to allow the insured to recover his insurance even though there is a cloud on the title.

As to mortgages, it must be noted that these need not be disclosed unless the property is personalty. A curious construction to the foreclosure provision has been given by certain courts. This policy reads, "if, with the knowledge of the insured, foreclosure proceedings be commenced." They have held that to invalidate the policy, the knowledge must precede the commencement of proceedings, and if the knowledge does not exist until after the commencement, this clause does not affect the validity of the policy."2

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57. Other insurance. It is now generally provided that the policy shall be void, "if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy without agreement indorsed hereon or added hereto." The objection to other insurance is based on the danger of over-insurance. Over-insurance is a very strong incentive to arson.

The expression, "whether valid or not," was not inserted until after many courts had held that the first policy was not avoided if the second was invalid; for example, because the latter contained a clause making the second itself void if there was any other insurance on the property when the second was issued. Other courts had held that the first became void as soon as the second was issued, and therefore recovery was allowed on the second.

02 North British & Mercantile Ins. Co. v. Freeman, 33 S. W. (Tex. Civ. App.) 1091.

It is obvious that the other insurance, to be of consequence in this connection, must cover the same character of loss. Fire insurance would not be invalidated by tornado insurance not embracing fire losses.63

Another phrase which was hit upon only after much litigation is, "in whole or in part." Before this provision was inserted it had been held that there was no other insurance within the meaning of this clause unless it covered identically the same property.

Suppose that the owner of an undivided half interest in a house insures his interest and then the other half owner insures his half, have we a violation of this clause? It is held that this is no violation, since separate interests are insured. This is equally true where mortgagor and mortgagee insure their interests separately.**

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58. Co-insurance.-Co-insurance exists when more than one valid policy covers the same loss. For example, A insures his $3,000 house with B for $1,000 and with C for $1,500. In such a case, in the absence of any stipulation to the contrary, A may recover the full amount of a loss of less than $1,000 from either B or C, and let them look to each other for contribution. However, it is frequently provided in the policy that A can hold each liable only for his pro rata share.

Regardless of the rule in marine insurance, it is well settled that where A insures his $3,000 house

63 Australian Agr. Co. v. Saunders, L. R. (1875) 10 C. P. 668 (Eng.). 64 Home Ins. Co. v. Koob, 24 Ky. Law Rep. 223, 58 L. R. A. 58.

with but one insurer, D, for $2,000, and the house is damaged to the extent of $1,000, A may recover the full $1,000 from D.65 At times there are inserted coinsurance clauses which require A, in such a case, to insure the property for as much as, for example, eighty per cent. If he fails to do this before the fire and a $1,000 loss occurs, D would be liable only for the amount for which he would have been ultimately liable in contribution if A had insured with another, E, up to the amount of eighty per cent.

59. Various forbidden increases of risk.-It is generally provided that the policy shall become void if the hazard be increased by any means within the control or knowledge of the insured. Whether or not there has been an increase of risk is a question of fact in each case, and is generally a matter for the jury to decide, under all the circumstances of the case. The courts have held, very properly, that to constitute an increase which will avoid the policy, it must be substantial and not of a highly temporary character.

It will be observed that the risk must be within the insured's knowledge or control. If literally construed, the storage of gunpowder or dynamite a half a mile from the premises insured, to the knowledge of the insured, might avoid the risk. To prevent such a result, one court has, rather arbitrarily, declared that the increase must occur upon property under the control of the insured; that is, upon the very premises of the insured.co

65 Wiggin v. Suffolk Insurance Co., 18 Pick. 145 (Mass.), 29 Am. Dec. 576. 66 State Ins. Co. v. Taylor, 14 Colo. 499, 24 Pac. 333.

The fact that the insured conducts himself negligently, even for a few minutes, may increase the risk and cause a fire. However, it is generally held that the negligence of the insured is one of the very things insured against. For example, where he used kerosene, on only one occasion, in his efforts to kindle a fire, recovery was allowed. But where the negligent use of kerosene becomes a habit and displays itself in the keeping of a jug containing crude petroleum in a room full of merchandise, it must be left to the jury to determine whether the risk has been materially increased.68

Making repairs. In several, though not all, of the standard policies, express provision is made for the avoidance of the policy "if mechanics be employed in building, altering, or repairing the within described premises for more than fifteen days at any one time." It is generally held that unless an express provision of this character is inserted in the policy, the making of repairs is not necessarily an increase of risk. Though in one case the court seized upon the word "mechanics," and held that common painters are not mechanics," in another case it was held that polishing woodwork and reburnishing fixtures, if continued for more than fifteen days, avoided the policy. This clause is designed to require the insured to get the permission of the insurer before commencing repairs of a very extensive character.

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67 Angier v. Western Assur. Co., 10 S. D. 82, 71 N. W. 761. 68 Williams v. People's Fire Ins. Co., 57 N. Y. 274.

69 Smith v. German Ins. Co., 107 Mich. 270, 30 L. R. A. 368.

70 German Ins. Co. v. Hearne, 117 Fed. 289, 59 L. R. A. 492.

Dangerous substances. It is provided, in the New York standard form, that the policy shall be void "if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above described premises, benzine, benzole, dynamite, ether, fireworks, gasoline, Greek fire, gunpowder exceeding twenty-five pounds in quantity, naphtha, nitroglycerine, or any other explosives, phosphorus, or petroleum or any of its products of greater inflammability than kerosene oil of the United States Standard (which last must be used for lights and kept for sale according to law, but in quantities not exceeding five barrels, provided it be drawn and lamps filled by daylight or at a distance not less than ten feet from artificial light).”

The phrase, "any usage or custom to the contrary notwithstanding," was inserted to avoid the ruling of the courts that if, for example, a printing office was insured, and if it was customary to use camphene in the business, a prohibition against camphene is of no consequence." It was held, in one case on this principle, that the insurance of a retail hardware store allowed the owner to keep dynamite on the premises.72 The insurance companies thought they would settle matters, once and for all, by inserting this clause that usage to the contrary is of no consequence. However, this provision has, apparently, not altered the situation a particle.

Two closely related reasons for the position of the courts on this matter have been suggested. (1) Writ

71 Harper v. N. Y. City Ins. Co., 22 N. Y. 441.

72 Phenix Ins. Co. v. Walters, 24 Ind. App. 87, 56 N. E. 257.