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KAUFMAN v. LIBERTY MUT. INS. CO.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA


April 15, 1958

Ben KAUFMAN, trading and d/b/a The Prince Distributing Company and Continental Casualty Company, a Corporation, Plaintiffs,
v.
LIBERTY MUTUAL INSURANCE COMPANY, a Corporation, Defendant

The opinion of the court was delivered by: MCILVAINE

In keeping with the remand of the Court of Appeals, 245 F.2d 918, further proceedings were held and upon the rehearing we find the jurisdictional amount and find the facts as follows:

Findings of Fact

 1. Liberty Mutual Insurance Company issued its Schedule General Liability Policy No. LN8-100173-52-Pa. to Ben Kaufman, trading as Prince Distributing Ben Kaufman, trading as Prince Distributing 1952, and expiring August 14, 1955, a true and correct copy of which policy is attached to plaintiff's complaint in declaratory judgment, and marked Exhibit 'A'.

 2. Continental Casualty Company issued its Comprehensive Automobile Liability Policy No. CCA5182890 to Ben Kaufman, trading as Prince Distributing Company, effective October 6, 1953, and expiring October 6, 1954, a true and correct copy of which policy is attached to plaintiff's amended complaint and marked Exhibit 'B'.

 3. On the 17th day of December 1954, notice of suit in trespass was filed by one, Florence McClester, against Ben Kaufman, trading and doing business as the Prince Distributing Company at No. 2857 January Term 1955 in the Court of Common Pleas of Allegheny County, Pennsylvania, and a complaint in trespass was filed by the said Florence McClester averring that she sustained injury on the 9th day of June 1954, at approximately 11:15 p.m. while walking in a westerly direction on the southerly sidewalk of Hoeveler Street near its intersection with Collins Avenue in the City of Pittsburgh, when a certain cellar door in this sidewalk allegedly was caused to be opened by an agent, servant or employee of defendant resulting in injury and damages to the plaintiff.

 4. Thereafter, the defendant filed a complaint to join as additional defendants, Anthony Tumola and Alexander Colaizzi, individually and trading and doing business as Hoeveler Grill.

 5. Ben Kaufman, trading as Prince Distributing Company, reported the alleged accident involving Mrs. Florence McClester to Continental Casualty Company on June 11, 1954, which company by its attorneys caused an appearance to be entered in behalf of the defendant, Ben Kaufman, subject however to a reservation of its rights under its policy.

 6. Thereafter, on or about February 4, 1955, the said Ben Kaufman reported the aforesaid accident and claim to Liberty Mutual Insurance Company.

 7. At the time of the alleged accident involving Florence McClester, one Francis Hoover was employed by Ben Kaufman as truck driver and Meyer Eismann as truck driver's helper and both were then and there engaged as the agent, servant, and employee of Ben Kaufman within the course and scope of their employment.

 8. At the said time a truck owned by Ben Kaufman was parked on Hoeveler Street at or near the curbing in front of or adjacent to the sidewalk cellar entrance to the basement of Hoeveler Grill.

 9. The said truck was one of the vehicles described in the declarations forming a part of the insurance policy issued to Ben Kaufman by Continental Casualty Company.

 10. The sidewalk cellar entrance involved consisted of two doors, substantially level with the sidewalk, extending approximately four feet from the building line toward the curb, hinged on the outside and meeting at the center line of the opening when closed.

 11. A barrel of beer was removed from the body of the said truck by Meyer Eismann, and placed upon the sidewalk at a point between the curb and the sidewalk entrance to Hoeveler Grill basement.

 12. After depositing the barrel of beer on the sidewalk, Meyer Eismann entered the basement of Hoeveler Grill by another entrance, unlocked the said sidewalk cellar doors from the inside, and was in the act of opening or beginning to open the said doors when the accident to Florence McClester occurred.

 13. Meyer Eismann, who is alleged to have negligently opened the said cellar doors, on prior occasions had followed the practice, and on this occasion intended to transport and deliver the said barrel of beer into the basement of Hoeveler Grill.

 14. In addition to the above facts as stipulated between the parties, the Court also finds as a fact that at the time Meyer Eismann was in the act of opening or beginning to open the sidewalk cellar doors it was part of the act of unloading from the vehicle within the meaning of the comprehensive automobile liability policy issued by Continental Casualty Company to Ben Kaufman, trading as The Prince Distributing Company. 15. The defendant through its counsel has unqualifiedly admitted the plaintiff's general allegation that the matter in controversy exceeds the sum of $ 3,000 exclusive of interest and costs. (Transcript, Pre-Trial Conference, December 16, 1957, p. 4). The Continental Casualty Company in addition loaned Ben Kaufman $ 4,000 to settle the suit of Florence McClester against him in which case she had claims and damages as follows: "Six months' lost wages $ 980.00 Pittsburgh Hospital 132.00 Dr. Swan 150.00 Dr. John Young 12.00 Watch repair 8.50 Medicine 15.80"

19580415

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