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Woloshin v. Century Indemnity Co.

Decided: July 9, 1936.

MORRIS WOLOSHIN, PLAINTIFF-RESPONDENT,
v.
"THE CENTURY INDEMNITY COMPANY" (A FOREIGN CORPORATION), DEFENDANT-APPELLANT



On appeal from the First Judicial District Court of the County of Essex.

For the defendant-appellant, Skeffington & Walker (Thomas G. Walker, of counsel).

For the plaintiff-appellee, Charles A. Amada (Samuel H. Nelson, of counsel).

Before Justices Trenchard, Heher and Perskie.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This is an appeal by the defendant below from a judgment rendered for the plaintiff by the judge of the District Court sitting without a jury.

The defendant insurance company (hereinafter called the defendant) on July 27th, 1933, issued its policy covering one Peller, as named assured, for liability arising from the operation of the automobile therein identified, in consideration of a premium therein named, and paid. On September 14th, 1933, by endorsement on the policy such automobile coverage was changed to a Chevrolet sedan, likewise identified. On February 18th, 1934, and before the expiration of the policy, the latter automobile was involved in an accident as a result of which the plaintiff below

sustained personal injuries, and he brought suit against the named assured and recovered a judgment. Execution issued and remained unsatisfied. Thereafter this suit was brought against the defendant and resulted in a judgment for the plaintiff.

The defendant on this appeal contends that its policy was void ab initio upon the ground that the warranty contained therein was that Peller, the named assured, had "complete ownership" of the car, whilst in fact he held title under a conditional bill of sale.

But that contention is ill-founded in law. The defendant relies upon the case of Hudson Casualty Insurance Co. v. Garfinkel, 111 N.J. Eq. 70. That case does not seem to be in point. That was a direct proceeding to cancel a policy. This case turns upon the effect of the statute herein considered. The policy now in question expressly provided that any coverage provided therein for liability for bodily injury or property damage "is hereby amended to conform with the provisions of the Motor Vehicle Financial Responsibility law of the state" in which the automobile is operated at the time of the accident. Under the policy, therefore, the defendant is liable thereon if made so by the terms of the Financial Responsibility law. Pamph. L. 1929, p. 195, as amended by Pamph. L. 1931, p. 334.

Now at the trial it was proved without dispute that in 1931, prior to the issuance of the policy in question, the named assured, while operating an automobile as driver, had an accident resulting in personal injuries or property damages to another of at least $100. When, therefore, the policy in question was issued to the assured in 1933, he was already in that category of persons of whom evidence of financial responsibility was required, and hence the defendant insurer subjected itself to liability under the Financial ...


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