Rochon v. Preferred Acc. Ins. Co. of New York

• Decision Date: 16 February 1932
• Citation: 114 Conn. 313,158 A. 815
• Court: Connecticut Supreme Court
• Parties: ROCHON v. PREFERRED ACC. INS. CO. OF NEW YORK.

158 A. 815

114 Conn. 313

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

Supreme Court of Errors of Connecticut.

February 16, 1932

Appeal from Court of Common Pleas, New Haven County; Harry L Beardsley, Judge, and Miles F. McNiff, Deputy Judge.

Action by Ada D. Rochon against the Preferred Accident Insurance Company of New York, to recover the amount of a judgment obtained by plaintiff against a third party alleged to have been insured under a policy of insurance issued by the defendant indemnifying against liability arising out of the operation of an automobile. A demurrer to a special defense was sustained, and judgment was rendered for plaintiff, and defendant appeals.

Error and new trial ordered.

J. Warren Upson, of Waterbury, for appellant.

Michael V. Blansfield, Harry Krasow, and Herman B. Engelman all of Waterbury, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS and AVERY, JJ.

BANKS J.

This action is brought under General Statutes, § 4231, by which, if the defendant in an action to recover for personal injuries is insured against loss from such liability, the judgment creditor is subrogated to the rights of the assured against his insurer. The complaint alleged that in consideration of a premium paid by Fred A. Spencer and Josephine A. Spencer the defendant issued its policy insuring them against loss by reason of injury to any person caused by the automobile mentioned in the policy, in accordance with its terms; that on and prior to December 21, 1929, Spencer intrusted the automobile to Philip Duphiney to be driven by him on the highways of Waterbury; that on that date Duphiney took the automobile with the permission of Spencer, and while operating it in the city of Waterbury, negligently ran into an automobile in which the plaintiff was a guest; and that thereafter the plaintiff brought an action against Duphiney claiming damages by reason of injuries caused by his negligent operation of the automobile, which action the defendant herein entered and defended, and in which she was awarded damages of $1,000 and costs. The defendant filed a special defense in which it alleged that by the terms of its policy the unqualified word " assured" included any person legally using the automobile with the permission of the named insured; that the policy provided that the " assured" should " co-operate with the Company" in various respects recited therein; that Duphiney represented to the company that he was not in fact operating the car at the time of the accident, which statement was untrue and made with intent to deceive the defendant, and cause it to undertake the defense of the action, and was a breach of his duty under the policy, and constituted failure to co-operate. The plaintiff demurred to this defense on the ground (1) that it was not alleged that the conduct of Duphiney therein set out was a breach of his duty under the policy; and (2) that his statements and representations did not constitute a failure to co-operate under the policy. The defense did expressly allege that the conduct of Duphiney constituted a breach of duty, and in any event the first...