Hartford Fire Ins. Co v. Wimbish

• Decision Date: 20 May 1913
• Docket Number: (No. 4,729.)
• Citation: 12 Ga.App. 712,78 S.E. 265
• Parties: HARTFORD FIRE INS. CO. v. WIMBISH.
• Court: Georgia Court of Appeals

(12 Ga.App. 712)

78 S.E. 265

HARTFORD FIRE INS. CO.

v.WIMBISH.

(No. 4, 729.)

Court of Appeals of Georgia.

May 20, 1913.

(Syllabus by the Court.)

1. Insurance (§ 146^*) — Policy — Construction.

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

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 292, 294-298; Dec. Dig. § 146.*]

2. Insurance (§ 425*)—Automobile Insurance—Policy—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.

[Ed. Note.—For other cases, see Insurance. Cent. Dig. §§ 1129, 1135, 1143; Dec. Dig. § 425.*]

3. Insurance (§ 425^2-*) — Automobile Insurance — Policy — Construction — "Theft" —"Robbery"—"Pilferage."

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.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1129, 1135, 1143; Dec. Dig. § 425.*

For other definitions, see Words and Phrases, vol. 6, p. 5378; vol. 7, pp. 6258-6264; vol. 8, pp. 7792, 6938, 6939.]

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 mufiler 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 from the city, up against a tree and in a badly damaged condition. One of the witnesses testified that immediately after the automobile was wrecked in the afternoon of July 4th, he came upon the scene; that the car was going at a terrific rate of speed when it struck the tree; that there were four occupants in the car, three males and one female; that the car was badly broken up and the occupants were badly hurt; that the driver had evidently been drinking, and the other two male occupants of the car seemed to have been drinking also; and that the car was on the White Bluff road, headed for Savannah. The court charged the jury, in substance that if the automobile was taken by Harris without the consent or permission of the owner, and while in the possession of Harris was damaged, the plaintiff would have a right to recover, provided Harris was not in the employment of the owner at the time. The jury were further instructed that the word "theft, " as used in the contract, was not to be given its usual or technical meaning; and the court declined to charge upon request that, before the plaintiff would be entitled to recover, it must appear that Harris intended to steal the machine, and that if he took the car out for a ride, intending to return it, the plaintiff could not recover.

In construing a contract, the general rule is that words are to be given their usual and ordinary meaning, unless the context requires a different construction.

There is nothing in the policy sued on in the present case which would justify the court in giving to the words employed, in the clause upon which the plaintiff relies for a recovery, a meaning different from that in which the words are ordinarily understood.

It is argued that the word "theft, " as used in this policy, means any unlawful taking; that is to say, a taking without the consent of the owner. But in our law the word "theft" has a well-defined meaning. Theft is synonymous with larceny. It is merely a popular name for larceny. See 4 Blackstone Commentaries, 229. This is also true in our Penal Code. For...