Vrabel v. Scholler
| Decision Date | 07 January 1952 |
| Docket Number | 8120 |
| Citation | 85 A.2d 858,369 Pa. 235 |
| Parties | VRABEL v. SCHOLLER et al. Appeal of PENN MUT. INDEMNITY CO. |
| Court | Pennsylvania Supreme Court |
Argued November 26, 1951
Appeal, No. 210, Jan. T., 1951, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1950, No 1607, in case of Eugene J. Vrabel v. Melvin G. Scholler and Penn Mutual Indemnity Company. Record remanded with direction.
Attachment execution proceeding.
Judgment entered against garnishee upon interrogatories and answers before PARRY, J. Defendant garnishee appealed.
Since the insured (Scholler) could recover only pro rata from the defendant indemnity company if the Colonial's policy covered "the same subject, the same risk and the same interest", that is all that Scholler's creditor can recover. The garnishee, however, does not aver the amount of insurance or the terms of the policy issued by Colonial Mutual Casualty Company nor do such facts appear in any part of the record. It is therefore impossible for us to determine whether both policies cover "the same subject, the same risk and the same interest", or the amount or percentage of proration. In the interest of justice the record is remanded to the court below with direction to proceed in accordance with this opinion.
Peter P. Zion, with him Leonard Green and Zion & Kaliner, for appellant.
George P. Williams, Jr., with him Webster S. Achey, Orr., Williams & Baxter and Achey & Power, for appellee.
Before DREW, C.J., STERN, STEARNE, BELL, LADNER and CHIDSEY, JJ.
Vrabel was injured by the negligent operation of an automobile by Scholler, against whom he recovered a verdict and judgment in the amount of $5,500. Scholler notified Penn Mutual Indemnity Company, which is one of the defendants herein, and the Colonial Mutual Casualty Company (as an additional insurer), of plaintiff's claim, and requested each of them to defend the trespass action brought by Vrabel against him.
Plaintiff issued a writ of attachment execution and served defendant company as garnishee on the theory that it was Scholler's insurance carrier.Defendant garnishee, in response to plaintiff's written interrogatories, answered, inter alia, (1) that it had issued and delivered to Scholler a liability insurance policy effective February 5, 1948, but that the policy had been issued under a mutual mistake of fact and therefore was void; and (2) that the insurance policy was issued upon a condition precedent, viz., that a financial responsibility certificate which, under the law of Pennsylvania, was required to be furnished on behalf of Scholler, had not been accepted by the Department of Revenue of the Commonwealth of Pennsylvania and consequently the policy was not in force on March 20, 1948, the date of the accident; and (3) that even if it were liable under its policy, it would be liable only pro rata for its proportionate amount of the insurance along with another co-insurer.
Prior to February 5, 1948, Scholler had been deprived of his operator's license because of operating an automobile under the influence of intoxicating liquor, and under the Pennsylvania Uniform Liability Security Act [*] it became necessary for him to obtain liability insurance.The Colonial Mutual Casualty Company issued a policy (date undisclosed) insuring Scholler and filed a financial responsibility certificate with the Department of Revenue. The Department accepted the certificate and issued a license to Scholler to operate a motor vehicle in Pennsylvania . Scholler, erroneously believing the policy of Colonial Mutual Casualty Company would be cancelled by Colonial as of February 5, 1948, applied to the present garnishee for the present one year policy, which it issued and delivered to Scholler on February 15, effective as of February 5, 1948 . The garnishee attempted on February 5, 1948, and on March 8, 1948 to file its certificate of financial responsibility with the Department of Revenue, but each filing was refused because an acceptable certificate was then on file and in effect from another company . By letter of its attorney dated April 5, 1948, over two weeks after the accident, defendant garnishee cancelled the policy which it had issued to the defendant, Scholler, and offered to return the premium.
The court entered a summary judgment for plaintiff on the pleadings. Three important questions are involved: (1) Was the mutual mistake of fact which defendant alleged sufficient in law to void the insurance policy which it issued before and cancelled after the insured's accident; (2) Was it a condition precedent that the financial responsibility certificate prepared by garnishee be accepted by the Revenue Department before this insurance policy could go into effect; and (3) Was it liable (if at all) for the full amount of the insurance or only pro rata with its coinsurer?
We approach this case in the light of the well established principle that a summary judgment should be entered on pleadings only in a case that is clear and free from doubt: Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776; Kittaning Coal Co. v. Moore, 362 Pa. 128, 132, 66 A.2d 273; Shaull v. Beck Shoe Co., Inc., 369 Pa. 112, 85 A.2d 698.
(1) The mutual mistake of fact upon which defendant garnishee relies is apparently the belief of Scholler and of the garnishee that Scholler's policy of insurance with the Colonial Mutual Casualty Company would and did expire February 5 , 1948. "A contract [made under] a mutual mistake as to an essential fact which formed the inducement to it, may be rescinded on discovery of the mistake, if the parties can be placed in their former position with reference to the subject matter of it": Blygh v. Sansom, 137 Pa. 368, 377, 20 A. 996.
"... it is not every [mutual] mistake, which will enable the party to avoid the contract; for, to have this effect, it must be of its essence, the sine qua non of the contract...": Miles v. Stevens, 3 Pa. 21, 37. Cf. also, Holmes v. Cameron, 267 Pa. 90, 110 A. 81; Gibson v. Union Rolling Mill Co., 3 Watts 32, 37. We do not consider that the mistake of fact alleged in this case was an essential inducing fact or went to the essence or was a sine qua non of defendant's contract of insurance; nor can the parties be placed in their former position with reference to the subject matter of it. We therefore hold that such a mistake of fact will not void this contract, nor relieve this defendant of the liability specifically provided in its policy. We are further impelled to this conclusion by the Uniform Automobile Liability Security Act, [*] as to which we said: : Montgomery v. Keystone Mutual Casualty Co., 357 Pa. 223, 226, 53 A.2d 539. See also Polonitz v. Wasilindra, 155 Pa.Super. 62, 37 A.2d 136.
(2) Garnishee also avers that the judgment entered against it was erroneous because a condition precedent of the policy was the acceptance by the Revenue Department of a financial responsibility certificate; and since the certificate which it attempted to file was refused because an acceptable certificate was then on file from another company the condition precedent never occurred; hence the policy never took effect and was void. In the operator's policy certificate which the defendant prepared and sought to file with the Department of Revenue, it recited that in compliance with the Act of 1933, as amended, it had issued its policy to Scholler, that the policy was "in full force and effect and will so continue until the expiration of fifteen days after notice of cancellation shall first have been given to the Secretary of Revenue, Harrisburg, Pennsylvania, in writing". No notice of cancellation was ever given to the Secretary. Condition No. 4 of said policy states "Such insurance as is afforded by this policy for bodily injury liability... shall comply with the provisions of the motor vehicle financial...
To continue reading
Request your trial