*1 COMPANY, PLAINTIFF- MOTOR CLUB FIRE & CASUALTY CROSS-APPELLANT, JERSEY RESPONDENT & v. NEW COMPANY, DEFEND INSURANCE MANUFACTURERS ANT-RESPONDENT, SCIBETTA, DE AND FRANCES FENDANT-APPELLANT. Fеbruary 23, Argued 1977 Decided June 1977. *3 for appellant L. Levin cause Mr. Judson argued Prances Scibetta. respondent Lieb cause for Jerome 8. argued
Mr. & Casualty Company Motor Club Pire cross-appellant Lieb, Teich and attorneys). (Messrs. Berlin> the cause for re- Gaitenacci argued Mr. Richard D. Company Insurance Manufacturers spondent Gonnell, Geiser, & attorneys). McElroy, Foley (Messrs. of the court was delivered opinion by D., matter, P. J. A. Temporarily This Assigned. Carton, time, which comes us for a before the second involves ques under an omnibus clause an automobile tion a result liability insurance As of an divided еvenly vote, we affirmed the Division’s that Appellate judgment no policy Scibetta, for Nicholas provided driver of vehicle. 135 N. J. Div. Super. (App. 1975), by court, aff’d divided 71 N. J. 352 equally (1976), In order to resolve re issue, this we important granted J. 256 hearing, (1976). unusual, facts, are clear and essen- although
The salient tially undisputed. a New Jer- Leonard, by owner of vehicle insured
Jennie Manu- Manufacturers Insurance Company (“New Jersey sey West next the Sci- lived in Caldwell door to facturers”), son betta Mr. and Scibetta lived with their family. Nick, toolmaker, a from an 37-year-old who suffering on the news that apparently brought emotional disorder brоther had contracted disease. Ac- younger Hodgkin’s his Nick had from work. taken leave of absence cordingly, automobile, He also owned an insured Motor Club Eire That cov- Casualty Company Club”). (“Motor Nick as driver of car automobile. ered his other after- 1971, Jennie Leonard spent On August Nick with and his mother. residence noon at the Scibetta were concerned about and Mrs. Scibetta Mrs. Leonard Nick health. Mrs. Leonard suggested Nick’s mental doctor, help arrange and she volunteered be taken to *4 with After making an for Nick a psychiatrist. appointment calls, a 6:00 Mrs. Leonard made several fruitless telephone p.m. for Nick with a Cuzzo in West Cald- Dr. appointment well. in Dr. Cuzzo’s office was located the same town
Although residences, the Leonard and Scibetta Mrs. Leonard was office, unfamiliar with the location of the doctor’s exact his and she therefore decided to a “trial run” to make p.m. office about 3 :00 Mrs. at Scibetta endorsed this plan, Nick was and Mrs. Leonard. agreed accompany Although reluctant he initially go, eventually was persuaded in two women. Nick offered to the women join the drive car, but car was more con- his because Mrs. Leonard’s in her driveway, the Sсibetta took veniently positioned they in car. Mrs. Nick’s been Leonard testified that had vehicle location, more have Mrs. convenient he would driven. drove, with her, Leonard Mrs. Scibetta seated and next to Nick in the front positioned right by passenger’s seat window. directions, Mrs.
