Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Labrecque, J.A.D.
Plaintiff State Farm Mutual Automobile Insurance Company (State Farm) instituted suit for a declaratory judgment that it did not cover defendant Steven Johns as an additional insured in connection with an accident which occurred on March 16, 1969 when an automobile owned by its insured, Thomas Busby, III, and driven by Steven, was in a collision with one being operated by defendant Deskin T. Knoll. Defendant Zurich American Insurance Company (Zurich) counterclaimed and cross-claimed seeking an adjudication that a policy of insurance issued by it to Joseph W. Johns (Steven's father) did not cover the accident in question. Defendants Deskin T. Knoll and Dorothy N. Knoll, Steven Johns and Joseph W. Johns, A. Rodman Kay, a minor, and Albert Kay appeal from a judgment holding that neither the State Farm nor the Zurich policy covered the accident.
The present action arose out of the operation by Steven of a 1956 Thunderbird (a classic) owned by Busby. The essential
facts are not in dispute and, as found by the trial court, are as follows:
The sequence of events leading up to the collision began on the morning of March 16, 1969 when Johns arrived at the home of Thomas Busby. Johns and Busby were at the time fairly close friends. They attended the same school, had at least one class together, were members of the same football team and visited each other frequently. On the morning in question, they were working together on a 1956 Ford Thunderbird owned by Busby and registered in his name.
At the trial, Busby testified that sometime during the time they were working on the car, Johns got into the car and backed down some 20 yards of the driveway. Apparently, Busby said nothing to Johns at the time about the use of the car, but merely stood mute while this event occurred. Interestingly enough, Johns had no recollection at all of the event.
Busby stated that he had never specifically given Johns permission to operate the car. Johns' testimony was to the same effect. Busby added that he would never have given Johns permission to operate the car. Johns' testimony was to the same effect. Busby added that he would have never given Johns permission to operate the vehicle on public streets because he knew that Johns had no license. The driveway where Johns had operated the vehicle that day was more or less a farm road some one-quarter of a mile long.
Sometime after one o'clock that afternoon, Busby and Johns left the Busby property in the Busby car. Busby was driving Johns home. They decided to stop at a Seven-Eleven grocery store along the way to get a soda.
Sometime before they reached the Seven-Eleven, they passed a car driven by one Rodman Kay which was traveling in the opposite direction. Kay in his deposition stated that he recognized Johns and Busby and turned around and followed them into the Seven-Eleven parking lot. He stated that he knew both of them from school. Johns testified that Kay was a friend of his only and did not know Busby. Both cars pulled into the parking lot and parked towards the righthand side away from the normal parking area directly in front of the store.
Kay owned a 1968 Pontiac Firebird. Busby asked Kay for permission to take the car for a ride. Kay agreed. They did not discuss how long Busby could use the car or how far he should drive. Busby pulled away in the Firebird and left the keys to the Thunderbird in the ignition.
Kay's deposition and Johns testimony conflict as to which one of them went into the Seven-Eleven and got a soda. One of them did. Eventually, they sat down in Busby's car -- Johns behind the steering wheel and Kay on the passenger side. Without discussion between ...