Savarese v. Hartford Fire Ins. Co.

• Decision Date: 03 March 1924
• Docket Number: No. 56.,56.
• Citation: 123 A. 763
• Parties: SAVARESE v. HARTFORD FIRE INS. CO.
• Court: New Jersey Supreme Court

123 A. 763

SAVARESE

v. HARTFORD FIRE INS. CO.

No. 56.

Court of Errors and Appeals of New Jersey.

March 3, 1924.

Campbell and Clark, JJ., dissenting.

Appeal from Circuit Court, Hudson County.

Action by Anthony Savarese against the Hartford Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Autenrieth & Gannon, of Jersey City, for appellant.

George J. McEwan, of West Hoboken, for respondent.

KALISCH, J. The plaintiff below purchased, in good faith, from one John Cox a used seven-passenger Buick. automobile on November 1, 1919, for $750. He spent for repairs on the car and in furnishing it with new tires about $400. In June, 1920, the defendant company issued a policy of insurance, to the plaintiff, on the car against fire and theft, for one year. Upon the expiration of the term of the policy in June, 1921, the policy was renewed for another year. On December 15, 1921, the car was stolen. The plaintiff demanded of the defendant indemnification, under the policy for the loss sustained by him, which was refused. Thereupon the plaintiff brought his action against the defendant upon the policy, and the defendant, in its answer, in justification of its refusal to indemnify the plaintiff for his loss, averred that the plaintiff was not the lawful owner of the car; that the car was the property of one Louis P. Friend, who had the car insured in the Northern Assurance Company against loss by theft, and the car was stolen from Friend; and that the Northern Assurance Company paid Friend his loss under the policy, and that, therefore, by virtue of a clause in the policy, the said Northern Assurance Company, from the time of the payment by it to Friend of his loss, became the lawful owner of the automobile.

At the close of the case a motion was made, on behalf of the defendant, for the direction of a verdict in its favor which motion was denied, and the case was submitted to the jury which rendered a verdict for plaintiff, and against the defendant, and a judgment having been entered thereon the cause is now brought here, by the defendant, for review.

For the appellant it is strenuously insisted that the automobile having been stolen from Friend, and he having been indemnified for his loss by the Northern Assurance Company, it, by the terms of its policy issued to Friend, became the lawful owner of the stolen automobile and the only one who had an insurable interest therein, and, therefore, by virtue of a clause contained in the policy issued by the defendant appellant, to the plaintiff, which clause provides that the entire policy shall be void, "if the interest of the assured in the subject of this insurance be other than unconditional and sole ownership," the plaintiff had no insurable interest in the automobile, he not being the unconditional and sole owner thereof.

The fallacy of this reasoning springs from a misconception of what is understood to be the meaning, in its common acceptation, of the phrase "unconditional and sole ownership," as used in the policy of insurance. There is no pretense on part of the appellant that the ownership of the plaintiff of the automobile was "conditional."

The stress of appellant's argument is placed upon the term "sole ownership," which under the facts of this case it is claimed the plaintiff did not possess. We think that "sole ownership" as used in the policy can properly mean nothing more than that no one else is interested with the insured, in the ownership of the car. In this view, it is obvious that...