Rohm & Haas Co. v. Lessner

• Decision Date: 12 January 1951
• Citation: 77 A.2d 675,168 Pa.Super. 242
• Parties: ROHM & HAAS CO. v. LESSNER et al.
• Court: Pennsylvania Superior Court

77 A.2d 675

168 Pa.Super. 242

ROHM & HAAS CO. v. LESSNER et al.

Superior Court of Pennsylvania.

January 12, 1951

Action in assumpsit by Rohm & Haas Company, a corporation, against Benjamin Lessner, and others, individually and trading as Benjamin Lessner Co., to recover expense incurred by plaintiff's insurer in defending claim against plaintiff. The Court of Common Pleas No. 5, of the County of Philadelphia, as of March Term, 1950, No. 2984, Frank Smith P. J., entered an order refusing plaintiff's motion for judgment on the pleadings, and the plaintiff appealed. The Superior Court, No. 230, October Term, 1950, Hirt, J., held that, where plaintiff's public liability insurer successfully defended action against plaintiff by subcontractor's employee for injuries during installation of boiler for plaintiff, plaintiff had no cause of action either on own account or on behalf of insurer by equitable subrogation, against contractor installing boiler pursuant to contract containing ‘ hold harmless' clause, since plaintiff suffered no pecuniary loss.

Order affirmed.

Michael A. Foley, Philadelphia, for appellant.

Howard R. Detweiler, Frank R. Ambler, Philadelphia, for appellee.

Before RHODES, P. J., and HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.

HIRT Judge.

Defendants on July 19, 1943 entered into a written contract with plaintiff in which they undertook to furnish and install a boiler in the power house of the plaintiff company in Bristol. In Article 24 of the contract it is provided: ‘ The Contractor shall save and hold harmless the Owner from and against all suits for claims that may be based upon any alleged injury (including death) to any person or property that may occur or that may be alleged to have occurred, in the course of the performance of this contract by the Contractor, whether such claim shall be made by an employee of a Contractor or by a third person and whether or not it shall be claimed that the alleged injury (including death) was caused through a negligent act or omission of the Contractor, and, at his own expense, the Contractor shall defend any and all such actions and shall pay all charges of attorney and all costs and other expenses arising therefrom.’ On July 24, 1943, one David Bradford an employe of a subcontractor of the defendants sustained personal injuries from accident on the work undertaken by the defendants under their contract. Bradford subsequently brought suit against the plaintiff company for damages resulting from his injuries. The defendants were promptly notified of the claim and plaintiff requested them to take over the defense of the suit. This the defendants refused to do. Plaintiff carried a public liability policy of insurance with Indemnity Insurance Company of North America. And after the persistent refusals of the defendants to assume the responsibility of defending the action, plaintiff's insurer, as it was bound under its contract with the plaintiff, undertook the defense. The case was twice tried. In the first trial the jury disagreed; in the second, the verdict was for the defendant. It is admitted that in assuming the defense of this plaintiff in that action, Indemnity Insurance Company of North America employed counsel, hired an electrical expert, and paid for the notes of testimony as well as other costs. It is claimed that the total of this expense incurred by plaintiff's insurer aggregated $1,225.00. The present suit was brought to recover that amount with interest. The above facts, except as to the amount of expense incurred, are admitted in defendant's answer. After argument the lower court refused plaintiff's motion for judgment on the pleadings. This is plaintiff's appeal from that order.

We need not decide whether in every instance an appeal will lie as a matter of right from an order refusing judgment in favor of a party on the pleadings. The power to enter summary judgment is intended only for clear cases and every doubt must be resolved against the entry of such judgment. In affirming that principle in Levin v. Kapnek, 166 Pa.Super. 39, 70 A.2d 392, where the lower court had refused to enter judgment in favor of the plaintiff on the pleadings, we entertained an appeal and affirmed the order.

We will give sanction to the practice in this case. By the Act of April 18, 1874, P.L. 64, 12 P.S. § 1097, the right of appeal was specifically given...