CJornpU Ham i>rVol ICibtary Cornell University Library KF 1155.3.139 The Indicator's digest of insurance deci 3 1924 019 309 339 M\\ Cornell University B B Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019309339 .THE INDICATOR'S DIGEST. . OF INSURANCE DECISIONS. FIRE, LIFE, ASSESSMENT LIFE, ACCIDENT, ' MARINE AND MISCELLANEOUS. Contains a Digest of Over Twenty-three Hundred Cases, Classified by Topics and Conven- iently Indexed for Ready Reference- DETROIT) MICHk F. H. LEAVENWORTH PUB. CO- 1899 Entered according to Act of Congress in the year 1899, by F. H. Ii2 LOAN 312 LOSS ; . . . . 312 PARTNERSHIP 313 POLICY 313-317 PREMIUMS v' 317-325 PREMIUM NOTE 325-326 12 CONTENTS. PROCEEDS 327-328- PROFITS 328-32& PROOFS OF LOSS 329-830 :pBBATE 330 RECEIVER 330 RBOOVBRY 331 RENEWAL i 331-332 REPRESEijS'TATIONS 332-334 RESCISSION 334 SALE 334 SECURITIES 335 STATUTES 335-336 -SUICIDE 336-340 SURRENDER OF POLICY 340-341 SURRENDER VALUE .341-342 TAXATION 342-343 TRANSFER 343 VALUE 343 WAIVER .344-345 WARRANTY ; 345-347 WIFE : 347-348 WILL ....:.... 348 ASSESSMENT LIFE. ACTION 349-351 AFFIDAVIT 351 AGE 352 . AGENT .1 352-353 AGREEMENT 353-354 APPLICATION 354-357 ASSESSMENT 357-369 ASSIGNMENT 369-371 BENEFICIARY .' 371-382 . BOUNTY 382 BURDEN OF PROOF. , .. 383 BY-LAWS 383-385 CERTIFICATE 385 388 CONTRACT 388-389 CO-OPERATIVE 389 DEATH 389-391 DEFAULT 391 DELIVERY 392 DUES 392-394 EMBEZZLEMENT 395 . ENDOWMENT • 395-396 EVIDENCE 3 0-8M7 EXPULSION 398-399 FORFEITURE 400-405 FOREIGN COMPANIES 405-40/- FRATERNAL SOCIETIES 408-40" FRAUD 409-410 FUNDS 410 FUNERAL BENEFIT 411 HEALTH 411-412 HEIRS ■ ■■ 412 INJUNCTION ■ ■ 412 CONTENTS. 13 INSOLVENCY 413-415 INSUKABLE INTEREST ; 415 INSURANCE COMPANY 416 INTOXICATION 416 LIABILITY ^ 416-417 XIEN 418 MEDICAL DIRECTOR 418 MEMBERS 419-421 occrrATiON 421-422 POLICY 422-424 PREMIUMS 424-426 PROCEEDS 426-42T PROOFS OF DEATH 427-428 RECEIVER 429 REINSTATEMENT 429-431 REINSURANCE 43i REJECTIONS 432 EELATIONSHIP 432 RELIEF 433 REPRESENTATION 433-434 RESER"\E FUND 434-435 SICK BENEFITS 435-436 SUICIDE 436-437 SUSPENSION 437-438 STATUTES 438-439 WAIVER 439-440 WARRANTY 440-441 ACCIDENT INSURANCE. ACTION .441-442 AGENT 442-443 APPLICATION 443-444 ARBITRATION , 444 ASSESSMENTS .444-446 ASI'UYXIATION 446 AUTOPSY 446 BENEFICIARY 447 BURDEN OF PROOF 447-448 €ARRIERS' INDEMNITY 448 CLASSIFICATION 449 CONTRACT 449-451 DEATH 451-454 DEFAULT 455 DISABILITY 455-456 DISEASE 456 EMPLOYMENT 457 EXAMINATION 457 EXPOSURE 457-458 EXTERNAL 458-459 EVIDENCE 459 JFOREIGN COMPANY 460 FORFEITURE .460-461 FUNDS 460 GAS 462 HAZARD 462-463 INCORPORATION 463 INDEMNITY 463 14 . CONTENTS. INSURABLE INTEREST 464 INTENTIONAL INJURIES 464 INTOXICATION •- -. 464-'16» LIABILITY : 465-466 LIMITATION 467 NEGLIGENCE .....'. 468 NOTICE • • 468-469- OCCUPATION 469 PAROL EVIDENCE 4/0 POISON 470 PROOFS 471 POLICY 471-478 REPRESENTATION 478 REINSTATEMENT 478-479 SHOCK 479 STATUTE 470-480 SUICIDE 480-482 TIME 482 VOLUNTARY EXPOSURE 482-4&1 WAIVER 484 MARINE INSURANCE. ABANDONMENT 485-486 ACTION 487 ADVANCES 487-488 AGENT 488 APPLICATION 489 AVERAGE 489-492 BARRATRY 492 CANCELLATION 492-493 CARGO 493-494 CHARTER 494-495 COMPROMISE 495-496 CONTRACT 496-497 DAMAGE 497-498 DEMURRER 498 DESTINATION 498 FOREIGN COMPANY 499 FRAUD 499 HARBOR ' 500 INSURABLE INTEREST 500-501 INSTRUCTIONS ' ' 501 LIABILITY ■.'.■.■.■.■.■.■.■.■.501-502 J-IEN 502-508 mortgagor;:::::;:::;:::::::::::::.: °^^1o5 NEGLIGENCE :.^;.^.^.'.^.^.'.^.V.'505-506' REc^RY^ •;.•.■.■:;;:::::::::::::-:.;: ■ '""S? reinsurance t^n ^10 REPAIRS 512^iq representation ^tq RISK ^ll SALE .•.•.■; Ill SEAWORTHINESS '"■514 ^1^ STRANDING 51„1^ SUBROGATION ; ::.:.' .'.■.■.■.■.■.■ .'.■.■. 516 CONTENTS. 15 TAXATION 517 TITLE ;;;.■.■.■■.;;;;;;:: si? TOTAL LOSS 517-518 TOWAGE 518-519 USAGE 519 VALUED POLICY ■;.■.".■ 520 WAIVER 520-521 WARRANTY 521 MISCELLANEOUS. ACTION 522-523 AGENT 523-526 APPLICATION 526-527 APPRAISEMENT 527 ARTICLES 527 ASSESSMENTS 528 ASSIGNMENT 528-530 ATTACHMENT 530 BOND 530-531 BY-LAWS 531 CAPITAL 531-532 CARRIER 533 CHARTER 532 CLAIM 533 CONTEMPT 533-534 CONTRACT 534-536 DEBTS 536 DELIVERY 536 DEPOSITS 537-538 DIRECTORS 538 EMBEZZLEMENT . 538 EMPLOYER 539-540 EXAMINATION 540 EXEMPTION 540 EXPLOSION 541 FEES 541 FOREIGN COMPANY 541-547 FORFEITURE 547 FRAUD 547-548 GARNISHMENT 548-549 GIFT 549-550 INCUMBRANCE 550 INJUNCTION 550 INSOLVENCY 551 INSURABLE INTEREST 552 INSURANCE 552-553 INSURANCE COMMISSIONER ■ 553 INTEREST 553-554 .JURISDICTION ; • . ..554-555 JUDGMENT CREDITOR 555 LIABILITY 555-558 LIBEL 559 LirENSE 559-560 LIENS 5B0-561 LIMITATION 562- LOSS 562-563. -«6 CONTENTS. MOETGAGBE ." 563-564 MUTUAL 564-565 NAME 565-566 NEGLIGENCE ; 566 NOTE ; 566-567 PLEADING 567 POLICY 567-571 PREMIUMS 571-572 PROCEEDS 572-573 PROOFS OF LOSS 573 PROXIMATE CAUSE 573 RECEIVER 574 RECOVERY 574 REFEREE 575 REFORMATION 575 REMOVAL OF SUIT 575-576 REPRESENTATIONS 576 RIGHT OF COMPANY 576 SALE 577 SECURITIES 577-578 SERVICE OF PROCESS 578-579 SICKNESS 579 STATUTES 579-580 SUING 580 SURETY 581 TAXATION 581-583 TITLE 583-584 TORNADO 584 TRUST FUND 584 TRUSTEE ' 585 "WAIVER 585-586 ^VARRANTY 586-587 INDICATOR'S DIGEST. FIRE INSURANCE ACTION. ACTION OX INSUKANCE POLICY.— In an action on an in- surance policy the company claimecl that the insured was not the owner of the premises on which the burned buildings were located. The insured claimed title through a deed made from his wife in 1SS4. Evidence that the printed blank on which the deed was written was not printed until 18SS, and that his wife died in 1884, support a finding that the deed was a forgery. Ryan vs. EocMord Ins. Co. (Supreme Court of Wis), 55 N. W. Rep., 1025. ACTION ON IXSLTRANCE POLICY.-In an action on an In- surance policy, though the court, Avith the consent of counsel, ar- ranges to submit to the jury on the questions whether the insured voluntarily caused the fire, and whether the use of the property was changed after issuance of the policy so as to avoid it, it is within the court's discretion to allow the insured to rebut evidence that in her proofs of loss, she concealed the use made of the prem- ises, by testimony that she told the company's agent, before the issuance of the policy that she intended to so use them. (Bullman vs. North British & Mercantile Ins. Co. (Supreme Court of Mass), 34 N. E. Rep., 169. WHEN SECOND ACTION ON POLICY IS A CONTINUA- TION OF FIRST.— Un^er the Iowa code, providing that, if the plaintiff in an action fail for any cause except negligence in its prosecution, and he brings a new suit within six months there- after, the second suit shall be deemed a continuation of the first, where an action was brought on a fire insurance policy which provided that suit be brought in one year after loss, and owing to a mi.9take in the description of the property in the policy, then first discovered, plaintiff filed a substituted petition, asking for a reformation, and within six months obtaining a reformation be- gan another action on the policy, the last action is to be deemed a continuation of the first, and is not barred because not brought within the time limited in the policy. Jacobs vs. St. Paul Fire & Marine Ins. Co. (Supreme Court of Iowa), 53 N. AV. Rep., 101. i8 INDICATOR'S DIGEST. ACTION OX STANDARD INSURANCE POLICY— Though the statutes declare void all insurance policies containing other or different terms than those expressed in the Michigan standard policy, it is no defense to an action on a policy by an insured that it contains a clause not contemplated by the act as the pur- pose of the act is to protect policy-holder. Armstrong vs. Western Manufacturers' Mut. Ins. Co. (Su- preme Court of Mich.), 54 N. W. Rep., 637. ACTION FOR LOSS OF HAKVBSTING MACHINE.— In an action on a lire insurance policy on a harvesiting machine while operating in the grain fields, and in transit from place to place in connection -with harvesting, in a certain county, it appeared that the machine vi^as moved, the day after the policy was issued, from the place where it had been stored since the previous har- vesting season, to a blacksmith shop, to be repaired in order to flU contracts for cutting grain. While near such shop, eight days after being taken thereto, and about the day the harvesting season commenced, the machine was burned. It was not operating in grain fields, or in transit from place to place in connection with larvesting, at the time it was destroyed. Mawhinney vs. Southern Ins. Co. (Supreme Court of Gal.), 32 Pac. Rep., 945. SUFFICIENCY OF COMPLAINT.— A complaint which alleged that defendant was a domestic corporation; that plaintiff was the owner of certain property; that, in consideration of the payment of a certain premium, defendant made a policy of insur- ance on such property; that thereafter said property was destroyed by fire; that plaintiff's loss thereby was a certain sium; that within sixty days from the time of the loss plaintiff furnished defendant with proof thereof, and otherwise performed all the conditions of the policy on his part; and that defendant had not paid such loss, or any part thereof, stated a cause of action, and was not subject to demurrer. Modigan vs. West Coast Fire and Marine Insm-ance Company .(Supreme Court of Washington), 28 Pac. Rep., 1027. SUFFICIENT ANSWER IN ACTION ON FIRE I'OLICY.- In an action on a fire policy by the assignee of the insured, cred- itors of the insured were on their petition made defendants, and filed an answer stating that they had filed suit in a foreign state against the assignor for the amount due them, and had garnished the insurance company; that such suit was still pending; that the money due from such company was due to the assignor, and not to his assignee; that no legal assignment had been made prior to the commencement of their proceedings in garnishment; that the pretended assignment was made to defraud the creditors; and that such assignor was insolvent. The answer of creditors prayed that the action be dismissed, etc. The Appellate Court of Indiana held that such answer was insufficient, either as a plea In bar, or as a cross-complaint to recover judgment against the assignor, or to set aside the transfer by him to the assignee who lirought the suit. Estey vs. Barnes, 42 N. E. Reporter, 1118. ACTION. 19 PREMATURE ACTION ON rOLICl'.— Where a policy pro- Tided that, in case of disagreement as to the amount of lossj ai'bi- tration should be had, that no action should be brought by the as- sured upon the policy until after an award lixing the amount of the claim, and further provided that such an award should be a condition precedent to an action. Such provision was legal and en- forceable, and the bringing of an action on the policy before arbi- ti-atlon and award was premature. Kahnweiler vs. Phenix Ins. Co., of Brooklyn (Circuit Court D.. of Kan.). oT Fed. Rep., 562. ACTION AG.AINST NON-RESIDENT INSURANCE COM- PANY. — Application for iusiurance was made to an insurance broker in Memphis, Tenu., who applied by mail and telegram to one N., another insurance broker in Cincinnati, Ohio, for the same insurance. N. procured policies fi-om companies having no office nor agents in the State of Tennessee, forwarded the policies to the broker at Memphis, and shared with him the commissions on the premiums. N. was agent for one of these companies at Cincinnati, but he neitlier had authority to appoint, nor did it appear that he had appointed sub-agents at Memphis. No other transactions by defendant companies in Tennessee were shown. Defendant com- panies were not ''doing business " in Tennessee, or "found" or resi- dent there, so as to render them liable to subtituted service, or to service upon the Memphis brokers. Romaine vs. Union Insurance Co'mpany( Circuit Court, W. D. Tennessee), 55 Fed. Rep., 751. ACTION ON FIRE INSURANCE POLICY.— A petition on a flre insurance policy alleged inat on a specified date, in considera- tion of S20, paid by the insured, the company made a policy of insurance, thereby insuring him against loss by fire to the amount of .Sl.OfK^. on his stock of groceries; that at the time of making such Insurance, and from then until the fire hereinafter mentioned lie had an insurance interest in the property, as its owner, to the value of .?2,500; at'jl that on a specified date the stock was de- stroyed by fire. The petition alleged a subsiisting contract of in- surance at the time of the loss, and a breach thereof. Hartford Fire Ins. Co. vs. Kahn (Supreme Court of Wyom- ing 1, S± Pac. Rep., 895. RIGHT OF ACTION ON INSURANCE POLICY.— The sta- tute of limitations does not commence to run against the right of action on an insurance policy until after that right of action accrues, and. where a policy provides that any difference between the company and the insured shall be submitted to arbitration, and that no action shall be maintained on the policy until after an award, a right of action does not arise, if there is a difference between the parties, untU after arbitration and award, unless the company shall have specifically and formally waived such arbitration. The mere failure of either party to demand arbitra- tion does not waive it, and the statute of limitations does not commence to run unless there is either an award or a waiver, under such a clause in the policy. Hutchinson vs. Liverpool & London & Globe Ins. Co, (Su- preme Judicial Court of Massachusetts), 26 N. E. Rep., 439. 20 INDICATOR'S DIGEST. ACTION AGAINST NON-RESIDENT COMPANY.— Under the provision of the laws of West Virginia (Ch. 123, Code) a non- resident insurance company may be sued on a policy in the county where the property insured was situated, or in any county iu which such company does business, or in which it has estate or debts due it, or in which the cause of action, or part thereof, arose. The word "may" giving- the insured alternative privilege, and being "mandatory' upon him as to any place under the conditions named. Carson vs. Phoenix Ins. Co. (Sup. Ct. App. W. Va.), 23 S. E. Eep., 552. ACTION ON FIRE INSURANCE POLICY.— In an action on a fire Insurance policy, providing that immediate notice of loss should be given, with full statement of particulars and amount of loss, and that any fraud should work a forfeiture, an answer alleging that the company specifically excepts to the insured's notice of proof of loss, because it Is false and untrue in respect to quality, quantity and value of the property insured, and in respect to the amount of loss, does not give notice that fraud was charged, or that a forfeiture would be claimed. Greiss vs. State Investment & Ins. Co. (Supreme Oourt of California), 33 Pac. Rep., 195. WHAT MUST BE SHOWN IN ORDER TO RECOVER ON FIRE POLIOY.— In an action on an insurance policy to recover a loss by fire, the insured must state and prove that the proofs of loss were furnished within the time required, and in sub- istantial eompliance with the terms of the policy, or that such conditions have been waived by the company; and if at the trial there is a total failure to prove either that such proofs were duly made, -or that they were waived, it is the duty of the court, on proper motion, to dismiss the case. State Ins. Co. v.s. Belford (Gt. App., Kas.), 42 Pacific Rep., 409. ACTION FOR MONEY DUE FROM INSURANCE BY TWO CLAIMANTS. — In an action between two claimants, of money due on account of a loss by fire, it appeared that, in consideration of .$20,000, the plaintiff conveyed the Insured premises to defendant and took back a lease for one year, at a rental of .$1; that defendant gave plaintiff an option to purchase at the end of the year for $20,- 000 and stipulated interest, that, at the end of the term, plaintiff paid the interest, and the arrangement was renewed for another year; and that the latter remained in possession all the time, and had the premises insured, pursuant to the contract, for defendant's benefit. After the fire, which occurred during the second year, plaintiff paid the $20,000 and interest, and the latter reeonveyed the premises. At the time of the fire, defendant held only the legal title in fee, subject to the equitable interest in plaintiff, and on the exercise of the latter's option to repurchase, its interest related back to the beginning of the transaction, and entitled it to the in- surance money. People's Street Railway Company of Luzerne County vs. Spen- cer (Supreme Court of Penn.). 27 At. Rep., 11.3. ACTION. 21 THE SUPREME COURT OF VERMONT HOLDS, That in an action on a policy of insurance, tlie insured must allege an insurable interest in himself at the time the policy was Issued and also at the time of the loss. Diekerman vs. Vermont Mut. Fire Ins. Co., 30 At. Rep., BOS. WHERE SUIT ON INSURANCE POblOi" MAY BE BROUOHT. — An action on a policy of insurance is personal in its nature, and may be brought wherever service may be had on the company. Service of proofs of loss on a general agent of an in- surance company Is service on the company. Insurance Co. of North America vs. Simons, 41 N. W. Rep., 991. ACTION ON POLICY IN IOWA.— The Supreme Court of Iowa holds that the law of that State, providing that where a party, after commencement of an action, fails to prosecute It for any reason other than negligence, a new suit brought within six months shall be deemed a continuation of the fiTst, does not apply where the action first commenced was prematurely brought and dismissed for that i-eason. Heusinkveld vs. Cap. Ins. Co., 64 N. W. Rep., 59i. JOINDER OF ACTIONS IN SUITS AGAINST INSURANCE COMPANIES.— Under the statute providing that several causes of action arising out of contract may be united in one complaint when they affect all parties to the action, and do not require different places of trial, where a person was insm-ed in several companies, and each policy limited the amount of his recovery to the proiwrtion of the loss which the policy should bear to the total insurance, it was proper, in an action to recover for a loss, to make each company a party defendant. Pretzfelder vs. Merchants' Ins. Co. (Supreme Court of North Carolina), 21 S. E. Rep., 302. ACTION BY ASSIGNEE OF CLAIM.— An insurance com- pany issued a policy through M., who applied for same as agent of the insured, and M., after receiving the premium, credited it to the agent of the company. Afterwards, in pursuance to the order of the company to its agent, the latter directed M., as agent of insured, to cancel the policy; and it was agreed by M., who was authorized to issue policies for the defendant company, that the latter should take the risk, and a policy was accordingly issued, placed on the register and reported to the defendant com- pany. After loss, defendant company directed M. to cancel the policy issued by it, and the policy In the plaintiff company not having been cancelled, it paid the insurance, and took an assign- ment from insured for his claim against the second company. The court held that the liability of the latter to the insured, if any, by reason of its agreement to take the risk, and the plac- ing of the policy on its register, could not be enforced by the first company in its own name, notwithstanding the assignment. Merchants' Ins. Co. v. Union Ins. Co. (Sup. Ct, 111.), 44 North- eastern Reporter, 409. 22 INDICATOR'S DIGEST. PARTIES TO ACTION ON INSURANCE POLICY.— The owner of the insurance policy trans lerrecl it to another to col- lect the amount due, and apply it to certain debts of his due such party and others. It was held, that the transfer created a trust for the benefit of the insured, who was properly joined with the transferree in an action to recover on the policy. Alamo Fire Ins. Co. vs. ISchmitt (Court of Civil Appeals of Texas), 30 S. W. Rep., 833. RESTRICTING RIGHT TO SUE IS AGAIxViST PUBLIC POLICY.^A provision in an insurance policy that no action ^all be brought on it by the insured, except against the attorneys in fact representing all of the insured, is against public policy, as ousting the courts of jurlsdiiction. Knorr vs. Bates (Common Pleas of New York City and County, Special Term), 33 N. Y. Sup. Rep., 691. ACTION ON POLICY FOR FIRE INSURANCE.— In an ac- tion upon a policy insuring building, machinery, dyn.inios, and other electrical fixtures of an electric company, it appeared that the fire produced a short circuit in the wires connecting with the machinery in a part of the building remote from the fire, and that such short circuit caused such a strain on the machinery as to break it down. The fire was the direct cause of the damage to the machinery. Lynn Gas & El. Co. vs. Meridan Fire Ins. Co. (Supreme Court of Mass.), 33 N. E. Rep., 690. TECHNICAL PROOFS TO ACTION ON INSURANCE POL- ICY.— When an insurance company is defending against fraud it might well be justified in resorting to technicalities to defeat such claims, but when it has issued its policy and received the pre- miums, it has entered into a contract of indemnity, and common honesty requires that it should keep such contract in good faith. Where proofs of loss are sent to the company immediately after a fire and are retained by it for nearly two months without ob- jection, a jury is justified in finding that any defects in such proofSi are thereby waived. Davis iShoe Co. vs. Kittanning Ins. Co. (Supreme Court of Pennsylvania), 20 At. Rep., 838. ACTION ON INSURANCE POLICY.-In an action on a fire insurance policy, the answer denied the insured's right to recover, because the poUcy provided that no action could be maintained unless brought within one year from the date of fire. On the trial It was admitted by the insured that the action was not com- menced within such year. The judge, without further proceed- ings, directed a verdict for the insurance company. Held, error, as the insured should have been allowed to show that the com- pany had waived the stipulations of the policy, or was estopped from tirging the same. Sample vs. London Fire Insm-ance Company of Liverpool (Supreme Court of South Carolina), 19 S. E. Rep., 1020. ACTION. 23. EFFECT OF FACTS UPON POLICIES.— In an action on cer- tain policies of insurance, covering cotton destroyed by the burn- ing of the warehouse in which it was stored, which policies pro- vided that on the payment of any loss the insurer should be sub- rogated to any right of action which the insured might have against any person by whose act or omission such loss might be occasioned, it appeared that the warehouse stood on land within the limits of a railroad company's right of way; that this land was held by the 'wareEousemen under a lease from the railroad company by which the lessor was exempted from liability for. any loss occasioned by fire communicated from its locomotives. The warehousemen had an insurable interest in the cotton stored with them, they having contracted to indemnify the owners thereof for its loss, the policies covering cotton stored in the insured's warehouse were properly construed so as not only to cover cotton owned absolutely by them, but also that which was in their pos- session as warehousemen. The warehousemen having released whatever right of areme Court of Michigan), 59 N. A¥. Rep., 439. POWERS OF AGENT.— Where the broker who procured the policy is not the agent of the insurance company, he cannot re- ceive notice and give consent to the ti-ansfer or assignment of the policy (under the laws of Maine); nor is such authority con- ferred upon insurance brokers by the statutes of that state. Richmond vs. Phoenix Assur. Co. (Sup. Jud. Ct. Me.), 33 At- lantic Reporter, 786. POWERS OF INSURANCE AGENTS.-The Supreme Court )f Appeals of West Virginia says: The jury, under the instruc- tion of the Court, must determine, from the facts of the case, the existence, nature, and extent of the power and authority of the agent of an insurance company. If a general agency exists, it is prima facie coextensive with the requirements of the business at the given time and place. Such general agent may waive forfei- tures and conditions in the policy, notwithstanding a provision therein that no agent has such power. If the facts regarding the risk are correctly stated to the agent, but erroneously inserted by him in' the application, the company is chargeable with his error or mis- take. He may consent to contemporary insurance on the prop- erty taken through him at the time through another company A provision in the application or in the policy making him the agent of the insured and not of the company cannot change his legal status as agent of the company or the law of agency if he is in fact agent of the latter. The question, what power did the insurance company hold the agent out to the public as possessing, may determine the extent of his power rather than the power the agent in fact possessed. Coles vs. Jefferson Ins. Co., 23 S. E. Reporter 732 AGENT. 33 POWER OF INSURANCE AGENT TO BINT> HIS COil- PANY. — The agents of an insurance company, authorized to pro- cure applications for insurance, and to forward them to the com- pany for acceptance, axe agents of the insurers and not of the insured, in all that they do in preparing applications, and if the insured was not aware of the contents of the aipplication, he would not be bound by it anyway. State Ins. Co. of Des Jloines vs. Jordan (Supreme Court of Nebraska), 45 N. W. Rep., 792. POWERS OF AGENTS.— A party applied to one B, for in- surance to take effect as of a time prior to the application. The policy was subsequently delivered to B. according to the terms of the application, but prior to the time of its delivery the loss occurred. The court held that B. was presumptively the agent of the insurer with authority to make the contract in suit, so as to render the policy binding according to its terms, instead of from the time of its delivery; and in the absence of evidence that B. was without authority, a nonsuit was wrong. Walker vs. Lion Fire Ins. Co. (Sup. Ct. Penna.), 34 Atlantic Rep., 736. DELEGATION OF POWERS TO INSURANCE AGENTS.- An agent authorized to accept risks to settle terms of insurance and to issue and renew policies is a general agent. Such an agent has implied power to appoint sub-agents, so that their acts in the solicitations of insurance will be as binding as the act of the agent appointing them, so that the company cannot avoid a policy in case of incumbrance or other insurance, where the existence of such was known or disclosed to such sub-agent. Goode vs. Georgia Home Ins. Co., (Sup. Ct. App. Va.), 23 S. E. Rep., 7*4. POWERS OF INSURANCE AGENT.— Evidence that a cer- tain person wag local agent of an insurance company in certain counties, and had authority to solicit and write applications for insurance, and forward them to the company's general agent, and, on receipt of the policy from the latter, to deliver it and collect the premium, does not show that he had authority to consent to additional insurance, within the meaning of a provision of a policy that if additional insurance was procured without "notice to and consent of" the company in writing, the policy sliould be void, or to waive such provision. American Fire Ins. Co. vs. Hampton (Supreme Court of Ar- kansas), 14 S. W. Rep., 1092. " DELEGATION OF POWERS BY AGENTS AND AD.TUST- ERS.— The adjuster of an insurance company, selected for the work because of special skill and fitness, has no power to delegate his authority, and if he appoint a sub-adjuster the company must ratify his act to become bound by it. The clause in a policy of in- siu'ance that "no officer, agent, or other representative of the company" sihall have the power to waive anv condition or pro- vision of the policy, i.s a valid agreement, when assented to by the assured, and limit.s the powers of local, special and adjust- ing agents. Ruthven vs. American Fire Ins. Co. (Supreme Com-t of Iowa), 60 N. W. Rep., (KB. 34 INDICATOR'S DIGEST. POWER OF AGENT TO BIND COMPANY.— Under the statutes making a solicitor of insurance an agent for the com- pany "to all Intents and purposes," he may make a valid parol contract to insure property at a certain rate. Stenlick vs. Mechanics' Ins. Co. (Supreme Court of Wisconsin), 58 N. W. Rep. 379. POWER OF LOCAL INSURANCE AGENTS TO CONSENT TO CHANGES. — A local agent of an insurance company, who has the power to make a contract of insurance, has the authority to consent to additional insurance, and to accept notice of a change in the risk and of the placing of incumbrances on the property, unless there is isome provision in the policy to the contrary. The indorsement upon a policy by such an agent of his approval of tlie assignment of a policy is binding upon the company where the policy contains a clause that no assignment thereof shall be valid unless the same is indorsed thereon, and approved by the company or its regular agent in writing. German Ins. Co. vs. Rounds (Supreme Court of Nebraska), 53 W. W. Rep., 660. KNOWLEDGE ON THE PART of the local agent who issued the policy, of facts which render it voidable at the option of the company, is the knowledge of the company itself. Dick vs. Equitable F. & M. Ins. Co. (Sup. Ct. Wis.) 65 N. W. Rep., 74;. AN INSURED IS CHARGEABLE WITH KNOWLEDGE of the limitations tipon the authority of a soliciting agent, and the Supreme Court of Iowa holds that he cannot bind the company, contrary to the provisions of the policy, by stating that it will make no difference where the insured property i« situated. Dryer vs. Security Fire Ins. Co., 62 N. W. Rep., 798. WHEiN KNOWLEDGE OF AGENTS IS KNOWLEDGE OV THE COMPANY.— Where the agents of an insurance company, having power to issue and cancel policies, allowed a policy to remain in foi-ce iifter notice by insured of the existence of an incumbrance on the property, the company cannot, because of such incuratorance, avoid liability for a subsequent loss. Phoenix Assur. Co. vs. CofEman (Texas Ct. Civ App,), 32 S.W. Rep., 810. INSURANCE AGENT'S KNOWLEDGE OF BREACH OF CONDITIONS.— A purchaser of real estate paid part of the price, and gave his note for the full price to one T., who paid the bal- ance. Indorsed thereon the amount paid by the purchaser, took the deed to himself, and gave a bond to convey to the purchaser as soon as the balance was j)aid on the note. As further security the property was insured in T.'s name. The company's agent wrote the application knowing all the facts, but failed .to disclose the purchaser's interest. 1*liough the transaction created a mort- gage, the agent's knowledge thereof was the knowledge of the company, and it 'was estoppea from relying upon the misrepre- sentations. Tnrbell vs. Vermont Mut. Fire Ins. Co. (Supreme Court of A'ermont), L'L' At. Rep., .j.S2. AGENT. 35 INSURANCE AGENT— REPRESENTATIONS AND KNOW- LEDGE. — A representation by a fire insurance agent tliat the taking of a certain policy will not conflict with the carrying of other insurance is a representation, not of fact, but of conclusion of law, and is not binding on the company. Where an agent's knowledge of outstanding over-insurance is acquired by virtue of his relation as attorney for the insured, and in a transaction with which the company was not connected, his knowledge is not the knowledge of the company, so as to consti- tute a waiver by it, or prevent its making such defense in a suit on the policy. Union Nat. Bank vs. German Ins. Co. (U. S. Cir. Ct. App.), 71 Federal Reporter, 473. WHERE INSURANCE COMPANY IS BOUND BY KNOWL- EDGE OF AGENT. — In a suit on a fij'o policy l)y the grantee of the premises insured, who was also the assignee of the policy, where there wrs evidence that the company's agent, who was informed of the details of the assignment, and forwarded the policy to the company for a. transfer of the insurance, was a general agent of the company,, and his authority was in writing, but was not produced on the trial, the jury was Justified in finding that notice to such agent of a mortgage on the premises at the time of the assignment was notice to the company, and binding on the latter, where it approved the assignment. Where evidence that the company's agent had been fully informed of the mortgage on the premises in question at the time of the transfer of the policy was direct and positive, the jury was justified in finding such evidence as true, even though the agent denied that he had any knowledge of such mortgage. Frane vs. Burlington Ins. Co. (Supreme Court of Iowa), 54; N. W. Rep., 237. KNOWLEDGE OF AGENT— SALE AND UNCONDI- TIONAL OWNERSHIP.— Where a policy of insurance isi issued upon such interest in the insured property, as the person to whom it was issued might have, it will cover that interest, whatever it may be. The policy contained further provision that it should be wholly void unless consient in writing was indorsed thereon by the company, if the insured was not the sole and unconditional owner of the property; or if the building intended to be insured stood on gi-ound not owned in fee-simple by the assured; or if the interest of the assured in the property, whether as owner, trustee, cons>ignee, factor, agent, mortgagee, lessee, or otherwise, was not truly stated in the policy; or if any change take place in the title, interest, location, or possession of the property, by sale, transfer, or conveyance, in whole or in part. This provision applied only to such changes as arose after the policy had been delivered and accepted, and not to the condition of the property at the time the policy was issued. Hoose vs. Prescott Ins. Co. ('Supreme Coiu't of .Michigan), 47 N. W. Rep., 587. KNOWLEDGE OF AGENT IS KNOWLEDGE OF THE COMPANY.— Where an insurance agent, with authority to re- ceive premiums and issue policies, exercises such aiuthority with knowledge of the existence of concurrent insurance on the prem- ises, the companj' is esropped. after a loss, to insist that the .36 INDICATOR'S DIGEST. policy is void because consent to such concuiTent insurance was not given in writing. In other words, the knowledge ot the company's agent of the existence of insurance on the property on which he issued the policy was the knowledge of the company. Knowledge on the part of the ageat, authorized to issue its poli- cies, of facts which render tlie conti-act voidable at the insurer's option, is knowledge of the company. Where the clerk of a duly appointed agent solicits insurance on property which he knows to be insured already in another company, and the agent issues the policy upon the application so obtained, the insurance com- pany is bound by the knowledge of the clerk. Notice given to an agent, relating to business which he is authorized to transact, and while actually engaged in transacting it, will, in general, insure as notice to the principal.' Eagle Fire Co. vs. Globe Loan & Trust Co. (Supreme Court of Nebraska), 62 N. ^^^ Rep., 895. PROVISIONS OP APPLICATION FILLED OUT BY AGENT.— A^'here it was shown that an agent had ipower to and did issue a policy; that he tilled out an application for insur- ance upon a building in process of construction, to be signed by the owner, and stated in the application that the building was being erected, although it was intended for the use of tenants, •and was sitated in the policy to be so occupied, construing the several provisions of the application together, it was held to .appear that the building was in course of construction, and, being burned before it was completed, the fact that the building was vacant was no defense. German Insurance Co. of Freeport vs. Penrod (Supreme Court -of Nebraska), 53 N. W. Rep., 74. ISSUANCE OF POLICY RATIFIES ACTS OF AGENT.— Contracts of insurance are usually negotiated by the insurer through the intervention of agents; and this is so of necessity when, as is now almost universally true, the insurer is an incoi-- porated company. The company can act only through its officers and agents; and, to. the officers and agents representing it at its principal place of busine,ss, it has the power to add any number of special or general agents it may deem proper. It is these •agents with whom the insured frequently negotiates insurance and upon whom reliance is placed. The doctrine now generally accepted is that when an agent of a company, having authority to solicit insurance or to receive applications for insurance vol- untarily or at the request of the applicant, assumes to prepare the application, and by negligence or mistake or intentionally in- serts matter which is untrue, the applicant having truly stated the matter, procuring the signature of the applicant to the appli- cation, if the company receives the application and premium ' and issues the policy, in the event of loss it will be estopped from in- sisting on the falsity of the matter to avoid liability though the truth of the matter may be warranted by the insured. And this 18 true though the policy may declare that, when the application IS made through an agent, he shall be deemed the agSit of the sentaHons™" applicant shall be responsible for his repre- l^amtflTso^Rer™"'"' "^'^ '"" ^°- ^'"^^"^"'^ ^""^"^ °^ ^'^ AGENT. 37 AGENCY OF INSURANCE BROKER— Where an insurance broker calls upon a business firm and asks permission to attenrl to the placing of the insurance of the Arm, -which permission is gi'anted, and thereupon applies for a policy for them to a com- pany with which he has never had any dealings, and to which he sustains no business relation, and receives a policy which he de- livers to the firm, in which it is provided that "if any broker has procured this policy * * • he shall be deemed to be the agent of the assured and not of this company," the broker is the agent of the applicant. And if the premium is paid to the broker, and is not paid by him to the company, the assured is the loser, and the company has the right to cancel the policy for non-payment of premium. Wilber vs. Williamsburgh City Fire Ins. Co. (Com-t of Ap- peals of New York), 25 N. E. Rep., 926. WHERE AGENT CANNOT ACT FOR TWO COMPANIES. — Where an insurance agent is directed by a company which he represents to reduce a risk either by cancellation or by rein- surance, he cannot reinsure in another company, of which he is also agent, ^-ithout the assent of the latter company. An action was brought on an alleged contract of one insurance company to reinsure in part a risk held by another; a conti'act in all respects valid and binding except for the fact that the agents of the former company who assumed to bind it thereby were at the same time the agents of the other company, and acted for the other company in the same transaction. On elementary prin- ciples and controlling authority this statement must have the effect to defeat the action. It is the application to precisely this class of cases of the general proposition that "a person cannot act as the agent of both parties in the making of a contract, where he is invested with a discretion by each, and when each- is entitled to the benefit of his skill and judgment." Empire State Insiu-ance Co. vs. American Central Insurance Co. (Supreme Court of New York), 19 N. Y. Sup., 5(>4. AGENT OF INSURANCE COMPANY BINDS COMPANY BY HIS ACTS.— In an action on a fire insurance policy issued to two persons, jointly, on three barns and their contents, and other property, it appeared that the insured stated in their application that they were the absolute owners of the personal property and of the real estate, consisting of 170 acres, and that the deed was in their "name;" that in fact one of them had a fee title to 40 acres, and the other had a life estate in 130 acres, with remainder ta the other assured and another; that one barn and contents, situ- ated on the 130 acre tract, were burned, and the contents belonged to the assured owning the 40 acre tract; that the company's agent had full knowledge of the condition of the title, and on his advice assured accepted the policy. Held, that the company was estopped from asserting that it was misled by the statements in the appli- cation. The further statement in the application that the appli- cant warrants that the above answers are true, and no statement contrary to the above was made to or by the agent of the com- pany, and that the declaration shall form a part of the contract between the assured and the company, does not prevent assured in such case from insisting on the estoppel. Robison vs. Ohio Farmers' Ins. Co. (Supreme Court of Mich.), 53 N. W. Rep., 821. 38 INDICATOR'S DIGEST. WHAT CONSTITUTES AN AGENT— One who solicited in- surance at tlie local insurance agent's instance, tooli applications for the same, and delivered them to the local agent, who re- duced them to the proper form and forwarded them to the com- pany, which issued policies thereon, was the agent of the com- pany as to effecting such insurance. McGonigle vs. Susquehanna Mut. Fire Ins. Oo. (Sif'preme Gooirt of Pennsylvania), 31 At. Kep., 868. V LIABILITY FOR MISSTATEME^NT BY AGENT.— An insur- ance company is liable on its policy issued on a written appli- cation missttating the facts, where such misstatemenits were written in the application by the comipany's agent, the insured having oO'rrectly stated the facts and aoted otherwise in good faith, not consenting to or knowing of the misstatements. Home Fire Ins. Co. vs. Fallon (Supreme Court of Nebraska), 63 N. W. Rep., 860. SCOPE OF AGENCY.— An agent of an insurance company, authorized to issue policies of Insurance and consummate the contract, binds the company by an act, agreement, waiver, or representation, within the ordinary scope of insurance business, which is not known by the insured at the time to be outside the authority granted to the agent. Milwaukee Mech. Ins. Co. vs. Brown (Ct. App., Kas.), 44 Pa- cific Rep., 35. INSURANCE AGENT ENTITLED TO NO FEE FROM IN- SURBD.— One who takes out a policy of fire insurance and, after keeping it a few days returns it; cannot be held liable to the agent for his services in making out the policy. He deals with the agent as representative of the company, and the issuing of the policy is a service for the latter and not for the insured. Townsend vs. Tompkins (Supreme Court of New York), 10 N. Y. Supp., 794. CONDITIONS OF STANDARD POLICY CANNOT BE WAIVED BY AGENT.