Sloat v. Royal Insurance Co.

• Decision Date: 20 October 1864
• Citation: 49 Pa. 14
• Parties: Sloat <I>versus</I> The Royal Insurance Company.
• Court: Pennsylvania Supreme Court

49 Pa. 14

Sloat versus The Royal Insurance Company.

Supreme Court of Pennsylvania.

October 20, 1864.

CERTIFICATE from the Supreme Court at Nisi Prius.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joseph A. Clay, for plaintiff in error.

Morton P. Henry, for defendant in error.

The opinion of the court was delivered, October 20th 1864, by READ, J.

"Double insurance," says Arnould, "takes place when the assured makes two or more insurances on the same subject, the same risk, and the same interest. If there be double insurance, either simultaneously or by successive policies, in which priority of insurance is not provided for, all are insurers, and liable pro rata. All the policies are considered as making out one policy, and, therefore, any one insurer who pays more than his proportion, may claim a contribution from others who are liable. Fire policies usually contain express and exact provisions on this subject."

The clause in the policy of the defendant, is in these words: "Persons insuring property in this office must, when required, give notice of any other insurance made elsewhere on the same property on their behalf, and cause a minute or memorandum of such other insurance to be endorsed on their policies: in which case this company shall only be liable to the payment of a rateable proportion of any loss or damage which may be sustained; and unless such notice be given, the insured will not be entitled to any benefit." And the following memorandum was made on each of the policies of the defendants: "Other insurances permitted without notice to this company until required."

The question arises on the $2000 insured by the Royal Insurance Company on the building only, and the policy of the Philadelphia Fire and Life Insurance Company for $2500, on building, machinery, shafting, belting, tools, lathes, planes, chills, and stock finished and unfinished — was this a double insurance? The case of The Howard Insurance Company of New York v. Scribner, 5 Hill 298, is a distinct authority that this is not a case of double insurance. It was decided, twenty-one years ago, by the Supreme Court of New York, then the highest judicial tribunal of the state, and consisting of Chief Justice Nelson and Justices Bronson and Cowen, with an appeal, it is true, to the Court of Errors under the old Constitution. The present Supreme Courts are simply local courts, like our Courts of Common Pleas, excepting that each judicial district has four law judges. I cannot find that this decision has ever been impugned or denied by any judicial tribunal in the state of New York, and it is to be remarked that it is an affirmance of a judgment of the Superior Court of the city of New York. The first policy was divided, $1000 on fixtures and utensils, and $3000 on stock. The second policy of the Ætna Company was for $5000, on the fixtures and stock as one parcel. Both policies contained a clause as to the recovery of only a pro rata amount, similar to the clause in the present case to warrant contribution. "We want," said the court, "two other separate policies, or one insuring separate sums on each. The assured, however, took only one policy, insuring an entire sum on one parcel. The subject was, therefore, different. In the first it was separate — in the second compound; and such a difference may as well be extended to fifty as to only two subjects. The several subjects are found to be substantially different, when an effort is made to effect contribution. The counsel for both parties agree, that, in order to do so, the $5000 must be divided into two parts, one being applied to the fixtures, and the other to the stock. It is not denied that the division must be entirely arbitrary; and the different methods proposed by ...