*1 10 properly applied, respondents’ that “the ab-

were conclusion warning proximate of the collision” sence of cause Railway, 287 not in conflict with in Hale v. our decisions 518, S. W. cases relator on cited point. ruling our similar Because of conflict above noted with on a state quashed. case, respondents’ supra, opinion of facts in the Gann concur, Ragland, J., sitting. except All New York, Appellant. Frank v. Home Cox Insurance (2d) W. S. 872. September 3, One, Division 1932. Farrington E. L. Snider (cid:127)& appellant. Curtis for *2 Mayhew respondent. D. S. for

STURGIS, cyclone windstorm C. This is and a-suit on by defendant, plaintiff recovered insurance issued suit the $1,450 and damages for in the amount of the destruction of bam injury caused dwelling $150 for to his house- the amount $1,500 on for and barn is violent windstorm. The on the dwelling $1,350, together with amounts for certain house on. injured buildings case was tried the storm. The damage fixing for de of the jury the amount court as and $50 the value barn court deducted struction of the damage at dwelling house salvage to the and fixed the amount $1,600 rendered judgment plaintiff for $150. From the ap Barry Court, term, 1928, defendant County Circuit June reversed court pealed Springfield Appeals. That Court of to the case, but one judgment and remanded of the trial court be in opinion to judge's dissented, majority deeming the and Wilson case of of this court in conflict with the decision has case 1, 254 S. W. 300 Mo. Hartford Fire to this court. been certified majority including Appeals, both The of the Court decision reported dissenting Insurance Cox v. Home opinions, facts issues statement (2d) fuller 19 S. W. is here for repeated The case here. not be will and need be found first court in the this appeal had been to

review same as same, that on . copying say, without will instance, but it suffice reading briefs, rulings approve adopt record and we except Appeals point judges the Court of on the one on which the of that court differed. point, construction, ap- our consideration calls for the

plied here, on which facts of the clause of the sued reads: against tornado,

“In case there other insurance wind- shall cyclone named, storm on the herein whether valid or greater company no the assured shall be entitled to recover of this proportion than the sum herein named bears to the whole amount insurance. oc- present policy 26, 1927, was and the loss May issued July 16, Appeals properly held, 1927. Court of curred on existing policy at a valid and holding, that this we of the loss Defendant’s contention is that at the time that date. tornado and windstorm on there was other insurance *3 just policy quoted, provisions of its property and that under the same regardless plain- only loss, liable it is for its rata share of the company. ability judgment the other tiff’s to recover cyclone on this regard being other facts in to there only property so as to limit defendant’s out a 1925, plaintiff had taken April, share of are that In- Springfield & cyclone F'ire Marine policy and windstorm in the Company, on Company, Springfield which we will call the policy. present amounts as the property this same and in the same by payment in force fiv'e-year kept That was a and had it been loss. the time of this Otne premium, been valid at would have April till keeping it in force year’s advance, premium paid was installments, for gave note, payable in 1, 1926, plaintiff his and April 1st of each due premium, one installment balance of the year. another for year, paid kept the insurance force and when provision: policy contained premium, that payment As not be liable agreed Company shall that this expressly “‘But it is men- herein property any damage may that occur to for loss or thereof, part obligation, or any promissory note tioned while said When unpaid. past due and given premium remains for the again attach shall obligation paid this insurance premium note Manager.’’ by the payment receipt of such from date of this clause: policy also contained That now, or shall hereon, has assured, consent without written “If the insurance, whether any other contract procure hereafter every and in each . . then . property of said void.” and be null shall of the above cases this installment premium pay plaintiff did conceded that policy then Springfield that the and April which came due on this trust mortgage was deed lapsed- There mortgage D'eming Company in favor Investment and a mortgagee mort- was attached and the was held gagee. plaintiff premium "When defaulted in the Springfield stallment, mortgagee Company notified both the and having plaintiff agent agent, and his of that fact. «Plaintiff’s the matter in charge, for to take some cause decided out new rather than lapsed revive the Springfield Company, in the applied lapsed- policy took out the now sued on. The Springfield in the cyclone policy, awas combined fire and present policy cyclone while the is for and with a only much premium. nothing lower rate of rec- There is whatever plaintiff ord to force. keep indicate that intended to both purely optional Spring- He considered with him to continue the paying premium field force the annual installments they true, lapse. came due or to let the It is under the law, Springfield Company might plaintiff have forced pay might the premium installment after default and have thus policy, nothing revived such When attempted. but of that kind was occurred, the loss there was and now is no chance whatever plaintiff argues Springfield policy. recover on the Defendant Springfield merely lapsed was at the time of the loss policy, and not a cancelled however that be it but policy, plaintiff prorate his be- compelled dead loss merely companies, tween the can collect two means he half loss. Springfield in the time of the Company was at the pay reason than the failure to non-enforceable for another noted, premium That as we have installment of when due. *4 if provision become void the assured

