dissenting.
I am now of the opinion that the reasoning in Peterson v. State Farm Ins. Co., 238 Or 106, 393 P2d 651 (1964), relied upon in the majority opinion, was erroneous. The reasoning in Peterson and in the majority opinion in the present case is that ORS 736.317 was intended to place the injured party in the same position as he would have been had the uninsured motorist been insured. There is nothing in the statute which warrants this broad generalization. The statute merely states a purpose to provide a $5,000 coverage for the protection of persons who are legally entitled to recover damages from an uninsured motorist. Thus it is clear that the statute was intended to place the injured person in the same position as if the tortfeasor was insured for the purpose of assuring the injured person of a recovery up to $5,000. There is nothing in the statute to indicate a legislative intent to assure the injured person of all the advantages that toould accrue to him if the tortfeasor were insured. The statute simply describes a type of policy designed to cover the insured when a tortfeasor is uninsured. The statute is silent as to the insurer’s right of subrogation. The majority opinion interprets the statute as if it read “and the insurer shall not be entitled to subrogation as to any sums paid by or on behalf of any person jointly or severally *82liable with the uninspired tortfeasor.” This addition to the statute is not compelled by any language contained in the statute. Nór is it compelled by any social policy. In fact, after we misconstrued the statute in Peterson the legislature by amendment expressly provided for subrogation as to “All sums paid on account of such bodily injury by or on behalf of the owner or operator of the uninsured vehicle and by or on behalf of any other person or organization jointly dr severally liable together with such owner or operator for such bodily injury including all sums paid under the bodily injury liability coverage of the policy.” OES 743.792 . (7) (c) (A). The amendment merely states the usual rule of subrogation in insurance eases. We should have applied that rule in the Peterson case. Since we erred in the Peterson' case we should overrule it and permit the plaintiff in the present case to assert its right of subrogation.