Opinion
November, 1913.
Chester H. Lane, for appellant.
James J. Macklin (Henry M. Dater, of counsel), for respondent.
The defendant received from the plaintiff a tourist fire insurance policy for $1,000 covering loss to defendant's personal effects while traveling. These effects were damaged by the fire in the Carleton Hotel in London in August, 1911. Defendant, who was just then leaving for the continent, hastily prepared a statement of his loss, in reasonable detail, aggregating $430 — of which he sent substantial duplicates to the Carleton Hotel and to plaintiff. Upon his return to this country, an adjuster of plaintiff agreed upon and made to him a payment of $280, explaining to him at the time (apart from other adjustments) that since plaintiff's policy did not cover loss by pilfering and that evidently a part of his loss had been so caused, plaintiff could not recognize the entire claim. Subsequently, defendant received, without explanation, from the Carleton Hotel, its check for $300. The policy contains a clause "* * * if the assured acquires the right of action against any * * * corporation for damage to above described property, he shall assign or transfer such claims" to the plaintiff upon receiving payment for said loss, etc. It is not contended but that this right of subrogation inures to plaintiff only to the extent that the claim upon the hotel is for the same character of loss as that covered by the policy. As plaintiff presented no proof that the payment of the Carleton Hotel was for loss by fire, i.e., the character of loss covered by the policy, it was not entitled to subrogation, and, therefore, not entitled to recover damages against the defendant by reason of the receipt of the Carleton Hotel check.
There was evidence that defendant had offered to pay plaintiff $150, that being the difference between the total amount which he had received and the face amount of his total claim. This offer might perhaps have been construed as an admission on his part that one-half of the check of the Carleton Hotel was for fire loss. Had the judgment been for $150 instead of $280, it might have been sustained on that theory. But some evidence has been introduced by the defendant to the effect that since his return he had ascertained that his loss was larger than the amount originally stated, $430. In view of this, I think he is entitled to a new trial unless the plaintiff will agree to reduce the amount of this judgment to $150 with appropriate costs in the court below and without costs of this appeal.
Unless a stipulation to that effect is filed, the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.
SEABURY and GUY, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.