Using the above definitions, defendant did not have permission to use the vehicle in the way, and at the place, he was using it when the accident occurred. The express permission he received extended only to taking the truck to the repair shop and returning it to the assured. He attempts to bring the use at the time of the accident within the express permission granted because he intended to return it to the company when the pleasure ride was over.
Even if this was his intention,
the devious route taken would exclude coverage under the policy. He was granted permission to drive the vehicle from the repair shop to the company's premises. Instead of doing that, he drove it from the repair shop to visit an acquaintance, picking up some friends on the way. When the accident happened, he was on his way to deposit these friends where he had picked them up (see Findings Nos. 14 and 15). His claim that he was driving under the express, granted permission is rejected.
Defendant's alternate claim, that he was impliedly permitted to drive the car as his own, is not supported by the facts as found.
His employer testified that he had no knowledge that the defendant ever used the truck for any personal purposes. Defendant stated that his employer should have known it was being used for personal purposes because of the amount of gas used in it, but he gave no specific testimony as to the amount of gas used on any specific occasion. The facts do not warrant a finding that the assured gave implied permission to his employee to use the car as his own.
The evidence falls far short of establishing a course of conduct of such character and duration that knowledge of the use of the truck at the time of the accident could be imparted to the owner, implying consent.
The late Justice Chidsey used the following applicable language in Beatty v. Hoff, 1955, 382 Pa. 173, at page 179, 114 A.2d 173, at page 175:
'Assuming that the testimony sufficiently established the son's occasional use of the insured Buick, there was no proof whatsoever that its use on such few occasions (or on the night of the accident) was with the father's knowledge. Nor was the use sufficiently frequent to impute knowledge to the father.'
Bilyi had no permission, express or implied, to be driving the insured vehicle for pleasure at the time of the accident. Plaintiff, therefore, is not liable under the terms of the above-mentioned insurance policy.
III. Conclusions of Law
The trial judge adopts paragraphs 1, 2, 3 with subparagraph c reworded to read 'The use of the truck in the evening hours for social purposes at a time when defendant was drinking intoxicating liquids,' 4, 5, 6, and 7 of plaintiff's requested Conclusions of Law as Conclusions of Law of the court. Also, the trial judge concludes that the court has jurisdiction of the parties and the subject matter of this action.
Defendant's Requests for Conclusions of Law are denied insofar as they are inconsistent with the foregoing Conclusions.
A declaratory judgment will be entered in the form submitted by plaintiff at the trial.