Herr v. Commercial Travelers Mutual Accident Ass'n of America

Appellate Division of the Supreme Court of New York

Herr v. Commercial Travelers Mutual Accident Ass'n of America

31 A.D.2d 732, 297 N.Y.S.2d 294, 1968 N.Y. App. Div. LEXIS 2725

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

DecidedDecember 12, 1968

StatusPublished

This text of 31 A.D.2d 732 (Herr v. Commercial Travelers Mutual Accident Ass'n of America) 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

Herr v. Commercial Travelers Mutual Accident Ass'n of America, 31 A.D.2d 732, 297 N.Y.S.2d 294, 1968 N.Y. App. Div. LEXIS 2725 (N.Y. Ct. App. 1968).

Pincite

Opinion

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. (Appeal from judgment of Oneida Trial Term in action on insurance policy.) Present — Bastow, P. J., Goldman, Del Veeehio, Witmer and Henry, JJ.

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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. (Appeal from judgment of Oneida Trial Term in action on insurance policy.) Present — Bastow, P. J., Goldman, Del Veeehio, Witmer and Henry, JJ.

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Bluebook (online)

31 A.D.2d 732, 297 N.Y.S.2d 294, 1968 N.Y. App. Div. LEXIS 2725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herr-v-commercial-travelers-mutual-accident-assn-of-america-nyappdiv-1968.