Orcutt v. Erie Indemnity Co.

• Citation: 114 Pa.Super. 493,174 A. 625
• Decision Date: 03 October 1934
• Docket Number: 135-1934
• Parties: Orcutt v. The Erie Indemnity Co., Appellant
• Court: Pennsylvania Superior Court

174 A. 625

114 Pa.Super. 493

Orcutt v. The Erie Indemnity Co., Appellant

No. 135-1934

Superior Court of Pennsylvania

October 3, 1934

Argued April 20, 1934

Appeal by defendant from judgment of C. P., Mercer County, June T. 1932, No. 50, in the case of Melbourne Orcutt v. The Erie Indemnity Company.

Assumpsit on a policy of insurance. Before McLaughry, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $ 750 and judgment entered thereon. Defendant appealed.

Error assigned, among others, was refusal of defendant's motion for judgment non obstante veredicto.

Reversed.

E. V Buckley of Service, McNeal and Buckley, for appellant.

Nathan Routman, for appellee.

Before Trexler, P. J., Keller, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Parker, J.

In this action the plaintiff sought to recover from the defendant, insurance carrier for John Mendicino, the amount of a judgment which plaintiff had recovered against Mendicino for injuries suffered while a passenger in Mendicino's car. The insurance carrier disclaimed liability under the insurance policy on the ground that at the time of the accident the plaintiff was being carried by Mendicino as a passenger for hire contrary to a provision in the policy which provided that "no liability is assumed on account of accidents occurring while the insured automobile is being operated with the consent of the insured . . . . for rental, hire or livery or the carrying of passengers for a consideration."

The material facts are not in dispute, having been established by a deposition of the plaintiff corroborated by the testimony of Mendicino. On November 15, 1930, Melbourne Orcutt, the plaintiff, a painter, went to a feed store in the city of Sharon for the purpose of having the owner transport him, with some paint which he was about to use, to another point in that city. The owner of the store was busy and could not accommodate the plaintiff, but Mendicino chanced to be present on some business and, at the request of plaintiff, carried him as requested with his paint and some small articles. When they reached their destination Orcutt asked Mendicino what the charges were and, after some conversation, paid him twenty-five cents for the trip and explained that he was going to be busy only for an hour or two and that he then desired Mendicino to haul him, with his ladders and paint, to another point. Mendicino gave Orcutt his telephone number and said if he needed him to call him up again. He did call and during the return trip and while a passenger in the car Orcutt suffered the injuries for which he recovered judgment. The compensation for the return trip was not actually paid. The following question and answer by Mendicino bear directly upon the subject: "Q. State whether or not he made an arrangement with you whereby you would haul him and his ladders whenever he wanted you to? A. He was talking that way, but we didn't make no contract. I said I couldn't be ready all the time for him, because I have got something else to do. I said, 'Maybe, some time, if you need any work, that's what I'm doing.'"

It is impossible to draw any other inference from this testimony than that Mendicino was operating his car at the time of the accident for compensation or hire. They were entire strangers to each other, never having met before, and there is not a single circumstance from which an inference could be drawn that Mendicino or Orcutt contemplated that the work would be performed without charge. Neither is there any significance in the fact that the compensation was not actually paid for the return trip. Orcutt was injured through the negligence of Mendicino and, in place of paying him, brought suit against him to recover damages for the injuries he suffered. Where but a single inference can be drawn from the admitted or established facts, it is for the court and not the jury to draw such inference: Norlund v. Reliance Life Insurance Co., 282 Pa. 389, 391, 128 A. 93.

The provision in the policy that no liability was assumed while the automobile was being operated for the carrying of passengers for a consideration is plain and unambiguous and is a reasonable one. This insurance company had one rate for pleasure vehicles and vehicles operated by the owner for his own use and another higher rate where automobiles were operated for hire, and if the insured desired to embark in the more hazardous business it was his duty to secure a different policy and pay the higher rate.

This case is controlled by the cases of Rykill v. Franklin Fire Ins. Co., 80 Pa.Super. 492, and Gross v Kubel, 315 Pa. 396, 172 A. 649. In the Rykill case, there was a similar condition in the policy and the insured operated his car for the carrying of passengers for hire and an accident occurred. It was held that he could not recover. The Gross case was in its facts closely parallel to the case we are considering. There the insured, a member of a basketball team, was using his car for the purpose of transporting the team to another city to engage in a contest and was to be paid an amount equivalent to bus fare, or paid for the cost of oil and...