174 A. 602 | Pa. Super. Ct. | 1934
Argued April 17, 1934. This is a suit on an insurance policy covering an automobile. The contract, inter alia, insures against direct loss or damage by theft. In order to recover the plaintiff, Gillespie, was required to prove that the automobile had been stolen. The jury found in his favor. The appellant claims that plaintiff failed to make out his case. The material facts are as follows: *400
Gillespie and others were together at a house where a "spaghetti" party had been held earlier in the evening. His automobile was parked in front of the house, and later Fabery, who was a late comer at the festivities, parked his car in front of the plaintiff's. Plaintiff was about to take two of the guests home, a Mr. Bieshada and a Miss Holliday, who were seated in his machine. The plaintiff for some reason went back into the house. Fabery then leaving his own car in place, his "girl friend" being seated in it, got into the car of the plaintiff and at the time the following conversation took place as related by Bieshada, who was called as plaintiff's witness. We omit the questions. "He [Fabery] asked me if I could drive the car and I told him no. I told him I wanted to get home. He says, where do you live at? I says, Connellsville. Well, he says, I will jump in and take you home." Further on cross-examination. "He said he would take me home — drive the car and bring it back without Gillespie knowing it." They then left. After dropping Bieshada at his destination instead of taking Miss Holliday home as she requested he told her he was going back to Morrell where the supper had been held. On the way back the damages ensued for which recovery is sought. His companion, Miss Holliday, was taken to a hospital. Afterwards Fabery came back and got the young girl who was with him at first when he came to the party, and left with her. There is some reference in the charge of the court that when Fabery returned he told Baritell, at whose house the above supper had been furnished, that the car had been wrecked. It does not appear that there was any conversation between Gillespie and Fabery as to the car. There is testimony as to a quarrel between the parties about one-half hour prior to the departure of Fabery, but nothing occurred that would throw any light on his subsequent actions. The lower court in *401
overruling the motion for a new trial and judgment n.o.v., stated that the case was ruled by that of Slomowitz v. Union Insurance Co., Ltd.,
The judgment is reversed and is here entered for the defendant.