78 Pa. 19 | Pa. | 1875
Judgment was entered in the Supreme Court, January 18th 1875,
This case is ruled by that of Sloat v. Royal Insurance Co., 13 Wright 14. The loss, in this instance, exceeds the entire insurance in all the policies, general and special. The loss in the first and second stories of the building, which was not covered by the special policy in the subject in the third and fourth stories, largely exceeded the entire amount of the general policies. So the loss in the third and fourth stories exceeded the amount of the special policy, which was confined to the subject in those upper stories. It is clear, therefore, that the general and special policies covered in fact different subjects, and that the loss under each was more than sufficient to exhaust its entire amount. A rule of average which would exempt the general policies from a portion of their peculiar loss below, in order to carry it to the relief of the special policy above, and thus to exonerate each from a portion of a total loss of different subjects, would directly contradict the very spirit and intent of the contract of insurance; the subjects being different, and the loss upon each being greater than the insurance on each specially applicable to it, it is evident that the average would effectuate no equity it was intended to cover. We do not think Merrick v. Ins. Co., 4 P. F. Smith 277, is sufficiently clear on this point to overrule Sloat v. Ins. Co., 13 Wright 14. Judgment affirmed.