Devitt v. Cont'l Cas. Co.
| Decision Date | 14 January 1936 |
| Citation | 199 N.E. 765,269 N.Y. 474 |
| Parties | DEVITT v. CONTINENTAL CASUALTY CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Kenneth N. Devitt against the Continental Casualty Company. The Trial Term without a jury entered judgment dismissing the complaint (154 Misc. 603, 277 N.Y.S. 844). The judgment of the Trial Term was reversed on the law by the Appellate Division (245 App.Div. 115, 281 N.Y.S. 336), which directed judgment for plaintiff, and from the judgment entered in plaintiff's favor, defendant appeals.
Judgment of Appellate Division reversed, and that of Trial Term affirmed.
Appeal from Supreme Court, Appellate Division, Third department.
William F. Quinn and Grove L. Higgins, both of Syracuse, for appellant.
Joseph F. Hanley and Louis A. Garbarini, both of New York City, for National Bureau of Casualty & Surety Underwriters, amicus curiae.
Frank Gibbons, of Buffalo, and E. C. Markel, of Philadelphia, Pa., for General Accident, Fire & Life Assur. Corporation, Limited, of Perth, Scotland, amicus curiae.
Albert F. Devitt, of Oneida, for respondent.
Respondent was injured in an automobile accident by being struck by a car owned by one Joseph H. Bennett. At the time of the accident the owner was seated on the front seat on the right-hand side of his car which was being driven by his son, Bertram Bennett, a boy fourteen years and six months of age. Joseph H. Bennett, the owner, was insured under a liability policy issued by appellant which contained the following clauses:
‘This insurance is subject to the following conditions, and failure on the part of the assured to comply therewith or with the provisions of any endorsement attached to this policy shall forfeit the right of the assured or of any judgment creditor of said assured to recover hereunder. * * *
* * *’
Respondent sued Joseph H. Bennett, the owner, and recovered a judgment. The appellant insurance company disclaimed liability under its policy on the ground that the car was being operated by a person under the age fixed by law and did not take part in the defense of the action. An execution on the judgment against Bennett, the owner, having been returned unsatisfied, respondent brought this action to recover of appellant under its policy issued to Bennett. A jury was waived, the facts stipulated, and the trial court rendered a verdict of no cause of action. Respondent appealed to the Appellate Division, which reversed by a divided court, and judgment was ordered in favor of respondent.
The Appellate Division, in reversing, decided that the appellant, by virtue of section 109 of the Insurance Law (Consol. Laws, c. 28), is liable under the policy for the acts of the driver, even though such driver while operating the car was under sixteen years of age, was violating the law and guilty of a crime.
By section 109 of the Insurance Law every policy of automobile liability insurance is required to be construed as insuring the owner ‘against liability for damages for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.’ In interpreting that section we have decided that an injured third party has by virtue thereof, no greater rights against an insurer than are possessed by the insured.
Coleman v. New Amsterdam Casualty Co., 247 N.Y. 271, 275, 160 N.E. 367, 369, 72 A.S.R. 1443.
In Taylor v. United States...
To continue reading
Request your trial
-
White v. Smith
...Commission at 593 (1958); Devitt v. Continental Casualty Company, 245 A.D. 115, 281 N.Y.S. 336, reversed on other grounds, 269 N.Y. 474, 199 N.E. 765 (1935); Continental Auto Lease Corp. v. Campbell, 19 N.Y. 2d 350, 280 N.Y.S.2d 123, 227 N.E.2d 28 Section 388 was not only designed to protec......
-
Sun Ins. Co. of New York v. Hercules Securities Unlimited, Inc.
...in an action brought pursuant to Insurance Law § 3420(b)(1) stands in the shoes of the insured (see, e.g., Devitt v. Continental Cas. Co., 269 N.Y. 474, 199 N.E. 765). In the present case, such equivalence exists by virtue of the rule which states that a loss payee stands in the shoes of th......
-
Peterson v. Grieger, Inc.
...4 (Devitt v. Continental Casualty Co., 245 App.Div. 115, 116-117, 281 N.Y.S. 336, 339-340, rev'd on other grounds, 269 N.Y. 474, 478-480, 199 N.E. 765; see also Taylor v. United States Casualty Co., 269 N.Y. 360, 366, 199 N.E. 620, 115 A.L.R. 822; Boyer v. Massachusetts Bonding & Ins. Co., ......
-
Lauritano v. American Fidelity Fire Ins. Co.
...Section 167, just as its predecessor Section 109, does not prevent a limitation of coverage by the carrier (Devitt v. Continental Casualty Co., 269 N.Y. 474, 480, 199 N.E. 765, 766; Brustein v. New Amsterdam Cas. Co., 255 N.Y. 137, 143, 174 N.E. 304, As already stated, S. S. D. never forwar......