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MCNAIR v. AMERICAN INSURANCE COMPANY (06/16/67)

decided: June 16, 1967.

MCNAIR, APPELLANT,
v.
AMERICAN INSURANCE COMPANY



Appeal from judgment of Court of Common Pleas of Dauphin County, June T., 1964, No. 1569, in case of Allen V. McNair v. The American Insurance Company.

COUNSEL

James W. Evans, with him Goldberg, Evans & Katzman, for appellant.

John C. Dowling, with him Dowling and Dowling, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 210 Pa. Super. Page 108]

This is an appeal from an order of the Court of Common Pleas of Dauphin County entering judgment in favor of appellee, American Insurance Company, and against appellant, Allen V. McNair.

This case was presented before the lower court as a Case Stated. The agreed facts were:

"1. On July 29, 1959, Vincent Samuel Findley, then in the United States Marine Corps at Camp Lejeune, North Carolina, loaned the insured vehicle, bearing 1959 Pennsylvania License No. 373092, to Acting Gunnery Sergeant John E. Anderson, USMC, for use by Anderson while Findley was in the Mediterranean Sea on duty, to end approximately March 1, 1960.

"2. Anderson and Findley were personal friends, and Findley was not to receive any consideration from Anderson for the use of the insured vehicle.

"3. Anderson agreed with Findley to be responsible for the maintenance and repairs to the insured vehicle in Findley's absence.

"4. Findley placed no restriction upon Anderson's use of the insured vehicle, and the use to be made of the insured vehicle, by Anderson in Findley's absence, was at the discretion of Anderson.

"5. Anderson and plaintiff were friends and members of the United States Marine Corps, but plaintiff was unknown to Findley.

"6. On December 15, 1959, Anderson loaned the insured vehicle to plaintiff at Camp Lejeune, North Carolina, for use by plaintiff to go to Middletown, Pennsylvania, during the Christmas holiday of 1959."

While driving Findley's automobile in Pennsylvania, appellant was involved in an accident. Suit was instituted against appellant. The insurance company,

[ 210 Pa. Super. Page 109]

    which had issued the liability policy on this automobile to Findley in North Carolina in 1959, refused to defend appellant, however, on the ground that he was not operating the automobile with the permission of Findley, the named insured.*fn1 The suit against appellant was eventually settled. Appellant then brought this action in assumpsit to recover the amount of the settlement plus reasonable attorney's fees, a total of $3,395.99, with interest from September 25, 1962. The ...


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