278 P. 861 | Cal. | 1929
This action was brought by the plaintiff to recover on an assigned contract of insurance, based upon the following enumerated perils insured against and the exceptions thereto:
"(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 duringthe hours of such service or employment or not, and excepting the wrongful conversion, embezzlement, or secretion by a mortgagor or vendee in possession under mortgage, conditionalsale or lease agreement, and excepting in any case, other than in case of the theft of the entire automobile described herein, the theft, robbery or pilferage of tools and repair equipment." (Italics ours.)
[1] The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The lower court overruled the demurrer and, defendant having declined to answer, judgment was entered in the sum prayed for. The defendant prosecutes this appeal therefrom on the judgment-roll. The plaintiff's assignor and one Spainhower on February 21, 1923, entered into a conditional contract of sale by the terms of which plaintiff's assignor agreed to sell the automobile to Spainhower for $400, payable $140 upon the execution of the contract and the balance at the rate of $30 per month. *357
Subsequent to the execution of the contract, which was also subsequent to the delivery of the check for $140, but prior to the delivery of the automobile, the insurance policy was issued by the appellant, insuring the plaintiff's assignor and Spainhower "jointly and severally" against loss occurring by reason of "theft, robbery or pilferage," subject to the exceptions above enumerated in said paragraph (c) of said contract of insurance. Spainhower disappeared with the automobile, and neither he nor the automobile was thereafter located. The sole question to be solved is whether it was the intent of the parties to the insurance policy to insure against the loss of said automobile in the manner above described. In other words, what did the parties contemplate by the use of the words and phrases and exceptions employed in said paragraph? This transaction transpired long prior to the act of the legislature which expanded and defined the meaning of the word theft in its application to larceny. If it be conceded solely for the purpose of argument that the legal definition of the word theft as used in the contract of insurance included the act of obtaining possession of said automobile in the manner described in the complaint, nevertheless plaintiff could not recover thereon, for the reason that it is clear that the parties thereto intended to exclude (and certainly not to include) as a risk or peril insured against, the kind of dishonest acts which the vendor of said automobile charges against the person whom he voluntarily selected as a conditional purchaser of said automobile. Paragraph (c) of the contract, upon which plaintiff relied to sustain his action, does unquestionably by necessary implication, if not by express terms, exclude the acts which form the gist of this action as constituting risks insured against. If the rule ofejusdem generis as applied to the first four words of said paragraph (c), to wit, "theft, robbery or pilferage," as those words are commonly if not universally understood by the public, is not absolutely conclusive of the point that the parties meant thereby those ordinary acts of dishonesty accomplished by stealth or force, in which the owner of the property is not a voluntary participant, certainly the remaining portion of the sentence, to wit, "excepting by any person or persons in the assured's household or in the assured's service or employment, whether thetheft, robbery *358
or pilferage occur during the hours of such service or employment or not, . . ." removes all doubt and makes it absolutely certain as to the kind of acts committed by third persons that were intended to be and were covered by the policy of insurance. It will be noted that the parties did not have in mind such an unusual and absurd proposition of the vendee committing theft, robbery or pilferage against the owner who had voluntarily placed his property in the hands of the vendee. If the first portion of said paragraph may be said to be uncertain as to what the parties intended, the latter portion which excepts wrongful conversion, embezzlement or secretion bya mortgagor or vendee in possession under mortgage, conditionalsale or lease agreement, would seem to be sufficient to remove any doubt as to the intent of the parties. "The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other." (Civ. Code, sec.
[2] The complaint alleges that the party whom the owner of the automobile made its conditional vendee obtained possession of said automobile by falsely representing to the owner that he had on deposit with the National Bank of Kansas City, Missouri, $140, when, as a matter of fact, he had no such sum or any part thereof on deposit with said bank. The most that can be said of this transaction, as shown upon the face of the complaint, is that it constituted a very ordinary case of false representation, and it is so pleaded in the complaint. The complaint contains no statement of facts which would constitute larceny by trick or device. The transaction constitutes a simple case of obtaining *359 the possession of property by false representations, and neither party intended to nor had in mind any thought of covering any such risk or abuse of confidence which thereafter developed, by the policy of insurance.
The automobile was sold by its owner to a vendee selected by it upon a contract of sale and the insurance company cannot be required, in the light of the facts in this case, to assume the obligation of the vendee. We think there is nothing in Buxton
v. International Indemnity Co.,
Numerous cases are cited by respondent as illustrative of the applicability of the word theft to the facts of the instant *360
case. While we are of the view that the contract excepts as a peril insured against the deprivation of the owner of his property parted with in the manner described in the complaint, it nevertheless may be stated in passing that the facts in said cited cases which are held to constitute larceny or theft are widely different from the facts pleaded in the instant case. For example, People v. Shaughnessy,
In their brief and on oral argument counsel for appellant have stated that the only question involved in the appeal is whether a policy insuring against theft, robbery and pilferage insures against a larceny committed by means of trick and device. The attitude of counsel evidences a desire to have this question settled on this appeal and by the statement that it is the only question presented to compel its determination. However desirable that result might be, we *361 cannot be forced into that position in the face of the plain terms of the policy which remove that question from the case.
The contract of insurance forming a part of the complaint by special reference must be examined in order to determine whether a cause of action is stated therein. Upon so examining it, we are of the opinion that it does not state a cause of action and the demurrer should have been sustained.
The judgment is therefore reversed and the cause remanded to the superior court, with direction to sustain said demurrer.
Shenk, J., Langdon, J., Waste, C.J., Preston, J., Curtis, J., and Richards, J., concurred.