Opinion
No. 30282.
January 2, 1933.
1. INSURANCE. Mere disarranging and tearing of tie of insured, a college student, who missed his diamond stud after fight between college students following football game, held not "bodily injury" within personal hold-up policy defining robbery as felonious and forcible taking of property from person of insured, accompanied by bodily injury or by putting insured in fear of bodily injury.
"Bodily injury" means injury to the person, and injury to insured's wearing apparel alone did not constitute bodily injury within the meaning of the policy.
2. ROBBERY.
Where property is snatched so quickly as to allow no time for resistance, it is not robbery.
APPEAL from circuit court of Hinds county. HON.W.H. POTTER, Judge.
W.E. Morse, of Jackson, for appellant.
Where one man jostled against another in the street, and, when the other begged his pardon he turned, looked and swore at him, and followed him until the latter ran up against the house, then seized him by the cravat and leaned upon him, and while so doing took the man's watch. The court stated that it was clear that the prisoner's violence was the cause of the loss of the watch; that the fear of being beaten diverted the owner's attention from his property, and the fear was produced by force, so that in truth the property was taken by force, and constituted robbery.
Com. v. Snelling, 4 Binn. 379.
When force is employed to divert the owner's attention, while he is unconsciously deprived of his property, the taker is guilty of robbery, though, by means of the force which distracts the attention, the larceny is artfully and unknown to the owner completed.
Mahoney v. People, 3 Hun. 202, 59 N.Y. 659.
One man said he wanted to whisper to another, and, puting his left around the other's neck pretending to whisper, with his right hand he took a roll of money from the other's vest pocket and handed it to a confederate who was standing near. The court affirmed a conviction of robbery, and stated that any forcible taking of property from the possession of another by means which overcomes resistance, however slight, is the taking by the infliction of actual injury, and so is by assault.
State v. Gorham, 55 N.H. 152.
If a victim is being pushed or shoved about by the pickpocket or his associates, and the crime is then accomplished, it is robbery, even if the victim is at the time unaware of his loss.
Snyder v. Com., 21 Ky. L. Rep. 1539, 55 S.W. 679.
Running against a person to divert his attention, and then picking his pocket, is force sufficient to constitute robbery, if the force is used with felonious intent.
Anonymous, 1 Lewin, C.C. 300.
Where three men, acting in concert, picked a man out, pushed him through a crowd down the pavement for some distance, one being at his back, and the others at his right and left, and one of them took a pocketbook from the victim's pocket, passed it to one of the confederates, and they all disappeared in the crowd, the court held that the evidence was sufficient to sustain a conviction of robbery.
Seymore v. State, 15 Ind. 288.
If one man grabbed hold of another, pulled open his overcoat, tore the buttonholes and buttons off, and also pulled his vest open; they scuffled while the one seized was trying to get loose, and soon after getting loose he found that his pocketbook had been stolen from his pants pocket, such will sustain a conviction of robbery.
Blanton v. Com., 22 Ky. L. 515, 58 S.W. 422.
If the article is so attached to the person or clothes as to create resistance, however slight, the taking is robbery. And so, force sufficient to jerk a stud loose from the shirt was held to warrant a conviction of robbery.
People v. Campbell, 234 Ill. 391, 123 Am. St. Rep. 107, 84 N.E. 1035, 14 Ann. Cas. 186; Perry v. Com., 27 Ky. L. Rep. 512, 85 S.W. 732; Smith v. State, 117 Ga. 320, 97 Am. St. Rep. 165, 43 S.E. 736.
In a case where there was a policy designated on its face as a "blanket hold-up" policy, insuring against loss of money "by robbery by force and violence, commonly known as highway robbery or holdup," but not covering "loss of money . . . by robbery unless occasioned by felonious, violent, and forcible means commonly known as holdup, a loss sustained by reason of the taking of money from the inside coat pocket of the insured's employee by thieves in an elevator, the taking being accomplished by some of the thieves diverting his attention by crowding him while another picked his pocket, the force used by the criminals to distract the attention of the employee from the acts of the men who actually took the money was sufficient to constitute the taking of the money robbery within the meaning of the policy.
Duluth St. R. Co. v. Fidelity D. Co., 136 Minn. 299, L.R.A. 1917D, 684, 161 N.W. 595.
A policy insuring against robbery and defining robbery as a "felonious taking of property by violence inflicted on person from whom the property is taken, or by putting such person in fear of violence," was held to cover a loss sustained by one who was jostled and crowded by persons in a vestibule, and who immediately thereafter observed her clothing, disarranged, the front of her waist, in which the diamond pin alleged to have been stolen was securely attached at the time of her entry into the vestibule, torn and hanging, and the diamond pin gone, the court holding that there was a forcible taking of property by violence inflicted upon the person" within the meaning of the policy.
Agee v. Employer's Liability Assur. Corp., 213 Mo. App. 693, 253 S.W. 46.
Flowers, Brown Hester, of Jackson, for appellees.
We are not here concerned with the judicial construction of the term "robbery" as constituting a crime. The term is expressly defined by the clear and unambiguous language of the contract sued on.
