Globe & Rutgers Fire Ins. v. Fuller Automobile Co.

*509 Cushing, P. J. The defendant in error, the Fuller Automobile Company, plaintiff below, brought an action in the court of common pleas of Hamilton county upon a policy of automobile insurance, claiming a loss and right to recover under the theft clause of the policy. The policy contained the following clause with reference to fire and theft: “Fire and Theft. Rate $.50. C. Theft, robbery or pilferage, excepting by any person or persons in the assured’s household or in the assured’s service or employment, whether the theft, robbery or pilferage occur during the hours of such service or employment or not * "* A jury was waived, and the case was tried to the court. Upon a trial of the issues, the trial court, considering the evidence, found in favor of the Fuller Automobile Company and rendered judgment in its favor. There are some questions of law raised in this proceeding in error, which are not important in determining the question under review. One of those questions goes to the burden of proof. This proposition was argued orally and in the brief, but, in my opinion, that question is immaterial, for the reason that the trial court placed the burden of proof on plaintiff, defendant in error here, and it was required to maintain that burden at the trial. Another point is made that the petition is insufficient in that it failed to allege the theft was committed by a person other than an employee, and a demurrer to the petition should have been sustained. However, the answer pleads that the theft was by an employee, thereby presenting the issue. The proposition, therefore, turns on whether or *510 not the evidence, and the inferences to be drawn therefrom by the court sitting in the place of a jury, would justify the court in finding the theft was by a person other than an employee. The facts briefly stated are as follows: The Fuller Automobile Company employed a car washer by the name of Jackson, paying him at the rate of 45 cents per hour while working.' He had no definite hours of employment, and he could return to work or not as he saw fit, or the company could refuse to put him to work if it saw fit. In other words, the employment was not permanent and continuing, but terminable at any time by either the employee or the employer, without notice from one to the other. It appears that on a Saturday, Jackson, at 11:30 a. m., punched the time clock, and left the premises of the automobile company. The record does not show any communication between Jackson and his employer at this time. On the evening of the same day, between 7:30 and 8 o’clock, Jackson went to the automobile company’s place of business, took a new automobile, and was leaving the city, and while speeding in an outlying village he was intercepted, and ran the car into a pole, badly damaging it. He w!as arrested and returned to the city, and held for the crime of theft. As above stated, the question then is: "Was Jackson at the time he stole this car an employee? This question of when a person is or is not an employee has caused some difficulty in other cases. In the case of Ætna Life Ins. Co. v. Lembright, reported in 32 Ohio App., 10, (166 N. E., 586), a like question arose, concerning a group insurance policy. *511 It appears that one Lester was an employee of a paper company which carried group insurance. Lester, who had been a regular employee, did not work for the paper company in any capacity after December 16, 1924. January 7, 1925, he received a check for a small balance for work done on December 16th. He received no further sums from the company except that on December 23,1925, the company sent to Lester a Christmas greeting check for $5. Lester was carried on the payroll of the company without pay until May, 1925. Lester was employed by the paper company for no definite period. He could leave the employment when he saw fit, and the company could dispense with his services when it saw fit. Lester died May 13, 1926. The question before the court was whether or not he was an employee under the circumstances — not having been directly discharged — and entitled to the benefit of the group insurance. There are some other circumstances in that case which would have some bearing on determining the question, but the fact remains that the court held Lester was not an employee under the circumstances, and that his beneficiary was not entitled to any benefit under the policy. The main difference, as wie take it, between the 2Etna Life Insurance case and the case under consideration is the length of time passing after the employee ceases to work and the time when the cause of action accrues. In the 2Etna Life Insurance case it was some months before the question arose. In our case, the question of liability or non-liability arose in a much shorter time. I do not, however, thipk the question of time determines the proposi *512 tion, since, as above stated, tbe employment was at will and for no definite period. The question of whether or not Jackson was an employee at the time of the theft was a question of fact for the jury, in this case the court, sitting in the place of a jury. If Jackson’s employment did not cease when he left at 11:30 a. m., when did it cease? He has never been back, except as he was brought back for trial for the theft. He was leaving the city, and used the stolen machine to leave. If the suggestion of counsel for the insurance company is correct, Jackson must necessarily still be an employee, although he has not been back since the date of the theft. If we eliminate from the consideration of the evidence the fact that the theft took place, and consider the case from the fact alone that Jackson could quit whenever he pleased, and he left at 11:30 a. m. on Saturday, and never came back, I think any one would concede that the jury might reasonably infer that he severed his relation as an employee when he left at 11:30. In other words, the insurance company undertakes to connect Jackson as an employee by reason of the fact, and that only, that he stole an automobile that night. This is not proof of employment. My conclusion is that the trial court could reasonably infer from all the facts and circumstances that Jackson severed his relationship as an employee of the automobile company when he left at 11:30 a. m. on Saturday, and that the question is not a question of law for this court to determine. The trial court having determined the fact in favor of the automt *513 bile company, in my opinion this court would not be justified in disturbing the judgment. Judgment affirmed. Hamilton, J., concurs.