUSTICE COTHRAN and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY dissent.
MR. CHIEF JUSTICE GARY did not participate.
Dissenting Opinion
This is an action upon a policy of insurance issued by the defendant to L.T. Lester, Jr., dated April 22, 1924, insuring an automobile in the sum of $1,650 against loss by theft or fire. The plaintiff Lester had mortgaged the automobile to his coplaintiff, the bank, to secure a note due to it, and the insurance policy, without a loss payable clause, was delivered by Lester to the bank; hence its connection with this case.
At the hearing of this appeal, it was admitted in open Court, by counsel for the respective parties, that the automobile was stolen by a man named Gore, from the garage of Lester, driven to Atlanta; and later found upon a bridge, about 12 miles east of Atlanta, destroyed by fire; and that the sole question in the case was whether any other reasonable inference could be drawn from the evidence than that Gore was, at the time of the theft, a servant or employee of the insured, so as to bring the case within the provision of the policy excepting "theft * * * by any person or persons * * * in the assured's service or employment, whether such theft * * * occurred during the hours of such employment or not."
Upon the trial in the County Court, counsel for the plaintiffs made the following admission:
"If Gore was a thief, then the fire provision does not apply, and the theft provision would have to apply, because *161 the only time the fire provision does not apply is when the theft provision applies" — an admission which was entirely justified under the law and under the provisions of the policy.
The case was tried by his Honor, Judge Whaley, of the Richland County Court, and a jury on December 16, 1924. At the close of the evidence, the defendant moved for a directed verdict upon the ground that the evidence shows that the theft of the automobile was committed by Gore, an employee of the insured, and was within the exception contained in the policy above set forth. The motion was overruled, and the jury returned a verdict in favor of the plaintiffs for the full amount claimed, $1,650, with interest from July 4, 1924, 60 days after the theft. The defendant has appealed upon the single assignment of error, the refusal of its motion to direct a verdict.
The question of the company's liability for the destruction of the automobile by fire having been eliminated, the sole question in the case is whether the trial Judge should have granted the defendant's motion for a directed verdict upon the ground above stated.
It is unquestionably true that Lester actually employed Gore. He claims that he employed him as president and manager of a corporation, the Ideal Theater Corporation, and that consequently Gore was not in his "service or employment"; and that Gore "worked there for the Ideal, also for the Rivoli, a corporation, and also for my wife's theater, the Rialto, and also the Royal, run by a corporation. When I took charge his salary was $60 per week and he got $25 from the Ideal. We divided up his salary among the theaters." It thus appears that Gore was employed by Lester to work at four different theaters, three corporations and Mrs. Lester. As to the Ideal Theater Corporation, Lester states: "I ran and controlled it and could fire and hire anyone there."
It does not appear that Lester made any communication to Gore indicating that Gore was to work for four distinct undisclosed principals of Lester, and under the familiar *162
principle, in such cases, Lester was personally responsible upon his contract of employment with Gore. Tiffany, Agency, 273. Davenport v. Riley, 2 McCord, 198. Conyersv. Magrath, 4 McCord, 392. Long v. McKissick,
Considering, too, the prospective purpose of making the exception contained in the policy, the Court should not indulge in too strict a construction of the words used. In the case of Rydstrom v. Ins. Co.,
"The object and purpose of an exception like the one we are here dealing with in this policy was to guard the company against liability for such thefts as we have in this case, and to prevent fraud and collusion by and between the assured and persons in a household or in the assured's services or employment."
Would the risk to the company from the thefts of Gore be less if Lester employed him for the company owned and controlled by him, with the power to "hire and fire," than if an individual employment had been made?
In the case of Schmid v. Health,
The charge of his Honor, Judge Whaley, upon the effect of the warranty in the policy is entirely satisfactory to the Court. Let the charge be reported.
While there was error in not directing a verdict for the defendant, it appears that the delinquency is rather a deficiency of evidence than otherwise, and substantial justice will be attained by reversing the judgment and remanding the case for a new trial.
So ordered.
MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concurs.