306 N.Y. 481 | NY | 1954
This suit was brought under section 167 of the Insurance Law, by plaintiff, who had been injured on May 29, 1944, when struck by an automobile which was driven by Alfred Davis and owned by his wife, Margaret Davis, who was insured against liability by this defendant. No notice of the accident was given to anyone associated with this defendant until February 9, 1946, when an agent of defendant learned of it in a manner hereafter described. That, however, was oral notice and, on this record, no written notice was ever given by anyone to defendant, as insurer, until, in October, 1946, plaintiff brought a personal injury action (not the present action, of course) against Alfred and Margaret Davis, and the summons and complaint in that personal injury action were turned over to the company by Davis and his wife. Defendant disclaimed liability, but defended the personal injury action under an agreement signed by the company and by Davis and his wife, which permitted the company so to defend without waiving any of the policy provisions. One of those provisions, under which defendant there disclaimed liability, and now defends against this present suit by the judgment creditor, is in the policy as paragraph No. 6 under “ CONDITIONS ”, as follows:
“ 6. Notice of Accident
‘ ‘ When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain
The personal injury action, defended by the company under the nonwaiver agreement (supra), resulted in a verdict and judgment for plaintiff against Davis and his wife, but plaintiff was unable to collect his damages from the Davises, and so brought this section 167 suit against the liability insurance carrier. The answer here pleaded, as a defense, the alleged failure of Mrs. Davis, the insured, to comply with the above-quoted policy provision requiring her to give written notice to the company as soon as practicable, and alleged, also, that Mrs. Davis had failed to co-operate with the company. The trial court directed judgment for plaintiff against defendant for the policy limit, plus interest and costs. The court, pointing out that there were practically no disputes of fact, found that Davis had failed to inform his wife of the accident and concealed the incident from her until February 9, 1946, during which period no report of the accident was given by either Davis to the insurance company. Other undisputed facts are these: on February 9, 1946, more than twenty months after the accident, Fagan, a general agent of defendant insurer, was making a call on Mrs. Davis in connection with some other insurance business at a tavern operated by Davis and his wife, when a State policeman entered the tavern and talked in a rear room to Davis, during the course of which Davis brought Fagan into the conversation, told Fagan that he (Davis) was in a “ jam ”, and the State policeman told Fagan that there was evidence that a ear driven by Davis had injured somebody, whereupon Fagan asked Davis whether the report was true and Davis said not to his knowledge, but the police officer said that he had the evidence; Fagan advised Davis to go with the trooper to a justice of the peace and straighten the matter out; thereupon, the trooper and Davis left the place and Fagan had a conversation with Mrs. Davis, who had not heard the talk between her husband and the policeman; she asked Fagan what the matter
The trial court held that Mrs. Davis did not violate any of the policy provisions as to notice since, as the court found, notice was given by her to the company as soon as practicable, that is, that she and Fagan received the same notice of the accident, at the tavern on February 9, 1946. There is a formal finding, by the Trial Term, however, that no written notice was given by or on behalf of Mr. or Mrs. Davis. The Appellate Division, affirming, wrote a memorandum opinion in which it recited the pertinent facts, but gave no explanation of how the court disposed of the policy requirement of written notice.
Respondent attempts several answers to this difficulty about written notice. First, he asserts that condition No. 6 (supra), requiring written notice by the insured, is in conflict with para
Respondent next argues to us that this insurance company did, in fact, receive adequate, timely and sufficient notice of this accident. Since Mrs. Davis, the insured, never heard of the accident until February 9,1946, and since Fagan, the company’s agent, got notice at the same time and place as Mrs. Davis did, she cannot be accused of failing to give timely notice. Whether or not that notice was “ sufficient ” in content, since it did not even tell the company who was injured, we need not determine. The difficulty is that it was not written notice.
Next, respondent argues that general agent Fagan had authority to bind the company, as to the matter of notice, by election, waiver or estoppel. The answer to this is in the policy itself, since condition No. 15 thereof says that “ Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the company from asserting any right under the terms of this policy ’ ’, and that no term of the policy may be waived or changed except by an indorsement on the policy signed by one of several officers, not including this agent. This same question was before us in the Notthelfer case (supra) and we held that a no-waiver clause like the one in this policy is binding. Respondent says that defendant accepted as sufficient the notice to Fagan on February 9, 1946, and is estopped from asserting the failure of notice. There is nothing, however, in the record to show that Fagan or the company considered the tavern conversation as a sufficient notice to comply with the policy provisions. Indeed, the opposite appears, since, as testified, Fagan did not even tell the company about the conversation. Elsewhere in the brief, respondent argues that the nonwaiver agreement was void, but this argument is based on a contention that, on or about February 9, 1946, Fagan, receiving the information in the tavern, had bound the company to a waiver of further notice.
Lewis, Oh. J., Conway, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.
Judgments reversed, etc.