Appeal from judgment of Court of Common Pleas of Mercer County, March T., 1964, No. 156, in case of Towmotor Company v. Frank Cross Trucking Company.
William C. Kuhn, with him Brockway, Brockway and Kuhn, for appellant.
Marc Lincoln Marks, with him Benjamin H. Marks, and Marks and Marks, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Jacobs, J.
[ 205 Pa. Super. Page 449]
Defendant appeals from a judgment on the pleadings entered in favor of the plaintiff by the court below.
[ 205 Pa. Super. Page 450]
Plaintiff shipper brought an action in assumpsit against the defendant common carrier for recovery of damages in the amount of $3,190.33 to a vehicle sustained while the vehicle was in the possession of the carrier who was transporting the same. The defendant admits that the vehicle was damaged while being shipped by it and does not contest the amount of the damages. However, the defendant states that the plaintiff had casualty insurance on its vehicle with The AEtna Casualty and Surety Company who paid the plaintiff its loss in full and that the bill of lading under which plaintiff shipped with defendant gave defendant the benefit of such insurance. The exact wording of the benefit of insurance clause in the bill of lading was as follows:
"Any carrier or party liable on account of loss of or damage to any of said property shall have the full benefit of any insurance that may have been effected upon or on account of said property so far as this shall not avoid the policies or contracts of insurance: Provided that the carrier reimburse the claimant for the premium paid thereon."
The plaintiff in its reply admits that the above quoted clause was included in the bill of lading. It further admits that the vehicle was insured by AEtna and that AEtna paid it the sum of $3,190.33 but avers that payment was made in the form of a loan rather than in payment of the loss, and asserts in its defense the following quoted condition of the AEtna policy:
"1. Carrier-Bailee. This insurance shall in no wise inure directly or indirectly to the benefit of any carrier or other bailee, and the Assured agrees that in case any agreement be made or accepted with any carrier or bailee by which it is stipulated that such or any carrier or bailee shall have, in case of any loss for which said carrier or bailee may be liable, the benefit of this insurance or exemption in any manner from
[ 205 Pa. Super. Page 451]
responsibility grounded in the fact of this insurance, then and in that event this Company shall be discharged of any liability for such loss hereunder, but this policy in these and all cases of loss or damage by perils insured against shall be liable and owe ...