No. 68.

#### North British & Mercantile Ins. Co. v. Steiger.

This was a suit upon an insurance policy. The case having been once before this court, a reference to the opinion there filed as found in 13 Brad well, page 482, will give the facts necessary to an understanding of the case. In the view the court takes, it will be unnecessary to notice but one of the large number of questions raised and elaborately discussed by counsel, and that arises upon the following clause in the policy sued upon1: “ If the assured shall have or shall hereafter make any other contract of insurance, whether valid or not. on the property insured, or any part thereof, without the consent of the company written hereon, * * * then and in every such case this jiolicy shall become void.” The policy was dated October 6, 1881, and permitted other concurrent *654insurance to the extent of $1,500. There was another policy issued by the German American Insurance Co. upon the same property, dated upon the same day, to the amount of $1,150. On the 13th day of March, 1882, appellee procured a policy in the Hamburg Magdeburg Fire Insurance Company upon the same property for the sum of §1,000. These three policies were all existing and uncanceled up to the destruction of the property insured, which occurred upon the 16th day of April, 1882. Procuring these policies in excess of the amount allowed was clearly a violation of the policy issued by appellant, and would render it void unless waived. As to the policy existing at the time, the court does not feel warranted in ignoring the finding of the jury, that there had been a waiver, but the court finds no evidence even tending to show that appellant or its agent ever knew of the existence of the policy issued in March, 1882, until after the destruction of the fire. No waiver being shown, the procuring of such policy was a violation of the conditions of the one sued upon. Counsel for appellee assumes in his argument the existence of the Hamburg Magdeburg policy at the date of the one sued upon, and as it may be possible that this record does not disclose the true state of facts concerning it, the cause is remanded.

Opinion filed Feb. 25, 1886.

Beversed and remanded.

Attorneys, for appellant, Messrs. Palmer, Robinson & Shutt; for appellee, Messrs. Bradley & Bradley.

Opinion by

Conger, J.

Judge below, J. A. Creighton.