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BECHLER v. OLIVA. (06/03/60)

June 3, 1960

BECHLER, APPELLANT,
v.
OLIVA.



Appeal, No. 73, Jan. T., 1960, from judgment of Court of Common Pleas No. 5 of Philadelphia County, June T., 1956, No. 8184, in case of J. Warren Bechler v. Ralph Oliva et al. Judgment affirmed.

COUNSEL

Theodore R. Mann, with him Maximillian J. Klinger, for appellant.

James M. Marsh, with him LaBrum & Doak, for appellee.

Before Jones, C.j., Bell, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 400 Pa. Page 300]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

On June 26, 1955, Ralph Oliva delivered his automobile to Augustine Pellegrino, the operator of an auto repair shop on Paschal Avenue, Philadelphia, with instructions to check the automobile for necessary repairs, have it inspected and returned to him. Pellegrino, finding the brakes faulty, relined the brakes. Before he had an opportunity to check the brake installation by a road test, a customer of Pellegrino's, living on Eastwick Avenue, requested Pellegrino to call at his home to check his automobile. Pellegrino took Oliva's automobile for a road test. After the road test Pellegrino called on his other customer to discuss possible repairs of that customer's automobile. Thereafter en route to the garage to put an inspection sticker on Oliva's automobile, Pellegrino became involved in an accident with an automobile owned and operated by one

[ 400 Pa. Page 301]

J. Warren Bechler. For the purpose of this appeal, Pellegrino concedes that this accident was caused by his carelessness rather than the condition of the brakes.

Bechler sued Oliva and Pellegrino in trespass in the Court of Common Pleas No. 5 of Philadelphia County for damages for the personal injuries and property damage which he had sustained in this accident. At trial before a court and jury a compulsory non-suit was entered as to Oliva and a verdict was returned in favor of Bechler and against Pellegrino in the amount of $12,000, which verdict was later reduced to judgment.

In the Court of Common Pleas No. 5 of Philadelphia County Bechler then issued an attachment execution against the Metropolitan Casualty Insurance Company, the insurance carrier of Oliva, to recover the amount of this judgment. The matter came on for trial before Judge REIMEL and a jury, testimony was taken and the jury returned a verdict in favor of the insurance carrier and against Bechler. Bechler filed motions for judgment n.o.v. and a new trial both of which motions were refused and judgment was entered on the verdict in favor of the insurance carrier. From the entry of that judgment this appeal was taken.

At the trial the insurance carrier's defense was two-fold: (1) under the terms of the policy issued to Oliva the coverage included not only the named insured [Oliva] but "any person while using the automobile" provided that "the actual use of the automobile" [by such other person] was with the permission of the named insured [Oliva] and Pellegrino lacked such "permission"; (2) under the terms of the policy coverage was excluded for any person [other than the named insured] operating an automobile repair shop "... with respect to any accident arising out of the operation ...


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