158 Misc. 758 | N.Y. Sup. Ct. | 1935
On November 3, 1930, plaintiff was the owner of a Whippet automobile and of an effective policy of public liability insurance issued by defendant. This policy was in the usual form and was issued to protect him from certain liabilities that might be imposed upon hipa by law for damages arising out of personal injuries accidentally sustained by any person as a result of his ownership, maintenance, operation or use of his said automobile. The plaintiff’s claim is that during the early evening of said day one Hubert M. Durking, a young man about his own age, his long-time friend and his then fellow-employee, took this automobile, without plaintiff’s knowledge as to its actual taking,
On the 27th day of March, 1931, or so it appears on my examination of the exhibits, the plaintiff began a prior action against Lurking, and the latter retained an attorney who was a friend of the family, one Frank Morehouse, to defend him. It appears that this action was never brought to issue, and for some reason it was discontinued by stipulation. This appears to have been on Lecember 5, 1931, although the stipulation carries no formally stated date. Thereafter and on or about the 16th day of Lecember, 1931, plaintiff began another action against Lurking, in negligence, venue laid in Albany county. (In the exhibits submitted it appears that counsel omitted the summons and complaint in the basic action.) Lurking defaulted in appearance and at an inquest at Trial Term in Albany county, plaintiff secured an award of $18,000 for damages resulting in a judgment in his favor against Lurking for $18,070.50, perfected and docketed in Albany county on March 28, 1932. The judgment remaining unpaid, this action was then brought by the plaintiff, the named assured in the aforesaid policy of public liability, to recover the limit
The pending motion to set that verdict aside as against the weight of evidence directs attention to issues of fact not commonly present in such an action. The defense was that the accident as proven by the plaintiff in his action against Durking and as testified to upon the trial herein never happened at all; that the bodily injuries plaintiff sustained on the night in question were not proximately caused by the operation of his own automobile, or, if they were, they were sustained at such an altogether different time and place and under circumstances so utterly different as to constitute the rendered judgment wholly procured by false and perjured testimony and, therefore, a fraud and imposition upon the court. This issue was allowed for trial. The question was whether the accident happened substantially as related by the plaintiff. If so, it was held that he could recover at the trial herein. The motion to dismiss on the ground that the provisions of the policy did not permit the action was reserved. No retrial of the issue of Durking’s liability for negligence in such case was permitted — no such collateral attack on the judgment being allowed. But, I held that if the accident as claimed by the plaintiff on both trials never happened and he sustained his injuries ■under the circumstances as shown by the defendant’s proofs, as to which the defendant held the burden of proof, then, that as regards this action there could be no recovery — that such an attack on the judgment was not prohibited by the general rule.
It is the jury’s decision upon this issue that here concerns me. As regards this, the jury had, on the one hand, only the testimony of plaintiff. It was weak, uncertain and, to any impartial observer, I feel constrained to hold it was improbable and rather unconvincing. In support of this appraisal of his testimony, I cite the following:
1. The casualness, uncertainty and indefiniteness of the permission given to Durking to take the car. Thus is wholly contained in his direct testimony, as follows: “ He says to me, ‘ Let’s go to a dance to-night.’ I said, ‘ Where is the dance?’ He says, ‘ To
“ By the Court: Q. Let me get this straight. When you were over there getting cigarettes, that is the time your car disappeared? A. Yes, sir. Q. When you came out and saw your car was gone? A. Yes. Q. And you didn’t know of your own knowledge who had taken it, did you? A. I did. Q. You didn’t see it taken? A. No, I didn’t see it taken. Q. Did you know when you went in after the cigarettes that Durking was going to take your car? A. No, I didn’t know he was going to take it, but I told him in the afternoon he could take it. Q. You told him that in the afternoon? A. Yes, sir. Q. But you didn’t know that he was about to take your car while you were in the store after the cigarettes, did you? A. No, I didn’t. Q. So when you came out you didn’t know who had taken it? A. No. Q. But you suspected that it was Durking? A. Yes. Q. That he had finally accepted the offer that you had given him in the afternoon? A. Yes.”
