Goldmann, Foley and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
Plaintiffs Salvatore Mancuso and Ruby Mancuso, co-owners of a Fiat automobile, were insured against damages thereto, less $50 deductible, by Emmco Insurance Company (hereinafter referred to as Emmco).
On August 5, 1959 at 3:45 a.m., defendant Leonard Rothenberg, with the permission of the plaintiffs, was driving
the Fiat, on a mission for his own benefit, when he became involved in a collision with another car owned by the defendant Alfred Bender and operated by his agent, defendant Louis Bender. The Fiat car was damaged. At the time of the accident, defendant Rothenberg owned a Plymouth automobile (not involved in the accident). He was at that time insured by Motors Insurance Corporation (hereinafter referred to as Motors) against damage from collision, less $50 deductible. This coverage extended to his Plymouth automobile and to any non-owned vehicle which he might have the occasion to operate.
The plaintiffs collected their loss (less $50) from Emmco, and instituted suit against Rothenberg for the full amount thereof, for the benefit of their carrier Emmco, as subrogee, and for themselves as to the $50 deducted. Defendant Rothenberg, pursuant to Order for leave to file third-party complaint impleaded his insurance carrier, Motors, as a third-party defendant. Motors denied liability, maintaining that its policy did not afford coverage to the defendant Rothenberg relative to the matters set forth in the third-party complaint, that collision insurance covering the Fiat was issued and loss thereunder paid by Emmco (less $50), and that, under the circumstances, its coverage was excess insurance. The limits of the Emmco policy had not been exceeded.
The damages to the Fiat car were stipulated by the plaintiffs and the defendant Rothenberg to be $552.73. Motors agreed that such figure represented a fair and reasonable value of the repairs to the car. There was an additional towing charge of $25 covered by the policy of Motors. The case was tried without a jury, and the court found that there was no negligence on the part of the defendants Benders and, on their motion, without objection, judgment was entered in their favor. The court further found that the sole negligence and proximate cause of the accident rested with Rothenberg, and, accordingly, found for the plaintiffs and entered judgment against the defendant Rothenberg in
the amount of $552.73. The court also found that the insurance policy of Motors "was issued for the protection of Rothenberg, not on a Fiat," and entered judgment for Rothenberg on the third-party complaint against Motors for $527.73, representing damages of $552.73 plus $25 towing charges less $50 which was deductible.
The contract of insurance contained a statement in bold red print: "This Policy DOES NOT PROVIDE bodily injury and property damage liability insurance or any other coverage for which a specific premium charge is not made, and does not comply with any Financial Responsibility Law." The declaration page of the policy indicates that premiums were paid for coverages including "E Collision or Upset (actual cash value less $50 deductible)" and "F Towing and Labor Costs." Under that portion of the policy relating to "Insuring Agreements," there is a provision as to "Coverage E -- Collision" by which the insurance company agreed:
"To pay for loss caused by collision to the owned automobile or to a non-owned automobile but only for the amount of each such loss in excess of the deductible amount stated in the declarations as applicable hereto."
Specific exclusions are enumerated, and item (c) is invoked. It reads: "to loss to a non-owned automobile arising out of its use by the insured in the automobile business." The recited conditions of the policy include, inter alia , a paragraph captioned "13. Other Insurance," which provides:
"If the insured has other insurance against a loss covered by this policy, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability of this policy bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute ...