PAGE et al. v. SUN INSURANCE OFFICE

PAGE et al. v. SUN INSURANCE OFFICE. (Circuit Court, D. Minnesota, Fourth Division. November 5, 1894.) Insueawce — Prorating- Loss. Where property is covered by both a specific and a compound policy, each containing a provision that the company shall not be liable for a greater proportion of any loss than the amount insured bears to the whole insurance, the full amount of the compound policy .is available for its due proportion. Action by Edward S. Page and others against the Sun Insurance Office on a fire policy. In this case plaintiffs, lumber dealers at Anoka, Minn., held four policies of insurance for $2,500 each, of which the defendant issued one, on the westerly block of their lumber yards. They also held policies, amounting to SfO.OOO, covering llio lumber on both the easterly and westerly blocks. A loss occurred, solely upon tlie westerly block, to the amount of $30,982.02; and tlie only question to bo determined is as to tlie contribution to be paid under the several policios. It is agreed that, the values before tlie tiro were 842,3(58.4(5 on the westerly block, and $10,727.00 on the easterly block which was not damaged. All tlie policies were of tlie Minnesota standard form, a.nd contained tlie following clause: “This company shall not bo liable under this policy for a greater proportion of any loss on the described property than the amount hereby insured shall bear- to the whole insurance * * covering such property.” Plaintiffs contend that tlie $40,000 compound policies are available for the payment of the loss on the westerly block, only in the proportion that the valúa Hon of the westerly block bears to the combined valuation of both blocks; or, in oilier words, that amount is to he obtained by adding together tlie valuations of each block, dividing the $-10,000 by that, sum, and multiplying the dividend by $42,3(18.-10, which gives the amount of $28,577.95; and it is stipulated that, if tins view be correct, defendant is liable for 82.002.5G. On the other hand, defendant Insists that the whole $40.000 is available, and it is agreed that, if tills rule is to be applied, the defendant is liable for only $1,519.10, and for this sum it has offered judgment. Kuciiiiiei-, Faimilei-oy & Bearles, forplainiills. Kitchd, Gohen & Bkaw, for defendant. [MAJORITY — NELSON, District Judge] NELSON, District Judge (after stilting tlie facts). Under this clause in the Minnesota standard policy, which is the contract governing the case, the limitation of liability is for a proportionate part of the whole insurance covering the property; and the stipulation. exempts tlie defendant from any greater liability than a part of the loss, to be measured by the whole amount insured. This rule, it seems to me, must be applied whether the other insurance is by specific or compound policies. There is no intimation in the clause that compound or floating policies covering the same and other property sire not to be considered as part of tlie whole insurance covering such property. Let judgment be entered for plaintiffs in the sum of $1,5-19.10.