Opinion
No. 40013.
March 19, 1956.
1. Insurance — direct loss or damages to machine or vehicle by theft — meaning of "theft".
Under policy insuring bulldozer against direct loss or damages by "theft", quoted term, as used in such policy, should not be confined to technical or legalistic construction, but is a broader term than "larceny", and should be given the common and ordinary meaning to the understanding of persons in the ordinary walks of life.
2. Insurance — direct loss or damages to machine or vehicle by theft — possession — use — damage — by unauthorized person.
Where machine or vehicle is insured against theft, and policy does not contain words defining the term "theft", and some unauthorized person unlawfully takes possession of such vehicle or machine for use by unlawful taker for so long as he sees fit, and vehicle or machine is damaged, resulting loss is covered by the policy, and insurer is liable therefor.
3. Damages — cost of repairs as measure of — proof.
Where cost of repairs is relied upon as the measure of damages, proof must establish that the repairs were necessary as result of the wrongful act and that the cost was reasonable.
4. Damages — cost of repairs as measure of — proof of necessity of — repair bills insufficient to establish.
Where it was agreed that cost of what was done in repair of machine involved was reasonable, repair bills were not sufficient to establish the necessity for the repairs, and probable cost of the repairs would not satisfy the rule as to proof of necessity.
5. Evidence — hearsay — as to cause of damages.
Insured's testimony that mechanics who repaired the bulldozer the second time told him that crankshaft broke because of burning, which was caused by third party's running of bulldozer from which water had been drained without insured's permission, was hearsay and should not have been admitted.
6. Evidence — insufficient to establish necessity of repairs.
In such case, evidence was not sufficient to establish necessity for repairs made to the bulldozer and Supreme Court affirmed as to liability, but reversed and remanded case for new trial on issue of damages alone.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Marshall County; T.H. McELROY, Judge.
Cunningham Cunningham, Booneville, for appellant.
I. The declaration failed to state a cause of action, in that it did not set forth a statement of facts constituting theft of the machinery involved, which was covered by the insurance policy of defendant company, and the motion to dismiss on that ground should have been sustained.
A. The evidence introduced by the plaintiffs was wholly insufficient to prove a theft of the machinery involved, which was covered by the insurance policy of defendant company, and defendant's motion for a directed verdict at the close of plaintiffs' testimony should have been sustained.
B. At the close of all the evidence, the overwhelming weight of the evidence clearly showed that there was no theft of the machinery involved, which was covered by the insurance policy of defendant company, and defendant's requested instruction "A" for a directed verdict should have been granted.
Collation of authorities: Watson v. State, 36 Miss. 593; Edwards Hotel Co. v. Terry, 185 Miss. 824, 187 So. 518; Hubbard v. State (Miss.), 41 So.2d 1; Jackson v. State, 211 Miss. 828, 52 So.2d 914; Ephram v. State, 204 Miss. 879, 35 So.2d 708; Secs. 2240, 2254, 2281, Code 1942; 5 Am. Jur., Secs. 568-69 pp. 820-21; 32 Am. Jur., Sec. 10 p. 896; Annos. 14 A.L.R. 215, 19 A.L.R. 171, 24 A.L.R. 740, 30 A.L.R. 663, 38 A.L.R. 1124, 46 A.L.R. 536, 89 A.L.R. 465, 133 A.L.R. 920, 152 A.L.R. 1100; 45 C.J.S., Sec. 886 p. 954; 52 C.J.S., Sec. 1 p. 779; 3 Words and Phrases (perm. ed.) 666; 41, Ibid., 473 (p. 143, pocket part).
II. The first instruction granted plaintiffs by the Court constitutes reversible error. See citations supra.
III. The Court erred in refusing Instructions "B" to "I" inclusive requested by the defendant. See citations supra.
IV. The Court erred in allowing plaintiff Slayden to testify, over the objections of the defendant, as to the cause of the repairs in March, 1953, and in June, 1953, to the introduction of the repair bills, and as to what created the necessity for those repairs. McElroy's Mississippi Evidence, Secs. 18-19, 34-39.
V. The Court erred in excluding from the jury the evidence of plaintiff L.B. Slayden on cross-examination out of the presence of the jury, that he had never instigated nor preferred criminal charges against Lloyd Conrad for his alleged theft of the tractor. McElroy's Mississippi Evidence, Sec. 167.
Fant Bush, Holly Springs, for appellees.
