Appeal, No. 229, March T., 1953, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1948, No. 1722, in case of Leonard Roberts et ux., v. Fireman's Insurance Company of Newark. Judgment affirmed; reargument refused January 25, 1954.
Donald M. Bane, with him Prichard, Lawler & Geltz, for appellant.
A. Leonard Balter, with him Rubin & Balter and Leonard M. S. Morris, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
This appeal grows out of an action in assumpsit instituted on a policy of fire insurance issued by the defendant company on a building owned by the plaintiffs. The policy carried an endorsement extending the coverage to damage caused by certain specified hazards other than fire. At trial the jury returned a money verdict for the plaintiffs. Judgment was entered thereon after the defendant's motions for judgment n.o.v. and for a new trial had been overruled; and the defendant appealed. The question involved relates to the insurance company's right of subrogation to the insureds' claim against asserted tortfeasors who allegedly caused the damage to the insured building for which the plaintiffs sought recovery under the policy. In short, did the insured discharge the insurance company from liability under the policy by voluntarily settling their claim against the alleged tortfeasors
even though the insurer suffered no actual loss by reason of such settlement? Shortly after the trial, the court reporter, who had taken the testimony, died without having transcribed his notes. It later developed that no other reporter could decipher his shorthand. The appeal is now before us upon an agreed statement of facts which need be related.
The extended coverage endorsement of the policy insured the plaintiffs against loss by reason of damage to their building from, inter alia, "vehicles", that term being expressly limited to "vehicles running on land or tracks but not aircraft". The subrogation clause of the policy required the insured to assign to the insurance company "all right of recovery against any party for loss to the extent that payment therefor is made" by the company.
While the policy was in force, construction of a building on a vacant lot adjoining the plaintiffs' property was begun by a contractor. In excavating for the new structure, the subcontractor, who was digging the excavation, made use of a high-lift (an automotive machine) which is a type of bulldozer. A footer ditch was dug along a wall of the plaintiffs' building to a depth below its foundation. While the excavation work was in progress, the entire end of the insureds' building collapsed and, falling into the excavation, killed three of the contractor's employees, then working in the ditch, and seriously injured another. The damage to the insureds' building was estimated at approximately $13,000. The insured gave the company prompt written notice of their loss, claiming that the damage was due to the striking of the foundation wall by the high-lift (vehicle) in the course of the excavation work. The insurance company referred the claim to an adjustor who, after investigation, declined to recommend payment, asserting that the collapse was
not caused by the operation of the high-lift but because of the faulty ...