Jones v. International Indemnity Co.

WASTE, P. J.

This is an action brought by plaintiff against defendant to recover the amount plaintiff was compelled to pay in satisfaction of a judgment, obtained against him, and which he claims defendant should pay, under the terms of its policy of liability insurance theretofore issued to him. Plaintiff had judgment and defendant appeals.

The amended complaint alleges that on the fourteenth day of July, 1916, plaintiff applied to the duly authorized agent of defendant for liability insurance covering plaintiff’s automobile in the sum of ten thousand dollars; that the defendant by its said agent, in consideration of a premium to be paid within sixty days from July 14, 1916, by plaintiff, agreed to, and did, insure plaintiff from the said fourteenth day of July, 1916, for one year, and did then and there issue to plaintiff a covering note, signed by defendant’s agent and dated July 14,1916, providing insurance for a period of ten days from its date, and subject to the terms and conditions set forth in the policy forms as issued by the company on the risk of plaintiff. No policy of insurance other than the covering note was ever issued.

The defendant in its answer denied that plaintiff applied to its agent for liability insurance “on the fourteenth day of July, 1916, or at any time prior to the eighteenth day of July, 1916, ’ ’ and alleged that the cover note was obtained by plaintiff by fraud and concealment after an accident had happened to him.

The date of the transaction is material, for on the seventeenth day of July plaintiff, while driving his said automobile, ran into and injured one Meyer Marcovits. On the

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nineteenth day of July .plaintiff went to the office of defendant’s agent and procured the covering note, but did not say anything about the happening of the accident. He notified the company in writing, on the 21st, that the accident had occurred.

Marcovits brought an action against Jones for the damages for the injuries suffered by him and secured judgment, which, with costs and expenses, amounted to $1,568.65, the amount sued for in the present action.

The vital issue in the case is raised by the defendant’s denial as to the date of the issuance of the covering note. A very strong circumstance in the case is found in the fact that the document bears- date July 14, 1916. The plaintiff’s evidence, corroborated by the testimony of his son, and of his stenographer, further supports the finding of the trial judge that it is correctly dated. The evidence of defendant’s agent and other witnesses may well challenge the correctness of the statements, but the most that can be said on the point is that there is a direct conflict of "the evidence. Under the well-known rule, the appellate court will not interfere with the finding of the lower court under such circumstances.