World Inv. Co. v. Manchester Ins. & Indem. Co.

• Decision Date: 15 June 1964
• Docket Number: No. 31431,31431
• Citation: 380 S.W.2d 487
• Parties: WORLD INVESTMENT COMPANY, a Corporation, (Plaintiff) Respondent, v. MANCHESTER INSURANCE & INDEMNITY COMPANY, a Corporation, (Defendant) Appellant.
• Court: Missouri Court of Appeals

Page 487

380 S.W.2d 487

WORLD INVESTMENT COMPANY, a Corporation, (Plaintiff) Respondent, v. MANCHESTER INSURANCE & INDEMNITY COMPANY, a Corporation (Defendant) Appellant.

No. 31431.

St. Louis Court of Appeals, Missouri.

June 15, 1964.

Goldenhersh, Goldenhersh, Frederichs, Newman & Lane, Leo M. Newman, Frank J. Lane, Jr., St. Louis, for defendant-appellant.

Armstrong, Teasdale, Roos, Kramer & Vaughan, William H. Webster, Bruce E. Woodruff, St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

This is an action on an automobile insurance policy to recover for a loss resulting from a claimed theft of the car. Defendant appeals from a judgment which, after remittitur of amounts awarded by the jury for vexatious delay and attorneys' fees, is for $2182, together with interest thereon of $327.84, or a total of $2509.84.

The material facts are these: On October 17, 1957, Keith L. Milburn, a self-employed trucker who resided in East St. Louis, Illinois, purchased from East Side Motors, Inc., of that city, under a conditional sale contract, a new 1957 Cadillac sedan. After credit for a trade-in the balance owed by Milburn was $4805. The conditional sale contract executed by Milburn provided that the title to the car was not to pass to him until he completed payment of 29 monthly installments of $105 and a final monthly payment of $1760, the first to be due on November 17, 1957.

On the same day the conditional sale contract was signed by Milburn, or shortly thereafter (the exact date is not in evidence), East Side Motors executed an assignment printed on the instrument, whereby it assigned the conditional sale contract to plaintiff World Investment Company of St. Louis. Milburn paid World Investment the monthly installments of $105 as they fell due, including that for November, 1959. Because of business reverses he had suffered, Milburn found that the payments were becoming too heavy a financial burden, and decided to 'trade-down' for a less expensive car. After contacting numerous other used car dealers in St. Louis and East St. Louis, Milburn called on Roberts Auto Sales of St. Louis on November 28, 1959, where he talked to a salesman named Lou Skelton. When Skelton was told the object of Milburn's visit and the balance due, Skelton stated that there was too much owed on the Cadillac for a trade-down. Skelton offered, instead, to sell Milburn an older car and to endeavor to find a buyer for the Cadillac. The end result was that Milburn purchased from Roberts Auto Sales a 1955 Buick for a down payment of $20 and monthly payments of $36; and Milburn delivered his Cadillac to Skelton on the understanding that Skelton would find a purchaser of it at a price which was to be subject to Milburn's approval, and sufficient to pay off the amount owed World Investment. According to Milburn it was agreed that the car was not to be taken off of the lot except for demonstration purposes, in which event Skelton was to accompany the prospective purchaser. Milburn testified that Skelton also promised that he would pay World Investment any installment that fell due before the Cadillac was sold, and Milburn agreed that if there was any profit made on the sale of the automobile, it would be split between them. On the foregoing understanding Milburn delivered the Cadillac and the keys thereto to Skelton.

Thereafter Milburn telephoned Skelton once to ascertain what progress was being made, and late in December, 1959, Skelton stopped by Milburn's home to tell him that no buyer had been found, but that several persons were interested in the car. The evidence indicates that on December 14, 1959, Skelton paid World Investment the installment then due. After the January, 1960 installment fell due and became delinquent, World Investment wrote Milburn demanding payment. Milburn telephoned Roberts Sales and was told that Skelton had not been there for a week and had taken the Cadillac with him. Subsequent extensive efforts by Millburn and World Investment to locate Skelton or the car, through the police, the Federal Bureau of Investigation, and other sources, were of no avail.