After lost and asking becoming at an intersection on Bloomfield angled Leonard stopped for a Nick and waited the traffic. pause Suddenly Avenue He front, across over his mother. began climbing wheel, Mrs. Leonard to out grabbed steering telling get Leonard, ear. Mrs. and Nick’s frightened by stunned actions down brake expression, pressed emergency in the and exited from the driver’s side onto a island traffic Mrs. “1 knew I street. Leonard testified trial: had * * * out in the there get practically he was seat [b]ecause and I knew he had unsuccessfully the wheel.” Mrs. Scibetta with her son to Nick pleaded crawling desist. succeeded seat, wheel, across the front took onto Bloom- drove field Avenue. Almost immediately, the automobile struck ear, the rear of another control, went out of crashed into office building. severely injured. Scibetta was Club, insurer, instituted an action for Motor Nick’s nam- primary coverage, on issue declaratory judgment Nick, father, Leonard, Jennie New Jer- his mother and ing Manufacturers, by the owner of the vehicle struck sey of the office as de- building Leonard and the owners In the action Motor Club to determine sought fendants. Nick was either Motor or New whether covered Club If covered both Jersey Manufacturers. he was companies, Manufacturers sought judgment declaring Nick was Mrs. Scibetta answered that primarily responsible. *5 that, with Leonard’s as Jennie driving permission New result, liable. Jersey primarily Manufacturers Manufacturers denied that Leonard covered Jersey policy theft,” Nick because his of vehicle was use “tantamount Mrs. and therefore permission. without Leonard’s The New Manufacturers issued to policy —(cid:127) LI Leonard under “PART provided, heading, — ABILITY,” A Bodily Injury sub-heading, “Coverage —B cov Liability; Coverage Property Liability,” Damage * * * for bodily injury by any “sustained erage person out maintenance or use arising ownership, * * owned Under In sub-heading, vehicle “Persons sured,” reads: policy
(a) The with [*] (2) (1) following [*] # n respect any the named insured and hold, is within the sion of the named (if other are insureds under Part 1: he is not to the owned person operating) using insured, provided of such automobile, such automobile with the any permission, his other actual use thereof resident of the same house- his actual operation permis- As will be in discussed detail later in opinion, this this Court has held that every automobile offered liability policy as of financial proof no responsibility have coverage more restricted than mandated in the Motor Vehicle Law, 39:6-46, A. Security-Responsibility S. which provides: Liability policies; requirements liability policy proof furnished financial A motor vehicle as liability responsibility provided be a insur- herein shall by issued an carrier authorized to transact business ance insurance eligible or, person in this in the case insurance State Assigned surplus Plan, eligible Risk under the automobile person insured, therein named as
lines insurer to the the case nonresident, of a an insurance carrier authorized transact provinces business states or hereinafter stated. policy shall: (a) Designate, by explicit description appropriate reference, *6 or all respect coverage motor vehicles with to which is intended to be granted thereby, any and insure the insured named therein and other person using responsible any or the use such motor vehicle for of iexpress implied insured, against with the or consent loss from of liability imposed upon person by law, the insured or other for injury person, person to or the death aof other who covered, respects injury death, by compensa- workmen’s law, damage tion property, except property charge of others of the employees, growing insured or the insured’s out the mainte- of nance, operation use or the motor véhicle in the United States of America; * * (Emphasis added) *.
As interpreted by trial court, the New Manu- Jersey facturers policy issued to Mrs. Leonard and the applicable statute rendered New Jersey Manufacturers primarily liable. The cоurt that, reasoned at the outset of the Nick journey, was a passenger/user of the vehicle with Mrs. Leonard’s permission Nick’s use accident, until continued although “converted or extended” into actual operation the vehicle. The trial court did not on the as- expressly rule sertion that Mrs. Leonard Nick her gave permission to operate the car but found on the liability theory agency.
