On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Lora, Michels and Larner. The opinion of the court was delivered by Michels, J.A.D.
Defendants, the estate of Michael Blanche Davis (Davis), Henry Michael (Michael), and Ralph Curtis Robinson (Robinson), appeal from a judgment of the Law Division declaring that an automobile policy of insurance issued to David A. Hays (Hays) by plaintiff State Farm Mutual Automobile Insurance Company (State Farm) does not provide coverage for an accident which occurred on May 30, 1975 in Monmouth County, New Jersey, while Darrell Jerome Simmons (Simmons) was driving an automobile owned by Hays. Simmons, Davis, Michael, Robinson and Darrell Richardson (Richardson) were killed when the Hays' automobile driven by Simmons left the highway and struck a tree.
On May 30, 1975 Hays, who was a member of the United States Marine Corps, was stationed at Earle Ammunition Depot in Colts Neck, New Jersey. He had been stationed there for about 4 1/2 months. Hays was the owner of a 1964
Chevrolet automobile, which was covered by a policy of insurance issued to him through State Farm's Birmingham, Alabama, regional office. The policy declaration described the automobile as being principally garaged in Montgomery, Alabama, where Hays resided. Hays had purchased the automobile approximately one year before the accident.
On the morning of May 29, 1975 Simmons, who was also a member of the Marine Corps stationed at Earle Ammunition Depot, asked Hays if he could borrow Hays' car for the purpose of going to a local bank to cash his pay check. Hays thereupon handed Simmons the keys and granted the latter permission to use the car. He told Simmons that he (Hays) was planning to go somewhere after completing his guard watch that afternoon. Thereafter, Hays commenced his watch and completed it at 4 P.M., by which time, however, Simmons had not returned the automobile. Consequently, Hays started to look for it, walking to the various parking lots on the base and asking other Marines if they had seen Simmons. Finally, when Hays could not find his automobile, he returned to his barracks and went to sleep.
At 11 P.M. Hays was awakened for his fire watch which was to commence at midnight. While on watch Hays walked around the base and checked various buildings. Sometime thereafter, while still on watch, he observed his automobile parked across from Marine headquarters in front of a night club on the base known as "The Powder Keg." Hays walked toward his automobile, at which time he observed Simmons, Robinson, Michael and Davis coming out of The Powder Keg. By the time Hays got to his automobile Simmons already had entered the automobile on the driver's side. Hays asked Simmons to return his keys, to which Simmons responded "No." Hays then explained to Simmons that he wanted the keys "because Robinson [wanted] to go see his wife that next morning." Simmons thereupon told Robinson to get in the car, and that he (Simmons) would take Robinson to see his wife. Hays demanded the keys from Simmons on three different occasions, each time Simmons
refusing to give them to him. A fifth member of the group, whose name he did not know, was standing outside of the automobile and told him that he, Hays, "was lucky [he] wasn't over there behind the trucks that if [he] was he'd whip [his] ass." Following this, the others got into the automobile, informing Hays that they were going to the home of some girls in Red Bank. Simmons and the others drove off. Hays, who still was on watch, resumed his duties. The fatal accident occurred later that morning.
State Farm instituted this action, seeking a declaratory judgment that its automobile policy of insurance issued to Hays did not provide coverage for the accident because Simmons did not have permission from Hays to use the automobile at the time of the accident. The State Farm policy, in pertinent part, provided:
Insured -- the unqualified word ...