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Isaacson v. Boswell

Decided: February 26, 1952.

OSCAR ISAACSON, PLAINTIFF-APPELLANT,
v.
LOUISA BOSWELL AND DONALD E. SHERWOOD, DEFENDANTS-RESPONDENTS



McGeehan, Jayne, and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

This action has the complexion of a test case presented in its comparative or contrastive relation to that of Kelleher v. Lozzi , 7 N.J. 17 (1951). It must be acknowledged that the influence of a legal rule enunciated in a precedential case is measured in accordance with whether it does or does not "fit" the case at bar. Each decision should always be recognized in the light of its coherence with the factual circumstances of the case it decides.

A chronological narrative of the notable occurrences will reveal the ingredients of the situation with which we are concerned.

On December 23, 1949, a collision occurred on Teaneck Road at its intersection with Cedar Lane at Teaneck, New Jersey, between a motor vehicle owned by Oscar Isaacson and an automobile owned by Louisa Boswell and operated by her agent Donald E. Sherwood, in which mishap both vehicles were damaged. In May, 1950, an action was instituted by Louisa Boswell to recover from Isaacson compensatory damages for the injury to her automobile. The action was discontinued in pursuance of a stipulation of dismissal signed

by Messrs. Hein & Smith as attorneys of the plaintiff and by one Wilbur C. Sickinger, an adjuster employed by the New York Casualty Company, on behalf of the defendant, Isaacson.

On February 7, 1951, Isaacson, through his attorney, Mr. Samuel A. Gennet, instituted the present action against Louisa Boswell and the driver Sherwood in quest of the recovery of the property damage he sustained in consequence of the collision. Upon motion, preliminary to trial, made on behalf of these defendants, a judgment dismissing the action was entered on June 7, 1951.

Testimony was taken incident to the hearing of the motion and in the interest of precision we quote the following excerpts from the statement of the uncontroverted evidence submitted to us for consideration in the determination of the present appeal:

"* * * Seymour A. Smith, Esq., testified that he was an attorney at law of the State of New Jersey and that he, on behalf of Louisa Boswell, instituted a suit against Oscar Isaacson; that said suit was instituted in the Bergen County District Court and bore docket number 9616; that after service of the Summons and Complaint upon the defendant, negotiations were conducted with the New York Casualty Co. and the claim on behalf of Louisa Boswell to Oscar Isaacson was settled; that a general release from Thomas Boswell and Louisa Boswell to Oscar Isaacson was prepared under his direction and submitted to the New York Casualty Co. along with a Stipulation of Dismissal bearing the signature of Hein & Smith, attorneys for the plaintiff; and that thereafter he received a draft of the New York Casualty Co. in the sum of $54.00 in settlement of this claim. The original release signed by Thomas Boswell and Louisa Boswell was offered and received in evidence. * * *

Oscar Isaacson testified that he was the plaintiff in the instant case; that on December 23, 1949, he had become involved in an automobile collision with a motor vehicle owned by Louisa Boswell and operated by Donald E. Sherwood; that pursuant thereto, he had authorized his attorney, Samuel A. Gennet, to institute suit against the above named for recovery of the damages sustained; he also testified that at a previous date which he did not remember, he was served with a Summons and Complaint in a District Court suit instituted by Louisa Boswell against him; that he turned this Summons and Complaint over to his insurance broker for additional proceedings and thereafter heard nothing further regarding the same; that he has never been consulted by his insurance broker for additional facts

nor had he ever been consulted by his insurance company, the New York Casualty Co. with regard to settlement negotiations in that suit; that he had never authorized his insurance company to make any settlement; that he himself had never offered any settlement; that he knew of no negotiations toward settlement nor was he ever consulted in any manner regarding the handling of the suit pending against him. He also testified that he never spoke to Wilbur Sickinger; that, in fact, prior to May 17, 1951, he never heard of the name Wilbur C. Sickinger.

John M. McNamara testified that he was employed as Claims Manager of the New York Casualty Co.; that his company issued a policy of liability insurance to the plaintiff, Oscar Isaacson; that the policy was in effect on December 23, 1949; that the policy was a standard form policy issued to the plaintiff and contained no endorsements affecting the coverage. He identified a specimen copy of a policy and testified that the policy issued to the plaintiff contained all of the provisions set forth in the specimen policy. The policy by stipulation between counsel, was offered and received in evidence and marked P-1, a copy of this specimen policy is annexed hereto and marked Schedule 'C.' Mr. McNamara further testified that Wilbur C. Sickinger is an adjuster employed by the New York Casualty Co.; that on May 22, 1950, he was in receipt of the Summons and Complaint served on Oscar Isaacson, plaintiff, along with a letter for Mr. Isaacson's insurance broker, a photostatic copy of the letter and Summons and Complaint are annexed hereto and marked Schedule 'D'; that settlement negotiations were conducted on behalf of the New York Casualty Co. and a settlement negotiated; that pursuant to the settlement negotiations, the New York Casualty Co. received the release marked Schedule 'B,' annexed hereto and a Stipulation of Dismissal of the District ...


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