Opinion
April 15, 1955.
September 28, 1955.
Insurance — Collision insurance — Payment by collision insurer to insured — "Release and subrogation assignment" — Settlement by property damage insurer of operator of other vehicle — Cause of action.
In an action in assumpsit, in which it appeared that plaintiff carried the collision insurance on a truck owned by A, and that defendant carried the public liability and property damage insurance on a bus owned by B; that A's truck was damaged to the extent of $161.50 in collision with B's bus; that plaintiff, in accordance with the collision policy which contained a $100.00 deductible provision, reimbursed A to the extent of $61.50 and took from him a "release and subrogation assignment"; that plaintiff gave written notice to defendant that it had settled with A under its collision policy and was entitled to the right of subrogation; and that, thereafter, defendant made direct settlement with A; it was Held that (1) there was no merit to plaintiff's contention that the facts alleged established a legal debtor-creditor relationship between it and defendant; and (2) the court below properly sustained preliminary objections on the ground that the complaint did not state a cause of action.
Before HIRT, ROSS, GUNTHER, WRIGHT, and WOODSIDE, JJ. (RHODES, P.J., and ERVIN, J. absent).
Appeal, No. 144, April T., 1954, from judgment of Court of Common Pleas of Beaver County, June T., 1953, No. 133, in case of Farm Bureau Mutual Automobile Insurance Company v. Markel Service, Inc. Judgment affirmed.
Assumpsit.
Defendant's motion for judgment granted and judgment entered for defendant, opinion by SOHN, J. Plaintiff appealed.
Lee E. Whitmire, Jr., with him Swaney Whitmire, for appellant. Charles McC. Barrickman, with him Wallover Barrickman, for appellee.
Argued April 15, 1955.
An action in assumpsit was instituted by Farm Bureau Mutual Automobile Insurance Company, the plaintiff, against Markel Service, Inc., also an automobile insurance company, the defendant. The court below sustained preliminary objections on the ground that the complaint did not state a cause of action, and entered judgment in favor of the defendant. This appeal followed.
Appellant (Farm Bureau) carried the collision insurance on a Ford truck owned by Charles W. Miller, and appellee (Markel) carried the public liability and property damage insurance on a bus owned by the Gradison Auto Bus Company. On November 3, 1952, the Miller truck was damaged to the extent of $161.50 in a collision with the Gradison bus. On November 19, 1952, in accordance with the terms of the collision policy which contained a $100.00 deductible provision, appellant reimbursed Miller to the extent of $61.50 and took from him a "release and subrogation assignment". On the same date, appellant gave written notice to appellee that it had settled with Miller under its collision policy and was entitled to the right of subrogation. Thereafter appellee, notwithstanding said notice, made direct settlement with Miller.
Appellant's position is that "the facts alleged establish a legal debtor-creditor relationship between the appellant-plaintiff and appellee-defendant". It is contended that, as a result of the collision, Gradison owed Miller money for the damages to his truck; that, by virtue of appellant's payment to and assignment from Miller, Gradison became appellant's debtor; and that, "for all practical purposes, Gradison and Markel are one and the same, and, thereby, Markel is indebted to Farm Bureau". No authority has been advanced to support this ingenious argument, and we perceive no merit in it. The only case cited in appellant's brief is Ertel v. McCloskey, 167 Pa. Super. 120, 74 A.2d 652, which is clearly inapposite.
The fact that Markel voluntarily settled with Miller is not evidence of Gradison's liability. See Broderick v. Great Lakes Casualty Co., 152 Pa. Super. 449, 33 A.2d 653. Appellant concedes that Miller's release extinguished his right of action in tort. As pointed out by Judge SOHN of the court below, "no contractual relation between Farm Bureau and Markel is alleged". Nor is appellant's suit based upon the theory that Markel induced Miller to breach his contract with Farm Bureau. See Klauder v. Cregar, 327 Pa. 1, 192 A. 667.
Judgment affirmed.