The Appellate Division reversed the trial court’s determina tion that the New Jersey Manufacturers policy afforded pri mary coverage Nick as operator Mrs. The Leonard’s car. Apрellate Division viewed the “substantial issue” in case to be whether the New Jersey Manufacturers covered policy Nick when his initial use of the ear aas was passenger per mitted, but was followed by his operation the car without the owner’s express permission. 135 N. J. at Super. 368-69. The court reviewed cases “use” as construing distinct from “operation,” and concluded that New Jersey Manufacturers’ clause, omnibus which was framed to preclude the insured vehicle when driven without the owner’s permis sion, did not illegally depart the statutorily required omnibus clause. Describing Nick’s actions as “a effecting coerced ouster of the owner from the automobile,” 135 N. J. Super. court, exercising its original jurisdiction, found that Nick did not have Mrs. Leonard’s permission super- “the initial use operate and concluded that Id. The Ap- seded seizure and unauthorized operation.” “unreasonable” under Division ruled that it was not pellate to permit the statute and the policy language for under the Leonard policy Manufacturers to deny coverage of the Leonard from Nick’s injuries operation resulting vehicle. Id. in Mrs. provisions meaning of our courts’ light be considered
Leonard’s om the standard view of the cоverage provided expansive v. Nationwide Matits ease is The leading nibus clause. Court, this after where N. J. 488 (1960), Mutual Ins. other jurisdictions taken by approaches various reviewing *7 the than other persons available coverage the determining the broadest adopted under such a provision, insured named “initial permission as the known liberal approach, and most words: in these this rule formulated The Court rule.” * * * permission vehicle in person given a motor to use is [I]f a subsequent like while instance, any theft or the of use short first the contemplation though of possession, the not within in it remains his omni- parties, permissive of standard the terms a within use the is ** * liability [33 insurance bus clause in an automobile 496-97] at Schuncke, In un Small v. N. J. 407 the Court (1964), its derscored the which sweep coverage interpre broad tation re had clause. That opinion attributed the omnibus duced the problem of available to other coverage persons the named insured to two fact whether issues: (1) permission had been to use the whether the use con given (2) “theft or like.” N. stituted J. at 413. The Court took in Schunclce to pains reject Division’s Appellate view that the issue of should on depend pur pose for which the car was owner to the by the givеn per mittee : ** * We believe that this construction of word “use” is too permission granted purpose
narrow. Whether to use is for a which owner, permittee, will benefit or both is immaterial under permission rule, scope the initial which is not concerned with the * * * permission granted. or use for which is [42 413-14] J. at
In Odolecki v. & Accident Indemnity Hartford N. J. 542 Court reviewed circumstances which (1970), led it to the initial adopt permission rule and reaffirmed its decision, of the Matits approval saying: * * * and conversion It was our view that the minor deviation scope permission given rules, which turn on made instance, coverage uncertain, in fosterеd unneces the first rendered litigation, Jersey’s legislative sary comport did with New assuring for of auto an available fund the innocent victims Security-Responsibility Law, mobile accidents. See Motor Vehicle 60; Judgment Fund N. J. S. A. 39:6-23 to Claim Unsatisfied Law, Liability Security 91; N. J. S. A. Motor Vehicle 39:6-61 * ** Act, [55 546] Fund N. J. S. A. N. J. at 39:6-92 to 104.
In emphasizing importance minimizing litiga tion omnibus concerning coverage, the Court Odolecki par ticularly decried recurrence intricate factual inquiries concerning permission in given by named sured. Additionally the Court’s entire underlying discussion of the procedural justifications for the rule reaffirmed “* * * Odolecki is the view that liability insurance сontract the benefit of the public well as for the benefit of * * the named additional insured 55 N. 549. *8 Accordingly, the language any automobile in liability surance omnibus clause must be read of the light settled legislative policy to designed provide compensation financial to those who are wrongfully injured in motor vehicle ac cidents. Matits v. Nationwide Mutual Ins. supra, Schuncke, N. J. at 496. Small v. See supra, 412; Indemnity Co., supra, Odolecki v. & Accident Hartford N. J. at 549. question Fick’s
Although under the New Jersey Manufacturers policy ultimately controlled A. 39:6-46, S. we first consider whether the