— An insurance agent, having authority to assent to the removal of property covered by a policy, after insurance, cannot waive the condition in a standard policy pro- Tided by the laws of Massachusetts, requiring that the assent m'ust be in writing or in printing. Parker vs. Rochester Germ. Ins. Co. (Sup. Jud. Ct , Mass ) 39 N. E. Rep., 179. * APPLICATION SIGNED BY AGENT.-INCREASE OF RISK.— The agent of a fire insurance company, who signs the name of an applicant for Insurance to the blank application thereby binds the company to a ^waiver of any misrepresentation which he may knowingly insert therein. The clause of the pol- icy, providing that it shall be void in case of any increase of risk does not apply to such change in the hazard as may result from the act of occupants of exposing property, tout is limited in Its application to the acts of Insured, or persons suibject to his con- trol. Colofado),'24-p?c. Rep^'.lsa'""'' ''' '""'''"■ ^""^^^'^ ^"^^ <»' AGEXT. 3g FALSiE ANSWERS WRITTEN BY AGENT BINDS THE COMPANY.— Where an applicant for insurance answers all ques- tions truly, but tUe agent who writes the application, through a misconception of the pui-port of a question, writes an incorrect answer, the insui-ance company is bound. Continental Insurance Co. of New York vs. CUew (Appellate Court of Indiana). 3S N. E. Rep., 417. RATIFICATION OF ACT OF AGENT.-Where a company, after a loss, sends an agent to examine the loss, and the agent, representing himself as the company's adjuster, made a com- promise settlement with insured, which was subsequently rec- ognized by the officers of the company, the settlement is binding on the company, though the agent had no authority to adjust the loss. Flaunery vs. State Mut. Fire Ins. Co. (Sup. Ct. Penna.), 34 Atlantic Reporter, 798. PRINCIPAL AND SURETY ON AGENT'S BOND-TUe sure- ties on the bond cf an insurance agent are not released from lia- bility by the more fac; that such agent, after bond was gi\e% took a partner irti his business, with the knowledge of the cim- pauy, when the principal on the bond continued as the sole aspnt of the company; neither the partner nor the partnership lii^iiig recognized as such. G.'ibert vs. State Ins. Co. la. (Ct. App. Kas.) 44 J'acitic Rap. 443. THE SUPREME COURT OF NEBRASKA HOLDS, That where an insurance agent with authority to receive premiums and issue policies exercises such authority with knowledge of the ex- istence of concurrent insurance on the premises, the company is estopped, after a loss, to insist that the policy is void because con- sent to such concurrent insurance was not given in writing. Phenix Ins. Co. of Brooklyn vs. Covey, 60 N. W. Rep., 12. WAIVER BY AGENT.— One who, after a fire, is sent by the Insurance company to adjust the loss, may waive a provision In the i)olicy requiring the assured to produce formal proof of loss by denying all liability of the company under the policy, though ■he is not the general adjuster of the company. Lriverpool & London & Globe Ins. Co. vs. Tillis (Supreme Court of Alabama), 17 So. Rep., 672. INSURANCE AGENCY.— Where one is asked for a polic^y of insurance and obtains it from a company to which he is a stranger, and forwards it to the applicant, he is an agent for the latter for this particular act alone, and a notice to him of can- cellation is not notice to the policyholder. Nor has he any power to make an endorsement permitting additional insurance for the company. A verbal promise by the agent, before a policy U Issued, to consent to additional insurance, is not binding on the company. Ea«t Texas Ins. Co. vs. Blum (Supreme Court of Texas), 13 S. E. Rep., 572. 40 INDICATOR'S DIGEST. WHEN POLICY ISSUED BY AGENT TO HIMSELF IS VOID.— A policy of insuraBce, issued by an agent of the insur- ance company to himself, without the knowledge or consent of the company, on a stock of goods which he holds as receiver, is void. Wildberger vs. Hai-tford Fire Ins. Co. (Supreme Court of Mississippi), 17 So. Rep., 282. EFFECT OP AGEiNT ACTING FOR BOTH PARTIES.— A contract of insurance entered into by one acting as agent for both the insurer and inspired may be avoided by either party if, at the time of the contract, he did not know of such person's agency for the other party, or has not, with a full knowledge of the facts, ratified it. British-America Assur. Co. vs. Cooper (Court of Appeals of Col.), 40 Pac. Bep., 147. WHAT STATEMENTS OP AGENTS ARE NOT BINDING ON COMiPAJ^Y.— Where the application contains a notice that it will not be binding on tJhe company until signed by an agent or director, and received by the secretary, a statement of the solicit- ing agent that the insurance commences forthwith is not binding on the company where the agent had no authority to make any agreement for insurance or do anything except solicit and receive applications. Allen vs. iSit. Lawrence County Ins. Co. (Supreme Court, 3d Defpt.), o4 N. Y. S. Reporter, 872. INSURANOB AGENCY— NOTICE.— There is no distinction between an insurance broker who procures a risk which la adopted and aecepteid by an insurance company, and where the insurance ie effected by a comimissioned agent, so far as their relations to the company are concerned. In either case, what Is done is the authorized act of the company, and for the services rendered the company must respond. The knowledge of such agent or broker as to the condition of the risk is the knowledge of the company an'd it will be estopped from denying such knowl- edge as the provisions of the policy require. Indiana Ins. Co. vs. Hartwell (Supreme Court of Indiana), 14 N. E. Rep., lOO. EFFECT OF ARBITRATION AND UNDERSTANDING WITH AGENT.— Where an insurance company asked for arbitra- tion of the amount of loss in accordance with the terms of a policy, and there was a return under such arbitration, defects in the proofs of loss originally furnished by the insured are to be deemed waived. And .where a soliciting agent of an insurance company forwards to it an application for a policy which he is to receive for delivery to the applicant, and the meantime the applicant of further information, notifies the agent of facts as to title iwhich might defeat the policy, and relies in good faith on statements of the agents that these facts are not material, and that the title is sufficient, the construction of the agent is that of the company, and the latter cannot set up these facts to de- feat recovery on the policy. Jacobs vs. St. Paul Fire & Marine Ins. Co. (Supreme Court nf Iowa), 53 N. W. Rep., 102. f u i. ai AGEXT. 41 WHEX COlirANY IS LIABLE FOR POLICY ISSUED BY AGEXT.— Where an iusurance company placed policies signed in blank in the hands- of an agent, with authority to issue them, and aifterwards revoked the agent's authority, but left the blank poli- cies in his hands, such revoL-ation does not affect one who received a policy from the agent without notice of the revocation. Marshall vs. Reading Fire Ina Co. (Supreme Court, General Term, Third Department), 29 X. Y. Supp., 334. LIABILITY FOR ACTS OF AGEXTS.— Where a person claiming to be the solicitor or agent of a fire insurance company, and having in his possession blank applications of the company, receives and forwards to the company an application endorsed by him as the solicitor for the company, and the company accepts such application from such person, and pays him for his services as solicitor, and returns and delivers to him for the insured the policy applied for, and receives the premium on the policy through such solicitor, less his charges for commission, in an action on the policy, the insurance company, having enjoyed the benefits of the acts at the alleged solicitor, and having paid him as solicitor, can- not deny that he was its agent for the purpose of delivering and soliciting such policy. Kansas Farmers' Fire Insurance Co. vs. Saindon (Supreme Court of Kansas). 3.5 Pac. Rep.. 16. AGEXCl'.— Agency cannot be proved by declarations made and acts done by the alleged agent without the knowledge of the alleged principal. The (testimony of a person that he thinks a party is agent of a specified company, but that he will not be certain of it, is too vague to support a finding of agency. Xor is the fact that one claiming to be agent of an insurance company furnished blank proofs of loss of that company to an insured evi- dence of agency. The Supreme Count of Vermont said: "The fact that he had blank proofs of the company had no tendency to show an agency. An interloper wfhom the company never saw or heard of might" obtain them. As well might a bank be prejudiced by the possession of its blank checks. Xothing on the face of such blanks imports that the hearer of them had any authority froon the company to act in its behalf." Dickerman vs. Quincy Jlut. Fire Ins. Co., 32 Atlan. Rep., 489. WHO IS A GEXERAL AGEXT FOR ISSUANCE OF POLI- CIES.— An agent holding a commission from a company author- izing him to take risks generally, without placing any limitation thereon, either as to the kind of risks, or as to the territory within which they may be, is a general agent; and the facts that the policy provides that, in any matter relating to insurance, no per- son shall be deemed to be the agent of the company unless au- thorized in writing, and that the agent's commission states that he shall be subject to the rules of the company, and to such instructions as may be given to him from time to time, do not impose on one dealing with the agent a duty to ascertain his authority to issue a policy on a risk extra hazardous, and located in a place other than the town in which is situated such agent's oflSce. German Fire Ins. Co. vs. Columbia Encaustic Tile Co. (App. Ct.. Ind.), 43 X. E. Reporter, 42. 42 INDICATOR'S DIGEST. THE SUPREME COURT OP PENNSYLVANIA HOLDS, that an agent employed to manage a store is required to keep an account of all the transactions, to account to his principal for the profits whenever requested so to do, and to turn over all the property at the end of his employment, holds the property of his principal "in trust," within the meaning of an insm'ance policy on goods so held. Such agent may insure the property in his own name. Roberts vs. Firemen's Ins. Co., 30 At. Rep., 450. WHEN PROVISIONS OP POLICY CANNOT BE WAIVED BY AGENT.— The fact that assured told the insurance agent, when he applied for the policy, that he Intended to effect other insurance, and that the agent orally assented, does not waive a condition in the policy which requires the consent of the company to the procurement of additional insurances to be indorsed on the policy, vyhere the policy provides that no officer, agent, or ither representative of the company shall have power to or be deemed to have waived its provisions unless the waiver shall be written on or attached to the policy. Frankfurter vs. Home Ins. Co. (Common Pleas of New York City and County, General Term), 31 N. Y. Supp. Rep., 3. THE COURT OF APPEALS OiF NEW YORK DECIDES that where a local agent is empowered to, and does, solicit insurance, examine risiks proposed, collect premiums, deliver policies, and grant special permits and waive conditions by written endorse- ment, an applicant, who deals with the company solely through him, is not charged with notice of special restrictions on the agent's authority; and the knowledge which he imparts to the agent, of facts concerning tlie risk, inconsistent with a condition of the policy, is imputable to the company. Forward vs. Continental Ins. Co., 37 N. E. Rep., 615. PROOF OF CUSTOM— POWER OF AGENT TO WAIVE PERFORMANCE.— In an action upon a fire insurance policy, where the policy itself expressed what was to be done by the par- ties, In case of loss, it is error for the court to admit evidence as to the practice of other insurance agents in the same town, to estab- lish the custom that proofs of loss were not required. Such evi- dence should be limited to the custom and usage of the company charged with liability, and is only competent then to show the power and authority given to the agent. An agent of an Insur- ance company, who is given full power to receive proposals of insurance against loss and damage by fire within a" given terri- tory in this State, and is authorized to fix rates of premiums, to receive moneys, and to countersign, issue, and renew policies of insurance, is a general agent of such company, and may, after loss, bind the company by a parol waiver of the condition as to furnishing complete proofs of loss within 30 days after such loss shall have occurred, with builder's estimate of the value of the building, notwithstanding the policy provides that waiver shall be void unless it is in writing, signed by the agent and endorsed thereon. Phenlx Ins. Co. vs. Hunger (Supreme Court of Kansas) 30 Pac. Rep., 120. ' AGENT. 43 POWERS OF AGENTS.— An insurance agent authorized to make contracts of insurance has authority to receive proofs of loss. German Fire Ins. Co. vs. Stuart (App. Ct. Ind.), 42 N. B. Rep., 2S6. ALTERATIONS. PERMISSION TO MAKE ALTERATIONS— 4 permission to make alterations in insured property construed with a provision that insured shall not be liable for loss "if the risk be increased by any means vrichin the control of the insured," permits such alterations as the assured may choose to make px'ovided the risk is not increased further, nor for a longer time than is necessary to accomplish the work. Firemen's Ins. Co. vs. Appleton Paper Co. (Sup. Ct., 111.), -43 N. E. Rep.. 713 APPLICATION. WHEN APPLICATION MUST BE ATTACHED TO POL- ICY. — The statutes, which require insurance policies which con- tain any reference to the application, either as forming part of the contract or having any bearing on it, to contain or have at- tached to them "correct copies of the application as signed by the applicant," etc.. applies only where the application is in writ- ing. Lennox vs. Greenwich Ins. Co. (Supreme Court of Pennsyl- vania), 39 At. Rep., 940. illSREPRESENTATION IN APPLICATION NOT AL- AVAYS P'ATAL.— Actual representations as to the existence of safeguards against fire, which were made to the agent of the in- surer, may be proved by parol evidence, notwithstanding the fact that such representations, incorrectly reduced to writing by such agent, were attested as true by the signature of the insured, even though by the terms of the policy issued it is provided that such representations shall be deemed a warranty, and as such a part of the policy itself. German American Ins. Co. vs. Hart (Sup. Ct. Neb.), 61 N. W. Rep., 582. 44 INDICATOR'S DIGEST. REPRESENTATIONS IN APPLICATION.— Where the policy- is based upon an application containing statements or represen- tations relating to matters as to which the insurers have required information, the statutory condition which provides that the in- surance shall be of no force should there be a misrepresentation of, or omission tq communicate, any circumstance which is ma- terial to be made known to thf insurers, to enable them to judge of the risk they undertake, must be taken tO' refer to such state- ments or representations, whether the risk they relate to Is a moral or physical one. Pindley vs. The Ins. Co. of North America, 25 O. R., 515. REJEOTIOiN OF INSURANCE APPLIQATION.— The own- ers of certain property applied to an insurance broker to secure insurance thereon. He presented an application to an agent of the company, which 'was returned for the completion of formal details omitted. They were supplied and upon receipt of the com- pleted application the agent endorsed it "Rejected." Before a notice of the rejection reached the owners the property was destroyed, and they claimed the insurance money upon the ground that the application had not been rejected before the fire They cannot recover, as no valid contract was entered into. The agreement must be complete and mutual before the contract can exist. Faughner vs. Manufacturers' Slutual Fire Insurance Oo. (Supreme Court of Michigan), 49 N. W. Rep., 642. WRITTEN APPLICATION FOR INSURANCE CANNOTT BE CHANGED ©Y ORAL AGREEMENT.— When parties have reduced the terma of an agreement to writing, all antecedent and contemporaneous oral agreements are merged In the writing, which is the sole evidence of the agreement, unless the validity of the agreement or a mistake is the matter in dispute. Whether agents of insurance companies are general or special agents, pos- sessing plenary or limited powers, is to be determined by the same rules that control in respect to other agencies. When the failure to comply with the conditions of the policy is wholly due to the fault of the insured, the policy is dead and it requires a new consideration, or an expressed waiver on the part of the in- surer, to revive it. Weidert vs. iState Ins. Co. (Supreme Court of Oregon). 24 Pac. Rep., 242. APPLICATIONS AND POLICIES.-An insurance company which issues a policy without attaching. to it a copy of the appli- cation, or the representations made by insured, as required by the laws of Wisconsin, is precluded by the express provisions of the statute from setting up falsity in such application or repre- sentations. And where a policy Is issued without any formal application of the insured, and witliout any questions being put to him as tj matters material to the risk, and the policy contains a clause that it will be void if any material fact is concealed, it will not be invalidated by the unintentional concealment by insured of material facts as to which he was not questioned. Johnson vs. Scottish U. & N. Ins. Co. (Sup. Ct. Wis.), 67 Northwestern Reporter, 416. APPLICATIOX. 45 APPLICATION FOR FIRE INSURANCE— MATERIALITY OF ANSWERS IN— WARRANTY— In a foi-m of application for fire insurance the questions were asked, "Hare you'ever had any property destroyed or damaged by fire? If so, when and where?" Also, 'Has the risk been refused by any other company or com- panies; or has any company or companies cancelled a policy or receipt on it? Give name of each company and reason for declin- ing or cancelling." To both these questions the applicant an- swered "No;" and .signed a memorandum at tlie foot of the form of application ^vhereby he covenanted and agreed with the com.- pany that the foregoing was a just, true and full exposition of all the facts and circumstances in regard to the situation, condi- tion, value, and risk of the property to be insured, and that it should be 'held to form the basis of the liability of the company and form a part and be a condition of the insurance contract. As a matter of fact the insured had had other proper- ties, but uuconnected with the property now in questioi, liestroyed by fire.' Held, that the answer to the first of the above questions was immaterial to the risk; and that the answer to the second question was clearly a iwarranty, having reference as it had to the property to be insured. Stott vs. London and Lancashire Fire Ins Co., 210, R. 312. REPRESENTATIONS AND AGREEMENTS OF INSURED. — Where a fire insurance policy refers to a survey of the insured premises and the application as a warranty on the part of the insured, the right of the company to rely on such application _and survey is not defeated by the fact that they were not fur- nished until after the policy was delivered, and that they were written on blanks prepared for the use of another insurance com- pany. In an action on a policy, evidence that the insured premises were idle for two months, during which time the in- sured employed only one watchman, who habitually slept in a building 300 feet away, with the approval of the insured, shows ^ failure on the part of the insured to comply with a condition of the policy requiring him to employ a watchman "to be in and about the premises by day and night" during the time that they are idle, and not merely negligence on the part of the watchman in performing his duty, and is a good defense to the action. Rankin vs. Amazon Ins. Co. (Supreme Court of California), 25 Pac. Rep., 260. APPRAISEMENT. APPRAISEMENT OF LOSS. — In an action on a fire insur- ance policy, where the amount of the 1-.s or damage shall be as- certained or estimated by the assured and the company, or, in case of difference between them, then by appraisers as provided, and that "the loss shall not become due and payable until sixty days * * * after an award by appraisers, when appraisal has been required."' This provision furnishes a speedy, convenient and inexpensive mode of ascertaining the less or damages of the assured, if he is entitled to recover, and does not appear to be obnoxious to the objection that it is void as ousting the courts of their rightful jurisdiction. Under it the right of recovery is left open, and the appraisal .seiwes only to liquidate and determine the amount of the loss or damage. The validity of such stipula- tion appears to be beyond doubt. The question is well settled that when parties to a contract agree that money shall be paid when something else happens, and that something else is that a third person named in it, or persons to be named as provided, shall determine the amount, then the cause of action does not arise until the amount has been so asoertaineJ or determined, un- le.S'S something has occurred which may operate as a waiver of such precedent condition, or to dispense with its performance, or that with fair and reasonable effort performance of it cannot be obtained. » Chapman vs. Rockford Ins. Co. (Supreme Court of Wisconsin), G2 X. W. Rep., 422. PRESUMPTION OF REGULARITY OR AWARD.— Where it was not contemplated, in the policy of agreement to arbitrate, that any question should be submitted to appraisers, except what arose from damage to goods, it will not be presumed that damages for total loss of goods were included in the award, in the absence of allegations and proof of fraud or mistake. Fire Ass'n Phil. vs. Colgin (Ct. Civ. App. Tex.), 33 S. W. Re- porter, 1004. 50 , INDICATOR'S DIGEST. ARBITRATION. THE SUPREME COURT OF ILLINOIS hol-ds that a general ■covenant, in a policy of insurance to submit every matter in dis- pute to arbitration, is held to be no bar to a suit for damages, and 'to be invalid as au attempt to oust the courts of their jurisdic- tion. But an agreement which provides for the determination of amounts or values is lawful, and may be made a condition prece- dent to the right of recovery either in terms or by necessary implication. Such agreements do not oust the courts of their jurisdiction, and where the contract is that no suit shall be main- tained until an award is made fixing the amount of the claim the contract will be respected by the courts. Niagara Fire Ins. Co. vs. Bishop, 39 X. B. Rep., 1104. VALIDITY OF ARBITRATION CLAUSE.— In the trial of an .action to recover for a loss sustained under a fire insurance policy which contains an arbitration clause, in this case valid and bind- ing on the parties because the insurance was effected by a Massa- dhusetts policy on goods situated In that commonwealth when insured as well as when destroyed by fire, it could not properly be ruled, as a matter of law, that the agreement of arbitration was waived in this State by the company for the reason that it gave no noitice until the expiration of about nine months after the proof of loss was made, but about eight months before this action was brought, that it should insiist upon a settlement of the amount of loss under the terms of such arbitraibion clause. Smith vs. California Ins. Co. (Supreme Judicial Court of Mass.), 32 At. Rep., 872. ARBITRATION IX PROOFS OF LOSS.— An umpire, ap- pointed by t^vo appraisers mutually chosen, and 'who were unable to decide upon the amount of loss under a policy of fire insurance, after making an examination of the premises, and estimates of his own, inquired of an experienced and disinterested painter respecting the cost of painting. In his report he certified that such painter's cost correctly represented his own judgment. All three joined in a unanimous award and appraisal. In an action upon the policy it was held that an appraiser, in such case, has the right, on any special branch of the appraisal, to make use of the judgment of another skilled in that branch, upon whom he can depend, and the valuation of that person is his if he chooses to adopt it. Also, an appraiser or arbitrator may call in the aid of a third person skilled in a special branch, embraced in the appraisal, and may give to the estimate of such third person such weight and credence as he sees fit, even to the point of founding his judgment upon that estimate, i)rovided he adopts that as his real judgment. Bangor Sav. Bank vs. Niagara Fire Ins. Co. (Supreme Court of Maine), 26 At. Rep., 991. ARBITRATION. 51 ARBITRATION ON INSURANCE FOLIC r.—Wlien a policy of Are insurance proviides that, If there should arise any differ- ence l>etweeu the parties as to the amount 01 loss the same should be submitted to arbitration, the rejection by the insured of an offer by the insurance company of a certain amount in settlement of damages to the insured property, constitutes a '"difference" which will sustain a demand far arbitration. Pioneer Manuf'g Co. vs. Phoenix Assur. Co. (Supreme Court of North Carolina), 10 S. E. Rep., 1057. AGREEMENT TO ARBITRATE TERMINATED BY UN- REASONABLE DELAY.— AVhere two arbitrators, appointed by the insurer and the insured, under a written agreement, for the purpose of choosing a third, and together determining the amount of a fire loss, fall to agree on the third, through the Unreasonable conduct and demands of the one appointed by the insiu'er, — the latter adopting this means to indefinitely delay any adjustment, — the agreement is terminated. Braddy\ vs. New York Bowery Fire Ins. Co. (Supreme Court of North Caroiina), 20 S. E. Rep., 477. INTERPRETATION OF ARBITRATION AGREEMENT.— Where an agreement entered into after a loss, and in fulfillment of the clause stipulated therefor in an insurance policy, states that "it is expressly understood that this agreement and appraise- ment is for the purpose of ascertaining and fixing the amount of said loss and damage only, * * j* and shall not determine, waive, or invalidate any other right or rights of either of the parties," the only question that can be considered as submitted to the appraisers is that of determining the value of the property destroyed, and the injury to that not destroyed. Germania Fire Ins. Co. vs. Warner (App. Ct. Ind.), 41 N. E. Rep., 969. ARBITRATION— PRO RATA CLAUSE.— A policy provided that no suit should be brought thereon until after arbitration to determine the amount of loss, if the parties could not agree. A few hours after the loss the insurer charged the insured with causing the fire, and refused to pay the loss for that reason. This refusal precluded the necessity of arbitration, and the insured might sue without demanding arbitration. The policy provided that "any fraud, or attempt at fraud, or any false swearing, on the part of the assured shall cause a forfeiture of all claim under the policy." An attempt by the assured, after a loss by fire, to suppress "testimony or information tending to show that he set the fire, would not render the policy void unless such testimony or information wag true. In an action on a policy permitting additional insurance to a specified amount, with a condition that the insured should not recover any greater proportion of the loss than the amount of the policy should bear to the whole sum insured, it is not error to refuse to charge the jury that a verdict for plaintiff should not be in any event for an amount in exces'S of "that proportion. There can be no apportionment, in such a case, unless the loss is less than the total insurance on the property destroyed. Insurance Co. vs. Starr, 1.3 S. W. Rep., 1017. Pencil vs. Home Ins. Co. (Supreme Court of Washington), 2S Pac. Rep., 1031. 52 INDICATOR'S DIGEST. WAIVER BY AGREEMEiXT TO ARBITRATE.— By agreeing to arbitrate, tlie company waives the provision in the policy that, in case of dispute as to the amount of the loss, payment shall be made 60 days aftej- proofs of loss are submitted, so as to entitle the insured to interest on the amount of his loss, in cas« the ar- bitrators' award is set aside, from the date of the loss. Glover vs. Rochester German Ins. Co. (Supreme Court of Washington), 39 Pac. Rep., 380. CONDITION PRECEDENT-ARBITRATION.— A condition in a policy required that where a dilference arose as to thfe amount payable In case of fire, the matter should be referred to arbitrators to be chosen by the parties; and alsio, that before an award no action should be brought. It was held that an award as to damage was a condition precedent to bringing the action. Caledonian Insurance Company vs. (iilmour (H. L. (Sc), 1893), A. C. 85. WHAT CONSTITUTES A REFUSAL TO ARBITRATE.— Where the appraiser appointed by an insurance company is not a resident of the place where the loss occurred, and refuses to ac- cept as umpire any of the persons, residents of such place, pi-o- posed by the insured's appraiser, oil the ground that he is not acquainted with them, and himself proposes only persons living some distance therefrom, his conduct amounts to a refusal to arbitrate, and entitled the insured to sue. Brock vs. Dwelling House Ins. Co. (Supreme Court of Mich- igan), 61 N. W. Rep., 07. WAIVER, OP CONDITION OP ARBITRATION.— That that portion of the policy contract which makes arbitration of dam- age a condition precedent may be waived by the company is now the uniform holding of the courts. And the courts in determining this question of waiver, bold the company to a strict compliance with the specific terms of the contract befoi^ they will so apply the condition as to vtork a failure to the insiu-ed of his right to sue; for that right to sue has not been stipulated aiway by the insured — the courts would not uphold .sudi a stipulation, .only deferred in its right of exercise until certain preliminaries agreed upon lin the contract have been performed. There must be, on the part of the insurer, no action which is inconsistent with the right to rigiidly insist on an award as a condition precedent, else that right is waived, and the term® of the policy conti-act, in regard to time and manner of insisting on such appraisement, in providing for it, and in executing it, must all closely follow the provisions of the contract, or the api>raisement attempted is not the appraisement which the policy has made a condition precedent. A court should not, and will not permit its powers and process to be stayed, and prevented from taking cognizance (if, and administering the right with reference to controversies between citizens, by any stipulation made before the controversy arose, unless 'he who insists on such staying of justice shall have brought himself sharply and fully within the letter as well as the spirit of the sitipulation. Harrison vs. German-American Fire Ins. Co. (Circuit Court S. D. Iowa E. D.), 07 Fed Rep., .577. ARBITRATION. 53 ARBITRATION CLAUSE DOES NOT APPLY TO TOTAL DESTRUCTION.— The arbiti'ation clause iu a policy relates ouly to property damaged, and not to that totally destroyed; and in the absence of an attack on the award of arbitrators appointed under a policy, the presumption is that the amount of the award is for the damaged property only, and not that sustained by total destruction; and will not preclude an additional recovery for the latter. Liverpool & L. & G. Ins. Co. vs. Colgin (Ct. Civ. App., Tex.), Si S. W. Reporter, 291. ARBITRATION PROVISION IN INSURANCE PO^iCY.— A provision in a policy of fire insvu'anee that in ease of dis- agreement after loss, as to the amount of loss, either party may demand an arbitration thereof, and that the loss shall not be payable until the amount is so ascertained, and that such arbitra- tion shall be a condition precedent to bringing suit upon such policy, is reasonable and valid and will be sustained by the courts. When the policy provides that the damages recovered shall not exceed the actual cost of reproducing the property destroyed, the market or cash value thereof furnishes no .standard for esti- mating the damages. Chippewa Lumber Co. vs. Phoenix Ins. Co. (Supreme Court of Michigan), 41 N. W. Rep., 10.54. PROVISION FOR ARBITRATION IN INSURANCE POL- ICY. — In an action on a fire policy covering household goods, the insured, who is shown to have been for many years engaged in housekeeping and familiar with the prices of similar articles, may testify what, in her opinion, the articles were worth, and where the appraisers appointed to determine the amount of a loss, as provided by the policy in case of a dispute between the parties, were unable to agree. For the purpose of choosing an umpire, the insurance appraiser sent four names to the insured's appraiser, who, after a delay of some days, rejected them all, and proposed three names to him. He refused to accept any of those proposed on the ground that their standing was not good. The question whether the insured acted in good faith was for the jury. Rademacher vs. Greenwich Ins. Co. of City of New York (Su- preme Court, General Term, First Department), 27 N. Y. Supp. 155. .\IiBITRATION OF INSURANCE LOSS.— After a loss by fire which occasioned a dispute between the insured and the com- pany, an agreement was entered into that the matter should be submitted for arbitration to two persons, naming them, "together with a third person, to be appointed by them if necessary," and providing that the appraisement by any two of them should be binding on both parties. The two persons agreed upon a third, and proceeded to make an appraisement without him, acting upon the assumption that unless they should disagree he was not a necessary party to the appraisement. This was a correct assump- tion, and the fact that they agreed upon an umpire before any dispute arose did not deprive them of the right to proceed with- out him. Enright vs. Jlontauk Fire Ins. Co. (Stipreme Court of New York), 15 N. Y. Supp., 892. 54 INDICATOR'S DIGEST. CONSTRUCTION OF PROVISION IN INSURANCE POLr IGY FOR ARBITRATION.— AVhile a provision in a policy of fire insurance, providing tliat any dispute as to the amount of los3 under the policy shall be settled by arbitration, is valid, yet a further stipulation that no action shall be maintained on thfr policy until after such arbitration, is void, as tending to oust the courts from their lawful jurisdiction. Individuals will not be permitted to contract away the jurisdiction of courts. Wright vs. Susquehanna Mut. Fire Ins. Co (Supreme Court of Pennsiylvania), 20 At. Rep., 716. ARBITRATION UNDER INSURANCE POLICY.— A clause in a policy of insurance, which simply provides that any differ- ence of opinion between the company and the insured, as to the amount of loss sustained by the latter, may be arbitrated, does not constitute such arbitration a condition precedent to bringing suit thereon. Such provision leaves arbitration optional with the parties, and either may decline to arbitrate. "Where a policy contains an arbitration clause, and by its terms makes arbitra- tion a condition precedent, and the insured, who has suffered a loss thereunder, demands arbitration and the company refuses, such refusal is a waiver of the provision, and the company may not subsequently Insist upon arbitration and is also estopped from setting up failure to arbitrate as a defense to an action on said policy. Continental Ins. Co. vs. AA'ilson (Supreme Court of Kansas), 25 Pae. Rep., 629. AGREEMENT TO SUBMIT TO ARBITRATION A1NI> AWARD.— The agreement between insurer and insured to submit to arbitration the amount of damage suffered by fire, provided that each party should appoint an arbitrator, by whom the loss should be estimated and appraised in detail, together with a third person to be selected by them, who shall act as an umpire to decide .be- tween them in matters of differences only; and the said three per- sons, or any two of them, shall a true return and award make. Such third person was constituted an umpire and a third arbitra- tor to act with the other two in making the estimates; and this though his decision is not, under the terms of the instrument, to be binding unless concurred in by one of tliem. On a bill by the in- Surer to set aside the award, it was shown that the arbitrators ex- amined each item of stock of goods in question, and each stated his estimate of the damage suffered by it, without discussion or en- deavor to reconcile conflicting estimates; that the umpire was pres- ent and examined some few articles, but refused to decide any dif- ferences appealed to him at the time, stating that he would settle them when appraisement was ended; that one arbitrator fixed the damage at $5,000 and the other at over $115,000; that the umpire then took their inventories, having made a few memoranda him- self, locked himself in a room with several clerks, and after three days made an award of $60,000, which one of the arbitrators con- curred in. In view of the fact that the submission constituted him an umpire, his mode of making his award was not such as to in- validate it, and no ground is shown for setting it aside. Hartford Fire Ins. Co. vs. Bonner Mercantile Co (Circuit Court of Appeals, Ninth Circuit), 56 Fed. Rep., 378. ARBITRATION. 55 EFFECT OF FAILURE TO AGREE IX ARBITRATION — Where ai-bitrators appointed to deta-mlne the loss under a policy of flre insau-auce fail to agrree. and the parties cannot agree on other arbitrators, the insured may sue on the policy. Pretzfelder vs. Merchants' Ins. Co. (Supreme Court of North Carolina), 21 S. E. Rep., 302. ARBITRATION UNNECESSARY WHEN ALL LIABILITY IS DENIED. — Under a proTision in a policy of insurance that ia case of a difEerence touching the amount of liability it shall be submitted to arbitration before suit can be brought thereon, the company has no right to demand submission to arbitration when it denies all liability. Barley vs. Aetna Ins. Co. (Supreme Court of Wisconsin), 46 N. W. Rep., 440. ARBITRATION WAIVED BY ACTIONS OF COMPANY.— Where a fire policy provided in case of disagreement as to amount of loss, before an action could be brought, the amount of loss should be submitted to arbitration, and after the adjuster and assured had negotiated without agreeing, the company de- manded additional proofs of loss and refused to pay anything till they were furnished, but never offered to submit the amount of loss to arbitration, the company cannot claim that a suit brought on the policy four months afterwards was in violation of the terms of the policy as to arbitration. Milwaukee Meeh.'s. Ins. Co. vs. Stuart (App. Ct. Ind.), 42 N. E. Rep., 290. CONDITION.S OF INSURANCE POLICY AS TO ARBITRA- TION. — A provision in a policy that differences between insurer and insured shall, at the request of either partj', be submitted to arbitration, does not justify the insurer, after the property has been damaged by two different fires, in demanding that the loss caused by the first fire be submitted to arbiti-ation, since the damage done by both fires constitutes but one loss, to be settled in one proceeding. Mechanics' Ins. Co. of Philadelphia vs. Hodge (Supreme Court of 111.), 37 N. E. Rep. .51. MISREPRESENTATIONS IN ARBITRATING INSUR- ANCE. — A policy of insurance on goods provided that insured be indemnified for actual loss, not exceeding the cost of replacement; and that in case of loss insured would produce for inspector of in- surer its book of account and other vouchers. On demand of in- surer the insured's chief bookkeeper was directed to permit an ex- amination of all its books. He, however, withheld a book contain- ing an estimate of the cost of the destroyed articles, made by him by order of the directors. This was a representation that no such book existed, and the insurer having been induced thereby to agree that arbitrators as to the amount of the loss should make an award of a certain amount, would be released from its agreement. Stockton Combined Harvester and Agricultural Works vs. Glens Falls Ins. Co. of N. Y. (Supreme Court of Cal.), 33 Pac. Rep., 633. 56 INDICATOR'S DIGEST. WHERE THE INSURED REFUSES to enter into arbitra- tion but agrees to the appointment of persons to appraise the property remaining' after the fire, sucb appraisal does not de- prive the insured, in an action ou the policy, of the right to introduce evidence of the quantity, quality and value of the property insured. Commercial Ins. Co. of California vs. Friedlander (Supreme Court of Illinois^ 41 N. E. Rep., IS?,. STIPULATION FOR CERTAIN ARBITRATION REVOCA- BLE. — A stipulation for arbitration, which does not ijrovide for submitting the matters in dispute to a particular person or trib- unal, but to one or more persons, to be mutually chosen, is re- vocable by either party, and will not oust the jurisdiction of the courts having cognizance of the subject of the controversy. Home Fire Ins, Co. vs. Kennedy (Supreme Ct. Neb.), 66 N.W. Reporter, 278. OONSTRUGTION OF ARBITRATION CLAUSE IN INSUR- ANCE POLICY. — A Are insurance policy contained a provision that in case of a loss, the matter should "at the written request of either party," be submitted to arbitrators, whose decision should be binding as to the amount of the loss. Under this clause the assured is not obliged to request an arbitration, and when the company does not ask for arbitration the assured may maintain an action without an award having been made. A contract drawn by one party, who makes his own terms, if sus- ceptible of the construction given it by the assured, although intended otherwise by the insurer, will be construed in favor of the assured. Wallace vs. German American Ins. Co. (Circuit Court of the United States, Northern District of Iowa), 41 Fed. Rep., 742. ARBITRATION AND AWARD— SETTING AWARD ASIDE —MISCONDUCT OF ARBITRATORS.