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RYAN v. FUREY (ET AL. (01/30/70)

decided: January 30, 1970.

RYAN
v.
FUREY (ET AL., APPELLANT)



Appeals from judgments of Court of Common Pleas of Lebanon County, March T., 1965, No. 816, Dec. T., 1966, Nos. 17 and 18, and March T., 1966, No. 774, in case of Matthew J. Ryan, III, administrator of estates of Nicholas Wasylina, deceased, and Mary Wasylina, deceased et al. v. E. William Furey, administrator of estate of John Edward McGinn, deceased et al.

COUNSEL

Victor L. Drexel, with him Patrick J. O'Connor, Robert E. Siegrist, and Pepper, Hamilton & Scheetz, for appellant.

Bernerd A. Buzgon, with him Davis, Katz, Buzgon & Davis, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Roberts joins in this dissenting opinion. Dissenting Opinion by Mr. Justice Roberts.

Author: Jones

[ 437 Pa. Page 98]

On January 24, 1967, the Court of Common Pleas of Lebanon County entered judgments on jury verdicts in trespass actions against the Estates of Margaret Milmoe (Milmoe) and John McGinn (McGinn) and in favor of Matthew J. Ryan, III, Administrator, and Eugene Wasylina, a minor, by Nick Wasylina, his guardian.

On February 1, 1967, an attachment execution proceeding was issued against Royal Indemnity Company (Royal), garnishee, on the basis that it was the insurer of Milmoe and McGinn. The pleadings proceeded under Pa. R. Civ. P. 3145, whereunder interrogatories and the answers thereto in an attachment execution proceeding serve as the pleadings. See: Helms v. Chandler, 423 Pa. 77, 223 A.2d 30 (1966); Hanchey v. Elliott Truck Brokerage Co., 421 Pa. 131, 218 A.2d 743 (1966). Plaintiffs then filed motions for summary judgment in accordance with Pa. R. Civ. P. 1035.

By Order of the Court of Common Pleas of Lebanon County dated November 7, 1968, subsequently amended, the court granted summary judgment to the plaintiffs in their respective cases against Royal, in the amounts of the original judgments against the Estates of Milmoe and McGinn, with interest from the date of entry of judgments on the verdicts.

The essential facts out of which the original litigation arose were that on June 6, 1964, a vehicle owned by Hertz Corporation collided with a vehicle operated by one of plaintiffs' decedents, thereby causing the death of both plaintiffs' decedents, severe injuries to their minor son, Eugene Wasylina, and death to Margaret Milmoe and John McGinn. Milmoe and McGinn were both in the Hertz automobile, which had been leased under a rental agreement dated June 6, 1964, in Washington, D. C., by Margaret Milmoe, who had

[ 437 Pa. Page 99]

    furnished Hertz with her operator's license number and Washington, D. C., address.

Royal admitted that as of June 6, 1964, there was in full force and effect a liability policy of insurance pursuant to which automobiles rented by Hertz Corporation were furnished with liability coverage under and subject to the terms and conditions contained in the policy. Royal denied coverage and refused payment to the respective plaintiffs, asserting that there was no coverage under the policy.

On this appeal the appellant-garnishee, Royal, makes three arguments. First, Royal claims that the policy was invalid because Milmoe, in renting the car, had presented a credit card issued to McGinn, identifying the possessor as an authorized representative of the Peace Corps, although the authority of anyone to use that card had been revoked. We are in agreement with the court below that such misrepresentation neither voided the rental contract with Hertz nor rendered the garnishee's insurance policy inoperative.

Under the terms of the insurance policy, the word "insured" included the named insured and also "(1) any person . . . to whom an automobile has been rented without a chauffeur by the named insured." Milmoe would appear to fall within the scope of this clause since she was a renter of a Hertz automobile. Nowhere does the rental agreement state that it is ineffective if an individual uses a credit card, which he is not authorized to use, to gain an extension of credit. The only clauses at all relevant are those which prohibit the operation of the car "by any person who has given a fictitious name or false address to lessor" and which indicate that the insurance ...


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