Harold B. Fink, Jr., Coudersport, with him Fink & Young, Coudersport, for appellants.
Henry Clay McCormick, Williamsport, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 513]
This case involves the liability of Liberty Mutual Insurance Company on a policy of automobile insurance issued to Henkels and McCoy, a partnership engaged in the business of installing and servicing telephone cable and similar work
[ 253 Pa. Super. Page 514]
at various locations in the United States and Canada. The company is headquartered at Blue Bell, Pennsylvania. Appellee Marshall Hamilton was employed as a plow foreman. A plow foreman normally operated a plow with a reel of telephone cable on it which was plowed into the ground and covered. Hamilton physically ran the plow aided by two and sometimes three assistants. For many years prior to the accident the company had the policy of allowing a plow foreman to operate a company owned truck from a job site to the foreman's home over weekends. This provided the foreman with transportation to and from his home and served the additional purpose of providing the foreman with a truck if he were called upon by the company to perform any emergency work over the weekend.
On Saturday, February 23, 1974, the appellee, Marshall Hamilton, had taken his company truck to his home as was his authorized practice. In the afternoon of that day, Marshall Hamilton was about to have the family car greased and subjected to an oil change when he became aware that his sixteen year old daughter, Kathy, wished to take her girlfriend home. Consequently, he directed her to "take the truck to take the girlfriend home and I will get my car taken care of." The accident out of which this suit arose occurred when Hamilton's daughter was returning from taking her girlfriend home. The truck, driven by Kathy, struck and seriously injured Wanda Phillips, age 13, who was walking on the west berm of North Main Street, Coudersport, at the time of the accident.
As a result of the accident, a complaint in trespass was filed by the minor appellant, Wanda Phillips, and her mother, Beulah Phillips, against Kathy Hamilton, the driver, her father Marshall Hamilton, the employee and Henkels and McCoy, the employer. In a somewhat unusual procedure agreed to by the parties and accepted by the trial court, the appellants filed a petition within the framework of the action in trespass for a declaratory judgment that the insurance policy issued to Henkels and McCoy covered the accident in question. The lower court found that the policy was not applicable and this appeal followed.
[ 253 Pa. Super. Page 515]
The controlling provisions of the policy are found in paragraphs II(c) and (d) and read in context as follows:
"Each of the following is an insured to the extent ...