Rosenwasser v. Globe Indemnity Co.

Headnote

Rosenwasser v. Globe Indemnity Co., 183 App. Div. 882 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department,

entered March 5, 1918, affirming a judgment in favor of plaintiff entered upon an order of Special Term granting a motion by plaintiff for judgment in his favor upon the pleadings. The action was upon a policy of liability insurance which contained the following provision: “ In consideration of the special rate at which this policy is written, it is understood and agreed that during the term thereof the Assured will at no time keep in his employ more than one chauffeur without notice to the Company and the payment of a proper additional premium therefor, and that without such notice to the Company and the payment of such additional premium this policy covers the operation of the automobiles herein described only while said automobiles are being operated by Chauffeur Eldridge Huntoon, or any one employed as his successor by reason of said chauffeur’s illness or discharge, or by the Assured when accompanied by the chauffeur named above or his successor.” The complaint alleged that an action having been commenced against plaintiff for damages arising from a collision with one of his automobiles, the papers therein were turned over to defendant which took full charge of the case and arranged a settlement, but that defendant refused to reimburse plaintiff for the amount paid thereunder on the ground of violation of the above provision of the policy; that at the time the defendant undertook defense of the action and arranged its settlement it knew plaintiff’s car at the time of collision was not driven by the chauffeur named in the policy or his successor or by plaintiff when so accompanied; that by reason thereof it waived said provision of the policy and is liable to plaintiff. Defendant demurred on the ground that the complaint did not state facts súfficient to constitute a cause of action.