language policy omnibus clause with comports requirements. The statutory legislative directs provision an automobile shall “insure insured liability policy named therein for any other or person using responsible or implied use of such motor vehicle with the any express * * consent The of the supplied). insured (Emphasis in policy provision obligates Manufacturers * “* * sus injury surance company provide coverage maintenance, owner of the tained out person arising to “any person or use of the owned automobile” and ship of the named in using such automobile with permission he is not sured; operat operation (if his actual provided of such scope per his other аctual is within ing) use ** mission *.” from the in two respects language The differs policy phrase, substitutes the First, statutory provision. statutory insured,” for “with of the named the permission in- consent or implied “with the express language, of semantics. one be merely sured.” This appears difference a short- simply us to be “permission” appears word contained the idea of expressing method cut or more informal con- or implied express “with the statutory phrase, in the conveys general “permission” the word sent.” Although we follow the statutory language, embodied in the thought because it the precise specific statutory language represents choice. legislative limits Second, statute, the policy unlike the * “* * actual to a whose permittee
of the insured’s permittees not he is (if operating) issured’s operation vehicle] [of is within the his other actual use [of vehicle] distinguish The statute does permission.” [the insured’s] from other types its operation of a vehicle by the use it impose requirement Nor uses, does the does of the insured’s use within “scope” be that the permittee’s “permission.” *9 Court,
The in Insurance Indemnity North Company of v. America Metropolitan Casualty Insurance Company of York, N. 513-14 discussed the (1960), distinction between the terms “operation” and “use” as in employed omnibus clauses as such that involved The here. Court said: * n ** operation says nothing The clause about of the vehicle. It * * * permitted. use which be We think that in is the this con- operation synonymous. words are not text use and use of The employment purpose user; for some automobile denotes “operation” manipulation denotes the the word ear’s controls propel opera- in a is order to it as vehicle. Use thus broader * * operates *, tion. who a car uses one can One it but use a car operating being by example, used, An without it. automobile is for riding although driving. one in it another is operation in this the words Since context use have different meanings requires only and the omnibus clause the ms© permission insured, pro- automobile be with the of the named operation hibition automobile a is immaterial coverage. Thus, though determination expressly prohibited has even driver been operating from if he is covered the ear * n * * being purpose permitted used for the named insured. [citations omitted] When in discussion, viewed this light is clear that the of the omnibus clause in language the New Jersey Manu- facturers policy significаntly departs that contained statutorily statute limiting mandated who persons used insured’s vehicle in several respects. The issue is therefore not what this omnibus clause pro- vides, but what the Legislature has directed.1 Appellate Zullo, 1In Risks Ins. v. Selected Co. 48 N. (1966), J. 362 relationship statutory language considered the Court between the Security-Responsibility Law, contained the Motor Vehicle N. J. 39:6-46(a), quoted above, coverage pro A. S. and the vided in the standard omnibus clause. The Court there said: * * * policy “proof A responsibility [for so offered of financial 48] under coverage S. A. 39:6-46 must have the broad form 39:6-46(a). set forth in J. S. A. A which purports automatically to have more restrictive omnibus statutory amended 48(b). conform standard. N. J. S. A. 39:6 * * * [48 373] N. J. at *10 Manu- Division concluded that the New erroneously the ve- when facturers policy provision, precluding did the owner’s permission, hicle was driven without clause. omnibus from the illegally depart statutorily required pro- Since Manufacturers policy we that the New Jersey hold in- statute, vision from the did impermissibly depart See Selected effective and the controls. statutory language Ins. v. Zullo, Risks 48 J. 362 (1966). Co. the statute, the
Under Court’s constraction of the by use a pas of the term “use” is broad and includes our as wеll In a number of cases the senger by operator. uses by courts have a wide remarkably variety considered users, whether the passengers and other non-operating In persons. omnibus clause afforded such be Cos., N. J. Westchester Ins. v. Continental Ins. 126 Fire Co. N. J. 152 Super. (1974), 29 Div. aff’d o. b. 65 (App. 1973), a threw a stick from a automobile passenger moving accident struck a The Court held that the bicyclist. passing that automobile, arose out of and further the the use the user, came under the in as a negligent permitted passenger, sured’s liability coverage.
