ter such deduction the first policy is liable for its full amount.

Angelrodt v. Delaware Ins. Co., 31 Mo. 593. And see Haley v. Dorchester Ins. Co., 1 Allen (Mass.), 536; Barnes v. Hartford Ins. Co., 9 Fed. Rep. 813; Mayer v. American Ins. Co., 2 N. Y. Supp. 227; Cromie v. Kentucky Ins. Co., 15 B. Mon. (Ky.) 432; American Central Ins. Co. v. Heath, 29 Tex. Civ. App. 445, 69 S. W. Rep. 235, citing Cromie v. Insurance Co., 15 B. Mon. (Ky.) 432; Angelrodt v. Insurance Co., 31 Mo. 593; Insurance Co. v. Roedel, 78 Pa. St. 19.

Above is in substance what has been known as the "Cromie " rule. And see Rule 14.

This rule may not apply when the other policy is itemized as to the amount of insurance on the several items. See Rules 32-35, and notes to Rules 23, 38 and 39.

In the Cromie case, which is the foundation of the "Cromie rule," one policy covered $5,000 on a certain building, and the others $7,000 on the same building, and also another building, but it does not appear that the insurance was itemized as to the amount of insurance on each building. There was a loss on both buildings, about $8,000 on the former and $1,100 on the other or additional building. The court said, "the amount of this loss ($1,100) should be deducted from their policies before their aggregate amount is brought into the calculation, by which the proportional liability of each is to be ascertained." This expression is the foundation of the rule and practice of considering the amount of the loss in determining the amount of insurance in any case, and would appear to have had its origin in the necessity of doing so, as there was no other means of ascertaining the amount of insurance on the same subject. See Rules 13 and 14.

RULE 16.

Other Insurance Must Cover Same Interest and Risk

Test.

Insurance requiring apportionment must cover the same interest and risk,' but this does not necessarily mean a description of the same interest in the same terms; for instance, where a railroad company has one policy insuring it to extent of its liability as a carrier or warehouseman, and has another policy on same

property payable to itself as trustee for benefit of the shippers, the latter insurance should be included in apportioning the loss; if assured cannot resort to any particular policy for indemnity, such policy cannot be taken into consideration in apportionment; but this is subject to Rule 11.*

1. Niagara Ins. Co. v. Scammon, 144 Ill. 490, 32 N. E. Rep. 914, 22 Ins. L. J. 157; Traders' Ins. Co. v. Pacaud, 51 Ill. App. 252, affd., 150 Ill. 245, 37 N. E. Rep. 460, 23 Ins. L. J. 624; Cannon v. Home Ins. Co., 49 La. Ann. 1367, 22 So. Rep. 387, 26 Ins. L. J. 737; Lowell Mfg. Co. v. Safeguard Ins. Co., 88 N. Y. 591; Tyler v. Ætna Ins. Co., 12 Wend. 507, 515; Deming v. Merchants' Cotton Co., 90 Tenn. 306, 347, 17 S. W. Rep. 89.

2. Minneapolis, St. P. & M. R. R. Co. v. Home Ins. Co., 64 Minn. 61, 66 N. W. Rep. 132, 25 Ins. L. J. 252; Home Ins. Co. v. Minneapolis, St. P. & M. R. R. Co., 71 Minn. 296, 74 N. W. Rep. 140.

3. Lowell Mfg. Co. v. Safeguard Ins. Co., 88 N. Y. 591. And see Home Ins. Co. v. Gwathmey, 82 Va. 923; Fox v. Phoenix Ins. Co., 52 Me. 333.

4. See Rule 11.

It was held in North British & M. Ins. Co. v. Liverpool, L. & G. Ins. Co., L. R., 5 Ch. Div. 569, that there was no contribution between policies insuring goods held "in trust," and another insuring owner's interest. But it should be noted that this was an action between the companies themselves, and did not involve any question as between the assured and the company, under the operation of an apportionment clause or condition. The effect of the insertion of the apportionment clause in policies in the United States has taken away the right of contribution as between the companies. See Rule 4.

RULE 17.

When Policy Covers Other Interests Besides that of Insured —

Effect of Specific Insurance.

Where policy is taken out in name of certain assured, but covers not only his interest but that of others for whom he acts as agent under such general terms as

"held by him in trust or on commission," "whom it may concern, ""sold or not delivered," or other like or similar effective terms, if other policies are taken out by the owners on the same property, all the policies must be taken into consideration in determining the amount of insurance as basis of apportionment;1 but otherwise as to property which, under the terms of the policy, must be specifically insured to render the company liable.2

1. Hough v. People's Ins. Co., 36 Md. 398; Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527; Robbins v. Firemen's Fund Ins. Co. (U. S. Cir.), 16 Blatchf. 122; Lowell Mfg. Co. v. Safeguard Ins. Co., 88 N. Y. 591; Fire Ins. Assoc. v. Merchants' Transportation Co., 66 Md. 339. And see Waring v. Indemnity Co., 45 N. Y. 606.

