Felakos v. Æetna Ins. Co.
| Decision Date | 08 November 1922 |
| Parties | FELAKOS v. ÆETNA INS. CO. |
| Court | New Jersey Supreme Court |
Appeal from District Court of Bayonne.
Action by James Felakos against the Etna Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.
Argued June term, 1922, before PARKER, BERGEN, and MINTURN, JJ.
William Huck, Jr., of Jersey City, for appellant.
Feinberg & Feinberg, of Bayonne, for appellee.
This was a suit based on a theft policy covering a, automobile. On the trial it appeared that the automobile was described in the portion of the policy entitled "Warranties" as model of 1916 when in fact it was of model 1913.
The trial judge was asked, and refused, to find for defendant on the ground that this was a breach of warranty, which was expressed by the terms of the policy as to "the description of the automobile insured" and other matters. The ground of this refusal seems to have been that the plaintiff believed the year was correctly given, relying on Dimick v. Metropolitan Life Ins. Co., 69 N. J. Law, 384, 393, 55 Atl. 291, 62 L. R. A. 774. But that case is not in point, for the statement before us was not of an opinion or belief, but of a fact warranted as such, and is not a matter which the insurer must know is not within the personal knowledge of the applicant; on the contrary, the natural assumption would be that an owner would know the year's model of his car.
The warranty was of a material matter within the plain implication of Rabinowitz v. Vulcan Ins. Co., 90 N. J. Law, 332, 100 Atl. 175.
The judgment will be reversed. We take the liberty of suggesting to counsel for respondent that, to incorporate into a brief part of the opinion of the court below, apparently as original matter, is not calculated to impress the court with the industry of counsel.
To continue reading
Request your trial
-
Titus v. West American Ins. Co.
...(3 ed.), § 302.1 at 331--332). See also, Newall v. Aetna Ins. Co., 99 N.J.L. 287, 122 A. 373 (E. & A. 1923); Felakos v. Aetna Ins. Co., 119 A. 277 (N.J.Sup.Ct.1922); 7 Am.Jur.2d, Automobile Insurance, § 17. Although this rule is not favored in this State, see, e.g., Merchants Indem. Corp. v......
-
North British & Mercantile Ins. Co., Ltd. v. San Francisco Securities Corp.
... ... v. France, 91 U.S. 510, 23 L.Ed. 401 (see, ... also, Rose's U.S. Notes); Kenney v. Franklin ... Fire Ins. Co. (Mo. App.), 247 S.W. 249; Felakos ... v. Aetna Ins. Co. (N. J. Sup.), 119 A. 277 ... The ... rule, however, is a harsh one, and especially so in contracts ... of ... ...
-
Trinity Universal Ins. Co. v. Winter
...the factory number for the motor number is not sufficient for purposes of identification." To the same effect is the case of Felakos v. Aetna Ins. Co., 119 A. 277, by the Supreme Court of New Jersey, in a theft policy, in which it is held that a warranty by the assured that the car was of a......
- Scull v. Eilenberg