SECTION V.

OF OPEN AND OF VALUED POLICIES.

A.-Of Open Policies.

As wager policies are now void both in England and in this country, the insured must have at risk some interest in the subject of insurance. (q) This may be any legal or equitable interest whatever, if it be such that the peril against which the insurance is made, would cause a pecuniary loss to the insured by its immediate and direct effect. (r)

If the policy does not state the value of the property insured, as agreed upon by both parties, this value must be proved by evidence after the loss occurs. Such a policy is called an OPEN

POLICY.

A policy may be made and delivered which as yet covers no property; because it may provide that the property to be insured under it shall be defined and ascertained by statements to be subsequently and at various times indorsed upon the policy. (s) Such a policy is sometimes called an open policy, but more often a "running policy." The insured by such a policy has no right to make an indorsement which conflicts with the body of the policy. (t) It has been held, that these indorsements are to be regarded as so many contracts of insurance;

(q) Amory v. Gilman, 2 Mass. 13; Stetson v. Mass. Ins. Co. 4 Mass. 336; Lord v. Dall, 12 Mass. 118; King v. State Ins. Co. 7 Cush. 10; Alsop v. Commercial Ins. Co. 1 Sumner, 464. By statute 19 Geo. 2, c. 37, wager policies are made illegal.

(r) Lucena v. Craufurd, 5 B. & P. 302; Craufurd v. Hunter, 8 T. R. 13; Stirling v. Vaughan, 11 East, 619; Hancox v. Fishing Ins. Co. 3 Sumner, 140; Fireman's Ins. Co. v. Powell, 13 B. Mon. 311; Waters v. Monarch Ins. Co. 5 Ellis & B. 870; Wilson v. Martin, 11 Exch. 684; Rice v. Tower, 1 Gray, 426.

(s) Langhorn v. Cologan, 4 Taunt. 330; Neville v. Merch. Ins. Co. 17 Ohio, 192; Newlin v. Ins. Co. 20 Penn. State, 312;

Ralli v. Janson, 6 Ellis & B. 422, 36
Eng. L. & Eq. 198.

(t) Entwisle v. Ellis, 2 H. & N. 549. But the insurers may agree to alter the terms of the contract by the indorsement. Kennebec Co. v. Augusta Ins. Co. 6 Gray, 204. Though it seems that if the indorsement alters the policy, the fact that the underwriters piace their initials to the indorsement is not conclusive evidence of their assent to the alteration. Entwisle v. Ellis, supra. The policy and the indorse ment should be construed together unless they cannot be reconciled, in which case the indorsement should govern. Protection Ins. Co. v. Wilson, 6 Ohio State 553.

and generally speaking, the insurers, by an open policy on merchandise to be shipped by a certain route, are obliged to insure all shipments made to the insured by that route, if duly in dorsed, with due information to the insurers of the circumstances they are entitled to know. But it is also true, that the language of the policy may show that the contract is not an absolute one, but that the underwriters can elect in each case whether to take the risk or not. (u)

B.- Of Valued Policies.

Where the value of the property insured is agreed upon by the parties, and this value is stated in the policy, usually or always by the phrase "valued at $," such a policy is called

a VALUED POLICY.

This valuation is final and conclusive upon both parties. (v) It must not, however, make the policy a wager policy, which it would do if the property so valued had no real value. (w) But all maritime property, and merchandise far more than the ship,-may have very wide limits, within which a valuation may be honest and valid.. And after much adjudication on the subject of valued policies, it may be said, that a mere exaggeration of a real and an actual value, if it was not enormous and out of all proportion to the fact, would not avoid. the valuation. (x) It is, however, certain that a valuation intended to cover an illegal interest, or to insure illegally in respect to the peril, (y) or made fraudulently, would be void; (2) and an excessive over valuation might be evidence of fraud. (a)

(u) New York Ins. Co. v. Roberts, 4 Duer, 141; E. Carver Co. v. Manuf. Ins. Co. 6 Gray, 214; Hartshorn v. Shoe & L. Dealers Ins. Co. 15 Gray, ; Orient Ins. Co v. Wright, 23 How. 401; Sun Ins. Co. v. Wright, id. 412; Edwards v. St. Louis Ins. Co. 7 Misso. 382; Douville v. Sun Ins. Co. 12 La. An. 259.

(v) Hodgson v. Mar. Ins. Co, 5 Cranch, 100, 6 Cranch, 206; Miner v. Tagert, 3 Binn. 204; Coolidge v. Gloucester Ins. Co. 15 Mass. 341; Feise v. Aguilar, 3 Taunt. 506.

(w) Lewis v. Rucker, 2 Burr. 1171;

A valuation in one policy has no influence in determining the value of the same thing, as it is insured by other insurers. (b)

If an insured owns only a certain proportion or share of the property insured, a general valuation will be held to be a valuation of that share, (c) unless otherwise stated or implied in the policy. (d) But if the valuation be of goods, all of which are included in the valuation, and a part only is put on board and at risk, the valuation applies to that part only pro rata. (e) The policy may provide for any of these cases; but without such provision, a valuation of the whole subject-matter will be regarded as a valuation of the insured's whole interest in it, including the premium he pays. (f)

The valuation is often applied to a ship, and not unfrequently to the freight, or to the cargo; and sometimes to an insurance of profits under that name, although more frequently the profits are included in a valuation of the goods. (g) If freight be valued, the valuation is held as that of the freight of a full cargo; and where a part only is at risk, the valuation applies only pro rata.(h) If profits are valued, and the goods are lost, the English courts seem to require proof that there would have been some profit, had they arrived safely, and then the valua tion comes in. (i) Our courts, however, hold, that the loss of goods carries necessarily a loss of profits, and the valuation of profits then takes effect, without any evidence that there would have been any profits. (j)

(b) Higginson v. Dall, 13 Mass. 96. (c) Feise v. Aguilar, 3 Taunt. 406. (d) Dumas v. Jones, 4 Mass. 647; Mayo v. Maine Ins. Co. 12 Mass. 259; Murray v. Columbian Ins. Co. 11 Johns.

