CRAIG, J., Dissenting.
I dissent. The important facts in this action are, that the plaintiff was robbed of a dia
[653]
mond taken from a pin which she was wearing while on board the battleship “Texas,” then anchored in the Los Angeles harbor. It was stipulated that she “distinctly felt a person’s hand grasp the pin.” Recovery is sought upon a contract of insurance; the body of the policy is one insuring against burglary of the assured’s dwelling, and a rider attached thereto purports to further protect from “loss from highway robbery by force or violence.” The pin was fastened to the waist worn by the assured, and the robber separated the diamond from the clasp, leaving the latter attached to the waist. It was also provided in the rider that “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.”
Upon the theory maintained by the respondent, because of the fact that the robbery was committed on the “Texas,” it was not highway robbery, and therefore the loss was not covered by the policy. The taking of the diamond constituted robbery. (Pen. Code, sec. 311;
Rex
v.
Maron,
R. & R. C. C. 419.) Under the stipulation the assured had knowledge of the robbery. The Los Angeles harbor is within the jurisdiction of Los Angeles County.
(Manley
v.
People,
7 N. Y. 295, 304;
People
v.
Wilson,
3 Park. Cr. (N. Y.) 199;
Haskins
v.
People,
16 N. Y. 350.) It is navigable, and hence is a public highway.
(Gunter
v.
Geary,
1 Cal. 462.) Innumerable other authorities could be cited to the last point, but it is not necessary. The Encyclopaedic Dictionary defines a highway robbery as a robbery committed on or near the public highway. Many other works of the same character announce substantially the following definition of a highway robber: “One who robs in public places.” Under these authorities, and in the absence of any statutory definition of the term, it is clear that the loss sustained by the plaintiff was through a highway robbery accomplished by force, and with her knowledge.
In so far as the respondent’s single argument is concerned, no further discussion is necessary, but since I am constrained to dissent from the foregoing opinion, the discharge of a full measure of service seems to require that
[654]
the reasons inducing that conclusion be set forth in greater detail.
Of course, the intent of the parties constitutes the contract. Our object is to discover that intent. However, they are presumed to have contracted with the law in mind, and to have used words in the meaning which they possess as a matter of law. Hence, it is important here to determine the meaning of the term “highway robbery.” While the definition of “highway robbery” in this action involves the determination of civil rights only, it is a term usually found in the realm of criminal law, and we must seek there for light upon its true meaning. (Macgillivray on Insurance [1912], p. 964.)
To my mind, little of value is to be gained by consideration of the occurrences, conditions, and classes of highways described in early English history. In the first place, if it be accepted without challenge that about the year 1200 A. D., and for some centuries thereafter, “highway robbery” was a term which as then used was applicable only to robbery of a type intended to inspire terror in the bravest hearts, and committed on a
via,
as distinguished from an
iter
or
actus
of that period, these facts furnish no aid to a determination of the question here presented, to wit, Did the parties to this insurance contract intend the company to insure against a loss to the assured such as that shown to have been sustained in the instant case? This is so, first, because nothing in the foregoing opinion indicates that waterways did not sometimes form a part of the
vias
or king’s highways. Blackstone has well said, “Law is the soul of reason.” A law would surely fail miserably to measure up to this standard, which would denounce a certain act as a felony without benefit of clergy if committed on the king’s highway built upon land approaching a river, but wholly omit to condemn the same act on a boat crossing the river. History tells us that the king’s highway led from London to the Thames, at Staines; there the king and his subjects, who might be desirous of traveling to Worchester, were transported by boats across the riyer, or might go by bridge; there the
via
on land resumed, and by it they might pass on to their destination. We are informed that one purpose of the law at that time, making robbery a more serious offense when committed on the king’s highway
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than when perpetrated upon or near the
actus
or
iter,
was that all of the king’s subjects were at liberty and were often required to pass and repass upon the former, and hence greater protection should be extended against the taking of articles of value from them there by robbers. Again, robbery on the king’s highway was more severely punished, out of respect and consideration for the rights and prerogatives of royalty and nobility, who principally traveled thereon and who usually used the
via
rather than the
iter
or
actus.
