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Migatz v. Jersey Mutual Casualty Insurance Co.

Decided: February 4, 1931.

HERBERT MIGATZ AND LORETTA MIGATZ, RESPONDENTS,
v.
JERSEY MUTUAL CASUALTY INSURANCE COMPANY, A CORPORATION, APPELLANT



On appeal from the Supreme Court.

For the respondents, Alexander Raskin and Isidore Hornstein.

For the appellant, George F. Seymour, Jr.

Kays

The opinion of the court was delivered by

KAYS, J. This is an appeal from a judgment entered on a verdict of a jury directed by his honor, Judge Mountain, at the Essex County Circuit. The judgment was against the

defendant, the Jersey Mutual Casualty Insurance Company, and in favor of the plaintiff Herbert Migatz, for the sum of $2,000, and in favor of the plaintiff Loretta Migatz, wife of Herbert Migatz, for the sum of $5,000.

It appears from the exhibits and pleadings in this case that in March, 1927, the plaintiffs, Herbert Migatz and Loretta Migatz, his wife, were injured in a collision between an automobile in which they were riding and a taxicab, or auto cab, owned by one Arthur Bennett, who was doing business as the Globe Taxi Company. In May, 1927, the plaintiffs brought suit in the Supreme Court against the defendant, Bennett, to recover damages for injuries received by them. The defendant, Bennett, did not file an answer within the time prescribed by the rules, and judgment interlocutory was entered against him under date of July 12th, 1927. On September 12th, 1927, an order for assessment of damages was entered. The defendant, Bennett, died on September 9th, 1927, and an order admitting the administrator to the suit was entered on November 19th, 1927, and a notice to assess the damages was then served upon the administrator. The assessment of the damages came on to be heard before Judge Smith and a jury at the Essex County Circuit on December 5th, 1927, and the jury assessed the damages of the plaintiffs in favor of Herbert Migatz for the sum of $2,000, and in favor of Loretta Migatz, his wife, for the sum of $8,000. The suits of both plaintiffs were included in one complaint, as is allowed under the practice. Judgments were entered in favor of the plaintiffs for the amounts above mentioned, a writ of execution was issued and returned by the sheriff unsatisfied. It appears that the Jersey Mutual Casualty Insurance Company issued an auto cab liability policy to Bennett under date of October 1st, 1926, which policy was in effect at the time of the accident. The policy was issued in accordance with the provisions of Pamph. L. 1926, p. 383, which is an act entitled "An act concerning auto cabs, commonly called taxis, and their operation in the state." This act, among other things, provides that an owner of an auto cab shall not be permitted to operate the same on the public

streets or highways "until the owner of such auto cab in any municipality shall have filed with the commissioner of motor vehicles an insurance policy of a company duly licensed to transact business under the insurance laws of the State of New Jersey in the sum of five thousand dollars ($5,000) against loss from the liability imposed by law upon the auto cab for damages on account of bodily injury or death suffered by any person or persons as a result of an accident occurring by reason of the ownership, maintenance or use of such auto cab upon any public street, road or highway, and such consent shall continue effective and such operation be permitted only so long as such insurance shall remain in force; such insurance policy shall provide for the payment of any final judgment recovered by any person on account of the ownership, maintenance and use of such auto cab or any default in respect thereto and shall be for the benefit of every person suffering loss, damage or injury as aforesaid."

In May, 1928, the respondents, who were the plaintiffs in the suit against Bennett, instituted this suit against the appellant here, the Jersey Mutual Casualty Insurance Company, under the policy of insurance issued by the said insurance company to the said Bennett. The suit was tried before the trial judge and a jury and resulted in the direction of a verdict by the court in favor of the plaintiff Herbert Migatz for the sum of $2,000, and in favor of the plaintiff Loretta Migatz for the sum of $5,000, for which sums judgment was entered. The defendant, the Jersey Mutual Casualty Insurance Company, has appealed from said judgment. The policy of insurance, as before stated, was issued pursuant to Pamph. L. 1926, p. 383, and was to indemnify the said Bennett "against loss arising from the liability imposed by law upon the assured for damages on account of bodily injuries or death suffered by any person or persons as a result of an accident occurring, while this policy is in force, by reason of the ownership, maintenance or use of the auto cab hereinafter described." The policy further stated: "The liability of the company for loss from any one judgment resulting in bodily injuries to or in the death of any one person

is limited to five thousand dollars ($5,000), and there shall be a continuing liability of the company for such amount under this policy, ...


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