Royal Indem. Co. v. American Cas. Co. of Reading, Pa.
| Decision Date | 25 October 1956 |
| Parties | ROYAL INDEMNITY COMPANY, Plaintiff-Respondent, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Defendant-Appellant. |
| Court | New York Supreme Court |
William R. Ahmuty, Jr., New York City, Robert E. Curran, New York City, of counsel, for appellant.
Cohen, McGuirk & Michels, New York City, John H. Michels, New York City, of counsel, for respondent.
Before EDER, HECHT, Jr., and TILZER, JJ.
In this action for contribution under a co-insurance clause prompt notice of the accident to defendant insurance company was of vital importance to it, since its liability could arise only if the truck was being operated with the permission of its insured, and prompt investigation of that phase was essential for its protection in view of the borderline situation here claimed of implied permission arising from a course of conduct. While the delay here may not be held fatal as a matter of law, as would be true in the case of an insured's failure to give due notice directly to his own insurance company, the finding of adequate notice implicit in the verdict for plaintiff is against the weight of the evidence. The evidence as to the efforts made to ascertain the name of the company insuring the truck involved in the accident on the premises covered in plaintiff's policy is quite vague and no satisfactory explanation has been given why it took so long to get this information when the owner of the truck was so close to the owner of the premises not only in their business affairs but in actual physical location. In addition, the finding of permission implicit in the verdict is also against the weight of the evidence. Reliance upon a course of conduct to establish implied permission in the absence of any protest by the owner of the vehicle is misplaced unless it is shown that the owner knew of the alleged practice involving the use of his vehicle by the owner of the premises; one cannot well protest what one does not know. The evidence in this record of the owner's knowledge of the practice is insufficient to establish 'permission'.
Moreover, the charge to the jury in this rather complicated type of case failed to provide clear and specific instructions for its guidance and erred in setting forth the elements upon which a verdict might be found against defendant.
The jury might have gained the impression that mere business necessity on the part of the owner of the premises to...
To continue reading
Request your trial
-
Meritplan Ins. Co. v. Universal Underwriters Ins. Co.
...which the original liability depends as well as the reasonableness of the amount paid, * * *' (Royal Indemnity Co. v. American Casualty Co. (1956) 5 Misc.2d 533, 536, 159 N.Y.S.2d 45, 47.) In this case the liability is established by Universal's acknowledgment of the validity of the Flynt c......
-
Carolina Cas. Ins. Co. v. Oregon Auto. Ins. Co.
... ... * * *' ... Also see Royal Indem. Co. v. American Cas. Co., 5 Misc.2d 533, 159 N.Y.S.2d 45 ... ...
-
Medical Protective Co. v. Bell, 86-0569-CV-W-1.
...fixes the amount of the loss which the co-insurers must share. True the amount paid must be reasonable, cf. Royal Indem. Co. v. American Cas. Co., 5 Misc.2d 533, 159 N.Y.S.2d 45, but the fact that the payment was less than the judgment is prima facie proof of its reasonableness. Plaintiff b......
-
Employers Mut. Liability Ins. Co. of Wis. v. Di Cesare & Monaco Concrete Const. Corp.
...not call upon them for reimbursement (Dunn v. Uvalde Asphalt Paving Co., 175 N.Y. 214, 67 N.E. 439; Royal Indemnity Co. v. American Casualty Co., 5 Misc.2d 533, 536, 159 N.Y.S.2d 45, 48; 42 C.J.S. Indemnity § 25). If Reliable was in fact liable to Driscoll, but its acts of commission or omi......