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check, constitutes a "theft," within the meaning of automobile theft policy. Brady v. Norwich Union F. Ins. Soc. (1926) R. I. —, 133 Atl. 799. Said the court: "As this contract of insurance was made and was to be performed in this state, it is to be construed in accordance with the law of this state. The intent of the parties, as expressed in the language of the entire contract, is to be sought and given effect, if practicable. This intent is to be considered, in the absence of evidence to the contrary, to be in accord with the established law of the state, both statute and common law. If there is any uncertainty in the meaning of the words used in the contract, the party who selected such words properly should bear the burden of any disadvantage caused thereby. Plaintiff was deprived of his property by a crime. Plaintiff's loss was caused by larceny. In legal and popular language, Carpenter could properly be called a thief; he got the automobile by fraud, and took it away with intent to steal it. To construe the policy so as to allow a recovery if plaintiff parted with possession only, and to deny recovery if he intended to part with both title and possession, in view of the abolition by statute of the distinction between the two crimes, we think would be a strange and unfair construction. The cases are in conflict, due largely to the differences in state laws. By continuing to use such a general term as 'theft' in the policy, it may be that an appearance of more complete protection to the assured is made than is really intended. But if this is the fact, the remedy is simple; it is only necessary for the insurer to add another exception to the policy, limiting exactly the class of thefts insured against."

On the other hand, it has been held that where an owner of an automobile executes a contract of sale. for the car, helps the vendee change the license numbers, and, in pursuance of his contract of sale, transfers title and possession to the vendee, who pays therefor with a forged check, such fraudulent transaction so perpetrated by the vendee does not constitute a

"theft," within the meaning of a policy insuring the owner of the car against loss of the same by "theft, robbery, and pilferage." ROYAL INS. Co. v. JACK (reported herewith) ante, 529. The court, it will be noted, declined to accept so broad a definition of the term as has the Kansas court, for instance, which has held that the act of a swindler by which the owner of the car is swindled out of it through false pretenses, with preconceived intent, is a species of theft for which the insurance company becomes liable. It will be further noted, however, that the court says that where there is no intention on the part of the owner to part with the title and possession of the car, and where no sale is contemplated, but possession is secured from the owner by a trick, or with the intention of stealing the car, the wrongdoer might be guilty of larceny.

A clause in a policy insuring the owner of an automobile against loss by "theft," etc., which excepts from the risk or peril insured against the "wrongful conversion or secretion by a mortgagee or vendee in possession under mortgage, conditional sale, or lease agreement," limits rather than extends the scope of the term "theft" as used in the policy; and the argument cannot be advanced that the insurance company, having inserted the specific exclusion relating to mortgagors and conditional vendees in possession, thereby indicated that other transactions with vendees involving trickery or fraud should be construed broadly as coming generically within the term "theft." Ibid.

If a conditional vendee of an automobile, in lawful possession thereof, carries off the car, or if he places another in possession of the car, who carries it off, there is no "theft" of the car, within the meaning of a policy insuring the vendors, as interest may appear, against loss of the car by theft, especially in view of a provision in the policy that the insurance company would not be liable for "the wrongful conversion, embezzlement, or secretion by a mortgagor or vendee in possession under mortgage, conditional sale, or lease agreement." Con

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III. Persons whose acts are insured against.

(Supplementing annotations in 14 A.L.R. 218; 19 A.L.R. 172; and 38 A.L.R. 1125.)

One in the employ of another, as chauffeur, who obtained the keys to insured's garage, upon offer to wash insured's car, there being no undertaking to pay him anything for the service, and who drove away with the car without washing it and without having intended to wash it, was not, in so doing, in insured's employ, within the meaning of a clause in a policy insuring against theft, robbery, or pilferage of the car "excepting by any person or persons in the assured's household or in the assured's service or employment." Ouimet v. National Ben Franklin F. Ins. Co. (1920) Rap. Jud. Quebec 58 C. S. 299, 56 D. L. R. 501.

