Powers v. Wells

• Decision Date: 04 January 1935
• Docket Number: 338-1934,337-1934
• Parties: Powers et al., Appellants, v. Wells et al
• Court: Pennsylvania Superior Court

176 A. 62

115 Pa.Super. 549

Powers et al., Appellants, v. Wells et al

Nos. 337-1934, 338-1934

Superior Court of Pennsylvania

January 4, 1935

Argued October 16, 1934

Appeals by plaintiffs from judgments of C. P., No. 1 Philadelphia County, December T., 1930, No. 10888, in the case of Margaret Powers, a minor, by her next friend and father, Richard Powers, and Richard Powers, in his own right v. James Wells et al.

Attachments sur judgment. Before Brown, J.

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

Verdicts directed for garnishee and judgments entered thereon. Plaintiffs appealed.

Errors assigned, among others, were judgments.

Affirmed.

Robert M. Bernstein, and with him Milford J. Meyer, for appellants.

Henry S. Ambler, and with him Frank R. Ambler and Harry S. Ambler, Jr., for appellee.

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

OPINION

Baldrige, J.

About 3:20 P. M. on May 9, 1930, the minor plaintiff was struck and injured at Midvale Avenue and East River Drive, Philadelphia, by an automobile owned by Elise J. B. Edmonds, and operated by James Wells, employed by Mr. and Mrs. Edmonds to do odd jobs around the house, drive Mr. Edmonds to the station and the children to and from school. The Edmonds' home is at Whitemarsh, about seven miles north of the John Storey Jenks School at Chestnut Hill attended by the children. Wells usually left the house about 3:00 o'clock to be at the school at 3:30, but on the afternoon of the accident he left about 2:30 and went to 16th and Fairmount Avenue, approximately ten miles beyond the school, to obtain some parts for his own automobile. It was on his way to the school from this place, and when he was about six miles from the school, that the accident occurred. Suit was brought against Wells by the minor plaintiff, by her next friend, her father, and her father in his own right. Judgments were obtained by both plaintiffs.

Mrs. Edmonds carried insurance with the Yorkshire Indemnity Company. The policy provided, inter alia, that "The insurance . . . . is so extended as to be available . . . . to any person operating, and/or to any other person while riding in and/or to any other person, firm or corporation legally responsible for the operation of any of the automobiles described in the warranties, provided such use or operation is lawful and with the permission of the named assured, or of an adult member of assured's family." The appellants issued attachments sur judgments, summoning the insurance company as garnishee. The case came on for trial, and verdicts were rendered in favor of the garnishee, in accordance with directions of the trial judge.

The question that presents itself is whether the plaintiffs successfully carried the burden of proving that Wells had either express or implied permission to use the car at the time and place of the accident. The court below found there was no such proof, and we think that conclusion is correct. The plaintiffs to show authority relied upon the testimony of Wells, who said that on several occasions he had permission to use the Edmonds' car, but when asked, "Did you get special permission or ask about using it, or did you just use it and later on find that it was all right?" he answered, "If they were not home I would take it and she might ask where I had been, I might stay longer than I should, and she would ask where I had been, and I would tell her so-and-so, something like that." This testimony is too vague to establish a common practice on the part of the insured to permit Wells to use the automobile for his own purposes. Assuming that Wells had, on several occasions, permission to use his employers' automobile, that was insufficient proof of a general practice or common usage, justifying the implication that he had permission from his employers or an adult member of the family on the afternoon of the accident to use this car for his personal purposes. The lower court held further that Wells acted contrary to Mrs. Edmonds' express instructions to him "not to go down to the heart of the city." It is unnecessary to determine whether the place of the accident was in the "heart of the city," for there was a clear failure on the part of the plaintiffs to carry the burden of showing either implied or express permission to use the automobile where the accident occurred. Express authority to use a car for a special purpose does not extend this right for all purposes. Permission, therefore, to use the car to carry the children home from school can...