302.

(e) Forbes v. Aspinall, 13 East. 323; Wolcott v. Eagle Ins. Co. 4 Pick. 429; Clark v. Ocean Ins. Co. 16 Pick, 295; Mutual Ins. Co. v. Munro, 7 Gray, 249.

(f) Brooks v. Oriental Ins. Co. 7 Pick 259; Mayo v. Maine Ins. Co. 12 Mass. 259; Minturn v. Columbian Ins. Co. 10 Johns. 75.

(9) See cases supra, p. 362, note (g) (h) Forbes v. Aspinall, 13 East, 323; Wolcott v. Eagle Ins. Co. 4 Pick. 429. (i) Hodgson v. Glover, 6 East, 316. (j) Patapsco Ins. Co. v. Coulter, 3 Pet.

222.

SECTION VI.

OF DOUBLE INSURANCE.

That is a double insurance, where, by different policies, the same interest of the same parties in the same subject-matter, is insured against the same risks; and it is over-insurance if the whole amount insured by all the policies exceeds the whole value of the property insured.

The marine policies of this country usually contain a clause which however varied, has, and is intended to have, this effect; that if there be any prior insurance, the insurer shall be liable only for so much of the property as the prior insurance leaves uninsured. (k) Possibly the law might now construe successive policies without this clause; but the clause was introduced because it seemed then to be law, that all the policies attached to all the property pro rata. And if either insurer paid the whole loss, or more than his proportion, he might recover from the other insurers the share they were bound to pay.

If policies are simultaneous, they certainly attach to the whole property all at once and all alike; (7) and they are sometimes expressly declared to be simultaneous that they may so attach. But if this be not expressly declared, and the policies bear date on the same day, the court will inquire into fractions of the day, in order to ascertain which is prior and which is subsequent; and only when this cannot be ascertained would they be held to be simultaneous. (m)

Priority under this clause, means priority in effecting the insurance, and not priority in the beginning of the risk; and for this purpose, the contract may be shown to have been made at another time than its written date. (n)

(k) Whiting v. Independent Ins. Co. 15 Md. 297; Peters v. Delaware Ins. Co. 5 S & R. 473; American Ins. Co. v Griswold, 14 Wend. 399.

(1) Potter v. Mar. Ins. Co. 2 Mason,

475; Wiggin v. Suffolk Ins. Co. 18 Pick. 145.

(m) Cases in preceding note and Brown v. Hartford Ins. Co. 3 Day, 58.

(n) Lee v. Mass. Ins. Co. 6 Mass. 208.

If the first policy covers the whole property for a part of the time during which the second policy should attach, the first policy is suspended until the second policy ceases to attach, and then the first policy attaches. (0)

If many policies attach to property when they are made, and the property is afterwards diminished in value below the amount of them all, the weight of authority seems to be in favor of discharging the latest policy, then the one next before it, and so on as the property lessens. (p) But doubts have been expressed on good reasons, whether if there be a diminution in the property after all the policies have attached, this diminution should not be distributed among them all, pro rata. (q)

If policies provide, as they sometimes do, that they shall be null and void, if any other insurance on the same property be made, unless notice thereof is given to the company, and the same is mentioned or indorsed upon the policy, (r) and such other insurance is made, and not notified, this clause will not take effect if this other insurance be void from any cause. (s) And although there is not in general any double insurance, if the insurances are made by different parties on different interests, in the same subject-matter, (t) yet if two or more persons are insured jointly on the same property, and the policy provides that it shall be void in case of subsequent over-insurance, this clause takes effect if either of the insured make this over-insurance. (u)

Policies sometimes contain special clauses and provisions in respect to the effect of double insurance or over-insurance; (v)

(q) Am. Ins. Co. v. Griswold, 14 Wend. 399, per Tracy, Senator; 2 Phillips Ins. § 1261. See 2 Parsons, Mar. Law, 98, where this question is discussed at length.

(r) Pendar v. Am. Mut. Ins. Co. 12 Cush. 469.

(s) Jackson v. Mass. Ins. Co. 23 Pick. 418; Hardy v. Union Ins. Co. 4 Allen, 217; Clark v. New England Ins. Co. 6 Cush. 342; Jackson v. Farmers Ins. Co. 6 Gray, 52; Stacey v. Franklin Ins. Co.

2 Watts & S. 506. But see Carpenter v. Providence Ins. Co. 16 Pet. 495.

(t) Godin v. Royal Exch. Ass. Co. 1 Burr. 489; Warder v. Horton, 4 Binn. 529.

(u) Mussey v. Atlas Ins. Co. 4 Kern. 79. (v) As that the policy is void in case of a subsequent insurance unless the insurers are notified of it with all reasonable diligence. Mellen v. Hamilton Ins. Co. 5 Duer, 101, 17 N. Y. 609. Or, unless such insurance is assented to by the underwriter. Hale v. Mechanics Ins Co. 6 Gray, 169.