Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY WISCONSIN v. MELCHER (09/27/54)

September 27, 1954

EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, APPELLANT,
v.
MELCHER



Appeal, No. 25, Jan. T., 1954, from judgment of Court of Common Pleas of Montgomery County, Nov. T., 1952, No. 23, in case of Employers Mutual Liability Insurance Company of Wisconsin v. Thomas Q. Melcher and Dennis Q. Melcher, trading as Penn Lumber and Mill Works. Judgment reversed. Assumpsit. Defendants' preliminary objections sustained and judgment entered for defendants, opinion by FORREST, J. Plaintiff appealed.

COUNSEL

Roger B. Reynolds, with him Herbert A. Barton and Swartz, Campbell & Henry, for appellant.

Sylvan D. Einhorn, with him Cassin W. Craig, Wisler, Pearlstine, Talone & Gerber, and Winer, Einhorn & Somerson, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 378 Pa. Page 599]

OPINION BY MR. JUSTICE ARNOLD

In this action of assumpsit brought by plaintiff Insurance Company as subrogee of its insured, West, the court below sustained defendants' preliminary objections in the nature of a demurrer, and plaintiff appeals.

For a stated consideration, defendants leased their truck to West for a designated trip, and for West's sole business, under a lease agreement providing, inter alia, that: (a) defendants would fully maintain, service and repair the vehicle, and provide all gas, oil and other equipment; (b) defendants would provide a driver and pay his salary; (c) West would not be liable for loss or damage of the vehicle; (d) defendants would "indemnify Lessee [West] against (1) any loss resulting from the injury or death of such (drivers) and (2) any loss or damage resulting from the negligence... of such (drivers)"; and that the stated consideration would "constitute full and complete payment

[ 378 Pa. Page 600]

    by Lessee [West] for... all taxes, insurance, including social security, workmen's compensation and withholding tax."

The driver died of injuries suffered in a collision, and a claim for workmen's compensation was brought by his dependents against both West and these defendants as his employers.

In the compensation case, the question was whether the driver was the employe of West or of these defendants. The Superior Court (Wall v. Penn Lumber & Mill Works, 171 Pa. Superior Ct. 512, 90 A.2d 273) held that West was his employer. Thus plaintiff, as West's compensation carrier, had to pay the claim.

On the strength of the above-quoted provisions of the lease, and its right of subrogation under the insurance contract with West,*fn1 plaintiff seeks in this proceeding to recover from defendants the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.