Perth Amboy Garage Co. v. Nat'l Fire Ins. Co. of Hartford, 151.

• Decision Date: 31 January 1933
• Docket Number: No. 151.,151.
• Parties: PERTH AMBOY GARAGE CO. et al. v. NATIONAL FIRE INS. CO. OF HARTFORD.
• Court: New Jersey Supreme Court

164 A. 285

PERTH AMBOY GARAGE CO. et al.

v. NATIONAL FIRE INS. CO. OF HARTFORD.

No. 151.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1933.

Syllabus by the Court.

Where there is no statement contained in an answer, alleging fraud, or any pleading of such a defense, and no such issue is presented by the complaint, the defense of fraud or misrepresentation is not an issue, under rule 40 of the 1912 Practice Act, P. L. 1912, p. 391, rule 40 (which is now rule 58 of the Supreme Court), and cannot be availed of by the defendant at the trial.

We think it was the intention of the Legislature, in adopting rule 40 of the Practice Act, P. L. 1912, p. 391, that when fraud or misrepresentation of a plaintiff is intended to be used as a defense, it must not only be alleged as a conclusion that the plaintiff was guilty of fraud, but the facts must be set up in the pleadings, from which the conclusion of fraud or misrepresentation may be inferred.

Appeal from Supreme Court.

Suit by the Perth Amboy Garage Company, a corporation of New Jersey, and another against the National Fire Insurance Company of Hartford. From an adverse judgment, defendant appeals.

Affirmed.

John C. Stockel, of Perth Amboy, for appellant.

David T. Wilcntz, of Perth Amboy, for respondents.

HETFIELD, J.

This is an appeal from a judgment of the Supreme Court, Middlesex circuit, based upon a direction of a verdict by the court, in favor of the respondents, the Perth Amboy Garage Company, for $2,687.50, and Robert Rielly, for $720.25. Suit was instituted by the respondents against the appellant, on a policy of fire insurance covering two automobiles which were damaged by fire some eight days after the policy was issued. The proofs of claim which were presented to the appellant and sworn to by both respondents, alleged that the fire had been caused by the back-fire in the carburetor in one of the cars while being started in the garage. It appears that the automobiles were sold to the respondent Rielly by the Perth Amboy Garage Company under conditional bills of sale, and the policy provided that the loss, if any, should be paid to both said parties, as their interest might appear.

The first point relied upon for a reversal is that the trial court erred in excluding evidence that the respondent Rielly had set fire to the insured trucks, it being contended that such evidence was admissible under the second separate defense contained in the appellant's answer, which reads: "Any loss, damage, or injury resulting to the plaintiffs, or either of them, by reason of any fire which damaged or destroyed any truck or trucks owned by the plaintiffs, or either of them did not result and was not caused under circumstances which impose any liability upon the defendant by reason of any policy of insurance executed by the defendant in favor of the plaintiffs or either, of them."

We think that the ruling of the trial court was proper, and that it was supported by rule 40 attached to the 1912 Practice Act, P. L. p. 391 (which is rule 58 of the...