Moors v. Atl. Cas. Ins. Co. Of Newark.

• Decision Date: 11 October 1948
• Docket Number: No. A-2.,A-2.
• Parties: DE MOORS v. ATLANTIC CASUALTY INS. CO. OF NEWARK.
• Court: New Jersey Superior Court

61 A.2d 511

DE MOORS

v.ATLANTIC CASUALTY INS. CO. OF NEWARK.

No. A-2.

Superior Court of New Jersey, Appellate Division.

Oct. 11, 1948.

Syllabus by the Court.

1. While the rule of law heretofore has been that findings of fact by the trial judge, sitting as a court and jury in the District Court, on conflicting evidence were conclusive on appeal, the present Rules promulgated by the Supreme Court authorize an independent review by the appellate court of issues of fact whether determined by a verdict of a jury or by the court sitting as a jury. Supreme Court Rule 1:2-20 and Superior Court, Appellate Division, Rule 4:2-6. Cf. Superior Court Rule 3:81-13. In this case it is not necessary to determine the precise effect of these Rules.

2. Held, there was sufficient evidence before the court below to support its judgment. Therefore, its findings of fact will not be disturbed.

Appeal from Judicial District Court, Essex County.

Action by Arthur DeMoors against Atlantic Casualty Insurance Company of Newark, New Jersey, to recover under collision policy for damage to plaintiff's automobile. Judgment for plaintiff and defendant appeals.

Judgment affirmed.

September term, 1948, before JACOBS, EASTWOOD and BIGELOW, JJ.

Harry Kay, of Newark, for plaintiff-respondent.

David Green, of Newark (Harkavy & Lieb, of Newark, of counsel), for defendant-appellant.

EASTWOOD, Judge.

Plaintiff sued defendant insurance company for damages to his automobile under the collision liability provisions of an insurance policy, less $25 deductible under the terms thereof. The defense interposed was that plaintiff had breached the terms of the insurance contract, in that he had falsely stated his place of residence and place where the insured automobile would be principally garaged. The address given by plaintiff and place where his automobile was principally garaged was 320 Broadway, Newark 4, Essex County, New Jersey. Defendant contends that the proofs established that plaintiff resided at Bakers Mills, New York, and that his automobile and driver's licenses were issued by the State of New York. Liability was denied by defendant on the theory that plaintiff's statements of residence and place where the automobile would be principally garaged were false, and consequently it was not obliged under the terms of the policy to pay the damages sustained by plaintiff. The District Court, sitting as judge and jury, found that ‘plaintiff had an address at 320 Broadway, Newark 4, Essex County, New Jersey, and that the automobile of plaintiff was principally garaged and used in the above City, County and State, all within the meaning of the declarations of the policy;’ that plaintiff ‘had an accident and that proof of loss of said accident was given to the defendant within the meaning of the terms of the policy;’ and, therefore, that plaintiff was entitled to recover upon...