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Gerald v. Universal Agency Inc.

Decided: July 15, 1959.

TULLIS G. GERALD, PLAINTIFF-RESPONDENT,
v.
UNIVERSAL AGENCY, INC., DEFENDANT-APPELLANT



Price, Gaulkin and Foley. The opinion of the court was delivered by Price, S.j.a.d.

Price

[56 NJSuper Page 364] Defendant appeals from a district court judgment in the sum of $1,000 entered in plaintiff's

favor in a case tried by the court without a jury. Recovery was based on plaintiff's claim that defendant had breached a duty owing to plaintiff in that it had procured an improper policy of collision insurance, that plaintiff's car had been damaged, and that he had been unable to collect any money under the policy which defendant procured.

It is necessary to review the facts which led to the procurement of the challenged judgment.

Initially plaintiff brought suit in the Superior Court, Law Division, alleging in the first count of his complaint that he obtained a policy of collision insurance from defendant written by United Mutual Automobile Insurance Co. (United); that plaintiff's car sustained collision damage within the terms of the policy, such damage amounting to $1,000; that United refused to reimburse plaintiff for his loss, is insolvent and is not licensed to do business in New Jersey; that plaintiff had been damaged by defendant's breach of its implied contract to exercise skill and training in obtaining the policy. The second count repeated the aforesaid allegations and stated a claim based upon defendant's alleged negligence.

By answer defendant denied a breach of contract, denied any negligence and alleged that any damages sustained by plaintiff were due to the actions of its employee Jack R. Markwith and Frederick R. Hill, a broker through whom Markwith placed the order for the policy. Universal filed a third-party complaint against Markwith and Hill, seeking reimbursement for any sums for which it might be held liable to plaintiff.

At pretrial conference it was stipulated as follows:

"Admitted that policy No. A-15582 issued United Insurance Automobile Co. to plaintiff for coverage from April 25, 1957 to April 25, 1959 for a premium of $134 was effected through defendant's office; and that the loss was within coverage of the aforesaid policy; that the defendant is a duly licensed insurance brokerage in the State of New Jersey. That the United Insurance Automobile Co. was not authorized to transact business in New Jersey."

After pretrial the case was transferred to the district court. At the close of the evidence on the main case Universal moved for a voluntary dismissal of its third-party complaint which motion was granted. Plaintiff then moved for judgment "on the basis of the pleadings, themselves." The trial court entered judgment in favor of plaintiff in the sum of $1,000 (which amount had been stipulated as the amount of the damage to the automobile in question). However, the record before us, which contains the colloquy between court and counsel following the making of plaintiff's motion, reveals that the court's action in entering judgment for the plaintiff was actually based on a consideration of the proofs submitted. Furthermore, the judgment itself shows that it was entered on the "pleadings and proof." Obviously it was not entered pursuant to R.R. 4:12-3. Despite the unsatisfactory nature of the record presented to us for review we consider this appeal as an appeal from a judgment entered by the court on the merits of the case.

Although no specific findings of fact and conclusions of law made by the trial judge pursuant to R.R. 7:16-3 are contained in the record presented to us on this appeal, comment by the court preceding the entry of judgment discloses the reason for his action. He reviewed each paragraph of the complaint, commented on the allegations which had been established by admission, and held that plaintiff had presented sufficient proof to establish defendant's liability.

The evidence disclosed that on April 29, 1957 plaintiff purchased a 1955 Ford automobile from Berglund Motors Auto Co. to be used by his son, 18 years of age. Plaintiff initially sought an insurance policy from defendant Universal Agency, which maintained an office in the showroom of Berglund Motors. Jack R. Markwith, Universal's manager, undertook for his employer to obtain the desired insurance. He testified that he was unable to obtain such insurance from any company licensed in the State of New ...


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