Glens Falls Portland Cement Co. v. Travelers' Ins. Co.
| Decision Date | 06 April 1900 |
| Citation | 162 N.Y. 399,56 N.E. 897 |
| Parties | GLENS FALLS PORTLAND CEMENT CO. v. TRAVELERS' INS. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, appellate division, Third department.
Action by the Glens Falls Portland Cement Company against the Travelers' Insurance Company. From a judgment of the appellate division (42 N. Y. Supp. 285), affirming a judgment for plaintiff, defendant appeals. Affirmed.
Francis A. Smith and Grenville M. Ingalsbe, for appellant.
Edgar T. Brackett, for respondent.
This action was brought upon a policy of insurance issued by the defendant to the plaintiff in November, 1894, by which defendant company undertook to insure the plaintiff for the term of one year against loss from liability to employés who might accidentally sustain bodily injuries while in the plaintiff's employ. The policy, among other things, provided that, in case an accident should occur to an employé and a suit should be brought against the cement company to recover damages, the insurance company should have the right to control the defense and defend the action on behalf of the cement company. In the application upon which the policy was issued, the cement company agreed ‘to conduct all business and maintain all premises to which the proposed insurance may apply, in strict compliance with all statutes, ordinances, and by-laws provided for the safety of persons.’ On the 28th day of December, 1894, one Jasmine was employed by the plaintiff to attend a machine known as a clinker crusher. There extended through the building a revolving shaft from 15 to 18 feet above the floor, at one end of which there was a collar to prevent the end-thrust. This collar was fastened to the shaft by means of a set screw, which projected about five-eighths of an inch from the collar, and was immediately adjoining the bearing upon which the shaft revolved. Under this bearing was constructed a small platform which was reached by a ladder, which was used only for the purpose of reaching the platform when necessary to oil the bearing. On the day in question, Jasmine ascended the ladder to the platform, and undertook to oil the shafting at the point of the bearing. In doing so his sleeve was caught by the projecting set screw, and he was twisted around the shafting and seriously injured. He subsequently brought an action against the plaintiff company, alleging negligence on its part, which resulted in the recovery of a judgment, by default, for the sum of $2,000 damages, which sum, with costs, the plaintiff has been compelled to pay, and which amount it now seeks to recover of this defendant under the policy. It further appears that the plaintiff gave notice to the defendant, through its local agent, of the accident, shortly after it occurred, and that when the action was brought the defendant employed an attorney, who answered the complaint on behalf of the cement company, and took charge of the defense of that action, down to the Saturday preceding the Monday on which the case was to be moved for trial at the circuit; that at that time the insurance company disclaimed liability under the policy, and declined to assume any further charge of the defense. At the conclusion of the trial of this action the defendant's counsel moved for a nonsuit upon various grounds, which was denied, the court holding that there were questions of fact to be submitted to the jury, but remarked that, if both sides insisted upon a direction of a verdict and would leave the questions of fact to be decided by the court, it would dispose of the case. Thereupon both parties requested the court to direct a verdict, and in accordance with such request a verdict was directed in favor of the plaintiff for the amount demanded in the complaint; the court stating as one of its reasons for so doing that there was not sufficient evidence from which the jury, or the court in the place of the jury, could find that this set screw was dangerous, or one that was required to be further guarded.
The controlling question in the case brought up for review by the exceptions is the claim of the defendant that the plaintiff had forfeited its right to indemnity under the policy, for the reason that it had failed to maintain its premises in complicance with ...
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