152 N.Y.S. 92 | N.Y. App. Div. | 1915
The plaintiff employed a servant under the age of sixteen years. Upon the sole ground that the employment was illegal, she obtained a judgment against it for personal injury, which plaintiff paid. Plaintiff now seeks to recover the same from the defendant, who had insured the plaintiff against loss by reason of the liability imposed by law for damages on account of such injuries, except those “ caused or sustained by any person employed by the Assured in violation of law as to age.” The plaintiff urges that defendant, by assuming the control of the action and continuing it after information that the servant at the time of injury was under the age of sixteen, waived the benefit of the exception. In the policy of insurance the defendant stipulated to defend “suits alleging such injuries and demanding damages therefor although such suits, allegations or demands are wholly groundless, false or fraudulent.” That agreement did not apply to illegal hiring. But how, without trial and judicial ascertainment of the facts, could the fact of age be known ? It is alleged in the complaint, but the allegation may be untrue, and if untrue the insurer must defend. Investigation showed that the servant stated to this defendant’s agent that she was under sixteen and that she claimed to have so stated when employed. But the plaintiff’s general manager assured defendant’s investigator that she had represented herself to be over sixteen years of age. Such attitude he maintained. The defendant could have refused to defend. But that would be at the peril of proving that the case fell within the exception. The alternative was to assume control and to defend, and, by notice to the assured, disclaim liability if the case proved within the exception. The policy was alive and demanded fulfillment; the exception was inoperative unless the actual facts proven brought the case within it. It is insisted
The judgment and order should be affirmed, with costs.
Present—Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.
Judgment and order unanimously affirmed, with costs.