Speier v. Ayling

• Decision Date: 18 January 1946
• Docket Number: 4134
• Parties: Speier et ux. v. Ayling et al., Appellants
• Court: Pennsylvania Superior Court

45 A.2d 385

158 Pa.Super. 404

Speier et ux. v. Ayling et al., Appellants

No. 4134

Superior Court of Pennsylvania

January 18, 1946

Argued October 25, 1945.

Appeals, Nos. 167-170 incl., Oct. T., 1945, from judgment of C. P. No. 2, Phila. Co., June T., 1942, No. 936, in case of Leon Speier et ux. v. Robert Ayling et al.

Attachment execution proceeding. Before Bluett, J., without a jury.

Findings and judgment for plaintiff and against garnishees. Garnishees, respectively, appealed.

George L. Cogan, with him Samuel S. Herman, for appellant.

George L. Cogan, with him Samuel S. Herman, for Penna Threshermen and Farmers' Mutual Casualty Ins. Co. appellant.

Gerald A. Gleeson, for plaintiffs, appellees.

Baldrige P. J., Rhodes, Reno, Dithrich, Ross and Arnold, JJ. (Hirt J., absent).

OPINION

ARNOLD, J.

Leon Speier and his wife had final judgments on verdicts against Ayling: For the wife for personal injuries $ 600; for the husband for her expenses $ 150 and for the loss of her companionship (services) $ 150; and for Leon Speier $ 700 for damage to his automobile -- a total of $ 1600. The jury's verdict established that the negligence of Ayling was the proximate cause of the injury and damages. Ayling at the time was driving Speier's automobile and Speier was seated by his side.

Upon these judgments each plaintiff issued an attachment execution against Allstate Insurance Company (Ayling's carrier), and similarly against Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company (Leon Speier's carrier), each as garnishee. After interrogatories, answers and trial without a jury the court below entered judgments for the full amounts against both carriers, retaining control of any execution. Each insurance carrier appealed.

The questions involved require each carrier's liability first be determined as if no other carrier was concerned.

Allstate Liability. Allstate was carrier of Ayling, the driver and defendant in the original judgments. Its policy covered ^[1] him while driving any automobile by paragraph 4. Allstate concedes liability on this phase of all items except the item of $ 700 damage to Leon Speier's automobile, which it denies under a clause reading: "EXCLUSIONS. This policy does not apply under liability -- Coverage B. (property damage) . . . (f) to property owned by, . . . in charge of, . . . the insured."

Was Ayling, the driver, "in charge of" the Speier automobile at the time it was damaged? Ayling was the permissive driver of Speier, who was seated beside the driver. While Speier could control who could drive it, the actual control of the vehicle was passed by him to Ayling, and Speier had no control of the driving of the vehicle at the time of the accident. In Rodgers v. Saxton, 305 Pa. 479, 158 A. 166, a wife owned the automobile and was seated beside her husband who was the driver. They were on their way to Atlantic City for a vacation. ^[2] A collision occurred with a car driven by Saxton. Rodgers and his wife sued Saxton. The jury found that Saxton was negligent, and also that the negligence of Rodgers (driver of his wife's automobile) contributed, and returned a money verdict in favor of Mrs. Rodgers. The Supreme Court held, in an exhaustive opinion by Justice (now Chief Justice) Maxey, (page 488) "The negligence of the driver of a vehicle can be imputed to a passenger therein only when the evidence justifies a finding of the passenger's right to a share in the control of that vehicle at the time of the negligence . . . whether the driver and the passenger were engaged at the time in a 'joint enterprise' or not." In the opinion the court gave full weight to the fact that Mrs. Rodgers was the owner of the vehicle and was seated beside her husband, her permissive driver, but affirmed her judgment.

The judgments in the original action of Leon Speier and Matilda Speier, his wife, against Ayling are conclusive that "at the time of the negligence Speier did not share in the control of that vehicle." Were it otherwise the negligence of Ayling would be imputed to Speier, thus defeating the latter's recovery for car damage. Since Speier did not share in the control, Ayling was in sole control at the time of the negligence. Being in sole control by permission of the owner, the latter's automobile (property) was "in charge of" Ayling, the insured. Cf. Sky v. Keystone Mutual Casualty Co., 150 Pa.Super. 613, 29 A.2d 230. If Speier, the owner, had not been in the car surely it would be "in charge of" Ayling, the permissive driver. The situation does not change merely because the owner is present, for the only difference is as to the time when the permission was given. Therefore, the liability of Allstate if there were no other insurance, is for $ 900 of the items of the judgments.

Threshermen Liability. It was the insurance carrier of Leon Speier, the owner of the vehicle, and its policy provided ^[3] that the coverage of the policy "is made available" to the insured's permissive driver (Ayling). Threshermen under Coverage A -- Bodily Injury Liability -- covenanted "To pay on behalf of the insured [by extension, Ayling] all sums which the insured [by extension, Ayling] shall become obligated to pay by reason of the liability imposed . . . by law for damages, including damages for care and loss of services, because of bodily injury . . . sustained by any person . . . caused by accident and arising out of the . . . use of the automobile." (Emphasis supplied.)

The Exclusion Clause that the extended insurance "does not include coverage for (b) any person . . . with respect to bodily injury . . . who is a named insured," does not apply because the named insured is Leon Speier. The carrier could have excluded the wife of the named insured but did not. Instead, the coverage was of damages to "any person."

As to the item of $ 700 damage to Speier's car Threshermen is not liable. The policy provides, "3. Definition of 'Insured.' The unqualified word 'insured' as used in this policy shall mean the individual . . . named in the statements of this policy." That individual was Leon Speier. Under "Exclusions" it provides "This Policy Excludes Coverage For Any Liability Of The Assured 3. For damage to property owned [by] or in charge of . . . the insured." (Emphasis supplied.)

Threshermen contends that it is not liable because Allstate appeared and defended Ayling in the original trial and thereby was estopped from denying liability under Malley v. American Indemnity Company, 297 Pa. 216, 146 A. 571. This is not so because Allstate executed a reservation of rights or non-waiver agreement ^[4] by which Ayling requested Allstate to defend and agreed that such defense was "without prejudice to the disclaimer of liability now asserted." ^[5] Threshermen argue that Allstate could not amend its answers at trial to plead the non-waiver...