Appeal, No. 74, Jan. T., 1957, from order of Court of Common Pleas of Carbon County, Jan. T., 1953, No. 49, in case of Delbert Adam Gougher v. Lloyd Hansler et al. Order affirmed.
Albert H. Heimbach, for appellant.
Thomas D. Caldwell, with him Wm. H. Bayer, Carl B. Stoner, and Caldwell, Fox & Stoner, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
This suit was instituted by writ of attachment-execution sur judgment for the plaintiff Gougher against the defendant Lloyd Hansler, summoning as garnishee the State Automobile Insurance Association. The plaintiff recovered the judgment at the uncontested trial of his action against the defendant for damages for personal injuries received while he was a passenger
in an automobile driven by the defendant. The automobile was the property of the defendant's father and was covered by a policy of liability insurance issued to the owner. The policy contained an "omnibus clause" which defined the term "Assured" as including, inter alia, "any person while using the automobile ... with the permission of the named Assured, or, if the named Assured is an individual, with the permission of an adult member of the named Assured's household ...".
The question for determination in the court below was one of fact as to whether the defendant's use of the automobile at the time of the accident had been with the consent of an adult member of the assured's household. An issue was framed accordingly with the approval of the court and was tried to a jury with the result that the jury found that the defendant had had such consent. On the garnishee's motion, the court below granted a new trial on the ground that the jury's verdict was against the weight of the evidence. This appeal by the plaintiff followed. The propriety of the lower court's action in granting a new trial is the sole question raised by the appeal.
The appellant's burden is a heavy one, and especially so in the light of the questionable character of the evidence adduced by him at the trial to which we shall make reference. As recently as Davis v. Rider, 387 Pa. 14, 16, 127 A.2d 108, we reiterated that "An order awarding new trial will not be reversed unless a palpable abuse of discretion by the trial judge is disclosed, or unless an erroneous rule of law controlling the outcome is certified by him as the sole reason for his action: Foster v. Waybright, 367 Pa. 615, 80 A.2d 801." And we again quoted from Frank v. W. S. Losier & Co., Inc., 361 Pa. 272, 276, 277, 64 A.2d 829, as we had in Bellettiere v. Philadelphia, 367 Pa. 638, 643, 81 A.2d 857, that "One of the least assailable grounds for the
exercise of such power [to grant a new trial] is the trial court's conclusion that the verdict was against the weight of the evidence and that the interests of justice therefore require that a new trial be awarded; ...