Block v. Standard Ins. Co. of N.Y.

The plaintiff owner obtained from the defendant what is known as a "comprehensive" contract of insurance covering loss or damage to an automobile, except by collision. The contract provided in part, "VI. INSURANCE COVERAGES DEFINED * * * A. COMPREHENSIVE — LOSS OF OR DAMAGE TO THE AUTOMOBILE, EXCEPT BY COLLISION: Any loss of or damage to the Automobile including damage by missiles or falling objects and glass breakage from any cause but excluding all other loss the primary and immediate cause of which is a collision of the Automobile and any other object, an upset of the Automobile or a collision of the Automobile and a vehicle to which it is coupled.

* * * * * * *

"D-1. THEFT (BROAD FORM); Loss of or damage to the Automobile caused by Larceny, Robbery or Pilferage."

The plaintiff owner and her husband were driven by their chauffeur to Asbury Park, N.J. They were to stay over night at a hotel there. At the end of the day, the chauffeur was told that the automobile would not be needed again that evening and to put it in a garage. The chauffeur then said that the room which he had obtained was some two miles from the hotel and asked for permission to drive the automobile there, park it overnight in a parking lot which was in front of the house in which he had his room and that he would avail himself of the opportunity to wash the automobile in the lot. He was then given money for his room, meals, parking lot rental and for a brush and soap to wash the car. The chauffeur was told not to go joy-riding and promised that he would not. At about 9 o'clock on the following morning the plaintiffs were notified that there had been an accident. The chauffeur was found in a police station in Middletown and the automobile was found in a gully about twenty miles, toward New York City, from Asbury Park.

Upon that testimony the defendant rested and moved for a dismissal of the complaint upon the ground that the plaintiffs had failed to establish facts constituting a cause of action. That motion was granted.

Since loss or damage by collision is excepted, plaintiffs may recover only if the cause of the loss was the result of a larceny by the chauffeur. Defendant concedes, in its brief: "That the defendant would be responsible to its policyholder if his car was stolen by any person whosoever he may be and damage resulted from a collision or upset while the car was in the possession or under the control of a thief, is not disputed", (citing Bolling v.Northern Insurance Co. of N.Y., 253 App. Div. 693, affd.280 N.Y. 510) but argues that here the car was not stolen since it was merely taken unauthorizedly for a so-called joy-ride without intent to appropriate it permanently.

The Legislature of this State has defined the conduct of the chauffeur here as larceny. Penal Law, section 1293-a, reads as follows: "Any person who, under circumstances not constituting larceny as defined by any other section of this article shall, without the consent of the owner take, use or operate, or cause to be taken, used or operated an airplane or other aircraft or an automobile or other motor vehicle, for his own profit, use or purpose, steals the same, is guilty of larceny and shall be punishable accordingly."

It is equally the settled law of this State that a policy of insurance covering "theft, robbery or pilferage" does not include within those terms a violation of section 1293-a (supra). (VanVechten v. American E.F. Ins. Co. [1925], 239 N.Y. 303; cf.Pennsylvania Indemnity Fire Corp. v. Aldridge, 117 F.2d 774.) The policy in the Van Vechten case was apparently not the present form of "comprehensive" policy. Here the insurance company has insured against theft in its "Broad Form" and has defined it, not as theft, robbery or pilferage but as "Larceny, Robbery or Pilferage." The defendant wrote the policy and chose the words used. We must give effect to the word "comprehensive" and the definition of theft. To do so is to fasten liability upon the defendant. The average automobile owner knows that the taking of an automobile in manner such as was done here constitutes the crime of larceny. His legislative representatives voted for that enactment. The newspaper he reads contains reports of unauthorized temporary appropriations of automobiles and both he and the newspapers now use the word joy-ride as a definition of such an act. Such act is larceny and is so considered by the average man whether or not he is the owner of an automobile. Such is the ordinary meaning which "the average policyholder of ordinary intelligence, as well as the insurer, would attach to it." (Abrams v. Great American Ins. Co., 269 N.Y. 90, 92.)

Insurance companies properly seek, as a service to the public, to increase the risks insured against so long as the policy purchaser will pay the rate required by insurance experience for the increased coverage. Hence we find the use of the word "comprehensive". The rate was fixed upon that basis and the insured paid it for the comprehensive coverage.

The judgments should be reversed and a new trial granted, with costs to the appellants to abide the event. (See 292 N.Y. 621.)

LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS, DESMOND and THACHER, JJ., concur.

Judgments reversed, etc.