Jennison v. Aacher

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

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.

September 12, 1963.

[Copyrighted Material Omitted]

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 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). 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 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 paragraph 11: 'The insured shall cooperate with the company and, upon the company's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits * * *' The plaintiff failed to plead in its interrogatories that the defendant had performed this condition precedent to liability of the garnishee on its contract of insurance. Therefore, the plaintiff did not plead a good cause of action.

This chain of reasoning is fallacious in that it omits any mention of burden of proof. Pa.R.C.P. No. 1019(c) says only that 'it is sufficient to aver generally that all conditions precedent have been performed or have occurred'. This does not require a plaintiff to aver such performance unless it is his burden to prove that the condition has been performed. It is not his burden in this action. Donaldson v. Farm Bureau Mut. Auto. Insurance Co., supra. For pleading purposes, at least, a condition precedent is one whose performance or occurrence the plaintiff must prove in order to recover. See Corbin, Contracts, § 749.

Moreover, PaR.C.P. No. 3145(a) does not require a plaintiff in his interrogatories to plead against the insurer garnishee all of the facts which the insured defendant would have to plead in a direct suit upon the policy. The rule provides that the procedure between the plaintiff and the garnishee shall 'as far as practicable, be the same as though the interrogatories were a complaint and the answer of the garnishee were an answer in assumpsit'. The use of the subjunctive 'were' is evidence that the interrogatories are not a complaint. In view of other rules relating to the interrogatories such as Pa.R.C.P. Nos. 3144, 3145(b) and 3253, they cannot be treated as a complaint either as to form or content.

Pa.R.C.P. No. 3145 provides: 'The garnishee in his answer under 'new matter' may include * * * any defense or counterclaim which he could assert against the defendant if sued by him but he may not assert any defense on behalf of the defendant against the plaintiff or otherwise attack the validity of the attachment * * *.' If the performance of the condition had to be pleaded by the plaintiff in his interrogatories to the garnishee, the latter would be required to deny it specifically and with particularity in his answer under Pa.R.C.P. No. 1019(c). It would not be an affirmative defence to be pleaded as new matter under Pa.R.C.P. No. 1030. The fact that any defence which the garnishee might have against the defendant must be set up as new matter in his answer under Pa.R.C.P. No. 3145(b)(2), follows from the fact that it cannot be pleaded as a denial under Pa.R.C.P. No. 1029(a) because the facts to be denied will not yet have been pleaded by the plaintiff. Obviously it is not expected that he plead such facts in his interrogatories. Only if the garnishee pleads the non-performance as new matter in his answers, endorsed with a proper notice to plead, need the plaintiff file a reply pleading that the condition has been performed. Pa.R.C.P. 1017(a) and 1026.

Pa.R.C.P. No. 3253 provides that the interrogatories from the plaintiff to the garnishee shall be in substantially the form set forth in that rule. All of the interrogatories set forth in Pa.R.C.P. No. 3253 have to do with discovery of assets of the defendant in the hands of the garnishee. There is no suggestion in any of them that the plaintiff should in any fashion set forth a good cause of action on behalf of the defendant against the garnishee. In this respect, the rules maintain pre-existing practice based, no doubt, upon the fact that the plaintiff could not ordinarily be expected to know what were the dealings between the defendant and the garnishee or be able to allege under oath the facts giving rise to liability on the part of the garnishee to the defendant. Consequently he was never required to plead them. The fact that other interrogatories may be directed to the garnishee is no indication that they should be so startingly different from the form of those listed in Pa.R.C.P. No. 3253 as the garnishee suggests.

The interrogatories are in no proper sense a pleading and neither Pa.R.C.P. No. 3145(a) nor any of the other rules convert them into a complaint. Interrogatories constitute a discovery process and not a pleading either in form or substance, although for some purposes they stand instead of a complaint. They are treated as a complaint only 'so far as practicable'.

The garnishee relies upon the comment in Goodrich-Amram § 1275(a)-1 ^[1] which states: 'The Rules improve the prior practice in recognizing clearly the 'pleading' character of the interrogatories and answers. The object of any adverse procedural steps between the plaintiff and the garnishee includes the procedure...