On appeal from the Supreme Court.
For the appellant, Cox & Walburg.
For the respondents, Robert I. Kuritzky.
The opinion of the court was delivered by
HETFIELD, J. This is an appeal from a summary judgment entered in the Supreme Court, Somerset Circuit, as the result of an answer filed by the appellant being struck as frivolous. It appears that the respondents recovered a judgment against the defendant's assured, one Isaac Krinick, for approximately $2,800. Execution was then issued, and returned unsatisfied, and subsequently, suit was instituted against the present appellant, under the terms of the liability policy issued to Krinick.
The answer filed by the appellant admits that the policy of insurance was issued to Krinick, covering the automobile involved in the accident, and that judgment, as alleged in the complaint, was recovered by the present respondents against Krinick. It then sets up, in substance, as a defense, that the accident suit was based upon willful injury to the present respondent Elizabeth Stefus; and that the trial judge instructed the jury that they could not find against the defendant unless they found that he was guilty of willfully injuring the said Elizabeth Stefus. The grounds of appeal are, in effect, that the Supreme Court erred in striking out the answer of the defendant, and entering summary judgment "for the reason that the policy of insurance on which this suit is brought insures and indemnifies its named assured only for injuries to third persons accidentally sustained and not for injuries to third persons willfully or wantonly inflicted by its assured." The appellant's contention is, that the accident case was instituted against the defendant's assured for injuries willfully or wantonly afflicted. Therefore, if the records do not support this proposition, the action of the Supreme Court was proper, and the judgment should be affirmed. The record of the accident case, kept as a memorial in the Supreme Court clerk's office, consists of the pleadings, postea and judgment. The postea discloses a general verdict against the defendant Krinick in favor of Elizabeth Stefus, for $2,000, and in favor of her husband, Michael Stefus, for $302.20. An examination of the complaint filed, shows that
it alleged that the defendant owned and operated an automobile, and that while the plaintiff Elizabeth Stefus was standing on the running-board of his car, conversing with him, defendant suddenly started his car, and the said Elizabeth Stefus was thrown from the running-board and dragged along the road, sustaining injuries; and that such injuries "were caused solely by the carelessness, negligence and recklessness of the defendant in starting said car as aforesaid * * *." There does not appear in the complaint any allegation charging that the injuries were willfully or wantonly inflicted.
The appellant, in its answer in the present case, as well as in its brief, refers in many instances to the rulings and charge of the court in the accident case; and as neither the said rulings or charge are a part of the record in the accident case, they are not properly before us, and therefore are unavailable to the appellant. Union Garage Co. v. Wilner, 98 N.J.L. 441.
The judgment under review will be affirmed.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, CASE, BODINE, VAN BUSKIRK, HETFIELD, DEAR, WELLS, DILL, JJ. 10.
For reversal -- LLOYD, DONGES, HEHER, KAYS, JJ. 4.
LLOYD, J. (Dissenting.) I regard this case as of such far reaching effect and the view of the majority so fundamentally unsound that I cannot forbear stating my views in dissent. The facts are stated in the ...