Clarke v. Western Assurance Co.
23 A. 248
Pennsylvania Court of Common P...
1892
Check Treatment

Opinion,

Mr. Chief Justice Paxson:

The plaintiffs took out a fire policy in the defendant company in the sum of §1,250 upon “ electric lamps, shades, wires, and all other electric fixtures and appurtenances,” w'hile contained in the building known as the Monongahela House, in the city of Pittsburgh. The property insured by this policy was destroyed by fire on December 5,1889, the amount of loss thereon being §2,120. This suit was brought to recover the amount of loss under the policy. Upon the trial below, the issue was narrowed down to the single question, was there a double insurance on the property?

The policy in question contained the following clause:

“ This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by or expense of removal from premises endangered by fire, than the amount hereby insured shall béar to the whole insurance, whether valued 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.”

The whole amount of insurance on the buildings and contents was one hundred and seventy thousand dollars. This was made up of several policies issued to different owners for their individual interests therein. If there was a double insurance as to all of them, the amount the plaintiffs would be entitled to re*569cover in this suit would be tbe proportion that $1,250 bears to one hundred and seventy thousand dollars upon a loss of $2,120. In others words, they would get $7.50. The learned judge below held, however, that the double insurance only applied to two policies of $2,500 each, thus making the whole insurance upon this one item $6,250, and that the amount for which the defendant company was liable under this view was $424, with interest, for which a verdict was rendered.

The two policies referred to were those of the Northern Assurance Company of London. The property insured in these policies was described as follows: “ On household goods and furniture, stoves, wines and liquors, and similar articles, embracing the whole stock belonging to the assured while contained in the brick building known as the Monongahela House. It is understood and agreed this policy covers also fixtures of every description while contained in buildings herein described.” It will be seen at a glance that to apply the doctrine of double insurance to the whole of the policies issued by the Northern Assurance Company of London would work palpable injustice, for the reason that those policies cover other property not embraced in the special policy «issued by defendant company, and there is nothing in the record to show how much of those policies was applicable to “ electric lamps, shades, wires,” etc., and how much was applicable to the other property covered thereby. To say, therefore, there was double insurance to the whole amount of those policies, as before observed, would work injustice, and lead to a result not probably contemplated by the parties. No better illustration of this view can be given than the one before stated, viz., that, had all the policies contained this provision, the plaintiff would have recovered $7.50, or a dividend upon the premiums paid by him.

In Sloat v. Insurance Co., 49 Pa. 14, there was a policy of insurance in one company which covered the building only of the party insured, and a subsequent policy in another company covered the building, machinery, shafting, belting, tools, lathes, planes, drills, and stock finished and unfinished; and it was held that it was not a case of double insurance. The opinion in that case was delivered by Justice Read, who cites and approves the definition of “ double insurance” as given by Mr. Arnold, as follows: “ Double insurance takes place when the *570assured 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 but one policy, and therefore any oiie insurer who pays more than his proportion may claim a contribution from others who are liable. Fire policies usually contain express and exact provisions upon this subject.” This case was decided in 1865. Justice Read cites Howard Ins. Co. v. Scribner, 5 Hill 298 a case decided twenty-one years before that time, and says: “I cannot find that this decision has ever been impugned or denied by any judicial tribunal in the state of New York.”

Sloat v. Insurance Co. has been the law of this state for over a quarter of a century, and we would not disturb it now, unless for grave reasons. It has been accepted and acted upon in the adjustment of losses. Moreover, it has been expressly recognized as law by later cases. It was contended that Merrick v. Insurance Co., 54 Pa. 277, overrules it, but this is not the case, as will appear from an examination of the later case, Royal Ins. Co. v. Roedel, 78 Pa. 19, where it Vas said: “ We do not think Merrick v. Insurance Co., 4 P. F. S. 277, is sufficiently clear upon this point to overrule Sloat v. Insurance Co., 13 Wright 14.” It is true, this is criticised as only a Per Curiam opinion, but why it should have less weight for that reason is not clear. A Per Curiam is the opinion of the court in a case in which we are all of one mind, and so clear that we do not think it necessary to elaborate it by an extended discussion. Not only was Sloat v. Insurance Co. not overruled in Royal Ins. Co. v. Roedel, but it was expressly followed in that case.

Lebanon Ins. Co. v. Kepler, 106 Pa. 28, does not, and was not intended to overrule Sloat v. Insurance Co. On the contrary, it is expressly recognized. The question of double insurance was not decided in that case. I quote from the opinion : “ It is perhaps an open question whether, under the authority of Sloat v. Insurance Co., a double insurance exists in the case in hand, for the reason that the Kreidersville policy covered some articles not insured in the defendant’s policy. But the language of condition 17 of the policy in suit, is broader in its terms than the clause of the policy in the case referred to. It *571says, speaking of additional insurance, that it is ‘ on the property hereby insured, or any part thereof.’ Without deciding this point, therefore, we will treat this as a case of double insurance to the extent that the Kreidersville policy covered the same property as was insured by the defendant company.” The opinion then proceeds to show that, even if it was a cáse of double insurance, the defendant company was liable to the full amount of its policy.

I have endeavored to show that the authority of Sloat v. Insurance Co. has not been shaken by any subsequent decision of this court. We are now asked to overrule it, because Howard Ins. Co. v. Scribner, cited by Justice Read, has been overruled in New York by Ogden v. Insurance Co., 50 N. Y. 388. With the highest regard for the able and learned judges who decided that case, we are not disposed to follow them in this instance. We can only do so by overturning our own cases, and we have not been convinced that they are erroneous. Our own rule is a safe one, and easily understood. Had the policies of the London company covered nothing but the property insured by the defendant, there would have been no difficulty ; nor would there have been, had those policies specified the sum applicable thereto. Aside from this, the case in hand differs in a material point from Ogden v. Insurance Co., supra. In that case there was a total loss, exceeding largely the whole amount of all the insurance. That this fact whs not without weight with the court, is apparent from the following extract from the opinion: “We refrain from expressing an opinion now upon the several phases which might be developed under an insurance of this character in case of partial loss, confining our adjudication to the case before us, which was that of a total loss of the whole subject insured by all the policies.”

In any view, the result reached in the court below was wrong, although this may have been caused by the manner in which the case was tried. To apply the whole of the London policies to the property covered by the defendant’s policy would be unjust and illogical.

Judgment reversed, and a venire facias de novo awarded.