U Drive It Auto Co. v. Atlantic Fire Ins. Co.

80 S.E.2d 35 (1954)

239 N.C. 416

U DRIVE IT AUTO CO. v. ATLANTIC FIRE INS. CO.

No. 759.

Supreme Court of North Carolina.

January 29, 1954.

*37 E. C. Brooks, Jr., Gantt, Gantt & Markham, and E. K. Powe, Durham, for plaintiff, appellant.

Henry Bane, Durham, for defendant, appellee.

JOHNSON, Justice.

The single question presented by the facts agreed is whether a theft of the automobile was committed within the meaning of the insurance policy sued on. The court below answered in the negative, and we approve.

The policy covers "Loss or damage to the automobile caused by theft, larceny, robbery or pilferage." "Theft" is the popular name for "larceny." Ordinarily the terms are synonymous. Ballentine's Law Dictionary, p. 1279; 62 C.J. 889; Hanes Funeral Home v. Dixie Fire Ins. Co., 216 N.C. 562, 5 S.E.2d 820. And ordinarily the words "theft", "robbery", and "pilferage" all denote some form of larceny. Ledvinka v. Home Ins. Co., 139 Md. 434, 115 A. 596, 19 A.L.R. 167; 32 Am.Jur. Larceny, § 2, p. 885. Larceny, according to the common-law meaning of the term, may be defined as the felonious taking by trespass and carrying away by any person of the goods or personal property of another, without the latter's consent and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker's own use. State v. Cameron, 223 N.C. 449, 27 S.E.2d 81; State v. Holder, 188 N.C. 561, 125 S.E. 113; State v. Powell, 103 N.C. 424, 9 S.E. 627, 4 L.R.A. 291; 32 Am.Jur., Larceny, § 2, p. 883.

It is manifest that the plaintiff has failed to show a felonious taking of the automobile within the meaning ordinarily connoted by the terms "theft" or "larceny." This is virtually conceded by the plaintiff. It insists, however, (1) that the policy of theft insurance sued on includes statutory taking of a vehicle as defined by G.S. § 20-105, and (2) that the facts agreed show a violation of the statute. In effect, the plaintiff takes the position that the terms of this statute may be treated as being incorporated in the insurance contract on the theory that the statute was within the contemplation of the parties and that they intended the coverage of the policy to include a taking within the meaning of the statute, and that the words "theft" and "larceny" as used in the policy should be so interpreted. See Dunn v. Swanson, 217 N.C. 279, 281, 7 S.E.2d 563. It may be doubted that the doctrine of aider-by-statute has any such application as is urged by the plaintiff. See 5 Am.Jur., Automobiles, §§ 567, 568, and 569; Annotations: 14 A.L.R. 215; 19 Id. 740; 30 Id. 662; 38 Id. 1123; 46 Id. 534; 89 Id. 465; 152 Id. 1100, 1102; 160 Id. 947, 950.

But be that as it may, and conceding, without deciding, that the insurance policy sued on does include statutory taking of an automobile as defined by G.S. § 20-105, even so, we think the facts agreed upon in the instant case are insufficient to show a violation of the statute.

To constitute a violation of this statute it must be made to appear that the offending driver (1) drove the vehicle "without the consent of the owner," and (2) with "intent to temporarily deprive" the owner of his possession of the vehicle.

Plaintiff's employee Bagley was entrusted with the automobile and directed to drive it to the garage for repairs. On arrival, he learned that the job could not be done at that time. Bagley then drove the car to his home for breakfast. He was on his way back to the garage to have the repair job performed when the wreck occurred.

It is nowhere stipulated in the agreed statement of facts that Bagley in driving the car home for breakfast did so "without the consent of the owner," or that he intended "to temporarily deprive" the plaintiff of possession of the car. With the agreed case being silent as to both these essential elements of the statutory offense, no violation of the statute was made to appear. And the trial court had no power to infer the existence of these essential factual ingredients of the statutory offense.

*38 This case was not submitted to the trial court for judgment based on its findings of fact. Instead, the parties submitted to the court only the question of law arising upon the facts agreed. G.S. § 1-185; G.S. § 1-172. The court would have been traveling out of its province, as well as out of the agreement in the agreed case, if it had undertaken to infer or deduce facts from those stipulated. Bott v. McCoy, 20 Ala. 578, 56 Am.Dec.223.

When a case is tried on an agreed statement of facts, such statement is in the nature of a special verdict, admitting there is no dispute as to the facts, and constituting a request by each litigant for a judgment which each contends arises as a matter of law upon the facts agreed. Hutcherson v. Sovereign Camp, W. O. W., 112 Tex. 551, 251 S.W. 491, 28 A.L.R. 823.

The general rule is that on submission of a controversy upon an agreed statement of facts, the court is without power, in the absence of a statement providing otherwise, to draw any inferences or find any facts not embraced in the agreement, unless as a matter of law such inferences are necessarily implied. Hutcherson v. Sovereign Camp, W. O. W., supra; Rand v. Hanson, 154 Mass. 87, 28 N.E. 6, 12 L.R.A. 574; 2 Am.Jur, Agreed Case, §§ 22 and 23.

We have not overlooked the stipulation, included in the case agreed, that Bagley was convicted in the Recorder's Court of Durham County of driving the car in violation of G.S. § 20-105. This stipulation, being in the nature of an erroneous admission of law, rather than an admission of fact, may be disregarded. As against the defendant here, who was neither party nor privy to the criminal prosecution, this stipulation does not overthrow the legal effect of the specific facts agreed which disclose as a matter of law no violation of the statute. Although parties "may admit or agree upon facts, they cannot make admissions of law which will be binding upon the courts." Moore v. State, 200 N.C. 300, 301, 156 S.E. 806, 807. See also Rawlings v. Neal, 122 N.C. 173, 29 S.E. 93; Binford v. Alston, 15 N.C. 351.

In the final analysis it would seem that the plaintiff in this action is seeking to recover "Collision or Upset" benefits under a policy that provides no such coverage and for which no premium was charged or paid.

The judgment below is

Affirmed.