Appeal, No. 325, Jan. T., 1960, from order of Court of Common Pleas of Lancaster County, Dec. T., 1957, No. 4, in case of Manufacturers Casualty Insurance Company v. Goodville Mutual Casualty Company et al. Record remanded, with order to enter judgment for defendant.
Henry T. Reath, with him W. Hensel Brown, and Duane, Morris & Heckscher, for appellant.
Ralph M. Barley, with him John C. Pittenger, and Barley, Snyder, Cooper & Mueller, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
This declaratory judgment proceeding was instituted by the plaintiff, Manufacturers Casualty Insurance Company, in an effort to impose liability upon Goodville Mutual Casualty Company, under an insurance policy issued by the latter company, for contribution to an $8,000 settlement and a $25,000 judgment for the respective plaintiffs in two personal injury actions, growing out of the same accident, for which Manufacturers
was concededly liable under its policy of insurance covering the impleaded defendant company in the two tort actions. Manufacturers also asks reimbursement from Goodville for one-half of the counsel fees and legal expenses incurred in the defense of the trespass cases. The court below decided in favor of Goodville on the ground of non-liability under the terms of its policy and entered an order dismissing the plaintiff's petition for a declaratory judgment. From that order, Manufacturers has appealed.
The material facts are not in dispute.
Goodville Mutual Casualty Company issued its automobile liability insurance policy to one Roy M. Wertz and his wife covering an automobile and a horse trailer owned by them. Under this policy, Goodville contracted "to pay on behalf of the insured all sums which the insured shall become legally obligated to pay" for damages "caused by accident and arising out of the ownership, maintenance or use" of the automobile or trailer. (Emphasis supplied) "The insured", as identified by the policy, were Roy M. Wertz and his wife and any person or organization using the automobile or trailer "with the permission of either" of them.
Roy M. Wertz gave such permission to M. A. Stoltzfus, individually, for his use of the trailer for the transportation of a horse. Stoltzfus hired one Wingenroth to do the actual transporting by means of a pick-up truck, as the motive power, to the rear end of which the horse trailer was attached. The pick-up truck was owned by D. M. Stoltzfus & Son, Inc., from which concern M. A. Stoltzfus, the individual, had rented it for the operation.
While the pick-up truck with the horse trailer attached was being driven by Wingenroth in an easterly direction on the Pennsylvania Turnpike, Wingenroth lost control thereof and the truck and trailer ...