Shane v. Commercial Casualty Ins. Co.

• Decision Date: 11 June 1942
• Docket Number: No. 941.,941.
• Citation: 48 F. Supp. 151
• Parties: SHANE v. COMMERCIAL CASUALTY INS. CO. et al.
• Court: U.S. District Court — Western District of Pennsylvania

48 F. Supp. 151

SHANE v. COMMERCIAL CASUALTY INS. CO. et al.

No. 941.

District Court, E. D. Pennsylvania.

June 11, 1942.

COPYRIGHT MATERIAL OMITTED

Langdon W. Harris, Jr., of Philadelphia, Pa., for plaintiff.

Samuel S. Herman, of Philadelphia, Pa., for garnishee.

GANEY, District Judge.

This matter comes before the Court on a motion for judgment n. o. v. as well as on a motion for a new trial, both of which will be considered separately. The facts of the case show that on or about February 12, 1940, Thomas Barger, who was employed as a truck driver, happened to stop his truck at a street intersection in the City of Trenton and noticed the automobile of one, Dr. James Burns, of that City, which was being driven at the time by his secretary, a Miss White, was along side his car. He saw that a fender was in need of fixing and upon asking her whether he could fix it she referred him to Doctor Burns. In the course of a day or so he called Doctor Burns in connection therewith, and later went to his office and asked him about fixing the fender on the automobile, which was a 1937 Dodge automobile, the back fender of which had a broken bracket and was bent. Doctor Burns gave the keys to Barger, directing him to take and fix the car, the exact instructions concerning which are conflicting in that the testimony shows in one instance that he was to fix and repair the fender, and in another place that nothing at all was said whether he should replace or repair it. Pursuant to this conversation with Doctor Burns, Barger took the car to one Richard Tyndall, who was engaged in the body and fender business, where he intended to have the necessary work done, and on account of the price which Tyndall wanted he took the car to the Fair Grounds in Trenton, where he did the work himself. Unable to complete the work before that evening, he returned with the car to Doctor Burns' office at about 6:30 P.M., at which time he explained to him that it was impossible for him (Barger) to finish the job, and inquiry was made of the Doctor as to whether he should leave the car with him. Doctor Burns then instructed him to take his sister to East Trenton and afterward to take the car back and to finish the job, which he wanted done by the next morning around 9:30 or 10:00 o'clock. Barger took Doctor Burns' sister to East Trenton and then returned to his home and early the next morning he left with the car at about 4:30 A.M. for Philadelphia in order to get a new fender, and while en route to the City of Philadelphia, due to a blinding snow storm, he struck the plaintiff, severely injuring him. The plaintiff, Joseph Shane, brought suit against Barger and a verdict of $40,000 was entered on his behalf. Pursuant to the securance of this judgment, plaintiff brought this attachment execution by reason of a certain policy of insurance which the garnishee, the Commercial Casualty Insurance Company, had with the owner of the car, Doctor Burns, the pertinent portions of which policy are as follows:

"III. Definition of `Insured'. The unqualified word `insured' wherever used in Coverages A and B and in other parts of this policy, when applicable to these Coverages, includes not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the declared and actual use of the automobile is `pleasure and business' or `commercial', which is defined herein, and provided further that the actual use is with the permission of the named insured. The provisions of this paragraph do not apply:

* * * * * *

"(c) to any person or organization, or to any agent or employee thereof operating an automobile repair shop, public garage, sales agency, service station, or public parking place with respect to any accident arising out of the operation thereof."

The garnishee's motion for judgment n.o.v. is based on the contention that the defendant, Thomas Barger, while driving the automobile of the insured, Doctor Burns, was not covered by the terms of the policy in that it is denied that the use of the car at the time and place of the accident was with the permission of the named assured, and for the further reason that his employment at the time was such as to make the policy inapplicable to him.

