Robinson v. Gardiner

Collins, J., delivered the opinion of the Court. This is an appeal by Paul C. Robinson and Charles Haas, plaintiffs below, appellants here, from a judgment for costs rendered against them after demurrer, filed by appellees, was sustained to their first amended declaration. The trial judge refused to allow appellants to file a second amended declaration. This first amended declaration contained two counts, one in contract and the other in tort and, for the purposes of this case, made the following declarations.

The plaintiffs are engaged as a co-partnership in the lumber business. For a long time, prior to October 9th, 1945, defendant, George I. Gardiner, Jr., and H. Holland Hawkins, co-partners, trading as H. Holland Hawkins Insurance Agency, and Pennsylvania Threshermen and Farmers Mutual Casualty Insurance Company, appellees here, solicited from plaintiff Robinson insurance covering personal injury and property liability damage for his fleet of trucks. Gardiner recommended over a period of many years that the coverage of said insurance should be in amount in excess of $20,000.00 liability for injury to any one person for each large truck. A fleet policy of insurance No. M 13143 in excess of the aforesaid amount was so issued by defendants to plaintiff Robinson. [This fleet policy was later reduced but the declaration does not show whether or not this reduction was made before October 9, 1945 and does not allege that any insurance in excess of $20,000.00 was in effect on October 9, 1945.] On or about the 9th day of October, 1945 plaintiffs purchased another tractor and trailer known as 1944 Federal Tractor and contracted with defendant Gardiner for the issuance of like insurance protection on this ad ²¹⁶ ditional truck, Gardiner agreeing at that time that the issuance of the aforesaid policy would keep plaintiffs free from any and all liability for either personal injury or property damage which might grow out of the ownership or use by plaintiffs or their agents of the aforesaid vehicle.

In making said statements, Gardiner was acting as agent of said insurance companies and undertook to issue such a policy. Notwithstanding this, Gardiner did, in breach of the aforesaid agreement and unknown to plaintiffs, cause a change of declaration endorsement to be issued on the policy which provided the sum of only $5,000.00 bodily injury liability insurance for each person and $10,000.00 bodily injury and liability insurance for each accident and $5,000.00 property damage liability. This amount was completely inadequate to assure the protection promised and agreed upon. The aforesaid policy M 13143 and change of declaration endorsement was kept in the exclusive possession, care and custody of defendant, H. Holland Hawkins Insurance Agency and plaintiffs were without knowledge of the aforesaid small, insufficient and inadequate amount of liability insurance until after February 19, 1946.

On February 19th, 1946, while the plaintiff Robinson was the owner, the aforesaid tractor and trailer truck, driven by an employee of the plaintiff and while on business for the plaintiff, was involved in an accident resulting in the death of one William E. Wood and a suit was filed against appellants in the Federal Court. As a resut of Wood’s death, a settlement was made with his heirs, whereby appellants were held liable to the extent of $17,000.00. Appellee insurance companies, acting on the written provision of their said policy M 13143, paid only $5,000.00 of the aforesaid settlement and refused to pay the entire amount of liability growing out of the aforesaid accident. The appellants paid the remaining sum of $12,000.00 due under the settlement agreement.

The declaration was based on this alleged agreement to insure. ²¹⁷ Of course, no action will lie upon a contract, whether written or verbal, where such a contract is vague or uncertain in its essential terms. The parties must express