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.
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.
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
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 ...