Stuht v. Maryland Motor Car Ins. Co.

• Decision Date: 08 April 1916
• Docket Number: 12994.
• Citation: 156 P. 557,90 Wash. 576
• Parties: STUHT et ux. v. MARYLAND MOTOR CAR INS. CO. ins. co.
• Court: Washington Supreme Court

156 P. 557

90 Wash. 576

STUHT et ux. v. MARYLAND MOTOR CAR INS. CO. ins. co.

No. 12994.

Supreme Court of Washington

April 8, 1916

Department 1. Appeal from Superior Court, King County; Everett Smith Judge.

Action by H. C. Stuht and wife against the Maryland Motor Car Insurance Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

V. H Faben, of Seattle, for appellants.

Clem J Whittemore, of Seattle, for respondent.

MOUNT J.

This action was brought to recover for the loss of an automobile upon an insurance policy issued by the defendant to the plaintiffs, which policy insured the automobile against----

'loss or damage, if amounting to $25 on any single occasion, by theft, robbery, or pilferage by persons other than those in the employment, service or household of the assured.'

Upon issues joined the case was tried to the court and a jury. The trial resulted in a verdict and judgment in favor of the defendant. The plaintiffs have appealed.

The statement of the case contained in the appellants' brief is substantially in the following words: During part of July and August the plaintiffs were absent from Seattle, during which time they left the automobile in charge of one Cook. Certain defects appearing in the mechanism, it was returned for proper adjustment to the garage and workshop of the Mercury Motor Car Company, from whom it had been purchased, with the request that the automobile be returned by that company to the plaintiffs' garage when the defects should be remedied. This being accomplished, an employé of the Mercury Motor Car Company undertook to return the machine, but instead of traveling direct from the company's garage on East Pike street in a northerly direction to the plaintiffs' home north of Woodland Park, it being Saturday evening, after working hours, this employé, Mr. Richardson, without the knowledge or authority of the company or these plaintiffs, and only for his own personal purpose, proceeded from the company's garage in a southerly direction toward his own home, about five miles distant. When rounding the corner at Fourteenth avenue south and Norman street, on the side of Beacon Hill, and about a mile distant from the company's garage, Richardson drove the machine over a bank, and the result was a total wreck of the automobile. A more detailed statement of the facts will be found in Stuht v. U.S. Fidelity & Guar. Co., 154 P. 137. That was an action by these same plaintiffs against another insurance company upon another policy.

The appellants make three contentions: First, that failure to give notice of the accident cannot avail the company to defeat liability upon the policy; second, the policy contemplated a wrongful taking of any kind, and not necessarily a criminal taking; and, third, the facts surrounding the use and destruction of the automobile by Richardson and of his not returning the automobile to the plaintiffs are not in dispute, and therefore there was no question to submit to the jury, and judgment should have been directed in favor of the appellants.

In view of our conclusion upon the last two contentions, we find it unnecessary to discuss the first. Upon the second contention the appellants insist that the policy contemplates a wrongful taking of any kind, and not necessarily a criminal taking. It will be noticed that the policy, as quoted above, insures against----

'loss or damage * * * by theft, robbery or pilferage by persons other than those in the employment, service or household of the assured.'

The words 'theft,' 'robbery,' and 'pilferage' are well...