Phoenix Assur. Co., Limited of London v. Eppstein
| Decision Date | 05 May 1917 |
| Citation | 75 So. 537,73 Fla. 991 |
| Parties | PHOENIX ASSUR. CO., LIMITED, OF LONDON v. EPPSTEIN et al. |
| Court | Florida Supreme Court |
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Action by Mrs. Jennie Eppstein and M. H. Eppstein, her husband against the Phoenix Assurance Company, Limited, of London, a corporation. Judgment for plaintiffs, and defendant brings error. Reversed.
Syllabus by the Court
Where a policy of insurance indemnifies the 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.
'Theft' is synonymous with 'larceny,' and the intent to steal is a necessary ingredient of the offense.
In action upon a policy of insurance which indemnifies the owner of an automobile against loss or damage occasioned by theft robbery, or pilferage by any person or persons other than those in the employment, service, or household of the insured, it is incumbent upon the plaintiff to prove his case by a preponderance of the evidence. It is essential to a recovery that the evidence adduced establishes that the damage to the automobile was occasioned by the taking of the same by some person not in the employment, service, or household of the insured, without the consent of the owner and with the intent to permanently deprive the owner of his property.
Where the verdict rendered by a jury is manifestly contrary to the charge of the court, to the law, and to the evidence, the judgment must be reversed, and a new trial awarded.
COUNSEL Cockrell & Cockrell, of Jacksonville, for plaintiff in error.
D. M. Gornto, of Jacksonville, for defendants in error.
This is an action on a policy of insurance issued by the defendant assurance company to Mrs. Jennie Eppstein, by the terms of which the defendant insured such plaintiff in the sum of $1,500 against loss or damage by fire on a certain described automobile owned by such plaintiff, which policy also contained a provision of insurance----
'against loss or damage by theft, robbery, or pilferage in excess of $25.00 (each accident being deemed a separate claim and said sum being deducted from the amount of each claim when determined), by any person or persons other than those in the employment, service or household of the insured.'
The declaration contains the following allegation:
'On the 19th day of May, A. D. 1914, the said automobile so assured and in the said policy described was stolen from the garage in which it was kept by the said Mrs. Jennie Eppstein, and was injured and damaged by such theft, robbery, and pilferage so committed, as the plaintiffs allege, by some person or persons other than any person or persons in the employment, service, or household of the assured, and damage and loss was thereby occasioned to the said Mrs. Jennie Eppstein in the amount of $1,475, in such circumstances as to come within the promise and undertaking of the said policy of insurance so issued as aforesaid.'
A copy of the insurance policy is attached to the declaration. The defendant filed the following pleas:
'Comes now the defendant, by its attorneys, Cockrell & Cockrell, and for its plea to the declaration in the above-entitled cause denies that the said automobile, described in the policy attached to the declaration, was stolen by some person or persons other than any person or persons in the employment, service, or household of said Mrs. Jennie Eppstein from the garage in which said automobile was kept by Mrs. Jennie Eppstein.
'(2) And for a second plea defendant denies that the automobile described in the policy of insurance attached to the declaration was stolen from Mrs. Jennie Eppstein.
'(3) And for a third plea defendant says that at the time the automobile described in the policy of insurance attached to the declaration is alleged to have been injured it was in the control and custody of a person in the employment of said Mrs. Jennie Eppstein.
'(4) And for a fourth plea defendant says that at the time when the automobile described in the policy of insurance attached to the declaration is alleged to have been injured it was then and there in the custody of and being driven by one Johnnie Johnson, a negro chauffeur, and said Johnnie Johnson was then and there the regularly employed chauffeur of said Mrs. Jennie Eppstein.'
The plaintiffs joined issue upon these pleas, and a trial was had before a jury, which resulted in a verdict in favor of the plaintiffs for the sum of $900, with interest at 8 per cent. per annum from the 11th of August, 1914, upon which verdict a judgment was duly rendered and entered, which judgment has been brought here for review.
Several errors are assigned, but we shall confine ourselves to the consideration of the assignment based upon the overruling of the motion for a new trial, the first three grounds of which are that the verdict is contrary to the charge of the court, contrary to law, and contrary to the evidence. The construction of the clause of the insurance policy relating to the loss of or damage to the automobile 'by theft, robbery, or pilferage' is presented to this court for the first time, though the courts in several other jurisdictions have had occasion to deal with it. It was held in Hartford Fire Insurance Co. v. Wimbish, 12 Ga.App. 712, 78 S.E. 265:
'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.
Also see Michigan Commercial Insurance Co. v. Wills, 57 Ind.App. 256, 106 N.E. 725; Stuht v. Maryland Motorcar Insurance Co., 90 Wash. 576, 156 P. 557; Rush v Boston Insurance Co., 88 Misc. 48, 150 N.Y.S. 457; Valley Mercantile Co. v. St. Paul Fire & Marine Insurance Co., 49 Mont. 430, 143 P. 559, L. R. A. 1915B, 327, Ann. Cas. 1916A, 1126; Kansas City Regal Auto Co. v. Old...
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