Messersmith v. American Fid. Co.

Decision Date22 November 1921
Citation232 N.Y. 161,133 N.E. 432
CourtNew York Court of Appeals Court of Appeals


Action by Edgar C. Messersmith against the American Fidelity Company. From an order of the Appellate Division (187 App. Div. 35,175 N. Y. Supp. 169), reversing an order of the Special Term (101 Misc. Rep. 598,167 N. Y. Supp. 579), which denied plaintiff's motion for judgment on the pleadings, and granting such motion, defendant appeals.


Appeal from Supreme Court, Appellate Division, Fourth Department.

Chas. Newton, of Buffalo, for appellant.

Franklin R. Brown, of Buffalo, for respondent.


Plaintiff sues upon defendant's policy of insurance, indemnifying him against liability for injuries accidentally suffered by any one through the maintenance or use of his automobile. The defense is that in violation of Highway Law (Consol. Laws, c. 25) § 282, subd. 2, the automobile was driven by an infant under the age of 18, who was not accompanied either by the owner or by a duly licensed chauffeur; that this was done with the plaintiff's knowledge and under his directions; and ‘that the accident was directly caused by the improper and negligent conduct of the said infant,’ while thus violating the law. The question is whether indemnity in such circumstances is consistent with public policy.

[1] The public policy of this state, when the Legislature acts, is what the Legislature says that it shall be. Demarest v. Flack, 128 N. Y. 205, 28 N. E. 645,13 L. R. A. 854;Lancaster v. Amsterdam Impr. Co., 140 N. Y. 576, 583,35 N. E. 964,24 L. R. A. 322; Janson v. Driefontein Mines, [1902] A. C. 484; Anson on Contracts (Corbin's Ed.) p. 286. The Legislature has said in so many words that insurance companies may indemnify against liability for loss and damage through the use and maintenance of automobiles. Insurance Law (Consol. Laws, c. 28) § 70, subds. 3, 9-11. To restrict insurance to cases where liability is incurred without fault of the insured would reduce indemnity to a shadow. Neither in the statute nor in its application as shaped by long-continued practice is there the token of an intention that indemnity shall be withheld from owners operating their own cars, and limited to those whose cars are run by servants. Liability of the owner, who is also the operator, can never be incurred without fault that is personal. Indeed, the statute has so covered the field that it can seldom, if ever, be incurred without fault that is also crime. It is a misdemeanor (Highway Law [Consol. Laws, c. 25] § 290) to drive without adequate brakes and horns and lamps (Highway Law, $286, subd. 1); to fail in stated situations to stop on signal (section 286, subd. 2); to violate the rules of the road by not keeping to the right (section 286, subd. 3); to drive in a careless and imprudent manner or at a dangerous or prohibited rate of speed (section 287). Cf. Penal Law, § 1052 (Consol. Laws, c. 40). The General Highway Traffic Law (Consol. Laws, c. 70) contains directions even more minute, with the threat of penal consequences. What is true of insurance for the benefit of owners of automobiles is true also of insurance for the benefit of employers of labor. Westinghouse, C. K. & Co. v. L. I. R. R. Co., 160 App. Div. 200, 203,145 N. Y. Supp. 201, affirmed 216 N. Y. 697, 110 N. E. 1051. Every violation of the Labor Law (Consol. Laws, c. 31) is to-day a misdemeanor. Penal Law, § 1275; People ex rel. Price v. Sheffield Farms-S.-D. Co., 225 N. Y. 25, 29,121 N. E. 474.

In too many ways to be misread the state, through its Legislature, has manifested recognition and approval of the business of insurance against the consequences of negligence, whether personal or vicarious. Even without the aid of legislation, courts of high authority have reached a like conclusion. Boston & Albany Co. v. Merc. Trust Co. (Am. Casualty Ins. Co.'s Case) 82 Md. 535, 34 Atl. 778,38 L. R. A. 97;Trenton Pass. Ry. Co. v. Guarantor's Liability Ind. Co., 60 N. J. Law, 246, 37 Atl. 609,44 L. R. A. 213;Gould v. Brock, 221 Pa. 38, 69 Atl. 1122;Phoenix Ins. Co. v. Erie & W. Transp. Co., 117 U. S. 312, 6 Sup. Ct. 750, 29 L. Ed. 873. Insurance, instead of prejudicing the victim of an accident, is seen to supply in many cases the only fund from which the victim can be paid. Boston & Albany Co. v. Merc. Trust Co., supra, 82 Md. 577, 578, 34 Atl. 778,38 L. R. A. 97;Phoenix Ins. Co. v. Erie & W. Transp. Co., supra, 117 U. S. at page 324, 6 Sup. Ct. 750, 29 L. Ed. 873. Courts are slow to substitute their own varying views of policy for those which have found embodiment in settled institutions, in every-day beliefs and practices, which have taken root and flourished. Janson v. Driefontein Mines, supra, at page 496. The field of discretion is still narrower when there has been statutory sanction, tacit, if not express, of callings and forms of conduct which it would have been easy to condemn.

The defendant does not greatly dispute that there may be indemnity against the consequences of negligence. It argues, however, that in this case the plaintiff's liability was the product, not of negligence, but of willfulness. Undoubtedly the policy is to be confined to liability for injuries that may be described as accidental. Even if its terms did not so limit it, the fundamental principle that no one shall be permitted to take advantage of his own wrong would import the limitation. But the extension of the policy to this case is no departure from its restriction to injuries that are the product of accident or negligence. The plaintiff, in intrusting his car to a youth under 18, did not desire or intend that there should be an injury to travelers. The act of so intrusting it was willful, but not the ensuing conduct of the custodian, through which injury resulted. Indeed, the violation of the statute would have been the same, though the...

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1 books & journal articles
  • Attorney Fee Disgorgement as a Disciplinary Action
    • United States
    • Seattle University School of Law Seattle University Law Review No. 7-03, March 1984
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