Gross v. Kubel

• Decision Date: 21 May 1934
• Docket Number: 191-4
• Citation: 315 Pa. 396,172 A. 649
• Parties: Gross et al., Appellants, v. Kubel et al.; Cromley et al., Appellants, v. Kubel et al
• Court: Pennsylvania Supreme Court

172 A. 649

315 Pa. 396

Gross et al., Appellants, v. Kubel et al.; Cromley et al., Appellants, v. Kubel et al

Nos. 191-4

Supreme Court of Pennsylvania

May 21, 1934

Argued April 16, 1934

Appeals, Nos. 191-4, Jan. T., 1934, by plaintiffs, from judgments of C.P. No. 2, Phila. Co., March T., 1930, Nos 2183 and 2184, in cases of Raymond J. Gross, a minor, et al v. Albert Kubel et al., and Martha Cromley, a minor, et al. v. Albert Kubel et al. Judgments affirmed.

Attachments sur judgment. Before GORDON, J., without a jury.

The opinion of the Supreme Court states the facts.

Verdicts and judgments for garnishees. Plaintiffs appealed.

Errors assigned, inter alia, were dismissal of exceptions, quoting record.

The judgments are affirmed.

Edwin J. McDermott, with him William Charles Brown, for appellants. -- The garnishee is estopped because the facts upon which it based its disclaimer, although not learned by it until seven months and fourteen days after the happening of the accident, could always have been ascertained by a reasonable investigation or by inquiry from its assured: Malley v. Indemnity Co., 297 Pa. 216.

The garnishee's conduct in retaining control for the period in question was sufficient for an estoppel to arise: Lewis v. Cas. Co., 304 Pa. 503.

The insured was prejudiced by the insurer's conduct.

The defendant, the insured, was not at the time of the accident operating his automobile for carrying passengers for hire: P.R.R. Co. v. Price, 96 Pa. 256; Bricker v. R.R. Co., 132 Pa. 1; Sweigart v. Shreiner, 14 D. & C. 435.

The provision of the policy applies only to a regular use of the property insured: Murphy & Co. v. Cas. Co., 89 Pa.Super. 281.

W. A. Hamilton and Francis Chapman, for appellees, were not heard.

Before FRAZER, C.J., SIMPSON, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

PER CURIAM:

These four appeals arise from the same set of facts and will be disposed of together. Appellants, who were plaintiffs in the court below, sought by attachment sur judgment to enforce the liability of garnishee upon its policy of insurance issued to defendant Kubel. Plaintiffs had obtained judgments against Kubel in actions to recover damages for injuries sustained by the minor plaintiffs in an accident which occurred while they were traveling in defendant's automobile. The garnishee disclaimed liability under the insurance policy on the ground of violation of a condition providing that the policy should not cover any accident occurring while the automobile was being operated "for carrying passengers for hire." The only disputed question of fact was whether the insured was carrying passengers for hire in his automobile at the time of the accident, and the trial judge, hearing the case without a jury by agreement of the parties, found "that at the time of the accident defendant was using and operating his automobile in carrying passengers for hire." The testimony fully supports that conclusion.

Defendant was a member of the basketball team of the Philadelphia Normal School, which played a regular series of games with other teams in Philadelphia and in various adjacent towns and cities. The members of the team generally traveled to and from these games by bus or rail, their fares being paid out of a fund available for the purpose. Occasionally, however, trips were made in cars owned by players or by one Allen, an instructor of physical education at the school, who acted as treasurer and manager of the team. In instances where private cars were used, the owner of the car was either paid an amount equivalent to bus fares or compensated for the cost of the oil and gasoline, and given in addition a small amount for the use of the car.

At the time of the accident in question, defendant and four other members of the team were traveling to Trenton in defendant Kubel's car to take part in a basketball game with Rider College. With them was a Miss Martha Cromley, who was to attend the game as a spectator and was not a paying passenger. While traveling on the Lincoln Highway near Langhorne, a collision with two other cars took place, as a result of which Gross, one of the members of the team, and Miss Cromley were injured. They subsequently brought actions against defendant Kubel and obtained judgments against him.

In holding that the facts indicated above, concerning the arrangement under which the car was being used at the time of the accident, brought it within the conditions prohibited in the insurance policy, the trial judge stated: "Under these facts, which are substantially undisputed, it is...