Appeals, Nos. 446, 447, and 448, Oct. T., 1960, from judgments of Municipal Court of Philadelphia County, Dec. T., 1959, No. 11955E, in case of Debbie Sanders, a minor, et al. v. Lawn Mutual Insurance Company. Judgments affirmed.
James M. Marsh, with him LaBrum and Doak, for appellant.
Joseph D. Shein, with him Shein and Berlant, for appellees.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 194 Pa. Super. Page 492]
This was an action in assumpsit commenced by the plaintiffs, Debbie Sanders, a minor, by her parents and natural guardians, Willie L. Sanders and Mary Sanders, and Willie L. Sanders and Mary Sanders, in their own right, against the defendant, Lawn Mutual Insurance Company. Plaintiffs sought to recover $250.00 for Debbie Sanders, $2,250.00 for Mary Sanders and $1,500.00 for Willie L. Sanders, from the defendant, alleging in their complaint that the defendant had agreed to pay those sums in settlement of plaintiff's claims against Marshall Christian, who was insured by the defendant. Defendant's answer admitted that defendant's agent, John Devine, had agreed to settle plaintiffs' claims for $4,000.00 on the basis of representations made to Devine by Joseph D. Shein, counsel for plaintiffs, and in addition defendant pleaded New
[ 194 Pa. Super. Page 493]
Matter setting forth that defendant made the settlement in reliance upon a police report furnished to defendant by Shein and Shein's representation that the facts as set forth in the police report were the facts of the accident. Defendant further alleged that the said police report was later found to be in error in that it was not the insured, Christian, but the driver of the plaintiffs' car, Willie L. Sanders, who had violated the stop sign and who had struck the insured, Christian, who was traveling on a through street.
Defendant further alleged that upon learning of the true facts, it advised Shein that the insurer would not carry out the settlement agreement because it was based on either (1) a mutual mistake of fact or (2) on a misrepresentation of a material fact. Plaintiffs filed amended preliminary objections. The court below sustained the amended preliminary objections and entered judgment for the plaintiffs.
During the entire argument of this case we were under the impression that the police report, furnished by Shein to Devine, showed that the defendant's insured, Christian, was on a stop street and had violated a stop sign and that plaintiffs' car was on a through highway. The appellant in its brief states as a fact "That diagram, as well as the section of the report headed 'Traffic Control,' indicated that traffic on Arch Street was subject to a stop sign which the insured violated and then struck plaintiffs who were traveling on a trough street (Fifty-eighth Street)."
We have examined the police report very carefully and it is clear that it correctly showed the facts. The report designates Christian's car as vehicle No. 1 and Sanders' car as vehicle No. 2.
It is true that under the block designated as "Traffic Control" it does have "1" inserted before the words "Stop Sign." This does not mean that car 1 (Christian's) ...