Hyperlawhypertext legal databasebeta Stonborough v. Preferred Accident Insurance Co. of New York 292 N.Y. 154

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Stonborough v. Preferred Accident Insurance Co. of New York

292 N.Y. 154 Court N.Y. Decision date 1944-03-02 English

Judges Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ. concur.

Contents

Majority

p. 154
Elizabeth C. Stonborough, Respondent, v. Preferred Accident Insurance Company of New York, Appellant.
Argued January 3, 1944;
decided March 2, 1944.
Irving I. Goldsmith and Jos. L. Roesch for appellant.

Headnote

The appellant is not liable to the respondent on the policy it issued to her husband. (Fuchs v. London & Lancashire Indemnity Go., 171 Mise. 908, 258 App. Div. 603 ; Materazsi v. Commercial Casualty Ins. Co., 157 Mise. 365; 755 Seventh Ave. Corp. v. Carroll, 266 N. Y. 157 ; Weatherwax v. Royal Indemnity Co., 250 N. Y. 281 ; Coster v. Coster, 289 N. Y. 438 ; Gutta Percha'& R. Mfg. Co. v. Mayor, 108 N. Y. 276 ; Hellstern v. Hellstern, 279 N. Y. 327 ;
p. 155
Matter of Whitney & Kitchen, 146 App. Div. 45 ; Jennings v. Louchs, 163 Mise. 791; Fox v. Employers’ Liability Assur. Corp., 243 App. Div. 325 , 267 N. Y. 609 ; Lorando v. Gethro, 228 Atass. 181.)
Philip Hoffer and James A. Doherty for respondent.
Under an automobile liability policy, tbe company’s liability must be read as of tbe day of tbe accident and not as of tbe date of tbe judgment. Tbe judgment should be affirmed. (Messersmith v. American Fidelity Co., 232 N. Y. 161 ; DiMarco v. Ciccone, Inc., 287 N. Y. 601 ; Green Bus Lines v. Ocean Acc. & Guaranty Corp., 287 N. Y. 309 ; Brassil v. Maryland Casualty Co., 210 N. Y. 235 ; Douglas v. United States Fidelity & Guar. Co., 127 A. 708 ; Rosell v. Rosell, 281 N. Y. 106 ; New Amsterdam Casualty Co. v. Mandel, 170 A. 19 .)

A motor vehicle liability policy issued by tbe defendant to Thomas Stonborough undertook to pay on bis behalf — “ all sums which tbe insured shall become obligated to pay by reason of tbe liability imposed upon him by law for damages, * ⅞ # sustained by any person or persons, caused by accident and arising out of tbe ownership, maintenance or use of tbe (insured’s) automobile.” On tbe date when tbe plaintiff was injured in tbe automobile covered by that policy she was not married to tbe insured. When later an action was instituted by her against tbe insured, and when judgment in that action in her favor was entered against tbe insured, she bad become tbe insured’s wife. In tbe present action by tbe same plaintiff against tbe defendant insurer to recover tbe amount of such judgment entered by tbe plaintiff against tbe insured (her husband), payment is resisted upon tbe ground that tbe insurer incurred no liability because at tbe time judgment was obtained tbe plaintiff was tbe insured’s wife and tbe policy which is tbe basis of tbe suit did not contain tbe express provision required by section 167, subdivision 3, of tbe Insurance Law covering liability for injuries sustained by tbe insured’s spouse.

By tbe terms of tbe policy tbe liability of tbe insurer became fixed on tbe happening of tbe accident, at which time tbe plaintiff and tbe insured were not married. We have not overlooked tbe ruling to tbe contrary in Fuchs v. London & Lancashire

p. 156
Indemnity Co., 258 App. Div. 603 , which was not reviewed by this court.

The judgment should be affirmed, with costs.

Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ. concur.

Judgment affirmed.

Cases cited