Cook v. Preferred Acc. Ins. Co. of N.Y.

• Decision Date: 10 January 1935
• Docket Number: No. 93.,93.
• Citation: 176 A. 178
• Parties: COOK et al. v. PREFERRED ACC. INS. CO. OF NEW YORK.
• Court: New Jersey Supreme Court

176 A. 178

COOK et al.

v. PREFERRED ACC. INS. CO. OF NEW YORK.

No. 93.

Court of Errors and Appeals of New Jersey.

Jan. 10, 1935.

Syllabus by the Court.

Plaintiffs, having obtained judgment against appellant's insured for damages ensuing from an automobile collision, the judgment remaining unpaid, brought the present action to recover under the terms of the liability indemnity policy. Appellant, because the policy was violated in the nonage of the driver of the car, sought, and was denied, nonsuit and direction of verdict. It was open to find from the testimony that the appellant company, with knowledge of the fact of nonage, proceeded, over a period of seven or eight months, with an exhaustive investigation, prepared the case for trial, and defended the insured throughout a two-day trial, making no disclaimer of liability until an adverse verdict had been rendered except that during a recess on the second day of the trial, in judge's chambers and unknown to the insured, appellant had caused an entry of disclaimer to be inserted in the record. Appellant denied knowledge. Held that if the facts were thus, an estoppel existed and that a jury question was presented as to whether the appellant had the knowledge essential to convert conduct into a legal estoppel against asserting the violation in denial of liability.

PARKER, LLOYD, and HEHER, Justices, and VAN BUSKIRK, Judge, dissenting.

Appeal from Supreme Court.

Action by Josephine Cook, by her next friend, Joseph Cook, and by her general guardian, Beatrice Helen Cook, and others against the Preferred Accident Insurance Company of New York. From an adverse judgment, defendant appeals.

Affirmed.

Frank C. Turner, of Newark, for appellant.

Harold A. Price, of Morristown, and Edward A. Markley, of Jersey City, for respondents.

CASE, Justice.

The appeal brings up four judgments rendered in favor of the respective plaintiffs against the appellant, the Preferred Accident Insurance Company of New York, in an action on a policy of automobile liability insurance issued by the appellant to Mrs. Margaret E. Dunne. The suit was to recover on judgments theretofore obtained by the plaintiffs against Mrs. Dunne grounded in personal injuries suffered by the minor plaintiffs while passengers in an automobile driven by Edith Margaret Dunne, daughter of the named assured.

Appellant writes down in its brief the surprising number of fifty points. It is manifestly impractical to give independent discussion in an opinion to that multitude of headings; indeed counsel did not do so in his brief. We find no reversible error and discern only one question that seems to call for particular comment.

The driver of the automobile was a resident of this state, had no license, and, admittedly, was aged sixteen years and seven months at the time of the accident, whereas the New Jersey statute, P. L. 1921, p. 653, § 10, subd. (1), as amended chapter 171, P. L. 1931, § 6 (N. J. St. Annual 1931, § 135—59), provides that no person shall drive an automobile unless licensed to do so and that no person under the age of seventeen years shall be so licensed, and the policy provided that "this policy shall exclude any obligation of the company while any disclosed automobile is being driven * * * by any person under the age fixed by law. * * *" Appellant raised the question by motions to nonsuit and to direct a verdict, giving appropriate reasons and taking exceptions to the adverse rulings. But the plaintiffs set up in the complaint, argued at the trial, and insist here that the defendant company had, by its course of conduct estopped itself from denying liability.

The accident occurred July 13, 1932. Taking as true all the testimony supporting the plaintiffs' contention, and giving plaintiffs the benefit of the legitimate inferences to be drawn therefrom in their favor, it was open to the jury to find that the appellant, on July 25, 1932, referred the case for investigation to Arthur H. Walrond, a public adjuster and Investigator who had served and was serving the appellant in many cases; that within a few days thereafter Walrond called upon Miss Dunne and was told by her the truth of the case, including the fact that she was born on December 18, 1915, and that her age was sixteen years and seven months...