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Saxon v. United States Fidelity and Guaranty Co.

Decided: February 2, 1931.

WILLIAM SAXON ET AL., APPELLANTS,
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY, A CORPORATION OF MARYLAND, RESPONDENT



On appeal from the Supreme Court.

For the appellants, Louis C. Friedman (Jacob L. Bernstein, of counsel.)

For the respondent, McDermott, Enright & Carpenter (Carl S. Kuebler, of counsel).

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. On the trial of this case the judge directed a verdict in favor of the defendant and from the judgment entered thereon the plaintiffs appeal.

It appears that the plaintiffs had previously instituted a suit in the Passaic County Circuit Court against Louis Steinberg to recover for personal injuries sustained in an automobile accident, which they averred were due to the negligence of Steinberg. He did not appear to defend that suit and neither did the United States Fidelity and Guaranty Company which covered him for automobile liability insurance. A default judgment was entered and damages assessed. Such judgment was not paid. The plaintiffs in the Circuit Court action thereupon instituted this suit against the United States Fidelity and Guaranty Company to recover the amount of the judgment entered in their favor in the Circuit Court.

We think that the trial court properly directed a verdict in favor of the defendant-respondent.

The cases upon which the plaintiffs-appellants rely, namely, Gillard v. Manufacturer's Insurance Co., 93 N.J.L. 215; Connell v. Commonwealth Casualty Co., 96 Id. 510; Boyle v. Manufacturer's Liability Insurance Co., Ibid. 380; affirmed, 97 Id. 561, and Bess v. Commonwealth Casualty Co., 101 Id. 380, are jitney bus cases arising under chapter 136 of the laws of 1916, and are not controlling in the case at bar.

The policy in the present case insured Steinberg against liability for loss or expense arising from claims upon him in consequence of accident, by reason of the ownership or use of the automobile described therein, resulting in injury to persons, as specified by its terms.

As required by chapter 153 of the laws of 1924, the policy in the instant case contained a provision as follows:

"The insolvency or bankruptcy of the assured hereunder shall not release the company from the payment of damages for injuries sustained or loss occasioned during the life of this policy, and in case execution against the assured is returned unsatisfied because of such insolvency or bankruptcy in an action brought by the injured person or his or her personal representative in case death results from the accident, then an action ...


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