Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant appeals by our leave from the denial of its motion for summary judgment.
The question presented is whether the pleadings, depositions and affidavits which were before the trial judge show "palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment * * * as a matter of law." R.R. 4:58-3. We think that they do, and that the summary judgment should have been granted.
Plaintiff's complaint alleges that defendant issued workmen's compensation and public liability insurance policies to plaintiff's employer, Code Corporation (Code), under the terms of which "defendant reserved the right to inspect the premises, machinery, apparatus and other equipment" of Code
and the right "to make recommendations and to provide supervision * * * for the correction, removal or avoidance of any defects or potential defects or potential industrial hazards * * * and to prescribe and enforce rules and regulations" relating thereto; that "one of the reasons" defendant reserved these rights "was to make certain that the premises, machinery, apparatus and other equipment were reasonably safe, and presented no unreasonable risk of harm to employees of Code Corporation"; that "on at least one occasion prior to November 18, 1959" defendant inspected the machinery "pursuant to the terms" of the policies, but "[s]uch inspection or inspections were performed in a negligent and careless manner, and in utter disregard of the fact that there existed upon the premises of Code Corporation a certain wood-shaping machine which was maintained in a dangerous manner, and which had improper equipment, faulty or no safety devices, and * * * was a dangerous instrumentality which presented an unreasonable risk of harm to employees of Code Corporation * * *." Plaintiff alleged that as a result of this he was injured on November 18, 1959 while operating said machine. Another count of the complaint repeats the foregoing allegations and adds the charge that defendant "negligently and carelessly selected, hired and retained incompetent * * * persons * * * to make such inspection or inspections * * *."
Defendant's answer asserts:
"The right of inspection reserved by the Defendant in its policies of insurance is a privilege to the Defendant in connection with its determination of the risk to be assumed and the premium to be charged for same. Such reservation imposed no duty upon the Defendant to its assured, Plaintiff or anyone else and Defendant did not assume such liability or duty."
The workmen's compensation policy provides:
"4. Inspection and Audit.
The company and any rating authority having jurisdiction by law shall each be permitted to inspect the work places, machinery and
equipment covered by this policy and to examine and audit the insured's books, vouchers, contracts, documents and records of any and every kind at any reasonable time during the policy period and any extension thereof and within three years after termination of this policy, as far as they relate to the premium bases or the subject matter of this insurance."