On appeal from the Essex County Circuit Court.
For the appellant, Gennet & Rafner (Samuel A. Gennet, of counsel).
For the respondent, Frazer, Stoffer & Jacobs (Nathan L. Jacobs, of counsel).
The opinion of the court was delivered by
McGEEHAN, J. 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 6th, 1944, for $3,512.19 with interest from November 20th, 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 1st, 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 forty-eight 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 20th, 1943, of a $6,882.27 claim of loss. Defendant, under agreement of September 28th, 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 and Deposit Co., 98 N.J.L. 534.
Point 1 of defendant is that the property in question was detained in plaintiff's custody for a period in excess of fortyeight hours, and defendant is, ...