Birnbaum v. Jamestown Mut. Ins. Co.

• Decision Date: 02 December 1948
• Citation: 83 N.E.2d 128,298 N.Y. 305
• Parties: BIRNBAUM v. JAMESTOWN MUT. INS. CO.
• Court: New York Court of Appeals Court of Appeals

298 N.Y. 305

83 N.E.2d 128

BIRNBAUM

v.JAMESTOWN MUT. INS. CO.

Court of Appeals of New York.

Dec. 2, 1948.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Sam Birnbaum against the Jamestown Mutual Insurance Company to recover the amount of a judgment for personal injuries sustained in an automobile accident. An order of the Supreme Court at Special Term entered in Kings County denied a motion by plaintiff for summary judgment and denied a cross motion by the defendant for summary judgment dismissing the complaint. The Appellate Division of the Supreme Court in the second judicial department reversed on the law and the facts the order of the Special Term denying the cross motion of defendant for summary judgment, and granted the motion, 273 App.Div. 903, 77 N.Y.S.2d 428. From a judgment entered March 19, 1948 upon the order of the Appellate Division the plaintiff appeals.

Judgment entered upon the order of the Appellate Division reversed and order of the Special Term affirmed. Gilbert Goldstein and George A. Grabow, both of New York City, and Charles E. Bernstein, of Brooklyn, for appellant.

Thomas A. Clarke, of New York City, for respondent.

CONWAY, Judge.

In September of 1944, one Anthony De Lillo of Yonkers, N. Y., obtained from the defendant an automobile liability policy insuring each of his three automobile trucks for $50,000 liability for bodily injury to ‘each person’ and $100,000 liability for ‘each accident’ and $5,000 property damage for each accident. Thereafter an accident occurred and the defendant has disclaimed liability upon the ground that an indorsement attached to the policy excluded the peril through which plaintiff suffered the loss of his leg. The plaintiff receovered judgment against De Lillo, following a jury verdict, and has now brought this action against the insurer under section 167 of the Insurance Law, Consol. Laws, c. 28, to collect it. The question presented, therefore, involves the extent of the coverage furnished to De Lillo by the contract of insurance as evidenced by the policy and indorsement.

The case reaches us on an appeal from a judgment entered pursuant to an order of the Appellate Division which reversed an order of Special Term denying summary judgment dismissing the complaint and which granted such motion. The reversal is stated in the order to be upon the law and the facts, but may be sustained only if correct as a matter of law.

In order properly to construe the indorsement, and it was based upon that that summary judgment was granted, it is necessary first to examine the policy. Both policy and indorsement were dated upon the same day and issued as a part of one transaction.

Item 1 of the ‘Declarations' in the policy after naming the insured and his address reads: ‘The occupation of the named Insured is Delivery of Coal Hudson Fuel Co.’

Item 3 recites in three columns respectively the ‘Coverages', i.e., ‘Bodily Injury’ and ‘Property Damage,’ the ‘Limits of Liability’, i.e., $50,000/ $100,000 as indicated, supra, and $5,000 for property damage for each accident, and the ‘Premiums', i.e., six separate premiums, one for each automobile for ‘Bodily Injury’ and one for each automobile for ‘Property Damage’.

Item 4 lists the three automobile trucks owned by De Lillo and opposite the description of each truck under a column headed ‘Use’, is the letter ‘B’.

Item 5 of the ‘Declarations' states that ‘B’ indicates ‘Commercial’ use and defines that term as follows:

‘Item 5 The purposes for which the automobile is to be used are:

“A' Pleasure and Business, or ‘B’ Commercial, as indicated under Column headed ‘Use’ Item 4.

(a) The term ‘Pleasure and Business' is defined as personal, pleasure, family and business use. (b) The term ‘Commercial’ is defined as use principally in the business occupation of the named Insured as stated in Item 1, including occasional use for personal, pleasure, family and other business purposes. * * *‘. (Emphasis supplied.)

Attached to the policy is the indorsement, already referred to, which is partly typewritten and partly printed, and is, so far as material here, as follows:

'Truckmen Local

‘(Hauling Exclusively for One Concern)

‘It is agreed that such insurance as is afforded by the Policy for Bodily Injury Liability and for Property Damage Liability applies with respect to the automobile classified as ‘commercial (local truckman)’ provided:

‘1. The regular and frequent use of the automobile is confined to the area within a fifty mile radius of the limits of the city or town where the automobile is principally garaged as stated in the Declarations; and

‘2. No regular or frequent trips are made by the automobile to any location beyond such radius; and

‘3. All commercial automobiles owned and operated by the named Insured are to be used in hauling exclusively for Hudson Fuel Co., Yonkers, N. Y.’ (Emphasis supplied.)

Then follows the printed sentence:

‘All other terms and conditions of this Policy remain unchanged.’ (Emphasis supplied.)

It is undisputed that at the time of the accident the insured's truck was being used to transport limber for one Harry Watson. However, plaintiff contends and has submitted affidavits alleging facts which, if proved, establish that the truck was principally used to transport coal for the Hudson Fuel Company and that the use at the time of the accident was merely ‘occasional use’. In his own affidavit De Lillo stated:

‘On the date of the accident, deponent was requested by a friend, one Harry Watson, to transport some lumber from Yonkers, New York to the Botanical Gardens, Prospect Park, Brooklyn, New York. In compliance with this request, deponent instructed his driver and employee, Archie Spence, to make the delivery of said lumber. * * *’

‘* * * This was the first occasion on which this truck was used for any purpose such as above described. On the day previously, it had been used to haul coal for the Hudson Fuel Co. and for about a year and a half before the accident, it was exclusively used daily for the purpose of hauling coal for the Hudson Fuel Co. However, on the day of the occurrence, there was no coal to be hauled by this truck. * * *’ (Emphasis supplied.)

In his brief plaintiff admits, as alleged in one of defendant's affidavits, that Watson paid De Lillo “$3.00 an hour for 7 hours or a total of $21” on this occasion. If it be proved, therefore, that the use by Watson was an ‘occasional use’ made by De Lillo, the fact of payment indicates that hauling for Watson was an occasional ‘business' purpose within the terms of the policy or a court or jury might so find. In view of this dismissal of plaintiff's complaint, the facts stated therein and in plaintiff's affidavits together with all favorable inferences therefrom, must be taken to be true. Thus, although defendant alleges facts in its affidavits which may indicate that the hauling of lumber for Watson on the day of the accident was not ‘occasional’, we must for the purpose of this appeal assume that on the trial plaintiff can establish the facts which he alleges and asserts.

We do not think that it may be said as a matter of law that the typewritten portion of the indorsement superseded the printed provisions of the policy defining the term ‘Commercial’ as ‘use principally in the business occupation of the named Insured as stated in Item 1, including occasional use for * * *...