In Waters Motor Co. v. Grain Dealers Mutual Ins. Co., 12 Wis.2d 231, 107 N.W.2d 129, a customer represented to the dealer that he had made up his mind to purchase the car but first wanted to show it to his wife, which would take not more than three-fourths of an hour, and he would then come back to close the transaction.Summary of this case from Insurance Company v. Kaplan
November 29, 1960 —
January 10, 1961.
APPEAL from an order and a judgment of the circuit court for Dane county: NORRIS E. MALONEY, Circuit Judge. Order and judgment affirmed.
For the appellant there was a brief by Orr, Isaksen, Werner Lathrop of Madison, and oral argument by Trayton L. Lathrop.
For the respondent there was a brief by Swingen, Stern Lenahan, attorneys, and Lawrence E. Hart of counsel, all of Madison, and oral argument by Mr. Hart.
An action commenced on October 30, 1957, to recover a loss for theft upon an insurance policy issued by the defendant insurance company to the plaintiff automobile dealer.
The complaint alleges that the defendant is a foreign corporation, duly licensed to issue policies of insurance in the state of Wisconsin; that on or about the 31st day of May, 1956, the defendant issued to the plaintiff a policy of insurance and annexed a copy of the policy which it incorporated as a part of its complaint. It further alleged that the policy was in full force and effect on the 14th day of May, 1957, and that on May 14, 1957, one Ernie Knoffee expressed interest in the purchase of a 1955 hard-top Catalina Pontiac car which the plaintiff owned and was holding for sale on its used-car lot in the city of Madison; that the price was $1,995. Knoffee represented to the plaintiff, among other things, that he had made up his mind to purchase the car, but that he first wanted to show it to his wife. He further represented that it would not take him more than three quarters of an hour to drive to his home, show the car to his wife, and return to the plaintiff's place of business for the purpose of closing the transaction. In reliance upon such representations, the plaintiff voluntarily parted with the possession but not the title to the 1955 Catalina Pontiac, for the purpose of permitting Knoffee to show the car to his wife, and return, and for no other purpose; that Knoffee did not return the car to the plaintiff and that the plaintiff subsequently reported the car to the police as stolen. The complaint further alleges that the car has never been returned to the plaintiff, and that plaintiff does not know the whereabouts thereof. Plaintiff further stated that its loss under the provisions of the policy amounted to $2,073.35, and that although it has made demand for payment for its loss under the terms of the policy, the defendant has refused to pay
The defendant demurred. The trial court sustained the demurrer and ordered judgment in favor of the defendant dismissing the plaintiff's complaint. It is from this order and judgment that the plaintiff appeals.
The only issue presented on this appeal is whether the plaintiff is precluded from recovery for theft of the automobile under the exclusion clause contained in the rider attached to the automobile policy.
The defendant-respondent insurance company issued to the plaintiff-appellant an automobile dealers' policy of insurance insuring its automobiles. The insurance policy is in the same form as many ordinary policies covering individual automobile owners. There is attached to the policy a rider entitled "Automobile Dealers' Open Policy — Monthly Reporting Form `A'."
In the insuring agreement of the policy there is a covenant entitled "Coverage D — Theft (Broad Form)," wherein the company agrees "to pay for loss of or damage to the automobile, hereinafter called loss, caused by theft, larceny, robbery, or pilferage."
Item 4 of the declarations on the first page of the policy provides a place to insert the automobile covered by the policy. This particular item is not completed and the policy accordingly does not describe any particular automobile.
The rider attached to the policy contains an exclusion clause, which provides:
"(d) Under any Coverage — to loss resulting from either the insured voluntarily parting with title and possession of any automobile if induced so to do by any fraudulent scheme, trick, device, false pretense, or from embezzlement, conversion, secretion, theft, larceny, robbery, or pilferage committed by any person including any employee, intrusted by the insured with either custody or possession of the automobile." (Emphasis supplied.)
The disjunctive word "or," as used in the policy, sets forth two separate types of exclusion: (1) To loss resulting from either the insured's voluntarily parting with title and possession . . . if induced . . . by any fraudulent scheme, trick, device, false pretense, or (2) to loss resulting from embezzlement, conversion, secretion, theft, larceny, . . . committed by any person intrusted by the insured with either custody or possession of the automobile.
The disjunctive word "or" as used in the exclusion clause connects a series of words or conditions and a construction of the policy which gives effect to every word is preferable to one which does not. Dore v. Glenn Rock Mineral Spring Co. (1911), 147 Wis. 158, 132 N.W. 906, and Lontkowski v. Ignarski (1959), 6 Wis.2d 561, 95 N.W.2d 230.
In the instant case the plaintiff intrusted the automobile to the prospective purchaser and gave him custody and possession. Even though such custody and possession was obtained by false pretenses or false representations, the loss to the plaintiff occurred as a result of theft, larceny, or conversion.
The exclusion clause is set forth in the rider to the policy in plain and concise language and this court will not under the guise of strict construction against the company rewrite a policy of insurance so as to bind the insurer to a risk which it was unwilling to cover and for which it was not paid. Dinkin v. American Ins. Co. (1954), 268 Wis. 138, 66 N.W.2d 681, Heinen v. Home Mut. Casualty Co. (1958), 5 Wis.2d 282, 92 N.W.2d 836, and Lontkowski v. Ignarski, supra.
The plaintiff contends that one who gains possession of an article by trick is deemed guilty of larceny at common law. This court is not concerned with the common-law concept of larceny. Theft and larceny under our statutes are coextensive in meaning and have been combined. The statute in effect at the time of the issuance of the policy and rider covering the automobile is sec. 943.20, Stats. 1955, which provides:
"943.20 THEFT. (1) Whoever does any of the following may be penalized as provided in sub. (3):
"(a) Intentionally takes and carries away, uses, transfers, conceals, or retains possession of movable property of another without his consent and with intent to deprive the owner permanently of possession of such property. . . .
"(2) Definitions. In this section:
"(a) `Property' means all forms of tangible property, whether real or personal, without limitation including electricity, gas, and documents which represent or embody a chose in action or other intangible rights.
"(b) `Movable property' is property whose physical location can be changed, without limitation . . ."
On substantially analogous facts, recovery has been denied under similar exclusion clauses. Pacific Indemnity Co. v. Harrison (Tex.Civ.App. 1955), 277 S.W.2d 256; Hanover Fire Ins. Co. v. Scroggs (1955), 92 Ga. App. 548, 88 S.E.2d 703; Grady Motors Corp. v. Travelers Fire Ins. Co. (D.C., D.C. 1957), 147 F. Supp. 290; Baxter Motors v. Iowa Hardware Mut. Ins. Co. (1958), 15 Ill. App.2d 524, 146 N.E.2d 797; Dupre v. Western Assurance Co. (La. 1959), 112 So.2d 165; and Milburn v. Federated Mut. Implement Hardware Ins. Co. (Okla. 1960), 349 P.2d 644.
The order of the trial court sustaining the demurrer and the judgment entered thereon is affirmed.
By the Court. — Order and judgment affirmed.