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Hutt v. Travelers Insurance

Court of Errors and Appeals
Jan 23, 1933
110 N.J.L. 57 (N.J. 1933)

Opinion

Submitted October 28, 1932 —

Decided January 23, 1933.

A liability policy of insurance issued to the owner of an automobile, insured him against damages for personal injuries sustained by any person or persons caused by the operation of his automobile, and contained a clause that the insured should co-operate with the insurance company in the defense of any suit for damages brought against him, in the finding of evidence, procuring attendance of witnesses, c. The policy further provided that if judgment against the insured for such personal injuries was not satisfied in thirty days after it was rendered, the person recovering such judgment could proceed against the insurance company, but that such person or persons were limited in recovering from the insurance company under the terms of the policy. In a suit brought by a person injured by the insured, which was defended by the insurance company, the insured failed to attend in court on the day of trial, without any reasonable or valid excuse therefor. Held, that such failure to co-operate on the part of the insured was a valid defense to an action brought by an injured person who was unable to collect a judgment against the insured.

On appeal from the Supreme Court.

This was an action in the Supreme Court referred to Honorable Nelson Y. Dungan, Circuit Court judge, to be tried without a jury, who, after hearing the cause, filed the following opinion:

"Briefly stated, the facts in this case are that there was issued by the defendant in this case to one Philip Reilly its liability policy of insurance for damages on account of bodily injuries sustained by any person or persons caused by the ownership or operation of the automobile described in that policy. Suit was brought against Reilly by the plaintiffs in this case, and in that suit the plaintiffs recovered judgment. The amount of that judgment was not paid within thirty days, and thereupon the plaintiffs brought this suit against the defendant herein, the insurer, for the amount of that judgment.

"This is not a policy issued for the benefit of these plaintiffs, except as expressed in the policy itself, and it provides that if the judgment against the insured is not satisfied within thirty days after it is rendered, then such person or his legal representative may proceed against the company under the terms of this policy, meaning the plaintiff in the original case, to recover the amount of such judgment, not exceeding the limits of this policy applicable thereto.

"The words to be emphasized are `under the terms of this policy.'

"The plaintiffs herein are not entitled to go beyond the terms of the policy, and unless, if Reilly had paid the judgment against him, he could have recovered from the insurance company, the plaintiffs cannot recover against the insurance company.

"The first question to be decided is whether Reilly, if he were the plaintiff in this case, could have recovered.

"Paragraph D on the first page of the policy provides that `the policy is subject to the following conditions: that the assured shall co-operate with the company, and upon the company's request, shall assist in effecting settlement, securing evidence, and the attendance of witnesses,' c. The question is whether or not, if the assured had been the plaintiff in this case, he could have recovered — that is, whether or not the defense has been made out that he failed to co-operate. It is an admitted fact, because the stipulation so states, that this case against Reilly was set down for trial in the Monmouth Circuit in the late afternoon of May 14th; that Reilly, who had been notified of the time of the trial, was present in court for the purpose of aiding and testifying in the defense of the suit; and that following the selection of the jury and the openings by counsel the case was adjourned for the day, and the court requested all parties to the suit and all witnesses to return the following morning. Mr. Reilly assured the attorney who was representing him in this case, but who, under the terms of the policy, was the attorney of the insurance company, the terms of the policy providing that the insurance would defend for the assured any suit seeking damages for injuries which might be brought against him, that he would be present. He failed to appear, and sent a telegram to his attorneys, who were the attorneys of the insurance company, in these words: `Cannot get to Freehold to-day.'

"That Reilly's testimony was important in that case plainly appears by the stipulation of the facts, as under one of the defenses in that case if established and believed by the jury, there probably could have been no recovery, because under that statement of facts given to this attorney the plaintiffs were merely licensees, and unless there was more than mere negligence, of course, they could not recover. It would have been necessary then to show that the injuries and damages which came to the plaintiff were willful on the part of the defendant.

"The facts which he had further stated to the attorney were such as to indicate that there was a defense even on the subject of negligence, which, if the jury had believed, would have prevented a verdict against him.

"It appears from a subsequent investigation which was made by the attorneys that there was no illness, no accident, and no reason for the non-appearance of Mr. Reilly at the trial, except that instead of attending the trial as he had promised his attorneys to do and as he was directed by the court to do, he was out working the next day, the day when the trial was proceeded with, pursuing his regular employment. He was an employed man, had received permission to be absent from his employment the previous day when he was in court, but had made no application to be excused from his employment the following day.

"I have no doubt that if Reilly had been the plaintiff in the case the court would have been obliged to find upon the facts, that he had failed to comply with paragraph D, which obliged him to co-operate with his insurers, and the right of recovery of plaintiffs in this suit under paragraph 2 rises no higher than the right of Mr. Reilly to recover against the company had be brought the suit.

"Now, the next insistment is that, even though he had not co-operated, the defendant in this case waived this provision or is estopped from setting it up in this case because when its attorney received from Mr. Reilly this telegram it proceeded with the trial. I would have been inclined to agree with that insistment if the defendant had knowledge of all the facts which it afterward obtained as to his continuing with his employment, apparently voluntarily absenting himself from the trial on the 15th, at the time when the telegram was received and at the time the defendant's attorneys proceeded with the trial of the case against Mr. Reilly in his absence. There was nothing in the telegram which was received by the attorney for the defendant to indicate that he was voluntarily absenting himself. That information came afterward, and when they received that information, of course, it was too late, because the trial was all over. All that the telegram said was, `I cannot get to Freehold to-day,' nothing to indicate that his failure to appear, as I have said, was any fault of his at all. It might have been through illness. Of course, he might have stated that in his telegram, but he did not. It might have been through an accident, and it is true he might have stated that in his telegram, but he did not. The telegram did not say that he was voluntarily remaining away, as appeared after to be the fact, but that he could not get there that day, which was no evidence of lack of co-operation and which would not have justified the defendant's attorney in refusing to proceed and withdrawing from the case at that time.

"The result of these views is to find a verdict in favor of the defendant, and an exception to that ruling as grounds of appeal will be noted on the record."

For the appellants, Samuel Greenstone and Ward Kremer.

For the respondent, Lindabury, Depue Faulks.


The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered in the Supreme Court by Circuit Court Judge Dungan. For affirmance — THE CHANCELLOR, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, BROGAN, HEHER, KAYS, HETFIELD, WELLS, KERNEY, JJ. 13.

For reversal — None.


Summaries of

Hutt v. Travelers Insurance

Court of Errors and Appeals
Jan 23, 1933
110 N.J.L. 57 (N.J. 1933)
Case details for

Hutt v. Travelers Insurance

Case Details

Full title:JEAN HUTT AND EVA BERMAN, PLAINTIFFS-APPELLANTS, v. THE TRAVELERS…

Court:Court of Errors and Appeals

Date published: Jan 23, 1933

Citations

110 N.J.L. 57 (N.J. 1933)
164 A. 12

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