Jennison v. Aacher

• Decision Date: 12 September 1963
• Parties: Walter JENNISON v. Albert A. AACHER, Defendant, and The Home Indemnity Company, Garnishee. Appeal of the HOME INDEMNITY COMPANY, Garnishee.
• Court: Pennsylvania Superior Court

Page 769

193 A.2d 769 201 Pa.Super. 583 Walter JENNISON
v.
Albert A. AACHER, Defendant,
and
The Home Indemnity Company, Garnishee.
Appeal of the HOME INDEMNITY COMPANY, Garnishee. Superior Court of Pennsylvania. Sept. 12, 1963.

[201 Pa.Super. 584]

Page 771

Joseph Head, Philadelphia, for appellant.

Marvin H. Levin, Philadelphia, for appellee.

Before RHODES, P. J. and ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

FLOOD, Judge.

This case raises certain questions as to procedure and evidence in garnishment proceedings under the attachment execution rules adopted by the Supreme Court in 1960.

The plaintiff, having obtained a judgment in trespass against the defendant Aacher in excess of $5,000, issued an attachment execution and served the appellant[201 Pa.Super. 585] insurance company as garnishee, and on the same day caused interrogatories to be served upon the garnishee. The plaintiff's ninth interrogatory asked the company to state the amount of proceeds payable under its liability policy under the circumstances involved in the plaintiff's suit against the defendant. The garnishee's answer was:

'None. Although the policy provided coverage of $5,000, it was breached by the defendant by his failure and refusal to cooperate in defence of this lawsuit; counsel employed by the Garnishee thereupon withdrew their appearance for the defendant upon leave granted January 9, 1959 by the Court of Common Pleas No. 5.'

The parties went to trial on the issues raised by the answers and the plaintiff offered in evidence its interrogatories and the garnishee's answers and rested. The garnishee offered no evidence and submitted a point for binding instructions in its favor. The court declined the point, the jury returned a verdict in favor of the plaintiff against the garnishee for $5,000, the garnishee's motion for judgment n. o. v. was denied and it has appealed from the denial.

1. The garnishee's first argument is, in effect, that the procedural rules change the burden of proof as to non-cooperation shifting it to the plaintiff in execution from the garnishee insurer, upon whom it rests under the decision of the Supreme Court in Donaldson v. Farm Bureau Mut. Auto. Insurance Co., 339 Pa. 106, 14 A.2d 117 (1940).

The rules make no such change in specific language. However, the garnishee argues that the change is implicit in the rules upon the following reasoning: The rights of a plaintiff in an attachment execution on an insurance policy rise no higher than the rights of the insured defendant against the insurer-garnishee. Urabel v. Scholler, 369 Pa. 235, 85 A.2d 858 (1952). [201 Pa.Super. 586] Therefore the plaintiff must plead and prove a case of liability on the part of the insurer to the defendant. Pa.R.C.P. No. 3145(a), 12 P.S.Appendix, provides that the procedure between the plaintiff and the garnishee shall as far as practicable be the same as

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though the interrogatories were a complaint and the answers of the garnishee were an answer in assumpsit. Since the interrogatories stand in place of the complaint they must contain facts sufficient to show liability to the defendant. PaR.C.P. No. 1019 (c) requires the plaintiff in a suit in assumpsit to plead the performance of conditions precedent. The policy issued by the company to the defendant contains the following condition in...