The carriages for whose use the
vias
were constructed were the property of nobility and of the few rich among the untitled. The poor had not much of value which might be the subject of plunder. The
vias
were few in number, but the nobility and the rich perforce crossed the Thames, the Trent, and other rivers. They traveled up and down these highways in boats before
vias
were constructed or carriages were built, and navigable waters were recognized as highways, and from the earliest times formed a part of the same system of transportation and travel as did the
vias.
Who will deny .the unreasonableness of a law which would ordain one rule and one punishment for robbery done in a
via,
and none, or an entirely different rule and punishment, for the same depredation by the same robbers against the same travelers, oh a boat crossing from one shore of the Thames to the other I Every consideration of logic and reason would require the same act to be denounced as the same crime in each instance, and there is absolutely nothing in either the law quoted or the references to history and literature contained in my associates’ opinion to justify the conclusion that the law made any distinction in that behalf.
On the other hand, there is substantial reason and authority for the contrary conclusion, to which attention will be called later.
Again, the conditions formerly existing ceased centuries ago, and the Reasons which may have resulted in the robbery upon the
via
being denied benefit of clergy, while the same outlaw who worked on the
iter
and the
actus
had that consideration allowed him, never had any application in America. Of royalty and nobility we have none. The poorest citizen has the same protection afforded him as the
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richest, and highways far superior to ancient
vias
form a network over our state and nation.
The mere fact that Scott and Blaekmore in their inimitable imagery and fiction have painted pictures of highwaymen three-fourths hero and one-fourth outlaw would hardly be taken as proof that such was the character of all highwaymen then. These and other authors visioned ideals not the inferiors, or even the average robbers, of that time; and their tragic descriptions of the deeds of robbery done with dash and daredevil bravery upon the
vias
is no indication that even at that time the taking of property from the person of another by a cowardly thief who snatched a watch, broke the chain which attached it to the clothing of the owner, and ran, would not have been called a robbery then as much as it would to-day, and a highway robbery, also, if it took place on or near a
via,
or on a navigable waterway. But if we were to assume that highway robbery could not have been committed on an
actus
or
iter,
but might upon a
via,
and because of this we further assume the fact to be that highway robbery could not be committed on a water highway (which of course does not follow) there exists a further reason why we are not assisted in construing the insurance policy in question by the facts and fiction of those olden times. It is common knowledge that the meaning of many, if not of most, terms used in the year 1200, or even 1500, A. D., have substantially changed, some being used in a radically different sense, some falling into almost disuse,"and others so evolving as to be vastly broader in their scope. Without definite continuity of the ancient distinctions between the various classes of highways, we are left in the position of accepting precedent hundreds of years old, without any indication that the reason for its origin still exists. While a proper respect for precedent is essential to security of property and of rights of every character, I apprehend that instances are rare indeed among the reported cases where a definition established by statute or judicial decree rendered in the shadow of the Dark Ages has been accepted, although the reason upon which it was based is but a memory. Such procedure would furnish justification for the common criticism of courts, usually mistakenly and ignorantly made, that they are hidebound, and listen to the voices of the dead rather than to
[657]
those of the living, in a blind adherence to precedent, however old and lacking in logic.
Suppose a suit be brought on a contract in which the term “landlord” is used, and a dispute arises concerning the meaning of that word and the rights of the landlord. Should we go back even as far as Blackstone and base our decision upon his discussion of the subject, we would find ourselves holding that a landlord has jurisdiction over dependent landholders, with power to redress misdemeanors, and nuisances, to settle their disputes, etc. Blackstone’s definition of a tenement has no application to that term as used in America to-day. The constant forward march of civilization has resulted in complete abandonment of the early definition of the term “debtor” as a felon. Nothing would be gained in construing modern statutes or contracts by tracing the term “debtor” back to the days of fettered felons, and imprisonment for debt, or in reflecting upon the former use of chains, and execution blocks, and the discovery of pieces of dead debtors, in quest of a modern definition of a market place. Difficult, indeed, would be the task of writing a thesis upon commercial law, or any of its branches, if the slightest recognition were afforded the terms and principles denounced by the Twelve Tables.
