Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
On July 23, 1953 plaintiff was a passenger in a Nash automobile being driven by the defendant, Lee, in a northwesterly direction toward Mays Landing on a county highway referred to as the Somers Point-Mays Landing road. The car collided almost head-on with a Mercury station wagon proceeding in the opposite direction, driven by the defendant John W. Breish on the business of the defendant P. J. Breish. Both cars were demolished and their occupants injured. Only plaintiff's personal injuries, which were very extensive, are here material.
Plaintiff brought this action to recover damages for his injuries against Lee and the Breishes. Lee cross-claimed against the Breishes for personal injuries and damages to his car and the Breishes cross-claimed against Lee for the damage to the Breish car. Lee's insurance carrier, under circumstances later recounted, had previously made a settlement payment to John W. Breish on his claim for personal injuries. There was a jury verdict of $35,000 in favor of plaintiff against the Breishes and for no cause of action on plaintiff's claim against Lee; in favor of Lee on his cross-claim against
the Breishes for $1,500; and for no cause of action on the Breish cross-claim against Lee. After trial the court reduced the plaintiff's verdict by $12,500 for reasons to be related. The several grounds of appeal argued will be stated and discussed seriatim.
Appellants complain of the striking on motion of one of the separate defenses in their amended answer to the Lee cross-claim, viz. , "defendant John W. Breish * * * has received payment for personal injuries sustained by him. Payment of the same has been made on behalf of the defendant Harry P. Lee, Jr." Their position is that they are entitled to raise an estoppel against Lee on the basis of the compromise and settlement of Breish's personal injury claim, under the holding in Kelleher v. Lozzi , 7 N.J. 17 (1951), if the settlement "was authorized by the insured," Lee. The motion to strike was supported by an affidavit of the supervisor of claims of Lee's insurance carrier to the effect that the settlement with Breish was effected by his own direction and without any consultation with, permission from, or advices to Lee; and that by the terms of the policy no consultation with the assured was required for such a step. There was also an affidavit by Lee to the effect that he knew nothing about the settlement until after it had been accomplished. There were no answering affidavits on behalf of the respondents to the motion. There being no genuine issue of disputed fact on the motion, its resolution involved only a question of law. R.R. 4:58-3. See Judson v. Peoples Bank & Trust Co. , 17 N.J. 67, 75 (1954).
The action of the trial court was unexceptionable. Kelleher v. Lozzi, supra , does not apply. There the plaintiff was held estopped from maintaining an action for personal injuries and damages to her car against a defendant where, in a prior action against her by the then defendant arising out of the same automobile accident, her attorney had by her authority settled the claim, obtained a release on her behalf and procured a discontinuance of the action against her.
(7 N.J. , at page 28). The present situation is distinguished by the undisputed facts that the settlement of the Breish personal injury claim against Lee was without his knowledge and by neither his agent nor his authority, but solely under right flowing from the insurance contract. Isaacson v. Boswell , 18 N.J. Super. 95 (App. Div. 1952).
Breish contends there was no evidence of negligence on his part sufficient to have warranted submission of the issue of his liability to the jury. The question was raised by motion to dismiss at the trial (as to plaintiff's claim) and on subsequent motion for a new trial. We have subjected the lengthy record of the testimony to close scrutiny and conclude therefrom that there was a jury issue with respect both to appellants' liability to plaintiff and as against Lee. We do not deem it necessary to recount the testimonial details at length. Suffice it to say there was ample basis in the proofs upon which the jury could have concluded that the Breish car approached Lee's automobile on the wrong side of the narrow road head-on as a result of taking a curve at excessive speed and that a sudden turn by Lee to his left, induced either by an effort to avoid the other vehicle or by sharp braking of the car, had the unfortunate consequence of a collision when Breish concurrently veered back to his own ...