Shurtleff v. Phenix Insurance

Danforth,. J* This is an action on a policy of insurance in which we find the following provisions: “ And provided further, that if any other insurance has been, or shall hereafter be made upon the said property, and not consented to by this company, in writing hereon, . . . this policy shall be null and void.” In the policy is written an assent for $30,000 other insurance. At the time of the loss there was other insurance to the amount of $35,500 on the same property. Under this state of facts the authorities cited by the defendants clearly show the policy to be void. Nor is this view of the law denied by the plaintiffs, but it is contended by their counsel that this condition in the policy was waived, because Dow, [138] the agent of the defendants, made, as agent of other companies, the additional insurance, and especially because after the additional insurance, he renewed the policy in suit. If the' facts were as assumed, it might admit of serious doubts whether Dow, as agent, could .waive a provision in the contract thus distinct and explicit. But we are not called upon to decide any question of this kind, for the report of the case shows the facts to be otherwise. It aj>pears that the policy of the Dirigo company bears date April 16, 1866. This was after the last renewal of the policy in suit, nor does it appear that Dow was the agent of that company or had anything to do with, or any knowledge of, the issuing of that policy. The testimony of plaintiff, Sylvan Shzirtleff, does not contradict these facts. Referring to the time of his removing his goods he says, “ at that time he was agent for all the policies I had on the property,” &c. It also appears that subsequent to this time azzd before the loss, one policy, at least, of $20,000 had expired, and others, making up the amount, had taken its place. How mazzy, or to what amount, through the agency of Dow, does not appear. It does appear that there was at the time of the loss an insurance of $5,500 beyond the amount authorized in the policy, and no proof of any waiver of the conditiqn in the policy by the company or its agent. Judgment for defendants. Appleton, C. J.; 'Cutting, Dickerson, Barrows, and Tapley, JJ., cqnqirred,