— At the trial of this case the plaintiff sought to give evidence of the nature of certain goods destroyed by fire against which the defendants had iseiued policies insuring the plaintife. The defendants then showed that the plaintiff had entered into an agreement with them for ascer- taining the amount of loss by a reference to two arbitrators, one chosen by each, together with a, third person chosen by them "ae an umpire if necessary." An umpire was chosen, but not being sufficiently skilled in judging the values of the binds of goods insured an expert was employed by the two arbitrators, apparently with the consent and acquiescence of the plaintiff's manager, who made an estimate of the damage to the goods not entu:ely burned, and this estimate was approved and signed by the two ai-bitrators and by the umpire. As to the value of the goods which 'had been entirely destroyed, the defendants' arbitrator and the umpire agreed upon lan eabimate. An award was afterwards signed by the two latter, but the arbitrator ap- pointed by the plaintiff did not join in making this award. Held, that the award was binding notwithstanding that the expert had been called in to determine upon valuations, and that the arbitra- tors and umpire had accepted 'his estimate, and that no evi- dence should be received to show that the plaintifE's loss was greater than the amount ascertained by the award. Rogers vs. Commercial Union Assurance Co., 31 C. L. J., 395. ARBITRATIOX. 57 WAR'EU OF ARBITRATION.— Under the terms of the con- dition in an insui-ance policy, the insured was not more bound thaji tlie iusivranee eomiiany to demand an arbitration, after a disagreement as to the amount of damages; and, -when neither party demanded an arbitration, such condition was to be deemed waived by both. Kahnweiler vs. Phenis lus. Co. of Brooklyn (Circuit Court of Appeals, Eighth Circuit), G7 Fed. Rep., 4S3. COXDITIOXS OF POLICY AS TO ARBITRATION.— The in- sured is not precluded from suing on a policy by a provision that the amount to be paid in case of disagreement, shall be submitted to arbitration, but not expressly or by implication prohibitiiig suit until after such arbitration. Mutual Fire Insurance Company of New York vs. Alvord (Circuit Court of Appeals, First Circuit), 61 Fed. Rep., 752. ARBITRATIOX CLAUSE IX FIRE POLICY.— Where a policy provided that differences as to the amount of the loss should, at the written request of either party, be submitted to arbitration, and that no action should be brought until after the aw.ird, arbitration, in the absence of a request for same, is not a condition prece'dent. Davis vs. Anchor ilut. Fire Ins. Co. (Supreme Ct. la.), 64 X. W. Reporter, 687. ARBITRATIOX AXD AWARD.— The facts that the award- ing appraisers were partial to the company, and that one of them was in its employ and other companies interested in the loss, are material facts and may be stated in the pleadings in the suit. The inadequacy of an award is to be considered in deter- mining the bias and prejudice of the appraisers, and a party is entitled to know what it is before acting on the theory that there has been an unfairness. Royal Ins. Co. vs. Parlin & Orendorff Co. (Ct. Civ. App., Tex.\ 34 S. W. Reporter. 401. ARBITRATIOX IJXDER FIRE IXSXJRANCE POLICY.— An insurance policy provided that in case of loss, if the parties disa- greed as to the amount of loss, such difference should at the re- quest of either party be submitted to arbitrators whose award should be final as to the amount of the loss. Plaintiff refused to submit the matter to arbitration unless upon conditions not in the policy. This amounted to a refusal to submit to arbitration, and he could not recover in a suit upon the policy. Hamilton vs. Liverpool & London & Globe Ins. Co (Supreme Court of the United States), 10 Sup. Ct. Rep., 94.5. ARSON. APPREHEXSIOX OF IXCEXDIARISiL— Where in the ap- plication the insured was asked whether any Incendiary danger 58 INDICATOR'S DIGEST. to the property was apprehencled or threatened, and untruly an- swered "no," it was held that the policy was avoided. Findley vs. The Ins. Co. of North America, 25 O. K., 515. BURNING ONE'S HOUSE TO DEFRAUD INSURANCE- COMPANY.— The Supreme Court of South Carolina holds that, in the absence of a statute, a person cannot be convicted of arson for burning his own house, of which he has possession, though done with intent to defraud an insurance company; nor does the fact that he procured another to burn the house render him guilty of the crime of arson. State vs. Sarvis, 24 S. B. Reporter, 53. BURNING TO DEFRAUD INSURER.— In a trial for burn- ing goods with intent to defraud an insurance company, it is not error for the court to refuse to instruct the jury that, unless they are satisfied that defendant set flre directly to the goods described in the indictment, they should acquit, and that evidence that the fire was set to property other than that described in the indict- ment from which it was communicated would not be sufficient. Commonwealth vs. Andrews (iSupreme Court of Massachu- setts), 28 N. B. Rep., 1124. PENALTY FOR STARTING FIRE.— Under an indictment framed in the language of Section 486 of the New York Penal Code, defining arson in the first degree, a conviction of arson in the first degree can be had of one who sets fire to a building, as therein described, with the intention of secm-ing the proceeds of" an insurance on his personal apparel, but without intending to burn the entire building. People vs. Fanshawe (Supreme Court of New York), 19 N. Y.. Sup. 865. PROOF OF INCENDIARISM.— In an action on a fire policy,, destruction of the property by the owner is a defense which can- not be proven unless specially pleaded, even though the com- plaint avers that the destruction was without any fraud, negli- gence, procurement, or .privity of his. Evidence that insured at the time Ms stock of goods was burned was doing a losing busi- ness is too remote for the purpose of estabhshing fraud on his part in making false statements as to the amount of goods on hand at the time of the fire. Morley vs. Liverpool & London & Globe Insurance Co. (Su- preme Court of Michigan), 52 N. W. Rep., 939. FIRE SET BY INSURED.-In an action on a fire policy the company alleged that the fire was set by the insured, and offered to prove that two fires had before occurred, in which the insured met with losses for which he had recovered insurance, and that nine other fires had also previously occurred, in each of which some relative of insured had met with lasses covered by insur- ance. There was no offer to show that any of these fires were set by insured, or by his procurement, and they were exclud^^d as they were independent of one another, and parts of a system of fraud of which the fire in question was an essential s.tep. iMcDowell vs. Conn. Fire Ins. Co. (Supreme Judicial Ct. Mass ) 41 N. E. Reporter, 669. ASSESSMEXTS. 59 ASSESSMENTS. STOCK ASSESSMENT BY RECEn^ER.— An order of court authorizing tJie receiver of a mutual insurance company to make an assessment equal to the sum of prior assessments, does not authorize him to include a penalty for non-payment of a previous assessment by an individual member of the company. Capital City Fire Ins. Co. vs. Boggs (Supreme Ct. Penna.), 33 Atlantic Reporter, 349. ACTION OX INSURANCE POLICY FOR FAILURE TO PAY ASSESSMENTS.— In an action on a mutual fire insurance policy the company alleged that an assessment against the in- sured was due T\-hen the loss occurred. The policy provided for the payment of any loss "if the insured complied with the provis- ions of the constitution and by-larws," and for payment oif all "legal assessments." The by-laws were not attached to the policy nor put in evidence. It not appearing that failure to pay assessments when due forfeited the policy, nor what were legal assessments, a judgment for the insured was proper. HaversTick vs. Penn Township Mutual Fire Insurance Asso- ciation of Lancaster County (Supreme Court of Pennsylvania), 27 AT. Rep.. 2-15. METHOD OF ASSESSMENT OP MUTUAL FIRE COM- PANY — The charter of a mutual fire insurance company provided that the sum to be paid by each member should always be in proportion to the amount of hrs original deposit notes, but by a subsequent statute, applying to companies theretofore organized, the liability of members in such companies was limited to the amount of their notes. The court held that where the amount of a necessary assessment, if based on the face value of the notes; would as to some members exceed the statutory liability, it was proper for the company to base the assessment on the unpaid balance of all the premium notes. New Boston Fire Ins. Co. vs. Saunders (Sup. Ct. N. H.) 34 Atlantic Reporter, 670. VALIDITY OF ASSESSMENTS OF MUTUAL FIRE INSUR- ANCE COMPANY.— Where an assessment of a mutual fire insur- ance company does not cover all of the losses for that year, the adjustment of some being delayed by litigation, the policy-holders for that year are liable to a second assessment to cover such liabilities, together with interest and cost of litigation. The amounts paid on a void assessment of a mutual fire insurance company may be reassessed and t£e members who have paid the same credited therewith on the new assessment. Such assess- ment may include a sum for contingencies, within the discretion of the directors. Ionia, Eaton and Barry Farmers' Mutual Fire Ins. Co. vs. Ionia Circuit Judge (Supreme Court of Michigan), 59 N. W. Rep., 250. 6o INDICATOR'S DIGEST. ASSIGNMENT. AiSSIGNMENT OF INSURANCE POLICY.— Where a busi- ness man insured his stack of goods and made a formal assign- ment ol the policies, with the consent of the insurers, to another, to secure a .contingent liability as indorser on his notes, and also executed a chattel mortgage on his goods for the same purpose, the notes were paid off toy the maker, and the one to whom the assignment of the policies was made was released from liability on the notes. In an action on the policies for a loss, it was prop- erly brought in the name of the insured. Union Ins. Co. ts. Barwick (Supreme Court of Neb.), 54 N. W. Rep., 519. , ASSIGNMENT OF INSURANCE POLICY.— Where a policy of insurance on a building, to secure a claim for labor, insures only the interest of the applicant, but for an amount double the extent of such interest, intended by the applicant to cover an additional claim for lumber held by one to whom he subsequently made the policy payable to the extent of such claim, the insur- ance company, on destruction of the building, is liable to the assignee to the extent of the applicant's interest only, and if the assignee's claim covers the whole of such interest the company is not liable in garnishment to creditors of the applicant. Edwards vs. Arquette (Agricultural Ins. Co., of Watertown), (Supreme Court of Wisconsin), 60 N. W. Rep., 782. ASSIGNMENT OF POLICY WITHOUT CONSENT VOID.— A fire insurance policy provided that if the property insured should be sold or conveyed, or if the policy should be assigned, without written consent, then the policy should ibe void. The insured sold the property and assigned the policy without the insurance company's consent, whereupon the purchaser of the property sent the policy to an agent, who returned it undndorsed, explaining that he had no authority to authorize a transfer, and suggesting that the policy be sent to the. general agent, who would indorse thereon the company's consent. It was accord- ingly sent to the general agent, who returned it unindorsed, without explanation, but the assignee, s'upposing it to be prop- erly indorsed, made no examination of it. The former owner, after the transfer of title, had no insurance, because he had noth- ing to insure, and no right passed by the assignment of the policy. The purchaser, moreover, had no right to rely upon the suggestion of the first agent to whom he sent the policy that the general agent would indorse the company's consent ,to transfer. Insurance policies are contracts of indemnity, and are essentially personal in their nature. They relate to the insured, rather than the stibject matter of insurance, and a change of persons Insured should not occur without the consent of the insurer. New vs. German insurance Co. of Freepopt (Appellate Court of Indiana;), 31 N. B. Rep., 475. ASSIGNMENT. 6i ASSIGNMENT OF INSURANCE POLIOY.-A policy of in- surance is a contract of indemnity, pereonal to the party to wbom it is ladued, or for wliose interest the insurer undertakes to be responsible in case of loss, and cannot be assigned to a thii»d person, so as to be valid in his hands against the insurer with- out the consent of the latter. Kase TS. Hartford Fire Ins. Co. (Supreme Ct. N. J.), 32 At- lantic Reporter, 1057. BREACH OF WARRANTY BY ASSIGNMENT OF INSUR- ANCE. — Breach of a wai-ranty in a policy that the interest of the assured "in the within insurance has not been assigned, or will not under any circumstances be assigned, to any common carrier," renders the policy void, though the insurer may not have been Injured by it. A clause in a bill of lading providing that, in case of loss or damage, the carrier should have the benefit of the insurance on the goods, and should not be answer- able over to the insurer, operated as an assignment of such Insurance to the carrier. Dundee Chemical Works vs. New York Mut. Ins. Co. (Su- perior Court of New York City, General Ter'Ui), 33 N. Y. Sup. Rep., 628. VALIDITY OF ASSIGNMENT OF LEASE.— An insurance jxilicy of the standard form, insuring a building standing upon leased ground, which had been assigned to the insured the day before the issuance of the policy, and containing a clause pro- hibiting an assignment, without first obtaining the consent of the lessor, and this consent had not been obtained. It was held: That the assignment was valid as against the insurance com- pany, and that the facty did not operate to release and discharge it from liability because of the existence of a condition in its policy that it should be void if any material fact or circumstance concerning the insurance of the subject had been misrepresented or concealed, or if the interest of the insured be not truly stated. Caplis vs. American Fire Ins. Co. of New York (Supreme Court of Minnesota). 62 N. W. Rep., -140. EFFECT OF ASSIGNMENT OF INSLRANCE POLICY.— Where premises w-ere held under contract of sale the holder pro- cured insurance on "his" dwelling, not stating to nor being asked by insuring company his interest in insured property. Subse- quently the holder contracted to siell premises to another party, •who took possession, contract to be void in default of payments, and after default occupancy by such second party to be that of tenant without permission. Of this contract of sale the insurance company had no knowledge. Subsequent to this the insured as- signed his interest in premises tc the original owner and to this assignment the insurance company assented. Default being made by the second party in payment, the original owner sued to re- cover possession. Pending the action, premises, being still occu- pied by the second party, were destroyed. Held that the company having consented to assignment by the insured to the owner made a contract de novo with him and he having an insurable interest can recover under policy. Hall vs. Niagara Fire Ins. Co. (Supreme Court of Michigan), 53 N. W. Rep., 728. 62 INDICATOR'S DIGEST. WAIVER OF OBJECTIONS TO ASSIGNMENT OF IN- TEREST IN POLICY.— Where the agent of an insurance com- pany, with knowledge of all the facts, prepared an assignment of a certaJin interest in a policy, the riglit to insist that a por- tion of the policy should not be assigned is waived. Manchester K'ire Aseur. Co. vs. Glenn (Appellate Court of Indiana), 40 N. E. Rep., 926. ASSIGNMENT OF PART OF INSURED PROPERTY- BREACH OF CONDITION.— Where a policy of insurance covei-s buildings 9,nd chattels, and the land upon Which 'the buildings HStand is conveyed by deed without the consent of the insurers, in breach of a condition aiming at the prevention of a change of title in the property without ithe written assent of the insurers endorsed on the policy, the policy is voided in toto, and does not remain in force as to the chattels. Duulop vs. Osborne Fire Ins. Co., 31 C. L. J., 422. ASSIGNMENT OF POUOY.— If the insured, says the Su- preme Court of Appeals of West Virginia, before loss by fire under a policy of insurance, assign the right to damages in case of loss, and the insurer consents to the assignment, the assignee may, in his own name, as holding the legal title, recover such •damages after loss; and a reassignment to insured after loss, not assented to by the insurer, would not divest the assignee of his legal title, so as to prevent recovery in the name of the first assignee. Bentley vs. Standard Fire Ins. Co., 23 S. E. Rep., 584. WAIVER OP CONDITIONS AS TO ASSIGNMENT.— An as- signee of a fire policy takes it subject to the rights of the com- pany resulting from the procuring 'of additional insurance by the a-ssignor withoutlthe consent of the company, indorsed as re- quired by the policy. But, where a mutual company, with notice of additional insurance procured without the consent of the com- pany as required, continues to make and collect assessments, it waives such condition. Wilson vs. Mut. Fire Ins. Co. (Sup. Ct., Penna.), 34 Atlantic Rep., 122. CONDITION AGAINST ASSIGNING POLICY— BREACH OF CONDITION.— A condition in a policy of insurance against fire provided that if the policy or any interest therein should be assigned, parted with or in any way encumbered, the insurance should be absolutely void unless the consent of the company thereto was obtained and indorsed on the policy. The insured under such policy assigned by way of chattel mortgage, a,ll the property insured and all policies of insurance thereon and all re- newals thereof to a creditor. At the time of such assignment the insured had other insurance on said property, the policies of which did not prohibit their assignment. The consent of the company to the transfer was not obtained and indorsed on the policy. Held, that the mortgage of the policy without such con- sent made it void and the plaintiff could not recover the amount insured in case of loss. Salterlo vs. City of Loifdon Fire Ins. Co., 23 S. C. R., 32. ASSIGXMEXT. 63 "AS HIS INTEREST MAY APPEAR."— A clause in a fire insurance policy providing that tlie loss, if any, should be payable to a third person as his interest may appear, operates as an assignment of the policy to such appointee. Donaldson vs. Sun Mut. Ins. Co. (Supreme Ct., Tenn.), 32 S. W. Rep.. 251. VALIDITY OF ASSIGNMENT OF POLICY.— An assignment of a fire jpolicy to one having no interest in the property is valid where made on the assent of the insurer, procured without false representati'ons or suppression of facts. Blackburn vs. St. Paul Fire & Marine Ins. Co. (Supreme Court of N. C), 21 S. E. Rep., 022. ASSIGNMENT OF INSURANCE BEFORE LOSS.— The in- terest of the insiured in a policy of insm-ance on goods and chat- tels may, before loss, be validly assigned by him to a person who has no interest in them at the time of the assignment, the as- sured remaining owner of the chattels. McPhillips vs. London ilutual Fire Ins. Co., 23 A. R., 524. ASSIGNMENT OF INSURANCE POLICY.— Where an insur- . ance policy covere both real and personal property, and the per- sonal property is conveyed to another, an assignment of the policy, . so far as it relates to the latter, made with the consent of insm'er, is valid, and thereafter the assignee may recover on the policy, for loss of the personahty, and the assignor for a loss on the real estate. BuUman vs. N. Brit. & Mer. Ins. Co., Si N. E. Rep., 170. RIGHTS UNDER ASSIGNED POLICY.— An insurance policy was issued to cover a stock of eggs and the packages containing them. After loss of all by fire the policy was asisigned to secure certain indebtedness. The insurance company claimed that at the time this assignment was made the party making it had no interest in or under the policy, as he had before the loss, and almosrt immediately after the policy was issued, assigned and de- livered it to a firm as collateral security for an indebtedness due from him to them, which firm instituted a suit in New York against the insurance company. Now, as against the first men- tioned assignee the proceedings and decree in New York were void because the New York court could not acquire jm-isdiction of the person of the assignee in Iowa by service of process in the latter State. This left him free to pursue his remedy there. He showed an assignment of the contract to himself and was not bound to inquire if there were others who claimed to hold an in- terest in it. They could have intervened, but not doing it, his action could not be defeated on the ground that they were not made parties to his suit. Nor was the party to whom the policy was issued after the assignment first mentioned a trustee for the assignee so that judgment against them in an action by a third person claiming under a prior assignment would bind the assignee under the assignment first described, of course the company had the right at the proper time to show, if it could, the other and alleged prior assignment. Kelly vs. Norwich Union Fire Ins. Co. (Supreme Court of Iowa). 47 N. W. Rep., usi;. 64 INDICATOR'S DIGEST. ASSIGNMENT OF INTEREST IN FIRM— A policy Issued in the name of a firm after an assignment by one of the partnera of his Interest in the firm to his co-partner, does not misstate the interest of the assured in the property, as a mere assignment by a partner to his co-partner doeti not divest the title of the firm. Wood vs. Am. Fire Ins. Co. (Supreme Court, General Term, Third Department), 29 N. Y. Supp., 250. VERBAL ASSIGNMENT OF INSURANCE POLICY.— Where the owner of machinery which had been destroyed by fire pur- chased new machinery, and verbally assigned the policy on that destroyed as part payment for the new, the courts will give effect to the transaction according to its legal import as a pledge of the policy and the fund due upon it. Guenther vs. Gary (Court of App., Ky.), 34 S. W. Reporter, 232. EFFECT OP ASSIGNMENT IN INTEREST ON FIRM PROPERTY. — The assignment by one of the members of a firm of his interest in same does not affect the sole and uncon- ditional ownership by the firm of the partnership property, so as to avoid a policy of insurance, issued upon such property, and providing that the policy shall be void if the interest of the insured shall be other than unconditional and sole ownership. Woodvs American Fire Ins. Co. (Ct. App., N. Y.), 44 NorUi- eastern Reporter, 81. ATTACHMENT. EFFECT ON POLICY OF ATTACHMENT OP INSURED PROPERTY.— AYhere a policy provides that it shall cease if the property "be levied on or attached," an attachment of the realty, of which the building insured is a part, will not defeat the policy until the attachment is perfected iby sale on execution, for in at- tachment of realty the custody of the property is not changed. The attachment merely creates a lien on the land which can be effected within the period of time provided by statute, in the event that judgiment is obtained, by sale under execution. It is not until the title to the land has been divested that the insurance ceases, which effects a change in the title or possession. Tefft vs. Prov. Wash. Ins. Co. (Supreme Ct. R. I.), 32 At. Rep., 914. ATTACHMENT OF PROPERTY OF INSURANCE COM- PANY AFTER' SUIT TO WIND UP.— An attachment of the property of an insurance company is void where made after the filing of a bill against it by the insurance commissioner, under the laws of the State, contemplating the settlement of its affairs through receivers appointed by the court, though the injunction in force in the commissioner's suit at the time of the attach- ment only prohibited the company from further proceeding with ATTACHMENT— BENZINE. 65 business, and gave it leave to collect moneys, cancel policies wltlioiit repayment of ipremiums, and levy assessments on its members; a decree having thereafter been entered for the ap- pointment of a receiver to take possession of its property, and settle its affairs. llerrill vs. Commonwealth Mut. Fire Ins. Co. (Sup. Jud. Ct. Mass.), 44 Northeastern Reporter, 144. INSURANCE BY DEBTOR AiFTBR ATTACHMENT.^Fire insurance is, in effect, a contract of indemnity against loss or damage suffered by an owner or persons having an interest in the property insured. An attaching creditor has an insurable interest in the buildings covered by his attachment. But where he fails to procure any insurance on such interest, and the debtor takes out a policy at his own expense, the latter effects insurance on his own interest in the property, and not on that of his creditor. Donnell vs. Donnell (Supreme Judicial Court of Maine), 30 At. Rep., 67. BENZIXE. WHERE THE WRITTEN PORTION OF A POLICY covers a furniture store and repair shop connected therewith, and the "furniture, upholstery goods, and other merchandise, not more hazardous, usual to a retail furniture store," the keeping of ben- zine for necessary use in the repair shop will not avoid the policy, though expressly proihlbited in the printed conditions thereof. Faust vs. American Fire Ins. Co. of Phil! (Supreme Court of Wis.), 64 N. W. Rep., 883. STATEMENT AS TO ORIGIN OF FIRE.— In an action on ■B, i>olicy providing for forfeiture in case benzine was used on the premises, and stipulating that insured should, within a certain time after a loss, render a verified statement as to his knowl- edge and belief as to the origin of the fire, he is not prevented from recovering, by a statement that he had been informed that the fire was caused by the upsetting of benzine used by his wife in cleaning clothes, from proving that in fact no benzine was m fact used, in the absence of any claim of surprise by the com- pany. White vs. Royal Ins. Co. (Ct. App., N. Y.), 44 Northeastern Rep. 77. 56 INDICATOR'S DIGEST. BOND. BOND BiY DIRECTORS OF MUTUAL FZxviB INSURANCE COMPANIES VOID.— A manufacturers' mutual fire insurance company was organized under the statutes, iwhicli provided no methods of raising funds to meet obligations other than by pay- ment of premiums and by assessments on notes of policy-holders deposited with the company. A bond by which the directors bound themselves to furnish $100,000 to the company to consti- tute a reserve guarantee fund, and to be drawn on when neces- sary to protect the policy-holders from assessment on their de- posit notes, and which made the obligors creditors of the company to- the amount of all such advances made by them, was void. In an action on the bond the doctrine of estoppel has no application, and the obligors may raise the question of ultra vires, since all members of the company must be held to have knowledge of the law and of the articles of association, and to know that such ar- rangement is unlawful. Goss. vs. Peters (Supreme Court of Mich.), 57 N. W. Rep., 28. BROKER. APPARENT AUTHORITY OP INSURANCE BROlvl^R— In the absence (it direct proof of a broker's actual authority \o fict for the insurer, the insured may establish his agency by showing that the act rtlied was within the scope of his apparent author- ity, notwitl;standiug the policy provides that no person shall be deemed the agenr ot the insurer unless duly authorized in writing. A broker through whom insurance is procured, though at his Bollcitation, is the agent of the insured, and his acts will not Dind the insurer; but where his employment extends only to the pro- curement of th(j poli/2y, he ceases to be the agent of the insured on the execution and delivery of the policy; and the payment of a premium to a broker authorized to collect and remit the same to the company binds the latter, though it never in fact receives the money from him. Amer. Fire Ins. Co. vs. Brooks (Ct. App. Md.) 3i Atlantic Rep. 373. BROKER— BUILDING. 67 BROKERAGE IS NOT A(5ENCY.— Where, in an action upon an insurance policy, the person through whom the policy was procured testifies that he acted for insured, and the only evidence tending to show that he was agent for the insurance company is the fact that he procured the policy, and stated to the insured that he represented a number of reliable companies, it is error for the judge to assume in his charge that such person was the agent of the company. It is eiTor to refuse to instruct the jury that> if tliey find from the evidence that the alleged agent was acting as an insurance broiler at the time this application for in- surance was- made and had not prior to that time been employed by defendant company in all matters appertaining to the pro- curing of said policy, he was the agent of the assured under said policy, and only the agent of the company for the purpose of delivering the policy and collecting the premium, and that notice to him that the property was mortgaged or was situated on leased ground would not be notice to the company. East Texas Fire Ins. Co. v.«. Brown (Supreme Court of Texas), IS S. W. Rep., 713. BUILDING. EFFECT OF CHANGE IN USE OF BUILDING.— Where a building formerly used as a factory, and insured as such, is after- wards occupied throughout as a dwelling house, it is not a mis- representation, in an application for insin-ance upon it at dwell- ing house rates, to state that the building is a dwelling house. Mitchell vs. Niagara Fire Ins. Co. (Sup. Ct. 2nd Dept.), 36 N. Y. S. Reporter, 204. EVIDENCE OF CHARACTER OF BUILDING.— In an ac- tion on a policy providing that any false representations as to the condition or occupancy of the property insured, or omi&sion to make known every fact material to the risk, should avoid the policy, it appeared that the application described the building as a "general sales room." and warranted that the application was a full statement of all the facts in regard to the risk. It was held on appeal that the lower court should have allowed evidence that the building was used also as a residence, which increased the risk. Warshawky vs. Anchor JIut. Fire Ins. Co. (Supreme Ct. Iowa), 67 Northwestern Reporter, 237. ■68 INDICATOR'S DIGEST. CANCELLATION. NOTICE OF CA^'CELLATION OB" INSURANCE.— A fire in- surance policy provided that the company could terminate the insurance by giving notice to the insured or his representative, -and refunding a rata,ble portion ot the premium, but the brokers who obtained the insurance are not tlie insured's representatives to receive notice 0|f cancellation. Wright vs. Royal Ins. Co. (U. iS. Circuit Court, District Penn.), 53 Fed. Rep., 340. INSURANCE iPOLIOY NOT CANCEILLBD BY NOTICE TO BROKER.— Where an agent of a fire insurance company receives orders to cancel a policy and he notifies the broker who placed the insurance and the latter fails to notify the insured, such -notice does not cancel the policy. Scott vs. Sun 'Fire Office (Supreme Court of Pennsylvania), 19 At. Rep., 360. POWiER OF AGENT TO CANCEL POLICY.— An insurance agent having the pov(^er, under the policy, and from the company, to cancel the policy on five days' notice and tendering repayment of premiums, wrote the insured asking for i-eturn of policy for cancellation and promising to reinsure the property in another company. The policy was returned, but the agent did not can- cel It, nor did he issue any other policy. Insured was never served with notice, nor tendered the return of the premium re- quired in the exercise of cancellation by the policy. The court held that the policy remained in force. Aetna Ins. Co. vs. Rosenberg (Sup. Ct. Ark.'*, 36 S. W. Rep.. .908. SUBSTITUTED LIABILITY UPON CANCELLATION OF POLICY— Under a policy providing for cancellation by the com- pany on five days' notice, and that on cancellation, the unearned premiums should be returned, a company gave notice of oancella- tiou to an agent acting for all the parties, who replied that he Avould "take notice, and replace it as soon as possible," and who thereafter took out for stich parties, in another company, a policy for a like sum, covering the same goods, and informed the agent of the first company, that it was relieved from liability on its policy. The goods were desti-oyed by fire before the e.xpiratlou •of the five days from the date of the notice, and the second com- pany paid such parties the amount of their policy. The com-t held that the policy in the first company was cancelled by the substitution of the other company, though there was no formal cancellation, and the unearned premiums had not been returned. Arnfeld vs. Guardian Assur. Co. (Sup. Ct., Penua.), 34 At- lantic Reporter, 580. CANCELLATION. 69, POWER OF INSURED'S AGENT TO CANCEL POLICY.— An agent who has entire charge of the insurance upon property of his principal may accept notice of the cancellation of a policy, and procure substitute insurance upon tlie same property in an- other company, without previous notice to his principal, "and the- policy last issued will be valid. The waiyer of a stipulation con- tained in the first policy providing for five days' notice of cancel- lation by the parties to it would not affect the liability of the- company issuing the substitute policy. BuicU TS. Mechanics" Ins. Co. (Supreme Court of Michigan), 61 N. W. Rep., 337. RECOVERY OF PREMIUM AFTER CANCELLATION OF POLICY'. — Where agents issued a policy of insurance to some parties, and advanced the premium, on the latter's promise to reipay them before a certain date, and the policy provided that it might be cancelled at any time after five days' notice, and th& anearned portion of the premium returned, and the parties made default in repaying the agents, whereupon they gave the required notice and had the policy cancelled and received from the com- pany the unearned portion, they are entitled to sue and recover from the assured the difference between the premium and what they received back from the company. Cobb vs. Keith (Supreme Court, Ala.), 18 So. Rep., 325. NOTICE OF CANCELLATION TO AGENT.^A person de- siring to insure his premises applied to one who had blank appli- eations of an insurance company, for insurance. The latter filled out an application and forwarded it to a regular agent of the company, who acknowledged its receipt and said that he for- warded the application to the company, and as soon as St had passed upon it wc>uld inform him. The company refused the risk, but the agent failed to notify the complainant that the ap- plication had been rejected for nearly a month after a loss had occurred. The failure of the agent to notify the complainant that the risik was declined made the company liable for the issue. Moore vs. New York Bowery Ins. Co. (Supreme Court of New- York), 10 N. Y. Sup., 44. EVIDENCE OF CANCELLATION -OF POLICY.— In an ac- tion by a fire insurance company against its agent for his failure to cancel a policy as instructed by it, the evidence showed that when the instruction was given the agent wrote the general agent of the company, recommending that the policy be allowed to stand, and that the general agent, in reply, wrote that he preferred not to can-y the risk, and afterwards wrote him to return the policy, but the latter did not answer either of the letters. After instructing the cancellation the general agent drew on him for a balance due the company, including the pre- mium due on this policy, and the monthly reports for the follow- ing eight months made to the general agent showed what policies had been cancelled, but did not contain this, nor did the general agent ask for it, though he had written for other cancelled pol- icies. It was the custom when policies were cancelled to return them to the company. When such agent left the employ of the 70 INDICATOR'S DIGEST. company, after the loss occurred, his accounts were settled but no allowance was made him for the premium paid on this policy. In other instances the company had at his request withdrawn their instructions to cancel policies. The court held that whether the company had acquiesced in the agent's neglect to cancel the policy, was a question of fact to be determined by the jury. American Cent. Ins. Co. vs. Hagerty (Sup. Ct., 4th Dept.), 36 N. y. S. Rep., 559. CANCELLATION OF INSURANCE BY "BINDING SLIP." —Where an insurance company accepts an application for insur- ance, and issues a "binding slip" which it is agreed shall make the insurance of full force and effect until in the regular course of business the policy itself can be issued, the binding slip being the representative of the policy, stands subject to the conditions applicable to the policy, and the company has all righta of can- cellation it would have under the policy if it had been issued. Where the policy is to be issued in place of the binding slip pro- vides that any broker procuring the policy shall be the agent of the assured and not of the company, the policy providing for cancellation by the company, notice of cancellation to the broker Is notice to the conlpany. Karleson vs. Sun Fire Office (Court of Appeals of New York), 25 N. E. Rep., 921. CAPITAL STOCK. NOTICE TO RESTORE IMPAIRED CAPITAL OF MU- TUAL COMPANY IN NEW YORK.— The provision of the laws of New York authorizing an action by the attorney-general to dissolve a corporation, where it becomes insolvent, or unable to pay its debts, or has violated any law, is not limited by the provision of the laws of 1892, of that state, that, if it appears to the superintendent of insurance that the assets of a mutual company are insufficient, notice shall be given to its officers to make good the deficiency, and that if it shall not be made good within the time specified, it shall be subject to dissolution, though the ability and offer of the comi>any to restore its im- paired capital may be considered on the application for dissolu- tion. 33 N. Y. S., 708, reversed. People vs. Equit. Mut. Fire Ins. Corp. (Supreme Ct. 1st Dept), 37 N. y. S. Reporter, 80. CARGO— CHATTELS. 71 CARGO. FIRE IN OIL CARGO.— A vessel, loaded with case oil and ready for sea, caught fire about 12 o'clock at night, while lydng anchored in the harbor of New York. A passing tug went to her assiatance, at the same time signaling for more help. Her sig- nals collected seven other tugs and a ferry-boat, all of the avail- able boats in the vicinity, and lastly came the police-boat Patrol, which had been sent for by the first tug to arrive. All of these boats pumped water on the fire, and extinguished it at about 5 o'clock in the morning. But 283 out of the 55,600 cases of oil were damaged. The saving to the owners of the vessel and cargo, without considering freight, was $81,400. There was no extraordinary labor or exposure or peril to life. The salving vessels should collectively recover $20,000 as salvage. The Bay of Naples (District Court of the United States, Eastern District of New York)) 44 Fed. Rep., 90. CHATTELS. EFFECT ON INSURANCE OF EXECUTION OP CHATTEL MORTGAGE OX FIRM PROPERTY FOB INDIVIDUAL DEBT. — The execution of a chattel mortgage on partnership property by one of the partners to secure his individual debt works a change on "interest" in the property, within the meaning of a policy of insurance placed thereon by the partnership, which provides that the policy shall become void, if any change, other than by death of the insured, takes place in the "interest, title, or possession" of the property insured. Oleny vs. German Ins. Co. (Supreme Court of Michigan), 50 N. W. Rep., 100. POLICY— CHATTEL MORTGAGE— WAIVER.— The policy was conditioned to be void if the property should be encumbered by mortgage. There was a chattel mortgage on the property. After the fire the president of the company visited the scene of the fire, inspected the ruins and conversed with the plaintiff; and it was after that that the plaintiff with the defendant made an ar- rangement for an appraisal, and an appraisal was made. Proofs of loss were also s^ubsequently put in and accepted by the defen- dant. Held, that these acts constitute a waiver of the forfeiture. Kiernan vs. Dutchess County Mutual Ins. Co. (N. Y. S. C), 29 New York Supplement. 72 INDICATOR'S DIGEST. FORFEITURE: CHATTEL, MORTGAGE— Where a policy provides that it shall be void if the property insured become in- cumbered by a chattel mortgage, the placing of such mortgage on the property forfeits the policy, though such mortgage be paid ofC and canceled prior to a loss. German-American Ins. Co. vs. Humphrey (Sup. Ct. Ark.) 35 Southwestern Reporter, 428. MORTGAGE ON PERSONAL PROPERTY COVERED BY INSURANCE.— A policy on personalty conditioned that it should be void if "the subject of insurance" be incumbered by a chattel mortgage was not avoided by a chattel mortgage on one of the articles covered by the policy. And where such policy provides that it shall be void if foreclosure proceedings be begun with knowledge of the Insured, is not avoided where proceedings were commenced without his knowledge. N. Brit. & Mercantile Ins. Co. vs. Freenlan (Ct. Civ. App., Tex.), 33 S. W. Reporter, 1091. CLERK. PRINCIPAL AND AGENT.— The authority of a clerk of an insurance agent, employid by the agent, without authority of the principal, express or imiplied, is inadmissible to fasten a lia- bility on the company, which had no knowledge of such employ- ment. Springfield F. & M. Ins. Co. vs. De Jarnett (Sup. Ct. Ala.), 19 Southern Reporter, 995. POWER OF AGENT'S CLERK TO MAKE CONTRACT.- An agent for an insurance company, possessing the power to con- tract for risks, write and deliver policies, collect premiums, and make indorsements upon policies, employed a clerk, and author- ized him to transact the business for him in the agent's name. The clerk in the line of his employment wrote the policy in ques- tion, signing the agent's name thereto, and the risk was reported to and approved by the company. Afterwards, the agent Indorsed upon the policy his approval of the assignment thereof, by the insured to the purchaser of the property. Subsequently, the clerk indorsed upon the policy, permission for additional concurrent insurance, for the discontinuance of the night watchman and watchman's clock, and any loss under the policy was made pay- able to the mortgagees, which indorsement was reported to the company in the agent's name, and the attention of the latter was called thereto, who acquiesced in the same. In an action on the policy it was held that the act of the clerk in making the Indorse- ment was the act of the agent and was binding upon the com- pany, to the same extent as if the same had been made by the agent personally. German Fire Ins. Co. of Freeport vs. Rounds (Supreme Court of Nebraska), 53 N. W. Rep., 660. CLERK— COAIBINATIONS. 