Anderson v. Hartford Accident & Indemnity Co.

247 P. 507, 77 Cal. App. 641, 1926 Cal. App. LEXIS 434

• Court: California Court of Appeal
• Decided: April 29, 1926
• Docket: Docket No. 4138.
• Status: Published

Opinions

WORKS, J.

This is an action to recover under a policy of insurance. Judgment went for defendant and plaintiffs appeal.

The policy which respondent issued to appellants insured them, originally, against the direct loss of certain specified property “by burglary, theft or larceny ... by its felonious abstractions from within” the place of residence of the assured. Later the protection of the policy was by a rider “extended to cover loss from highway robbery by force or violence” of certain property “from the person of any one insured under this rider while wearing or carrying the same anywhere in the United States or Canada.” The rider also contained this language: “Mere disappearance of property from the person of the assured, unless accompanied by force or violence and unless also within . his or her knowledge at the time, is not a risk covered by this rider, and it is not intended. hereby to cover pocket picking.”

The manner in which the loss occurred out of which this action arose is shown by a stipulation that was entered into at the trial and by the findings of fact which were based upon it. Omitting immaterial or undisputed matters the stipulation and findings recite: “That . . . Claire Anderson . . . was the owner of a diamond bar pin . . . and . . . she was a guest on the battleship Texas, then at anchor in the outer harbor of San Pedro, inside of the breakwater. That at about the hour of two o’clock A. M., Claire Anderson was trying to get to the officers’ quarters . . . for the purpose of securing a fur cape, it being checked there while she was attending the 7th anniversary of the ship. This anniversary was attended by perhaps from two to five thousand people. There was a crush as people tried to get to the dressing-rooms and she was forcing or working her way through as fast as possible. She distinctly felt a hand against her chest as it grabbed her bar pin. The hand was there just an instant. She did not see the hand or any suspicious move of anyone but at once looked down to see her pin. It was gone. She looked on the floor and on her dress but it was not there. People were moving past her in both directions and no one made .any unusual or suspicious move. . . . The pin was on her dress at the time she felt the hand as described above. The pin and hinge were still upon her dress after the occurrence described. The valuable part, consisting of the filigree and diamond, was snapped or broken off and the dress to which it was fastened was torn for about three-quarters' of an inch. ”

There is no question that the ornament which was thus lost was included in the property which was protected against loss by the policy. There is, also, no question but that appellants must recover under the terms of the rider if at all. Our first concern, then, is to ascertain the meaning of the term “highway robbery,” as employed in the rider. Some question may exist as to whether the force exerted in removing the bar pin from Mrs. Anderson’s person was of such a nature as to translate the act of purloining it into the crime of robbery. We shall neither discuss nor decide that question. We shall assume as a starting point that the act was robbery. But the rider did not insure against robbery. The protection afforded by it was against highway robbery. What did the parties contemplate when they employed that expression in their contract? The use of the two words together indicates that the assured were to be protected against something different from mere robbery. In a grammatical sense the word “highway” plainly qualifies the word “robbery.” In a legal sense, to what extent does the limitation operate? What is highway robbery?

