antee Mut. Fire Ins. Co., 80 Mo. App. 18), and the insured need not allege and prove the value of the property destroyed. Minneapolis Fire & Marine Mut. Ins. Co. v. Fultz (Árk.) 80 S. W. 576; Thompson v. St. Louis Ins. Co., 43 Wis. 459. See, also, City of De Soto v. American Guaranty Fund Mut. Fire Ins. Co., 102 Mo. App. 1, 74 S. W. 1; Trask v. German Ins. Co., 53 Mo. App. 625; Green v. Lancashire Ins. Co., 69 Mo. App. 429. But the petition must show that the property insured and that destroyed are identical (Summers v. Home Ins. Co., 53 Mo. App. 521). However, if the law give the insurer an option to rebuild, the value of the property is open to inquiry (Walker v. Phoenix Ins. Co., 62 Mo. App. 209); and, under a law 3 making the valuation of the agent "whose name shall be borne on the policy" conclusive on the company, a valuation by an agent whose name does not appear on a policy is not conclusive (Campbell v. Monmouth Mut. Fire Ins. Co., 59 Me. 430). But under a statute providing that property shall not be insured for more than three-fourths of its value, and that the value shall not be questioned in any proceeding, a company issuing a policy on property already insured in another company cannot, in an action on the policy, deny that the value of the property bears at least the proportion of four to three to the total insurance (S. E. Hanna & Co. v. Orient Ins. Co. [Mo App.] 82 S. W. 1115). The Iowa law merely makes the amount stated in a policy on a building prima facie evidence of value. Under this statute the insurance company can prove that the actual value of property destroyed was less than the amount stated in the policy; but it has the burden of proving such fact (Des Moines Ice Co. v. Niagara Fire Ins. Co., 99 Iowa, 193, 68 N. W. 600). And though the statute requires insured to prove the loss of the building and show proper notice of loss, it applies where proofs of loss have been waived (Scott v. Security Fire Ins. Co., 98 Iowa, 67, 66 N. W. 1054). But the statute does not apply to insurance on personal property. Joy v. Security Fire Ins. Co., 83 Iowa, 12, 48 N. W. 1049; Warshawky v. Anchor Mut. Fire Ins. Co., 98 Iowa, 221, 67 N. W. 237. An insurer cannot complain because the recovery on a policy governed by a valued policy law for a total loss was less than the amount fixed by the policy (Bammessel v. Brewers' Fire Ins. Co., 43 Wis. 3 Rev. St. Me. 1871, c. 49, § 18. 4 Rev. St. Mo. 1899, § 7979. • Code Iowa 1897, § 1742. 463); and where counsel for a company admitted the entire destruction of the property, and that the valued policy law was applicable, the company could not, on appeal, claim that the law did not apply because no policy was in fact issued (King v. Phoenix Ins. Co., 101 Mo. App. 163, 76 S. W. 55). In Rochester German Ins. Co. v. Schmidt (C. C.) 126 Fed. 998, it was held that where an averment that the value of the property insured was not agreed on at the time of issuing the insurance, as authorized by the South Carolina valued policy law, was admitted by demurrer, the law had no application. 5. EFFECT OF OTHER INSURANCE AND APPORTION- (a). In general. (b) Insurance constituting other or concurrent insurance. (c) Same-Identity of property insured. (d) Same-Identity of interest insured. (e) Apportionment of insurance. (f) Same-Compound and specific policies. (a) In general. In the absence of provisions to the contrary, there is no limit to the amount of insurance that may be taken out by an insured on his interest. He may insure again and again, but in case of loss he can recover only one indemnity, no matter how much insurance he has taken out. (Millaudon v. Western Marine & Fire Ins. Co., 9 La. 27, 29 Am. Dec. 433.) If insured holds several policies on the destroyed property, he may recover judgment against either set of insurers to the extent of the loss covered by their policies, leaving them to claim contribution from the others. If he recovers only a part of his loss from one set of insurers, he may recover the excess from the others, but only the excess, as he is entitled to but one indemnity. (Cromie v. Kentucky & Louisville Mut. Ins. Co., 15 B. Mon. [Ky.] 432.) However, if a loss amounts to more than the aggregate sum of all the policies, insured is entitled to recover the total amount assumed by each insurer. Ogden v. East River Ins. Co., 50 N. Y. 388; Pelzer Mfg. Co. v. Sun Fire Generally, a policy contains a provision limiting the insurer's liability, where insured has other insurance, to such proportion of the loss as the amount insured by the policy bears to the whole amount of the insurance on the property. If a policy contains a pro rata clause, insured cannot recover beyond the proportion specified (Howard Ins. Co. v. Scribner, 5 Hill [N. Y.] 298), where the total insurance exceeds the loss (German Ins. Co. v. Heiduk, 30 Neb. 288, 46 N. W. 481, 27 Am. St. Rep. 402). And the fact that a recovery is defeated on one policy does not affect the contribution clause of the other, nor increase the liability to the insured thereunder (Rickerson v. German-American Ins. Co., 6 App. Div. 550, 39 N. Y. Supp. 547). So, an insurer's liability to pay its proportionate part of the three-fourths of the value of the property insured, the extent to which the company could insure, is not affected by the fact that the insured has already received more than three-fourths of what is found by the jury to be the actual value of the property, by an adjustment with another mutual insurance company in which he held a policy upon the same property, which is not shown to have been issued prior to the policy in question (Bardwell v. Conway Mut. Fire Ins. Co., 118 Mass. 