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Mesce v. Automobile Association of New Jersey

Decided: May 26, 1950.

WILLIAM MESCE, PLAINTIFF-RESPONDENT,
v.
AUTOMOBILE ASSOCIATION OF NEW JERSEY, A CORPORATION, AND ATLANTIC, CASUALTY CO., A CORPORATION OF NEW JERSEY, DEFENDANTS-APPELLANTS



On appeal from the Essex County District Court.

Colie, Eastwood and Jayne. The opinion of the court was delivered by Jayne, J.s.c. (Temporary assignment.)

Jayne

[8 NJSuper Page 132] The present appeal impugns the factual justification and the judicial propriety of a final judgment granted by the judge of the Essex County District Court in favor of the plaintiff and against the defendant Automobile Association of New Jersey.

The plaintiff obtained his judgment upon proof of the following congregation of facts. He had acquired a passenger automobile pursuant to a conditional sale agreement and with the financial aid of the First National Bank and Trust Company of Paterson, New Jersey. The insurance coverage was supplied by the Provident Washington Insurance Company of Rhode Island. In consequence of a mishap, the period of the insurance was terminated and the plaintiff was instructed by the bank to discontinue the use of the motor vehicle until other insurance was substituted.

The plaintiff had previously procured membership in the Automobile Association of New Jersey through the sponsorship of a Mr. Green. That circumstance doubtless induced him to communicate by telephone with the Association and inquire for Mr. Green in the effort promptly to provide the desired insurance. He was unable to confer with Mr. Green.

It may, however, be reasonably inferred that it was due to the telephone inquiries that on the evening of January 6, 1949, one James Mooney visited the plaintiff's residence. The plaintiff divulged to Mooney the circumstances of his plight and imparted to him his immediate need of insurance. Mooney possessed and displayed printed forms of the applications and receipts of the Association. The application was forthwith prepared, signed by the plaintiff as "applicant" and by Mooney as "producer." The plaintiff did not then have available the requisite $50 deposit, but he assured Mooney that it would be forthcoming on the following evening.

On the following evening Mooney returned and collected the deposit of fifty dollars. He delivered to the plaintiff a receipt for the payment on the printed form of the Association dated January 7, 1948 (sic) [1949] "on account of membership ins." to which he subscribed his signature on the line immediately beneath the title "Automobile Association of New Jersey." Mooney expressly represented to the plaintiff that by virtue of the application and the payment of the deposit, he acquired immediately comprehensive automobile insurance coverage and protection.

The secretary of the Association testified that Mooney was not in the employ of the Association and not authorized to act as its agent. He is characterized as a general insurance broker among which class such printed forms are distributed, presumably in conformity with the customary practice of insurance companies.

In the narrative of events to which the evidence relates is the assertion by Mrs. Worne of the Underwriting Department of the Association that having noticed on the application that the plaintiff's previous insurance had been cancelled, she personally composed and dispatched by mail to the plaintiff a letter on January 7, 1949, stating:

"We have received your application for insurance and thank you for same.

" We wish to advise however, that this application is not binding until our investigation has been completed."

The plaintiff denies that he received the letter. It is said, however, that a report on the plaintiff's application was forthwith requested from Retail Credit Co. It was conceded that such reports are not in all instances solicited and that in some, insurance ...


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