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LUTHER v. COAL OPERATORS CASUALTY COMPANY. (11/08/54)

November 8, 1954

LUTHER, APPELLANT,
v.
COAL OPERATORS CASUALTY COMPANY.



Appeal, No. 258, March T., 1954, from order of Court of Common Pleas of Indiana County, Sept. T., 1953, No. 6, in case of Mario H. Luther v. Coal Operators Casualty Company, et al., trading as L. K. Fassett & Son. Order affirmed. Assumpsit. Defendants' preliminary objections sustained and order entered dismissing complaint, opinion by CREPS, P.J. Plaintiff appealed.

COUNSEL

James G. Moore, with him Earl R. Handler, for appellant.

Joseph W. Serene, with him Peelor, Serene & Fee; Smith, Best & Horn, and James L. Jack, Jr., for appellees.

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

Author: Stern

[ 379 Pa. Page 114]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

In this case plaintiff is attempting to foist upon defendants a contractual liability which is wholly unwarranted, there being no semblance of a contractual

[ 379 Pa. Page 115]

    or other relationship between the parties which would properly give rise to any legal obligation on their part.

Plaintiff's complaint in assumpsit stated that on or about November 23, 1948, the defendant Casualty Company, through defendants L. K. Fassett & Son acting as its agents, issued to plaintiff a one-year Workmen's Compensation Insurance policy which was a renewal of similar policies issued to him on or about November 23, 1945, 1946 and 1947. It alleged that on or about November 23, 1946, the defendant company, through these same agents, "voluntarily undertook" to reissue and renew plaintiff's policies of insurance upon the expiration thereof, and in pursuance thereof did reissue or renew the policies dated November 23, 1945, 1946 and 1947, without the knowledge of, notification to, or request from plaintiff at the time of effecting such re-issuances or renewals. It further stated that the re-issuances and renewals were made with the intention of defendant Company that plaintiff should rely upon it to reissue or renew his insurance without any knowledge, notification or action by plaintiff, and that plaintiff did rely upon it to reissue and renew his insurance on or about November 22, 1949, but defendant at that time failed and neglected to reissue and renew the policy and did not notify plaintiff of its intention or failure to do so. On or about August 15, 1950, one of plaintiff's employes was injured while engaged on plaintiff's business and then, for the first time, plaintiff found out that defendant had not reissued or renewed the policy. Defendant having refused to assume any liability in the matter of the employe's claim, plaintiff sustained a loss by reason of the compensation payments, attorney's fees, and other items which he was compelled to pay, amounting to approximately $7,000.00, to recover which he instituted the present suit. Alleging in an alternative pleading that the defendants

[ 379 Pa. Page 116]

L. K. Fassett & Son acted as insurance brokers on his behalf in all the matters above set forth, he sought recovery against them in the same amount.

Defendants filed preliminary objections in the nature of a demurrer to the complaint. The court sustained the objections and dismissed the ...


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