and sets up reserves for the purpose of paying verdicts, and can set off against each other the lean and fat verdicts, so that the wins and losses average out over the long pull.
Mr. Lancaster also conceded that a jury might have awarded $ 25,000.00 and that Mr. Casey's settlement was a good result, advantageous to plaintiff.
Accordingly we find and hold that Mr. Casey handled the case properly, and that the verdict of $ 4850.00 was a bona fide and reasonable disposition of the matter as the result of arms length negotiation and the due exercise of professional judgment.
The verdict, therefore, should be paid, under one of the covenants which an insurer undertakes for the benefit of its policyholder. Gedeon v. State Farm Mutual Ins. Co., 410 Pa. 55, 58-59, 188 A.2d 320 (1963).
But as that case explains, the insurer also has another duty, that of affording the insured a defense. 'Since the insurer thus agrees to relieve the insured of the burden of defending even those suits which have no basis of fact, * * * the obligation to defend arises whenever the complaint filed by the injured party may potentially come within the coverage of the policy' (supra, p. 58, 188 A.2d p. 321, italics those of Mr. Justice Cohen).
It cannot be said that Smiechowski's complaint here did not potentially come within the policy coverage. Obviously the defendant insurance company was under an obligation to defend and must pay Mr. Casey's fee, which we find to be reasonable and proper in amount.
Defendant's effort to prove the fee excessive rests mainly on an attempt to apply a per-hour charge to an assumed period of time spent on the case. But, as is well known and recognized in the American Bar Association's canons on fees, the amount of time spent on a case is only one factor entering into the amount of the fee. Other factors properly to be taken into account are the result reached, the importance vel non of the case to the client, the client's ability to pay, whether case is for a casual 'walkin' client or for a regular client on retainer, the time taken from work for other clients, the professional stature of the attorney, his customary charges to other clients, and the like.
No attempt has been made here to attack Mr. Casey's qualifications, but we may take judicial notice of the fact that he does have an extensive and presumably lucrative practice in other fields than personal injury work for institutional defendants such as the B. & O. United States v. Sams, 219 F.Supp. 164, 165 (W.D.Pa.1963). Mr. Casey testified that the fee here was commensurate with his customary charges and was not inflated in order to 'soak' the insurance company. We find and hold that the fee charged is reasonable in amount and not excessive. Defendant must pay it.
It remains to consider defendant's contention that it is relieved by plaintiff's failure to give notice of the incident of March 3, 1958, before suit was filed, citing Jeannette Glass Co. v. Indemnity Insurance Co. of N. America, 370 Pa. 409, 88 A.2d 407 (1952). As in that case, the policy here provides:
'9. Notice of Accident. When an accident occurs written notice shall be given by or on behalf of the insured to the Company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.'
The factual situation here is different from that in Jeannette. There an employee of a contractor was injured when a steel beam fell and hit him during the course of construction work on the premises. It was thus obvious that there was an accident within the meaning of the notice provision of the policy. The case holds that in such a situation an insured is not justified in substituting its judgment for that of the insurance company (or of a court and jury) and withholding notice merely because of its opinion, after investigation, that it incurred no liability. The Court emphasized that an insured relying on its own legal conclusion does so at its peril.
In the case at bar, however, plaintiff had no knowledge of any facts which might obligate it to give notice.
Smiechowski had made no allegations concerning the dung; plaintiff and his employee had seen none. There was no accident of any kind relating to the insured premises in the sense of the provision in the policy.
Technically it may have been a trespass quare clausum fregit when the driver fell off the truck and landed on the floor of plaintiff's building (just as it would have been if two automobiles had collided on the highway and thrown a passenger onto plaintiff's premises), but no accident relating to the coverage for 'The ownership, maintenance or use of the premises, and all operations necessary or incidental thereto' was within the knowledge of plaintiff until receipt of the allegations regarding (1) Smiechowski's preliminary visit inside the building before he fell and (2) the alleged existence of dog dung, both of which circumstances, so far as plaintiff could be expected to know, were non-existent, until some reason for supposing them to exist had come to his attention.
Murphy & Co. v. Mfrs. Casualty Co., 89 Pa.Super. 281, 286 (1926), and St. Louis Dressed Beef Co. v. Casualty Co., 201 U.S. 173, 181-183, 26 S. Ct. 400, 50 L. Ed. 712 (1906), dispose of defendant's further contention that it can not be sued '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 statement of * * * the Company'. As Justice Holmes says 'a sum paid in the prudent settlement of a suit is paid under the compulsion of the suit as truly as if it were paid upon execution.' (201 U.S. at 182, 26 S. Ct. at 404.)
Besides, after a jury is sworn one can not say that there has not been an actual trial. This is the rule in criminal cases in determining when jeopardy begins. Wade v. Hunter, 336 U.S. 684, 688, 69 S. Ct. 834, 93 L. Ed. 974 (1949); Kepner v. United States, 195 U.S. 100, 128, 24 S. Ct. 797, 49 L. Ed. 114 (1904). The same rule seems applicable here.
In accordance with the foregoing, we find in favor of plaintiff and against defendant in the amount of $ 10,460.50 with interest and costs.