Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
The question before us concerns the coverage provided by the omnibus clause of an automobile liability insurance policy issued by the plaintiff insurance company to the Township of Delaware (now Cherry Hill Township).
The essential facts are not in dispute. Defendant James A. Butler was regularly employed by the township as a bulldozer operator. For a considerable period of time prior to May 20, 1960 it had been the practice of Samuel R. McGill, the Superintendent of Public Works of the township, to designate one or more employees to serve in a standby capacity over week ends for the purpose of responding to emergencies which might arise from happenings such as the cave-in of roads, sewer stoppages, accidents affecting the use of highways, and the like.
On Friday May 20, Butler was selected to act in this capacity until the commencement of his regular work week on Monday morning May 23. Butler's automobile was under repair at a local garage at the time. He informed McGill of this. McGill said:
"Well, all you've got to do, if the police call you, or if I call you, or if any body calls you on emergency, you must get over here, so, you better take a pickup home with you, and you'll have transportation to get back to the Town Hall and also go on an emergency call."
Concededly, McGill gave Butler no instructions as to whether or not he was privileged to use the vehicle for his personal purposes over the week end.
Valentine J. Genzano, a foreman employed in the department of public works, testified that it was the policy of the municipality that township trucks were not to be used on the personal business of employees, nor driven outside the boundaries of the municipality; that McGill had discussed this with him and with other subordinates "a few times"; and that he (Genzano) also had spoken of it to employees who served under him. Joseph Esposito, also a foreman, testified in similar vein. It is significant that
neither foreman specifically testified that he had given Butler this information.
In a deposition Butler testified that he had served as an emergency man on previous occasions but was given no instructions by McGill with reference to the use of the truck. He deposed also that while he was on call "around the clock" he was not expected to remain at his home constantly over the week end as long as he could be readily reached if an emergency should occur. This interpretation of his employment obligations is not disputed and seems highly reasonable in view of the fact that employees assigned to these week-end duties received compensation only when emergencies actually arose which required them to perform services for the township.
Admittedly, the rule, regulation, or policy relating to the personal use of the township automotive equipment by employees on emergency, or other duty, was at no time reduced to writing, and there was no evidence whatever from which it could be legitimately inferred that it had been orally communicated to Butler, or that he had knowledge of it from any source.
On Sunday night May 22, at about 9:00 P.M., Butler, while driving the township truck, came into collision with a vehicle operated by defendant Jack N. Franke, in which the defendants Rose Franke, Martin Roth and Rae Roth were passengers. The accident happened in the Township of Delaware as Butler was returning to his home after a visit with his mother.
Subsequently, the Roths instituted an action against Butler, the Township, and Franke, to recover damages for personal injuries, and Franke and his wife instituted a similar action against Butler and the Township. Thereupon, the present suit for a declaratory judgment was commenced by plaintiff in which it sought a judicial declaration that "it was not obligated to defend ...