Freshkorn v. Marietta

• Citation: 345 Pa. 416,29 A.2d 15
• Decision Date: 23 November 1942
• Docket Number: 84,85,83
• Parties: Freshkorn v. Marietta (et al., Appellant); Freshkorn v. Marietta (et al., Appellant); Wilson v. Marietta (et al., Appellant)
• Court: United States State Supreme Court of Pennsylvania

29 A.2d 15

345 Pa. 416

Freshkorn v. Marietta (et al., Appellant);

Freshkorn v. Marietta (et al., Appellant);

Wilson v. Marietta (et al., Appellant)

Nos. 83, 84, 85

Supreme Court of Pennsylvania

November 23, 1942

Argued October 5, 1942.

Appeals, Nos. 83-85, March T., 1942, from judgments of C.P Beaver Co., Execution Attachment, March T., 1941, Nos. 166 165 and 168, sur judgments, Sept. T., 1940, Nos. 101 and 102 and March T., 1940, No. 355, respectively, in cases of Margaret Freshkorn v. Paul Marietta et al.; W. T. Freshkorn v. Same; Earl Wilson v. Same. Judgments reversed.

Proceedings upon attachments sur judgment. Before READER, P.J.

Verdicts and judgments for plaintiffs. Garnishee appealed from judgment in each case.

Judgments reversed and here entered for the garnishee.

J. Roy Dickie, of Dickie, Robinson & McCamey, with him Wilson & Salmon, for appellant.

Leonard L. Ewing, of Reed & Ewing, with him Lawrence M. Sebring, for appellees.

Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. JUSTICE STERN:

Paul Marietta, driving an automobile belonging to Joseph Fash, struck another car and injured its occupants. In the litigation which ensued Fash was absolved from liability, but three judgments were recovered by plaintiffs against Marietta and writs of attachment execution issued thereon against Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company. That company had executed a policy of accident liability insurance in favor of Fash containing an extended coverage clause which made the insurance available "to any person or persons while riding in or legally operating" the automobile, "and to any person . . . legally responsible for the operation thereof, provided such use and operation thereof is lawful and with the permission of the named Assured . . ." Interrogatories and answers having been filed, a jury rendered verdicts for plaintiffs against the garnishee and the latter appeals from the refusal of the court below to enter judgments in its favor n.o.v.

All the testimony in the case was presented by witnesses called by plaintiffs. Admittedly Marietta was not the agent of Fash or on his business at the time of the accident. One Harry Davis, meeting Marietta in Rochester, told him that he had to go to his home in Freedom (some 2 1/2 miles distant), and Marietta said he would take him there. The only testimony in regard to the permission given by Fash for the use of his car was that of Marietta as follows: Q. "Tell us the circumstances under which you got the keys?" A. "I asked Mr. Fash to take me to Freedom and he told me . . . that he had some business to transact in Rochester, then in Beaver Falls, later on, and he wouldn't be able to take me up, because he had business to attend to in Rochester. He says, 'Here is the keys; you can have the car.'" . . . Q. "In the course of that conversation, when the keys were delivered to you, was there anything said by either you or him about going to any place but to Freedom?" A. "No." After receiving the keys Marietta drove Davis to the latter's home in Freedom, left him there, and then drove on to Ambridge, which is about 7 1/2 miles beyond Freedom. On his return journey, and when within a distance of somewhat over two miles from Freedom (nearly five miles from Rochester), the accident occurred.

The court left it to the jury to determine the extent of the permission which Fash gave to Marietta for the use of the car, that is to say, whether it was limited or unlimited and, if limited, whether it was substantially exceeded by Marietta. In this we think the learned...