Chase Rand Corporation v. Central Ins. Co.

• Decision Date: 09 April 1945
• Parties: CHASE RAND CORPORATION v. CENTRAL INS. CO. OF BALTIMORE.
• Court: U.S. District Court — Southern District of New York

63 F. Supp. 626

CHASE RAND CORPORATION v. CENTRAL INS. CO. OF BALTIMORE.

District Court, S. D. New York.

April 9, 1945.

Rothstein & Korzenik, of New York City (Martin M. Kolbrener, of New York City, of counsel), for plaintiff.

Kaufman & Cronan, of New York City (Jesse Climenko, of New York City, of counsel), for defendant.

KNOX, District Judge.

Plaintiff here seeks to recover $3204.33 from defendant for an alleged loss by robbery of a quantity of jewelry which, under specified conditions, was protected by the provisions of a "Jeweler's Block Insurance Policy," issued by defendant. Except as particularly set forth in the policy, plaintiff was protected from loss or damage to its property arising from any cause whatever.

Plaintiff, pursuant to a memorandum agreement, shipped certain jewelry to Ben Levit, who was engaged in that line of business in San Antonio, Texas. This agreement was to the effect that title to the goods delivered to Levit should not pass to the latter "until any selection (of particular items) is approved in writing by Chase Rand Corporation, and a bill of sale rendered." Levit, meanwhile, assumed full responsibility to plaintiff for loss or damage of the goods, whether with or without negligence upon the part of himself, or his agents, his liability to be measured upon the assumption that he was an insurer, and not a bailee.

On or about July 24, 1942, Ben Levit entrusted certain items of jewelry received from plaintiff to his nephew, Hyman Levit, who, as a salesman for the former, traveled by automobile through certain portions of Texas, seeking customers for the goods. At about 4:30 o'clock that afternoon, John W. Hudspeth, who is engaged in mining in New Mexico, and who is also a peace officer of that state, started by automobile from a point 25 miles south of Deming, New Mexico, to San Antonio, Texas. After crossing the western boundary of the latter state, he picked up two young men who wished to ride in the direction he was traveling. After passing through El Paso, Hudspeth proceeded along a highway known as Route 80, towards his destination. At about 11:30 p.m. he had reached a point about seven or eight miles west of Van Horn, Texas, and 127 miles east of El Paso. His attention was there attracted by an unidentified man who was waving a flashlight back and forth across the road. Stopping his car, Hudspeth alighted, observed two automobiles at one side of the road, and began talking to the man who had signaled him to stop. Standing nearby was Hyman Levit. Upon inquiring the occasion for the signals, Hudspeth was told that "This man (Levit) says he has been held up or highjacked," and Levit added, "We need an officer out here." Hudspeth suggested that the man with the flashlight should immediately proceed to Van Horn and summon the county sheriff or a highway patrolman to the scene. The unidentified man, and who had preceded Hudspeth along Route 80, and who had come across Levit in apparent distress, got in his car and started towards Van Horn. Hudspeth then turned to Levit, and asked what had happened. The latter said that he was on his way east from El Paso, and at 4:30 p.m., having reached the point where he was found, his car had developed tire trouble. Thereupon, he had stopped and alighted from the car to examine and fix the tire. This engaged his attention for about 30 minutes and while so engaged, and being in a stooping position, two men came towards him — one of whom struck him on the head with a metal tire tool. In answer to a question as to where he had been hit, Levit indicated his forehead where Hudspeth saw some slight scratches, but no blood. The night was clear and a moon shone. In addition Hudspeth had a flashlight. With its aid he discovered a pair of eye glasses lying on the ground, the lenses of which were broken. At this discovery, Levit said the glasses belonged to him and added, "They knocked my glasses off." His hat, also, was in a crushed condition. He went on to declare that the blow he had received had knocked him unconscious for about 15 minutes, and that on recovering his senses, he found he had been robbed of diamonds having a value of $30,000, his wallet containing $55 in cash, and his automobile ignition key. Levit further said that he believed the men who had assaulted him were Mexicans, and that, following the robbery, they drove away at a high rate of speed towards Van Horn. He believed, however, that they soon turned about and had driven towards El Paso, from which place he thought they had followed him. Hudspeth took his flashlight and walked along the road for several hundred feet to see if he could find tire marks which would indicate that a car had turned about on the road. Finding none, and after a lapse of 25 minutes, he returned to Levit and found that the boys who were traveling with him (Hudspeth) had put a spare tire on the left front wheel of Levit's car. Meanwhile, no one had arrived from Van Horn, and Hudspeth asked Levit if he wished to be towed to that town. Receiving an affirmative reply, Hudspeth, together with his companions, attached tow chains to Levit's car. Thereupon, one of the boys, together with Levit, got into the latter's car and Hudspeth and the other boy then towed the car to Van Horn. On reaching a point two miles west of Van Horn, they met A. A. Anderson, Sheriff of Culberson County, Texas, and a highway patrolman, on their way to the location of the alleged robbery. After the officers had talked with Levit, out of the hearing of Hudspeth and the boys, the entire party proceeded to an automobile service station in Van Horn. Hudspeth, who was in a hurry to get away, occupied himself in servicing his car in order to continue his journey. Levit then thanked him for his assistance, and bought soft drinks for some members of the group. He paid for his...