A gardener employed by the wife of principal stockholder of corporation, and paid by her, she being a woman of independent means, is in neither the corporation's nor stockholder's service or employment, within the meaning of such a clause in automobile theft policy. Schenectady Varnish Co. v. Automobile Ins. Co. (1926) 217 N. Y. Supp. 504.

In Lower Main Street Bank v. Caledonian Ins. Co. (1926) — S. C. —, 133 S. E. 553, where the defense was that the person stealing the car was in the employ of insured, the policy having excepted from the risks covered theft by any person or persons in insured's service or employment, it was held that the question was properly submitted to the jury, where insured, though at various times he said and did things tending to establish that the thief was his employee, testified that the thief was an employee of the corporation by which he himself was employed and in which he owned the controlling interest. Said the court: "The well-established rule in this state is that if there is any testimony what

ever to go to the jury on an issue involved in a cause, or even if more than one inference can be drawn from the testimony, then it is the duty of the judge to submit the cause to the jury. This is true, even if witnesses for the plaintiff contradict each other, or if a witness himself in his testimony makes conflicting statements."

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The decision in Wieson v. Automobile Ins. Co. (1924) N. J. L. —, 126 Atl. 652, set out in the annotation in 38 A.L.R. at page 1125 (to the effect that the question whether one who had done odd jobs for the assured for several years, but who had done nothing for him during the month in which he took the car for a joy ride, except to take it to a garage to have a new tire placed on it, was an employee, was the insurer would not be liable for for the jury, the policy providing that theft by an employee), was affirmed without opinion in (1925) — N. J. —, 130 Atl. 921.

Generally, as to whose acts may constitute a "theft," within the meaning of policy, see subd. II., supra.

IV. Interests and property covered; assignment; transfer.

(Supplementing annotations in 14 A.L.R. 219; 19 A.L.R. 172; 24 A.L.R. 742; 30 A.L.R. 664; and 38 A.L.R. 1126.)

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Conditional vendor, appointee to receive the insurance money to the extent of its loss, cannot recover if insured, the conditional vendee, could not; nor could an assignment to it of the vendee's interest put it in a better position than that of vendee as to any portion of the insurance. Buell v. United Firemen's Ins. Co. (1926) Minn., 208 N. W. 819.

The right of conditional vendors, being mere appointees under loss payable clause of automobile theft policy issued to conditional vendee, is measured by the rights of the latter; they cannot recover as assignees of the conditional vendee, where his interest,

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Change of ownership of interest in automobile by award thereof to insured's wife in divorce decree was such as to avoid policy, under clause against transfer or termination of interest. Ibid. This case, it is to be noted, proceeds upon the theory that conditional vendee had a property right in the automobile, and not merely a contract right, and that, no forfeiture having been declared for failure to make payments, the court entering the divorce decree had jurisdiction to award the property to the wife, the amount remaining unpaid being still due the conditional vendor. Budge, J., in a dissenting opinion, took the view that, while the conditional vendee had an insurable interest in the automobile, he had no such title therein as could be conveyed to another either by himself or by the court making the award; and that the award, therefore, could not operate as a change of ownership, in violation of the terms of the policy.

It has been held that, in view of the Ontario Insurance Act, a condition in the policy that the same should cease to be of force in the event of a lien being created upon the car, or the assignment of any interest in the policy, without the written consent of the company, is not operative as a part of the insurance contract, the policy being subject only to the statutory conditions, Rockmaker v. Motor Union Ins. Co. (1922) 52 Ont. L. Rep. 557, 70 D. L. R. 360, affirming (1922) 52 Ont. L. Rep. 553, 69 D. L. R. 177.

V. Title and ownership. (Supplementing annotations in 14 A.L.R. 219; 19 A.L.R. 173; 24 A.L.R. 743; 30 A.L.R. 665;. and 38 A.L.R. 1126.)

See also subd. I., supra, and the cases therein set out.

