4 A.2d 186 | Pa. Super. Ct. | 1938
Argued November 15, 1938. The plaintiff in an action of trespass recovered a verdict against Liebert Obert, Inc., the original defendant and appellant herein, and R.C. Rietheimer, additional defendant, in the sum of $3,500. The judgment entered thereon was paid on behalf of Reitheimer by the Pennsylvania Threshermen Farmers' Mutual Casualty Insurance Company, insurance carrier, and marked to its use. The appellant thereupon filed a petition to show cause why the order to mark the judgment to use of the insurance carrier should not be stricken off and the judgment satisfied of record. A responsive answer thereto was filed by Reitheimer and his insurance carrier. After argument, the rule was discharged, and this appeal followed.
The principal issue involved in the trespass action was whether Berger, the driver of the truck at the time of the accident, was subject to the equal control and supervision of both defendants as joint masters. The jury, by its verdict, found that he was. No appeal having been taken from the judgment entered thereon, that matter must be considered as definitely and finally determined:Erie County Electric Co. v. Mutual Telephone Co.,
The major question before us is whether Reitheimer, after having paid the judgment, can have it marked to use of his insurance carrier so that it may be kept alive for its benefit. *81
Mr. Justice SCHAFFER, in the case of Goldman et al. v.Mitchell-Fletcher Co.,
The appellant vigorously argues that if its liability is not secondary, under the terms of Reitheimer's policy, which was for $5,000 and therefore in excess of the judgment, the insurance carrier was bound to indemnify both defendants. This insurance agreement provided as follows:
"EXTENDED COVERAGE
"2. The insurance provided by this Policy is hereby made available, in the same manner and under the same conditions as it is available to the named Assured . . . . . . to any person, firm or corporation legally responsible for the operation thereof. . . . . ."
This extended coverage, however, was limited by Condition D: *82
"If any other . . . . . . corporation insured hereunder by the provisions of Insuring Agreement 2 is covered by other valid insurance against a claim otherwise covered by this Policy, no insurance under this policy shall be applicable to such claim."
The appellant was within the provisions of paragraph 2, but it was also covered by valid insurance in an Aetna Casualty Surety Company policy, which contained the following stipulation: "It is further agreed that if the named Assured is covered under a policy taken out by the owner or operator of any automobile and/or trailer insured under this endorsement, the coverage under this endorsement shall be excess coverage over and above the valid and collectible insurance under the policy taken out by the owner or operator of such automobiles."
We, therefore, have a situation where the Aetna policy covered the appellant, if it did not have other "valid and collectible insurance," and the Threshermen Farmers' policy also covered it, if it did not have "other valid insurance." To give a literal effect to both policies would mean that one policy cancelled the other; that an assured, apparently protected by two policies, is, in fact, not covered by either; for if the Threshermen Farmers' policy is inoperative, so is the Aetna policy. We think such an absurd result was never contemplated. This conclusion is strengthened by further provisions in both policies which stipulate that, in the event there are two policies in existence, both insurers shall pay rateably.
These policies, taken in their entirety, in our judgment, support the common-sense interpretation that the parties intended, under facts here present, that there should be equitable distribution. Such a construction is in harmony with the conclusion reached in the case of Gale v. Motor Union Ins.Co., 96 L.J.K.B.N.S. 199, 202, 72 A.L.R. 1416, where Mr. Justice ROCHE, speaking for the court, said: "Each of the *83 policies provided that if there was another operative insurance, it, the policy in question, could not be used to give any indemnity; but each policy also provided that if there were two policies which were operative then there was to be rateable contribution or payment. The proper construction of these clauses was not to deprive the assured of the indemnity altogether, which would result if condition 10 of the Motor Union Insurance Co.'s policy and condition 5 of the General Accident Assurance Corporation's policy stood alone. The provision as to rateable contribution qualified the preceding clause denying liability. In my opinion, the proper award in this case is that the claimants should be paid rateably in respect of this accident by the Motor Union Insurance Co. and the General Accident Assurance Corporation."
The appellant, in support of its contention, relies onCommercial Casualty Ins. Co. v. Hartford Accident Indemnity Co.
(Minn.),
In New Amsterdam Casualty Co. v. Hartford Accident IndemnityCo.,
We are of the opinion that the court below committed *84 no error in discharging the rule to show cause why order to mark judgment to use should not be stricken off and the judgment marked satisfied.
Order of the court below is affirmed, at appellant's costs.