Appeals from orders of Court of Common Pleas of Lebanon County, March T., 1965, No. 816, and March T., 1966, No. 774, in re Matthew J. Ryan, III et al. v. E. William Furey et al.; Eugene Wasylina et al. v. Same.
Charles J. Romito, with him Stanley W. Katz, and Davis, Katz, Buzgon & Davis, for appellants.
Victor L. Drexel, with him Patrick J. O'Connor, Pepper, Hamilton & Scheetz and Siegrist, Kohler & Siegrist, for appellee.
Wright, P. J., Watkins, Jacobs, Spaulding, and Cercone, JJ. (Hoffman and Packel, JJ., absent.) Opinion by Watkins, J.
[ 225 Pa. Super. Page 295]
These appeals are from the order of the Court of Common Pleas, Civil Division, of Lebanon County, refusing appellants' motions for a new trial and judgment n.o.v.
The facts in this case appear to be as follows:
On June 6, 1964, an automobile accident occurred in Lebanon County, Pennsylvania, on Route 22. The cars involved were a Chevrolet rented from Hertz Corporation, in Washington, D.C., and insured by the defendant, Royal Indemnity Company; and a Chrysler owned by the decedents of the plaintiffs, Estates of Nicholas W. Wasylina and Mary Wasylina. The plaintiff, Eugene Wasylina, a minor, was a passenger in the Chrysler vehicle. As a result of the accident, John Edward McGinn, Margaret Milmoe, Nicholas W. Wasylina and Mary Wasylina were all killed. The plaintiff, Eugene Wasylina, was severely injured.
As action was instituted by the Administrator of the Estates of Nicholas Wasylina and Mary Wasylina, and by Nick Wasylina, Guardian of Eugene Wasylina, a minor, against the defendants-appellees in this case. A judgment was rendered in favor of the appellants against both defendants.
Margaret Milmoe, defendant, rented the Chevrolet from the Hertz Corporation, which company was insured by Royal Indemnity Company. The appellants
[ 225 Pa. Super. Page 296]
after securing a judgment entered an attachment proceeding against Royal Indemnity Company and a summary judgment was entered in their favor. The Royal Indemnity Company then appealed to the Pennsylvania Supreme Court from the entry of the summary judgment at 437 Pa. 96, 262 A.2d 305 (1970). The Supreme Court in its opinion held that Royal Indemnity Company, Garnishee, could not now claim a lack of liability on the part of their insured. However, they held that a possible defense was available to the Garnishee, Royal Indemnity Company. This defense being that it could relieve itself of liability on the insurance policy to its insured pursuant to an exclusion contained in the said policy which provided that any driver other than the person who signed the rental agreement would not be covered by the policy.
The trial below was held before a jury to determine whether or not the defendant, Margaret M. Milmoe, was driving the car at the time of the accident or stated another way, whether or not Royal Indemnity Company could prove that their insured ...