Opinion
December 12, 1968
Appeal from the Oneida Trial Term.
Present — Bastow, P.J., Goldman, Del Vecchio, Witmer and Henry, JJ.
Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: Contrary to the contention of appellant an issue of fact was presented as to whether or not the notice of assessment was mailed by defendant. The finding implicit in the verdict that the notice was not mailed is not contrary to the evidence. Moreover, the jury could have found upon all the evidence (and presumably did find) that timely notice of accidental death was given to defendant. If the latter had wanted additional facts it could have transmitted blank proofs of loss to claimant accompanied by an appropriate message that it was waiving none of its rights. We conclude, however, that a new trial is required because of the inadequate and prejudicial jury instructions. The crucial issue — mailing and receipt of the notice of assessment — was scarcely touched upon in the main charge. Moreover, the meagre remarks of the trial court on the subject were prejudicial to appellant. Among other things, the court stated that the jury had "the right to consider the past record of [insured] as to promptness of payment for many years * * *. Is it reasonable to believe that he would suddenly abandon his sister to the vicissitudes of life at this late date?" To all of which there was timely exception.