Hartigan v. Cas. Co. of America
| Citation | 227 N.Y. 175,124 N.E. 789 |
| Parties | HARTIGAN et al. v. CASUALTY CO. OF AMERICA. |
| Decision Date | 21 October 1919 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Third Department.
Action by Maurice H. Hartigan and another, individually and as copartners, against the Casualty Company of America. From a judgment of the Appellate Division (178 App. Div. 942,165 N. Y. Supp. 894), unanimously affirming a judgment in favor of plaintiffs upon a decision of the court at Trial Term (97 Misc. Rep. 464,161 N. Y. Supp. 145), defendant appeals. Reversed, and complaint dismissed.
Collin McLennan, of New York City, for appellant.
William E. Woollard, of Albany, for respondents.
Defendant issued an automobile liability policy insuring ‘Hartigan & Dwyer, No. 85-91 Congress St., Troy, Rensselaer county, New York, department store merchant,’ against ‘loss and expense by reason of claims made upon the assured’ by reason of accidents suffered by any person by reason of ‘the ownership, maintenance, or use’ of a delivery automobile described in the policy. Hartigan & Dwyer is a copartnership composed of Maurice H. Hartigan and Joseph E. Dwyer. The copartnership of Hartigan, Dwyer & O'Brien consists of the same individuals as the firm of Hartigan & Dwyer and one John J. O'Brien. It conducts a department store in Albany. When the automobile was being used in the business of the Albany firm and driven by an employé of that firm, a child was run over and killed. The plaintiffs paid two-thirds of the amount for which the claim against the Albany firm arising out of the accident was settled, and have maintained successfully an action on the policy to recover the amount thus paid by them. The question is whether the policy may be so construed as to bring within its terms such individual liability.
[1] The plaintiffs direct attention to the findings of fact, unanimously affirmed, that the policy insures the plaintiffs ‘and each of them,’ and that at the time of the accident the automobile was in use ‘by an agent of the plaintiffs and one John J. O'Brien.’ The policy is incorporated in the decision. If its terms are unambiguous, its construction is a question of law for the court, which survives the unanimous decision of the Appellate Division and is subject to review by this court. Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310, 110 N. E. 619.
[2] We think that the terms of the policy are unambiguous and limit the liability of the insurer to accidents which happen while the automobile is being used on the firm business of Hartigan & Dwyer.
The plaintiffs have succeeded on the theory that they are individually liable for the torts of the firm of Hartigan, Dwyer & O'Brien (Matter of Peck, 206 N. Y. 55, 99 N. E. 258, 41 L. R. A. [N. S.] 1223 Ann. Cas. 1914A, 798); but it is the firm of Hartigan & Dwyer described in the policy as ‘department store merchant,’ that is insured, and that firm has committed no wrong and incurred no liability. Hartigan and Dwyer, as individual members of the firm of Hartigan, Dwyer & O'Brien, are not insured against liability for the acts of that firm. When a partnership is established, the liability of the individual partners is an incident of the partnership merely, not a separate and independent liability. The policy protects Hartigan & Dwyer from loss by reason of a automobile accidents for which their partnership is liable, and to that extent...
To continue reading
Request your trial
-
Sullins v. Allstate Ins. Co.
...reasonable men may reasonably differ...." Breed, supra, 413 N.Y.S.2d at 356, 385 N.E.2d at 1283 (quoting Hartigan v. Casualty Co. of Amer., 227 N.Y. 175, 124 N.E. 789, 790 (1919)). Surely we would be abdicating our judicial role were we to decide such cases by the purely mechanical process ......
-
Brollier v. Van Alstine
... ... United States Fidelity & Guaranty ... Co., 122 N.J. L. 294, 4 A.2d 850; Hartigan v ... Casualty Company of America, 227 N.Y. 175, 124 N.E. 789, ... 790; Germano v. Gresham F ... 1215, 70 S.W.2d 884, 885; 29 Am. Juris., ... Sec. 879 on Insurance; Myers v. Const. Cas. Co., 223 ... Mo.App. 781, 22 S.W.2d 867; Friedman v. Maryland Cas ... Co., 71 S.W.2d 491; ... ...
-
First Interstate Bank of Fargo, N.A. v. Larson
...of a partner is merely an incident of the partnership liability. Judge Pound writing for the court in Hartigan v. Casualty Co. of America (227 N.Y. 175, 178, 124 N.E. 789, 790, supra) phrased the conception clearly and concisely as follows: 'When a partnership is established, the liability ......
-
Close-Smith v. Conley
...venture, the contracts between the parties can well be construed as a partnership for that particular venture. Hartigan v. Casualty Company of America, 227 N.Y. 175, 124 N.E. 789; Ardolino v. Ierna, 225 App.Div. 439, 233 N.Y.S. 477; Geitner v. United States Fidelity & Guaranty Co., 251 N.Y.......