Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.
Action by the Insurance Company of North America and others against P. H. Cullen and others. Judgment for defendants, and plaintiffs appeal. Affirmed.
The plaintiffs and appellants are 10 fire insurance companies named in the petition as follows: Insurance Company of North America of Philadelphia, Allemannia Insurance Company of Pittsburg, American Insurance Company of Boston, Firemen's Insurance Company of Newark, N. J., German American Insurance Company of New York, Insurance Company of the State of Illinois, Michigan Fire & Marine Insurance Company of Detroit, Pennsylvania Fire Insurance Company of Philadelphia, Phœnix Insurance Company of Hartford, Conn., and Royal Insurance Company of Liverpool, England. The defendants are P. H. Cullen, O. H. Avery, E. B. Woolfolk, T. T. Fauntleroy, Shepherd Barclay, and S. J. Rosenthal.
The statements of the petition, so far as they are necessary to the consideration of the questions presented for decision in this case, are substantially as follows: That the 10 plaintiffs, together with the Phœnix Town Mutual Fire Insurance Company of St. Louis, Mo., during the month of April, 1905, issued to one S. J. Rosenthal their several policies to the aggregate amount of $11,500, insuring him against loss or damage by fire to an amount not exceeding the amounts named in their several policies, upon his stock of furnishing goods, notions, clothing, shoes, hats, caps, and other merchandise, while located and contained in the brick building situated at 2137 Franklin avenue in the city of St. Louis, and that on the 9th day of May, 1905, a fire occurred in said premises whereby a portion of the property was partially destroyed. On or about the 19th day of the same month Rosenthal met the representatives of each of the insurance companies at the scene of the fire and demanded payment from each of them to the full amount of its policy. Thereupon the companies demanded of Rosenthal that he make proofs of his loss according to the terms of the policies. He promised to furnish such proofs, but afterwards neglected and refused to do so, and about the 22d day of June, 1905, assigned the said policies by indorsement in writing as follows: The policies of the Insurance Company of the state of Illinois, the Phœnix Town Mutual, and the Royal Insurance Company of Liverpool, England, to the defendant O. H. Avery; the policies of the Allemannia Insurance Company, the Michigan Fire & Marine Insurance Company, and Phœnix Insurance Company, to the defendant E. B. Woolfolk; and on August 1, 1905, assigned by similar indorsement the policies of the American Insurance Company, the Firemen's Insurance Company, the German American Insurance Company, the Insurance Company of North America, and the Pennsylvania Fire Insurance Company to the defendant P. H. Cullen. On the 9th day of August, 1905, Cullen brought his five separate actions at law in the circuit court of Audrain county against the several insurers in the policies assigned to him; on the 10th day of the same month Woolfolk brought his three separate actions at law in the circuit court of Lincoln county, on the policies so assigned to him; and on the same day Avery brought his three separate actions at law in the circuit court of Lincoln county on the policies so assigned to him. All of said suits are still pending, and the defendants have filed substantially identical answers in each. Each of the said policies of insurance contains, among other, the following conditions:
"Reduced Rate Agreement, Eighty Per Cent. In consideration of the reduced rate of premium charged for this policy, it is hereby mutually understood and agreed that this company shall, in case of loss or damage, be liable for such portion only of the
loss or damage as the amount insured by this policy shall bear to eighty (80) per cent. of the actual cash value of the property covered by this policy at the time of fire. Provided, however, that if the whole insurance shall be greater than eighty (80) per cent. of the value of the property covered, this company shall not be liable for a greater portion of the loss or damage than the amount insured by this policy bears to the whole insurance covering the property at the time of fire."
"This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deductions for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy."
"This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in the case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss."
"If fire occur, the insured shall give immediate notice of any loss thereby, in writing, to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quality and cost of each article and the amount claimed thereon; and within sixty days after the fire, unless such time is extended, in writing, by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property, the cash value of each item thereof and the amount of loss thereon; all encumbrances thereon; all insurance, whether valid or not, covering any of said property; and a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; whom and for what purpose any building herein described and the several parts thereof were occupied at the time of the fire."
"The insured, as often as requested, shall exhibit to any person designated by this company all that remains of any property herein described, and submit to examinations under oath, by any person named by this company, and subscribe the same; and, as often as required, shall produce for examination all books of account, bills, invoices, and other vouchers, or certified copies thereof, if originals be lost, at such reasonable place as may be designated by this company or its representatives, and shall permit extracts and copies thereof to be made. In the event of disagreement as to the amount of the loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expense of the appraisal and umpire."
"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."
"No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire. Wherever, in this policy, the word `insured' occurs, it shall be held to include the legal representatives of the insured, and wherever the word `loss' occurs, it shall be deemed the equivalent of `loss or damage.'"
The petition further states in substance that, if the plaintiffs and the Town Mutual Insurance Company are liable upon said...