73. COMPAXY BOUND BY CLERK.— An insurance company, says the Appellate Court of Indiana, is bound by the acts of a clerk of its agent in accepting risks and issuing policies against the same in the performance of his duties, and one dealing with the clerk Is not bound to inquire as to the authority of the clerk in regard to such matters. German Fire Ins. Co. vs. Columbia Encaustic Tile Co.), 43 N. E. Reporter, 41. KNOWLEDGE BY AGENT'S CLERK AND PROOF OP WAIYER.^A communication of facts material to a risk, made to a clerk sent by an agent to solicit insurance, is notice to the company. And in an action on an insurance policy to recover for a loss by fire, where the insurance company sets up that a material fact was not noted on the policy, contrary to its condi- tion, a reply alleging a parol representation and waiver by the agent need only be proved by a preponderance of the evidence, since the action does not involve the correction of a written in- strument. Bergeron vs. Pamlico Insurance and Banking Co. (Supreme Court of North Carolina), 15 S. E. Rep., SS.3. COMBIXATIOXS. ACTION TO RESTRAIN FIRE INSURANCE COMBINA- TION. — Under the statute making it the duty of the Attorney- General to inquire into the charter rights of private corporations, and to take action to prevent such corporations from exercising any power not authorized by law, he may bring an action in the name of the State to restrain the establishment of a fire insur- ance monopoly, by an agreement among the companies fixing the rates of insurance, and intended to control the business in the State and prevent competition. Queen Ins. Co. vs. State (Court of Civil Appeals of Texas), 22 S. W. Rep., 1048. VALIDITY OF COMBINATION OF FIRE UNDERWRI- TERS. — An association of fire underwriters, formed under an agreement providing for the regulation of premium rates, the prevention of rebartes, the compensation of agents, and non- intercourse witlh companies not members, is not an illegal con- spiracy, and the accomplishment of its purpose by lawful means will not be enjoined at the instance of a company not a mem- ber of the association. The dieimissal of an agent by one of the associated companies for refusal to represent such companies excl'usively, and a refusal to place insurance for outside com- panies, are lawful means to accomplish the purposes of the association. The advertisement by an agent of certain of the associated companies that he had autlhority to cancel policies of outside companies, land rewrite them at lower rates, when in fact he had no such authority, and threats to boycott the 74 INDICATOR'S DIGEST. agents and customers of outside oompaaiies unless they with-, drew their ^patronage, are illegal, and will be enjoined. Continental Ins. Co. vs. Board of Fire Underwriters of the Pacific (Circuit Court N. D. California), 67 Fed. Rep., 310. COMPROMISE. OFFER TO COMPROMISE NOT ADMISSIBLE IN EVI-' DENCE AGAINST COMPANY.— In an action on a policy of in- surance, the Supreme Court of Alabama holds that, evidence of an ofCer of compromise made by the company is inadmissible. Feibelman vs. Manchester Fire Assur. Co., 19 So. Rep., 540. EVIDENCE OP COMPROMISE— EXCESSIVE VERDICT.— A conversation of an insurance company's adjuster, who adjusted the loss as to compromise of claim, is inadmissable, unless it is clearly shown that it had been communicated to plaintiff. A ver- dict for $700 for a house that had been standing for fifteen years and was valued by disinterested parties at $734, Is excessive. Guinn vs. Phoenix Ins. Co. (Supreme Court of Iowa), 45 N. W. Rep., 880. WHEN COMPROMISE CANNOT BE RESCINDED.— Where the assured accepts a compromise offer in settlement of a dis- puted loss under his policy, and gives a receipt in full, knowing it to be such, he cannot rescind the settlement as procured by fraud, without a return of the money received Harlsey vs. Mechanics' & Traders' Ins. Co. (Sup. Ct. Ark.), 35 Southwestern Reporter, 230. COMPROMISE OP CLAIM NOT BINDING ON INSURED IN NEW JERSEY.- Where property was insured against fire, which having occurred the insured sustained a loss which was liquidated at the sum of $116, and the company settled by paj-ing insured in satisfaction of his claim $75 and costs, the Supreme Court of New Jersey held that a payment of a less sum in satis- faction of a larger one is no satisfaction, and the payment being of a sum less than the amount due, the release was nugatory, being devoid of all consideration. Chambers vs. Niagara Fire Ins. Co., 33 Atlantic Reporter, 283. ADJUSTMENT OP INSURANCE WAIVES BREACH OF CONTRACT.— Where the adjuster of an insurance company ad- justs and compromises a loss, agreeing to pay in a few days the loss as adjusted, the company waives the conditions of the policy, and can not set up a defense to an action by the assured for the sum agreed to be paid by the adjustment. Wagner vs. Dwelling House Ins. Co. (Supreme Court oif Penn- sylvania), "22 At. Rep., 885. CONCEALMENT— CONTRACT. 75 CONCEALMENT. A FIRE POLICY CONDITIONED TO BE VOID if the In- sured has concealed any material fact, or if his interest ibe other than unconditional and sole ownership, is void where the fact that there was a recorded mortgage on the property was not mentioned, though the concealment was not fraudulent. Fireman's Fund Ins. Co. vs. Barker (Court of Appeals of Col- orado), 41 Pac. Rep., 513. EFFECT OF SILENCE OF INSURED.— Under a policy pro- viding that the same shall be void If there was any omisiion to make known every fact material to the risk, where insured made no representation to the company's agent as to hie owner- ship of the property, and no inquiry was made about its condi- tion, and the agent knew from previous insurance on the same property that insm-ed had recently purchased the property, the omission of the insured to make known the existence of a ven- dor's lien does not prevent hi® recovery for a loss. Liverpool & London & Globe Ins. Co. vs. Ricker (Court of Civil Appeals of Texas), 31 S. W. Rep., 248. CONTRACT. THE SUPREME COURT OF WISCONSIN HOLDS, That an insurance company uay, within the /State of its domicile, make valid contracts of iwji'ance against fire on property situated in a sister State, withoat regard to the laws of the latter State. Seamans vs. Knapp, Stout & Co., 61 N. W. Rep., 757. TIME OF MAKING CONTRACT OF INSURANCE.— An ap- plication for insurance, dated September 11, for one year from September 12, stated the amount and the rate, and described the property. The agent, who might have accepted or rejected the application, referred it to the company, which accepted it on the 19th. On the ^id the agent sent the applicant a policy commencing that day. The premieesi had been burned on the 21st, which was unknown to the agent. It was held that the company was liable on the contract completed on the 19th. Hartford Fire Ins. Co. vs. King (Supreme Court of Alabama), 17 So. Rep., 707. INSURANC5E CONTRACT.— The Wisconsin statute provides that a true ,copy of all applications for Insurance shall be at- tached to and made a part of the policy of insurance, or if neg- lected to be attached the company shall not be allowed to rely thereon. This statute applies to foreign insurance com- panies for they are not compelled to do business in the State. If they do voluntarily choose to do so, however, they must sub- mit to the conditions imposed by the Legislature. An agent effecting insurance has power to waive by parol the four-fifths co- insurance clause. Stanhilber vs. Mutual Mill Ins. Co. (Supreme Court of Wis- consin), 45 N. W. Rep., 221. 76 INDICATOR'S DIGEST. CONDITION IN INSUBANCE POLICY AGAINST DIVIS- li^LE CONTRACT.— Under a provision in a policy of insurance, for separate amounts on a dwelling house and tlie furniture there- in, that the "entire" policy shall be void if the property, real or personal, be incumbered, a judgment docked so as to incumber the house avoids the policy as to the furniture as well as the house. Kiernan vs. Agricultural Insurance Company, oif Watertown (Supreme Court of New York), 25 N. Y. Supp., 438. VALIDITY OF MODIFICATION OF CONTRACT FOR IN- SURANCE.— Where one who held a policy containing an SO per cent co-insurance clause applied for reduction of premium, and accepted a policy containing a 100 per cent co-insurance clause. After the fire he filed proofs of loss on the 100 per cent basis, was paid the amount thereof, and surrendered the policy. By such action the insured ratified the substitution of the 100 per cent co-insurance clause. Belt vs. American Central Ins. Co. (Supreme Court, General Term First Department), 26 N. Y. Sup., 692. , PLACE OF CONTRACT.— A party made application to agents, in New Hampshire, for insurance, and heard nothing from it until the agents delivered him a policy executed by a company having its home office in Massachusetts, and he paid the agents the premium. The Court held that the contract was made at the time and place of the delivery of the policy, and the rights of the parties to it were governed by the laws of New Hampshire. Perry vs. Dwelling House Ins. Co. (Sup .Ct. N. H.), 33 At- lantic Reporter, 731. DISABILITY OF INSURANCE CONTRACT.— In an action on a policy of insurance covering property located at different places, and which one sum was specified as to the premium on all the property, in order to show that the policy was divisible, and that breach of the condition as to the property in one place would not forfeit the insurance on the other property, evidence outside the policy is admissible to show the different rates of insurance were understood by both parties to be charged on the property, and that the aggregate premium expressed in the policy was an average between higher and lower rates. Loomis vs. Rookford Ins. Co. (Supreme Court of Wisconsin) 51 N. W. Rep., 564. '' CONFLICT OF LAWS: INSURANOE CONTRACT.— A res- ident of Massachusetts applied by mail, through a broker in Indiana, to the insurer in New Hampshire, for insurance upon property situated in Massachusetts. The insurer issued in Its business two forms of policies, one, the standard policy, required by the laws of New Hampshire, on property situated in that State; the other on property situated out of the State which contained provisions prohibited by the laws of New Hampshire The policy accepted by insured was of the latter kind The Supreme Court of New Hampshire held that it was the intention of the parties to contract according to the laws of Massachu- setts, and therefore provisions in the policy prohibited bv the laws of New Hampshire were not invalid. Davis vs. Aetna Fire Ins. Co., 34 Atlantic Reporter 464. CONTRACT. 77 INTERPRETATION OF CONTRACT BY ACTS OF PAR- ■TIES.— Where an agent having been employed to procure insur- .ance for a party, wlio agi-eed to pay the premiums on delivery of policies, sent "binders," to which he objected because of the amounts placed in certain companies, and the agent then prom- ised to send policies as desired, the agreement was construed by the acts of the parties as limiting the amounts to be placed in the specified companies. Tanenbaum vs. Feist (Common Pleas of New York City and County, General Term), 26 N. Y. Supp., 74S. ENTIRE AND SEVERABLE CO NTR ACT.— The fact that the premium is a gross sum, while the policy cavers buildings several miles apart, -will not make the oontraet entire, and the sale of one of the pieces of property, without consent of the com- pany, will not invalidate the policy as to the other buildings. IxKxmis vs. Rockford Ins. Co. (iSupreme Court of Wisconsin), 45 N. W. Rep.. 813. VALIDITY OF CONTRACT. -Where the soliciting agent for a foreign insurance company has no authoriity to pass upon applications nor to issue policies, and the premiums paid are forwarded directly to the home office, the contracts of insurance are contracts of the state in which the home office is located. The statute, imposing a penalty upon anyone doing business for a foreign insurance company which has not complied with the state law, does not render policies issued by such foreign company void. State Mut. Fire Ins. Ass'n vs. Brinkley Stave & H. Co. (Supreme Court of Arkansas), 31 S. W. Rep., 157. SEVERABLE CONTRACT OF INSURANCE.— A policy on a building and on personal property, specifying a certain amount on each, provided that it should be void if the interest of the assured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insui-ed in fee simple. The assured owned the personal property, but not the land. The contract was severable, and the insured could recover the loss on the personal property. Mott vs. Citizens Ins. Co. (Supreme Court of N. Y.), 23 N. Y. S., 400. CONTRACT TO INSURE.— Where the act incorporating a mutual fire insurance company does not limit its power to the making of contracts of insurance which are evidenced by written policies, there is nothing to prevent its binding itself by a con- tract of insurance without issuing a written policy. Where an agent receives a premium and tells the applicant for a renewal policy that he is insured for another year, and the premium is retained until after a loss occiu's, in the absence of any notice to the insured that the agent is not authorized to make a contract of insurance, the company is liable for the loss though no policy is issued. The recital in an insurance policy that the company is not liable for contracts made by agents before they have been approved and certified to in writing by the secretary, can relate only to contracts made by the agents after the execution and delivery of the policy, unless the applicant has actual notice that the agent has no authority to make a contract of insurance. Zell vs. Herman Farmers' Mut. Ins. Co. (Supreme Court of Wisconsin), 44 ;N. 'W. Rep., 828. 78 INDICATOR'S DIGEST. VALIDITY OF CONTRiACT TO HOLD EXPIRED POL- ICIES.— A contract to temporai-ily "hold" certain expired pol- icies of fire insurance is valid, although there is no payment of premium or tender thereof, if the insurance agent chooses to give credit to the assured. Baker vs. Westchester Fire Ins. Co, (iSupreme Judicial Court of Maasadhusetts), 38 N. E. Rep., 1124. WHEN WRITTEN CONTRACT IS UNALTERABLE.— A policy declared that it should be void "if the subject of insur- ance was a building on ground not owned by the insurer in fee simple." The insured in hie declaration set up that the agent of the insurer fraudulently inserted this clause, and knew at the time that he did not own the ground on which the building stood. The Supreme Court of New Jersey held, that an unambiguous written contract, when sued on in a court of law, is unalterable. Also, that a declaration in a written contract is bad if it set up matter which, if ti-ue, has the legal effect of destroying the contract sued on. Martin vs. Ins. Co. of North America, 31 At. Rep., 213. VAI^IDITY OF INSURANCE CONTRACT WHEN INSUR- ER'S AGENT IS ACTING FOR INSURED.— Where the terms of insurance are settled between the assured and the agent of an insurance company, acting within the real or apparent scope of his authority, and it is agreed that a policy evidencing the con- tract shall be issued, to take effect from the date of the agree- ment, such contract is binding upon the company. An oral con- tract of insurance made by the agent of an insurance company while acting as agent for the assured, and not assuming to repre- sent the company in the contract, but dealing with its officers hav- ing full authority to act, is binding upon the company. North British & M. Ins. Co. vs. Lambert (Supreme Court of Oregon), 37 Pac. Rep., 909. INTERIM CONTRACT— TERMINATION OP— NOTICE- STATUTORY CONDITION.— The plaintiff applied to the defend- ants, in writing, for an insurance against loss by fire, and under- took, in writing, to hold himself liable to pay to the defendants such amounts as might be required not to exceed $46.50, and signed a promissory note, in favor of defendants, for $15.2.5. The defendants' agent gave him a written provisional receipt for his undertaking for $46.50, "being the premium for his insurance," etc. The receipt contained a condition to the effect that tmless the insured received a policy within fifty days, with or without a written notice of cancellation, the insurance and all liability of the defendants should absolutely be determined. No policy was sent within the time limited, nor was any notice of cancellation given within that time, nor until by letter, two days before a fire occurred on insured premises. Held, that the application, undertaking, note, and receipt constituted a contract of fire in- surance within the pro-\asions of the Ontario Insurance Act (R. S. O., ch. 167) which could only be terminated in the manner prescribed by that act, that is. by the giving of seven days' no- tice by registered letter (R. S. O., ch. 167, s. 114, ss. 119), and thus the contract was still subsisting at the time of the fire. Barnes vs. Dominion Grange Mutual Fire Ins. Association, 25 O. R., 100. COXTRACT. 79 VALIDITY OF VERBAL CONTRACT FOR FIRE IiNSUR- ANCE. — The issuance of a policy is not necessary to a valid con- tract of insurance; and if a verbal contract to issue is made with an authorized agent of the company, without mentioning any date for the insurance to take effect, the risk commences immediately. Potter vs. Phoenix Fire Ins. Co. (Circuit Court, W. D. Mis- souri), 63 Fed. Rep., 3S2. CONSTRUCTION OP INSURANCE CONTRACT.— Courts will construe a contract of insurance liberally, so as to give it ef- fect, rather than to make it void. Conditions which create for- feitures will be construed most strongly against the insurer. Only a stern legal necessity will induce such a construction as will nullify a policy. An immaterial variance in the incumbrance ui)on, or value or size of, property, which was in no way detri- mental and which did not render the risk more hazardous, would not vitiate the contract, but if false and material, would affect the rights of parties. What would be considered a slight variance in one instance, might be material in another; the materialty to be determined by the amount insured, the value of the prop- erty, the amount of incumbrance in proportion to value; and all relate to the fact as to whether the risk would have been as- sumed had the exact fact been known at the time the policy was isstied. McNamara va. Dakota Fire & Marine Ins. Co. (Supreme Court of South Dakota), 47 N. AV. Rep., 2SS. • INTERIM CONTRACT— NOTICE TO TERMINATE— STAT- UTORY CONDITION. -Upon an application for insurance for four years, and the giving of his note for the premium, the appli- cant received an interim receipt, containing the conditions (among others) that the insTirance was subject to the approval of the directors, who should have power to cancel the contract within fifty days by letter, and that unless the receipt was followed b.v a policy within fifty days the contract of insurance should cease and determine. No notice of cancellation was given, and no polic.v was issued. Held by the Queen's Bench Divisional Court (25 O. R., 100), that the application, note and receipt constituted a contract of fire insurance which could only be terminated in the manner described by the 19th statutory condition (R. S. O., ch. 167, s. 114, SIS. 19), that is, ihy giving notice to that effect, in the case of personal service, five days' notice being required, and when by post, by giving eeven days' notice, and thus the contract was still subsisting at the time a fire occurred on the insured premises. In the Court of Appeals the Chief Justice held that the contraxit could only be terminated in accordance with the 19th statutory condition. Burton and Osier, J. J. A., held that there was a mere incomplete or provisional contract of insoir- ance which came to an end in fifty days by effluxion of time. Mademan, J. A., that there was a contract of insurance and that the provision for determination by effluxion of time was a vari- ation from the statutory conditions, which was not binding, not being printed In the required mode. See R. S. O., ch. 1()7. s. 115. In the result the judgment of the Queen's Bencti Divisional Court in favor of the insured was affirmed. Barnes vs. Dominion Grange Mutual Fire Ins. Assn., 31 C. L. J., 5S. 8o INDICATOR'S DIGEST. VAI/IDITY OF CONDITION PRECEDENT.— A fire policy, executed by a firm as agents and attorneys in fact for various underwriters, whose names such firm attached to the policy, pro- vided that no suits or other proceedings should be begun against any o£ the underwriters until after suit had been brought against the members of such firm, as the attorneys in fact, for the full amount of the loss or claim, and final determination of such suit, etc. The court held that the condition precedent to the right of action on the policy was against public policy, and void, in that such attorneys were not parties to the contract, and no cause of Farjeon vs. Fogg (Sup. (it, New York County), 37 N. Y. S. action upon it could exist against them. Reporter, 9S0. VALID CONTRACT OF INSURANCE.— Where an insurance company's agent signed and authorized to be filled and delivered a policy of insurance in renewal of a former one issued by him, and the insured's agent, on the date of the expiration of the old policy, applied for a renewal of the insurance, and was informed of the action of the company's agent, who afterwards forwai-ded the .policy to the general office as a valid and binding contract, without having asked payment of the premium, it was held that there was a valid contract of insurance. Lum vs. United States Fire Ins. Co. (Supreme Court of Michi- gan), 62 N. W. Rep., .562. THE. CONTRACT OP INSURANCE.— The authorities agree that before a contract of imsuranoe, or to insure, is binding, all the essential elements and terms of the contract must be under- stood and mutually assented to. A mere expression of a desire by one intending to procure insurance, or a proposition made to an insurance agent to insure property, and an assent or accept- ance by the agent, without more, would not amount to a contract of insurance or an agreement to insure. The subject-matter, pe- riod, rate of insurance to be paid, and the amount of insurance, and perhaps other elements must be agreed upon expressly or by implication before there can be absolute, binding agreement be- tween the parties, nor would the mere fact that there had been previous dealings between the parties, alone without some refer- . enee to suioh 'previous dealings, be sufficient to show a complete , and binding contract that 'the parties intended to and did adopt the provisions of the former dealings. Where, however, there , exists a contract of insurance, not expired, and there is an' agree- ;ment between the parties to renew the policy, and no change is ; suggested or agreed upon, it will be implied that the renewal con- tract includes and adopts all the provisions of the existing con- tract. Such a contract is complete in all respects and upon failure to com,ply with the agreement the .party offending may be com'pelled, by bill in equity, specifically to perform the agi-ee- ment, or held liable in a court of law for damages resulting from a breach of the agreement. Where tlie evidence shows that the parties contracted with reference to provisions of previous deal Ings, it is competent to show the terms of euch previo'us deal- ings, in order to arrive at the intention of the parties, and to as- certain all the terms of the contract made; and where the agree- ment was to renew an existing contract, it is proiper and neces- sary to admit in evidence such existing contract of insurance. Commercial Fire Ins. Co. vs. MoiTie (Supreme Ct Ala) 18 So. Rep., 34. CONTRACT. 8i PERFORMANCE OF CONTRACT TO INSURE.— A contract to insure, when made by one whose business it is to insure, Is per- formed by issuing a policy; when made by one who is not in the business of insurance, it is performed by the procuring of a policy — the liability on such a contract en-ds there, Scranton Steel Co. vs. Ward's Detroit and Lake Superior Line (Circuit Court of the United States, Eastern District of Michigan), Dec. 2, 1889, 40 Fed. Rep., 866. OBLIGATION OF CONTRACTS.— The obligation of the con- tract arising from the charter of an insurance company not im- paired by subsequently enacted police regulations requiring every such company to make annually a statement of its condition, where making such statements would not subject the charter to any conditions or modifications. Eagle Ins. Co. of Cincinnati vs. State of Ohio (Supreme Court of the United States), 14 Sup. Ct. Rep. 868. WiHAT CONSTITUTES A JOINT OR SEVERAL CON- TRACT. — Where several insurance companies employ an ap- praiser to represent their interests in an appraisement, the em- ployment will be presumed to be joint, and a payment of the ap- praiser's compensation by one of the companies inures to the bene- fit of all. Muench vs. Globe Fire Ins. Co. (Common Pleas of New York City and County, General Term), 28 N. Y. Supp. 569. RIGHT OF INSURERS TO BENEFIT OP CONTRACTS F;NTERED INTO BY ASSURED— PAYMENT BY INSURERS WITH KNOWLEDGE OF CONTRACTS— RIGHT OF INSUR- ERS TO BENEFITS ASSURED MIGHT HAVE RBCEIVED.- On payment of the money secured by a policy of fire insurance, the insurers are entitled to enforce all the remedies which the assured has against third parties under then subsisting contracts relating to the subject matter of the insurance, whereby the assured can compel such third parties to make good the loss insured against. Therefore, if at a time subsequent to payment by the insurers the assured releases the third party or parties from his or their liability under the contracts to make good the loss, the insurers can recover from the assured the equivalent of the benefit which the latter might have received under such con- ti-aets, even though the insurers made the payment with knowl- edge of the contract, and did not at that time claim their right of subrogation under it, unless the conduct of the insurers lias been such that they must be deened to have abandoned such rights, and it would be inequitable to allow them to insist upon them, in which case they will be estopiped from enforcing them. West of England Fire Ins. Co. vs. Isaacs, 65 L. J. Rep., Q. B. D., 653. NOTICE TO TERMINATE CONTRACT— STATUTORY CONDITION— WAIVER— ESTOPPEL.— The applicant applied for an insurance on his property for four years, giving an under- taking to pay the amounts required from time to time and a four months' note for the first premium. He received a receipt stat- ing that the company had received an undertaking for the pre- mium for an insurance on the property described in the applica- 82 INDICATOR'S DIGEST. tion, aud providing that the company could cancel the contract at any time within fifty days by notice mailed to the applicant, and that the non-receipt of a policy within the fifty days, with or without notice, should he absolute evidence of the rejection of the application. No notice of rejection was sent to the applicaxit and no policy was issued within the said time. Some weeks after the expiry of the fifty days the applicant received a letter asking him to remit funds to pay the four months' note. He did so. and his letter of remittance crossed another from the man- ager, stating that his application was rejected and returning the undertaking and the note. A few days afterwards the insured property was destroyed by fire; the company's manager was noti- fied by telegraph and subsequently wrote returning the money remitted by the applicant, who sent it back to the manager, by whom it was again returned. Held, that there was a valid con- tract of insurance which was governed by the statutory condi- tions in the Ontario Insurance Act (R. S. O. 1887, C. 167), al- though not in the form of a policy; that if the provision as to non-receipt of a policy within fifty days was a variation of the statutory conditions it was ineffectual for non-compliance with section 115, requiring variations to be printed in a different col- ored ink from the rest of the document, and that even if it had been so printed the condition was unreasonable; and that such provision, though the non-receipt of the policy might operate as a notice, was inconsistent with the 19th statutory condition, which provides that notice by post shall not operate until seven days after its receipt. Held, also, that there was some evidence for the .iury that the company, by demanding and receiving pay- ment of the note, had waived the right to cancel the contract and were estopped from denying that the applicant was insured. Dominion Grange Mutual Fire Ins. Association vs. Bradt, 25 S. C. R., 154. INSURANCE FOR BENEFIT OF CONTRACTOR.— Where a policy of fire insurance is issued in the name of the owner of a building which is in course of construction and endorsed "Contrac- tors' insurance for 30 days," the intention being to indemnify the contractor for 30 days and the owner thereafter, in case of loss within 30 days the policy will be enforced in favor of the contrac- tor, and although the policy is a written contract verbal testimony will be received to show that that was the intention of the parties thereto. Germania Fire Ins. Co. vs. Thompson (Supreme Court of Cal- ifornial. 23 Pac. Rep., 008. CONTRIBUTION. WHERE RIGHT OF CONTRIBUTION BETWEEN IN- SURERS DOBS NOT EXIST.— An advertisement and sale of in- sured property under a power contained in a mortgage is not a violation of a policy of insurance which provides that it shall be void on the entry of a decree of foreclosure of the insured prop- erty, since, though the foreclosiu'e sale be regarded .is equivalent COXTRIBUTIOX— CUSTOM— DAMAGES. 83 to a decree of sale, such decree does not pass title untir ratified by the court. Nor is such advertisement and sale a violation of a condition that the policy shall be void iif the insured property is sold under a deed of trust, or any change is made in the title or possession of the property, since it is necessary for the sale under the power in the mortgage to be reported to court, and the same proceedings had as if the"prol)erty had been sold by a trus- tee Tinder a decree, and since, till' such proceedings are had, the title of the assured has not come to an end, which is the only thing this clause of policy contemplates. Where there are sev- eral policies of insurance, each stipulating to pay the proportion of loss which the amount insured by it bears to the whole amount insured on the property by all the policies, the contracts are in- dependent and each insurer binds itself to pay its own proportion without regard to iwhat may be paid by others, and no right of contribution exists in favor of either of them. An action was brought on a policy containing the stipulation referred to. The company sued answered that the full amount of insurance had been paid by the other companies. The application did not aver that the other insurers had paid more than their ratable portion of the insurance, hut averred a compromise with them, and an assignment to insured of their claim for contribution against this company. It was error to admit evidence of such assignment, since the pleadings showed that the other insurers had no right of contribution. Hanover Fire Ins. Co. vs. Brown (Court of Apoeals of Mary- land). 2', At. Rep., 0S.9. CUSTOM. EVIDENCE AS TO CUSTOM AMONG AGENTS— It was not proper to allow the secretary of another insurance company to testify as to the manner in which he would describe the buildings covered by a fire policy, when there was one in front and one in the rear of same lot, there being nothing to show that sucli was the general custom, or that the insured knew of such practice. Rickerson vs.Hartford Fire Ins. Co. (Ct. App. N. Y.) 4o N. E. Reporter, 836. DAMAGES. DAMAGES FOR BREACH OF COVENANT TO INSURB.- The measm-e of damages for breach of covenant by a lessee to keep the demised premises ineured for the benefit of the lessor is the cost of effecting the insurance, and uot the amount of the insurance. National Mahaiwe Bank vs. Hand ^Supreme Court, GeneraT Term. First Department). 30 N. Y. Supp.. ."lOS. «4 INDICATOR'S DIGEST. EIGHT OF INSURER TO SUE— Upon payment of the loes by the Insurer, though he was not legally bound to pay, the right vests in him to bring action for damages against a third party, through whose negligence the insured property was de- stroyed. St. Louis, A. & T. Ry. Co. vs .Fire Ass'n of Philadelphia (Su- preme Court of Arkansas), 30 At. Rep., 350. DELAY. DELAY OF NOTICE NOT WAIVER OF CONDITIONS.— Where a policy requires proof of loss to be furnished within sixty days after a fire, and it is not furnished until ninety-six days thereafter, a delay of over a month, to object that It vt^as not fur- nished In time does not warrant a conclusion that such limit was waived. Carey vs. AUemania Fire Ins. Co. (Supreme Ot. Pa.), 33 At- lantic Reporter, 1^, DELAY IN FURNISHING PROOF OF LOSS.— Where in an action on an insurance policy which provided that, in case of loss, the insured "shall give immediate notice thereof, and shall render to the company a particular account of said loss under oath," embracing specified facts, the evidence showed that, immediate- ly after the fire, the insurance company was notified and adjusters examined Into the circumstances of the loss; that the insured was unable to give the preparation of proofs of loss his personal attention, because of ibeing several times called to another State on business connected with contracts made before the fire; that he employed experts to prepare the formal proofs. Under the cir- cumstances, a delay of 115 days in furnishing proofs of loss was not, as a matter of law, unreasonable. Carpenter vs. German-American Ins. Co. (Court of Appeals -of New York), 31 N. E. Rep., lOKi. DELIVERY. TOUCHING DELIVERY OF POLICY AND PROPERTY INiSUREiD.— Wbere a person applied to an insurance agent for a specified amount of insurance on certain property, and intended the policies to be issued at once, but the companies In which they should be issued were not mentioned, nor was the rate, and the agent said he would issue them right away, but they were not delivered for several days thereafter, during which time the property was destroyed, and they were in the aggregate for a DELIVERY— DESCRIPTION. 85 smaller amount than applied for. And they were really signed before the fire. Though the policies were not delivered to or ratiiied by the insured before the loss occurred, there was a valid contract existing at the time with each company in which the agent issued a policy, as he acted for the insured companies distributing the risk. The insured property consisted of a large amount of lumber piled on docks. Some of it had been sold, piled by itself, and marked for the purchaser, and speedy removal of all of it by vessel was contemplated. The agent when he issued the policy knew of these facts, and was familiar with the method of doing business at that place. The policy was for a year, and covered property owned by the insured, and "prop- erty held by it in trust, or sold and not delivered, and piled on the docks." Under the circumstances there was no delivery, within the meaning of the policy, of the lumber sold and piled by itself. Michigan Pipe Co. vs. Michigan Fire & Marine Insurance Co. (Supreme Court of Michigan), 52 N. W. Rep., 1070. DESCRIPTION. WHERE DESCRIPTION OF PROPERTY IS AN ENTIRE CONTRACT.— A policy on a dwelling house described, and on a stable "near the above dwelling," for which but one premium was paid, represents an entire contract, and if void in part is void wholly. Thomas vs. Com. Union Assur. Co. (Supreme Judicial Court of Mass.), 37 N. E. Rep., 672. EFFECT OF INDEFINITE DESCRIPTION OF PROP- ERTY IN POUOY. — In an axjtion on a policy of insurance on grain oomtaineid in the elevator of the insured company, it ap- peared that they operated two elevators at the same place, one as lessee and the other ais owner; that the grain was in the ele- vator ofperated under the lease; thait the policy was not written till about noon on the day following that on wMoh the application for the insurance was made; that in the forenoon on the day on which the policy was written the eleivator in which the grain was stored was burned, and the agent who afterwards wrote the policy had actual notice of the fire. The poaioy could not be said to cover the grain in the elevator which had been burned at the time the policy was issued. In such case, the fact that the two elevators were connected by a belt gallery 200 feet long would not justify a finding that the insurance covered both buildings. Mead vs. Phenix Ins. Co. (Supreme Court of Mass.), 32 N. E. Rep., 945. A POLICY DESCRIBING THE INSURED PROPERTY ae "being situated on or confined to premises actually occupied by the assured," locating such premises, and the application asking 86 INDICATOR'S DIGEST. for insurance on certain parts of the property "while on the premises only," the Supreme Court of Iowa holds, did not cover a loss of such property while on different premises, twenty miles distant. Lakings vs. Phoenix Ins. Co., 62 N. W. Rep., 783. THE iSUP'REME COURT OF PENNSYLVANIA holds, that where a policy stipulated that the assured, when required, should exhibit to any person designated by the company the remains of any property described, and produce all books, bills, invoices, or other vouchers, or certified copies if original were lost, and was called on by the company for duplicate bills of articles contained in his statement of law, but produced none, he was bound to show that he had made a reasonable effort to obtain the duplicates and failed. Langan vs. Royal Ins. Co. of Liverpool, 29 At. Rep.. 710. CHANGING DESCRIPTION OP BUILDING— That the owner of land, without authority, changed the official number of the building, does not affect a policy by a tenant on goods sit- uated in such building— it being described in the policy by its proper official number, instead of the number adopted by the landlord and painted upon the building. Westfleld Cigar Co. vs. Ins. Co. of N. A. (Sup. Jud. Ct. Mass.), 43 N. E. Reporter, 504. • CONSTRUCTION OF POLICY— CONCLUSIVENEiSS OF DESCRIPTION OF LOCATION.— Where words used in an insur- ance policy are susceptible of t'wo interpretations, that which will support the claim of the assured should be adopted. The fact that a tank containing oil, insured against fire, was carried four or five hundred feet from the original location, as described in the policy, but not off fSe premises occupied by the assured, does not relieve the underwriter from liability for a subsequent loss by fire; since the location of the tank, as given in the policy, can be regarded only as descriptive, and not as a warranty. Western & Atlantic Pipe-Lines vs. Home Ins. Co. of New York, 22 At. Rep., 665. LOCATION OP PROPERTY INSURED.- The plant of a manufacturing company consisted of two buildings, very near to «ach other, and machinery and appliances in them; one building -T-the pattern shop— being used for making and storing patterns, and the other for making and fitting castings. The plant was covered by a policy insuring it "while located and contained as described herein, and not elsewhere," and the policy described all the property as being on a certain corner, and the patterns being in the pattern shop. The court held that, upon the burn- ing of the building in which the castings were made, without any injury to the pattern shop, the insurer was liable for pat- terns which were at the time in the building burned, for pur- poses of actual use. McKeesport Machine Co. vs. Ben Franklin Ins. Co (Sup Ct Penn.), 34 Atlantic Reporter, 16. DESCRIPTION. 87 SUFFICIENCY OF DESCRIPTION IN PROOFS OF LOSS.— Under a policy requiring, if a fire should occur, a statement of the cash value of each item ot the property and the amount O'f loss thereon, where the property insured is 100 bales of cotton, it is sufficient to state the number and weight of each bale and the value in the aggi-egate. Aetna Ins. Co. vs. People's Banli of Greenville (Circuit Court of Appeals, Fourth Circuit), 62 Fed. Rep., 222. INSURANCE ON CONTENTS OF BARN DOES NOT COVER HORSES OUTSIDE.— Insurance on a barn and the "con- tents therein" does not cover horses, which, though stabled in the barn, were killed by lightning outside. Where insured read the policy, a representation lay the agent, that it covered the horses when outside the barn, does not render the company liable, since the representation was on a question of law, and not of fact. Farmers' Mutual Fire Insurance Association vs. Kryder (Ap- pellate Court of Indiana), 31 N. E. Rep., 85. T\TIAT IS INCLUDED IN DESCRIPTIVE Vi^ORDS IN POLICY.— The Supreme Court of South Dakota holds thait the term "lyudldings, improvements and other property" is broad enough to include "machinery, shafting, belting, pulleys, elevator and fixtures," if used or contained in buildings or improvements upon the premises. Peet vs. Dakota F. & M. Ins. Co., 64 N. V/. Reporter, 206. EFFECT OF MISDESCRIPTION IN POLICY.— The agree- ment in a policy is to insure certain property, such as the house in which the insured and his family reside, a barn on his farm, or a warehouse for the storage of produce, or certain personal property. A misdescription of the land on whicti any of these is situated will not defeat a recovery in case of loss by fire, be- cause the court looks at the real contract of the parties, whieh was to insure certain property of the policy-holder. The faat that such property was on section 16, instead of section IT, cannot of itself affect the risk, and would not render the policy void. Omaha Fire Ins. Co. vs. Dufek (Supreme Court of Nebraska), 62 N. W. Rep., 465. DESCRIPTION OF PREMISES COVERED BY POLICY.