Wheeler v. Phoenix Indem. Co.

• Decision Date: 07 March 1949
• Citation: 65 A.2d 10
• Parties: WHEELER v. PHOENIX INDEMNITY CO.
• Court: Maine Supreme Court

65 A.2d 10

WHEELER

v.PHOENIX INDEMNITY CO.

Supreme Judicial Court of Maine.

March 7, 1949.

Exceptions from Superior Court, Somerset County.

Action by Florence K. Wheeler against the Phoenix Indemnity Company (Phoenix Assurance Company, Ltd.) to recover damages under an automobile fire and theft policy. The superior court accepted the report of a referee that there was a ‘theft’ of automobile within meaning of policy, and the defendant brings exceptions.

Exceptions sustained.

Benjamin L. Berman and David V. Berman both of Lewiston, for plaintiff.

Locke, Campbell, Reid & Hebert and Robert W. O'Connor, all of Augusta, for defendant.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, FELLOWS and MERRILL, JJ.

FELLOWS, Justice.

This is an action to recover damages under an automobile fire and theft insurance policy, and the case comes to the Law Court from the Superior Court of Somerset County on exceptions, by the defendant Company, to the acceptance of report of referee. Before hearing and by agreement the name of the defendant company was changed in the writ and pleadings to Phoenix Assurance Company, Ltd., a company authorized to do business in Maine. The exceptions are sustained.

The only question in issue is whether the referee was correct in ruling that, under the circumstances here shown, there was a ‘theft’ within the meaning of the policy.

The referee found as facts, and his finding is supported by the evidence, that the plaintiff's automobile was subject to use, possession and control by her husband Charles Wheeler, a travelling salesman, who stood in the position of the insured. On the afternoon of November 14, 1947 Wheeler told a young man named Philip Campbell to park the car for him near an office in Lewiston, where Wheeler intended to make a business call. Campbell took the car for the purpose of parking it. On arrival at this office, however, Wheeler found neither Campbell nor the car. The following day the car was located in a damaged condition in Portland, where Campbell had taken a young lady on an extended ride, and it had been in a collision. The referee found that ‘this taking and use by Campbell was without the authority or consent, expressed or implied, of Wheeler. Campbell, I find, intended to return the car when his unauthorized expedition should end.’

The policy is in the ‘Standard Form’. The coverage purchased was ‘A Bodily Injury Liability’, ‘B Property Damage Liability’, ‘C Medical Payments', ‘D Comprehensive-Loss of or damage to the Automobile, except by Collision but including Fire, Theft and Windstorm’.

The definition of this ‘Coverage D’, as contained in the small print under ‘Insuring Agreements', is

‘Comprehensive-Loss of or Damage to the Automobile, Except by Collision: To pay for any loss of or damage to the automobile, hereinafter called loss, except loss caused by collision of the automobile with another object or by upset of the automobile or by collision of the automobile with a vehicle to which it is attached. Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset.’

The defendant contends that the word ‘theft’ in this policy should be given its usual and common law meaning, and that to recover there must be an intent to permanently deprive the owner of his automobile. The plaintiff, on the other hand, claims that in this case and under these circumstances the meaning is not so limited, and the usual proof of larceny is not required.

A contract of insurance, like every other contract, must receive a reasonable construction, and the whole contract is to be considered. Here, the insured purchased a ‘theft’ policy. She did not buy ‘collision’ insurance. The danger of collision is always imminent, and collision insurance demands additional premium. Was this unauthorized taking by Campbell, therefore, a ‘theft’ within the meaning of the policy, thus permitting a recovery? The referee found that Campbell intended to return the car, and the intent to permanently deprive the owner was at all times lacking. The referee further found that ‘Campbell did not commit larceny,’ although ‘he did violate the statute against use of an automobile without authority of the owner. Revised Statutes (1944), Chapter 19, Section 120.’ The conclusion of the referee was that ‘unauthorized taking and use,’ was a ‘theft’ within the meaning of the policy, and that the plaintiff was on that account entitled to recover.

We find no opinion in Maine as a precedent, and our attention has been called only to decisions of other states. The general and majority rule is stated as follows:

‘The term ‘theft’ has not been uniformly defined. The difference of opinion arises over the question whether the term is practically synonymous with the term ‘larceny’ or whether it has a more extensive meaning. There is an undercurrent of thought, however, that the usual meaning attached to the term ‘theft’ is substantially equivalent to that attached to the term ‘larceny,’ and this is the majority view.

‘A ‘theft’ within the meaning of a theft policy is shown if possession is actually taken by a wrongdoer, and if an intent to steal exists or may be inferred. This is true even though the possession is but temporary.

‘To warrant a...