MORRIS, District Judge
(after stating the facts). The demurrer to defendant’s plea to the jurisdiction, which was sustained by the court, raises the question whether Watts could, in Ins own name and alone, institute an action at law to recover the full value of the property alleged to have been destroyed by the [464]*464defendant’s negligence, after having been paid by the insurers about one-half Ms loss. It is contended that as the insurers were subrogated to the extent of their payments, and were entitled to be repaid if Watts recovered the whole loss from the defendant, they were necessary plaintiffs in the action, and if made plaintiffs the circuit court would be without jurisdiction, as then all the plaintiffs would not be citizens of the state in which the suit was brought. Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303. This contention cannot be maintained. It is true that the payment by the insurer works an equitable assignment of the assured’s claim against the wrongdoer, but the wrongful act is indivisible, and gives rise to but one cause of action. The insurer is subrogated only to the remedies of the assured, and the rule is well settled that the suit is properly brought in the name of the person whose property has been destroyed. If he recovers a sum which, with the amount he has received from the insurers, is more than his whole loss, the excess belongs to the insurers, and he receives it as trustee for them. The wrongdoer is bound to respond in damages for the whole loss to the owner of the property, and how the money recovered is to be distributed does not concern him. Aetna Ins. Co. v. Hannibal, etc., R. Co., 3 Dill. 1, Fed. Cas. No. 96; Hart v. Railroad Co., 13 Metc. (Mass.) 99; Chicago, etc., R. Co. v. Pullman South. Car Co., 139 U. S. 79-86, 11 Sup. Ct. 490; Railway Co. v. Jurey, 111 U. S. 584, 4 Sup. Ct. 566; Sheld. Subr. §§ 230, 231. In an action at common law the right of the insurer is properly asserted in the name of the assured. Phoenix Ins. Co. v. Erie & W. Transp. Co., 117 U. S. 321, 6 Sup. Ct. 750, 1176.
The statute of West Virginia, providing that the assignee of any bond, note, account, or writing, not negotiable, may maintain thereupon any action in his own name, without the addition of “as-signee,” which the original obligee or payee might have brought, has no application to a case of subrogation, where the payment by the insurer is only a partía1 indemnity.
The defendant's exception to the admission of testimony of the witness Rauch and the fitness Sullivan we do not think well taken. Rauch was defendant’s witness; the man employed by it who soldered the wire at plaintiff’s house, and whose alleged negligence the plaintiff charged had resulted in the burning of his house. He was asked in chief by defendant where he had worked that morning next before going to plaintiff’s house, and, when he answered at Sullivan’s store, he was asked to describe what he had done there, and how he had bored the holes there, and how he had put, the wire through, and then was asked to describe how he put in the. wire at plaintiff’s house. Upon cross-examination of this witness, it was the plaintiff’s right to test the accuracy of his statements with regard to these matters, and why he had done them in one way at Sullivan’s and in another way at plaintiff’s house, and his reasons for boring a half-inch hole at Sullivan’s, and for using a quarter-inch hole at plaintiff’s. All the cross-examination on these matters was competent, not to show to the jury how ■the work had been done by the witness at Sullivan’s, but to test [465]*465the accuracy and consistency of the plaintiff's statements as to how he had done the work at plaintiff's house, and the weight which the jury should give to his statements. And with regard to the scorching of the window frame at Sullivan’s, the witness Rauch had testified that he did not think he had ever scorched or burned the woodwork of a house in soldering a telephone wire; that he had soldered the wire at plaintiff’s house just as he had done at Sullivan’s; and that he had not burned the wood at Sullivan's, and would consider it careless to do so. It should be borne in mind that plaintiff’s house had been destroyed, and that no one saw the witness do the soldering there or saw the window casing after he left, and direct proof of its condition when witness left it was not obtainable. When, therefore, he testified that he did the soldering with the same iron and in the same way at both places, and did not burn the wood at either place, and when the defendant had him experiment with a piece of wood before the jury to demonstrate that such a heated iron would not bum ihe wood, surely it was competent, material, and pertinent for the plaintiff to show that the witness had actually scorched the window frame at Sullivan’s. It is quite true that proof of the fact he liad at other times been careless or unskillful would not be competent testimony to show that he was careless or negligent at the plaintiff’s house, but by cross-examination any inconsistency in his testimony could be exhibited, and the fact stated by him that the heated iron would not burn a window frame was a fact which was directly pertinent to the issue, and could be contradicted. This fact was directly pertinent to the question of the possibility of the fire originating from the use of the soldering iron, the defendant having adduced testimony to show its impossibility.
