On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
Stanley Bingham was the owner and operator of an automobile involved in an accident in which a taxi owned by William J. Donnelly was damaged. James Clarkin and Michael Zukotynski, passengers in the cab, were injured.
All were made defendants in a suit brought by the appellant insurance company in which it sought to cancel, ab initio, a policy of insurance issued to Bingham insuring him against liability for bodily injury in the sum of $5,000 for each person and $10,000 for each accident; against property damage liability in the sum of $5,000 for each accident, and against medical payments in the sum of $500 for each person.
In the application for the policy, subsequently issued March 1, 1951, Bingham represented to the company that prior insurance held by him had not been canceled nor had his motor vehicle or any driver thereof been involved in an accident during the twelve months next preceding.
The accident occurred on March 18, 1951, after the issuance of the policy, and then for the first time the company learned the representations were untrue. The complaint alleges, amongst other things:
"* * * said motor vehicle and said defendant had been involved in two accidents during the twelve month period next preceding the application for insurance aforesaid and a prior policy of insurance carried by said defendant, Stanley Bingham, with the American Automobile Insurance Company, had been cancelled by said insurance carrier.
Had the application of the said defendant, Stanley Bingham, correctly stated the facts concerning the previous experience of the said defendant, the plaintiff would have rejected the application and would have refused to issue a policy of insurance to said defendant as an unsatisfactory risk.
Having ascertained the true facts relating to the prior accident and insurance record of the insured, as more fully hereinbefore set
forth, plaintiff, on the 17th day of May, 1951, cancelled the policy of insurance from its date of inception. * * *"
Defendants Clarkin and Zukotynski moved to dismiss the complaint, while Donnelly made application for summary judgment. These motions were all granted and from the judgment so entered appeals were taken to the Appellate Division, which affirmed the result. The cause comes here by granting of a petition for certification.
There was error, it is said, in the court's holding "that the complaint did not set forth a cause of action because the action was barred by the applicability of the Financial Responsibility Act, R.S. 39:6-1," and dissatisfaction is also voiced with the finding that "in the complaint filed, the plaintiff alleges that the named assured had been involved in prior accidents involving approximately $500," asserting the court ...