Toms v. Hartford Fire Ins. Co. of Hartford, Conn.

• Decision Date: 21 November 1945
• Docket Number: 30329.
• Citation: 63 N.E.2d 909,146 Ohio St. 39
• Parties: TOMS v. HARTFORD FIRE INS. CO. OF HARTFORD, CONN.
• Court: Ohio Supreme Court

63 N.E.2d 909

146 Ohio St. 39

TOMS v. HARTFORD FIRE INS. CO. OF HARTFORD, CONN.

No. 30329.

Supreme Court of Ohio

November 21, 1945

Syllabus by the Court.

1. A contract of insurance prepared and phrased by the insurer is to be construed liberally in favor of the insured and strictly against the insurer, where the meaning of the language used is doubtful, uncertain or ambiguous.

2. Where the term 'theft' is employed but not defined in an automobile insurance contract, it is to be given the usual meaning and understanding acccorded it by persons in the ordinary walks of life.

3. In an insurance contract insuring against the 'theft' of an automobile, the term 'theft' comprehends the wilful taking or appropriation of one person's automobile by another wrongfully, without justification and with the design to hold or make use of the vehicle in violation of the rights of the owner, and recovery by the insured for loss due to 'theft' may be had where a taking or appropriation of the insured automobile in the manner and for the purpose described is shown.

Appeal from Court of Appeals, Hamilton County.

The Hartford Fire Insurance Company, as insurer, issued its 'Standard Automobile Policy,' with 'Garage Keepers' Legal Liability Coverage Endorsement' attached, to Homer Toms Motor Car Company & Olympic Garage as the insured. The insurance contract provided a liability limit of $75,000, and was effective from November 9, 1943, to November 9, 1944. Such contract insured the policyholder as to certain hazards in connection with automobiles belonging to others and left in his custody, among them being 'theft.'

Toms d. b. a. Homer Toms Motor Car Co., Olympic Garage, operated a public garage in the city of Cincinnati. About 2:30 o'clock on the morning of September 27, 1944, one Bourne employed by the appellee, who admitted he had consumed a quantity of beer and was under the influence of alcohol appeared at the garage, accompanied by some newly acquired acquaintances. Without any authorization and over the protest of a garage attendant then on duty, Bourne drove from the garage an automobile belonging to the Liberty rage an automobile belonging to the Liberty stored there, stating that he was going to take his friends home and would return the car to the garage.

However, Bourne and his companions proceeded in the automobile to a so-called country club at Covington, Kentucky, where they remained for an appreciable length of time. After leaving the country club, a collision occurred between the automobile, owned by the Liberty Mutual Insurance Company and driven by Bourne, and another motor vehicle, with resultant damage of a serious nature. Bourne maintained that it was his intention to take his friends home from the country club and then return the automobile to the garage from whence he had removed it. His expressed intention was never consummated.

The Liberty Mutual Insurance Company instituted suit against Toms in the Municipal Court of the City of Cincinnati to recover the damage to its vehicle. Toms' insurer, appellant herein, declined to assume defense of the action, on the ground that the damage was occasioned under conditions not within the coverage of the insurance contract.

A finding and judgment were rendered against Toms. Separate findings of fact and conclusions of law were made. The conclusions of law were as follows: 'The evidence presented by the plaintiff raises a prima facie case of liability against the defendant; that a theft of the automobile occurred while in the custody and control of the defendant; that the defendant having failed to exercise ordinary care of the bailor's property to prevent the theft of said automobile while in his possession as bailee; the plaintiff is entitled to recover the sum of $335.83 and its costs herein expended.'

Thereafter, Toms brought suit in the Cincinnati Municipal Court against the Hartford Fire Insurance Company to recover the amount of the judgment, costs and $100 for attorneys' fees in the prior action, upon the claim that Hartford was liable under its contract of insurance and should have defended the initial action. Toms recovered judgment for $440.90 and costs, which judgment was affirmed by the Court of Appeals.

The cause is now here pursuant to the allowance of a motion to require the Court of Appeals to certify its record.

August A. Rendigs, Jr., and Elmer E. Strasser, both of Cincinnati, and Myers & Snerly, of Chicago, Ill., for appellant.

Bert H. Long and Milton M. Bloom, both of Cincinnati, for appellee.

ZIMMERMAN Judge.

Opposing counsel agree that an important feature of this case is the meaning to be given the term 'theft' as used in the insurance contract involved. Consequently, we shall first direct attention to that subject.

The insurance contract provides insurance coverage for 'loss of use [of an automobile] by theft,' 'Theft, if the entire automobile is taken,' and 'D-1 theft (broad form).'

No definition of the terms 'theft' or 'larceny' appears anywhere in the insurance contract.

A clause of the contract also provides that the insurer will defend any suit against the insured 'as respects insurance afforded by this endorsement * * * even if such suit is groundless, false or fraudulent.'

On this appeal counsel for the appellant earnestly contend that appellant is liable only if a 'theft' of the automobile occurred; that to constitute 'theft' an intent permanently to deprive the owner of his property must be shown; that no such intent on the part of Bourne is disclosed by the evidence; and that, therefore, the situation is...