So, in this instance I cannot bring myself to take into serious consideration that part of the foregoing opinion which deals with conditions, statutes, and literature of the Middle Ages and early modern era. It is not my contention that these should never be given attention, but that their worth is negligible unless it can be shown that the conditions and causes are the same as those existing to-day.
To my mind it is elementary that every thoroughfare over which all the public have a right to pass and repass and use for transportation and travel is a highway, and that this definition applies to waterways as well as those on land; also that one who robs on or near a highway is a highwayman. This being so, little authority need be cited to support these propositions. However, serious challenge, I think, justifies a more extended reference to authorities.
To secure uniformity in legal rights and law enforcement it is essential that no different consequences should follow the performance of an act in one place in the same sovereignty than in another. There is no apparent reason why
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per se
an act of any character should be classified differently when committed on water than on land, or when it is done on a boat traveling the state highways of navigable waters than on a bus traveling the state highways constructed on the solid earth. The route of travel on which the ship was at the time the act was committed was a state highway, and it was within the sovereign jurisdiction of the state of California as unconditionally as any point in the system of public boulevards in this state.
(United States
v.
Bevans,
3 Wheat. (U. S.) 336 [4 L. Ed. 404, see, also, Rose’s U. S. Notes] ;
Commonwealth
v.
Peters,
53 Mass. (12 Met.) 387.) In Hargrave’s Tracts, at page 8, it is said: “For as the common highway on the land be for the common land passage, so these kind of rivers, whether fresh or salt, that bear boats or barges, are highways by water.” The supreme court of Massachusetts, in deciding the case of
Attorney-General
v.
Wood,
108 Mass. 436 [11 Am. Rep. 380], used the following language: “Navigable streams are highways, and a traveler for pleasure is as fully entitled to protection in using a public way whether on land or on water as a traveler for business.” “Where water is navigable in law, whether or not within the ebb and flow of the tide, the public have a common right to use it for navigation as a public highway.” (29 Cyc. 304.) In
Gunter
v.
Geary,
1 Cal. 462, the supreme court of this state said: “It is well settled that all that part of a bay or river below low water at low tide, is a public highway . . . ” In many other jurisdictions the same rule exists, and has been applied, in both civil and criminal cases involving obstructions of public highways, and kindred questions. In
American Steamboat Co.
v.
Chace,
16 Wall. (U. S.) 522 [21 L. Ed. 369], it was said that the waters of Narragansett Bay constituted “one of the public highways within the state” of Rhode Island. In
State
v.
Narrows Island Club,
100 N. C. 477 [6 Am.
St.
Rep. 618, 5 S. B. 411], it was said with reference to Big Narrows, in Currituck Sound: “If the water referred to was thus navigable, the public had the light to use the same for the purposes of a highway and navigation . . . Navigable waters are natural highways—so recognized by government and the people—and hence it seems to be accepted as a part of the common law of this country, arising out of public neces
[659]
sity, convenience, and common consent, that the public have the right to use rivers, lakes, sounds, and parts of them, though not strictly public waters, if they be navigable in fact for the purpose of a highway and navigation employed in travel, trade, and commerce.” Other authorities of the same import are numerous.
(Bigelow
v.
Nickerson,
70 Fed. 113, 117 [30 L. R. A. 336, 17 C. C. A. 1] ; Robin
son
v.
Chamberlain,
34 N. Y. 389 [90 Am. Dec. 713], quoted with approval in
German Alliance Ins. Co.
v.
Home Water Supply Co.,
174 Fed. 764, 768 [42 L. R. A. (N. S.) 1005, 99 C. C. A. 258];
Commonwealth
v.
Coombs,
2 Mass. 489, 492;
Moore
v.
Day,
199 App. Div. 76 [191 N. Y. Supp. 731];
Smart
v.
Aroostook Lumber Co.,
103 Me. 37 [14 L. R. A. (N. S.) 1083, 68 Atl. 527] ;
Dwinel
v.
Veazie,
50 Me. 479, 484;
Mashburn
v.
St. Joe Impr. Co.,
19 Idaho, 30 [33 L. R. A. (N. S.) 824, 113 Pac. 92];
Chicago, R. I. & P. R. Co.
v.
Williams,
148 Fed. 442, 447;
B. & M. R. R. Co.
v.
