141 N.Y.S. 1027 | N.Y. App. Div. | 1913
The action is upon an indemnity policy of insurance to recover the amount of a judgment paid' by the plaintiff, recovered against it by Bertram Tetter, a boy employed by plaintiff, for personal injuries sustained by him while at work in its rolling mill and steel plant, through the negligence of the plaintiff. The defendant indemnity company contends that the claim is not covered by the policy.
The accident occurred February 28, 1901, at seven-fifteen in the evening. The policy covers the plaintiff’s liability for loss or expense arising or resulting from claims upon the assured for- damages on account of bodily injury or death, accidentally suffered by reason of the operation of the trade or business therein described, by any employee or employees of the assured while within the factory, shop, yard or places therein referred to> upon certain terms and conditions therein mentioned, containing, under the heading of “Exclusions” the following: “B. This Policy does not cover loss or expense arising on account of or resulting from injuries or death to, or if caused by (1) Any person employed in violation of law, or any child under the age of fourteen (14) years where there is no legal restriction as to age of employment.”
The policy requires the assured td give notice of accident, and in case suit is brought to forward the papers served to the indemnity company, which agrees at its own cost to defend ■ the suit unless it elects, to settle or pay the assured the indemnity, as provided in the policy. The summons and complaint served upon the plaintiff were delivered to the defendant with a demand that the defendant take charge of the defense of the suit in accordance with the terms of the policy. The defendant prior to receiving the summons and complaint had made an investigation of the case, and the agents of the defendant notified the plaintiff-that it would take charge of the case, but if it should be decided that the boy was illegally in its employ, defendant would expect the plaintiff to satisfy any judgment which should be recovered, distinctly claiming that the claim of any one illegally in the employ of the plaintiff was not covered by the policy. ■ A few days thereafter the plaintiff’s president stated to a representative of the defendant that the defendant could go on with the case but that the plaintiff waived none of its rights, to which the defendant’s representa
The defendant contends that the injured employee was employed and permitted to work in plaintiff’s factory in violation of law, in that: (1) He being between the ages of fourteen and sixteen years, was employed and permitted to work without an employment certificate issued and filed in the office of the employer as the Labor Law requires; (2) being under the age of sixteen years, was employed or permitted to work in the factory after five (sic) o’clock in the evening, in violation of section 77 of the Labor Law; (3) being under the age of sixteen years, was permitted to operate or assist in operating a dangerous machine, contrary to the provisions of section 81 of the Labor Law as it existed at the time of the accident.
In the employee’s action there was submitted to the jury as grounds of negligence and recovery against the employer, (1) negligent unlawful employment, and (2) negligent failure to "properly instruct and warn the boy against .the dangers in operating the machine. There is no specific finding to indicate upon which ground the verdict was rendered. It is found in this action that there Was no negligent employment, and it is argued that the course of the trial in the negligence action indicates that the age of the boy was but incidentally involved, and that the verdict was rendered not upon negligent employment under the Labor Law, but for failure to properly instruct and warn the boy, upon common-law liability. I will
I am, therefore, of the opinion that the policy does not cover the claim in question. '
2. It is also urged that the defendant by taking charge of the negligence action and defending the same has waived, or estopped • itself from now claiming that the policy does not cover the judgment recovered in that action. That would be so but for the circumstances before referred to under which the defense was undertaken. I fully appreciate the force of the suggestions made by the learned counsel for the appellant, but it seems to me that unless we are prepared to reconsider
I conclude that the judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.