The expression is not known to the Penal Code of this state, nor, so far as we can discover, has it been made the subject anywhere of legislative or judicial definition which fits the facts here presented. Certainly, it has never been defined by the courts of California. The phrase, however, is in constant use throughout the English-speaking world. We must commence with the view that it was employed by the present parties in the sense in «which it is so generally used. What is that sense ? There was a time in the British Isles, the early clearing-house of English linguistic development, and even in the most populous portions of them, when the roadside robber haunted every land thoroughfare. The country was badly policed and worse lighted and it was even unsafe to venture at night upon city streets unarmed. In truth, the “quality” seldom fared forth after nightfall, even in densely populated centers, without an armed guard. The highwayman was a creature of the lanes, byways, and roads. Moreover, his activities were so frequent and his exploits so daring that he was the public enemy. Gibbets were maintained at important crossroads, and upon them robbers were summarily hanged. Their corpses were allowed to swing until their bleached skeletons became dismembered under the action of winds and rain, because of the example thus furnished. It is no exaggeration to say that the land was filled with the clanking of chains and the swaying of bodies which were suspended from them. It is impossible now to understand fully the conditions which then prevailed, but they contributed a striking feature to the annals of Great Britain, they furnished a dominant element in the growth of English criminal law, and they have colored with a carmine hue the literature of every English-speaking people. It is proper first to enter the domain of history, for out of that has emerged the influences which have operated under the conditions above depicted. The terrors of highway robbery menaced the population of England during a long period of time. In a chapter devoted to social conditions between the years 1200 and 1400 Aubrey says: “The travelling was attended with many inconveniences and was often dangerous as well as difficult. Traders could not venture through England with their merchandize, unless attended by a large armed escort. Persons formed themselves into caravans for mu-protection when about to undertake a long journey, or to cross a forest or a heath. The perils were greater to that numerous class who had to travel on foot, and who could not always ensure reaching a place where lodgings might be found. Not only were there dangers from bandits and outlaws, but knights, landed gentry, and noblemen connived at their dependents practising highway robbery; and shared in the plunder.” Macaulay, dealing with conditions following the Peace of Ryswicb, which was concluded in 1697, sets down the following graphic recital: “The peace had, all over Europe, and nowhere more than in England, turned crowds of old soldiers into marauders. Several aristoeratieal equipages had been attacked even in Hyde Park. Every newspaper contained stories of travellers stripped, bound, and flung into ditches. One day the Bristol mail was robbed; another day, the Dover coach; then the Norwich wagon. On Hounslow Heath, a company of horsemen, with masks on their faces, waited for the great people who had been to pay their court to the King at Windsor. Lord Ossulston escaped with the loss of two horses. The Duke of Saint Albans, with the help of his servants, beat off the assailants. His brother, the Duke of Northumberland, less strongly guarded, fell into their hands. They succeeded in stopping thirty or forty coaches, and rode off with a great booty in guineas, watches, and jewellery. Nowhere, however, does the peril seem to have been so great as on the Newmarket road. There, indeed, robbery was organized on a scale unparalleled in the kingdom since the days of Robin Hood and Little John. A fraternity of plunderers, thirty in number according to the lowest estimate, squatted, near Waltham Cross, under the shades of Epping Forest, and built themselves huts, from which they sallied forth with sword and pistol to bid passengers stand.” In a note to the first sentence of this text, the great historian says: “George Psalmanazar’s account of the state of the south of France at this time is curious. On the high-road near Lyons he frequently passed corpses fastened to posts. These,’ he says, ‘were the bodies of highwaymen, or rather of soldiers, sailors, mariners, and even g'alley-slaves, disbanded after the peace of Reswick, who, having neither home nor occupation, used to infest the roads in troops, plunder towns and villages, and, when taken, were hanged at the county-town by dozens, or even scores sometimes, after which their bodies were thus exposed along the highway in terrorem.’ ” The “Fortnightly Review” makes this statement as to conditions existing as late as the period 1780-1786: “Even a walk or drive to Kensington or Chelsea, both country villages at that time, was not undertaken without fear of highwaymen or footpads.”

