On appeal from the Supreme Court, whose opinion is reported in 116 N.J.L. 503.
For the plaintiffs-respondents, Biro & Strell (B. Bayard Strell) and Frank G. Turner.
For the defendant-appellant, Louis G. Flachbarth and Francis X. Kenneally.
The opinion of the court was delivered by
CASE, J. This is an appeal by the defendant from a judgment of the Supreme Court reversing the decision of the District Court of the Second Judicial District of the county of Essex. Defendant's named assured, Anna S. Iuliani, was driven by her chauffeur to the Bamberger store at Washington and Market streets, Newark. She told the chauffeur, inasmuch as there was no parking space at that location, that he should find a place to park the car and return for her in an hour, which would have been at six o'clock. The chauffeur drove several blocks along Washington street and met some friends whom he took aboard. While he was driving these persons to their home and was at a distance of two miles from the Bamberger store, but within the city of Newark, at the hour of about half past five, his car collided with the one in which the plaintiffs were riding. Plaintiffs sued the chauffeur and Mrs. Iuliani. The insurance company defended the action but appeared (through its attorneys) of record for Mrs. Iuliani only. The verdict was for the named assured but against the chauffeur. Execution was issued against the chauffeur and returned unsatisfied. This suit was then brought against the insurance company upon the ground that the chauffeur was an insured person under the terms of defendant's policy. Our only information concerning the policy provisions comes to us from the state of case settled by the trial court as follows:
"The policy was issued and delivered by the defendant, Fidelity & Casualty Company, to Anna S. Iuliani, insuring her automobile, and also extending protection under the policy to any other person while riding in, or legally operating the automobile 'with the permission of the assured named of the named assured's household, other than a chauffeur, domestic servant, or other employe of the assured.'"
The trial judge, sitting without a jury, deduced from the facts stated above that the driver, at the time of the accident, was not in the act of going to a place for parking, or of parking, or of returning from parking and that, therefore, under the decision of the Supreme Court in Nicholas v. Independence
Indemnity Co., 11 N.J. Mis. R. 344, the driver was without permission and was not insured by the policy. Along with the Nicholas case may be mentioned the decision of this court in Fox v. Minahan, 114 N.J.L. 33. Both cases arose from the same state of facts, but we think that each of them is to be distinguished from the instant case and that neither of them is controlling. In them the occasion upon which the accident happened was distinctly separate from that on which the permission for use was given. The vehicle was taken to its designated destination and deposited there according to instructions. On another day, without the owner's permission, the vehicle was taken out for an unauthorized use and met with the accident sued upon. Herein the mishap occurred during a brief interim between attendances upon the employer, the car meanwhile being in the personal custody of the chauffeur.
We have had our attention called to no statutory or contractual provision under which the driver may be said to have been "illegally operating" the automobile. Steinrock v. Hartford Accident and Indemnity Co., 115 N.J.L. 180. The question, then, clearly is, and this is the line of division on the appeal, whether the driver was, within the meaning of the policy, operating with the owner's permission.
Chapter 153, Pamph. L. 1924, p. 352, as amended by chapter 194, Pamph. L. 1931, p. 490, provides:
"No policy of insurance against loss or damage resulting from accident to or injury suffered by an employe or other person and for which the person insured is liable, or against loss or damage to property caused by animals or by any vehicle drawn, propelled or operated by any motive power, and for which loss or damage the person insured is liable, shall be issued or delivered in this state by any corporation or other insurer authorized to do business in this state, unless there shall be contained within such policy a provision * * * stating that in case execution against the insured is returned unsatisfied in an action brought by the injured person, or his or her ...