Opinion
April 25, 1952. Rehearing Denied May 20, 1952.
Appeal from the Circuit Court for Duval County, A.D. McNeill, J.
Osborne, Copp Markham, H.P. Osborne and H.P. Osborne, Jr., all of Jacksonville, for appellant.
Maurice W. Goldstein, Jacksonville, for appellee.
The appellee sued upon a policy insuring him against loss resulting from the theft of his automobile. He alleged in his complaint that his car was "stolen and never thereafter returned" and claimed he was therefore entitled to a judgment for its full cash value. The jury awarded a verdict; the judgment was entered; this appeal followed.
We go now direct to the facts to determine whether the evidence the jury believed was sufficient to establish a theft as contemplated by the contracting parties.
The car was purchased by one Cuddeback 6 January 1949 in Michigan, and certificate of title was issued to him by that state. The same day he set out for Florida. A few hours after his arrival in Jacksonville he visited a night club called the "Windmill," operated by Lester Tyndall, Mickey Amerlick, and Jimmy Bryan. There are two versions of what happened from then on. Cuddeback says that after he had had several drinks, Bryan gave him a slug of liquor of such potency or content as to render him senseless and that some one tossed him into a back room. When he recovered his senses and escaped, his money and personal effects, as well as his automobile, had disappeared. After unsuccessful attempts to recover them, he returned to Michigan.
Continuing Cuddeback's story, on 27 September 1949, a private detective employed by him located the car at Jacksonville Beach; whereupon, Cuddeback went to that town, located the automobile, surreptitiously took possession of it, and drove it to Georgia where he had a collision, damaged the car, and injured himself. Later his father flew from Michigan to Georgia and drove the car back to Michigan where Cuddeback sold it to one Heazlit, to whom he delivered a certificate of title which he had at all times retained. He denied that he had consciously transferred the title in Florida.
On the contrary, testimony was given by Amerlick, one of the associates of Jimmy Bryan, and by one of the employees of the "Windmill," that Cuddeback sold the car to Bryan and received full payment. It is significant that Bryan did not testify. By successive conveyances the automobile reached the insured, appellee.
By giving this factual background we are not approaching a determination of the relative rights of Cuddeback and appellee, but only attempting to decide from the situation as a whole whether the evidence the jury was privileged to believe substantiated a theft by Cuddeback fixing liability of the appellant on the policy.
The court charged the jury, at the request of the appellant, that the word "theft" comprehended "essentially the wilful taking or appropriation of one person's property by another wrongfully and without justification and with design to hold or make use of [it] in violation of the rights of the true owner." The judge added that "The intent to deprive the true owner of the property [was] a necessary ingredient of the offense."
Of course, if Cuddeback's version is to be believed there was no theft at all for he simply retrieved property that had been stolen from him.
If so much of his story as conflicts with the plaintiff's evidence is discarded, then to become convinced that the indispensable element, theft, was established, it is necessary to believe that after he bought a car in Michigan, paying for it in cash, and had driven it to Florida, he resold it, employed a detective to locate it; then stole it with the design to make use of the property in violation of the rights of the appellee and with intent to deprive the appellee of the property. Added to this it would be necessary to discount the importance of the delivery of a certificate of title which was not surrendered in Florida at the time of the supposed sale to Bryan, or anywhere else until the second sale in Michigan. Moreover, if the evidence rejected by the court is considered it would appear that Cuddeback, so-called thief, recovered a judgment against Bryan and his associates for robbery of the car.
Before discussing the evidence which was undertaken to be introduced to complete the factual background, it seems we should pause here to state more particularly how appellee came into possession of the disputed car. As we have said it was testified that a sale was made to Jimmy Bryan. Evidently, the chain of title ending in appellee was begun when one Homer Shane and Bryan applied to the Motor Vehicle Commissioner of Florida for a certificate of title for the car and represented that they had bought it from Cuddeback. For emphasis we repeat that there was no proof on the part of appellee that the certificate of title was ever delivered to Bryan, and we have not found in the record any admission in evidence of a bill of sale from Cuddeback to him.
It seems to us that the picture is not complete without the evidence that the appellant sought to introduce with reference to a suit instituted by Cuddeback against the operators of the "Windmill" which culminated in a final judgment in his favor. The appellant undertook to set up these proceedings as an affirmative defense, but a motion to strike it was granted by the trial judge who observed, however, that the motion was granted "with the understanding that the matter stricken [was] evidential matter provable by the defendant under the other issues and pleadings in the cause." In the course of the trial the deposition of Cuddeback was introduced and in it was a statement about the suit and the verdict that had been awarded him. Yet the judge rejected the declaration, pleas, and judgment when they were offered. We think this evidence was essential to a full understanding of the issues and that the order excluding it was harmful error. True, the determination of this particular controversy would not necessarily decide the issue in the present case, but the evidence certainly would have cast light on the design entertained by Cuddeback at the time he took the automobile and on the nature of his act, that is, whether he was committing a theft in contemplation of the insurance contract, or simply recapturing property of which he had been robbed.
In the declaration tendered in evidence it was specifically stated that Cuddeback had been a guest of the night club operated by Tyndall, Amerlick, and Bryan, and while there, was administered a drink with the purpose of making him unconscious; that he became unconscious, and while in that condition the defendants, through their servants and employees, maliciously robbed him of the money and the automobile. The defendants pleaded not guilty, and specifically denied that their agents and servants gave the defendant the drink alleged with the intent to produce unconsciousness or that he was robbed of the car and his money while in that state. They further denied that the unnamed servants and employees were in fact theirs, and even denied that they were operating the "Windmill." But not one word appears in the defenses about the purchase of the car. At the conclusion of the case a verdict in Cuddeback's favor for $3,110 was returned.
It is our conviction that without this evidence the appellant was unfairly handicapped in meeting the issues; and we might as well be perfectly frank by saying that when we follow the thread of the appellee's reasoning to a logical conclusion we are at a loss to understand how he is entitled to a verdict and judgment, even when every construction and deduction in his favor is indulged, as well as a liberal interpretation of the policy.
After all, if the evidence received and evidence improperly rejected are considered it appears that there was such a substantial question about the true ownership as to undermine any theory that Cuddeback stole the car from Miller.
The judgment is reversed.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.