
    BESTWAY REFRIGERATED SERVICES, INC., Appellant, v. Frederick John SIMMONS, et al., Appellees.
    No. 81-1327.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 1982.
    Gerald S. Livingston and Timothy C. Laubach of Livingston & Laubach, P.A., Orlando, for appellant.
    Joseph McGuire of Parker Johnson, Owen & McGuire, Orlando, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final summary judgment in an action to recover under an insurance policy issued by appellees.

Appellant Bestway Refrigerated Services, Inc., a nationwide truck broker, obtained loads to be hauled by various truckers. It did not own trucks, nor did it employ drivers. Instead it hired third parties to transport its freight. One such company was Phil Hatfield Trucking.

In April, 1979, an individual identifying himself as Robert Walker telephoned the Bestway office using the company’s unlisted number reserved for this purpose. Walker stated that he worked for Hatfield and inquired if there were any shipments available. Bestway’s employee replied that they had a shipment of shrimp available and made arrangements for Walker to pick up the load. Walker picked up the load, but neither he nor the shrimp were ever heard from again.

Bestway sued to recover on an insurance policy issued by appellees. The court entered summary final judgment for appellees holding that the loss was excluded under the policy.

It is not uncommon to exclude employee related thefts in insurance policies covering liability for loss by theft. More specifically, it is not uncommon for the underwriter of cargo insurance to exclude losses which are the result of theft, conversion, etc., perpetrated by employees or agents of the insured. Such exclusions are generally given their plain meaning and upheld. See Sun Insurance Office Ltd. of London v. Be-Mac Transport Company, 132 F.2d 535, 536 (8th Cir.1942); Georgia Carpet Express, Inc. v. Travelers Indemnity Company, 148 Ga.App. 603, 252 S.E.2d 17 (1979); Hunter v. Pearl Assurance Company, 292 Mich. 543, 291 N.W. 58 (1949).

With regard to the instant facts, there are two important provisions in the insurance policy: the first sets out what losses are insured and the second sets out what losses are excluded. The first provision provided:

THIS POLICY INSURES The liability of the Assured, as truck broker, for loss or damage directly caused by:
* * * * * *
h. Theft of an entire shipping package, excluding pilferage.

Immediately below this list of covered losses, the policy set out exclusions from coverage:

THIS POLICY DOES NOT INSURE
Any liability of the Assured for loss or damage:
* * * * * *
K. caused by conversion, embezzlement, secretion, theft by the named assured, his driver or agent, (emphasis added)

In holding that the loss in the present case was covered by paragraph K, the court below impliedly found that Walker was an agent for Bestway. It is clear that Walker could not be considered Bestway’s driver.

As in the case of any other agreement, an agency agreement may be negated by fraud and an appointment induced by fraud will not constitute a valid agency. 2A C.J.S. Agency § 39 (1972); Restatement (Second) of Agency § 15, Comment c (1958). Here, it is undisputed that Walker falsely represented his relationship with Hatfield, thereby negating an agency agreement, if any, with Bestway. As no valid agency relationship existed, the loss is not excluded under paragraph K of the policy. We therefore reverse the final summary judgment and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

SHARP, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

The named insured, Bestway, a truck broker, negligently mis-identified Walker as a driver or agent of Hatfield, a trucker, and negligently entrusted a load of shrimp to him. If Walker had in fact been Hatfield’s driver and agent, then Bestway would have been acting as a broker between two principals (Hatfield and the owner of the shrimp). But in fact Walker was not acting as Hatfield’s agent and, notwithstanding that Bestway did not subjectively intend the legal result, when Bestway authorized Walker to pick up and haul the shrimp and also authorized the owner of the shrimp to deliver it to Walker, Bestway impliedly established a agency relationship with Walker and Walker became Bestway’s agent and driver for the purpose of acquiring possession of the shrimp and hauling it. Walker’s subsequent embezzlement of the shrimp falls within the language and purpose of the policy exclusion as to theft by the insured’s agent or driver.

Certainly, fraud negates an agency agreement, as it does all agreements, but fraudulently induced agreements and relationships are not void but merely voidable. Bestway had the legal right, because of Walker’s misrepresentation, to rescind the authorization it gave Walker to pick up and haul the shrimp. That is not the point. The point is that Bestway authorized the owner to deliver possession of the shrimp to Walker and authorized Walker to receive possession of the shrimp and, pursuant to that authorization, Walker, effectively acting as Bestway’s driver and agent, obtained the load of shrimp and embezzled it. The loss occurred long before any rescission and before Bestway even knew it had grounds to rescind the implied agency agreement between it and Walker. The insurance company should win this one. 
      
      . See generally Annot., 12 A.L.R.2d 236 (1950).
     
      
      . See generally Annot., 36 A.L.R.2d 506, § 14 at 529 (1954); J. Appleman, 5 Insurance Law and Practice § 3183 at 597 (1970).
     
      
      .As to third persons, the acts of the purported agent may bind the principal. See Restatement (Second) of Agency § 15, Comment b (1958). This situation, however, is not present here.
     