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Merchants Despatch Transp. Corp. v. Dubuque Fire & Marine Ins. Co.

November 20, 1952

MERCHANTS DESPATCH TRANSP. CORP.
v.
DUBUQUE FIRE & MARINE INS. CO.



Author: Swaim

Before DUFFY, FINNEGAN and SWAIM Circuit Judges.

SWAIM, Circuit Judge.

This is an action to recover for a loss of personal property by fire on a policy of insurance issued by the defendant, Dubuque Fire & Marine Insurance Company, to the plaintiffs, Merchants Despatch Transportation Corporation and Northern Refrigerator Line, Inc. After a trial to the court judgment was rendered for the plaintiffs in the amount of $290.05. From this judgment the plaintiffs appeal.

The fire occurred at the plant of the plaintiffs at their Worcester Yard, Mitchell, Illinois, February 25, 1947. On that date the pertinent provisions of the insurance contract, which was characterized as an Inland Marine Floater Policy, read as follows:

"Does hereby insure Merchants Despatch Transportation Corporation and Northern Refrigerator Line, Inc., * * * against loss or damage as herein specified, but not otherwise, in the amount of:

"$2,500,000.00 on railroad cars, car bodies and parts thereof, repair tools, materials, equipment, appurtenances and improvements thereof * * * while on or adjacent to tracks of the Assured anywhere within the limits of the United States and Canada, but does not cover cars while located within any buildings comprising the Assured's plant, except for the following amounts and in the following locations:

"$30,000 in Building 16, West Yard of East Rochester, N.Y.

25,000 in Building 1, Cudahy Yard of U.R.L. Cudahy, Wis.

25,000 in Building 14, Yards at 48th & Morgan Sts., Chicago

5,000 in Building located at Parkwater, Washington."

The value of the property destroyed amounted to $13,230.09. It was conceded that all of the property destroyed consisted of items properly includable within the descriptive terms, "railroad cars, car bodies and parts thereof, repair tools, materials, equipment, appurtenances and improvements thereof." It was stipulated that of the amount of the loss, $290.05 represented the value of property "on or adjacent to tracks" but which was not at the time located within any building, and that the defendant was liable therefor. It was further stipulated that $12,940.04 represented the value of property destroyed while located in buildings immediately alongside the tracks, for which loss the defendant denied liability on the ground that this was not covered within the terms of the policy. The defendant apparently concedes, however, that this property did not include any cars.

The District Court concluded, as a matter of law, that:

"Plaintiff's policy of insurance did not cover any property located in any of the buildings in plaintiffs' ...


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