Pilot Freight Carriers v. Fidelity-Phenix Fire Ins. Co.
| Decision Date | 28 June 1951 |
| Docket Number | Civ. A. No. 351. |
| Citation | 98 F. Supp. 329 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | PILOT FREIGHT CARRIERS, Inc. v. FIDELITY-PHENIX FIRE INS. CO. |
York & Boyd, Greensboro, N. C., Womble, Carlyle, Martin & Sandridge, Winston-Salem, N. C., for plaintiff.
Wharton, Poteat & Wharton, Greensboro, N. C., for defendant.
The plaintiff is a common carrier of freight by motor truck in inter-state commerce and carried with defendant insurance against loss by theft of its cargo. It is conceded that a trailer load of cigarettes valued in excess of $50,000 was stolen from plaintiff near Reynolds Tobacco Company's Lackawanna Warehouse in Jersey City. Defendant denies liability on account of an alleged breach of a condition of the policy by the plaintiff.
The insured was required by the terms of the contract to install and maintain the Babaco warning system, including the Parker device. When a trailer was loaded, its doors were to be sealed in such a way that the doors could not be opened without sounding an automatic alarm unless the lock was opened by a key. Thus the cargo of freight could not be taken out of the trailer by a thief without sounding an alarm.
The Parker device is very different and the object is to protect the trailer against theft. This device is attached to the trailer from underneath in front of the rear door, with an attachment manipulated by a key which turns it to the "On" position or to the "Off" position. When it is in the "On" position an alarm begins to sound on the movement of the trailer and continues as long as the trailer continues to move. Thus a thief could not pull the trailer off without an alarm which would attract attention and promote the arrest of the thief. The switch was operated by the key and was incapable of operation from the cab of the tractor.
The policy contained a warranty that the insured would not leave the tractor-trailer parked unattended without having the Parker device in the "On" position. In paragraph 6 is this clause: "Failure of the insured to comply with any of the foregoing conditions precedent in any instance shall render policy null and void as respects theft coverage for vehicle."
The defendant contends that the requirement is a condition precedent and voids the policy as to this loss whereas the plaintiff contends it is a mere warranty in which case the defendant would be required to show causal connection.
The tractor-trailer was moving from plaintiff's terminal in Hoboken, N. J., to the Lackawanna Warehouse in Jersey City on the day of theft. When the driver approached the warehouse he stopped the vehicle on the side of the street behind the traffic in front of him and went across the street to drink a cup of coffee. He then went to the gate to get his admission card for his cargo and then came to his tractor, opened the cab door and got in. He discovered a man on the other end of the seat who pointed a pistol at the driver and forced the driver to drive the cargo into another section of the city where he was compelled to get into an automobile in which he was held captive for several hours. The tractor-trailer was recovered the next day in New York City minus the cigarettes.
In the trial of the case, the court assumed that the tractor-trailer was parked unattended without having the Parker device in the "On" position. However, at no time was the driver more than approximately 300 feet from the vehicle and virtually in sight of it at all times. Whether stopping on the side of the street due to...
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Fidelity-Phenix Fire Ins. Co. v. Pilot Freight Carriers
...vehicle was not unattended, when the loss occurred, and hence the jury's finding on the second issue required a judgment for the insured. 98 F.Supp. 329. We think that the conclusion on the first point was correct, but that the conclusion on the second point cannot be sustained. It is well ......