settlement, would have joined in the defense of any suit against Johnson; it would not have thrust sole responsibility upon the plaintiff. When the defendant falsely disclaimed and refused to undertake or perform its obligations it lost its rights to complain that the plaintiff undertook the obligations of both in the common, as well as its own, interest. Certainly the fact that the existence and extent of Johnson's liability to Ryan was not determined by a final judgment in a suit by Ryan against Johnson does the defendant no injustice when, as here, after the defendant is accorded full hearing, it is judicially determined that Johnson was liable and that the amount paid Ryan in settlement was fair and reasonable. Defendant had no contract with plaintiff which entitled the defendant to have the existence and extent of Johnson's liability determined in a particular forum or in a particular suit.
Defendant relies strongly upon Pasquinelli v. Reed, 1954, 174 Pa.Super. 566, 102 A.2d 219, which, on analysis, fails to support its contention. There, the insurer, having paid a judgment obtained by a wife-plaintiff against its insured, petitioned the court, conformably with Pennsylvania procedure, to obtain contribution from the wife's husband, who had been co-plaintiff with the wife in the suit against petitioner's insured. It was determined that the insurer's petition was procedurally incorrect because there had been no verdict or judgment in the wife's suit establishing the liability of the co-plaintiff husband to her. The petition assumed, rather than sought to establish, the existence and extent of such liability. The isolated language of that opinion which defendant stresses is:
'Counsel has not cited nor have we discovered a decision enforcing contribution against one whose liability has not been established by a verdict.' 174 Pa.Super. at page 569, 102 A.2d at page 220 (emphasis supplied.)
The effort there was to enforce, by petition, contribution against an alleged joint tortfeasor whose liability had not been established previously and could not be established in the petition proceeding. The plaintiff's effort here is to establish judicially, through appropriate proceedings, the existence and extent of the liability of the defendant's insured and, if successful in that effort, to establish, further, defendant's liability for contribution.
Capitol Ins. Co. v. Standard Ins. Co., 1954, 102 P.L.J. 80, cited by defendant, is readily distinguishable. In that case, decided by the County Court of Allegheny County upon the pleadings, the court significantly stated:
'Plaintiff's reason for paying $ 700 -- the entire loss -- without suit, is not revealed in the complaint and amendment thereto.' 102 P.L.J. at page 81.
It is clear from the opinion that the defendant co-insurer had not disclaimed coverage, falsely or otherwise, and that plaintiff co-insurer, entirely on its own initiative and without defendant's knowledge or assent, settled the claim without suit and thereafter made demand for contribution.
We hold, under the facts of this case, that the absence of a prior final judgment determining the existence and extent of Johnson's liability to Ryan does not bar plaintiff's right to contribution and that the existence and extent of such liability may be determined in this suit.
The defendant having, at the trial, conceded for the first time that it was a co-insurer, now urges that it was liable for one-third of Johnson's loss but is relieved of its obligation of contribution because plaintiff, as a volunteer, paid the whole loss rather than its proportionate two-thirds share. When, as here, the defendant's position at trial is completely different from and wholly inconsistent with its earlier position, the rights of the parties must be tested and determined as of the time of plaintiff's payment and not as of the time of trial. If defendant had admitted coverage prior to plaintiff's payment, doubtless this suit would have been unnecessary.
To support its contention defendant relies on certain dictum in American Casualty Co. v. Maryland Casualty Co., D.C.E.D.Pa.1937, 20 F.Supp. 561. In that case, however, the alleged co-insurer validly disclaimed because its policy did not cover the motorcycle involved. Since there was no co-insurance there was no liability for contribution, and the court so held. Moreover, the subsequent dictum affords defendant little support when the facts are examined. One Alonzo had previously sued Claverie, the alleged insured. That suit, in which American Casualty Co. (American) alone defended Claverie, resulted in a judgment for Alonzo against Claverie. American then disclaimed coverage of Claverie who thereupon brought an action against American and, despite its defense of noncoverage, obtained a judgment against it because American was estopped from asserting this defense.
American paid the judgment against it and, in turn, sued Maryland Casualty Co. (Maryland), the alleged co-insurer for contribution. On this state of facts the rationale of the dictum was that even if, as American contended, Maryland was liable upon its policy, American was then only liable for one-half the claim and American's failure, in Claverie's suit against it, to interpose the defense of co-insurance to half of Claverie's claim either rendered American a volunteer or constituted, in effect, an admission by American that Maryland was not liable on its policy. In the instant case neither such opportunity nor such failure to interpose a partial defense of co-insurance exists to support the inferences drawn in that dictum. Moreover, in that case there was no false disavowal of coverage by Maryland.
It has long been recognized in Pennsylvania that 'Contribution is bottomed and fixed on general principles of natural justice and does not spring from contract.'
In Parker v. Rodgers, 125 Pa.Super. 48, 51, 189 A. 693, 695, the court said:
'The doctrine of contribution rests on the principle that, when the parties stand in aequali jure, the law requires equality, which is equity, and one of them shall not be obliged ot bear a common burden in case of the rest. * * *'
When the plaintiff paid the whole of Johnson's loss the defendant denied to plaintiff that it shared the nowadmitted common burden of Johnson's liability. This denial was a false representation to plaintiff that, within the meaning of the 'Other Insurance' provisions in both policies, Johnson had no 'valid and collectible insurance' with defendant for loss resulting from this casualty. Plaintiff thus was compelled to act on the assumption, as defendant well knew, that the burden was the plaintiff's alone. In so acting the plaintiff decided, wisely, to join with Reading Company in a reasonable settlement before any suit, and to have judicially determined thereafter the truth or falsity of defendant's representation of noncoverage. Faced with this suit for such determination defendant staunchly adhered to falsity until trial and then, forced into reluctant admission of the truth, sought to turn to its own advantage its former falsity by asserting that the very payment which its own misrepresentations obliged constituted the plaintiff a volunteer. Whether the legal principles in the Murphy case, supra, or equitable principles of estoppel are applied, the defendant cannot now be heard to complain of the consequence of its own conduct.
Moreover, a 'volunteer', under the principle defendant seeks to apply, is a stranger or intermeddler who has no interest to protect and is under no legal or moral obligation to pay under the circumstances. Beck v. Beiter, 1941, 146 Pa.Super. 114, 22 A.2d 90; Home Owners' Loan Corp. v. Crouse, 1943, 151 Pa.Super. 259, 30 A.2d 330; Southern Surety Co. v. Commercial Casualty Co., 3 Cir., 1929, 31 F.2d 817. Under the facts we conclude that neither was the plaintiff a volunteer nor may the defendant, by reason of its own conduct, so assert. Judgment as prayed for will be entered for the plaintiff and against the defendant on submission by counsel of an appropriate order.