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CAMERA MART v. LUMBERMENS MUTUAL CASUALTY COMPANY (11/06/68)
CIVIL COURT OF THE CITY OF NEW YORK, TRIAL TERM, NEW YORK COUNTY
1968.NY.43405 <http://www.versuslaw.com>; 294 N.Y.S.2d 941; 58 Misc. 2d 448
November 6, 1968
CAMERA MART, INC., PLAINTIFF,v.LUMBERMENS MUTUAL CASUALTY COMPANY, DEFENDANT
Florman, Goldstein & Florman (Nathan S. Florman of counsel), for plaintiff.
Max J. Gwertzman and Milton B. Pfeffer for defendant.
Harold Birns, J.
Plaintiff corporation, engaged in the sale and rental of motion picture equipment, was duped by an unknown person and deceived into relinquishing merchandise valued at $6,104.
Prior to August 29, 1966, the plaintiff on numerous occasions had sold and leased such equipment to a television program known as Candid Camera. On the day stated, following the usual procedure, plaintiff's employee received a telephone call from someone representing to be a representative of Candid Camera, and in the conversation enumerated items of professional motion picture equipment which were to be furnished to a messenger on the following day. After the equipment had been assembled, a messenger did appear at plaintiff's place of business, stated he was from Candid Camera, obtained the equipment, and signed a receipt therefor.
As it subsequently developed, Candid Camera never ordered or received said equipment; in fact it appeared the equipment had been stolen from the plaintiff through the aforesaid trick.
Asserting its monetary loss, plaintiff sought indemnification from the defendant under an "all risk" policy which it had obtained and upon which premiums had been paid.
Defendant denied liability, relying on an exclusionary clause contained in a "Camera and Musical Instruments Form" constituting part of said policy. The exclusionary clause, subdivision (e) of paragraph 7, reads as follows: "Misappropriation, secretion, conversion, infidelity or any dishonest act on the part of the assured or other party of interest, his or their employees or agents or others to whom property may be entrusted (carriers for hire excepted)".
During the course of the trial the jury was waived and the parties stipulated that the court could resolve all issues of fact, the court having indicated during argument at the close of plaintiff's case that in its opinion the clause in question did not bar recovery.
The defendant maintains that the loss in question was occasioned by infidelity and dishonest acts on the part of the person to whom the property was delivered, that even if the plaintiff was deceived by the messenger, nevertheless the equipment was "entrusted" and the clause in issue is sufficiently broad to embrace such chicanery and therefore liability under the policy is precluded.
Principal reliance is placed by defendant upon Abrams v. Great Amer. Ins. Co. (269 N. Y. 90). In that case the jewelers' block policy therein involved excluded (p. 91): "Loss or damage or expenses by or resulting from theft, conversion or other act or omission of a dishonest character * * * on the part * * * of any person to whom the property hereby insured may be entrusted by whomsoever for any purpose whatsoever".
It appeared the plaintiff therein, a jeweler, delivered certain jewelry to one Rose Friedman, a person with whom plaintiff had previously dealt for resale. After securing possession of the jewelry, Rose Friedman disposed of the jewelry but absconded to Europe with the proceeds of her theft. Later arrested and extradited, she pleaded guilty to grand larceny.
The Court of Appeals, despite her secret intention to steal the jewelry prior to its receipt by her, had no doubt that Rose Friedman had been "entrusted" with the jewelry in question and applied exclusionary clause thus preventing recovery by plaintiff therein.
In analyzing the exclusionary clause, the court said (pp. 92-93): "When the word 'entrusted' appears in the contract, the parties must be deemed to have entertained the idea of a surrender or delivery or transfer of possession with confidence that the property would be used for the purpose intended by the owner and as stated by the recipient. The controlling element is the design of the owner rather than the motive of the one who obtained possession. Because plaintiff was deceived and his confidence was abused, he entrusted his property to a thief, the meaning of the word as used in this contract is such 'as common thought and common speech would now imagine and describe it.'"
On a first reading there would appear to be no doubt that the Abrams case would prevent recovery by plaintiff in the case at bar. But, there appears to be critical difference when the facts of the within controversy are superimposed on the facts of the Abrams case. In the Abrams case there was recognition of Mrs. Friedman as a customer with whom the plaintiff had previously dealt. As a matter of fact, she had previously established her credit with plaintiff. Mrs. Friedman had never misrepresented herself. It is in that context that the analysis of the word "entrusted" should be viewed.
In the case at bar, there were no prior business dealings between the plaintiff and the messenger or alleged representative of Candid Camera. There was, on the contrary and in retrospect, unmitigated deceit from the outset, not ...