78 S.E. 265 (Ga.App. 1913), 4,729, Hartford Fire Ins. Co. v. Wimbish

Docket Nº:4,729.
Citation:78 S.E. 265, 12 Ga.App. 712
Opinion Judge:POTTLE, J.
Party Name:HARTFORD FIRE INS. CO. v. WIMBISH.
Attorney:Adams & Adams, of Savannah, for plaintiff in error. Shelby Myrick and A. A. Lawrence, both of Savannah, for defendant in error.
Case Date:May 20, 1913
Court:Court of Appeals of Georgia
 
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Page 265

78 S.E. 265 (Ga.App. 1913)

12 Ga.App. 712

HARTFORD FIRE INS. CO.

v.

WIMBISH.

No. 4,729.

Court of Appeals of Georgia

May 20, 1913

Syllabus by the Court.

Words used in a policy of insurance are to be given their ordinary and usual signification unless the context requires a different construction.

Where a policy of insurance indemnifies an owner of an automobile against loss or damage occasioned by theft, robbery, or pilferage, the owner cannot, under this clause of the policy, recover for damage to a machine which had been taken by another and used without the consent of the owner, but without any intent to steal.

At common law, and under the statutes of this state, theft is synonymous with larceny. The word "robbery," as used in the contract sued on, should be given the same meaning as that set forth in the Penal Code of this state. "Pilferage" is petty larceny. The intent to steal is a necessary ingredient in all three offenses.

Error from City Court of Savannah; Davis Freeman, Judge.

Action by Mrs. A. L. Wimbish against the Hartford Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed.

Adams & Adams, of Savannah, for plaintiff in error.

Shelby Myrick and A. A. Lawrence, both of Savannah, for defendant in error.

POTTLE, J.

The plaintiff sued the insurance company for damages to an automobile. The clause in the policy upon which the plaintiff relies for a recovery provides that the defendant insures the plaintiff "against actual loss or damage, if amounting to $25, on each occasion by theft, robbery or pilferage, by persons other than those in the employment, service, or household of the insured." A demurrer to the petition as amended was overruled, and a verdict was returned in favor of the plaintiff. The defendant excepted to the overruling of the demurrer and to the refusal to grant a new trial. From the evidence it appears that on July 4, 1912, the plaintiff employed one Harris to clean out the muffler of an automobile. Harris began work on the machine about 11 o'clock and stated that he would have the work completed by 4 o'clock. Harris was seen driving the car down one of the public streets of Savannah. The plaintiff did not know that he had taken the car and gave him no permission to do so. The plaintiff's husband found the car about 10 o'clock at night, about three miles...

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