DISTRICT COURT.

Nelson Evening Mail, Volume XIV, Issue 209, 15 September 1879, Page 2

DISTRICT COURT.

[Before His Honor Judge Broad.] WHITE V. SOUTH BRITISH IXSURANCE COMPANY. The following judgment was delivered this morning: — The plaintiff in this case effected in December 1876 an insurauce for £250 with the defendant Company In the proposal he agreed to be bound by the conditions of the policies of the Company. He received a receipt for the premium on December 1876 and the policy itself was delivered to him some 3or 4 months later. The 9th condition of the policy is as follows;—" No claim shall be recognized or recoverable if the property insured be previously or subsequently insured elsewhere, unless the particulars of such other insurance be notified to the Company in writing and allowed by endorsement hereon; provided, on such notice being given after the issue of the policy, it shall be optional with the Company to cancel the same, returning the rateable premium for the unexm'red time thereof, and in no case where any property insured by the policy is insured elsewhere shall this Company be liable to pay more than their rateable proportion of loss or damage." The plaintiff subsequently effected two other insurances upon the same property with the exception of the two last items (viz., the piano and organ) one with the Victoria Company for £200, and one with the North British and Mercantile Company for £250. No notice in writing or otherwise was given to the defendant Company of these additional insurauces, On the 13th March 1879 tbc property thus insured was destroyed by fire and the value of it is admitted to have been in excess of the total insurances. The Victoria j and North British Companies have paid their losses, but the defendants dispute the plaintiff's right to recover, upon the ground of non-compliance with the 9th condition of the policy. It has been urged in the course of the argument that there is no instance in the English Courts of any actiou having been successfully defended upon such a plea. That may be so, but yet there ia no authority for saying such a plea may not be a good one. The decisions of the learned Judges in the case of "The Australian Agricultural Company v. Saunders," 10 L.R.C., P 668, seem to indicate that it would. In that case the plaintiffs effected a policy of insurance with a Fire Insnrauce Company for £3000 "on wool in all or any shed or store or station, or iu transit to Sydney by land only, or in any shed or store or any wharf in Sydney until placed on ship." The policy contained a provision (No. 5) precisely similar to the 9Lh condition of the present plaintiff's policy. The plaintiffs in the case cited subsequently effected an insurance with a Marine Insurance Company to cover £16,500 upon wool, the risk being described as "at and from the River Hunter per ships and steamers and thence per ship or shipa to London, including the risk of craft from the time that the wools are first waterborne and of transhipment or landing and reshipment at Sydney." The wool was conveyed to the stores of the stevedores of a certain ship, and was there partially destroyed or damaged by fire. The plaintiffs sought to recover the loss from the defendant company, but the claim was resisted by them upon the ground that the policy of marine insurance came within the terms of the fire policy, and ought to have been communicated in writing to them. It was held that as the marine policy did not cover the wool whilst in the stevedores warehouse it was not such an insurance as the plaintiffs were bound under the provision in the fire policy to notify to the defendant's company, and that the plaintiffs could recover, j Bramweil B. said " Inasmuch as the loss would not have been recoverable from the underwriters of the marine policy, I think the plaintiffs are not brought within the words of the sth clause of the fire policy. It is true there was a subsequent insurance of the goods, but the words must be read with some limitation, or the result would be absurd. The insurance elsewhere must, to be within the clause, be an insurance as to a portion of the risks covered by the policy sued on. If that is so, it seems to me this not a case of double insurance such as was intended, inasmuch as the plaintiff could not have recovered this loss on the Marine policy." Bhckburn J. said: "I am of the same opinion. There was clearly a loss covered by the Fire policy, unless the case comes within the sth clause of that policy. If it could have been shown that the Marine Insurance covered the wool when deposited in warehouses or stores it would have followed that the particulars of such insurance ought to have been notified to the defendants, and that not having been done the insurance was void. I think the meaning of an ' insurance elsewhere' in the fire policy is an insurance specifically covering the same risk," and Lush, J. said : " I am of the same opinion. I think the goods were not insured elsewhere within the meaning of the fire policy. The goods were not in my opinion covered by the marine policy under the circumstances. I am disposed to think that a subsequent insurance, which only in certain contingencies might possibly cover a portion of the risk covered by the fire policy, was not what clause 5 aimed at, but that that clause refers to subsequent insurances obviously intended to cover the same risk," and Quoin, J. said .- " As to the second point, I also agree with the rest of the Court. I think that what was intended by the sth clause of the fire policy was some policy certainly covering the same risk, not a policy such as the marine policy, under which there was a bare possibility of the two policies covering the same risk at the same period," and Pollock 8., after stating his agreement with what had been said by Bramivell 8., added : " Having regard to the object of such conditions, it seems to me that it would be quite immaterial to the insurers on the fire policy that the marine policy might possibly cover the same risks as the fire policy for some period of time during the transit." Amphleti 8.. also concurred in the judgments of the rest of the Court. From these judgments it is evident that where there is a subsequent insurauce elsewhere specifically covering the same risk, the case falls within the condition, and failure to give notice of such additional insnrancea prevents the plaintiff from recover-

ing. Pollock B. said, just as the learned Counsel for the plaintiff sayg iu the present case, that it was immaterial to give the Company notice of the subsequent insurance. But the cases are very different. In the one there was a bars possibility of the policies overlapping; in the other there- are subsequent insurances iu existence at the same time actually covering the same risk. It seems to me that, notwithstanding the fact that goods were destroyed by the fire exceeding in value the total insurances, it was, looking to the object of the condition, material to give the Company notice of the subsequent insurances. To hold otherwise would in effect be saying that notice need only be given when the total insurances ex ceed the actual value of the property; but that would be puttiug an unreasonable construction upon the 9th condition. The object of the condition appears to be to give the Company the opportunity of estimating the value of the goods at the time the notice is given, and to decide, having regard to that value, the nature of the risk generally, and the character and repute of the insured, which is generally taken iuto consideration, whether they are willing to continue the contract or put an end to it by returning the premium for the unexpired time and cancelling the policy. The defendants are relying upou their strict legal rights, and, however harsh this condition may appear in its particular application, it does not seem to be an unreasonable one generally looking at the object of it. Upon the whole I am of opinion that, this case falls within the condition. That insurances haviug been effected elsewhere upon the same risk, the defendants were entitled to notice, and no notice having been giveu that no claim under the policy is recognizable or recoverable. Judgment for defendants with costs £12 16s.