— In an action on a policy which described the premises insured as the brick building and additions, occupied by stores and dwellings, it appeared that on the front of the lot was a brick building with a rear extension, the first floor of which was occupied as a store, and the other floors as dwellings; that on the rear of the lot was a factors' building; that the space between the factory building and the extension of the front building was roofed over and boarded up; and that such inclosure could not be entered, either from the factory or from the front building, except by climbing through a window. It was held, thait the policy only covered the building on the front of the lot. Rickerson vs. German- American Ins. Co. of New York (Su- preme Court, General Term, First Department), 32 N. Y. S. Rep., 1026. 88 INDICATOR'S DIGEST. MISTAKE IN DESCRIPTION OF PREMISES WILL NOT AFFECT RISK. — Where a dwelling house is Insured, and the policy by mistake misdescribes the land on which the house is situated, this will not of itself affect the risk, or render the policy void; and it is not necessary to reform the policy in case of a loss to recover thereon. Kansas Farmers' Fire Ins. Co. vs. Saindon (Supreme Court oe garnished before proofs of claim have been filed with the company, and before the time has elapsed within which, by the terms of the policy, the company may, at its option, replace the goods destroyed. Dowling vs. Lancashire Ins. Co. ('Supreme Court of Wiscon- sin), 61 N. W. Reporter, 76. GARNISHMENT AFTER CONTRACT TO REBUILD.— An insurer who has elected, under the terms of a policy, to rebuild a building destroyed by fire, instead of paying the loss, and wha has contracted for its erection, cannot be garnisheed by a creditor of the insured who has recovered a judgment on a mortgage on the premises executed after they had been insured, and that al though the premises are advertised for sale under the mortgage Stone vs. Mutijal Fire Ins. Co. (Court of Appeals of Mary land), 22 At. Rep., 1051. GASOLINE. GASOLINE CLAUSE.— Where a policy provides for forfeit- ure in case the insm'ed conceals any material fact, or if gasoline be used on the premises, the failure of the broiler employed by the insured to procure the insurance to acquaint the insurer with the fact that gasoline is to be used will avoid the Dolicy. And any constructive notice to that effect which the insurer may have will not prevent such forfeiture for failure to acaualnt insurer of such fact. Where the defense of forfeiture Is made, evidence that the fire was not caused by gasoline is irrelevant. TurnbuU vs. Home Fire Ins. Co. (App. Ct. Md.), 34 Atlantic Reporter, 875. GASOLINE MAY BE USED WHERE NECESSARY WITH- OUT VITIATING POLICY.— The condition in a fire policy is- sued to a silver-plating company on its tools and majohinery in its factory "tha>t this entire policy, unless otherwise provided by agreement Indorsed hereon or added hereto, shall be void if (any usage or custom of trade or manufacture to the contrary not- withstanding) there be kept, used or allowed on the above de- scribed premises * * * gasoline," does not preclude the use of that article in the company's business, it being so used at the date of ithe iwlicy, and such use being necessary, and only such amount being brought to the factory at any one time as is used in a single day. The necessity of the use of gasoline in insured's businesis may be shown by evidence outside of the policy. Such necessity need not be an absolute one, but it is enough that gasoline is ordinarily used in the silver-plating business to attain the result for whicli it is used. li^alm vs. Nat'l Ins. Co. (Supreme Ct. Penn.), 32 At. Eep., 613. GASOLINE— HAZARD. 105' CONDITION AGAINST GASOLINE— Breach of a condition in a policy prohibiting the use of gasoline upon the premises avoids the policy, though the use of gasoline did not cause the loss. Penna. Fire Ins. Co. vs. Faires (Ct. Civ. App. Tex.), 35 S. W. Reporter, 55. WHERE VIOLATION OP CONDITION WILL AVOID POLICY. — A policy of Insurance against fire containing a con- dition which forbids the keeping or use of gasoline upon the In- sured premises is avoided by a violation of the condition by one who occupies the premises with the implied consent of the as- sured. German Fire Ine. Co. vs. Board of Commissioners of Shawnee County (Supreme Court of Kansas), 39 Pae. Rep., 697. HAZAED. HAZARDOUS USE OF PREMISES.— At the date of the issue of a fire Insurance policy the premises were unoccupied. The printed part of the policy provided that it should become void if benzine, gasoline, etc., or other explosives, should be kept or used on the premises. These were the only uses of premises prohibited by the policy as hazardous. A written slip, attached to and made a part of the policy, provided that the premises 'were "privileged to be occupied for hazardous or extra hazardous purposes." Here there was an inconsistency or want of harmony between the printed and written part of the policy, and the latter must con- trol; and the use of the premises as a paint factory, in which benzine and gasoline were kept and used in the manufacture of paints, was permitted by the written part of the policy. Russell vs. Manufacturers' & Builders' Fire Insurance Co. of New Xork (Supreme Court of Minnesota), 52 N. W. Rep. 906. PRINTED AND WRITTEN STIPULATIONS.— Where a pol- icy of fire Instirance on a stock of goods in a country store con- tained a printed stipulation that benzine, fireworks, etc., shoaild not be kept without the consent of the insurer, and a written provision covering a stock of goods "such as is usually kept for sale In country stores," proof was admissible, in an action on the policy, to show that the prtfhibited goods came within the written clause. Wood, in hie work on Insurance, in treating of repugnant stipulations as to the subject matter of the risk, says: "Where the written portion of the policy describes the property Insured aa of a certain class, and the property as described embraces a class of articles ranked In the policy as hazardous, or which, by the printed tenns of the policy, are prohibited, as if the goods are described as a stock, 'such as is usually kept In a country store,' and the printed portion of the policy prohibits the keeping of certain articles usually kept in a cotintry store, the written portion of the policy overcomes the force of the printed stlimla- io6 INDICATOR'S DIGEST. tlons, and the keeping of snich articles does not operajte as a breach of the conditions of the policy. Thus, where a policy covered property described as a stock 'such as is usually kept In a general retail store," and the keeping of gunpowder was prohibited by the printed portion of the policy, it was held that If gunpowder formed a part of the stock usually kept in a 'gen- eral retail store," the keeping of gunpowder was not a violation of the conditions of the policy;" and so of other prohibited arti- cles coming within the class of articles described by general designation; and it may always be shown that such articles are usually kept as a part of the stock of the class insured, and if proved, the printed prohibitory clause is overcome by the writ- ten description of the class of property insured. Tubb vs. Liverpool & London .fe Globe Ins. Co., 17 So. Eep., 615. INCREASE OP RISK. OOiNiDITIOiNiS O'P INSURAiNlOE POflJliOY AS TO IN CREASE OF RISK.— A condition avoiding a policy if the insured fail to notify the insurer of any increase in the risk, does not apply to in- creased risks which are at the time as well known to the com- pany"s agent, then engaged in adjusting another loss, as to the insured. Mechanics' Ins. Co. of Phila. vs. Hodge (Supreone Court of m.), 37 N. B. Rep. 51. CONSTRUCTION OF POLICY— IMMATERIAL MTSBEP- RESENTATION— INCREASE OF HAZARD.— Where an Insur- ance policy is susceptible to two constructions, that which is most favorable to the insured will prevail. The fact that the insured represented the btiildling to be a "one-story, shingle roof, box and frame building,'" but that it was In reality "constructed of logs cut and laid one upon another, having but a slight box frame addition thereto," and covered with "clap-boards," instead of shingles, will not vitiate a policy conditioned to be void for any false representations, where it does not appear that the hazard was at all Increased thereby, or that the underwriter would have refused the risk, or charged a higher premium, if it had known the truth. Where a policy insures a building as a dwelling-house only, a provision that the policy shall be void, or any "increase of hazard by change of use or occupancy," is a continuing war- rantee on the part of the insured that the house shall be used for no other purposes increasing the risk, and a plea alleging that without the consent of the underwriter the building had also been used as a saloon, whereby the hazard was increased, presented a question for the jury, and it was error to sustain a demurrer thereto. (Behler vs. Insurance Co., 68 Ind., S47, dis- tinguished.) Germania Fire Ins. Co. vs. Deckard (Appelate Court of In- diana), 28 N. E. Rep., 558. IN'CREASE OF RISK. 107 CONDITION IN INSURANCE POLICY WITH REGARD TO INCREASE OF HAZARD.-A policy of insurance provided that it should be void, if the hazard be increased by any means ■nithin the control or knowledge of the insured.The property in- sured was a business block, portions of which were occupied for various purposes, and other portion* were vacant. After the policy was issued, the vacant portions were leased for certain manufacturing purposes. Such provision meant an increase of hazard by a use of the building, or otherwise, beyond that existing or contemplated by both parties when the contract was made, and it was a question of fact whether' the hazard was so increased. Eager vs. Fii-emen's Fund Ins. Co. (Supreme Court of N. Y.), 25 N. Y. Supp., 35. LIABILITY FOR INCREASE OF RISK.— In an action on a policy of insurance upon a building in course of construction to be used for manufacturing purposes, the policy containing a pro- vision that when occupied the insurer should receive notice, and an adjustment of the rate be made to meet the increased risk, and if anything were done to increase the risk without the consent of the insurer, the policy should be void. When the manufacturer occupied the building and commenced manufacturing without the required notice, and also increasing the risk by an additional building without the insurer's consent, a verdict was properly di- rected for the insurance company. Franklin Brass Co. vs. Phoenix Aseur. Co. (Circuit Court of Appeals, Fourth Circuit), 05 Fed. Rep., 773. INCREASE OF RISK A QUESTION FOR THE JURY.— Where a policy provides that if an engine be used on the prem- ises, the company shall appoint a committee to ascertain the amount of increased risk, for which the insured shall give an additional premium note, .whether the use of the engine increased the risk, whether the increased risk caused the loss, and whether the period between the giving of notice of the use of the engine by the insured and the day of the fire was a reasonable time within which the company should have appointed the committee, are questions for the Jury. Schaeflfer vs. Farmers' JIut. Fire Ins. Co. (Court of Appeals of Maryland), 31 At. Rep., 317. CONDITIONS OF POLICY AS TO INCREASE OF RISK.— Where an insurance company issues a policy on buildings incum- bered by mortgage and judgment, and the assured makes no rep- resentations as to incumbrances, the rights of the assured are not affected, under a condition that, if the hazard be increased by any mea-ns within the control or knowledge of the insured, the policy shall be void, by the fact that there is a sale under the judgment, such condition is intended to protect the property during the life of the policy from fire by change in its structure, methods of heating, addition of outbuilding, etc., and does not relate to a subsequent sale under a pre-existing judgment or in- cumbrance. A condition that the policy shall be void if the in- terest of the assured be other than the unconditional and sole ownership, relates to ownership when policy is issued. Collins vs. London Assur. Corp. (Supreme Court of Pennsyl- vania). 30 At. Rep.. 924. io8 INDICATOR'S DIGEST. INCREASE OF INSURANCE RISK— Where a com crib an* Its contents are covered by an insurance policy, which provides that it shall be void if there be any change in the exposure, by the erection or occupation of adjacent buildings or by any means vrhatever, it is such a violation of the policy as will render it void, if the insured uses, near the crib, a steam engine to operate a corn-aheller, and the fact that the crib catches fire from the engine, is sufficient evidence that the engine increased the risk. Davis vs. Western Home Ins. Co., 46 N. W. Rep., 1072. INCREA&E OF RISK— EVIDENCE.— Where, in an action on Insurance policy, the defense was that the insured by erecting an addition to the building in which tihe Insured property was located, increased the risk, proof that the addition brought the house a. few feet nearer to another house does not show an increase of risk, where there is no evidence of the distance between the two- buildings. Mitchell vs. Miss. Home Ins. Co. (Supreme Ct. Mass.), 18 So.. Rep., 86. INCREASE OF FIRE RISK.— Where a policy provides for the ascertainment of the increase of risk due to the location of any engine on the premises, and requires the Insured to pay addi- tional premium for any increase of risk found, the location of an engine on the premises the day before a loss will not prevent recovery, where the insured, ten days prior to its occurrence, noti- fied the company that he frequently used an engine on his prem- ises, and offered to pay the additional premium, but the company failed to act on the notice. Farmers' Mut. Fire Ins. Co. vs. Schafer (Ct. App. Md.), 33: Atlantic Reporter, 728. INCUMBRANCE. THE SUPREME COURT OF NEW YORK HOL.DS, that where a policy, for separate amounts, on a dwelling house and on the furniture provides that the "entire" policy shall be void if the property, real or personal, should be incumbered, the docket- ing of a judgment so as to incumber the house does not avoid the policy as to the furniture, though it avoids it as to the house. Kiernan vs. Agricultural Ins. Co., 30 N. Y. Supp., 892. WAIVER OF CONDITION AGAINST INCUMBRANCElS.— A waiver of the condition in a policy of insurance against in- cumbrances may be inferred from the appointment of appraie- ers, and an adjustment of loss, the negotiations as to which lasted five months, though the police provided that no condition could be waived except by special agreement indorsed upon it. McGonigle vs. Susquehanna Mut. Fire Ins. Co., 31 At. Rep., 868. INCUMBRANCE. 109 CONDITIONS IN POLICY AGAINST INCUMBRANCE.— An insurance policy wliich provides tliat it shall be void "if there lif a. mortgage, bill of sale, or other lien" on the property insured without the fact being indorsed on the policy, is not invalidated by the fact that, at the time of the insurance, there were judg- ment liens against the property. Georgia Home Ins. Co. vs. Schield ^Supreme Ct. iliss.), 10 So. ■Reporter. 94. WHERE THE TERMS OF A FIRE INSURANCE POLICY were violated by an incumbrance, an agreement by the company, after notice of such violation to arbitrate the amount of a loss in consideration of the insured's waiving part of his claim, the Supreme Court of Pennsylvania holds, is a waiver of such breach. McGonigie vs. Agricultural Ins. Co., 31 At. Rep., 02i;i. VIOLATION OF INCUMBRANCE CONDITION ON INSUR- ANCE POLICY. — Where, under a policy conditioned to be void if the assured places any additional incumbrances on the prop- erty, the assured places a second mortgage thereon, and a week or two later requests the agent to insert the name of the second mortgagee in the policy so as to secure him, the answer of the agent that he could not do so, as loss was made payable to the lirst mortgagee, "but that he thought it would be all right any- way." does not constitute a waiver of condition. Bosworth vs. Merchants' Fire Ins. Co. (Supreme Court of Wisconsin), 49 N. W. Kep., 750. CONDITIONS AGAINST INCUMBRANCES IN INSUR- ANCE POLICY.— Where, after probate of a will .the legatee and devisee of the property procm'es insurance on the property run- ning to himself, the fact that the insurer's agent for the protection of the testator's mortgagee, afterwards indorses on the policy that the "property is held by and insured in the name of" such legatee and devisee as executor of the will, does not change his interest in the property, su as to prevent a subsequent mortgage, by him from avoiding the policy under a provision therein against incum- brances. Kiernan vs. Asricultural Ins. Co.. of Watertown (Supreme Court of N. Y.l. 2.- X. Y. Stipp.. 43S. BREACH OF INCUMBRANCE CLAUSE.— A statute de- claring that whoever solicits insurance on behalf of an insurance company, or transmits an application to the company or a policy to or from it, or collects or receives any premium, or aids in doing either, shall be deemed an agent for such company, will not, where a policy has been issued by a company through an agent, make the acts of the agent, ten months afterwards, in assisting the as- sured to effect a mortgage on the property insured, a waiver of a forfeiture for breach of a condition in the policy against the in- cumbrances, where nothing is said about the policy, and the agent testifies that he had forgotten about it. Where a policy of insurance on buildings and on personal property therein, insuring each for a certain amount, is void as to the buildings because of an incumbrance placed thereon without the insurer's consent, it is also void as to the personal property. Stevens vs. Queen Ins. Co. (Supreme Court of Wisconsin). 51 N. W. Rep., 55.5. no INDICATOR'S DIGEST. COXDITIOXS OP POLICY AS TO FUTURE INOUM- BRANCBS.— iA provision in an insurance policy against future incumbrances without the consent of the secretary of the Insur- ance company indorsed thereon, is not broken where the property is already mortgaged at the time of the application and the Issu- ance of the policy by the subsequent renewals of the prior mort- gages with accrued interest. Kansas Farmers' Fire Ins. Co. vs. Saindon (Supreme Court of Kansas), 35 Pac. Rep., 16. PAID OFF INCUMBRANCE WILL NOT AFFECT COL- LECTION OF INSURANCE.— Where an insurer incumbers his personal property by^ a chattel mortgage after such property has been insm-ed— and contrary to the provisions of the insurance policy— he may nevertheless recover the value of the insured property if at the time of its destruction it was free fi'om the lien of the mortgage. Omaha Fire Ins. Co. vs. Dierks (Supreme Court of Nebraska), 61 N. W. Rep., 710. PROVISION AGAINST INOUiMBRANCBS.— A provision in a fire policy that it shouM be void if, without the consent of the company, the property be in any manner incumbered * * * and such fact be not stated in this policy or the insured's applica- tion for insurance, covers only incumbrances existing when the contract was executed, and does not create a continuing war- ranty against future incumlsrances. Collins vs. Jlerch. & Bankers' CMut. Ins. Co. (Supreme Ot. La.), 61 N. W. Rep., 602. CONDITION OP POLICY AGAINST INCUMBRANCES.— A policy of insurance covering severally a crop of hops for the year 1889 and 1890, which were kept separate in the hop house, provided that the entire policy should be void if the property was encumbered. Held, that a mortgage to the crop of 1889 did not invalidate the insurance on the crop of 1890. The condition of an insurance iiolicy against double insurance is not violated by the existence of other insurance when the policy issued, where the agent issuing the same had knowledge of the situation, and within a few days thereafter such other insurance was cancelled, pur- suant to an agi-eement with such agent. American Ins. Co. vs. Knowles (Supreme Court of N. Y.). 21 N. Y. Sup., 50. INCUMBRANCE EFFECTING OWNERSHIP OP PROP- ERTY.— An agreement in a lease of real property, that failure to pay the quarterly rent covenanted to be paiTJ by the lessee; that the buildings, improvements and other property placed upon said real property by the lessee are subject and held liable to restraint and sale under warrant, in like manner as personal property for said rent, etc., and that said buildings and improvements and other property may be followed and restrained, or the material thereof, constitute an incumbrance in the nature of a mortgage upon said buildings and improvements, which, if unknown to the insurer, will render the policy void, where there is a condition against incumbrances. Peet vs. Dakota F. & M. Ins. Co. (Supreme St. S D 1. 64 \ W. Rep., 206. ' ' INFLAMMABLES— IXSOLVEXCY, 1^' FLAMMABLES. INFLAMMABLE MATERIAL PROYISIOX IN POLICY.— Whei'e it ie provided ia an insurance policj- that it shall be void if certain inflammable materials are kept or used on the premises without written permission, the use of refined coal, kerosene, or other carbon oil for light, if the same is drawn and the lamps filled by daylight being excepted, the policies are voided by the di-awing of carbon oil about dusk on the premises, near lighted lanterns, by any person acting for a lessee of insured, though not for the purpose of filling lamps, whereby a flre is caused. Gunther vs. Liverpool & L. & G. Ins. Co. (Supreme Court of the Unite*! States), 10 S. E. Rep., 44S. CONDITIONS AGAINST INFLAMMABLE SUBSTANCES.— Upon a policy of insurance which covers a stock of material used in a particular business, and which .contains a printed condition prohibiting the keeping and using of certain inflammable sub- stances on the premises in which such business is conducted, a recovery may be had in case of loss, even though it should ap- pear that such substances were in fact kept and used upon the premises, provided it shall further appear that the business in the conduct of which the stock of material was used is of such a character as that the use of such substances is a necessary, usual, and customary incident to such business, and that such substances were kept only in such quantities, and used only in such manner, as in view of the subject of the insurance, must have been in contemplation of the parties at the time the policy was issued. And if the business is such that it includes such substances their loss will be covered by the policy. Maril vs. Conn. Fire Ins. Cto. (Supreme Ct. Ga.), 23 S. E. Rep., 463. IXSOLYEXCY. INSOLYENT CORPORATIONS.— Where a New York corpor- ation' that owned property and did business in Yermont passed into the hands of a receiver under the New York statutes, and an assignee was also appointed in Yermont. As to the prop- erty situated in Vermont and destroyed by fire subsequent to the Insolvency proceedings, the Vermont assignee will be entitle*! to the insurance money for the benefit of the Yermont creditors as against the New York receiver. Piatt vs. Continental Insurance Co. (Supreme Court of Ver- mont), 19 At. Rep.. 637. .112 INDICATOR'S DIGEST. INSOLVENCY AND DISSOLUTION OF MUTUAL FIRE COMPANY IN NEW YORK.— A mutual fire company was per- mitted by its special charter to do business upon its capital of premium notes. Ou an extension of the charter, the provisious of the general act for the incorporation of fire, insurance com- panies (Laws N. Y., 1853, e. 466) were made applicable to it. It afterwards obtained, under those provisions another extension of its charter, a change of its naime, and larger powers for busi- ness; but it did not appear that the requirements of the act, as to amount of capital, etc., necessary to such changes, were com- plied with, unless the premium notes held by the company were regarded as stock or capital notes. Thereafter the company sur- rendered to the makers a great part of such notes, treating them as deliverable to the makers according to the usual course of business, and the provisions of the act respecting premium notes. On the application of the attorney-general the business must be closed on the grounds of its insolvency and violation of law, un- less its capital was made good according to the requirements of the act. People vs. Manhattan Mutual Fire Insurance Co. (Supreme Court of New York), 12 N. Y. Supp., 264. INSOLVENCY IN WISCONSIN.— Under Rev. iSt. Wis., siec. 321S, which provides that whenever any corporation authorized to make insurance becomes insolvent or unable to pay its debts, etc., any court having jurisdiction may enjoin such corporation and its officers from carrying on business or disposing of any of 'Its property, and section 3219, which provides that the Injunction may issue upon the commencement of an action for the purpose of closing up the business of such corporation by the Attorney- General, dn the name of the State, or by any creditor or stock- holder of the corporation, or at any time thereafter, and the court may at any stage of such action appoint a receiver to take charge of the property of the corporation, subject to the control of the court. Power is given for a court to take jurisdiction of an action brought by a -creditor or stockholder to wind up the business of a mutual insurance company, to grant writs of in- junction, and appoint a receiver. The fact that among other things the complaint prayed for a dissolution of the corporation which the court had no authority to decree, would not prevent its taking jurisdiction, and granting other relief sought Rev St Wis., sec. 1968, authorizes the Attorney-General, on Information of the Insurance Commissioner, that the assets of an insurance company do not justify its continuance, to make application to the Circuit Court for an order requiring it to show cause why its business should not be closed, and where an action by creditors and stockholders to close up the business was pending an aoDli- cation by the Attorney-General was properly denied as every- thing could be accomplished by the Attorney-General's joining in the pending action. * In re Oskkosh Mutual Fire Ins. Co., (Supreme Court of Wis- consin), 46 N. W. Rep., 441. "^ * IXSURABLE INTEREST. 113 INSURABLE INTEREST. INSURABLE INTEREST IN BUILDING'S IX COURSE OF CONSTRUCTION— The owner of land has an Insurable interest in building In process of construction tliereon by a contractor, who is to furnish all materials and labor, and be paid after completion of the work. Foley vs. Farragut Fire Ins. Co. (Supreme Court of N. Y.V 24 N. r. Supp., 1131. INSURABLE INTEREST.— The pm-chaser of pereonal prop- erty under a bill of sale conveying absolute title, though given a» security for debt, being in possession, is a sole and unconditional owner of the property, within the meaning of the contract ofl insurance which provides that the policy shall be void if tjhe interest of a«sured be other than unconditional and sole owner- ship. Carev vs. L. ..t L. & G. Ins. Co. (Supreme Ct. Wis.), 66 N. W. Reporter, 693. INSURABLE INTEREST.— The provision in a policy of in- surance that unless the insured is tlie sole and unconditional owner of the property insured it shall be so stated to the com- pany, and so expressed in the written portion of the policy, is a reasonable and valid condition, and one who, without fraud or misrepresentation, has accepted such a policy, cannot, after loss, have it so reformed as to cover property in which his interest was not absolute. The fact that knowing the insured not to be the sole and unconditional owner of the property, the agent of the company demands that the books be produced and the uninjured property inventoried, does not waive the forfeiture created by the lack of Insurable interest. JlcCormick vs. Orient Insurance Co. (Supreme Court of Cali- fornia), 24 Pac. Rep., 1003. INSURABLE INTEREST— HOUSEHOLD FURNITURE.- A husband who occupies with his wife and fsimily a house belong- ing to her which is their homestead, has an insurable interest therein. Where an application which provides that the state- ments therein contained shall be warranties, is filled in by the agent of an insurance company, the representation that the land on which the house is situated belongs to the husband, when in fact it belongs to the wife, is not a fraudulent misrepresentation where It is shown that the agent had actual personal knowledge of the ownership by the wife, and the knowledge of the insured of such misrepresentation will not render the policy void. The term household furniture in a policy of insurance, when not oth- erwise limited or restricted, includes as well all articles which may be convenient for housekeeping as those which are neces- sary- Reynolds vs. Iowa & N. Ins. . Co. (Supreme Court of Iowa), 46 N. W. Rep., 659. 114 INDICATOR'S DIGEST. INTEREST OF HUSBAND IN WIPE'S HOUSE INSUR- ABLE.— The Interest of a husband in the dwelling house of his wife, used as a homestead for the family, is sufficient to support a recovery by the two jointly on a fire policy issued to both of them. Webster vs. Dwelling House Ins. Co. (Sup. Ct. Ohio), 42 N. B. Reporter, 546. WHAT IS INSURABLiE INTEREST.— The complainant pur- chased a farm which he deeded to his wife upon the understand- ing that it should be reconveyed to him when he should so re- quest. All the stock, farm implements, household furniture and other personal property on the farm were the property of the plaintiff. The policy under which the loss was sustained was issued and delivered to the plaintiff, and the agent who issued the ,same was informed that the title of the land was in the wife. The plaintiff had an insurable interest in the property destroyed. HoTsch vs. Dwelling-House Ins. Co. (Supreme Court of Wis- consin), 45 N. W. Rep., &46. INSURABLE INTEREST WHICH COMPANY CANNOT DENY. — Where a party who sold land on which was a building covered by insurance, took back a judgrnent for part of the price, and under the advice of tlie secretary of the insurance company, who knew the circumstances, delivered the deed to the purchaser without transferring the policy, and paid the assessments under the policy for three years, up to the time of a loss, the company Is estopped from asserting that the policy was void for want of an insurable interest in the party suing. Light vs. Countrymen's Mut. Fire Ins. Co. (Supreme Ct. Penn.), 32 Atlantic Reporter. 430. INSURABLE INTEREST OP BUILDING CONTRACTOR.- A policy of iiisurance was issued to a contractor on a building in process of construction "to the amount of $2,000, builders' risk." The building was about completed -ind he had received $1,900 on his contract, but possession of the building had not been trans- ferred to the owner \^hen it was destroyed by fire. Inasmuch as he was bound eitlier to rebuild tlie property or refund the money paid he still had an insurable interest and could recover from the company. Commercial Fire Insurance Company vs. Capital City Insur- ance Company (Supreme Court of Alabama), 8 So. Rep., 222. INSURABLE INTEREST: CONDITION WAIVED.— Where a policy is based on the condition that tlie assured is the owner in fee simple, but makes the application a part of the policy, and the insurer accepts the risk, though the application shows that the assured is not the owner in fee, the insurer cannot set up want of title to defeat an action of recovery. One who is in the full possession of property under a contract on which he has paid part of the purchase money, and which on his volition will entitle him to a conveyance of the legal title, has an insurable interest equal to the payments he has made on the property. Davis vs. Phoenix Ins. Co. (Sup. Ct., Cal.), 43 I»acific Rep., 1115. IXSrRABLE INTEREST. 115 "INTEREST OF ASSURED."— Where a husband builds a dwelling house on land which is the separate property of his wife, and they occupy it as a homestead, his interest is not "other than entire, unconditional, and sole ownership of the property,"' within the meaning of a fire policy on the building issued to him. Warren vs. Springfield F. & JI. Ins. Co. (Ct. Civ. App. Tex.), 35 S. W. Reporter, 811. WHEN" PURCHASER HAS AX INSURABLE INTEREST.— A pm-chaser in possession of real estate under a parol contract of sale has an insurable interest, though the contract provides that the vendee shall complete a building within six months, and the title shall not pass until such building is completed, and the building burns before it is completed; the purchase price being paid and deed executed after the loss occurred, and the loss oc- curring before the expiration of the six months. Dupuy vs. Delaware Insurance Co. (Circuit Coiu't. W. D. Virginia). 03 Fed. Rep.. 6StV INSURABLE INTEREST.— Where the owner of a stock of .goods forms a partnership with another, and sells him one-half interest in the goods, to be paid by note, the note to be paid from the proceeds of the business, the other acquires an insurable interest in the goods, though through inadvertence he never signed the note. Hanover Fire Ins. Co. vs. Shrader (Court of Civil Appeals of Texas). 31 S. W. Rep., IHhi. INSIRABLE INTEREST.— Defendant, an insurance com- pany, issued to plaintiff a policy of insurance on cotton owned by the latter, "or held by it in ti'ust or on commission." In the couree of business when cotton was delivered to plaintiff to be compressed it save receipts therefor to the owners, who deliv- tred them to one or the other of two railroad companies, which thereupon issue'J bills of lading for the cotton, agreeing to trans- Ijort it to given points after compression by plaintiff. There was a standing agreement of which the defendant was informed, between plaintiff and the railroad compauie.s. that the former should keep the cottrm insured for the benefit of the latter, from the time when the bills of lading were executed. In such a case, upon taking up the receipts and issuing bills of lading, the rail- road companies acquired an in.surable interest in the cotton, which as the cotton is henceforth held by plaintiff in trust for such railroads, is covered by the terms of a policy issuoi to plain- tiff and of which parol evidence is admissible in action under the policy. Nor is the right of recovery under such policy affected by a provision in the receipt that plaintiff shall not be responsible for losses by fire where, with the knowledge of the insurance company, the railroad companies have paid plaintiff for insuring the cotton under their agreement. The provision in the railroad company's bill of lading that it shall not be liable for loss from fire does not relieve it from liability for loss arising from Jt*' own negligence or that of its servants; against such latter loss they mav insure themselves. Under a condition ia ii6 INDICATOR'S DIGEST. such policy that it shall not apply to any cotton covered by a marine policy at the time of the loss, the forfeiture cannot be enforced unless it is .shown that the marine insurance was in favor of the same parties and upon the same interest ajs the fire policy, the sole object of such condition being to prevent do-uble Insurance. California Ins. Co. vs. Union Compress Co. (Supreme Court of the United States), 10 Sup. Ct. Rep., 364. INSURABLES INTEREST OF WAREHOUSEMEN.— Ware- housemen who have insured in their own name cotton store's In their warehouse on a form of policy containing the special clause "cotton in bales, their own or held by them in trust or on com- mission or on joint account with others or sold but not delivered," liave an insm-able interest in the cotton entitling them to sue for the entire loss, though the cotton waja owned by another person, and that fact was not disclosed to the insurance com- pany. Where the owner of property which is exposed to danger of fire from railway engines has released the railway company from liability therefor, and when the insurance was effected did not mention the release, the question whether the omission to make known the existence of such releajse invalidates the policy of insurance on such property, depends upon whether such re- lease was a material fact in the contract of insurance, and this is a question for the jury. In case of a verbal application, where there is no difference in rates with the right of subrogation or without it, and where there is neither usage nor custom showing the materiality of the right of subrogation in the acceptance or rejection of risks, it is proper tO' instruct the jury that they might find that the concealment of a release of a railroad com- pany from liability for fire loss was not a concealment of a material fact. Pelzer Manuf'g Co. vs. St. Paul, F. & JI. Ins. Co. (Circuit Oourt of the United States, District of South Carolina), 41 Fed. Rep., 270. INSURANCE. EFFECT OF REFUSAL TO TRANSFER INSURANCE.- Where insurer wrongfully refuses to transfer an insurance policy, it is liable for the cost of procuring other insurance. Marshall vs. Franklin Fire Ins. Co. (Sup. Ct. Penna.), 35 Atlantic Rep., 205. CONSTRUCTION OF INSURANCE INTEREST IN INSUR- ANCE POLCY.— Where the consignee of goods to be paid for if -sold, and, if not, to be returned to the consignor, applies for in- surance in his own name, intending to insure for the full value of the property, and the insurance agent writes the policy with that end in view, knowing the nature of the applicant's title, a clause in the policy limiting the liability to an amount not exceed- ing the interest of the applicant does not restrict the liability, in ■case of loss, to his personal interest, so as to prevent a recovery for their full value. Pox vs. Capital Ins. Co. (Supreme Com-t of Iowa), 61 N W Eep., 211. INVENTORY. 117 IXA^EXrORY. THE SUPREME COURT OF MISSISSIPPI HODDS, That an invoice of goods purchased is not an inventory of stock to be pro- duced under the "iron safe clause" of a fire policy. Home Ins. €0. of New York vs. Delta Bank, 15 So. Rep., 932. EFFECT OF FAILURE TO MAKE INVENTORY PBRIOC- ICALLY.— Where fire policy provides that it sihall he vodd if assured fails to take inventory at least once a year, the ques- tion afi to "Whether the time between issuance and loss was not sufficient in which to do so, is for the jury. AUen vs. Milwankee Mech. Ins. Co. (Sup. Ct. Mich.), 64 N. W. Rep., 15. WHAT SHALL BE IN THE INVENTORY.— A clause pro- viding that assured shall furnish the company with an inventory of tJie damaged and undamaged goods does not require him to fiu-nish an inventory of goods totally destroyed. Johnson vs. Farmers' Fire Ine. Co. (Sup. Ct. Mich.), 64 N, W. Rep., 5. INVENTORY OF PROPERTY.— A substantial compliance with a condition in a fire policy, that the insured shaU make a complete inventory of the property, "stating the quantity and cost of each article, and the amount claimed thereon," is suffi- cient. Boyle vs. Hamburg-Bremen Fire Ins. Co. (Supreme Ot. Penn.1, 32 At. Rep., 553. CONDITIONS OF YEARLY INVENTORY IN INSURANCE POLICY.— A warranty by assm'ed that an itemized inventoi-y of merchandise, furniture and fixtures shall be made once each year, gives assured one j'ear from date of policy to make. an inventory, and if the goods insured are burned two months after said date, assm-ed's failure to have made inventory is no defense to hla claim. Citizens' Ins. Co. of Evansville vs. Sprague (Appellate Court of Indiana), 35 N. E. Rep., 720. INVENTORY REQUIRED BY INSURANCE POLICY.— The clause in an insurance policy requiring the last inventory to be kept in a fire-proof safe, and providing that failure to prodnce the same upon demand shall render the policy void, is satisfied by a production of it for the company's agent authorized to settle losses after the fire, though afterward lost without the negligence of assured. Pelican Ins. Co. vs. Wilkerson (Supreme Court of Arkansas), 13 S. W. Rep., 110.3. INDICATOR'S DIGEST. IRON SAFE. FIRE-PROOF SAFE CLAUSE.— In an action on a fire policy, the company denied liability because of Yiolation of the fire-proof safe clause, and failure to produce the books and inventories by the assured. The Supreme Court of Mississippi held that a reply was sufiicient which alleged that assured had kept his books in a fire-proof safe, as agreed in the policy, but that, without fault on his part, the safe and its contents were destroyed by the fire, so that he was unable to produce the books and inventoi-ies. Sneed vs. Brit. Am. Assur. Co., 18 So. Reporter, 928. IRON SAFE CLAUSE.— Where a policy is accepted subject to the fire-safe clause, set out in a slip attached to it, containing the only description of the insured property, and providing that a failure to comply with same shall avoid the policy, the provision constitutes a warranty by the insured. And is violated where the latter was unable to furni^ a record of the credit sales of the day before the fire, because the blotter showing them had been destroyed, through his failure to keep it locked at night in an iron safe with the other books. Palatine Ins. Co. vs. Brown (Ct. Civ. App., Tex.), 34 S. W. Reporter, 462. WAIVER OF IRON SAFE CLAUSE.— That an agent, after the fire, received insured's account books, with the knowledge that they were not in the safe at the time of the fire, and stated that it was "all right" is evidence of a waiver by the company of an "iron safe clause." Curnow vs. Phoenix Ins. Co. (Sup. Ct, S. C), 24 S. B. Rep., 74. CONDITIONS IN FIRE INSURANCE POLICY AS TO KEEPING BOOKS, Ernc, IN SAFE.— Assured covenanted to keep complete books and the last stock inventory locked in a fireproof safe, or in some siecure place not exposed to a fire which would destroy the store, and, in case of loss, to produce the books and mventory; otherwise the policy to be void. He kept them as re- quired, but when the store was on fire, his book-keeper, fearing that the safe would not stand, opened It and took out the contents, to remove them to a safe place; and, as he ran out, some of them fell, and were burned. The condition did not require him, abso- lutely and unconditionally, to keep his books in a fireproof safe It required him to keep them in such a safe, or in some secure place, not exiwsed to a fire that would destroy the house where the busmess was carried on. Having the alternative right to keep them in a place of saifety, other than in a safe, he also had the right to take them from the safe, and remove them to such other place; and if he exercised due care in so doing and they were lost, there is no breach of warranty. ' East Texas Fire Insurance Company vs. Harris (Court of Civil Appeals of Texas), 25 S. W. Rep., 721. IRON SAFE. iig CONDITIOX REQUIRING BOOKS TO BE KEPT IN FIRE PROOF SAFE.