Appeals, Nos. 242, 243 and 252, Jan. T., 1952, from judgments 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 and Colonial Mutual Casualty Company. Judgments reversed.
Peter P. Zion, with him Leonard A. Green and Zion, Kaliner & Green, for Penn Mutual Indemnity Company, garnishee, appellant.
George P. Williams, Jr., with him Orr, Williams & Baxter and Webster S. Achey, for plaintiff, appellant.
George W. Alexander, Jr., for Colonial Mutual Casualty Company, garnishee, appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
When a phase of this litigation was here before (see Vrabel v. Scholler, 369 Pa. 235), Mr. Justice BELL, speaking for this court expressly stated that "Three important questions are involved: (1) Was the mutual mistake of fact which defendant [garnishee] 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 [defendant garnishee] liable (if at all) for the full amount of the insurance or only pro rata with its co-insurer?"
The above stated questions were taken up seriatim and disposed of. The first two were answered in the negative, i.e., we held (1) that the policy issued by Penn Mutual Indemnity Company (hereinafter referred to as Penn Mutual) to the defendant Scholler in intended substitution for a policy theretofore issued to him by Colonial Mutual Casualty Company (hereinafter referred to as Colonial) which was not cancelled, as contemplated, was not such a mistake of fact as would avoid Penn Mutual's contract and (2) that the acceptance by the Secretary of Revenue of Penn Mutual's
certificate of Scholler's financial responsibility was not a condition precedent to the effectiveness of Penn Mutual's policy.
We further held (3) that, in view of the fact that Colonial's policy in favor of Scholler was subsisting and outstanding at the time of the accrual of Scholler's liability to the plaintiff Vrabel, the extent of Penn Mutual's liability to indemnify Scholler was, under the "other insurance" clause of its policy, only its pro rata share of the loss. In support of that conclusion, Mr. Justice BELL stated and quoted as follows at p. 243, -- "The question and the applicable law is thus aptly stated by Judge PARKER in Miller v. The Home Insurance Co., [108 Pa. Superior Ct. 278]: 'Have we here a case of double insurance that renders operative the pro rata clause? In Sloat v. Royal Insurance Co., 49 Pa. 14, READ, J., said (p. 18): "Double insurance takes place when the assured makes two or more insurances on the same subject, the same risk, and the same interest. If there be double insurance, either simultaneously or by successive policies, in which priority of insurance is not provided for, all are insurers, and liable pro rata"'" (Emphasis, Justice BELL's). In conclusion, we said (pp. 243-244), -- "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 [Penn Mutual], however, does not aver the amount of ...