When we enter the realm of the law, it is not surprising that the effect of these startling aberrations from a regulated state of society becomes manifest. Under the English law, from an early period, robbery on the king’s highway was distinguished from other forms of crime. It was punished capitally and the offender was denied the benefit of clergy (4 Black. Com. 243, 373). Without going to sources, an interesting statement upon the subject of highway robbery, as contemplated by the English law, is found in the arguments of counsel and in the opinion in State v. Johnson, 61 N. C. 140. In that case the defendant was charged under a statute which prescribed the death penalty for robbery perpetrated in or near a public highway. The evidence showed that the victim of the crime which was sought to be punished in the case was assaulted and robbed while walking along a railroad track. It was said in the course of the brief filed on behalf of the defendant: “Highway robbery insidiatio viarurn was excluded from clergy at common law previously to Statute 25, Edw. III, Pro clero; 4 B1., 373; 1 Chit. Cr. Law, 675; 2 Hale, 333. The Statute Pro clero gave clergy for any treasons or felonies not touching the King himself or his royal majesty. Yet a construction prevailed after this that insidiatores viarurn might be denied it. Hale & Haw, ubi supra. The reason assigned being that it was a sort of hostile act and bordered upon treason. 4 B1. 373; 1 Ch. Cr. L., 675. Upon complaint of this to Parliament, the Stat. 4, H. IV, chap. 2, granted it to them. The reason above grew out of the fact that the King had a right of passage for himself and for all of his subjects. C.omyn, Chemin (A, 2), page 27. Where highways are unsafe, the whole country is in peril. The policy of this security applies only to places where every citizen has a right to pass and repass at pleasure; particularly to such upon which every man is sometimes compelled to be; and to transport articles of value; and expose such at lonely places; at the same time that the robber himself cannot be excluded from being thereupon, having the right to pass and repass as well as others, and being under the protection of the sovereign in the enjoyment of his right.” The following appears in the opinion of the court: “The benefit of clergy is taken from the offense of robbing any person in or near any public highway. Statutes Hen. VIII, and Ed. VI. re-enacted, Rev. Stat., chap. 34, sec. 1, and also re-enacted, Rev. Code, chap. 34, sec. 2, in connection with sec. 22. These statutes, from the earliest time, have received a uniform construction, by which it is held that although, at the date of the passage of the original acts, there were three sorts of public highways—one called ‘iter,’ over which the people passed on foot; another called ‘ actus, ’ over which they passed on foot or on horseback; and a third called ‘via,’ over which they passed on foot or horseback, or in vehicles with wheels[,] Coke Lit. 56, a. b; and although the statutes use the words ‘public highway,’ still they do not embrace any but the last kind—the ‘via,’ or by way of pre-eminence, the highway. 1 Hale, 535, Ibid., 333; 2 Hawk., 476; 4 Blackstone, 373. For it was considered that the mischief intended to be remedied existed in a special degree in regard to the ‘via,’ or highway of most importance; that is, those over which all of the King’s subjects, were at liberty to pass and repass on foot, on horseback, and in carriages; and it was resolved by the judges that a statute so highly penal, and affecting human life, should be confined to the most important kind, and could not, by construction, be made to include the two other kinds, notwithstanding the - mischief in some degree extended to them. ’ ’ Upon this reasoning the court determined that a railway ivas not a highway ivithin the meaning of the North Carolina statute. This final result is not stated for the purpose of showing that the unknown person who relieved Mrs. Anderson, of her brooch, under the facts in the present case, was not a highway robber, but in pursuit of our endeavor to ascertain the accepted meaning of the term “highway robbery. ’ ’ The import of that expression under the English criminal law is determinable in some degree from an inspection of modern lexicons. A part of the matter under the word “highway” in the Standard Dictionary reads: “In English history, highway designated the main public road, which was the subject of special royal enactments controlling the policing thereof; it was popularly known as the king’s highway.” It is said in Webster, under the word “highway”: “Originally, highway designated a chief or principal way, which, being traveled by the public in general, was, early in English history, brought under the protection of the king’s peace.”