2. The improbability of his description of the actual taking by Durking. He testified that he, Durking, and another rode from the construction camp to Speculator after their evening meal; that he went there to get a haircut; that together they entered the barber shop; that he, plaintiff was first served and then left and went across the street to the tobacco store; that his car was then parked on this street in front of both places; that he stayed in the tobacco store, at one time he said half an hour and at another time he put it as short as five or ten minutes; that when he came out of the store his car was gone, and so he started to walk back to the construction camp, although on his way back his own automobile overtook and hit him. Wellstown appears to have later been identified as Wells, and it is situated in a direction from Speculator opposite to the course from Speculator to the construction camp. The improbabilities here seem obvious.
3. The categorical method he employed, even though without objection, to identify his own automobile as the one that struck him down.
4. Another blemish to his testimony was his persistence in placing the construction camp one-quarter or a half mile from Speculator
5. His unsatisfactory and improbable explanation of his signed statement which he gave to a representative of the defendant, as well as the time and circumstances of the taking of said statement and his failure to corroborate his theory and claims respecting it when, for ought that appears, corroboration would have been easy for him to furnish.
6. His denial that he knew that Durking had no license to operate his automobile. His subsequent admission that he had heard of it and then thereafter his recantation in that regard.
7. His gross uncertainty regarding the movements of Durking after, as he says, “ We both entered the barber shop.” On one occasion he said that Durking was still there; on another occasion he said that he was not there, and, finally, that he did not know.
The foregoing and many other instances of uncertainty and equivocation throughout his testimony prompt my appraisal thereof as herein first stated.
As against this testimony, we have, first, Durking, who testified against his own interest. Second, the keeper of the jail at Lake Pleasant, one Pelcher, who certainly was disinterested, and, because of the subject-matter of the testimony he gave, it would seem that if it was not, technically, against his interest, certainly he testified in regard to certain matters when he would have preferred to have kept silent. Third, Penney, the keeper of the gas station at Speculator, a disinterested witness, who testified that he saw both Durking and plaintiff in the latter’s automobile as late as nine-thirty at Speculator and that they were in a somewhat intoxicated condition. Plaintiff placed the accident at not later than eight-thirty p. m. Fourth, one Knapp, also a disinterested witness, testified that he saw plaintiff and Durking in Slack’s boat livery at about eight-thirty; that they were put out for causing a disturbance; that later, between nine-thirty and ten he was in Call’s store at Lake Pleasant when Durking came in and reported the accident. If these witnesses are to be believed, then the story of the misadventure is, in substance, as follows: That the plaintiff, Durking, and another young man, who has disappeared, were in Speculator as late as eight-thirty in the evening; that they were intoxicated;
None of the defendant’s witnesses were impeached, and it is quite inconceivable to me how the equivocally told and improbable story of the plaintiff could have been accepted, wholly uncorroborated as it was, when, it seems, some corroboration would have been easy if it was true, as against the more probable version and history of plaintiff’s misfortune as related by the defendant’s witnesses, all of whom were either disinterested or testified against their interest. To my mind, no reasonable man, acting impartially, could conscientiously have believed plaintiff’s story, opposed as it was by this other proof. It is, therefore, evident to me that for some reason the jury did not give this question sufficient impartial consideration. I cannot but believe that the fact that there had been a prior default in the original action wherein plaintiff claimed the defendant company should have defended, and the fact that the action was directly against such company, together with the admirable forensic ability displayed by plaintiff’s trial counsel, that all were such as to cause the jury to fail to use requisite care in weighing the evidence in accordance with the prescribed rules.
As regards the question as to whether the action is allowable on plaintiff’s proofs, I am of the opinion that it is not.
View it any way we may, the facts remain that plaintiff’s policy, his contract with defendant, was one of indemnification for liability, and that he was a privy thereto for such expressly declared purpose. This contract is the basis of the present action. He sues upon it, not for -indemnification, but, divorcing himself as a privy thereto, he sues upon it to be compensated for injuries caused by his licensee, who, by his, the plaintiff’s, act, procured the instrument and used it and thereby caused him harm. True, the “ omnibus cover ” protected Durking, plaintiff’s licensee, from liability to any person, but it did so only while he was operating plaintiff’s automobile with the latter’s consent. This protection was thus extended not
Motion to set aside verdict granted.