In the absence of statute, a stipulation in an automobile theft policy that, unless otherwise provided by agreement in writing, the insurer shall not be liable for loss or damage to the car

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But such a stipulation is void under a statute providing that any provision in the policy shall be null and void, the effect of which is to declare the policy void "if said property is encumbered by a lien of any character, or shall, after the issuance of such policy, become encumbered by a lien of any character." Ibid. In this case, the insurance company contended, in effect, that the language used, "while encumbered by any lien or mortgage," is not a provision for forfeiture of a policy already in force, but merely a stipulation indicating the time during which the policy would not be effective, and that, therefore, the statute quoted had no application; differently expressed, the contention was, in effect, that if the automobile had been unencumbered at the time the policy was issued, and the mortgage placed on it later, the policy would have been valid while unencumbered, but of no binding force so long as the encumbrance remained against it, and that, since in this case the mortgage given by insured existed at the time the policy was issued and was never removed, the policy never became effective. The court, however, refused to adopt the construction invoked by the insurance company, saying: "While the language of the exemption clause of the policy is not in the specific terms of the provision which the statute stipulates shall be null and void, it should be construed as substantially the same. Any other construction would be a play upon words that would defeat the obvious meaning and purpose of the statute. The statute expressly renders of no force or effect a provision that the policy shall become void if the property insured is encumbered by a lien at the time of its issuance, or becomes so encumbered thereafter.

. The manifest purpose of the statute was to cut off the defense to a suit to collect the policy, based on the fact that the property was encumbered when the policy was issued or at any time thereafter. The

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insurer cannot evade the statute by merely using language in the exemption clause different from that used in the statute, but intended to accomplish the same purpose as that which was prohibited by the statute and clearly apparent from its terms."

In Ontario, a declaration in the policy whereby insured warrants himself to be the sole and unconditional owner. of the car is not operative as a part of the insurance contract, in view of the Ontario Insurance Act, the policy being subject only to the statutory conditions. See Rockmaker v. Motor Union Ins. Co. (1922) 52 Ont. L. Rep. 557, 70 D. L. R. 360, affirming (1922) 52 Ont. L. Rep. 553, 69 D. L. R. 177. The same is true of a condition in the policy against the giving of a chattel mortgage upon the car as security for a debt. Ibid. Insured is the "owner" of the car, within the meaning of the act, though he be but a conditional vendee who has executed a chattel mortgage on it as security for a debt, assigned his interest in the insurance to such creditor, and has not fully paid for the car at the time of the loss. Ibid.

The condition as regards indorsement in an automobile theft policy, that the insurer shall not be liable if the interest of the assured be other than unconditional and sole ownership, or if the car be or become encumbered by any lien or mortgage except as stated in a certain warranty, or otherwise "indorsed hereon," is satisfied, or complied with by a recital in the policy that the assured are the plaintiff and a certain corporation, "as their interests may appear;" in other words, the recital amounts to a declaration that the plaintiff was not the sole or absolute owner, it being, as the warranty requires, an indorsement on the policy itself, showing that the corporation had an interest in the property. Simpionbato v. Royal Ins. Co. (1925) Mass., 149 N. E. 666. It was not essential to disclose what the interest of the plaintiff, the conditional vendee of the car, was, nor that the corporation also named as assured was the conditional vendor, nor the nature and extent of the corpora

tion's interest, the exact condition of the title being required neither by the warranty nor by the declaration that both the plaintiff and the corporation had an interest in the car. Ibid. Nor was it essential to mention in the policy the place of business of the coras assured, poration also named

though plaintiff's place of business was described therein; this did not amount to a breach of the warranty stipulated in the policy. Ibid.

A clause in the policy that the automobile was not mortgaged or otherwise encumbered "except as follows" is not to be treated as a declaration of fact by the assured, where, from its appearance in the policy and the blank space following, which was not filled, the clause indicates that it is in the form of a question merely; as the corporation also named as assured appeared from the statements in the policy to be interested in the car, the answer to the question may well have been waived by the insurance company. Ibid.

