Appeal, No. 279, Jan. T., 1955, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1953, No. 6200, in case of Frantz Tractor Co., Inc. v. Providence Washington Insurance Company. Judgment affirmed; reargument refused January 27, 1956.
Sydney C. Orlofsky, for appellant.
Harrison G. Kildare, with him Joseph W. Henderson and Rawle & Henderson, for appellee.
Before Stern C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This action is in assumpsit following the settlement of a subrogation action against a railroad carrier. The dispute relates to a question of payment of an attorney's fee.
Frantz Tractor Company, Inc., the plaintiff, appellant herein, the insured, hereinafter termed Frantz, shipped merchandise over the New York Central Railroad. Defendant, appellee, the Providence Washington Insurance Company, the insurer, hereinafter termed Providence, issued its policy of insurance to Frantz covering loss or damage to the shipment while in transit. A wreck occurred whereby Frantz's goods were damaged or destroyed. Plaintiff contended that the loss amounted to $91,103.04.
The facts are stated by the trial judge as follows: "... a settlement was reached wherein the railroad agreed to pay damages to Frantz Tractor Company in the amount of seventy-eight thousand dollars ($78,000.00) for its losses sustained. In addition it was agreed between the parties that the Defendant was to receive fifty-four thousand dollars ($54,000.00) of the settlement money as reimbursement for fifty-five thousand dollars ($55,000.00) previously advanced to the Plaintiff under a certain loan agreement, hereinafter referred to, and Plaintiff was to receive the remaining twenty-four thousand dollars ($24,000.00).
"The railroad sent its check for seventy-eight thousand dollars ($78,000.00) to Max C. Gwertzman, Esquire, the attorney of record for the Plaintiff, Frantz Tractor Co., Inc., in the New York suit. Gwertzman, who also represented the Defendant, which was not a party of record in the New York suit, forwarded the check to it and in return received the Defendant's check in the amount of twenty-four thousand dollars ($24,000.00)
payable to his order as attorney for Frantz Tractor Co., Inc. From this amount Gwertzman deducted three thousand dollars ($3,000.00) as his attorney's fee for representing the Plaintiff in the New York suit and then forwarded a check to Harry Norman Ball, Esquire, as attorney for Frantz Tractor Co., Inc. It is to be noted that Harry Norman Ball was an attorney for the Plaintiff but could not appear of record in that he was not a member of the New York bar and that Gwertzman was the sole attorney of record for the Plaintiff ... in the New York suit.
"The gist of Plaintiff's claim is that the Defendant agreed to pay it twenty-four thousand dollars ($24,000.00) but that it received only twenty-one thousand dollars ($21,000.00). The ...