264 A.2d 673 (Pa. 1970), Eisenman v. Hornberger

Citation:264 A.2d 673, 438 Pa. 46
Opinion Judge:Author: Eagen
Party Name:Richard S. EISENMAN and Sally Ann Eisenman v. Alton Raymond HORNBERGER, John Gillespie, Frank Scarfo, Royal Insurance Company, Ltd. Garnishee, and Patrick H. Fierro, Garnishee. Appeal of ROYAL INSURANCE COMPANY, Ltd.
Case Date:April 22, 1970
Court:Supreme Court of Pennsylvania
 
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Page 673

264 A.2d 673 (Pa. 1970)

438 Pa. 46

Richard S. EISENMAN and Sally Ann Eisenman

v.

Alton Raymond HORNBERGER, John Gillespie, Frank Scarfo,

Royal Insurance Company, Ltd. Garnishee, and

Patrick H. Fierro, Garnishee.

Appeal of ROYAL INSURANCE COMPANY, Ltd.

Supreme Court of Pennsylvania.

April 22, 1970.

[438 Pa. 47] H. Clay McCormick, Furst, McCormick, Lynn, Reeder & Nichols, Williamsport, for appellant.

John C. Youngman, Sr., Candor, Youngman, Gibson & Gault, Williamsport, for appellees.

[438 Pa. 46] Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

[438 Pa. 47] OPINION

EAGEN, Justice.

This is an appeal from the judgment entered below on the pleadings in an attachment execution proceeding. The issue is one of first impression in Pennsylvania, although courts in several other jurisdictions have ruled on the question presented.

The material facts are not in dispute.

On the might of February 4, 1960, Alton Raymond Hornberger, then seventeen years of age, and Frank Scarfo broke into the home of Mr. and Mrs. Eisenman and stole a quantity of liquor. The owners were out of town at the time. To minimize possible detection, the felons lit matches to find their way around the house, rather than turn on the lights. As each match burned down, it was dropped or thrown to the floor. A head of one of the matches lodged in between the cushion and overstuffing of a chair. When the felons departed from the premises, there

Page 674

was no sign of fire, but the match head which landed in the chair, as before[438 Pa. 48] related, ignited the material, which, after smoldering for hours, finally resulted in a fire which completely destroyed the house and personal property therein.

The Eisenmans instituted suit for damages against Hornberger, Scarfo, and three other juveniles who waited outside and served as lookouts during the burglary. A jury trial resulted in a verdict against all defendants and in favor of the plaintiffs in the amount of $70.375.99. Samuel Harrison, one of the defendants, was covered against liability by a homeowner's policy with a $25,000 policy limit. His insurer settled the claim against him for $24,000 and secured a release.

At the pertinent time, Alton Raymond Hornberger's father was also the named insured in a homeowner's policy issued by the Royal Insurance Company, LTD. (Royal). And it is...

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