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SHELLEY v. NATIONWIDE MUTUAL INSURANCE COMPANY (09/12/68)

decided: September 12, 1968.

SHELLEY, APPELLANT,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY



Appeal from judgment of Court of Common Pleas of Lancaster County, Nov. T., 1966, No. 19, in case of Marian C. Shelley v. Nationwide Mutual Insurance Company.

COUNSEL

Bernard J. Myers, Jr., with him Zimmerman, Zimmerman, Myers & Gibbel, for appellant.

Donald E. LeFever, with him Stein, Storb and Mann, for appellee.

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

Author: Hannum

[ 213 Pa. Super. Page 219]

On May 9, 1966, Marian C. Shelley, the appellant, was the wife of Russell G. Shelley, who at the time was the owner of a thirty-seven foot cabin cruiser which he operated primarily in the Chesapeake Bay area. Russell G. Shelley was the holder of a license issued by the United States Coast Guard, certifying that he could safely be entrusted with the duties and responsibilities of charter of motor boats or other vessels of 15 gross tons or less, propelled by machinery other than steam while carrying six or less passengers for hire upon the Atlantic Ocean no more than 40 miles off shore between Ocean City, Maryland, and Ocean City, New Jersey. On the day in question, about 5:30 p.m., Marian C. Shelley fell from the bridge ladder of the cabin cruiser to the deck of the conveyance and fractured her left leg above the knee.

At the time of the incident which resulted in the plaintiff's injuries, she and her husband were being accompanied by several friends on a pleasure outing under an arrangement whereby any expenses incurred

[ 213 Pa. Super. Page 220]

    throughout the day were to be divided equally among the occupants of the craft. Expenses for food, beverage, ice, gas and any others that may have arisen were paid for by one of the occupants who served as "banker" for the day, and at the conclusion of the outing the daily expenditures were divided among the Shelleys and their guests. According to Mrs. Shelley's deposition, the boat had always been used as a pleasure craft for the Shelleys and their guests, and to her knowledge a fixed fare had never been charged for anyone's passage other than in accordance with the expense-sharing plan. However, Mr. Shelley's deposition indicates that on a few occasions the boat had been used for charter fishing purposes for which a fixed rate was charged, but the boat was generally used for pleasure purposes and was being so used on the day the appellant was injured.

At the time of the accident, the appellant, Marian C. Shelley, was the owner of a blanket accident insurance certificate issued by the appellee. This insurance policy provided, inter alia, as follows: "'Injury' as used in the Master Policy means bodily injury caused by accident occurring anywhere in the world during the term of insurance and sustained by the Insured Member:

"Section A -- while riding as a passenger, but not as an operator or member of the crew, in or on (including boarding or alighting from) any land or water conveyance operated under a license for the transportation of passengers for hire; or

"Section B . . . .

"Section C . ...


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