At the trial of this case the jury was waived and the matter was submitted to the court on a stipulation of facts and legal arguments. The issue presented is whether a passenger in an automobile is an additional insured under the provisions of the omnibus clause of the owner's liability insurance policy.
On January 1, 1961 Arthur Chalenski was the owner of an automobile and the insured named in an automobile liability insurance policy issued by defendant. Chalenski, plaintiff Richard Gronquist, and Barbara Sayko attended a party in Westfield. When leaving the party Richard asked for a ride to his home. Chalenski agreed. Chalenski drove. Miss Sayko sat in the right front seat and Richard sat in the rear.
In the course of the trip the car struck a telephone pole, injuring Miss Sayko and Richard. In 1962 Miss Sayko and her father instituted an action in this court against both Chalenski and Richard for damages for her injuries. The complaint alleged the negligence of the driver and also alleged that Richard had negligently caused or contributed to causing the accident by leaning over the back of the front seat and putting the weight of his body on the driver, interfering with his driving.
Defendant Transit defended the action on behalf of Chalenski. It was requested to defend Richard as an additional insured under the Chalenski policy but refused to do so. Richard was a minor without means of his own. His father Carl H. Gronquist provided him with a defense of the action. A crossclaim was asserted against Chalenski on Richard's behalf for his injuries. The jury determined that Chalenski alone had negligently caused the accident. Judgment was entered against Chalenski in favor of Miss Sayko and also in favor of Richard on his crossclaim for $250 and $50 costs. Richard's legal expenses totalled $2,460.05, paid by his father.
This action seeks to recover the legal expenses incurred in defending Richard. Plaintiffs contend that as a passenger in the automobile in which he was being conveyed to his home Richard was using the automobile with the permission of the named insured, within the meaning of the omnibus clause of defendant's policy, and was entitled to be provided a defense.
Defendant denies that Richard was using the automobile within the meaning of the policy. It also contends that the acts charged against Richard exceeded the permission granted to him.
The parties have agreed that $2,360.05 is a fair and reasonable sum incurred for defense of the claim against Richard, exclusive of the cost of prosecuting Richard's affirmative crossclaim.
Under its policy defendant agreed:
"* * * To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.
"* * * defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation ...