Bomar v. Insurors Indemnity & Ins. Co.

237 S.W.2d 441, 1950 Tex. App. LEXIS 1817

• Court: Court of Appeals of Texas
• Decided: December 15, 1950
• Docket: 14296
• Status: Published

Opinions

CRAMER, Justice.

Appellant, as insured, filed this action against appellee, as insurer, to recover the reasonable cash market value of a 1949 Pontiac automobile alleged to have been stolen from her while her automobile theft policy was in full force and effect. The trial was before the court without a jury and resulted in judgment for appellee insurer, from which judgment this appeal has 'been duly perfected. Appellant briefs two points, the first asserting error of the trial court in holding that “the taking of ‘Insured’s’ automobile by false pretext with attempt to appropriate it, and the appropriation thereof, was not theft.” The second point asserts error “in holding that the party obtaining possession of the insured automobile by fraud was in.legal possession under a conditional sales contract, so as to relieve the Insurer of liability under a clause in the policy excluding loss caused by 'a person in lawful possession under a conditional sales agreement.”

Appellee counters by two points asserting (1) the “trial court was justified in finding that pláintiff failed to prove by preponderance of the evidence the occurrence of the transaction' alleged to constitute the theft”; and' (2) the facts alleged, if true, “would not constitute a theft under the terms of the’ policy.” Such points necessitate a review of the evidence in detail. But one witness testified, to wit, Frank Wallace, an uncle of appellant. His evidence was that appellant placed the automobile with him for sale and at the same time delivered to him a title certificate signed in blank to be filled in at time of sale. He advertised the automobile for sale and a man who identified himself as James E. O’Boyle, approached him stating he was employed in the neighborhood and had read his ad; had looked at the automobile and wanted to purchase it but that he first wanted to talk with his wife and asked if he could reach him that afternoon. Wallace gave him his home phone number. That night a woman called him and identified herself as Mrs. James O’Boyle, stating to him that they desired to buy the automobile and that they had $2,000 in money in the Oak Cliff bank and had talked to the automobile loan department of such bank and they were confident the bank would loan them the other $750 and asked where they could see him next day. Wallace explained that his office was not open on Saturday but he would meet them at his office anytime. The lady told him 11:30 A.M. Saturday. Wallace waited 'at his office and no one showed up; however, the same woman called him by telephone at 11:50 A.M. saying she would be right down with a check, but for him to wait a minute, she wanted to talk to Mr. Crabtree who, she said, was cashier of the American National Bank of Oak Cliff. After a short interval a . lady who identified herself as Secretary to Mr. Crabtree asked him for the motor number of the automobile as well as other information necessary to make a loan, advising him that they would loan Mr. and Mrs. O’Boyle $750, and that her check for $2,750 was good. She further said that she knew of his Company and requested him to hold the $2,750 check until the certificate of title cleared, which he agreed to do. Then a man who identified himself as James E. O’Boyle got on the phone and told Wallace he would be down in a few minutes and a little later he did arrive at Wallace’s office and there delivered to Wallace the $2,750 check which was signed by Mrs. James E. O’Boyle, which purportedly had the “OK” of F. W. Crabtree thereon. On a Monday, nine days thereafter, Wallace called the bank and asked if the title had cleared so he could cash the check. He then learned that they had no record of the transaction. Neither Mr. Crabtree, nor his secretary, had any knowledge of the transaction. Mr. Crabtree’s signature on the check was a forgery. The check was. deposited by Wallace, but the bank returned it, with the notation “Unable to* locate the account.” Wallace then went to the address on the check and found it to be that of a tourist court; also learned that James E. O’Boyle had registered there, but had checked out shortly after noon on the Saturday he obtained title certificate, filled in by Wallace, as well as the possession of the automobile. Also that, so far as their records showed, there was no Mrs. James E. O’Boyle registered with him. Wallace then filed a complaint with the District Attorney and appeared before the grand jury and gave evidence against O’Boyle. The automobile was later located in Los An-geles. The title where the automobile was located had been transferred to such dealer. Wallace, on cross-examination, testified that he thought the check was good when he accepted it and delivered the automobile to O’Boyle conditioned upon the check being good. Wallace, on cross-examination, testified as follows:

“Q. You were not taking the check as payment regardless of whether the check was good or not? A. No. If there had been any question in my mind about the check being good, I wouldn’t have consummated the deal with him.

“Q. And it was your idea in dealing with him that if it were not any good the thing was all off, is that right ? A. Sure.”

Thereafter it appears from the evidence that James E. O’Boyle, or the person who used that name, had, by a cleverly designed scheme, obtained possession of and title to the automobile by fraud with a “hot” check. Articles 1410 and 1413 of our Penal Code are as follows: Art. 1410. “ ‘Theft’ is the fraudulent taking of corporeal persona! property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.” Art. 1413. “The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of, theft is complete.” The coverage under the policy was in paragraph “G-l — Theft” (Broad Form). Section M under the exclusions which limit the above paragraph G-l- — -Theft coverage is as follows: “Under the coverages, D, G-l and G-2, 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.”

Under appellee’s first counter proposition, it contends that the trier of the facts can find against the uncontroverted evidence of an interested witness, and can render judgment directly contrary thereto. We agree with appellee that the court could disbelieve the evidence of an interested witness, provided 'his evidence is not corroborated by written instruments, or other evidence consistent therewith. In this case Wallace is corroborated by the check signed by • Mrs. O’Boyle, with the endorsement thereon “In payment of a 1949 Pontiac coupe, motor number K8RH4053, rubber stamped “Cashier,” signed “F. W. Crab-tree,” and stamped “July 9, 1949” and now has attached thereto the Bank’s standard printed slip, dated “July 25, 1949,” with a check mark before the wording “Unable to locate account.” A careful reading of the testimony of Wallace would not raise the least suspicion as to its correctness, but on the contrary is consistent in every detail. We are therefore of the opinion that the rule asserted by appellee is not applicable to this case. The counter point is overruled. The other points by appellant and appellee raise the question as to whether or not there was a theft of the automobile within the coverage of the policy, not ex-eluded by the exception above quoted. The word “Theft” as used in the policy is confined to the legal meaning given such term by our courts.

The appellant relies on the Texas cases of Automobile Underwriters Co. v. Rhinehold, Tex.Civ.App., 255 S.W. 1116; King v. State, Tex.Cr.App., 213 S.W.2d 541; Lovell v. State, 48 Tex.Cr.R. 85, 86 S.W. 758; and Security Ins. Co. v. Sellers-Sammons-Signor Motor Co., Tex.Civ.App., 235 S.W. 617. Each of these cases is- distin1 guishable Cm the facts. Each involves the transfer of possession only and not transfer of the 'title as such.

In Automobile Underwriters Co. v. Rhinehold, supra, possession was given to the prospective purchaser in order that he might try out the automobile. The court stated the facts as follows: “The testimony showed that the automobile was placed in the possession of one Lincoln D. Odie, by appellee, to be carried by the latter to Austin and tried out on the hills near or surrounding that city; that Odie pretended that he was contemplating buying, ,and took it off with a promise that he would bring it -back at 6 p. m. He started to Austin in the early morning, at or about 6:30 a. m. He never returned, but went on to Missouri with the car. * * * ” [255 S.W. 1117.]

In King v. State, supra, the court in the course of the opinion stated the nature of the possession, as distinguished from title, as follows: “ * * * In the case of Dix v. State, supra, the injured party intended to part with the title to the property as well as' its possession while in the instant case the injured party retained the title and parted only with the possession of the automobile.” [213 S.W.2d 543.]

The Dix v. State case referred to is reported in 136 Tex.Cr.R. 296, 124 S.W.2d 998.

In the Lovell case, supra, the defendant by false pretext secured money from one Copeland to be paid as a bribe to a county attorney who, for such consideration, was to dismiss a criminal case against Copeland. Under such facts Lovell secured possession, not title, to the money.

In Security Ins. Company v. Sellers, etc., supra, the opinion recites: “ * * * The possession so delivered was in a very qualified and limited sense; it was intended and understood to be temporary only, with the distinct recognition of the plaintiffs’ right to retake the property at any time, and at all events to be only of a temporary character.” [235 S.W. 621.]

Appellant in her reply to appellee’s brief cites the case of Johnson v. State, 144 Tex.Cr.R. 392, 162 S.W.2d 980, 982. As we construe this case and the cases cited therein it applies where money is involved. There the court said: “The fallacy relative to the distinction between swindling and theft by false pretext being the delivery or not of title, has long since been departed from by. this court in the following cases: De Blanc v. State, 118 Tex.Cr.R. 628, 37 S.W.2d 1024 (and others). In De Blanc v. State, supra, Judge Morrow writes an exhaustive opinion on the difference between theft and swindling, and discusses many cases”. The court said in the course of the opinion that “intent is not the sole distinction” between theft and swindling. However, the court did hold specifically, “It is obvious that the owner did not intend to vest the title to the property in the appellant.” [118 Tex.Cr.R. 628, 37 S.W.2d 1027.] Judge Morrow followed the rule that the representation of an existing fact is necessary to a conviction of swindling, while the representation of a future fact is necessary tó theft by false pretext. In Rumfield v. State, 139 Tex.Cr.R. 599, 141 S.W.2d 630, 632, syls. 7-8, Judge Hawkins, in the opinion on motion for rehearing, stated such rule as follows: “It is appellant’s further proposition that if he is not guilty of embezzlement he should have been prosecuted for theft by false pretext and not swindling. It is sometimes difficult to distinguish 'between those two offenses. In swindling the false representation must be as to an existing fact or to a past event. Such are the facts here, false representations as to a purchase of stock already consummated; whereas, in theft by false pretext the representations; may and usually do involve future promises upon which reliance is placed in parting with property.”

Appellee’s cases, Segal v. State, 99 Tex.Cr.R. 485, 265 S.W. 911, 35 A.L.R. 1331, Dix v. State, 124 S.W.2d 998, Akers v. Scofield, 5 Cir., 167 F.2d 718 (Texas case), are in point, and state the correct rule applicable here.

The case before us has both of the elements which make the offense (by the person who represented himself to be O’Boyle) that of swindling, — since both title and possession passed, and the making of a false representation of an existing fact, as distinguished from a future promise. This would exclude a conviction of theft by false pretext in a criminal case.

Therefore the coverage in the policy was not broad enough to cover appellant’s loss, and the jiidgment of the court below must for that reason be affirmed.