The opinion of the court was delivered by: Will, Judge.
Plaintiff, an Illinois citizen, in his capacity as trustee,
demands $14,000 from defendant, a Massachusetts corporation
which has its principal place of business in that state. His
complaint, originally filed in the Circuit Court of Cook
County and removed by the insurer to this Court, avers that on
various dates during 1960 a total of 49 cows and calves
insured by defendant were stolen from a farm in McHenry
County, Illinois, which is part of the corpus of the trust,
but that defendant refuses to pay the amount of the loss. In
its answer, one of the grounds for the insurer's denial of
liability is that the disappearance of at least 31 of the
animals is properly characterized as embezzlement and/or
wrongful conversion, both of which causes of loss are excluded
from policy coverage. The parties have indicated that a
determination of the validity of this defense might aid in
resolving all other contested issues. Accordingly, the Court
asked for and received briefs dealing solely with this issue.
It is not disputed that one Kurt Albrecht, then an employee
on the farm, pocketed the proceeds of his sale, to one Erving
Pierson, of 30 cows and a calf belonging to the trust. The
present record is not very enlightening as to Albrecht's
duties and responsibilities or as to his apparent authority to
sell farm animals. Defendant states, and plaintiff does not
deny, that Albrecht and his son were the only employees and
the only full-time residents there (Brief, p. 1). Albrecht is
characterized by defendant as the "caretaker" of the farm
(id., p. 2). Neither party suggests that the cattle were for
sale much less that Albrecht had actual authority to sell
"This insurance is extended to include direct
loss by theft (but excluding escape, mysterious
disappearance, inventory shortages, wrongful
conversion and embezzlement) and overturn."
The policy and rider were issued in Illinois. Accordingly,
Illinois law must be used in interpreting them. Scarpelli v.
Travelers Indem. Co. of Hartford, 7 Cir., 1957, 248 F.2d 791,
The words "theft", "wrongful conversion", and
"embezzlement", all associated with criminal law, were not
defined in the Illinois Criminal Code in June, 1959, when the
policy was issued. No significance can be attached to the fact
that Albrecht was convicted of larceny, since the statute then
provided — as it had since 1874 (R.S. 1874, p. 348) — that
persons guilty of theft, fraudulent conversion or embezzlement
were all deemed to be guilty of larceny. Ill. Rev. Stat. 1961,
ch. 38, secs. 387 and 207.*fn1
Plaintiff contends (Brief, pp. 5-7) that the word "theft" as
it was used in the policy was intended to be synonymous with
"larceny" and that Albrecht's sale of the cattle was such a
theft or larceny. Defendant, on the other hand, asks the Court
to hold that any unauthorized conversion of his employer's
property by an employee who is "in charge of the property"
(Brief, p. 5), who is "responsible for" the property (id., p.
6), or who is a "manager or caretaker" (id., p. 8), is and
must be embezzlement or wrongful conversion rather than theft
or larceny. However, the cases do not so hold.
Larceny convictions of employees who converted their
employers' property, to which the employees had access or
control similar to Albrecht's, have been sustained on appeal
in a number of states which distinguish in their criminal law
between larceny and embezzlement, e.g. Warren v. State, 1945,
223 Ind. 552, 62 N.E.2d 624; State v. Ugland, 1922, 48 N.D. 841,
187 N.W. 237; Colip v. State, 1899, 153 Ind. 584,
55 N.E. 739; Crocheron v. State, 1889, 86 Ala. 64, 5 So. 649. Cf.
Fleming v. State, 1960, 240 Ind. 389, 391, 166 N.E.2d 178, 180
(dictum). Admittedly, there are cases to the contrary, e.g.
Freeman v. State, 1913, 10 Ala. App. 120, 64 So. 514; and the
companion cases of Burk v. State, 1906, 50 Tex.Crim. R.,
95 S.W. 1064; Pearce v. State, 1906, 50 Tex.Crim. R.,
98 S.W. 861; and Maulding v. State, 1908, 53 Tex.Crim. R.,
108 S.W. 1182. On the other hand, if Illinois separated the two crimes,
Albrecht apparently would have been found to have committed
larceny rather than embezzlement. See People v. Moore, 1927,
243 III. App. 378, 381-382 (dictum).
Defendant cites no case, and the Court has found none,
involving an unlawful conversion comparable to the instant one
where, in interpreting an insurance policy, it was held that
such a conversion must be labeled embezzlement and not
larceny. But in Hall v. Great Nat'l. Lloyds, 1955, 154 Tex. 200,
275 S.W.2d 88, it was held that an employee who stole a
truck and its cargo, to which he alone (other than the owner)
had access, was properly found by the jury to have committed
policy-included larceny and not policy-excluded embezzlement.
Defendant does not contend that cattle are excluded from the
property covered by the policy. If defendant's interpretation
of the policy is correct, the rider for which a substantial
annual premium was charged would be limited to theft of cattle
by strangers or "rustlers" in the vernacular of the old West.
Such a conclusion would be inconsistent with the realities of
present-day cattle raising and ownership in Illinois where
relatively small fenced-in grazing areas make branding of
cattle to identify ownership unnecessary and rustling by
cattle thieves as rare as a cowboy or a buggy whip. The Court
cannot conclude that the parties intended such a nostalgic and
At most, the exclusion clause of the rider is ambiguous as
applied to the instant facts. It is well settled under
Illinois law that ambiguous terms in an insurance policy are
to be construed in the insured's favor. Groth v. Standard Acc.
Ins. Co., 7 Cir., 1959, 267 F.2d 399, 401. Accordingly, the
Court concludes that the losses are covered.
Plaintiff's counsel shall prepare an order consistent with
this opinion and present it to the Court ...