Devlin v. Piechoski

• Decision Date: 04 January 1955
• Docket Number: A,No. 284,No. 277,284,277
• Citation: Devlin v. Piechoski, 110 A.2d 241, 380 Pa. 146 (Pa. 1955)
• Parties: James DEVLIN, Administrator of the Estate of Rosella Devlin, Deceased, Appellant inppellee in, v. Joseph PIECHOSKI and Indemnity Insurance Company of North America, Garnishee, Appellant in, Appellee in(two cases). Appeal of INDEMNITY INSURANCE CO. OF NORTH AMERICA.
• Court: Pennsylvania Supreme Court

Page 241

110 A.2d 241

380 Pa. 146

James DEVLIN, Administrator of the Estate of Rosella DevlinDeceased, Appellantin No. 284, Appelleein No. 277, v.Joseph PIECHOSKI and Indemnity Insurance Company of North America, Garnishee, Appellantin No. 277, Appelleein No. 284 (two cases)Appeal of INDEMNITY INSURANCE CO. OF NORTH AMERICA.

Supreme Court of Pennsylvania.

Jan. 4, 1955.

Rehearing Denied Jan. 13, 1955.

Thomas Raeburn White, Jr., Thomas Raeburn White, Sr., Richard W. Hopkins, White, Williams & Scott, Philadelphia, for Indemnity Ins. Co., of North America.

D.T. Spagnoletti, Walter E. Alessandroni, George W. Alexander, Jr, Philadelphia, for James Devlin.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO, and ARNOLD, JJ.

MUSMANNO, Justice.

Rosella Devlin was killed when the airplane in which she was riding as the sole passenger crashed with the pilot Joseph Piechoski who had rented the plane from Ernest Buehl, insured for aircraft liability by the Indemnity Insurance Company of North America.Her father, James Devlin, administrator of the estate, brought survival and death actions against Joseph Piechoski who failed to enter an appearance or answer, whereupon the plaintiff obtained judgment in default and damages were later assessed in the amount of $21,474.16.

On September 27, 1951, the plaintiff began garnishment proceedings against the Indemnity Insurance Company of North America.Replying to the interrogatories filed by the plaintiff, the insurance company produced a photographic copy of the policy which provided inter alia:

'The unqualified word 'insured' wherever used in Coverages A, B and C, and in other parts of this policy when applicable to such coverages, includes the named insured and, except where specifically stated to the contrary, also includes any person while using the aircraft and any person or organization legally responsible for the use thereof, provided the actual use of the aircraft is with the permission of the named insured.'

The garnishee filed a plea of Nulla Bona, averring that it was without liability because the defendant had violated a provision of the policy to the effect that the airplane was not to be flown in violation of Federal Regulations for Civil Aviation applicable to minimum safe altitudes.

As the result of the trial which followed upon the issue raised by the garnishee's plea, the jury returned a verdict in favor of the plaintiff.The Trial Court ordered a new trial which order was affirmed by this Court, Devlin v. Piechoski, 374 Pa. 639, 99 A.2d 346.

At the second trial the garnishee refused liability because of an endorsement to the policy which provided that liability was excluded if any insured knowingly operated the aircraft in violation of Federal Regulations for Civil Aviation applicable to minimum safe altitudes.The plaintiff denied that the endorsement in question was at all effective on the ground that it was not countersigned or dated.The endorsement carried the legend: 'Not valid unless countersigned by a duly authorized agent of the Company.'

At the first trial, only a specimen copy of the policy was introduced since the original policy could not be found.At the second trial, however, the garnishee produced the original copy, declaring it had been located on a rubbish heap, Buehl having apparently thrown it away.The several sheets of the policy were in a somewhat deteriorated state.A question of fact arose as to whether the endorsement bore the countersignature and the effective date, both of which were absolutely necessary to make it valid and enforcible.The jury found that the endorsement was not countersigned and that no effective date appeared on the endorsement.Therefore, liability attached.The garnishee moved for judgment n. o. v. and for a new trial.The Court below refused the motion for judgment n. o. v., but ordered a new trial.The garnishee has appealed to this Court from the refusal of the motion for judgment n. o. v., and the plaintiff has appealed from the order granting a new trial.

Whether the signature and the effective date appeared or did not appear on the exclusionary endorsement was a question of fact for the jury and we cannot say by a study of the record and an examination of the policy itself that the jury was not justified in reaching the conclusion it did.Judgment n. o. v. therefore cannot be allowed.

The lower Court ordered a new trial on the basis that the plaintiff offered in evidence the specimen policy with endorsement attached, instead of the original policy itself.But it must be noted in this connection that P. F. Burke, Executive Vice-President of the garnishee company swore under oath in his answers to the interrogatories, in behalf of the insurance company, that the specimen policy which was attached to the answers (showing no countersignature) was a true and correct copy of the policy in full force and effect on the date of the accident.Though the Court later permitted this statement to be amended, the prior statement still remained admissible as an admission.In Easton School District v. Continental Casualty Co., 304 Pa. 67, 72, 155 A. 93, 94we said:

'That the statements in a superseded pleading may be used as evidence against the party by whom they were made is undoubted.We expressly so hold in Hess v. Vinton Colliery Co., 255 Pa. 78, 99 A. 218, 14 A.L.R. 1; while in 22 C.J. page 337, the rule is stated that, 'although a pleading which has been withdrawn or stricken out or...