Appeal, No. 2, Feb. T., 1963, from judgment of Court of Common Pleas of Luzerne County, May T., 1961, No. 613, in case of American Equitable Assurance Company of New York v. Pasco Mussoline. Judgment affirmed.
Conrad A. Falvello, for appellant.
George I. Puhak, with him Richard A. Kane, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 201 Pa. Super. Page 273]
This is an appeal from a judgment for the plaintiff on the pleadings in an action to recover back the amount paid to the defendant under a policy insuring him against the theft of a mink coat. The policy contains a clause entitling the plaintiff company upon payment of the loss to be subrogated "to all the Assured's rights of recovery against any person" and requires the insured "to do nothing after loss to prejudice such rights".
The complaint avers that on January 11, 1960, the defendant took the coat to George Gordon, who was making a trip to New York the following day, and that two days later Gordon advised the defendant that upon his return he opened the trunk of his car and found that the coat was missing. On January 21, 1960, the defendant gave Gordon a general release of all claims "especially for, upon, or by reason of one full length mink coat 'Breath of Spring' stolen from the car of George Gordon on January 12, 1960." On March 12, 1960, the plaintiff, in settlement of the defendant's claim under the policy, paid him $2966.
The defendant admitted these facts in his answer but set up by way of new matter that the coat was stolen and, although the theft was reported by Gordon to the police, it has not since been found, nor have the thieves been apprehended. He also avers that the plaintiff knew of the theft at the time it paid the defendant
[ 201 Pa. Super. Page 274]
and has no cause of action against Gordon. The plaintiff filed no reply.
The court below granted judgment for the plaintiff on the pleadings, holding that an insurer may recover back the amount paid to one who has settled with a third party tortfeasor, thereby defeating the insurer's subrogation rights, that in a suit to recover back the amount paid to the insured, the insurer's complaint need not set forth facts showing the tortfeasor's negligence in causing the loss, and it is not obliged to establish that it would have prevailed in its suit against the alleged tortfeasor.
The appellant admits that he gave the bailee, Gordon, a release, but contends that (1) no cause of action exists against Gordon, since the coat was stolen from him and (2) there is no averment ...