I. The acts of Conrad in taking possession of the tractor without permission or authority, and operating it without water so that it became over-heated and was damaged, constituted theft within the meaning of the terms of the insurance policy in force. Baker v. Continental Ins. Co., 155 Kan. 26, 122 P.2d 710; Pennsylvania Indemnity Fire Corp. v. Aldridge, 73 App. D.C. 161, 117 F.2d 774, 778, 133 A.L.R. 914; Block v. Standard Ins. Co. of N.Y., 292 N.Y. 270, 54 N.E.2d 821, 152 A.L.R. 1097; Donges v. American Auto Fire Ins. Co. (Ohio), 97 N.E.2d 108; Toms v. Hartford Ins. Co., 146 Ohio St. 39, 63 N.E.2d 909; Sullivant v. Penn. Fire Ins. Co. (Ark.), 268 S.W.2d 362; Globe v. Rutgers Fire Ins. Co. v. House, 163 Tenn. 585, 45 S.W.2d 55; Geiger v. Aetna Ins. Co., 54 S.E.2d 549; James v. Phoenix Assur. Co., 75 Colo. 209, 225, Pac. 213; Maryland Cas. Co. of Baltimore v. Becham, 163 Miss. 836, 143 So. 886; Benefit Health Acc. Assn. v. Blaylock, 163 Miss. 567, 143 So. 406, 87 A.L.R. 679; Georgia Casualty Co. v. Cotton Mills Prod. Co., 159 Miss. 396, 132 So. 73; Secs. 2240, 2254, Code 1942; 32 Am. Jur. 896; Annos. 14 A.L.R. 215, 19 A.L.R. 171.
II. The Court did not err in permitting L.B. Slayden to testify as to the damages and repairs to his tractor. 20 Am. Jur. 402.
III. The Court did not err in excluding from the evidence that the plaintiff L.B. Slayden had never preferred criminal charges against Conrad.
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 mechanics repaired it and rendered insured a bill for $1134.08. 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 $1597.95, 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.
(Hn 1) 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.
(Hn 2) 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 the vehicle or machine is damaged, the loss is covered by the policy and the insuror is liable therefor. Globe Rutgers Fire Insurance Co. v. House (Tenn.) 45 S.W.2d 55; Donges v. American Auto Fire Insurance Co., 97 N.E.2d 108; Baker v. Continental Insurance Co., (Kan.) 122 P.2d 710.
The insuror complains of the character of proof on the question of damages. The mechanics who did the repair work did not testify. The insured, who was not an expert, testified that the mechanics who did the work showed him the damaged parts of the engine after it had been taken apart; that he was rendered the two repair bills above mentioned; that the mechanics who repaired the machine told him the crankshaft broke because of the burning (referring to the operation of the machine without water). The insured introduced a mechanic who testified in a general way that he thought the repair bills were reasonable, but this mechanic did no work on the machine, and he testified as an expert. The invoice for the first repair job, amounting to $1134.08, showed two items of $164.63 each for a "head", which the proof showed referred to the head to the engine, but the only qualified witness who testified as to how many heads the machine had said that it had only one.
(Hn 3) Where costs of repairs are relied upon as the measure of damages, the proof must establish (1) that the repairs were necessary as the result of the wrongful act, and (2) that the cost was reasonable. (Hn 4) By stipulation, it was agreed that the costs of what was done in the repair of the machine was reasonable. But there was not sufficient proof that the various items appearing on the repair bills were necessary as a result of the overheating of the machine. The repair bills are insufficient to establish the necessity for the repairs, and the probable cost of the repairs does not satisfy the rule as to proof of necessity. 25 C.J.S., Damages, Par. 162. The fact that there appears on the first bill two heads emphasizes the basis of the rule that the repair bill alone is of little value as to the necessity for the repairs. (Hn 5) The lower court admitted the testimony of the insured that the mechanics who repaired the machine the second time told him that the crankshaft broke because of the burning. This was the only testimony on the issue of whether the crankshaft broke because of the overheating of the machine except the expert testimony of insured's mechanic, who testified that the crankshaft would be damaged if the machine were operated without water long enough to freeze up; but the machine did not freeze up, and the mechanic's testimony is of no value. The testimony of insured as to what the mechanic told him was purely hearsay and should not have been admitted.
The proof of the necessity for the repairs, as well as the reasonableness of the cost (which was not at issue because of the stipulation) could best be made by the mechanics who did the repair work, but we do not hold that such proof cannot be made except by the testimony of the mechanics.
(Hn 6) The proof on the necessity for the repairs being insufficient, the cause is remanded for a new trial on the issue of damages only.
Affirmed as to liability, reversed and remanded for new trial on the issue of damages only.
Roberds, P.J., and Hall, Kyle and Holmes, JJ., concur.