Van Vechten v. American Eagle Fire Insurance , 206 A.D. 39 ( 1923 )

Clark, J.:

On the 11th day of May, 1920, on application of plaintiff, defendant issued to him a policy insuring plaintiff against certain perils to his automobile, including “ theft, robbery or pilferage, excepting by any person or persons in the assured’s household or in the assured’s service or employment, whether the theft, robbery or pilferage occur during the hours of such service or employment or not.” This policy did not expire until May 11, 1921, at noon.

On or about the 15th day of July, 1920, plaintiff was at Dobbs Ferry, N. Y., on a visit. One Robert J. Wilson conducts a garage and repair shop at Dobbs Ferry, and on said date plaintiff conversed with said Wilson about making certain minor repairs on his automobile, specifying particularly that he should repair a leak in the motor to prevent its throwing oil, reline the foot brake, clean carbon from the motor, and tighten the nuts and bolts on the car.

About July 19, 1920, Wilson took the car from a garage in Dobbs Ferry where plaintiff had left it, and took it to his own garage for the purpose of making these repairs. Plaintiff in the meantime had returned to his home in Little Falls.

Oh the evening of July twentieth, about nine o’clock, Wilson without authority from the plaintiff, took plaintiff’s automobile and drove to Yonkers, remaining in that city practically all night, and on his return trip early the following morning, and about ten minutes after four, he ran into a telephone pole, smashing the pole and seriously damaging plaintiff’s car.

The jury could find from the evidence that up to this time Wilson had not made the repairs on the car that he had been ordered to do; they could also find that he took this car for his own uses and purposes.

The jury was justified in finding from the evidence that Wilson went on this ride for his own pleasure, and that after spending a night in Yonkers with various parties, he met with the accident on his homeward journey, and that the talcing of the car was not only without the knowledge and consent of plaintiff, but was not for any use or purpose connected with plaintiff’s business of repaiiing his car.

Wilson was not in the employ of plaintiff as that term is ordinarily used and understood. He was not in his regular employment as chauffeur or servant, nor was he a member of plaintiff’s household. The car had been left with Wilson at his garage for him to make certain specified repairs. It was not at all necessary for the car to be taken out of the garage in order to make such repairs, and the findings of the jury on all disputed questions of fact were amply supported by the evidence. It is the claim of plaintiff that when Wilson took the car in the manner described, he stole it and that is disputed by defendant.

Section 1293-a of the Penal Law (added by Laws of 1909, chap. 514, as amd. by Laws of 1910, chap. 621) provides as follows: “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 or from any place or locality on a private or public highway, park, parkway, street, lot, field, inclosure or space 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.”

This taking of plaintiff’s car by Wilson in the manner described was a clear larceny, not only under the statute quoted, but, under the circumstances, it could well be found that he was guilty of common-law larceny, for his felonious intent could be inferred from what he did.

The plaintiff was not required to show by direct evidence the felonious taking of his automobile. It was sufficient if he showed circumstances which would justify the inference not only that the property was taken in violation of the statute, but that it was feloniously taken. The evidence in this case would justify such inference. (Haas v. Fidelity & Deposit Co., 97 Misc. Rep. 4; Callahan v. London & Lancashire Fire Ins. Co., Ltd., 98 id. 589; Neal, Clark & Neal Co. v. Liverpool & London & Globe Ins. Co., Ltd., 178 App. Div. 730.)

The policy issued to plaintiff by defendant covered loss by theft, robbery or pilferage. This car having been stolen by Wilson under the circumstances as shown in the record, it seems to me the transaction comes squarely within the provisions of the policy, and that it covers plaintiff’s loss.

The judgment should be affirmed, with costs.

All concur, Davis, J., in a separate opinion, except Hubbs, P. J., and Sears, J., who dissent in an opinion by Sears, J.