Howland v. Home Ins. Co.

• Decision Date: 13 July 1917
• Docket Number: 6-1917
• Citation: 67 Pa.Super. 276
• Parties: Howland, Appellant, v. Home Insurance Company of New York
• Court: Pennsylvania Superior Court

67 Pa.Super. 276

Howland, Appellant, v. Home Insurance Company of New York

No. 6-1917

Superior Court of Pennsylvania

July 13, 1917

Argued March 13, 1917 [Syllabus Matter]

Appeal by plaintiff, from order of C.P. Tioga Co.-1915, No. 113 making absolute rule to open judgment in case of F. T Howland v. Home Insurance Company of New York.

Rule to open judgment.

Cameron, P. J., filed the following opinion:

The above action was brought on a policy of insurance covering an automobile, machinery and equipments.

Judgment was entered against the defendant on motion of C. H. Ashton, March 1, 1915, for $ 1,028.66 for want of appearance or affidavit of defense.

An execution was issued thereon the same day.

The summons was returnable the 4th Monday of February, 1915, and was served on Charles Johnson, insurance commissioner, at Harrisburg, January 20, 1915.

On the 20th of March the defendant by its secretary, whose duty it was to act in this behalf, made an affidavit setting forth that the defendant " Has a full, true, just, equitable and legal defense to the action, and that it is not in any way indebted to the plaintiff in any sum whatever by or under the terms of the contract of insurance upon which the action was brought."

That an appearance and affidavit of defense was not filed because none of the officers of the defendant company, nor any person acting for the defendant, knew that an action had been commenced, or was pending, until the execution was issued.

That the summons served was improperly filed and mislaid by a clerk in the home office. That the default was caused by the mistake of the clerk and the improper filing aforesaid.

The affidavit was filed in this court on April 1, 1915. It averred other specific items, all set forth in the affidavit which if sustained by evidence would defeat a recovery.

The prayer was for a rule to show cause why judgment should not be opened and the defendant let into a defense.

On same day rule was granted as prayed for.

At the hearing the evidence sustained the material allegations set forth in the affidavit.

Mr. McCallup, the adjuster for the defendant, testified that the officers had no notice of the action until the 6th of March, when the sheriff of Tioga County notified the company that he had an execution in the above case.

Other witnesses testified that certain parts of the car were in good condition after the fire, and that they were taken away by persons other than the plaintiff, and that the car was in fact abandoned.

Another witness testified that a new car of the make of the car burned could be bought from the Buick Company for $ 600.00.

We deem it our duty under all the circumstances in this case to open the judgment as prayed for.

And now, December 23, 1915, the rule to show cause why the above judgment should not be opened and the defendant let into a defense is made absolute and judgment opened.

Error assigned was the order of the court making absolute rule to open judgment.

Chester H. Ashton, for appellant.

Paul J. Edwards and Andrew B. Dunsmore, for appellee.

Before Orlady, P. J., Porter, Henderson, Kephart, Trexler and Williams, JJ.

OPINION

PORTER, J.

This is an appeal from a decree of the court below making absolute a rule to show cause why a judgment should not be opened. The judgment had been entered in default of an appearance and affidavit of defense. The defendant, being a foreign corporation doing business in the State of Pennsylvania, the summons had been served upon the Insurance Commissioner of the...