— rnder a condition In a five insurance policy that tne insured will keep his books in a fire proof safe, the insured complies with the letter and sph-it of the condition when he puts the books in a saife of the kind generally known as fli-e proof and does not by this clause warrant the safe to preserve the books. Knoxville Fire Ins. Co. vs. Hird (Oivil Court of Appeal of Texas), 23 iS. W. Rep., 393. IRON SAFE CLAUSE.— An insurance agent cannot waive the requirements of the "iron safe clause" when the authority is expressly withheld from him by the policy. Though the fail- ure to comply with such clause forfeits the policy so far as it covers a stock of goods, it does not necessarily forfeit the por- tion on the storehouse. Roberts et al. vs. Sun Fire Ins. Co. (Ct. Civ. App. Tex.), 35 S. W. Reporter, 956. SAFE CLAUSE A WARRANTY.- A covenant in a policy by which the insured agrees to keep a set of books showing all busi- ness transactions and the last inventory of the business locked in a fire-proof safe at night and when the store is not open for business, and that the policy shall be void, in case of loss, if they are not produced, constitutes a warranty, which must be strictly and not substantially complied with. A waiver of the warranty required by an agent is not binding on the company, where the policy expressly prohibits agents from waiving the requirements of the warranty or compliance with its conditions. Northwestern Nat. Ins. Co. vs. Mize (Ct. Civ. App., Tex.), 34 S. W. Reporter, 670. IRON SAFE CLAUSE.— In an action on an insurance policy which declared that it was issued subject to the iron safe clause, attached to and made a part of it. The clause was on a printed slip attached to the face of the policy as follows: "The assured under this policy hereby covenants and agrees to keep a set of books, showing a record of business transacted, including all pur- chases and sales, both for cash and credit, together with the last inventory of said business; and further covenants and agrees to keep such books and inventory securely locked in a flre-proof safe at night, and at all times when the stoi-e mentioned in the within policy is not actually open for business, or in some secure place not exposed to fire which would destroy the house where said business is carried on; and in case of lose, the assured agrees and covenants to produce such books and inventory, and, in the event of a failure to produce the same, this policy shall be null and void, and no suit or action at law shall be maintained thereon for any such loss." The court charged the jury that the "iron safe clause" was not a warranty, and refused a special charge requested instructing the jury that such clause was a warranty. This part of the general charge and the action of the court in refusing the special charge, is made the basis of an assignment of error. The clause referred to was a part of the contract of insurance, and was by its own terms made a condi- tion necessary to be complied with before a recovery could be bad. The court should have so instructed the jury. American Fire Ins. Co. vs. First National Bank (Court of Ap- peals of Texas), 30 S. W. Rep., 384. 120 INDICATOR'S DIGEST. IRON SAFE CLAUSE IS A WARRANTY.— Tbe "iron safe clause" in a policy by which the insured ngreed to keep a set of books secure from fire, is a wai-ranty binding on insured, a breach of which voids the policy. Standard Fire Ins. Co. vs. Willock (Court of Civil Appeals of Texas), 29 S. W. Rep., 218. IRON SAFE CLAUSE A WARRANTY.— A policy of insur- ance had a slip attached to it containing the only description of the property Insured, and the "iron safe clause" provided that such clause was a warranty, and a part of the contract. It was held to constitute a warranty, and a part of the contract. It was policy. Home Ins. Co. of New Orleans vs. Cary (Court of Civil Ap- peals of Texas), 131 S. W. Rep., 321. IRON SAFE CLAUSE A WARRANTY BY INSURED.— A Stipulation in a fire policy that insured will at all times keep his commercial books and p'apers in an iron safe is a promissory war- ranty, the breach of which is not cured by the allegation that from oversight or neglect on the part of the insured or his clerk the books were not in the safe on the night of the fire, and the policy is avoided by the breach. Goldman vs. North Brit. & Merc. Ins. Co. (Supreme Ct. La.), 19 So. Reporter, 132. IRON SAFE CLAUSE IN POLICY.— An "iron safe clause" in a policy requiring the insured to. keep a set of books showing a record of the business, including all purchases and sales, and the last inventory taken, is complied with by keeping an inventory made when the policy was issued, and a set of books dated from sucli date. Liverpool & London & Globe Ins. Co. vs. vShefEy (Supreme Court of Mississippi), 16 So. Rep., 307. IRON-SAFE CLAUSE.— Pasted on a fire policy was a rider on which was printed a warranty by the insured to keep his books and last inventory in an iron safe at night and at all times when the store was not kept open for business, and in it was the description of the propert.v Insured, and the amount of in- surance, which appeared no place else in the policy, and the rider was signed by the agents of the company as part of the policy. The Court of Civil Appeals of Texas held that the iron- safe clause was a warranty, and non-compliance therewith would prevent recovery. American Fire Ins. Co. vs. Center, 33 S. W. Reporter, 554. RIDER ON INSURANCE POLICY A PART OF SAME.— A paper, headed "Conditions," containing a stipulation that the assured shall at all times keep his commercial books and papers In an iron safe to preserve them from fire, the paper being plainly marked as a part of the policy, delivered to and accepted by the Insured, will be deemed a part of the policy, especially when the insured sues upon the policy with the paper attached as consti- tuting his contract. Goldman vs. N. B. and Morrantile Ins. Co. (Sup. Ct. La.), 19 So. Rep., 1.32. IRON SAFE— JUDGMENT. 121 IRON SAFE CLAUSE STRICTLY CONSTRUED.-A clause m a tire policy on a stock of liquors, etc., in a saloon, providing that the insured should keep his books in a fire-proof safe at night, and at all times when the store mentioned in the policy was not open for business, is valid, and its efCect cannot be defeated by showing that the insured maintained the saloon in connection with his hotel; that the saloon was kept open for business both night and day, and was closed only on Sunday; that insured kept but one set of books for the hotel and saloon; that he was obliged to frequently refer to them for settlement of guests' accounts, and therefore kept tljem under a counter, and that they were not placed in the safe oftener than once a month. Southern Ins. Co. vs. Parker (Supreme Ct. Ark.), 32 g. W. Rep.. 507. JUDGMENT. CONDITIONS IN INSURANCE POLICIES AGAINST JUDG-JIENTS. — A policy of insurance on a house, containing a provision that it shall be void i£ the property becomes incumbered by legal process or judgment, is avoided by a judgment recovered against the insured, and docketed so as to become a lien on the iand. Kiernan vs. Agricultural Ins. Co. of Watertown (Supreme Court of N. T.), 25 N. Y, Supp., 438. CORRECTION OF JUDGMENT FOR MISTAKE.— Where several actions against a number of insurance companies, for losses occasioned by the same fire. The jury found in favor of the insured in one action, and it was agreed that the same verdict should be entered in the other actions. In one of these the insured had declared on two policies issued by the same company, each policy being made the subject of a separate count. By haste and inadvertence, a verdict was taken on only one count, the judg- ment entered thereon was affirmed, and, the amount thereof be- ing paid, satisfaction was entered on the record. The omission to take judgment on the second count was not discovered until three years after, when it was too late to move for a new trial, or to appeal. It was held that the insured's only remedy was in equity, on the ground of mistake in the verdict and judgment. Oelzer Man'g Company \s. Hamburg-Bremen Fire Ins. Co. (Circuit Court, D. South Carolina), 62 Fed. Rep. 1. INDICATOR'S DIGEST. JURISDICTION. STIPUiLATIONS IN INSURANCE PODICY CONCERNING JURISDICTION.— A foreign insurance company may not put a clause in its policies providing that suit shall only be brought in certain foreign courts, and an admiralty court cannot upon equit- able grounds refuse jurisdiction on account of such claufie. Sloeum vs. Western Assurance Co. (District Court of the United States, Southern District of New York), 42 Fed. Rep., 335. RESTRICTIONS OF RIGHTS TO SUE AGAINST PUBLIC POLICY.— A provision in an insurance policy that no action shall be brought on it by the insured, except against the attorneys in fact representing all of the insurers, is against public policy, as ousting the courts of jurisdiction. Walker vs. Beecher (Com. PI. N. Y. City), 36 N. Y. S. Repor- ter, 470. JURISDICTION IN ACTION ON POLICY.— Where an insur- ance company and its creditors both reside in New York, in which State the debt originated, the pendency of an attachment suit against such creditors by garnishment of the company in a foreign State constitutes no defense to an action on such debt in New York by such creditor against the company, in the absence of any ap- pearance by such creditors to the attaohment suit, or personal service of process on him in such State. Where such Insurance company was orga,nized under the laws of New York, the appoint- ment of an agent in such foreign State, on whom service of pro- cess can b© made, so as to enable it, under the laws of such State, to do business therein, in no sense changes the domicile of such oorporation, so as to make a delbt owing by such company to a resident of New York for a loss on a fire insurance policy, occur- ring in the latter State, an indebtedness existing in such foreign State. Douglass vs. Phenix Ins. Co. of Brooklyn (Court of Appeals of New York), 33 N. B. Rep., 938. LESSEE. RIGHTS OF LESSEE.— Knowledge of the agent, who ob- tained the insurance acquired from the insured at the time of the application, that the latter was only a lessee of the property covered by the policy, is binding on the company with respect to any subsequent renewals of such policy through such p,gent. LEVY AXD EXECUTIOX. 123 uotwithstandiug the policy provides for absolute ownership, and that no agent of the company shall have power to waive any condition contained in the policy. A lessee is not deprived of the right to recover the full amount of the policy by the fact that he had an independent agreement with his lessor, whereby the pre- mium and amount of the policy, in case of loss, were to be shared between them in stated proportions. Home Ins, Co. of New Tork vs. Gibson (Supreme Com't of Mississippi), 17 So. Rep., 13. LEVY AXD EXECUTIOX. EFFECT UPON INSURANCE OF LEVY OX PROPERTY. — A levy under execution on a stock of goods merely creates a lien thereon, and does not vest in eitha: the officer or the creditor any title or interest, within a clause of the policy which declares that it shall be void "if any change * * * take place in the in- terest, title, or possession of the subject of the insm-ance (except change of occupants, without increase of hazard), 'whether by legal process or judgment, * * * or otherwise." The words "change of occupants," as used in such policy, does not relate exclusively to real estate, but apply to personality as well, and the question whether the possession of the officer under the levy was an "in- crease of hazard" was properly submitted to the jury, Waldradt vs. Phoenix Ins, Co. (Supreme Court of Xew York), 19 X\ Y. Supp., 293. EFFECT OF LEVY OX PART OF IXSLRED PROPERTY. Where a fire insurance policy provides that if the property thereby insured shall be levied on or taken into possession or custody under any legal process, or if the title or possession shall be dis- puted in any legal proceedings at law or in equity, then said policy shall at once cease to be binding upon the company, such policy is rendered void by the levy of a writ of attachment on the property insured. The forfeitiu'e of such policy is not waived ty the adjuster and State agent of the company eleven days after the fire by stating that he would refer the matter to the company, where he at the same time claims that the company is not liable on the policy. In an action on such policy, issued for a gross premium on cranberry T)Oxes and barrels, cranberry railroad cars. and a cranberry separator, six-cifying a particular sum on each. all stored in a certain warehouse. It appeared that five days before the fire a writ of attachment against the insured and another -was levied on aU the goods in such warehouse, except the east 1,500 and the west 300 boxes of berries, which were omitted from the levy because they had previously been mort- gaged. Such policy was rendered void as to the property not levied on, since the whole risk was a unit, and the contract indivisible. Burr vs. German Ins. Co. (Supreme Com't of Wis. 1, .>t X. W. Rep., 22. 124 INDICATOR'S DIGEST. LIABILITY. DENIAL OF LIABILITY WAIVES NOTICE OP LOSS.- The rigM of an insurance company to notice of loss is a right wliich the company may waive, and when the insurer denies all liability for the loss, and refuses to pay the same, and places such denial and refusal upon grounds other than the failure of the insured to give notice of the loss, euch denial and refusal avoid the necessity of such notice. Omaha Fire Ins. Co. vs. Dierks (Supreme Court of Nebraska),. 61 N. "SV. Rep., 745. LIABILITY FOR FAILURE TO PRODUCE COPIES 01' IN- VOICE'S.— Where a policy of fire insurance upon a stock of goods contains a clause providing that the assm-ed will, if required, produce as part of his proofs of loss certified copies of all bills and invoioee, the originals of which have been lost, a failure to comply with the condition will defeat a recovery upon the policy, in the absence of proof of waiver, or of inability, without fault of the insured, fully to perform. Ward vs. National Fire Ins. Co. (Supreme Court of Washing- ton), 38 Pac. Rep., 1128. PERSONAL LIABILITY OF AGENTS FOR WORTHLESS UNDERGROUND INSURANCE.— Where money is sent to insur- ance agents 'With instructions to place insurance In siound and reliable companies and an injunction to return same if they could not place the risk in good companies, the agents are personally liable for a loss, if they place the risk in a company which has not coimplied with the insurance laws of the State, and is, in fact, ia- solvent, and failsi to pay a loss under such a policy. Morton vs. Hart (Supreme Court of Tennessee), Jan. 27, 1890, 125 S. W. Rep., 1026. LIABILITY FOR FRAUD IN PROOF OF LOSS.— A policy of insurance required the insured, in case of loss, to obtain and present to the company certified copies of all bills and invoices the originals of which had been lost, to produce his books and accounts, and, if required, to submit to an examination on the subject of the loss. The policy also provided that "all fraud or attempt at fraud by false swearing or otherwise shall cause a forfeiture of all claim on this company under this policy." The insured procured copies of invoices and wilfully raised the amounts thereof so as to show purchases $1,700 greater than they were in fact, and by affidavit verified such false invoices. The jury, by its verdict, found that the actual value of the goods was less than the aggregate insurance. It waa held that there had been false swearing, and an attempt at fraud, which constituted a good defense to an action on the policy. Home Ins. Co. vs. Winn (Supreme Court of Nebraska), 60 N. W. Rep., 575. LIABILITY. X25 LIABILITY FOR FAILURE TO PROCURE IXSURAXCE.- If one party undertakes to procure tor another a policy of insur- ance against loss by fire upon the house of the latter for a sum named, and, through oversight of the undertaker, no policy is actually procured, and the house is consumed within the time •covered by the proposed policy, the undertaker will be liable for no more than the value of the house, though that be less than the amount which was to have been named in the policy. Lennels vs. Egg Harbor Com. Bank (Court of Chancery of Xew Jersey"), 26 At. Rep., 797. LIABILITY OX UXREPORTED POLICY.— Where the agent fails to forward the daily report of a policy as he is required by the i;ompany to do, and a loss occurs under a policy so neglected to be reported, the company will not be allowed to show, in an action on the policy, that it would have cancelled the same had it received the usual daily report, as the company is bound by the negligence of its own agent. In the absence of collusion with insured. State Ins. Co. vs. Jamison (Supreme Court of Iowa), Feb. 1, lSi;iO. 44: X. W. Rep., 371. EFFECT OF VOID POLICY AS TO LIABILITY OF AX- OTHER COilPAXY.— A policy which becomes void before lose for breach of condition does not affect the liability of another company under a policy which provides that it shall not be liable for a greater proportion of any loss than the amount of its insurance shaU bear to the whole insurance "whether valid or not." Galantshik vs. Globe Fire Ins. Co. (Common Pleas of X>w York Citj- and County, General Term), 31 X. Y. Supp. Rep., 32. LIABILITY FOR MISDESCRIPTIOX BY AGEXT.— Though the policy pros-lded that the description of the insured property should be part of the contract, and a warranty by the insured, tie fact that the agent misdescribed the property did not defeat a recovery on the policy, where the insured accurately described the property, and did not know of the error in the description till after the fire. Dowldng vs. Merchants' Ins. Co. of X'ewark (Supreme Court of Penn.), 31 At. Rep., 1087. LIABILITY FOR BREACH OF COXDITIOX IX IXSUR- AXCE POLICY. — Where an insurance policy allowed a use for •'any mercantile purpose," and the building was destroyed while used as a restaurant, evidence of an admission by the president of the insurance company, to one not the holder of the policy, that he knew the building was used as a restaurant, because it "was" insured in his company, is immaterial in establishing notice to the company of the occupation of the building as a res- taurant under the policy in force at the time of its destruction. Where the defense to an action on an insurance policy, which allowed the building to be used only for "mercantile purposes." was the use of gasoline contrary to an express provision in the policy, in the absence of evidence establishing the consent of the company to the use of the building as a restaurant, it was proper to direct a verdict for the company, though gasoline may be neces- sary to carry on a restaurant. ' Garret.son vs. Merchants' & Bankers' Ins. Co. (Supreme Court of Iowa). 60 X. W. Rep., MO. 126 INDICATOR'S DIGEST. LIABILITY BY REINSURING OOMPANY— An insurance company, on another one going out of business, by contract as- sumed its "trade, contingent, liabilities, and good will," and agreed to pay the losses and reap the benefits which were to "acci-ue" from its assumption of the losses of the other com- pany. The company retiring from business agreed to tiischarge its "outstanding obligations." The Court of Civil Appeals of Texas held that, it was liable for losses through fires before the contract was made. Olsen vs. Gal. Ins. Co., 32 S. W. Rep., 447. COMPUTATION OF PRO RATA LIABILITY,— Attached to a fire insurance policy was a list of the property insured and its value. The policy contained a clause limiting the liability of the company to one-sixtieth part of each item set forth in the list attached. There was other insurance on the property, some of which was cancelled before the loss. The company is liable for its proiportion of the live insurance at the time of loss to the extent of one-sixtieth of each item set out in the list and not for simply one-sixtieth of the loss. Hoffman vs. Germania Ins. Co. (Supreme Court of Tennes- see), 14 S. W. Rep., 72. LIABILITY AVOIDED BY FALSE STATEMENTS OF IN- SURED.— A fire policy providing for the examination of the in- sured on oath regarding the loss, and that a false oath by him on any matter afCecting the insurance or the subject matter of same before or after a loss should avoid it, is avoided by a false affidavit by the insured on such an examination that cer- tain property was destroyed, though such affidavit may not have been intentionally false, but carelessly made. Knop vs. Nat. Fire Ins. Co. (Supreme Ct. Michigan), 65 N. W. Rep., 228. LIABILITY FOR BREACH OF CONDITIONS.— The fact that an insurance agent, without authority to waive the condi- tion of the policy requiring a true statement of the assured's interesit in the insured property, was notified at the execution of the contract that the assured's interest was other than ex- pressed in the policy, does not iireclude the company from set- ting up a forfeiture of the policy for breach of said condition. Westchester Fire Ins. Co. vs. Wagner (Court of Civil Appeals of Texas). 30 S. W. Rep., Or,'.). ACCORD AND SATISFACTION OF LIABILITY.— A party held a policy containing an eighty per cent co-insurance clause, which the day before the fire he sent to the insurer in order that the rate of insurance should be reduced according to contract. Insurer also inserted after the loss, in place of the 80 per cent clause a 100 per cent clause, as it claimed with the consent of the insured, and such party, on the return of the policy without linowledge, as he alleged, that the clause had been changed, filed proofs of loss on the 100 per cent basis, was paid the amount, and surrendered the policy. The Court of Appeals of New York held that, in an action to recover the difference between the amouni paid and the amount which would have been due him had the loss been based on the 80 per cent basis, could show the facts alleged. Belt et al. vs. Am. Cent. Ins. Co.. 43 N. E. Rep., 04. LIABILITY. 127 "WHAT DEG^RKE OF t'ABE REQUIRED OF INSURED.— The Supreme Court of Wisconsin holds that an insurance com- pany is not relieved from liability on its policy for loss by fire merely because insured was negligent. It saiit: Such party is only required to use ordinary care, or such care as men of ordi- nary care ordinarily use— not extraordinary care and prudence; an'd the burden of proof is on the company to show, by a prepon- derance of the evidence, that such party did not use ordinary care. Pool vs. Milwaukee ilech. Ins. Co.. 05 N. W. Reporter. ."i4. LIABILITY FOR THE PROTECTION OF INSURED GOODS.— After goods had been damaged to an extent greatly ex- ceeding the Insurance, he delivered them to one whose business it WBiS to care for and keep goods damaged by fire so as to save them from further damage. He was liable for the care of such goods, though he delivered them to such party at the suggestion of a person representing the insurance company that the policy re- quired him to protect goods from fittther damage. Cohen vs. Clemens( City Court of New York.General Term), 27 N. Y. iSupp., 933. LIABILITY OF AGENT TO COMPANY IN NEW YORK.— The statutes of New York provide that on the failure of a person who receives money in any fiduciary capacity to pay over the money so received to the proper parties, he may be arrested in a civil action. The insurance laws of New York provide that the agent of an insurance company shall b'e held responsible in a trust or fiduciary capacity, for all moneys received by him for such company. AVhere the agent acts under a contract which authorizes him to receive the moneys due the company, and first deduct therefrom the commissions due him, and then remit the balance to the company, the fact that the agent has an Interest in the money does not alter his fiduciary relations to the company, and as to the amount, which does not belong to him as commis- sions, he is liable to civil arrest for failure to remit. Albany Ins. Co. vs. McAllister (Supreme Court of New York), 11 N. Y. Supp., 295. LIABILITY FOR ACTS OF APPRAISER.— While it is true that an arbitrator or appraiser is not to be regarded as the agent of the party appointing him, simply by reason of the fact of his appointment, yet an arbiti-a'tor or appraiser may act in such a partial manner, and so manifestly in the interest of the party appointing him. that it may become a question of fact to be submitted to the jury, or to be determined by the court .sitting ■\^-ithout a jury, whether he conducts himself as an agent to such an extent that the party appointing him shall be held resjwnsible for his acts. If .an insurance company selects a man for appraiser who, instead of acting as such, Cduducts him- self in the interest of the company and as agent for the com- pany, the company will be held responsible for such conduct on his pait as inures to the benefit of the company. If the evidence proves that he prevents an agreement, or the appointment of an umpire, by methods which show him to be the agent of the company, his afts will be regarded as those of his principal. Niagara Fire Ins. Co. vs. Bishop (Supreme Court (if Illinois), r,U N. E. Rep., 1100. 128 INDICATOR'S DIGEST. LIABILITY OF AGENT FOR FAILURE TO COLLECT INSURANCE.— An insurance company refused to pay a loss be- cause the owner of the property was not, at the time of the fire, ■ the holder of the policy thereon. He had not taken out any policy, and had neglected to have transflferred to himself the policy Issued to the former owner, which such owner had transferred to a third person as security for a mortgage and which was in the . custody of such third person's agent. The owner of the property claimed that the agent was liable because he paid him iive dollars to collect such insurance, and he put in evidence a receipt signed by the agent after the ^re, purporting to be for services attending to the loss. The payment of the fee gave no right of action against the agent for his failure to collect the policy. Herbert vs. Lukens (Supreme Court of Penn.), 25 At. Rep., IIIB. LIABILITY OF RAILWAY COMPANY FOR FIRE.— Where a railway company, in running its engine through a town, negli- gently emits sparks upon adjoining property, it is liable for the result and damage. If the property is insured, the insurance com- pany, up.on paying the loss, becomes subrogated to the rights of the insured and may sue, to recover what it has paid. If there is an ordinance prohibiting the running of trains at more than a given rate of speed, it raises a presumption of negligence if that speed is exceeded, if there is evidence to show that there is a greater liability to emit sparks at a high speed than at a low one. As against evidence that the engine was in good repair, and was provided with a spark arrester, it may be shown that it had set other fires the same day. Lake Brie & W. R'y Co. vs. Middlecoff, etc. (Supreme Court of 111.), 37 N. E. Rep., 660. CONDITION OF POLICY LIMITING LIABILITY TO TWO- THIRDS ACTUAL VALUE.— A contract of insmrance like any other, is to be construed with regard to the intention of the parties, _ and this is to be ascertained from an examination of the whole in- strument. The face of the pohcy, while insuring the property destroyed to the amount of ?700 against loss or damage by fire, ex- pressly limited such insurance to an amount not exceeding in any case or under any circumstances, the snim aforesaid, nor paore than two-thirds of the actual destructible value of the buildings, at the time the loss may happen. The same provision was contained in one of the provisions annexed to the policy, as also in one of the bylaws of the company, both of which were referred to and became a part of the contract between the parties. The insured was not entitled to recover more than two-thirds of the actual value of the buildings destroyed, notwithstanding another provision annexed to the policy provided, that in settling a loss, the damage is to be paid in full, not exceeding (in any case or under any circumstances) the whole amount insured, and is to he estimated according to the fair value of the property at the time of the fire. The term "dam- age," as therein used, may, when considered in connection with the whole contract, properly be construed a,s referring not to the amount oif loss which the plaintiff, or insured, has sustained, but rather to the recompense or compensation to which he is entitled from the company. Blinn vs. Dresden Mut. Fire Ins. Co. (Supreme Judicial Court of Maine), 27 At. Rep., 263. LIABILITY. 129 INSURANCE— LIABILITY OF THIRD PERSON.-Wheie one holds a policy of insurance, insuring his furniture and house- hold goods against loss from fire, explosion, or collapse of build- ing, and the wall of the house he occupied fell, in consequence of an excavation made upon the adjoining lot, and upon suit against the landlord he settled the same as to all claims against him. Such release destroys the right of subrogation and by that act the assured discharged the insurer to the same extent that he di'i his landlord. Dilling vs. Draemel (Common Pleas of New York City and County, General Term), 9 N. Y. Sup.. 497. LIABILITY NOT A LIEN ON PROPERTY OF MEMBER OF MUTUAL ASSOCIATION— A mutual fire insurance company acquired no hen on the property of a member for his pro rata share of losses and expenses, under its charter and the contract of insurance with such member, where the act incorporating the company was not approved till after the contract of insurance was made. Farmers' Mut. Fire Ins. Ass'n vs. Burch (Sup. Ct. S. C.l 24 S. E. Reporter, 503. LIABILITY FOR MERCHANDISE WAREHOUSED IN TRANSIT. — Under a contract whereby a compress company agrees to compress all cotton delivered to it by a certain carrier, and insure the same for the latter's benefit, and the carrier makes the compress comijany its agent to receive the same dii-ectly from the owners, the compress company, while in possession, is individ- ually liable to the carrier for any damage thereto, to the extent that it has failed to obtain insurance. Where, in accordance with usage, the compress company's receipt was delivered by the owner to the carrier, and a bill of lading issued by the latter, the lia- bility of the carrier to the owner began, though the cotton was not actually delivered to the caiTler. A stipulation in a bill of lading, that the carrier shall not be liable for any cotton while in any compress, exempts such carrier from liability for loss oc- curring therein, although the compress company is the carrier's agent to receive the cotton; but under such circumstances, a stip- ulation or exemption from liability or loss, while in any "depot"^ or "station," does not cover loss occurring in said compress. Dening vs. Merchants' Cotton-Press & Storage Company (Su- preme Court of Tennessee.!. 17 S. W. Rep., 89. I30 INDICATOR'S DIGEST. LIABILITY OF RAILWAY COMPANY FOR LOSS OF IN- SURED FREIGHT.— An insurance policy on cotton consigned from Texas to Liverpool stipulated that it was not to cover the common law liability of the common carrier, but that if the cotton were lost while in the care of any common carrier, the underwriter should "advance" to the assured an amount equiva- lent to the instired value of the cotton so lost; and, if the carrier proved liable, the assured should return to the underwriter the amount received from the carrier. A railroad company to' whom the cotton was consigned was liable for loss resulting from its negligence, though the bill of lading stipulated that the com- pany should have full Iienefit of any insurance that had been effected on the cotton. The "advancement" liy the underwriter to the assured of the insured ^-alue of the cotton does not con- stitute "payment" in such sense as to preclude the assured from recovering from the railroad company the amount of its; common- law liability. Gulf C. & S. P. Ry. Co. vs. Zimmerman (Suiireme Court of Texas), 17 S. W. Rep., 239. LIABILITY OF APPLICANT FOR INSURANCE.— There being no usage or special evidence to the contrary, the vers' fact that the signature of an applicant for insurance is required to the paper is notice to him that the company does not rely upon the agen't, but requires tlie applicant's own authority. Under the circumstances and the employment of solicitors, it is safe and proper to hold that the agent, in writing the answers of the applicant, is not doing the work of the company, but of the applicant, and that the comjiany is no more responsible for it than if done by a stranger. A solicitor working for commis- sions comes nearer being a broker than an agent. His inter- ests are often adverse to the company, making false statements to secure commissions; nor can the assured avoid responsibility by neglecting to read the paper, when, by so doing, the mis- statements could have been corrected. There is no reason, in contracts of insurance, that a pai-ty should be, by law, relieved fi'om the duty of exercising the same ordinary care and pru- dence tha,t is required in every other business transaction. It is the duty of every man to read what he signs. His failure to do so will or should not relieve him or allow him to avoid the con- tract. Sun Fire Office vs. Wich (Court of Appeals of Colorado). 39 Pao. Rep., 587. LIGHTNIJNTG. INJURY OF INSURED PROPERTY BY LIGHTNING.— Where in an action on a policy of fire insurance, which covered direct loss by lightning and excluded los.s by windstorm, it ap- peared that a barn was prostrated in a windstorm accompanied LIMITATION. 131 by lig-htning, and, while there was no iguition, there were evi- dences of the presence of heat and injui-y by lightning, the question as to how much of the injury was caused by the wind, and how much by the lightning, was peculiarly for the jury, and a verdict for $100 should not be set aside as inadequate. Beakes vs. Commercial Uuion Assurance Co. (Supreme Gomrt of New York), 20 X. Y. Sup., i!T. LIMITATION. LIMITATION OF TIME OF SLIT DOES NOT APPLY TO CORRECTION OF JUDGMENT.— The Circuit Court of the United States, District of South Carolina, holds that a limitation of time for bringing suit on a policy, contained in such policy, has no application to a suit to reform the judgment. Pelzer Mfg. Co. vs. Hamburg-Bremen Fire Ins. Co., 71 Fed. Rep., S2T. A LIMITATION OF ACTION ON POLICY.— Where a fire insurance policy provides that no action shall be maintained, thereon until after an arbiti-ation has been had and an award made, nor unless the action shall be commenced within twelve months from the date of the fire, but does not limit the time with- in which the arbitration must be had, the twelve months limita- tion does not begin to nm until an award has been made. Hong Slins vs. Roval Insurance Co. (Supreme Court of Utahi, 30 Pac. Rep. 307. LIMITATIONS IN ACTION ON INSUTIANCE POLICY.— Under a policy providing that no action thereon can be maintained unless commenced within six months after the loss, and that the company shall have sixty days to make payment, an action can be commenced after the six months, though there were negotiations for a settlement, where, within sixty days after the loss, the com- pany repudiates liability, thereby excusing proof of loss. Leitz vs. Teutonia Fire Insurance Co. (Supreme Court of Mich- igan), r,r, N. W. Rep.. 00.1. CONSTRUCTION OF LIMITATION CLAUSES IN FIRE INSURANCE POLICY.— The clause in an insurance policy limit- ing the time when an action under it may be maintained, runs from the date of the loss and not from the date of filing proofs of loss. Ordinarily a contract of reinsurance creates no liability on the part of the reinsurer and the assured, but if the reinsur- ing 'company assured the risk, the insured may sue it directly. Wben the claim of a mortgagee exceeds the amount of the policy, he may sue alone. Travelers' Ins. Co. ve. California Ins. Co., 45 N. W. Rep., 703. 132 INDICATOR'S DIGEST. CONDITION OP POLICY AS TO LIMITATION OF AC- TION.— An insurance policy contained a condition that no action thereon should be maintained unless brought within six months after the occm-rence of the fire, and by another clause it was stip- ulated that the loss should not become payable until 60 days after proofs of loss are furnished to the company. A suit upon the policy may be brought at any time within six months from the ex- piration of the sixty days. Firemen's Fund Ins. Co., of Cal., vs. BuckstafE (Supreme Court of Neb.), 56 N. W. Rep., 697. LIMITATIONS ON THE COMMENCEMENT OF ACTIONS. —Where a fire policy stipulated that action should be brought thereon unless commenced within twelve months "after the fire" nor "until after full compliance" with the provisions, one of which required proof of loss to be filed within sixty days, and another provided that the loss should not be payable till after notice, estimate and satisfactory proofs, and appraisal, If re- quired, the limitation commenced to run from the accrual of the right of action and not from the date of loss. Sample vs. L. & L. Fire Ins. Co. (Sup. Ct. S. C), 24 S. E. Re- porter, 334. LIMITING COMMENCEMENT OF SUIT BY CONDITION IN POLICY.— Where the statute of a State relating to foreign insurance companies provides that no condition in a fire policy shall be valid which prohibits the bringing of a suit thereon after the expiration of any period less than three years, as in Indiana, a condition in a policy in violation thereof will be held void by the federal courts. An agreement in such case that, if suit shall be brought after the expiration of one year, the lapse of time shall be deemed conclusive evidence against the validity of the claim, is equally invalid, as it attempts to accomplish by indirection what is expressly forbidden by statute. Small vs. Westchester Fire Ins. Co. (TJ. S. Circuit Court, D. Indiana), 51 Fed. Rep., 793. LIMITATION OP ACTION ON INSURANCE POLICY.— The statutes providing that an attempt to commence an action by delivering the summons to the sheriff to be served is equiva- lent to the commencement of it, within the provisions of the statute as to the limitation of actions, applies only to the limi- tations specifically provided for by the statute; and therefore an action on a policy which provides that no action shall be brought on it, unless commenced within twelve months after the loss, cannot be maintained where the summons was served after the twelve months had elapsed, though it was given to the sheriff for service within that time. In an action against a foreign in- surance company it is not estopped to set up the one-year limita- tion contained in the policy by the fact that the superintendent of insurance was absent from the county of his official residence when the summons was received by the sheriff for service on him. within the year, and did not return until the year ha4 ex- pired, since the service could have been made on the superintend- ent's deputy, under the statutes. Quiiin vs. Royal Ins. Co. (Supreme Court, General Term Fifth Department), 30 N. Y. S. Rep., 714. LIMITATION. 133 LIMITATION ON ACTIONS.— An action brought by the re- ceiver of an insolvent mutual fire insurance company, to recover an assessment levied against a member, by order «f the court, to liquidate the liabilities of the company, is barred by the statute of limitations, if commenced six years after his assessment fell due. Wardle vs. Hudson (Supreme Court of Michigan), 55 N. W. Rep., 992. LIMITATION OF ACTION ON FIRE INSURANCE POLICY. — Where an insurance policy stipulates that the loss shall not be payable till 60 days after proof of loss, an action commenced 58 days after proof of loss is premature, unless the company has absolutely refused to pay the loss. The proof of the loss made to the company after the fire is not evidence of the value of the property; and, where such proof is the only evi- dence of the value of the property, there is nothing for the jury to decide. Cascade Fire and Marine Ins. Co. vs. Journal Publishing Co. (Supreme Court of Washington), 25 Pac. Rep., 331. LIMITATION OF ACTION ON INSURANCE POLICY.— Under a provision in a policy of insurance requiring an action for the recovery of any claim to be brought within twelve months after the fire, the time for beginning the action begins to run, not from the date when the loss is ascertained or established, but from the date of the fire, unless the insurer has waived the limitation, or estopped himself from insisting thereon. Such a provision in the policy does not prohibit the bringing of an action thereon, within the meaning of the statute which forbids the insertion of such a provision in insurance policies. Hai't vs. Citizens' Ins. Co. of Pittsburgh (Supreme Court of Wis.), 56 N. W. Rep., 332. LIMITATION OF ACTION ON INSURANCE POLICY-— Where a policy of fire insurance provides that the amount of any loss thereunder shall be payable at any time within 60 days after the insured shall have complied with the terms and conditions of the policy, a provision that an action thereunder must be brought within a year after loss commences to run from the expiration of 60 days and not from the happening of the loss. Case vs. Sun Fire Ins. Co. (Supreme Court of California), 23 Pac. Rep. 534. LIMITATION OF ACTION ON POLICY.— A twelve-months' limitation in a policy of fire insurance, within which the assured must sue for a loss, is not waived by conduct of the insurance company calculated to make the former believe that the loss will be paid, provided such conduct ceases, so as to leave a reasonable time within which to sue, and seven months of the twelve is ample time. A limitation of twelve months from the date of the fire, within which to sue on a policy of fire insurance, commences to run from such date, and not from the date at which the right of action accrued. Steel vs. Phenix Insurance Company (United States Circuit Court, Oregon), 47 Fed. Rep., 863. 