ADDITIONAL INSURANCE 661
Many decisions pro and con have been cited in this case by counsel for both sides. However, as insurance companies change their standard forms of policy from time to time by the insertion of various clauses intended to protect them against over insurance, such decisions are not helpful except where they construe policies containing conditions similar to those found in the policy of the New Jersey Company in the instant case. Our attention has been called to but two cases where the invalidity condition was in the exact language used in that policy, New Brunswick Fire Ins. Co. v. Morris Plan Bank, 136 Va. 402, 118 S. E. 236, and Interstate Automobile Ins. Co. v. Edens (Tex. Civ. App.) reported in 235 S. W. 671, in each of which cases the policy provided that it should be null and void "if at the time a loss occurs there be any other insurance, covering against the risks assumed by this policy, which would attach if this insurance had not been effected." The Supreme Court of Appeals of Virginia, and the Court of Civil Appeals of Texas, each held that, under the peculiar provisions of those policies, the taking of other additional insurance upon the same property without the consent of the other insurer invalidated the policies. The Virginia court held, as we do, that the clause involved is unequivocal, and that "to disregard it would be to ignore the contract which the parties have entered into and expressed by language which can bear but one construction. * * *
The judgment of the Court of Appeals reversing and remanding the case to the trial court is reversed, and, proceeding to render the judgment the appellate court should have entered, judgment is here rendered in favor of plaintiff in error.
Judgment reversed in part, and final judgment rendered for plaintiff in error.2O
KINKADE, MATTHIAS, and DAY, JJ., concur.
20 See comment on this case (1929) 29 Colum. L. Rev. 676.
A mortgagee's effecting a policy of insurance does not violate the provision against additional insurance in the mortgagor's policy, since the former is on a separate interest. Clower v. Fidelity-Phenix Fire Ins. Co. (1927) 220 Mo. App. 1112, 296 S. W. 257; Mosee v. Firemans Ins. Co. (1927) 87 Cal. App. 473, 262 Pac. 436; Kelley v. Peoples Nat. Fire Ins. Co. (1914) 262 Ill. 158, 104 N. E. 188, 50 L. R. A. (N. S.) 1164. See also 66 A. L. R. 1175.
Suppose an insurance agent should send a policy to A purporting to insure the property of A with whom the agent had had no previous dealing, and A should retain the policy but ignore all requests for payment of premium and a loss should occur. Would such a policy render void a subsequent policy prohibiting additional insurance on the sane risk? See Fire Assn. v. Bonds (1926) 171 Ark. 1066, 287 S. W. 587.
The clause against additional insurance is violated if a certain amount of additional insurance is permitted, but a sum in excess of that amount is taken out. De Leach v. Aetna Ins. Co. (1908) 4 Ga. App. 746, 62 S. E. 473, Comment (1909) 7 Mich. L. Rev. 176.
For further cases upon the question generally see Comments (1930) 8 N. Car. L. Rev. 352, (1902) 12 Yale L. J. 108, and the Note 53 A. L. R. 1123.
A Michigan statute provides: "No policy of fire insurance shall hereafter be declared void by the insurer for the breach of any condition of the policy if the insurer has not been injured by such breach, or where a loss has not occurred