Claim of Kolb v. Brummer

Appellate Division of the Supreme Court of New York

Claim of Kolb v. Brummer

185 A.D. 835, 173 N.Y.S. 72, 1918 N.Y. App. Div. LEXIS 7512

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 22, 1918

StatusPublished

Cited by4 cases

This text of 185 A.D. 835 (Claim of Kolb v. Brummer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Kolb v. Brummer, 185 A.D. 835, 173 N.Y.S. 72, 1918 N.Y. App. Div. LEXIS 7512 (N.Y. Ct. App. 1918).

Pincite

Opinions

Lyon, J.:

Richard Brummer, the husband of the defendant Meta Brummer, was engaged in the business of trucking. He held a policy issued by the defendant New Amsterdam Casualty Company of date August 31, 1916, which ran for one year and upon which he had paid the estimated premium. He died June 28, 1917, leaving a will by which he gave all his property to his wife. His wife took charge of and conducted his business for about two weeks during his last sickness, [837]*837and after Ms death continued the business in the same way. About the middle of July, 1917, as she testifies, she informed the broker through whom the insurance was procured of the death of her husband, and delivered to him the policy to mail the same to the insurer. He wrote on the outside of the policy the words, “ Kindly transfer this insurance to Meta Brummer, and return the policy to me, Buxbaum,” and mailed the policy to the insurance company, as he testifies. The insurer attached to the policy a writing dated August 22, 1917, as follows: “ The interest in this policy is hereby transferred from twelve o’clock noon of this date to Meta Brummer.” On the preceding day, August 21, 1917, the claimant was in the employ of Meta Brummer and about nine o’clock in the morning suffered an accidental injury to the index finger of his right hand which resulted in the loss of the finger.

On August 23, 1917, Meta Brummer, as employer, filed a claim for compensation. On October 8, 1917, the company presented a bill to her for additional insurance premium under said policy, which she paid in full. The policy had expired the August preceding. The insurance company claims it was not notified of the accident until November 12, 1917. She made a report of the injury August 23, 1917, as the employer, and thereafter an award of compensation was made to the claimant against her as an employer. On her application the award was opened, a rehearing had, and an award made against her and the New Amsterdam Casualty Company, as insurer, from which tMs appeal has been taken.

The policy contained the following condition: “Assignment. Condition J. No assignment or change of interest under tMs policy shall bind the Company unless its consent shall be indorsed hereon or attached hereto signed by a duly authorized officer of the Company.” No act was done by Meta Brummer in reliance upon the belief that the company had consented to the transfer of the policy to her, which would estop the appellant. The liability of the insurer did not exist as to Meta Brummer until it had made a binding contract with her. It was not an insurance of property but against personal liability and hence the insurance was personal. The performance of tMs condition of the policy was essential [838]*838to create liability against the insurer to another than the person to whom the policy was issued. An application for insurance to secure compensation would not charge the insurer until a contract was made. I do not think the collection of the balance of the earned premium estops the insurer from contesting liability under the contract. The bill was not presented until October eighth, and the company had no knowledge of the accident until November twelfth. Nor do I think that subdivision 5 of section 54 of the Workmen’s Compensation Law is effective. This was not a cancellation of an insurance contract within the meaning of that term as used in that section. The parties had the right to insert any lawful conditions in the contract. (Allen v. German American Ins. Co., 123 N. Y. 6, 13; Dwight v. Germania Life Ins. Co., 103 id. 341; Gans v. Ætna Life Ins. Co., 214 id. 326.)

The defendant insurance company might have had a good reason for not assenting to a transfer of interest. The management of the business had changed and they were no longer protected by the oversight of the husband. While the Commission has the power to determine whether the policy still existed it must determine that question on recognized principles of law. (Matter of Skoczlois v. Vinocour, 221 N. Y. 276.)

The award must be reversed so far as it is against the New Amsterdam Casualty Company.

All concurred, except John M. Kellogg, P. J., dissenting, with an opinion in which Woodward, J., concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

Lyon, J.:

Richard Brummer, the husband of the defendant Meta Brummer, was engaged in the business of trucking. He held a policy issued by the defendant New Amsterdam Casualty Company of date August 31, 1916, which ran for one year and upon which he had paid the estimated premium. He died June 28, 1917, leaving a will by which he gave all his property to his wife. His wife took charge of and conducted his business for about two weeks during his last sickness, [837]*837and after Ms death continued the business in the same way. About the middle of July, 1917, as she testifies, she informed the broker through whom the insurance was procured of the death of her husband, and delivered to him the policy to mail the same to the insurer. He wrote on the outside of the policy the words, “ Kindly transfer this insurance to Meta Brummer, and return the policy to me, Buxbaum,” and mailed the policy to the insurance company, as he testifies. The insurer attached to the policy a writing dated August 22, 1917, as follows: “ The interest in this policy is hereby transferred from twelve o’clock noon of this date to Meta Brummer.” On the preceding day, August 21, 1917, the claimant was in the employ of Meta Brummer and about nine o’clock in the morning suffered an accidental injury to the index finger of his right hand which resulted in the loss of the finger.

On August 23, 1917, Meta Brummer, as employer, filed a claim for compensation. On October 8, 1917, the company presented a bill to her for additional insurance premium under said policy, which she paid in full. The policy had expired the August preceding. The insurance company claims it was not notified of the accident until November 12, 1917. She made a report of the injury August 23, 1917, as the employer, and thereafter an award of compensation was made to the claimant against her as an employer. On her application the award was opened, a rehearing had, and an award made against her and the New Amsterdam Casualty Company, as insurer, from which tMs appeal has been taken.

The policy contained the following condition: “Assignment. Condition J. No assignment or change of interest under tMs policy shall bind the Company unless its consent shall be indorsed hereon or attached hereto signed by a duly authorized officer of the Company.” No act was done by Meta Brummer in reliance upon the belief that the company had consented to the transfer of the policy to her, which would estop the appellant. The liability of the insurer did not exist as to Meta Brummer until it had made a binding contract with her. It was not an insurance of property but against personal liability and hence the insurance was personal. The performance of tMs condition of the policy was essential [838]*838to create liability against the insurer to another than the person to whom the policy was issued. An application for insurance to secure compensation would not charge the insurer until a contract was made. I do not think the collection of the balance of the earned premium estops the insurer from contesting liability under the contract. The bill was not presented until October eighth, and the company had no knowledge of the accident until November twelfth. Nor do I think that subdivision 5 of section 54 of the Workmen’s Compensation Law is effective. This was not a cancellation of an insurance contract within the meaning of that term as used in that section. The parties had the right to insert any lawful conditions in the contract. (Allen v. German American Ins. Co., 123 N. Y. 6, 13; Dwight v. Germania Life Ins. Co., 103 id. 341; Gans v. Ætna Life Ins. Co., 214 id. 326.)

The defendant insurance company might have had a good reason for not assenting to a transfer of interest. The management of the business had changed and they were no longer protected by the oversight of the husband. While the Commission has the power to determine whether the policy still existed it must determine that question on recognized principles of law. (Matter of Skoczlois v. Vinocour, 221 N. Y. 276.)

The award must be reversed so far as it is against the New Amsterdam Casualty Company.

All concurred, except John M. Kellogg, P. J., dissenting, with an opinion in which Woodward, J., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

185 A.D. 835, 173 N.Y.S. 72, 1918 N.Y. App. Div. LEXIS 7512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-kolb-v-brummer-nyappdiv-1918.

Opinions

Related

Cite This Page — Counsel Stack