1. An insurer, upon paying the insured for a loss occasioned by the fault of a third party, becomes subrogated to the right of the assured to proceed against the third party.
2. The insured's right of subrogation is not limited to claims based on tort, but extends to a cause of action by the insured against the third party founded on contract.
3. The insured is not liable to the insurer for moneys received from a tort feasor where the total of his recovery from both the insured and the tort feasor does not exceed his loss. He holds only the excess of his loss in trust for the insurer.
4. It is a matter of defense, and incumbent on the insured, to prove that the sum recovered from both the insured and the tort feasor does not exceed the value of the article lost.
5. Defendant's acceptance of the receipt issued by the storage company fixing the value of the stored coat at $1,500, the receipt stating that "When the owner refuses or neglects to place a valuation on the article stored [the company] will make a valuation and the acceptance of this receipt shall be an acquiescence in such valuation by the owner," is not evidential per se of the value, but is evidential as an admission by defendant as to the value.
6. The storage receipt issued in this case was not a policy of insurance, and the storage company was not liable as an insurer, but as a bailee. The receipt did contain a covenant to procure insurance against certain mishaps, and presumably such insurance was held by the bailee and the bailor undoubtedly had an interest therein. But there is no evidence that the loss of the coat was caused by any happening against which the bailee had agreed to obtain insurance.
PER CURIAM.
The decree appealed from is affirmed, for the reasons stated in the opinion filed in the court below.
For affirmance — THE CHIEF-JUSTICE, BODINE, DONGES, HEHER, COLIE, WACHENFELD, EASTWOOD, BURLING, WELLS, DILL, FREUND, McLEAN, SCHETTINO, JJ. 13.
For reversal — None.