Summary
In Glens Falls Insurance Company v. Stewart (supra) the defendant and his wife were living separate and apart and the wife appropriated the car under a claim of right and the court held that it was never intended by a theft policy to indemnify against the taking of an automobile under such circumstances.
Summary of this case from Schenectady Varnish Co., v. Automobile Ins. Co.Opinion
May 28, 1926.
Clarence De Witt Rogers, for the plaintiff.
Roswell S. Nichols [ Solomon Traub of counsel], for the defendant.
Plaintiff insured defendant against theft, robbery or pilferage of his automobile under a valued policy. Defendant separated from his wife. While they were living apart the wife found the automobile standing in front of a garage, appropriated and took it away. The defendant claimed for the loss under the policy. The evidence does not show at this time or at the time of the payment to the defendant hereafter referred to that either the plaintiff or the defendant knew that the wife had thus taken the automobile. The insurance company thereupon paid the amount of the policy to the defendant under a receipt reciting that it was a loan, repayable out of any recovery "on account of loss by theft of my automobile." Upon ascertaining that the wife had thus taken the automobile plaintiff brought this suit to recover the payment upon the ground that the automobile had never in fact been stolen. Plaintiff's claim that the automobile had been given to the wife is not sustained by the evidence. It is fairly inferable from the evidence, however, that she in good faith claimed it and that there was no felonious intent in the taking. ( Rush v. Boston Ins. Co., 88 Misc. 48; People ex rel. Perkins v. Moss, 187 N.Y. 410, 419; Bigus v. Pacific Coast Cas. Co., 145 Mo. App. 170; McCourt v. People, 64 N.Y. 583, 586.)
The real question is the interpretation of the contract. An incident such as here occurred was never fairly intended to be covered by insurance against "theft, robbery or pilferage." In the words of CARDOZO, J., in Van Vechten v. American E.F. Ins. Co. ( 239 N.Y. 303, 305, 307): "The problem before us is not one of statutory construction. It is one of the meaning of a contract. * * * Theft under this contract is theft as common thought and common speech would now image and describe it."
It was never intended by this policy to indemnify against the taking of an automobile by the insured's wife under a claim of right.
I direct a verdict for the plaintiff for $2,000, with interest from February 2, 1922.