Baker v. Continental Ins. Co.
| Decision Date | 07 March 1942 |
| Docket Number | 35306. |
| Citation | 122 P.2d 710,155 Kan. 26 |
| Parties | BAKER v. CONTINENTAL INS. CO. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
A contract of insurance should be liberally construed in favor of insured and strictly as against insurer.
Where a boy, without insured's knowledge or consent, took insured's automobile for a ride and then relinquished control of automobile to an associate who wrecked it, the taking and use of automobile was a "theft" within a policy insuring against loss or damage to automobile through theft, notwithstanding that the boy appropriated automobile for his own use "for as long as he saw fit" but did not intend to permanently deprive insured of automobile. Gen St. 1935, 21-544.
1. A policy insuring an automobile against theft is broad enough to cover the act of a boy who without the knowledge or consent of its owner took it for a ride, and picked up two other boys and drove the car for a few miles into Oklahoma and back, and thence around the country for some distance and then relinguished the control of the car to one of his associates who permitted it to leave the highway and wrecked it.
2. The fact that the boy appropriated the car for his own personal use without the owner's consent, "for as long as he saw fit," but did not intend to permanently deprive the owner of his property did not exempt the insurance company from liability on its policy insuring the car against loss or damage for theft under the terms of its policy liberally interpreted.
Appeal from District Court, Cowley County; Stewart S. Bloss, Judge.
Action by Clyde Baker against the Continental Insurance Company on an insurance policy insuring plaintiff against loss or damage to his automobile through "theft, robbery or pilferage." From a judgment for plaintiff, defendant appeals.
Albert Faulconer, Kirke W. Dale, and Donald Hickman, all of Arkansas City, for appellant.
W. L Cunningham, D. Arthur Walker, and William E. Cunningham, all of Arkansas City, for appellee.
Plaintiff Clyde Baker recovered judgment against the defendant insurance company for loss and damage sustained in the alleged theft of his automobile.
Plaintiff owned a two-door Ford sedan which was covered by a policy of insurance issued by defendant and which insured plaintiff against loss or damage to his automobile through "theft robbery or pilferage."
The pertinent facts were developed without material dispute. Plaintiff and his family resided a short distance north of Arkansas City which is situated near the Kansas-Oklahoma state line. On Sunday morning, June 4, 1939, his wife and two small daughters set out for church and Sunday school in the Baker automobile. One Claude Moore, a boy of juvenile court age, rode along with them. When they reached the church Mrs. Baker left the ignition key in the car. Young Moore went into the church at one door and out at another and got into the Baker car and drove it away. He picked up two other boys and they rode down into Oklahoma a few miles, thence north through Arkansas City for some distance, and stopped for a time. Then one of Moore's companions took the wheel and on their way back to town the car left the highway and was wrecked.
Plaintiff's demand on defendant to be reimbursed for the loss and damage was rejected. Hence this action. The jury's verdict in favor of plaintiff was for $430 and interest. Answers to two special questions were also returned by the jury:
Judgment was entered on the general verdict and defendant appeals, urging several errors which its counsel summarize into a single question of law, viz.: Did the taking and use of appellee's automobile under the admitted facts in the case constitute a theft of the car within the meaning of the insurance policy, in view of the specific finding of the jury that Claude Moore did not intend to permanently appropriate the car to his own use?
Defendant's counsel take the negative side of this question and direct our attention to a provision of the Crimes Act, G. S.1935, 21-544, which declares it to be a misdemeanor to take away or use any automobile, "with intent to deprive the owner of the temporary use thereof, against the owner's will but not with the intent of stealing or converting the same permanently to his own use." By another provision of the same statute the felonious stealing of an automobile is declared to be grand larceny and punishable by imprisonment in the penitentiary.
It is argued that since the legislature itself has drawn this distinction between the larceny of an automobile and the mere trespass of temporarily depriving the owner of its use, the obligation of the insurance policy should be interpreted according to these provisions of the Crimes Act. This court has not hitherto interpreted the terms of a civil contract so strictly unless the text compelled such construction. In Hill-Howard Motor Co. v. North River Insurance Co., 111 Kan. 225, 207 P. 205, 24 A.L.R. 736, we held that where the owner of an automobile was swindled out of its possession, the lures and wiles of the swindler by which he accomplished that object constituted a species of theft for which the car owner could recover on a policy insuring him against theft, robbery and pilferage. In the opinion it was said: (citing and quoting from the Mitchell Grain & Supply Co. v. Maryland Casualty Co., 108 Kan. 379, 382, 195 P. 978, 16 A.L.R. 1488).
The authorities in other jurisdictions are divided on the question at bar. Speaking generally the earlier decisions held that the term "theft" in an insurance policy was synonymous with larceny, and recovery was usually denied to the holder of a policy of insurance for the theft of his automobile unless the...
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