Kane & Kane v. Commercial Insurance, 8 Johns. 229

Kane & Kane v. Commercial Insurance

8 Johns. 229 | N.Y. Sup. Ct. | 1811

Thompson, J.

delivered the opinion of the court. The policy in this case contains the usual clause respecting prior insurance, and it appearing in evidence that 22,000 dollars had been previously insured, this must first be deducted, and the underwriters made responsible for the residue only. The prior insurance was by an open policy upon the cargo generally. The present is a valued policy, upon goat skins Specifically, at 50 cents each. In order, therefore, to give effect to both policies, the first ought to be considered as attaching, in the first instance, upon that part of the cargo, not covered by the latter, in qrder to leave aliment for the latter. The cargo, exclusive of the goat skins, was not sufficient to absorb the prior insurance, and the only difficulty, in this case, is, tp ascertain what portion of-interest in the goatskins had been covered by the prior policy. In estimating the loss under that policy, the goat skins must have been reckoned at 10 cents each, that being the prime cost. This is a well settled rule, and it is equally well settled, that the valuation in a policy is conclusive upon the underwriters, when there is no suggestion of fraud or imposition. (2 East, 109. Shaw v. Felton.) The defendants are, *235therefore; stopped from saying they are not answerable for the goat skins at SO cents, deducting the amount co-%'cred by the former policy. It is immaterial, as it respects the present defendants, whether the prior policy was open or valued; provided the goat skins at 50 cents each, will furnish interest suEcient for both policies. Suppose both policies had been on goat skins only; the first valued at 10 cents, and the second at SO cents, would not the underwriters on the second policy, be answerable for the loss at 40 cents a skin, which would be the interest uninsured by the first policy ? And what difference in principle can it make, whether the 10 cents aré deducted in consequence of a valuation by the parties, or in consequence of that being the valuation fixed by law, the policy being open ? The underwriters On this policy have no right to say, that because the assured had received 10 cents On each, that the skins had been fully paid for. They were not paid for, according to the valuation in this policy, which is conclusive upon the defendants. The policy is not that as many of the goat skins as remain uncovered by the former policy, at the invoice price, shall be covered by this policy at the valuation. This is not the sense and meaning of the contract. It is, that the goat skins laden on hoard shall be valued at 50 cents; and in determining how far the plaintiffs’ interest has been exhausted by the prior policy, all the goat skins on board are to be reckoned according to this valuation. Nb other construction will give effect to the contract. The prior policy was 22,000 dollars, and in order to determine how much of the plaintiffs'1 interest was covered by it, the invoice price of the cargo, exclusive of the goat skins, must first be ascertained, and whatever that sum, together with the usual charges, falls short of the 22,000 dollars, will be the sum to be deducted from the amount of the goat skins, at SO cents each, in order to exhaust the prior policy: and the *236residue forms the interest upon which the second policy ^ attach* And this, according to the data furnished by t]ie case, will be more than the amount of the defendants’ subscription in the present policy.

The case most analogous to this, is that of M'Kim v. The Phœnix Insurance Company, in the circuit court of the United States, for Pennsylvania, and which is mentioned by Judge Washington, in the case of Murray & Mumford v. Insurance Company of Pennsylvania. (1 Hall’s Law Journal, 161.) There was a prior open policy, to 12,000 dollars, and a subsequent policy to 15,000 dollars, on coffee, (part of the same cargo,) at 22 cents per pound : And it was “ decided that the first policy covered as much of the coffee as 12,000 dollars would absorb, at prime cost and charges, instead of the value fixed on that article in the second policy, which, of course, would leave to be covered by the second policy, as much less of the cargo, as the difference between the prime cost and charges, and 25 cents, -would amount to, and for so much of the cargo, the Phœnix Company was held to be answerable.” According to this report of the case, the underwriters on the second policy were held liable for the difference between the prime cost of the coffee, and the valuation in the policy subscribed by them. The report of the same case, in a note in Candy’s edition of , Marshall, (152. b.) might warrant a different construction; but is not so precise, and probably not so correct, for the case in Hall appears to be the report of the judge himself.

We are, accordingly, of opinion, that the plaintiffs are entitled to recover as for a total loss, to the amount of the verdict.

Judgment for the plaintiffs-.