Opinion
No. 21774
Decided December 24, 1929.
Insurance — Automobile theft — Exemption from liability for theft by person in assured's household — Inapplicable to theft of wife's automobile by husband living apart.
A policy, insuring a wife's automobile against theft, contained an exception relieving the insurer from liability if the theft was committed "by any person in the assured's household." The automobile was stolen by the husband, who was not of the assured's household but was living apart from his wife at the time: Held, under the terms of the policy and its exception, the insurer was liable.
ERROR to the Court of Appeals of Cuyahoga county.
On October 9, 1924, the insurance company issued to Helen Heffernan its policy of theft insurance covering a Chandler sedan. On November 2, 1924, she reported to the insurance company that her car had been stolen, furnished a proof of loss, and received the sum of $750 from the insurance company. In the meantime Mrs. Heffernan and her husband were living apart, proceedings for divorce having been filed in 1923. Divorce was refused, but in June, 1924, the wife secured a decree for alimony for the support of her minor children and for their custody. In 1927 it was discovered that Mrs. Heffernan's husband had unlawfully taken the sedan on November 2, 1924, and that it had been in his possession ever since. The insurance company demanded the insurance money paid to her, and, upon her refusal to pay, brought this suit in the municipal court for the sum of $750 and interest.
The only issue the court left to the jury was whether or not Mr. and Mrs. Heffernan were husband and wife at the time of the alleged theft. The trial court charged the jury that, if they found Mr. and Mrs. Heffernan were husband and wife the jury should find for the plaintiff insurance company, evidently basing its charge upon an Ohio decision that a husband cannot be prosecuted criminally for larceny of his wife's property.
Under these instructions the jury rendered a verdict in favor of the insurance company. The Court of Appeals reversed the municipal court and rendered final judgment in favor of the wife. A reversal of the latter judgment is sought in this court.
Messrs. Quigley Byrnes, for plaintiff in error.
Mr. Chas. F. McConnell, for defendant in error.
Under the sections of the Ohio Code relating to husband and wife, Section 7995 et seq., the wife had the right of property in and was the owner of the sedan; and it must be conceded that, although living apart, they were still husband and wife. The alimony decree did not affect that relation.
It is contended by counsel for the insurance company that since this court, in State v. Phillips, 85 Ohio St. 317, 97 N.E. 976, 40 L.R.A. (N.S.), 142, Ann. Cas., 1913B, 250, decided that a husband could not be convicted for larceny of the wife's property, there could be no theft of the sedan within the meaning of clause C in the insurance policy. In its statement of defense, the insurance company admitted the issuance of the policy to Mrs. Heffernan insuring her against loss by theft of her sedan, but relied upon the exception contained in clause C as relieving it from liability. That clause is as follows:
"(C) Theft, robbery or pilferage, excepting by any person or persons in the assured's household or in the assured's service or employment," etc.
It will be observed, therefore, that this clause contained a covenant of insurance against theft, robbery, or pilferage, with an exception which only relieved it from liability if the theft was caused by any person in the assured's household.
In view of the terms of this policy, and especially of the exception restricting it, we do not deem it necessary to consider the rule announced in the criminal case, supra; nor is it necessary to apply it to the instant case. This is a civil case predicated upon a policy contract between Mrs. Heffernan and the insurance company; and, if the language of clause C in the policy is doubtful, according to the well-known rule of law the language should be construed in favor of the policy-holder. This policy contained a general covenant of insurance against theft; the exception relieved it from theft only if it were committed "by any person or persons in the assured's household." It is evident that the parties to the contract did not have in mind the common-law rule that a husband or wife cannot steal from one another, but had in mind rather the nonliability of the insurance company when the theft was committed by a member of the household. Had the husband been a member of the household, there would have been no liability under the terms of the policy. The parties were contracting with reference to the status of the husband and others as members of the household; and, since the husband was not a member of the wife's household at the time of the theft of the sedan, a liability arose under the policy, because it restricted its nonliability solely to instances where the theft was committed by a person in the assured's household.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MARSHALL, C.J., KINKADE, ROBINSON, MATTHIAS, DAY and ALLEN, JJ., concur.