Other Insurance for Whom it May Concern or on Goods in Trust, etc. other company be liable on its policy or not. Cassity v. New Orleans Ins. Asso., 65 Miss. 49; 3 So. Rep. 138. insurance be valid or invalid, or without reference to the liability of other insurers, refers to valid insurances which 23. The provision of an insurance though in force at the time of the loss policy, that no greater proportion of the may not constitute legal liability because loss or damage sustained will be borne by of some breach, and not to insurance the insurer than the amount thereby in- which is in fact no insurance because absured shall bear to the whole amount in-solutely void. *Marshall v. Insurance sured on said property, does not limit the Company of North America, 48 Phila. liability of the company, where there Leg. Int. 264; 10 Pa. Co. Ct. 87; 28 W. N. was no other insurance at the time of the C. 283. loss, although there was at the time the policy was issued, if the policy does not otherwise restrict the right of the insured to cancel the other insurance. Agricultural Ins. Co. v. Bemiller, 70 Md. 400; 17 Atl. Rep. 380. 66 24.- Where a policy of insurance provides that in case of any other insurance upon the property insured, whether valid or invalid. . . the insured shall be entitled to recover of this company no greater proportion of loss sustained than the sum hereby insured bears to the whole amount insured," it is immaterial that the additional insurance is invalid, if effected by the insured or by his authority and consent. London & L. F. Ins. Co. v. Turnbull, 86 Ky. 230; 5 S. W. Rep. 542. 28. A policy providing that it shall be considered void upon the obtaining of other insurance becomes void at once in such event, and is no insurance, and therefore is not to be taken into consideration in apportioning a loss between the insurers. Id. 29. Other insurance for whom it may concern or on goods in trust, etc. L. was insured in a Baltimore company on his own goods, and in sundry foreign companies on his own goods and goods held on commission. The policy in the first company contained a clause that "the insured shall not in case of loss or damage be entitled to demand or recover on this policy any greater proportion of the loss sustained than the amount hereby insured shall bear to the whole amount of the several insurances." The whole insurances were insufficient to cover the value of the goods lost. The Baltimore company refused to pay more than the proportion of the losses as stated in the above clause. Held, that the foreign policies were not within the effect of the covenant relating to other insurances, and that the Baltimore company was not entitled to any abatement of its liability on its policy by reason of such other inBaltimore Fire Ins. Co. V. 25.- A policy valid upon its face and in the hands of the insured at the time of a loss, which is not null and void, but merely voidable at the option of the company, because a subsequent policy from another insurer was taken without the consent of the first insurer, is to be treated as "other insurance," within the meaning of a clause in the latter policy, providing that the insurer's liability on the policy shall be only in proportion to the whole amount of insurance. Saville v. Etna Ins. Co., 3 L. R. A. 542; 8 Mont.surance. 419; 20 Pac. Rep. 646. 26.- Where a policy in another company was obtained under the mistaken impression that the policy sued on had been canceled, and the insured so represented, such policy must be excluded in estimating the amount for which the defendant is liable. *Parks v. Hartford F. Ins. Co., 100 Mo. 373; 19 Ins. L. J. 364; 12 S. W. Rep. 1,058. Loney, 20 Md. 20. 30.- A policy issued for $5,000 upon merchandise held on trust and commission, provided that in case of other insurance the company should be liable for such proportion of the loss to the subject insured as the amount insured by the company should bear to the whole amount insured thereon. The insured also held another policy for $4,000 on 27.- A provision in an insurance pol- merchandise held on trust and commisicy that the company shall be liable, in sion, and on storage. A loss happened to case of other insurance, only for a ratable the amount of $9,157, of which $7,470 was proportion of the loss, whether the other merchandise held on commission, and Other Insurance by Mortgagee. $1,687 held on storage. Held, that the insured was entitled to recover the whole amount of the $5,000 policy. Angelrodt v. Delaware Mut. Ins. Co., 31 Mo. 593. 35. Other insurance by mortgagee. Where the plaintiffs, as mortgagees, procure a policy on their interest in the mortgaged property, and the policy contains the usual apportionment provision, and a subsequent mortgagee procures an insurance in another company on the same property, the plaintiffs, in case of loss, are not liable to be apportioned with such subsequent mortgagee, but are entitled to recover the whole amount insured by them, being less than the loss or damage to the property. Fox v. Phœnix Fire Ins. Co., 52 Me. 333. - 36. Other insurance to entitle company to apportionment of loss must be upon same interest. Insurance by a 31.