Woolverton v. Fidelity & Casualty Co.

62 N.Y.S. 1044 | N.Y. App. Div. | 1900

Goodrich, P. J.:

The defendant issued to the corporation, of which the plaintiff was president at the times in question, its policy of insurance dated Angust í, 1895, against loss resulting from , any accident caused directly by the horses or vehicles of the corporation used in its business of transporting goods. The policy contained the following clauses: 2. The Assured, upon the occurrence of an accident, and also upon receiving information of a claim on account of an accident, shall give immediate notice in writing of such accident or claim, with full particulars, to the- Company, at its office in Hew York City, or to the agent, if any, who shall have countersigned tliis policy.”

On Thursday, September 5, 1895, Hannon, an employee of the transfer company, while driving a truck belonging to that conrpany and used for the transportation of goods, ran into and injured a boy named Mills, who was standing on the step of an open trolley car. For this injury the boy recovered a judgment against the transfer company. The latter paid the judgment and then brought this ■ action in the name of its president to recover the amount of the judgment and the expenses incurred in the defense. The/defendant, among other defenses, alleged that the plaintiff had failed to comply with the provisions of the clause above set out, by neglecting to notify the defendant of the accident until October fourth. The court dismissed the complaint at the close of the plaintiff’s evidence, on the ground that the failure of the transfer company to notify the defendant of the accident “ makes the policy inoperative; ” and from the judgment entered thereon this appeal is taken.

The judgment against the transfer company, the payment of the same and the allegation in the present complaint, that the boy wag injured by one of the transfer company’s trucks, conclude that company as to the fact that the injury to the boy was caused by its driver, Hannon, but this is not the fact upon which our decision must rest. The only question is whether the .transfer company had notice before October second of an accident caused by Hannon, sufficient to set in operation the condition of the clause. The record, shows not only doubt in Hannon’s mind at the time of the accident, as to whether or not his wagon caused the injury, but apparently a belief on his part and a statement by him to his superior Sparks, soon afterward, that such was not the fact. He testified that he did not report the accident, as the rules of his company required, although he admitted that lie knew of an injury to the hoy.

On the following Monday, Septeinber ninth, a police officer called on Sparks, who had general supervision of the company’s trucks, and informed him that one of his drivers had caused an accident and that he wanted to arrest such driver. He was told that Hannon would be at the stable at six o’clock, but did not return. That evening, however, Sparks inquired of Hannon as to the accident, and the latter denied that he had caused it. It is not necessary for us to decide whether or not the transfer company’s driver had such knowledge or notice of an accident caused by him at the time it occurred as to require notice of it to be given by him to his superior, for the fact clearly appears that on September ninth Sparks had notice that some accident had happened and that it was claimed to have been caused by Hannon. We may consider, therefore, only whether on the last-named day the transfer company had such knowledge or notice as to require it to notify the defendant of the accident.

Sparks gave no notice to the officers of the transfer company until October second, when Draper, the general manager, sent tollina. for information on the subject. This was caused by the fact that the attorney for Mills had called upon'Mr. Draper and stated that he intended to sue the transfer company on account of the accident. Here was a period of twenty-four days from the time Sparks had notice that some one claimed that the company’s truck had caused an accident, and we are called upon to decide whether, as matter of law, the failure of that company, under the circumstances, to give immediate notice to the defendant company, that is, on or shortly after September ninth, precluded a recovery on the policy.

No one can doubt that the intent of the clause above quoted was to enable the defendant to make prompt inquiries as to the circumstances of an accident upon which an action against one of its policyholders was likely to be instituted, in order that it might prepare for the defense of the same. This is a reasonable rule and must be reasonably construed. If there be any doubt the rule must be construed more strongly against the defendant. (Trippe v. P. F. Society, 140 N. Y. 23.) It was not the happening of an accident for which the transfer company was afterward .found to be liable which devolved upon it the duty of notifying the defendant- of the <e occurrence of an accident,” for, as the policy requires a reasonable construction, it would be absurd to hold that the mere happening of an accident of which the transfer company had neither knowledge or notice would set in operation the clause. Superadded to the accident must be knowledge or notice sufficient to put upon inquiry the transfer company, and, under the evidence, this would seem to have been not matter of law but question .of fact.

The cases cited by respondent’s counsel as to notice of a fire to a fire insurance company differ somewhat from the case at bar. The . fact of a fire is a matter concerning which there can he little doubt, and yet several of the cases cited are authority for saying that there may be reasonable excuses for failure to give notice of such fact. In Brown v. London Assurance Corporation (40 Hun, 101), where there was a delay of forty-eight days, the court said : “ It is unreasonable to say that a delay of forty-eight days, in nowise excused, is either a literal or substantial compliance with the condition ” and several cases are there referred to,' holding that delay in giving notice may be explained.

There was a notice posted in the stable of the company reading: “ Drivers must immediately on arrival at the stable make full and complete report of any accident that may have occurred, together with names of witnesses.” Even assuming that Hannon knew of this regulation, and it may be observed that there is no proof that he did, the evidence shows that he did not believe that he had caused the accident, and when, on September ninth, Sparks asked him about it, he admitted that he knew an accident had .occurred, but denied that he had caused it. This and. the failure of the police officer to return to arrest Hannon might well have been found sufficient to cause Sparks to believe that no accident had been occasioned by Hannon ; and it is of that time, and not of October second, when a lawyer made a demand on the transfer company, in behalf of the boy Mills, that the necessity for that-company to- give notice to the defendant company must be predicated. . On the evidence, we do not think this was a, question of law. The jury might have found that neither Hannon nor Sparks supposed that- the injury was caused by the former, or they might have found that both received sufficient notice of it to require a notice to the defendant. This was a pure question of fact, and the jury should have been required to decide whether or not there was reasonable ground for the transfer company to believe that an accident within the policy had happened.

It should be' observed that the clause here discussed has two ' requirements of immediate notice, one on the occurrence of an accident and the other when a claim is made on account thereof. The latter requirement seems to have been met promptly.

These views render unnecessary a consideration of the other questions raised by the appeal and require the reversal of the judgment.

All concurred.

Judgment reversed, new trial granted, costs to abide the event.