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June 11, 1942


The opinion of the court was delivered by: GANEY

This matter comes before the Court on a motion for judgment n.o.v. as well as on a motion for a new trial, both of which will be considered separately.The facts of the case show that on or about February 12, 1940, Thomas Barger, who was employed as a truck driver, happened to stop his truck at a street intersection in the City of Trenton and noticed the automobile of one, Dr. James Burns, of that City, which was being driven at the time by his secretary, a Miss White, was along side his car. He saw that a fender was in need of fixing and upon asking her whether he could fix it she referred him to Doctor Burns. In the course of a day or so he called Doctor Burns in connection therewith, and later went to his office and asked him about fixing the fender on the automobile, which was a 1937 Dodge automobile, the back fender of which had a broken bracket and was bent. Doctor Burns gave the keys to Barger, directing him to take and fix the car, the exact instructions concerning which are conflicting in that the testimony shows in one instance that he was to fix and repair the fender, and in another place that nothing at all was said whether he should replace or repair it. Pursuant to this conversation with Doctor Burns, Barger took the car to one Richard Tyndall, who was engaged in the body and fender business, where he intended to have the necessary work done, and on account of the price which Tyndall wanted he took the car to the Fair Grounds in Trenton, where he did the work himself. Unable to complete the work before that evening, he returned with the car to Doctor Burns' office at about 6:30 P.M., at which time he explained to him that it was impossible for him (Barger) to finish the job, and inquiry was made of the Doctor as to whether he should leave the car with him. Doctor Burns then instructed him to take his sister to East Trenton and afterward to take the car back and to finish the job, which he wanted done by the next morning around 9:30 or 10:00 o'clock. Barger took Doctor Burns' sister to East Trenton and then returned to his home and early the next morning he left with the car at about 4:30 A.M. for Philadelphia in order to get a new fender, and while en route to the City of Philadelphia, due to a blinding snow storm, he struck the plaintiff, severely injuring him. The plaintiff, Joseph Shane, brought suit against Barger and a verdict of $40,000 was entered on his behalf. Pursuant to the securance of this judgment, plaintiff brought this attachment execution by reason of a certain policy of insurance which the garnishee, the Commercial Casualty Insurance Compawny, had with the owner of the car, Doctor Burns, the pertinent portions of which policy are as follows:

"III. Definition of 'Insured'. The unqualified word 'insured' wherever used in Coverages A and B and in other parts of this policy, when applicable to these Coverages, includes not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the declared and actual use of the automobile is 'pleasure and business' or 'commercial', which is defined herein, and provided further that the actual use is with the permission of the named insured.The provisions of this paragraph do not apply:

 * * *

 "(c) to any person or organization, or to any agent or employee thereof operating an automobile repair shop, public garage, sales agency, service station, or public parking place with respect to any accident arising out of the operation thereof."

 The garnishee's motion for judgment n.o.v. is based on the contention that the defendant, Thomas Barger, while driving the automobile of the insured, Doctor Burns, was not covered by the terms of the policy in that it is denied that the use of the car at the time and place of the accident was with the permission of the named assured, and for the further reason that his employment at the time was such as to make the policy inapplicable to him.

 In making disposition of the motion for judgment n.o.v., recourse must be had to the testimony to find out just what the instructions were in connection with the use of the automobile of Doctor Burns by the defendant, Thomas Barger. If, of course, the facts clearly show that no permission was had by Barger to use the car at the time of the accident, then the use thereof was not with the permission of the assured and the motion for judgment n.o.v. would be in order. However, an examination of the record discloses that there was a conflict as to the actual instructions with respect to the use of the car, in that Doctor Burns testified that the defendant, Barger, was to take the car and fix and repair it, while the defendant, Barger, said at one place in his testimony there were no instructions whether to replace or repair the fender. Again, there is testimony by Doctor Burns that the car was to be taken home and finished, while the defendant Barger's testimony at one point was that "he said I could keep the car until I finished and he wanted the car finished for sure by the next morning" (p. 13). This conflict in the testimony was a matter which only a jury had the right to resolve and not for the Court to determine and say as a matter of law what the facts were concerning the exact nature of the duties to be rendered by Barger. The garnishee also contends that under all of the evidence of the case there was such a deviation from the instructions given which brought the driver of the car outside the terms of the policy. With this contention I likewise disagree. The contract of insurance to be here construed was entered into in New Jersey by a resident of New Jersey with a company in New Jersey, and it is a familiar rule of law that the construction and validity of a contract is governed by the law of the place where it is made. Here, as has been indicated, the domicile of the parties, the place of execution and performance are confined throughout to the jurisdiction of New Jersey, and accordingly the construction which the New Jersey courts place upon the contract is the one to be adopted in this form. 5 R.C.L. 931: Evans v. Clearly, 125 Pa. 204, 210, 17 A. 440, 11 Am.St.Rep. 886.