In making disposition of the motion for judgment n.o.v., recourse must be had to the testimony to find out just what the instructions were in connection with the use of the automobile of Doctor Burns by the defendant, Thomas Barger. If, of course, the facts clearly show that no permission was had by Barger to use the car at the time of the accident, then the use thereof was not with the permission of the assured and the motion for judgment n. o. v. would be in order. However, an examination of the record discloses that there was a conflict as to the actual instructions with respect to the use of the car, in that Doctor Burns testified that the defendant, Barger, was to take the car and fix and repair it, while the defendant, Barger, said at one place in his testimony there were no instructions whether to replace or repair the fender. Again, there is testimony by Doctor Burns that the car was to be taken home and finished, while the defendant Barger's testimony at one point was that "he said I could keep the car until I finished and he wanted the car finished for sure by the next morning" (p. 13). This conflict in the testimony was a matter which only a jury had the right to resolve and not for the Court to determine and say as a matter of law what the facts were concerning the exact nature of the duties to be rendered by Barger. The garnishee also contends that under all of the evidence of the case there was such a deviation from the instructions given which brought the driver of the car outside the terms of the policy. With this contention I likewise disagree. The contract of insurance to be here construed was entered into in New Jersey by a resident of New Jersey with a company in New Jersey, and it is a familiar rule of law that the construction and validity of a contract is governed by the law of the place where it is made. Here, as has been indicated, the domicile of the parties, the place of execution and performance are confined throughout to the jurisdiction of New Jersey, and accordingly the construction which the New Jersey courts place upon the contract is the one to be adopted in this form. 5 R.C.L. 931: Evans v. Cleary, 125 Pa. 204, 210, 17 A. 440, 11 Am.St.Rep. 886.

As I view the case, the inquiry here concerns itself with (1) what were the instructions, (2) was there a deviation from instructions, and (3) if so, did such deviation as the evidence discloses, serve to end the driver's permission to operate the car? If we examine the authorities in New Jersey, we find that Rikowski v. Fidelity & Casualty Company, 117 N.J.L. 407, 189 A. 102, 104, is directly contra to the defendant's contention here. In that case, the chauffeur of a car deposited his employer at Bamberger's Department Store with instructions from the owner to park the car, as there was no parking place immediately available, and return for her within an hour. After leaving her off and driving for a few blocks, he picked up some friends of his and took them to their home, and while so doing drove into and injured the plaintiff. In the suit which followed, it was contended by the insurance company that there was such a deviation from instructions given that no liability could be imposed on the company under the terms of the policy. However, a judgment was obtained by the plaintiff, and the Court of Errors and Appeals affirmed the judgment of the Lower Court, Rikowski v. Fidelity & Casualty Company, 116 N.J.L. 503, 185 A. 473, holding that in the first instance, since permission to use the car was given to the driver, that "under the facts of the case and within the meaning of the policy such deviation from instructions as the evidence discloses did not serve to end the driver's permission to operate the car". In Penza v. Century Indemnity Company, 119 N.J.L. 446, 197 A. 29, it is contended by the garnishee that the New Jersey authorities repudiate the doctrine of "initial permission" which is good until the vehicle is returned. However, an examination of the facts in that case shows that the defendant, a chauffeur, was given definite instructions by the owner to take his automobile to the defendant's boarding house and park it in the rear thereof, due to the fact that the defendant had told the owner that he had a bad cold and wished to go to bed. The defendant took the car to his boarding house, parked it and more than an hour later, feeling better, came out of the house and took the car on a ride of his own during which he collided with and injured the plaintiff. In this case, it will be noted that the permission granted to the defendant to take the car home and to park it had ceased at the time of the injury to the plaintiff for the reason that after the defendant took the car to his boarding house and parked it there, pursuant to the instructions given by its owner, the permission granted was exhausted and his leaving the house after an hour and taking the car for a pleasure ride of his own was an embarking on a new enterprise having no remote connection with his owner's instructions. I think there is nothing in this case which in any wise impairs the doctrine of the Rikowski case, supra, but in fact it will be noted it quotes the same with approval.

In the instant case, as has been said above, it was properly decided by the Trial Judge to submit to the jury the question of exactly what the instructions were and for them to make a factual finding thereon, for if the Court were to say what the instructions were it would be substituting itself for the jury, since under the Act of April 22, 1905, P.L. 286, 12 P.S.Pa. §§ 681-683, judgment cannot be entered notwithstanding the verdict where the...