Opinion
June, 1916.
James I. Cuff, for appellant.
Albert I. Sire (Bennett E. Siegelstein and William L. Stone, of counsel), for respondent.
Plaintiff has recovered a judgment against defendant, insurer on a policy of accident insurance. It appears that on or about July 5, 1913, one O'Brien was injured accidentally in plaintiff's store; that one year afterwards, in July, 1914, plaintiff, having had no notice of the accident, as he claims, was served with a summons in an action brought against him by O'Brien to recover damages for the injuries; that plaintiff thereupon notified the defendant of the suit, but that defendant's attorney claimed that because of the failure of the insured to give the insurer immediate notice it was not liable on the policy; that plaintiff accordingly retained counsel for the trial of the accident case, in which judgment was recovered for $150; and this action is on the policy to recover for the amount paid in satisfaction of that judgment and also for reasonable counsel fees. The defense is that plaintiff failed to perform the condition of the policy requiring him to give immediate notice of the accident to the defendant, and in the event of a claim being made on account of the accident to give like notice of such claim. The condition of the policy is to be interpreted as meaning that the insured shall give immediate notice after the insured has become apprised of the accident, or should have become so apprised had he exercised reasonable diligence. There is, therefore, cast upon him the duty of so regulating his business that he may be apprised with reasonable certainty of any accident that may occur in its conduct. If, despite the exercise of reasonable care, the insured fails to acquire the information till after a lapse of time, but on its acquisition gives prompt notice to the insurance company, he complies with the obligation of the policy. Woolverton v. Fidelity Casualty Co., 190 N.Y. 41, 47, 48.
O'Brien, the injured man, identified plaintiff's manager, Ezechel, in court as having been present at the time of the accident and having been present when O'Brien was picked up by two other men who were in the store at the time, and testified that he remained in the store for five minutes, then limped out of the store, accompanied by one of plaintiff's clerks, and that plaintiff's manager, Ezechel, came over to the place where plaintiff fell. Ezechel, called as a witness by plaintiff, denied absolutely having any knowledge as to the happening of the accident; but, when cross examined as to testimony given by him on a former trial in which O'Brien was plaintiff, admitted testifying that he remembered seeing plaintiff leave the store with somebody from the store, and that when that person came back he asked for what reason he left the store with O'Brien, and that he replied that the boy scratched himself; and when on said former trial he was asked the question: "Q. Then you did know something about this thing having happened?", he answered: "Surely." In view of these admissions as to what he testified to on a former trial, Ezechel's denial of knowledge of the happening of the accident was entirely unworthy of credence, and the jury were not justified in basing a verdict on such denial. There is, however, further uncontradicted evidence of actual notice of the happening of the accident given to plaintiff's representative in charge of his business on July ninth, four days after the accident, and again on July 24, 1913, and that plaintiff's son opened the letter of July twenty-fourth, and replied thereto on the letter-head of the plaintiff on July twenty-ninth.
Plaintiff's son, called as a witness by plaintiff, admitted that one of these letters was opened by him and answered by him, and that he had authority to open the mail during his father's absence in Europe. These letters would constitute under the law of the case as laid down in the charge made by the trial judge to the jury sufficient notice to plaintiff of the happening of the accident to O'Brien to render it obligatory upon plaintiff, under the terms of the policy of insurance, to give immediate notice thereof to the company. In finding in favor of the plaintiff the jury have not only given undue credence to the denial by plaintiff's manager of knowledge of the happening of the accident, which denial was entirely discredited by admissions made upon a former trial, but have utterly disregarded the proof of written notice addressed to plaintiff at plaintiff's place of business shortly after the happening of the accident, whereby those left by plaintiff in charge of plaintiff's business became possessed of knowledge of the happening of the accident.
The verdict of the jury, therefore, was against the overwhelming weight of evidence, and cannot be allowed to stand.
The judgment must, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.
BIJUR and PHILBIN, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.