- Policies were taken out by the Baltimore Warehouse Company in its name upon cotton stored by factor, who had obtained other insurance covering the same property in other companies in his name, loss being made payable to the Warehouse Company to secure advances. Held, double policies, and the companies issuing them bound to contribute their respective proportions of the loss. Hough v. People's Ins. Co., 36 Md. 398; S. P. Home Ins. Co. v. Baltimore Warehouse Co., 3 Otto, 527 (U. S.); Robbins v. Firemen's Fund Ins. Co., 16 Blatch. 122 (U. S. Cir.) | mortgagee upon his interest is not such 32.- A party holding goods in trust or on commission, who is liable to make good any loss by fire to property in his possession belonging to a third party, may insure same to extent of value, and when he has collected from the company issuing the policy for a loss on same, such company can not claim contribution from another company which had insured the owner. North British and Mercantile Ins. Co. v. London, Liverpool and Globe Ins. Co., L. R. 5 Ch. Div. 569. 33.- Company insuring merchandise his (insured's) own or held by him in trust or on consignment, or sold but not delivered, against all loss not exceeding the interest of insured, should not contribute, with other companies specifically insuring goods held on storage, to a loss on such goods, in which insured has no interest. Home Ins. Co. v. Gwathmey, 16 Ins. L. J. 338; 82 Va. 923. other insurance. Adams v. Greenwich Ins. Co., 9 Hun, 45; affi'd, 70 N. Y. 166; S. P. Johnson v. N. B. and M. Ins. Co., 1 Holmes, 117 (U. S. Cir.) 37.- Otherwise where the insurance is in name of the owner although obtained by the mortgagee. Doran v. Franklin Ins. Co., 10 Ins. L. J. 842; 86 N. Y. 635. 38.- Policy provided that the assured should be entitled to recover in case of loss only the proportion which the sum insured bore to the whole amount of all the insurances which were on the property. There were three policies, two besides that of the defendant. In one issued by the Etna, the loss was made payable to a mortgagee. The jury were directed to assess the damages on the basis that there was but one other policy leaving out of the account entirely the policy in the Etna company. Held, correct, that the policy in the Etna was 34.- A transportation company which upon a distinct and separate interest in insures goods in its charge for benefit of the property from that upon which the whom it may concern, in effect recovers defendant's policy was written; that inand holds the insurance as trustee for surance was upon the interest of the benefit of the actual owners, and insur- mortgagees, while the one in suit was on ance obtained by such owners on same the equity of redemption. The jury were property is contributing insurance. Fire Ins. Assoc. v. Merchants and Miners' Transportation Co., 16 Ins. L. J. 618; 6 Cent. Rep. 437; 66 Md. 339. But note that this decision was founded on a clause in the defendant's policy providing that "any floating policy attaching in whole or in part to the property covered by this policy shall be considered as contributing insurance etc." properly directed to apportion the loss between the two companies which had insurances on the same interest according to the amount of the respective policies, taking as a basis not the whole value of the property, but the value of the plaintiff's insurable interest, that is, of his interest as owner of the equity of redemption. Tuck v. Ins. Co., 56 N. H. 326. 39.- Policy was made payable to a Effect of One Company Paying More Than its Share. mortgagee, and contained provision that no sale or transfer of the property hereby insured shall vitiate the right of the mortgagee to recover in case of loss." Assured subsequently made a second mortgage which was foreclosed, and the purchaser obtained a policy insuring his interest. Defendant claimed that it was liable for only its proportion of the loss according to contribution clause in its policy. Held, that the company, by its special contract with the plaintiff, had agreed that its right to recover should not be affected by any of the natural consequences or incidents of a sale and transfer, and that the loss being less than the debt there could be no apportionment. City Five Cent Sav. Bank v. Penn Ins. Co., 122 Mass. 165. 39a. Other insurance procured by mortgagee without consent of insured is not contributory insurance, although the mortgagor compelled him to account for the insurance money collected thereunder. *Niagara Fire Ins. Co. v. Scammon, 21 Ins. L. J. 592 (Ill.) See No. 105. brought, and to which defendant company is not a party, is inadmissible as against it. Fire Ins. Asso. v. Merchants' & M. Transp. Co., 6 Cent. Rep. 437; 66 Md. 339. 