McCormick v. Potomac Insurance Co. of the District of Columbia, Washington, D. C.

229 A.D. 425, 243 N.Y.S. 241, 1930 N.Y. App. Div. LEXIS 10406

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1930
• Status: Published

Opinions

Per Curiam.

Strictly, the car was not unattended when the plaintiff left it at the curb in front of his residence, thirty feet distant while he went to get bis overcoat.

We construe the indorsement on the policy to mean that the policyholder will exercise due diligence and care in keeping the locking device in efficient condition on his car and in locking the same when the car is unattended as dictated by principles of common prudence and reason. (Allgood v. Hartford Fire Ins. Co., 186 N. C. 415.)

Leaving the car unlocked under the circumstances disclosed here was not sufficient so that plaintiff became charged with the lack of diligence required by the policy. He was exercising the degree of care that reasonable men would expect and there was no consequent violation of the terms of the policy. -

The judgment should be reversed on the law and the facts and judgment directed for the plaintiff on new findings in the amount of damages found by the referee.

Davis, Hill and Hasbrouck, JJ., concur; Whitmyer, J., dissents with an opinion in which Hinman, Acting P. J., concurs.