Appeal, No. 209, Jan. T., 1957, from judgment of Court of Common Pleas of Montgomery County, Nov. T., 1954, No. 516, in case of Thomas Q. Melcher and Dennis Q. Melcher, trading as Penn Lumber and Millworks, v. Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company. Judgment affirmed.
Desmond J. McTighe, with him Lawrence A. Brown and Duffy, McTighe & McElhone, for appellant.
Cassin W. Craig, with him William W. Vogel and Wisler, Pearlistine, Talone & Gerber, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE MUSMANNO
The Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company, the defendant in this case, entered into a Workmen's Compensation insurance contract with the plaintiffs Thomas Q. Melcher and Dennis Q. Melcher, trading as Penn Lumber and Millworks. The policy contained a so-called Truckmen's Endorsement which is vital to the disposition of this lawsuit and will be referred to later.
On September 14, 1949, the Melchers leased to Winfield A. West a tractor-trailer, with an accompanying driver Charles Wall, under an agreement which provided that the Melchers would indemnify West against "(1) any loss resulting from the injury or death of such driver(s) and (2) any loss or damage resulting from the negligence, incompetence or dishonesty of such driver(s)." While this agreement was in effect, Wall was killed as the result of an accident, and his widow filed claim for workmen's compensation against both the Melchers and West. The Workmen's Compensation Referee decided that West was responsible for payment of the Workmen's Compensation because Wall, at the time of his death, was acting under West's specific direction and control. This decision was affirmed by the Superior Court. (171 Pa. Superior Ct. 512).
West's insurance carrier, the Employers Mutual Liability Insurance Company of Wisconsin, relying on the indemnity clause contained in the agreement between Melchers and West, brought action, as a subrogee of West, against Melchers for amounts paid to Wall's widow and children, and recovered. In this litigation, Melchers insurance carrier, Pennsylvania Threshermen, refused to defend Melchers on the ground that Threshermen had not contracted to indemnify Melchers for anything beyond straight workmen's compensation payable by Melchers to their own employees.
With this prologue, we come to the present lawsuit. Melchers entered suit against Threshermen for the amounts paid by them to Employers Mutual Liability, plus counsel fees and amounts expended in defending the Employers Mutual Liability suits.
Threshermen admitted the allegations in the plaintiffs' complaint but denied liability, asserting (1) that its policy covered only Workmen's Compensation claims, ...