134 INDICATOR'S DIGEST. LIMITATIONS IN FIRE INSURANCE POLICY— If an action is not brought on an insurance policj' within the six months limited in the policy, and it a.ppears in evidence that from the date of the tire to the time the euit was commenced negotiations were pending between the company and the assured, In hopes of an adjustment, though it does not appear that the company requested delay, the company will not be allowed to set up the limitation clause as a defense. Allemania Fire Ins. Go. vs. Peck (Supreme Court of Illinois), 24 N. E. Rep., 538. LIMITATION OF SUIT ON INSURANCE POLICY.— A con- dition in an insurance policy that no suit can be maintained un- less brought within twelve months "after the date of the Are," should be so consitraed as to give twelve full months during which the insured has a right to sue; and when, by another clause, the policy does not become payable until sixty days from the proofs of loss, suit may be brought within twelve months from the expiration of the siixty days. A delay in suing on an in- surance policy for more than the twelve months allowed by the poillcy is no bar to an action, if the delay was caused by the promises of the company's agent that the loss would be paid. Steel vs. Phenlx Ins. Co. of Brooklyn (U. iS. Circuit Court of Appeals, Ninth Circuit), 51 Fed. Rep., 715. LIMITATION ON RIGHT TO BRING SUIT.— Under a fire policy providing "the loss shall not become due and payable until sixty days after * * proof of the loss * * including an award by the appraisers, when * * required. * * No suit or action on this policy for the recovery of any claim shall be sus- tained * « until after full compliance by the insured with all the foregoing requirements, nor unless commenced within six months next after the fire shall have occurred," the six months commence to run from the time of the fire, and not from the time the right to sue accrues. Egan vs. Oakland Home Ins. Co. (Supreme Ct. Oregon), 42 Pacific Reporter, 990. LLMITING AMOUNT OF RECOVERY.— A^'here real property is wholly destroyed by fire, any provision of a policy of insurance covering such property, which in any manner attempts to limit the amount of the loss to less than the sum written in the policy, is in ooofllct with the statutory rule, invalid, and will not be enforced. Insurance Co. of North America vs. Bachler (Supreme Court of Nebraska), fi2 N. W. Rep., 911. COMPUTATION OF STATUTE OF LIMITATIONS.— The statute of limitations begins to run against an action to recover money paid for insurance on property in which the assured had no insurable Interest, as soon as the fire occurs and the company refuses to pay, even if not when the premiums are paid, though the insured may not 'have known that he had no insurable interest until a decision of the supreme court, rendered some years after- wards, in an action by him on the policy. New Holland Turnpike Co. vs. Farmers' Mut. Ins. Co. (Su- preme Court of Pennsylvania), 22 At. Rep., 922. LIMITATIOX— LOSS. i35 LIMITATION BY (_'OXTKACT OF TlilE FOR COMMENCE- MENT OF ACTION. — By a clause iu au insurauce policy it was provided that no suit should be maintainable unless commenced w-ithin one year from the loss. A petition was filed within the time limited to recover for an alleged loss of a pai't of the property insured. The ques:tiou as to whether or not jurisdiction had been obtained of the company was presented by its motion to dismiss. for the alle.sred reason that The action had not been commenced within the time limited by the euutract for that piuijose. It was held tliat the rtiliug adversely to the c-ompany must be deemed conclusive, when presented for review, neither by its motion for a new trial nor by its motion in error. Home Fire Ins. Co. of Omaha vs. Murray (Supreme Court of Nebraska). 50 X. "\Y. Kep. "tii2. LOSS. WHEN AGENTS CANNOT WAIVE NOTICE OF LOSS.— The local agents of the insurance company who issued the policy had authority to accept applications, to fix the rate, fill up, coun- tersign and issue the policies (which they received from the com- pany signed bv its general officers) and collect the premiums. There was no evidence that they were clothed with any appar- ent authority other or greater than their actual authority, and the Supreme' Court of Michigan held that, it was not within the scope of their authority to accept or waive notice of loss. Ermentraut vs. Girard Fire & Marine Ins. Co., 65 N. W. Rep., 6a5. CERTIFICATE OF LOSS INDISPENSABLE IN MINNE- SOT^raOI-VH MAGISTRATE REFUSES TO MAKE IT^- The 'Minnesota standard fire insurance policy, adopted by the insurance commissioner pursuant to Gen. Laws issi. c -ii. ion^alns a provision that the insured ■'shall, if required, furnish a certificate of the magistrate or notary public (not interested in ?he rfSm as a creditor or other^.-isK?, nor related to the insured) livin- nearest the place of the fire, stating that he has examined the circumstances and beUeves the insured has honestly sus- tained loss to the amount such magistrate or notary PuWie shall certifv '• 4-lso that -no suit or action on the policy for the recov- err of anv claim .shall be sustained in any court of law or equity until after fuU compliance by the insured with all the foregoing requirements.-' Fuder this statute the furnishing of this certifi- cate^^^equired. is a condition precedent to the right of the m- =mred to recover, ami that his inability to furnish it because of ^e refusal of the magistrate or notary public, for any cause whatever, to ^rive it, will not relieve or excuse him from perform- ance of the condition. Lane vs. St. Paul Fire & Marine Ins. Co. ^Supreme Court of Minnesota), oi N. W. Rep., 651. 136 INDICATOR'S DIGEST. WHEN NOTICE OF LOSS MUST BE GIVEN.— Where an insurance policy contains a condition which is void under the statutes, prohibiting the insertion in policies of conditions which require notice of loss to be given forthwith, or in less than five days after loss, the notice must be given within a reasonable time. The failure of the .lury to find that notice of loss under such policy was given within reasonable time is not supplied by a finding that the company received from the insured "proof of loss." But where the jury fail to find that notice of loss under such policy was given within a reasonable time, or that the com- pany waived the condition requiring such notice, the company is entitled to judgment on the verdict. German Fire Ins. Co. vs. Columbia Encaustic Tile Co. (Appel- late Court of Indiana), 39 N. E. Rep., 304. ACTION AGAINST COMPANY ON LOSS IN FOREIGN STATE.— Where an insurance company, incorporated un«ier the laws of the State of South Dakota, issued a fire policy to parties in another State, insuring fixed property in that State, such cor- poration is subject, in an action on sucb policy, to the laws of that State as to the service of process upon such corporation. Gide vs. Dakota Fire and Marine Ins. Co. (Supreme Ot. S. D.), <35 N. W. Reporter, 27. CONDITION IN POLICY— PARTICULAR ACCOUNT OF LOSS— FAILURE TO FURNISH— FINDING OF JURY— EVI- DENCE. — A policy of insurance against fire reqtiired that in case of loss the insured should, within fourteen days, furnish as par- ticular an account of the property destroyed, etc., as the nature and circumstances of the case would admit of. The property of the plaintiff was destroyed by fire and in lieu of the required ac- count he delivered to the agent of the insurers an afildavit in which, after stating the general character of the property in- sured, he swore that his invoice book had been burned and he had no adeqviate means of estimating the exact amount of his loss, but that he liad made as careful an estimate as the nature and circumstances of the case would admit of and found the loss to be between $3,000 and $4,000. An action on the policy was tlefended on the ground of non-compliance with said condition. On the trial the jury answered all the questions submitted to them, except two, in favor of the plaintiff. These two questions, whether or not the plaintiff could have made a tolerably com- plete list of the contents of his store immediately before the fire, and whether or not he delivered as particular an account, etc., AS the nature and circumstances of the case would admit of, were not answered. The trial judge gave judgment in the plain- tiff's favor, which the court en banc reversed. Held, aftirming the decision of the court en banc, that as the evidence conclusive- ly showed that the plaintill, with the assistance of his clerk, could have made a tolerably complete list of the goods lost the •condition was not complied with; and further that as under the evidence the jury could not have answered the questions they refused to answer in plaintiff's favor a new trial was unnecessary and judgment was properly entered for the insurers. Nixon vs. The Queen Insurance Co., 'i.'i X. S. Rep. 317 23 S. •C. R., 26. LOSS. 137 COXDITIOXS PRECEDENT TO RECOVERY OF LOSS.- A stipulation in a policy of fire insurance that "in case of loss or damage by fire tlie assured shall * * » withiu sixtv days render an account of the loss or damage signed and sworn to,' stating." etc., that is a condition precedent to the right of recov- ery as 'Well in respect to time as in other respects. Shapiro vs. Western Home Ins. Co. (Supreme Court of Minne- sota), 53 X. W. Rep., 463. REFrSAL TO PAY INSURANCE CLAIM.— The unqualified refusal by the agent of an insurance company to pay a claim for losa under a policy, or any pait thereof, and the denial of any liability whatever, creates a right of action immediately, and suit may be brought without waiting for the expiration of the time limited in the policy within which payment might be made. California Ins. Co. vs. Gracey (Supreme Court of California), 26 Pac. Rep., 577. UNDER A PROVISION in a fire policy on a vessel that the insurer shall not be liable for more than it would cost the in- sured to repair or replace the same with material of like kind and qualitj', the insured cannot be compelled to prove the exact extent of the damage where the vesisel, while burning, sunk in w^ater so deep that she could be examined only by divers. .Ja<;kson vs. British America Assur. Co. (Supreme Court of Michigan), 63 N. AV. Rep., 899. PAYMENT OF LOSS NOT OOA'ERED BY FIRE INSUR- ANCE POLICY.— An insurance company paid for a loss which It afterward claimed was not covered by the i>olicy, and sought to recover it as paid under a mistake of fact. The following is the rule of law in the case: If the plaintiff paid to the defend- ant the money which it sues to recover, after its agent had been to the place where the fire occurred, and examined the premises and was conversant with all the facts in the case, and nothing was concealed from him or suppressed or kept back by the de- fendant, and he was not misinformed or misled in any way, but acting with full knowledge, voluntarily paid or caused the com- pany to pay, the company cannot recover. Nebraska & I. Ins. Co. vs. Segard (Supreme Court of Ne- braska), 45 N. TV. Rep.. 681. ARBITRATION AND AAVARD FOR THE ASCERTAIN- ilENT OF L<:»ss.— "miere a statute provides for an arbitration. In case any difference arises between the insurers and insured, as to the value of the property insured, of the property saved, or amount of the loss, for the ascertainment of such value and amount, and the proportion, if any. to be paid by the insurers, the proceedings under such a provision are in the nature of an arbitration and not of a valuation merely, and the arbitrators must be in different parties, and must not occupy any relation towards either party, e. g.. the relation of a sub-agent for risks on behalf of a company's district agent, which would lead to a presumption of partiality on their part towards that party; and any award made toy arbitrators, one of whom, at the time of the arbitration, held such a position as would suggest a presumption, however sUght. of a want of impartiality on his part, is void. Viroberg vs. The Guardian Fire and Life Assurance Com- pany, 16 A. R., 29.3. 13S INDICATOR'S DIGEST. OO'RRECTIOX OF POIjIOY AFXBR IjOSS.— Where the- broker who procure':! a policy took it to the insurance company's office and asked the applicatifju clerk to correct a clerical error in the name of the insured, and to attach to the policy a provision- making the loss payable to the mortgagee, the act of the clerk In correcting the name is not a reissue of the policy where he refused to attach a provision making the loss payable to the mortgagee, as the interview between the broker and the clerk must be considered a» an entirety. Walker vs. P'hoenix Ins. Co. of Hartford (Supreme Court of N. Y.), 35 N. Y. Sup. Rep., 374. LIABILITY FOR LOSS.— "In the case of the concurrence of two causes of loss, one at 'the risk of the assured and the other insured against, or one insured against by A and the other by B, if the damage by the perils respectively can be discriminated, each party must bear his proipoition." "If. where the assured and the underwriters or different un- derwriters are each responsible for different causes of loss which concur in the loss, and the damage from each cause cannot be distinguished, the party responsible for the predominating, effi- cient cauee, or that by which the operation of the other is direct- Ij' occasioned as being merely incidental to it, is liable to bear the loss." I'henix Ins. Co. vs. Charleston Bridge Co. (Circuit Court of Appeals, Fourth Circuit), 6.3 Fed. Rep., 628. MEANS OF DETERMINING THE AMOUNT OB" LOSS.— In an action on an insurance policy the company set up as a defense that the question as to the amount of loss had b'een, according to the provisions of the policy, submitted to arbitration, and that the Insured had instituted suit before such appraisal was concluded. It appeared that the company's appraiser refused to agree on an umpire, and nominated persons unknown to in- sured's appraiser, arid living 200 miles distant from the place where fhe property 'was destroyed. It fiu-ther appeared that his refusal to agree to persons nominated by insured's appraiser was without excuse, and his conduct was virtually a refusal to pro- ceed with the appraisal. The fact that bhe appraisal had not been concluded was not a defense to the action. MoCullough vs. Phoenix Ins. Co. of Hartford (Supreme Court of Mo.), 21 S. W. Rep., 207. MACHINERY. MACHINERY USED IN A FLOUR MILL IS RjBAL PRjOP- EBTY. — ^Maohinery constructed for and used in a flour mill is real property, within the statute where, at the time of the burn- ing of a mill, part of the machinery covered by the insurance policy is in another building, having Iiecn removed to facilitate MACHINERY-MAGISTRATE'S CERTIFICATE. 139 improvements the mere fact that such machinery was not de- ? ? >! '''^\''°l !;^"i'^'" ^^^ 1**^^ ^ P'^''"^! ^"^^^ b"t the value thereof ^ill he deducted from the amount of the policv. The words wholly destroyed," as used regarding a huilding mean that the building is totally destroyed as such, though there is not an absolute extinction of all its parts. „. Havens vs. Germania Fire Insurance Co. (Supreme Court of Missouri), 27 S. W. Rep., 718. EFFECTS OF IDLENESS OF ilACFII.XERY FPOX IXSUR- AXOE.— "H here a policy of fire iusuraiice provides that "if a mill or manufactory shall stand idle without notice to, and the consent of the company clearly stated thereon, all liability hereunder will thereupon cease" a policy eoverins machinery oniv is not affectel by the stoppage of the mill as machinery in itself "dues not consti- tute a mill or uianufactory. Halpin vs. Ins. Co. of X. A. (Court of Appeals of N Y.), 23 X. E. Rep., 989. MAGISTRATE' S CERTIFICATE. REQUIREMEXT OF MAGISTRATES CERTIFICATE.— A policy contained a condition that, if a lire should occur, the insur- ed should, if requu-ed, fm-uisb a certificate of a magistrate or no- tary to an examiuatiou of the circumstances. Such a certificate was attached to the proofs of loss, but the company objected there- to as defective, reiiuiring additional particulars to show compli- ance with the polic.v. It was held that this amounted to a re- quirement of such certificate by the company. Aetna Ins. Co. vs. People's Bank of Greenville (Circuit Court of Appeals, Fourth Circuit), 62 Fed. Rep.. 222. COXDITIOXS OF POLICY AS TO CERTIFICATE OF NEAREST MAGISTPiATE. — In an action on an insurance policy. payment of which was refused on the ground that he had not complied with a provision thereof "that the insured should, if re- quired, furnish a certificate of the magistrate or notary living nearest the place of fire." as to the circumstances of such fire, etc., it appeared that he voluntarily sent, with his proofs of loss, the certificate of a notary who lived and transacted business about a block and a half from the place of fire. He testified that after diligent search he could not find an officer nearer. It appeared, however, that three notaries 'lived nearer, but did not have out signs where they lived, and did not transact business there, ex- cept that one of them s(>metimes took acknowledgments and atfida- vits there to accommodate his neighbors. The insurance company retained the certificate for twenty-three days, and then returned it on the ground that it was not by the nearest notary, and de- manded the certificate required by the policy, but gave no informa- tion as to the nearest notary. B.v the retention of the proofs of loss, including the certificate, and the failirre of the company to advise the insured of the information it had obtained, as to the 140 INDICATOR'S DIGEST. residences of the notaries residing nearest the fire, a literal com- pliance with such provision was waived. Paltrovitoh vs. Phoenix Ins. Co. of Hartford (Supremje Court, General Term, Fifth Department), 23 N. Y. Sup., 38. CONSTBUCTION OF CONDITIONS OF POLICY BY MAG- ISTRATES' CERTIFICATE.— Conditions in an insurance policy which affect the contract and parties prior to the loss, including all statements and representations preceding the contract, must receive a fair construction according to the intent of the parties; but those conditions iwhich relate to matters after the loss, de- fiining the mode of adjustment and recovery, must receive a more liberal construction in favor of the insured. McNally vs. Phenix Ins. Co. (Court of Appeals of New York), 33 N. E. Rep., 475. WHERE THERE CAN BE NO RECOVERY ON INSUR- ANCE POLICY.— A policy contained conditions that, if a fire should occur, the insured should furnish a certificate of a magis- trate or notary not interested in the claim nor related to the ia- sured, living nearest the place of fire, to an examination of the circumstances, and that no action should be sustainable on the policy until after full compliance with its requirements. The cer- tificate furnished was made by one who was related by affinity to the insured, and who was not shown to be the magisrt;rate or notary living nearest the place of fire. It was held that there could be no recovery on the policy. Aetna Ins. Co. vs. People's Bank of Greenville (Circuit Court of Appeals, Fourth Circuit), 62 Fed. Rep., 222. VALIDITY OF CONDITION.— An insurance policy in suit contained a provision to the effect that in case a loss occurred as a condition precedent to the right of the insured to maintain an action, he should furnish a certificate of a magistrate, notary public, or commissioner of deeds, whose office was next to the place of the fire, stating that such officer had examined the cir- cumstances of the fire, knew the character and financial condi- tion of the insured, and believed that he had without fraud sus- tained loss on the insured property to an amount certified by the officer. A defense of the insTirance company to the action was that no such certificate was furnished. The Supreme Court of Nebraska held: (1) That the insurance company by its conduct, after being advised of the loss, and by refusing to pay the loss, and defending against the same on the ground that the policy was not in force at the date of the loss, had waived the furnish- ing of such certificate, the same being part of proof of loss; (2) That the validity of any siich provision was doubtful; (3) The constitution guarantees to the citizen a remedy by due course of law for any injury to himself, his property or reputation; and it seems that the right of an insured to maintain an action in the courts of the State on an insurance contract cannot be made to depend upon his first furnishing to the insurer a certificate of a notary public as to his moral character, financial standing, and the notary's opinion as to whether the loss resulted from the fraud of the insurer nor as to the amount of such loss. Home Fire Ins. Co. (of Omaha) vs. Hammang, 62 N. W. Rep., 883. MERCHAXD.ISE— MISTAKE. 141 CERTIFICATE OF NEAREST MAGISTRATE.^Where the policy requires insured to secure the certificate of the magistrate or notaa-y public "nearest" to the insured premises, the fact that a notai-y lived a few rods nearer to the premises than the magis- trate, whose cei-tificate was secured, does not prevent the cei-tifi- eate of the magisti-ate fi-om being a compliance with the require- ment, it appearing that insured was unaware that the other person was a notary public, and also that his place of business was in another locality, and that he was commissioned as resid- ing in such other locality. Osewalt vs. Hartford Fire Ins. Co (.Sup. Ct. Penna.). 34 At- lantic Reporter, 735. MERCHA^'DISE. MEANING OF THE WORD "MERCHANDISE" IN POLICY. — The term "merchandise" in a policy of insiurance against fire may be used to describe property intended for use, and not for sale. The word not only may be, but often is, tised as the synonym of goods, wares, and commodities. It is so de- fined in Webster's dictionary. If used in an insurance policy to describe the goods of a merchant, it might, perhaps, be very properly limited to goods intended for sale. If used for the same purpose to d^eseribe the goods of a painter, it might be held to cover property intended for use, and not for sale. Hartwell vs. California Insurance Co. (Supreme Judicial Court of Maine), 24 At. Rep., 954. MISTAKE. MUXrAL MISTAKE AS TO FACT.— The provision of a fire Insurance policy on a general stock of merchandise store, furni- ture and fixtures consisting of counters, shelving, etc.. that for any false representations or any omission to make known every fact material to the risk the policy shall be void, is not violated by the fact that some shelving affixed to the realty, and covered by a policy of insurance on a stock of goods and store furniture. w«s subject to a mortgage on the building, of which no mention had been made in the application, because both the insured and the Insurance company's agent supposed that the mortgage did not cover such property. Crittenden vs>. Springfield F. & M. Insurance Co. (Supreme Court of Iowa.), 5:1 N. W. Rep.. 548. 142 INDICATOR'S DIGEST. 5XISTAKE IN PROOF OF LOSS.— Where an insurance com- pany, under a policy insuring a party "for tlie account of whom it may concern," against loss of goods by fire, in such party's wareliouse, received proofs of loss, which by mistake failed to give the name of the true owner of the goods destroyed, and thereafter received and retained without objection, and without requiring additional proofs of loss, a letter informing it of the true owner, sucli additional proofs were waived. Morotock Ins. Co. vs. Cheek (Sup. Ct. App. Va.), 23 S. B. Rejjorter., 4(34. RESULT OF MISTAKE IN DATING POLICY.— In an action on an insurance policy, where the defense is a breach of a con- dition agaiuMt over insurance, policies dated on a Sunday, but which were in fact executed and delivered on a judicial day, mpst be computed in determining whether the holder exceeded the limit of insurance permitted by the policy. A policy reciting that it is to be in force one year, is not rendered void because by mistake it is stated to expire on tha date' of its issue; and hence such policy must be considered in determining whether there is any over insurance on the premises. The insurance agent from whom the holder obtained his policy, misled by the recitals therein, and believing it to have expired, informed him when they delivered the policy, that his total insurance was under the limit by .$2, .500, the face of the policy erroneously supposed to have expired, and in reliance on such statement, the Insured procured an additional policy of $2,500. Such- additional policy, applied for and obtained through such a mistake, did not vitiate the older insurance, but that is not itself collectible. 'Boulden vi?. Pheiiix Ins. Co. (Supreme Court of Alabama), 11 ; So. Rep., 774. MORTGAGE. RECORD OF MORTGAGE IS NOT NOTICE TO INSURER. —The fact that a mortgage executed on insured property is recorded does not constitute notice of same to the company. To bind it there must have been actual notice, or notice of such facts as would put it on inquiry. U. S. Ins. Co. vs. Moriarty (Ct. Civ. App. Tex.), 36 S. W Rep., 943. MORTGAGES IN TEXAS— That the property covered by a fire policy is mortgaged does not avoid the policy, under a condi- tion avoiding- the same, unless insured is the sole, absolute and unconditional owner, as the courts of Texas have held tHaT in- cumbrances are not wiibin the contemplation of such clau. Burlington Ins. Co. vs. Coffman (Ct. Civ. App. Tex.) 35 S. ^^ . ' Rep. 406. MORTGAGE. 143 UNDELIVERED MORTGAGE NOT A CHANGE OF OWN- ERSHIP.— The executiou and delivery iu escrow of a mortgage on insured propertj- is not a breach of a condition iu the policy .against incnmbrances. where the event in which the mortgage was to become operative never happened. Adler vs. Germania Fire Ins. Co. (Citv Ct.), 37 N. Y. S. Rep., ■207. ' CONSTRUCTION OF MORTGAGE CLAUSE IN POLICY.- A mortgage clause provision in a policy payable to a mortgagee as interest may appear— that policy, as to the interest of the mortgagee, shall not be invalidated by any act or neglect of the mortgagor — does not prevent the policy from being invalidated as to the mortgagee on account of misrepresentation" by the mort- gagor in the application for the Insurance; he having in such matter acted as the agent of the mortgagee. Amer. Cent Ins. Co. vs. Cowan (Ct. Civ. App. Tex.1. 34 S. "W. Rep.. 460. CONSTRICTION OF MORTGAGE CLAUSE OF FIRE POLICY. — The provision in a mortgage clause of a fire policy. that the insurer 'shall not be liable under this policy for a greater portion of any loss than the sum hereby insured bears to the whole amount of insurance on said property, issued to or held by any party or parties having an insurable interest therein," re- quires the mortgagee to prorate with all policies on the property, and is not limited to policies covering his interest, notwithstand- in.g a prior general provision in the mortgage clattse that "his insurance, as to the interest of the mortgagee, shall not be in- validated by any act or neglect of the mortgagor or owner." Hartford Fire Ins. Co. vs. Williams (Circuit Court of Ap- peals, Eighth Circuitl. 63 Fed. Rep.. 92."i. MORTGAGE OF PROPERTY WITHOUT CONSENT OV INSL'RER. — WTiere a policy of insurance stipulates that if any part of the property shall be incumbered by mortgage without consent of the company, the policy shall be void, such stipula- tion not being within the provisions of Sec. 3643 of the Revised Statutes of Minnesota, if after the issuing of the policy, and "before loss, such incumbrance is created by the insured with- out the consent of the company, the policy is thereby invalidated. Webster vs. Dwelling House Ins. Co. (Sup. Ct Minn.), 60 N. W. Reporter, 548. FAILURE TO DISCLOSE MORTGAGE.— A fire policy is not vitiated by the presence of a mortgage on the property and failure of the insured to voluntarily disclose that fact, the policy having been issued without any inquiries or representations hav- ing been made, though the policy provides that it shall be void "if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated therein." The interest of Insured is "unconditional and sole ownership" within the condi- tion of the policy, though he has mortgaged the property. Morotock Ins. Co. vs. Rodefer fSup. Ct. App. Va.), 24 S. R. Reporter, 393. 144 INDICATOR'S DIGEST. AMOUNT OF RECOVERY ON FIRE POLICY— In an action on a fire policy on real estate, it appeared that it was payable to a mortgagee as his interest appeared; that the owner of the property contracted to sell and convey it to another person, who took possession and commenced repairs, and procured other In- surance in another company, without the consent of the com- pany insuring to the mortgagee. The court held that the amount of recovery by the party bringing suit, who was the assignee of the mortgagee's as well as the contractural purchaser's interest in such policy could not be reduced on account of the additional insurance procured by the proposed purchaser. DeWitt vs. Agr. Ins. Co. (Sup. Ct., 2d Dept), 36 N. Y. S. Rep., 571. POLICY INVALID AS TO MORTGAGED PROPERTY.— Where a policy of fire insurance covers many articles of furni- ture, one of which is mortgaged contrary to the provisions of the policy, the insurance is invalid to that article alone. German Ins. Co. vs. Luckett fCt. Civ. App., Tex.), 34 S. W. Reporter, 173. PAYMENT TO OWNER UNDER MORTGAGE CLAUSE.— Where an insurance policy procured by the owner of the fee pro vides for the payment of the loss to the mortgagee as his interest may appear, an accord and satisfaction entered into between the insurer and the owner is not a bar to a recovery by the mortgagee from the Insurer of his damages as his right thereto appeared on the face of the policy, in which he had a vested interest, and which constitutes a contract between himself, the owner, and the insurer. Hathaway vs. Oi-ient Ins. Co. (Court of Appeals of New York), 32 N. B. Rep., 40. RIGHT OF INSURER TO KNOW CONDITION OF PROP- ERTY INSURED.— A lien upon property in favor of a stranger, though created by operaltion of law, may affect the interest of the insured, as much so as one created by the contract of the parties. The reasons which influence the insurer to inquire and lascertain the existence of liens of the one character apply with equal force to liens of the other kind. A lien ei-eated by opera- tion of law would be equally potent as one created by contract to incite or induce the insured to destroy his property or to be less careful in its preservation. The insurer has the right to know the exact condition of the property to be insured, and the extent of the interest of the insured. The question is plain and broad, "Is there any lien upon the property?" Tlie question is not whether there is a contract lien, but any lien or incum- brance. The principle is recognized that when parties contract with each other they are presumed to do so with reference to facts and laws known to Ix>th, whether there is any specific ref- erence to such facts and statutes or not. Thus, where a party insures property in those states where by statute a lien is given upon all property for the payment of taxes, it will be pi-esumed that both .parties knew of such liens, but not «i) as to a lien of a .judgment or vendor's lien. This would be a fact within the knowledge of the applicant fior insurance, and not pre.=iumed to be within the knowledge of the insurer. In such cases it would MORTGAGE. 145 be the duty of the applicant for iusurauc-e. upon proper in- quiries, to disclose the condition of the property, and the extent of his absolute and unqualified interest in the property. Capital City Ins. Co. vs. Autrey (Supreme Court of Ala- bama). IT So. Rep., 327. ATTEMPTED REVIVAL. OF MORTGAGE.— Where under the mortgage loss clause of an Insurance policy, the company pays the amount of the policy to the mortgagee, it is a discharge of the mortgage, and a loan of money to rebuild the premises by the owner of the equity of redemption cannot be secured by assigning It, to the prejudice of an existing junior mortgage. PeifCer ts. Bates (Court of Errors and Appeals of New Jer- eeyl. 19 At. Rep.. 612. AMOUNT OF RECOVERY.— A policy of fire insurance cov- ered several properties, and a mortgage given by its holder covered only some of the properties. The Supreme Court of Appeals of West Virginia holds that an assignment to the mortgagee, as such, of all the right, title and interest of the policy-holder under it, will entitle him to recover aU the money loss for aU the property, and under the lavrs of that state the party suing is not limited in recovery by the amount of loss stated in the proofs of loss, in the absence of fraud. Bentley vs. Standard Fii-e Ins. Co., 23 S. E. Reporter, 586. EFFECT OF PROVISION IX POLICY AGAINST MORT- GAGING INSI-RED PROPERTY.— Where an insurance policy places specific amountsi of instirance on separate kinds of prop- erty, and inserts a prohibition against mortgage as to one liind alone, a violation of that prohibition will not affect the validity of the policy as to the other liinds of property. And where an insurance policy provided that the policy should be void if the property insured be or became mortgaged 'without the written consent of the company indorsed on the policy; but It appeared that the company issued the policy on mortgaged property without inquu'ing whether such property was incumbered, which policy was accepted, and the premium thereon paid, in ignorance of the provision making It void, the company, by its action, con- sented to take the risk under mortgage as ofCectually as if such consent had been indorsed on the policy. Wright vs. Fire Ins. Assn. of Londor, (Supreme Court of Montana), 31 Pac. Rep., 87. PAYMENT OF INSTRANCE ON MORT(tAGED PROPER- TY. — 'UTiere a dwelling house and lot were mortgaged by the owners to secure a note, and tlie house was insured against fire, it was agreed that the loss, if any, was payable to the mortgagee or his assigns. The note and mortgage were assigned to the company which had insured the house. The mortgagors sold the property and the purehaser assumed the payment of the mortgage debt. The insurance company brought an action to recover upon the note, and to foreclose the mortgage assigned to it. The pur- chaser answered that tlie house had been destroyed by fire, and the loss had accrued to him. and should be credited upon the mortgage debt. It was ruled that the burden of proof was tipon the purchaser, and he offered In eviden-ce the insurance policy, and also a paper purporting to be a receipt of payment by the 146 INDICATOR'S DIGEST. insurance company to the original mortgagee. Tlie execution, identity, or genuineness of the paper was not shown, and there- fore the testimony was insufficient to show that a loss had oc- curred, or that the purchaser was entitled to a credit upon the. mortgage debt for any loss. Phoenix Ins. 'Oo. of Hartford vs. Dolan (Supreme Court of Kansas), 32 Pac. Rep., 390. CONDITION OF POLICY WITH REGARD TO NOTICE OF FORECLOSURE.— In an action on an insurance policy containing a clause making the policy void, if, with the knowledge of the in- sured, foreclosure proceedings be commenced, or notice given of sale of any property covered by the policy, by virtue of any mortgage or deed of trust, the proceeding for sale under the power contained in a mortgage of the property showed such a notice of sale under a mortgage or deed of trust as was meant by this clause of forfeiture. Merchants' Ins. Co. of Newark vs. Brown (Court of Appeals of Maryland), 25 At. Rep., 992. CONSTRUCTION OF MORTGAGE CLAUSE.— A mortgage clause provision in a policy payable as interest may appear, that it shall not be invalidated, as against the mortgagee, by any act or neglect of the mortgagor, by whom it was taken out, does not prevent the forfeiture of the policy,, under provisions that the policy "shall be void" in case the property is encumbered, and that it "shall not become valid" if the mortgagor be guilty of any concealment, for concealment by the mortgagor of the exist- ence of other liens. Hanover Fire Ins. Co. vs. Nat. Ex. Bank (Ct. Civ. App., Tex.), 34 S. W. Reporter, 333. FORECLOSURE OF MORTGAGE WITHOUT CONSENT OF INSURANCE COMPANY.— A fire insurance policy, payable to a mortgagee, provided that it should be void if the mortgage should be foreclosed without the company's consent. The mort- gagee incurred a forfeiture by proceeding to foreclose, shortly after which he iwrote to the company, saying that the suit was begun in ignorance of the condition, and asking consent, to which letter the company made no reply. A decree of foreclosure was obtained, and a few days after the premises were destroyed by fire. The assured declined to make proofs of loss, and those fur nished by the mortgagee were rejected, because not executed by the assured, as required by the policy. Neither the failure to reply to the letter of the mortgagee nor the implied demand for more authentic proofs constituted a waiver of the forfeiture. Armsti-ong vs. Agricultural Ins. Co. of Watertown (Court of Appeals, New York), 29 N. E. Rep., 991. WHEN CONDITION IN INSURANCE POLICY IS VIOLAT- E©.— A mortgage of insured premises by a deed absolute in form is within a condition of the policy that it shall become void upon an alienation of the property insured, and will avoid the policy; otherwise, however, if a separate defeasance be executed at the same time, and is seasonably recorded. And a mortgage which creates but a lien or security, and which does not transifer the title, is held not to be within a condition against alienation. But after a complete transfer of title by foreclosure, it is then regarded as an MORTGAGE. 147 alienation \yitiiin the condition. So of a conveyance and mortgage back to secure tlie piu-chase money. A conciition against alienation "in whole or in part," or against an "alteration of ownership," is held to be violated by a mortgage of the insured premises. A policy, loss payable to a mortgagee, proyidlng that it should be void if foreclosure proceedings should be commenced against the in- sured property, is rendered void even 'where such proceedings are instituted by the mortgagee. THE COURT O'F CI^'IL, APPEAifi OF TEXAS decides that an insurance company, which has delivered a policy erf insurance with full knowledge that the insured property is mortgaged, is estopped to set up the mortgage in avoidance of the policy. The clerk of the general agent of an insurance company, who has the power to solicit insurance and issue policies, except that the sign- ing of tie iKilicies is done by the general agent, is so far the agent of the company that notice to him in regard to the title to property instired through him is notice to the company. Phoenix Ins. Co. vs. Ward, 26 S. AY. Eep. 763. THE SO-CALLED "NEW YORK STANDARD MORTGA- GEE CLAUSE" in a policy of fire insurance, which declares, in substance, that no act or neglect of the mortgagor shall defeat the insurance as to th« interest of the mortgagee, does not dis- pense with making the proof of loss stipulated for in the policy, and within the time stipulated. If the mortgagee ■ would not have the right in all cases to furnish the proof, he certainly would have it in a case in which the mortgagor refused; but in every case, unless waived by the underwriter, It must be fur- nished by one or the other. Southern Home Building & Loan Ass'n vs. Home Ins. Co. of New Orleans (Supreme Court of Georgia), 21 S. E. Eep., 375, MORTGAGE OF INSURED PREMISES,— Where a policy 0* insurance contains a provision that It shall be void if any change takes place in the interest of insured in the property, whether by sale, transfer or conveyance, the execution of a mortgage on the premises Insured violates the policy. Where it is shown that the assured had signed a mortgage on the insured property and had left it with the mortgagee to be signed by his wife in waiver of her dower, it is a question for a jm-y to determine whether or not it was fully executed as far as the husband was concerned, or whether Tt was not to bo considered executed until the wife has signed it, as that is a question of fact and not of law. East Texas Fire Ins. Co, vs. Clarke (Supreme Court of Texas), 15 S. W. Rep., 166, EFFECT OF UNION MORTGAGE CLAUSE IN POLICY.— The effect of the "union mortgage clause," providing, among other things, that the insurance, as to the interest of the mortgagee, shall not be invalidated by any act or neglect of the mortgagor, nor by any change in title or possession, provided the mortgagee shall notify the company of any change coming to the mort- gagee's knowledge, and that when the company shall pay the mortgagee for a loss, and claim that no liability existed as to the mortgagor, it shall be subrogated to all rights of the mortgagee under securities held, when such clause is attached to a policy of insurance running to the mortgagor, is to make a new ami 148 INDICATOR'S DIGEST. separate eouti-act between the mortgagee and the insurance com- pany, and to effect a separate insurance of the interest of the mortgagee, dependent for its validity solely upon the course of action of the insurance company and the mortgagee, and unaf- fected by any act or neglect of the mortgagor, of which the mox't- gagee is ignorant, whether such act or neglect was done or per- mitted prior or subsequent to the issue of ♦be mortgage clause. Syndicate Ins. Co. vs. Bohn (Circuit Court of Appeals), 0.") Fed. Rep.,' 165. WAIVER OF CdNDITION AS TO MORTGAGED PROP- ERTY.