Gould Morris Elec. Co. v. Atlantic Fire Ins. Co.

• Decision Date: 24 November 1948
• Docket Number: 463
• Parties: GOULD MORRIS ELECTRIC CO. v. ATLANTIC FIRE INS. CO.
• Court: North Carolina Supreme Court

50 S.E.2d 295

229 N.C. 518

GOULD MORRIS ELECTRIC CO. v. ATLANTIC FIRE INS. CO.

No. 463

Supreme Court of North Carolina

November 24, 1948

Civil action to recover on contract of insurance.

The plaintiff, desiring to transport a truck load of water heaters from Nashville, Tenn., to Raleigh, N. C., on or about 4 November, 1947, applied to the defendant for insurance to protect the cargo against loss or damage while in transit.

On the face of the policy appears the following:

'Trip Transit Policy

'Atlantic Fire Insurance Company

'Amount $2500.00 * * * Premium $25.00

'In consideration of the stipulations herein named * * *

1. 'Does insure Gould Morris Electrical Co. * * * on shipment of lawful goods and merchandise consisting principally of water heaters * * *

2. 'This insurance attaches from the time the goods or merchandise leave * * * initial point of shipment and covers continuously thereafter while in due course of transit until safely delivered * * *

3. 'This policy insures * * *

'Against loss or damage directly caused by fire, lightning, cyclone tornado * * * collision of the conveyance on which the goods are carried * * *, derailment, overturning of trucks or collapse of bridges'.

After the pleadings were filed, the parties agreed upon the facts and submitted the case to the court for determination without the intervention of a jury.

It is stipulated: That the cargo of 26 electric water heaters packed in crates, was loaded on plaintiff's open-body truck; that four of the topmost heaters protruded above the top of the truck, and that plaintiff's employees took a tarpaulin, which was no part of the truck, and covered the cargo by tying it to the body of the truck. And further, that while in transit, the truck was driven under an overhead concrete bridge and the four topmost heaters, covered with the tarpaulin, were damaged to the extent of $215.48 when they collided with the underside of the bridge.

The court being of opinion that the policy in suit did not cover the stipulated damage or loss, entered judgment dismissing the action, from which the plaintiff appeals, assigning error.

Harris & Poe, of Raleigh, for plaintiff-appellant.

J L. Emanuel, of Raleigh, for defendant-appellee.

STACY Chief Justice.

In the court below, and here, the parties have selected the proper construction of the phrase 'collision of the conveyance on which the goods are carried' as the battle ground of debate and the crucial question for decision.

While this language, standing alone and strictly construed, might limit liability to a collision of the conveyance itself and not extend to a collision of the load on the truck, as held below, we regard the interpretation too restrictive under all the terms of the policy.

In the first place, the policy is a single 'Trip Transit Policy', which within itself implies protection to the property while in transit on the particular trip. The purpose of the policy was to insure the cargo, not the truck, while in transit from Nashville, Tenn., to Raleigh, N. C. Undoubtedly the plaintiff thought it had such insurance.

Secondly, it insures against loss or damage to specific items of property, i. e., water heaters, and not against loss or damage to goods or merchandise generally. Thus, the parties knew, from the amount of insurance and the character of the shipment, that, in all probability, portions of the cargo would extend above the top of the truck.

Thirdly, whether the enumeration of the usual causes of loss or damage in the third paragraph of the policy was intended as enlargements or limitations on the liability declared in the first two paragraphs is not...