At the time Milburn first purchased the car he obtained an automobile physical damage policy of insurance, which insured him for one year. The policy was renewed each year, that in suit covering the period from October 16, 1959 to October 16, 1960. Milburn and his wife, Shirley, were named therein as insureds, and it was further provided in the appropriate space in the policy: 'Loss Payee: Any loss hereunder is payable as interest may appear to the insured and World Investment Co.' As stated, coverage under the comprehensive coverage clause of the policy included loss by 'theft.' The policy also contained an exclusion clause which provided that the coverage did not apply 'to loss due to conversion, embezzlement or secretion by any person in possession of the automobile under a bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance; * * *.' The amount owed by Milburn on the conditional sale contract at the time he learned of the loss, including the January, 1960 installment, was $2182, the sum for which World Investment sued, together with interest thereon.

Defendant's primary point is that there was no evidence of a 'theft' of the automobile within the meaning of that word as used in the policy. Defendant equates the term 'theft' with that of 'larceny,' and maintains that since Milburn voluntarily delivered the car to Skelton, there was no felonious taking, an essential element of larceny. Cox v. World Fire & Marine Insurance Co., Mo.App., 239 S.W.2d 538, and Eiswirth Construction & Equipment Co. v. Glenn Falls Insurance Co., 241 Mo.App. 713, 240 S.W.2d 973, are cited by defendant, but those cases furnish no support for defendant's position. For example, in Cox v. World Fire & Marine Insurance Co., supra, we said that in construing a contract of insurance its words must be given the ordinary meaning that they carry in common usage. Wendorff v. Missouri State Life Insurance Co., 318 Mo. 363, 1 S.W.2d 99, 57 A.L.R. 615. In Eiswirth Construction & Equipment Co. v. Glenn Falls Insurance Co., supra, we held that the word 'theft' as used in the policy must be interpreted in its plain, ordinary and popular sense, and not in a technical sense; and that as generally and commonly used and understood it conveyed the same meaning as the term 'steal.' And that word, as we pointed out, in its popular and broader or colloquial sene may signify a wrongful conversion as well as an unlawful taking.

We adhere to the view expressed in those cases that where, as here, there is no definition of the word 'theft' in the policy it must be given that connotation it conveys in popular and common usage. We cannot agree with defendant, therefore, that the word is synonymous with that of 'larceny.' If they have precisely the same meaning then why, we may ask, did defendant employ both in the phrase 'theft, larceny, robbery or pilferage,' which appears in another paragraph of the contract? The use of both would indicate that defendant believed there was a distinction between them when it wrote the policy. We think there is, and share the view expressed in Blashfield, Cyclopedia of Automobile Law & Practice, Perm.Ed., Vol. 6, Part 1, Sec. 3712, p. 316, that "Larceny,' it has been pointed out, is a technical term, while 'theft' is one of common usage.' As various standard dictionaries point out, in popular usage 'theft' is a broader term than 'larceny' and includes other forms of the wrongful deprivation of property, including conversion and embezzlement. 3 Bouv. Law Dictionary, Rawles 3rd Ed., p. 3267; Black's Law Dictionary, 4th Ed., p. 1648; Merriam-Webster New International Dictionary, 2nd Ed., p. 2618.

We stated in Eiswirth Construction & Equipment Co. v. Glenn Falls Insurance Co., supra, that we do not regard the word 'theft' as used in a similar policy as an ambiguous term. It would avail defendant nothing if we did. For it is the long established law of this state that where there is doubt or uncertainty as to the meaning of language used in a contract of insurance, one favorable to the insured and the other favorable to the insurer, that which is favorable to the insured will be adopted. Cain v. Robinson Lumber Co., 365 Mo. 1238, 295 S.W.2d 388; Pierce v. Business Men's Assur. Co. of Amer., Mo., 333 S.W.2d 97; Wendorff v. Missouri State Life Insurance Co., 318 Mo. 363, 1 S.W.2d 99. We have concluded, therefore, that plaintiff's...