Polonitz v. Wasilindra

• Decision Date: 20 April 1944
• Parties: Polonitz v. Wasilindra (et al., Appellant)
• Court: Pennsylvania Superior Court

37 A.2d 136

155 Pa.Super. 62

Polonitz v. Wasilindra (et al., Appellant)

Superior Court of Pennsylvania

April 20, 1944

Argued March 14, 1944.

Appeals, Nos. 32 and 33, October T., 1944, fro judgment of C P., Montgomery Co., Feb. T., 1943, No. 32, in case of Walter Polonitz v. George Wasilindra et al.

Attachment execution proceeding.

Rule for judgment against garnishee for want of sufficient answers to interrogatories made absolute, opinion by Dannehower, J Garnishee appealed.

Henry S. Ambler, with him Frank R. Ambler, for appellant.

C Edmund Wells, for appellee.

Keller P. J., Baldrige, Rhodes, Hirt, Kenworthey, Reno and James, JJ.

OPINION

KENWORTHEY J.

Garnishee appeals from the judgment entered against it on interrogatories and answers. Plaintiff obtained judgment, in a trespass action, against Wasilindra and issued an attachment against his insurance carrier. ^[1]

For a reason, or reasons, which do not appear, Wasilindra's Pennsylvania motor vehicle operator's license had, prior to the issuance of appellant's policy on October 1, 1941, been revoked. In order to procure the renewal of the license, it became necessary, under the provisions of the Uniform Automobile Liability Security Act of May 15, 1933, P. L. 553, as amended, 75 PS 1253 et seq., that he prove his financial responsibility. Appellant issued its policy and then filed with the Secretary of Revenue the required Financial Responsibility Insurance Certificate for the purpose of complying with the provisions of the act. The policy was on a form entitled "Combination Automobile Policy." It named Wasilindra as insured; it described the automobile as a Dodge Sedan; and it stated the purposes for which the automobile was to be used as "pleasure and business."

Paragraph III is entitled "Drive Other Private Passenger Automobiles" and provides: "Such insurance as is afforded by this policy for bodily injuries or property damage liability applies when the declared use of the automobile is 'pleasure and business': (1) to the named insured, if an individual and the owner of the automobile . . . as insured, with respect to the operation of any other private passenger automobile by such named insured . . ." ^[2] The provision over which this controversy arises is contained in Condition No. 15, "that the insurance under the Drive Other Private Passenger Automobiles paragraph shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under a policy applicable with respect to the automobile or otherwise, against a loss covered under said paragraph."

Appellant, in its answers, averred that, at the time of the accident out of which Wasilindra's liability to plaintiff arose, Wasilindra was not operating his own automobile but the Oldsmobile Convertible Coupe of James W. Pender; that his liability was covered under Pender's policy with the Penn Mutual Indemnity Company of Reading, Pa.; that, under the terms of appellant's policy, appellant was liable secondarily only, or as an excess insurer; and that, in order to recover against appellant, plaintiff was bound to show that he had first exhausted his rights and remedies against Pender's insurer.

The basis of the lower court's position is well stated in the following paragraph of Judge Dannehower's opinion:

"When the garnishee insurance company issued its policy and filed its certificate, the defendant was again given the privilege of operating a motor vehicle upon our highways. This license was granted because the garnishee made it possible for defendant to comply with one form of proof of financial responsibility under the act. As alternatives, defendant might have given a bond or deposited cash in the sum of $ 11,000 as evidence of his ability to respond in damages 'arising out of the ownership maintenance, use or operation by him of a motor vehicle.' The protection intended by the act is the same regardless of any one of the three methods of compliance. See Sky v. Keystone Mutual Cas. Co., 150 Pa. S.Ct. 613, on page 616, 29 A.2d 230. It cannot be contended that the Legislature in specifying three possible ways of furnishing financial responsibility, all of which are to serve...