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FLAGG ET UX. v. PULEIO. (04/16/59)

April 16, 1959

FLAGG ET UX., APPELLANTS,
v.
PULEIO.



Appeal, No. 210, April T., 1958, from judgment of Court of Common Pleas of Allegheny County, April T., 1956, No. 1905, in case of Robert H. Flagg et al. v. Eugene Puleio et al. Judgment affirmed.

COUNSEL

Samuel J. Goldstein, for plaintiffs, appellants.

Robert E. Wayman, with him Dickie, McCamey, Chilcote & Robinson, for garnishee, appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 189 Pa. Super. Page 330]

OPINION BY ERVIN, J.

This is an appeal from an order of the court below entering judgment for Allstate Insurance Company,

[ 189 Pa. Super. Page 331]

    garnishee, on plaintiffs' motion for judgment on the pleadings filed in an attachment execution instituted by the plaintiffs, Robert H. Flagg and Lola Flagg, his wife, against Eugene Puleio, the defendant, and Allstate Insurance Company (hereinafter called "Allstate") as garnishee, based upon judgments in favor of plaintiffs in an action in trespass against the defendant Puleio. This action was not defended by Puleio and judgments were had in default and on October 25, 1954 the damages were assessed by a jury in favor of the wife in the amount of $1,900.00 and in favor of the husband in the amount of $1,000.00.

On January 18, 1953 the defendant Puleio, at the request of the wife-plaintiff, was driving her to her home in an Oldsmobile automobile owned by plaintiffs; defendant fell asleep while en route; the car ran off the road and struck a pole, as a result of which the wife-plaintiff suffered personal injuries and husband plaintiff's car was damaged. At the time of the accident defendant Puleio owned a Studebaker automobile and was covered by a liability insurance policy which had been issued to him by The Travelers Indemnity Company. The suit papers in the trespass action were duly forwarded by Puelio to The Travelers Indemnity Company, which denied its liability and returned the papers to Puleio with the statement that they should be forwarded to Allstate. The suit papers were never forwarded to Allstate.

At the time of the accident plaintiffs had coverage under a policy issued by Allstate which protected them against liability for personal injuries and loss or damage to property arising from the operation of their Oldsmobile car as well as for damages to the vehicle arising from collision or upset. The policy likewise indemnified Puleio as an unnamed insured while driving the Flaggs' car as appears under clause X, Definitions,

[ 189 Pa. Super. Page 332]

    which provides: "1. The unqualified word 'insured', wherever used with respect to the liability insurance, includes the named insured, spouse, and: (a) with respect to the owned automobile or a substitute automobile, any other person or organization legally responsible for its use, provided the actual use of the automobile is by the named insured or spouse or with the permission of either; and (b) with respect to any non-owned automobile, any other person or organization, not owning or hiring it, but legally responsible for its use by the named insured or spouse." The policy also provides: "2. NOTICE: In the event of accident, occurrence or loss, written notice containing all particulars shall be given by or for the insured to Allstate as soon as practicable, and in case of theft the insured ...


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