Appeal from the District Court of the United States for the District of New Jersey; William F. Smith, Judge.
Before MARIS, GOODRICH, and McLAUGHLIN, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This is a suit upon an automobile liability policy of insurance. The plaintiff, prior to this action had obtained a judgment for personal injuries against Hosea Johnson in a negligence suit in a New Jersey county court. Johnson was the operator of an automobile owned by Louis Vogelbaum. Plaintiff was a pedestrian. The accident occurred March 4, 1936 in Newark, New Jersey. Thereafter the plaintiff sued the present defendant, Vogelbaum's automobile liability insurance carrier, on the policy, in the United States District Court. The foundation of his claim is the contention that Johnson had Vogelbaum's permission to drive the latter's car; therefore, that Johnson was an additional assured under the omnibus clause*fn1 of the policy. The case went to the jury on the question of permission. There was a verdict in favor of the plaintiff.
It is strongly argued on behalf of the appellant that the trial court erred, in denying its motions for a nonsuit and a direction of verdict, on the ground that there was not sufficient evidence of permission to make it a jury question. Errors are also alleged in the charge of the court.
Johnson was Vogelbaum's chauffeur and houseman. He lived at his employer's home. Vogelbaum, his wife and daughter, were in Texas during the period of the accident, having left for that State three or four days previously. Two of their children, Herbert, sixteen, and Edward, twelve, were home. A maid, Louella Rogers, was the only other occupant of the house. The evening of the accident she went out. Around nine o'clock, Johnson received a telephone call that his aunt was very sick. He told Herbert this and that he was taking the Ford (one of the two Vogelbaum machines, the other being a LaSalle) and going to see her. The boy answered, "Yes." Herbert had "practically gone to sleep" and Johnson said: "Just in case he didn't understand me clearly I wrote a note and told him I was taking the Ford and if she was better I would see him in the morning." While Johnson was on his way, the car collided with the plaintiff and the latter received substantial injuries.
There were two witnesses for the plaintiff, Johnson and Miss Brodsky, Vogelbaum's secretary.Johnson said he had used the Ford a few Sundays; on Tuesday nights when Vogelbaum would go bowling; and on Wednesdays when he would take the children to school. The bus route nearest to the Vogelbaum residence was about three quarters of a mile distant. The keys of the Ford were kept in it. Johnson stated that before Vogelbaum went away " * * * he told me to use the Ford only, * * * ". "Don't use the LaSalle unless it is necessary." Referring to the use of the car for his own purposes, he said, "If he (Vogelbaum) wasn't around I always asked him if it was alright later and he told me yes it was," " * * * he didn't never object. * * * " This happened a number of times during the four or five months of Johnson's employment prior to the date of the accident. On the question of Vogelbaum's instructions to Johnson, before the former went to Texas, the court asked Johnson:
"When Mr. Vogelbaum told you that you might use the Ford car, what instructions, if any, did he give you with reference to the use of that car?"
"He didn't tell me anything special, only to do all the errands with the Ford and to use the Ford and don't use the LaSalle unless it was necessary."
Miss Brodsky, Vogelbaum's secretary, testified:
"(Page 59) Q. Did he specifically say what use Hosea Johnson was to make of the car or did he just say he had permission to use the car? A.He left no specific instructions as to what uses for what uses the chauffeur was to use the car but he left instructions that the chauffeur was to use the Ford car."
The maid and Vogelbaum were witnesses for the defense. Vogelbaum denied that Johnson had permission to use the car for his own purposes. A rebuttal witness for the plaintiff said that Vogelbaum told him that he had given Johnson permission to use the car on his own business when not needed by the family as chauffeur. Further, that his son had Vogelbaum's authority to let the chauffeur drive the car on his own business.
Under the evidence, both at the close of the testimony for the plaintiff and at the end of the entire case, the problem of permission was for the jury. Serious questions of credibility strongly developed, arose throughout the trial; but these had to do with the weight of the evidence and again were for the triers of the fact.
New Jersey law governs the issue and is in accord with the above conclusion. The leading New Jersey decisions are Penza v. Century Indemnity, Err. & App., 1938, 119 N.J.L. 446, 197 A. 29, and Rikowski v. Fidelity & Casualty Co. of New York, Sup., 1936, 116 N.J.L. 503, 185 A. 473, affirmed Err. & App., 1937, 117 N.J.L. 407, 189 A. 102. The above quoted type of ...