Appeals, Nos. 277 and 284, Jan. T., 1954, from order of Court of Common Pleas No. 4 of Philadelphia County, June T., 1950, No. 6199, in case of James Devlin, Admr., Estate of Rosella Devlin, deceased, v. Joseph Piechoski and Indemnity Insurance Company of North America. Order granting new trial reversed; order refusing judgment n.o.v. affirmed; reargument refused January 13, 1955.
George W. Alexander, Jr., with him D. T. Spagnoletti and Walter E. alessandroni, for plaintiff.
Thomas Raeburn White, Jr., with him Thomas Raeburn White, Richard W. Hopkins and White, Williams & Scott, for garnishee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Rosella Devlin was killed when the airplane in which she was riding as the sole passenger crashed with the pilot Joseph Piechoski who had rented the plane from Ernest Buehl, insured for aircraft liability by the Indemnity Insurance Company of North America. Her father, James Devlin, administrator of the estate, brought survival and death actions against Joseph Piechoski who failed to enter an appearance or answer, whereupon the plaintiff obtained judgment in default and damages were later assessed in the amount of $21,474.16.
On September 27, 1951, the plaintiff began garnishment proceedings against the Indemnity Insurance Company of North America. Replying to the interrogatories
filed by the plaintiff, the insurance company produced a photographic copy of the policy which provided inter alia: "The unqualified word 'insured' wherever used in Coverages A, B, and C, and in other parts of this policy when applicable to such coverages, includes the named insured and, except where specifically stated to the contrary, also includes any person while using the aircraft and any person or organization legally responsible for the use thereof, provided the actual use of the aircraft is with the permission of the named insured."
The garnishee filed a plea of Nulla Bona, averring that it was without liability because the defendant had violated a provision of the policy to the effect that the airplane was not to be flown in violation of Federal Regulations for Civil Aviation applicable to minimum safe altitudes.
As the result of the trial which followed upon the issue raised by the garnishee's plea, the jury returned a verdict in favor of the plaintiff. The Trial Court ordered a new trial which order was affirmed by this Court (Devlin v. Piechoski, 374 Pa. 639).
At the second trial the garnishee refused liability because of an endorsement to the policy which provided that liability was excluded if any insured knowingly operated the aircraft in violation of Federal Regulations for Civil aviation applicable to minimum safe altitudes. the plaintiff denied that the endorsement in question was at all effective averring that it was not countersigned or dated. The ...