On defendant's appeal from the District Court.
For the appellant, David Green.
For the respondent, Irving Siegler.
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
PARKER, J. The appeal is from a judgment entered by the District Court, sitting without jury, in a suit against appellant as insurer of one William Simoni, owner of an automobile, against claims for damages arising out of his operation of such automobile. The car in question seems to have been of the coupe type, and used by Simoni in connection with his personal affairs. There was a collision with plaintiff's car, driven by plaintiff's father, Moe Brodsky, doing damage to plaintiff-respondent's car, on account of which the plaintiff recovered a judgment against Simoni in the Elizabeth District Court. Execution having been returned unsatisfied, the present suit was begun against the insurer of Simoni.
Several defenses were interposed and overruled by the court either at the trial or in the award of judgment, and for the most part they are invoked on this appeal. Without passing on all the points raised, we think that one suffices for a reversal, viz., breach by Simoni of the policy provisions relating to his conduct as regards the insurer in case of accident and claim therefor.
Provision C of the policy reads in part as follows:
"Whenever requested by the company the assured shall aid in effecting settlements, securing information and evidence, the attendance of witnesses and in prosecuting appeals. The assured shall at all times render to the company all co-operation within his power. Except as herein elsewhere provided for, the assured shall not voluntarily assume any liability, settle any claim or incur any expense, except at his own cost, or interfere in any negotiations for settlement or legal proceedings without the consent of the company previously given in writing."
The point now considered is not within any provision alluded to in the excepting clause above, and is within the general clause. It is, that Simoni had "voluntarily assumed liability" for the accident. This was made entirely clear, and apparently without contradiction, by the testimony of two witnesses, and the production and admission into evidence of an affidavit of Simoni, stating that he had signed, after reading it, and shortly after the accident, a paper reading as follows:
"William Simoni do admit colliding, damaging and injuring the occupants in automobile operated by Moe Brodsky on the highway to the Victory bridge named Scott avenue, namely an Oldsmobile coach and my car, a Chevrolet coupe. Accident occurring on ...