Cross References-Statutory Provisions.

Statutory Provisions.

101.-If on trial insured recovers more three months without special order. than amount determined by company, Pub. Stat. N. H. 1891, p. 486, § 13. judgment and execution follow immediately; if no more interest may be allowed, and costs to either party as may be just, but no execution shall be issued within

102. Ohio. Cellar and foundation walls not considered part of building or structure in settling losses. 2 R. S. Ohio (S. and B.) 1890. § 3,691.

SECTION XIX.

This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss, may be provided for by agreement or condition written hereon or attached or appended hereto. Liability for reinsurance shall be as specifically agreed hereon.

New York Standard Form. New in phraseology and arrangement.

1. APPORTIONMENT OF Loss. II. REINSURANCE.

III. STATUTORY PROVISIONS.

tation in the policies as to liability of the companies for proportionate amount. Newby v. Reed, 1 W. Black. 416 (Eng.); Peoria Ins. Co. v. Lewis, 18 Ill. 553.

2.- Where property covered by several policies of insurance is destroyed, the

I. APPORTIONMENT OF THE proportion of its value to be paid by one

underwriter is that which the amount of his policy bears to the amount of all the insurance thereon, although some of the policies cover other property in addition to that destroyed. Blake v. Exchange Mut. Ins. Co., 12 Gray, 265 (Mass.) and see Harrington v. Fitchburg Ins. Co., 124 Mass. 126.

3.- The right to contribution between insurers is based upon the concurrence of of its existence, that the several insurers the policies, and it is a necessary incident should be bound with equal certainty, and in the same sense for the same loss. Baltimore Fire Ins. Co. v. Loney, 20 Md.

20.

4.- Where a specific item of property is insured by one policy, and the same is covered by another policy, which also includes other property, the latter policy cannot be thrown wholly out of view, but must constitute other insurance within the meaning of the apportionment clause. Ogden v. East River Ins. Co., 50 N. Y. 388; overruling, Howard Ins. Co. v. Scribner, 5 Hill, 298 (N. Y.)

5.- Responsibility to contribute to a loss begins when the insurance has been

As Affected by Validity or Existence of Other Insurance.

effected and terminates when the policy tribution the insurance must be of the

expires. Planters' Ins. Co. v. Comfort, 50 Miss. 662.

6.- When specific insurance has not or does not furnish full indemnity to the insured, another policy covering same property by general language, cannot limit its liability to make good the deficiency under a claim of apportionment.

same person, or same subject matter, and against same risks. Connecticut Fire Ins. Co. v. Merchants and Mechanics' Ins. Co., 15 Ins. L. J. 615 (Va.); Royster v. Roanoke Co., 15 Ins. L. J. 843; 26 Fed. Rep. 492.

12.- What constitutes double insurance for purpose of apportionment of loss. Evans v. Stad-See note 15 L. R. A. 127.

13. Insured not obliged to keep up insurance. A policy was taken for $3,000,

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acona Ins. Co., 5 Russell and G. 88 (N. S.) 7.- The word "property" in such a additional to $9,000, insured in other condition means the estate or interest of offices, and $8,000 to be insured in other insured in a building and not the structure offices." At the time of the fire there was itself; and one policy being on a land- only $11,000 additional. The policy conlord's interest and the other on tenant's tained the usual stipulation that, in case interest, held, not to be contributing in- of loss, it would share the same in prosurance. Andrews v. Patriotic Assur. portion to its share of the whole insurCo., 18 L. R. Ire. 355. ance. It was claimed that there was a contract or warranty that there should be $17,000 of other insurance, at least so far as to furnish a basis of calculation of the amount recoverable; but the court held that such was not the true construction, and that the company must bear the loss in proportion to its share of the whole insurance actually effected. Richmondville Union Seminary v. Hamilton Mut. Ins. Co., 14 Gray, 459 (Mass.)

8.- Where a policy provided that in case of other insurance, insured should recover 'no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon," and that where property insured by this company is damaged by removal etc., "the damage shall be borne by insured and insurers in such proportion as the whole sum insured bears to the whole value of the property insured," held, that the company thereby assumed the risk, not on any defined or definable portion of the stock, but on an undivided proportion of the whole stock, the proportion which the sum of insurance bore to the value of the whole stock. Teague v. Germania F. Ins. Co., 71 Ala. 473.

14.— The provision in a policy for contribution relates to existing insurance at the time of the fire, and cannot be construed so as to impose any obligation on the part of the insured to keep in force policies held by him at the time the one in suit was obtained. Quarrier v. Peabody Ins. Co., 10 W. Va. 507.

Royal Ins. Co., 16 Vroom, 453 (N. J.)

