insured had exchanged cars until after the accident.
"If a company insures against loss by fire occurring on Blackacre, it is obvious that it is under no obligation for a fire on Whiteacre simply because the owner of Blackacre, previous to the fire, exchanged that property for Whiteacre. The policy in suit indemnified the insured against liability imposed by law by reason of the use of a specified automobile, and no liability occurred from such use. The injury to the plaintiff occurred while Stone was driving an uninsured car. The indemnity is from damages caused by the use of specified property. Whatever the defendant company did nor did not do with respect to the premiums on the policy covering the car not involved in the accident is immaterial. The company never asserted that it did not insure the risk in the operation of the 1929 car, but it did assert, as it had a right to do, that it had never written a policy covering the use of the 1931 car. In fact, it was not requested to insure such risk until after the accident occurred."
It is equally clear that liability under the policy could not be transferred to cover the newly acquired motorcycle without the knowledge and consent of the defendant. Nor would the fact that an adjuster of the defendant stated to the plaintiff's representative and the assured that the defendant did not intend to deny coverage operate to create such liability. The adjuster had no authority to bind the defendant by any such statement since the policy provided that "An agent has no authority to change this Policy, or to waive any of its provisions.* * * No change whatever in this Policy, and no waiver of its provisions, shall be valid unless an endorsement be added hereto, signed by either the President, a Vice-President, the Secretary or an Assistant Secretary of the Company, expressing such change or waiver." Nor could these representations form the basis for liability by estoppel. In this connection the following language of Mr. Justice Bodine in Root v. Lumber Mut. Casualty Insurance Co., supra, is peculiarly applicable (at page 125 of 116 N.J.Law, 182 A. 627, 628):
"The policy in suit specifically provides that no changes should be made therein, except by endorsement signed by the president or one of the vice presidents and by the secretary or assistant secretary. Mere statements by a so-called 'resident representative in New Jersey,' without proof of his authority, could not be the basis for an estoppel against the assertion of a defense predicated upon the clearly expressed terms of the instrument itself. Further, had it been legally possible, in spite of the provision of the policy to vary the terms of the writing by parol, still there is nothing to indicate that the insured in any legal sense altered his position by reason of the assertion by the representative that the company would protect him. The loss had been incurred. He was promptly notified that the company disclaimed all liability, and he was afforded full opportunity to defend himself. The bare assertion by a representative whose authority was not shown that an insurance company would take care of an uninsured loss could not amount to a waiver of the fundamental requirement that the company's policies be in writing duly signed, nor could the company thereby be estopped from asserting that its liability was fixed by the terms of its contracts and not by the vague assertions of a so-called resident representative."
We do not consider the fact that the defendant's policy in suit was issued after the sale of motorcycle which it covered to be material. This policy was but a renewal of the prior policy issued when the motorcycle in question was owned by the assured, and in the absence of notice of the sale defendant was entitled to assume that the motorcycle insured remained in the assured's possession. The policy was issued by the defendant under a mistake of fact for which the responsibility rests with the assured and it was therefore void. This is not a case of a mere discrepancy in the machine numbers or description of the vehicle covered by the policy, or is it a case where the identity of the vehicle so covered is disputed. Consequently St. Paul Mercury Indemnity Co. of St. Paul v. Long (C.C.A.) 85 F.2d 848, and the other cases cited by the plaintiff have no application. Here it clearly appears from the plaintiff's statement that the defendant's policy definitely described a motorcycle which was not involved in the accident in question.
Our conclusion on this question finds ample support in the opinion of the Circuit Court of Appeals for the Fourth Circuit in Claverie v. American Casualty Co. of Reading, Pa., supra. That was the case in which that court held the plaintiff in the present case liable to indemnify the assured for the damages paid to Alonzo, the party injured in the accident. The court placed the plaintiff's liability squarely upon the ground of estoppel, arising from the fact that it had indorsed its policy to cover the new motorcycle shortly after the accident and had defended the assured during the entire litigation brought by Alonzo. The court held that this conduct gave rise to an estoppel which precluded the insurer from making the defense upon which it might otherwise have relied. It is not contended, however, that any of the defendant's actions have estopped it from setting up the same defense. Consequently, the grounds upon which the plaintiff was held liable on its policy do not apply to the defendant. The Circuit Court of Appeals clearly indicated that the plaintiff would not have been liable had it not been for its conduct which gave rise to the estoppel. We therefore conclude that the plaintiff has failed to lay the necessary basis for its claim to contribution by the defendant.
But even if it should be held that the defendant was liable to the assured upon its policy it does not follow that the plaintiff would be entitled to contribution in this action. Each of the policies in question contained a "co-insurance" clause providing was follows: "If the named Assured carry any other insurance covering concurrently a claim covered by this Policy, he shall not recover from the Company a larger proportion of any such claim than the sum hereby insured bears to the whole amount of valid and collectible concurrent insurance." Under this clause the obligations of the plaintiff and defendant upon their respective policies, if valid, were separate and independent. Each would be liable for one-half of any claim, and, if either should voluntarily pay more than its proportionate share, it would not be entitled to contribution from the other. Southern Surety Co. v. Commercial Casualty Ins. Co. (C.C.A.) 31 F.2d 817. As was said by Judge Thomson in the opinion of the District Court, affirmed per curiam in the case just cited [at page 819 of 31 F.2d]:
"It is a fundamental principle that in order to create a right of contribution, the plaintiffs must have been legally liable to pay, and must have actually paid under compulsion and obligation, that for which both plaintiffs and defendant were equally liable. This does not sufficiently appear by the averments of the bill taken in connection with the three contracts, the interpretation as to the true meaning of which is a question of law for the court."
It follows that if, as the plaintiff contends, the defendant was liable upon its policy the plaintiff was only liable for one-half of the claim. Its failure to interpose the defense of coinsurance to the remaining half of the claim in the suit by the assured against it must either have been a voluntary act on its part or in effect an admission that the defendant was not liable on its policy, and that coinsurance, therefore, did not exist. In either case no right of contribution from the defendant could arise.
The questions of law raised by the affidavit of defense are decided in favor of the defendant, and, since they dispose of the whole of the plaintiff's claim, judgment may be entered for the defendant.
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