merchants, the books of the latter will often furnish a check upon his statements.

If the insured absents himself so that he cannot with due diligence be found, this amounts to a refusal to be examined on oath, and after a partial examination, a refusal to continue. will have the same effect.' But if the company concludes its examination it cannot give a fresh notice, and open up a new hearing.2

Whether the conduct of the insured, upon the examination, amounts to a disobedience of the injunction of this clause, may be a question of fact for a jury.3

The company must demand an examination within a reasonable time, and must not wait until an action has been brought against it under the policy.

In the examination the insured is only bound to answer such questions as have a material bearing upon the insurance and the loss.5

Logically, the sufficiency of the examination, and the relevancy of the questions asked, should be for the court. But, in practice, the courts are very reluctant to dismiss the complaint on such grounds, and generally leave the question of reasonable compliance to the jury, provided the insured has submitted to any sort of an examination.

The Massachusetts policy contains no such provision.

§ 162. Appraisal.-In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, etc.

This is called the appraisal or arbitration clause, and is very important to the companies in many instances to relieve them from extravagant or fraudulent claims.

Courts are the legally appointed tribunals for determining controversies, and are jealous of interference with their prerog

1 Bonner v. Home Ins. Co., 13 Wis. 677. Harris v. Phoenix Ins. Co., 35 Conn. 310.

? Moore v. Protection Ins. Co., 29 Maine, 97; s. c., 48 Am. Dec. 514. Phillips v. Protection Ins. Co., 14 Mo. 220.

3

Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315.

Titus v. Glens Falls Ins. Co., 81 N. Y. 410. Ins. Co. v. Weides, 14 Wall. 375.

6

North Am. Life & Acc. Ins. Co. v. Burroughs, 69 Pa. State, 43; s. c., 8 Am. Rep. 212.

atives. Any agreement to refer to arbitration the general question of the liability of the insurers under the policy, or all matters of dispute under the policy, is void; for it is held to be against public policy to oust the courts altogether of their jurisdiction.1

An arbitration clause providing that there shall be two arbitrators and an umpire, without specifying expressly who shall appoint them, has under a strict construction been held invalid. But the provision of the New York standard policy which simply refers to appraisal the question of the amount of loss, leaving any dispute in regard to the company's liability to be determined by the courts, is valid, and a compliance with it is a prerequisite to any right of recovery in an action upon the policy. A statute in Vermont provides otherwise.

By strict construction against the company, it has been held that an arbitration clause somewhat similar to that in the standard policy is only applicable to property partially injured and cannot be held to cover property totally destroyed.3 Of course the framers of the policy did not intend to have such a distinction made. Evidence relating to property totally destroyed can be presented to arbitrators as well as to courts; with the difference, that juries are generally prejudiced in favor of the insured, and arbitrators are likely to be fairly disinterested. If the arbitrators go outside the matters submitted to them for determination, their appraisal will not be binding.

If the two appraisers agree, they may act without calling in the umpire.5

The Massachusetts standard policy has an appraisal clause substantially the same, except that it is silent as to the expenses of the appraisal, and provides that neither party shall be re

1 Delaware & H. Canal Co. v. Penn. Coal Co., 50 N. Y. 250. Reed v. Washington Ins. Co., 138 Mass. 575. Clement v. British Am. Assur. Co., 141 Mass. 298. Hurst v. Litchfield, 39 N. Y. 377. Scott v. Avery, 20 English Law & Eq. 327; s. c., 5 H. L. Cases, 811.

2 Seward v. City of Rochester, 109 N. Y. 164. Hamilton v. Liverpool, L. & G. Ins. Co., 136 U. S. 242.

quired to choose or accept any person as referee who has served as a referee in any like case within four months.

§ 163. Enforcing Contract is no Waiver.-This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, etc., relating to the appraisal or examination; and the loss shall not become payable until sixty days after the notice of ascertainment, estimate, and satisfactory proofs have been received, including an award by appraisers when appraisal has been required.

As has been noticed, the courts in some instances have been disposed to construe as a waiver of a known cause of forfeiture any demand for an appraisal or examination of the assured or the appraisal ;1 but this clause of the policy allows the company to pursue the contract methods for ascertaining the character and extent of the loss before exercising its option to decide whether or not it will contest the claim of the insured. And the provision that the loss is not payable until after the award by the appraisers makes it clear, under the decisions of the courts, that a compliance with the appraisal clause is not simply directory, but is a condition precedent to any right of action under the policy.

The Massachusetts standard form does not contain this clause.

