Foote v. Maryland Cas. Co.

• Decision Date: 28 November 1962
• Citation: 186 A.2d 255,409 Pa. 307
• Parties: Harriet E. FOOTE v. MARYLAND CASUALTY COMPANY, a corporation. Appeal of MARYLAND CASUALTY COMPANY. Appeal of Harriet E. FOOTE.
• Court: Pennsylvania Supreme Court

186 A.2d 255

409 Pa. 307

Harriet E. FOOTE v. MARYLAND CASUALTY COMPANY, a corporation.

Appeal of MARYLAND CASUALTY COMPANY. Appeal of Harriet E. FOOTE.

Supreme Court of Pennsylvania.

November 28, 1962.

Lee L. Leonard, Valencia, for Maryland Cas. Co.

Leonidas A. Allen, Aubrey R. Newlin, Jr., Philadelphia, for Harriet E Foote.

Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN and KEIM, JJ.

KEIM Justice.

This case is before the Court on two appeals, the first at No. 95 March Term, 1962, wherein the defendant complains of the Trial Court having modified the verdict by increasing it from $33,732.50 to $39,564.40, and allowing no credit for moneys already paid by the defendant, which is contrary to a stipulation entered into by the parties before the trial of this case. The second appeal is at No. 177 March Term, 1962 wherein the plaintiff complains of the rejection of her motion for a new trial. It is to be noted that both appeals are from the Court of Common Pleas of Allegheny County, Pennsylvania, docketed at No. 1531 October Term, 1957 C.

Harriet E Foote, the plaintiff in the lower court, was the owner of a four level split level home of brick veneer construction, which was built for her by her husband, James W. Foote, a contractor, and they occupied the dwelling from March 26, 1956 until a fire on January 1, 1957 did considerable damage to the premises. The home was intended as a model home and was advertised for sale some months after completion. The defendant's policy was issued to plaintiff on November 5, 1956. The plaintiff was insured by the defendant company, which provided coverage against fire loss as follows: 'Dwelling house, $45,000.00; Contents, $18,000.00; and, additional living expenses, $9,000.00.' The plaintiff filed proof of loss forms wherein she demanded the full amount of each type coverage provided under such policy.

In its amended answer, the defendant insurance company admitted liability in the amount of the highest estimate it received for repair of the premises, in the amount of $27,831.90, which it tendered in settlement for the claim for building damage. In view of this admission, the plaintiff entered judgment against the defendant in the sum of $27,831.90.

During the period of negotiation between plaintiff and defendant, judgments had been entered against plaintiff by her two mortgagees, both of whom proceeded under their respective judgments with attachment execution of all money owing under subject policy, and as a result, the defendant paid the sum of $26,550.18 to First Federal Savings and Loan Association of Homestead, first mortgagee; and the sum of $1,281.72 to Ed Vero Company, second mortgagee; whereby defendant paid in full the sum under the judgment previously taken by the plaintiff, upon defendant's admission in its amended answer.

In order to allow defendant credit for payments already made on judgment entered by plaintiff, a stipulation was entered into between the parties before any testimony was taken at the trial, and we quote:

'STIPULATION: And now, to-wit, December 7, 1959, prior to the opening of the trial of this case counsel for the respective parties hereby stipulate and agree, as follows, to wit:

'1. That payments made by the defendant to the two mortgagees:

First Federal Savings and Loan Assn. of Homestead 12/10/58 $26,550.18 Ed Vero Company 12/10/58 1,281.72 shall not be disclosed to the jury, but the defendant shall receive credit and satisfaction of any judgment rendered by the jury in favor of the plaintiff to the extent of said payment, or the trial judge may mold the verdict to allow a credit for said payment.

'2. The trial judge shall mold the verdict so as to allow the defendant a credit for interest on the amount of said payment.

'3. The Ed. Vero Company is still a mortgagee and entitled to payment of the balance of funds payable to the plaintiff in an amount over and above the previous payment made by the defendant of $1,281.72.'

This stipulation was in writing and signed by both counsel.

The plaintiff produced expert witnesses who unanimously agreed that the building should be completely torn down and rebuilt. This testimony was refuted by expert witnesses for the defendant who testified that the building could be restored to its previous new condition without a complete demolition.

The verdict was as follows:

'And now, to wit: December 11, 1959, we, the Jurors empanelled in the above entitled case, find a verdict for the plaintiff in the sum of

                 1. House $22,000.00
                 2. Furniture, Household 10,000.00
                 Goods, Clothing
                 3. Additional Living 750.00
                 Expenses
                 4. Interest 982.50
                 -----------
                 TOTAL VERDICT $33,732.50"
                

The plaintiff filed a Motion for a New Trial on the grounds----

'1. The verdict was against the evidence.

'2. The verdict was against the weight of the evidence.

'3. The verdict was against the law.

'4. The Court committed fundamental error in its charge to the jury.'

The plaintiff's brief alleges different reasons in the motion for a new trial than is set forth in the record. We will dispose of the grounds, as did the lower court, and as set forth in the record.

The verdict was not against the law and the weight of the credible evidence. The plaintiff and defendant both produced expert witnesses, men of experience in this particular field, and the first question to be resolved by the jury was whether or not it was necessary to completely demolish the building, or...