Save-Mor Supermarkets, Inc. v. Skelly Detective Service, Inc.

Decision Date09 April 1971
Docket NumberSAVE-MOR
Citation359 Mass. 221,268 N.E.2d 666
PartiesSUPERMARKETS, INC. et al. v. SKELLY DETECTIVE SERVICE, INC. et al. (and three companion cases 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Harold Lavien, Boston, for Save-Mor Supermarkets, Inc. and another.

Will J. Bangs, Boston, for First National Stores, Inc. (Joseph L. Cotter, Boston, for Stop & Shop, Inc. and others, with him).

Thomas D. Burns, Boston, for Jack Norman Creswell, substituted for The Institute of Lloyds Underwriters, and another.

Before SPALDING, CUTTER, SPIEGEL, REARDON and QUIRICO, JJ.

QUIRICO, Justice.

These are four bills in equity brought by seven plaintiffs against four defendants. The plaintiffs are business corporations operating retail food and department stores. The defendants are (a) Skelly Detective Service, Inc. (Skelly), a corporation engaged in the business of transporting money, checks and securities by armored car, (b) its two insurers, The Institute of Lloyds Underwriters (Lloyds), 2 and Employers' Surplus Lines Insurance Company (Employers), 3 and (c) a bank. In each bill one or more plaintiffs seek to establish the liability of Skelly to each of them for a loss incurred when an armored car belonging to Skelly was stolen at a time when it was transporting money of the plaintiffs. Each bill also seeks to reach the obligation of one or both of the insurers, Lloyds and Employers, to Skelly under policies insuring Skelly for liability to its customers for loss of their money and securities in transport, and to apply such obligation of the insurers to the indebtedness of Skelly to the plaintiffs.

The four cases were consolidated for trial, and the testimony of witnesses at the trial was ordered reported under G.L. c. 214, § 24. After trial the judge filed a document entitled 'Findings, Rulings, and Order for Decree' which applied to all four cases. When the judge was requested to report the material facts found by him, he adopted that document as the required report. G.L. c. 214, § 23. The trial judge found that the defendant Skelly was indebted to each plaintiff. He made detailed findings of facts with reference to the theft of Skelly's armored truck and the money and securities of the plaintiffs contained therein, and then concluded that the loss was not one for which Lloyds was liable under its policy. He entered a final decree in each case declaring the indebtedness of Skelly to the plaintiff or plaintiffs, 4 and dismissed the bill as against all other defendants. The cases are before us on the consolidated appeals of all of the plaintiffs from the final decrees.

The record before us includes the trial judge's report of material facts found by him, the exhibits introduced at the trial, and portions of the transcript designated by the parties under S.J.C. Rule 1:02, 351 Mass. 732--733. 'Since such designated testimony is before us, it is our duty to examine it and decide the issues according to our judgment as to the facts and the law, giving due weight to the findings of the judge which will not be reversed unless plainly wrong.' LaBlanc v. Molloy, 335 Mass. 636, 637, 141 N.E.2d 519, 520. Hanrihan v. Hanrihan, 342 Mass. 559, 564, 174 N.E.2d 449. Sulmonetti v. Hayes, 347 Mass. 390, 391--392, 198 N.E.2d 297. We summarize the pertinent findings of the trial judge.

On April 1, 1967, Skelly was transporting money and securities of each of the plaintiffs under contracts for hire which provided that Skelly assumed the 'entire liability for any loss of any shipment' up to an amount which as to each plaintiff exceeded the claim of such plaintiff in these cases. On that date an armored truck in which Skelly was transporting money and securities of the plaintiffs was stolen. The money and securities were never found, and the plaintiffs have received no payment from Skelly for their losses.

At the time of the theft Skelly was insured against such an occurrence under a policy issued by Lloyds. The policy contained the following provision under the heading 'Conditions': '2. It Is Agreed by the Assured that at least one armed guard shall be in attendance when the property * * * (money or securities) is contained in an armored car or non-armored car.' The words 'armored car' apply to Skelly's armored truck which was stolen.

On the evening of the theft Skelly's employees, consisting of a driver and a guard, both armed, had driven the armored truck to a shopping center in Quincy and stopped it in front of the store of the plaintiff King's Department Store of Quincy, Inc. The guard went into the store to pick up some money and securities which he placed in the truck about 8:45 P.M. Both men then left the truck and went to the snack bar in the store to eat. When they left the truck, the ignition key was left in its position in the ignition, the rear door was locked and bolted from the inside, and the two side doors were locked but not bolted. The distance from the truck to the store entrance was about ten and one-half feet, and from the truck to the point where the two men were standing at the snack bar it was about twenty-five feet. By turning to their left they could look through the glass front of the store and see the truck which was parked with its right side toward them. About eight minutes after they left the truck to go to the snack bar, someone entered the truck by unlocking the door on the driver's side and drove it away. From his position at the snack bar the guard saw the truck move away. He ran out and fired two shots at the truck but it did not stop. When it was found about an hour later, the money and securities were gone.

All of the findings made by the trial judge were supported by the evidence before him, and they were 'not wrong, much less plainly wrong.' Farrell v. Branconmier, 337 Mass. 366, 368, 149 N.E.2d 363, 364.

The question for decision is whether on the facts summarized above, Skelly as the insured, complied with the condition of the Lloyds policy 'that at least one armed guard shall be in attendance when the property * * * (money or securities) is contained in an armored car or non-armored car.' The trial judge's decision on this was as follows: 'I rule that in attendance in the policy means to be present with and near at hand to the armored truck in pursuance of duty for the purposes of looking after and protecting the vehicle and its contents. I rule further that while in attendance does not necessarily mean physical presence on the armored truck, it does mean being a great deal closer to the armored vehicle than standing at a snack-bar at a distance of about 25 feet; and that in attendance in the policy means presence of an employee at or so near the armored truck that his being there may act as a deterrent to the stealing of the truck and/or its contents.'

The plaintiffs argue that the words 'in attendance' as used in the condition of liability in the Lloyds policy are ambiguous; and they ask us therefore to apply the familiar rule that if an insurer uses ambiguous words in drafting a policy, doubts as to the intended meaning of the words must be resolved against the insurer and in favor of the insureed. August A. Busch & Co. of Mass. Inc. v. Liberty Mut. Ins. Co., 339 Mass. 239, 243, 158 N.E.2d 351. MacArthur v. Massachusetts Hosp. Serv. Inc., 343 Mass. 670, 672, 180 N.E.2d 449. Whitney v. American Fid. Co., 350 Mass. 542, 544, 215 N.E.2d 767. We do not agree that the cases before us are governed by that rule.

In our view, the words 'in attendance' are not ambiguous, and they must therefore be construed in their usual and ordinary sense. They are words in common use and we must give to them the meaning intended when they are used by ordinary men. Ober v. National Cas. Co., 318 Mass. 27, 30, 60 N.E.2d 90. Sherman v. Employers' Liab. Assur. Corp. Ltd., 343 Mass. 354, 356, 178 N.E.2d 864. McMahon v. Monarch Life Ins. Co., 345 Mass. 261, 264--265, 186 N.E.2d 827. See G.L. c. 4, § 6, third. The rules which govern the interpretation of language in an insurance policy are the same rules which govern the interpretation of language in written contracts generally. In either case we must ascertain 'the fair meaning of the language used, as applied to the subject matter.' Oakes v. Manufacturers' Fire & Marine Ins. Co., 131 Mass. 164, 165. Foster v. Lee, 271 Mass. 200, 205, 171 N.E. 229. Trustees of...

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