Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.
In this declaratory judgment action the Chancery Division entered judgment that plaintiff is obligated "to defend a certain Civil Action instituted by Roger Reich [hereafter Reich] against Jane Aderente [hereafter Jane]," and to pay any judgment recovered therein by Reich. Plaintiff appeals. The judgment also exonerates Home Insurance Company (Home) from liability, but neither Reich nor Jane appeals.
There is little or no dispute as to the facts. Plaintiff's automobile liability policy was issued to Jane's father, but it covered "any relative" operating a non-owned automobile "provided the actual use thereof is with the permission of the owner." On September 26, 1959, while operating the automobile of one Bruno, she collided with Reich's car. Home insured Bruno, but its policy contained the usual omnibus clause
which extends coverage only to persons using the automobile "with the permission of the named insured." Bruno claimed that he had loaned the car to one Meisch, and not to Jane, and that he did not know Jane.
Plaintiff's policy provided:
"In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable. * * *"
Jane gave no notice of the accident to plaintiff until after May 10, 1960, when she was served with Reich's summons and complaint. Plaintiff's complaint asked for a judgment declaring that it was not obliged to defend the Reich action because (1) Jane was not driving with the permission of the owner, and (2) even if she had been, she had failed to give plaintiff notice of the accident as required by the policy.
The trial judge ruled that Bruno had given Meisch such broad authority that Meisch could give Jane the permission to drive Bruno's car required by the policy, and that Meisch had done so. Although this holding is attacked by plaintiff in this appeal, we find it unnecessary to pass on it because we hold that the policy was forfeited for failure to give the required notice.
The trial judge found that Jane had failed to give the notice required by the policy, and that such failure ordinarily would be fatal, but he held that plaintiff had waived that breach. Plaintiff contends that there was no such waiver. We agree.
The facts pertaining to the issue of waiver are as follows:
The Reich summons and complaint was dated May 4, 1960. The action was in the Superior Court, Law Division, Hudson County. It was served on Jane May 10. She turned it over to plaintiff's agent, who had written the policy for her father. The agent mailed it to plaintiff, at its office in East Orange,
on Friday, May 20, with a letter reading as follows (emphasis ours):
We are enclosing herewith notice of the above accident together with Summons which was served upon the insured on May 10, 1960.
It is our understanding that at the time of the accident Jane Aderente was driving a vehicle owned by John Bruno. She has been unsuccessful in attempting to contact Mr. Bruno at the present time to determine whether he carried Liability coverage on his vehicle at the time of the accident. Miss Aderente is away at the present time and will return to her home next week. Her Father, Joseph P. Aderente, has asked for a postponement through his Attorney, Mr. Schnidierman who may be contacted at Bureau of Elections Hall of Records, Jersey City, N.J.
Please acknowledge receipt of these enclosures.