Appeal from the District Court of the United States for the District of New Jersey; William Clark, Judge.
Before BUFFINGTON, Circuit Judge, and DICKINSON and FORMAN, District Judges.
BUFFINGTON, Circuit Judge.
In the court below Phyllis Dunn and Katherine Van Wagoner, citizens of New Jersey, brought suit and recovered verdicts against the AEtna Life Insurance Company, a corporate citizen of Connecticut, to recover damages for injuries suffered by them through the alleged negligence of Whitcomb Rummell, the driver of a car owned by Miss Mona K. Noble, a nurse employed at a hospital, who had an indemnity policy of said company. On entry of judgment, the insurance company took this appeal.
The policy provided: "IV. Additional Interests. While any automobile covered hereby is being used with the consent of the assured * * *, the provisions of this policy with respect to claims on account of damage to property of others or injury to the person and/or death of others, shall inure to the benefit of any person operating or riding in * * * said automobile * * *."
The basic question involved, as stated in appellant's brief, is: "1. Was the automobile insured, as a matter of law, at the time of the accident being used with the express or implied consent of the owner for the particular use to which it was being put?"
From the proofs it appears that Miss Noble and Rummell used her car when driving together on Friday. When they parted, Rummell, who lived some distance away, was allowed by her to take the car to his house and return with it on Sunday, when they arranged to take another drive. On Saturday Rummell drove the plaintiffs, two young ladies, to see a ball game, and on returning therefrom they were injured in a collision caused by Rummell's negligence. The court in its charge left to the jury the question whether, as provided by the policy, the automobile was at the time of the accident "being used with the consent of the owner," charging as follows:
"The policy, according to its provisions, protected the driver Rummell only while the automobile covered by the policy was being used with the consent of the owner, Mona Noble.
"For the use of the automobile to be with the consent of Mona Noble within the meaning and effect of the policy, the consent must have been given, impliedly at least, not only to the taking and use of the car in the first instance, but also to the particular use being made of the car at the time of the accident in question.
"If the plaintiffs, therefore, have failed to prove by the greater weight of the evidence that the particular use of the car at the time of the accident by the driver Rummell was with the consent, impliedly at least, of the owner Mona Noble, they cannot recover, and your verdict must be for the defendant.
"Now, the plaintiffs contend that that consent existed by implication. The defendant denies it.
"You have heard the testimony of the witnesses and it is my view that there is an issue of fact on that question of implied consent for this particular purpose, and that issue, therefore, I am leaving to you. If you resolve it in favor of the plaintiffs, of course, you will award them the damages agreed upon, which are $3431.31 and $846.57."
The case, therefore, resolves itself into the question whether the trial judge should have given binding instructions for the defendant. In that regard the case turned on the testimony of Miss Noble and Rummell. The testimony of Rummell was as follows:
"Q. Between the time she got that automobile and up until the night of October 28 of 1933, how many times, about, if any, had she loaned you that automobile? A. I don't remember definitely. I would say fifteen, at least.
"By the Court: Q. Where was the car kept? A. She had a garage across the street from the hospital where she kept the car.
"Q. Just tell us some of the occasions that she would come to loan you the car at previous times. How would that come about? A. During the time that I knew her I didn't have a car, and when I went out with her at night, why, I would go home with it. We would stay in front of the hospital and she would ask me if I would like to take the car and call for her the next time.
"Q. Where did you take the car when you took it? A. I went home.
"Q. Did you leave it in front of your house? A. In the ...