State Farm Mutual Automobile Insurance v. McInnish

This is a suit on an insurance policy. From a judgment in favor of the insured in the amount of $588.00, the insurer appeals.

The pertinent part of the policy about which we are concerned is as follows; to wit:

"INSURING AGREEMENT I

* * * * * *

"Coverage D — Comprehensive.

* * * * * *

"(2) To pay for loss caused by fire, lightning, flood, falling objects, explosion, earthquake, or theft of the entire automobile, to wearing apparel and luggage owned by the first person named in the declarations or, while residents of the same household, his spouse and the relatives of either, while such property is in or upon the owned automobile."

* * * * * *

The facts are undisputed. We quote from appellant's brief:

"The plaintiff, Linda McInnish, testified that in the early hours of a morning in November of 1965, certain articles were stolen from her car which was parked outside her apartment. She first became aware of the theft when a policeman came to her apartment and woke her. When she went out, she found that the window of her automobile had been broken and her luggage, wigs, and wig cases were gone. She was employed at the time by Continental Fashions where she modeled and sold wigs. The missing wigs were samples. She testified that the items missing from the automobile and their reasonable market value were as follows: * * *." (Here followed a description of each article with its value, a total of $588.00)

Appellant contends it was due the requested affirmative charge. It is argued that the provision of section (2) of Coverage D, when read in its proper context, "To pay for loss caused by * * * theft of the entire automobile, to wearing apparel * * *" clearly shows that the loss was not covered since the entire automobile was not stolen.

Appellee's counsel contends that paragraph (2) of Coverage D should be read:

"To pay for loss caused * * * to wearing apparel and luggage owned by the first person * * *."

He argues that "appellant would have the court believe that it agreed only to pay for loss caused by fire, lightning, flood, falling objects, explosions, earthquake, or theft of the entire automobile to wearing apparel and luggage owned by the first person, etc., and did not agree to pay for loss by these objects to the owned automobile. * * * If appellant wished to exclude coverage for loss by theft to wearing apparel and luggage unless the entire automobile were first stolen, all it would have had to have done would, at this point, have been to insert the phrase 'loss by theft to wearing apparel and luggage shall not be covered unless the entire automobile be stolen' Appellant did not see fit to put this exclusion in; and it is appellee's contention that appellant did not intend to exclude such loss from the coverage of said policy of insurance."

There are no Alabama cases covering such a policy provision as is presented and our search has revealed none in other jurisdictions. It is our opinion the intention of the insurer was plainly expressed to cover loss of the described items only where the entire automobile was stolen. The loss here was not within the coverage of the policy.

For the court's failure to give the general charge for defendant the judgment must be reversed.

Reversed and remanded.

JOHNSON, J., dissents.