The opinion of the court was delivered by: SMITH
These are civil actions under the Declaratory Judgments Act, 28 U.S.C.A. § 2201. The jurisdiction of the Court is founded upon diversity of citizenship. The plaintiff, an insurer, seeks a judgment declaratory of the rights and liabilities of the respective parties under a policy of insurance issued to one of the defendants, Edward Emery. The cases were tried by the Court on a stipulation of facts and additional evidence offered by the said defendant.
The plaintiff issued to the defendant Edward Emery a motor vehicle liability policy which covered the automobile therein described, to wit, a Buick sedan. The policy by its terms extended coverage from 12:01 A.M., Standard Time, on May 18, 1955, to 12:01 A.M., Standard Time, on May 18, 1956.
The policy was the standard liability policy in which the plaintiff agreed, among other things, to pay on behalf of the 'insured' any sums which the latter might be required to pay to others as damages for personal injury or property damage 'caused by accident and arising out of the ownership, maintenance or use' of the automobile described therein. The coverage thereunder extended to the 'insured' as therein defined, which included not only the 'named insured' but also 'any person while using the automobile and any person * * * responsible for the use thereof, provided the actual use of the automobile (was) by the named insured * * * or with the permission' of the named insured.
The policy contains, in addition to others, the following condition: '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 the injured and of available witnesses.' (Emphasis by the Court.) The quoted provision is contained in the 'Notice of Accident' condition, Condition 1.
The policy also contains the following condition: 'The insured shall cooperate with the company and, upon the company's request, shall attend hearings and trials and shall assist in * * *, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits.' The quoted provision is contained in the 'Assistance and Cooperation of the Insured' clause, Condition 17.
The policy also provides: 'No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, * * *.' This provision clearly imposed upon the insured the duty to comply with the terms and conditions of the policy as a condition precedent to his right to its enforcement against the company.
The vehicle covered by the said policy was involved in an accident on March 3, 1956, in the Borough of Mountain Lakes, County of Morris, New Jersey. This accident apparently resulted in the death of one person and the injury of two others. The defendant John Emery was admittedly the driver of the vehicle at the time of the accident. The defendants Edward Emery and Eugene Wolf were passengers. Thereafter damage suits were instituted, and, we are informed, these suits are still pending.