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FEINSTEIN v. ORENSTEIN (ET AL. (11/13/56)

November 13, 1956

FEINSTEIN
v.
ORENSTEIN (ET AL., APPELLANTS).



Appeal, No. 190, Oct. T., 1956, from judgment of Court of Common Pleas No. 5 of Philadelphia County, March T., 1950, No. 7452, in case of Harry Feinstein v. Milton Orenstein and New Amsterdam Casualty Company. Judgment affirmed.

COUNSEL

Ralph S. Croskey, with him Croskey & Edwards, for appellant.

David Kanner, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).

Author: Ervin

[ 182 Pa. Super. Page 229]

OPINION BY ERVIN, J.

This is an appeal by the New Amsterdam Casualty Company from the refusal of the court below to grant a motion for a new trial after verdict rendered by a jury in favor of the plaintiff and against appellant as garnishee in an attachment sur judgment proceeding.

Albert Orenstein was insured by the New Amsterdam Casualty Company under an automobile liability policy. On January 3, 1950, while the policy was in force, Milton Orenstein, son of the insured, who was also insured under the terms of the policy, was involved in an automobile accident with a vehicle operated by Harry Feinstein. Feinstein instituted an action in trespass against Milton Orenstein on May 29, 1950. The complaint was served on June 1, 1950. Judgment was entered on December 15, 1950 for want of an appearance and on Pril 12, 1954 damages were assessed in the amount of $1,500.00. An attachment sur judgment was issued and the appellant was brought in as garnishee. Interrogatories were filed by the plaintiff and answered by the appellant. The trial of the case resulted in a verdict in favor of plaintiff against the garnishee. The court below refused to grant garnishee's motion for new trial and this appeal followed.

Appellant contends the court below abused its discretion in refusing the motion for a new trial which was based on the claim the verdict was against the weight of the evidence. The granting of a new trial on the ground that the verdict is against the weight of the evidence is peculiarly for the court below, and its decision is not a matter for review on appeal in the absence of palpable abuse of discretion. Savitz v. Gallaccio, 179 Pa. Superior Ct. 589, 118 A.2d 282.

[ 182 Pa. Super. Page 230]

In the instant proceeding the garnishee set up the affirmative defense of failure of the insured to cooperate with the garnishee by not giving timely notice of the suit brought against the insured or delivering the suit papers to the garnishee as the insured was required to do under the provisions of the policy. Therefore, the burden of proof was on the garnishee. Shaffer v. Hebenstreit, 119 Pa. Superior Ct. 159, 180 A. 725.

The defense asserted by the appellant as contained in reply to plaintiff's interrogatories is as follows: "The New Amsterdam Casualty Company, garnishee, was prejudiced by the entry of judgment of December 15, 1950, against Milton Orenstein, its insured, as the defendant, Orenstein, had failed to co-operate as obligated to do under the terms and conditions of the policy, by giving to the insurer, the New Amsterdam Casualty Company, notice of the suit, and failed to co-operate by permitting judgment to be entered against him, the defendant, Milton Orenstein, without giving notice of the suit to the New Amsterdam Casualty Company."

Appellant admits the receipt of notice of the accident on January 10, 1950 and that a written report of the accident dated March 7, 1950 was filed by Milton Orenstein. Appellant also acknowledges receipt of a report of an examination of Feinstein by Dr. Segal concerning injuries Feinstein sustained as a result of the accident. However, appellant contends no notice of the commencement of any legal proceedings was received from the ...


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