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Nakonieczny v. Commonwealth Casualty Co.

Decided: June 30, 1933.

ANDREW NAKONIECZNY, PLAINTIFF-RESPONDENT,
v.
COMMONWEALTH CASUALTY COMPANY, NOW KNOWN AS INDEPENDENCE INDEMNITY COMPANY, DEFENDANT-APPELLANT



On appeal from the District Court of the city of Passaic.

For the appellant, Holmwood & Creighton (William E. Holmwood and Frank J. Brunetto, Jr., of counsel).

For the respondent, Feder & Rinzler.

Before Brogan, Chief Justice, and Justices Trenchard and Case.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. The defendant company issued an automobile policy of insurance to the plaintiff, the terms of which,

as amplified by an endorsement attached to and made a part thereof (in conformity with the New Jersey Financial Responsibility act, Pamph. L. 1929, ch. 116), we shall hereinafter state. Within the term of the policy, a collision occurred by reason of the ownership and use of the automobile described in the policy, and as a result thereof a suit was brought by the owner of the other automobile, which was involved in that collision, against the assured (the plaintiff in the present action), to recover for damages to his automobile and for personal injuries sustained in the collision, and that suit resulted in a judgment being entered in his favor against the assured. The summons and state of demand which were served in that action upon the assured were immediately forwarded to the defendant company in strict compliance with the policy, but the defendant returned them to the assured, refusing to investigate the collision, or the claim for damages, and refusing to defend the action.

The result of that suit was, as already indicated, that a judgment was entered in favor of the plaintiff therein against the assured (plaintiff in the case at bar).

Plaintiff thereupon brought this action, on the policy, against the defendant to recover the amount of such judgment.

The policy (with its endorsement) was received in evidence, and the facts, as above recited, were stipulated at the trial of this action by counsel for the parties.

At the trial the defendant made a motion for a nonsuit on the sole ground that "it has not been shown that judgment has been paid by the plaintiff in this case." Also a motion was made for a direction of a verdict for the defendant upon substantially the same ground. While the denial of both of these motions is made the basis of the defendant's appeal, it will be necessary to consider only the question raised on the motion to nonsuit, because that is the only question argued, the defendant expressly declining to argue any other question.

We think that the trial court did not err in denying the motion for a nonsuit.

As already indicated, the sole contention made below and here by the defendant was and is that ...


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