Appeal from order of Court of Common Pleas of Delaware County, No. 3635 of 1964, in case of Bertha Helms v. Lewis R. Chandler, Legusata Thomas and Home Mutual Casualty Company.
Harry J. Bradley, with him John S. J. Brooks, James Patterson, and Brooks, Oliver, Macartney & Holl, for appellant.
John B. Lynch, with him Lynch & Johnson, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurs in the result.
Bertha Helms recovered a judgment against Lewis R. Chandler and Legusata Thomas, in an action of trespass
arising out of an automobile accident. After entry of the judgment, Bertha Helms caused a writ of execution to issue, naming Home Mutual Casualty Company, appellant, as garnishee, and, further, serving interrogatories on Home Mutual as garnishee.
Appellant filed answers to the interrogatories and, subsequently, amended answer to the interrogatories, but neither time did it set up a defense, which it asserts is available to it, as new matter in the answers.
When the action between the plaintiff and the garnishee reached pretrial conference, appellant learned that it could not raise its defense, since it had not been included as new matter in its answer to interrogatories. Plaintiff refused to consent to an amended answer to interrogatories, which would add the new matter, and appellant petitioned the court below for leave to file the amended answer. The court below dismissed the petition for leave to file the amended answer, and this appeal followed.*fn1
Plaintiff was struck by an automobile owned by defendant, Chandler, and operated by defendant, Thomas. Chandler was insured by appellant. Judgments against Chandler and Thomas were obtained for failure to file an answer, and the damages were subsequently fixed in an ex parte proceeding. The appellant insurer wishes to defend on the basis of an alleged lack of cooperation by the insured, which cooperation was required under the terms of the insurance policy. It is this defense which appellant seeks to assert in the amended answer to interrogatories, which the court below refused to allow.
Appellant argues that inasmuch as plaintiff failed to identify the interrogatories as being submitted under Rule 3144, it, the appellant, had no way of knowing that it was required to raise any defense which it might have in new matter. Appellant urges further, that the interrogatories did not contain the warning that failure to file answers within 20 days might result in judgment against it. These ...