175 A.D. 77 | N.Y. App. Div. | 1916
This is an action on a policy of insurance issued by the defendant to the plaintiff on the 9th day of October, 1912, whereby, in consideration of the annual premiums, the defendant insured him against accidents upon and adjacent to his apartment house known as the Chatsworth apartments, extending from Seventy-second street, opposite Riverside drive, to Seventy-first street, for the period of three years. It is conceded that the premiums were paid by the assured in accordance with the terms of the policy, and that one Henry Didier was injured on the premises on the 3d day of November, 1913, from which injuries he died on the twenty-second day of March thereafter; that a claim for his death through the alleged negligence of employees of the plaintiff was made by his administrator against the plaintiff which was compromised by the plaintiff by the payment of $4,000; that such payment was made pursuant to a stipulation between the attorneys for the parties hereto by which the settlement of the claim was to be deemed the same as if a judgment for the amount paid had been recovered by the administrator against the plaintiff. The single question presented by the appeal is whether the plaintiff performed his duty under the contract to give the defendant immediate notice of the accident.
By the terms of the policy the defendant agreed, among.
The premises were in charge of one Moore as superintendent and he was furnished with blanks for reporting accidents to the defendant, and the -duty was imposed upon him by the plaintiff to report accidents to the defendant in accordance with the policy of insurance. Upon the 3d day of November, 1913,
The court, in submitting the case to the jury, instructed them that it was the plaintiff’s duty to give immediate notice of the accident to the insurance company; but that it was not the plaintiff’s duty to report a mere accident unless it involved, or there was reason to believe it involved, personal injuries to some one on the premises. The learned counsel for the appellant contends that the instructions given to the jury logically required the direction of a verdict in favor of the defendant, for the reason that the' plaintiff, through Moore, his superintendent, was aware of the accident and of the circumstances attending it the day it occurred, even if the information which Moore received led him to believe that Didier was not injured.
If an accident occurs the only duty devolving on the assured under such a policy is to give the insurance company notice when he receives notice or in the exercise of reasonable care would have received notice thereof. (Woolverton v. Fidelity & Casualty Co., 190 N. Y. 41; Trippe v. Provident Fund Society, 140 id. 23.) It is, however, the duty of the assured under such a policy, as a condition precedent to the liability of the company, to give it immediate notice of an accident, of which he has notice or should have known, involving a possible loss under the insurance policy, and of the facts he knows relating thereto, "in order that it may investigate the same and protect its interest. (Utica Sanitary Milk Company v. Casualty Company of America, 210 N. Y. 399; National Construction Co. v. Travellers' Ins. Co., 116 Mass. 121; Hatch v.
Clarke, P. J., McLaughlin, Dowling and Page, JJ., concurred.
Judgment and order reversed, with costs, and the complaint dismissed, with costs.