Wilson v. Maryland Casualty Co.

Dissenting Opinion by

Mb. Justice Allen M. Stearne:

It is my view that the judgment of the Superior Court should be affirmed. It is a basic- principle of law-requiring- no citation - of'Authority- that'--- preliminary *596 objections in the nature of a demurrer admit all facts in the complaint properly pleaded.

Plaintiff, the insured, was the owner of a restaurant, bar and rooming house. Defendant, an insurance company, issued to plaintiff its policy of insurance, insuring him from liability for damages “sustained by any person or persons, caused by accident . . and agreed to defend in [plaintiff's] name and behalf any suit against the insured alleging such injury, . . . even if such suit is groundless, false or fraudulent. . . ." By the terms of. the policy assault and battery was to be deemed. an accident “unless committed by or at the. direction of the insured.” The complaint averred “. . . an altercation took place Among the patrons’ of Plaintiff’s restaurant and bar . . wherein one, John A. Lees, was injured. Lees sued the plaintiff and “. . . averred that Plaintiff herein committed an assault and battery upon [him].” Plaintiff, in his present complaint, averred, as above recited, that the injury inflicted upon Lees occurred in an altercation among the.“patrons” and that Lees in his complaint “falsely” averred that plaintiff committed am, assault and battery upon him. A copy of the Lees complaint was attached to said plaintiff’s complaint.

The court below, affirmed by the unanimous opinion of the Superior Court, in my judgment, correctly held that since defendant admitted by preliminary objections in the nature of a demurrer that the assault and battery had been committed by “patrons” of plaintiff and not by the plaintiff, and that Lees falsely claimed plaintiff assaulted him, the defendant insurance company was required,-under its policy, to-defend the suit and upon its failure so to do, plaintiff vas entitled to compromise- the suit so instituted .against him :by Lees: Roberts v. Fireman's Insurance Company of Newark, New Jersey, 376 Pa. 99 , 101 A. 2d *597 747 . Despite the averment that the statement in Lees’ suit against the plaintiff was false, the insurance company chooses to rely upon the truth of Lees’ averments in Ms complaint and apparently disbelieves its insured’s statements, but which at the same time it admits by filing preliminary objections. Had defendant desired to test the question of liability it should have filed an answer to plaintiff’s complaint as directed by the court when the preliminary objections were dismissed.

The judgment of the Superior Court should be affirmed for an additional reason. The judgment here is by default. The docket entries show that on Decem16, 1952, defendant’s preliminary objections were dismissed and defendant was “directed to file an Answer within 20 days.” No answer was filed and on January 8, 1953, judgment for plaintiff was entered against defendant “for failure to file an answer witMn the required time” and damages were assessed. A default judgment operates as an admission by the defendant of the truth of all facts well pleaded: 49 C. J. S. Judgments sec. 201, and the numerous cases from many jurisdictions cited therein. McFarland-Meade Co. v. Doak, 63 Pa. Superior Ct. 27 , is not in conflict with this principle. A default judgment did not grant plaintiff a right to recover in replevin where, under the admitted facts, replevin did not lie.

I cannot profitably add to the excellent opinion of the court below and the unanimous opinion of the Superior Court. The opinion of the late President Judge Keller, in University Club v. American Mutual Liability Insurance Company of Boston, 124 Pa. Superior Ct. 480 , 189 A. 534 , is in complete accord with this opinion. For these reasons I dissent.

Mr. Justice Jones joins in this dissent.