Lumbermens Mut. Cas. Co. v. Sutch
Decision Date | 21 May 1952 |
Docket Number | No. 10604.,10604. |
Citation | 197 F.2d 79 |
Parties | LUMBERMENS MUT. CAS. CO. v. SUTCH et al. |
Court | U.S. Court of Appeals — Third Circuit |
Norman Paul Harvey, Philadelphia, Pa., for appellant.
Donald J. Farage, Philadelphia, Pa., (Richter, Lord & Farage, Philadelphia, Pa., B. Nathaniel Richter, Philadelphia, Pa., on the brief), for appellees.
Before KALODNER and HASTIE, Circuit Judges, and MODARELLI, District Judge.
This is an action by an insurance company, under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, for an adjudication of its liability under a policy of automobile insurance.
The facts giving rise to the appeal are as follows:
On January 20, 1948, the Lumbermens Mutual Casualty Company ("Lumbermens") issued a policy of automobile liability insurance to Laura V. Sutch. The policy contained a standard omnibus clause whereby the insurer bound itself, subject to certain stated exceptions, to provide the same coverage for anyone operating the car "with the permission of the named insurer" as it was bound to furnish the named insured.1 Mrs. Sutch was 78 years old at the time the policy was issued, and incapable of driving; to enjoy the use of the car, she employed one Dorothy Scheer as companion-chauffeur. Attached to the policy was an endorsement which read as follows:
On February 27, 1948, while Mrs. Sutch was out of town, Dorothy Scheer ("Scheer") drove the car to a friend's home where she spent the evening playing cards. Shortly before 2:30 A. M. the next morning she left the house in the company of two friends, William F. Hayden and Harriet Rehfeld, whom she had offered to drive home. While the car was being operated for this purpose it became involved in an accident, as a result of which the two passengers, Hayden and Rehfeld, were injured. Hayden and Rehfeld instituted suits in the Common Pleas Court of Philadelphia County against Scheer to recover damages for the injuries sustained in the accident. Scheer made demand upon Lumbermens to defend her in these two actions, whereupon Lumbermens brought the instant suit in the District Court for the Eastern District of Pennsylvania for an adjudication that it was not obligated to Scheer under the policy issued to Mrs. Sutch. Lumbermens named Mrs. Sutch, Scheer, Hayden and Rehfeld as defendants. In the court below the cause was submitted to a jury for a determination of the single factual issue as to whether at the time of the accident Scheer was operating the car "with the permission of the named insured", Mrs. Sutch. Lumbermens introduced in evidence a statement signed by Scheer five days after the accident, in which she said that prior to the accident she had not been using the car for her personal use, and that she took it on the evening of the accident without asking Mrs. Sutch. On the basis of this statement, and the testimony of the insurance adjuster who obtained it, the District Judge submitted the following interrogatory to the jury:
"At the time of the accident was Miss Scheer operating the car with the permission of Mrs. Sutch?"
The jury answered in the negative. Defendants then filed a motion for judgment on the whole record on the ground that, by virtue of the above endorsement, Scheer was the named insured on the policy, and hence coverage extended to her whether or not she had Mrs. Sutch's permission to drive. This motion was granted by the District Judge, who stated:
We cannot agree with the conclusion of the learned District Judge that Scheer became the insured on the policy by virtue of the endorsement naming her as the one who drove the car.
The policy was written and countersigned at Philadelphia. Therefore, the law of Pennsylvania applied. Faron v. Penn Mutual Life Ins. Co., 3 Cir., 1949, 176 F.2d 290.
It is true that a typewritten endorsement must be given effect to the exclusion of any conflicting printed provision in the policy, Newman v. Massachusetts Bonding & Insurance Company, 1949, 361 Pa. 587, 65 A.2d 417; Morris v. American Liability & Surety Company, 1936, 322 Pa. 91, 185 A. 201; Stallani v. The Belt Automobile Indemnity Association, 1925, 85 Pa.Super. 224; that all ambiguities in a policy of insurance are resolved against the insurer as the party responsible therefor, Gnagey v. Pennsylvania Threshermen &...
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