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AETNA CAS. & SUR. CO. v. DE MAISON

August 12, 1953

AETNA CASUALTY & SURETY CO.
v.
DEMAISON et al.



The opinion of the court was delivered by: GRIM

On the evening of January 6, 1950, Emil Schick, Jr. wanted to use the automobile. As had been his custom he asked his father for permission to use it, and permission was granted. The father testified:

 'He was upstairs getting dressed, and he came down in the parlor and he asked me: Dad, can i have the car tonight? And I said yes.

 'Q. Did he say what he wanted to use it for? A. He didn't say, but at the same time his mother asked him, where are you going? * * *

 'Q. Where did he say he was going? A. To the Yorktown Theatre in Jenkintown. * * *

 'Q. That was all that was said about where he was going? A. That was all, as I remember.'

 Emil, Jr. then took the car and used it to drive to Messina's Inn in Ardsley. Ardsley is a suburb of Philadelphia about three miles from Jenkintown. In Messina's Inn Emil, Jr. was with a group of friends, including a Mrs. Leona DeMaison, when it was decided among the group that they would go to a diner in Willow Grove, which was three or four miles away. Mrs. DeMaison, with Emil, Jr. in the car beside her, drove it from Ardsley, and two or three miles from Ardsley on the way to Willow Grove she was involved in an accident with a parked automobile. Relative to the operation of the Schick car Mrs. DeMaison testified:

 'Q. Now, Mrs. DeMaison, as I understand it certain arrangements were made with respect to using automobiles to get your entire party up to this place in Willow Grove; is that right? A. That is right.

 'Q. What happened next? A. Well, I think I had suggested in a joking way that I would drive Mr. Schick, Jr.'s car and * * *

 'Q. I see. Go ahead. A. When we went out to the car I handed Mr. Schick the keys and said, you drive. And he said, no, you go ahead and drive. * * * I don't remember the correct timing on that, but we left Messina's and we headed up Edge Hill Road. Well, I would say about half a mile to three quarters of a mile away Mr. Schick turned to me and I said, do you want to drive? And he said, no, you are doing very well. And it was about two miles from that, as we were rounding the curve there in Roslyn, that the accident occurred.'

 As to the operation of the car by Mrs. DeMaison, Emil Schick, Jr., testified:

 'Q. On the night of this accident how did it come about that she drove the car? A. Well, we had discussed it one time. Mrs. DeMaison had said she had never driven a Dodge before, and on this particular night she approached me and asked me whether I would join the rest of the group in going up to the diner to eat, and I said, yes, and I said, incidentally, you have always wanted to drive the car, how about driving it tonight? And then the accident happened.'

 At the time of the accident Emil Schick, Sr. had public liability insurance on his car with Merchants Indemnity Corporation of New York. The policy contained a clause known in insurance language as an omnibus clause, which reads as follows:

 'Definition of insured: With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'Insured' includes the named Insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided ...


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