Appeal from order of Court of Common Pleas of Montgomery County, No. 68-8796, in case of Beliron Construction Company v. Cohen-Seltzer, Inc.
John C. Butera, Clarke F. Hess, and Butera & Detwiler, for appellant.
Richard W. Hopkins, and White and Williams, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Concurring Opinion by Spaeth, J. Hoffman, J., joins in this opinion.
[ 232 Pa. Super. Page 238]
This is an appeal from an order of the Court of Common Pleas of Montgomery County by the plaintiff-appellant, Beliron Construction Company, refusing a new trial after a jury verdict in favor of the defendant-appellee, Cohen-Seltzer, Inc.
The plaintiff is a wholly owned subsidiary of Belmont Industries. The Chairman of the Board of Belmont is Raymond G. Perelman. His son, Ronald Perelman, was, at the time of the occurrence, an employee of Belmont and his father's administrative assistant. At the time of trial, he was Belmont's Vice President.
The facts giving rise to this action began on May 18, 1967, when William Griffths, then Vice President of Belmont, phoned Robert S. Seltzer, then treasurer of Cohen-Seltzer, Inc., an insurance brokerage and agency firm. Griffths told Seltzer that Belmont was proposing to take over the Kennedy Fabricating Company and would need insurance coverage. Seltzer then called on Griffths that same day at the Kennedy facility and inspected the premises and its various departments, made notes of its contents and proposed the type of coverage he felt was required. Seltzer testified at trial that Griffths did not give him any instructions at that time, nor at any other time, to obtain the insurance.
Thereafter, Seltzer proceeded to contact potential insurers in order to place this risk. He did receive commitments to accept the risk from them. However, he received no word from the plaintiff to bind the coverage and testified at trial that he informed Griffths that coverage would begin on the date of settlement. Griffths told him that his people were talking to attorneys about the matter and did not suggest any settlement date.
[ 232 Pa. Super. Page 239]
Another phone call from Griffths to Seltzer took place on May 25, 1967, at which time a discussion of insurance premiums took place. Seltzer returned the call later that day giving Griffths the premium figures. Griffths then told Seltzer that he would contact him further regarding the coverage. Seltzer was not asked to bind the coverage at this time and again expressed concern as to the establishment of a settlement date.
On June 4, 1967, a fire at the Kennedy facility damaged the assets of the plaintiff in the amount of $179,659.78. Defendant took the position that no insurance coverage had ever been procured from it by plaintiff on this facility and denied making payment. Plaintiff sued defendant claiming the existence of an oral contract of insurance. After a three-day trial the jury returned a verdict in favor of the defendant.
Appellant claims that its motion for a new trial should have been granted by the court below because the verdict was not supported by the evidence. The granting or refusal of a new trial is within the discretion of the trial court except when the record of the proceedings demonstrates that the trial court abused this discretion. Burd v. Penna. Railroad Co., 401 Pa. 284, 164 A.2d 324 (1960). In the instant case the court below did not abuse its discretion in refusing to grant a new trial since the record indicates that sufficient evidence was adduced at trial so as to enable a jury to return a verdict in favor of the defendant. The defendant produced testimony tending to show that there was no meeting of the minds between the parties in that Seltzer testified that coverage was to be binding on the date of settlement and that no settlement ever took ...