Ar-Glen Corp. v. Travelers Ins. Co.

• Decision Date: 03 February 1960
• Docket Number: AR-GLEN
• Citation: 195 N.Y.S.2d 946,22 Misc.2d 888
• Parties: CORP., Sam Gruber and Joseph Gruber, Plaintiffs, v. TRAVELERS INSURANCE CO. and George Bostwick, Defendants.
• Court: New York Supreme Court

Page 946

195 N.Y.S.2d 946

22 Misc.2d 888

AR-GLEN CORP., Sam Gruber and Joseph Gruber, Plaintiffs, v. TRAVELERS INSURANCE CO. and George Bostwick, Defendants.

Supreme Court, Monroe County.

Feb. 3, 1960.

Nier, Doyle & Nier, Rochester, George J. Nier, Rochester, of counsel, for plaintiffs.

Nixon, Hargrave, Devans & Dey, Rochester, Casper v. Baltensperger, Rochester, to counsel, for defendants.

G. ROBERT WITMER, Justice.

Defendant Travelers Insurance Company issued the usual automobile accident insurance policy for the year ending in August, 1955 to defendant George Bostwick, covering the latter's tractor for use in connection with hauling trailers. Bostwick used the tractor on April 8 and 9, 1955 to haul a trailer, owned by one Beaney and loaded with bananas, from New York City to Syracuse, New York. With respect to said tractor-trailer unit, under section 59-a of the Vehicle and Traffic Law, Bostwick and Beaney became 'jointly liable and responsible for * * * injuries to person or property resulting from negligence in operation by any person legally using or operating the same'. Since defendant Travelers Insurance Company is the principal defendant in this action, for convenience it will hereinafter be referred to as the defendant, and defendant Bostwick will simply be referred to as 'Bostwick'.

It appears that plaintiffs had undertaken to secure the safe transportation of said bananas, and they employed Bostwick to carry them to Syracuse. To protect the bananas from cold plaintiffs placed in the rear of the trailer a propane gas heater and instructed Bostwick to check it from time to time to see that the temperature was right. This Bostwick undertook to do. During the trip to Syracuse, at one point Bostwick opened the rear doors of the trailer to inspect the temperature and a serious explosion occurred, injuring him as well as nearby property and the trailer. Within four days thereafter Bostwick notified defendant of the occurrence. The latter made some investigation, and later paid some property claims arising out of damages caused in the area by the explosion.

In August, 1955 Bostwick instituted an action against the plaintiffs for his personal injuries. He alleged therein that these plaintiffs were negligent in the manner in which they installed the propane gas heater in the trailer, including failure to provide a vent, knowing that the gas flame of the heater would exhaust the oxygen in the trailer and expire, and that thus gas might escape dangerously and cause resulting damage.

On August 27, 1956 plaintiffs, through their insurance carrier, The Hartford Accident and Indemnity Co., orally asked defendant Travelers Insurance Company to join it in the defense of said action and sent defendant a copy of the complaint in the action. This was the first notice that defendant Travelers Insurance Company had of the institution of said action. Defendant declined to join in such defense. Plaintiffs then instituted this action for declaratory judgment. On November 5, 1957, Mr. Justice Frederic T. Henry of this court denied defendant's motion for summary judgment herein. 8 Misc.2d 589, 167 N.Y.S.2d 332. Thereafter Bostwick's action against plaintiffs was tried before a jury, and judgment was entered upon a verdict in his favor in the sum of $3,457.90 on April 15, 1958 and has been paid by or on behalf of the plaintiffs.

The complaint in this declaratory judgment action was then amended, a new answer was interposed, and this case was tried before this court.

Defendant contends that it was not liable to the plaintiffs herein (1) by reason of their failure to comply with the policy provision requiring written notice by or on behalf of the insured to the defendant as soon as practicable, (2) by reason of their failure to forward immediately to the defendant the summons or other process received by them when the action was institute and (3) because the damage arose by reason of plaintiffs' negligence in installing the heater in the trailer and not through any 'negligence in operation by any person legally using or operating the same', as provided in section 59-a of the Vehicle and Traffic Law.

Condition No. 1 of defendant's policy requires that 'when an accident occurs written notice shall be given by or on behalf of insured to the company * * * as soon as practicable.' It is much too late for plaintiffs to argue, as they do, that subdivision 1(c) of section 167 of the Insurance Law vitiates this provision of the policy requiring written notice of accident from the insured to the company. Deso v. London & Lancashire Indem. Co., 3 N.Y.2d 127, 129, 164 N.Y.S.2d 689, 690; Bazar v. Great American Indem. Co., 306 N.Y. 481, 487, 119 N.E.2d 346, 347, 349. Hence the court must determine whether written notice was given to the defendant 'by or on behalf of the...