Westerburg v. Wachenheim & Huff, Inc.

Guy, J. This action was brought to recover damages alleged to have been suffered by plaintiff because of defendant’s negligence, as plaintiff’s agent, in procuring a policy of burglary insurance, in that the application for said policy, prepared by defendant, contained a false statement that plaintiff had never theretofore suffered a loss from burglary, theft or larceny, which warranty, known by defendant to be false, was subsequently the ground upon which the insurance company rescinded the policy and rejected plaintiff’s claim of loss. Plaintiff had a summer home in New Jersey. Defendant is a corporation engaged in the business of insurance broker. Prior to the transaction which forms the subject matter of this action, the defendant had procured other policies of insurance for plaintiff. On January 29,1915, plaintiff had a conversation with the vice-president of the defendant at plaintiff’s place of business in which plaintiff told said vice-president that he had just received a telephone notice to.the effect that his summer home had been broken into; that said vice-president then urged plaintiff to take out a burglary policy, and subsequently by letter solicited plaintiff’s order on behalf of the defendant, stating: “ Everything considered and especially in view of your past experience, it seems to me that coverage of this character at so small a premium is almost a necessity.”. In a subsequent conversation plaintiff told defendant’s vice-president to go ahead and get a policy for him, and defendant thereafter obtained a policy for plaintiff for $1,000 in the Great Eastern Casualty Company and delivered same to plaintiff, which plaintiff placed in his desk without reading, and paid defendant therefor. Plaintiff alleges that he sustained a loss by burglary subsequent to the date of the policy and within the period [14] covered thereby, and presented a claim therefor with proofs of loss, which claim was rejected by said casualty company and the policy rescinded on the ground that it contained a warranty that the assured had never suffered a loss from burglary, theft or larceny, which warranty was not true. The main question on this appeal arises over the admission in evidence by the trial court, under objection and exception of defendant’s counsel, of an exemplified copy of a record of a Court of Oyer and Terminer in New Jersey setting forth the conviction of certain defendants for burglary committed on February 12, 1915, during the period covered by the policy, at plaintiff’s place of residence in New Jersey. This evidence was objected to as incompetent, irrelevant and not binding upon the defendant herein, the defendant not having been a party to said proceeding and not having received any notice thereof. The admission of said record was error necessitating a reversal of the judgment. While a judgment of a criminal court may be admissible in a proper case as evidence of the fact of the entry of the judgment, the record admitted was not evidence of the facts therein stated as against this defendant, which was not a party to the controversy determined in said court. It is elementary that no one should be bound by proceedings to which he was a stranger. The proceedings in the New Jersey court were res. inter alios acta, and defendant could not be bound thereby. “As a general rule a verdict and judgment in a criminal case * * * cannot be given in evidence in a civil action to establish the facts on which it was rendered. If the defendant was convicted it may have been upon the evidence of the very plaintiff in the civil action. * * * But beside this, and upon more general grounds, there is no mutuality; the parties are not the same, neither are [15] the rules of decision and the course of proceedings the same.” 1 Greenl. Ev. § 537. See, also, Louis v. Connecticut Mutual Life Ins. Co., 58 App. Div. 137; Goldschmidt v. Mutual Lift Ins. Co., 102 N. Y. 486; Buffalo Loan Trust & Safe Dep. Co. v. Knight T. & M. M. A. Assn., 126 id. 450. In the absence of the evidence so erroneously admitted there was no competent or sufficient proof of plaintiff’s loss of property by burglary during the term of said policy, and therefore, no competent proof of damage suffered by plaintiff through the alleged negligence of the defendant. The judgment must, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event. Delehanty, J. concurs.