In v. Transit 105 N. J. Gronquist Casualty Super. in a 363 Div. car was held to he 1969), a (Law passеnger liability covered the insured’s even the by though pas- policy from had caused the accident the senger by leaning forward seat, with rear seat over the back of the front interfering the In Claim and driver’s car. operation Unsatisfied Board v. 117 N. J. Clifton, Fund Judgment Super. (App. in Div. a station 1971), gas employee engaged fixing him insured’s car a friend his who had been injured helping lift. the car to a The court held that the em- hydraulic guide use was a one permitted covered insured’s ployee’s O’Rourke, Mutual Ins. v. In Liberty Super. Co. Div. a car had two men were as- 1973), stalled and (Ch. the driver One leaned remedying problem. sisting hood and a сan into poured gasoline under the throat of the carburetor, causing explosion which ignited the can. He reared back and flung gasoline can away from him and into the face of one the driver’s children. The repair was activity held to be a use within permitted meaning omnibus clause in the driver’s policy. Ins., Finally, Selected Ins. v. Risks Co. Nationwide Mutual 133 N. J. Super. 205 Div. owner was (App. 1975), garage examining insured’s vehicle when it suddenly lurched forward, owner and the insured’s killing garage injuring wife. The court held was the estate of deceased covered be insured’s deceased’s death cause use under examination of auto permitted *11 the insured’s policy. unusual be
The issue thus becomes whether Nick’s havior in vitiated over and the Leonard vehicle taking driving use of as Leonard’s initial consent to Nick’s her auto the con of precluded coverage and therefore passenger, of under with New sequences Nick’s her policy acts in the view, developed Manufacturers. In our rationale the the situa “initial to permission” fully present applies cases Co. Ins. tion. in Indemnity the Paraphrasing language of York, Ins. Casualty North America v. Metropolitan the initial use of that requires only statute supra, As of the named insured. automobile be the сonsent with Schuncke, supra, v. “[wjhether Court in Small stated will which benefit to for a permission purpose use is granted under the is immaterial owner, or both permittee, initial rule, which not with the permission is concerned of use for N. scope which J. permission granted.” Thus, 413-14. as as the use the vehicle long initial is with consent, insured, subse express implied, in the quent character or changes use, of the such from driver, to a passenger do require additional specific consent of the insured. where the Only deviation use consented to amounts to “theft or the like” will be under precluded the insured’s policy. Matits Co., 496; 33 N. J. at suprа, Mutual Ins.
v. Nationwide Schuncke, N. J. at 413. Small v. supra, vehicle use of the Leonard It initial is clear that Nick’s Leonard, of Mrs.' consent as a was with passenger express reasoned, how Division the named insured. The Appellate con from the car ever, Mrs. Leonard that Nick’s “ouster” of of the ve and operation” stituted “unauthorized seizure use became hicle, consent his and that therefore her initial Ins. Fire & Co. v. Motor Club Cas. nugatory. Mfrs. Di Although Appellate at 371. supra, Super. Nick’s lack erroneously vision its conclusion in terms cast Leonard expressed operate implied permission constituted Niсk’s conduct be that might argued Small, and Matits “theft or the like” under arid reason Mrs. Leonard’s his acts were not covered fi assure which would legislative policy strong nancial of automobile innocent victims ac protection cidents, in the omnibus embodied mandated clause and long consistently invoked our courts in the “initial per cases, mission” with less force to situa no applies present for those tion. The Matits Small exclusion from like” has occurred be situations in which “theft or the We construed of this narrowly light expressed policy. connotes exception think that the “theft” component with car less the willful another’s nothing taking its intent the owner of deprive possession permanently *12 Leicht, 127, v. 131 Super. use. State 124 (App. See Co., v. Home Fire & Marine Ins. Div. Stewart 1973); 50 Am. 2d, Jur. 515, 1924); N. J. Misc. (Sup. Ct. 2, we not ex exhaustively 149. While p. need Larceny, § “or like” of the ex component plore of Matiis Small con we think that author and ception, more like theft conduct much traditional templated here involved. conduct us that remotely suggests in the record before
Nothing Mrs. Leonard Leonard’s car. to steal Mrs. Nick intended Nick’s “theft” her she view acts that testified did car, and she that to see both Nick fully expected and the car again. Mrs. Nick’s Although Leonard indicated that conduct startled her, and she frightened stated that Nick did not touch her or threaten her with or contact in physical injury way. Hence, abberational conduct user admittedly vehicle, of a such as that here, does not constitute “theft or the like” as that term is Matits Small. used and
Moreover, the record indicates that both the appointment to visit the and the run psychiatrist, trial to the psychiatrist’s office Mrs. ideas, were Leonard’s and Nick that was initially reluctant to endorse either plan. Given Nick’s emotional problems, that likely Leonard would Mrs. reasonаbly have her expected when, cover her friend Nick ac to his cording testimony, he began ear because he driving wanted to return home. See State Farm v. Zurich American Ins. 62 N. 155, J. J.,C. (1973) (Weintraub, con ; Cos., Westchester Fire Ins. v. Continental curring) Co. Ins. supra, 126 J. Super. at 36.
