Sec 338a

Whether an insurance policy, covering several illustrated objects, one of which is illegal, is invalid in toio.

1 Yundt v. Roberts, 5 S. & R. 139; Duchman v. Hagerty, 6 Watts, 65 (overruling Ogden v. Miller, 1 Bro. 147); Chase v. Burkholder, 18 Penn. St. 48.

2 Frazier v. Thompson, 2 W. & S. 235; S. P. Hynds v. Hays, 25 Ind. 31; and see Warren v. Chapman, 105 Mass. 87. See contra, Deering v. Chapman, 22 Me. 488; Widoe v. Webb, 20 Oh. St. 431; overruling Doty v. Bank, 16 Oh. St. 133. Compare criticism of Mr. Wald, Wald's Pollock, 318. In Bixby v. Moor, 51 N. H. 402, it was held that there could be no quantum meruit recovery of wages when part of the work was illegal selling of liquor.

3 Warren v. Chapman, 105 Mass. 87. In Carrigan v. Ins. Co., 53 Vt. 418, it was held that while an insurance of liquors for illegal sale is invalid, in a case where the assured was a druggist, and only a small proportion of the property insured was liquor, and nothing of illegality appearing in the contract, or in the design in entering into it, and the contract being collateral to the occasional acts of unlawful selling, it is not invalid; and the nature and purpose of the insurance should be submitted to the jury, whether collateral to, or in aid of, a violation of law.

4 Supra, sec 291; infra, sec 352.

5 Brad way's Est., 1 Ash. 212.

depends upon the construction of the policy. If it appear from the policy itself, or from extrinsic facts, that the insurer took the risk as a whole, it not being adequately shown that he would have granted a policy for the objects separately, then the contract must fall as a whole. In such case fraud as to one item of the insurance covered by the policy avoids the whole contract,1 and so of material concealment as to one item,2 and so of any misrepresentation that goes to the whole contract.3 But a misrepresentation without fraud as to one article does not avoid as to others.4 The question ought to be, in such cases, was there such fraud as pervades the whole transaction, or, if not, were the objects insured so interdependent as to make the representation made as to one an inducement for granting a policy on the other? If there be no fraud attempted, and if the objects insured are so independent of each other that a separate policy for each would probably have been granted if applied for, then it is hard to say why a misstatement as to one object should prevent a recovery for the others.5 - So far as concerns avoidance by subsequent alienation, it may be held that where the premium is entire, and the objects insured are contiguous, subject to the same risks, an avoidance as to one of the objects avoids as to all; though it is otherwise when the objects are separately assessed and are not reciprocally dependent.6 On a policy thus in insurance policies.

1 Lovejoy v. Ins. Co., 45 Me. 472; Gould v. Ins. Co., 47 Me. 403; Gotts-man v. Ins. Co., 56 Penn. St. 210; Moore v. Ins. Co., 28 Grat. 508, 524. See Bowman v. Ins. Co., 40 Md. 620. To the same effect see Cashman v. Ins. Co., 5 Allen, N. B. 246; Clement's Ins. Dig. 92.

2 Gore Ins. Co. v. Samo, 2 Can. Sup. 411; Friesmuth v. Ins. Co., 10 Cush. 587; Smith v. Ins. Co., 25 Barb. 497; though see contra, Lochner v. Ins. Co., 17 Mo. 247; 19 Mo. 620.

3 Bowman v. Ins. Co., 40 Md. 620; Richardson v. Ins. Co., 46 Me. 394; Barnes v. Ins. Co., 51 Me. 110; Friesmuth v. Ins. Co., 10 Cush. 587; Hinman v. Ins. Co., 36 Wis. 159; Schur-milsch v. Ins. Co., 48 Wis. 26. See May on Ins. 2d ed. sec 277, and discussion in 25 Alb. L. J. 224.

4 Phoenix Ins. Co. v. Lawrence, 4 Met. Ky. 9; Burrill v. Ins. Co., 1 Edm. Sel. Ca. 233; Kowley v. Ins. Co., 3 Keyes, 557; Koortz v. Ins. Co., 42 Mo. 126. But Gottsman v. Ins. Co., 56 Penn. St. 210, tends to the position that mere misrepresentation as to a single article avoids.

5 To this effect see also Koortz v. Ins. Co., 42 Mo. 126; Daniel v. Robinson, Batty, 650; May on Ins. sec 189, 277; Wood on Ins. sec 328.

6 Friesmuth v. Ins. Co., 10 Cush.

divisible, it has been held that subsequent alienation of a portion of the property insured, though in violation of a limitation of the policy, does not avoid it as to the property not alienated.1 It is otherwise when the objects insured are interdependent.2 - In New York, in 1878, where a policy covered $6000, divided in specific insurance on buildings and several articles of personal property, it being provided that if the property should be incumbered by mortgage it should be void, and where a mortgage was given covering the buildings, it was held that the contract was not entire, but was divisible; and that the breach of the condition did not apply to the items not embraced in the mortgage.1 On the other hand, it has been held that a policy for "$1000, say $700 on books and $300 on music," with the clause that if the assured should thereafter make any other insurance on the property the policy should be void, unless notice should be given, is vitiated throughout by a second insurance without notice as to any one of the items insured.2

589. In this case the court said: "The contract of insurance on the part of the defendants was not distinct and separate on each class or subject em-braced in the policy. It was separate and distinct so far only as to limit the extent of the risk assured by the defendants on each kind of property. In other respects it was an entire contract. This is manifest from the fact that the premium and deposit are designated as entire sums without any reference to the different kinds of property covered by the policy on the separate sums insured in each. There is nothing in the application or policy from which it can be ascertained how much of the deposit note was made up of the rate of insurance charged on the real estate, and how much of that on the personal property. The consideration of the contract was regarded by the parties as an entirety, of which they did not contemplate a separation or apportionment. It was in consideration of the entire sum for which the deposit note was given, and the liability of the assured to assessment on that amount in case of losses, that the defendants assumed all the risks contained in the policy. They had the right to look to their lien on each and all the different kinds of property insured by them for the security of the whole amount of the deposit notes.".

1 Quarrier v. Ins. Co., 10 W Va. 507; Commer. Ins. Co. v. Spankneble, 52 111. 53.

2 In Fire Ass. v. Williamson, 26 Penn. St. 196, there were three adjoining houses insured in one policy for a specified sum each, with a stipulation against the storing of gunpowder. In one of the houses gunpowder was subsequently stored. It was held that this vitiated the whole contract, which the court held was indivisible. "Although," said Knox, J., "three buildings were insured, the contract was an entirety, and as the cause of the injury to the three buildings was identical, it is of no consequence whatever in which of the three it had its origin." The loss occurred through the explosion of the gunpowder thus improperly stored. But had the buildings been separate, this reasoning would not apply. And the true ground of the decision in such case should be not the indivisibility of the contract, but the fact that the loss was attributable to the plaintiff's negligence in not preventing his tenant from thus perverting the use of the building. As holding that the appropriation of one of several buildings to a hazardous prohibited use vitiates as to the whole, see Lee v. Ins. Co., 3 Gray, 583; Kimball v. Ins. Co., 8 Gray, 33; Associated Firemen's Ins. Co. v. Assum, 5 Md. 165; and cases cited May on Ins. sec 277; though it is admitted that it would be otherwise if there were two distinct policies. Franklin Ins. Co. v. Brock, 57 Penn. St. 74.