Stefus v. London and Lancashire Indemnity Company

• Court: New Jersey Supreme Court
• Writing for the Court: HETFIELD, J.
• Citation: Stefus v. London and Lancashire Indemnity Company, 166 A. 339, 111 N.J.L. 6 (N.J. 1933)
• Decision Date: 15 May 1933
• Docket Number: 176
• Parties: ELIZABETH STEFUS AND MICHAEL STEFUS, HER HUSBAND, PLAINTIFFS-RESPONDENTS, v. LONDON AND LANCASHIRE INDEMNITY COMPANY, A CORPORATION, DEFENDANT-APPELLANT

166 A. 339

STEFUS et al.

v. LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA.

No. 176.

Court of Errors and Appeals of New Jersey.

May 15, 1933.

Appeal from Supreme Court.

Suit by Elizabeth Stefus and her husband, against the London & Lancashire Indemnity Company of America. From a summary judgment against defendant, entered in the Supreme Court, defendant appeals.

Affirmed.

Cox & Walburg, of Newark, for appellant.

Robert I. Kuritzky, of Plainfield, for respondents.

HETFIELD, Judge.

This is an appeal from a summary judgment entered in the Supreme Court, Somerset circuit, as the result of an answer filed by the appellant being struck as frivolous. It appears that the respondents recovered a judgment against the defendant's assured, one Isaac Krinick, for approximately $2,800. Execution was then issued, and returned unsatisfied, and, subsequently, suit was instituted against the present appellant, under the terms of the liability policy issued to Krinick.

The answer filed by the appellant admits that the policy of insurance was issued to Krinick, covering the automobile involved in the accident, and that judgment, as alleged in the complaint, was recovered by the present respondents against Krinick. It then sets up, in substance, as a defense, that the accident suit was based upon willful injury to the present respondent, Elizabeth Stefus; and that the trial judge instructed the jury that they could not find against the defendant unless they found that he was guilty of willfully injuring the said Elizabeth Stefus. The grounds of appeal are, in effect, that the Supreme Court erred in striking out the answer of the defendant, and entering summary judgment "for the reason that the policy of insurance on which this suit is brought insures and indemnifies its named assured only for injuries to third persons accidentally sustained and not for injuries to third persons wilfully or wantonly inflicted by its assured." The appellant's contention is, that the accident ease was instituted against the defendant's assured for injuries willfully or wantonly afflicted. Therefore, if the records do not support this proposition, the action of the Supreme Court was proper, and the judgment should be affirmed. The record of the accident case, kept as a memorial in the Supreme Court clerk's office, consists of the pleadings, postea, and judgment. The postea discloses a general verdict against the defendant, Krinick, in favor of Elizabeth Stefus, for $2,000, and in favor of her husband, Michael Stefus, for $302.20. An examination of the complaint filed, shows that it alleged that the defendant owned and operated an automobile, and that while the plaintiff, Elizabeth Stefus, was standing on the running board of his car, conversing with him, defendant suddenly started his car, and the said Elizabeth Stefus was thrown from the running board and dragged along the road, sustaining injuries; and that such injuries "were caused solely by the carelessness, negligence and recklessness of the defendant in starting said car as aforesaid. * * *" There does not appear in the complaint any allegation charging that the injuries were willfully or wantonly inflicted.

The appellant, in its answer in the present case, as well as in its brief, refers in many instances to the rulings and charge of the court in the accident case; and as neither the said rulings or charge are a part of the record in the accident case, they are not properly before us, and, therefore, are unavailable to the appellant. Union Garage Co. v. Wilner, 98 N. J. Law, 441, 120 A. 4.

The judgment under review will be affirmed.

LLOYD, Justice (dissenting).

I regard this case as of such far-reaching effect and the view of the majority so fundamentally unsound that I cannot forbear stating my views in dissent. The facts are stated in the majority opinion and it is not necessary to repeat them.

My difficulty is that under the judgment entered below the appellant is deprived of its right to be heard. It had issued its policy to Krinick, defendant in the original litigation, to indemnify him against "loss by reason of the liability enforced upon him by law for damages on account of bodily injuries, including death, accidentally suffered by any person or persons * * * by reason of the ownership, maintenance or care of" an automobile, and also to "indemnify any person other than the named assured against loss for which the named assured, under like condition, would be entitled to indemnity however resulting from an accident occurring while such automobile is being used," and to which last clause certain exceptions are named, but not important here.

That the liability attaches only in case of an accident and not as the...