165 N.E. 293 | NY | 1929
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *284
Plaintiffs recovered judgments against Gainor upon claims for personal injuries. Execution being returned unsatisfied, they brought these actions under Insurance Law, §
The defendant is an insurance company with its principal office in New York city and with a branch office in Troy where Gainor, the insured, resided. One of the conditions of its policy is that "upon the occurrence of any accident covered" thereby, "the insured shall give immediate written notice thereof to the company at its head office, or to the agent who has countersigned this policy," and forward any process or pleadings afterwards received. Insurance Law, §
The insurer did not receive immediate written notice of the accident, which occurred on October 16, 1925. There is testimony by the insured, however, that a day *285 or two later, he sent a message over the telephone to the local agent in Troy, stating what had happened. The message was to the effect that a collision had occurred at a stated place, but that no one apparently had been injured. To this the agent made answer, it is said, that he would take care of the matter, and in substance that nothing more was necessary. The agent was dead when the testimony was given. Against it must be set, however, a written admission by the insured that he had failed to give notice, and this in the belief that no one had been injured. His explanation of the admission is that he signed without reading. The credit to be given to his testimony was matter for the jury.
On December 2, 1925, actions for damages were begun by the victims of the accident, and the papers served on the insured were sent on to the insurer. On December 5 the defendant wrote that it would investigate the circumstances surrounding the accident with the understanding that neither such investigation nor any other act in connection with the defense should be deemed a waiver of any of the provisions of the policy or of any of its rights thereunder. On December 14 it wrote: "We will put in the answers of these cases, subject to a reservation of our rights," and "if upon investigating we find that we have been prejudiced by the delayed notice we will then be obliged to return the suit papers to you." To this the insured made no objection or response. The insurer served the answers, and noticed the actions for two successive terms of court. In the meantime it investigated the claims, and found that there were witnesses to the collision (though the written statement by the insured was to the effect that there were none) and also that injuries had resulted (though again the written statement by the insured was to the contrary). Thereupon the insurer withdrew from the defense. In its letter to the insured, dated February 8, 1926, it disclaims all liability to defend the actions or *286 to satisfy any recovery, for the reason that there had been a failure to make prompt report of the accident in accordance with the policy. At the same time the pleadings and other papers were returned with a request that the insured retain some other counsel. This he failed to do though afforded ample opportunity, and three months later there were judgments by default.
The trial judge left it to the jury to say whether notice of the accident had been given over the telephone, and instructed them in effect that if given as stated, they might find it to be adequate. In this there was no error. The provision of the statute (Insurance Law, §
The trial judge did not limit the jury, however, to the single question of the transmission of an oral notice. He told them that even though notice had been omitted altogether, a waiver of that condition might be inferred from the conduct of the insurer in serving answers to the complaints and thus assuming the defense. In that rul ng there was error. No doubt a waiver may often be inferred from the assumption of the defense of such a claim without reservations or conditions. Here reservations or conditions were imposed by the insurer, and assented to by the insured through tacit acquiescence (Hermance v. Globe Ind.Co.,
In each action, the judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted with costs to abide the event.
POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Judgments reversed, etc. *288