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Ambrose v. Indemnity Insurance Co.

Decided: May 11, 1938.

JOSEPH AMBROSE, PLAINTIFF-APPELLANT,
v.
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, DEFENDANT-RESPONDENT



On appeal from a judgment of the Supreme Court.

For the plaintiff-appellant, Edmund A. Hayes.

For the defendant-respondent, George L. Burton and Mark Townsend, Jr.

Donges

The opinion of the court was delivered by

DONGES, J. This is an appeal from a judgment of nonsuit in a suit by appellant against the respondent to recover the amount of a verdict obtained by plaintiff-appellant against his brother, John Ambrose, and another, for injuries sustained by the appellant by being struck by an automobile stored in a garage operated by his brother, into which automobile Gus Viehweger, an employe of the brother, had driven a Reo wrecker belonging to said John Ambrose.

On June 10th, 1936, plaintiff recovered a judgment against John Ambrose and Viehweger in the sum of $6,080.85. Execution was issued on said judgment and returned unsatisfied. Thereupon appellant instituted this suit.

It is beyond question that defendant, on June 30th, 1935, issued to John Ambrose a policy of insurance to pay any loss, not exceeding $10,000 for bodily injuries or death of one person, by reason of liability imposed by law upon the assured arising out of injuries to such person resulting from the operation of the wrecker here involved.

The defendant denied liability on the ground that the assured had breached certain warranties contained in the policy with respect to the assured's business or occupation. Appellant asserts in his amended reply that there were no breaches of warranty. It was upon this ground that the judgment of nonsuit was entered.

We do not deem it necessary to pass upon this question, for the reason that we conclude that the insurer is precluded from raising this defense by the terms of the Motor Vehicle Financial Responsibility law. Pamph. L. 1929, ch. 116, p. 195, as amended and supplemented by Pamph. L. 1931, ch. 169, p. 334.

The policy in question provided that the insurance afforded by the policy should be "subject to the provisions of any

applicable Motor Vehicle Financial Responsibility act * * * which may be or become effective while this policy is in force to the extent of the coverage * * *."

Plaintiff contended below and argued here that the defense of breach of warranty is not available to defendant because of the provisions of the Motor Vehicle Financial Responsibility act. It appears that on February 27th, 1930, a school bus owned by John Ambrose, operated by one Harold Mulbar, killed Blair Clark, a child, in Piscataway township. The proof was uncontradicted that Ambrose had ...


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