43. Effect of full payment by other companies. An insurance company which, concurrently with others, has issued a policy upon property, is discharged from liability to the assured by the latter's claiming his whole loss from the other companies and their payment thereof, its liability, if any, being to the other companies for contribution. *Williamsburg City F. Ins. Co. v. Gwinn, 13 S. E. Rep. 837; 88 Ga. 65. 43a.-Policy for one thousand dollars, company's liability, was limited to twothirds of loss sustained. Loss was $2,200, and another company paid $1,000, its full liability. Held, that insured was entitled to recover two-thirds of the balance of his loss after deducting the amount received from the other insurance company, or eight hundred dollars. McIntyre v. East Williams Fire Ins. Co., 18 Ont. 79 (Can.) 40. As between fire and marine policies. Marine policies issued to the re- 44. Effect of one company paying spective owners of cotton are not to have more than its share. Where there are any effect upon a fire policy, unless they several insurances on the same property, amount to double insurance. Double in- and the policies stipulate that each comsurance exists only in the case of risks pany shall be liable only for their ratable upon the same interest in property and in proportion of any loss, if one company favor of the same person. *California | pays more than its just share its remedy Ins. Co. v. Union Compress Co., 133 U. S. 387; 33 L. ed. 730; 7 R. R. & Corp. L. J. 363; 19 Ins. L. J. 385; 10 Sup. Ct. Rep. 365. is not against the other companies for contribution, but against the assured. Fitzsimmons v. City Fire Ins. Co., 18 Wis. 234; compare Sloat v. Royal Ins. Co., 49 Pa. 14. 41.- Where cotton burned in the possession of a compress company was insured by marine policies as to some of the 45.- Where property is insured against owners, and by fire policies procured by fire in several companies, and each policy the company upon a portion of its value contains a proviso that in case of a loss for the benefit of carriers and owners, in the assured shall not be entitled to receive part performance of contracts to procure of the company issuing such policy any insurance, the marine insurers are not en- greater proportion of the loss than the titled to contribution from the fire in- amount insured by such policy bears to surers until the carrier liability and that the whole amount insured upon the propof the uninsured owners is fully dis- erty; the liability of any one of the comcharged. *Deming v. Merchants' Cotton-panies to pay the assured its ratable share Press & S. Co., 13 L. R. A. 518; 17 S. W. of the loss is not affected by the fact that Rep. 89; 90 Tenn. 306. some of the other companies have paid 42. Effect of agreement between more than their share, so that the amount companies. An agreement between two | already received by the assured is equal of the contributing insurance companies, to his whole loss. Fitzsimmons v. City in regard to the proportion of loss to be Fire Ins. Co., supra. No. 44. paid by them, executed after the suit was 46.- The liability of company under a Apportionment as Made by the Courts. clause providing that it shall not be responsible for " any greater portion of the loss or damage sustained than the amount hereby insured shall bear to the whole amount of insurance,” is several, not joint; although assured may have received from another company more than three-fourths of the value to which extent of the insurance is limited, the other is still liable for its proportion of the value in full according to its contract. Liability of company in this particular must be determined by state of facts at time of loss. Bardwell v. Conway Ins. Co., 118 Mass. 465. 47. Apportionment as made by the courts. Several policies of insurance were taken out on one building-additions were then made, and insurance taken on new and old. In an action upon policy covering the old; held, that the amount of loss upon the new should be first deducted from policies covering both, before their aggregate amount is brought into calculation by which the proportionate liability of each is to be ascertained. Cromie v. Kentucky & Louisville Mut. Ins. Co., 15 B. Monroe 432 (Ky.) is to $4,000 (amount of policy covering the goods 'on storage'), so is $7,470.75 (the value of general merchandise and goods on commission) to the value of general merchandise and goods on commission covered by said policy, that is, the sum of $3,263.13, which sum is the proportion of the said policy, that covers general merchandise and goods on commission." Then adding this last sum thus ascertained to $5,000, the amount of defendant's policy, and the total amount, $8,263.13, will be the insurance to contribute to the loss on general merchandise and goods on commission. Held, that as between the insurers the mode adopted by the Court of Common Pleas was correct, if thereby the losses sustained by the assured were made good; but as in this case, the assured would not be fully indemnified, another plan must be adopted, to wit: the policy of the St. Louis Company should be first applied towards payment of the goods "in storage," and the amount thus paid deducted from the amount of said policy, leaving only the remainder to contribute 48.