On appeal from the Supreme Court, Passaic county.
For the plaintiff-respondent, Beggs & Grimshaw (Charles C. Stalter, of counsel).
For the defendant-appellant, Townsend & Doyle (Mark Townsend and Thomas F. Doyle, of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The question before us is whether the appellant, an insurer, is obliged to pay a judgment recovered by the plaintiff below against a third party under the facts and circumstances exhibited. The determination of the question turns upon whether the unlawful act of the tort feasor which resulted in plaintiff's injury is comprehended by the contract of insurance between the insurer and the assured, Thomas Rooney.
The plaintiff holds a judgment recovered in a separate action against John McNamee, the tort feasor in fact. This suit is for the recovery of that judgment from the appellant. Mr. Rooney is the owner of the automobile which, while under McNamee's control, injured the plaintiff. The appellant is the insurance carrier. The trial court, who heard the case without a jury, found, among other things, that McNamee, at the time of the accident, "was driving the named assured's car with the permission of the named assured." This particular issue was not seriously disputed at the trial, the main question being whether, under the terms of the policy, the insurer may avoid liability for McNamee's negligent act.
The important provision of the contract, paragraph "F," reads as follows: "The unqualified word 'Assured' * * * includes not only the Named Assured but also any other person or organization while using the automobile, * * * and further provided that such use is with the permission of the Named Assured * * *. The provisions of this paragraph shall not apply, however, to any person or organization, or to any employe thereof, operating an automobile repair shop, public garage, sales agency or service station with respect to any accident arising out of the operation thereof; * * *."
It is the appellant's contention that the plaintiff had the burden to show not only that McNamee drove the car with the permission of the assured, but further that his status was not within the class or kind of person or agency whose liability for the negligent operation of the Rooney car was expressly repudiated by the contract. This "exclusion clause" so called is stated above. The argument in effect is that it was the plaintiff's burden, in addition to showing that the action of McNamee, in driving the car, was authorized, to further show that his act, at the time plaintiff was injured, was not done in a capacity, where protection for the injured person is proscribed by the contract. But this we do not conceive to be the law. The particular clauses of paragraph "F" are not conditions precedent but rather conditions subsequent and are matters for defense which must be pleaded to defeat recovery. Cf. Center Garage Co.
v. Columbia Insurance Co., 96 N.J.L. 456, 459. The appellant recognized this rule of pleading and practice because in its fourth and fifth defenses to both counts of the complaint it pleaded that the contract of insurance excluded the tort feasor McNamee as an insured and, further, that it excluded him "by reason of the circumstances surrounding the operation and control of the automobile at the time of the accident mentioned in the complaint * * *."
The exclusion clause relied upon by the appellant in its argument is a good deal like a proviso where, generally, those benefited by such proviso have the burden of pleading it and, in its proofs, bringing the case within it. The situation, in a case of this kind, may be likened to that where the suit is on a statute. If the enacting clause contains an exception or a proviso the pleading must allege and the proof show the facts to be outside the proviso and within the general clause, but if the exception or proviso be elsewhere than in the enacting clause that is something to be set up in an answer or plea. Compare Wheatman v. Andrews, 85 N.J.L. 107, 112, and authorities there cited.
Now here the provisions of the exclusion part of the paragraph in question stand as an entirely separate provision apart from the contract definition of those included within the meaning of the unqualified word "Assured." Applying the rule mentioned to the issue before us, it was enough for the plaintiff to show facts which would make the insurance company answerable for the action of McNamee within the meaning of the enacting clause and if it could be shown that McNamee was within that class of ...