Melcher v. Ocean Accident & Guarantee Corp.
| Decision Date | 18 March 1919 |
| Citation | 226 N.Y. 51,123 N.E. 81 |
| Parties | MELCHER v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by John S. Melcher against the Ocean Accident & Guarantee Corporation, Limited. From a judgment of the Appellate Division (175 App. Div. 77,161 N. Y. Supp. 586), reversing a judgment of the Trial Term entered on the verdict of a jury, and dismissing the complaint, the plaintiff appeals. Judgment of the Appellate Division reversed, and judgment of the Trial Term affirmed.
Frederick B. Campbell, for New York City, for appellant.
Frederick W. Catlin, of New York City, for respondent.
The defendant issued to the plaintiff a policy of insurance, whereby the defendant promised and agreed to indemnify the plaintiff against loss on account of bodily injuries received by any person while within the Chatsworth Apartments, which is owned by the plaintiff.
During the life of the policy, and on or about November 3, 1913, one Henry Didier was injured under circumstances which created a liability on the part of the defendant under its policy. Subsequently the plaintiff made claim against the defendant, but the defendant refused to admit its liability, on the ground that the assured had failed to give immediate notice of the accident as required by the policy. The plaintiff did not give the defendant notice until on or about February 17, 1914, some three months after the accident occurred. The plaintiff was subsequently compelled to pay $4,000 on account of Didier's injuries, and brings this suit on the policy.
The jury rendered a verdict for the plaintiff. The Appellate Division reversed the judgment, and also dismissed the plaintiff's complaint. The dismissal of the complaint requires this court, in the consideration of the case, to take the view of the evidence most favorable to the plaintiff. Faber v. City of New York, 213 N. Y. 411, 107 N. E. 756.
The evidence shows that there were two elevators in the plaintiff's apartment house, a passenger elevator and a freight elevator, situated side by side. Didier was engaged in making some alterations in the passenger elevator. The plaintiff had employed a firm of sheet iron workers to make the alterations in the elevator, and the firm sent Didier to do the work. To carry out his task, Didier went to the thirteenth floor of the building and took his station on an I-beam between the two elevator shafts. The superintendent of the building, one Moore, instructed the elevator operator on the freight car not to run higher than the twelfth floor.
For some reason, the freight elevator was run above the twelfth floor, and it struck Didier in the posterior, raising him up about a foot. Didier sent word to the superintendent of the building, who went up to the thirteenth floor. He asked Didier if he had been hurt, to which Didier replied no, but that he was badly scared, and he asked the superintendent to instruct his men to be more careful in the future, which the superintendent promised to do. Didier continued to work during the afternoon and apparently finished the alterations.
Moore, the superintendent of the building, testified that he did not report the accident, or, as he says, give it any further thought. But on February 14, 1914, the plaintiff received a letter from a lawyer, saying that Didier's spine had been seriously injured when the freight elevator struck him. This letter was delivered to the defendant on February 17th, and constituted the notice to the defendant of the accident. As has been said, the defendant denied liability because the notice was too late.
It appeared that some six weeks prior to the plaintiff's receipt of this letter, a young man who said he was a law student inquiring as to an accident to a man named Didier, which happened on the tenth floor of some apartment in Riverside Drive, called upon...
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...Surety Co. v. Railroad, 200 Fed. 675; Gunsul v. American Surety Co., 308 Ill. 312, 322, aff. 225 Ill. App. 76; Melcher v. Ocean Acc. & Guar. Corp., 226 N.Y. 51, 56; Liability Assur. Corp. v. Jones Lumber Co., 111 Miss. 759, 763. (8) The courts have gone farther and have held that where the ......
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Walker to Use of Foristel v. American Auto. Ins. Co.
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