Sherman v. Employers' Liability Assur. Corp., Limited

• Decision Date: 18 December 1961
• Citation: 343 Mass. 354,178 N.E.2d 864
• Parties: Joseph SHERMAN and another v. EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LIMITED.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 864

178 N.E.2d 864

343 Mass. 354

Joseph SHERMAN and another v. EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LIMITED.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 3, 1961.

Decided Dec. 18, 1961.

Lawrence D. Shubow, Boston, for plaintiffs.

Philander S. Ratzkoff, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

KIRK, Justice.

The two plaintiffs, doing business as Norfolk Laundry and Cleansers hereinafter called Norfolk, excepted to the direction of a verdict for the defendant in this action of contract to recover for a fire loss under a policy of insurance issued by the defendant to the plaintiffs.

The policy covered '* * * goods or articles, the property of the assured customers, accepted by the assured for cleaning, * * * while contained in the premises occupied by the assured at 156 Norfolk Street, Dorchester, or in the custody of its collecting agencies or branch stores; and while being transported to and from its customers or branch stores against direct loss or damage caused by * * * fire * * *.' It provided that the defendant's liability '* * * shall not exceed (a) four thousand dollars in any one casualty; (b) four thousand dollars at the assured main location, situated at 156 Norfolk Street, Dorchester * * *; (c) nil at any other location; and (d) two thousand dollars while in transit.' A further provision was '* * * this policy covers in transit to and from 156 Norfolk Street, Dorchester.'

The evidence shows that the business of the plaintiffs was conducted in the following manner: Items which were to be cleaned were picked up at customers' homes by the plaintiff Sherman and brought to 156 Norfolk Street for counting, marking, and checking. Items which were not brought by Sherman to the location at Norfolk Street were taken there by the customers themselves. Every day or every other day items at Norfolk's location were picked up by a truck of the Quality Wet Wash (hereinafter called Quality) and transported by it to its premises on Gibson Street, Dorchester, for washing and laundering. In emergencies one of the plaintiffs would deliver the goods to Quality rather than wait for Quality's truck. Norfolk and Quality were entirely independent companies. When the washing and laundering were completed, Quality returned the goods to Norfolk Street where they were sorted out and redelivered by Norfolk to its customers.

On Tuesday, August 2o, 1955, a fire at the Quality premises destroyed all of the goods which had been picked up from Norfolk on Wednesday, Thursday and Saturday of the previous week.

The plaintiffs contend that the case should have been submitted to the jury and argue that the jury could find that (a) when the goods were on Quality's premises, they were 'in the custody of its [Norfolk's] collecting * * * [agencies']; and (b) the goods were 'in transit' while on Quality's premises; and, therefore, on either ground were within the coverage of the policy. We disagree. The interpretation of the contract was for the judge to decide. Ober v. National Casualty Co., 318 Mass. 27, 30, 60 N.E.2d 90, and cases cited; Forte v. Caruso, 336 Mass. 476, 481, 146 N.E.2d 501.

If equivocal language is used in a contract of insurance such language is to be construed against the insurer. August A. Busch & Co. of Mass., Inc. v. Liberty Mut. Ins. Co., 339 Mass. 239, 243, 158 N.E.2d 351, and cases cited. When, however, the words are plain and free from ambiguity they must be construed in their usual and ordinary sense. Ober v. National Cas. Co., 318 Mass. 27, 30, 60 N.E.2d 90; Forte v. Caruso, 336 Mass. 476, 480, 146 N.E.2d 501, and cases cited. We perceive no ambiguity in the...