Edgerton & Sons, Inc. v. Minneapolis Fire & Marine Ins. Co.
| Decision Date | 29 July 1955 |
| Citation | 116 A.2d 514,142 Conn. 669 |
| Parties | EDGERTON AND SONS, Inc. v. MINNEAPOLIS FIRE AND MARINE INSURANCE COMPANY. Supreme Court of Errors of Connecticut |
| Court | Connecticut Supreme Court |
David R. Lessler, Bridgeport, for appellant (plaintiff).
Joseph M. Brandon, New Haven, with whom, on the brief, were David E. Fitz-Gerald, Jr., Bernard Insler and Gordon R. Raynor, New Haven, for appellee (defendant).
Before BALDWIN, WYNNE, DALY and O'SULLIVAN, JJ., and PHILLIPS, Superior Court Judge.
In this action a declaratory judgment was sought as to the interpretation of an insurance policy clause. The plaintiff is a common carrier engaged in the transportation of general merchandise. It maintained a fleet of twelve trucks of various sizes, types and shapes in the conduct of its business. In an effort to protect itself from liability to shippers for loss or damage to merchandise in transit, it procured, on June 20, 1951, an insurance policy, called a motor vehicle cargo policy, from the defendant. While the action sought an interpretation of the clause as to which the parties differed, the plaintiff was attempting to recover $4974.50 which it had been obliged to pay a shipper for the damage which a lathe suffered while it was being transported. The policy excepted certain specified hazards. The court found the issues for the defendant and entered judgment for it. From that judgment this appeal has been taken.
The policy in question covered 'the legal liability of the Assured as a carrier * * * for direct loss or damage from perils * * * specified, on shipments of lawful goods * * * while loaded for shipment on and/or in transit' on the vehicle described. The pertinent peril or risk specified was '[c]ollision, i. e., accidental collision of the vehicle with any other automobile, vehicle or object.' The policy contained a provision which excepted from insurance coverage the legal liability of the assured for '[l]oss or damage caused by the vehicle coming in contact with any portion of the roadbed, curbing, or any stationary object while backing for loading or unloading purposes, or rails or ties of street, steam or electric railways, [and] for loss or damage caused directly or indirectly by the load or any portion thereof coming into contact with any other object unless the carrying vehicle also collides with such object.'
The finding may be stated in essential substance as follows: On September 17, 1951, Manning, Maxwell and Moore engaged the plaintiff to transport a Bullard verticle turret lathe owned by it from the plant of J. L. Lucas, machine repairers in Bridgeport, to its own plant in Stratford. On that date, the plaintiff directed an employee, Joseph Yorio, to perform the service, and it dispatched a 1949 Mack tenwheel platform truck for the purpose. The lathe was placed on wooden skids, extending two feet from each side, and thus seated was hoisted in place upon the truck. The lathe was covered by a canvas tarpaulin belonging to the plaintiff and used by it on occasion in transporting merchandise. The lathe was the only cargo being carried. It extended from six to eight feet above the truck platform, and somewhat above the cab of the vehicle. The canvas tarpaulin was not fitted for use on the particular truck; it was usable on any of the plaintiff's trucks. While en route to its destination and laden as described, the truck was proceeding along East Main Street in Stratford, approaching a railroad bridge which spanned the street at that point. The driver of the truck satisfied himself that he could safely drive under the bridge with sufficient clearance for the load. As he drove under the bridge, he pulled to his right to avoid colliding with a truck which, coming from the opposite direction, was partly on his side of the road. The right front wheel of the truck thereupon struck a cement culvert located off the edge of the right-hand shoulder of the highway. The driver brought the truck to a stop. He intended to back up, but his foot inadvertently slipped off the clutch pedal and the truck went forward again. As a result the right rear tandem wheel mounted the culvert, the truck bounced up and the top of the lathe came in contact with the under surface of the bridge. The upper assembly of the lathe was thereby snapped off and damaged. No part of the truck came in contact with the under surface of the bridge.
From the foregoing, the trial court concluded that the load the plaintiff was carrying was damaged by contact with the under surface of the bridge, that the truck itself did not collide with the bridge, and that consequently the damage to the lathe was caused by a peril excepted from coverage by the noninsuring clause heretofore stated. The determination of the case requires and interpretation of this clause.
When a term in a policy of insurance is ambiguous it will be liberally construed in favor of the insured. Ross v. Protective Indemnity Co., 135 Conn. 150, 152, 62 A.2d 340; Porto v. Metropolitan Life Ins. Co., 120 Conn. 196, 200, 180 A. 289; Morehouse v. Employers' Liability Assurance Corporation, 119 Conn. 416, 426, 177 A. 568. The loss in the instant case was covered by the general insuring clause of the policy. C. & J. Commercial Driveway, Inc., v. Fidelity & Guaranty Fire Corporation, 258 Mich. 624, 629, 242 N.W. 789; Jorgenson v. Girard Fire & Marine Ins. Co., 229 Minn. 48, 55, 38 N.W.2d 209; Gould Morris Electric Co. v. Atlantic Fire Ins. Co., 229 N.C. 518, 520, 50 S.E.2d 295; Bucks County Construction Co. v. Alliance Ins. Co., 162 Pa.Super. 153, 158, 56 A.2d 338. The decisive question is whether, under the circumstances of this case, the damage to the lathe arose from a peril or risk excepted from coverage under the noninsuring clause of the policy.
While the striking of the load against the bridge can be said to have been the immediate cause of the damage to...
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CHAPTER 4
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