Where an applicant (in the instant case, a conditional vendor) for automobile theft insurance fully advises the soliciting agent of the company as to the true status of the legal title to the automobile to be covered by the insurance, and of the interest of the applicant therein, and the agent, acting within the scope of his authority, accepts the premium from the applicant and agrees to execute and deliver the policy, the knowledge acquired by such agent as to the title to the automobile will be imputed to the insurance company issuing the policy. American Ins. Co. v. Jueschke (1925) 110 Okla. 250, 237 Pac. 585.

And where the soliciting agent of the insurance company, with full knowledge of the status of the title to the automobile, and while acting in the usual course of his duties as such agent, executes the policy in the name of a third person having only an equitable interest in the automobile (in the instant case, the conditional vendee), the insurance company is estopped to defend, in an action on the policy, on the ground that the legal

title to the car was not in the name of such third person. Ibid.

Where the proof shows conclusively that there was a mutual mistake of fact, in that the owner of an equitable interest in the automobile (in the instant case, the conditional vendee) was designated as the assured instead of the plaintiff, the owner of the legal title (in the instant case, the conditional vendor), who made application for the insurance to protect his interest in the car, plaintiff is entitled to have the policy reformed to express the real intention of the parties; and, under such circumstances, in an action by the plaintiff to recover on the policy, the court will deem such policy to have been reformed. Ibid.

In this view of the case, it is no defense to say that the person in whose name the policy was executed (the conditional vendee) mortgaged the car in violation of a provision in the policy, thereby rendering the policy void, since if the plaintiff (the conditional vendor) caused the policy to be issued on the automobile for his own benefit, and the soliciting agent, representing the company, designated such other person as the assured instead of the plaintiff, and such other person thereafter attempted to encumber the car by a mortgage, without the knowledge of the plaintiff, the rights of plaintiff under the policy could not be affected by such act. Ibid.

Where soliciting agent received notice that partnership business, including automobile, had been transferred to new corporation, and that future theft insurance on the car should be in the name of the corporation, the corporation is entitled to reformation of the policy subsequently issued in the name of the original owner of the car, and insurer will not be relieved from liability because the policy did not run to the real party in interest. Schenectady Varnish Co. v. Automobile Ins. Co. (1926) 217 N. Y. Supp. 504.

Where automobile insured against theft was purchased in good faith by insured, who used the car and paid the premiums, the insurance company cannot avoid liability upon the theory

that the car was originally stolen from the rightful owner; since, assuming that the car had been so stolen, insured had the title and right to possession as against all the world, except the rightful owner. BARNETT V. LONDON ASSUR. CORP. (reported herewith) ante, 526.

Nor can the insurance company avoid liability because of a provision in the policy that it should be void if the interest of insured in the car be other than "unconditional and sole ownership," the person from whom the car was originally stolen having made no claim to it. Ibid.

VI. Description of car. (Supplementing annotations in 14 A.L.R. 220; 19 A.L.R. 174; 24 A.L.R. 744; 30 A.L.R. 666; and 38 A.L.R. 1128.)

Under a statute providing that no oral or written misrepresentation shall be deemed material, or defeat a policy of insurance, unless made with intent to deceive and defraud, or unless the matter misrepresented increases the risk of loss, testimony was admissible, on the issue of misrepresentation of the motor number by insured, to show that, at the time the insurance was arranged for, insurer's agent examined the car, that the motor number could not then be determined, and that the agent stated that they would cover the car as of a later model than it was in fact. Whitcomb v. Automobile Ins. Co. (1926) Minn. ―, 209 N. W. 27.

It was for the jury to determine whether the fact that the car was of an older model than represented increased the risk, that is, the degree of hazard or liability; they were justified in finding that the risk was not thereby increased. Ibid.

Where application for insurance correctly stated the price paid for car, the company from which it was obtained, the date of purchase, and the style of car, the only error being in the statement of the motor number, it was proper to submit to the jury whether the car stolen and found destroyed by fire was the car covered by the policy issued; the mere misstatement of the motor number did

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