contained a that same would consent, given, obtained, which was not other contract any without its property; on so insurance, whether valid or ipso Spring- rendered the policy the issuance of now sued on facto policy merely lapsed void, a and it was not policy field null and being if that subject past premium, paying the due revived any fact would make difference. plaintiff sued on stated application in question. war- in He insurance on

there was no other agreed insurance to be that the true and this statement to be ranted predicated If the abated statement. on such issued should be pol- of this the issuance Springfield Company, in made void present term is used as that icy. “insurance” constituted plaintiff respect. representation in this a false made then the false a was such However, claim that there the defendant does present policy void. respect representation as to render in this loss. pro rata reduction merely claims that it effects a general though rule, conflicting, the decisions are seems to be that in a representation order to constitute false to there as existing property, other or such insurance on the same existing other or be insurance must valid and enforceable. In Corpus Juris, 189, prior policy “If 230, this is said: section wholly is suit, invalid before the issuance of the it cannot regarded be constituting disclosed, an insurance which must be , specific requirement absence a as to the disclosure of not; although surance whether valid or it has been held that policy is face, pro valid on its it should be disclosed. ... A policy requiring vision in the all the insurance ‘whether valid or not’ valid, to be is a disclosed to mention a failure former apparently face, void, valid on its but in fact will the insur vitiate authorities, ance. however, notwithstanding Some have held that provisions the existence of a void will a not defeat subsequent policy.” sustaining proposi Cases are cited all these tions.

So, against also, stipulation there is insurance, existing limiting subsequent, the amount of such insurer, without the consent of the is existing subsequent policy not made void unless such is a valid and enforceable one at the time of the loss. On this also much in Corpus Juris, authorities are conflict. As stated in 26 pag’e261, section “While some authorities that a con- have held against procuring dition is additional violated a sub- sequent policy, void, even is is nevertheless general that, rule avoid account of additional insur- ance, the additional insurance must be valid and enforceable. If actually it is there has never been additional prior policy the condition unaffected. But additional generally regarded insurance is as violated if second voidable, merely requires extrinsic evidence to establish its in- although validity; some authorities have held that a voidable any more than which is abso- does not violate such condition have, lutely conflict, void. . . . view of this inserted Insurers in their uniform that the forfeiture is to occur gen- whether the additional insurance be ‘valid or otherwise.’ eral, valid; although such clause reasonable and author- wanting are not the doctrine that even under this form of ities the clause the other must order to effect policy.” forfeiture *5 pro that a

It is ruled in this State contains a making beyond vision in case of other or additional insurance void amount, additional be valid a fixed other or insurance must such [Obermeyer v. In- of the loss. Globe and enforceable the time

15 577; Dahlberg 43 Mo. St. Louis Mutual Ins. 6 App. 121.] Obermeyer policy prohibited In ease other insurance above but did not use the term a fixed amount v'alid “whether ‘ ’ ‘ ’ general previous court there said: The doctrine that valid. subsequent notice, policy requiring insurance without defendant, notice, with a of forfeiture like that of the discharges obligation insures, is well set- appar- universally recognized. . . . But there are some tled and ent, though contract is real, exceptions to this doctrine. The merely. Thus according spirit, its not its letter enforced unanimity, though perhaps settled, not with the it is well is itself stipulates, contract policy, if the second enforced, it not avoid one, or one that cannot be shall a void notwithstanding first, the clause of forfeiture. . . . Thus it is is literally, for, were, that this covenant not construed seen it could be enforced or forbidden whether would release given containing prohibition. construction object fully away their take from the covenants accords with —to destroy property saving be lax in it. any motive to assured stated, defendant here does not claim that As we have by misrepresentation there made reason as to its in reason of other insurance on no other invalid, being prohibited. defendant’s surance, therein valid or Springfield policy, invalid and unenforce claim that the policy was issued and when present when the able at the time invalid,” “other valid or occurred, was nevertheless reducing amount meaning pro rala clause within hopeless are in liability. precise point the authorities On this its head Corpus Juris, under the Quoting again from conflict. provision for says: general “A Prorating Liability, section enforceable only regard other valid and prorating applies contain a con cannot under some statutes surance, and statutory provision to of a trary in the absence stipulation. But of a deter difficulty arising out to obviate contrary, order insert it is usual validity mination as to the pro rata only for its liable stipulation which the insurer not; stip under such share, is valid or whether advantage invalidity of cannot take ulation the insured might prop attached to the have policies wdiich have attached supported authorities well erty.” propositions All these there cited. statement 383, this Law, page section Ruling Case liable shall be insurer “A