When we turn to English literature, and especially to those works of fiction which are based on historic fact, what a broad foundation is found upon which has been built a popular understanding of the expression “highway robbery”! The activities of the roadside robber furnish one of the most persistent themes in British story. Who that has read English fiction—and even the pages of history from which the English novelist has taken his facts—has not heard of Dick Turpin, Jack Sheppard, and Robin Hood? Scott’s novels are full of the exploits of the highwayman. “Rob Roy” deals with the theme. Dickens has not neglected it, as witness “A Tale of Two Cities.” Bulwer is crowded with it, one instance being “The Last of the Barons” R. D. Blaekmore’s great novel, “Loma Doone,” is practically based upon it. The same strain stands forth prominently in Jeffery Farnol’s delightful latter-day novel, “The Broad Highway.” One of Lord Dunsany’s sketches, printed in the collection which carries the name, “The Sword of Weller an,” deals with the same theme. Nearly all of these romantic tales depict graphically the manner in which the highway robber did his work, and several of them paint the picture of his summary punishment upon the gibbets of the roadside—a picture different only in degree from that painted by Psalmanazar in his account of conditions in France following the Peace of Ryswick. And the few tales mentioned are but a minor fraction of the vast number which load the shelves of English and American libraries.

In our quest it is not amiss to turn to the modern lexicographer. The Encyclopaedic Dictionary disposes of the term “highway robber” thus: “The same as highwayman.” Highway robbery is defined in that work as: “Robbery committed on or near the public highway.” The definition of “highway robber” as given in the work calls for the accompanying definitional rendition of “highwayman.” It is: “One who robs passengers on the public highway; a highway robber.” Neither “highway robber” nor “highway robbery” is defined in any of the other dictionaries which lie before us. March’s Thesaurus Dictionary thus defines “highwayman”: “A robber who plunders on public roads.” The Standard Dictionary renders the same word thus: One who practises, commits or attempts to commit highway robbery; one who robs in public places, or lurks for the purpose of robbery.” Webster defines “highwayman”: “One who robs on the public road; a highway robber.” The Century Dictionary gives this definition of that word: “A robber on the highway; mie who robs passengers in public roads or places.”

We may now safely state the mental picture formed by the composite citizen—and it is his view that we endeavor to ascertain—when he reads or hears of a highway robber or a highwayman. What does he see? There can be no doubt of the answer. History, literature, tradition, and conversation based upon them have given him a definite conception of the two terms, for, in truth, the two are one. He sees a determined individual, whether masked or unmasked, who appears before the wayfarer with pointed weapon or uplifted bludgeon and rifles the pockets of his victim. He sees no secret plunderer, no sneak thief, no pickpocket. He could see no highway robber, no highwayman, in the individual who despoiled Mrs. Anderson of her treasured bar pin. If we grant that the crime through which she suffered was robbery, under the technical rules of the criminal law, we are convinced that it was not highway robbery within the meaning of the insurance policy before us.

We are not concerned, in reaching this conclusion, with the question whether the waters of San Pedro harbor or the decks of the battleship “Texas” are a highway in the sense that a highway robbery might have been committed upon them. Such a question would have arisen if Mrs. Anderson’s despoiler had made her the victim of a “holdup” in some dark and secluded spot upon the decks of the ship -—if he had boldly confronted her, put her in terror, and by such a means had deprived her of her property. Even under such circumstances a respectable brief could have been written in derogation of the right of appellants to recover under the policy. Under the actual circumstances of the case the necessity for such a brief does not exist.

