(dissenting):
I respectfully dissent. The holding in the main opinion is based upon a provision of the policy issued by St. Paul, which is as follows :
If the insured holds other valid or collectible indemnity against any loss, covered hereunder, the underwriter shall be liable hereunder only for such amount of such loss as is excess of the amount of such other indemnity, not exceeding the amount of coverage hereunder.
I am of the opinion that that clause refers to concurrent insurance, that is, insurance which insures against the same risks as those covered by the policy above mentioned.
The policy of St. Paul among other things protected against the risk of embezzlement by an employee of the plaintiff. The policy issued by First American Title Insurance And Trust Company covered the title to the land only and insured that the plaintiff had a first mortgage lien on the land covered by the policy. Rowley, the loan officer for Prudential, was fully aware that there was a prior first mortgage upon the property in question. He was the former owner of the property and had sold it to William Duane Parker and wife by contract. The Parkers applied for a loan from Prudential for the purpose of completing payment to Rowley and retiring the first mortgage upon the property held by First Federal Savings & Loan Association. It appears that Rowley embezzled that portion of the proceeds of the loan from Prudential which was to have retired the first mortgage.
It appears to me that the loss we are here concerned with stemmed directly from Row-ley’s peculation and that this specific risk *99was covered by St. Paul’s policy. St. Paul, having insured the specific risk, became obligated to pay plaintiff’s loss to the extent of its policy and the title insurance policy should be treated as general insurance covering only a general risk of loss to the plaintiff by reason of a title defect that can only be resorted to in the event that the specific coverage is exhausted.
I would affirm the trial court.