Bloom v. Ohio Farmers Ins. Co.

• Decision Date: 25 May 1926
• Citation: 255 Mass. 528
• Parties: JOSEPH BLOOM v. OHIO FARMERS INSURANCE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 528

JOSEPH BLOOM v. OHIO FARMERS INSURANCE COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1926

January 27, 1926.

Present: PIERCE CARROLL, WAIT, & SANDERSON, JJ.

Insurance, Against theft of motor vehicle.

At the trial of an action upon a policy of insurance against "theft robbery or pilferage" of an automobile, there was evidence that the plaintiff left the automobile parked on a Boston street while he attended a theatre in the evening that when he came from the theatre the automobile was gone that it had been driven from Boston to Quincy, a spare tire had been removed, and then it had been deliberately impelled into a quarry hole in which, but for the chance that it caught on a rocky ledge, it would have disappeared from sight in water sixty feet deep. The defendant contended that there was no evidence which would justify a finding of theft within the terms of the policy. Held, that

(1) The words in the policy descriptive of the perils insured against were to be given the meaning attributed to them in common use;

(2) The evidence justified a finding of deliberate theft, a taking with the intent to deprive the owner permanently of his property for the pecuniary benefit of the taker.

At the trial above described, it appeared that under the title "Warranties" in the policy in question was the statement, "4. The uses to which the automobile described are and will be put, are pleasure." The policy did not provide that any use of the car for business purposes should render the policy void. There was evidence that the use made of it by the plaintiff was mainly for pleasure, but that, occasionally and merely incidental to such use and accompanying the use for pleasure, he used it for business purposes and that no compensation was received for using the car when business was combined with pleasure. Held, that it could not be ruled as a matter of law that by reason of the violation of the warranty there should be no recovery under the policy.

At the trial above described, it appeared that the plaintiff in the policy warranted the automobile to have cost $2,600. There was evidence that the cost of the automobile was $2,492.50 and that items of incidental equipment and tires might have brought the cost to $2,600. Held, that

(1) Whether there had been a material misrepresentation of cost was for the jury upon the evidence;

(2) There was no basis for a contention by the defendant that as a matter of law a finding was required that the cost of the automobile was stated falsely by the plaintiff.

CONTRACT upon a policy of insurance against "theft, robbery and pilferage" of a motor vehicle. Writ dated August 21, 1922.

The policy contained the following under the title "Warranties": "The uses to which the automobile described are and will be put, are pleasure."

In the Superior Court, the action was tried before Quinn, J. There was evidence that the plaintiff's automobile had been taken from a parking space in Hayward Place in Boston in the evening while the plaintiff was attending a theatre, and was found in Quincy in circumstances described in the opinion. Other material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor. The motion was denied. There was a verdict for the plaintiff in the sum of $1,192.67 and the judge reported the action to this court, judgment to be entered for the defendant if its motion should have been allowed; otherwise, judgment to be entered on the verdict.

A.J. Berkowitz, for the plaintiff. M.C. Taylor, for the defendant.

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