made: property, whether pro insurance on share of the entire *6 16 existing by invalid, applies

or even cases where are their by containing void, issuance of terms rendered exist clause, so that from the of the latter date ing property. provision applies a unen insurance on the Such to all policies.” This statement is on Webb forceable based v. Concordia (Mich.), S.) 36 (N. 350, Ins. Co. L. that an Fire R. A. holds express provision prorating whether the for other applies made in invalid, was valid or other by on, sued and the annotation cites valid the issuance 56 American effect. In a later annotation in cases same up in Reports, page 473, Law the law summed this statement: pro expressly provides “But where the rata that other insur clause coinsurance, not,’ regarded be whether ‘valid or ance shall provision will, general, compel prorating with be effective to insurance, although supporting such insurance be void.” As Michigan, Mississippi, York, this from New Penn cases are cited However, sylvania, Carolina, Texas, South and Canada. cases contrary. In New York of Galantschik v. Globe cited to the ease Supp. provided Co., 32, pro F. Y. where a for Ins. N. rating not, “whether solvent with other claimed insurers, company defendant insurance insolvent which had prorated with other insurance its should change notify the insurer of the void of a failure to become because invalid ground insurance was ownership, on the the other voidable, absolutely void, held that the other and not it was becoming void, absolutely had that a become upon premises, own no insurance its terms constituted of another ceased to affect the proportionate payment. providing under the clause Co., (Pa.) 283, it Marshall 28 W. N. Cas. v. Insurance taking absolutely an becomes void on where not constitute other company, out in another does of insurance policies providing meaning in other insurance within the clause insuring among companies all apportionment an appor- although policies provided that property, such other not. was valid or the insurance should be made whether tionment Fire National To Texas case of Columbian effect is the late 174, 261 S. affirmed W. House, Ins. Dixie-Co-op. Mail Order Co. stipulating for that a it is held S. W. “whether rata in ease of loss insurers,” in a contained valid or solvent insolvent prorate insurer policy of fire insurance does entitle the loss before sometime with one which had been cancelled of the loss the adjustment although occurred, the time of Meyers also, [See, insurance. cancelled was considered v. German Ins. 101 Neb. 166 N. 247;W. Gurnett v. Atlas Mutual 124 Iowa, 547, 100 N. W. 542.] Couch, 7In Insurance, page section 1847, full where a citation of cases on point is found, the law is stated “In thus: many instances, expressly includes invalid or *7 void and uncollectible policies of other insurers, and where such the ease provision the will, as a general rule, be held to effective compel prorating with though voidable, even it be void, or uncollectible of insolvency, because fact, etc. such clauses appear in standard forms, indicating governmental thus .approval, legislative and evidencing a purpose that all in existence at the time of the loss should be account, taken into whether void or valid. It also been has plain purpose said that provision the of such protect is to company against the contesting the the necessity of with any question validity insured existing of the invalidity or of other policies. Again, if the policy clause, ‘without contained a rata solvency reference liability insurers,’ to the or held of other it is though that though pol- the other the insolvent, insurers become or reducing icy be avoided, yet the considered other insurance will be liability the contained such company issuing of the which the the cases to however, ‘note of authority, a condition.” This takes Hartford Ins. including Parks v. contrary, the Missouri case of Missouri the says: “And 1058, 12 W. 100 Mo. S. of the that effect, in that declared, Supreme has Court of proportion greater any recover entitled to sured shall not be insur- total the to bears damage of the the amount than or of liability solvency or reference ‘without property, ance on ‘ ’ con- include reasonably said fairly and insurers, cannot fail cause, any sufficient insurance, which, supposed tracts of which, insurance to valid refer those words operative; ever to become legal constitute may not loss, of the though at the time in force other- policy, terms liability, breach of some because ” wise.’ clause pro rata that case shows reading’ this Parles A of consideration. now under meaning than not different a second took out the insured that case are The facts that can- had been first that belief information under the second taking out represented celled, stated and so not was representation This insured. was representa- but such cancelled, been policy had true insured The terms, void. policy, under the second rendered tion any prorating, without first recover on was allowed contemplated saying: kind of “The court loss, of apportionment for the referring suit, pol- validity. original least, has, such as icy in the East Texas sort. obtained was not of that was impression under sued on here the mistaken was represented. This others, cancelled, so had been and the insured com- beginning, and that sufficient from the to avoid that words just, pany’s pay appears on the facts shown. refusal to solvency liability of other reference to the ‘without reasonably contracts insurers,’ fairly to include cannot be said cause, fail ever supposed which, sufficient which, operative. become words to vaUd insurance Those refert legal lia- not constitwte at the time force bility because some breach -terms or otherwise.” ‘ ’ ‘ ’ insurance, whether valid holding This is a clear the term other invalid, loss. means in force at the time of the other insurance As to the case Wilson Co. v. Hartford majority Appeals S. W. that the exact Court point being involved was not considered as ‘‘ dissenting judge decided, thought similar. *8 opinion held such binding decision. That is somewhat be case policy difficult to understand. there sued on contained similar limiting liability to a rata clause considered here of insur the loss based the whole amount of on invalid;” declaring ance “whether valid or and also a clause policy void in the event of other insurance “whether valid or ’’ ground valid. The defendant on there defended the plaintiff policy Rutgers had another Globe & Insurance the Fire Company covering the property. prohibition the same As the policy insurance, sued on other the court held that another policy clearly contemplated clause in permitted the sued on and insurance, policies so that “under these terms of the there proven for, admitted, which seeks the facts the validity invalidity appellant’s policies, solution is not the or liability, course, extent & provided, but the their of the Globe Rutgers policy anywise affecting obli is to be construed the gation imposed by then held appellant’s policies.” court the “specific on insur sued constituted what is termed Rutgers ance, & con and that the other Globe “floating legal surplus insurance,” stituted what is termed operative effect that the last named does “become is, prior (or other) exhausted;” that insurance has been until the specific floating “attaches when the ceases to risk,” consequently policies concur the two were not cover the property. said: “With same court then insurance on the rent Rutgers policy & could face, on its the Globe this limitation blazoned appellant (defendant) im tend to increase risk It cannot cupidity the insured. properly said, excite the there- fore, to constitute invalid’ such ‘other insurance whether valid or nugatory as is held under render different conditions to exist ing Obermeyer Globe appellant. [Citing insurance issued therefore, Mutual ruling, l. c. Under 577.] Obermeyer case, action to constitute a successful defense in an on an upon appear it should that the relied containing to avoid the was in exist the condition of forfeiture ence, may and enforceable at be said in the time of the loss.

