211 S.W.2d 891 | Ark. | 1948
The extent of coverage of the insurance policy is the question presented.
On November 7, 1946, appellant issued a policy which protected appellee Williams to the extent of $1,750 against the loss of his Chrysler automobile by "theft, larceny, robbery or pilferage"; and the policy was in force at all times hereinafter mentioned. On December 26, 1946, a man calling himself George F. Martin approached Williams, seeking to buy the Chrysler automobile. The conversations began about 1:30 p.m. About 3:30 p.m. (which was after banking hours), Martin agreed to pay Williams $2,875 for the car, and offered a check drawn by Martin on the Kansas City Trust Company of Kansas City, Missouri. Martin suggested that *601 Williams call a party in Pine Bluff for references. When the Pine Bluff party recommended Martin for credit, Williams took Martin's said check, and delivered the car to Martin along with a bill of sale. The recommendation by the Pine Bluff person proved to have been an honest mistake, but — in reliance on such recommendation — Williams took the check, and parted with his car and the title thereto. The check was returned by the Kansas City bank, with the notation that Martin had no account. The Federal Bureau of Investigation was looking for Martin, and Williams joined in the search. Martin was apprehended, minus the automobile, in Las Vegas, Nevada. Williams appeared before a grand jury in Kansas City, Missouri, in its investigation of Martin, who was an ex-convict.
As soon as the check was returned, worthless, Williams notified the appellant insurance company, and made claim for $1,750, on the theory that he had lost his car by "theft, larceny, robbery or pilferage." Appellant resisted the claim, and this suit resulted. The chancery court, in decreeing recovery for Williams, found:
". . . That the automobile of Ralph Williams . . . was taken from him by a swindler operating through a preconceived plan to defraud the plaintiff Ralph Williams; which the court finds to be larceny under the statutes of Arkansas and within the meaning of the policy; . . ."
This appeal challenges the chancery decree.
We conclude that the chancery court decree is correct; and here is the reasoning which impels such conclusion.
I. The Crime by Which Martin Obtained the Car. Appellant argues (a) that Martin was not guilty of larceny, but was guilty of false pretense (3073, Pope's Digest); and (b) that the insurance policy does not protect Williams against false pretenses, but only against "larceny, theft, robbery and pilferage." Appellant contends that, when an owner voluntarily parts with both *602
possession and title, the person thus obtaining the property is guilty of false pretenses and not larceny, and appellant cites these cases: Parker v. State,
We are convinced that Martin's entire dealings with Williams were part of a preconceived plan and were fraudulent in their inception. In short, Martin started out to swindle Williams of his car, and used the check on the Kansas City bank as a part of the scheme. Even if Martin was guilty only of false pretense, still — under our statute — such false pretense is deemed to be larceny. Our statute (3073, Pope's Digest) reads:
"Every person who, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain a signature of any person to any written instrument, or obtain from any person any money, personal property, right of action, or other valuable thing or effects whatever, upon conviction thereof shall be deemed1 guilty of larceny and punished accordingly."
One guilty of the statutory crime of false pretense is deemed — or adjudged — "guilty of larceny and punished accordingly." By the plain wording of our false pretense statute, the person guilty of its violation is adjudged guilty of larceny. The wording of our statute brings the act of Martin within the policy coverage of the insurance company, i.e., larceny.
II. Cases from Other Jurisdictions. We have no case in our reports with facts directly in point with those in this case; so counsel on both sides in their zeal have furnished us excellent briefs listing and discussing cases *603 from other jurisdictions as persuasive to a decision here.2 We briefly review the cited cases and authorities.
A. Case and Authorities Cited by Appellee. We mention only four cases and two texts.
1. In Nugent v. Union Automobile Insurance Co.,
2. In Champion v. Chicago Fire Marine Ins. Co.,
"In Gardner v. State,
3. In Gaudy v. North Carolina Home Ins. Co.,
"`Every person who, with intent to deprive or defraud the owner thereof . . . (2) Shall obtain from the owner or another the possession of or title to any property, real or personal, . . . by color or aid of any fraudulent or false representation, personation or pretense or by any false token or writing or by any trick, device, bunco game or fortune telling, . . . steals such property and shall be guilty of larceny.'"