The other exceptions relate to alleged errors in the instructions and charge. By the defendant’s third prayer, which the court refused, the court was asked to say that, if the jury found that there were other theories of the origin of the fire equally as probable as the one on which tire plaintiff based his claim, they must find for the defendant. It cannot be said that this proposition was happily worded. The duty of the jury was not to evolve theories, and base their verdict upon probabilities. It was to determine whether or not the plaintiff had proved that the fire originated from the negligent use of the soldering iron by defendant’s workman. The court instructed them that before they could find for the plaintiff they must reach the conclusion from the evidence that the fire resulted from the defendant’s negligence; otherwise they must find for the defendant. And by the seventh instruction, as granted, they were told that, even if they found from the evidence that the theory advanced by the plaintiff was more probable than any advanced by the defendant, still they would not be justified in finding for the plaintiff, unless they found from the evidence that the plaintiff’s theory was the true one. They were also instructed by defendant’s sixth prayer that the burden of proof was on the plaintiff to prove that the fire was the result of the defendant’s negli[466]*466gence; and by the defendant’s second prayer, that the presumption was that the work had been done in a skillful and proper man-, ner. We think that the gist of the defendant’s third prayer was better expressed in other instructions asked by the defendant and granted, and also, in the court’s charge. It was therefore no error to refuse it in the form asked by the defendant’s third prayer.
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MORRIS, District Judge
(after stating the facts). The demurrer to defendant’s plea to the jurisdiction, which was sustained by the court, raises the question whether Watts could, in Ins own name and alone, institute an action at law to recover the full value of the property alleged to have been destroyed by the [464]*464defendant’s negligence, after having been paid by the insurers about one-half Ms loss. It is contended that as the insurers were subrogated to the extent of their payments, and were entitled to be repaid if Watts recovered the whole loss from the defendant, they were necessary plaintiffs in the action, and if made plaintiffs the circuit court would be without jurisdiction, as then all the plaintiffs would not be citizens of the state in which the suit was brought. Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303. This contention cannot be maintained. It is true that the payment by the insurer works an equitable assignment of the assured’s claim against the wrongdoer, but the wrongful act is indivisible, and gives rise to but one cause of action. The insurer is subrogated only to the remedies of the assured, and the rule is well settled that the suit is properly brought in the name of the person whose property has been destroyed. If he recovers a sum which, with the amount he has received from the insurers, is more than his whole loss, the excess belongs to the insurers, and he receives it as trustee for them. The wrongdoer is bound to respond in damages for the whole loss to the owner of the property, and how the money recovered is to be distributed does not concern him. Aetna Ins. Co. v. Hannibal, etc., R. Co., 3 Dill. 1, Fed. Cas. No. 96; Hart v. Railroad Co., 13 Metc. (Mass.) 99; Chicago, etc., R. Co. v. Pullman South. Car Co., 139 U. S. 79-86, 11 Sup. Ct. 490; Railway Co. v. Jurey, 111 U. S. 584, 4 Sup. Ct. 566; Sheld. Subr. §§ 230, 231. In an action at common law the right of the insurer is properly asserted in the name of the assured. Phoenix Ins. Co. v. Erie & W. Transp. Co., 117 U. S. 321, 6 Sup. Ct. 750, 1176.
