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DARIANO v. BLOCKSOM (ET AL. (05/27/57)

May 27, 1957

DARIANO
v.
BLOCKSOM (ET AL., APPELLANT).



Appeals, Nos. 165 and 166, Jan. T., 1957, from judgments of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1953, No. 1214, in cases of Edith Dariano, individually and as administratrix of estate of Joseph Tosti, deceased, v. Howard B. Blocksom and Allstate Insurance Company. Judgments affirmed.

COUNSEL

James M. Marsh, with him Edward C. German and LaBrum & Doak, for appellant.

S. Regen Ginsburg, with him H. P. Abramson and Jay B. Leopold, for appellee.

Before Jones, C.j., Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Arnold

[ 389 Pa. Page 97]

OPINION BY MR. JUSTICE ARNOLD

Edith Dariano, individually and as administratrix of Joseph Tosti, obtained judgments in the Common Pleas of Philadelphia County against Howard B. Blocksom, for damages for the death of Joseph Tosti which occurred by reason of the negligence of Howard B. Blocksom in driving his automobile. Upon these judgments the plaintiff in both capacities issued an attachment execution naming Allstate Insurance Company as garnishee. Interrogatories were filed to which the defendant answered and appended a statement of new matter. The facts are not in dispute, and on these facts the court below entered judgments for the plaintiff against the garnishee and it appeals.

Blocksom was insured by the garnishee under what is commonly called a policy of automobile liability insurance.

[ 389 Pa. Page 98]

His application and policy for said insurance substantially set forth the following statement: "... no insurer has cancelled or refused any automobile insurance nor has any license or permit to drive an automobile been suspended, revoked or refused." The garnishee claims a breach of this condition by reason of the fact that the insured, who was a resident of the state of Virginia, had received from the Commonwealth of Pennsylvania, Department of Revenue, Bureau of Highway Safety, a paper entitled, "Official Notification of Withdrawal of Motor Vehicle Privileges," which contained the statement, "This notice applies to your reciprocity privileges in Pennsylvania."

The answer of the garnishee does not show a breach of the condition of the application made by Blocksom in which it was stated that no license or permit to drive an automobile had been suspended, revoked or refused. The only authority which could revoke or refuse any license or permit to drive an automobile would be the authority which granted the license or permit. Such license or permit was issued by the state of Virginia, and had never been revoked or suspended by it. If the insurer-garnishee desired a warranty from the insured that there had not been a withdrawal of motor vehicle privileges by another state under a reciprocity statute, it should have made such inquiry.

It is obvious that the insured made no false statement in his application for automobile insurance, as there is no mention of "reciprocity privileges" either in the application for insurance or the policy itself. Since the insurer drew the application it is clear that such application must be construed most strongly against the insurer, as it framed the questions eliciting the desired information.

Erickson v. Allstate Insurance Company, 126 F.Supp. 100, aff. 227 F.2d 755, is somewhat similar to the present case. There the ...


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