Vechten v. American Eagle Fire Ins. Co.

• Decision Date: 21 January 1925
• Citation: 239 N.Y. 303,146 N.E. 432
• Parties: VAN VECHTEN v. AMERICAN EAGLE FIRE INS. CO.
• Court: New York Court of Appeals Court of Appeals

239 N.Y. 303

146 N.E. 432

VAN VECHTEN

v.AMERICAN EAGLE FIRE INS. CO.

Court of Appeals of New York.

Jan. 21, 1925.

Action by Frederick R. Van Vechten against the American Eagle Fire Insurance Company. From a judgment of the Appellate Division (206 App. Div. 39, 200 N. Y. S. 514), affirming by divided court a judgment of the Trial Term on a verdict of the jury for plaintiff, defendant appeals.

Judgments reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division, Fourth department.

Edward M. Brown, for appellant.

James C. Bronner, for respondent.

CARDOZO, J.

Defendant's policy of insurance covering plaintiff's automobile insures against stated perils, among them ‘theft, robbery, or pilferage,’ with exceptions not now material.

Plaintiff left his automobile at a garage and repair shop with instructions to the proprietor to make specified repairs. The proprietor took the car on a trip for his own purposes, and on the homeward journey ran it against a pole. Plaintiff, returning to the garage and receiving back his damaged car, makes claim against the insurance company that it reimburse him for his loss. The question is whether there was ‘theft’ within the meaning of the policy.

[1] By Penal Law (Consol. Laws, c. 40) § 1293-a (as it stood when this loss was suffered):

‘Any chauffeur or other person who without the consent of the owner shall take, use, operate or remove, or cause to be taken, used, operated or removed from a garage, stable, or other building or place, * * * an automobile or motor vehicle, and operate or drive or cause the same to be operated or driven for his own profit, use or purpose, steals the same and is guilty of larceny and shall be punishable accordingly.’ Laws 1910, c. 621.

Apart from this statute, the misuse of plaintiff's car by the proprietor of the garage would not constitute a larceny, since there was lacking the felonious intent to appropriate another's property permanently and wholly. Parr v. Loder, 97 App. Div. 218, 220, 89 N. Y. S. 823;Ledvinka v. Home Ins. Co. of New York, 139 Md. 434, 115 A. 596, 19 A. L. R. 167; Michigan Commercial Ins. Co. of Lansing, Mich., v. Wills, 57 Ind. App. 256, 106 N. E. 725;Phoenix Assur. Co., Limited, of London, v. Eppstein, 73 Fla. 991, 75 So. 537, L. R. A. 1917F, 540;Valley Mercantile Co. v. St. Paul Fire & Marine Ins. Co., 49 Mont. 430, 143 P. 559, L. R. A. 1915B, 327, Ann. Cas. 1916A, 1126;State v. South, 28 N. J. Law, 28, 75 Am. Dec. 250; Regina v. Trebilcock, 7 Cox Cr. Cas. 408; Pollock & Wright on Possession, p. 225. Indeed, the very purpose of the statute was to bring within the definition acts outside of it before. The courts below have held that, however great the innovation, what is now larcenyunder the statute is also theft under the policy. We hold another view.

[3] The problem before us is not one of statutory construction. It is one of the meaning of a contract. The Legislature may affix to new combinations of events the name of an old crime. The conclusion does not follow that the same word, and still less another word which once was an equivalent, must suffer a like extension in the thought of parties to a contract. The way is thus pointed to the decision of the case before us. ‘Theft,’ though often used as synonymous with ‘larceny,’ the proper term of art in the penal statutes of New York, is none the less a looser term, and one more colloquial or popular. People ex rel. Jourdan v. Donohue, 84 N. Y. 438, 442. Neither has a single meaning at all times and in all contexts, nor is either always and in every setting the full equivalent of the other. Cf. Holmes, J., in Towne v. Eisner, 245 U. S. 418, 424, 38 S. Ct. 158, 62 L. Ed. 372, L. R. A. 1918D, 254.

[4][6] Larceny, in our law of crimes, includes the offense of obtaining property by false pretenses. Penal Law, § 1290; People v. Dumar, 106 N. Y. 502, 13 N. E. 325;People v. Miller, 169 N. Y. 339, 351,62 N. E. 418,88 Am. St. Rep. 546. If the plaintiff had sold his car on a credit fraudulently procured, he would be the victim of a larceny, yet manifestly the sale would not be theft under the provisions of this contract. Larceny under the statute was therefore something different from theft under the contract even before larceny had been extended to include misuse of motor vehicles. We have no reason to believe that the statutory definition, if inapplicable before, has become applicable now. On the other hand, we do not say that theft is to be limited to what was larceny at common law. We assume...