Berry v. Travelers Ins. Co.

• Decision Date: 22 September 1937
• Docket Number: No. 12.,12.
• Citation: 118 N.J.L. 571,194 A. 72
• Parties: BERRY et al. v. TRAVELERS INS. CO. et al.
• Court: New Jersey Supreme Court

194 A. 72

118 N.J.L. 571

BERRY et al.

v. TRAVELERS INS. CO. et al.

No. 12.

Court of Errors and Appeals of New Jersey.

September 22, 1937.

Syllabus by the Court.

1. Construing the terms of a policy of indemnification, held, the word "assured" does not extend to any person who operates an automobile repair shop or public garage when the loss sued upon arises out of such operation.

2. When A, suing B and C for damages arising from the negligent operation of a truck owned by B and operated by O, is subjected to a verdict against him as to B and obtains a verdict against C, B being represented and defended at the trial by its insurer and C being represented and defended by another, the question of the agency of B by C is res adjudicata against A in a subsequent suit by A to recover the judgment against C from B's Insurer.

Appeal from Supreme Court.

Action by Bernice Berry and William Berry, her husband, against the Travelers Insurance Company and the Travelers Indemnity Company. From a judgment for defendants entered in the Supreme Court following the striking of the complaint, plaintiffs appeal.

Affirmed.

John A. Laird and Harry Cohn, both of Newark, for appellants. Walter F. Waldau and Lindabury, Depue & Faulks, all of Newark, for respondents.

CASE, Justice.

The complaint contains two counts; the first for physical injuries suffered by the wife, and the second for incidental expenses incurred by the husband. A brief recital of the first count will sufficiently reflect the pleading.

The first count of the complaint alleges that Mrs. Berry was injured by a truck owned by Abbott's Dairies, Incorporated, and operated by Edward A. Moncovage; that the injuries were caused by the negligent operation of the truck; that previous thereto Abbott's Dairies, Incorporated, procured a policy from the defendant companies insuring the Abbott's company against liability arising out of the maintenance and operation of the truck, and that the policy provided that—to quote the pleadirig—"any person injured through the negligent operation of the said automobile truck had the right to institute a suit on any judgment recovered against the operator of the same in the event that the said operator by reason of his insolvency failed to make payment of said judgment"; that thereafter plaintiffs instituted action against the Abbott's company and Moncovage, alleging that Mrs. Berry's injuries were sustained as a result of the aforesaid negligent operation of the truck; that at the trial Mrs. Berry recovered a judgment against Moncovage for $1,000; that execution was issued and returned unsatisfied by reason of the insolvency of Moncovage; and that thereupon the present action was instituted for the recovery from the insurance companies of the judgment against Moncovage.

The actual wording of the policy in respect to the alleged coverage in favor of Moncovage is as follows: "The unqualified word 'Assured' wherever used in Coverages A and B and in other parts of this Policy when applicable to these Coverages, includes not only the named Assured but also any other person or organization while legally using the automobile, including also any other person or organization legally responsible for the use thereof, provided the disclosed and actual use of the automobile is 'Pleasure and Business' or 'Commercial', each as denned herein, and further provided that such use is with the permission of the named Assured who, if an individual, may give such permission through an adult member of his household other than a chauffeur or domestic servant. The provisions of this paragraph shall not apply, however, to any person or organization, or employee thereof, operating an automobile repair shop, public garage, sales agency or service station and arising out...