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Indemnity Insurance Co. v. Metropolitan Casualty Insurance Co.

Decided: February 19, 1960.

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, A CORPORATION, ET ALS., PLAINTIFFS-RESPONDENTS,
v.
METROPOLITAN CASUALTY INSURANCE COMPANY OF NEW YORK, A CORPORATION, ET ALS., DEFENDANTS-APPELLANTS



Goldmann, Conford and Freund. The opinion of the court was delivered by Conford, J.A.D.

Conford

This is an appeal from a declaratory judgment of the Chancery Division adjudicating that one Acerra was an "insured" under the omnibus clause of an automobile liability policy issued by the defendant insurance company ("Metropolitan," hereinafter) to Jennie Calandriello on her Cadillac automobile, so as to cause that company, rather than the plaintiff ("Indemnity," hereinafter) to be the responsible carrier in respect of judgments totalling $29,500 obtained for death to a passenger and injuries to others riding in the car when it was wrecked by the negligence of Acerra in its operation on September 29, 1955. For the facts and other background data we refer to the opinion of the trial court, wherein they are fully set forth. Indemnity Ins. Co. of North America v. Metropolitan, etc., of N.Y. , 53 N.J. Super. 90 (Ch. Div. 1958).

We deem it desirable, however, to supplement the factual recital by setting forth a portion of the testimony of Jennie Calandriello -- that dealing with the subject of permission of any one other than the bailee, Smith, to drive the car.

"Q. And whose car did Mr. Smith use in taking Mr. Accera down to Philadelphia and back? A. He used my car.

Q. And you gave him the car so that he could take these people down to Philadelphia?

The Court: At this point suppose we put it this way, Mrs. Calandriello. Did you know that Mr. Smith was going down on September 29, 1955?

The Witness: Yes, I knew that.

The Court: You were in the office?

The Witness: Yes.

The Court: Did you speak to Mr. Smith that day?

The Witness: Yes.

The Court: Tell us in your own words exactly what happened as far as the tour on September 29, 1955 was concerned.

The Witness: I have an apartment over the office and Mr. Smith came upstairs and asked me if he could use ...


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