Zauderer v. Continental Casualty Co., 199.

• Decision Date: 01 February 1944
• Docket Number: No. 199.,199.
• Citation: 140 F.2d 211
• Parties: ZAUDERER v. CONTINENTAL CASUALTY CO.
• Court: U.S. Court of Appeals — Second Circuit

140 F.2d 211 (1944)

ZAUDERER v. CONTINENTAL CASUALTY CO.

No. 199.

Circuit Court of Appeals, Second Circuit.

February 1, 1944.

James Dempsey, of Peekskill, N. Y., for appellant.

Joseph F. Hanley, of New York City, for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

The plaintiff appeals from a judgment, entered upon the verdict of a jury, dismissing her complaint in an action upon a policy, issued by the defendant, insuring her against liability for personal injuries to other persons by her motor car. The defendant defended on the ground that she failed to give seasonable notice as required in the policy; that she failed to "cooperate" in the defense of an action brought against her; and that she had no interest in any recovery at the time when she commenced the action. The judge left to the jury all these questions of fact, and entered judgment upon the verdict. The only errors which the record raises are whether he was wrong in denying the plaintiff's motion for a directed verdict at the close of the evidence, in leaving to the jury the three questions we have just mentioned, and in telling them that the plaintiff could not recover if she had no interest in the recovery. We may dispose of the second two of these at once. Plainly the plaintiff could not recover, if she failed to fulfill the condition precedent of giving notice as the policy required or in cooperating in the defense, or if she had no interest in the recovery, that being a necessary incident in all actions. Rule 17(a), Rules of Civil Procedure, 28 U.S. C.A. following section 723c. We can therefore confine our consideration to the single question whether it was error not to direct a verdict in her favor, and, since our conclusion is that the verdict upon the issue of notice was correct, we need not, and shall not, discuss the other two questions. Before proceeding to this, the only issue in the case, we pause to say that after the verdict came in, the plaintiff asked the judge to take a special verdict on each of the three questions submitted, which he refused to do. Admirable as that practice generally is in clarifying the actual decision of the jury, it is never a peremptory duty, and particularly is it not when the party who asks it delays until after the jury has brought in a general verdict. We are therefore to take the verdict as a finding by the jury that the plaintiff had not given the notice required by the policy. The evidence upon that issue, so far as it is necessary to state it, was as follows.

The policy contained this clause: "Notice of Accident. Upon the occurrence of an accident written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses." The accident took place on October 15, 1939; the plaintiff was at the wheel of her car in which were also her husband, two friends, and their infant son. The plaintiff's car collided with another driven by an employee of one, Pines, who was insured against liability by the Maryland Casualty Company. Everyone in the plaintiff's car was injured, or said that he or she was injured. The plaintiff sued Pines and lost, her husband sued him and recovered $2000; the three other passengers sued Pines and the plaintiff jointly, and recovered a judgment of over $12,000, half of which the Maryland Casualty Company paid direct to the judgment creditors, and the other half of which it paid to the plaintiff under what the parties described as a "loan," which she in turn paid to the judgment creditors, thus extinguishing the judgment in full on April 2, 1942. This action was commenced on June 2, 1942.

The plaintiff concededly was injured in the collision which happened in the City of Peekskill, New York. She had been struck in the head but did not appear immediately to be seriously injured, after being taken in an ambulance to a hospital in Yonkers; and on the afternoon of the same day, after being examined by an interne, she was taken home to her mother's in Yonkers, where she stayed in bed for five days under a doctor's care. Here she grew worse, for she was suffering from a concussion, and on the 20th she went back to the hospital in an ambulance, where she remained under the care of a doctor until her discharge. She suffered from dizziness, nausea, headache and pain in her side, and her eyes were extremely sensitive to light, so that she had to be kept in a darkened room. She stayed in bed until November 15, and left the hospital on the 20th. According to her own story, and her husband's, she told him first that she had insurance against liability, between the 5th and 13th of November when he visited her at the hospital; and her position was that until then it had not been "practicable" within the meaning of the policy for her to give notice of the accident. On November 6, her husband...