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JENNISON v. AACHER (ET AL. (09/12/63)

September 12, 1963

JENNISON
v.
AACHER (ET AL., APPELLANTS).



Appeal, No. 113, Oct. T., 1963, from judgment of Court of Common Pleas No. 5 of Philadelphia County, June T., 1958, No. 3369, in case of Walter Jennison v. Albert A. Aacher et al. Judgment affirmed.

COUNSEL

Joseph Head, with him Swartz, Campbell & Henry, for appellant.

Marvin H. Levin, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 201 Pa. Super. Page 584]

OPINION BY FLOOD, J.

This case raises certain questions as to procedure and evidence in garnishment proceedings under the attachment execution rules adopted by the Supreme Court in 1960.

The plaintiff, having obtained a judgment in trespass against the defendant Aacher in excess of $5,000, issued an attachment execution and served the appellant

[ 201 Pa. Super. Page 585]

    insurance company as garnishee, and on the same day caused interrogatories to be served upon the garnishee. The plaintiff's ninth interrogatory asked the company to state the amount of proceeds payable under its liability policy under the circumstances involved in the plaintiff's suit against the defendant. The garnishee's answer was:

"None. Although the policy provided coverage of $5,000, it was breached by the defendant by his failure and refusal to cooperate in the defense of this law suit; counsel employed by the Garnishee thereupon withdrew their appearance for the defendant upon leave granted January 9, 1959, by the Court of Common Pleas No. 5."

The parties went to trial on the issues raised by the answers and the plaintiff offered in evidence its interrogatories and the garnishee's answers and rested. The garnishee offered no evidence and submitted a point for binding instructions in its favor. The court declined the point, the jury returned a verdict in favor of the plaintiff against the garnishee for $5,000, the garnishee's motion for judgment n.o.v. was denied and it has appealed from the denial.

1. The garnishee's first argument is in effect that the procedural rules change the burden of proof as to non-cooperation shifting it to the plaintiff in execution from the garnishee insurer, upon whom it rests under the decision of the Supreme Court in Donaldson v. Farm Bureau Insurance Co., 339 Pa. 106, 14 A.2d 117 (1940).

The rules make no such change in specific language. However, the garnishee argues that the change is implicit in the rules upon the following reasoning: The rights of a plaintiff in an attachment execution on an insurance policy rise no higher than the rights of the insured defendant against ...


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