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EXNER v. SAFECO INSURANCE COMPANY AMERICA. (01/16/61)

January 16, 1961

EXNER, APPELLANT,
v.
SAFECO INSURANCE COMPANY OF AMERICA.



Appeals, Nos. 41 and 42, Jan. T., 1961, from judgments of Court of Common Pleas of Lehigh County, Sept. T., 1958, No. 266, in case of Norman E. Exner et al. v. Safeco Insurance Company of America. Judgments reversed; reargument refused February 27, 1961.

COUNSEL

Joseph H. Foster, with him Martin H. Philip, for appellants.

W. Hamlin Neely, with him William E. Schantz, for appellee.

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

Author: Bok

[ 402 Pa. Page 475]

OPINION BY MR. JUSTICE BOK.

In a former action in Carbon County plaintiffs got verdicts for damages against Jacoby, driver-son of the owner of the other car in an automobile collision. Plaintiffs also sued Gangewere, father-owner of the car as the son's superior, in Carbon County, and recovered the same amounts against him; a new trial was granted in which the damages were stipulated and only the father's liability for his son's conduct was tried. Again the plaintiffs won, and we affirmed the grant of a second new trial sub nomine Exner v. Gangewere, 397 Pa. 58 (1959), 152 A.2d 458. Whether this retrial has been held we do not know.

The instant action was brought in Lehigh County against the father's insurance carrier to recover under the omnibus clause in the policy, the insurer having refused payment. The complaint is based on the original verdicts against Jacoby. The jury found for the plaintiffs, but the court below, on motion, entered judgment n.o.v. for the defendant. Plaintiffs appealed.

The case spins on the point of paternal permission to use the car, and since they won the verdicts the plaintiffs are entitled to the favorable facts and inferences.

The father, Gangewere, lived with his mentally incompetent wife in Allentown, Lehigh County. He also owned and maintained another home about four miles away, which he visited almost every day and where his

[ 402 Pa. Page 476]

    mistress lived with their several children, one of whom was Robert Jacoby, the driver in the accident. The day of the accident was Sunday, December 18th, and Gangewere arrived at the Jacoby house early. The jury might have inferred that he would have been happy to have the day there alone and that his son knew it.

Relations between father and son were good. The boy had a car of his own and the father did for him as well as he could; he expected, for example, to give him a present for waxing the car on the instant occasion. Jacoby had previously used his father's car, with permission, for several small commissions, such as twice taking his mother to market, polishing the car, making minor repairs, getting a newspaper for his father, and taking it to a nearby ...


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