WOOLFORD v. PHENIX INSURANCE CO

Insurance, Fire. Contract, Construction. A policy of fire insurance in the Massachusetts standard form containing the condition that "this policy shall be void . . . if the insured now has, or shall hereafter make, any other insurance on the said property, without the assent in writing or in print of the company," and containing in a rider attached to it a provision "that the assured shall maintain insurance on the property described by this policy to the extent of at least eighty per cent of the actual cash value thereof," becomes void if it is assigned with the assent of the company to one who without the assent in writing or print of the company already has other insurance on the property exceeding with the policy assigned the entire value of the property.

HAMMOND, J.

This clause called the "Standard Guarantee to maintain eighty per cent insurance" is of recent origin, but it does not entirely supersede the clause providing that the policy shall be void in case of additional insurance without the consent of the company. The two clauses are not necessarily inconsistent, and, to a certain extent at least, can stand together, each having its due scope. As stated by Hamersley, J. in a similar case, "If, as the plaintiffs claim, the adoption of the [guaranty] clause imposes on the insured an obligation to procure such additional insurance as may be necessary to keep the total amount of insurance equal to 80 per cent of the changing actual value of the property covered by the policy, and therefore impliedly gives permission to procure, or waives the provision against, such insurance, it must follow that such permission or waiver is limited by the necessity from which it is implied." Cutler v. Royal Ins. Co. 70 Conn. 566, 572. See also Allen v. German American Ins. Co. 123 N.Y. 6. In the present case the additional insurance carried the total insurance to a sum greater than the entire value of the property. Applying the principle above stated, the result is that this policy was avoided by such additional insurance. In so far as the cases of Pool v. Milwaukee Mechanics' Ins. Co. 91 Wis. 530, and Catoosa Springs Co. v. Linch, 18 Misc. (N.Y.) 209, cited by the plaintiff, are inconsistent with this view, we cannot follow them. The ruling requested was properly refused.

Exceptions overruled.