Angelrodt & Barth v. Delaware Mutual Insurance

Bates, Judge, delivered the opinion of the court. Angelrodt & Barth were insured against loss by fire by the defendant in the sum of five thousand dollars, in merchandise held by them for themselves, and on trust and commission for account of whom it may concern. They were also insured by the St. Louis Mutual Eire and Marine Insurance Company in the sum of four thousand dollars on merchandise held in a similar manner and also on merchandise held on storage, which last was not covered by the policy of the defendant. Merchandise of plaintiffs was destroyed by fire to the amount of $9,157.75 ; of this sum $7,470.75 was covered by the policy of the defendant, and $1,687 was property held on storage, not covered by the policy of the defendant, but included in that issued by the St. Louis company. The seventh condition annexed to the policy issued by the defendant to the plaintiffs provided, that, “ in all cases of a plurality of insurances on the same subject, this company [596] shall be liable for such rateable proportion of the loss or damage, happening to the subject insured, as the amount insured by this company shall bear to the whole amount insured thereon.” The defendant paid to the plaintiffs the sum of $4,150.42, and this suit was brought to r $849.58, the difference between the amount paid and die whole amount insured. Three plans are proposed for adjusting the loss to be paid by the defendant: 1. The defendant claims that as both policies covered the amount of $7,470.75, each company must pay of that sum the proportion which the amount insured by it bears to the whole amount insured; that is, the whole insurance being $9,000, and the amount insured by the defendant being $5,000, it must pay five ninths of that sum of $7,470.75, which is $4,150.42 — the sum which it has paid. 2. The plaintiffs claim that the loss on goods held on storage should be paid in full by the St. Louis company, and t n remainder of the sum insured by it together with the whole sum insured by the defendant should be applied to make good the loss on the other goods; that is, the St. Louis Mutual should pay on the goods held on storage $1,687, which would leave, to satisfy the loss of $7,470.75, the sum of $2,313 to be paid by the St. Louis Mutual and $5,000 by the defendant, making a total of $7,313. 3. The court of common pleas, before which the case was tried, rejected both plans, and declared that “ the amount for which the defendant is liable on its policy is to be ascertained by adjusting the loss as follows, to wit: First ascertain what amount or proportion of the policy issued by the St. Louis Mutual Fire and Marine Insurance Company covers general merchandise of plaintiffs and goods on commission, which may be done by the following proportion: as $9,157.-75 (the total value of the goods lost) is to $4,000 (amount of policy), so is $7,470.75 (the value of general merchandise and goods on commission) to the value of general merchandise and goods on commission covered by said policy — that [597] is, tlie sum of $3,263.13, which sum is the proportion of the said policy that covers general merchandise and goods on commission; add this last sum to $5,000 (the amount of defendant’s policy), and it gives as the total insurance on general merchandise and goods held on commission the sum of $8,263.13. The amount for which defendant is liable on its policy is then to be ascertained by- the following proportion : as $8,263.13 (the total amount of insurance on general merchandise and goods on commission) is to $7,470.75 (the total amount of loss on same goods and merchandise), so is $5,000, the amount of defendant’s policy, to the amount for which it is liable — to wit, the sum of $4,520.53, from which deduct the amount heretofore paid by the defendant, $4,150.42, leaves a balance of $370.11', from which plaintiffs are entitled to judgment with interest, <fcc.” The plan adopted by the court of common pleas is undoubtedly the correct mode of adjusting the loss as between the insurers contributing to make it good, and would be proper to apply to this case if thereby the loss sustained by the plaintiffs were made good; but as that is not the case, a different plan must be adopted. The plaintiffs’ loss exceeded $9,000, which was the amount in which they were insured, and that plan of adjustment is to be preferred which will most nearly make good their loss, and thus fulfil the purposes of the insurance. This can be done by adjusting the loss upon the plan claimed to be the correct one by the plaintiffs, if it be in accordance with the contract of the parties. The policy of the defendant makes it liable for such rateable proportion of the loss as the amount insured by it bears to the whole amount insured on the same subject. The difficulty lies in ascertaining what is the whole amount insured; that is, to ascertain what is the amount insured by the St. Louis Mutual company on the same goods covered by the defendant’s policy, that it may be added to the amount insured by the defendant to make up the whole sum insured on those goods. In the absence of anything in the policy of the St. [598] Louis Mutual company to indicate what proportion of the $4,000 thereby insured should be applied to goods of the character insured also by the defendant and what proportion thereof to goods held on storage, we are left at liberty so to apportion the sum thus insured as will most effective L justice in carrying out the purposes of the parties ii, tiering into the contracts for insurance. As before stated, ordinarily the plan adopted by the court of common pleas would be chosen as a convenient one, but that plan is not necessarily the only correct one, and in this instance it fails to do full justice ; and we therefore think it better so to apportion the amount to be paid by the St. Louis Mutual company as to apply it first to pay the loss on goods held on storage, by which means the whole amount insured by the defendant becomes payable to the plaintiffs. We are sti’engthened in this conclusion by the fact tha+ F. L. Ridgely and George K. McGunnegie, who have ver, experience in the business of underwriting at St. Louis, having been consulted in reference to this case, concurred in recommending the same adjustment. The judgment of the court of common pleas will be reversed, and judgment entered in this court for the plaintiffs for eight hundred and forty-nine dollars and fifty-eight cents, with interest from the fifth day of February, 1857. The other judges concur.