Old Colony Insurance v. Kolmer

136 N.E. 51, 78 Ind. App. 479, 1923 Ind. App. LEXIS 10
CourtIndiana Court of Appeals
DecidedJune 27, 1923
DocketNo. 11,131
StatusPublished
Cited by9 cases

This text of 136 N.E. 51 (Old Colony Insurance v. Kolmer) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Old Colony Insurance v. Kolmer, 136 N.E. 51, 78 Ind. App. 479, 1923 Ind. App. LEXIS 10 (Ind. Ct. App. 1923).

Opinion

Batman, C. J.

— In this action appellee recovered a judgment against appellant on an insurance policy by reason of the loss of a rectifier by theft. The cause was tried by the court, which overruled appellant’s motion for a new trial, based on the grounds that its decision is not sustained by sufficient evidence, and is contrary to law. This action of the court constitutes the only error assigned on appeal.

The evidence consists of an agreed statement of facts, by which it appears, among other things, that on February 1, 1918, appellant entered into a contract of insurance with appellee, by which the former insured the latter for a period of one year, to an amount not exceeding $800, against loss “upon the body, machinery and equipment” of her electric automobile, occasioned by fire, lightning, theft, robbery or pilferage; that appellee kept her said automobile, the list price of which was $2,550, in a public garage in the city of Indianapolis; that appellee owned a certain rectifier, consisting of a slate switch board eighteen by thirty inches, and two and one-half inches thick, which was supported on an [481]*481iron pipe six feet high and one and one-fourth inches thick, standing on a rectangular base fourteen by sixteen inches in size. Attached to said slate switch board were volt and ammeter switches, circuit breaker, regulating reactance and controllers of metal, and a glass rectifier tube. Compensating reactance was inclosed in an iron case, which set on the floor nearby; that appellee kept said rectifier in the garage where she kept her automobile, and from which it was lost by theft oh June - — , 1918, while said policy was in force; that said rectifier was not attached to said automobile at the time it was stolen, but had been operated by appellee, in charging it with electricity, when she used the same; that said rectifier could be attached to said automobile, and when used by appellee was so attached by a charging plug and cable, and was used for the sole purpose of charging the same with electric current, and not in conduction with any other automobile; that some of the electric automobiles used in Indianapolis are charged at public stations, but a considerable portion of such automobiles in said city are charged by means of such rectifiers; that said rectifier was never carried in or with said automobile, and there was no place in or on the same where it could be carried; that appellee sustained a loss of $427 by reason of its theft.

Appellant contends that the trial court erred in holding that the rectifier described above was covered by the policy in suit. This contention presents the only question for our determination. The only evidence submitted on the trial was an agreed statement of facts, but notwithstanding its form we must sustain the decision on which the judgment is based, if such facts, or any inference reasonably deducible therefrom, tend fairly to support the same. West v. Graff (1899), 23 Ind. App. 410, 55 N. E. 506; [482]*482Timberlake v. Order of Golden Cross (1911), 208 Mass. 411, 94 N. E. 685, 36 L R. A. (N. S.) 597.

The policy in suit is of considerable length, and was evidently prepared by appellant with much care, as it contains many provisions for its protection. While courts, in construing such contracts, must endeavor to give effect to the real intent of the parties, as appellant contends, they will adopt that construction which is most favorable to the insured, where the contract is so drawn as to be ambiguous, or to require interpretation, or is fairly susceptible to two different constructions, so that reasonably intelligent men, on reading the same, would honestly differ as to its meaning. Aetna Ins. Co. v. Strout (1896), 16 Ind. App. 160, 44 N. E. 934; Farmers’ Mutual v. Reser (1908), 43 Ind. App. 634, 88 N. E. 349; Commercial Union, etc., Co. v. Schumacher (1919), 71 Ind. App. 526, 119 N. E. 532; Hessler, Admr., v. Federal Casualty Co. (1921), 190 Ind. 68, 129 N. E. 325. The reason for this rule is based on the fact, that insurance contracts are usually prepared by the insurer, who seeks to so frame them as to limit their scope, and hence it is only fair that any doubt as to the meaning of the language used should be resolved in favor of the insured, in order to avoid the injustice that would often result from a narrow and technical interpretation. Federal Life Ins. Co. v. Kerr (1909), 173 Ind. 613, 89 N. E. 398, 91 N. E. 230; Globe, etc., Ins. Co. v. Hamilton (1917), 65 Ind. App. 541, 116 N. E. 597; Maxwell v. Springfield, etc., Ins. Co. (1920), 73 Ind. App. 251, 125 N. E. 645.

With this rule in mind we have examined the policy in suit and find that it provides for insurance against loss by theft “upon the body, machinery and equipment of the automobile.” Had it merely provided for insurance against loss by theft of the automobile, or any of its parts, it would only be nec[483]*483essary for us to determine whether the rectifier in question was a part of the automobile, which would have been a comparatively easy question. The policy, however, is not so written, but first enumerates the body and machinery of the automobile, which we know constitute a part thereof, and then includes its equipment, by which we must assume something was intended that did not pertain to either the body or machinery. We also observe that the term “equipment” is not limited or qualified in any way, except that it must be of the automobile. Had it been limited to equipment attached to the automobile, or carried therein or thereon, another comparatively easy question would have been presented. The policy, however, does not so provide, and hence, under the rule stated, we must hold that the trial court was justified in. holding that the rectifier is covered by the policy, if the evidence shows that it was an equipment of the automobile in any reasonable sense.

After an extended search, we have not been able to find that the meaning of the term “equipment,” when used in connection with an automobile, has ever been defined by any court, or that any rule has been established by which it may be determined when an appliance, used in connection therewith, falls within the meaning of such term. Under these circumstances we very naturally turn to the definitions found in the dictionaries, in determining the commonly accepted meaning of such term, as a basis for its application in the instant case. Webster’s International Dictionary defines the verb “equip” to mean, “To furnish for service, or against a need or exigency; to fit out; to supply with whatever is necessary to efficient action in any way;” and the noun “equipment” to mean, “Whatever is used in equipping * * * the collective designation for the articles comprising ah outfit.” In the Century Dictionary the verb “equip” is defined as meaning, “To fit [484]*484out; furnish with means for the prosecution of a purpose; provide with whatever is needed for efficient action or service;” the noun “equipage” as meaning “An outfit; provision of means or materials for carrying out a purpose; furniture for efficient service or action; an equipment;” and the noun “equipment” as meaning, “anything that is used in or provided for equipping, as furniture,” etc.

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Cite This Page — Counsel Stack

Bluebook (online)
136 N.E. 51, 78 Ind. App. 479, 1923 Ind. App. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/old-colony-insurance-v-kolmer-indctapp-1923.