Mello v. Hamilton Fire Insurance

This is an action of assumpsit, brought by the insured on an insurance policy issued to her by the defendant, to recover for damages to her automobile resulting from an alleged theft of it by her brother, then fifteen years old. In the policy the defendant agreed to pay to her all loss or damage to her automobile "caused by theft, larceny, robbery or pilferage".

At a trial in the superior court, the jury, in accordance with a direction to them by the trial justice, returned a verdict for the plaintiff for $400. The case is now before us on a bill of exceptions by the defendant in which the principal exceptions are to this direction of a verdict and to the denial by the trial justice of a motion by the defendant for the direction of a verdict in its favor.

According to the undisputed evidence the plaintiff, about 6:30 p.m., after using the car in going to see her grandmother, drove it back to her own home, left it in the yard nearby, with the key in the lock, and went upstairs to her home. While she was there, her brother, whom she had not allowed to drive the car and who had not driven it before, so far as she knew, got into it and drove off without saying anything to her. She did not testify that she had forbidden him to use it.

He testified, without any contradiction, that he lived with his parents and many brothers and sisters in the lower tenement of the same building where the plaintiff lived; that he saw a great deal of her and frequently took rides with her; that he helped an older brother in the care and repair of automobiles and knew how to drive them; that on the day of the accident to his sister's car he took it without saying anything to her; that he was dressed in his work clothes and was just going for a short drive, alone, intending to return very soon. He further testified that, when he got about two or three miles from home, he was going at about twenty-five or thirty miles per hour and hit a bump in the road, which turned the car to the side, and it hit a cement wall. He became unconscious and had to be taken to a hospital. The car was badly damaged.

The trial justice, in discussing the motion for the direction of a verdict for the defendant, stated that "conversion of an automobile and its subsequent destruction by the converter amounts to a theft under the policy." He also stated: "Now if the word theft is to be used strictly in the ordinary sense, an insurance company which sells an insurance policy to protect against theft is perpetrating a fraud on the public, because there probably wouldn't be a half-dozen takings of automobiles in this State in the course of a year which would be taken in such manner that the taker could be prosecuted as thieves." He further stated that "it's this Court's judgment that the word ``theft' as used in this insurance policy means conversion resulting in destruction of the converted article, and that the insurance company is liable under the policy". It was upon this grounds that he directed the jury to return a verdict for the plaintiff.

There is some merit in that view, but we think it goes too far in that it practically holds that any taking of an automobile, without the owner's consent, which results in the automobile's destruction is, as a matter of law, equivalent to "theft" within the meaning of the policy. There is no authority in this state for such a view. This court has, indeed, given to the word "theft" in a policy, similar to the one in the case at bar, a construction that differentiates it from "larceny" and gives it a more comprehensive connotation. Brady v. NorwichUnion Fire Ins. Society, Ltd., 47 R.I. 416. But there is nothing in that opinion which indicates that this court hell the view which the trial justice took in the instant case.

In line with the view given to the word "theft" in theBrady case this court later expressly held that, where an automobile was surreptitiously taken from the owner without his consent and under circumstances tending to show an intent to deprive him permanently of his property, the intention of the taking was decisive of the character of the act and the question of intent was for the jury. The Morris Plan Co. v. Firemen'sFund Ins, Co., 49 R.I. 159. In that case, at the conclusion of plaintiff's evidence, a verdict was directed for the defendant but this court reversed the superior court for the reason above stated and ordered a new trial.

We again had occasion to consider the scope of the word "theft" in Hawkins v. Agricultural Ins. Co., 58 R.I. 40. In that case the plaintiff had rented his automobile to another person for his use for eight hours. At the end of the rental period the automobile was not returned nor was any word received from the person who rented it. The next day plaintiff notified his insurer. Later it was learned that the automobile had been driven to Texas and that the person who had rented it was in the custody of police. Nothing was done by the insurer to bring the automobile back to this state, as the facts, in its opinion, did not show a theft under the policy. On the plaintiff's evidence the superior court ordered a nonsuit. This court, on review, held the superior court in error on the ground that the plaintiff's evidence entitled him to go to the jury on the question whether a theft had, in fact, been committed. In our opinion in that case, after referring to the Brady case, supra, and discussing a number of cases from other jurisdictions, we said that "the evidence should have been submitted to the jury on the question whether McArdle had obtained possession of the car with the criminal intent of permanently depriving the plaintiff of it and therefore, by his theft of it, had inflicted on the plaintiff a loss within the coverage of the policy."

On the whole we think that a careful reading of those cases will demonstrate that this court has consistently adhered to a broad view of the word theft in a policy of this kind, but that it has nowhere said expressly or impliedly that it was equivalent to a mere taking without consent. Under the view of those cases, as we understand them, the plaintiff must prove a taking without consent, and an intention, though not necessarily at the time of the taking, to deprive the owner permanently of his property in the thing taken. The evidence to prove such intention is thus not restricted as it is in common-law larceny. If the evidence shows that after the taking the use of the car was such as to deprive the owner of his property, it will be for the jury to say whether such evidence convinces them that the taker had, in fact, the intention to so deprive the owner, and not for the court to so hold as a matter of law.

In State v. South, 28 N.J.L. 28, which was a criminal prosecution for larceny, the court expounded the above idea in these words which we think are more especially applicable to our problem than to the one before that court: "If, on the other hand, the prisoner took the goods with a view only to atemporary user, intending to keep them for a short time only, and to return them to the owner unimpaired, an intent thereby wholly to deprive the owner cannot, generally speaking, be deemed proved. . . . But if he took them with a view only to a temporary user, intending, however, to keep them for a very unreasonable time, or to use them in a reckless, wanton, or injurious manner, and then to leave it to mere chance whether the owner ever recovered them or no, and if he recovered them at all, would probably recover them in a damaged or altered condition, such a taking would seem, in common sense, to be ample evidence of an intent wholly to deprive the owner of his property."

For the reasons above stated, the defendant's exception to the granting of the plaintiff's motion for a directed verdict is sustained, its exception to the denial of its motion for a directed verdict is overruled, and the case is remitted to the superior court for a new trial.