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Kindervater v. Motorists Casualty Insurance Co.

Decided: October 2, 1936.

ANNA KINDERVATER ET AL., PLAINTIFFS-APPELLANTS,
v.
MOTORISTS CASUALTY INSURANCE COMPANY, DEFENDANT-RESPONDENT



On appeal from the Supreme Court.

For the appellants, Henry H. Eisenberg.

For the respondents, Harry Green and Nelson K. Mintz (Green & Green, attorneys of record).

Campbell

The opinion of the court was delivered by

CAMPBELL, CHANCELLOR. This is an appeal from a judgment of nonsuit in an action to collect judgments against the respondent, insurer of one Simoni, rendered against the latter arising from a collision of his and other motor cars. The happening involved three cars -- one owned and operated by Simoni; another owned by George Brodsky and then being operated by Moe Brodsky, and the third owned by one Doyle.

The appellants established their judgments; that they had not been paid by Simoni; that executions thereon were issued

and placed in the hands of the sheriff and on the same day that officer made return thereto as follows: "This writ is hereby returned unsatisfied by order of attorney of the plaintiff."

There was proof by and through Simoni that demand had been made upon him to pay the judgments which had not been complied with because "I had no money so I could not pay them." This was objected to but allowed and no exception to such ruling was taken. Again he testified he did not pay the judgments because "I did not have any money." This was objected to and the objection was sustained but the objection came after answer made and further there was the question: "Were you able to pay them?" Answer, "I was laid off," to which again there was an objection, sustained, but after answer given and then the witness volunteered, "I was unable to pay" -- to which the trial court said, "no, there is no question before us."

The trial court appears to have nonsuited the appellants upon the ground that the sheriff's return to the writ of execution did not show insolvency or bankruptcy of Simoni.

The grounds of appeal, naturally, are directed at an alleged error in granting the motion to nonsuit and we find that they are well taken.

Much of the argument before us is devoted to the insufficiency and impropriety of the return to the execution by the sheriff in that it was not based upon findings of that officer but rather upon the direction of the attorney for the judgment creditor and, therefore, it was not prima facie proof of insolvency, putting the insurance carrier to proof to the contrary as we held in Horn v. Commonwealth Casualty Co., 105 N.J.L. 616; Gee v. Independent, &c., Insurance Co., 109 Id. 563, 565. But we conclude that this precise question does not here call for an answer because we find that the contract of insurance extends to the plaintiffs-appellants a right of action against the respondent upon the former obtaining and holding unsatisfied final judgments against the assured.

The insurance contract provides: "The company is bound to the extent of its liability under ...


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