Opinion
Submitted October 13, 1933 —
Decided January 26, 1934.
1. A motor vehicle liability insurer is not barred from asserting protective clauses in its policy in an action by an injured party based on negligence by the insured, unless it appears that the insured was within the class of persons who under Pamph. L. 1929, ch. 116 (amended Pamph. L. 1931, ch. 169), may be required to furnish "proof of financial responsibility."
2. The proof being plenary and undisputed that the insured had voluntarily assumed liability for an accident in which his car was involved, in the face of an express agreement in the policy to the contrary, held that he could not recover against the company, and if not, the injured party could not recover derivatively thereunder.
On defendant's appeal from the District Court.
Before Justices PARKER, LLOYD and PERSKIE.
For the appellant, David Green.
For the respondent, Irving Siegler.
The appeal is from a judgment entered by the District Court, sitting without jury, in a suit against appellant as insurer of one William Simoni, owner of an automobile, against claims for damages arising out of his operation of such automobile. The car in question seems to have been of the coupe type, and used by Simoni in connection with his personal affairs. There was a collision with plaintiff's car, driven by plaintiff's father, Moe Brodsky, doing damage to plaintiff-respondent's car, on account of which the plaintiff recovered a judgment against Simoni in the Elizabeth District Court. Execution having been returned unsatisfied, the present suit was begun against the insurer of Simoni.
Several defenses were interposed and overruled by the court either at the trial or in the award of judgment, and for the most part they are invoked on this appeal. Without passing on all the points raised, we think that one suffices for a reversal, viz., breach by Simoni of the policy provisions relating to his conduct as regards the insurer in case of accident and claim therefor.
Provision C of the policy reads in part as follows:
"Whenever requested by the company the assured shall aid in effecting settlements, securing information and evidence, the attendance of witnesses and in prosecuting appeals. The assured shall at all times render to the company all co-operation within his power. Except as herein elsewhere provided for, the assured shall not voluntarily assume any liability, settle any claim or incur any expense, except at his own cost, or interfere in any negotiations for settlement or legal proceedings without the consent of the company previously given in writing."
The point now considered is not within any provision alluded to in the excepting clause above, and is within the general clause. It is, that Simoni had "voluntarily assumed liability" for the accident. This was made entirely clear, and apparently without contradiction, by the testimony of two witnesses, and the production and admission into evidence of an affidavit of Simoni, stating that he had signed, after reading it, and shortly after the accident, a paper reading as follows:
"William Simoni do admit colliding, damaging and injuring the occupants in automobile operated by Moe Brodsky on the highway to the Victory bridge named Scott avenue, namely an Oldsmobile coach and my car, a Chevrolet coupe. Accident occurring on July 11th, 1931. I admit liability in the above mentioned accident.
Signed William Simoni" (address, c.).
That the execution of this paper was a breach of provision C, seems too plain for argument. That the "automobile operated by Moe Brodsky" was that of the respondent insured by the appellant, is not questioned. Hence, unless the insurer was barred in some way from setting up this defense, it should have prevailed.
For the respondent it is urged that the insurer is barred by the act of 1929. Pamph. L., p. 195 (at p. 201), § 10-a. This section was amended by Pamph. L. 1931, p. 334 (at p. 343), but after the issuance of the policy under consideration, so we refer to the act of 1929. But we think it quite clear that that statute is restricted in its operation, to the various classes of persons mentioned in section 1, and from whom the commissioner of motor vehicles may require proof of financial responsibility, either individual, or alternatively by a deposit, or an insurance policy meeting the conditions specified in the statute. On this point we concur in the views expressed by Judge Brown, of the Circuit Court, in McLaughlin v. Central Surety Corp., 11 N.J. Mis. R. 440; 166 Atl. Rep. 621. It is not intimated that Simoni was within any of those classes; and if not, the statute invoked does not avail the plaintiff.
The insurer defendant Simoni under a non-waiver agreement, but is not thereby estopped to assert its non-liability to Simoni, and derivatively as to the respondent plaintiff herein. Suydam v. Public Indemnity Co., 10 N.J. Mis. R. 868; 161 Atl. Rep. 499.
The judgment under review will be reversed.