199 Mass. 380 | Mass. | 1908
This is an intervening petition in receivership proceedings concerning the Atlas Mutual Insurance Company to establish a claim for a loss by fire under a policy issued by
“ On iron tanks and their contents consisting of petroleum and its products, all while contained in the State of Pennsylvania.
“ Privilege to make additions, alterations and repairs, this insurance to cover same, to use oil or other lights, and to work at all hours, and for other insurance without notice until required.
“It is understood and agreed that this insurance shall not attach until all specific insurance is exhausted.”
The Pipe Line Company was engaged in storing and transporting petroleum and had tanks at various places in Pennsylvania, where oil was stored. On July 3, 1903, one of these tanks situated at Marcus Hook, Pennsylvania, was damaged by fire and its contents destroyed, and on July 11,1903, another tank situated there was also damaged by fire and its contents destroyed. This petition seeks to recover of the Atlas Company for these losses. The Pipe Line Company assigned to the petitioner all its rights under the policy after the losses had occurred. At the time of the fires the Pipe Line Company had other insurance on the property destroyed and on other property situated at Marcus Hook, amounting to $275,000. All of these policies, except three, insured the company against loss “on iron tanks and their contents consisting of petroleum and its products, all while contained at Marcus Hook, Delaware County, Pennsylvania.” The only difference in regard to the three was that those described the contents as “ consisting of refined petroleum,” instead “ of petroleum and its products.” This difference is immaterial. All of these policies contained what is known as a “ co-insurance clause.” In some of them the policies provided, in substance, that the companies should not be liable for a greater proportion of the loss than the amount of the policy bore to ninety per cent of the value of the property insured. In the others the proportion was that which the amount of the policy bore to the whole value of the property insured. The value of the property insured under these policies was largely in excess of the amount of insurance, and only a portion of the losses sustained could, therefore, be collected under
We do not find it necessary to consider whether the insurance was specific or not, since we are of opinion that, if it was specific, it was exhausted. The contention of the receiver is, in substance, that, inasmuch as the policies still attach to other property at Marcus Hook, and the companies issuing them will be liable thereunder up to the full amount insured for other losses that may occur, the insurance has not been exhausted. In other words the contention is, not that the specific insurance has not been exhausted in respect to the amount collectible on account of these losses, but that the full amount of insurance has not been exhausted and that until that happens the Atlas Company and other companies insuring under like policies are not liable. We do not think that the construction contended for by the receiver is the true one. The contract of insurance is one of indemnity. It is to be fairly and justly interpreted according to the language used. But the purpose of the contract is to be borne in mind in construing it, and such a construction is to be adopted as, if fairly warranted, will best carry out the object for which the contract was entered into, namely, that of securing indemnity to the insured for the losses to which the insurance relates. Dole v. New England Ins. Co. 6 Allen, 373, 385. It is no doubt true, as contended by the receiver, that, speaking gen-r
Decree for the petitioner.