Lawson v. The Prudential Insurance Company of America

• Court: New Jersey Supreme Court
• Writing for the Court: Per Curiam.
• Citation: Lawson v. The Prudential Insurance Company of America, 169 A. 677, 12 N.J.Misc. 62 (N.J. 1933)
• Decision Date: 19 December 1933
• Docket Number: 12
• Parties: MINNIE APFELBAUM AND ALICE LAWSON, ADMINISTRATRICES OF THE ESTATE OF JOHN P. JOHNSON, PLAINTIFFS-APPELLEES, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, DEFENDANT-APPELLANT

169 A. 677

APFELBAUM et al.

v. PRUDENTIAL INS. CO. OF AMERICA.

No. 12.

Supreme Court of New Jersey.

Dec. 19, 1933.

Appeal from Circuit Court, Essex County.

Action by Minnie Apfelbaum and another, administratrices of the estate of John P. Johnson, deceased, against the Prudential Insurance Company of America. From a judgment for the plaintiffs, the defendant appeals.

Affirmed.

See, also, 161 A. 501, 10 N. J Misc. 874.

Argued May term, 1933, before BROGAN, C. J., and TRENCHARD and HEHER, JJ.

Perkins, Drewen & Nugent, of Jersey City, for appellant.

Jacob Mellinger, of Orange (Ralph Giordano, of Orange, of counsel), for appellees.

PER CURIAM.

This is an appeal from a judgment recovered in the Essex County Circuit Court by the plaintiffs below against the defendant, the Prudential Insurance Company of America, a corporation. The following are the material facts: The appellant, insurance company, insured the life of John P. Johnson on two policies of insurance totaling $715. Each policy contained a provision that the insurer, upon receipt of due proof of the death of the insured, during the continuance of the policy, would pay the amount of the insurance to the executors or administrators of the insured.

On November 24, 1931, it was ordered, adjudged, and decreed by the surrogate of Hudson county that the said Johnson is presumed to be dead (he having been absent from the state and not heard from for over seven years successively), and thereafter the said surrogate granted letters of administration to the plaintiffs, who are the daughters of the said Johnson. It appears that the defendant company was made party to this proceeding, having for its object the declaring of the said John P. Johnson to be dead, and appeared before the surrogate by counsel and also had received notice that the letters of administration had been granted. It further appears that the said defendant, on its application, obtained from the surrogate, on June 8, 1932, an order to show cause why the said decree adjudging the said Johnson to be presumably dead should not be opened and set aside and declared void; and it further appears that on September 21, 1932, the said order to show cause why the original decree should be revoked was discharged, and it was ordered that the decree of November 24, 1931, "stand in full force and effect" for the reason that no testimony was produced by the insurance company to cause the surrogate to revoke his said original decree.

The plaintiffs demanded payment of the amount of the insurance specified in the policies, which was refused by the insurance company, and suit was brought by the plaintiffs and judgment recovered as aforesaid.

In their case, the plaintiffs proved that these proceedings were held before the surrogate, and that the defendant had notice thereof and appeared in said proceedings; that the surrogate allowed the decree as aforesaid and also letters of administration. Some testimony was submitted by the defendant, none of which rebutted the presumption of the death of Johnson. The court submitted the case to the jury, and the plaintiff's were awarded judgment for the amount of the policies.

The appellant writes down nine grounds for reversal, some of which are not argued and must be treated by us as being abandoned.

The first point presented in the appellant's brief recites that no judgment can be sustained on the issues raised by the complaint. This point is not included in the grounds of appeal filed by the defendant and, consequently, is not now available to it.

The second and third points may be considered together and are that it was incumbent upon the plaintiffs to prove the death of Johnson as a condition precedent to recovery, and that no proof of death was ever filed with the company, in accordance with the requirement of the policies. It is, however, clear from the state of the case that the defendant, insurance company, appeared before the surrogate on the proceedings initiated by plaintiffs to have Johnson declared legally dead; that notice of the granting of letters of administration was had, and that the insurance company notified the plaintiffs that it would not pay the policies; and that, from the defendant's own exhibit, it is clear that the defendant knew of the...