Lynch v. American Eagle Fire Insurance

Proskauer, J. Plaintiff had judgment in an action to recover the value of stolen merchandise under a policy of insurance “ on trunks and samples of merchandise ” in the charge or control of the assured or their traveling representatives “while in the custody of any * * * transportation company, * * * or while in automobiles,” or while “in transit * * * in the custody of any common carrier,” subject to the exception that it did not insure against loss by theft “ of property in the custody of the assured or their traveling representatives, in and/or on railroad cars, steamship or other carriers or conveyances.” The plaintiff packed in two suit cases a large number of articles of linen and lace. They were all articles which she was willing to sell. The articles were “ merchandise for sale.” It is true that she testified that she would order duplicates of these articles if they were sold, but it is evident that the articles were not samples in the sense that they were “ a fair representation of the whole ” or specimens. (35 Cyc. 791.) They were articles, each of great value, intended for sale and not for exhibition as representative of a larger number. We think that the jury’s finding that they were samples is, therefore, against the weight of evidence. There is a further reason why the plaintiff cannot recover. She placed the bags containing this merchandise in the body of a taxicab in which she was a passenger, alighted from the taxicab when it reached a certain destination, and upon her return after five minutes the bags had been stolen. To sustain a recovery she must negative cne exception in the policy which frees the insurer from liability [198] for theft of the property in the custody of the assured on “ carriers or conveyances.” The taxicab owner was a common carrier. But the bags were not in the custody of the owner or his agent, the driver. They were never in any way intrusted to the care or control of the driver, but merely left in the cab by the plaintiff: They thus remained in her custody. The judgment appealed from should be reversed on the law and the facts, with costs, and the complaint dismissed, with costs. Dowling, P. J., Merrell and McAvoy, JJ., concur; Martin, J., dissents.