J. G. Ries & Sons, Inc. v. Auto. Ins. Co. of Hartford, Conn.
| Decision Date | 13 January 1939 |
| Docket Number | No. 63.,63. |
| Parties | J. G. RIES & SONS, Inc. v. AUTOMOBILE INS. CO. OF HARTFORD, CONN. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
1. The construction and effect of a written instrument is a matter of law to be determined by the court and not by the trier of fact; and it is the function of a court to enforce a contract as it is written.
2. A policy insuring a common carrier against loss by theft contained this clause: "Warranted by the Assured that each of the trucks carrying Pig Tin, Aluminum Bars, and/or Tin Tetrachloride shall be in charge of at least two men, at least one of whom shall be in attendance and guarding said truck or trucks at all times when containing this merchandise at the risk of this Company"; a truck took on a load of metal, at a pier in Brooklyn for delivery to a consignee in Bloomfield, N. J., at an hour too late for delivery that day wherefore the truck, with its load intact thereon, was housed en route in the carrier's garage in Newark, N. J. over-night for delivery to the consignee the next morning; held, the truck was, during the retention in the garage, "carrying" its load within the meaning of the policy provision.
3. Held, that proof of the presence over-night of an officer of the carrier in his residence apartment above the office portion of the garage building, and the periodic inspection of the outside doors of the garage at intervals of from an hour to an hour and a half during the night by a watchman who was in the joint employ of the carrier and other business concerns did not suffice to support a finding that there was proof of performance by the carrier of its duty under the contractual provision quoted in the last preceding syllabus with respect to guarding a truck while carrying an insured load.
Appeal from Supreme Court.
Action by J. G. Ries & Sons, Incorporated, against the Automobile Insurance Company of Hartford, Conn., to recover on an insurance policy insuring against theft. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment reversed.
Harry E. Walburg and Cox & Walburg, all of Newark, for appellant.
George B. Bailey and Bailey & Grimm, all of Newark, for respondent.
The defendant appeals from a judgment of the Supreme Court in the amount of $5, 906.59 rendered on a finding by a Circuit Court judge, sitting without a jury, on the pleadings and an agreed stipulation of facts. The action was on an insurance policy issued to the plaintiff by the defendant and was to recover for the loss by theft of a truckload of tin in pigs.
Plaintiff is a common carrier. On April 16, 1936, it received on its truck, under the control and in charge of a driver and helper, both employees of the plaintiff, at a pier in Brooklyn, New York, 107 pigs of tin for delivery in Bloomfield, New Jersey. Because of the congestion at the pier the loading was completed at an hour too late to permit delivery to the consignee that day. The truck with its load was therefore driven by the said employees to and into plaintiff's garage in Newark, New Jersey, with the purpose of making delivery to the consignee the following morning. The driver and helper went home. John H. Ries, treasurer of the plaintiff corporation, whose duty it was to remain until all trucks were in and stored for the night, locked the garage at seven-fifty o'clock and departed. When he left there was no person in the garage portion of the building where the trucks were stored, and the load of tin was on the truck precisely as it had been when the truck rolled in. The president of the company lived in an apartment over the office portion of the garage premises and was in his home at that time and all of that night. The plaintiff, in conjunction with other manufacturers and owners of business buildings in the vicinity of plaintiff's garage, had for a long time prior to and including the date of the loss employed a night watchman to keep watch and periodically inspect the premises of the plaintiff and of the others by whom he was employed during the hours between seven o'clock in the evening and seven o'clock in the morning. On the night in question the watchman made his rounds in the neighborhood, returning to the plaintiff's premises every hour until midnight and every hour and a half...
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