Appeal, No. 175, March T., 1952, from decree of Court of Common Pleas of Westmoreland County, Feb. T., 1952, No. 56, in case of Eureka Casualty Company v. May Henderson. Decree affirmed.
Fred B. Trescher, with him Kunkle & Trescher, for appellant.
No argument was made nor brief submitted for appellee.
Before Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
The court below correctly held that this was not a case for declaratory judgment.
A policy issued by plaintiff, Eureka Casualty Company, to defendant, May Henderson, provided that the Company would pay on behalf of the insured all sums which the latter should become obligated to pay by reason of the liability imposed upon her by law for damages sustained by any person or persons and caused by accident arising out of the ownership, maintenance or use of the premises 213 Sixth Avenue, New Kensington, Pa. These premises were a private residence of which the insured was co-owner with her sister Charlotte Henderson and which they both occupied. While the policy was in force another sister of defendant, Mrs. Elizabeth Quentin, a resident of Port Washington, New York, on the occasion of a visit to defendant's home accidentally fell in one of the bedrooms and thereby sustained injuries. The cause of the fall does not appear, but there is an intimation that Mrs Quentin may have slipped on the hardwood floor or on one of the rugs. She brought no suit in Pennsylvania against defendant during the period of the Statute of Limitations, but did institute an action in Nassau County, New York, in which State apparently the Statute of Limitations had not barred the suit.
Thereupon plaintiff filed in the Court of Common Pleas of Westmoreland County a petition of declaratory judgment, in which it averred that, upon being
notified of the accident, it made an immediate investigation of the premises and found them in good condition; that it interviewed the three sisters and all of them described the fall as an unavoidable mishap and that there was no hazardous condition in the room in which the fall occurred and that they did not know the cause of the fall; that plaintiff thereupon notified Mrs. Quentin that there was no liability imposed by law on the insured and therefore no obligation on plaintiff's part to assume any responsibility for the claim. The petition set forth express conditions of the policy to the effect that the insured would cooperate with the Company in the event of an accident and a claim therefor, that she would, upon the Company's request, assist in securing and giving evidence, and that the title and ownership of the premises were as stated in the policy. It was averred that she had violated and failed to comply with these conditions in that she had repeatedly refused to give a written statement concerning the circumstances of the accident and the conditions existing at the premises, that she had repeatedly advised her sister Charlotte not to give any such written statement, that she had frequently asserted that she would see that her sister Elizabeth was paid for her injuries notwithstanding the terms of the policy and she would help her to recover against plaintiff, and that she had often demanded that plaintiff make a settlement with Mrs. Quentin notwithstanding the fact that there was no liability imposed by law upon the defendant because there was no negligence on her part. It was further stated that the title and ownership of the premises were not in defendant alone but that Charlotte Henderson was a co-owner, that defendant had entered into a collusive agreement with Mrs. Quentin to be present at the latter's place of business in New York so as to permit of service of a summons being
made upon her there and to have the action in New York instituted against defendant alone, whereas, the liability, if any, would be upon her and her sister Charlotte; finally, that she had failed to give immediate notice to plaintiff of the fact that a summons had been served upon her. By reason of these alleged facts plaintiff averred that defendant had forfeited all rights to protection under the policy, and the court was requested to enter judgment to that effect and ...