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.
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.
OPINION BY MR. JUSTICE BELL
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,
, 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*fn* 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 ...