Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1963, No. 129, in case of Herman Adcox v. Pennsylvania Manufacturers' Association Casualty Insurance Company.
Joseph H. Foster, with him White & Williams, for appellant.
Harry Lore, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.
This is an appeal from the order of the Court of Common Pleas No. 2 of Philadelphia County sustaining plaintiff's demurrer and striking defendant's new matter, on the ground that the question involved therein had been decided adversely to the defendant on its demurrer to the plaintiff's amended complaint, which decision had become the "law of the case".
The action was instituted by Adcox to recover damages for personal injuries from the Pennsylvania Manufacturers' Association Casualty Insurance Company (Company), which was the workmen's compensation insurance carrier for Adcox's employer. The gist of the complaint is the Company's negligence in performing
duties gratuitously assumed in favor of Adcox, as an employee. The Company was permitted, under its contract of insurance with the employer, to make periodic safety (and other) inspections of the employer's premises, and to report to the employer any hazards or deficiencies. Pursuant thereto, the Company did make such inspections, usually at three month intervals, and made reports to the employer. On these occasions of inspection, the Company's agent failed to notice, or neglected to report to the employer, the fact that a dangerous or hazardous condition existed with regard to a certain laminating machine with which Adcox worked. As a result of the employer's failure to learn of this defective condition of the laminating machine, it was not remedied and Adcox, his arm having been drawn thereinto, suffered severe injuries, including the surgical amputation of his left arm.
Adcox filed an amended complaint in trespass,*fn1 to which a demurrer was filed, assigning in support that the Company had no duty to make safety inspections, and that, in any event, it could not be liable outside of the coverage of the Pennsylvania Workmen's Compensation Act*fn2 as a "third party". The court below overruled the demurrer, stating that, while there was no contractual duty to make safety inspections, since the Company had gratuitously undertaken to so perform, it was bound to do so in a careful manner, and that the Company was not entitled to equate itself with the employer so as to avoid liability as a "third party" tortfeasor.
The demurrer having been overruled, the Company entered a general denial to the amended complaint and
set forth, as new matter, virtually identical contentions as those presented and disposed of upon the demurrer to the complaint. Thereupon, Adcox entered a demurrer and motion to strike the new matter, which ...