The lady who brought the suit was attending a public reception on board a battleship in San Francisco Harbor. She wore a very ornate and valuable bar pin which was taken from her as she moved through the crowd on board the ship. She felt the hand as it grabbed her pin, but she did not see the hand or any suspicious move on the part of anyone. The California court held that the loss in that case was not covered by a policy which provided that disappearance of property from the person of the assured, unless accompanied by fear and violence is not a risk covered by the policy.
Anderson v. Hartford Accident Indemnity Company, 77 Col. 641, 247 P. 507.
A policy insuring against loss by robbery caused by "compelling, under the threat of personal violence, an officer or employee of the assured to unlock and open the safe, etc.," did not cover a loss occasioned when an officer of the assured happened to be in the bank at night and had left the safe open. And this even though he was compelled at the point of a pistol to open the inner safe, which was also unlocked, and give the money therein to the robbers.
Franklin State Bank v. Maryland Casualty Company, 167 C.C.A. 526, 256 Fed. 356.
The facts in this record are entirely consistent with the conclusion that the loss was sustained by accidental means. Odioda et inhonesta non sunt in lege paresumenda, is a legal maxim; and Lord Coke says that, in an act which partaketh of good and bad, the presumption is in favor of what is good, because odious and dishonest things are not to be presumed.
Jackson v. Miller, 6 Wend 228, et al. Am. Dec. 316.
If dishonest acts are not to be presumed, then it must follow that the presumption is that the loss was purely accidental, resulting from a personal struggle voluntarily entered into by the appellant, and is not a loss covered by the terms of the policy sued on.
Appellant brought this action in the circuit court of Hinds county against appellee on a "personal hold-up" insurance policy to recover five hundred dollars, the value of a diamond stud of which appellant claims to have been robbed. He alleged that the policy insured against such loss. The trial was had on the pleadings and evidence, resulting in a directed verdict and judgment in appellee's favor. From that judgment appellant prosecutes this appeal.
The policy sued on insured appellant against loss of the stud by robbery, and defined robbery in the following language: "`Robbery' as used in this policy shall mean a felonious and forcible taking of property from the person of the assured or from the person of any of the individuals hereinbefore described as covered by this policy, accompanied by bodily injury to the person from whom the property is taken, or by putting such person in fear of bodily injury."
The evidence, viewed most strongly in appellant's favor, was substantially as follows: When he lost the stud he was attending a football game at Starkville between the University of Mississippi and the A. M. College teams. In the evidence the University of Mississippi team is referred to as the Ole Miss team, and the A. M. College team as the A. M. team. After the game, the Ole Miss supporters rushed on the south goal post to take it. A fight ensued, the Ole Miss students were trying to take the goal post and the A. M. students were trying to prevent them from doing so. Appellant, who was a university student, had classmates and fraternity brothers in the fight. They were out-numberd by the A. M. students. The later were wielding sticks. There was an officer present, who was in front of appellant. The officer became excited, and threatened to use his gun and started to pull it out. Appellant felt some one pushing him from behind. He did not know who it was. Appellant and others were anxious to get into the crowd where the fight was going on. While he was pushing his way in, he (to use his own language) "noticed a jerk and I started to turn around, and whoever it was had his elbow over my shoulder, and I couldn't turn, and when I turned his elbow hit me right here (indicating) — so I knocked him off with my right elbow and evidently hit him in the stomach, and started to turn, and this little officer was just about to pull his gun, and some one said, `Grab him,' and four or five of us grabbed him and took his gun away from him, and that is how my attention was diverted, and it never occurred to me again about this jerk till I met Bob a minute or two minutes later, after they stopped the fight and dispersed the crowd." His friend, Bob, asked him where his stud was. Appellant then for the first time noticed his tie had been displaced and his stud was gone. His tie was pulled around to one side and was torn both in front and at the back, leaving a hole all the way through, including the lining.
It will be observed that robbery as defined in the policy is the felonious and forcible taking of property from the person of the insured "accompanied by bodily injury to the person from whom the property is taken, or by putting such person in fear of bodily injury." Appellant received no bodily injury, unless it can be said that the mere disarranging and tearing of his tie was bodily injury. We do not think it was. Injury to his wearing apparel alone did not constitute bodily injury in the meaning of the policy. The term "bodily injury" used in the policy means injury to the person. Appellant did not claim that he was in fear of bodily injury. On the contrary, he admits that he did not know that the stud had been taken from his tie until the fight was over and he had left the field.
It is very doubtful whether the evidence was sufficient to show a mere theft of the stud. The inference that during the fight appellant's tie was torn, and as a result the stud fell to the ground and was never found by any one, appears to be as reasonable as the inference of theft. Certainly the evidence means nothing more than the mere snatching of the stud by some one in order to steal it. There is some authority that such a snatching without further indication of violence is robbery, but the great weight of, and better reasoned, authority is to the contrary. Where property is snatched so quickly (as was done in this case) as to allow no time for resistance it is not robbery. Where there is neither actual violence nor intimidation, the act of picking a pocket is not robbery. The force used in the stealthy abstraction of property from the pocket of the victim, or in the open rifling of the pocket of one unconscious, is not the character of violence essential to robbery. 54 C.J., secs. 40 and 43, pp. 1022-1025, where the authorities are collated.
It follows from these views that the court committed no error in directing a verdict for appellee.
Affirmed.