98 Mass. 185 | Mass. | 1867
In case of double insurance, that is, of two insurances on the same interest at the same time and against the same risks, the general maritime law and the custom, understanding and practice of merchants have often differed from the common law as to the proportions in which the different underwriters should contribute and the mode of enforcing their liability.
By the general maritime law and the French ordinance of 1681, in case of two policies upon the same property, the
Before the American Eevolution the rule of the common law was declared and established, that in this, as in any case of two sureties for the same debt, the creditor might recover the whole amount from either, leaving him to sue the other for contribution. Godin v. London Assurance Co. 1 Burr. 492, 495. Millar on Ins. 266. Marshall on Ins., part 1, c. 4, § 4. See also Fisk v. Masterman, 8 M. & W. 165; Bruce v. Jones, 1 H. & C. 769 In the leading American case of Thurston v. Koch, 4 Dall. 348, xxxii, decided in the circuit court of the United States in Pennsylvania in 1800, the law of England, as thus established before the Declaration of Independence, was held to be binding as law here, although the usage in Philadelphia for years had been to settle losses in accordance with the French ordinance and the early English custom. And that decision has been uniformly recognized and followed, in the absence of express stipulation to the contrary in the policy. Craig v. Murgatroyd, 4 Yeates, 161. American Insurance Co. v. Griswold, 14 Wend. 461, 473, 493. Millaudon v. Western Insurance Co. 9 Louisiana, 27. Cromie v. Kentucky & Louisville Insurance Co. 15 B. Monr. 432. 3 Kent Com. (6th ed.) 280, 281.
But this rule, which obliges the assured to pay a double premium while he secures only one insurance, and allows him to elect, at any time within the period of the statute of limitations, which insurer he will sue and compel to seek contribution
The manifest purpose of this clause is in case of loss to fix by the policy itself the amount for which the underwriter shall be responsible, unaffected by the subsequent insolvency of either underwriter or by any choice of the assured. Insurance of the solvency of an insurer is permitted and practised on the continent of Europe, but has never been in use- in England or America. Marshall on Ins. part 1, c. 4, § 3. 3 Kent Com. 280. The contingency in which the liability of the defendants is limited by their policy is not “ if there shall be any prior insurance actually existing at the time of the loss,” but “ if the insured shall have made any other insurance prior in date ” upon the same property, in which is of course implied “ against the same risks, and outstanding at the time of obtaining the second insurance.” The amount for which these defendants as second insurers shall be answerable is declared to be, not that amount which the prior insurers may be unable to pay, but “ so much as the amount of such prior insurance may be deficient towards fully covering the property hereby insured, whether for the whole voyage, or from one port of lading or discharge to another.” In other words, it is determined, not by the amount which can be recovered of the prior insurers, dependent upon the contingency of their solvency; but by the sum insured by them, as expressed on the face of their policy. The premium to be returned is not merely upon so much of the sum insured as the defendants shall not be required to pay, by reason of its being recovered of the earlier underwriters, but upon so much of the sum or for such part of the voyage insured by them as they “ shall be exonerated from by such prior insurance,” that is, by the fact of being thereby already insured.
The stipulation does not indeed apply unless both policies according to their terms cover the property at the time and place of the loss. It was therefore held in Kent v. Manufacturers'
The facts agreed in this case show that at the time of the making of the policy in suit the plaintiffs held other policies prior in date upon the same property, to its full valuation,
The cases of fire insurance, cited for the plaintiffs, in which this court has held that a policy, declared on its face to be void in case of previous insurance on the same property, or in case of obtaining subsequent insurance, was valid if the only other insurance was void for misrepresentation or by its own terms, have no application to this case ; for they were not decided, as the learned counsel argued, upon the ground that such other insurance was worthless and could not be enforced, but upon the ground that it was in law and in fact no insurance.
As the defendants’ policy never attached, the plaintiffs, as was admitted at the argument, are entitled, upon the second count in their declaration, to Judgment for a return of prtmium.