The statute of West Virginia, providing that the assignee of any bond, note, account, or writing, not negotiable, may maintain thereupon any action in his own name, without the addition of “as-signee,” which the original obligee or payee might have brought, has no application to a case of subrogation, where the payment by the insurer is only a partía1 indemnity.
The defendant's exception to the admission of testimony of the witness Rauch and the fitness Sullivan we do not think well taken. Rauch was defendant’s witness; the man employed by it who soldered the wire at plaintiff’s house, and whose alleged negligence the plaintiff charged had resulted in the burning of his house. He was asked in chief by defendant where he had worked that morning next before going to plaintiff’s house, and, when he answered at Sullivan’s store, he was asked to describe what he had done there, and how he had bored the holes there, and how he had put, the wire through, and then was asked to describe how he put in the. wire at plaintiff’s house. Upon cross-examination of this witness, it was the plaintiff’s right to test the accuracy of his statements with regard to these matters, and why he had done them in one way at Sullivan’s and in another way at plaintiff’s house, and his reasons for boring a half-inch hole at Sullivan’s, and for using a quarter-inch hole at plaintiff’s. All the cross-examination on these matters was competent, not to show to the jury how ■the work had been done by the witness at Sullivan’s, but to test [465]*465the accuracy and consistency of the plaintiff's statements as to how he had done the work at plaintiff's house, and the weight which the jury should give to his statements. And with regard to the scorching of the window frame at Sullivan’s, the witness Rauch had testified that he did not think he had ever scorched or burned the woodwork of a house in soldering a telephone wire; that he had soldered the wire at plaintiff’s house just as he had done at Sullivan’s; and that he had not burned the wood at Sullivan's, and would consider it careless to do so. It should be borne in mind that plaintiff’s house had been destroyed, and that no one saw the witness do the soldering there or saw the window casing after he left, and direct proof of its condition when witness left it was not obtainable. When, therefore, he testified that he did the soldering with the same iron and in the same way at both places, and did not burn the wood at either place, and when the defendant had him experiment with a piece of wood before the jury to demonstrate that such a heated iron would not bum ihe wood, surely it was competent, material, and pertinent for the plaintiff to show that the witness had actually scorched the window frame at Sullivan’s. It is quite true that proof of the fact he liad at other times been careless or unskillful would not be competent testimony to show that he was careless or negligent at the plaintiff’s house, but by cross-examination any inconsistency in his testimony could be exhibited, and the fact stated by him that the heated iron would not burn a window frame was a fact which was directly pertinent to the issue, and could be contradicted. This fact was directly pertinent to the question of the possibility of the fire originating from the use of the soldering iron, the defendant having adduced testimony to show its impossibility.
The other exceptions relate to alleged errors in the instructions and charge. By the defendant’s third prayer, which the court refused, the court was asked to say that, if the jury found that there were other theories of the origin of the fire equally as probable as the one on which tire plaintiff based his claim, they must find for the defendant. It cannot be said that this proposition was happily worded. The duty of the jury was not to evolve theories, and base their verdict upon probabilities. It was to determine whether or not the plaintiff had proved that the fire originated from the negligent use of the soldering iron by defendant’s workman. The court instructed them that before they could find for the plaintiff they must reach the conclusion from the evidence that the fire resulted from the defendant’s negligence; otherwise they must find for the defendant. And by the seventh instruction, as granted, they were told that, even if they found from the evidence that the theory advanced by the plaintiff was more probable than any advanced by the defendant, still they would not be justified in finding for the plaintiff, unless they found from the evidence that the plaintiff’s theory was the true one. They were also instructed by defendant’s sixth prayer that the burden of proof was on the plaintiff to prove that the fire was the result of the defendant’s negli[466]*466gence; and by the defendant’s second prayer, that the presumption was that the work had been done in a skillful and proper man-, ner. We think that the gist of the defendant’s third prayer was better expressed in other instructions asked by the defendant and granted, and also, in the court’s charge. It was therefore no error to refuse it in the form asked by the defendant’s third prayer.