If we admit for the sake of argument, in approaching a new angle of the case, that there is doubt as to the general meaning we have ascribed to the expression “highway robbery,” there is yet an objection to the right of appellants to recover. There is enough in the rider attached to the policy to show that the parties intended the term as employed in their contract to have some such meaning as we, in an attempt to ascertain its usual import, have fastened upon it. By the terms of the rider appellants were insured against “highway robbery by force and violence.” In the commission of every robbery either force is exerted or violence is committed. These are necessary elements of the crime and they distinguish it from larceny. They are therefore embraced within the meaning of the word “robbery.” Here, however, the words “force” and “violence” are expressed accompaniments to the word “robbery.” Would it not be a curb upon the intention of the parties to determine that by the addition of the accompanying words they intended merely a reference to the slight degree of force which, under some of the decided cases, will serve to raise the crime of larceny to that of robbery, and which is implied in the latter word itself? Under some of the cases, undoubtedly, and considering now only the crime of robbery and not what the parties here have called highway robbery, the tearing of Mrs. Anderson’s dress and the separating of the “valuable part” of the brooch from the pin which held it, would constitute a sufficient force to make the crime a robbery. We think the parties meant much beyond that by the employment of the expression “with force and violence.” And there is more in the rider to indicate that they did. We have seen that it contained this negative pro vision: “Mere disappearance of property from the person of the assured, unless accompanied by force or violence and unless also within his or her knowledge at the time, is nob a risk covered by this rider.” In the pursuit of our present purpose this language does not require dissection. To us it seems plain as it stands. When added to the phrase “with force and violence,” where that expression is inserted after the words “highway robbery,” it appears to us to show that the parties intended the latter term in their contract to have the meaning we have ascribed to it as a result of our search for the sense in which it is generally accepted. The parties intended that there should be no recovery under the rider unless one of the assured was the victim of a “holdup” and thereby lost an article described in the rider.

There is, however, one clause of the rider which requires a more minute consideration. Appellants were not insured unless a loss suffered by one of them was “within his or her knowledge at the time.” This language plainly imports a knowledge of loss at "the time, that is, at the very moment, of the robbery which occasioned it. The clause has already operated strongly as an aid to our determination that the rider insured appellants only against “holdups.” But let us now investigate more narrowly the question whether Mrs. Anderson knew “at the time” of the robbery that she had been despoiled of her brooch. According to the findings of the trial court, based upon the stipulation between the parties: “She distinctly felt a hand against her chest as it grabbed her bar pin. The hand was there just an instant. She did not see the hand or any suspicious move of anyone but at once looked down to see her pin. It was gone. She looked on the floor and on her dress but it was not there.” The only part of the finding which tends in any degree to warrant a recovery under the policy is the recital—for it is nothing more—“as it [the hand] grabbed her bar pin.” There is here no showing that she was conscious that any hand had “grabbed” the pin and had actually asported it, or, even, that she was conscious that it had been “grabbed” at all. The recital, too, must be considered with the context of the portion of the finding in which it occurs. So considered, the strongest view that can be taken of the finding is that it shows that Mrs. Anderson suspected that an attempt had been made to rob her. What is there in the finding to limit it to that potency, granting that, it is so strong ? The victim of the crime, after she felt the hand on her chest, looked down to see her brooch. She looked on the floor and on her dress, but it was not there. There is no finding that she knew, until after she endeavored to find the brooch, that her dress had been torn or that the pin had been broken from the valuable part of the ornament. There was plainly an expectation or hope on her part that she would find the ornament either on her person or on the ship’s deck. She therefore, we repeat, merely suspected that an attempt had been made to rob her. Surely there was here no “disappearance” of the brooch which was “within . . . her knowledge at the time” when it was taken. This circumstance alone precludes a recovery in this action.

We do not find it necessary here to consider specially the portion of the negative clause of the rider to the effect that the policy was not intended “to cover pocket picking.” The authorities upon the question whether the despoiler who filched Mrs. Anderson’s brooch was a mere pickpocket are at variance. We do not feel compelled to an attempt to reconcile or to distinguish them.

The negative clause of the rider furnishes an aid to the construction of the policy which we have not yet mentioned. The policy as originally issued appears to have protected the assured against all forms of larceny and robbery occurring within their household. If it be argued from this that the rider should be construed in such a manner as to protect the parties to the same extent when abroad “anywhere in the United States and Canada,” the argument falls to the ground upon a mere perusal of the negative clause mentioned. It plainly shows that the protection of the rider was not afforded as to all classes of robbery. It is more than plain from all that we have said that the rider covered no kind of larceny.

Judgment affirmed.

Finlayson, P. J., concurred.