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GALLAGHER v. AETNA CASUALTY AND SURETY CO. (04/16/69)

decided: April 16, 1969.

GALLAGHER, MAGNER & SOLOMENTO, INC.
v.
AETNA CASUALTY AND SURETY CO., APPELLANT



Appeal from judgment of County Court of Philadelphia, March T., 1964, No. 5644-D, in case of Gallagher, Magner & Solomento, Inc., trading as Gallagher & Magner Co., v. The Aetna Casualty and Surety Co.

COUNSEL

L. Carter Anderson, with him David L. Steck, and Rawle & Henderson, for appellant.

Michael A. Marolla, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman and Cercone, JJ. (Spaulding, J., absent). Opinion by Hoffman, J.

Author: Hoffman

[ 214 Pa. Super. Page 234]

This action in assumpsit was tried before a judge and jury. A verdict of $2,300 plus interest was returned in favor of appellee. Appellant's motion for judgment n.o.v. was denied, whereupon this appeal followed.

Viewing the evidence in the light most favorable to appellee, the facts established at trial are as follows:

Appellee is an insurance brokerage firm whose client, P. Agnes, Inc. (hereinafter "Agnes"), a construction company, was insured by appellant, Aetna Casualty and Surety Co. (hereinafter "Aetna"). Coverage was for "all sums which the Insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof caused by accident."

While such coverage was in effect, Agnes commenced excavation and underpinning work which resulted in damage to the wall of a building adjacent to the construction site. The damage was caused by "improper installation of underpinning" by Agnes.

[ 214 Pa. Super. Page 235]

Thereafter, Agnes repaired the building at a cost of $2900.00 and appellee paid $2300.00 (a compromise figure) to Agnes to cover this repair work. Appellee now seeks reimbursement from Aetna.

Aetna maintains that all of the evidence adduced at trial indicates that appellee, in paying $2300.00 to Agnes, acted as a volunteer. As such, it has no standing to sue.

Specifically, Aetna relies upon the doctrine that one who voluntarily pays the obligations of another without any authority or promise to repay from the debtor is a mere volunteer and, generally, is not entitled to recover the amount paid. Gaul v. McLaughlin, 207 Pa. Superior Ct. 434, 217 A.2d 757 (1966). In Gaul the plaintiffs were the heirs of a deceased who had paid real estate taxes on property which he mistakenly believed belonged to him. Our court held that the heirs could not recover these payments from the record owner. Even though the payments relieved the defendant of a ...


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