Tadian v. Continental Forwarding, Inc.

McGivern, J. This is an appeal from a unanimous affirmance by the Appellate Term of a judgment of the Civil Court of the City of New York, New York County, in favor of the insured. The insured (and third-party plaintiff) is the Continental Forwarding, Inc., and its business is, as its name indicates, that of freight forwarding. The defendant, Guaranty National Insurance Company, had issued to Continental an insurance [335] policy. The purpose of the policy was to insure Continental against auto theft “ occurring while such automobile or other property is in the custody of the insured for safekeeping, storage, service or repair (1) at a location stated in this endorsement or while temporarily removed therefrom in the ordinary course of the insured’s business, or (2) away from the premises if the insured is attending such automobile or property” (emphasis supplied). A car, which Continental had undertaken to forward, was stolen while parked on a city street in Newark, New Jersey. The car had been locked and the key retained by the driver. Yet it was stolen. The insured, Continental, having paid premiums against just such a contingency, not unnaturally, seeks recovery under the policy. In considering the facts (found in detail in minority opinion) and the policy, “ account must be taken of ‘ the reasonable expectation and purpose of the ordinary business man ’ in making the contract. (Bird v. St. Paul Fire & Marine Ins. Co., 224 N. Y. 47, 51.) The words of the policy are to be read in context, the language construed fairly and reasonably, with an eye to the object and purpose sought to be accomplished by the writing.” (Harris v. Allstate Ins. Co., 309 N. Y. 72, 75-76.) Known to the insurer was the nature of the insured’s business, the fact it operated from an office and not a garage or a storage place, and that it employed drivers constantly engaged in moving autos from place to place. Inevitably, part of such a business is the leaving of an auto unattended, somewhere, sometime, in the ordinary course of its known business. There have been policies requiring an attendant on the vehicle before liability attaches. (See Royce Furs v. Home Ins. Co., 30 A D 2d 238.) If the defendant had that exaction in contemplation, by the addition of a single phrase, it could have protected itself against precisely what happened here. But, it did not do so. Nor can I accept the thesis of the dissenters herein that ‘ ‘ merely having charge of something is far different from having custody.” To the contrary spoke the Court of Appeals in New York Auction Co. v. United States Fid. & Guar. Co., 260 N. Y. 186, 189: “ Custodian is one having custody and custody is to have watch, care or charge of something [emphasis supplied]. This is the English language according to the dictionary (Funk & Wagnalls).” (See, also, 25 C. J. S., Custody, p. 89.) Such “care” or “custody” may be “actual or constructive.” (Webster’s New International Dictionary, 2d ed., unabridged.) As was observed in Klock v. Allstate Ins. Co. (34 Misc 2d 990, 993), a person is in charge of a thing when “ he has the right [336] to exercise dominion or control over it.” Relating this to the instant case: If the car at the time it was. stolen was not in the control and custody of the insured, in whose control and custody was it ? It had not been abandoned. To say that an insurance company should not pay when a car is stolen because thieves are abroad in our haggard cities and that they stalk our streets, is little short of absurd. It is just because of the prevalent and recognized risk of auto thievery in our present day urban society that people seek such insurance. This plaintiff had it. Its car was stolen, under the conditions of the policy. Ergo: the defendant is liable. The determination of the Appellate Term should be affirmed, with costs and disbursements.