The court then said: "It seems to us the transaction comes directly within the provisions of this statute."
It will be observed that the Washington statute, as above quoted, makes a person convicted of false pretense, guilty of larceny. As previously noted, that is the way the Arkansas statute reads, and the Washington case is persuasive to our holding here.
4. In Hill-Howard Motor Co. v. North River Ins. Co.,
"The prevailing rule is that any scheme, whether involving false pretenses or other fraudulent trick or device *605 whereby an owner of property is swindled out of it with the preconceived intent of the swindler not to pay for it, is classed as larceny, and is punished accordingly. Here the swindler planned to fraudulently get possession of the plaintiff's property with intent to deprive him of it without his consent.
"Under these circumstances, the plaintiff was deprived of his property by a species of `theft,' and such an offense is generally so defined."
We again observe that a much stronger case for recovery exists in the case at bar where the coverage includes larceny in addition to theft, robbery or pilferage.
5. In addition to the cases there are certain texts that state the general rule in a case such as this one. We quote from these. In Appleman on Insurance Law and Practice, 3212, in discussing loss of vehicles through conversion by a purchaser, the text reads:
"Where the car is lost to a swindler, operating through a preconceived plan, this amounts to a theft under the terms and provisions of the policy. Thus where one fraudulently represents himself to be a prospective purchaser, this result would follow, such as where a worthless check is given for the acquisition cost."
And, in Blashfield's Cyclopedia of Automobile Law and Practice, Permanent Edition, 3712 reads: "So the act of a swindler, who by means of a preconceived plan which involves impersonation, misrepresentation, and fraud, deprives the insured of the possession of an auto mobile, the insurer retaining title to it, is larceny by trick, and theft within the meaning of the policy."
B. Cases Cited by the Appellant. We list and discuss all six of the cases cited by the appellant.
1. In Royal Ins. Co. v. Jack,
In other words, the Ohio statute on false pretense prescribes its own penalty and does not conclude, as does our statute, with the expression "shall be deemed guilty of larceny"; and this difference in the wording clearly distinguishes the Ohio case from the case at bar.
2. In Illinois Automobile Ins. Exchange v. Southern Motors Sales Co.,
The above-quoted language indicates that Alabama does not have a false pretense statute similar to our statute; so the Alabama case affords the appellant no support.
3. In Cedar Rapids National Bank v. Am. Surety Co.,
4. In Van Vechten v. Am. Eagle Fire Ins. Co.,
But this cited case from New York is considerably weakened by the subsequent opinion of the same court in Block v. Standard Ins. Co.,
"The policy in the Van Vechten case was apparently not the present form of `comprehensive' policy. Here the insurance company has insured against theft in its `Broad Form' and has defined it, not as theft, robbery or pilferage but as `Larceny, Robbery or Pilferage.' The defendant wrote the policy and chose the words used. We must give effect to the word `comprehensive' and the definition of theft. To do so is to fasten liability upon the defendant. The average automobile owner knows that the taking of an automobile in manner such as was done here constituted the crime of larceny. His legislative representative voted for that enactment. The newspaper he reads contains reports of unauthorized temporary appropriations of automobiles and both he and the newspaper now use the word joy-ride as a definition of such an act. Such act is larceny and is so considered by *608
the average man whether or not he is the owner of an automobile. Such is the ordinary meaning which `the average policyholder of ordinary intelligence, as well as the insurer, would attach to it.' Abrams v. Great American Ins. Co.,
5. In Aetna Casualty Surety Co. v. Salyers,
6. In Laird v. Employers' Liability Corp., 2 Terry (Del.) 216,
There was no showing that Delaware had a statute on false pretense reading as does our false pretense statute; so the Delaware case affords the appellant no support.
Conclusion: After reviewing the authorities from the other states, we conclude that our own statute (3073, *609 Pope's Digest) is conclusive of the question here at issue, because the swindler obtained Williams' car by false pretense, and one guilty of false pretense "shall be deemed guilty of larceny." We therefore affirm the decree of the chancery court.
The Chief Justice dissents.