Ledvinka v. Home Insurance

Oeeutt, J., delivered the opinion of the Court. Charles S. Tjedvinka, on December 19th, 1919, purchased, from the Colonial Garage and Repair Company, of Baltimore, a second- hand automobile for eight hundred dollars, and certain additional equipment for two hundred dollars, of which sums he paid four hundred dollars in cash, and gave notes for the balance. The contract for the sale of the automobile contained, among' others, this clause: “It is understood and agreed that title of ownership of car * * * does not pass to me until final cash payment is made.” After purchasing the car, Ledvinka. took put an insurance policy from the Home Insurance Company of New York, the appellee in this ease, insuring him to the extent, of one thousand dollars against its loss through “theft, robbery or pilferage.” This policy was issued upon the condition that it should bo “null and void” if the assured’s interest in the car were “other than unconditional and sole ownership,” or if it were “encumbered by any lien or mortgage” except as stated in a warranty contained in the policy. At the time the appellant bought the automobile, the vendor agreed to “give him a man to teach him how to drive it/” and John C. Alderhardt, the chauffeur furnished by the company under that agreement, brought the car to appellant’s home four or five times, and gave him lessons in driving it, and on one of these occasions the appellant directed Alderhardt to bring the automobile to his home on Sunday, January 11th, 1920, for another lesson.

The chauffeur was to bring the automobile from the garage of the Colonial Garage and ⁴³⁶ Repair Company, where it had remained from the time appellant had purchased it from that company. The chauffeur came on that day at about ten o’clock in the morning and was with the plaintiff in the automobile for about two hours teaching him how to operate it. It was then agreed between them that the chauffeur should return with the car at two o’clock in the same afternoon, to give the appellant a final lesson. Alderhardt did not come at the hour named, and the appellant was later told that the car had been wrecked, and Alderhardt, the chauffeur, fatally injured, in an acciident on the Annapolis Road some time during that afternoon.

After he learned of the damage to his automobile, the plaintiff filed with the appellee a claim for the loss he had suffered, on the theory that the chauffeur had stolen the car, and that the loss was, therefore, covered by the policy of insurance; The insurance company refused to pay 'the claim, and the plaintiff then instituted this action in the Baltimore City Court to recover the amount he claimed to be due him under the policy. At the close of the plaintiff’s case, the jury, under the direction of the court, returned a verdict for the defendant, and from the judgment entered on that verdict this appeal was taken. The only question presented by the record for our consideration is whether, under the facts stated, the plaintiff was entitled to recover in that’suit against the defendant. There were set up three defences to' the appellant’s claim: (1) that the car had not been stolen at all; (2) that if stolen, the theft was committed by a person in the assured’s employment; and (3) that at the time the policy was issued the appellant did not have the legal title to the automobile, and the policy was for that reason void, because the appellant had taken it upon the expressed condition that it should be “null and void” if his interest in the automobile were other than unconditional or sole ownership, or if it was, when the policy issued, or afterwards became, encumbered by any lien or mortgage, except as stated in the assured’s warranty, ⁴³⁷ which warranty was that it was “'fully paid for by him and was not mortgaged or otherwise encumbered,” whereas in fact the legal title to it had been retained by the Colonial Garage and Repair Company to insure the payment of the balance of the purchase money clue on it.

Because of its relation to the other questions, we will first consider the proposition that Alderhardt was in Ledvinka’s employment. There is nothing in the record to sustain the contention that he was so employed. It is true that the proprietor of the company, from which Ledvinka bought the car, testified that Alderhardt w7as not in his employ on the day in question, but the company had sent him to Ledvinka in accordance with its undertaking to furnish him a chauffeur to teach him to operate the car, which undertaking was a part of the consideration for the purchase of the car. The mere fact that Ledvinka gave him “tips” did not make the chauffeur his employee any more than would the casual tipping of a railway porter by a passenger make the porter the passenger’s employee.

Alderhardt was entrusted with the car by the company, and by it sent to perform a, promise it had made; that is, to teach the purchaser of the automobile how to drive it, and for the purposes of this case it must be assumed that Alderhardt was its agent and not in the service or employment of Ledvinka. “Service” and “employment” are words commonly and constantly used “and therefore ought to be received as understood in common parlance” (20 C. J. 1245), and when so received are generally associated with the idea of selection and compensation. But neither of those elements can be found in the relation between Ledvinka and Alderhardt. Alderhardt was selected by the garage company and, if compensated at all, was compensated by it. The object of his employment Was the instruction of Ledvinka, who neither selected nor compensated him for the employment.

Alderhardt was not, therefore, either in the service or the employment of Ledvinka. McCluskey v. Cromwell, 11 N. Y. 593, 599 . ⁴³⁸ Assuming then, under the circumstances of this case, that Alderhardt was not in the employment or service of the appellant, the remaining questions to be considered are whether, the policy of insurance, upon which this action was brought, was a valid and subsisting contract at the time the loss, of which the appellant complains, occurred, and if so whether that loss was due to “theft, robbery or pilferage.” The uncontradicted, and indeed the only testimony in the case, shows that the appellant bought the automobile on December 11th, 1919, under a contract of conditional sale, under the terms of which