221 A.D. 394 | N.Y. App. Div. | 1927
These actions were tried together and are brought by appeal into this court on one record. The plaintiffs are husband and wife. They both recovered judgments against one Seides for damages growing out of a collision between an automobile owned and operated by him and a bus in which the plaintiff Mary L. Hermanee was a passenger. She recovered a judgment for her personal injuries owing to the negligence of Seides in causing said collision and her husband, the plaintiff Louis It. Hermanee, recovered a judgment for damages resulting from the injuries to his wife. The accident occurred September 1, 1923. Seides was protected against the accident by a policy of liability insurance issued by defendant. He appealed from the judgments against him which were duly affirmed. (Hermance v. Seides, 216 App. Div. 775.) Executions upon the judgments were returned unsatisfied. The present actions are brought against the defendant under section 109 of the Insurance Law (added by Laws of 1917, chap. 524, as amd. by Laws of 1920, chap. 563).
The policy was subject to the following conditions: “ Upon the occurrence of an accident resulting from the ownership, maintenance or use of any automobile to which this policy applies, the Assured shall give immediate written notice thereof with the fullest information obtainable at the time to the Company or to one of its duly authorized representatives. The Assured shall give like notice with full particulars of any claim made on account of such accident. If. thereafter suit is brought against the Assured to enforce such claim the Assured shall immediately forward to the Company every summons or other process that may be served upon the Assured.” There was also the further condition that the assured should “ co-operate with the Company, except in a pecuniary way, in all matters which the Company deems necessary in the defense of any suit or in the prosecution of any appeal.”
The defense herein is that Seides did not give the defendant notice of the accident nor of any claim made against him on account thereof and that he did not co-operate with the defendant in the defense of the actions brought against him. It is conceded that no notice was given to the defendant until after the commencement of the Seides actions in March, 1924, more than six months after the accident. The excuse for not giving such notice was that no accident occurred. Seides denied all knowledge of the accident. He denied the accident in his verified answers in the actions brought against himself. He denied it on the trial of this action. Nevertheless the jury found on the former trials that the accident occurred. If he was unaware of the accident his policy did not require him to perform impossibilities. He could not give the company notice
The plaintiffs, however, contend that even if Seides was guilty of a breach of contract in regard to notice, the defendant waived such breach. The trial justice submitted to the jury the question of waiver and this presents the serious aspect of the case. If the submission of this question to the jury was error a reversal of the judgment must follow because the verdict of the jury was a general verdict and it is, therefore, impossible to determine that the verdict is not based on this question of waiver. The jury under the charge
The facts bearing on the question of waiver are as follows: When the plaintiffs brought their actions against Seides on March 21, 1924, he mailed the summons and complaint in each action to the defendant. The latter immediately on March 22, 1924, advised him by letter as follows: “ The same are receiving our immediate attention; subject, however, to a complete reservation of the company’s rights under the terms and conditions of its policy, pending an investigation as to the cause of the delay in reporting the accident.” As stated above, this was the first intimation the defendant had of the occurrence of the accident. On March 28, 1924, defendant verified the answers in the two actions denying its occurrence. This was at the office of the attorney for the company who prepared the answers. At that time Seides says that one of the attorneys for the company explained to him “ the clause in the policies ” and that the attorney “ said that they waived no rights of the statements in the policy ” and that “ these answers were prepared under the conditions of this letter of March 22d.” When the appeal was taken from, the Seides judgments by the attorney for the insurance company Seides signed an agreement that the said company did not waive any of its rights under the terms and conditions of the policy. As has been stated, Seides always denied and still denies the accident. At the identical time when he was told by the attorney of the defendant that it waived none of its rights under the policy he was verifying bis answers in the actions against himself denying his participation in the accident. In an action similar to this (Gordon v. Massachusetts Bonding & Ins. Co., 229 N. Y. 424, 433) Chief Judge Hiscock said: “ So far as I perceive, no one claims that the defendant might not believe its customer and if it did it was its duty to defend as it did. But in doing this it took the precaution consistently and repeatedly to say that if it turned out that the insured was wrong and had harbored a vicious horse which caused the trouble it would stand upon its policy and refuse liability.” We think this case is controlled by the Gordon Case (supra) and other similar cases of which Mason-Henry Press v. Ӕtna Life Ins. Co. (211 N. Y. 489) and Meyers v. Continental Casualty Co. (12 F. [2d] 52) are types. In those cases the insured parties were the plaintiffs. But it has been held that in an action such as this by
It was error for the court to refuse to charge as requested by the defendant “ that the company reserved all its rights under the terms of its policy in defending the actions which were brought against Seides in the original action.” The defendant explicitly reserved its rights in defending Seides and he consented to such defense without objection. Under these circumstances there was no waiver. ' (Gordon v. Massachusetts Bonding & Ins. Co., 229 N. Y. 424, 432; Farrell v. Merchants Mutual Automobile Liability Ins. Co., 203 App. Div. 118.) In the latter case it was held:
“ Undoubtedly with the consent of the assured the company may assume power over the litigation and reserve the right to repudiate liability thereafter, and the consent may be either expressed or inferred from the acquiescence of the assured. * * * If the company were ignorant of the facts upon which the invalidity of the policy depended, the assumption of the defense would not be evidence of a waiver.”
For error in submitting to the jury the question of waiver we think the judgments and orders should be reversed on the law and a new trial granted, with costs to the appellant in one action to abide the event,
Van Kirk, Hinman and Whitmyer, JJ., concur; Davis, J., dissents on the ground that the plaintiff had some beneficial interest in the policy under section 109‘ of the Insurance Law (See Merchants Mutual Automobile Liability Ins. Co. v. Smart, 267 U. S. 126, 129);
Judgment and order in each action reversed on the law and new trial granted, with costs to the appellant in one action to abide the event.