Josiah B. Thomas v. Builders' Mutual Fire Insurance Company
| Decision Date | 17 November 1875 |
| Citation | 119 Mass. 121 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Josiah B. Thomas & another v. Builders' Mutual Fire Insurance Company |
Essex. Contract upon a policy of insurance against fire, issued by the defendant to the plaintiffs. At the trial in the Superior Court, before Brigham, C.J., the defendant declined to argue the case to the jury under the instruction of the presiding judge, submitted to a verdict for the plaintiffs, and alleged exceptions to the rulings of the judge and to his refusal to rule as requested, the substance of which appears in the opinion.
Exceptions overruled.
W. F Slocum, for the defendant.
S. B Ives, Jr., for the plaintiffs.
Many questions which were discussed at the trial and also at the hearing at bar, need not be considered, as there is one ground which we deem to be conclusive against the defence here sought to be established.
The policy of insurance, issued by the defendant upon December 13, 1872, and taking effect on that day, was for the term of three years, and contained the express condition "that if the assured shall have made or shall hereafter make any other insurance upon said property without the knowledge or consent of this company in writing, then in such case this policy shall be void."
On December 19, 1872, a policy of insurance was issued to the plaintiffs by the Merrimack Mutual Insurance Company, upon certain property of the plaintiffs for the term of five years. The loss occurred within the time included in both policies. The defendant offered evidence to prove that the latter policy with other property covered also the property insured by the defendant which was destroyed by fire, and contends that as there was no knowledge of or consent to such reinsurance there can be no recovery upon the policy here sued on.
Assuming the defendant to have proved that the property insured by it was covered by the instrument issued by the Merrimack Company as a policy, it is for the defendant to show that such instrument was a valid and legal policy, effectual and binding upon the insurers. If it was invalid so far as the property in question was concerned, there would by legal intendment be no second insurance upon it, and therefore no avoidance of the first policy.
The policy of the Merrimack Company was also upon the condition "that without the consent of this company no...
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