Illinois Automobile Ins. Exch. v. Southern Motor Sales Co.

• Decision Date: 06 April 1922
• Docket Number: 6 Div. 476.
• Citation: Illinois Automobile Ins. Exch. v. Southern Motor Sales Co., 207 Ala. 265, 92 So. 429 (Ala. 1922)
• Parties: ILLINOIS AUTOMOBILE INS. EXCH. v. SOUTHERN MOTOR SALES CO.
• Court: Alabama Supreme Court

92 So. 429

207 Ala. 265

ILLINOIS AUTOMOBILE INS. EXCH. v. SOUTHERN MOTOR SALES CO.

6 Div. 476.

Supreme Court of Alabama

April 6, 1922

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by the Southern Motor Sales Company against the Illinois Automobile Insurance Exchange upon a policy covering, among other things, the theft of a car. Judgment for the defendant which on motion of plaintiff was set aside and new trial ordered, from which order defendant appeals. Reversed and remanded.

Lange &amp Simpson, of Birmingham, for appellant.

Wood & Pritchard, of Birmingham, for appellee.

McCLELLAN J.

This is an action instituted by appellee against appellant on a policy of indemnity against certain losses that may be suffered by automobile owners. There was verdict and judgment for the defendant; but the motion for new trial was granted, this appeal being from that action of the trial court. Among other things, the policy held by the insured contained indemnity against "(B) Theft, robbery or pilferage if in excess of $25.00 on any single occasion, by any person or persons other than those" in the employment, etc., of the assured. The facts, to be later outlined, make no case of "robbery" within any possible terms of the policy nor of "pilferage," a term meaning "petit larceny" (Hartford Co. v. Wimbish, 12 Ga.App. 712, 78 S.E. 265; Stuht v. Maryland Motor Ins. Co., 90 Wash. 576, 156 P. 557; Huddy on Autos [5th Ed.] § 838), enlarged by the policy's terms to exceed $25 in value, the subject of the liability claimed being an automobile of considerable value, no taking of a minor part thereof being shown.

The liability asserted under the policy depends upon the construction of the term "theft." Where the provisions of a policy of indemnity are reasonably susceptible of two constructions, consistent with the object of the obligation, one favorable to the assured, and the other favorable to the assurer, that will be adopted which is favorable to the assured. American Sur. Co. v. Pauly, 170 U.S. 133, 144, 18 S.Ct. 563, 42 L.Ed. 987, and other authorities cited in Ill. Surety Co. v. Donaldson, 202 Ala. 183, 79 So. 667; Joyce on Ins. (2d Ed.) § 222. As therein employed, "theft" is synonymous with "larceny." 38 Cyc. 272.

At common law, if one secures the possession of a chattel, not the title thereto or a special property therein, by or with the consent of the owner, through a fraudulent trick or device, then intending to steal the chattel, it is larceny. Savage v. State, 15 Ala. App. 168, 170, 72 So. 694; Frazier's Case, 85 Ala. 17, 4 So. 691, 7 Am. St. Rep 21; 25 Cyc. pp. 40-42.

Subject to exceptions not presently important the doctrine is well established that, where the owner intends to transfer, not the possession merely, but also the title to the property, although induced thereto by the fraud or fraudulent pretenses of the taker, the taking and carrying away do not constitute theft or larceny. Though the transaction is voidable at the election of the defrauded seller, the passing of the title to the chattel sold effects to prevent the act of the buyer from constituting theft or larceny of the goods of another. Kellogg v. State, 26 Ohio St. 15, 19; 2 Bishop's Cr. Law (8th Ed.) pp. 475, 476; Black's Case, 83 Ala. 81, 83, 3 So. 814, 3 Am. St. Rep. 691; Lightman v. Boyd, 132 Ala. 618, 619, 620, 32 So. 714; Butler v. State, 91 Ala. 87, 9 South 191; Wilson's Case, 1 Port. 118; Wharton's Cr. Law (11th Ed.) §§ 1126, 1206; Freeman's Notes, 57 Am. Dec. 278, 279, 285.

Whether the policy's term "theft"-larceny-includes larceny by fraudulent trick or device, is a question contested by counsel. According properly invoked influence to the rule of construction of...