(dissenting). The ownership of the insured property was separate, Blocker and appellee; Larey, being equal tenants in common, but the contract of insurance was joint and indivisible. The stipulation in the policy was that “if any change other than by the death of the insured takes place in the interest, title or possession of the subject of insurance, or if the policy be assigned before a loss, unless otherwise-provided by agreement indorsed hereon or added hereto, the entire policy shall be void.” It is undisputed that Blocker sold his individual interest, in the property to Mrs. Duke without obtaining the consent of the insurance company.
There is a sharp conflict in the authorities on the question of the divisibility of a policy of insurance which provides for the payment of a gross sum as premium but insures different items of property. This court has held that such a contract is indivisible and that a breach of a portion of the contract avoids the entire policy. MeQueeny v. Phoenix Insurance Co., 52 Ark. 257; Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187.
In the opinion in the McQueeny ease, the conflict in the authorities on the subject was distinctly recognized, and after a full discussion of the question and a review of the authorities, the court deliberately took the position that the contract was indivisible, and many cases were cited in support of that rule. In concluding the discussion the learned judge who wrote the opinion said: “We can see no good reason why a contract which, if made between individuals, would be entire, should be divisible if made between an individual and an insurance company.”
The same rule was announced in the latter case of Phoenix Insurance Co. v. Public Parks Amusement Co., supra, where the policy was on different items of personal property but reciting an entire consideration, and Judge Battle, speaking for the court, said: “The contract of insurance was entire and indivisible. Being void as to a part of the property insured, it is void as to all. It was all exposed to one risk, and the consideration for the policy was a specified sum. The fact that separate amounts of insurance were apportioned to separate items or classes of property did.not make the policy divisible. The contract and risk being indivisible, the contract is entire, and any breach which renders it void as to a part of the property affects it in the same manner as to the remainder.”
The authorities on this question are still irreconcilably in conflict, but as our court has deliberately taken a position on the question it ought not to be changed except by the lawmakers. If the policies in the two cases just referred, to were entire, it would seem for a stronger reason, that the policy involved in the present controversy is entire and indivisible. There was a single premium and the contract was to pay a gross sum to both of the beneficiaries jointly in the event of the destruction of the property. It makes really a stronger case of indivisibility of the contract than where the policy apportions a separate sum on each item of the property insured. There is not a single feature of this policy which separates it into parts, for it mentions the two beneficiaries jointly, provides for a gross premium and for a gross sum to be paid in ease of loss. There is nothing upon which the idea of divisibility can rest. The fact that the two beneficiaries owned separate interests does not, it seems to me, at all affect the entirety of the contract.
It will be observed also that the language of this contract, which is a standard form of policy, is unusually emphatic in providing that the entire contract should be void. Many of the authorities lay down the rule that that particular language renders every portion of the contract void even though it be treated as a divisible contract, and in those states where the contrary view is taken from that this court has decided upon the question of the divisibility of the contract, hold that where the stipulation is that the entire policy shall be void, it renders the contract indivisible so as to make it void in the case of a breach of the terms with respect to any part of the .contract. 2 Cooley’s Briefs, on the Law of Insurance, p. 1913; Germania Fire Insurance Co..v. Schild, 69 O. St. 136; Insurance Co. v. Connelly, 104 Tenn. 93; Germier v. Springfield Fire & Marine Ins. Co. 109 La. 341; McWilliams v. Cascade Fire & Marine Ins. Co., 7 Wash. 48; Martin v. Insurance Company of North America, 57 N. J. L. 623.
It seems to me, however, that this ease is entirely controlled by the two decisions of this court referred to, and that we are making a radical departure from the doctrine announced in those cases in holding that this contract was devisible and that one of the beneficiaries could recover for his separate interest.
Mr. Justice Wood concurs in the views here expressed.