plaintiff, John A. Kelly, and served upon Raymond A. White, Jr., Esq., as attorney for the insured.
22. Raymond A. White, Jr., Esq., as attorney for Ruby Lee Kass, trading as R. L. K. Garage, elected not to file any Affidavit of Defense on behalf of the said insured within 15 days or at any time thereafter.
23. On October 29, 1942, Raymond A. White, Jr., Esq., presented his petition to the Judges of the Court of Common Pleas No. 5 of the County of Philadelphia, for leave to withdraw his appearance on behalf of the insured, alleging as the ground for his withdrawal that the policy of insurance in force between the parties did not provide any coverage with respect to the accident involved in the Kelly case.
24. The Court of Common Pleas No. 5 thereupon granted a rule upon defendant, Ruby Lee Kass, trading as R. L. K. Garage, to show cause why the said Raymond A. White, Jr., Esq., should not be permitted to withdraw his appearance.
25. Thereafter, the defendant, Kass, trading as R. L. K. Garage, filed his answer to the said petition, contravening the allegation made by Mr. White on behalf of the New Amsterdam Casualty Company and averring also that the New Amsterdam Casualty Company was attempting to obtain by this proceeding a declaratory judgment construing the policy of insurance.
26. On November 25, 1942, despite its disclaimer of September 1, 1942, with reference to the Reinear claim, the New Amsterdam Casualty Company wrote to R. L. K. Garage, the insured, advising the latter that this case had been disposed of and setting forth the nominal expense incurred.
27. On November 30, 1942, the question raised by the petition of the company and the answer of the insured was argued before the Judges of the Court of Common Pleas No. 5 of the Philadelphia County, decision being reserved thereon.
28. On December 1, 1942, New Amsterdam Casualty Company filed its complaint in the present action in the District Court of the United States for the Eastern District of Pennsylvania, No. 2868, asking for a declaratory judgment upon the policy of insurance issued to Ruby Lee Kass, trading as R. L. K. Garage.
29. Subsequently, Common Pleas Court No. 5 of Philadelphia County refused the prayer of Mr. White's petition, and he thereupon appealed to the Superior Court of the Commonwealth of Pennsylvania. The case was duly argued before the Court and on January 27, 1944, the order of the Court of Common Pleas No. 5 was reversed, but the question whether or not the company was obligated under the policy was not decided.
I make the following conclusions of law:
1. The purpose of the parties here was no insure against liability, covering automobiles used in the insured's business. A policy of indemnity against liability should be so construed that the dominant purpose of the parties is not frustrated by technical rules of construction.
2. In case of doubt or ambiguity, the provisions of the insurance policy must be viewed in the light most favorable to the insured.
3. If there is any doubt about the construction of a contract, it will be resolved against the insurance company, inasmuch as the language of the policy is its own.
4. A condition in the policy of insurance, being the language of the company, must, if there be any ambiguity in it, be taken most strongly against it; if reasonably susceptible of two interpretations, it is to be construed in favor of the insured so as not to defeat, without plain necessity, his claim to indemnity which it was his object to secure.
5. In the present policy, the language of Division 2 under "Definition of Operations," insuring the use of any automobile for any purpose in connection with the operations of the insured's business, is inconsistent with the language of "Exclusions" (c) providing that the policy shall not cover any automobile owned by the insured, and there is here an ambiguity which under the law compels a construction in favor of the insured.
6. In the case at bar, after the insurance company had accepted notice of the Kelly accident involving the Nash automobile owned by the R. L. K. Garage in January, 1942, it received and accepted notice in May, 1942, of another accident involving the same car, in the Reinear case. It accepted its responsibility under the policy in both these cases until the following September. By its own actions it evidenced a construction of the policy in favor of liability to the insured.
7. The policy must be construed in favor of the liability of the New Amsterdam Casualty Company to insure and protect the defendant, Ruby Lee Kass, trading as R. L. K. Garage, from liability for the accident to John A. Kelly occurring on January 8, 1942.
8. The New Amsterdam Casualty Company is estopped by the circumstances of the case and its own actions, to deny liability.
9. The New Amsterdam Casualty Company has waived its right to rely upon the exclusion clause of the policy.
Judgment may be entered in favor of the defendants.
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