 As I view the case, the inquiry here concerns itself with (1) what were the instructions, (2) was there a deviation from instructions, and (3) if so, did such deviation as the evidence discloses, serve to end the driver's permission to operate the car?If we examine the authorities in New Jersey, we find that Rikowski v. Fidelity & Casualty Company, 117 N.J.L. 407, 189 A. 102, 104, is directly contra to the defendant's contention here. In that case, the chauffeur of a car deposited his employer at Bamberger's Department Store with instructions from the owner to park the car, as there was no parking place immediately available, and return for her within an hour. After leaving her off and driving for a few blocks, he picked up some friends of his and took them to their home, and while so doing drove into and injured the plaintiff. In the suit which followed, it was contended by the insurance company that there was such a deviation from instructions given that no liability could be imposed on the company under the terms of the policy. However, a judgment was obtained by the plaintiff, and the Court of Errors and Appeals affirmed the judgment of the Lower Court, Rikowski v. Fidelity & Casualty Company, 116 N.J.L. 503, 185 A. 473, holding that in the first instance, since permission to use the car was given to the driver, that "under the facts of the case and within the meaning of the policy such deviation from instructions as the evidence discloses did not serve to end the driver's permission to operate the car". In Penza v. Century Indemnity Company, 119 N.J.L. 446, 197 A. 29, it is contended by the garnishee that the New Jersey authorities repudiate the doctrine of "initial permission" which is good until the vehicle is returned. However, an examination of the facts in that case shows that the defendant, a chauffeur, was given definite instructions by the owner to take his automobile to the defendant's boarding house and park it in the rear thereof, due to the fact that the defendant had told the owner that he had a bad cold and wished to go to bed. The defendant took the car to his boarding house, parked it and more than an hour later, feeling better, came out of the house and took the car on a ride of his own during which he collided with and injured the plaintiff. In this case, it will be noted that the permission granted to the defendant to take the car home and to park it had ceased at the time of the injury to the plaintiff for the reason that after the defendant took the car to his boarding house and parked it there, pursuant to the instructions given by its owner, the permission granted was exhausted and his leaving the house after an hour and taking the car for a pleasure ride of his own was an embarking on a new enterprise having no remote connection with his owner's instructions. I think there is nothing in this case which in any wise impairs the doctrine of the Rikowski case, supra, but in fact it will be noted it quotes the same with approval.

 Much has been made by the defendant that whether or not permission exists is to be determined as of the time of the casualty and not as of the time of granting consent.To say "actual use" as used in the policy here in question refers to the time of the casualty and not to the "time of granting consent" advances us, here as in most cases, very little.For whether permission has been granted to the defendant to be where he is at the time of the casualty is largely dependent on his instructions at the time of the granting of the consent to him by the owner of the car to take it. A jury might well find, as they did here, that the instructions given to Barger at the time of his taking the car from Doctor Burns with his consent were such as to have given him permission to use the car at the time of the accident.

 The garnishee both in the argument and in his brief takes the inconsistent position that both the law of New Jersey and the law of Pennsylvania rules the instant case as he cites both Pennsylvania and New Jersey authorities in support of his contention. While citing the New Jersey cases, including Rikowski, etc., supra, defendant relies also on the case of Brower v. Employers' Liability Assurance Co., Ltd., 318 Pa. 440, 177 A. 826, 830, as governing the interpretation of the contract of insurance. In that case a car was given to a mechanic to get rid of a noise and rattle in it and while in the possession of the mechanic he deviated from this specific purpose, to take some people to a wedding in Bloomsburg which had no connection in any wise with the purpose of the bailment. The Supreme Court of Pennsylvania held that the extent of the deviation took the matter "outside the zone of doubt" and that the Court below as a matter of law should have decided there was no liability under the terms of the policy which was similar to the one here involved. Taking this case which the plaintiff relies on -- and which I hold is of no application here -- the facts differ so widely from the instant case that hardly any analogy can be drawn to support the garnishee's position. In the Brower case there was an admitted deviation from the instructions or permission granted, going to Bloomsburg on a wedding, while the car was given for the purpose of eliminating a noise and rattle in the car. In our case, at the time of the casualty, there was at least testimony that would bring it within the "zone of doubt" inasmuch as Barger testified that he was enroute to Philadelphia to secure a fender for Doctor Burns car. In that case, as the Court said, "there was no necessity to go to Bloomsburg", whereas in the instant case, as has just been adverted to, it was at least possible for a jury to find from the evidence that at the time of the casualty he was within the instructions originally given him, and some corroboration is lent to his statement when we consider the earliness of the hour at which he left Trenton to go to Philadelphia in order that he might be back by 9:30 or 10:00 o'clock in the morning of the same day.

 The garnishee also contends that the other provision in the policy making it inapplicable to any person "operating an automobile repair shop, public garage, sales agency, service station or public parking place" leaves the plaintiff with no remedy against the insurance company. This for the reason that the garnishee relies on the Brower case, supra, wherein the Court said: "In using the term 'automobile repair shop' the policy did not mean an inanimate thing, but it was intended to exclude those engaged in the business of repairing automobiles, as this mechanic was, and under the most restricted use given to the words of the policy a repair man of automobiles, engaged in that business, was intended to be excluded from the risks assumed by the indemnity companies". Here again, even if we make the assumption that the Brower case would be here applicable, the facts in the instant case do not come within the doctrine there laid down, for the testimony does not show that Barger was "engaged in the business of repairing automobiles" or "a repair man of automobiles, engaged in that business". The testimony shows that the principal business of Barger was that he was a driver of trucks, that he did odd jobs of house-painting, and that on occasion he did some work to automobiles, and further that this was the only job on an automobile he had done within the past year. I hold that the Trial Judge was quite proper in submitting this question to the jury to make decision on, in that it would have been improper for the Court to usurp the function of a jury by saying as a matter of law from the testimony that Thomas Barger was engaged in the business of repairing automobiles or a repairman of automobiles engaged in that business.

 I therefore feel that the matter was a proper one for a jury to pass upon, and accordingly motion for judgment n.o.v. is denied.

 Counsel for the garnishee has assigned a number of rulings of the Trial Judge as error which will ...

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