Vose v. Hamilton Mutual Insurance

Peckham, J.

It appeared on the trial that the goods in store Ho. 148, after removal, were one consolidated stock, not kept separate, but replenished from time to time up to the fire. The question is did these facts constitute a violation of that provision of the policy forbidding double insurance except by consent.

That there was a double insurance in fact and in law is clear, from the time the goods in Ho. 146 were removed to Ho. 148. The two policies then attached to the consolidated stock and also to all goods purchased from time to time to replenish it. (1 Phil. on Ins. 5, 491. Angell on Ins. § 203. Hooper v. Hudson R. Fire Ins. Co., 17 N. Y. Rep. 426.) The plaintiff was aware of the effect of this consolidation of the stock as to the insurance, as he procured the consent of the other company for the additional insurance by the defendant of $2500. This additional insurance was made or effected solely by this removal of the goods from Ho. 146 to 148.

The 18th article of the defendant’s by-laws provides in terms against any policy “that has been or shall be issued.” It will perhaps be better understood if each part be considered separately. Has that part of the article referring to a policy that “has been issued” been violated? If that part stood alone it would read “ In case any other policy has been issued covering the whole of any portion of the property insured” this policy shall be void unless &c. That provision, thus stated, would plainly refer to a policy that had already issued and that then covered this property. It had no reference to any policy already issued that did not cover this property. With such a policy the defendant could have no concern. There was in fact then no policy issued, at the time the defendant issued its policy, “covering” or touching the property then insured- by the defendant. The property after-wards became covered by the policy of the other company, by its subsequent removal to No. 148. The same may be said of the property in No. 148 prior to the removal of the goods from 146. They were not insured by the defendant’s policy, prior to the- removal. The removal extended the defendant’s policy. That removal was not a re-issuing of either policy.

This act of removal, as matter of law, without any new agreement or new policy, made the property covered by, the other policy.

As to the other provision of the article, having reference to 'the future, it is not pretended that any policy has in fact, been issued since the issuing of the defendant’s policy coving the property insured by the defendant'.

This is a close case, and is disposed of upon the peculiar and precise phraseology of the defendant’s by-law. The defendant has been careful to frame some thirty by-laws, modifying and qualifying its liability; providing specially when the policy shall be void. The language of this by-law does not cover this case of insurance by this transfer of the property. No fraud is imputed to the insured, in the transaction, and I do not think the defendant is at liberty to insist that the insurance is forfeited by .an act that is excluded as a ground of forfeiture by the terms of the article on that subject.

I confess I have not arrived at this result, in this case, without considerable hesitation, in view of the temptations to fraud held out by additional insurances, and of the necessity of their being known to insurance companies. But a forfeiture of the insurance should not he enforced against the language of the provision itself.

The judgment should he affirmed.

Milleb, J. concurred.