dissenting:
I disagree with the majority opinion. I would adopt the rule stated in Odolecki v. Hartford Accident & Indemnity Co., 55 N. J. 542, 264 A. 2d 38; State Farm v. Zurich Am. Ins. Co., 62 N. J. 155, 299 A. 2d 704; and Maryland Cas. Co. v. Iowa Nat. Mut. Ins., 54 Ill. 2d 333, 297 N. E. 2d 163. The rule referred to is stated in the State Farm case:
“. . . [I]f the first user in fact has permission from the named insured, lack of permission, express or implied, of such named insured for use by a later permittee is irrelevant to coverage, short of theft or the like. . . .” (p. 167.)
One of the basic weaknesses in the rule reported by the majority opinion is the fact the owner of an insured automobile may, subsequent to an accident, decide whether he wants the driver of the insured automobile to be covered by his insurance policy. He can state that permission was given, thus binding the coverage, or he can state that permission was not given, thus eliminating the recovery. It appears to me the right to recover from personal injuries resulting from an automobile collision should not depend on the whims of the insured owner. The belated statement of the owner as to permission should be minimized and give way to the public interest. It should be the policy of this state to liberally construe liability insurance policies to effect the broadest range of protection to users of the highways.
The majority opinion indicates changes in the law relative to the omnibus clause of insurance policies should be made by the legislature. I do not agree. The construction of insurance policies has long been the function of the courts. If such construction needs modification the courts should act to correct it and not avoid their responsibility by asserting it is a legislative matter.
Much has been written on this subject and the courts have taken *128many diverse views as disclosed by the cases cited in the annotation in 4 A. L. R. 3d 10. I recognize the majority opinion is in accord with the law of this state, but I hope to raise some questions as to the wisdom of its perpetuation.