Great American Ins. Co. v. Dedmon

• Decision Date: 19 November 1953
• Docket Number: 8 Div. 700
• Citation: 70 So.2d 421,260 Ala. 330,43 A.L.R.2d 599
• Parties: , 43 A.L.R.2d 599 GREAT AMERICAN INS. CO. v. DEDMON.
• Court: Alabama Supreme Court

Page 421

70 So.2d 421

260 Ala. 330, 43 A.L.R.2d 599

GREAT AMERICAN INS. CO. v. DEDMON.

8 Div. 700.

Supreme Court of Alabama.

Nov. 19, 1953.

Rehearing Denied Feb. 25, 1954.

Jos S. Mead, Birmingham, for appellant.

Guin & Guin, Russellville, for appellee.

CLAYTON, Justice.

This is a suit on a policy of automobile insurance, containing what is known as 'Comprehensive Coverage.' The pertinent part of the policy is:

'Coverage D--Comprehensive Loss of or Damage to the Automobile, Except by Collision or Upset.

'To pay for any direct and accidental loss of or damage to the automobile, hereinafter called loss, except loss caused by collision of the automobile with another object or by upset of the automobile or by collision of the automobile with a vehicle to which it is attached. Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset.'

The complaint is in two counts. Count 1 avers that the insured suffered the complete loss of his automobile by reason of theft. Count 2 avers that he suffered complete loss of his automobile by reason of vandalism. At the conclusion of the testimony, the trial court, at the request of the defendant, gave the affirmative charge as to count 1, and submitted the case to the jury under count 2. There was verdict and judgment for plaintiff. Defendant's motion for new trial was overruled, and defendant appeals.

Succinctly stated, the facts necessary for us to consider are that plaintiff left his automobile parked in front of the Red Bay hotel, with the ignition locked and the key in his pocket. Some time after eleven o'clock, on the night of July 13, 1952, plaintiff's 20-year old son, Larry Dedmon, came to the place where the car was parked and, in some way, started the engine and drove the car to the place where it was overturned and badly damaged.

Larry Dedmon previously had been suffering from a mental disorder, dementia praecox, and had been treated at Bryce Hospital from July, 1950, until March, 1951, when he was discharged therefrom, at which time he was practically normal. Medical experts testified that dementia praecox may in some cases recur, while in others, a permanent cure is effected after one period of treatment. At the time of the accident, Larry was living in Red Bay with his sister and was not permitted to drive his father's car without some other member of the family being with him. There was lay testimony to the effect that Larry was drawing compensation from the Veterans Administration on account of a nervous condition. Also, testimony was introduced that Mrs. Dedmon, the mother of Larry, had signed a petition for the purpose of having him declared insane, in order that he might draw compensation, but the petition was never filed in court. Further testimony was that Larry was working as a cook in a restaurant and living a normal life, but was highly nervous.

A decision in the case depends upon the construction which shall be applied to the word 'vandalism,' as used in the insurance policy. Appellant, defendant below, insists that in order to constitute vandalism, there must be a specific intent to injure or destroy the particular article involved, which, in this case, was the automobile.

Appellee relies upon the proposition that damages suffered as a proximate result of a wanton, unlawful act, done with a reckless and gross disregard of the consequences, is sufficient to constitute vandalism under the terms of the policy, and thus to remove the damages from the non-liability exception in case of collision or upset. To support this position, appellee cites the alleged circumstances that the driver of the automobile was driving the car without the owner's permission, he was driving while under the influence of alcohol, and he was driving at an excessive speed, estimated to be as much as 100 miles per hour.

Appellant also raised the point on the trial that Larry Dedmon did not have mental capacity to commit a willful or wanton act, by timely exception to the court's oral charge in submitting this question to the jury for decision.

This appears to be a case of first impression in the courts of alabama.

Webster's New International Dictionary, 1951 edition, gives the following definitions, which are related to the question:

'Vandal: 1. One of a Germanic people anciently dwelling south of the Baltic between the Vistula and the Oder. In the 4th and 5th centuries they overran Gaul, Spain, and Northern Africa, and in 455 entered Italy and sacked Rome, destroying many monuments of art and literature. Their final stronghold, the Vandal kingdom of North Africa was overthrown by Belisarius in 534. 2. (usually not capitals), One who willfully destroys or mars anything beautiful, as a work of art; also a wanton or ignorant destroyer or defacer of any building,...