Anderson

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 . . .…

I dissent. The important facts in this action are, that the plaintiff was robbed of a dia 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.…