policy of insurance in any situation in which there was a wilful misstatement of fact in the original notice of the accident, even in the absence of fraud or collusion. The forfeiture of a policy of insurance, ordinarily frowned upon by the law, could thus be easily effected.
We next direct our attention to the 'Assistance and Cooperation' clause, supra, which required the insured to 'cooperate with the company and, upon the company's request' to 'attend hearings and trials' and to assist in 'securing and giving evidence, obtaining attendance of witnesses, and in the conduct of the suits.' The charge that the insured, both Edward and John Emery, failed to cooperate, as required by this clause, appears to be based solely on the evidence that each of them gave a statement in which they falsely identified the driver of the vehicle at the time of the accident. There is no other alleged failure of cooperation.
It should be noted, however, that the stipulation of facts does not disclose whether or not the defendant John Emery, an additional insured, either gave, or was called upon by the company to give, a corrected written statement. The stipulation of facts likewise does not disclose whether or not the said defendant, at the request of the plaintiff, failed to otherwise cooperate, as required by the condition. It seems only fair to assume that if such cooperation were lacking there would have been an adequate reference to it in the stipulation of facts.
We are of the opinion that the stipulated facts will not support a determination that the insured failed to comply with this condition of the policy. Rockmiss v. New Jersey Manufacturers' Ass'n Fire Ins. Co., 112 N.J.L. 136, 169 A. 663. Any failure of cooperation ascribable to the false statements was cured when the correct information was given the plaintiff at the time it was called upon to defend the damage suits. Ibid.
The cited case of Rockmiss v. New Jersey Manufacturers' Ass'n Fire Ins. Co., supra, was one in which the insured had given a false statement which tended to exculpate him from liability for the accident covered by the policy of insurance. When the first of two actions was instituted the insured gave a correct statement which, it would seem, tended to inculpate him. The insurer sought to avoid liability on the ground that there had been a failure of cooperation.
The Court in passing upon the question of substantial compliance, said, 169 A. at page 665: 'But if the withholding of the facts from the insurers, and the lulling of them into a false sense of security in respect of liability, be held to be within the intendment of this clause, there was in the instant case a substantial compliance with its terms. When the first action was instituted, the insurers were given a correct statement of the facts. Admittedly, they had ample time to investigate and prepare for trial, or adjust the claim if that were deemed to be the preferable course. They suffered no detriment or injury by reason of this alleged breach of the provisions of the contracts.'
The Court concluded, 169 A. at page 665: 'The proofs indisputably show that the insured substantially complied with the state conditions of the policies, and that, in any event, the delay in advising the insurers of the facts did not result in the substantial impairment of any of their policy rights, or any detriment or injury, and therefore will not be permitted to work a forfeiture.' This language, considered together with the language hereinabove quoted, would seem to clearly indicate that under the law of New Jersey a policy of insurance may be voided on the grounds of lack of cooperation, as distinguished from a failure to give notice of the accident, only where it appears that there is a failure of substantial compliance which results in the impairment of the rights of the insurer.
There is a statement in the cited case which would seem to cast some doubt on the pertinency of the decision. It is therein stated, 169 A. at page 665: 'The policies were not made a part of the state of the case, and the excerpts taken therefrom do not contain a provision that a breach of the so-called conditions shall provide grounds for forfeiture, or that compliance therewith is a condition precedent to recovery. Forfeitures by implication or by construction, not compelled by express requirements, are regarded with disfavor.' We are inclined to regard this statement as dictum.
The decision of the Court, as we interpret it, rests squarely on the conclusion that in a situation, not identical with the one before this Court, but somewhat comparable, there was a substantial compliance with the assistance and cooperation clause of the policy of insurance. The presence or absence of a clause defining the condition as a condition precedent, a clause included in the policy of insurance before this Court, would not have led to a different result. If the conduct of the insured was such as to satisfy the assistance and cooperation clause, the rights of the insured under the policy of insurance could not be defeated by an additional clause which defined the condition as a condition precedent. A substantial compliance with the assistance and cooperation clause would satisfy its requirements, whether the clause were defined as a condition precedent or a condition subsequent.
The defendants urged in oral argument that under the express provisions of the Motor Vehicle Security-Responsibility Law, N.J.S.A. 39:6-23 et seq., and particularly Section 26 thereof, N.J.S.A. 39:6-48, the liability of the plaintiff under the policy of insurance became absolute upon the occurrence of the accident. The contention was not presented in the brief filed by the defendants and they have cited no cases in support of it, but we have, nevertheless, considered it.
We assume that the defendants rely on the several cases decided under the earlier Financial-Responsibility Law, N.J.S.A. 39:6-1 et seq. Steliga v. Metropolitan Casualty Ins. Co., 113 N.J.L. 101, 172 A. 793, affirmed 114 N.J.L. 156, 176 A. 331; United States Casualty Co. v. Timmerman, 118 N.J.Eq. 563, 180 A. 629; Woloshin v. Century Indemnity Co., 116 N.J.L. 577, 186 A. 44; Ambrose v. Indemnity Ins. Co., 120 N.J.L. 248, 199 A. 47; Atlantic Cas. Ins. Co. v. Bingham, 15 N.J.Super. 328, 83 A.2d 363, affirmed 18 N.J.Super. 170, 86 A.2d 792, affirmed 10 N.J. 460, 92 A.2d 1, 34 A.L.R.2d 1293. This law was completely revised in 1952, and the revision became effective on April 1, 1953. N.J.S.A. 39:6-23 et seq. The pertinent sections of the revision are limited in their application to a liability policy furnished as proof of financial responsibility as provided by the Act. There is no evidence before the Court that the policy of insurance here in question was so furnished.
Judgments in favor of the defendants and against the plaintiff, consistent with the findings of fact and conclusions of law, may be entered. The parties shall prepare and submit to the Court appropriate orders for judgment.
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