127 N.Y.S. 354 | N.Y. App. Div. | 1911
- This is an action on an indemnity policy of insurance' issued' by tbe defendant on tbe 24th day of October, 1906, in and by which ■ it agreed to indemnify tbe plaintiff and Austin,Nichols & Co. “as interest may appear,” for tbe term of twelve months, beginning on the seventeenth day of November that year, among other tilings, against .loss arising from legal liability for damages for personal injuries “resulting from any and every accident caused by any of tbe draught or driving animals Or vehicles owned or used by tbe assured,” not exceeding $5¿000 in respect to any one person. Tbe plaintiff was engaged in tbe general trucking business in. Brooklyn, and owned a number of teams and wagons which were used in that business. Tie was also' connected with Austin,- Nichols & Co., one of tbe assured, engaged in tbe same business in tbe borough of Manhattan.
This action is brought to recover the amount of the judgment which the plaintiff was obliged to pay, and counsel fees and expenses incurred by the plaintiff in conducting the appeal to this court, on the refusal of the defendant to proceed further with the defense of the action after the rendition of the verdict.
Appellant complains that it was not given the affirmative of the case on the trial. It did not admit that it received due and timely notice of the accident. That was a condition precedent to its liability and the burden was on the plaintiff. The fact that the obligation to give such notice is erroneously described as a warranty in the policy does not affect the question.
The only other point necessary to consider on the appeal is whether the plaintiff complied with a provision of the policy with respect to giving notice of accidents to the defendant, and whether the special verdict upon which the general verdict was directed, to the effect that the plaintiff’s foreman was not informed of the accident in the month of May, 1907, or advised of sufficient circumstances connected therewith to require him to report the occurrence as an accident, is sufficiently sustained by the evidence. The provisions of the policy material to the point presented for decision are as follows:
“It is Expressly Warranted and Agreed
“ 1. That upon the occurrence of an accident, whether any claim be made in respect thereof or not, the Assured shall immediately,
As soon as the summons and complaint were served, they were ■ delivered to the defendant, but that was four months and nine days after the accident, and no prior notice of the accident was given to the defendant by the plaintiff. The defendant provided printed blanks to be used in giving 'it notice of accidents and furnished a sufficient number of these blanks to the plaintiff. At the heading of these blanks was printed a statement' that all accidents, however slight, must be reported immediately without waiting for information in detail; and to the knowledge and with the consent of the plaintiff, the defendant posted printed notices in the plaintiff’s office at the barn, where the drivers were accustomed to assemble, to the same effect for the information of the teamsters. It does not appear, however, that any blank was furnished to the driver who-met with the accident or' that his attention was drawn to this notice, or that he was directed to report any accident that he might have. In Woolverton v. Fidelity & Casualty Co. (190 N. Y. 41) the Court of Appeals, in construing a similar indemnity policy of insurance, held that the contract imposed a duty on the assured of exercising reasonable diligence to acquire information with respect to accidents, and that this requires him to so regulate his business “ that he may be apprised with reasonable celerity of any accident that may occur in its conduct,” but held, however, that this duty was not absolute and only required the exercise of reasonable care to acquire information, and that the duty to give the notice arises when the assured is apprised of the accident, or would be apprised thereof
The accident occurred on .Thursday. Brennan informed the plaintiff next day that one of their drivers had been arrested. Brennan testified that when Lewis returned to the office the following Monday he inquired as follows: “ I asked him if he had had an accident, or what kind of trouble he had been in, and where he was for those three or four days, and he said that he was in a little trouble, and that he had gotten put of it. And I put the question to him: ‘ Did you have any accident that requires reporting,’ and he said-£ Ho.’” At another point in his testimony he says Lewis did not deny that he had an accident. We regard this testimony as
It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J., McLaughlin and Scott, JJ., concurred; Dowling, J., dissented.
Judgment and order reversed,-new trial ordered, costs to appellant to abide event.