
    AUTOMOBILE UNDERWRITERS’ CO. v. RHINEHOLD.
    (No. 7045.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 5, 1923.
    Rehearing Denied Jan. 2, 1924.)
    Insurance <&wkey;>425 — “Theft” policy held to cover taking obtained hy'faise pretéxt.
    Under Pen. Code 1911, arts. 1329, 1332, as to theft, an automobile policy insuring against “theft” held, to cover loss occurring when another obtained possession of it by a-false pretext, namely, that he was going to try it before buying it, at the time intending to appropriate it to his own use and benefit, and he did so appropriate it.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Theft.]
    <§=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered. Digests and Indexes
    Appeal from Bexar County Court;- MeCul-lom Burnett, Judge. .
    Action by the Automobile Underwriters’ Company against F. H. Rhinehold. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Lewright & Lewright, of San Antonio, for appellant.
    T. M. West, of San Antonio, for appellee.
   FLY, C. J.

Appellant sued appellee to recover on four promissory notes executed by him, amounting in the aggregate to $180, and to foreclose a chattel mortgage on a Jordan automobile executed to the San Antonio Cadillac Company; the consideration for said notes and mortgage being the sale to ap-pellee of sa'id Jordan automobile. It was alleged that the notes and mortgage "had, for a valuable consideration, been transferred' and assigned to appellant. Tbe reasonable value of tbe automobile was alleged by appellant to be' $450. Appellee admitted bis liability for tbe $180, evidenced by tbe promissory notes, and pleaded a cross-action against appellant on tbe ground that it bad insured bim against tbeft of tbe automobile in tbe sum of $500 and the automobile had been stolen, and be- prayed for judgment in tbe sum of $320, interest and attorney’s fees. Tbe cause was tried without a jury and judgment was rendered in favor of appellee for $306, being tbe difference between wliat was due on tbe four notes, $194, and tbe $500, insurance.

Tbe findings of fact are justified by tbe statement of facts. Tbe automobile was insured for $500 against theft by appellant, and it was stolen from appellee. The reasonable market value of tbe automobile when stolen was $500. All the conditions of tbe policy were fully complied with by appellee. Notice was waived by appellant, and liability was at once denied. No issue was made by tbe pleadings as to tbe value of tbe car when stolen, but it was admitted in such pleading that tbe car was of tbe reasonable value of $450. .

The testimony showed that tbe automobile was placed in tbe possession of one Lincoln D. Odie, by appellee, to be carried by tbe latter to Austin and tried out on tbe bills near or surrounding that city; that Odie pretended that be 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 tbe early morning, at or about 6:30 a. m. He never returned, but went on to Missouri with tbe car. Appellee bad signed a statement just after tbe car was taken off that Odie bad said be would take the car and wire for the money to pay for the same. This was on the morning Odie started to Austin to “demonstrate” tbe car on tbe bills around Austin.

Tbeft is the fraudulent taking of corporeal personal property belonging to another from bis possession, or from tbe possession of some person bolding tbe same for bim, without bis consent, with intent to deprive tbe owner of tbe value of tbe same, and to appropriate it to the use or benefit of tbe person taking. Tex. Crim. Stats. (Pen. Code) art. 1329. Tbe taking must be wrongful, so that if the property came into the possession of the person accused of tbeft by lawful means, tbe subsequent appropriation of it is not theft, but if tbe taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive tbe owner of the value thereof, and appropriate tbe property to tbe use and benefit of the person taking, and tbe same is so appropriated, the offense of tbeft is complete. Tex. Crim. Stats. (Pen. Code) art. 1332. The Court of Criminal Appeals has bold that it will under this article constitute tbeft if tbe taker obtained lawful possession of the property by some false pretext which induced or deceived tbe owner into surrendering tbe property to the thief, and that be intended at tbe time to steal tbe property. Porter v. State, 23 Tex. App. 295, 4 S. W. 889; Cunningham v. State, 27 Tex. App. 480, 11 S. W. 485; Williams v. State, 30 Tex. App. 153, 16 S. W. 760. Tbe evidence shows that Odie obtained possession of tbe automobile by a false pretext and that at the time be intended to appropriate tbe automobile to his own use and benefit, and did so appropriate it.

Tbe judgment is affirmed.  