Gerka v. Fid. & Cas. Co. of New York

• Decision Date: 28 May 1929
• Citation: 167 N.E. 169,251 N.Y. 51
• Parties: GERKA v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

251 N.Y. 51

167 N.E. 169

GERKA

v.FIDELITY & CASUALTY CO. OF NEW YORK.

Court of Appeals of New York.

May 28, 1929.

Action by Herman Gerka against the Fidelity & Casualty Company of New York. Judgment for plaintiff entered upon the verdict of a jury was reversed, and the complaint dismissed by the Appellate Division (225 App. Div. 686, 231 N. Y. S. 319), and plaintiff appeals.

Reversed, and a new trial granted.

Appeal from Supreme Court, Appellate Division, Second Department.

William F. McNulty, Harold R. Medina, Jacquin Frank and David M. Fink, all of New York City, for appellant.

Edward P. Mowton, of New York City, for respondent.

HUBBS, J.

The plaintiff recovered a judgment against the Eagle Wet Wash Laundry Company, a corporation, in an action for personal injuries caused by one of its vehicles. The laundry company was insolvent, and an execution issued against it was returned unsatisfied. The defendant insurance company had issued a teams liability policy to the laundry company, insuring it against loss and damage growing out of injury to third persons by its horse-drawn vehicles. The policy contained a provision that, in case of the insolvency of the laundry company, a judgment creditor, in an action against it, who had recovered a judgment against it for a loss covered by the policy, might maintain an action against the insurance company to recover such loss, subject, however, to all the terms and conditions of the policy.

The policy in question contains a clause, referred to as ‘Clause B,’ which reads:

‘B-This policy does not cover loss from liability for, or any suit based on, injuries or death caused by any draught animal, driving animal, or vehicle while being driven by or while in charge of any person who is either under the age fixed by law for drivers, or who is in any event under the age of sixteen years.’

This action is defended upon the ground that the vehicle which injured the plaintiff was, at the time, in charge of, and the horse was being driven by, a boy under 16 years of age.

The defendant is entitled to avail itself of any defense, in this action brought against it by a judgment creditor, which it could have urged in defense of an action against it brought by the insured. Coleman v. New Amsterdam Casualty Co., 247 N. Y. 271, 160 N. E. 367;Weatherwax v. Royal Indemnity Co., 250 N. Y. 281, 165 N. E. 293.

Shortly before the accident, a driver named Selesnik left the insured's place of business with a horse and wagon for the purpose of picking up laundry. His helper, a boy named Pagano, under 16 years of age, was with him. The driver drove in front of a house, got off the wagon, and went into the house to get some laundry. The boy, Pagano, was left on the wagon. The driver left the reins fastened to the dashboard. The wagon stood out about 7 or 8 feet from the curb. The boy took hold of the reins to drive the rig nearer the curb and while the rig was moving the plaintiff was injured. He recovered a judgment against the insured for such injuries. Upon the trial of this action against the insurance company, the learned trial justice left it to the jury to determine as a question of fact whether plaintiff's injuries were caused by a ‘vehicle while being driven by or while in charge of any person * * * under the age of sixteen years' within the meaning of the policy. The jury found in favor of the plaintiff. The Appellate Division has decided to the contrary, holding as a matter of law that liability for the injuries in question was not covered by the policy. As the judgment was reversed by the Appellate Division upon the law and the facts and the complaint dismissed, it is necessary for this court to determine whether a question of fact is presented by the evidence.

The jury might have found from the evidence that the president of the insured was familiar with the clause of the policy in question and that he had given strict instructions that no helper was to be allowed to drive. He had never seen the boy, Pagano, on a wagon without a driver being present, and had never seen him drive. Every wagon had a driver and a helper, whose business it was to remain with the wagon and watch the wagon when the driver was absent gathering up packages of laundry and to see that the bundless in the wagon were not stolen. There was a rule in the plant ‘that no driver is to allow his helper at any time to touch the reins to drive.’ Drivers were employed for that purpose. The driver, Selesnik, and the boy, Pagano, each testified that at the time of the accident the driver was in charge of the wagon, and that the boy was left, when the driver went for laundry, to watch the wagon and the laundry in it. As the verdict of the jury was in favor of the plaintiff, it must be assumed that the facts were found as stated.

[2] The policy was prepared by the defendant, and, in case of ambiguity, must be construed against it. Marshall v. Commercial Travelers' Mut. Accident Ass'n, 170 N. Y. 434, 63 N. E. 446;Michael v. Prussian Nat. Ins. Co., 171 N. Y. 25, 63 N. E. 810;Bushey & Sons v. American Ins. Co., 237 N. Y. 24, 142 N. E. 340.

The defendant contends that it is not liable because a boy under 16 years of age had hold of the reins and was guiding the horse at the time of the accident. Under that construction of the policy the...