Epitomized Opinion

Published Only in Ohio Law Abstract

Katz engaged Wiggins to wash and polish his automobile in Katz’s garage. Before staiting any work on the car, Wiggins drove it away without the owner’s consent and while so driving wrecked the car. Katz brought this action against the insurance company under a policy by which he was insured against theft. The policy contained a provision excepting theft by any person in the assured’s service or employment, whether such theft occurred during the hours of such service or employment or not. The Cleveland Municipal Court at the trial directed a verdict in favor of the insurance company. The Court of Appeals reversed the judgment and remanded the case, holding:

1. There was some evidence tending to show that Wiggins was not in Katz’s employment at the time he drove the machine away, and also some evidence that he drove the machine away with fraudulent intention of depriving the owner of it. The trial court exceeded its power in withdrawing the questions from the jury and deciding questions of fact as if they, were questions of law.