Woolverton v. Fid. & Cas. Co. of New York

• Decision Date: 19 November 1907
• Citation: 190 N.Y. 41,82 N.E. 745
• Court: New York Court of Appeals Court of Appeals
• Parties: WOOLVERTON v. FIDELITY & CASUALTY CO. OF NEW YORK.

190 N.Y. 41

82 N.E. 745

WOOLVERTON

v.FIDELITY & CASUALTY CO. OF NEW YORK.

Court of Appeals of New York.

Nov. 19, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Action by William H. Woolverton, as president of the New York Transfer Company, against the Fidelity & Casualty Company of New York. From a judgment of the Appellate Division (100 N. Y. Supp. 1151,114 App. Div. 911), affirming a judgment of the Trial Term (89 N. Y. Supp. 292,96 App. Div. 275) on a verdict for plaintiff, defendant appeals. Reversed.Charles C. Nadal, for appellant.

John L. Hill, for respondent.

CULLEN, C. J.

The action is brought on an employer's liability insurance policy whereby the New York Transfer Company, a jointstock association, of which the plaintiff is president, was indemnified against liability for injuries to persons or property resulting from any accident caused by the horses or vehicles of the insured in the transportation of goods or freight. The controversy arises under the following provision of the policy: ‘The assured, upon the occurrence of an accident and also upon receiving information of a claim on account of an accident, shall give immediate notice in writing of such accident or claim, with full particulars, to the company at its office in New York City, or to the agent, if any, who shall have countersigned this policy.’ The facts are as follows: On September 5, 1895, a truck of the plaintiff's, driven by one Hannan, we must assume, collided with an open car, injuring a boy named Mills who was riding thereon, though Hannan denied and still denies that any such collision occurred. A short distance from the scene of the occurrence Hannan was stopped by a policeman and taken back to the scene of the accident, where some discussion ensued as to the cause and nature of the accident. Hannan walked away. That evening Brady, a police officer, was directed by the police sergeant to find Hannan. Brady, after making inquiry of several persons, found that the truck belonged to the New York Transfer Company. He went to the company's office at No. 52 Nassau street, and told the person in charge there of the accident. He was directed to go to another stable in Williamsburg, where he was further directed to call upon a man named Sparks at Pier 27, North river, Manhattan. The police officer went there, saw Sparks, told him of the occurrence, and from the details recited by the police officer Sparks identified the driver as being Hannan. He stated that Hannan had then gone for the day. The next morning the police officer again went to Sparks, and found that Hannan had been there and left. Hannan was not arrested; the police officer failing to obtain a warrant for him. Hannan testified that on the first or second day after the accident Sparks, who was the head of the freight department, asked him about the accident, and he told Sparks exactly what had occurred. Evidence was given by the mother and father of the injured boy to the effect that on September 15th Sparks came to their house with Hannan, and inquired about the accident; that they told Sparks the boy had been knocked off by a wagon, and that he was in the hospital at the time; that Sparks asked them what they wanted to do about it, and was told in reply that the case was in a lawyer's hands. The first report made by Sparks to the general manager of the company was on October 2d, and on the following day the first notice of the accident was given by the plaintiff to the defendant by letter. On October 21st the summons and complaint in an action to recover damages for the injuries to Mills were served on the plaintiff, and the next day they were sent with a letter to the defendant. The defendant refused to defend the suit on the ground that the plaintiff had not given immediate notice of the accident, as required by the policy. The plaintiff defended the action and was cast in damages. Thereupon it brought this suit to recover the amount of that judgment and its expenses in defending the suit.

This action has been three times tried. At the first trial the complaint was dismissed on the ground that the plaintiff had failed to give notice of the accident immediately after its occurrence, as required by the policy. The judgment then entered was reversed by the Appellate Division of the Second Department, which held that it was a question of fact for the jury whether the information received by Sparks or Hannan was sufficient to induce them to believe that Hannan's truck had caused the accident, and to make it their duty to report the occurrence to their superiors. 48 App. Div. 439,62 N. Y. Supp. 1044. The case was next tried in conformity with the rulings of the Appellate Division, and the question of fact above stated submitted to the jury, who found a verdict for the defendant. Again an appeal was taken to the Appellate Division (this time to the First Department), and again the judgment was reversed, the court holding that neither the knowledge of Hannan, the driver, nor of Sparks, the freight agent, was imputable to the plaintiff, and that to charge it with the duty of giving notice to the defendant the knowledge must be brought home to the general superintendent or other officers of the plaintiff association. 96 App. Div. 279,89 N. Y. Supp. 292. The third trial was had in accordance with the principles laid down by the appellate court. The plaintiff recovered a verdict, and the judgment on that verdict has been unanimously affirmed by the Appellate Division. The only questions subject to review in this court are therefore exceptions to the instructions given to the jury.

The trial court charged: ‘The knowledge of Hannan and the information of Sparks in no wise constituted notice of the accident to the transfer company. Their knowledge is not to be deemed the knowledge of the transfer company. What they heard of the accident is not to be deemed as having been heard by the transfer company. It was only when notice was brought to the general superintendent or to one of the officers of the company, some one holding an executive position in the company, either the president, the secretary, the treasurer, a member of the board of managers, that notice was had by the plaintiff. Notice given to an employé, such as Hannan or Sparks, who had no duty resting upon him respecting this insurance, who had no duty upon him regarding the giving of notice of an accident to the casualty company, who had no duty imposed upon him regarding the adjustment of any differences between the transfer company and the casualty company under this policy, was not notice to the plaintiff. In other words, it was not until the superintendent or one of the officers, or managers, to whom I have referred, had heard of this accident, that the time began to run to notify the casualty company that it had happened. That is the interpretation which has been put by the higher court upon that provision of the policy, and which interpretation is binding upon you and upon me.’ To the several parts of this instruction the defendant...