On appeal from the Supreme Court, whose opinion is printed in 14 N.J. Mis. R. 812.
For the appellant, Laurence Semel (Meyer M. Semel, of counsel).
For the respondent, George R. Jackson (William P. Braun, of counsel).
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment of the Supreme Court reversing a judgment of $500 entered in the District Court by the judge sitting without a jury, in favor of the plaintiff-appellant, and against the defendant-respondent.
On March 1st, 1934, the defendant company issued its policy to the plaintiff wherein it agreed to insure and indemnify him from March 1st, 1934, to March 1st, 1935, against any loss by reason of any claims against him arising out of accident involving a certain Ford truck owned by the plaintiff.
On or about December 17th, 1934, the truck became involved in an accident wherein one Harry Wasylik was killed, and suit was brought by his administratrix ad prosequendum against the plaintiff, Edwin F. Marx, in the New Jersey Supreme Court for damages and the plaintiff notified defendant company, but it refused to defend said suit, disclaiming all liability under the policy by reason of alleged violations thereof by the plaintiff.
The suit was successfully defended by Marx and the present action is against the defendant insurance company to recover the moneys paid or agreed to be paid by him for attorney's fees and other expenses incurred in the defense of said suit.
By the terms of the policy the defendant company agreed to defend in plaintiff's name and behalf any suit against him for damages on account of bodily injuries or property damage.
We must look to the provisions of the policy itself in order to ascertain whether under the proofs presented, the policy was in force and effect at the time of the accident.
"The terms of the policy constitute the measure of the insurer's liability, and there can be no recovery thereon by
insured where he has violated or failed to perform its conditions, or its warranties are not literally true or fulfilled, in the absence of an estoppel or waiver on the part of the company. A breach of warranty will avoid the policy, although there is no provision to that effect in the ...