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

• Decision Date: 04 May 1934
• Docket Number: No. 95.,95.
• Citation: 172 A. 367
• Parties: JASION et al. v. PREFERRED ACC. INS. CO. OF NEW YORK.
• Court: New Jersey Supreme Court

172 A. 367

JASION et al.

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

No. 95.

Court of Errors and Appeals of New Jersey.

May 4, 1934.

Appeal from Supreme Court.

Suit by Leo Jaslon, by his next friend, Frank Jasion, and by Frank Jasion, individually, against the Preferred Accident Insurance Company of New York. From a judgment in favor of the plaintiffs, the defendant appeals.

Judgment affirmed.

Frank G. Turner, of Newark, for appellant.

Samuel D. Hoffman, of New Brunswick (Maxwell J. Hoffman, of New Brunswick, of counsel), for respondents.

BROGAN, Chief Justice.

This case presents an appeal from a judgment of the Supreme Court, Middlesex county, wherein summary judgment was entered in favor of the plaintiffs below and against the Preferred Accident Insurance Company of New York, the appellant here. The plaintiffs below had prevailed in a prior action against one Joseph Jasion for personal injuries and resultant damage sustained by reason of the negligent operation of an automobile truck by said Jasion, who was insured by the appellant insurance company. Having failed to obtain satisfaction of these judgments by an execution, suit was instituted against the insurer on the policy of insurance that had been issued by it to the judgment debtor, Joseph Jasion.

The complaint in the instant case alleged that the defendant below had issued a policy of automobile liability insurance to the assured in which it was agreed that during the term of the policy the insurance company would pay "all sums for which the assured shall become liable to pay as damages imposed upon him by law for bodily injury, * * * sustained by any person or persons if caused by the ownership, maintenance or use of any automobile disclosed in the Declarations for the purposes therein stated"; that during the term of the policy the assured, while using his automobile truck, became responsible for bodily injuries suffered by plaintiff; that judgments totaling $7,500 were recovered against the assured; that execution was issued thereon and returned unsatisfied because of the insolvency of the said Jasion. An answer was filed by the defendant company which the plaintiffs below moved to strike out. An affidavit supporting the motion and a counter affidavit supporting the answer were filed. The answer, found by the trial court to be insufficient to constitute a legal defense, was stricken out, and summary judgment was entered as heretofore stated.

The answer consisted of a general denial, five separate defenses, and four objections in point of law to the complaint. The affidavit filed in support of this pleading does not sustain it in law or in fact. It was made up of some excerpts from the testimony in the original case, calculated to support but one point of the answer, viz. that the operation and use of the autotruck, at the time the infant plaintiff was injured, was excluded from the protection of the contract of insurance.

There are fifteen grounds of appeal filed and argued. These, as far as their legal significance is concerned, may be grouped under four general headings, as follows:

(a) That it was error to strike the answer because issues of fact were involved.

(b) That the present suit was for two judgments, one for the infant plaintiff, the other in favor of his father for loss of services, and that it was error to consolidate these two sums into a judgment for one amount as in the case of the judgment under review.

(c) That Frank Jasion, father of the infant plaintiff, did not have a cause of action, since the policy in question only covered claims for bodily injuries and he suffered none; his judgment being for compensation for loss of services.

(d) That the contract of insurance did not cover the use in which the autotruck was engaged at the time of plaintiff's injuries, since plaintiff was a passenger and such use was, under the policy, excluded.

(a) As to the first ground of appeal, it is true that the answer of the defendant below did raise fact issues. It denied the allegations of the complaint; it disclaimed liability; it alleged failure to co-operate on the part of the assured, as called for by the policy, and other defenses of like character. Some of the defenses were frivolous on their face, others sham, and none of them received any mention in the affidavit filed to support the pleading.

The affidavit challenging the answer was not contradicted or rebutted by the answering affidavit, and the pleading was properly stricken, because there was no fact in dispute for the determination of a jury. To strike out a sham or frivolous answer does not usurp the right of a jury trial. The general denial and some of the separate defenses...