Roots v. Cincinnati Insurance

J. The only question that requires the application of any legal principle is this: Did the policy issued by the. Firemen’s Insurance Company cover the property proved to have been destroyed, and which it is admitted, was insui’ed by the Washington and Cincinnati offices; in other words, was there a double insurance upon the property covered by the last two policies.

First. The policy issued by the Firemen’s Company, is prior in point of time; when it issued, the property insured by the last two policies was not in existence, so far as the ownership or interest of the insured are concerned.

Secondly. It includes, not only property in the main buildings, but also in an adjoining shed.

Thirdly. The parol evidence in the case clearly estab' lishes it was not the same, nor intended to be.

But it is said such evidence can not be permitted to explain the terms of the policy. We think, however, it is proper to establish the identity of the property insured; it certainly creates no new obligation nor affects the contract > it only ascertains what the contract really was; it is therefore but the application of the ordinary principle of law that permits the location of premises, the quality of merchandise, and the representations made by either party at the time the contract was made, to be proved by testimony, *141dehors the written agreement. A contrary construction would, in every case, make the description in the policy conclusive, and though, in fact, the property covered was distinct from, and entirely independent of, that included in other risks, still the prima facie designation of the subject, by the same terms, must estop the insured from all explanation, and in case of loss, the subsequent insurer might p.1 film that a prior risk existed upon the same subject, of which they were not notified, and that they are therefore discharged from liability, while the face of the policy itself would be conclusive of the fact; such can not be the law. The' principle thus recognized is held in 5 S. & R. 473, Peters v. Del. Ins. Co.; 12 Mass. 214, Perkins v. N. E. Mar. Ins. Co.; 6 Shepley, 155; 5 Hill, 298; 2 Watts & Sergt. 506, Stacey v. Franklin Ins. Co. In every case of double insurance, the risks must be on the same property, the liability, also, must be precisely the same. The insured may take policies upon different parts of the same building, or of the merchandise within the building, or upon different interests in both. 5 Ohio, 467, Harries v. Ohio Ins. Co.; 1 Burrows, 489, Godin v. London Ass. Co.

In the present case, we hold, though the policies issued by the defendants did not cover the property insured by the Firemen’s Insurance Company; that the Firemen’s Insurance Company, in case of loss, has no right for contribution against. the Cincinnati and Washington offices; and these companies, of consequence, have no right to compel the Firemen’s Insurance Company to pay any portion of the loss for which these actions' are brought. The whole amount of the loss sustained by the plaintiffs must be apportioned, then, between the defendants, according to the amounts taken by each.