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VOLK v. CACCHIONE. (05/08/59)

May 8, 1959

VOLK, APPELLANT,
v.
CACCHIONE.



Appeal, No. 90, March T., 1958, from order of Court of Common Pleas of Erie County, May T., 1952, No. 497, in case of Gladys M. Volk, administratrix of the estate of Robert F. Volk, Jr., deceased, v. Norman Cacchione, a minor, et al. Judgment affirmed. Attachment execution sur judgment. Verdict entered for plaintiff in amount of $5,858; defendant's motion for judgment n.o.v. granted and judgment entered, opinion by EVANS, P.J. Plaintiff appealed.

COUNSEL

John A. Spaeder, with him Will J. Schaaf, and Marsh, Spaeder, Bauer, Spaeder & Schaaf, for appellant.

Frank B. Quinn, with him Quinn, Leemhuis, Plate & Dwyer, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bell

[ 395 Pa. Page 637]

OPINION BY MR. JUSTICE BELL

The question involved is narrow: Did plaintiff prove that young Chris DeGeorge was the named insured or if not, was the automobile driven with the permission of the named insured?

On May 26, 1950, East High School in Erie, Pennsylvania, was holding its annual Senior Prom at the Masonic Temple in Erie, Pennsylvania. Attending the prom were Robert Volk, Norman Cacchione, 18 years old, and Chris DeGeorge, 19 years old. Because his

[ 395 Pa. Page 638]

    own car was out of order, Cacchione and his date (girl friend) went to the dance in an automobile driven by one John Maries. Besides Maries and Cacchione and their dates, there were two other couples, making a total of eight persons in the Maries car. At the dance, Cacchione complained to his friend, Chris DeGeorge, about the crowded conditions in the Maries car. In order to help out Cacchione, young Chris DeGeorge consented to let Cacchione take the car which he, DeGeorge, had been using and DeGeorge said he and his girl would ride home with a friend. After the dance Cacchione drove the DeGeorge car, accompanied by Volk and their respective dates, to the Van Buren Inn in the State of New York, approximately 45 miles away. They arrived at the Inn in the early hours of the morning and found it closed. On the way back, Cacchione fell asleep at the wheel and negligently demolished the car, as a result of which Robert Volk was killed. Mrs. Volk, as administratrix of her son's estate, recovered a verdict of $10,858 against Cacchione. Cacchione's insurance company paid Mrs. Volk $5,000, the limits of its policy. Mrs. Volk then brought in the defendant insurance company by garnishment proceeding. The jury found for plaintiff; the lower Court granted defendants' motion for judgment n.o.v.; and from this judgment plaintiff took this appeal.

Defendant's liability depends on a policy issued by it to "Chris DeGeorge" on the 1941 Oldsmobile which was driven by Cacchione. The insurance company agreed by its policy "to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury [and injury to property] caused by accident and arising out of the ownership, maintenance or use of the automobile ... the word 'insured' includes the named insured and also includes any person while using the

[ 395 Pa. Page 639]

    automobile ... provided the actual use of the automobile is by the named insured or with his permission ...". This is the clause under which plaintiff seeks to hold defendant ...


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