Appeal from the Judgment entered on June 24, 1975, of the Court of Common Pleas of Beaver County, Pa., Civil Action, Law at No. 777 of 1969 and Sur No. 777 of 1969. No. 738 April Term 1975.
Frank S. Kelker, Rochester, with him Kelker & Kelker, Rochester, for appellant.
Lee E. Whitmire, Jr., Beaver Falls, with him Whitmire & Mannix, for appellee.
[ 247 Pa. Super. Page 314]
This appeal arises from an attachment execution proceeding on a judgment recovered in a trespass action brought by Rosemarie Belas, a minor, and Rose Belas, her mother, against Craig Calabria, in which State Farm Mutual Automobile Insurance Company and The Aetna Life and Casualty Company are named as garnishees. A jury returned a verdict of $32,180.30 against both garnishees; by agreement this was molded so that it was against State Farm for $25,000 and against Aetna for the balance. The lower court denied State Farm's motion for judgment n. o. v., and State Farm has appealed.*fn1
[ 247 Pa. Super. Page 315]
On November 4, 1967, Rosemarie Belas was a passenger in an automobile driven by Craig Calabria. When Craig drove into a tree, Rosemarie was hurt. She and her mother sued Craig, and a jury awarded Rosemarie $30,000 and her mother $2,180.30.
In the ensuing attachment execution proceeding, Aetna's liability (which, as just mentioned, is not before us) arose from the fact that it insured Craig's father, John Calabria, whereas State Farm's liability arose from the fact that it insured Millicent Melanovich, the owner of the automobile that Craig was driving. More specifically, State Farm's policy with Miss Melanovich provides that State Farm will "pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury sustained by other persons . . . ." The "insured" is defined as:
(1) the named insured [Miss Melanovich]
(4) any other person while using the owned automobile, provided the operator and the actual use of such automobile are with the permission of the named insured . . . and are within the scope of such permission.
Craig was "any other person . . . using the owned automobile." The question, therefore, was whether he had used it "with the permission" of Miss Melanovich.
The evidence on this question was substantially without conflict. On November 4, 1967, Miss Melanovich was in the hospital. She therefore asked her nephew, Samuel Melanovich, to use her automobile to perform certain errands for her. After Samuel had performed the errands, he asked his aunt if he might borrow her automobile for his personal use that evening; he told her he might go to a "social" at the high school or to a local restaurant. Samuel did not tell his aunt that he might let someone else use the automobile; on the four or five other occasions when he had borrowed the
[ 247 Pa. Super. Page 316]
automobile, he had not let anyone else use it. Miss Melanovich told her nephew that he might borrow her automobile, on condition, however, that since he only had a junior license, he return home with it before midnight. Other than this, she did not "lecture" him on the use of the automobile because she had confidence in him. Samuel drove the automobile to a local restaurant, where he met his friend, Craig Calabria. Craig asked if he might use the automobile to visit his friend, Rosemarie Belas. Samuel loaned Craig the automobile, on condition that he return it before midnight. Craig picked up Rosemarie and drove her to a restaurant; the accident in which Rosemarie was hurt occurred on their way back from the restaurant.
At the conclusion of this evidence, State Farm moved for a directed verdict. The lower court denied the motion, and submitted the case to the jury, instructing the jury to return with its verdict certain special findings, which the jury did as follows:
1. Did Craig Calabria have the implied permission of Millicent Melanovich to operate her car? Yes.
2. Did Craig Calabria have permission or reasonably believe that he had ...