Appeal, No. 468, Jan. T., 1961, from judgment of Superior Court, Oct. T., 1961, No. 14, affirming order of Court of Common Pleas of Northampton County, June T., 1959, No. 54, in case of Marco Bonfitto v. Nationwide Mutual Insurance Company et al. Judgment affirmed; reargument refused February 6, 1962.
William C. Cassebaum, with him Thomas Arcorace, for appellant.
James B. McGiffert, with him Fackenthal, Teel & McGiffert, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
Plaintiff, in May, 1959, sued defendant and Bell in assumpsit on the basis of promissory estoppel, and Bell for deceit. The damages claimed were for personal injuries resulting from the insurance company's insured running over plaintiff's foot. At trial the action against Bell for deceit was withdrawn and the jury found for Bonfitto against the Insurance Company in the sum of $3564. If Bell's employer was liable because of Bell's representations, it is difficult to understand how Bell could be absolved and his employer
found liable. The Court of Common Pleas entered judgment non obstante veredicto. This judgment was affirmed by the Superior Court on the theory of the law of the case.
The instant case arose under, or as a result of, the following circumstances: On September 22, 1954, Marco Bonfitto brought an action of trespass for injuries to his foot which allegedly resulted from Joseph Bonfitto backing Antonio Bonfitto's car over Marco's foot. Marco, Joseph and Antonio were brothers. Antonio Bonfitto was insured by Nationwide Mutual Insurance Company.*fn1 The trespass case was tried by Judge WOODRING without a jury on the basis of the pleadings and a stipulation of the parties. The relevant portions of Judge WOODRING'S opinion, which made absolute defendant's motion for judgment on the pleadings and directed a judgment be entered for defendant, are as follows:
"... Plaintiff testified that following the accident of March 19, 1952, Edgar T. Bell, who called himself an adjuster for Farm Bureau, visited plaintiff in May or June of 1952, and that Mr. Bell told plaintiff: 'Take care of the foot. Come see me ... when Dr. Johnson discharge you'. The next visit was three months later, August or September 1952, and plaintiff testified that the only conversation was Mr. Bell's inquiry about plaintiff's foot. Mr. Bell visited a third time, October or November 1952, at which time plaintiff testified Mr. Bell said: 'Take care of foot. When Dr. Johnson discharge, you come see me up at the office. I no come around no more.'
"... we find no fraud nor concealment. A Mr. Bell, allegedly a representative of defendants' insurance carrier, but doubtless ...