Rochon v. Preferred Acc. Ins. Co. of New York
| Decision Date | 06 March 1934 |
| Citation | 171 A. 429,118 Conn. 190 |
| Court | Connecticut Supreme Court |
| Parties | ROCHON v. PREFERRED ACCIDENT INS. CO. OF NEW YORK. |
Appeal from Court of Common Pleas, New Haven County; Edward J. Finn Judge.
Action by Ada D. Rochon against the Preferred Accident Insurance Company of New York, to recover under a liability insurance policy. Judgment for plaintiff, and defendant appeals.
Error and cause remanded.
See also, 114 Conn. 313, 158 A. 815.
Purpose of requirement in automobile liability policy that assured, in his notice, give insurer information respecting accident is to afford insurer reasonable opportunity for investigation of facts rather than to give full information on basis of which it may proceed to disposition of case.
J. Warren Upson, of Waterbury, for appellant.
Michael V. Blansfield and Harry Krasow, both of Waterbury, for appellee.
Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.
The complaint in this action alleged that the plaintiff had secured a judgment against Philip Duphiney, for injuries received by reason of his negligent operation of an automobile which was in collision with one in which she was riding; that Fred A. Spencer and his wife or one of them was owner of the car; that the defendant had issued a policy insuring the owner of the car against liability for such injuries as the plaintiff suffered; that, as appears in a copy of the policy annexed to the complaint, it included within its provisions any person operating the car of the insured with his permission; that at the time of the accident Duphiney was operating the car with the owner's permission; and that the Spencers and Duphiney had fulfilled all the obligations resting upon them under the terms of the policy. The plaintiff sought to recover the amount of the judgment, with interest and costs, under the provisions of section 4231 of the General Statutes. The defendant filed an answer in which it admitted and denied allegations of the complaint, including among its denials the allegation that Duphiney was operating the car at the time of the accident with the owner's permission; and it also pleaded a special defense. In this it set out the provisions of the policy defining the word " assured" as including one operating the insured's car with his permission, and also a condition requiring the assured to give written notice to the defendant of the accident, stating the circumstances thereof, and to co-operate with the company; and it alleged that one of the issues litigated in the original action was whether Duphiney was operating the car at the time of the accident; that all the issues in that action were found for the plaintiff; that Duphiney had represented to it that he was not operating the car at that time; that this representation was untrue and made deliberately to deceive the defendant; and that thereby Duphiney had broken the condition in the policy requiring co-operation by an insured.
The defendant by this answer assumed two wholly inconsistent positions: First, it denied that Duphiney was operating the car with the owner's permission; second, it alleged that by deliberately misstating to it that he was not operating the car he had broken the condition of the policy to which we have referred, which would only be true if he was an assured, that is, was operating it with the owner's permission. The defendant has persisted even into this court in attempting to maintain these opposing contentions. Thus, one ground of appeal is the refusal of the trial court to correct the finding so that it will state that Duphiney was not operating the car at the time of the accident; although a finding of the trial court that Duphiney was an assured under the terms of the policy is not attacked, and this would only be true if he was operating the car with the owner's permission, the defendant does seek to correct another finding of the trial court that, upon the evidence before it, a conclusion that Duphiney lied to it was not warranted. A defendant is not entitled thus to pursue two wholly inconsistent claims in its pleadings. Patchen v. Delohery Hat Co., 82 Conn. 592, 594, 74 A. 881, 135 Am.St.Rep. 290. The defendant's attempt to do this has resulted in a record so complicated as to make it difficult properly to dispose of the case, and to indicate a need of a disposition of the issues in a more orderly way than has been followed. In this situation we do not feel constrained to adhere too closely to technical rules in considering this appeal.
The trial court has found the facts as to the recovery of the judgment by the plaintiff against Duphiney and also that, on the evening of the accident, Mr. Spencer had intrusted the car to Duphiney; that Duphiney gave to the representative of the defendant a statement of the accident in which he represented that he had left the car parked in the street before the accident and when he returned he found that it had been stolen and that the person operating it at the time of the accident was unknown; that on the trial of the first action, as on the trial of this, Duphiney had testified to this effect; and that the defendant had offered no evidence on this trial tending or intended to prove that any statement made by him was untrue. The trial court then stated certain " conclusions of fact," among them, that Duphiney was an assured under the policy, that is, that at the time of the accident he was driving the car with the permission of the owner. The apparent basis of that conclusion is the judgment in the original action. As between the plaintiff and Duphiney, no doubt this judgment would be res judicata upon the issue whether or not he was then driving the car. But it would not establish the fact as between the plaintiff and the present defendant that Duphiney was an assured under the policy. Whether or not he was, would be an issue to be established by independent evidence in the trial of the present case, and until it was established the judgment would be without effect. The situation in this regard is like that presented where a judgment is...
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