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Whittle v. Associated Indemnity Corp.

Decided: September 16, 1943.

JERRY WHITTLE, PLAINTIFF-RESPONDENT,
v.
ASSOCIATED INDEMNITY CORPORATION, DEFENDANT-APPELLANT



On appeal from the Supreme Court, Morris County.

For the appellant, I. Charles Lifland (Peter P. Artaserse, of counsel).

For the respondent, Edward F. Broderick (Edward M. Malone, of counsel).

Perskie

The opinion of the court was delivered by

PERSKIE, J. The questions for decision on the facts of this case are whether the trial judge erred in denying

appellant's motions for nonsuit and for a directed verdict, and in granting respondent's motion for a directed verdict.

Respondent suffered injuries as a result of an automobile accident on May 9th, 1941. To recover damages for the injuries which he sustained as a result of that accident, he sued Robert Wallace and Mechanical Process Corporation. That suit was tried on June 16th, 1942. It resulted in a directed verdict in favor of Mechanical Process Corporation and in a verdict of $11,524 in favor of respondent and against Robert Wallace. Execution was issued against Robert Wallace and was returned unsatisfied.

Whereupon, respondent sued appellant on its automobile policy of insurance which it had issued to E. V. D. Wallace (father of Robert Wallace) and Mechanical Process Corporation. By this policy, which is admittedly not controlled by our Financial Responsibility Act (N.J.S.A. 39:6-1, et seq.), appellant agreed to pay in behalf of the named assured all sums which the assured shall become obliged to pay by reason of the liability imposed upon them by law for bodily and property damage sustained by any person or persons, caused by accident and arising, among other things, out of the use of the automobile.

In addition to the specifically named assured, the policy also included any person as an assured who used that automobile for a purpose stated in the policy provided the actual use thereof was with the permission of a specifically named assured. It is admitted that Robert Wallace was such an additional assured at the time of the accident (May 9th, 1941), that he actually used the automobile for a purpose stated in the policy, and that such use was in pursuance of the express permission of his father.

The insurance was, however, subject to conditions. Among these are:

"8. Notice of accident.

"Upon the occurrence of an accident written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the ...


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