Hoff v. St. Paul-Mercury Indemnity Co. of St. Paul

• Decision Date: 14 January 1935
• Docket Number: No. 211.,211.
• Citation: 74 F.2d 689
• Parties: HOFF v. ST. PAUL-MERCURY INDEMNITY CO. OF ST. PAUL.
• Court: U.S. Court of Appeals — Second Circuit

74 F.2d 689 (1935)

HOFF v. ST. PAUL-MERCURY INDEMNITY CO. OF ST. PAUL.

No. 211.

Circuit Court of Appeals, Second Circuit.

January 14, 1935.

Herbert Plaut and Plaut & Davis, all of New York City, for appellant.

N. Levan Haver, of Kingston, N. Y., for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a summary judgment upon pleadings and affidavits in an action to recover upon a policy insuring one, Basso, against liability for injuries caused by a motor-car. Basso is not the plaintiff, but Hoff, the injured person, who sued under section 109 of the New York Insurance Law (Consol. Laws, c. 28), which requires all liability policies to give the injured person a right to sue in the circumstances which here existed. The defense is that Basso did not "render to the Company all reasonable cooperation and assistance" in preparing the defense of the action of Hoff v. Basso. This was a valid plea if true, for the courts of New York have held that the injured party is subject to all defenses that would be good against the insured in an action brought by him on the policy. Coleman v. New Amsterdam Casualty Co., 247 N. Y. 271, 160 N. E. 367, 72 A. L. R. 1443; Seltzer v. Indemnity Ins. Co., 252 N. Y. 330, 169 N. E. 403.

The facts as they appeared in the pleadings and affidavits were that a car which Basso was driving collided with a car in which Hoff was riding and injured him. Hoff sued Basso and his wife, and Basso turned over the defense to the company, relying upon his policy. The cause came on for trial in the state court at Kingston, New York, in October, and Basso attended, being paid by the company for his fare and his lodging, but not, as he said, for his meals. A settlement was then reached, which later fell through for reasons not here important. Thereafter the cause came on again for trial at Kingston at the December term. As the time approached the company was unable to find Basso until just before the case was called. Finally one, Rebecchi, an employee of the company, did find him, but the stories diverge as to what took place between them. Rebecchi swore that he told Basso of how close at hand the trial was and that he was needed as a witness; to which Basso answered that he would not go to Kingston at all, not even for $1,000. Nevertheless, Rebecchi offered him $9, enough for his fare to Kingston and back, and $2.56 besides; but he did not subpœna him. On the other hand Basso denied that he had refused to go to Kingston; he said that he had only reminded Rebecchi that his meals had not been paid for on the first trip, and had added that he would not go again unless his expenses were paid in advance. He further denied that Rebecchi had offered him $9. At any rate, when the case came on for trial, the company had no witnesses and was forced to allow an inquest to be taken against Basso. The judge in the case at bar gave judgment upon the policy because of the company's failure to subpœna Basso at the trial, which in his judgment showed a lack of diligence in defending the action.

The discordant stories of the interview must be settled by a jury if a different result follows upon the truth of each. The New York decisions settle it that conflicts of testimony which are not patently a sham cannot be...