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DAVIES v. DAVIES. (07/02/63)

July 2, 1963

DAVIES, APPELLANT,
v.
DAVIES.



Appeal, No. 177, Jan. T., 1963, from judgment of Court of Common Pleas No. 3 of Philadelphia County, June T., 1961, No. 1966, in case of Sophie Davies v. Albert T. Davies, administrator of estate of Albert V. Davies, deceased, and Nationwide Insurance Company. Judgment reversed; reargument refused August 6, 1963.

COUNSEL

Fred Lowenschuss, with him Snyder & Lowenschuss, for appellant.

Max E. Cohen, for appellee.

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

Author: Musmanno

[ 412 Pa. Page 48]

OPINION BY MR. JUSTICE MUSMANNO

The manner in which the sole issue in this case arrived at a decisional stage is procedurally complicated but only those details which have a direct bearing on the appellate question will be recited. Sophie Davies, the plaintiff here, was a passenger in an automobile owned and being operated by her husband Albert V. Davies on April 5, 1953, when it collided with

[ 412 Pa. Page 49]

    an automobile owned and being operated by Wiley B. Dotson, and in which his wife, Gertrude Dotson, was a passenger. Both Mrs. Davies and Mrs. Dotson were injured. Albert V. Davies was killed.

On July 10, 1961, Sophie Davies brought an action of trespass in the Court of Common Pleas No. 3 of Philadelphia County, against the estate of her husband, her son, Albert T. Davies being administrator thereof. The Nationwide Mutual Insurance Company, which carried the insurance on the Davies car, defended the suit under the terms of its policy, filing preliminary objections which pleaded the statute of limitations. The court overruled the preliminary objections and Nationwide then prepared an answer containing new matter which raised as an affirmative defense the statute of limitations and laches.

The defendant-administrator, Albert T. Davies, refused to sign the verification to the answer because it contained, he asserted, averments which were contrary to fact. Nationwide refused to defend and, in consequence, on December 19, 1961, the plaintiff obtained a judgment by default against the Davies Estate, damages being assessed in the sum of $11,149.80.

On June 19, 1962, a writ of execution issued, designating Nationwide as garnishee. Nationwide again raised the defense of statute of limitations. In reply to the new matter in the garnishee's answer, the plaintiff filed what it called "Additional Interrogatories to the Above-Named Garnishee," seeking facts and information regarding certain developments which followed the accident. Nationwide filed a motion for judgment on the pleadings, together with preliminary objections to the additional interrogatories advanced by the plaintiff. On January 17, 1963, the court sustained the ...


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