54 Ky. 432 | Ky. Ct. App. | 1854
delivered the opinion of the Court—
This petition alleges that on the 26th day of May, 1851, Cromie, the plaintiff, took insurance from the defendants in the sum of $5,000, to continue six years, upon his building known as the Louisville Paper Mill, after having previously insured $2,000 on the same building, in the Howard Insurance Company, of New York, and $1,000 in the iEtna Insurance Company, of Hartford, Connecticut, as shown by entries made by defendants before their policy was delivered. That afterwards, in the year 1852, he erected an addition to said building, estimated at $4,000, and being desirous to increase the insurance to about $12,000 on the old building and the addition, he obtained insurance from the Protection Insurance Company to the amount of $2,000, on both the old and new building, and from the Columbia Insurance Company of Charleston for $2,000, covering the old and new building, and the Howard and ¿Etna Companies extended their policies so as to cover the new as well as the old. Of all which, the defendants, as he avers, were duly informed and consented thereto, and agreed that their policy should not be-vitiated thereby, as appears by entries and indorsement on the same made by them. And that the entries as to the insurances by the Protection and the Commercial Insurance Companies, were made by defendants in November or December, 1852, after they had notice of the insurance in said companies, as above. The plaintiff further alleges that on the 26th December, 1852, the building insured by defendants, and also said addition were burnt — that he sustained loss on the former of at least $8,377 63, and on the latter of at least $1,122 37, that he notified said defendants of the loss on the 28th of December, 1852, and that they did not determine to re-build — under their privilege of so doing — nor paid said $5,000,. but have
The policy executed by the defendants is referred to as filed with the petition, and makes a part of the record before us. It accords with the statement of it jn the petition, except that the reference to the other ... . . . . , , .... policies does not state that they include the addition, or anything not covered by the policy of the defendants. But the petition states that the defendants were duly notified of the facts stated with respect to ^e °llier policies, and that they themselves made entry thereof upon their own policy, and it may be assumed that they were notified that the other policies covered the addition as well as the original build- . . . . . „ . mg. The policy executed by the defendants contains, however, no stipulation for the apportionment of loss with the other insurers, or for any abatement on account of prior or other policies. And as it seems to be the rule that where there is no such stipulation, the insured, though entitled to but one satisfaction, may recover judgment against either set of insurers to the extent of the loss so far as covered by their policy, leaving them to claim contribution from the other insurers, it is immaterial to the result of the present action, and is only material as between the different insurers, or in a subsequent action against others, whether all the policies cover precisely the same property, or if they do not, what ratable portion of loss should follow each in case of the destruction of that property which is insured by all.
The rule as above stated is laid down by Phillips, M Ms work on Insurance, (vol. I, page 326, edition of 1823,) as follows: “But if the subsequent policy con- / . . _ „ . tain no provision m respect to prior insurance, the amount of insurable interest for such policy will be the same as for the first, for the insured may insure an¿ again the same property if he will pay the premiums. But he can recover only one indemnity;
Under the rule as laid down by these authors, for which reference is made to various adjudged cases cited by them, and which is entirely analagous to the principle commonly applied at law to cases in which several persons are bound in different instruments for the performance of thq^same thing, we are of opinion that the plaintiff in this case has a right to a judgment against the defendants for the whole amount of the loss covered by their policy, leaving them to settle with the other companies the proportions of the Iqss which ought to be borne by each, unless in the present case the plaintiff is willing and intends to limit his recovery to the sum for which the defendants, as between themselves and the other companies, would ultimately be liable as their propor
But, as in any view of the case, the petition shows a right of action and of recovery to some extent, it should have been adjudged good on demurrer, and
Wherefore the judgment is reversed and the- cause remanded, with directions to overrule the demurrer, and for further proceedings.