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Thus apportioned the total insurance would then be distributed as follows:
A few words may be necessary to explain why $8,000 of insurance on dry goods is divided into $4,000 for the general policy and $4,000 for other insurance. As stated above, $4,000 of the general policy applies to dry goods. There happens, however, to be another policy of $6,000 on boots and shoes and dry goods available, but we saw that $2,000 of the general policy applies to boots and shoes, consequently leaving available $4,000 of the $6,000 as protection for the dry goods. Consequently, if we add this $4,000 other insurance to the $4,000 under the general policy, we obtain the $8,000 insurance on dry goods valued at $10,000. In the same way the amount of insurance on the other items is ascertained. Having ascertained the amount of insurance to be allotted to each item, it is then simply a question of applying the contribution clause of the standard fire policy, i.e., each policy is to pay the loss in .the proportion that its insurance bears to the total insurance on the item.
But some difficulty may arise if the amount of loss on the dry goods, let us say, happens to be total, or $10,000. Then it is apparent that the foregoing rule of apportioning the general policy will not fully indemnify the insured, a contingency which we saw the courts always seek to avoid. Some other method of apportionment must therefore be found in order to give full indemnity. Under such a contingency, as Judge Ostrander explains, a reapportionment of the balance of the blanket insurance may be resorted to until the insured shall be paid his whole loss. In other words, if a
loss of $10,000 occurs on dry goods a deficit of $2,000 remains to be made up. The question now is, how much insurance still remains untaxed? We saw that only $4,000 of the general policy of $8,000 has been taxed, thus leaving $4,000 untaxed, and we also saw that $2,000 of the $6,000 policy on "boots and shoes and dry goods" still remains untaxed. In all, therefore, $6,000 of insurance exists which has not yet been taxed, and which is, therefore, available to cover the $2,000 deficit.
$4,000 of general policy left
$2,000 of the policy on boots and shoes and dry goods.
Applying the contribution clause we then find that the general policy fairly pays that proportion of the $2,000 deficit which its portion untaxed, $4,000, bears to the total insurance untaxed, $6,000, or two thirds; while the other policy fairly pays the balance of the $2,000 deficit, or one third.
In passing judgment on this method, Judge Ostrander explains that "strong objections may be urged against this rule in many cases, although the principle on which it rests would seem to be unassailable.'' He goes on to say that, "on the other hand, much may be said in favor of the dictum that the blanket must pay,'' chiefly because the company issuing such policy has neglected to preserve its rights as it might have done, and as has been done by the company having the specific policy; and there are reasons why it should not be allowed to claim any benefits, because of the incidental fact that it finds a specific policy on some portion of the property where, in the absence of such other insurance, it would properly be obliged to follow, and pay the whole loss, up to the full amount for which it was written.'' CHAPTER XII
PROVISIONS OP THE POLICY WHICH APPLY AFTER A LOSS HAS OCCURRED
The provisions of the fire-insurance policy fall into two general classes, separated by the fact of the loss. While all provisions of the policy are to be considered as binding upon the parties to the contract, they are not, for purposes of legal interpretation, treated as equally important. In fact, nearly one fourth of the standard fire policy consists of provisions which concern matters that are required to be done by the insured after the main fact—a loss—has taken place. In the main the courts have regarded these provisions more leniently than those which concern matters required to be done before a loss has occurred. Where doubt as to the meaning exists, the provisions are usually construed favorably to the insured, and the courts are also more easily satisfied as to the existence of a waiver. The provisions which apply after a loss has taken place may be grouped under three distinct heads, viz.: (1) those defining "notice of loss" and "proof of loss"; (2) those providing for the exhibition of records and the examination of the insured; and (3) those relating to the appraisal of the loss in case of disagreement.
Notice of Loss and Proofs of Loss.—The provisions of the standard policy relating to the giving of notice of the loss and the furnishing of the proof is the following:
"If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon; and, within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of the loss thereon; all incumbrances thereon; all other insurance, whether valid or not, covering any of said property; and a copy of all the descriptions and schedules in all policies; and changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of fire; and shall furnish, if required, verified plans and specifications of any building, fixtures, or machinery destroyed or damaged; and shall also, if required, furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify.'' Almost without exception, it is a requirement of insurance policies that, when a loss occurs, the insured shall give "immediate" notice in writing. Some policies specify a definite time within which notice must be given, as five days or ten days, and in such cases, if the insured neglects to comply with the terms of the condition, he will be doing so at his peril. The courts have recognized the reasonableness of requiring the insured to give "immediate" notice of a loss to the insurer. Prompt notice enables the company to take effective measures toward lessening the loss by properly protecting against further injury such merchandise or other property as may have been partly destroyed or left exposed. Immediate notice of the loss will also enable the company to learn the essential facts which surround the origin of the fire, thus preventing the removal or concealment of evidence which would tend to show fraud.
The expression '' immediate notice of loss,'' however, has been given a reasonable construction by the courts. In many cases where immediate notice of loss could not be furnished at once because of good reasons, the courts have protected the insured. Thus, in the case of Kentzler vs. American Mutual Accident Association (88 Wis., 589), the court said: "A contract should not be construed so as to forfeit or render nugatory the rights of one of the parties to it, unless the language employed imperatively requires such construction. In other words, an interpretation which gives effect is preferred to one which makes void. "Immediately" cannot be given the meaning of instantly, but to make good the deeds and interests of parties, it shall be construed 'such convenient time as is reasonably requisite for doing the thing.'" A great many other cases have been rendered to the same effect, in some cases it being held that thirty days' delay is not too long because of a good excuse, whereas in other cases a delay of six or seven days was regarded as too long because no good reason for the delay could be offered.
Also as regards the furnishing of proofs of loss the courts have upheld the provisions of the policy, where they could be easily complied with; but where this could not be done, have refused to construe the same strictly. Proofs of loss are necessary to enable the company to determine the extent of the loss, and to ascertain whether the insured complied with the terms of the policy. Yet there are many circumstances which the courts have accepted as sufficient to excuse the policy-holder from submitting the proofs of loss in the form or within the time required by the policy. Nor do the courts regard proofs of loss, although sworn to, as conclu