Appeal from order of Court of Common Pleas No. 3 of Philadelphia County, June T., 1961, No. 1966, in case of Sophie Davies v. Albert T. Davies, administrator of estate of Albert V. Davies, deceased, and Nationwide Mutual Insurance Company.
Fred Lowenschuss, with him Snyder & Lowenschuss, for appellant.
Michael Shekmar, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Roberts concurs in the result. Mr. Justice Jones and Mr. Justice Eagen dissent and would affirm.
The Nationwide Insurance Company is the garnishee in an action brought by Sophie Davies against the Estate of Albert V. Davies, deceased, the garnishee's assured. The jury which heard the case returned a verdict in favor of Sophie Davies and against the garnishee, which moved for judgment n.o.v. and a new trial. The trial court refused judgment n.o.v. but ordered a new trial, and Davies appealed.
It is unnecessary to relate the long history of this litigation. It is enough to state that Sophie Davies, because of injuries sustained while a passenger in an automobile being driven by her husband, Albert V. Davies, who was killed in the accident, sued the estate of her deceased husband, her son, Albert T. Davies being the administrator. Nationwide refused to defend
in that action because the administrator of the estate had declined to swear to an answer containing new matter in which Nationwide raised the statute of limitations and stated that the delay in filing the action was due to the fault of Mrs. Davies, who, as above stated, was the administrator's mother. Mrs. Davies obtained judgment by default, damages being assessed at $11,149.80. When the writ of execution was served on Nationwide as garnishee, it filed an answer, again raising the defense of statute of limitations, asking for judgment on the pleadings and filing preliminary objections to additional interrogatories which had been advanced by the plaintiff seeking certain facts and information regarding developments following the accident. The court sustained the preliminary objections of the garnishee and entered judgment on the pleadings in its favor. We reversed at 412 Pa. 47, 51, stating: "If, because of all the legal procedures herein recited, Mrs. Sophie Davies was misled and misdirected in the matter of filing her suit against the estate of her husband, the defendant-administrator was warranted in refusing to swear to an assertion which he believed to be untrue." We remanded the record for action not inconsistent with our opinion.
A jury trial followed, the prime issue of fact being, as stated by the lower court "whether Albert T. Davies was justified in refusing to sign the verification and whether such refusal was prejudicial to the garnishee." The jury returned a verdict in favor of the plaintiff, but the trial court ordered a new trial because of a decision, postdating that trial, Davies v. Nationwide Insurance Company, 418 Pa. 203. The Davies v. Nationwide case involved a trespass suit by Mrs. Davies against Nationwide for negligence in the protection of her rights. In that action, this Court held under the law as it then existed, that "the failure of Nationwide or its alleged agent, Mr. Cohen, to advise the institution
of a trespass action by Mrs. Davies against the estate of her deceased husband cannot be considered a violation of any duty on the part of Nationwide. To hold otherwise would be to require powers of clairvoyance on the part of an insurance carrier and its counsel." The lower court in the present case before us believed that that decision required a new trial in the garnishment proceeding, explaining: "What we are saying in simple language is that the entire tenor and posture of the case revolved around the action of Mr. Cohen in failing to sue the estate of Mr. Davies while in effect he was acting as the agent of Nationwide. If the Supreme Court's decision in Davies v. Nationwide Insurance Company, supra, had been handed down prior to the trial of this case, it is obvious that this key issue could not have been presented to the jury for in that case the Supreme Court said Nationwide had no such obligation to institute suit on behalf of Mr. Davies and it necessarily follows that its agent and attorney, Mr. Cohen had likewise no such obligation. As we have indicated, the testimony of Mr. Cohen involving his conduct and his agency status to Nationwide had a very substantial bearing on the trial. Mr. Cohen is now deceased. The Supreme Court has decided belatedly that this issue was not for the jury's consideration."
The court below, however, overlooked that our decision in the trespass action against Nationwide was based solely on the pleadings and its contents then before us: "While the statement of facts in Davies v. Davies, supra, would suggest the contrary, there is nothing in the present record showing ...