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Osback v. Township of Lyndhurst

Decided: June 25, 1951.

OSCAR OSBACK, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF LYNDHURST, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND MARY COLES, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF WILLIAM J. COLES, DECEASED, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division.

For affirmance -- Justices Case, Oliphant, Wachenfeld and Burling. For reversal -- Chief Justice Vanderbilt, and Justices Heher and Ackerson. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

The plaintiff-appellant was employed by the Township of Lyndhurst as a driver of its fire equipment. While operating one of the fire trucks for the township in pursuance of his duties, he was involved in a collision with and injured one William J. Coles.

Coles instituted an action but died before it was completed and his wife was substituted as administratrix ad prosequendum. On December 28, 1949, judgment in the sum of $10,675 was recovered against the plaintiff.

R.S. 40:51-3 provides:

"Every municipality shall cause to be insured the drivers of its motor cars, trucks and other vehicles, including the drivers of fire and police apparatus, and the drivers of such motor cars, trucks and other vehicles, including fire and police apparatus which shall be under the control of such municipality, against liability for damages resulting in personal injury or death or damage to property caused by reason of the operation and use of such motor cars, trucks, vehicles and other apparatus.

Such insurance may be issued in the name of the municipality but it shall insure the authorized drivers of such motor cars, trucks and other vehicles against liability for damages to property, in any one accident, to an extent of not less than one thousand dollars and against liability for injuries or death of one person, in any one accident, to an extent of not less than five thousand dollars and against liability for injuries or death of more than one person, in any one accident, to an extent of not less than ten thousand dollars."

The township failed to carry the required insurance and the present suit was instituted to compel it to pay so much of the judgment against the plaintiff as would have been covered by insurance had the township carried liability coverage in accordance with the legislative enactment. The complaint was amended by adding a second count in which Osback asked for a judgment against the municipality in the sum of $10,675.

By consent, the suit proceeded as though Mary Coles, as administratrix ad prosequendum of her husband, had a right to intervene as a third-party beneficiary.

The pleadings raised the issue whether or not Osback was an authorized driver for the municipality and the court below found that he was, even though the municipal records were silent as to his appointment to the position for the period in question. The cause was tried by the court, a jury trial having been waived, and we accept its conclusion as to this fact.

Relying primarily upon Knauer v. Ventnor City, 13 N.J. Misc. 864 (Cir. Ct. 1935), to the effect that the neglect or failure of officials to obey the command of the statutes does not of itself create a cause of action against the municipality on behalf of one who suffers a loss by reason of ...


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