Aetna Casualty & Surety Co. v. De Maison

• Decision Date: 12 August 1953
• Docket Number: Civ. A. No. 11817.
• Citation: 114 F. Supp. 106
• Parties: AETNA CASUALTY & SURETY CO. v. DE MAISON et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

114 F. Supp. 106

AETNA CASUALTY & SURETY CO. v. DE MAISON et al.

Civ. A. No. 11817.

United States District Court E. D. Pennsylvania.

August 12, 1953.

Rawle & Henderson, Philadelphia, Pa., for plaintiff.

Swartz, Campbell & Henry, Philadelphia, Pa., for defendants DeMaison and Merchants Indemnity Corp.

Buckman & Buckman, of Philadelphia, Pa., for defendant Schick.

GRIM, District Judge.

In January, 1950, Emil Schick, Sr., and his wife lived at 6625 North 3rd Street in Philadelphia. With them lived their unmarried son, Emil Schick, Jr., aged 31. Emil, Sr. owned an automobile, but Emil, Jr. did not. It was kept in a garage at the rear of the house and the keys were kept in a kitchen drawer. The son used the car once or twice a week, but whenever he desired to use it he would ask his father for permission. The father would grant the requested permission, unless he needed the car himself. When the son used the car he furnished gasoline and oil for it.

On the evening of January 6, 1950, Emil Schick, Jr. wanted to use the automobile. As had been his custom he asked his father for permission to use it, and permission was granted. The father testified:

"He was upstairs getting dressed, and he came down in the parlor and he asked me: Dad, can I have the car tonight? And I said yes.

"Q. Did he say what he wanted to use it for? A. He didn't say, but at the same time his mother asked him, where are you going? * * *

"Q. Where did he say he was going? A. To the Yorktown Theatre in Jenkintown. * * *

"Q. That was all that was said about where he was going? A. That was all, as I remember."

Emil, Jr. then took the car and used it to drive to Messina's Inn in Ardsley. Ardsley is a suburb of Philadelphia about three miles from Jenkintown. In Messina's Inn Emil, Jr. was with a group of friends, including a Mrs. Leona DeMaison, when it was decided among the group that they would go to a diner in Willow Grove, which was three or four miles away. Mrs. DeMaison, with Emil, Jr. in the car beside her, drove it from Ardsley, and two or three miles from Ardsley on the way to Willow Grove she was involved in an accident with a parked automobile. Relative to the operation of the Schick car Mrs. DeMaison testified:

"Q. Now, Mrs. DeMaison, as I understand it certain arrangements were made with respect to using automobiles to get your entire party up to this place in Willow Grove; is that right? A. That is right.

"Q. What happened next? A. Well, I think I had suggested in a joking way that I would drive Mr. Schick, Jr.'s car and * * *

"Q. I see. Go ahead. A. When we went out to the car I handed Mr. Schick the keys and said, you drive. And he said, no, you go ahead and drive. * * * I don't remember the correct timing on that, but we left Messina's and we headed up Edge Hill Road. Well, I would say about half a mile to three quarters of a mile away Mr. Schick turned to me and I said, do you want to drive? And he said, no, you are doing very well. And it was about two miles from that, as we were rounding the curve there in Roslyn, that the accident occurred."

As to the operation of the car by Mrs. DeMaison, Emil Schick, Jr., testified:

"Q. On the night of this accident how did it come about that she drove the car? A. Well, we had discussed it one time. Mrs. DeMaison had said she had never driven a Dodge before, and on this particular night she approached me and asked me whether I would join the rest of the group in going up to the diner to eat, and I said, yes, and I said, incidentally, you have always wanted to drive the car, how about driving it tonight? And then the accident happened."

At the time of the accident Emil Schick, Sr. had public liability insurance on his car with Merchants Indemnity Corporation of New York. The policy contained a clause known in insurance language as an omnibus clause, which reads as follows:

"Definition of Insured: With respect to the insurance for bodily injury liability and for property damage liability the unqualified word `Insured' includes the named Insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named Insured or with his permission."

The plaintiff in the present declaratory judgment case, The Aetna Casualty and Surety Company, contends that at the time of the accident Mrs. DeMaison was covered by the omnibus clause of the policy issued by Merchants Indemnity Corporation of New York. Merchants contends that she was not.

It is to be noted that the omnibus clause in the Merchants policy provides that "the unqualified word `insured' includes the named insured and also includes any person * * * legally responsible for the use thereof, provided the actual use of the automobile is by * * * permission" of the named insured.

It would be a distortion of words to say that when the accident in this case happened the automobile was not being used by permission of Emil Schick, Sr., the named insured. Emil, Jr. asked Emil, Sr. for permission to use the car on the evening of January 6, 1950. As a result of this permission Emil, Jr. used the car to make the trip from Ardsley to Willow Grove. It is true that he was not driving the car on this trip, but he used the car as a conveyance in the same sense that he might have used a taxicab, a bus, a train, or some other person's car to go from Ardsley to Willow Grove. Since the accident happened when the automobile was being used by permission of the named insured, Mrs. DeMaison, the driver, in my opinion, is covered by the Merchants Indemnity Corporation policy. The fact that Mrs. DeMaison rather than Emil Schick, Jr. was driving the car when the accident happened is immaterial under the words of the omnibus clause; nor is it material that Emil, Sr. had given Mrs. DeMaison no permission to drive and that he would not have given anyone other than Emil, Jr. permission to drive, had he been asked this permission.

The law of Pennsylvania must be followed in the construction of the Merchants insurance policy.¹ In my opinion, the decision of the Pennsylvania Superior Court in the case of Conrad v. Duffin, 158 Pa.Super. 305, 44 A.2d 770, is controlling. In the Conrad case an automobile truck was leased by Duffin, the owner, to one Garlick for the purpose of hauling ashes. While an employee of Garlick was operating² the truck it was involved in an accident. Duffin had public liability insurance on his truck which contained an omnibus clause in it identical with the omnibus clause in the Merchants policy in the present case. The insurance company in the Conrad case contended that, since Duffin had given permission only to Garlick to use the truck and had not expressly given permission to any other person to use it, the omnibus clause did not cover an employee of Garlick. The Pennsylvania Superior Court rejected this contention and held the insurance company liable. In its opinion the Court used the following language, which could well be applied to the facts in the present case, saying, 158 Pa. Super. at page 308, 44 A.2d at page 771:

"Under the clause of the policy in question it was not required that the named insured's authorization be personal. Rather it was limited to the character of the work, and the policy would, under the circumstances, include anyone using the truck for the purpose authorized. The coverage of the policy would not be limited to the named insured's lessee, but would include those engaged in carrying out the permissive use; the purpose of the policy was to

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