Haas Tobacco Co. v. American Fid. Co.

• Decision Date: 20 May 1919
• Citation: 123 N.E. 755,226 N.Y. 343
• Parties: HAAS TOBACCO CO. v. AMERICAN FIDELITY CO.
• Court: New York Court of Appeals Court of Appeals

226 N.Y. 343

123 N.E. 755

HAAS TOBACCO CO.

v.AMERICAN FIDELITY CO.

Court of Appeals of New York.

May 20, 1919.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the Haas Tobacco Company against the American Fidelity Company. From judgment of the Appellate Division (178 App. Div. 267,165 N. Y. Supp. 230), reversing judgment of the Trial Term entered upon the verdict of a jury, and dismissing the complaint, plaintiff appeals. Judgment of the Appellate Division affirmed.

Cuddeback, Cardozo, and Pound, JJ., dissenting.

Henry W. Killeen, of Buffalo, for appellant.

Charles Newton, of Buffalo, for respondent.

ANDREWS, J.

[1] Under a policy requiring immediate notice to the insurer of accidents insured against, the condition does not apply to every trivial occurrence, even though it may prove afterward to result in serious injury. If no apparent harm came from the mishap and there was no reasonable ground for believing at the time that bodily injury would follow, there was no duty upon the insured to notify the insurer. Melcher v. Ocean Accident & Guarantee Corp., 226 N. Y. 51, 123 N. E. 81.

[2] The plaintiff here had a policy of automobile insurance issued by the defendant to protect it against accidents caused by its automobiles, containing the usual clause for immediate notice. It is conceded that on January 20, 1913, one of its machines ran into and struck Joseph Bolger, causing him injuries which subsequently resulted in a judgment in his favor for over four thousand dollars. Notice of this accident was not given until some 10 days later, and the defense is based upon the alleged breach of the condition with regard to notice. The trial judge charged the jury that the plaintiff could not be required to give notice if it had no knowledge of the accident itself, and further that, even if it had knowledge of the occurrence, it was not called upon to report if the circumstances were such as would not call upon a reasonably prudent person to anticipate that they might be the basis for a claim under the policy. Under this charge the jury found a verdict for the plaintiff. The judgment entered upon this verdict, howerve, was reversed by the Appellate Division, and the complaint dismissed.

Singularly enough, there is no direct evidence as to what actually occurred on January 20th. We do know that injuries were received, serious enough to justify a large recovery in damages; but as to the actual event both sides seemed content to rest upon the subsequent account of the driver of the truck. Having seen in a newspaper a statement that a Haas automobile had hit a boy, the manager of the plaintiff, on the morning of the 21st, asked the driver with regard to it. He replied that ‘It didn't amount to anything.’ He was driving into a garage, and the boy ran out from the curb and struck the machine and he was knocked down. The manager asked if the boy was hurt. The driver replied:

‘Only slightly, for I brushed off his clothes and he went away. There was a policeman right there. It wasn't necessary to report any accident. I don't think it amounts to much.’

Under these circumstances, the insured was not absolved from making the report required by its policy.

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