Lowell & L. R. Co.,
124 Mass. 368;
Hutchinson
v.
Watson Slough Ditch Co.,
16 Idaho, 484 [133 Am. St. Rep. 125, 101 Pac. 1059];
State
v.
Portland Gen. Elec. Co.,
52 Or. 502 [95 Pac. 722, 98 Pac. 160]; 2 Chitty’s Criminal Law, 382.)
A case which illustrates the fact that waterways and land thoroughfares are not to be distinguished as highways is
French
v.
Camp,
18 Me. 433 [36 Am. Dec. 728], involving the Penobscot River, which had frozen over, and a hole had been cut in the ice by the defendant for the purpose of watering stock. The opinion of the court reads, in part: “The waters of the Penobscot are, of common right, a public highway, for the use of all the citizens. This right is generally exercised when the are in the fluid state; but, when congealed, the citizens have still a right to traverse their surface at pleasure.”
Any distinction, therefore, must necessarily be of a technical character, based only upon the fact that water is water and land is land. It should not be the purpose of courts to base their decisions upon such inconsequential distinctions, nor should it be presumed that the parties to a contract believed the laws to be so framed, or intended their contracts to recognize such unessential differences.
In addition to the definition of a highway robber given in the Encyclopaedic Dictionary, Funk & Wagnall’s Interna
[660]
tional Dictionary defines a highwayman as ‘‘ one who robs in public places.” In 29 Cyc., at page 364, it said that “ ‘Highway’ is a name for all kinds of public ways, whether by land or by water, ’ ’ and many cases are there cited to the effect that navigable waters are highways.
It is well established that, when the language used in a contract of insurance is ambiguous, or when a doubt arises in respect to its application, or as to limitations of liability thereunder, it must be interpreted most favorably to the insured.
(Clark
v.
New Amsterdam Casualty Co.,
180 Cal. 76 [179 Pac. 195];
Bayley
v.
Employers’ etc. Corp.,
125 Cal. 345 [58 Pac. 7] ;
Welch
v.
British American Assur. Co.,
148 Cal. 223 [113 Am. St. Rep. 223, 7 Ann. Cas. 396, 82 Pac. 964];
Coniglio
v.
Connecticut F. Ins. Co.,
180 Cal. 596 [5 A. L. R. 805, 182 Pac. 275];
Wells-Fargo & Co.
v.
Pacific Ins. Co.,
44 Cal.
397; Mah See
v.
North American Acc. Ins. Co.,
190 Cal. 421 [26 A. L. R. 123, 213 Pac. 42].) I do not think it necessary that this rule be exclusively relied upon in the case at bar to maintain the company’s liability, since we deem a navigable harbor a highway to all intents and purposes, nor do I feel impelled to limit insurance against highway robbery to robbery committed on a highway technically established as such for all municipal purposes. It is generally understood, and is said in Webster’s New International Dictionary, that a “holdup” is a “highway robber,” and I think the appellants contemplated insuring themselves against loss from robbery by force and violence in the open, as distinguished from, or in addition to, thefts from their domicile.
This suggests another consideration which points to the same conclusion as above indicated, namely, that the parties intended the clause being construed to have a wide scope. This is, the fact that the principal part of the insurance contract constitutes one against the unlawful taking of personal property from within the premises described, and it is followed by the provision in question, intended to afford protection against results from highway robbery. Surely, the insured, as well as the insurer, had in mind not so much the exact spot or route in which the robbery should take place, as the nature of the act to be insured against. It would appear quite certain that they contemplated in
[661]
surance against the taking of personal property from the person by means of force or violence, committed anywhere in the open, not covered by the preceding provisions of the policy, and it can hardly be thought that the parties at the time considered making a distinction between such acts, whether done in a field, or on water, or within the confines of a boulevard. Suppose bandits commit a robbery of a horseman or pedestrian upon one of the bridle paths of the parks, or among the hills of California. Would anyone doubt the propriety of describing the occurrence as a highway robbery, or those who committed it as highwaymen? Yet these bridle paths are substantially the same “ways” as were the
acti
of history. Having contracted for reimbursement for losses occasioned by similar classes of acts than from the home without doubt the idea of the parties was to insure against all other such robberies committed by force and violence, with knowledge of the assured. Viewed from every standpoint, the wording of the contract of insurance points to this conclusion. It is to be noted that the rider did not insure against loss from all highway robbery, but only “loss from highway robbery by force or violence,” etc. Clearly, the addition of the words “by force or violence,” after “highway robbery,” indicates a limitation upon the class of highway robbery, loss from which it is intended to insure. There might be highway robbery where the taking was by putting in fear. This is evidently the purpose which the parties had in mind in adding the words “by force or violence,” rather than as indicating that they believed the content of the term “highway robbery” to necessarily involve excessive force or violence.
