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PERKOSKI v. WILSON (11/10/52)

November 10, 1952

PERKOSKI
v.
WILSON, APPELLANT



Appeal, No. 2, March T., 1952, from judgment of Court of Common Pleas of Butler County, March T., 1949, No. 6, in case of James H. Perkoski et ux. v. Blaine P. Wilson. Judgment reversed; reargument refused November 28, 1952.

COUNSEL

Carmen V. Marinaro, for individual defendant, appellant.

Lee C. McCandless, for insurance company, appellee.

U. G. Vogan and Marshall & Marshall, for plaintiffs, appellees.

Before Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 371 Pa. Page 554]

OPINION BY MR. JUSTICE JONES

Blaine P. Wilson, the appellant, was insured by the Farm Bureau Mutual Automobile Insurance Company against liability for damage to others for bodily injury caused by his automobile truck. The limits of the company's liability under the policy were $10,000 for each person injured and $20,000 for each accident. An automobile of one James H. Perkoski having been struck by Wilson's truck, Perkoski and his wife, who were injured in the collision, sued Wilson for damages. Wilson promptly notified the insurance company of the

[ 371 Pa. Page 555]

    suit and was informed by a representative that the company had retained a named local attorney to defend him in the action. The trial resulted in general verdicts of $10,000 for the wife-plaintiff and $6,000 for the husband. The defendant, represented by the attorney for the insurance company, moved for a new trial which the court refused on condition that a remittitur be filed for so much of the aggregate of the two verdicts as was in excess of $13,940, leaving it to the plaintiffs to determine which of the verdicts should suffer the pro tanto reduction. The husband filed the required remittitur and the verdict in his favor was reduced from $6,000 to $3,940. A judgment on each of the verdicts was thereupon entered.

Following entry of the judgments, the insurance company, acting by the same attorney as it had represent Wilson, paid into court the full amount of the $10,000 judgment in favor of Mrs. Perkoski with interest and the sum of $769.13 as constituting the total of the items of damage suffered by the husband for which the insurance company conceded liability under its indemnity contract with Wilson. The matter was brought before the court on the insurance company's petition for a complete discharge and release from any further liability on account of the judgment in favor of James Perkoski against Wilson. The court entered a rule on the Perkoskis and Wilson to show cause why the prayer of the insurance company's petition should not be granted. At a hearing on the rule (Wilson for the first time being represented by independent counsel), it was stipulated by the parties that the liability of the insurance company under the policy might be determined by the court with like effect as if an action in assumpsit had been brought by the plaintiffs against the insurance company. While the procedure was not usual, its effect was no different than what it would

[ 371 Pa. Page 556]

    have been had a summons in assumpsit been regularly issued and a case stated thereupon submitted or a petition for a declaratory judgment had been filed: see, e.g., Malley v. American Indemnity Co., 297 Pa. 216, 219, 146 A. 571. Having jurisdiction of the subject-matter and of the parties, the court proceeded to a final adjudication of the controversy and entered judgment for the plaintiff, James Perkoski, against the insurance company in the sum of $2,832.50 with costs on account of his judgment against Wilson. Wilson has appealed, contending that the ...


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