Gougher v. Hansler

• Decision Date: 18 March 1957
• Docket Number: 3486
• Citation: 388 Pa. 160,130 A.2d 150
• Parties: Delbert Adam GOUGHER, Appellant, v. Llovd HANSLER, Defendant, and State Automobile Insurance Association, Garnishee.
• Court: Pennsylvania Supreme Court

130 A.2d 150

388 Pa. 160

Delbert Adam GOUGHER, Appellant, v. Llovd HANSLER, Defendant, and State Automobile Insurance Association, Garnishee.

No. 3486

Supreme Court of Pennsylvania

March 18, 1957

Argued January 11, 1957

Appeal, No. 74, Jan. T., 1957, from order of Court of Common Pleas of Carbon County, Jan. T., 1953, No. 49, in case of Delbert Adam Gougher v. Lloyd Hansler et al. Order affirmed.

Attachment execution proceeding against garnishee upon judgment entered in action of trespass for personal injuries. Before MCCRADY P.J.

Special verdict for plaintiff; garnishee's motion for new trial granted. Plaintiff appealed.

Order affirmed.

Albert H. Heimbach, for appellant.

Thomas D. Caldwell, with him Wm. H. Bayer, Carl B Stoner, and Caldwell, Fox & Stoner, for appellees.

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

OPINION

MR. CHIEF JUSTICE JONES

This suit was instituted by writ of attachment-execution sur judgment for the plaintiff Gougher against the defendant Lloyd Hansler, summoning as garnishee the State Automobile Insurance Association. The plaintiff recovered the judgment at the uncontested trial of his action against the defendant for damages for personal injuries received while he was a passenger in an automobile driven by the defendant. The automobile was the property of the defendant's father and was covered by a policy of liability insurance issued to the owner. The policy contained an "omnibus clause" which defined the term "Assured" as including, inter alia, "any person while using the automobile ... with the permission of the named Assured, or, if the named Assured is an individual, with the permission of an adult member of the named Assured's household ...".

The question for determination in the court below was one of fact as to whether the defendant's use of the automobile at the time of the accident had been with the consent of an adult member of the assured's household. An issue was framed accordingly with the approval of the court and was tried to a jury with the result that the jury found that the defendant had had such consent. On the garnishee's motion, the court below granted a new trial on the ground that the jury's verdict was against the weight of the evidence. This appeal by the plaintiff followed. The propriety of the lower court's action in granting a new trial is the sole question raised by the appeal.

The appellant's burden is a heavy one, and especially so in the light of the questionable character of the evidence adduced by him at the trial to which we shall make reference. As recently as Davis v. Rider, 387 Pa. 14, 16, 127 A.2d 108, we reiterated that "An order awarding new trial will not be reversed unless a palpable abuse of discretion by the trial judge is disclosed, or unless an erroneous rule of law controlling the outcome is certified by him as the sole reason for his action: Foster v. Waybright, 367 Pa. 615, 80 A.2d 801." And we again quoted from Frank v. W. S. Losier & Co., Inc., 361 Pa. 272, 276, 277, 64 A.2d 829, as we had in Bellettiere v. Philadelphia, 367 Pa. 638, 643, 81 A.2d 857, that "One of the least assailable grounds for the exercise of such power [to grant a new trial] is the trial court's conclusion that the verdict was against the weight of the evidence and that the interests of justice therefore require that a new trial be awarded; especially in such a case is an appellate court reluctant to interfere."

On the question of the defendant's alleged permissive use of the automobile, the plaintiff testified and called as witnesses Hansler, the defendant, Hansler's parents and three other persons, all of the Hanslers testifying to the effect that, although the defendant's operator's license had been suspended (for an unspecified violation of The Vehicle Code), he nevertheless had the implied consent of his father to use the automobile on the day of the happening of the accident and had so used it on several prior occasions in driving to his place of employment; that the keys to the automobile were kept in the kitchen of the family home so as to be readily available to the members of the household; and that on the morning in question the defendant had announced to his mother than he was taking the car to work and she made no response. The witnesses unrelated to the defendant testified vaguely that he had driven the automobile on several occasions shortly before the accident in the period during which his operator's license was suspended.

In cross-examining Hansler and his parents, the garnishee made extensive use of statements which they had given to an adjuster of the garnishee company wherein Hansler had stated that he had driven the car on only one previous occasion during the suspension of his driver's license; that he had been told by his parents that he was not permitted to drive the car while his operator's permit was suspended and that he took the car without his parents' knowledge or consent on the day of the accident. The statement by Hansler's father, which was joined in by his mother, to similar effect. All of these witnesses admitted making the statements attributed to them and for the most part verified the contents of their statements, contradicting directly only the portions bearing on consent. In such instances, the Hanslers asserted either that the statements had not been recorded as made or that the witnesses could not recall having so stated. The adjuster who was called by the garnishee as a witness for the defense, testified that...