Appeal from judgment of Court of Common Pleas of Berks County, June T., 1967, No. 55, in case of Reading Motor Sales, Inc. v. United States Fidelity and Guaranty Company.
Hillel S. Levinson, for appellant.
Robert I. Cottom, with him Matten and Cottom, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones.
On April 19, 1965, Emmett Lien, together with several persons, including his brother-in-law, entered the business premises of Reading Motor Sales, Inc. (Reading) for the purpose of purchasing an automobile. While on the premises, Lien, his brother-in-law and one Harry Kochel, a Reading salesman, were ascending a stairway from the second to the third floor when the handrailing tore loose and a fire extinguisher fell off the wall striking Lien on the head and tearing a hole in the brother-in-law's trousers. The fire extinguisher, about 2 feet long, weighed approximately 30 pounds. While the blow from the fire extinguisher raised a lump on Lien's head and caused a headache, there was no visible bleeding. The three persons present at the time of the accident notified Mark Watts, Reading's manager, of the accident and Watts told Lien to see a doctor, to have X-rays taken and to send the bill to Reading since Reading was insured. Watts also told Lien's brother-in-law to secure a new pair of trousers for which Reading would pay.
The next day, Lien went to see a Dr. Norman Winston. Dr. Winston examined Lien's head, took X-rays, and mailed his bill for services to Reading, said bill being directed to Watts' attention. This bill was received, apparently in the early part of May, 1965, by Watts
who, in turn, gave it to one Charles Ely, Reading's office manager, with directions to forward the bill to Reading's insurance carrier, United States Fidelity and Guaranty Company (Fidelity). This bill remained on Ely's desk for the next three and one-half months. On July 17, 1965, additional X-rays were taken of Lien by Dr. Winston and, his first bill not having been paid, Dr. Winston sent a bill covering both office visits, treatment and X-rays directly to Lien who hand delivered this bill to Reading. Again, this bill was not forwarded to Fidelity.
In the meantime, Lien's physical condition had deteriorated to such an extent that on August 10, 1965, he underwent surgery for the repair of a ruptured disc which had been caused by the accident. On August 19, 1965, Lien's counsel notified Reading that he was representing Lien and he requested that Reading notify its insurance company of his representations. On August 25, 1965, Fidelity was finally given its first notification of the accident and of the subsequent events and by letter dated August 26, 1965, Fidelity notified Reading of its intent to deny coverage on the ground that Reading had failed to give timely notice of the accident and the insurance claim.
Lien instituted a trespass action in the Court of Common Pleas of Berks County against Reading. Reading, as a result of this action and a finding of liability against it, paid $12,322.44 to Lien.
Reading then instituted an assumpsit action in the Court of Common Pleas of Berks County against Fidelity to recover the amount which it had paid to Lien on the theory that Fidelity's insurance policy covered Reading's loss. The insurance carrier denied coverage under the policy because of the ...