situation in the present case. The purpose for which Emil Schick, Jr. received permission to use the car on the night of the accident was his transportation and general amusement. The car was being operated for these purposes when the accident happened.
The form of omnibus clause in the present case seems to be included in almost all automobile public liability insurance policies and the question of permissive use under this clause has become a fairly common one. It has come up in almost every state in the country over a period of many years, with the resulting court decisions being in conflict. The problem sometimes arises from a deviation from a designated permitted trip as in Laroche v. Farm Bureau Mutual Automobile Insurance Co., 335 Pa. 478, 7 A.2d 361. Sometimes it arises when, as in the present case, a permitted driver makes use of a car by permitting another person to drive it. In Pennsylvania where there is a substantial deviation from a designated permitted trip, the insurance companies have been absolved from liability,
but they are not relieved from liability where a permitted driver uses a car by allowing another person to drive it, the insurance companies should, and easily could, so state in their policies. Until they do, they will be bound by the precise meaning of the words they have used and in Pennsylvania they will be held liable at least as long as Conrad v. Duffin
At the time of the accident Mrs. DeMaison's husband owned an automobile which was insured by the plaintiff, The Aetna Casualty & Surety Company. The Aetna policy contained a clause insuring both Mr. DeMaison and Mrs. DeMaison in the event of either of them being involved in an accident while driving another car. The Aetna insurance, however, by the terms of the Aetna policy, applied only as excess insurance above whatever public liability insurance might cover the other car driven by Mr. or Mrs. DeMaison at the time of an accident. At the time of the accident, therefore, Mrs. DeMaison was covered by the excess insurance clause of the Aetna policy.
After the Schick car, driven by Mrs. DeMaison, had struck a parked car, as herein described, the owner of the parked car sued Mrs. DeMaison for the property damage to his car before a Justice of the Peace. Mrs. DeMaison notified an authorized agent of the Merchants Indemnity Corporation of the suit. He advised Mrs. DeMaison to pay no attention to the suit and told her that his company would file an appeal to the Montgomery County court from the judgment which would be rendered against her by the Justice of the Peace. Following his instructions Mrs. DeMaison did not appear before the Justice of the Peace. Judgment was entered against her, but by mistake the Merchants Indemnity Corporation failed to take an appeal to court until it was too late to file an appeal. Mrs. DeMaison then, because of the judgment, was faced with a constable's levy on her property and also the loss of her automobile driver's license. The Merchants Indemnity Corporation took the position that it was not liable under the terms of the policy and refused to do anything further about the suit and judgment against Mrs. DeMaison. By this time the Aetna Company had been notified of the situation. To protect Mrs. DeMaison, and in view of its excess insurance, the Aetna loaned Mrs. DeMaison $ 250, which was sufficient to settle the claim of the owner of the parked car. Mrs. DeMaison used the $ 250 for this purpose.
The Merchants Indemnity Corporation contends that the payment by the Aetna was as a volunteer and that the Aetna is not entitled to reimbursement from the Merchants. It is clear from the loan agreement by which the Aetna paid the $ 250 to Mrs. DeMaison that the payment was only a loan, although it was to be repaid only out of the proceeds of Mrs. DeMaison's claim against the Merchants Indemnity Corporation. Consequently, the Merchants Indemnity Corporation owes Mrs. DeMaison $ 250
because of the damage to the parked car, and if Aetna proceeds to enforce its rights, Mrs. DeMaison will be compelled to pay $ 250 to the Aetna after she has received this sum from the Merchants. The Aetna, of course, will have no right to any of the proceeds of the personal injury claim which is being made by the passenger in the car which Mrs. DeMaison was driving.
The case is in this court by reason of diversity of citizenship. A passenger in the Schick car, driven by Mrs. DeMaison, has sued Mrs. DeMaison for personal injuries for a sum which properly is in excess of $ 3,000. Consequently, this court has jurisdiction of the case.
The statements of fact and law in the foregoing opinion will constitute the court's findings of fact and conclusions of law in the case.
It is ordered and decreed as follows:
1. Merchants Indemnity Corporation of New York is liable under its policy of insurance in any action or actions for property damage or personal injuries brought against Leona DeMaison, arising out of the motor vehicle accident hereinbefore recited, up to the limit of its policy, provided that it shall properly be found that Leona DeMaison was negligent in said accident or that a judgment has been rendered against her by reason of said accident.
2. The policy of insurance of Merchants Indemnity Corporation of New York, hereinbefore referred to, constitutes the primary coverage in any action or actions for property damage or personal injuries against Leona DeMaison arising out of the motor vehicle accident hereinbefore described.
3. The coverage in the policy of The Aetna Casualty and Surety Company constitutes solely excess insurance and The Aetna Casualty and Surety Company is not liable and shall not be liable in any action or actions for property damage or personal injuries brought against Leona DeMaison, arising out of the aforesaid motor vehicle accident, except to the extent that the policy of Merchants Indemnity Corporation of New York does not cover the same by reason of its monetary limits.
4. The Merchants Indemnity Corporation of New York is legally obligated under its aforesaid policy of insurance to defend all and any action or actions for property damage or personal injuries brought against Leona DeMaison arising out of the aforesaid motor vehicle accident.