Stoughton v. Manufacturers' Natural Gas Co. , 165 Pa. 428 ( 1895 )

Opinion by

Me. Justice Mitchell,

The plaintiff brought his suit against the gas company for his whole loss, and prima facie the verdict must be considered as representing the whole loss. That was the question at issue, and it has been determined by the tribunal which has authority to conclude it. In this case there is nothing to rebut this presumption.

Subrogation is based upon equity, and no doubt the statute, in directing through its standard form of insurance policy the subrogation of the insurers to the rights of the insured against the party primarily responsible for the loss, meant that it should be administered on equitable principles. But the effect of the statute is to put such subrogation on the footing of a legal right, which must prevail unless a stronger equity be shown against it. In the first instance it relieves the insurer who has paid his policy, from the burden of showing his equity to subrogation, because it is now an express legal right given by the statute and the contract of the parties. If it is not to prevail, the burden of showing why, must be assumed by the other party. Such burden has not been met by the appellant. There may be cases where the wrongdoer would not be liable for the plaintiff’s whole loss, as where after an interval of time, or the intrusion of some other agency, an additional .loss occurs of which the wrongful act is not the proximate cause and yet which would be covered by the insurance. Such an instance is suggested by Haverly v. R. R. Co., 135 Pa. 50. In those cases the verdict would not be the measure of the plaintiff’s loss, and therefore of the insurer’s right to subrogation out of it, but such cases are exceptional and should be proved. The presumption, at least for the purpose of distribution, is that the verdict represents the whole of the loss. As said by our Brother Williams in Ins. Co. v. Fidelity Co., 123 Pa. 523, “ if the insured had proceeded against the gas company a recovery against it for the loss by fire would when paid have reimbursed the insured, and his claim being thus satisfied no recovery could have been had against the insurance company.” What was said in Ætna Ins. Co. v. Confer, 158 Pa. 598, 605, upon the non-conclusiveness of the judgment as to the loss, was said in illustration of the policy of this court not to express any opinion upon the merits of a case before it on the sufficiency of an affidavit of defence, and is sustained by the consideration of the exceptional cases already referred to. There is nothing shown in the present case to take it out of the general rule.

Judgment affirmed.