DiGenovario v. DiBono

60 Pa. D. & C. 115, 1947 Pa. Dist. & Cnty. Dec. LEXIS 72

This text of 60 Pa. D. & C. 115 (DiGenovario v. DiBono) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiGenovario v. DiBono, 60 Pa. D. & C. 115, 1947 Pa. Dist. & Cnty. Dec. LEXIS 72 (Pa. Super. Ct. 1947).

Opinion

MacNeille, P. J.,

This action originally arose out of an accident which happened on [116]*116September 30, 1945, while original plaintiff, Paul DiGenovario, was riding in an automobile owned by him but operated by defendant, Edward DiBono. An action of trespass was instituted against defendant and the issue was tried before the court without a jury and a finding was made for plaintiff in the sum of $10,-177.95. Exceptions to the finding were filed and dismissed in a per curiam opinion dated February 6,1947. Judgment was entered on the finding and attachment sur judgment was issued against defendant-garnishee. Plaintiff filed interrogatories which were answered by defendant-garnishee. Plaintiff then filed a rule for judgment for want of sufficient answers. The court, by order of May 1,1947, ordered an amended answer filed within 20 days or rule absolute. An amended answer was filed and a rule for judgment for want of sufficient amended answer was filed. On June 5, 1947, by stipulation of counsel, approved by the court, it was agreed that plaintiff’s rule be discharged and that the court finally determine the issues raised by the attachment upon the record taken in the trespass action together with the interrogatories and answers in these proceedings.

On February 28, 1947, a suggestion of death of Paul DiGenovario was filed and Katherine DiGenovario, administratrix of the estate of Paul DiGenovario, was substituted as party plaintiff.

The court is now considering the issues raised in the attachment sur judgment proceedings. The answer of the insurance company, garnishee, admits the issuance of a liability policy to DiBono, but denies that the policy covered the accident in question. The policy issued to DiBono contained the following clause:

“Such insurance as is afforded by this policy for bodily injury liability . . . applies (1) to the named insured . . . with respect to the operation of any other private passenger automobile by such named insured.

[117]*117But, as amended by endorsement prior to the accident, the policy reads:

“Such insurance as is afforded by this policy for bodily injury liability . . . applies (1) to the named insured . . . with respect to the use of any other auto-bile by or in behalf of such named insured. . . .”

Garnishee’s defense to the present action is set forth in part in the answer at paragraph 7(c) as follows:

“To sub-part (c) of the seventh interrogatory, garnishee answers: No. On the contrary, garnishee is informed and believes, and accordingly avers, that plaintiff at the time of his injuries was riding in his own motor vehicle, and that the motor vehicle named in the automobile liability insurance policy issued by garnishee to defendant was not involved in the accident which resulted in said injuries. Garnishee avers that plaintiff, Paul DiGenovario, together with Dominick DiBono and Daniel Leno, met and planned to take a trip to New York City; that these arrangements were made on September 20,1945, to use DiGenovario’s automobile for this purpose on September 30, 1945; that defendant, Edward DiBono, was not a party to these arrangements and had no knowledge of the same; that about midnight on September 29, 1945, the said DiGenovario, Dominick DiBono, and Leno, met and before setting out it was suggested that they request defendant to operate the automobile for them due to the fact that they would be driving most of the night and the said persons were tired whereas defendant was rested and would be able to do the driving for them; that they went to the home of defendant about 1.15 a.m. on September 30, 1945, and found him in bed and asleep; that they asked him to join the party and after persuasion he agreed; that the four men left Philadelphia about 2 a.m. in DiGenovario’s automobile; and that about 4 a.m. on September 30,1945, while defendant Edward DiBono was operating plaintiff’s automo[118]*118bile the accident occurred which resulted in plaintiff’s injuries. At the time of the said accident, plaintiff Paul DiGenovario was seated next to defendant, Edward DiBono, in the front seat of the vehicle.
“Garnishee further avers in the premises that plaintiff’s automobile was being operated at the time of the accident by defendant under the direction and control of plaintiff; that the said automobile was being then and there used by plaintiff for his own purposes and on his own personal business, and that defendant was then and there operating the said vehicle at the request of plaintiff solely in connection with such use of the automobile by plaintiff; and that defendant was driving the automobile as a favor and an accommodation to plaintiff without the intention of deriving any direct benefit for himself.
“Garnishee accordingly avers that defendant was ‘operating’ plaintiff’s automobile at the time of the said accident, but that defendant was not ‘using’ plaintiff’s automobile within the meaning or intention of garnishee’s insurance policy on defendant’s own automobile, under the ‘use other cars coverage’ contained in the said policy in the following provision thereof, to wit:
“Such insurance as is afforded by this policy for bodily injury liability . . . applies (1) to the named insured . . . with respect to the use of any other automobile by or in behalf of such named insured. . . .”

We are first called upon to examine the testimony taken in the trespass suit to determine in what relationship Edward DiBono stood with respect to the use that was being made of the car involved in the accident on September 30, 1945.

Paul DiGenovario, plaintiff, testified as to the arrangements made concerning the trip to New York the night of the accident. He testified that about 10 days to two weeks prior to September 30, 1945, Dominick DiBono, Daniel Leno, Edward DiBono and himself, [119]*119decided to make preparations to go to New York City, to visit Tom Dilio, who was a friend of all the parties and a particular friend of defendant Edward DiBono. It was decided between Dominick DiBono and plaintiff to use plaintiff’s car as it had the best tires. At about midnight on September 29,1945, the other three parties went to the home of Edward DiBono to pick him up and upon arriving found him in bed, but he arose, dressed and accompanied the other three. There was an arrangement made for the sharing of expenses “for gas and oil and eats”. Upon leaving DiBono’s home, plaintiff drove until they reached Sears, Roebuck on Roosevelt Boulevard en route to New York. At this point DiBono asked to drive the car. The first time plaintiff replied he would drive a while longer and upon the second request, DiBono was given the wheel. Plaintiff was then asked:

“Q. So you were in a position to give it to him any time you saw fit during the whole trip?
“A. I didn’t see fit, because we were all going to enjoy ourselves, for the same purpose.

Edward DiBono testified that plaintiff, Dominick DiBono, and Daniel Leno came to his house on the night in question sometime after 11 o’clock. He was asleep at the time but agreed to make the trip with the other men. He stated that as soon as they left the house, plaintiff asked if he would drive since he was rested and he replied that he would. His testimony is that he immediately began to drive the ear.

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Bluebook (online)
60 Pa. D. & C. 115, 1947 Pa. Dist. & Cnty. Dec. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/digenovario-v-dibono-pactcomplphilad-1947.