Fritchie v. Miller's Pennsylvania Extract Co.

• Decision Date: 31 October 1900
• Docket Number: 18
• Citation: 197 Pa. 401,47 A. 351
• Parties: Fritchie v. Miller's Pennsylvania Extract Company
• Court: Pennsylvania Supreme Court

47 A. 351

197 Pa. 401

Fritchie v. Miller's Pennsylvania Extract Company

No. 18

Supreme Court of Pennsylvania

October 31, 1900

Argued October 8, 1900

Appeal, No. 18, Oct. T., 1899, by garnishee, from judgment of C.P. Westmoreland Co., Nov. T., 1897, No. 191, on case stated in suit of Carrie Fritchie v. Miller's Pennsylvania Extract Company, with notice to the Fidelity and Casualty Company of New York, a corporation, as garnishee. Affirmed.

Case stated to determine liability under an employer's liability policy.

From the record it appeared that on March 16, 1894, the Fidelity and Casualty Company issued to the Miller's Pennsylvania Extract Company an employer's liability policy, the material provisions of which were as follows:

"CASUALTY INSURANCE.

"THE FIDELITY AND CASUALTY COMPANY OF NEW YORK.

"Principal office: 140 & 146 Broadway, New York.

"Premium $60.

No 25,082.

"EMPLOYER'S LIABILITY POLICY.

"In consideration of the warranties made in the application for this policy, and of Sixty Dollars, The Fidelity and Casualty Company, of New York, hereinafter called the Company, does hereby insure Miller's Pennsylvania Extract Co., of Grapeville, in the County of Westmoreland and State of Pennsylvania, hereinafter called the Assured, for the term of twelve months, beginning on the Sixteenth day of March, 1894 at 12 o'clock noon, and ending on the Sixteenth day of March, 1895, at twelve o'clock noon, Standard time.

"1. Against all liability for damages on account of fatal or non-fatal injuries suffered by any employee or employees of the Assured while engaged in the occupations and at the places mentioned in the application for this policy, a copy of which application is endorsed on the back hereof and is hereby made a part of this policy.

"9. Any assignment of interest under this Policy shall be void unless the written consent of the Company is first obtained.

"12. No action shall lie against the Company after the expiration of the period within which an action for damages on account of the given injuries or death might be brought by such claimant or his representatives against the Assured, unless at the expiration of said period there is a suit, arising out of such accident, pending against the Assured, in which case an action may be brought in respect to the claim involved in such action against the Company by the Assured within thirty days after judgment is rendered in such suit, and not later."

On February 14, 1896, Carrie Fritchie, for the use of Maria Fritchie, brought an action against Miller's Pennsylvania Extract Company to recover damages for the death of Oscar Fritchie, Maria's father, an employee of Miller's Pennsylvania Extract Company. On September 24, judgment was recovered in this suit by the plaintiff for $2,000. On the same day the plaintiff issued an attachment execution and summoned the Fidelity and Casualty Company as garnishee. Before the judgment had been obtained against Miller's Pennsylvania Extract Company, the company became insolvent and ceased to do business. It took an appeal to the Supreme Court, but did not enter any recognizance.

The court entered judgment in favor of plaintiff on the case stated.

Error assigned was the judgment of the court.

Judgment affirmed.

Homer L. Castle, with him Stephen Stone and W. P. Potter, for appellant. -- It is certainly not possible for this plaintiff to secure a right against the Fidelity and Casualty Company by the indirect route of a garnishment, which she could not secure by the direct route of an assignment: Embler v. Hartford Ins. Co., 158 N.Y. 431; Adams v. Kuehn, 119 Pa. 76; French v. Vix, 143 N.Y. 90.

The contention of the plaintiffs herein is that the emphatic word in this sentence is liability, and that the fact that Miller's Pennsylvania Extract Company is liable makes the Fidelity and Casualty Company liable. Our contention is that the emphatic word is damages, and that there can be no liability by the Fidelity and Casualty Company until Miller's Pennsylvania Extract Company has suffered damages by being required to pay something: Chace v. Hinman, 8 Wend. 452; Gilbert v. Wiman, 1 N.Y. 550.

C. K McCreary and C. E. Whitten, for appellee, were not heard, but in their printed brief said: A policy of insurance may be assigned after a loss has occurred, even though the policy may forbid an assignment; and it is conceded that...