$164. Pro Rata Clause: Other Insurance.-Shall not be liable for greater proportion of any loss than the amount hereby insured shall bear to whole insurance, whether valid or not, or by solvent or insolvent insurers; and the extent of the application of the insurance under this policy, or of the contribution to be made by this company, may be provided for by agreement attached hereto.

This provision relates to double or other insurance which has been already defined, and not to insurances of different interests though upon the same property."

1 Morley v. Ins. Co., 85 Mich. 210 (1891). Hamilton v. Home Ins. Co., 137 U. S 370 (1890).

55 N. Y. 222; s. c., 14 Am. Rep. 239. Acer v. Merchants Ins. Co., 57 Barb. 68. Titus v. Glens Falls Ins. Co., 81

2 McMaster v. Ins. Co. of North Am., N. Y. 415.

Thus, if a mortgagor insures his interest, and a mortgagee, either by a separate policy or by a mortgagee clause attached to the mortgagor's policy, insures his interest on the same property, there is no double or other insurance. But if the mortgagor's policy is simply made payable to the mortgagee without a mortgagee clause, and the mortgagor should take out another policy upon the same property and against the same risk, it would constitute a case of double insurance.1

The object of this clause of the policy is to prevent circuity of action. Without it, in any case of double insurance, as we have seen, the insured might bring his action against any one company for the whole amount of loss up to the extent of the policy, leaving the co-insurers to settle their respective obligations under the equitable doctrine of contribution. But under the limitation of this clause, the insured can sue one company only for its ratable proportion of the loss, and therefore the right of contribution among the co-insurers becomes available to them only in case of over-insurance.

If one company pays to the insured either more or less than its proper share, the other companies are still liable to the insured for the amount of their respective obligations as fixed by their own contracts respectively."

When the different policies contain similar terms, and are concurrent, there is little difficulty in dividing the loss proportionately among them; but when the policies cover in part the same, and in part different property, and contain different and inconsistent provisions applicable to the one loss, it may readily be seen that it is simply impossible to adjust the loss in strict conformity to the requirements of their repugnant conditions. The problem of adjusting such losses often becomes one of grave perplexity and difficulty, and is not always understood by the judges, who, no matter how learned they may be in the law, are often insufficiently familiar with the business of insurance and the science of mathematics to be able to master the situation even to their own satisfaction.

The Missouri court, in a case of this character, summed up

1 Hine v. Woolworth, 93 N. Y. 75. Van Alstyne v. Etna Ins. Co., 14 Hun, 360. Hastings v. Westchester Fire Ins. Co., 73 N. Y. 141.

2 Conn. Fire Ins. Co. v. Mer. & Mech. Ins. Co., 15 Ins. L. J. 615 (Va. Apl. 15, 1886).

the reasons for the conclusion at which it had arrived in an apportionment of loss between insurance companies, in the following words: "We are strengthened in this conclusion by the fact that F. L. Ridgely and George K. McGunnegle, who have very great experience in the business of underwriting in St. Louis, having been consulted in reference to this case, concurred in recommending the same adjustment.”1

A practical insurance man has given a number of rules, more or less inconsistent with one another, which have been prepared by various persons in the trade to aid in arriving at a proper adjustment by contribution.2

The same writer says: "The contribution clause, like contribution under the old form, is held to be operative only between the companies in case of double insurance, and between policies containing it; and then only when the concurrent insurance exceeds the general loss.

The lia

bility of co-insuring companies under this clause is based upon the degree of concurrency of the policies, and is restricted to the ratable proportions of the loss, within the amount of the concurrent insurance; though some of the policies may cover other property in addition to that destroyed, or protect specific items not embraced in any of the others."

The questions arising under this clause are so frequently settled by the companies in an amicable adjustment that the scope of this book will not admit of an elaborate discussion of the subject; but certain principles may be named which the courts have endeavored to apply in the settlement of inconsist ent provisions contained in the various policies.

1. The different policies are placed as far as possible upon an equality, and special conditions and limitations in one policy are not brought over into another policy.

2. The object of the contribution clause is construed to be the restriction of the amount recovered from each insurer to its equitable contributory share, and must not be permitted to operate so as to reduce the aggregate amount of indemnity which the insured might otherwise recover. No arrangement

'Angelrodt v. Del. Mut. Ins. Co., 31 Mo. 598.

2 Griswold's Fire Underwriters' Text Book, pp. 745 et seq.

9 Griswold's Fire Underwriters' Text Book, p. 713.

Howard Ins. Co. v. Scribner, 5 Hill, 298.