On appeal from the Supreme Court.
For the plaintiff-respondent, Bailey & Grimm (George B. Bailey).
For the defendant-appellant, Cox & Walburg (Harry E. Walburg).
The opinion of the court was delivered by
CASE, J. The defendant appeals from a judgment of the Supreme Court in the amount of $5,906.59 rendered on a finding by a Circuit Court judge, sitting without a jury, on the pleadings and an agreed stipulation of facts. The action was on an insurance policy issued to the plaintiff by the defendant and was to recover for the loss by theft of a truckload of tin in pigs.
Plaintiff is a common carrier. On April 16th, 1936, it received on its truck, under the control and in charge of a driver and helper, both employes of the plaintiff, at a pier in Brooklyn, New York, one hundred and seven pigs of tin for delivery in Bloomfield, New Jersey. Because of the congestion at the pier the loading was completed at an hour too late to permit delivery to the consignee that day. The truck with its load was therefore driven by the said employes to and into plaintiff's garage in Newark, New Jersey, with the purpose of making delivery to the consignee the following morning. The driver and helper went home. John H. Ries, treasurer of the plaintiff corporation, whose duty it was to remain until all trucks were in and stored for the night, locked the garage at seventy-fifty o'clock and departed. When he left there was no person in the garage portion of the building where the trucks were stored, and the load of tin was on the truck precisely as it had been when the truck rolled in. The president of the company lived in an apartment over the office portion of the garage premises and was in his home at that time and all of that night. The plaintiff, in conjunction with other manufacturers and owners of business buildings in the vicinity of plaintiff's garage, had for a long time prior to and including the date of the loss employed a night watchman to keep watch and periodically inspect the premises of the plaintiff and of the others by whom he was employed during the hours between seven o'clock in the evening and seven o'clock in the morning. On the night in question the watchman made his rounds in the neighborhood returning to the plaintiff's premises every hour until midnight and every hour and a half thereafter, and on these visits inspected the
doors of plaintiff's garage from the outside and found them locked. He did not sleep on plaintiff's premises, and there is nothing to indicate that he was inside of the building except once in the early evening. The watchman had no knowledge of how the loss occurred. Except for the presence of the plaintiff's president in his living apartment and for the periodic attendance of the night watchman, there was no guarding of the truck. When John H. Ries arrived the following morning at six-forty-five o'clock, he found that the truck mentioned above, with its load, and also another truck, were missing. At about eight o'clock of the same morning the two trucks were found by the police on different public highways in the city of Newark. The truck which had contain the pig tin was empty. The load had been removed and has never been recovered.
For the premium of one per centum of plaintiff's receipts for trucking the defendant insured the plaintiff against fire, perils by water-ways, overturning of truck and collapse of bridges, and, by special rider, against theft. The rider contained this warranty:
"Warranted by the Assured that each of the trucks carrying Pig Tin, Aluminum Bars, and/or Tin Tetrachloride shall be in charge of at least two men, at least one of whom shall be in attendance and guarding said truck or trucks at all times when containing this merchandise at the risk of this Company."
The court found the facts to be as stated in the stipulation but determined that the trucks were not, while they were in the garage, "carrying" the pig tin and that consequently the warranty did not apply. The court further found that the truck was actually in charge of two men and that one was in attendance and guarding the truck at all times when it contained the covered merchandise. The defendant had moved for a directed verdict, and the record stands as noting an objection to the court's determination.
We find that there is no evidence to sustain a factual finding that the truck was attended and guarded within the language of the ...