By stiрulation of the parties jury trial was waived and the trial court made findings of fact, to which no exceptions were noted. Indeed, the record on appeal as docketed in this Court contains no exceptions whatevеr. For this reason questions argued in appellant’s brief concerning admissibility of evidence and concerning sufficiency of the evidence to support certain of the trial court’s findings of fact are not properly before us for review. “An assignment of error will not present a question unless it is based upon an exception set out in the case on appeal and numbered as required by Rule 21. Exceptions which appear for the first time in the assignments of error will not be considered.”
City of Kings Mountain v. Cline,
Aetna’s liability to plaintiff, if any exists, must be found in the terms of its insurance policy issued to Phillips. By this policy Aetna agreed to pay on behalf of Phillips all sums, up, to the policy limits, which he should become legally obligated to pay as damages because of bodily injury sustained by any person “arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile.” The words “owned automobile” and “non-owned automobile” are defined in the policy, and the question presented by this appeal becomes whether, under the facts found or admitted, the Cadillac driven by Phillips on 22 October 1967, the date on which the collision occurred which caused plaintiff’s injuries, was on that date within the policy definition either of an “owned automobile” or a “non-owned automobile.” We first examine whether the Cadillac can properly be considered an “owned automobile” as that term is defined in the policy. Under the heading “Definitions,” the policy provided:
“ ‘owned automobile’ means
“(a) a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coveragе is afforded,
*203 “ (b) a trailer owned by the named Insured,
“ (e) a private passenger, farm or utility automobile ownership of which is acquired by the named Insured during the policy period, provided
“(1) it replaces an owned automobile as defined in (a) above, or
“ (2) the Company insures all private passenger, farm and utility automobiles owned by the named Insured on the date of such acquisition and the named Insured notifies the Company during the policy period or within 30 days after the date of such acquisition of his еlection to make this and no other policy issued by the Company applicable to such automobile, or
“(d) a temporary substitute automobile;”
Clearly, the Cadillac cannot be considered an “owned automobile” within the definitions contained in subparagraphs (a) and (b) above; it was not an automobile described in the policy for which a specific premium charge indicated that coverage was afforded nor was it a trailer. Further, the evidence presented in this case was not sufficient to support a finding that the Cadillac was “a temporary substitute automobile” so as to bring it within the definition of an “owned automobile” under subparagraph (d) above. The policy expressly defines the words “temporаry substitute automobile” as follows:
“ ‘temporary substitute automobile’ means any automobile or trailer, not owned by the named Insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;”
The burden was on the plaintiff in this case to present evidence sufficient to show coverage of the Cadillac under defendant’s policy, 19 Couch on Insurance 2d, § 79:351, and the trial judgе expressly found that there was “no evidence that the 1964 Cadillac automobile being driven by Elmer Phillips on October 22, 1967, was being used as a substitute for a described vehicle which was withdrawn from normal use because of break-down, repairing, servicing, loss or destruction.” There remains only the definition contained in subparagraph (c) above, which we now examine.
*204
Appellant contends that Phillips acquired ownership of the Cadillac on 25 September 1967, the date he рaid Peoples Pontiac and took possession of the car. Phillips, however, did not obtain legal title to the Cadillac until 31 October 1967, nine days after the accident. Under New Jersey law, which is here controlling, there must be strict compliance with the statutory requirements regarding transfer of title before title to a vehicle can be said to be transferred for insurance purposes.
Eggerding v. Bicknell,
Finally, we consider whether under the facts found or admitted the Cadillac came within the definition of a “non-owned automobile” for whiсh liability insurance coverage was provided by the policy. The policy defines a “non-owned automobile” as follows:
“ ‘non-owned automobile’ means an automobile or trailer not owned by or furnished for the regular use of either the named Insured or any relative, other than a temporary substitute automobile;”
In this connection the trial judge found that there was no evidence that the Cadillac “was not furnished for his (Phillips’) regular use but to the contrary that he had had continuous possession for his regular use with no restrictions from September 25, 1967, until it was repossessed by the First National Bank of Glassboro.” Appellant’s counsel contends that in making this finding the trial judge acted under a misapprehension of law as to what constitutes “rеgular use” of an automobile, stating in his brief that “[a] 11 the cases involved in the term ‘regular use’ are concerned with an insured who is driving a motor vehicle provided the insured by his employer.” No cases are cited in support of this contention, however, and the clause has been frequently invoked in cases involving family and other relationships in which no employer-employee situation was presented.
Hartford Accident & Indemnity Company v. Hiland,
The clear import of the provision excluding coverage of another’s аutomobile which is furnished the insured for his “regular use” is to provide coverage to the insured while engaged in only an infrequent or merely casual use of another’s automobile for some quickly achieved purpose but to withhold it where the insured uses the vehicle on a more permanent and reoccurring basis. While each case must be decided on its own particular facts and circumstances, the trial court’s finding in the present case that Phillips had had continuous possession of the Cadillac with no restrictions from 25 September 1967 until it was repossessed by the Bank sometime after the accident, fully supports the conclusion that it was furnished for his “regular use” and that it did not come within the policy definition of a “non-owned automobile” for which liability insurance coverage was provided.
Since plaintiff, who had the burden of proof, failed to establish facts sufficient to bring her case within coverage provided by defendant’s policy, the judgment appealed from is
*207 Affirmed.