143 P. 559 | Mont. | 1914
delivered the opinion of the court.
In November, 1910, the Valley Mercantile Company and Ralph C. Stiff secured a policy of insurance upon their automobile. In April following,- while the policy was in full force and effect, the owners placed the car in a paint-shop in Missoula to be repainted, and while there it was taken by Ed. Le Vasseur and Victor Ellis, employees in the paint-shop, and by them driven to De Smet and damaged. Under the terms of the policy the owners were insured against loss in excess of $25 on any single occasion, resulting from the theft of the automobile “by persons other than those in the employ, household or service of the assured.” Demand was made upon the insurance company for an amount sufficient to cover the loss, and, upon refusal, this action was instituted. The complaint, after formal recitals relating to the insurance, alleges that “the automobile * * *
But one assignment needs to be considered. If the evidence is sufficient to sustain the verdict, the slight errors occurring at the trial ought not to work a reversal of the judgment. If the evidence is insufficient, it is apparent that a new trial would be useless.
A day or two after the automobile was left in the paint-shop Le Yasseur and Ellis at the close of the working day, about 5 P. M., in the absence of the owner of the shop and without his knowledge or consent or the knowledge or consent of the plaintiffs, or either of them, took the automobile from the shop, ran it to a point near De Smet, where an accident occurred which caused considerable damage to the ear. A telephone message was sent to a public garage in Missoula for help, and James Hartley responded. When he reached De Smet he found Le Vasseur and Ellis at the broken car — the car headed toward Missoula — and they assisted Mm in towing it into the city and in replacing it in the paint-shop. Both of these men continued to work at the shop for a considerable time after the injury to the car was discovered by the owners. The owner of the paint-shop locked the front door — the only one through which the automobile could be moved — before he left the shop on the day in question. This was the only evidence which tended to characterize the taking at the time plaintiffs rested and defendant interposed its motion for a nonsuit. On behalf of the defend
The liability or nonliability of the insurance company depends
In State v. Rechnitz, 20 Mont. 488, 52 Pac. 264, this court adopted the very terse expression of the rule from the court of appeals of New York, as follows: “Every taking by one person of the personal property of another without his consent is not larceny; and this although it was taken without right or claim of right and for the purpose of appropriating it to the use of the taker. • Superadded to this there must have been a felonious intent, for without it there was no crime. It would, in the absence of such intent, be a bare trespass, which, however aggravated, would not be crime. It is the criminal mind and purpose going with the act which distinguishes a criminal trespass from a mere civil injury.” (McCourt v. People, 64 N. Y. 583.)
To constitute the crime of larceny, the intent which accompanies the act of taking must be the criminal intent to deprive the owner of his property, not temporarily, but permanently. In In re Mutchler, 55 Kan. 164, 40 Pac. 283, the supreme court of Kansas said: “A felonious intent means to deprive the owner, not temporarily, but permanently, of his own property, without color of right or excuse for the act, and to convert it to the taker’s use without the consent of the owner.” This is quoted with approval in State v. Shepherd, 63 Kan. 545, 66 Pac. 236. In People v. Brown, 105 Cal. 66, 38 Pac. 518, the trial court instructed the jury that larceny may be committed even though it was only the intent of the party taking the property to deprive the owner of it temporarily. Of this instruction the supreme court said: “But the test of law to be applied to these circumstances for the purpose of determining the ultimate fact as to the man’s guilt or innocence is: Did he intend to permanently deprive the owner of his property! If he did not intend so to do, there is no felonious intent, and his acts constitute but a trespass. .While the felonious intent of the party taking need
Considered in the light of these rules, tbe facts stated do not warrant tbe inference that the car in question was taken by Le Vasseur and Ellis with the criminal intent to deprive the owners of it permanently, and therefore the car was not stolen, and this case does not come within the provision of the insurance policy referred to above. Upon facts very similar this same conclusion was reached in Bigus v. Pacific Coast Casualty Co., 145 Mo. App. 170, 129 S. W. 982, Smith v. State (Tex. Cr. App.), 146 S. W. 547, and Travelers’ Indemnity Co. v. Fawkes, 120 Minn. 353, 45 L. R. A. (n. s.) 331, 139 N. W. 703.
The facts do bring the ease clearly within the rule that “where one without permission borrows goods of another intending and having the power to restore or replace them, the taking, although wrongful, does not constitute larceny.” (25 Cyc. 49 (i).)
The motion for a directed verdict should have been sustained. The judgment and order are reversed and the cause is remanded, with directions to dismiss the complaint.
Reversed and remanded, with directions.