291 P. 698 | Cal. Ct. App. | 1930
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *292 Action on an automobile insurance policy. The policy was issued by defendant company for the benefit of plaintiff and other beneficiaries named therein. It was one in the form universally in use by automobile dealers who insert in their policies for convenience the names of different finance companies or concerns through which they do their financing. The policy, among other things, insured the beneficiaries named therein against theft, robbery or pilferage, except by any person in the assured's household or in their service or employ, and excepting also the wrongful conversion, embezzlement or secretion by a mortgagor or vendee in possession under mortgage, conditional sale or lease agreement. While the policy was in full force and effect the plaintiff, respondent herein, was conducting a motor-car sales agency in the city of San Jose, and among the cars he was offering for sale was a certain Willys-Knight sedan, which was covered by the policy of insurance here sued upon. On July 31, 1927, a man giving the name of M.D. Ritchie, a stranger to respondent, came into his place of business and approached the salesman on duty, with the request that he be permitted to inspect the automobiles on display with a view of purchasing one. He gave the salesman his supposed name and a fictitious address in San Francisco. While inspecting the cars the prospective purchaser was informed by the salesman that it was his lunch hour and he requested the customer to remain in the premises for a short time, after which he promised to take him for a ride for the purpose of demonstrating the merits of the sedan. Upon the salesman's return from lunch the parties proceeded to the door of the establishment and were about to enter the car when another party who had a previous appointment with the salesman arrived. The prospective purchaser was then requested *293 by the salesman to drive the car around the block while he was interviewing the new arrival. Shortly thereafter, when the salesman finished his business, he turned to look for the stranger, but found he had disappeared. Upon inquiry being made, it transpired that the address given to the salesman was fictitious and the impostor and the car were thereafter seen no more. Suit was brought by plaintiff upon the bond and he recovered judgment in the sum of $1396.32. Two questions are here presented which it is claimed compel a reversal of the judgment: (1) The proper construction and application of the contract of insurance; (2) nonjoinder of proper parties as plaintiffs.
The present statute of this state in its definition of theft, includes what formerly constituted the several crimes of larceny and embezzlement. This statute, however, was enacted subsequent to the issuance of this policy and in so far as its determinative effect upon the definition to be given to the word "theft" in the policy, would not be effective, as the statute can have no retroactive operation. At the time the policy was issued, there was no such crime or offense under the penal statutes as "theft." There was larceny, larceny by trick and device and embezzlement. Notwithstanding this fact, we are of the opinion that it was the intention of the parties that the policy should cover such an act as the facts in this case present, and also, for other reasons, the judgment must be affirmed.
[1] In interpreting a contract, language is to be given the meaning which the one using it apprehended or should have apprehended that the other party would give to it. The common or normal meaning of language will be given to the words employed unless the circumstances show that in a particular case a special meaning should be attached to them. [2] Then again, in construing a writing, all parts are to be considered with reference to each other, and in the case of a contract of insurance, the contract is to be interpreted in the light of its nature in view of its purpose as such, and with a considerable degree of liberality in favor of the insured and against the insurer by reason of it having framed the contract. A risk fairly within contemplation is not to be avoided by any nice distinction or artificial refinement in the use of words. (Mitchell Grain Supply Co. v. Casualty Co.,
We are cited to the case of Fiske v. Niagara Fire Ins.Co.,* (Cal.App.) 266 P. 853, as opposing this conclusion. In that case there was an actual sale and an actual transfer of title and a subsequent conversion. It has been expressly held that where one permits another to take his car for the purpose of trying it out, the question of sale to be determined afterward, and such person never returns it, such transaction does not constitute a conditional sale and the insurance company is not relieved of liability by a clause in the policy exonerating the company from liability in case of theft while the car was in the possession of a vendee under a conditional sale. Such taking was held to be theft by the bailee. (Southern Casualty Co. v.Landry, supra.)
Aside from these considerations, we are of the further opinion that the facts show a larceny rather than an embezzlement *296
as claimed by appellant. The prevailing rule is that any scheme, whether involving false pretenses or other fraudulent trick or device whereby an owner of property is swindled out of it with the preconceived intent of the swindler to unlawfully possess it, is classed as larceny. The natural and obvious meaning of the word "steal" is a felonious taking of property. (Darling v.Clement,
[8] The facts as above narrated conclusively show that here the swindler had formed a guilty intent to obtain possession of the automobile at or before the time he unlawfully acquired it and that his possession at all times was unlawful. He gave a fictitious name and address and did other acts which plainly showed his guilty intent to acquire the car. His act, therefore, constituted larceny, which crime constitutes "theft" within the meaning of the bond. (Security Ins. Co. v.Sellars-Sammons-Signor Co., (Tex. Civ. App.)
As above recited, the form of policy was one universally in use by automobile dealers who have inserted in their policies the name of different finance companies or concerns which do their financing. Under no circumstances can the defendant be subjected to any further claim growing out of the transaction. Under these facts the question of whether the other beneficiaries named should have been made parties becomes immaterial, as defendant was in no manner prejudiced by any ruling of the court upon this subject.
The judgment is affirmed.
Knight, J., and Cashin, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on October 15, 1930, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal was denied by the Supreme Court on November 13, 1930.