Nick’s activities cannot be Mrs. held to vitiate Leonard’s consent his use of the automobile or him of deprive protection afforded by the of Mrs. omnibus clause Leonard’s insurance We hold that Mrs. Leonard’s Jersey Manufacturers policy covered Nick after he seized control of Leonard’s that therefore New Manu- facturers was liable for primarily injuries to Mrs. Scibetta.
Reversed. what here reaches (dissenting). Court
Clifford, must be water” surely the outer limits of the “hell high doctrine, so Hall and otherwise re by Justice denominated Schuncke, v. ferred as the “initial rule. Small permission” J., 42 N. J. 416 (1964) concurring). Sharing (Hall, I his think higher drier hankering places ground, had I been a member of Court the time the during “initial permission” doctrine was formulated de being shunned, in New I veloped Jersey, would have as did Justice *13 440
Hall, of the of common suspension straining language which reasoned have led to the result analysis zany ap that doctrine, of in its is that now full-blown plication maturity, Indemnity said to dictate in case. See Baesler v. Globe this Co., v. Ins. 33 N. J. 148 Matits Nationwide Mutual (1960); Co., J., 33 N. In 488, J. 498 (1960) (Hall, dissenting); Y.,N. demnity Ins. Co. Co. Metropolitan v. Cas. 33 Ins. of J., N. Small v. J. 516 (Hall, (1960) dissenting); Schuncke, J., N. J. supra, concurring); at 416 (Hall, Zullo, Risks v. Selected Ins. Co. 48 N. J. 362 Odo (1966); Co., & lecki Acc. Indem. N. J. 542 (1970); v. Hartford v. Am. Farm Zurich Ins. State 155 (1973). a on to certain reluctance to embark I confess However, re chore of to attempting demonstrably profitable IWhile warm might the “initial rule. permission” shape statutory both the rescuing task of to the A. to which :6-46, rigamarole S. language, to line of referred been reduced cases they have on the of neces part I no inclination above, detect present lend of Court sup members three additional sary little sentiment to be appears to that endeavor. There port its bereft of territory since long favoring re-exploration Therefore, judicial discipline as a matter virginity. case, I am con of this as willing accept for purposes an validity, principle without its conceding trolling, majority nounced * * r consent, long is with initial use of the vehicle as the any subsequent changes insured, express implied, in the or use, passenger driver, as from a such character or specific Only require insured. the additional consent do not amounts from the use consented to “theft
where the deviatiоn precluded under the insured’s like” will be [Ante 437.] I from whatever disagreement might
But apart quite on “theft have with this element principle, we While like” that I this stumbles. think case n con- “implied have since swallowed camel may long Ml *14 a vehicle, sent to use” we continue to strain at the gnat — like.” “theft or handy That expression perfectly understandable, I would to a suppose, layman but appar d — less so to the ently refined found early min on legal its way into the articulation of the “initial permission” rule, Co., Matits v. J. Nationwide Mut. Ins. 33 N. supra, Schuncke, at 497, and was in Small v. perpetuated supra, Odolecki, 42 J.N. 413. at even supra, simplified inquiry more by “theft or like” into “an unlawful translating taking.” at 547. in if And so this ease Nicholas Scibetta’s control Mrs. he automobile, Leonard’s which was when driving occurred, the accident achieved by “theft the like” or if his over the “un car was taking lawful,” then, as everyone readily acknowledges, is not insurer, available Mrs. through Leonard’s de fendant New Jersey Manufacturers Insurance Company (NJM), and the injured is limited passenger’s recovery to $50,000 & provided by Motor Fire plaintiff, Club Casualty Company (Motor Club), Nicholas car Scibetta’s rier. states the facts majority per- opinion adequately
tinent ante 429. Let them be at prеsent inquiry, restated here: * * * stopped angled intersection Bloomfield on Mrs. Leonard an began Suddenly pause Nick in the and waited for traffic. Avenue steering grabbed climbing front, mother. his He across the over Leonard, get wheel, telling of the car. out Mrs. Leonard expression, pressed frightened and actions and Nick’s stunned emergency driver’s side onto brake exited from the down the “I trial: knew Leonard testified at traffic island the street. Mrs. in * * * practically get seat he was [b]ecause I out had unsuccessfully I had wheel.” Mrs. Seibetta he there knew crawling pleaded son to desist. succeeded across with her Nick drove, seat, wheel, took the onto Bloomfield Avenue. the front immediately, rear another