465.) But the principle of ratable apportionment is only applicable to cases where the insurance exceeds the loss. Therefore, if the loss is greater than the whole amount of the several policies, each insurance company is liable to pay insured the whole amount of its policy. Phillips v. Perry County Ins. Co., 7 Phila. (Pa.) 673; Lebanon Mut. Ins. An insurance company cannot set up, as a defense to an action on a policy issued for the whole amount of goods insured, a particular custom by which its liability on the policy was to be limited to such proportion of the loss as the amount insured by the policy bore to the whole sum of insurance on the property (Lattomus v. Farmers' Mut. Fire Ins. Co., 3 Houst. [Del.] 254). And a valued policy law precludes any deduction from the amount of a policy by reason of concurrent insurance to which insurer had consented (Western Assur. Co. of Toronto, Canada, v. Phelps, 27 South. 745, 77 Miss. 625). Under such a law the aggregate of all the policies is, in case of a total loss, to be taken as the true value of the property. Hence an insurer who assents to additional insurance is not entitled to have the recovery against it reduced to a pro rata share of the total 1 insurance, though it is so stipulated in the policy. (Barnard v. National Fire Ins. Co., 38 Mo. App. 106.) Each insurer is liable for the full amount of its policy, if the loss is total (Havens v. Germania Fire Ins. Co., 123 Mo. 403, 27 S. W. 718, 26 L. R. A. 107, 45 Am. St. Rep. 570). And even though a law which requires an insurer to pay the whole amount of its policy on a total loss provides that, in case there are two or more policies on the property, each policy shall contribute to the payment of the whole or partial loss in proportion, the liability of the insurer for the whole amount named in the policy, in case of total loss, is not affected by the fact that there are two or more policies on the property (Phoenix Ins. Co. v. Port Clinton Fish Co., 14 Ohio Cir. Ct. R. 160, 7 O. C. D. 468). In Mullaney v. National Fire & Marine Ins. Co., 118 Mass. 393, it was held that a provision in a policy making it void if the premises should be occupied for any purpose classified as more hazardous, in the annexed printed conditions, than that described in the application, did not have the force to incorporate in the policy a provision on the back thereof that, in case of other insurance, the insured should be entitled to recover no greater proportion of the loss than the sum insured bore to the whole amount of insurance, a statute (Laws Mass. 1864, c. 196) requiring conditions to be stated in the body of a policy. Though a policy provided that in case of additional insurance the loss should be apportioned with the other insurers, and the company's liability should be limited to two-thirds of the cash value of the property, yet it was held, in a case of a total loss which exceeded the total amount of the insurance, that the insurer was not entitled to have the loss prorated, as the limitation clause merely defined the insurer's maximum liability (Lebanon Mut. Ins. Co. v. Kepler, 106 Pa. 28). If an insured represents that the property is covered by other insurance in a certain way, he is estopped to assert that it was insured in a different way on adjustment of the liabilities of the insurers (McMahon v. Portsmouth Mut. Fire Ins. Co., 22 N. H. 15). But a condition that a loss shall be apportioned between the insurer and other insurers is not made inoperative by a waiver of a condition against other insurance in excess of a stated amount (Lycoming Mut. Ins. Co. v. Slockbower, 26 Pa. 199). 1 Rev. St. Ohio, § 3643. (b) Insurance constituting other or concurrent insurance. In adjusting a loss on a policy containing a pro rata clause, a question often arises as to whether or not other existing policies on the same property, the validity of which is questioned, constitute other or concurrent insurance which is to be taken into considera-. tion in determining the extent of the insurer's liability. It is the settled law that a policy which has become void by its own terms does not constitute other or concurrent insurance within the meaning of a general apportionment clause. Such is the doctrine of Leibrant & McDowell Stove Co. v. Fireman's But in Saville v. Ætna Ins. Co., 8 Mont. 419, 20 Pac. 646, 3 L. R. A. 542, it was held that a policy which has merely become voidable by a violation of its terms should be considered in apportioning a loss. And if a policy provides for an apportionment in case of other insurance, "whether valid or not," or "without reference to the solvency or liability of the other insurers," some courts take the position that the insured is bound by the condition, so that other insurance, even though invalid, must be taken into consideration in apportioning the loss. Reference may be made to London & L. Fire Ins. Co. v. Turnbull, 5 S. However, in some jurisdictions, it has been held that a policy which is void does not constitute other insurance, within the meaning of the condition. Parks v. Hartford Fire Ins. Co., 100 Mo. 373, 12 9. W. 1058; Galantschik v. Globe Fire Ins. Co., 10 Misc. Rep. 369, 31 N. Y. Supp. 32; Marshall v. Insurance Co. of North América, 10 Pa. Co. Ct. R. 87. In the Parks Case it was said that the words "valid or invalid," or "without regard to the liability of other insurers," refer to valid insurance, which, though in force at the time of the loss, may not constitute legal liability because of some breach of the terms of the policy or otherwise. Therefore, a void policy was not considered to be within the condition, and this opinion was shared by the court |