- A. and B. were insured against with defendant's policy of $5,000, on merloss by fire by the defendant in the sum|chandise covered by both policies. Anof $5,000, on merchandise held by them gelrodt v. Delaware Ins. Co., 31 Mo. for themselves, and on trust or on commission for account of whom it may con- 49.- Where plaintiff obtained a floatcern. They were also insured by the St. ing policy upon merchandise in any of Louis Insurance Company in the sum of the warehouses in New York, Brooklyn $4,000, on merchandise held in a similar and Jersey City, which contained an manner, and also on merchandise held average clause to the effect that if the "in storage," which last was not covered merchandise should, at the time of any by policy of defendant. Merchandise of fire, be insured by any specific insurance, assured, to the amount of $9,157.75, was then "this policy shall not extend to destroyed by fire, of which sum $7,470.75 cover the same, excepting only as far as was covered by policy of defendant, and relates to any excess of value beyond the $1,687 was property held on storage, and amount of such specific insurance, which not covered by policy of defendant, but said excess is declared to be under the included in that issued by the St. Louis protection of this policy," and fire occompany. One condition of defendant's curred in warehouse in which there was policy provided that: "in all cases of a merchandise to amount of $386,026, and plurality of insurances on the same sub-covered by specific insurance to amount ject, this company shall be liable for such of $324,000. Amount of the loss, $274,ratable proportion of the loss or damage 192.46. Held, policy attached to and happening to the subject insured, as the protected only that portion of the value amount insured by this company shall which was in excess of the specific insurbear to the whole amount insured ance, and that the whole loss was inthereon." The Court of Common Pleas tended to be thrown upon the specific decided that the adjustment should be insurance, unless it exceeded the amount made by the following proportion: "as of them, and then the excess was intended $9,157.75 (the total value of the goods lost) to fall upon the floating policy. Fair 593. Apportionment as Made by the Courts. child v. Liverpool & L. Ins. Co., 51 N. The excess of loss on stock Y. 65; aff'g, 48 Barb. 420. on third and fourth floors exceeded the amount of the special policy..... ...... The loss on the machin- ..... $840.73 500.00 The policy of the Royal Ins. Co. contained the usual contribution clause. 50.- Defendant issued three policies, $500 each, on live stock, each containing the usual clause providing for an apportionment or contribution in case of loss. A fire occurred whereby two steers of the value of $336, and one bull of the value of $2,000, were destroyed. At the time of the loss the assured had other insurance in the North Missouri Ins. Co. for the sum of $1,666.67 on live stock, no one animal to be valued at more than $500. The adjustment of the loss under the He had also another policy in the Con-specific policy for $8,000 on stock on third tinental Ins. Co. for the same amount on and fourth floors was, upon the principle live stock, not to exceed $500 on any one. claimed by the assured to be correct, as Held, that the loss should be apportioned follows: as follows: Continental....$115.83 $500.00 The loss on stock on third and On steers. On bull. Total. fourth floors was........ .$8,840.73 $615.83 Royal. .$10,000 gen. pays, $3,157.40 North Missouri. 115.83 172.42 288.25 Lond., L. & G... 5,000 Madison Mut.... 104.34 1,327.58 1,431.92 Franklin. Royal.... Totals........$336.00 $2,000.00 $2,336.00 And that defendant was therefore liable for the sum of $1,431.92. Sherman v. Madison Mutual Ins. Co., 39 Wis. 104. 51.- Building was occupied by assured as shoe dealers and manufacturers. The Royal Ins. Co........ 66 5,000 66 ... 8,000 specific" 1,578.70 1,578.70 2,525.93 Royal paid $2,525.93 to the assured and the balance of its specific policy to the submitted the question of its liability for court. Held, that the entire loss exceeded the entire insurance of all the policies general and special, and that the general and special policies covered in fact different subjects, and that the loss under each was more than sufficient to exhaust the entire amount. A rule of average, which first and second floors were used as salesrooms, and the third and fourth as a factory. Insurance had been effected as follows: Upon the stock in the whole building, including the third and fourth floors, would exempt the general policies from $10,000 a portion of their peculiar loss below in 5,000 order to carry it to the relief of the spe 5,000 cial policy above and thus to exonerate each from a portion of a total loss of different subjects, would directly contradict the spirit and intent of the contract. Held, therefore, that the assured was entitled to the balance of the $8,000. Royal Ins. Co. v. Roedel, 78 Pa. 19. |