2. Where the term, "theft," is used but not defined in an insurance contract drafted by the insurer, it includes any wrongful deprivation of the property of another without claim or color of right. (Paragraph one of the syllabus of Riley v. Motorists Mutual, 176 Ohio St. 16, and paragraph three of the syllabus of Toms v. Hartford Fire Ins. Co., 146 Ohio St. 39, approved and followed; Royal Ins. Co., Ltd., v. Jack, 113 Ohio St. 153, overruled.) APPEAL from the Court of Appeals for Belmont County.
Our District Court of Appeal, in 1930, said: ". . . it has been generally held that the words `theft', `robbery' and `pilferage' are words that are well understood and that they are used in insurance policies in their common and ordinary meaning. ( Royal Ins. Co. v. Jack, 113 Ohio St. 153 [ 148 N.E. 923, 46 A.L.R. 529].) "Theft involves the idea of a knowingly unlawful acquisition of property; that is, a felonious taking of it from one who has both the actual possession and the apparent right of possession.
" The word is generally one of popular, rather than of legal, use, and it is held to embrace within its meaning, or to be equivalent to, the word "larceny". Royal Ins. Co. v. Jack, 113 Ohio St. 153, 148 N.E. 923, loc. cit. 924, 46 A.L.R. 529; Cedar Rapids Nat. Bank v. American Surety Co., 197 Iowa 878, 195 N.W. 253, loc. cit. 254; Illinois Automobile Ins. Exch. v. Southern Motor Sales Co., 207 Ala. 265, 92 So. 429, 24 A.L.R. 734. It should be noted, however, that larceny has been extended in many states to include such offenses as obtaining property by trick or device and even to the unauthorized use of a motor vehicle. In recognition of this divergence of meaning the Supreme Court of New York in Delafield v. London Lancashire Fire Ins. Co., 177 App.Div. 477, 164 N.Y.S. 221, loc. cit. 223, stated: "The term `theft,' as used in this policy, does not include all forms of larceny recognized by law.
[4] Aside from this conclusion, it has been generally held that the words "theft," "robbery" and "pilferage" are words that are well understood and that they are used in insurance policies in their common and ordinary meaning. ( Royal Ins. Co. v. Jack, 113 Ohio St. 153 [46 A.L.R. 529, 148 N.E. 923].) Theft involves the idea of a knowingly unlawful acquisition of property; that is, a felonious taking of it from one who has both the actual possession and the apparent right of possession.
[W]here a contractual term is not otherwise defined in the contract, and where no evidence is introduced to show the intended meaning of the term, . . . [the term] . . . must be read in its common ordinary meaning.Olmstead v. The Lumbermens Mutual Ins. Co., 22 Ohio St.2d 212, 259 N.E.2d 123, para. 1 and 2 of the syllabus (1970); Royal Ins. Co., Ltd. v. Jack, 113 Ohio St. 153, 148 N.E. 923, para. 1 of the syllabus (1925) ("In construing the [undefined term], it should be given the meaning and understanding employed by persons in the ordinary walks of life."), overruled on other grounds, Munchik v. Casualty Co., 2 Ohio St.2d 303, 305, 209 N.E.2d 167 (1965) (holding that the definition given "theft" in Jack, supra, did not comport with "the meaning and understanding accorded by persons in the ordinary walks of life.") See also Fidelity Co. v. Hartzell Bros., 109 Ohio St. 566, 569, 143 N.E. 137 (1924) ("[C]ontracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense."); Webster v. Dwelling House Ins. Co., 53 Ohio St. 558, 565-566, 42 N.E. 546 (1895): In Ohio, courts must follow the principles set forth in the syllabi of Ohio Supreme Court opinions; the syllabi, not the
Stickel v. Excess Ins. Co., supra, at page 53; Germania Fire Ins. Co. v. Schild (1903), 69 Ohio St. 136. Moreover, absent some special circumstance, such as a contractual definition, or a commercial or technical meaning acquired by usage and intended to be used by the parties, or a special meaning manifested in the contractual context, the entire policy must be considered and construed in a fashion which accords words and phrases therein their natural and usual meaning. Bobier v. National Cas. Co. (1944), 143 Ohio St. 215, paragraph one of the syllabus; Royal Ins. Co. v. Jack (1925), 113 Ohio St. 153, 163-64; Fidelity Cas. Co. v. Hartzell Bros., supra, at 569; Webster v. Dwelling House Ins. Co. (1895), 53 Ohio St. 558, 565-566; Olmstead v. Lumbermens Mutl. Ins. Co., supra, at 217. Our inquiry is, therefore, directed to what may reasonably have been understood, and thus intended, from the policy as a whole, giving each part thereof its proportionate significance and the words and phrases used therein their usual and natural meaning.
Central Surety Fire Corporation v. Williams, 213 Ark. 600, 211 S.W.2d 891; Brady v. Norwich Union Fire Ins. Soc., 47 R.I. 416, 133 A. 799. Fiske v. Niagara Fire Ins. Co., 207 Cal. 355, 278 P. 861; Granger v. New Jersey Ins. Co., 108 Cal.App. 290, 291 P. 698; Hill-Howard Motor Co. v. North River Ins. Co., 111 Kan. 225, 207 P. 205, 24 A.L.R. 736; Cox v. World Fire Marine Ins. Co., Mo.App. 239 S.W.2d 538; Van Vechten v. American Eagle Fire Ins. Co., 239 N.Y. 303, 146 N.E. 432, 38 A.L.R. 1115; Royal Ins. Co. v. Jack, 113 Ohio St. 153, 148 N.E. 923, 46 A.L.R. 529. Affirmed.
We therefore rule in accord with those cases holding that "theft" does not embrace a taking by false pretenses. Grady Motors Corp. v. Travelers Fire Insurance Co., D.C.D.C., 147 F. Supp. 290; Illinois Automobile Ins. Exchange v. Southern Motor Sales Co., 207 Ala. 265, 92 So. 429, 24 A.L.R. 734; Cedar Rapids National Bank v. American Surety Co., 197 Iowa 878, 195 N.W. 253; Cox v. World Fire Marine Ins. Co., Mo.App., 239 S.W.2d 538; Royal Ins. Co. v. Jack, 113 Ohio St. 153, 148 N.E. 923, 46 A.L.R. 529; Thompson v. Connecticut Fire Ins. Co., 203 Okla. 530, 223 P.2d 757. The contention may be advanced that only possession was transferred here because payment is a condition for passing title and a check is in itself conditional until payment is received.
" Again, in Ohio Royal Insurance Co. v. William S. Jack, 113 Ohio St. 153, 148 N.E. 923, 46 A.L.R. 529, where the facts were quite similar to the facts in the instant case, it was held: "Where an owner of an automobile executes a contract of sale for the car, helps the vendee change the license numbers, and, in pursuance of his contract of sale, transfers possession and title to vendee, who pays therefor with a forged check, such fraudulent transaction so perpetrated by the vendee does not constitute a 'theft,' within the terms of the policy."
1. In Royal Ins. Co. v. Jack, 113 Ohio St. 153, 148 N.E. 923, 46 A.L.R. 529, an automobile was delivered to a swindler on the false pretense that a check was certified, when — in truth — the check was bad. The policy of insurance was a coverage against "theft, robbery, or pilferage."