Gaulkin, Sullivan and Foley. The opinion of the court was delivered by Foley, J.A.D.
Defendant Nationwide Mutual Insurance Co. (hereinafter referred to as Nationwide) appeals from judgments entered against it in favor of all plaintiffs. The case was tried in the Law Division without a jury.
On October 26, 1956 one Betty Mae Hoerner was the driver of an automobile which was in collision with an automobile owned by Elizabeth Slodzinski and operated by Anthony Slodzinski in which John Matits was a passenger. The automobile driven by Mrs. Hoerner was owned by Mrs. Hilda Velasco and was insured by the defendant, Nationwide, under a standard form automobile liability policy containing the omnibus coverage required by N.J.S.A. 39:6-46(a). Mrs. Hoerner was an "additional assured" under a similar policy issued on another automobile by Allstate Insurance Company (hereinafter referred to as Allstate), the provisions of which granted her coverage for the occasional operation of a vehicle other than the one insured.
Individual suits were instituted by Matits and the Slodzinskis against Mrs. Hoerner and Hilda Velasco and were consolidated for trial. Prior thereto, by stipulation, the actions against Mrs. Velasco were dismissed, it being agreed that Mrs. Hoerner was not her agent at the time of the accident. Trial of the consolidated cases resulted in judgments against Mrs. Hoerner in favor of Matits in the sum of $25,000 and in favor of Elizabeth and Anthony Slodzinski in the sums of $855 and $500 respectively. Thereafter Allstate paid $10,000, its full coverage, on account of the Matits' judgment. Matits then instituted this suit against Nationwide on the omnibus coverage for the balance. The Slodzinskis brought an action against Nationwide on the same coverage. Allstate sued Nationwide for the cost of the legal fees it had incurred in defending Mrs. Hoerner. All actions were consolidated for trial. It is conceded that in this situation Nationwide was the primary insuror, the coverage provided by Allstate being regarded as excess. See American Sur. co. of New York v. American Indem. Co. , 8 N.J. Super. 343 (App. Div. 1950). Judgments were entered against Nationwide in favor of all other parties.
The crux of the questions presented to the trial court was whether the plaintiffs had established by a preponderance of the evidence that Mrs. Hoerner at the time of the accident had such permission to drive the Velasco car as to entitle her to the benefits of the omnibus coverage embraced by the Nationwide policy. The clause provides:
C. To pay all sums which those entitled to protection become legally obligated to pay as damages arising out of the ownership, maintenance or use, including loading and unloading, of the described automobile because of:
(1) destruction or damage of property including loss of use thereof;
(2) bodily injury, sickness, disease or death of any person except for liability under any workmen's compensation law. Those entitled to protection under these Coverages C (1) and C (2) are the Policyholder, his spouse if a resident of his household, and any person
or organization legally responsible for the use of the described automobile, provided the actual use was with the permission of the Policyholder or such spouse."
The undisputed facts bearing upon this question were these: Mrs. Hoerner and Mr and Mrs. Velasco were friends and neighbors living in Ramsey, N.J. On the evening of October 25, 1956 Velasco loaned the automobile to Mrs. Hoerner at her request so that she might visit her sick mother in Hawthorne, N.J. Mrs. Hoerner drove to Hawthorne arriving at about 8:00 P.M. She stayed for a short time and then drove to the Crane House, a tavern and restaurant at First and Madison Streets, Paterson, N.J., in search of her sister. At Hawthorne, Paterson is in the opposite direction from Ramsey. Mrs. Hoerner had at least two or three scotch highballs there and then drove to the Flamingo bar in Paterson. After a brief stay she returned to the Crane House. Shortly thereafter she paid a second visit to the Flamingo; then a third call to the ...