Frankfort Marine, Accident & Plate Glass Ins. Co. v. Witty

• Decision Date: 11 April 1904
• Citation: 208 Pa. 569,57 A. 990
• Parties: FRANKFORT MARINE, ACCIDENT & PLATE GLASS INS. CO. v. WITTY et al.
• Court: Pennsylvania Supreme Court

57 A. 990
208 Pa. 569

FRANKFORT MARINE, ACCIDENT & PLATE GLASS INS. CO.
v.
WITTY et al.

Supreme Court of Pennsylvania.

April 11, 1904.

Appeal from Court of Common Pleas, Philadelphia County.

Action by the Frankfort Marine, Accident & Plate Glass Insurance Company against Charles H. Witty and another. From anorder making absolute a rule for Judgment for want of a sufficient affidavit of defense, defendants appeal. Affirmed.

From the record it appeared that the plaintiff had insured the defendants against legal liability for negligence in their bleaching mill. The limit of the policy was $5,000. Subsequently an employé sued the defendants for the loss of his right arm, and recovered a verdict against them for $9,000. The day after this verdict was rendered an agent of the plaintiff and the defendants met and discussed the matter, and the following correspondence resulted:

"Philadelphia, Pa., January 11th, 1902. Messrs. Charles H. Witty & Company—Gentlemen: A verdict of nine thousand ($9,000) dollars having been rendered yesterday in favor of John De Bleyker, Jr., against your firm in court of common pleas No. 5, for a personal injury, and we having under our policy assumed of the verdict the sum of five thousand ($5,000) dollars, and it being thought advisable for the benefit of us both that a motion for a new trial, for reduction of verdict and if necessary an appeal to the Supreme Court should be made, and it being possible that at some stage a settlement would be judicious, we have to-day talked the matter over with you and reached the following conclusion: The case to be litigated by us or compromised with the consent of your firm, and upon the conclusion of the litigation in either manner the total amount, including the costs and expenses of conducting the litigation, which must be paid either by way of compromise or in satisfaction of a judgment, shall be paid by us and yourselves in the following proportions: The Frankfort Marine, Accident and Plate Glass Insurance Company to contribute five-ninths of the total and the firm of Charles H. Witty & Co. to contribute four-ninths thereof. Please advise us if this letter correctly expresses our understanding. Very truly yours, Leeds, McClellan & Co., General Agents the Frankfort Marine, Accident & Plate Glass Insurance Co."

After two days' deliberation Witty & Co. added the following writing: "January 13th, 1902. This letter correctly expresses our understanding and we accept your proposition...