198 A.D. 470 | N.Y. App. Div. | 1921
This plaintiff recovered a judgment in an action which he brought against Thomas F. Slavin for injuries which he suffered by being run over by an automobile in the city_of
At the close of the evidence the defendant moved for a dismissal of the complaint on the ground that the policy of insurance introduced in evidence and depended upon by the plaintiff for relief is not contemplated in the pleadings, nor was it mentioned or alleged, nor was any proper foundation shown for it, either by way of pleading or of the testimony in this action; that the policy of insurance was issued to Thomas F. Slavin & Son, a copartnership, and this complaint is based upon a judgment recovered against Thomas F. Slavin personally; that the basis of this action, in addition to that already mentioned, is an execution returned unsatisfied, issued against Thomas F. Slavin and not against Thomas F. Slavin & Son, the party insured by the policy introduced in evidence in this action; that the plaintiff has not proved the cause of action alleged in the complaint, or any cause of action. The defendant also excepted to the ruling of the.court permitting the plaintiff to amend his complaint, on the ground that it is not an amendment, but rather a substitution of a new and entirely different cause of action.
The court allowed the complaint to be amended, as before stated, but dismissed the complaint.
The copartnership of Thomas F. Slavin & Son consisted of Thomas F. Slavin and his son Leo Slavin. The injuries to this plaintiff were caused by an automobile belonging to the copartnership and driven by an employee of the copartnership, from which facts the fair inference is that it was at the time of the injuries being operated for the copartnership and in its business. If the copartnership is liable, each member of the copartnership is individually hable and an action may be maintained against a member of the copartnership as joint tort feasor. (Matter of Peck, 206 N. Y. 55.) An indemnity policy of insurance issued to the copartnership covers the member of the copartnership in respect to his individual liability for a tort of the copartnership, but it does not cover him for a tort committed by him or his employee in his private
The terms of the insurance contract are not ambiguous and the construction thereof is for the court This' insurance contract is the so-called “ accident insurance policy,” the intent and purpose of which was to indemnify the insured against demands made upon it for injuries received by reason of the alleged negligence. It was not in the form of a guaranty or insurance first to another party, who might be injured, that his demand should be paid, but the policy contained a provision which defined the conditions under which such other party could have a cause of action. This provision in the contract (under which this action is sought to .be maintained) is as follows: “ The Insolvency or Bankruptcy of the Insured hereunder shall not release the Company from the payment of damages for injuries sustained or loss occasioned during the life of this Policy, and in case execution against the Insured is returned unsatisfied in an action brought by the injured * * * because of such insolvency or bankruptcy, then an action may be maintained by the injured person * * * against this Company under the terms of this Policy, for the amount of the judgment in said action not exceeding the amount of this Policy.”
An execution against one copartner may be levied upon the interest of that copartner in the copartnership property, but not upon the copartnership property as a whole. Under a levy upon one copartner’s interest and a sale thereof, the purchaser takes the property subject to the rights of copartners
We do not think it necessary to present or discuss the other questions argued.
We conclude, therefore, that the plaintiff did not establish facts sufficient to constitute a cause of action, and that the order and judgment appealed from should be affirmed, with costs.
Cochrane, H. T. Kellogg and Kiley, JJ., concur; John M. Kellogg, P. J., voted for modification with a memorandum.
The insurance company owed loyalty and good faith to the assured, and when it undertook, under its policy, to defend the action in Slavin’s behalf, he alone being sued, it should have raised any objection which was necessary to protect the assured as well as itself. The accident was not caused by the negligence of either partner, but by the negligence of an employee of the firm. The rule of respondeat superior makes the firm liable for the accident. The insurance company, in defending the action brought against Slavin, owed him and the firm the duty of insisting that the action should proceed against the firm, but it had the right at its election to waive that point and assume that the action against him was in fact an action against the firm, and having waived it by not raising the question (Code Civ. Proc. § 499), the judgment should have the same force and effect against it as if the
The case should not be disposed of on the point raised in the prevailing opinion, but should turn upon the question whether the defendant is freed from liability because the driver of the car was under the age of eighteen years. The policy provides: “ This policy does not cover any accident to, or caused by any child employed by the assured contrary to law, or to any child employed under sixteen (16) years of age where no statute restricts the age of employment.” The only evidence as to the cause of the accident was that of the plaintiff when he says that he was run down by the automobile in question. The boy was driving it; this does not necessarily show whether or not the accident was caused by him; there may have been a defect in the automobile or there may have been other causes. The interest of justice requires that there be a new trial so that the facts may fully appear. Upon the trial it was proved, without objection, that the former action was defended and the answer interposed by the defendant’s
The judgment and order should be modified by striking therefrom the provision that the complaint is dismissed upon the merits and that the defendant recover costs of the plaintiff, and in lieu thereof inserting as follows: " From the evidence it cannot be determined whether or not the defendant is liable, and in the interest of justice a new trial is ordered, with costs, to the appellant to abide the event,” and as modified affirmed, with costs to the appellant to abide the event.
Judgment and order affirmed, with costs.