Michigan Mutual Liability Co. v. Madison , 44 Ala. App. 698 ( 1968 )

JOHNSON, Judge.

This case was originally assigned to Judge Cates.

In the opinion prepared by Judge Cates he reaches the conclusion that this policy should not apply as coverage because of the following exclusion:

“ * * * Exclusions applicable to property away from described premises: This policy does not apply as respects this peril to loss away from the premises of: * * * (b) property while unattended in or on any automobile, * * unless the loss is the result of forcible entry either into such vehicle while all doors and windows thereof are closed and locked or into a fully enclosed and locked luggage compartment, of which entry there are visible marks upon the exterior of said vehicle.”

' In our opinion, this exclusion applies only if the automobile was left unattended. Thus, it is for the jury to determine whether or not the automobile was unattended.

This question was presented to the jury by the trial court in its oral instructions wherein the' court stated in part: '

“Now, the Defendant in this case first claims that the property was unattended. * * , * [T]he plaintiff contends that the circumstances under which it was parked were that the automobile was. attended and was not left unattended.

“Now, if the Plaintiff has reasonably satisfied you from the evidence of his contention as to that, then the Plaintiff would be entitled to recover of the Defendant. * * * ”

The jury in returning a verdict favorable to the appellee, plaintiff below, obviously found the car was attended.

There was testimony which established that the automobile was parked within a fenced area with gates which were manned during the time of the fair. Also, in order to drive an automobile into the fenced area one had to either pay an admission charge or have a pass.

Such evidence in my opinion would be sufficient to present to the jury the question of “attendance” vel non of the automobile.

Therefore the trial court was without error in refusing the affirmative charge. Welch v. Edgar, 43 Ala.App. 263, 188 So. 2d 598; Blue Cross-Blue Shield of Ala. v. Turner, 43 Ala.App. 542, 195 So.2d 807; Smith v. Moore, 278 Ala. 173, 176 So.2d 868.

The judgment in this cause is due to be and the same is hereby

Affirmed.

PRICE, P. J., concurs in the conclusion.