$ 26.00. On August 12, 1955, the date after the accident, plaintiff paid the remaining $ 26.00. On August 25, 1955, defendant refunded to plaintiff $ 1.46, which the defendant intended to cover the five days from August 7 to and including August 11, 1955, at the rate of approximately 29.1 cents per day. This check was never cashed by plaintiff. No other refund was ever tendered at any time.
As stated in the dissenting opinion of Judge Cummins in the Court of Common Pleas of Washington County, Pennsylvania, under item 19 of the 'Conditions' of the policy five days' written notice of cancellation to the insured was required. As the date of non-payment was August 7, 1955, the policy could not have been cancelled in accordance with its terms before August 12, 1955.
Moreover, under the terms of the policy, for the defendant insurer to be relieved of liability a lawful and timely tender or payment of the entire earned unearned premium on a pro-rata basis must be made in order for the cancellation of the policy to be effective. This was not done. It is uncontroverted that the first $ 26.00 alone would have carried the policy to August 18, 1955.
Having thus concluded that the policy was in force, we must now consider whether the exclusion from coverage relieves defendant of liability. Under paragraph (e) of the exclusions from coverage, it is provided in the policy that it shall not apply 'to the insured or any member of the family of the insured residing in the same household as the insured'.
Inasmuch as we are here dealing with statutory beneficiaries under the Pennsylvania Wrongful Death Act, and not with a claim for the benefit of the estate of Gedeon's deceased wife, it is clear that the fact that the person killed was plaintiff's wife is not controlling. We must inquire whether the statutory beneficiaries were persons 'residing in the same household as the insured'.
According to Gaydos v. Domabyl, 301 Pa. 523, 532, 152 A. 549 (1930), the statutory beneficiaries for whose benefit suit under the Act should be brought include all the children of the decedent, even though at trial a pecuniary loss to one or more of them only can be shown. At trial the verdict must be confined to the actual pecuniary loss shown to those damaged. But it seems that the verdict and distribution of the amount recovered must be made equally among all the children.
It is conceded here that there are children who did not reside with the plaintiff, and therefore are not barred from recovery by the exclusion from coverage in the policy. Whether any pecuniary damage was shown to those persons not disqualified under the policy, or whether any proportional diminution in the recovery should have been enforced, are issues which constituted proper mater of defense in the original suit against the defendant individually in Washington County which the defendant insurance company elected not to defend. Therefore, these points are foreclosed and cannot be raised now. We, therefore, hold that the exclusion from coverage in the policy does not relieve defendant from liability.
The same reasoning applies to the defense now asserted that the statutory beneficiaries were inadequately identified in the original suit. For purpose of Action No. 63-1021, it is sufficient that the beneficiaries of this action are sufficiently identified as being the same persons for whose benefit the original judgment in Washington County was obtained against the original defendant. This action, as has been stated, is merely in the nature of an ancillary action to apply an available asset to satisfaction of the original judgment against the individual defendant recovered in Washington County at No. 234 February Term, 1956.
It remains to consider whether the action here is barred by the statute of limitations. It appears that the verdict against the plaintiff individually was rendered on June 1, 1956. No motion for new trial or for judgment non obstante veredicto was ever filed, but judgment was not formally entered on the verdict by the Prothonotary until November 25, 1957. Defendant contends that the actual entry of judgment is a mere formality and that after the expiration of the four day period for filing motions, the formal entry is a matter completely within the control of the successful party (or for that matter, either party) upon payment of the jury fee and filing a praecipe to enter judgment. Hence, the defendant urges, the statute began to run on June 5, 1956, not on November 25, 1957.
This argument would be impressive if we were not dealing with a printed insurance policy, which must be construed against the party preparing it.
Item 4 of the 'Conditions' of the policy provides that 'no action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, or until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company'. (italics supplied). Since the company has thus undertaken to prevent accrual of an action against itself until after 'judgment' has been rendered against the insured after actual trial of the case, it seems plain that the statute of limitations did not begin to run until the entry of an actual judgment, as required by the policy terms. Consequently, the pending action is not barred by the statute of limitations.
For the foregoing reasons, defendant's motion for judgment on the pleadings must be denied. There being no crossmotion by plaintiff for judgment on the pleadings, it would be premature to enter judgment for the plaintiff in the amount of $ 10,000.00 (the policy limits). There may be lurking in the record pertinent controverted issues of fact to be determined by trial of the case, in accordance with the views set forth in this opinion.
And now, this 18th day of March, 1964, after argument, and for the reasons set forth in the foregoing opinion,
It is ordered that defendant's motion to dismiss Civil Action No. 63-1020 be, and the same hereby is, granted, and that said cause be, and the same hereby is, dismissed; and that defendant's motion to dismiss Civil Action No. 63-1021 be, and the same hereby is, denied.