The opinion of the court was delivered by: MUIR
1. The Plaintiff is, and at all times herein mentioned was, engaged in the insurance business and registered to do business in the Commonwealth of Pennsylvania, with a place of business in the South Main Towers, Wilkes-Barre, Pennsylvania.
2. The Defendant is, and at all times herein mentioned was, engaged in the insurance business and registered to do business in the Commonwealth of Pennsylvania, with a place of business at 400 Orchard Street, Scranton, Pennsylvania, and at the Public Ledger Building, Philadelphia, Pennsylvania.
3. On December 16, 1969, and at all times herein mentioned, Frank Novitch of Nicholson, Pennsylvania, was engaged in the business of hauling bulk milk from points of origin in Pennsylvania and New York State to points of distribution in New Jersey.
4. On December 16, 1969, and at all times herein mentioned, Farmland Fairlawn Dairies (hereinafter called Farmland), was a New Jersey corporation engaged in the business of buying raw milk, processing and selling it wholesale and retail. Its principal place of business was in Fairlawn, New Jersey.
5. On December 16, 1969, one Lawrence Warner, who was employed by said Frank Novitch, was operating a tractor which was hauling a tank-trailer on U.S. Routes 6 and 11, Factoryville, Pennsylvania, when the tractor - trailer unit collided with a pick-up truck owned and being operated by one Joseph Surowiec, R.D. #2, Clarks Summit, Pennsylvania, causing personal injuries to Joseph Surowiec.
6. The tractor was owned by Frank Novitch. The tank-trailer, which contained a cargo of milk, was owned by Farmland. Farmland had entered into a contract with Novitch under which the latter with his tractor was to transport the cargo of milk. At the time of the accident the cargo of milk was being hauled by the tractor.
7. On March 1, 1969, the Plaintiff issued to Farmland an insurance policy, which policy was in full force and effect on December 16, 1969, the time of the accident.
8. On January 10, 1967, the Defendant issued to Farmland an insurance policy, Number 9-55-62-29, which policy was in full force and effect on December 16, 1969, at the time of the accident.
9. At the time of the accident, there was in full force and effect a certain policy of automobile liability insurance issued by the Exchange Mutual Insurance Company to Frank Novitch, with limits of $100,000.00.
10. On November 10, 1970, Surowiec instituted suit in the United States District Court for the Middle District of Pennsylvania (Civil Action No. 70-552) against Farmland, claiming damages of personal injuries resulting from the accident described above. On the same date, Surowiec instituted a companion action in the Court of Common Pleas of Wyoming County, Pennsylvania, No. 209 September Term 1971, against said Frank Novitch and said Lawrence Warner and Farmland, claiming the same damages claimed in said Federal action. Attorney Hugh J. McMenamin was retained by the Plaintiff to defend Farmland and Attorney James P. Harris, Jr., was retained by said Exchange Mutual Insurance Company to defend said Frank Novitch and said Lawrence Warner.
11. On the 23rd day of February, 1972, said Federal action came on for trial before Judge Malcolm Muir and a jury with the issues of liability and damages bifurcated. On the 29th day of February, 1972, the jury returned a verdict on the liability phase in the form of answers to eleven interrogatories. Inter alia, the jury found Lawrence Warner, the operator of the tractor, to have been the joint servant of Frank Novitch ...