31 Pa. Super. 1 | Pa. Super. Ct. | 1906
Opinion by
The plaintiffs were partners, Yanko having a two-thirds, and Lewi tas a one-third interest in the stock of merchandise and fixtures, and, as partners, they insured the partnership property in the defendant companjr. Yanko insured his interest in the same property in three other companies. While all the policies were in force the property was partially damaged by fire. An appraisment was entered into by the parties and the undisputed facts are, that the total cash value of the stock and fixtures was $4,090.53, the total loss and damage was $2,037.72. The partnership policy was for $1,500. The individual insurance on Yanko’s two-thirds interest was as follows: Home Insurance Company, $1,250 ;• Teutonia Insurance Company $1,250 ; Fireman’s Insurance Company $1,500 ; total, $4,000., Yanko brought suit against the three named companies in which his individual interest was insured, and recovered against the Home Insurance Co., $229.10, the Teutonia Ins. Co., $229.10 and the Fireman’s Ins. Co., $274.92, aggregating $733,12. In
In the $1,500 policy in this suit there is an eighty per cent clause which, the plaintiff concedes, limits his right to recover but $939.31, for which amount the court below entered judgment on the verdict in favor of the plaintiff, in the opinion filed by the trial judge it was held, that no account is to be taken of the insurance of Yanko’s individual two-thirds interest in the property, and that the defendant company was not entitled to have the policy in suit prorate the loss with the three other companies. This conclusion was reached in adhering to the decisions in Meigs v. Insurance Co., 205 Pa. 378, in which it is held that, “ Double insurance takes place when the assured makes two or more insurances on the same subject, the same risk, and the same interest.” In the present action the policy covers, not the individual interest of Yanko, but the interest of the partnership of Yanko and Lewitas. The subject, the risk and the interest are, therefore, not the same. The other policies cover an interest which this one does not. The recovery in the three actions brought on Yanko’s individual policies ($733.12) added to the amount of the judgment in this case ($939.31), is $361.79 inside the amount agreed upon ($2,037.72) as the total loss and damage fixed by the appraisement. As stated by Chief Justice Mitchell in his dissenting opinion in the Meigs case, “it must be admitted frankly that there is some difficulty in the language of the authorities in this state.” We are concluded by the decision of the court in that case, and in following it, we affirm the judgment.
