#### FRED D. WILLIAMS v. FIREMAN’S FUND INSURANCE COMPANY.

(Filed 1 November, 1922.)

1. Insurance, Fire — Automobiles — Dealers — Possession—Principal and Agent.

An open dealer’s policy, insuring automobiles tbe insured bas for sale against loss by fire, etc., from tbe time sucb automobiles “become tbe property of tbe assured, and continues (unless canceled) until said property is delivered to tbe purchaser, or until tbe same otherwise passes out of tbe possession of the assured,” does not include within its intent and meaning an automobile that bad been stolen and destroyed by fire when in tbe possession of the thief, but only those when so destroyed while in tbe possession of tbe assured, or some of bis employees or agents having control thereof in tbe prosecution of tbe business of the assured.

2. Same — Larceny.

A policy against tbe dealer’s loss of automobiles by fire, while in bis possession, etc., does not include within its protective terms a stolen automobile which was destroyed while in the possession of the thief, the essential feature of larceny being a felonious transfer of possession, and contradictory to tbe intent and meaning of tbe terms of policy contract.

*269Appeal by plaintiff from Connor, J., at tbe Fall Term, 1922, of CUMBERLAND.

Civil action to recover on an insurance' policy on an automobile, covering risk of destruction by fire and lightning. At tbe close of tbe testimony, and on motion made in apt time, there was judgment of nonsuit, and plaintiff excepted and appealed.

Sinclair, Bye & Ciarle for plaintiff.

Tillett & Guthrie for defendant.

Hoice, J.

Tbe facts in evidence tended to show that on 24 April, 1920, plaintiff bad an open dealer’s policy of insurance on automobiles held by him for sale, covering risks of loss by fire and lightning to an amount not to exceed $5,000, and at said date, covering tbe machine in question here and its value. That on 9 May, 1920, said machine was stolen from plaintiff’s garage in Fayetteville, N. C., and on 23 June, forty-six days thereafter, tbe charred remains of tbe automobile were found near Greenville, S. C., possession of same never having been recovered by plaintiff, tbe true owner.

From a perusal of this policy it applies, and is intended to apply, to machines properly designated and held by tbe insured for sale in bis business at tbe time, and in section 5 of tbe policy, provision is made as follows: “This insurance, subject to tbe conditions and limitations of tbe policy of which this form is a part, covers such automobiles from tbe time they become tbe property of tbe assured, and continues (unless canceled) until said property is delivered to tbe purchaser, or until same otherwise passes out of tbe possession of tbe assured, this period in no event-to exceed twelve months, or to extend beyond tbe termination of tbe policy.”

It thus appears that by the express stipulation of tbe contract tbe policy extends its protection to machines only while in possession of tbe insured, or some of bis employees or agents having control of same in tbe prosecution of bis business, and on tbe facts presented in this record, tbe machine could in no sense be considered as coming within tbe descriptive terms of tbe policy. An essential feature of tbe crime of larceny is a felonious transfer of possession, and both tbe language of the contract and provision, and the nature of tbe risk forbids that any recovery can be bad for this loss.

The cases of Lummus v. Ins. Co., 167 N. C., 654, and Lancaster v. Ins. Co., 153 N. C., 285, and others, are in general approval of bis Honor’s judgment directing a nonsuit, and same is

Affirmed.'