Opinion
December 12, 1934.
February 1, 1935.
Insurance — Automobile — Omnibus clause — Permission of wife of insured — Use of car by guest — Deviation.
Where a guest at the home of the insured was permitted by the wife of the insured to use the insured car for the specific purpose of taking a fellow guest to her home, a distance of about four blocks, and after doing so, the driver of the car and his fellow guest drove some miles distant in the opposite direction, such deviation was not within the permission granted, within the meaning of a provision in the policy extending its protection to any person riding in the automobile with the express or implied consent of the insured or of an adult member of his household.
Appeal No. 25, February T., 1935, by defendant from judgment of C.P., Lackawanna County, May T., 1934, No. 57, in the case of James Truex, to the use of Eloise Paul, v. Pennsylvania Manufacturers' Association Casualty Insurance Company.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Judgment reversed with a procedendo.
Assumpsit on policy of insurance.
The facts are stated in the opinion of the Superior Court.
Rule for judgment for want of sufficient affidavit made absolute, in opinion by LEACH, J. Defendant appealed.
Error assigned was judgment.
Clarence Balentine, of Kelly, Balentine, Fitzgerald Kelly, for appellant.
Stanley F. Coar, with him C.S. DeLaney, E.A. DeLaney and David J. Reedy, for appellee.
Argued December 12, 1934.
This action in assumpsit was brought under a policy of insurance containing an Omnibus Coverage Clause. It provided that if the automobile covered by the policy was used with the express or implied consent of the assured or of an adult member of his household, the insurance should inure to the benefit of any person riding in the automobile.
The affidavit of defense averred that on May 4, 1932, James Truex and Eloise Paul attended a social gathering held at the house of Donald Bassett, the owner of the car. Late in the evening, Miss Paul expressed her intention of going home. Mrs. Bassett gave Truex permission to use the car for the specific purpose of taking Miss Paul to her home, a distance of about four city blocks. When Truex and Miss Paul reached the latter's home, they decided to take a drive in the loaned car and started in the opposite direction, with Forest City, Susquehanna County, a number of miles distant, as their destination. An accident occurred en route and Miss Paul was severely injured. She instituted an action against Truex, and obtained a verdict in the sum of $1,375. Subsequently, this suit was brought against the present defendant, based on its refusal to pay the judgment recovered against Truex. Judgment was entered below for want of a sufficient affidavit of defense.
The appellee, as did the court below, relied mainly upon the case of Dickinson v. Maryland Casualty Co. (Conn.), 125 A. 866, to sustain her judgment. In the very recently decided case of Powers et al. v. Wells et al., reported in 115 Pa. Super. 549, 176 A. 62, the facts were somewhat dissimilar to those in the case at bar, but the principles involved were the same in that case. We refused there, as we do now, to follow the Dickinson case, for reasons which we quite fully discussed and which need not now be repeated. It clearly appears here, as in the Powers case, that at the time of the accident the car was not being used with the consent of the owner or an adult member of his household, if we accept as true the averments in the affidavit of defense, and that is all we are now considering.
Permission to drive to a designated place four blocks away did not give authority to drive some miles distant in the opposite direction. This was not a slight deviation. It was a radical departure — an entirely new and different use than was averred to have been granted.
We think the affidavit of defense was sufficient to prevent judgment.
Judgment is reversed with a procedendo.