Aetna Ins. Co. of Hartford, Conn. v. Millard

• Decision Date: 06 May 1966
• Parties: AETNA INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellant, v. Stuart K. MILLARD et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 588

269 N.Y.S.2d 588

25 A.D.2d 341

AETNA INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellant, v. Stuart K. MILLARD et al., Respondents.

Supreme Court, Appellate Division, Third Department.

May 6, 1966.

Kramer, Wales & Robinson, Binghamton (Philip J. Kramer, Binghamton, of counsel), for plaintiff-appellant.

Hackett, Harbachuk, Thomas & Crawford, Binghamton, for defendant-respondent Stuart K. Millard.

Willsey, Meacher, Hummer, Madigan & Buckley, Binghamton (Jefferson F. Meagher, Binghamton, of counsel), for defendant-respondents Andrew and Helen Malenich.

Coughlin, Dermody, Ingalls & Guy, Binghamton (George G. Coughlin, Binghamton, of counsel), for defendants-respondents Douglas Geiser and The Motor Vehicle Accident Indemnification Corporation.

Matthew J. Vitanza, Binghamton, for defendant-respondent Douglas Geiser.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, TAYLOR and AULISI, JJ.

HERLIHY, Justice.

The appellant instituted this proceeding seeking a declaratory judgment that it was not obligated to provide coverage for its insured on the ground that it was not given timely notice of the accident or of subsequent legal proceedings.

The court found the testimony of Miss Combs, an insurance broker, credible. The general rule is that the credibility of witnesses is for the trier of the facts and there appears to be nothing in the record which would mandate an exception in this case. The appellant claims here that her testimony is not credible because of confusion and/or contradiction in certain respects, but this is no more than is often the case in regard to testimony as to particular details. Miss Combs testified that she typed three report forms based on the information given her by the insured two days after the accident and that one of these forms was placed in an envelope correctly addressed to the appellant. On cross-examination she testified that she put the addressed envelope on the shelf where she regularly placed outgoing mail. She then stated that when everyone there is busy, the post office mailman has taken the mail from this shelf, and that this had been the procedure as to mailing letters for some 15 years. Miss Combs admitted that some third party could have taken the letter from the shelf and she could not remember specifically whether she had handed the envelopes to the mailman or he had taken them from the shelf.

The appellant contends that the above testimony of Miss Combs is insufficient as proof of mailing, but it appears that the court could, as it did, draw a reasonable inference that it was duly mailed and therefore received. The letter in question was shown to have followed an ordinary and established course of business to the custody of the Post Office. Since the post office mailman received custody of the mail at Miss Combs' premises either by being handed the same or taking it from its usual place, there is no gap between the routine course of business and the Post Office. (cf. Gardam & Son v. Batterson, 198 N.Y. 175, 91 N.E. 371.)

It is a well established rule that letters properly addressed, stamped and mailed are presumed received by the addressee even though the addressee denies receipt of the same. (cf. Trust & Guarantee Co. v. Barnhardt, 270 N.Y. 350, 352, 355, 1 N.E.2d 459, 460, 461.) In the instant case the appellant claims that since it offered proof that it did not receive the letter and further, that another letter to a third person allegedly mailed on the same day and in the same manner...