Ginder v. Harleysville Mut. Casualty Co.

• Decision Date: 24 November 1942
• Docket Number: No. 2459.,2459.
• Parties: GINDER v. HARLEYSVILLE MUT. CASUALTY CO.
• Court: U.S. District Court — Western District of Pennsylvania

49 F. Supp. 745

GINDER v. HARLEYSVILLE MUT. CASUALTY CO.

No. 2459.

District Court, E. D. Pennsylvania.

November 24, 1942.

Richard A. Smith, Louis Wagner, and Thomas J. Clary, all of Philadelphia, Pa., for plaintiff.

Oliver C. Riethmiller, of Philadelphia, Pa., for defendant.

GANEY, District Judge.

This is a motion for summary judgment as provided for by Federal Rules of Civil Procedure, rule 56(a), 28 U.S.C.A. following section 723c.

The defendant herein executed and delivered an automobile liability policy to the plaintiff herein, who resided at 1603 Madison Avenue, Scranton, Pennsylvania, effective as of November 12, 1938. The policy, inter alia, contained an exclusions provisions feature, Paragraph (e) thereof reading as follows: "This policy does not apply to bodily injuries or death of any employee of the insured while engaged in the business of the assured, other than the domestic employment, or in the operation, maintenance or repair of the automobile; or to any obligation for which the insured may be held liable under the Workmen's Compensation Law". By subsequent endorsement, the policy was extended to January 12, 1940. On February 6, 1939 the policy was indorsed to cover the Central Railroad of New Jersey and the Reading Railroad Company, by an endorsement reading as follows: "It is hereby understood and agreed that the insurance on the within policy is also extended to cover the Central Railroad of New Jersey and the Reading Railroad Company for any liability they may have on account of the use or operation of the automobile insured hereunder". On November 29, 1939 while Wheeler Earl Howes was riding in the automobile of the plaintiff, Ginder, both on the business of the Central Railroad Company of New Jersey, there was a collision with a third party, resulting in injuries and death to the said Howes. Suit was brought by the administratrix of Howes against Ginder, and the owner and operator of the third car, and a verdict was rendered against Ginder, in the sum of $4,000, which together with interest and taxable costs, total $4,536.66, on which after denial of a new trial, judgment was entered against Ginder as of July 8, 1941. The defendant herein investigated the case and forwarded a nonwaiver agreement to Ginder for his execution, wherein it agreed to defend the suit on Ginder's behalf but expressly stipulated in so doing, that there was no waiver of any of its rights under the policy, and in so conducting a defense, it was assuming no liability thereunder. This the plaintiff, Ginder, refused to execute, and the defendant then wrote a letter to plaintiff, Ginder, noting the fact that he had refused to sign the nonwaiver agreement and advising him that it was filing an answer, and a special appearance in order that all rights might be protected. The company in the letter further advised that it would furnish counsel and manage and conduct the defense of the lawsuit, pay the expenses incident thereto, with the reservation that under the terms of the policy, it was not waiving its claim and position that the policy did not cover and include the liability asserted in the lawsuit. As has been indicated, a verdict was rendered on behalf of the representatives of Howes and a motion for a new trial was made and argued by the defendant's counsel which was denied, whereupon the defendant again disclaimed liability, refused to pay the judgment, and advised that it considered an appeal unavailing and if one were prosecuted it was to be at the plaintiff's own expense. Thereupon the plaintiff consulted counsel, who after examination of the record, advised the plaintiff that there were substantial questions of both fact and law involved, and that an appeal was proper. Thereupon an appeal was taken to the Appellate Division of the Supreme Court of New York by plaintiff's private counsel, Howes v. Ginder, 263 App.Div. 933, 33 N.Y.S.2d 541, wherein the lower court was sustained, with a further judgment of affirmance of $224.39. On the 28th of February, the plaintiff paid the judgment of $4536.66 plus the judgment of affirmance of $224.39 together with interest amounting to $30.45 or a total of $4,791.51. In addition plaintiff was compelled to pay $425 by way of attorney fees on the appeal together with $516.19 covering transcript, appeal bond, printing of the record, etc. This when added to the amount of the judgments together with interest brings the amount for which the plaintiff demands judgment to $5,807.70 with interest and costs.

The defendant filed an answer in which all of the important averments of the complaint were admitted and the pleading resolves itself into whether or not under the law, the defendant is liable, and hence the plaintiff's motion for summary judgment.

It is evident that the Central Railroad Company wanted protection against liability for any tort of its employee, Ginder, and hence the endorsement of February 6, 1939 covering the Central Railroad Company of New Jersey for any liability they might have on account of the use or operation of the automobile insured. Howes, the decedent, was an employee of the Central Railroad Company and both he and Ginder were on the business of the railroad at the time of the...