decided: October 9, 1970.
HUNTINGDON INDUSTRIES INCORPORATED
PENNSYLVANIA MANUFACTURERS' ASSOCIATION CASUALTY INSURANCE COMPANY, APPELLANT
Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1967, No. 5422, in case of Huntingdon Industries Incorporated v. Pennsylvania Manufacturers' Association Casualty Insurance Company.
Joseph H. Foster, with him White and Williams, for appellant.
Gordon W. Gerber, with him George J. Hauptfuhrer, Jr., and Dechert, Price & Rhoads, for appellee.
Bell, C. J., Cohen, Eagen, O'Brien and Pomeroy, JJ. Mr. Justice Jones and Mr. Justice Roberts took no part in the consideration or decision of this case. Concurring and Dissenting Opinion by Mr. Justice Eagen and Mr. Justice Pomeroy.
Author: Per Curiam
[ 440 Pa. Page 640]
Concurring and Dissenting Opinion by Mr. Justice Eagen and Mr. Justice Pomeroy:
We are of the view that the balata was in the "care, custody and control" of Huntingdon at the time of the fire and hence coverage was excluded under the terms of the policy. However, we do agree with the majority that the defendant insurance company owed a duty under the policy to defend Huntingdon in the action instituted
[ 440 Pa. Page 641]
by Herman Weber & Co., Inc., and having failed to fulfill this duty is liable for the costs reasonably expended by Huntingdon in defense of that action. We would modify the judgment entered in the court below accordingly.
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