Pfeiler v. Penn Allen Portland Cement Co.

Per Curiam,

The plaintiff obtained a judgment in an action for personal injuries against the Penn Allen Portland Cement Company, which became insolvent and was adjudged a bankrupt. He filed a bill for subrogation to the rights of the cement company under an indemnity policy of accident insurance issued to it by the JEtna Life Insurance Company and for a decree requiring the insurance company to pay to him the amount of his judgment against the cement company. The court sustained a demurrer and dismissed the bill.

The insurance policy provided that: “No action shall lie against the company to recover for any loss or expense under this policy unless it shall be brought by the assured for loss or expense actually sustained and paid in money by him after actual trial of the issue, nor unless such, action is brought within two years after payment of such loss or expense.” The cement company has paid nothing and under the express terms of its contract it is not entitled to recover from the insurance company. Since it has no right of action there is nothing to which the plaintiff could be subrogated. For this reason the bill was dismissed by the learned judge of the Common Pleas and in the decree entered we fully concur.

The decree is affirmed at the cost of the appellant.