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Osborn v. New Amsterdam Casualty Co.

Decided: September 27, 1933.

GEORGE H. OSBORN, SR., ADMINISTRATOR OF ESTATE OF CAROLINE OSBORN, DECEASED, PLAINTIFF-RESPONDENT,
v.
NEW AMSTERDAM CASUALTY COMPANY, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the appellant, Joseph C. Paul.

For the respondent, George S. Hobart and Augustine J. Kelly.

Campbell

The opinion of the court was delivered by

CAMPBELL, CHANCELLOR. The judgment appealed from is the result of a trial at Circuit, without a jury, upon findings of fact and law by the Circuit Court judge based upon a stipulation of facts.

The findings of fact and law so far as they are pertinent are these: That one Blackburne, the owner of a certain motor car gave permission and consent to one Elsa Bessinger, but not as his agent or servant, to operate the same, and while so operating it, and without being licensed as a driver by the State of New Jersey, the car while under her control came into collision with another car at Prospect and Mount Pleasant avenues in West Orange, Essex county, causing injuries to respondent's intestate from which she subsequently died. Suit was brought by respondent in the Essex County Circuit Court against the owner, Blackburne, and the operator, Bessinger, and the latter not being served with process the cause proceeded against the owner only resulting in a verdict directed

in his favor upon the ground that the operator was not his agent.

Subsequently an action was brought against the operator of the car, Bessinger, in Connecticut and judgment there obtained against her which later by suit thereon in this state was converted into a judgment in the Supreme Court and execution thereon was returned unsatisfied because of the adjudication of bankruptcy in favor of the judgment debtor. Then the action resulting in the judgment under review was instituted against the appellant, an insurance company which had undertaken to insure the owner of the car, Blackburne, and as is alleged the operator, Bessinger, who, in the meantime had become the wife of the assured.

Under the stipulation of facts the trial court found that Bessinger was not a licensed driver of this state at the time of the happening, that notwithstanding that fact she was covered by the policy of insurance and further that an agreement entered into between her and the appellant insurance company on July 13th, 1929, that the latter would defend her in the actions against her in consideration of her paying any judgment entered against her did not relieve the appellant from liability under its insurance contract.

From the judgment entered upon such findings the insurance company, defendant below, appeals and urges two grounds of reversal.

The first is that there is no liability to answer to such judgment because under the terms of its contract the operator of the car, Bessinger, not being a licensed driver of ...


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