Associated Firemen's Insurance v. Assum

Mason, J., delivered the opinion of this court and his own separate opinion as follows: The court are of opinion this judgment ought to be feversed. A majority of the court think that the proper construction of the covenant is, that if any part of the goods mentioned therein was afterwards insured in any other insurance office without notice to the appellants, as provided in the covenant, the policy thereby becomes void and of no effect, and therefore it was error in the court below to refuse the instruction asked for by the appellants. While 1 concur with the court that the judgment ought to be reversed, I base my opinion upon different grounds. Although there was but one policy of insurance in fact, yet it embraced, in my opinion, two distinct and separate insurances, one for $700 and the other for $300, upon different goods. The proper construction of the covenant, I think, is this: if any of the goods embraced in either one of the contracts were insured in another office without notice, it vitiated the policy only as to that contract of insurance in which the goods thus reinsured were embraced; and if a part of the goods embraced in each contract was afterwards insured elsewhere without notice, it would vitiate the whole policy, and there could be no recovery against the appellants by the appellee in this action. The instruction which was given by the court seems to be based upon the assumption, that the liability of the appellants [170] was discharged only to the extent of the goods actually after-wards reinsured, and the verdict of the jury appears to rest upon the same grounds, otherwise' it would be difficult to discover how the amount of the verdict was arrived at. I think, therefore', the instruction which' was given by the court was wrong, While I think that asked for by the appellants was properly refused. Judgment reversed and procedendo, awardedj