The defendant’s fifth instruction asked the court to say that the fact that in a part of the cellar, under a room adjoining the library and divided from the cellar under the library, there were leaves banked up to the height of four or five feet in a comer, and that in part-of the cellar there was a flue to the top of the chimney, was evidence from which the jury might find that the plaintiff was guilty of contributory negligence. Contributory negligence is such want of ordinary care on the part of a plaintiff as, co-operating with the negligent act of the defendant, is a proximate cause of the injury. How could it be held to be want of ordinary care in the plaintiff to keep leaves or newspapers or kindling wood in a part of his cellar divided off by a partition from the cellar under a room in which a workman was to solder a telephone wire? The fact that there were leaves in the cellar was a. pertinent fact for the jury to consider in ascertaining if the fire might not as well have originated in some other way as from the hot soldering iron, but, when the jury had found that, the fire originated from the negligent use of the hot soldering iron, the fact that there were leaves in the cellar had no causal connection with the origin of the fire. The prayer does not even require the jury to find that.» the fire was first communicated to the leaves, or that the fire could have been prevented if the leaves had not been in the cellar. It is quite obvious that there was no error in rejecting this prayer.
The next exception is to the modification which the court made in the defendant’s seventh and eighth prayers. The court substituted in the defendant’s seventh prayer, for the words, “they [the jury] must be satisfied and convinced by the evidence,” the words, “they must find from the evidence”; and in the eighth prayer, for the words, “unless they are convinced by the evidence,” the words, “unless they find from the evidence.” An instruction to the jury that they must “find” a fact as to which there is conflicting testimony means, by common acceptance, that they must be satisfied of it to that degree of certainty which the case requires, — that is, in a criminal case, as to a fact necessary to constitute the crime beyond a reasonable doubt; in a civil case, by such preponderance of evidence as satisfies the mind. The word “find” had been several times used in this sense in the judge’s charge and in the instructions granted at defendant’s request. The court had used the words “to find,” “to be convinced,” “to reach the conclusion,” in a way that could leave no doubt as to what was intended. That the court adhered to the word already used to express the same meaning is not error. A judge is not bound to adopt the language suggested by counsel, and should refuse to use it when it would seem to indicate a distinction where none, is intended by him. Ayers v. Watson, 137 U. S. 601, 11 Sup. Ct. 201.
[467]*467It is excepted to that the judge in his charge said that he was not aware of any evidence which tended to show that the fire commenced at any other place than under the library floor, but at the same time the judge said to the jury that, if there was any conflicting testimony tending to show that the fire commenced in any other place, they must consider if, and determine the case upon the weight of all the evidence. This certainly left all the testimony to be considered by the jury, and is not error. Allis v. U. S., 155 U. S. 117, 15 Sup. Ct. 36.
Certain portions of the judge’s charge set out in the statement of facts j>receding this opinion, and marked “a,” “b,” and “e,” were excepted to upon the ground that the language used, as to the acts of negligence which would make the defendant liable, was too comprehensive, and that the instruction should have been restricted to the acts of negligence alleged in the plaintiff’s declaration. The declaration alleged but one act of negligence, viz. that in soldering the wire the soldering iron was carelessly and negligently brought in contact with the window frame at the place where the hole was bored, and thereby the house was set on fire. This was the sole act of negligence which the proof tended to establish. It was the one issue of fact by which, throughout the trial, the perti-nency of the evidence offered was tested, and when, therefore, the court spoke to the jury with regard to the plaintiff’s dwelling hawing been burned by the carelessness or negligence of the defendant’s workman, there was but one act of negligence to which his remarks could possibly apply. In our examination of the whole ease we do not find any rule of law incorrectly stated, or any instruction granted or refused in which there is reversible error. The judgment is affirmed.