Rushing v. Commercial Cas. Ins. Co.

• Decision Date: 11 July 1929
• Citation: 251 N.Y. 302
• Court: New York Court of Appeals Court of Appeals
• Parties: MARJORIE G. RUSHING, Respondent, v. COMMERCIAL CASUALTY INSURANCE COMPANY, Appellant.

251 N.Y. 302

167 N.E. 450

RUSHING

v.COMMERCIAL CASUALTY INS. CO.

Court of Appeals of New York.

July 11, 1929.

Action by Marjorie G. Rushing against the Commercial Casualty Insurance Company.From a judgment of the Appellate Division(225 App. Div. 49, 232 N. Y. S. 255) in favor of plaintiff after the submission of a controversy upon an agreed statement of facts under Civil Practice Act, § 546, defendant appeals by permission.

Judgment reversed, and submission dismissed without prejudice.Appeal from Supreme Court, Appellate Division, First department.

Daniel Mungall, of New York City, for appellant.

Irwin L. Tappen, of Paterson, N. J., for respondent.

CARDOZO, C. J.

In a controversy submitted to the Appellate Division upon an agreed statement of facts, the plaintiff seeks to charge the defendant with liability under Insurance Law(Cons. Laws, ch. 28)§ 109.

The defendant issued to a householder its policy of insurance indemnifying against claims for damages.A condition of the policy is that, ‘upon the occurrence of an accident’ covered thereby, ‘the assured shall give immediate notice, with the fullest information obtainable at the time, to the company or its duly authorized agent.’Plaintiff was injured on October 6, 1920, by falling on the stairs in the house belonging to the assured.She brought action later for her damages.The assured waited till October 28, a space of 22 days following the accident, before giving notice to the insurer in compliance with the policy.There was prompt disclaimer of liability, followed by a compromise.The assured consented on his part that because of the dilatory notice the insurer be relieved of liability to him for any judgment to be rendered.The insurer bound itself to defend without cost to the assured the action then pending for the recovery of damages.In the action thus defended plaintiff had a judgment which is still unpaid after return of execution.The question is whether the insurer may be held under the statute.

In the absence of explanation or excuse, a notice of an accident withheld for 22 days is not the immediate notice called for by the policy.There may, indeed, be circumstances, such as absence from the state or lack of knowledge of the accident, that will explain or excuse the delay and show it to be reasonable.Greenwich Bank v. Hartford Fire Ins. Co. of Hartford, Conn., 250 N. Y. 116, 164 N. E. 876;Solomon v. Continental Fire Ins. Co., 160 N. Y. 595, 55 N. E. 279,46 L. R. A. 682, 73 Am. St. Rep. 707.If so, the burden of going forward with the proof and supplying the data necessary to repel the adverse inference must rest on the assured.The consequence will be the same whether the condition be classified as precedent or subsequent, its inclusion under the one head or the other being dependent on the wording of the policy.Black Co. v. London Guarantee & Accident Co., 190 App. Div. 218, 221, 180 N. Y. S. 74, affirmed232 N. Y. 535, 134 N. E. 561.If precedent, the assured must prove compliance, which includes, of course, excuse or explanation for delay that would otherwise be...