Appeals, Nos. 277, 287, 288 and 312, Jan. T., 1955, from judgments and order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1953, No. 10532, in case of Insurance Company of North America and Empire Mutual Insurance Company v. Rose Alberstadt and D. Mullen Patterson. Order and judgments reversed.
Robert B. Ely, III and Barrett Godwin Tawresey, with them Gerald J. Haas and Gerber & Galfand, for plaintiffs, appellants.
E. C. Shapley Highley, with him Spiegel & Highley, for defendant appellant.
Samuel Melnick, with him Robert B. Ely, III, and Gerald J. Haas, for appellees.
Samuel Melnick and E. C. Shapley Highley for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN.
In this declaratory judgment proceeding*fn1 we are called upon to determine, in a somewhat unusual factual situation, the obligations of two insurance companies under policies issued by them, and also the respective rights of the parties insured thereby. The facts are as follows:
Rose Alberstadt (hereinafter called Alberstadt) was the owner of premises 2004 St. Albans Street in the City of Philadelphia, and on December 26, 1951, she
obtained from the Empire Mutual Fire Insurance Company of Pennsylvania (hereinafter called Empire Company) a fire insurance policy thereon in the amount of $3,500. On February 2, 1953, her property was sold at sheriff's sale for delinquent taxes to D. Mullen Patterson, (hereinafter called Patterson) for the sum of $2,600. Four days later, on February 6, 1953, Patterson obtained from the Insurance Company of North America (hereinafter called North America Company) a coverage of fire insurance on the premises in the amount of $2,500. On February 28, 1953, a fire occurred which damaged the property to the extent of $3,175. On March 2, 1953, Patterson paid the sheriff the amount of his bid, and on March 11, 1953, the sheriff's deed for the property was acknowledged by the Prothonotary and lodged for record.
While both the Alberstadt and the Patterson policies gave the companies an option to liquidate their obligations thereunder by repairing or rebuilding the property, they lost that right by not asserting it within the time therein stipulated. Alberstadt thereupon demanded the full amount of the loss, $3,175. from Empire Company, and Patterson demanded the full amount of his policy, $2,500. from North America Company. The court below entered such judgments. The companies are willing, by proration between themselves, to pay the ...