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POOLE v. GREAT AMERICAN INSURANCE COMPANY (06/28/62)

June 28, 1962

POOLE
v.
GREAT AMERICAN INSURANCE COMPANY, APPELLANT.



Appeal, No. 14, March T., 1962, from judgment of Court of Common Pleas of Westmoreland County, April T., 1960, No. 574, in case of Edwin R. Poole v. Great American Insurance Company. Judgment affirmed.

COUNSEL

Robert W. Smith, Jr., with him Smith, Best and Horn, for appellant.

Myron W. Lamproplos, with him Cassidy & Lamproplos, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Bell

[ 407 Pa. Page 653]

OPINION BY CHIEF JUSTICE BELL

Plaintiff brought an action in assumpsit against Joseph S. Frankel and Fannie Frankel, his wife, to recover

[ 407 Pa. Page 654]

    a sum allegedly due for the installation of an exercise track on a farm owned by defendants. The complaint alleged that plaintiff did the work at the request of Frankel, who had express, implied or apparent authority to contract for the work on behalf of his wife. Thereafter, because both defendants failed to file an answer to the complaint, a default judgment was entered against them and an attachment execution was issued and served on the Mellon National Bank & Trust Company and the Commercial National Bank of Latrobe, as garnishees. Defendants had two joint bank accounts, with right of survivorship, in the Mellon Bank and these were caught by the attachment.

On defendants' petition to open the judgment, the default judgment was opened by the Court below. That Court also released the attachment execution and simultaneously ordered the posting of a corporate surely bond in the amount of $6,000. The bond was posted by the present appellant, Great American Insurance Company.

At the trial of the assumpsit action against the Frankels, the jury returned a verdict in favor of plaintiff and against Joseph S. Frankel in the sum of $4,300, and a verdict in favor of defendant Fannie Frankel. Following the entry of judgment on the verdict, the present action was brought by plaintiff against appellant-insurance company to recover the judgment, interest and costs. Plaintiff filed a motion for judgment on the pleadings, which was granted by the Court below. From that judgment Great American Insurance Company has taken this appeal.

Before considering the issues raised by this appeal it is well to consider the following pertinent legal principles governing cases of this class. In Ross v. Metropolitan Life Insurance Co., 403 Pa. 135, 169 A.2d 74, the Court said (page 136): "A motion for ...


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