193 A.D. 646 | N.Y. App. Div. | 1920
Lead Opinion
The plaintiff in this action has its principal place of business at Bangor, Penobscot county, State of Maine. It is a corporation organized and existing under the laws of that State. Defendant is an accident insurance company organized and existing under the laws of the State of Michigan. Both corporations are authorized to do business in this State. John G. Utterback was president of the plaintiff and resided at Bangor, Maine. Edward E. Piper, it may be inferred from the evidence, lived in Penobscot county, Maine. Pearl G. Willey and Caroline T. Willey resided at Camden, in Knox county,
The case was ably tried and carefully and ably considered by the trial judge, as evidenced by his opinion, and his conclusion should be sustained.
The judgment should be affirmed, with costs.
All concur, except John M. Kellogg, P. J., dissenting, with a memorandum.
Dissenting Opinion
When the plaintiff induced the defendant to employ the plaintiff’s attorney and join with it in defending any actions arising from the accident, and the attorney Snow knew of that understanding and was representing both parties, the parties, in a way, united their interests in such a way that absolute good faith was required from one to the other. Each was deprived of the independent right of acting in his own behalf without the concurrence of the other and the attorney was precluded from favoring one side as against the other. By the settlement and release the plaintiff, the attorney Snow and the others conspired to beat the insurance companies and help themselves. It is not just or fair that the plaintiff, having been untrue to the agreement and false to its implied promise to the defendant, should now recover. As I understand, the grievance of the defendant is not that there was a-fraud in not putting the release in evidence, but that the release was the result of a fraud by the plaintiff and the defendant’s attorney by which the defendant’s release rights were impaired. The conspiracy which resulted in the release had as its basis to defeat both insurance companies and to compensate both parties to the accident, the negligent party and the innocent. party as well. I. favor a reversal.
Judgment affirmed, with costs.