Cleghorn v. Ocean Accident & Guarantee Corp.

Per Curiam.

This action was brought to recover under an indemnity policy issued by the appellant for liability incurred by the plaintiff as the result of an accident caused by his automobile, the principal liability being íimited to $5,000, to which was to be added certain interest, costs and expenses.

We agree with the Appellate Division that upon the facts presented by the plaintiff this was a proper case for a summary judgment and, therefore, we shall not discuss this question which has been amply considered in the opinion of Mr. Justice Kapper.

We think, however, that the court has erroneously permitted to be included in this judgment an item of $1,100 interest on the principal insurance sum of $5,000, from the date when the accident occurred to the date when the judgment for damages caused by such accident and resulting injuries was entered against the plaintiff.

By the terms of the policy the defendant was bound to pay “ interest accrued on the judgment rendered ” against plaintiff. That would seem to be a perfectly simple statement. The plaintiff, however, seeks to overcome it by the provision which required the clerk on rendition of the verdict in the action brought against plaintiff to add interest from the date of the death of the person who was injured. We do not think, however, that this latter provision overcame the provision of the policy. In fact we see no connection between the two things. The statute in death cases requires addition to the verdict as part of the damages of interest from date of death to verdict. The policy provides for interest from the date of entry of the judgment. • The two provisions are written from entirely different viewpoints and each one is independent of the other.

*168 Therefore, the judgment which has been entered should be modified by subtracting the sum of $1,100, being the interest on $5,000 from October 16, 1916, the date of the death of the person who was injured, to June 16, 1920, the date of the entry of the judgment recovered for said death, and also the interest on said $1,100, and, as so modified, affirmed, without costs to either party.

Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur; Lehman, J‘., not voting.

Judgment accordingly.