
    Charles J. Haas, Respondent, v. Home Indemnity Company, Appellant.
    (Argued December 2, 1936;
    decided December 31, 1936.)
    
      
      Daniel Mungall and Fred H. Rees for appellant.
    
      James W. Ryan for respondent.
   Per Curiam.

The policy upon which this action is brought provides broadly that the defendant will pay the assured for all loss of merchandise by robbery from a custodian. But it “ covers on two custodians while conveying property * * * it being agreed that the Company’s liability is limited to the sum of Five Thousand Dollars ($5000.00) on each custodian.” The policy, however, was issued and accepted as excess insurance only, and upon the express condition that if the assured should fail to carry other insurance against the same kind of loss, in the amount of at least Ten Thousand Dollars ($10,000.00) on each custodian,” in the Fidelity and Deposit Company of Maryland, then the insurance in question should be null and void. The assured did not comply with the condition in two respects: (a) The policy of primary insurance which it carried was not in the specified company; and (b) it was only in the amount of $10,000 on one “ truck,” and not in the amount of $10,000 on each custodian.” If we disregard the failure in respect to the particular insurer, we are still left with a material failure in respect to the amount of coverage. There is a distinct and substantial difference between primary insurance limited to $10,000 and primary insurance which, under given circumstances, might amount to $20,000; and the given circumstances existed here under the undisputed evidence of plaintiff’s own witness. The truck when robbed was in charge of two custodians within the policy definition. There is no evidence to support any other conclusion.

The judgments should be reversed and the complaint dismissed, with costs in all courts.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Judgments reversed, etc.  