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HILLIARD LUMBER CO. v. HARLEYSVILLE MUT. CAS. CO. ET AL. (03/16/54)

March 16, 1954

HILLIARD LUMBER CO.
v.
HARLEYSVILLE MUT. CAS. CO. ET AL.



COUNSEL

James E. Marshall, Marshall, Marshall & McNamee, Butler, for appellant.

Luther C. Braham, Darrell L. Gregg, Galbreath, Braham & Gregg, Butler, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.

Author: Hirt

[ 175 Pa. Super. Page 95]

HIRT, Judge.

Plaintiff's Chevrolet Pick-up Truck was insured by the defendants in a combination automobile policy. Within the coverage the defendants agreed 'to pay for

[ 175 Pa. Super. Page 96]

    loss of or damage to the automobile, * * * caused by theft, larceny, robbery or pilferage.' In the early evening of October 30, 1948, Bernard Bruner with the permission of the plaintiff, his employer, drove the truck to his home at Lowrys Beach, 17 miles north of Butler. The intention was that he would keep the truck there over night and drive it to his work the following morning. Later in the evening it was noted that the truck was missing. It had been taken by Bruner's adult son without the consent of his father or of the plaintiff. The son wrecked the truck in a collision with another automobile while driving it on a highway in the direction of Chicora, northeast of Butler at a point about 25 miles from his father's home. In this action it was agreed that the plaintiff suffered a loss of $1,050, in addition to the amount recovered as salvage on sale of the wrecked truck, and the jury found for plaintiff in that amount. The court however set the verdict aside and entered judgment for the defendants n. o. v. The judgment will be reversed.

The language of the coverage of the policy, with which we are concerned, does not present any difficulty. By theft is meant larceny in its common-law sense. Neither robbery nor pilferage is involved. At common law, larceny consists in the taking and carrying away of the personal property of another with the mind of a thief, that is, with the specific intent to deprive the owner permanently of his property. Cf. Burdick, Law of Crime, ยง 497. The sole question here is whether the circumstances are sufficient to raise an inference of larceny bearing in mind that the degree of proof required in an action on contract where larceny is the issue is not the same as in a criminal case in the quarter sessions.

The present case has much in common with Slomowitz v. Union Ins. Co., Ltd., 90 Pa. Super. 366, in

[ 175 Pa. Super. Page 97]

    which recovery by a plaintiff was affirmed under similar circumstances and an identical provision in an insurance contract. In that case an automobile was taken by one Klein, a former employe of the owner without his consent. While the defendant was driving the car he wrecked it on a remote mountain road in the City of Wilkes-Barre, and of necessity the car was abandoned on the highway. In that case the court instructed the jury that if they were satisfied from the preponderance of the evidence that Klein took the car feloniously and with intent to convert it to his own use, the plaintiff was entitled to recover. The defendant's position was that the evidence was insufficient to prove larceny and that the lower court should have so instructed the jury. In disposing of the appeal in this court Judge Henderson in referring to the element of the intent to deprive an owner permanently of his property, said: 'Here the burden is on the plaintiff to convince the jury by the preponderance of evidence that there was an intent to steal. It is not necessary that there should have been a final conversion of the property. The fraudulent depriving of the owner of the use of a chattel may be evidence of a felonious intent although the property is abandoned by the taker.' In that case, in the light of the direct evidence charging Klein with a fraudulent taking, we held: 'The question whether it was done animo furandi was one for consideration by the jury, and the court was not in error in refusing to give binding instructions for the defendant.'

To constitute theft under the coverage of an insurance policy such as this it is generally held that there must be a criminal intent permanently to deprive an owner of his property. The lack of unanimity in the decisions arises for the most part from a ...


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