Citations
- 48 A.D. 439
Full opinion text
Goodrich, P. J.:
The defendant issued to the corporation, of which the plaintiff was president at the times in question, its policy of insurance dated Angust í, 1895, against loss resulting from , any accident caused directly by the horses or vehicles of the corporation used in its business of transporting goods. The policy contained the following clauses: 2. 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 Hew York City, or to the agent, if any, who shall have countersigned tliis policy.”
On Thursday, September 5, 1895, Hannon, an employee of the transfer company, while driving a truck belonging to that conrpany and used for the transportation of goods, ran into and injured a boy named Mills, who was standing on the step of an open trolley car. For this injury the boy recovered a judgment against the transfer company. The latter paid the judgment and then brought this ■ action in the name of its president to recover the amount of the judgment and the expenses incurred in the defense. The/defendant, among other defenses, alleged that the plaintiff had failed to comply with the provisions of the clause above set out, by neglecting to notify the defendant of the accident until October fourth. The court dismissed the complaint at the close of the plaintiff’s evidence, on the ground that the failure of the transfer company to notify the defendant of the accident “ makes the policy inoperative; ” and from the judgment entered thereon this appeal is taken.
The judgment against the transfer company, the payment of the same and the allegation in the present complaint, that the boy wag injured by one of the transfer company’s trucks, conclude that company as to the fact that the injury to the boy was caused by its driver, Hannon, but this is not the fact upon which our decision must rest. The only question is whether the .transfer company had notice before October second of an accident caused by Hannon, sufficient to set in operation the condition of the clause. The record, shows not only doubt in Hannon’s mind at the time of the accident, as to whether or not his wagon caused the injury, but apparently a belief on his part and a statement by him to his superior Sparks, soon afterward, that such was not the fact. He testified that he did not report the accident, as the rules of his company required, although he admitted that lie knew of an injury to the hoy.
On the following Monday, Septeinber ninth, a police officer called on Sparks, who had general supervision of the company’s trucks, and informed him that one of his drivers had caused an accident and that he wanted to arrest such driver. He was told that Hannon would be at the stable at six o’clock, but did not return. That evening, however, Sparks inquired of Hannon as to the accident, and the latter denied that he had caused it. It is not necessary for us to decide whether or not the transfer company’s driver had such knowledge or notice of an accident caused by him at the time it occurred as to require notice of it to be given by him to his superior, for the fact clearly appears that on September ninth Sparks had notice that some accident had happened and that it was claimed to have been caused by Hannon. We may consider, therefore, only whether on the last-named day the transfer company had such knowledge or notice as to require it to notify the defendant of the accident.
Sparks gave no notice to the officers of the transfer company until October second, when Draper, the general manager, sent tollina. for information on the subject. This was caused by the fact that the attorney for Mills had called upon'Mr. Draper and stated that he intended to sue the transfer company on account of the accident. Here was a period of twenty-four days from the time Sparks had notice that some one claimed that the company’s truck had caused an accident, and we are called upon to decide whether, as matter of law, the failure of that company, under the circumstances, to give immediate notice to the defendant company, that is, on or shortly after September ninth, precluded a recovery on the policy.
No one can doubt that the intent of the clause above quoted was to enable the defendant to make prompt inquiries as to the circumstances of an accident upon which an action against one of its policyholders was likely to be instituted, in order that it might prepare for the defense of the same. This is a reasonable rule and must be reasonably construed. If there be any doubt the rule must be construed more strongly against the defendant. (Trippe v. P. F. Society, 140 N. Y. 23.) It was not the happening of an accident for which the transfer company was afterward .found to be liable which devolved upon it the duty of notifying the defendant- of the