9.- Before different policies can be held 15.- Insured is under no legal obligato contribute to the same loss the insur- tion to keep up insurance for purpose of ances must have been upon the same in-apportionment of the loss. Lattan v. terest in the same property or some part thereof; if assured can not resort to any particular policy for indemnity, it can not be a contributing policy. Lowell Manufacturing Company v. Safeguard Fire Ins. Co., 11 Ins. L. J. 423; 88 N. Y. 591.

16. As affected by validity or existence of other insurance. Policy in Ætna for $4,000 on stock of drugs, medicines, etc., and policy of $2,000, in Dubuque Mutual on same stock. One condition of Etna policy provided, "That in case of any other insurance upon the property hereby insured, the assured shall not in case of loss or damage, be entitled to demand or recover of this company any greater portion of the loss or damages sustained than the amount hereby insured shall bear to the whole amount insured on said property." Held, 11. To entitle company to claim con- that the Dubuque Mutual policy, being

10. Where there is double insurance and the total loss exceeds the total insurance there can be no apportionment; each insurer must pay in full the amount for which he is individually liable. Lebanon etc. Ins. Co. v. Kepler, 106 Pa. 28; Phillips v. Perry County Ins. Co., 7 Phil. 673 (Pa.); *Pencil v. Home Ins. Co., 28 Pac. Rep. 1,031; 3 Wash. 485.

As Affected by Validity or Existence of Other Insurance.

void by reason of the subsequent insur- the Underwriters' Association, and reance in the Etna without notice to or ceived therefor the amount he claimed. consent of Dubuque Mutual, the Ætna The other policy expired on the first of was liable for the whole loss. Hygum v. May, and the premium for renewal was Etna Ins. Co., 11 Iowa, 21. not paid until the day of the fire, and 17.- Policy contained usual apportion- just after that event, which happened ment clause in case of other insurance. the 4th of June, 1874. Held, that the Plaintiff had a policy in another company, joining of the other company in the adwhich policy contained clause making it justment, and the want of objection on void in event of other insurance being ob- their part to the want of a formal assigntained without its consent. No notice or ment, were agreeing circumstances with consent was given in respect to defend- the others to show that such other comant's policy. Upon notice of loss to other pany and the assured were in actual concompany the president declared its policy | currence, that the policy was a living one to be void on account of other insurance. existing in favor of the firm and as an inNo proofs of loss were served, and no surance upon their stock, and therefore measures taken to collect. Held, plaint- that plaintiff in error was entitled to an iff was not bound to continue the other apportionment of the loss according to insurance, that it was competent for him the clause in its policy. Liv., Lond. & to cancel it without defendant's assent, | Globe Ins. Co. v. Verdier, 33 Mich. 138. and as by its terms it became wholly 19. And this result is not affected by the "void," there was no obligation to make change of interest, policy in suit stipulatan attempt to enforce it. That there being that in adjusting a loss existing poliing no other insurance in force, defendant | cies should be taken into account, even was not entitled to an apportionment and though forfeited. Id., 35 Mich. 395. was liable for full amount. Hand v. Williamsburg City Fire Ins. Co., 57 N. Y. 41.

19a.- Apportionment clause enforced in favor of company notwithstanding other insurance is unpaid and a contest in regard thereto pending. Heron v. Hartford Ins. Co., 4 Mont. Supr. 388 (Can.)

20.- A void policy is not other insurance for purpose of apportionment. Lattan v. Royal Ins. Co., 16 Vroom, 453 (N. J.)

attached; clause in defendant's policy read whether valid or not. And for an example of apportionment by the court see Id., 389.

18.- Policy was issued in the firm name of Verdier & Brown, for one year from the 15th of May, 1874. It contained the usual clause providing for an apportionment of the loss. On the first of May, 1873, John Verdier, then alone in business, had taken out a policy in another company for one year upon the 21.- In Hammond v. Citizens' Ins. Co., same property. It appeared in evidence 26 N. B. 371, a policy was held to be that Mr. Verdier had taken Mr. Brown contributing insurance because it had into partnership with him about a month before the fire. It was then agreed between them that all fire policies should be transferred to the firm; that the policy in suit was transferred accordingly, but that the other was not assigned, for the reason that on seeking for the agent, in order to accomplish that object, it was found that he was not at home. It also appeared that adjustment of the loss was begun before five days after the fire, and was concluded about two weeks after, and that the agents of the defendant and of the Underwriters' Association, and also of the other company, participated in it. After the loss Mr. Verdier assigned the policy of the other company to the Hano-pro rating with the policy of another ver Company of New York, being one of company on the property, whether such

22.- A fire insurance company issuing a policy which contains a provision as follows: "The assured shall not be entitled to recover of this association any greater proportion of the loss or damage than the amount hereby insured bears to the whole sum insured on said property, whether such other insurance be by specific or by general or floating policies, and without reference to the solvency or liability of other insurers"-is entitled to have the amount of its liability fixed by