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Advance Piece Dye Works Inc. v. Travelers Indemnity Co.

Decided: December 8, 1960.

ADVANCE PIECE DYE WORKS, INC., PLAINTIFF-APPELLANT,
v.
THE TRAVELERS INDEMNITY COMPANY AND SUN INSURANCE COMPANY OF NEW YORK, DEFENDANTS-RESPONDENTS



Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

Plaintiff, a processor of textiles belonging to others, sued Travelers Indemnity Company (Travelers) and Sun Insurance Company of New York (Sun) upon their respective policies for the loss of certain customers' goods.

At the end of the plaintiff's case, the trial court ruled that plaintiff had not shown a loss within the coverage of the policy of either defendant, and entered judgment in their favor. Plaintiff appeals.

The Traveler's policy insured against "Employee Dishonesty," as therein defined. The Sun policy provided:

"5. THIS POLICY INSURES: --

EXCEPT AS HEREINAFTER PROVIDED: --

(A) AGAINST ALL RISKS OF PHYSICAL LOSS OR DAMAGE FROM ANY EXTERNAL CAUSE;

"7. THIS POLICY DOES NOT INSURE:

(C) AGAINST MYSTERIOUS DISAPPEARANCE OR INVENTORY SHORTAGES;

(D) THEFT, CONVERSION OR OTHER ACTS OR OMISSIONS OF A DISHONEST CHARACTER ON THE PART OF THE ASSURED OR HIS OR THEIR EMPLOYEES; * * *."

After plaintiff had introduced certain evidence, the judge suggested that plaintiff make an offer of its proposed additional proof "to set up what its witnesses would show," reserving the right to defendants (if the trial court found the offered proof enough to establish a prima facie case) to cross-examine plaintiff's witnesses and to introduce evidence on their own behalf. The parties agreed to that suggestion, and plaintiff's attorney then said:

"Pursuant to the statement of the court that counsel for the interested parties attempt to agree on plaintiff's proof as it would

be offered if the testimony were continued, the following is plaintiff's proffer of its proof as to the liability in addition to the testimony already received. * * *"

Then followed the offer of proof which, together with the testimony introduced before the offer, included the following facts which we have selected as pertinent to this appeal.

Plaintiff was in the business of dyeing and finishing textiles for various companies, in a two-story building in Rutherford. This building contained approximately 12 windows on each floor, not equipped with burglar alarms. There were a number of entrance doors into the building which also were not equipped with burglar alarms. More than three-fourths of the second floor was a storage room, where merchandise of customers was kept after it had been processed, awaiting the instructions of the customers. The balance of the second floor contained an employees' dressing room, showers, lockers, lavatories and "a little lunch room and what we call a sewing room."

Independent truckers brought the "greige" goods to a large loading platform, from which there was an entrance to the first floor and also an outside staircase leading to the second floor. At the top of the outside staircase there was a door to the second floor which was open during working hours but which was supposed to be locked at other times.

When the processing of the goods was completed, the goods were packed into cartons, and marked with the customer's name and sealed with gummed paper, on the first floor. Each carton was from 43 inches to 50 inches high and from 4 to 5 feet wide, and contained a number of separate pieces of goods, each on a separate roll. The cartons weighed from 300 to 600 pounds each. They were usually moved from the first floor to the second by "one of the fellows from shipping * * * [who] puts them on a hand truck and wheels ...


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