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Den Gre Plastics Co. v. Travelers Indemnity Co.

Decided: November 14, 1969.

DEN GRE PLASTICS CO., INC., A CORPORATION, PLAINTIFF,
v.
THE TRAVELERS INDEMNITY COMPANY, A CORPORATION, DEFENDANT



Breslin, J.d.c. (temporarily assigned).

Breslin

Plaintiff seeks recovery for the theft of merchandise in the amount of $3,623.05, pursuant to the terms and coverage of Transportation Policy No. MT 841667 issued to it by defendant. Plaintiff leased certain premises in Lodi, New Jersey, which consisted of buildings designated as Nos. 20 and 122. Attached to said buildings was a loading platform which plaintiff utilized in loading merchandise upon its trucks and those of public carriers. Defendant admits issuance of the policy but contends that the theft did not occur while the property was in plaintiff's custody and actually in transit, as required by paragraph 3 of the policy, and, additionally, that the property at the time of the theft was located on premises occupied by plaintiff and therefore was not covered under paragraph 10(a)(1).

Paragraph 3 provided:

The insurance covers only while the property is in the custody of the assured and actually in transit and only while contained in or on the following described vehicles owned, rented or leased and operated by the assured

Paragraph 10 (a)(1) provided:

This policy does not insure (a) Property while it is located; (1) In or on premises, owned, leased or occupied by the Assured.

The proofs established that on Saturday morning, March 23, 1968, one Samuel Berger, an employee of plaintiff backed a 1965 GMAC truck (covered by policy) to the loading platform and proceeded to load it with the merchandise allegedly stolen. Upon completing the process he proceeded to move the truck approximately ten feet to another location

against the loading platform. He prepared four invoices covering the loaded merchandise which was then to be driven by a fellow employee on the following Monday morning to Brooklyn, New York, and Middle Village, New York. The invoices were placed in the office of the company where they were to be picked up by the driver of the truck on Monday morning. Berger discovered that the truck was missing upon his arrival at work on Monday morning.

Plaintiff contends that the loading of the merchandise on the truck by Berger and the moving of the same to another location alongside the loading platform constituted a compliance with paragraph 3 of the policy in that the merchandise was placed in transit by the action of Berger in moving the truck. It further contends that the property was not on premises occupied by plaintiff at the time of the theft since it leased only the two buildings and not any property adjacent thereto, including the area upon which the truck was located.

I

Was the property actually in transit, as required by paragraph 3, when the truck was loaded and moved to another location adjacent to the loading platform preparatory to delivery on the following Monday morning?

A policy of insurance is a contract and like any other contract is to be given a reasonable construction in conformity with the intention of the parties as gathered from the ordinary and commonly understood meaning of the language employed. Shuman v. National Cas. Co. , 80 N.J. Super. 310 (Law Div. 1963), & rev'd on other grounds, 88 N.J. Super. 57 (App. Div. 1965); Dealers Dairy Products Co. v. Royal Ins. Co. , 170 Ohio St. 336, 164 N.E. 2 d 745, 80 A.L.R. 2 d 441 (Sup. Ct. 1960). In the latter case the court stated that the words "in transit" and "transportation" ordinarily mean the movement of the goods ...


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