Appeal from judgment of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1962, No. 4675, in case of John M. Chmielewski v. Nicholas Muraresku et al.
William B. Freilich, with him Joseph G. Manta, and LaBrum & Doak, for appellant.
Martin Heller, with him Maximillian J. Klinger, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell joins in this dissent.
The facts are set forth in the opinion of the court below, the Court of Common Pleas of Philadelphia County:
"The present action is a garnishment proceeding against Allstate Insurance Company arising out of a judgment entered against defendant, Muraresku, in the sum of Thirty-five Thousand Dollars ($35,000) for serious and permanent personal injuries sustained by plaintiff, Chmielewski, when he was struck by an automobile operated by defendant at Third Street and Fairmount Avenue in Philadelphia on December 15, 1962.
"Douglas Paschall and Emil (Sonny) Koch conducted an auto repair shop in partnership at 3721 N. 6th Street, Philadelphia. The name under which the partnership operated was Douglas Paschall and Emil Koch trading as Sonny and Doug.
"They purchased [in the name of the partnership] a Garage Liability Insurance Policy, number 89516596, for the purpose of covering the repair shop, from the garnishee, Allstate Insurance Company.
"Sonny and Doug acquired a 1956 Cadillac automobile which they desired to sell after it had been repaired. They intended to show the car to personal customers in order to sell it.
"Registration of the automobile was in the name of 'Paschall Brothers,' a name of a former business which Douglas Paschall conducted with his brother.
"On December 15, 1962, permission was given to one Muraresku to take the ...