For reversal in part -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- Justice Haneman. The opinion of the court was delivered by Francis, J. Haneman, J. (dissenting). Hall, J., concurring in result.
[42 NJ Page 468] Vernon Lynch was involved in a collision while operating an automobile owned by Gerald Day. The driver and two passengers in the other car were injured and one passenger was killed. Damage suits were brought against Lynch who, believing that he was entitled to coverage under a policy of liability insurance issued by the General Insurance Company, called upon the company to defend the action and to pay any judgment recovered therein up to the monetary limits of the policy. The insurer denied Lynch was covered under its policy and refused to defend. Lynch thereupon filed a third-party action in the damage suit against General Insurance Company and Marvin H. Guenther, Jr., doing business as Guenther Agency, the broker who procured the policy in question, seeking a recovery against them for any judgment that might be returned against him in the principal case. The action against Guenther was predicated upon a claim that if the General policy did not protect Lynch, he was negligent in procuring and delivering such a deficient policy. As to General Insurance Company, Lynch also charged negligence in failing to issue a proper policy and sought reformation of its terms so as to provide the agreed coverage. And he demanded that General be required to pay any judgment against him in the damage suit. Reading the complaint, it is difficult to find a claim that the policy as written extended coverage to Vernon Lynch. That issue, however, seems to have been within the broad language of the pretrial conference order and since it was argued at the trial level and in the
appellate tribunals, we consider it to be within the compass of the case before us.
The third-party complaint was severed and the issues of coverage as well as Guenther's individual liability were tried first without a jury. At the conclusion of plaintiff's case, the trial court granted the motion of General and Guenther for dismissal. Appeal was taken to the Appellate Division where the adverse judgment was affirmed. We granted Lynch's application for certification. 41 N.J. 126 (1963).
The factual background of this litigation is unusual. Gerald Day was the owner of a 1956 Ford automobile. Day was an airman in the United States Air Force and stationed at Fort Dix, New Jersey. In order to keep a car at Fort Dix, it was necessary to obtain a registration sticker which was issued by the military authorities. Such a sticker could not be obtained unless the car was covered by automobile liability insurance. Prior to July 1960, Day had obtained the sticker for his Ford. He had qualified for it by obtaining the necessary insurance policy from Marvin H. Guenther, Jr., doing business as Guenther Agency in Mount Holly, New Jersey.
Airman Day was engaged to Tomiko Lynch, an 18-year-old Japanese girl, the adopted daughter of Vernon Lynch. Lynch, also a member of the armed forces and stationed at Fort Dix, had married Tomiko's mother some years earlier when he was on duty in Japan. Tomiko came to the United States with her father and mother in August 1955 at which time she spoke practically no English. In this county she attended school through the tenth grade.
Day was a frequent visitor at the Lynch home at Fort Dix. Lynch said he regarded him almost as one of the family. They worked together on repairing and installing a new motor in a car owned by Lynch, and in connection with that work and for other reasons, Lynch occasionally rode with Day in the Ford car. They kept the tools for the repair work in Day's car. Lynch's car was junked before this accident.
In July 1960 Day was transferred to Alaska. He decided to leave his car with Tomiko for her use and "to help the family out, too." A reasonable inference from the testimony is that he was aware her father would use it at times also. Tomiko had no driver's license but she obtained a learner's permit and when Day left for Alaska on July 27, she drove him to the New York bus station in the Ford. Her father, a licensed driver (see N.J.S.A. 39:3-13), accompanied them and after Day departed, she drove back to Fort Dix. Thereafter, Tomiko used the car regularly. Her father drove it also on occasions. When he wished to do so, he obtained the keys from her.
Apparently the insurance policy on Day's car had expired. Although the testimony is not very clear, it fairly indicates that the required military base sticker showing insurance coverage had to be renewed annually or at certain intervals. Tomiko and Vernon Lynch drove to the office of defendant Marvin H. Guenther, Jr. to arrange for insurance on the car. She was still operating under a learner's permit at the time. Tomiko explained the circumstances to him and told him she wanted insurance. Despite the fact that this young woman was foreign-born, a relatively recent resident of our country, with limited education here and obviously not at ease on the witness stand, her attorney was held very strictly to non-leading questions in examining her. For example, she was asked:
"Q. Did you explain how you happened to have the car?
MR. KISSELMAN: I object to it as leading.
THE COURT: All right. Objection sustained."
A short while later, after saying she had told Guenther the circumstances, substantially the same question was asked and the objection that it was leading was overruled. Then:
"Q. Do you recall what was said about how you happened to get the car?
MR. KISSELMAN: I object to it. It is suggesting the answer.
THE COURT: I am afraid it is, Mr. Bunting. I shall sustain the objection."
These and other similar limitations impel us to suggest that such questions are not offensively leading. At most they call attention to a topic or subject about which testimony is desired. See, e.g., State v. Abbott, 36 N.J. 63, 78-79 (1961); People v. Hodge, 141 Mich. 312, 104 N.W. 599 (Sup. Ct. 1905); 3 Wigmore, Evidence, § 769, p. 122 (1940).
In any event it is obvious from Tomiko's testimony that she made Guenther aware of her situation with respect to the car and its use, and that she wanted insurance coverage that would provide protection in her particular situation. He was informed also that she had no driver's license, and so he was on notice that her father (who came with her but did not participate in the conversation) and probably other persons would accompany her when she drove the car. The application for insurance which he filled out, had Tomiko sign and swear to, and then submitted to obtain a policy, specifically noted that she had no driver's license. It is reasonable to assume that a broker engaged in writing automobile liability insurance would know or should know that a licensed driver accompanying her while she was driving would expose himself to possible liability for accidents. See Forker v. Pomponio, 60 N.J. Super. 278 (App. Div. 1960); N.J.S.A. 39:3-13.
According to Tomiko, Guenther said she could not have insurance on the car because she did not own it, and that the best he could give her was nonowner's insurance. Apparently he did not offer any explanation as to the scope of coverage of such a policy, or how it would protect her. He did tell her, however, that he would try to obtain insurance "so she could drive safely." He knew she was 18 years of age at the time, a high school student and living at home with her adoptive father, Vernon Lynch, and her mother. On the basis of that information, Guenther reasonably might be expected to realize or to assume that Vernon Lynch would probably pay for the gasoline and oil for the car and for its upkeep. Similarly, he might be expected to realize or to assume that Tomiko would do errands for her parents in the car and that at least her
father would probably use it on occasion. Although the testimony of this young lady is not as clear as it might be, at the close of the plaintiff's case it would seem to be susceptible of the inference that she indicated to Guenther she wanted a policy which would protect her and her family while the Day car was being used. Therefore, when he told her that he would endeavor to obtain insurance so she could drive "safely," presumably he had in mind that the standard form of automobile liability insurance policy contains an omnibus clause which would extend its protection to any member of her family accompanying her or operating the car with permission of the owner, or responsible for the use of the car. See Matits v. Nationwide Mut. Ins. Co., 33 N.J. 488, 490 (1960); Putnam, "The ...