Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D. Freund, J.A.D. (dissenting).
Plaintiffs sued in the Monmouth County District Court as derivative claimants on a policy of automobile liability insurance issued by the corporate defendant as insurer to the individual defendant as named insured. Plaintiffs had previously recovered judgment in the county district court against Carol Helbig, minor daughter of the present defendant Helbig, for damages resulting from a collision between an automobile owned by Elizabeth Helbig and operated by Carol and an automobile owned and operated by the plaintiff Louis A. Miller. In that action there was a judgment of dismissal in favor of Elizabeth Helbig, who had been joined as defendant. This is an appeal from a judgment in favor of defendants, to the extent that it absolves the insurance company. The county district court judge, sitting without a jury, held that the company was excused by reason of failure of performance of conditions precedent laid in the insurance policy upon the operator of the Helbig car.
The accident here in question occurred July 31, 1953. There was sharply controverted testimony by Carl Helbig, the father of Carol, to the effect that he phoned the office of the issuing agent of the company the day after the accident to report the occurrence and spoke to the agent about it subsequently. The complaint in the damage suit was filed
August 18, 1953. Service was made August 19, 1953 on the defendant Elizabeth Helbig personally and upon the defendant, Carol Helbig, sued by her guardian ad litem , Carl Helbig, by leaving a copy of the papers with his wife, Elizabeth Helbig. By letter dated August 20, 1953 and received by the defendant company August 24, 1953, an attorney representing Mrs. Helbig, personally, forwarded the summons and complaint served upon Elizabeth Helbig. The letter states: "My investigation discloses that the accident was due to the sole negligence of Mr. Miller." The letter did not enclose or refer to the service of the summons and complaint served, as aforestated, upon Carol Helbig, through her guardian ad litem. It is undisputed that Carol's operation of the car was within the scope of the policy definition of "Insured" as including any person using the vehicle with the permission of the named insured. The defendant company replied under date of September 2, 1953 to the attorney's letter and disclaimed any liability because of the asserted failure of the insured to give it notice "as soon as practicable of the happening of the accident, together with all pertinent information pertaining thereto." The company took no part in the defense of the damage suit.
In the present action and appeal the position of the defendant is that there was a breach by the insured, Carol Helbig, of contractual conditions precedent pertaining to written notification of the defendant of the accident and its particulars and requiring the forwarding of the summons and complaint served on Carol to the company. The language of the policy in these respects is as follows:
Condition 6 of the policy reads:
"No action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy * * *."
Condition 1 is as follows:
"When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient
to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of ...