Tolmie v. Fidelity & Casualty Co.

McLaughlin, J.: On the 2d of Hovember, 1895, one Bobert Wood and Mur do Tolmie, composing the firm of Wood & Tolmie, entered into acon- ■ tract with the city of Hew York to build for it a public overlook in Corlears Hook Park and agreed that during the performance of the work they would place proper guards around the same and at night keep suitable and sufficient lights for the prevention of accidents, and would indemnify the city against any and all liability or damage which it might sustain by reason of their negligence. A few days later they entered into a contract with M. Kane & Son, by which the latter agreed to do all the excavating and furnish all the materials necessary for the erection of the building, and also “to be responsiblé for any accident caused to persons or property through inattention, * * * defective materials or the carelessness or neglect of * * * workmen while in the performance of this contract.” Wood & Tolmie, prior to entering into the contract with the city, obtained from the defendant a policy of indemnity insurance, by which the defendant agreed to indemnify them in the aggregate sum of $10,000, and to any one person in the sum of $1,500, for a ^period of one year against liability for' damages on account of fatal or non-fatal injuries accidentally suffered by any of their employees, and by an indorsement annexed to and forming a part of the policy the indemnity was extended so as to cover their liability to workmen employed by other contractors and the public arising out of personal injuries caused by them or their workmen, “ but not caused by a subcontractor or sub-contractor’s workmen.” On the 19th of Hovember, 1895, one Me Gann fell into an unguarded excavation, which- had been made for said building, and sustained [355] injuries for which he claimed damages against the city, and subsequently brought an action to enforce the same. The defendant was notified by Wood & Tolmie of McCann’s injury, in accordance with the terms of the policy, and we think a fair consideration of all the evidence shows that it had notice of the commencement of the action by McCann against the city, and that it was requested, or at least had an opportunity, to defend the same. Its attorney did take charge of the trial,-though he-testified, and the jury found, that in doing so he acted for the city and not for this defendant. It is, however, in view of the conclusion at which we have arrived, of no importance in which capacity he acted. After the commencement of the McCann action certain moneys of Wood & Tolmie were retained under a clause in their contract with the city for the purpose of indemnifying the latter against any sum which it might become liable to pay in that action, and for the purpose of releasing such funds, on the 28th of March, 1896, they and the City Trust, Safe Deposit and Surety Company of Philadelphia, gave a bond to the city which provided that in consideration of the city’s paying the moneys due to the plaintiff they would indemnify and save it harmless against “ all loss; damage, costs, charges and expenses ” to which it might be put or which might be recovered against it .by reason of the McCann claim and action brought by him, “ whether groundless or otherwise,” and would pay and satisfy all -judgments-which might be recovered by McCann by reason thereof. On the 14th of May, 1898, McCann recovered a judgment against the city for $1,727.35, and after the same had been paid the city brought an action against Wood & Tolmie and the City Trust, Safe Deposit and Surety Company of Philadelphia upon their undertaking. A recovery was had, each of the defendants offering judgment for the amount claimed. After this- judgment had been paid .to the city, - this plaintiff, as the surviving member of the firm of Wood. & Tolmie, brought this action to recover from the defendant the sum of $1,500 upon its policy df indemnity. At the trial the plaintiff introduced in evidence the judgment roll in the case of McCann against the city, but offered no proof dehors the record as to whether the accident was caused bj the negligence of Wood & Tolmie or their sub-contractor, M. Kane & Son. At the conclusion of the trial two questions were sub [356] mitted to the jury: (1) Whether the attorney who defended the action of McGann against the city did so for the city or this defendant ; and (2) whether such attorney had notice of the commencement of the action by the city against this plaintiff ? In answer to these' questions the jury found (1) that such attorney acted solely for the city; and' (2) that he did have notice of the commencement of the action by the city against this plaintiff. The court thereuptin — both parties having moved for the direction of a verdict — directed a verdict in favor of the defendant, to which plaintiff excepted, and from the judgment thereafter entered in accordance therewith, plaintiff has appealed. I am of the opinion that the judgment should be affirmed. The plaintiff failed to prove a material fact which rendered the defendant liable under its policy. The policy did not indemnify Wood & Tolmie against personal injuries caused by a sub-contractor or a subcontractor’s workmen, and before a recovery could be had it was necessary to prove that the injury to McGann was “ caused by the assured