Rydstrom v. Queen Ins. Co. of America

• Decision Date: 11 January 1921
• Docket Number: 35.
• Citation: 112 A. 586,137 Md. 349
• Parties: RYDSTROM v. QUEEN INS. CO. OF AMERICA.
• Court: Maryland Court of Appeals

112 A. 586

137 Md. 349

RYDSTROM v. QUEEN INS. CO. OF AMERICA.

No. 35.

Court of Appeals of Maryland

January 11, 1921

Appeal from Baltimore City Court; James M. Ambler, Judge.

Suit by Herbert W. Rydstrom against the Queen Insurance Company of America, a body corporate. From judgment for defendant plaintiff appeals. Affirmed.

Argued before BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS and OFFUTT, JJ.

Charles C. Wallace, of Baltimore (Harry E. Karr and Edward M Hammond, both of Baltimore, on the brief), for appellant.

John B Deming, of Baltimore (Keech, Deming, Kemp & Carman, of Baltimore, on the brief), for appellee.

BRISCOE J.

This is a suit brought by the plaintiff against the defendant, in the Baltimore city court, on an automobile policy of insurance, dated the 7th of September, 1918, insuring a Westcott automobile for one year for $2,000, against theft, robbery, or pilferage, excepting by any person or persons in the assured's household or in the assured's services or employment, whether the theft, robbery, or pilferage occur during the hours of such service or employment or not, and excepting also the wrongful conversion or secretion by a mortgagor or vendee in possession under mortgage, conditional sale or lease, agreement.

The seventh count of the declaration avers:

"That the defendant by its policy of insurance No. 1518, dated September 17, 1918, did insure the five-passenger Westcott automobile of Herbert W. Rydstrom, for the period of one year, against loss or damage resulting from theft, fire, robbery, or pilferage, as will more fully appear by reference to the said policy of insurance, the original of which profert has heretofore been made, and the said plaintiff does now bring the same into court here, the date whereof is the day and year aforesaid, it being agreed in said policy that if the plaintiff should sustain a loss of said Westcott automobile by theft, robbery, fire, or pilferage, that the said defendant would pay to the plaintiff named in said policy the sum of $2,000; that said policy was in force on the 7th day of February, 1919, and that on or about that date the automobile of the plaintiff so insured by the defendant was stolen from the plaintiff, and there became due and payable unto the plaintiff the sum of $2,000, the payment of which the plaintiff has demanded of the defendant, and the payment of which has been refused by the defendant."

The defense relied upon by the defendant company was based upon the ground that the theft of the automobile had been committed by a person in the assured's household, and therefore the loss was not covered by the policy, but was specifically excluded and excepted therefrom.

At the close of the evidence upon the part of the plaintiff the court below granted a prayer, at the request of the defendant, withdrawing the case from the jury and directing a verdict for the defendant. The ruling of the court in granting this prayer presents the only important question to be considered by us on the appeal.

The facts necessary for us to notice are these:

The appellant was the owner of a Westcott automobile which was insured by the appellee company under the policy set out in the record. On February 3, 1919, as stated by the appellee in its brief, while the policy was in force, the appellant's nephew, Frederick Rydstrom, then about 18 years of age, came to his uncle's home for a visit, the prospective duration of which is not disclosed. Some time during the night of February 7th, the nephew went to his uncle's bedroom while the latter was sleeping, took the switch key of the automobile from his uncle's pocket, went to the garage where the automobile was stored, and by misrepresentations induced the custodian to let him take it out. The car was discovered several days later in a garage at Alexandria, Va. It was not in running condition and bore evidence of severe usage. The appellant took possession of the car, had temporary repairs made, brought the car to Baltimore, sold it for $1,200, and claimed of the appellant as a loss under the policy the difference between the initial cost of the car plus repairs and the selling price.

The plaintiff testified:

"That on February 3d, Monday, a nephew of the plaintiff, his brother's boy, came to his home from St. Louis as a guest and remained there; that the boy's father is in business in St. Louis and that is his home; he was 17 or 18 years of age at the time; that the plaintiff lives in a house on Guilford Terrace; that the boy had been in his house before in October, 1917, and

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