(dissenting).
I think that the lower courts and the majority here have rewritten the policy sued on without leave of the underwriter. To me, the “other automobile insurance in this company” clause is clear.
I.
Plainly, reference to Code 1940, T. 28, § 106, is beside the point. That section refers to powers which certain Alabama mutual insurance companies may assume in their articles of incorporation.
Insurance Company of North America is a stock company with its home office in Philadelphia. Plaintiff’s Exhibit “C.” Also § 119, T. 28,1 excludes foreign companies.
II.
Government Employees Ins. Co. v. Sweet (Fla.App., 4 Dist.), 186 So.2d 95, relates to a single policy covering two cars. By *118separate declarations, medical payments2 were listed for each car at $3,000.00. For each such medical payment provision, the company charged a separate premium, i. e., $6.60 and $5.40. The aggregate loss was over $6,000.00 in medical expense.
The Court of Appeals for the First District, in Hilton v. Citizens Insurance Co. of N. J., 201 So.2d 904, said of the Sweet case:
“The insurance clauses construed in the Sweet case are entirely different from those which we are called upon to construe in the case sub judice and are intended to serve a separate and unrelated purpose. The insurance policy on which plaintiffs base their claim for judgment clearly provides that regardless of the number of vehicles insured thereunder, or the number of insureds who may sustain damages in any one accident, the limit of the company’s liability shall be the amount set forth in the declarations clause of the policy. This amount is shown to be the sum of $20,000.00 To hold with the contention of appellants would amount to rewriting the clear and unambiguous terms of the insurance policy sued upon and to impose on appellee twice the amount of liability it agreed to assume for the premium charged in exchange for the coverage granted. We think the trial court’s construction of the policy terms was correct, and its order denying appellants’ motion to amend their complaint by increasing the amount of their claim above the policy limits is affirmed.”
Here Mrs. Williams claims a second lump sum accidental death benefit of $1,-000.00 No separate-premium is shown to have been charged either for the first death benefit (which the compány paid) or for the second.
This is not “Other insurance” generally but other insurance under the same underwriter.
A similar case is found in Varvil v. M.F.A. Mutual Ins. Cos., 243 Ark. 692, 421 S.W.2d 346:
“At the time of his death last year Howard W. Varvil owned two automobiles. The appellee had issued separate but identical insurance policies upon the two cars, each policy providing a maximum funeral benefit of $1,000. Varvil was. killed while riding in what the policies refer to as a non-owned automobile. His-funeral expenses amounted to $1,557.43 The appellant, as the administrator of Varvil’s estate, brought this action to recover the full amount df the funeral expenses. The trial court, upon stipulated facts, sustained the defendant’s contention that its liability was limited to $1,000.
“The court was right. The policies contained this provision governing the situation in which the company might otherwise have been doubly liable under policies issued by it to the same person: ‘5. Other Automobile Insurance In The-Company — With respect to any occurrence, accident, death or loss to which this and any other automobile insurance-policy issued to the named insured or spouse by the company also applies, the total limit of the company’s liability under all such policies shall not exceed the-highest applicable limit of liability or benefit amount under any one such policy.’
“There is no ambiguity in the paragraph-just quoted. To the contrary, its meaning-*119is too clearly stated to be suspectible of any misunderstanding. * * * ”
See also Pusti v. Nationwide Mutual Ins. Co., 415 Pa. 318, 203 A.2d 660, and Kingman v. Nationwide Mutual Ins. Co., 243 S.C. 405, 134 S.E.2d 217.
If the two cars had been under a single policy this suit would have been moot. Hence, I think that the appellee should not gain a windfall by splitting his insurance into separate contracts.
PER CURIAM:
On authority of Insurance Company of North America v. Williams, 284 Ala. 510, 226 So.2d 295 (MS. May 8, 1969), the judgment below is reversed and the cause remanded for proceedings consistent with the opinion of the Supreme Court of Alabama.
Reversed and remanded.
. “§ 119. All laws or parts of laws in conflict with the provisions of this article shall not apply to or be enforced against companies formed under the provisions of this article; provided that the provisions of this article shall not apply to or affect any company or insurance company, as defined in section 40 of this title, except those organized under the provisions of this article. But any such company may, by due and legal amendment of its char-tor and articles of association, adopt and become subject to the provisions of this article when such amendments shall have been submitted to and approved by the superintendent of insurance. Any company so electing and fully complying with this article may hereafter effect such kinds of insurance as are authorized by this article and specified in its charter and articles of association then in force or that as then or thereafter amended.”
. Other eases concerning medical payment clauses in single policies are: Kansas City Fire & Marine Ins. Co. v. Epperson, 234 Ark. 1100, 356 S.W.2d 613; Government Employees Ins. Co. v. Sweet, Fla. App., 186 So.2d 95; Travelers Indemnity Co. v. Watson, 111 Ga.App. 98, 140 S.E. 2d 505; Southwestern Fire & Cas. Co. v. Atkins, Tex.Civ.App., 346 S.W.2d 892; Central Surety & Ins. Corp. v. Elder, 204 Va. 192, 129 S.E.2d 651. Contra: Sullivan v. Royal Exchange Assur., 181 Cal.App.2d 644, 5 Cal.Rptr. 878.