Niagara Fire Ins. Co. v. Lowell Trucking Corp.

• Decision Date: 10 July 1944
• Citation: 316 Mass. 652,56 N.E.2d 28
• Parties: NIAGARA FIRE INS. CO. v. LOWELL TRUCKING CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 652

56 N.E.2d 28

NIAGARA FIRE INS. CO.

v.LOWELL TRUCKING CORPORATION.

Supreme Judicial Court of Massachusetts, Middlesex.

July 10, 1944.

Exceptions from Superior Court, Middlesex County; Swift, Judge.

Action of contract by Niagara Fire Insurance Company against Lowell Trucking Corporation to recover money paid by plaintiff to a shipper of goods which were stolen while in course of transportation in a truck owned by defendant. The trial court found for plaintiff, and defendant brings exceptions to the denial of certain of its requests for rulings.

Exceptions overruled.

Before FIELD, C. J., and LUMMUS, DOLAN, and RONAN, JJ.

S. H. Babcock, of Boston, for plaintiff.

J. F. Havlin, of Boston, for defendant.

DOLAN, Justice.

This is an action of contract to recover money paid by the plaintiff to a shipper of goods which were stolen while in course of transportation in a truck owned by the defendant. The case was heard by a judge of the Superior Court sitting without a jury. He found for the plaintiff and assessed damages in the sum of $1,234.79, and the case comes before us on the defendant's exceptions to the denial of certain of its requests for rulings.

Material facts disclosed by the evidence are these. The action was brought after Bolta Rubber Co., Inc., v. Lowell Trucking Corp., 304 Mass. 426, 23 N.E.2d 873, was decided. In that case a bill in equity was brought by the Bolta company against the trucking company and the plaintiff in the present case as the insurer seeking to reach and apply the obligation of the insurer in satisfaction in part of a judgment previously obtained by the Bolta company against the trucking company for the loss of goods stolen from its truck. A final decree was entered in that suit ordering the insurer, the plaintiff in the present case, to pay to the Bolta company $1,055, interest and costs. Upon appeal to this court the decree was affirmed. The plaintiff complied with the decree. The present action is brought under the terms of a policy of insurance issued by the plaintiff to the defendant under date of December 1, 1936. The policy covered loss of property upon trucks of the defendant equipped with the Babaco alarm service. Under the heading of ‘Conditions,’ it provided that ‘No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless the Assured shall have fully complied with all the requirements of this policy * * *.’ The policy also contained the following provision: ‘In consideration of the rate at which this insurance is written it is warranted by the assured that the trucks * * * used in long distance trucking including route from * * * Lowell, Massachusetts to New York, N. Y. are equipped with the Babaco Alarm System. * * * It is further warranted by the Assured that such ‘Babaco’ equipment protecting the cargo compartment shall be in the ‘on’ position except with respect to any truck * * * which is actually being loaded and/or unloaded * * *.' There was an indorsement on the policy whereby, ‘In consideration of the premium stated in the policy to which this endorsement is attached, the Company hereby agrees to pay, within the limits of liability hereinafter provided, any shipper or consignee for all loss of or damage to all property belonging to such shipper or consignee, and coming into the possession of the insured in connection with its transportation service, for which loss or damage the insured may be held legally liable, regardless of whether the motor vehicles, terminals, warehouses, and other facilities used in connection with the transportation of the property hereby insured are specifically described in the policy or not. The liability of the Company extends to such losses or damages whether occurring on the route or in the territory authorized to be served by the insured or elsewhere, except as follows: No exceptions * * * within the limits of liability hereinafter provided it is further understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, or any other endorsement thereon or violation thereof, or of this endorsement by the insured, shall affect in any way the right of any shipper or consignee, or relieve the Company from liability for the payment of any claim for which the insured may be held legally liable to compensate shippers or consignees, irrespective of the financial responsibility or lack thereof or insolvency or bankruptcy of the insured. However, all terms, conditions, and limitations in the policy to which this endorsement is attached are to remain in full force and effect as binding between the insured and the Company. The insured agrees to reimburse the Company for any payment made by the Company on account of any loss or damage involving a breach of the terms of the policy and for any payment that the Company would not have been obligated to make under the provisions of the policy, except for the agreement contained in this endorsement. The liability of the Company for the limits provided in this endorsement shall be a continuing one notwithstanding any recovery hereunder. The Company shall not be liable for an amount in excess of $2,000, in respect of any loss of or damage to or aggregate of losses or damages of or to the property hereby insured occurring at any one time and place, nor in any event for an amount in excess of $1,000, in respect of the loss of or damage to such property carried on any one motor vehicle, whether or not such losses or damages occur while such property is on a motorvehicle or otherwise. Whenever requested by the Commission, the Company agrees to furnish to the Commission a duplicate original of said policy and all endorsements thereon. This endorsement may not be canceled without cancellation of the policy to which it is attached. Such cancelation may be effected by the Company or the insured giving thirty (30) days' notice in writing to the Interstate Commerce Commission at its office in Washington, D. C., said thirty (30) days' notice to commence to run from the date notice is actually received at the office of said Commission.’ This indorsement was made to assure compliance with the Motor Carrier Act of 1935,¹ concerning making compensation to shippers or consignees for all property belonging to them coming into the possession of the carrier in connection with its transportation service, and to comply with the rules and regulations of the Interstate Commerce Commission adopted in pursuance of the act. This indorsement was dated at Boston December 1, 1936 (that being also the date of the policy), and concluded thus, ‘Countersigned by ...