Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
Third-party defendant Allstate Insurance Company (Allstate) appeals from a declaratory judgment in favor of Leon I. Balter, defendant and third-party plaintiff, in which it was adjudged by the Union County Court that Allstate is required to defend Balter and to pay any judgment that may be rendered against him in favor of plaintiffs Ebert.
On January 16, 1957 at about 3:00 P.M. Balter was involved in a minor automobile accident with an automobile owned and operated by Mrs. Ebert. No property damage or personal injury was noted at that time and the parties went on their ways without exchanging identification.
January 16 was the terminal date of an automobile liability policy written by Allstate in Balter's favor. The policy contained the customary condition that, "In the event of accident, occurrence or loss, written notice containing all particulars shall be given by or for the insured to Allstate as soon as practicable." Following the expiration of the Allstate policy at midnight January 16, a similar liability policy written by State Farm Mutual Insurance Company (State Farm) in favor of Balter went into effect.
A week or less after the happening of the accident above referred to, Casimir Ebert telephoned Balter at his home, informed him that Mrs. Ebert had been injured in the accident, and requested that he notify his insurance company immediately. Balter, although he was aware that Allstate's coverage terminated on January 16, and State Farm's coverage commenced on January 17, apparently mistakenly associated the occurrence with January 17 and immediately went to the State Farm office and reported to Kenneth Goich, the State Farm agent, that the accident had occurred on January 17, giving him the necessary details concerning it.
A few months later Balter, curious as to the outcome of the claim, inquired of Goich concerning it. Goich told him that he was "an old worry wart, that nothing would come of it, to go home and forget it." Shortly thereafter, at
State Farm's request he called at Goich's office and furnished additional data. Later, when he called at the office to pay his half-yearly premium, he asked how the matter was coming along and was told that, "Everything was O.K. Leave it to us."
On December 24, 1958 the present action was instituted by the Eberts, claims of property damage, personal injury suffered by Mrs. Ebert and consequential damages sustained by her husband, being set out therein. Service of the summons and complaint was made on Balter on December 29, 1958 and the following day he delivered the process to State Farm's claim adjuster, one Rutkowsky. The latter said, "Take it easy. This is going to take time. You are going to have to live with this for a while." When Balter told him that he had "contacted" his own attorney Rutkowsky said, "Well, you could if you want to, but it isn't necessary." In due course State Farm filed an answer in Balter's behalf, and the matter was permitted to rest until August 3, 1959.
On that date, at the request of State Farm, Balter called at the office of its attorney William J. Murray, Esq. Then for the first time he was apprised by Mr. Murray that since the accident had occurred on January 16, 1957, and since his insurance policy with State Farm became effective on the following day, the company would not continue further in the defense of the Ebert case, nor would it pay any resulting judgment. In the course of this conference Balter agreed with the attorney that the accident had happened on January 16.
On August 11, 1959 Balter notified Allstate of the occurrence of the accident by telephone, then fixing the date as January 16, 1957. After investigating the claim Allstate, on December 4, 1959, disclaimed liability to Balter because of his noncompliance with the notice provisions of the policy as hereinabove set forth.
Balter's personal attorney then took over the defense of the case and with leave of the court filed a third-party complaint against both ...