For reversal and remandment -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
The Superior Court, Law Division, after a trial without a jury, dismissed plaintiffs' action based on an automobile liability insurance policy. On our own motion we certified plaintiffs' appeal before the Appellate Division considered it.
The controversy arose out of the following factual situation: On July 2, 1953 there was in existence an automobile liability insurance policy issued by the defendant insurer
to Dennis McKnight Sturgill, Sr., as the named insured. The policy contained the following omnibus clause:
" III Definition of Insured
With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission."
The automobile which was covered by the policy was one of two owned by Sturgill, Sr., who lived with his family on a farm in Maryland. His 17-year-old son, Dennis McKnight Sturgill, Jr., a member of the United States Navy, was stationed at Melville, Rhode Island. Sturgill, Sr., turned the car over to his son and "told him to just use the car around the base there and going back and forth home with it, and not to be out running around." The son drove the car home from Rhode Island "about every two weeks" and when home he used it "for dates and errands and that sort of thing." Sturgill, Sr., considered the vehicle to be a "family car." Sturgill, Sr., neither expressly forbade nor authorized his son to permit others to operate the car. While at the base Sturgill, Jr., used the car to "go out on dates." These engagements sometimes took him as far as 50 miles from the base, others occasionally sharing the operation of the car with him.
On July 1, 1953 Sturgill, Jr., and four of his friends, Costanzo, Mazzolani, Nicolosi and Gleason, also sailors stationed at the base in Rhode Island, decided to go to a dance in Passaic, New Jersey. The five boys started out for Passaic in the Sturgill car and during the trip the driving was shared by Sturgill, Jr., Gleason and Costanzo. After the dance on the return trip Nicolosi drove the car at the request of Sturgill, Jr., as the latter was not familiar with the roads in New Jersey. Shortly after the journey began all the passengers fell asleep. Nicolosi continued to operate
the car until it left the roadway and struck a tree in Columbia, Connecticut.
Costanzo and Mazzolani instituted an action in Connecticut against Sturgill, Sr., and Nicolosi to recover damages for the injuries which they sustained in the accident. Sturgill, Jr., was not made a party defendant. Nicolosi defaulted and a judgment was entered against him in the amount of $17,500 for Costanzo and $500 for Mazzolani. Sturgill, Sr., defended the action and there was a judgment in his favor which was affirmed by the Connecticut Supreme Court of Errors. Costanzo v. Sturgill, 145 Conn. 92, 139 A. 2 d 51 (1958).
In the present action the plaintiffs, Costanzo and Mazzolani, are seeking to obtain payment of their Connecticut judgments against Nicolosi from the defendant insurer. They contend that Nicolosi was an additional insured under the above quoted omnibus clause. The limitation of liability under the policy is $10,000 - $20,000. It was accordingly stipulated that any recovery herein would be limited to $10,000 for Costanzo and $500 for Mazzolani. The defendant argued below that it is not liable to satisfy the judgments to the extent of the policy because: (1) Nicolosi was not an "insured" under the omnibus clause in that he was operating the car without the permission of the named insured; (2) the plaintiffs are foreclosed from litigating the issue of permission as that issue was decided adversely to them in the Connecticut ...