Rainville v. Farm Bureau Mut. Auto. Ins. Co.

• Decision Date: 02 October 1951
• Docket Number: No. 522,522
• Citation: Rainville v. Farm Bureau Mut. Auto. Ins. Co., 117 Vt. 37, 83 A.2d 599 (Vt. 1951)
• Court: Vermont Supreme Court
• Parties: RAINVILLE v. FARM BUREAU MUT. AUTO. INS. CO.

Page 599

83 A.2d 599

117 Vt. 37

RAINVILLE v. FARM BUREAU MUT. AUTO. INS. CO.

No. 522.

Supreme Court of Vermont.

Oct. 2, 1951.

Sylvester & Ready, St. Albans, for plaintiff.

Austin & Edmunds, Burlington, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

BLACKMER, Justice.

This is an action of contract on an automobile insurance policy. Trial was by jury. At the close of the plaintiff's case, on motion that the plaintiff had not proved a theft, the court directed a defendant's verdict and entered judgment thereon.

Viewed in the light most favorable to the plaintiff, his evidence tends to establish the following facts. The plaintiff insured his automobile with the defendant against 'Loss of or damage to the Automobile except by Collision or Upset but including Fire, Windstorm and Theft.' The plaintiff's son, Andrew, a licensed operator, took this vehicle with the plaintiff's permission for the purpose of attending a meeting for young people at a local church. Andrew was accompanied to the church by Roger, another son of the plaintiff. Roger was sixteen years old; he had no operator's license, nor did he have permission to drive the plaintiff's car. At the church Roger took the automobile, drove it six miles away, turned around, and was half way back on his return trip to the church when the automobile ran off the road under circumstances not shown and was wrecked.

The sole issue presented is whether these facts constitute a theft within the meaning of the insurance policy.

The rule in the great majority of states may be stated in this manner. To warrant a recovery on a policy insuring an automobile against theft there must be more than a wrongful taking; the taking must be with the intent to steal. The intent to steal is a necessary ingredient of the offense, and may be inferred from the facts and circumstances of the case. 5 Am.Jur. Automobiles § 569 and A.L.R. Annotations there cited; Annotations 133 A.L.R. 920 and 152 A.L.R. 1100; 45 C.J.S. Insurance § 886, p. 954; 5 Couch Cyclopedia of Insurance Law, § 1176 A; 13-14 Huddy, Encyclopedia of Automobile Law, § 345; Wheeler v. Phoenix Indem. Co., Me., 65 A.2d 10.

There is a small minority of cases which would support a recovery on the facts of the case under consideration. Pennsylvania Indemnity Fire Corporation v. Aldridge, 73 App.D.C. 161, 117 F.2d 774, 133 A.L.R. 914; Baker v. Continental Insurance Co., 155 Kan. 26, 122 P.2d 710; Unkelsbee v. Homestead Fire Ins. Co. of Baltimore, D.C.Mun.App., 41 A.2d 168; Boyle v. Yorkshire Ins. Co., 56 Ont.L.R. 564. Other cases permitting recovery on similar facts reach their result on the ground that 'theft' is the equivalent of 'larceny', and that the statute of the jurisdiction defining larceny is broad enough to include use without the owner's consent even in absence of intent to steal. Globe & Rutgers F. Ins. Co. v. House, 163 Tenn. 585, 45 S.W.2d 55; Ouimet v. National Ben Franklin F. Ins. Co., Quebec, 58 C.S. 299, 56 D.L.R. 501; Insurance Co. of N. A. v. Samuels, 31 Ga.App. 258, 120 S.E. 444; Fidelity Phoenix F. Ins. Co. v. Oldsmobile Sales Co., Tex.Civ.App., 261 S.W. 492. The last class of cases is not authority in this state. Here the crime originally named 'theft', R. 1787, p. 154; R. 1797, p. 175, now called 'larceny', R.S. 95, § 6; V.S.1947, § 8304, has always required a taking animo furandi, that is to say with the intent to steal. State v. Smith, 2 Tyler 272, 276-277; State v. Levy, 113 Vt. 459, 461, 35 A.2d 853.

In Allen v. Berkshire Mutual Fire Ins. Co., 105 Vt. 471, 476-477, 168 A. 698, 89 A.L.R. 460, it is recognized that today theft is a wider term than larceny, including other forms of wrongful deprivation of the property of another. It was there held, 105 Vt. at pages 476-477, 168 A. 698, that a taking animo furandi by a naked bailee was a theft of the automobile within the meaning of the insurance policy, although it would be an embezzlement at common law. The Allen case is a part of the growing trend in the more recent decisions to rule more strictly against insurance companies on the 'theft' provisions of their policies. Baker...