Thrasher v. U.S. Liability Ins. Co.

• Decision Date: 08 March 1966
• Citation: 25 A.D.2d 623,267 N.Y.S.2d 681
• Parties: Julius THRASHER, Plaintiff-Respondent, v. UNITED STATES LIABILITY INSURANCE COMPANY, Defendant-Appellant. Duaine MORGAN, as Administratrix of the Goods, Chattels and Credits of James Morgan, deceased, Plaintiff-Respondent, v. UNITED STATES LIABILITY INSURANCE COMPANY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 681

267 N.Y.S.2d 681

25 A.D.2d 623

Julius THRASHER, Plaintiff-Respondent, v. UNITED STATES LIABILITY INSURANCE COMPANY, Defendant-Appellant.

Duaine MORGAN, as Administratrix of the Goods, Chattels and Credits of James Morgan, deceased, Plaintiff-Respondent, v. UNITED STATES LIABILITY INSURANCE COMPANY, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 8, 1966.

O. C. Sutton, New York City, for plaintiff-respondent Thrasher.

W. Glatzer, New York City, for defendant-appellant.

Sheridan Albert, Brooklyn, for plaintiff-respondent Morgan.

Before RABIN, J. P., and STEVENS, STEUER and STALEY, JJ.

PER CURIAM.

Judgment in favor of the plaintiffs unanimously reversed, on the law and on the facts, with $50 costs and disbursements to appellant, and the complaint dismissed. The plaintiffs, Julius Thrasher and Duaine Morgan, as administratrix of the goods, chattels and credits of James Morgan, deceased, have recovered judgments against the defendant in actions brought pursuan to section 167 of the Insuranct Law to recover proceeds of a policy of liability insurance issued by the defendant to one Henry Kelly. June 8, 1962, Kelly loaned his automobile to plaintiff Morgan's decedent who invited plaintiff Thrasher to take a ride with him. During the course of the ride, the automobile crashed into an embankment, injuring both Thrasher and Morgan. Thrasher sued Kelly, owner of the automobile, for negligent operation of the automobile and Morgan sued in negligence for defective brakes on the automobile. The actions were consolidated for trial on December 12, 1963. From that date until the commencement of the trial of the negligence action on January 15, 1964, the defendant, through its investigators, made repeated attempts to locate its insured who, at that time, no longer lived at the address stated in the policy. On one occasion, the investigator spoke with Morgan and was told that Morgan's attorney had instructed him not to speak to anyone and the investigator requested Morgan to ask Kelly if he saw him to contact the defendant. Morgan, on January 5, 1964, told the investigator that he had given Kelly the message at Morgan's house on December 24, 1963, but that he had no address for Kelly. The investigator also contacted Morgan's attorney prior to the trial to ask his help in locating Kelly. The attorney, at the trial, stated that he 'probably told him to jump in the lake.' January 15, 1964, when the action came on for trial, the defendant's request for an adjournment to afford it a further opportunity to obtain the cooperation and the presence of its insured at the trial was denied. Defendant's...