Again, the further limitation upon the lability of the insurer points inevitably to the correctness of the construction above indicated. The additional words prove, if nothing else does, that the meaning ascribed by the foregoing • opinion to the term “highway robbery” could not have ;been in the minds of the parties to this contract. If they ' pictured a determined individual, perhaps masked, appearing before a wayfarer, with uplifted bludgeon, or pointed firearm, rifling the pockets of his victim, who surrenders in abject terror, can anyone reasonably suppose that they would have regarded it as necessary to have inserted the stipulation that “mere disappearance of property from the
[662]
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”? Could anyone conceive of the victim of a highway robbery committed in the manner so graphically portrayed in “Loma Doone,” or “A Tale of Two Cities,” or “George Psalmanazar’s Account of the State of the South of France,” not having “knowledge at the time” that he was being robbed? The fact that the rider contains this added restriction upon the insurer’s liability seems to exclude the idea that the parties contemplated only insurance against the type of tragedy occurring upon some
via
in the days of Robin Hood, and Little John, when such robbers were often regarded as heroes, sometimes occupying a position in the respect and affection of the common people almost on a par with the nobility.
I think that, instead of proof that the parties intended to include in the policy insurance only where the one insured had been a victim of a typical wild-west holdup, this language demonstrates conclusively that the contrary is true, and that they intended to protect against any form of robbery, provided it be committed in the open, and by force or violence, and with knowledge of the victim. If the parties had intended to limit the liability otherwise, it may reasonably be expected that apt language would have been used to express such intent.
It seems clear, also, that the picture of a highway robbery existing in the minds of the parties must have been such that they anticipated a claim might be made that the taking of property from the person even without his knowledge would be included within the term; that it might be said that taking property from the person, though not by force or violence, but only through cunning or artifice, is highway robbery. Otherwise, -why should they have added the proviso against such taking being covered by the term ? The effect of this language, to my mind, is -exactly the same as though the contract had read, “All loss by robbery in the open, if accomplished by force or violence, and if the assured at the time of being robbed has knowledge of the fact, is covered by this policy.” Under such a statement the appellant woidd hardly deny liability.
[663]
Again, I cannot agree with the narrowly restricted view that the provision “unless also within his or her knowledge at the time” should be so construed as to require that the person robbed must have had a consciousness of the result of the acts of the robber', and an appreciation of the fact that such acts would' result in a particular article of value being separated from the person and possession of the assured and falling under the control of the robber. The absurdity of such construction is apparent if we consider where it would, of necessity, lead. Robbers not infrequently operate on crowded streets, and well-traveled roads. Should A, in one of these places, approach B from behind and strike him unconscious with a blackjack, rifle his pockets of money, and strip him of jewelry, under the construction suggested and accepted by the foregoing opinion, no recovery could be had by the insured, because this taking was not within his “knowledge at the time.” Or, suppose A, at the point of a pistol, attempts to rob B; B resists, and A uses his pistol for a club, and in a struggle which ensues, B believes he has defended his possession, but upon A desisting and taking flight, investigates, and finds his watch is gone. If the clause in question should be so narrowly construed as to require a consciousness of every move that was made in the combat and its effect in the matter of the extraction of property from the assured, there could be no recovery.
That appellant was forcibly robbed to her then knowledge seems to be conceded, and is clear. Having been robbed on the navigable waters of Los Angeles harbor, used at the time for navigation, it follows that the loss was one suffered through highway robbery within' the obvious intention of the contract.
A petition by appellants to have the cause heard, in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 28, 1926.