light many void, existing policy cases that render an additional C. J. must be valid and enforceable. [26 Although note These conditions need not be co-existent. 43.] valid, Rutgers be conceded that it is unen the Globe & forceable; utterly destroys condition of innocuous mertia power appellant’s policies. to affect is a of construction There rule especially applicable stipulations to contracts of insurance that policies reasonably in the nature of or conditions are to be warranties with subject-matter construed captiously reference to the and not literally.” It is true that the authorities with effect cited that case deal

of other invalid, prohibiting valid or on forfeiture, penalty pol- under than effect on rather their providing icies prorating policies, the loss with other invalid; evidently applied but principle of law to court to-wit, each, that in order for the other to have the effect forfeiting either reducing sued on or

proportionate amount of the be valid must therefore, have, enforceable at the loss. Our courts time rejected “other applied the doctrine of ‘‘color of insurance” invalid,” forfeiting having valid or the effect either reducing liability. sued While there the amount of *9 authority contrary, justness much we satisfied with the ruling point. fairness of our on this injustice pay,

It is no an have loss, in ease of which of insurance for it has collected amount premium, course, contrary. unless there reason to the Of is some valid the insured should not be allowed to collect more than contract, loss, statute, which, may real by our under be fixed here, though not ex so there one valid and is more than isting policy covering prorated. such loss should be reason, however, good why There is no mere colorable fact, policy. should reduce the amount covered a valid effect, To have such such other must at least be enforceable may the time be observed sued on was issued. also object prime enforcing provisions prevent over-insurance, considering is to as we been have greatly This considera- loss hazard. increases the

condition cyclone or insurance. tion, apply to windstorm however, does not wind. fire, hardly so but bring about loss Over-insurance judgment of to an affirmance These considerations lead Hyde, CC., concur. Ferguston and is so trial court and it ordered. by Sturgis, C., adopted foregoing opinion PER CURIAM : —The judges All of concur. opinion as the court. v. International Ruggles, Appellant,

Thomas H. Association 52 S. Iron Worke r s. and Ornamental Bridge, Structural (2d)W. 860. One, September 1932.

Division