The opinion of the court was delivered by: VAN ARTSDALEN
VAN ARTSDALEN, District Judge.
This is an indemnity action by Walter Hawthorne against the Liberty Mutual Insurance Company, hereinafter called "Liberty Mutual", to recover the amount of a judgment entered against Walter Hawthorne in the case of William W. Simms, Limited Administrator of the Estate of William W. Simms, Jr., Deceased v. Robert Hawthorne, Inc., Defendant and Third-Party Plaintiff vs. Walter Hawthorne, Third Party Defendant. C.A. No. 24187. In that action then District Judge Van Dusen entered judgment by agreement of counsel in favor of plaintiff against Robert Hawthorne, Inc., and in favor of Robert Hawthorne, Inc., against third party defendant, Walter Hawthorne. Walter Hawthorne presently claims to be an insured of Liberty Mutual and as such entitled to require Liberty Mutual to satisfy the judgment and pay the various costs of this litigation. Jury trial being waived by counsel, the case was tried by the Court.
1. On February 28, 1957, William W. Simms, Jr., was killed when he was struck by a bucket of cement which was being lowered into a construction excavation site at Broad and Spring Garden Streets in Philadelphia, Pennsylvania. Simms was employed by John McShain Company, the general contractor of the construction. The crane that was lowering the bucket of cement was owned by Robert Hawthorne, Inc., and it had been leased to John McShain Company together with the crane operator, Walter Hawthorne, who is the plaintiff in this action. (Walter Hawthorne is the son of the founder of Robert Hawthorne, Inc., but he does not in any way participate in the management or operation of the corporation.) At the time of the fatal injury, the crane was being used to unload cement from a truck owned by Warner Cement Company, hereinafter called "Warner".
2. Walter Hawthorne informed his employer, Robert Hawthorne, Inc., of the "accident" on the day of the occurrence.
3. United States Casualty insured Robert Hawthorne, Inc., and Liberty Mutual insured Warner.
4. On February 26, 1958, the Limited Administrator of the Estate of William W. Simms, Jr., started suit against Robert Hawthorne, Inc. (C.A. No. 24187).
5. On March 10, 1958, United States Casualty informed Liberty Mutual of the action (C.A. No. 24187) by letter to Warner, dated March 5, 1958, which was forwarded by Warner to Liberty Mutual.
6. On April 6, 1959, Robert Hawthorne, Inc., filed a third party complaint against Walter Hawthorne, third party defendant.
7. On April 9, 1959, Walter Hawthorne notified Liberty Mutual and asked it to assume his defense.
8. On August 7, 1961, United States Casualty instituted an action for a declaratory judgment (C.A. No. 30057) against Liberty Mutual claiming, inter alia, that Liberty Mutual was primarily responsible for the defense of Robert Hawthorne, Inc., and Walter Hawthorne in the Simms case (C.A. No. 24187) because they were insureds of Liberty Mutual under the omnibus clause of Liberty Mutual's insurance policy with Warner.
9. On August 29, 1962, District Judge Wood granted Liberty Mutual's Motion for Summary Judgment in C.A. No. 30057 on the grounds that United States Casualty, Robert Hawthorne, Inc., and/or Walter Hawthorne failed to give timely notice of the "accident" to Liberty Mutual.
10. On October 11, 1962, judgment, by consent, was entered in the case of William W. Sims et al. v. Robert Hawthorne, Inc. (defendant) v. Walter Hawthorne (third party defendant), C.A. No. 24187, in favor of plaintiff against defendant, ...