Rich v. United Mut. Fire Ins. Co.
| Decision Date | 29 November 1951 |
| Citation | 328 Mass. 133,102 N.E.2d 431 |
| Parties | RICH v. UNITED MUT. FIRE INS. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. B. Abrams, Boston, for plaintiff.
P. W. Fager Boston, for defendant.
Before QUA, C. J., and WILKINS, SPALDING and WILLIAMS, JJ.
This is an action of contract on an insurance policy to recover the amount of loss resulting from damage to the plaintiff's automobile. There was evidence that on Sunday, November 23, 1947, the plaintiff parked his automobile at about 8 A. M. in front of his house on Montebello Road, Jamaica Plain. The automobile was headed downgrade with its left front wheel 'turned in as far as he [the plaintiff] could turn it' up against the curb and with the emergency brake 'pulled up tight.' The automobile was in the same position two hours later at ten o'clock. The plaintiff, who was in his house, 'heard the ordinary street noises with kids playing around the street there.' At about ten thirty o'clock he heard 'a door slam' and in two or three minutes was told by a young boy that the automobile was at the bottom of the hill 'smashed against a tree.' The automobile was found in a damaged condition down the hill with the brake on and against a tree some three hundred feet from where it had been parked.
The plaintiff was insured by a policy issued by the defendant containing a clause entitled 'Coverage C' wherein the defendant agreed to pay for loss of or damage to the automobile 'except loss caused by collision of the automobile with another object.' It was provided that 'loss caused by * * * theft * * * [or] vandalism * * * shall not be deemed loss caused by collision * * *.'
To prove that the damage to the automobile came within the coverage of the policy, the burden was on the plaintiff to show that the collision with the tree was caused by theft or vandalism. Rosen v. Royal Indemnity Co., 259 Mass. 194, 156 N.E. 52; Murray v. Continental Ins. Co., 313 Mass. 557, 561, 48 N.E.2d 145.
The words 'theft' and 'vandalism' as used in the policy are to be given the 'meaning attributed to them in common use.' Bloom v. Ohio Farmers Ins. Co., 255 Mass. 528, 530, 152 N.E. 345; Farnum v. Bankers & Shippers Ins. Co., 281 Mass. 364, 183 N.E. 718. It is settled that theft means the taking and carrying away of the personal property of another with the intent unlawfully to deprive that other permanently of the use of it. Commonwealth v. Adams, 7 Gray 43, 45; Commonwealth v. Mason, 105 Mass. 163, 167; Green v. Commonwealth, 111 Mass. 417, 419; Commonwealth v. Kozlowsky, 238 Mass. 379, 383, 131 N.E. 207; Wharton's Criminal Law (12th Ed.) § 1097; Bishop, Criminal Law (9th Ed.) § 566; May's Criminal Law (4th Ed.) § 217. Vandalism is a term of less definite meaning. Originally it meant the barbaric and ruthless destroying or spoiling of something venerable, artistic, or beautiful. As used in the policy in question which insures against damage to the automobile we think the term refers to such wanton and malicious acts as are intended to damage or destroy the property insured. See De Agostina v. Holmden, 157 Misc., N.Y., 819, 826, 285 N.Y.S. 909. Such are acts similar to those which according to criminal law are punishable as malicious mischief. Commonwealth v. Walden, 3 Cush. 558, 561; Commonwealth v. Williams, 110 Mass. 401; Commonwealth v. Goodwin, 122 Mass. 19, 35; Commonwealth v. Hosman, 257 Mass. 379, 154 N.E. 76; G.L. (Ter.Ed.) c. 266, §§ 94-138.
The evidence in the instant case would not...
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