or by the assured’s own workmen ” and not by M. Kane & Son or their workmen. The fact that such proof had to be made was appreciated by the pleader who drew the complaint, because it is there alleged that the injury to McGann “.was not caused by a sub-contractor or sub-contractor’s workmen, but it was claimed * * * to have been caused by the negligence of the said Wood & Tolmie and their workmen and employees.” The evidence satisfactorily established that the defendant had notice of, and was afforded, an opportunity to defend the faction brought by McGann against the city. The judgment roll in that action, therefore, is conclusive evidence against it of the defect which caused the injury, the injured party’s freedom from negligence and the amount recovered (Mayor, etc., v. Brady, 151 N. Y. 611; Carleton v. Lombard, Ayres & Co., 149 id. 137; Oceanic Steam Navigation Co. (Ltd.) v. Campania Trans. Espanola, 144 id. 663), but it does not establish, nor was any evidence offered from which the jury could find, whether the defect which caused the injury was due to the- negligence of Wood .& Tolmie or to the negligence of M. Kane & Son. The plaintiff having failed to show that the same was caused by the former instead of. the latter, the court could not do otherwise than dismiss the complaint or direct a verdict for the defendant. [357] I am also of the opinion that the judgment should he affirmed because the action was not brought within the time specified in the policy. The policy provided that “No action shall lie against the company after the expiration of the period within which an action for damages on account of the given injuries or death might be brought by such claimant or his representatives against the assured unless, at the expiration of said period, there is a suit arising out of such accident pending against the assured, in which case an action may be brought in respect to the claim involved in such action against the company by the assured within thirty days after final judgment is rendered in such suit, and not later,” ■ McGann was injured on the 19th of November, 1895, and an action to recover damages therefor had to be brought within three years thereafter. (Code Civ. Proc. § 383, subd. 5.) No action.was pending against the plaintiff in this action at the expiration of such time, nor was any action ever brought by McG-ann or any one else against this plaintiff on a cause of action “ arising out of such accident ” for damages on account of the “ given injuries.” The only'action brought against the plaintiff was that brought by the city, which arose out of a bond given by him and the City Trust, Safe Deposit and Surety Company of Philadelphia, and that was commenced on or subsequent to January 4, 1899. The parties had a right to prescribe a shorter limitation for the enforcement of an action under the policy than that provided by. statute. Such right is recognized in section 414 of the Code of Civil Procedure, where it is provided that the general provisions of chapter 4 of said Code shall not apply to “ a case where a different limitation is specially prescribed by law or a shorter limitation is prescribed by the written contract of the parties.” (Id. subd. 1.) Thus it was held in Wilkinson v. First National Fire Ins. Co. (72 N. Y. 499), where a policy of insurance contained a provision that no suit for the recovery of any claim thereunder should be sustained unless commenced within twelve months after loss or damage, that an action commenced after the expiration of the twelve months would not be maintained; that an injunction restraining the insurance company from paying and the insured from receiving any money on account of the loss of the insured [358] property until the further order of the court was not a waiver of that provision of the policy. This case was followed in Arthur v. Homestead Fire Ins. Co. (78 N. Y. 462). There an action was-brought upon a fire insurance policy which contained a limitation clause of one year, and the plaintiff’s recovery was reversed upon the ground that the action, having been commenced after the time prescribed in the policy, was too late. It was also followed in the recent case of Sullivan v. Prudential Ins. Co. (172 N. Y. 482), where it was held that an action could not be maintained upon a policy of life insurance, inasmuch as it had not been commenced within the time provided in the policy. The same rule was applied by this court in People v. American Steam Boiler Ins. Co. (10 App. Div. 9). In the case now before us the defendant’s policy provided, as We ■ have already seen, that an action could not be maintained upon it after the expiration of the period within which an action for damages on account of the injuries or death might be brought — which was three years — unless at the expiration of that period there was a suit arising out of such accident pending against the assured. There was no such action pending at the expiration of three years, and, therefore, by express provision of the policy, the present action having been thereafter brought could not be maintained. ■ Other, errors are alleged, but the conclusion thus reached renders it unnecessary to pass upon them. The judgment and order are fight and should be affirmed, with costs. Patterson, O’Brien and Laughlin, JJ., concurred; Ingraham, J., dissented.