Hoffman Bros. v. Commercial Union Assurance Co.

Headnote

Insurance {theft) — contract — policy insuring against loss unless from theft by employee, servant or messenger of insured — porter hired for day by president of insured to carry sample cases within class mentioned,

Hoffman Bros., Inc., v. Commercial Union Assurance Co., 221 App. Div. 167 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 29, 1927, in favor of defendant, upon the submission of a controversy under sections 546-548 of the Civil Practice Act. The action was to recover the value of lost jewelry under a policy of insurance providing as follows:

“ This policy covers loss of, and /or damage to the above described property or any part thereof, arising from any cause whatsoever except as hereinafter mentioned, viz.:

“ ‘ 1. Loss or damage of, or resulting from theft or other act or omission of a dishonest character (including sabotage) on the part of the assured, or any agent or employee or servant or director or messenger, or broker, or broker’s customer, or customer of the assured, unless such loss arises when the goods are deposited for safe custody by the assured, his, or their servants, or agents, with such broker, or customer or broker’s customers.’ ”

The jewelry in question was in sample cases in possession of plaintiff’s president who was traveling seeking orders. At Cleveland, Ohio, he hired a porter to carry the cases. Several hours later they became separated in the busy streets and the porter failed to reappear with the cases. The question was whether the porter came within the class comprised by the words “ employee,” “ servant,” or “ messenger.”