National Fire Ins. Co. of Hartford v. Slayden, 40013

• Decision Date: 19 March 1956
• Docket Number: No. 40013,40013
• Citation: 227 Miss. 285,85 So.2d 916
• Parties: NATIONAL FIRE INSURANCE COMPANY OF HARTFORD v. L. B. SLAYDEN et al.
• Court: Mississippi Supreme Court

Page 916

85 So.2d 916

227 Miss. 285

NATIONAL FIRE INSURANCE COMPANY OF HARTFORD v. L. B. SLAYDEN et al.

No. 40013.

Supreme Court of Mississippi.

March 19, 1956.

Cunningham & Cunningham, Booneville, for appellant.

Fant & Bush, Holly Springs, for appellees.

GILLESPIE, Justice.

Appellant, herein called insurer, issued to appellee, herein called insured, an insurance policy covering a certain described tractor machine, commonly called a bulldozer, insuring against direct loss or damage by theft.

After completing the construction of a pond and road on the lands rented by one Garner, insured's employee drained the water from the bulldozer and left it on the edge of a field. The following day, which was a Sunday, one Conrad, who had subrented some of the land whereon had been built the pond and road, but who lived elsewhere in the neighborhood, went to the Garner property and started the bulldozer and operated it for some thirty or forty-five minutes smoothing the road. The engine became overheated by reason of being operated without water. Conrad left the machine near where he found it. Conrad was a friend of insured but had no permission to use the machine.

On Monday next, when insured's employees came to move the bulldozer to a new location, it was determined that the head was broken and the motor had sustained extensive damage from being operated without water. The machine was taken to Memphis where expert machanics repaired it and rendered insured a bill for $1,134.08. About three months later, the crankshaft broke and insured paid another repair bill amounting to $473.15 in connection with the replacement of the crankshaft.

The jury returned a verdict for the total of the two repair bills, or $1,597.95, and judgment was entered accordingly.

The case presents the question whether a policy insuring against theft covers a loss to the bulldozer equipped tractor resulting from the unlawful taking and use of the machine in the absence of an intent to permanently deprive the owner of his property, or stated differently, whether the taking must be the substantial equivalent of larceny.

While there is much authority elsewhere to the contrary, we hold that the term 'theft' as used in a policy such as the one here under consideration should not be confined to technical or legalistic construction. It is a broader term than 'larceny' and should be given the common and ordinary meaning according to the understanding of persons in the ordinary walks of life. Some consideration should be given to the purposes and reasonable expectations of an ordinary business man when making such a contract.

Where a machine or vehicle is insured against theft, without words defining the term 'theft,' and some unauthorized person unlawfully takes possession of such vehicle or machine for use by the unlawful taker for so long as he sees fit, and he vehicle or machine is damaged, the loss is covered by the policy and the insurer is liable therefor. Globe & Rutgers Fire Ins. Co. v. House, 163 Tenn. 585, 45 S.W.2d 55; Donges v. American Auto Fire Ins. Co., Ohio Com.Pl., 97 N.E.2d 108; Baker v....