2. Home Ins. Co. v. Gwathmey, 82 Va. 923, 1 S. E. Rep. 209. And see Rules 29, 31.

RULE 18.

Effect of Mortgagee Clause

Rights of Mortgagee.

Under the "mortgagee clause" and as against the mortgagee another policy upon the same property and obtained by the owner and insured without the knowledge or consent of the mortgagee, is not such other insurance as requires an apportionment of the loss. And this applies even when the mortgagee clause contains a special provision that the company should be liable only "in proportion that the amount insured should bear to the whole amount of insurance on the property issued to or held by any party or parties having an insurable interest therein, whether as owner, mortgagee, or otherwise." The insurance which shall diminish or impair the right of the mortgagee to recover his loss must be one which has been issued upon

his interest in the property, or when he shall have consented to the other insurance upon the owner's interest.

Eddy v. London Assur. Co., 143 N. Y. 311, 38 N. E. Rep. 307, 24 Ins. L. J. 1; Hastings v. Westchester Ins. Co., 73 N. Y. 141; Hardy v. Lancashire Ins. Co., 166 Mass. 210, 44 N. E. Rep. 209, 25 Ins. L. J. 746. And see City Savings Bank v. Pennsylvania Ins. Co., 122 Mass. 165; Hartford Ins. Co. v. Olcott, 97 Ill. 439. See also Rule 21.

Exception. It is held otherwise in Hartford Ins. Co. v. Williams, 63 Fed. Rep. 925, 11 C. C. A. 503, 27 U. S. App. 493; Sun Ins. Office v. Varble, 103 Ky. 758, 46 S. W. Rep. 486, 27 Ins. L. J. 798.

RULE 19.

Effect of Insurance upon Interest of Mortgagee.

Insurance by a mortgagee upon his interest as such is not other insurance requiring apportionment of the loss on claim by the owner upon a policy obtained by him on his interest;1 but otherwise where loss is merely made payable to a mortgagee without the mortgagee clause, unless insurance is obtained by the mortgagee in that form in exclusive protection of his own interest, without privity or authority of the owner.3

1. Adams v. Greenwich Ins. Co., 9 Hun, 45, affd., 70 N. Y. 166. And see Traders' Ins. Co. v. Pacaud, 51 Ill. App. 252; Tuck v. Hartford Ins. Co., 56 N. H. 326; Home Ins. Co. v. Koob, 113 Ky. 360, 68 S. W. Rep. 453, 24 Ky. L. Rep. 223. 2. Doran v. Franklin Ins. Co., 86 N. Y. 635, 10 Ins. L. J. 842. And see Tuck v. Insurance Co., 56 N. H. 326; Niagara Ins. Co. v. Scammon, 144 Ill. 490, 28 N. E. Rep. 919.

3. Cannon v. Home Ins. Co., 49 La. Ann. 1367, 22 So. Rep. 387, 26 Ins. L. J. 737. And see "Mortgagor and Mortgagee.'

RULE 20.

When all the Policies Insure Interest of Different Mortgagees.

Where several policies insure the several interests of different mortgagees as such in the same property,

E

there can be no apportionment, because they do not

insure the same interest.

Fox v. Phoenix Ins. Co., 52 Me. 333.

RULE 21.

As Against Mortgagee with Mortgagee Clause.

Where an insurance company issues two policies, one to the owner, and the other to the owner, with loss payable to a mortgagee, with mortgagee clause at tached, as against claim by latter the first policy is not such other insurance as to require apportionment.

Crow v. Greenwich Ins. Co., 66 Hun, 54, 20 N. Y. Supp. 753. And see Rule 18.

RULE 22.

A Coinsurance Clause Must be Considered.

A coinsurance clause in a policy must be taken into consideration in apportioning the loss according to its terms, and other policies which do not contain such a clause cannot take advantage of it in the apportionment,' unless they also contain a clause to effect that if any other policy should have the coinsurance clause it should be operative in their case; the assured cannot complain that a coinsurance clause has the effect to reduce the amount which he might otherwise have received.2

1. Armour Packing Co. v. Reading Ins. Co., 67 Mo. App. 215; Quinn v. Fire Assoc., 180 Mass. 560, 62 N. E. Rep. 980; Fireman's Fund Ins. Co. v. Pekor, 106 Ga. 10, 31 S. E. Rep. 779; East Texas Ins. Co. v. Coffee, 61 Tex. 287; Chesbrough v. Home Ins. Co., 61 Mich. 333, 28 N. W. Rep. 110. And see Singleton v. Boone Ins. Co., 45 Mo. 250; Post v. Hampshire