| Me. | Feb 19, 1900
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 arid fixtures contained in his store in Norridgewock, in the sum of six hundred dollars, 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 six hundred dollars for one year. February 13, 1896, he obtained from the defendant company the policy in suit upon the same property in the sum of six hundred dollars for one year.
A fire occurred June 25, 1896, 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 f1037.19, and that the value of the portion destroyed was 1841.85. 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 P. L. 1895, Chap. 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”.
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 position of the defense by alleging that the policy of the Imperial Insurance Company was not, at the time when he took out the policy in suit, a valid contract of insurance, but was invalid and void, because the Imperial Company did not assent in writing or in print to the insurance on the same property under the policy of the Granite State Company of February 13, 1895; and that, therefore, the policy in suit is valid and binding upon the defendant, although he gave no notice to it of the policy of the Imperial Company nor obtained its consent thereto. He asks this court to declare, in order that he may maintain this action, invalid his contract with the Imperial Company, though that company is not a party to this suit and although that! company has fully performed such contract on its part, and although the plaintiff has demanded and received and still retains the money paid by that company under such contract on account of the
The agent of the Imperial Insurance Company, when its policy was issued, had knowledge, derived from the plaintiff, that the property insured was also insured by the Granite State Fire Insurance Company by and under its policy of February 13, 1895. The agent’s knowledge was, in law, the knowledge of his company. Hilton v. Phoenix Ins. Co., 92 Maine, 279. Having such knowledge the Imperial Company issued its policy of July 23, 1895. It is true that the company did not assent to the prior insurance, unless the writing and delivery of its policy was such assent, but the fact that the company issued its policy, and the further fact that it did not deny its liability under the policy, but paid its proportion of the loss, are sufficient evidence that the company waived the stipulation in question. That an insurance company may, for the benefit of the assured, waive express stipulations, or conditions contained in its policy is too thoroughly settled by this court to require citation of authorities.
Although the act of 1895 prescribes the form of a standard policy and the stipulations to be contained therein, it does not restrict or abridge the right of waiver. In the case at bar the Imperial Company had knowledge of the prior contract of insurance. Its failui-e to assent thereto “in writing or in print”, was undoubtedly its own neglect or inattention. It would be a reproach to the law to hold that the company had not the right to waive such omission or failure.
The defendant company when it issued the policy in suit had no knowledge or notice of the Imperial policy and had no knowledge of the fact until after the loss occurred. It could not, and did not assent in writing or in print, to such prior contract of insurance. There is no evidence of waiver on its part. By the express terms of the policy in suit the defendant company is absolved from all thereunder. _
Judgment for defendant.