Bigelow v. Granite State Fire Ins. Co.

• Decision Date: 19 February 1900
• Citation: 94 Me. 39,46 A. 808
• Parties: BIGELOW v. GRANITE STATE FIRE INS. CO.
• Court: Maine Supreme Court

46 A. 808

94 Me. 39

BIGELOW

v. GRANITE STATE FIRE INS. CO.

Supreme Judicial Court of Maine.

Feb. 19, 1900.

Report from supreme judicial court, Somerset county.

Action by Joshua T. Bigelow against the Granite State Fire insurance Company. Case reported, and judgment for defendant

Argued before HASKELL, WH1TEHOUSE, WISWELL, STROUT, SAVAGE, and FOGLER, JJ.

Forrest Goodwin, for plaintiff. Leslie C. Cornish, for defendant

FOGLER, J.This is an action of assumpsit upon a policy of insurance dated February 13, 1896. The case is submitted to the law court on report. The history of the case is thus:

February 13, 1895, the plaintiff obtained from the Granite State Fire Insurance Company a policy of insurance of that date upon his stock of merchandise and fixtures contained in his store in Norridgewock, in the sum of $000, for the term of one year. July 23, 1895, he obtained from the Imperial Insurance Company a policy of insurance upon the same property in the sum of $600 for one year. February 13, 1896, he obtained from the defendant company the policy in suit upon the same property in the sum of $600 for one year.

A fire occurred June 25, 1890, which destroyed a large portion of the property insured. In his proof of loss the plaintiff stated that the value of the property insured was $1,037.19, and that the value of the portion destroyed was $841.85. The policy in the Imperial Company and the policy in suit were each in the form known as the "Maine Standard Policy," as required by Pub. Laws 1895, c. 18. Each of said last-named policies contained this stipulation: "This policy shall be void if the insured has now or shall hereafter make any other insurance on said property, without the assent in writing or in print of the company."

When the plaintiff obtained his policy from the Imperial Company, July 23, 1895, he orally notified the agent of that company that he already had $600 insured on the same property in the Granite State Company under its policy of February 13, 1895. When, however, he obtained the policy in suit, February 13, 1896, he did not inform the defendant company or its agent that the property was then insured in the Imperial Company, and the defendant company had no knowledge of such prior insurance until after the loss occurred.

The Imperial Insurance Company paid to the plaintiff, without resistance, its proportional part of the loss, under a stipulation in its policy that in case of other insurance it should pay only its proportion of the loss. The defendant, the Granite State Insurance Company, refused to pay any part of the loss, and the plaintiff has brought this suit against it, counting upon its policy of February 13, 1896. The defendant company invokes the stipulation or condition above quoted from its policy as to other insurance, and claims that the plaintiff's failure to give it notice of the existing insurance in the Imperial Company under its policy of July 23, 1895, and to obtain the assent of the defendant company in writing or print to such insurance, enables it to avoid the policy in suit.

The plaintiff meets this...