Opinion
42290.
ARGUED SEPTEMBER 7, 1966.
DECIDED OCTOBER 26, 1966.
Action on insurance policy. Fulton Civil Court. Before Judge Camp.
Roy E. Stephens, James M. Embry, for appellants.
Long, Weinberg Ansley, Ben Weinberg, Jr., Gregg Loomis, John W. Dunlap, for appellee.
1. An indorsement to an insurance policy (not covering loss by theft), providing that "this policy is extended to cover personal property of the insured . . . while in transit . . . against loss or damage from the perils insured hereunder and including theft or attempted theft from automobiles of the assured" affords no coverage for a loss sustained "while in transit" where it does not appear that the loss resulted "from the perils insured hereunder" or from "theft or attempted theft from automobiles of the assured." Code Ann. § 56-2419, and cf. Hartford Acc. c. Co. v. Hulsey, 220 Ga. 240 ( 138 S.E.2d 310).
2. Enumerations of error predicated upon a construction of the insurance contract at variance with Headnote 1 are without merit.
3. Enumerations of error complaining of the admission of evidence and charges of the court in regard to provisions and conditions pertaining to theft from automobiles other than those of the insured are without merit. The charges and the admission of the evidence, if error, are harmless since the scope of coverage was thereby enlarged beyond that afforded by the contract of insurance and since the insured is not entitled to recover in any event under the construction of the policy as stated in Headnote 1.
4. Error enumerated on the court's refusal to submit the question of bad faith and statutory penalty to the jury is without merit since there was no coverage. See American Cas. Co. v. Griffith, 107 Ga. App. 224, 228 ( 129 S.E.2d 549); American Cas. Co. v. Seckinger, 108 Ga. App. 262 (5) ( 132 S.E.2d 794); Lincoln Life Ins. Co. v. Anderson, 109 Ga. App. 238, 247 ( 136 S.E.2d 1); Brown v. Seaboard Lumber c. Co., 221 Ga. 35 ( 142 S.E.2d 842); Equitable Life Assur. Soc. v. Gillam, 195 Ga. 797 (2) ( 25 S.E.2d 686, 147 ALR 1008); Life Ins. Co. of Ga. v. Burke, 219 Ga. 214 ( 132 S.E.2d 737).
Judgment affirmed. Bell, P. J., and Jordan, J., concur.
ARGUED SEPTEMBER 7, 1966 — DECIDED OCTOBER 26, 1966.
Plaintiff brought suit against the insurance company seeking to recover under an indorsement to a contract of insurance for coins that were lost in transit between Macon and Atlanta. In Macon an employee of insured locked up the coins in the trunk of an automobile owned and operated by third parties. The employee, the operator, and a passenger proceeded a few miles and stopped at a restaurant, locking the doors of the automobile before going inside. After eating, the men unlocked the car and proceeded up the highway, stopping again at a service station to purchase gasoline. While they were in the service station the automobile was left sitting out front, unlocked. After leaving the service station the employee fell asleep and did not awaken until the group had arrived in Atlanta a few blocks from the home of the passenger, whereupon the trunk was opened and it was discovered that the coins were missing.
An indorsement to the insurance policy, upon which the suit was predicated, provided that "this policy is extended to cover personal property of the insured . . . while in transit . . . against loss or damage from the perils insured hereunder and including theft or attempted theft from automobiles of the assured equipped with fully enclosed body of good construction outfitted with a lock standard to the particular make and type of automobile occurring while the automobile is unattended, provided that, at the time of such theft or attempted theft, the windows and doors of the automobile be securely closed and locked, and such theft and/or attempted theft result from the forcible entry which is evidenced by visible marks."
Insured contended that the endorsement provides coverage (1) while in transit; (2) for theft or attempted theft from automobiles of the assured. It is contended that no matter how the coins were transported the phrase "while in transit" affords coverage insuring against all perils of transportation including theft, mysterious disappearance, loss from storm, water, or any other risk that might be involved while the coins were being transported. Insured also contended that the provisions relating to forcible entry evidenced by visible marks, etc., apply to automobiles of the assured only and not to any automobile in which the coins might be transported.
The company contended that the indorsement did not provide general theft coverage but only theft from automobiles of the insured. The company further contended that in the event it was found the parties intended that theft coverage was to be extended to vehicles other than automobiles of the insured, intent must also be found to apply the requisites of visible signs of entry to such other vehicles.
The trial court construed the contract, admitted evidence, and submitted the case to the jury in accordance with the contentions of the company. A verdict was returned in favor of the company, and insured appealed from the judgment entered on the verdict.