United Deliveries Inc. v. Norwich Union Fire Ins. Soc.

• Decision Date: 27 September 1945
• Docket Number: No. 31.,31.
• Citation: 133 N.J.L. 393,44 A.2d 185
• Parties: UNITED DELIVERIES, Inc., v. NORWICH UNION FIRE INS. SOC., Limited.
• Court: New Jersey Supreme Court

133 N.J.L. 393

44 A.2d 185

UNITED DELIVERIES, Inc.,

v.NORWICH UNION FIRE INS. SOC., Limited.

No. 31.

Court of Errors and Appeals of New Jersey.

Sept. 27, 1945.

Appeal from Circuit Court, Essex County.

Action by United Deliveries, Inc., a corporation, against the Norwich Union Fire Insurance Society, Limited, a corporation, to recover on a motor carrier's cargo liability policy. From a judgment for plaintiff, defendant appeals.

Affirmed.

PARKER, Justice, and RAFFERTY, Judge, dissenting.

Gennet & Rafner, of Newark (Samuel A. Gennet, of Newark, of counsel), for appellant.

Frazer, Stoffer & Jacobs, of Newark (Nathan L. Jacobs, of Newark, of counsel), for respondent.

McGEEHAN, Judge.

Plaintiff sued defendant on an insurance policy issued to plaintiff by the defendant; the cause was submitted to the Circuit Court for its determination, without a jury, on the pleadings and a stipulation of facts; judgment for plaintiff was entered December 6, 1944, for $3,512.19 with interest from November 20, 1943; defendant appeals.

Plaintiff is an intrastate common carrier occupying a building in Newark as the focal point of its business of common carriage. Plaintiff's customers send their merchandise to said premises to be held there until carried by plaintiff's trucks over scheduled routes. At the end of each day's deliveries, plaintiff's trucks return to, and enter, the building and are placed next to the loading areas so that during the night other merchandise can be checked out and loaded into them in preparation for the next day's deliveries. Plaintiff maintained one gasoline pump inside the building and adjacent to the exit, and all fuel from the pump was used solely in filling the tanks of plaintiff's trucks. All repairs to plaintiff's trucks were made by others as independent contractors at their places of business.

On May 1, 1943, while the policy was in effect, plaintiff at its building in Newark caused certain merchandise to be loaded on two of its motor trucks for forwarding. The loading occurred in the early morning and the two trucks were left standing inside the building of the plaintiff in readiness for the arrival of the operating crews at the commencement of business the same day. During this interval, the two trucks and their contents were stolen, and the plaintiff became legally liable to the owners. Neither of the stolen trucks carried 200 cases of merchandise, but in the aggregate the merchandise on said trucks and in plaintiff's premises at the time of the theft exceeded 200 cases. The stolen merchandise involved in this suit had been retained at said premises for periods in excess of 48 hours (Sundays and legal holidays excluded) prior to such loading. The only employee of plaintiff in attendance at the premises at the time of theft was its night watchman. A plan of the interior of plaintiff's premises as of the time the theft occurred shows seven vehicles (including the two stolen vehicles) and their location therein. Plaintiff immediately gave notice of occurrence of loss to defendant, and filed proof of loss with it on September 20, 1943, of a $6,882.27 claim of loss. Defendant, under agreement of September 28, 1943, paid plaintiff $3,370.08, and as to the balance of $3,512.19, refused payment because it denied its legal liability.

The policy consists of a printed form, one printed endorsement and three typewritten endorsements, and is designated ‘Motor Carriers Cargo Liability Policy.’ Of the four endorsements, only two typewritten endorsements need be referred to-one which we designate ‘Endorsement (a)’ consisting of 21 numbered paragraphs, and the other which we designate ‘Endorsement (b)’ consisting of five unnumbered paragraphs. This policy is a private contract of insurance in relation to which the Legislature has not prescribed a standard form. The only signatures upon the policy are those of defendant's agent, and there is no proof that plaintiff partook in the drafting; therefore the language must be deemed to be defendant's. Under these circumstances, any ambiguity in the terms of the policy should be resolved by giving a meaning which is most favorable to the insured. Smith v. Fidelity & Deposit Co., 98 N.J.L. 534, 120 A. 322.

Point 1 of defendant is that the property in question was detained in plaintiff's custody for a period in excess of 48 hours, and defendant is, therefore, not liable under its policy.

The printed form provides: ‘This insurance is to indemnify the assured * * * by reason of their legal liability as a carrier, bailee or warehouseman * * * on account of direct loss or damage caused by perils hereinafter stipulated to lawful goods and merchandise carried for hire, consisting of liquors only while loaded in or on vehicle(s) described below owned and operated by the assured while in due course of transit in the custody and control of the assured * * *’ and, ‘This policy does not insure * * * property in or on the premises of the assured or any garage or other premises where the vehicle(s) described are usually kept. * * *’ This coverage is limited (1) to liquors, (2) while loaded in or on vehicles, (3) owned and operated by assured, (4) while in due course of transit, (5) in the custody and control of assured.

The pertinent provisions of Endorsement (a) are:

‘1. In consideration of the stipulations and premium hereinafter mentioned, this policy insures the Legal Liability of the assured as carrier or bailee or warehouseman under tariff, contract, bill of lading or shipping receipt issued by the Assured, for loss or damage directly due to perils hereinafter specified, on shipments of lawful goods or merchandise, the property of others while same are in the custody or possession of the Assured or in transit on motor trucks or trailers owned or operated by or for the Assured, including motor trucks, or trailers owned by others and operated in connection with the business of the Assured, within the Continental United States and Canada.

‘2. Insurance hereunder attaches as and when liability of the Assured first begins and continues until safely delivered to consignee at final destination, also attaches in respect of returned shipments or parts of same until safely returned to the shipper.

‘3. This Company shall not be liable for more than Seven Thousand Five Hundred ($7,500.00) Dollars on the contents of any one motor truck or on any one trailer at any one time, nor for more than Twenty-Five Thousand ($25,000.00) Dollars, in any one disaster at any one time. (However, in respect to merchandise while on or off vehicles in the terminals of the Assured and/or in any garage while the...