Goldmann, Freund and Foley. The opinion of the court was delivered by Freund, J.A.D.
Defendant Allstate Insurance Company (Allstate) appeals from a declaratory judgment entered in the Superior Court, Chancery Division, in favor of plaintiff Standard Accident Insurance Company (Standard), finding that a second permittee was an additional insured under a policy issued by Allstate protecting the owner of the vehicle involved in the accident. Both companies had written automobile liability policies; Allstate's policy insured Einar Aslaksen; Standard's insured Fred H. Baker, Jr., and contained a clause providing for excess insurance only if there was other "valid and collectible insurance." Baker was involved in an automobile accident while driving Aslaksen's car with the permission of Aslaksen's son. The issue presented is whether Baker was an additional insured within the meaning of the omnibus clause of Aslaksen's policy, thus making Allstate liable for his defense, or whether Baker had to look to Standard, his own insuror.
The testimony indicates that Einar Richard Aslaksen is the son of Allstate's named insured. He and Baker were neighbors and school acquaintances for four or five years before September 1957, when they entered the Marine Corps. In March 1958, after their release from active duty, they continued to be good friends. On August 10, 1958, the day of the accident, both were 19 years of age. The Aslaksen family group consisted of young Aslaksen, his father and mother. The latter, however, did not drive.
In April 1956 when young Aslaksen obtained his driver's license the father owned a 1949 Pontiac automobile. He was given permission by his father rather infrequently to use the car principally for week-end social functions and for traveling to and from meetings of the Marine Corps Reserve in Dover, N.J. Each time he wanted to use the car he was required to ask for permission from his father. While stationed as a marine at Parris Island, South Carolina, he did not have the use of his father's car and did not return home until he had completed his six-month tour
of duty. He was not sure if his father knew of his friendship with Baker before they entered military service.
In September 1957 Aslaksen (father) purchased a 1957 Oldsmobile. When young Aslaksen returned from Parris Island in March 1958, his father gave him the keys to the family's 1949 Pontiac. The son testified that at that time he received no instructions as to the use of the Pontiac.
There was a period of approximately five months between the day the car keys were handed over to the son and the day Baker had the accident. During that time the registration certificate was left in the Pontiac glove compartment and the father paid for its renewal. The son, however, bought all the gas and oil, attended to the general upkeep of the car and made necessary minor repairs. He drove the Pontiac to work every day and also used it for social purposes. He no longer asked his father's permission every time he wished to use the car since he now had what he described as a "blanket permission." In depositions before trial young Aslaksen, in answer to a question about instructions given him by his father after his return from service, said
"When I started to work my father told me that I was to use the car to go to work and for anything that I might have needed the car for in order so that I wouldn't get my hands on his new car."
However, he stated that on one occasion his father had seen him driving a friend's car and had said, "Well, just because you drive his car, that does not mean that you should loan my car to anybody else." The son said of his father, "I'll tell you for sure he did not say I could loan the car to anybody," and "He certainly did not relinquish the use of the car for me to let anybody else use it."
Aslaksen (son) admitted he had been a passenger in Baker's Ford and had himself driven it when Baker was present. He could not remember whether he had driven it without being accompanied by Baker. The son acknowledged his father had met Baker after their release from service
but could not remember whether the elder Aslaksen had seen the two young men together in the Pontiac. The father had never given any instructions that Baker was not to be a passenger in the car. The son stated he had loaned the Pontiac to Baker on only one occasion previous to the accident.
On Friday night, August 7, 1958, Aslaksen (son) was preparing to go to the shore for the weekend with a girl friend and her family. The Baker automobile at this time was in disrepair. By prearrangement, he drove the Pontiac to his girl's house, left it there and placed the keys in the milk box where Baker could find them. He had agreed with Baker that he could have the car the following night for a date. He could not remember whether Baker had asked for the use of the car or whether he had offered it to him, but he nevertheless gave him permission to use it. Baker was supposed to return the car to the girl's house on Saturday night. On August 10, while Baker was driving, he was involved in a collision with an automobile owned and operated by Elias H. Pinsker. When Aslaksen returned from the shore, he found the car "a total wreck" in a Montclair garage. He was able to get the car released from the garage only by signing the certificate of ownership himself, even though the registration was in his father's name.
Baker's testimony essentially corroborated Aslaksen's, except that he stated young Aslaksen had asked him if he would like to borrow the car for the night. Baker said Aslaksen agreed to "take the responsibility." He stated at one point that he was not sure who was the registered owner of the Pontiac but later testified "I was under the understanding that it was his [the son's] and it was not in his father's name."
The elder Aslaksen testified to the same effect as his son regarding the limited permission given the son to use the only car in the family before he left for Parris Island. Aslaksen stated that upon his son's return
"I told him that I had kept the Pontiac for the purpose that he could use that because I did not want him to use the Oldsmobile; but that did not mean to say that I was turning over the ownership. * * * I told him that he could use the car, I would give him one set of keys for him to use, but the car is in my name and my registration; I had just got a new registration in January ...