Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.
This case was submitted to the county district court for decision upon a stipulation of facts. The stipulation sets forth that plaintiff insurer issued a policy to defendant, insuring him against damage of his automobile by collision. Plaintiff apparently also insured defendant against liability, by the same or another policy. The only portion of the collision policy which is made part of the record is the following clause:
"In the event of any payment under this policy, the company shall be subrogated to all the insured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights."
On or about March 15, 1957 defendant, while driving his automobile, was in a collision with a car owned by Bernard Sage and driven by Joseph Pistocchi. Sage and Pistocchi will hereafter be called the tortfeasors. Plaintiff and defendant
settled defendant's claim on the collision policy on the basis that defendant's car had suffered $900 damage, and plaintiff paid defendant $850, there apparently being a $50 deductible clause. The date of this payment by plaintiff is not given.
Thereafter, on or about February 3, 1958, Hogges instituted an action for personal injuries and property damage against the tortfeasors, which resulted, on April 24, 1958, in a judgment against Hogges of no cause of action. Plaintiff insurer "was at no time given notice of the commencement or pendency of the suit in the Bergen County District Court and did not participate in the prosecution of the said action."
The stipulation then says:
"On December 30, 1958, suit was instituted against the defendant, Thomas Hogges, by Bernard Sage for property damage arising out of this said accident in the amount of Six Hundred ($600.00) Dollars. * * * Plaintiff, Providence Washington Insurance Company, entered a defense under the terms of their policy aforesaid.
On March 2, 1959, plaintiff Providence Washington Insurance Company counterclaimed for the property damage incurred by the defendant herein under the terms of the subrogation clause of the policy aforesaid. Subsequent to April 24, 1958, for the first time, the plaintiff, Providence Washington Insurance Company was informed of the action that had been brought in the Bergen County District Court. Thereafter the suit brought by Bernard Sage was settled in the amount of Two Hundred and Seventy-Five ($275.00) Dollars and the plaintiff, Providence Washington Insurance Company dismissed their counter-claim for property damage."
Upon the basis of this stipulation of facts, the trial court entered judgment for the plaintiff for $850, and defendant appeals.
The complaint in the action now before us, and the answer if any, have not been made part of the appendix, in violation of R.R. 1:7-2. Consequently, we do not know upon what theory plaintiff framed its complaint. However, from plaintiff's brief it appears that its position is that the carrying of the action to an unsuccessful conclusion without its knowledge prejudiced plaintiff's ...