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JONES v. PROTECTION MUT. FIRE INS. CO.

October 16, 1950

JONES
v.
PROTECTION MUT. FIRE INS. CO. of CAMBRIA COUNTY. JONES v. COMMONWEALTH MUT. FIRE INS. CO. of PENNSYLVANIA



The opinion of the court was delivered by: FOLLMER

These are actions on policies of fire insurance. The cases were tried together before the Court and without a jury. On the basis of the pleadings and the evidence produced at the trial, I make the following

Findings of Fact.

 1. The plaintiff is a citizen of the State of Missouri.

 2. Both defendants are Pennsylvania corporations have their principal places of business in Pennsylvania.

 3. Both defendants were authorized to do business in Pennsylvania only.

 4. Commonwealth Mutual Fire Insurance Company of Pennsylvania (hereafter referred to as 'Commonwealth') issued its policy No. A 53624, effective April 24, 1947, countersigned by Charles T. Easterby, Agent, in an amount not exceeding $ 12,000, being pro rata of a total coverage of $ 17,000, covering property described as a one story approved roof frame building, occupied by Sikeston Tent and Awning Company, and located 'South of Highway No. 61, on part of U.S. Private Survey No. 1062, Township 24, Range 14, New Madrid County, Missouri, Just (sic) Highway from City Limits of Sikeston, Missouri.'

 6. Protection's policy also carried the following endorsement, dated May 12, 1947,

 'In consideration of the rate at which this policy is written, it is understood and agreed that this policy shall be a contributing excess policy.

 'It is warranted that at all times there will be carried $ 5,000.00 primary insurance which shall be exhausted before liability commences under this contract.

 'In the event of a loss exceeding $ 5,000.00, then this policy shall be pro rata contributing insurance with all other insurance in force for such portions of the loss as is in excess of $ 5,000.00'

 7. Both policies were issued to Sikeston Tent and Awning Company.

 8. On May 25, 1947, by endorsements attached to each policy, both signed by Charles T. Easterby, Agent, it was agreed and understood that the policies were amended to show the correct assured as being Paul Jones, Jr., instead of Sikeston Tent and Awning Company.

 9. The endorsements on both policies were made effective as of April 24, 1947, the original date of the issue of the said policies.

 10. The endorsement on Commonwealth's policy provided 'All other terms and conditions remain unchanged.'

 11. The endorsement on Protection's policy provided 'Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, provisions, agreements or limitations of the undermentioned Policy, other than as above stated.'

 12. It was the intention of all parties, the plaintiff and both defendants, to insure the building owned by the plaintiff and located on the southeast side of Highway No. 61 on a part of U.S. Private Survey No. 1032, Township 24, Range 14, New ...


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