The appellee instituted this action to recover on a policy of insurance issued by the appellant to one John Hecht. The following facts are averred in the amended complaint:
"That plaintiff was the owner of a certain Hudson touring car. On May 15, 1919, by virtue of a contract of conditional sale, the car was in the possession of John Hecht but the title was in the plaintiff; that on said day the policy was issued on the car to Hecht, and a rider was attached to the policy, which rider provided that loss, if any, shall be payable to Benjamin Edwards as his interest may appear, subject nevertheless to all the terms of the policy; that the automobile was destroyed by accident, resulting in a loss in the sum of $485; that plaintiff's interest in the automobile at the time of the loss was, and now is, in excess of the amount due on the policy, and that Hecht has no interest in any sum recoverable on the policy." *Page 560
The policy, which was made a part of the complaint, contains the following provision:
"If the insurer shall claim that a loss under this policy was caused by the negligence of a third person, then on payment of the loss the insurer shall be subrogated, to the extent of the payment, to the right of the insured to recover from the wrongdoer; and thereupon said right shall be assigned in writing to the insurer by the insured, and the insurer shall have the right to bring an action in the name of the insured against the wrongdoer for the purpose of enforcing the claim."
A demurrer to the amended complaint on the grounds: (1) That there is a defect of parties; and (2) for insufficient facts, was overruled. The defendant filed an answer in six paragraphs, the first paragraph being the general denial. The plaintiff demurred to each affirmative paragraph of answer on the ground that each paragraph fails to state facts sufficient to constitute a cause of defense. This demurrer was sustained as to the fifth paragraph and overruled as to the others.
The fifth paragraph of answer contains the following averments: "That on June 8, 1919, the automobile, which was the subject of the insurance, was damaged by a collision with another automobile driven by one Curran; that the collision was due to the wrongful act of Curran; that on October 20, 1919, Curran paid to the insured, John Hecht, the sum of $500 in full settlement of the damages so occasioned to the automobile and thereupon Hecht released Curran from any right of action arising out of his negligence as aforesaid; that by the settlement between Hecht and Curran the insurer lost its right of subrogation against Curran; and that by the settlement Hecht was rendered powerless to assign in writing, to the insurer, the cause of *Page 561 action which he had against Curran prior to the settlement, even if the insurer should pay the loss."
Trial resulted in a verdict for the plaintiff in the sum of $485, and judgment was rendered accordingly.