Almost the automobile struck the building. control, an out of and crashed into office went Division char- specifically
While the did Appellate “theft or the Nicholas’ conduct amounting acterize as out “unlawful,” it did point like” otherwise being owner a “coerced ouster of that his followed operation sei an “unauthorized from the automobile” and hence was v. N. J. Fire & Cas. Co. Motor Club zure and operation.” 1975). Div. Ins. Super. (App. Mfrs. and unassailable conclusion this unassailed Despite below, round peg court refuses to fit the majority be taking” the facts into the round hole of “unlawful cause, “theft” of the exclusion says, component taking connotes less the wilfull “nothing car with *15 deprive another’s the intent to permanently * * owner “or the of its and use and possession the like” of component exception the “conduct contemplates much here in more like traditional theft than the conduct dictu, Ante is, volved.” at 438. The round mirabile peg rendered like” in the absence of square proof “something — this, traditional theft as ma that, the fact despite it, jority puts Nicholas “seized control of Mrs. Lеonard’s car” at (ante 439) it, her by bodily forcing fright out her ening his own mother “stiff” in the scaring proc off, ess before the owner in the driving leaving stranded highway.
It may reasonably be con- assumed that the present text the expression “theft or like” intended set to the final boundary which “consent to use” a vehicle beyond will not be stretched. “or like” phrase attached to “theft” is not likely to have been casually thoughtlessly decisional law in the into our first instance dropped A other cases thereafter. mindlessly repeated meaning have been ascribed to it. And if “or the like” means mean it must short of theft in the anything, something Motor Counsel for Club conceded as much technical sense. oral us. I would (it the first before argument suppose entirely left to that majority supposition) being element of traditional theft in Nicholas’ con- only lacking is permanently, in the case before us the intention duct ve- rather to the owner of her temporarily, deprive M3 — so, me, hide. it “like” And seems his conduct is — n albeit less than traditional theft. s Furthermore, ol if we Od ecki’ accept are. to dilution “theft or like” “an unlawful 55 N. J. at taking,” re then the facts of this ease manifestly satisfy unlawful what an un quirement of conduct. For else 'is a vehicle, authorized seizure of motor accomplished by owner, assault on and coerced ouster of if not plainly action, unlawful ? Such consen antithesis of permissive use, sual amounts a 2A:170-38 violation of S. A. (Supp. 1976-77), unlawful or using making taking a offense; means of a conveyance disorderly persons seems clear that thereof, to demonstrate a there violation need be shown intention permanently deprive the vehicle’s owner of its use. “it
Finally, majority suggests likely Leonard have her to cover reasonably expected would he when, testimony, her friend Nick to his according began Ante he home.” the car because wanted to return driving Quite nature at 439. apart entirely speculative observation, single that gratuitous unsupported record, word in for determin- reliability its basis consent to use vehicle in from the suffers ing question v. defect its character. See Matits glaring hindsight *16 Ins. Nationwide Mut. 33 N. at 499 supra, (Hall, J., dissenting). “unlawful like” and “theft expressions
Giving I con- meanings, generally accepted their taking” plain ve- Mrs. Leonard’s use of Scibetta’s Nicholas clude consent. without her at the time accident was hicle this under NJM’s Therefore, there was no no to defend. obligation Division. of the Appellate
I affirm the judgment would in this joins dissenting opinion. Justice Mountain Sullivan, For and Scheei- reversal—Justices Passman bee Coneoed and Caeton —5. Judges
For Mountain and Clieeoed —2. affirmance-—Justices