Cooney

This action was instituted against Robert J. Cooney, a citizen of California, doing business as Allied Enterprises, by Atlantic Mutual Insurance Company, a New York corporation, as assignee and subrogee of Army and Air Force Exchange Service, a government instrumentality. National Union Fire Insurance Company, a Pennsylvania corporation, intervened pursuant to leave of court.

Cooney is an export packer, who packages goods for export. Exchange was one of his customers. On August 15, 1952, Cooney and Exchange entered into an export packing agreement whereby Cooney agreed, “pursuant to purchase orders to be issued” by Exchange, “to receive merchandise from delivering carriers or vendors and to pack and perform all other necessary work * * * ”. Purchase orders were thereafter issued by Exchange to Cooney, and Cooney began doing a substantial amount of export packing for Exchange.

The contract of August 15, 1952, provided in paragraph 7:

On October 16, 1953, a fire (which started on adjoining premises and did not involve any negligence on his part) occurred at Cooney's warehouse and destroyed over $350,000 worth of Exchange merchandise, which Cooney had in his possession for…

On Petition for Rehearing

Appellees Robert J. Cooney and National Union Fire Insurance Company have filed a petition for a rehearing en bane, specifying six grounds therefor, which will be considered in order.

(1) Appellees contend that the court failed to consider the point that Cooney is entitled to be treated as an “insurer” under California law and paragraph 30(A) of the Atlantic policy providing that “in the event the interest insured is covered by other insurance the loss shall be recoverable under the several policies in the order of the date of their attachment * * * ”. (Emphasis supplied.) This provision, in our opinion, obviously refers only to insurance policies issued by other insurance companies.

(2) It is next contended that Atlantic should be barred because it did not follow the provision of paragraph 30 (C) of its policy that pending collection from a carrier or bailee who might be liable therefor, Atlantic “agrees to advance as a loan such amount which would be a claim under this policy if it did not contain this warranty, repayable only to the extent of any net recovery from such carrier or bailee”. This paragraph does not specifically refer to subrogation. If…