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HELWIG v. ESTERLY (ET AL. (03/18/65)

decided: March 18, 1965.

HELWIG
v.
ESTERLY (ET AL., APPELLANT)



Appeal from judgment of Court of Common Pleas of Lehigh County, April T., 1959, No. 220, in case of John R. Helwig v. Joanne E. Esterly et al.

COUNSEL

John P. Thomas, with him Walker & Walker, for appellant.

David G. Welty, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Montgomery, J. Wright, J., would affirm on the opinion of the court below.

Author: Montgomery

[ 205 Pa. Super. Page 186]

This appeal arose from an attachment execution on a judgment recovered by John R. Helwig against Joanne Ruch, formerly Joanne Esterly, in a trespass action, in which State Farm Mutual Automobile Insurance Company (State Farm) and Utica Mutual Insurance Company (Utica) are named as garnishees. An issue was raised between the two garnishees concerning which insurance company was wholly liable for

[ 205 Pa. Super. Page 187]

    coverage of Joanne Esterly and was submitted to a jury, which returned a verdict against State Farm alone. The lower court denied State Farm's motions for a new trial and judgment n.o.v. and this appeal followed.

Plaintiff's claim against State Farm was based on a policy of insurance which it issued to William and Mary Heffelfinger on their 1956 Chevrolet automobile containing the following "omnibus" clause: "(a) Insured -- with respect to the insurance afforded under coverages A and B, the unqualified word 'insured' includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use is by the named insured or such spouse or with the permission of either."

Utica's liability arises from a policy it issued to the parents of Joanne Esterly which provided liability coverage for her operation of a non-owned vehicle if no other valid and collectible insurance was in force at the time of an accident.

On June 21, 1958, Joanne was involved in an accident with plaintiff Helwig while she was driving the Heffelfinger automobile. There is evidence that she had been given permission to operate it by Karl Heffelfinger, the son of the owners, who was riding with her at that time; and that Karl had been granted permission to use the car. However, there is also evidence in the record to the effect that Karl's right to use the car was subject to the restriction that he was not to allow any other person to operate the car and specifically he was forbidden to allow his fiancee, Joanne Esterly, to operate it, because she held only a learner's permit. Joanne was not charged with having knowledge of this restriction. In submitting this evidence

[ 205 Pa. Super. Page 188]

    to the jury to determine whether this restriction had been imposed on Karl's privilege the court said, "That is to say, even though you find that Carl*fn* Heffelfinger was expressly instructed by William Heffelfinger not to allow Joanne Esterly to operate the vehicle on the date of the accident, if you find that use of the vehicle by Joanne Esterly at the time of the accident was within the scope of the permissive use given to Carl Heffelfinger by William Heffelfinger, ...


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