General Cas. Co. of America v. Gunion

• Decision Date: 21 October 1953
• Docket Number: No. 1365.,1365.
• Citation: 99 A.2d 643
• Parties: GENERAL CAS. CO. OF AMERICA v. GUNION.
• Court: D.C. Court of Appeals

99 A.2d 643

GENERAL CAS. CO. OF AMERICA v. GUNION.

No. 1365.

Municipal Court of Appeals for the District of Columbia.

Argued August 24, 1953.

Decided October 21, 1953.

Rehearing Denied November 12, 1953.

COPYRIGHT MATERIAL OMITTED

Denver H. Graham, Washington, D. C., with whom Albert E. Brault, Washington, D. C., was on the brief, for appellant.

Jo V. Morgan, Jr., Washington, D. C., for appellee.

Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.

HOOD, Associate Judge.

The insurance company appeals from a judgment rendered against it on a residence theft policy. On five separate occasions over a period of several months the insured, Mrs. Gunion, gave sums of money in her home to one Harton to finance a secret venture proposed by him, to assist her aunt in fleeing Rumania and coming to this country. The venture was in fact a hoax devised by Harton who absconded with the money.

Our first question is whether the policy covered the loss. It covered loss by theft and defined theft to include larceny, burglary, robbery and mysterious disappearance. The legal concept of larceny, specifically larceny by trick, covers a situation where one "obtains money from another upon the representation that he will perform certain service therewith for the latter, intending at the time to convert the money, and actually converting it, to his own use". Means v. United States, 62 App.D.C. 118, 119, 65 F.2d 206, 207, quoted in Graham v. United States, 88 U.S.App.D.C. 129, 187 F. 2d 87, certiorari denied 341 U.S. 920, 71 S. Ct. 741, 95 L.Ed. 1353. When the legal concept of a word in a policy favors the insured that concept should be adopted since the insured is entitled to the most favorable reasonable construction. Pennsylvania Indemnity Fire Corp. v. Aldridge, 73 App.D.C. 161, 117 F.2d 774, 133 A.L.R. 914. Therefore we must hold that money given by the insured in her home to Harton upon the fraudulent representations that he would apply it to the special purpose described above was lost through larceny and such loss came within the coverage of the policy.¹ The sums of $350 and $15.93 were given to IIarton under such circumstances.

Other sums, however, were given tinder circumstances not constituting larceny. One sum, $18.53, was given as reimbursement for a supposed telephone call, and another, $100.60, was given as reimbursement for funds supposedly advanced by Harton to a Major Anderson.² It was pointed out in Graham v. United States, supra [88 U.S. App.D.C. 129, 187 F.2d 88], quoting from United States v. Patton, 3 Cir., 120 F.2d 73, 76, that there is a distinction "`between the case of one who gives up possession of a chattel for a special purpose to another who by converting it to his own use is held to have committed a trespass, and the case of one who, although induced by fraud or trick, nevertheless actually intends that title to the chattel shall pass to the wrongdoer.'" When the insured delivered money to Harton to reimburse him for expenditures claimed by him to have already been made, she intended title to pass to him, although she was induced to do so by his fraudulent representation. These sums cannot be said to have been lost through larceny. For the same reason, the fifth item, $50, which the insured said could be called a loan and which her check stub indicated was a loan to Harton which he was to repay, was not lost through larceny.

Our next question is how recovery is limited by the policy's provision that "the limit of the company's liability for loss of money is $100." The company contends that $100 is the maximum that can be recovered and urges that the separate sums given Harton be treated as lost through a single continuous transaction. There is no basis for treating several losses occurring on separate occasions as one merely because one scheme is used to bring them about. We must turn to the words of the policy to ascertain the meaning of the $100 limitation of liability. With reference to the various limitations of liability stated in the policy, the policy provides: "Upon receipt by the company of notice of loss for which the company is liable under this policy, the applicable limit of liability shall be reduced to the extent of the company's liability for such loss, except with respect to loss occurring subsequent to the receipt by the company of such notice." This sentence so far as it relates to the $100 limitation appears to us to mean that the company is liable up to, but not...