Appeal, No. 49, March T., 1955, from order of Court of Common Pleas of Cumberland County, Sept. T., 1953, No. 485, in case of Erie Insurance Exchange v. John H. Gouse. Order affirmed.
William S. Bailey, with him Robert Lee Jacobs and Bailey & Rupp, for appellant.
F. Brewster Wickersham, with him Maurice Yoffee, Thomas D. Caldwell, Metzger, Wickersham & Knauss, and Caldwell, Fox & Stoner, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 180 Pa. Super. Page 489]
Erie Insurance Exchange, hereinafter referred to as Erie, brought an action of assumpsit against John H. Gouse. The complaint averred that Erie had issued a one year policy insuring Gouse's automobile, inter alia, against loss as the result of collision; that on March 7, 1951, Gouse's car, while being operated by his wife, was damaged to the extent of $1281.73 in a collision with a bus of the Valley Transportation Company, hereinafter referred to as Valley; that on April 2, 1951, Erie paid Gouse $1231.73 (the policy contained a $50.00 deductible clause); that, by the terms of the
[ 180 Pa. Super. Page 490]
policy,*fn1 Erie thereupon became subrogated to that extent against Valley; that Gouse subsequently instituted an action in trespass against Valley to recover damages resulting from said collision; that, on March 11, 1953, without the knowledge or consent of Erie, Gouse settled and discontinued the action; that Erie's right to recover against Valley had been prejudiced by the settlement, and that Gouse had breached his contract. Erie demanded the return of the amount paid under the policy.
Gouse filed an answer with new matter. In the answer it was averred that Gouse and his wife brought an action against Valley to recover only those damages arising out of personal injuries received by the wife. It was admitted that this action was settled and discontinued, but it was averred that Erie was not thereby prejudiced, and that there was no breach of Gouse's contract. In the new matter it was averred that, on September 19, 1952, Erie brought a separate action against Valley to recover the property damage to Gouse's car resulting from the collision, which action was still pending. Finally, it was averred in the new matter that Gouse had cooperated with Erie in every respect, that he had done nothing to prejudice Erie's subrogation rights, "and was always ready and willing to execute instruments and papers and do any other things required of him by the plaintiff to secure the property damage subrogation claim of said plaintiff".
In its reply to the new matter, Erie denied that Gouse had not prejudiced its rights, and denied that
[ 180 Pa. Super. Page 491]
Gouse had cooperated in any respect. The reply averred to the contrary that Gouse had refused to include in his complaint a claim for damage to the automobile, and that Gouse had refused to sign a complaint in an action ...