Sam Hootstein & Sons, Inc. v. Hartford Fire Insurance

323 N.E.2d 919, 3 Mass. App. Ct. 718, 1975 Mass. App. LEXIS 733

Opinion

In this action to recover damages for the loss of goods taken (by a man posing as a driver for the plaintiff’s trucking contractor) from the loading platform where they had been placed awaiting the arrival of the contractor, the trial judge was right in refusing to rule that such recovery was barred by either exclusion 8 or 9 of the insurance policy. Those exclusions, interpreted in accordance with well settled canons of construction (see Palmer v. Pawtucket Mut. Ins. Co. 352 Mass. 304, 306 [1967], and cases cited; Bulyga v. Underwriters at Lloyd’s, London, 1 Mass. App. Ct. 359, 363 [1973], and cases cited), do not apply where, as here, the imposter made off with the goods before signing the customary bills of lading and in the absence of the plaintiff’s employee in charge of the goods (who had gone in search of a pen in order that the necessary signatures could be ob tained). Thus, there was no “voluntary parting with ... possession” of the goods by the plaintiff within the meaning of exclusion 8; possession of the goods remained with the plaintiff at least until they were driven away from the platform, and the plaintiff’s employee, though inadvertently facilitating their theft by his temporary absence, did not part with them “voluntar[il]y.” See New England Box Co. v. C. & R. Constr. Co. 313 Mass. 696, 710 (1943); Fireman’s Fund Ins. Co. of San Francisco v. McConnell, 198 F. 2d 401, 402-403 (5th Cir. 1952), and cases cited. Nor were the goods ever “entrusted” to the imposter within the meaning of exclusion 9, as the plaintiff’s employee did not “commit or surrender” them to the driver (Webster’s Third New Inti. Dictionary, p. 759 [1971]). The cases from other jurisdictions relied upon by the defendant are not to the contrary.

Joseph J. Walsh, for the defendant, submitted a brief. Elliott J. Mahler for the plaintiff.

Exceptions overruled.