— A policy of insurance, issued without a written applica- tion, oootained a clause that the policy should be void if the sub- ject of the insurance was mortgaged personal property. The agent who examined the property made no inquiry whether it Avaw mortgaged. The in'Sirred, who acted in good faith, paid the premium, on learning from the agent that the policy had been left at a bank which held a mortgage on the properity. The agent did not know of tlie mortgage, nor the insured of the clause avoiding the poliioy. The mortgage wa.s registered, and under the statute, all persons were charged with notice thereof. I't wias held that the com'pany waived the defense of forfeiture on the ground that the property was mortgaged when the policy was issued. Aetna Ins. Co. vs. Holcomb (Court of Civil Appeals of Texas), 31 S. W. Rep., 1086. INSURANCE OP DIFFERENT PROPERTY IN ONE POLICY. — Where an insurance policy covers a dwelling and different classes of personal property, desci-ibing them separately, and specifies distinct and separate amounts on the dwelling and each kind of personalty, the execution of a mortgage on the real estate, in violation of a condition against subsequent incum- brances on any of the property insured, is no defense to an action for the loss of the personalty, ^^'hen a policy is taken out on different classes of personal property for sieparate and distinct amounts, the violation of a condition of the policy against incumibrances, by the execution of a chattel mortgage on one class of property, will not preclude a recovery upon the policy for the destruction of the property of another kind not incum- bered. German Ins. Co. vs. Pairbank (Supreme Court of Nebraska), 49 N. W. Rep., 711. THE SUPREME COURT OP NEBRASKA HOLDS THAT, where there were proofs which tended to show the existence of a mortgage on property when it was insured, and that there was such knowledge of the existence of such mortgage as tended to show a waiver of that condition of the policy which rendered its provisions void if there existed a mortgage when such policy is- sued, it was erroneous for the District Court, after summarizing what facts might be deemed a waiver of such existing mortgage, to state that if these facts were established the provision of the policy as to incumbrance was eliminated, when there had been proof of a mortgage having been made after the policy had been issued, in respect to which mortgage the condition of the policy as to the forfeiture was, by its terms, just as applicable as to an ■existing mortgage. Agricultural Ins. Co. of Watertown vs. Jlorrow, (>2 N. W. Rep., 212. MORTGAGEE AND MORTGAGOR. 149 WHEN COKDITION AGAINST MOKTGA(iE INCUM- BRANCES IS NOT WAITED.— The record of a chattel mortgage floes not charge an insurer with notice, so as to render a failure to cancel a policy on the property a waiver of a condition against mort.irage incumbrances. The right to forfeit a policy under a condition that the policy shall be void If the property become "incumbered by a chattel mortgage" after the issue of the policy is not waived by a failure of the insm-er to require an answer to a question in the application regarding pre-exLsting incumbrances. Milwaiikee Mechanics' Ins. Co. ve. Niewedde (Appellate Court of Indiana), 39 N. E. Rep., 757. MORTGAGEE AND MORTGAGOR. RIGHTS OF MORTGAGEE.— A mortgagee, the beneficiary of a tire insurance policy, procured by the mortgagor at the latter's expense, cannot recover on the policy if the mortgage debt has been paid. Phoenix Assur. Co. vs. Allison (Court of Civil Appeals of Texas), 27 S. W. Rep., 894. EFFECT OF MORTGAGEE'S CLAUSE.— Though to a policy issued to and paid for by the insured there is attached a memor- andum reciting that the loss, if any, is payable to the mortgagee, as liis interest may appear, there is such an insurance of the insured's interest as to cause a breach of a condition in another pollc.v issued to him against additional insm-ance. Guinn vs. Fhenix Ins. Co. of Brooklyn (Court of Civil Ap- peals of Texas), 31 S. W. Rep.. r,m. SUBROGATION TO RIGHTS OF MORTGAGEE— APPOR- TIONMENT OF LOSS.— A mortgage clause in an insurance policy provided that whenever the insurer should pay the mort- gagee any sum for loss, and should claim that as to the mort- gagor no liability therefor existed, the insurer should, to the ex- tent of siuch paj-ment, be subrogated to all the rights of the mortgagee under all securities held as collateral to the mort- gage debt, but that no subrogation should impair the rights of the mortgagee to recover the full amount of his claim. "Where fore- closure proceedings were commenced before the loss, the mort- gagee was entitled to proceed therewith, and apply the proceeds of the sale on the mortgage debt: and, there remaining dtie on- the debt a deficiency of more than the amount of the insiirance, the insurer is not entitled to subrogation. Several insm-ance policies. Avhich were made payable to the mortgagee of the in- sured property as his interest might appear, placed the limit of insurance on the propert.v at $10,000; and each provided that the insurer should not be liable for a greater proportion of any loss than the amount insiured should bear to the whole insurance thereon, whether valid or not, but that the insurance as to the interest of the mortgagee, "shall not be invalidated by any act or neglect of the mortgagor or owner." A^'here the owner after- wai'da obtained additional insurance in violation of the limit thus fixed, in which the mortgagee had no interest, in determining the proportion which each company should pay the mortgagee, the amount of such additional insurance should not be considered. Eddv vs. London Assurance Corporation (Supreme Court of New York), 20 N. Y. Rep., 210. 150 INDICATOR'S DIGEST. INSUBiANCE POLICY PAYABLE TO MORTGAGEE.— A fire insurance policy, by ttie terms of which the loss, if any, is made payable to a mortgagee, as his interest may appear, is a contract for the benefit of such mortgagee; and he, or a person to whom he has assigned the claim after a cause of action has accrued, is en- titled to recover in his own name the full amount of the insurance, if the same does not exceed the amount due upon the mortgage. Maxcy vs. New Hampshire Fire Insurance Company (Supreme Court of Minn.), 55 N. W. Rep., 1130. RIGHT OF RECOVERY BY MORTGAGEE.— Under the pro- vision in the mortgage clause of a fire policy that the insurance as to the interest of 'the mortgagee shall not be invalidated by any act or neglect of the mortgagor or owner, voluntary destruc- tion by the owner will not prevent recovery by the mortgagee. Hartford Fire Ins. Co. vs. Williams (Circuit Court of Appeals, Eighth Circuit), 63 Fed. Rep., 926. POLICY PAYABfljE TO THE MORTGAGEE.— Where a fire policy provides that the loss shall be payable to the mortgagee unconditionally, and it appears that the mortgage is for only one-half of the amount of the policy, the mortgagee is the proper party to sue on the policy, but the imsured should be joined to protect his interests. Burlington Ins. Co. vs. Lowery (Supreme Ct. Ark.), 32 S. W. Reporter, 383. CONDITIONS OF POLICY AS TO MORTGAGEE OP IN- SURED PREMISES.— Where a policy in favor of the mortgagee of the Insured premises provides that it should not become void for change of title to the premises if the mortgagee should notify the instirer of any change coming to her knowledge, a notice of sale of the premises given to the mortgagee's attorney, Avho had fuU charge of her insurance matters, was notice to the mortgagee, and «he was therefore chargeable with failure to notify the in- surer. Galantshik vs. Globe Ifire Ins. Co. (Common Pleas of New York City and County, General Term), 31 N. Y. Supp. Rep., 32. RIGHT TO MAINTAIN ACTION ON FIRE INSURANCE POLICY BY MORTG'AGEE.— Where a fire insurance policy on premises whicli are mortgaged for a sum less than the amount insured, recites that the company agrees to make good to the assured, all loss or damage caused by fire, not exceeding the sum name3, and that the loss, if any, ie payable to the mortgagee, such mortgagee, in case of loss, cannot alone maintain an action on the policy. Pending an action on such policy by the mortgagee and the assured, the latter died, and his administrator was not appointed until two years afterward. No application to revive the action was made by the administrator until a year after his appointment, and after trial and judgment against such mort- gagee. It was not an abuse of discretion to deny such application. Under the statutes which provi'de that in cQse of the death of a party, the court, on motion, at any time, within one year there- after, or afterwards on supplemental complaint, miay allow the action to be revived by his representative. Cafberry vs. German Ins. Co. (Supreme Court of Wis.), 56 N. W. Rep., 920. MORTGAGEE AND MORTGAGOR. 151 ACTION OX POLICY BY MOETGAQEE.— A policy of fire insurance insures one in a given sum, part of it on one property, part on another, loss payable to the mortgagee, as his interest may appear. The mortgage covers only one of the properties insured. The mortgagee may sue on the policy in his own name and recover the total loss on both properties, not exceeding his debt, notwith- standing the mortgage covers only one of the properties insured. Colliv vs. Parkersburg Ins. Co. (.Supreme Com't of TV. Ya.). 17 S. E. Rep., 303. THE COURT OF APPEALS OF NEW YORK HOLDS, that an insurance policy payable to the mortgagee, as his interest might appear, provided that the policy should not be invalidated, as to him by any act of the owner. Additional insurance pro- cured by the owner, in which the mortgagee has no interest, did not affect the mortgagee's right to recover the full amount of the policy, also provided that the insurer should not be liable for a greater proportion of any loss than the amount thereby insured should bear to the whole amount of the insurance on the prop- erty. Nor does such insurance by the mortgagor affect the policy as to the mortgagee, though the policy provided that the insurer was only to be liable in the proportion in which the sum it in- sured should bear to the whole amount of insurance on the prop- erty held by any partiee having an interest therein. Eddy vs. London Assnr. Corp., 38 N. E. Rep., 307. RIGHTS OF MORTGAGEE TO SUE UNDER POLICY.— The iwlicy was sued on by a bank, mortgagee of the premises. It had been issued to the owner, and contained provisions where- under a transfer of the property or an assignment of the policy, without consent of the insurer, avoided the policy. Before the loss the premises had been conveyed to a third pai'ty, to whom the policy was also assigned. The company defended on the ground of this conveyance and assignment without consent of the insurer. Attached to the policy was the following: "Loss, if any, under this policy, payable to the Bank of Commerce or its assigns, as its mortgage interest may then appear." In the body of the policy was the following: "If, with the consent of the company, an interest under this policy shall exist in favor of a mortgagee, or of any person or corporation having an int3rest in the subject of the insurance other than the interest of the insured as described herein, the conditions hereinbefore described shall apply in the manner expressed in such conditions and provisions relating to such interest as shall be written upon, attached or appended hereto." The Supreme Court of Nebraska held that (a) these two clauses should be construed together; (b) that the clause in the body of the policy rendered conditions expressed in the policy applicable to the interest of a mortgagee having rights thereunder only where there was written upon, attached, or ap- pended to the policy some provision or condition rendering such conditions of the policy applicable, and defining the manner of their applicability; (c) that, the clause attached to the policy containing no condition or provision, the mortgagee was entitled to recovery, notwithstanding conditions in the policy which might defeat a recovery by the owner. Oakland Home Fire Ins. Co. vs. Bank of Commerce, 66 N. W. Hep., 6i6. 152 INDICATOR'S DIGEST. CONSTRUCTION OF CONDITIONS OF INSUrInCE FOR BENEFIT OF MORTGAGEE.— Where one boiTowod of a trust company Jf4,000, agreeing to repay it in five years, with semi- annual interest. To secure the payment of this debt he executed to the trust company a mortgage upon his real estate. This mort- gage provided that he should insure the mortgaged property agalMst loss by fire for five years for the benefit of the trust com- pany. About the date of the mortgage an insurance company issued to him a policy insuring the property against loss by fire for five years. This policy contained the follovdng provisions: (a.) "If the property be sold or transferred in vi^hole or in part without written permission In this policy, then, and in every case, this policy is void." (b.) "When the property shall be sold or Incumbered, or otherwise disposed of, written notice shall be given the company of such sale or incumbrance or disposal; other- wise this insurance on said property shall immediately terminate." Attached to this policy, and made part thereof, was a "mortgage slip" as foUowe: "It is hereby agreed that this insurance, as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property Insured, nor by the occupation of the premises for ijurposes more hazardous than are permitted by this ipoliey. It is fur- ther agreed that the mortgagee shall notify said company of any change of ownership or increase of hazard which shall come to the knowledge of said mortgagee, and that every Increaise of hazard not permitted by this policy to the mortgagor, or owner, shall be paid for by the mortgagee on reasonable demand, accord- ing to the established scale of rates, for the whole term of use of such Increased hazard. It is also agreed that whenever the com- pany shall pay the mortgagee any sum for loss under this policy and shall claim that as to the mortgagor or owner, no liability therefor existed, it shall at once be legally subrogated to all the rights of the mortgagee under all the securities held as collateral to the mortgage debt, to the extent of such payment, or, at its option, may pay to the mortgagee the whole principal due or to grow due on the mortgage, with interest, and shall thereupon receive a full assignment and transfer of the mortgage and all other securities held as collateral to the mortgage debt; but no such subrogation shall impair the right of the mortgagee to re-, cover the full amount of its claim." The policy, on Its issuance, was delivered to the trust company, which retained the possession and title thereof. The owner sold and conveyed the mortgaged property without the written permission of the insurance com- pany, and of which sale the latter had no notice of any kind until after the Insured property was destroyed by fire. The trust com- pany learned of the conveyance of the property soon after it occurred, but neglected to notify the insurance company until after the fire. Prior to the destruction of the insured property by fire the trust company sold and assigned the mortgage debt, guaranteeing the collection and payment, but did not assign the insurance policy or part with its possession. The mortgage debt wajs unpaid and not due at the time of the destruction of the insured property. The trust company brought suit against the Insurance company to recover the amount of the loss. While this action was pending the mortgage debt matured, and the trust company, in pursuance of its contract of guaranty, paid it off. It was held: (1) That neither the sale and conveyance of the mortgaged property without the permission of the insurance MORTGAGEE AXD MORTGAGOR. 153 comimny, nor his failure to give the insurance company notice, voided the policy as to the trust company. (2) That the statn& of the trust company was not that of a mere assignee of the insurance policy issued to the owner, nor that of a person ap- pointed to collect the loss for him; that the policy contained a contract between the insurance company and the trust company separate and independent from the contract between him and the insurance company; and that the rights of the company could not be made to depend upon his observance of his agree- ments with the insurance company. (3) That the neglect of the trttst company to notify the insurance company of the sale of the mortgaged property did not void the policy as to the trust company. That as by the terms of the insm-ance policy the loss was made payable to the trust company, and as it owned and held possession of the policy and had guaranteed the payment of the mortgaged debt, the suit was properly brought in its name, al- though the assignee of the mortgage debt was also a proper party plaintiff. Phenix Ins. Co. of Brooklyn vs. Omaha Loan & Trust Co. (Supreme Court of Nebraska). 60 X. W. Rep., 133. INSTJRAAXE FOR MORTGAGEE.— Where a mortgage upon real estate provides that the mortgagor shall keep the buildings on the land insujed for the benefit of the mortgagee, insm-ance taken out in the name of the mortgagor will go to the mortgagee in the event of loss, although the policy was never assigned, and where the company has notice of this clause in the mortgage, an adjustment with tlie mortgagor will not prevent a recovery by the mortgagee. Hathaway vs. Orient Ins. Co. (Supreme Court of New YorkV 11 N. Y. Supp., 413. AGREEMENT FOR PAYMENT OP INSURANCE TO MORTGAGEE.— Where insui-ance policies were payable to the mortgagees of the property, and, upon destruction of the property. a compromise was made between the mortgagor, the mortgagees and the instu-ance comnany, which provided for the payment to the mortgagees of TO per cent of the amount of the policies in the absence of proof that there was fraud in the compromise, or that the mortgagees were to receive more than the amount of their debts secured, the funds in the hands of the insurance com- pany for the payment pf such policies are not subject to garnish- ment by a creditor of the mortgagor. TViUiams vs. Hartford Ins. Co. (Supreme Court of Michigan), 60 N. W. Rep., 308. POLICY PAYABLE TO MORTGAGEE.— The Supreme C!ourt of Mississippi says that a mortgagee to whom a policy of fire insurance is expressly payable is not bound by an arbitration to which he was not a party, made between the insured and the company. Georgia Home Ins. Co. vs. Stein, 18 So. Reporter, 414. FAILURE OF MORTGAGOR TO PAY PREMIUM ON POLICY DELIVERED TO MORTGAGEE.— An insurance policy was issued with a provision that the loss, if any. should be paid to the mortgagee of the insin-ed property, and that it should not be 154 INDICATOR'S DIGEST. of any effect until the premium should be paid; and the policy- was sent to the assured, at his request, with directions to remit the ^premium. The assured sent the policy to the mortgagee, but never paid the premium, of which failure the mortgagee had no notice. The company was not estopped to set up such nonpay- ment in an action by the mortgagee on the policy. Union Building Assn. vs. Rocliford Ins. Co. (Supreme Court of Iowa), 49 N. W. Rep., 1032. MUNICIPAL CORPORATIONS. LIAlBILITY OF MUNICIPAL CORPORATIONS FOR SUP- PLY OF WATER. — A village is not liable to an insurance com- pany for the destruction of insured property by tire because of the insufficiency of the water supply to extinguish the fire. Springfield F. & Mar. Ins. Co. vs. Village of Keesville (Su- preme Court, Special Term, Clinton County), 26 N. Y. Sup., 1094. LIABILITY OF MUNICIPAL CORPORATION FOR DE- FECTIVE WATERWORKS.— A municipal corporation which maintains a system of waterworks s^ipported by general taxation and by water rents is liable for loss of property which is destroyed by flre because, owing to the defective condition of the water- worlds, a sufficient quantity of water could not be obtained to ex- tinguish the fire. Springfield Fire & Marine Ins. Co. vs. Village of Keeseville (Supreme Court, General Term, Third Department), 29 N. Y. S., 1130. MUTUAL COMPANIES. WITHDRAWAL FROM MUTUAL INSURANCE COM- PANY.— The By-laws of a mutual insurance company must be strictly followed In order to affect results provided for by them, and when they provide that in order to withdraw from member- ship a member must pay all assessments due from him, and sur- render his policy to the secretary, a member who pays up all assessments due from him, and tells the secretary of the com- pany to strike his name from the rolls, but does not turn over his policy, does not thereby terminate his membership, and he Is thereafter liable for assessments, and entitled to Insurance, un- less some further act intervenes and otherwise terminates his membership. Schroeder vs. Farmers' Mutual Fire Insurance Co. of Oge- maw, etc. (Supreme Court of Michigan), 49 N. W. Rep., 566. MUTUAL COMPANIES. 155 ASSETS OF MUTUAL FIRE COMPAXY.— Laws of Xew York of 1880. as amended in 1881, providing that every person insured in a mutual fire insurance company shall give his con- tract to pay his "pro rata share" of all losses, does not authorize an assessment against the solvent members of the company to pay the deficiency caused by the non-payment of assessments by insolvent members. Pratt vs. Dwelling House Fire Ins. Co. (Sup. Ct. N. Y.). 40 X. Y. Supp. Rep., 179. RIGHT OF APPEAL FROM DECISION OF SUPERIX- TEXDBXT OF IXSURANCE— MUTUAL GOMPAXIBS IX KAX- SAS.— Under the Kansas Statute, the determination of the super- intendent as to the right of a mutual fire insurance company to begin or continue business, is subject to judicial inquiry and con- trol. Mutual fire insurance companies which have no guaranty fund for protection of its policyholders, cannot issue policies on property outside of the State. Kansas Home Ins. Co. vs. Wilder (Supreme Court of Kansas), 23 Pac. Rep., 1061. MUTUAL FIRE ASSESSMEXTS MADE AFTER WITH- DRAWAL OF MEJIBBR.— Where the charter of a mutual fire in- surance company provides that any member may withdraw at any time by surrendering his policy and paying his proportion of all assessments to which the company is liable at the time of his with- drawal, a member cannot, by withdrawing and paying all assess- ments made against him to that time, avoid liability for his pro- portion of losses incurred in previous years, for which the company was liable at the time of his withdrawal, but which had not been assessed, such as losses in litigation at the time of such with- drawal. But such member is not liable to assessment for a de- ficiency in a previous year, arising from error, mistake or miscal- culation, in the amount assessed, and the amount realized from such assessment, and from previous receipts, where it does not ap- pear that such deficiency was not the result of a failure to collect. Ionia E. & B. Farmers' Mut. Fire Ins. Co. vs. Otto (Supreme Court of Mich.), 56 Fed. Rep., S'?. ABAXDUXMEXT OF MUTUAL POLICY.— On the issue as to whetlier a policy which provided for its termination by either party, .ind that on non-payment of assessments after 30 days' notice, insurer might collect the same with 23 per cent additional for cost of collection, but which did not provide for a forfeiture for such non-payment, had been abandoned by the insured, it appeared that he had on receipt of an assessment, which stated that non-payment would cause the policy to cease until the as- sessment and the 25 per cent additional for costs, failed to take any notice of it and soon after-nards took out a policy in another company, for the amount of the policy in suit, additional inst- ance being allowed by the first policy. Eight months afterwards his property was btu'ned. There was also evidence of statements by insured that he considered the policy worth nothing, on ac- count of the financial condition of the insurer. Insured denied that he had intended to abandon the policy. The Supreme Court of Pennsylvania held that finding by the trial court that insured had abandoned the policy would not be disturbed. Jones vs. .-Vlliance Mut. Fire Ins. Co., 34 Atlantic Reporter, 198. 156 INDICATOR'S DIGEST. OAiSH POLICIES IN MUTUAL COMPANIES.— Where a re- ceiver is appointed for a mutual fire insurance company, and all the policies are canceled by order of the court, the holders of the "all cash premium" policies have valid claims against the company for unearned return premiums. The premium notes can only be used for indemnity against losses by fire and the holders of the "cash" policies have a right to insist that the fund created by the premium notes be first exhausted in payment of fire losses, and that the cash fund on hand be not drawn on for that purpose, so as to make it insufficient to pay the claims of the holders of the "cash" policies, unless the premium notes prove inadequate to pay the fire losses. Clark vs. Manufacturers' Mutual Fire Ins. Co. (Supreme Court of Indiana), 30 N. E. Kep., 212. MBMOER'S RIGHT TO WITHDRAW.— The statute, relat- ing to millers' and mamifaCKirers' mutual insurance companies, provides that a memlber may withdraw by giving notice in writ- ing, and paying all dues and his ratable share of all losses up to the date of his withdrawal. It was held that the payment of an assessment levied by the directors, dn winding up the affairs of the company, which was insufficient to meet all claims, and the surrender of the premium note, did not relieve a member from further liability. Seamans vs. Millers' Mut. Ins. Co. (Sup. Ct. Wis.), 63 N. W. Rep., 1059. VOID ASSESSMENTS IN MUTUAL FIRE INSURANCE.- If a member of a mutual insurance company is assessed on his premium note for losses incurred at a time when he was not a member, or if other members liable to be assessed with him for losses are knowingly omitted from the assessment, it is voidable as to him. The essential iprinciple upon which such companies are based is that each member will pay his proportionate share of the losses incurred during the time of his membership, and that he shall not be required to pay any greater amount than his pro rata share, and any assessmeot that violates this princi- ple cannot be enforced. Swing vs. Ackley Lumber Co. (Sup. Ct. Minn.), 64 N. W. Rep., 97. DISSiOLUTION OP MUTUAL INSURANCE COMPANY.— The statute, which authorizes the dissolution of an insurance company where it becomes insolvent or unable to pay its debts, or has violated any law, is limited by the later provisions of Laws 1892, providing that, if it appears to the Superintendent of Insur- ance that the assets of a mutual company are insufficient, notice shall be given to its officers to make good the deficiency, and that, if it shall not he made good within a certain time after notice, it shall be subject to dissolution. In determining the solvency of a mutual insurance company, accoiint must be taken of its capital stock notes, which Laws 1892, provide shall be payable as the directors deem necessary for loss or incidental expenses, and shall remain security for loss and claims until the accumulation of profits shall equal the amount of the cash capital. People vs. Equitable Mut. Fire Ins. Co. (Common Pleas of New York City and County, Special Term), 33 N. Y. Sup. Rep., 708. MUTUAL CO^IPAXIES. 157 THE SUPREME COURT OF IOWA HOLDS, that only the policy-holders in a mutual benetit tire insurance company are members, and contributors to a guaranty fund to be used for payment of loss In case the funds for which the statutes provide &re insufficient cannot be made members and directors. Berry vs. Anchor Mut. Fire Ins. Co., ossession, enjoyment, or profit thereof, or a security or lien resting thereon, or other cer- tain benefits growing <^ut of or depending upon such property, he hag an insurable interest therein; (.3) It seems that where a policy is issued to one who holds the legal title to real estate where no inquiries are made as to whether any other person is interested in such property, and no representations are made by the insured, further than that he is the owner of the premises, it is not a defense to the insurance company, in an action on such policy, that the insm-ed, though holding the legal title to the premises, was a mere trustee for an undisclosed beneficiary. Rochester Loan & Banking Co. vs. Lilierty Ins. Co. 62 N W Rep.. ST". ' ■. - ■ OWNERSHIP. 167 UNDISCLOSED INTEREST NOT SECURED BY POLICX- \S'here the owner of a half interest in property obtains insur- ance in his own name, the company supposing him to be the sole owner, such insurance does not cover the interest of his co- owner. Hebner vs. Sun Ins. Co. (Supreme Ct. Illinois), 41 N. E. Rep., 6-2-. CONDITIONS IN POLICY AS TO OWNERSHIP OF PROP- ERTY. — Where the owner of property has it insured for more than the amount of mortgage then upon it, the mortgagee, to whom the policy is made payable, may to the extent of the debt bring an action for recovery of the loss thereon in his own name, and it is proper to join such mortgagee, if suit is brought by the owner. And the clause in a policy avoiding it, in case insured is not the sole owner, cannot be insisted on in case of one to whom it is assigned with the consent of the company knowing the facts. Georgia Home Ins. Co. vs. Leaverton (Ct. Civ. App., Tex.), 33 S. W. Reporter, 579. EFFECT OF CHANGE OF OWNERSHIP OF PROPERTY INSURED. — Where the property is insured for the benefit of the mortgagee, as its interest may appear, and the mortgage has been duly foreclosed prior to the time of such insurance, and the pre- mium paid by the mortgagee, but the time for redemption not having expired until a period subsequent to the insurance, held, that the non-redemption from the mortgage sale by the owner of the premises did not work an alienation of the property, so as to defeat the policy, but that an action might be maintained in case of loss without notice to the insurance company of such non-redemption, and a notation thereof made on the policy, not- withstanding the policy provided that the mortgagee should no- tify the company of any change of ownership in the property in- sured, and that it be so noted on the policy. Washburn MiU Co. vs. Fire Association of Philadelphia (Su- preme Coiu-t of Minn.). 61 N. W. Rep., 82S. EFFECT OF CHiA>:GE OF OWNERSHIP ON CONDITIONS IN POLICY. — A policy of fire insurance issued to a mortgagor, which provides that it shall be forfeited if the assured, or any other person or parties interested, shall take out an additional insurance, will not be forfeited by a policy taken out by the mortgagee, without the mortgagor's consent, since the mortgagee is not interested in the former policy. The fact that, after the mortgagee has collected the amount due on his policy, the mort- gagor, in a soiit toTedeem, compelled him to account therefor as a trustee, does not entitle the company which insiu-ed the equity of redemption to have the loss apportioned between it and the com- pany issuing the other policy, under the statute providing for su<;li apportionment if there shall be other insurance on the prop- erty, since insurance obtained by a third person upon another distinct and insurable interest is not other insurance within the meaning of this statute. Niagara Fire Ins. Co. vs. Seammon (Supreme Court of 111.), 32 N. E. Rep., 914. i68 INDICATOR'S DIGEST. CHANGE IN OAVNERSHIP.— The provision in a policy, that it shall be void "if any change, other than by death of insured, take place in the interest, title, or possession of the subject ct insurance," has reference only to change subsequent ;o Ihe lime of insurance effected. Morotock Ins. Co. vs. Rodefer (Sup. Ct. App. Va.), 24 S. K. Reporter, 394. WHAT IS ADMISSIBLE UNDER GENERAL DENIAL.- Where a party has alleged the ownership of a policy, which for some reason is iu the possession of another, the policy is admis- sible, under a general denial, to prove by an indorsement upon it that the party bringing the suit had assigned it. German Ins. Co. vs. Gibbs (Ct. Civ. App. Tex.), 35 South- western Reporter, G79. OTHER INSURANCE. CONDITION IN POLIiCiY AGAINST OTHER, INSURANCE. —A policy declared in explicit terms that it should he void if the assured had at the tim^ any other insurance on the premises. To a count stating this stipulation the Insured replied that the in- surer knew, when it issued its policy, of the existence of an ante- cedent insurance. This representation was bad, as it was an at- tempt to alter a written contract by parol. Bennet vs. St. Paul Fire & Marine Ins. Co. (^Supreme Court of N. J.), 27 At. Rep., 641. CONDITIONS IN INSURANCE POLICY.— Where a policy provided that it should be void if the insured procured other insurance on the property, but it was orally agreed between the insurer and the insured that permission should be given the in- sured to procure $11,0(X) other concurrent insurance, and that this permission should be Inserted in the policy, but by clerical mis- take permission was so inserted for only $3,000 other insurance, and there was on the property, at the time this policy was deliv- ered, $11,000 other insurance, which the agent of the insurer then knew— by delivering the policy, knowing the existence of such other insurance, the Insurer waived this condition. The policy contained a printed condition avoiding it if the subject of the insurance is personal property, and be or become incumbered with a chattel mortgage. The subsequent written portion of the policy, insuring the property of the insured, "its own, or held by it in trust or on commission, or sold but not delivered," did not annul or supercede the condition against such chattel mortgage incumbrance, and the placing of such an incumbrance on the property after the making of the policy, and before the loss, avoided the policy. First Nat. Bank of Devil's Lake vs. American Cent. Ins. Co. of St. Louis (Supreme Court of Minnesota), 60 N. W. Rep., 345. OTHER IXSUR-WCE. 169 ESTOPPEL BY ACTION OF AGENT.— An insurance com- pany is estopped to claim that a policy is avoidea by breach of a condition therein that no other insurance shall be obtained on the property without the company's consent, if the agent who issued the policy is notified by the insured of his intention to take out further insurance, and fails to object thereto. Hartford Fire Ins. Co. vs. McLemore (Court of Civil Appeals of Texas). 26 S. W. Eep. 92S. ESTOPPEL FOR BREACH OF CONDITION.— Where an in- surance policy provides that it shall be void if additional insur- ance is procured without the consent of the directors at a regu- lar meeting, evidenced in writing, signed by the president or secretary, and the insured applies for consent to additional in- surance to the board, which had just adjourned, whereupon the president du-ected such consent to be indorsed on the ptlicy, the company is estopped to deny its consent. StaufEer vs. Penn. Mut. Fire Ins. Ass'n of Lancaster County (Supreme Court of Penn.), 30 At. Rep., 3S4. OTHER INSURANCE. — A clause in an insurance policy, pro- viding against additional insurance without written consent of the defendant, is not violated by a delivery by the insured of an application for further insurance, and a note to pay the premium for such additional insurance to an agent of another company, to be held by him until he should obtain the written consent of the company issuing the prior policy, although such insurance agent, in violation of the understanding, forwarded the applica- tion to his company and a policy was issued thereon. Price vs. Home Ins. Co., 54 Mo. App., p. 119. ADDITIONAL INSURANCE TAKEN CONTRARY TO PRO- VISION OF POLICY".— Where an insurance company had notice at the time its policy was Issued of the existence of additional in- surance on the property, it is estopped, in an action on the policy, from setting up a violation of a clause therein prohibiting prior ad- ditional Insurance without its assent. But where there was addi- tional insurance at the time a policy was issued, in violation of a condition of the x>olicy that it should be void in case the insured had other insurance without the company's assent, the policy is not made binding on the comi)any by the fact that there is no additional Insurance at the tixoe the property is burned. And in an action on an insurance policy, which provided that it should be void if the insured had additional insurance without the com- pany's assent, the person suing cannot, in reply to a plea of the insurance company that there was such additional insurance, set up, that the prior jKtlicy contained a like condition, rendering It void at the time policy was issued, since either both policies are void, or the second policy is void, and the first still valid because of. the invalidity of the second. Notice to the agent of an insurance company, at the time a policy is issued, of the existence of prior insurance, is not sufficient to constitute a waiver by the company of a condition in the policy prohibiting additional insurance with- out the company's assent, unless the agent is a general agent, with full power to make contracts of insurance, and not a mere agent to receive applications and forward them to the company. Reed vs. Equitable Fire and Marine Ins. Co. (Supreme Court of Rhode Island), 24 At. Rep., 833. 170 INDICATOR'S DIGEST. CONDITION IN rxSUBANCE POLICY WITH REG-AKD TO OTHER INSUR'ANUE.— The condition of an insurance policy that it shall be void if additional insurance is placed upon the property, unless written notice thereof be furnished to the secre- tary, Is not complied with by actual notice of such additional in- surance by a director of the company. Bard vs. Penn. Mutual Fire Ins. Co. (Penn.), 25 At. Hep., 1124. SBTTLBMBNT OF CONCURRENT INSURANCE.— Where a loss occurs on which there are seven concurrent policies, if the assured makes his claim for the full amount of the loss tipon six of the companies, and accepts payment of an adjustment reg- ularly made by them, though for less than the amount claimed, he cannot thereafter recover anything from the company omitted from the first demand and adjustment. If there is any liability upon the part of that company it is to the other companies, for its share of the loss paid by them Williamsburgh City Fire Ins. Co. vs. Guwin (Supreme Court of Georgia), 13 S. E. Rep., 837. CONDITION AGAINST SUBSEQUENT INSURANCE.— A fire policy conditioned to be void if other insurance is obtained, without written consent of the insurer, is not avoided by a sub- sequent policy obtained from another insurer, without such con- sent, which is absolutely void from the beginning. The validity of such second policy is a material issue in a suit on the first. Sweeting v. Mut. Fire Ins. Co. (Ct. App., Md.), 34 Atlantic Reporter, 826. ERROR IN PAYEE OF POLICY^ADDITIONAL INSUR- ANCE.— After the death of F., owning real estate which he wdth his wife had mortgaged, and after the mortgage had been as- signed to B., defendant insou-ed a building on the premises against fire in the name pf F., loss payable to B. as mortgagee. After the building was burnt, F.'s executors assigned to B. all their interest in the poUcy, and B. brought suit thereon. F.'s widow came into the action as plaintiff, on allegations that B. had assigned to her the bond and mortgage as collateral security for a loan of money by her, and that an agent of defendant and B. had purloined the policy and the bond and mortgage and assignment to her thereof. The allegations defendant denies,' and set up a release from B. The evidence of F.'s title to the prem- ises, his death, the probate of his will, which showed title to the widow, subject to the mortgage, and the granting of letters testamentary to her and another, was properly admitted in evi- dence where the policy was in the handwriting of defendant's general agent, who knew when it was issued that F. was dead. It is necessary to enable the mortgagee to recover that the jwlicy should be reformed, and under the pleadings of the widow suc- ceeded to the rights of the mortgagee. The policy contained a provision that it should become void if the assured should obtain any other insurance on the property, unless the consent in writ- ing of the insurance company was indorsed thereon. The sub- sequent obtaining by a devisee of the mortgagor who took sub- ject to the mortgage of insurance upon her interest in the prop- erty did not violate this condition. Burke vs. Niag?.ira Fire Ins. Co. (Supreme Court of the United States), 12 N. Y. Supp., 204 (30C M.). OTHER IXSURA.XCE. 171 CO.\DrTXO.\8 OF POLICY AS TO OTHER IXSURAXCE.- Insurance obtainecl by a tliii-d person upon a distinct and insurable interest does not constitute -othei- insurance" within the meaning of a clause in a policy providing for apportionment in case of other insurance. Traders' Ins. Co. vs. Pacaud (.Supreme Court of Illinois) 37 X. E. Rep. 460. CONDITIONS OF POLICY— OTHER INSURANCE.— Where a fire insurance policy provides that it shall be void if the assured contracts other insurance on the property without the consent in writing indorsed on the policy by the company, and the assured procures other insm'ance without such indorsement, the policy is void. O'Leary vs. Merchants & Bankers" Mut. Ins. Co. (Sup. Ct. la.), €6 N. TV. Reporter, 175. DISPUTE OVER ADDITIONAL INSURANCE.^In an action on a fire insui-ance policy, assured's testimony that the policy in suit was intended as additional insurance, and not as a substitute for another policy also in force when the loss occiuTed, and to take effect only on its expiration, as contended by the company, waa coiToborated by an admission by the company's agent, that he urge'd assiu'ed to take out additional insurance, and by the fact of the issuance of the policy in suit, bearing date several vreeks before the expiration of the old policy, instead of delivering the itsual renewal receipt. This is sufficient to saipport a verdict in favor of the assured, though the company's agent fiu-ther tes- titied that the assured declined to take out additional insurance. Evidence that, after the policy in suit was issued, assured applied to the agent of another company to write a new policy on the expiration of the old policy issued by this company, is competent to refute the testimony of this comipany's agent that assm-ed had applied to him to renew the old policy, and that the policy in suit had been issued pursuant to such application. Walker vs. American Central Ins. Co.. 21 N. Y. S.. 7.il. LEGAL EFFECT OF ILLEGAL SALE OF INSURED PROPERTY— ADDITIONAL INSURANCE.— The owner of an equity of redemption insured the property under a policy which provided that it should be void "in case of any sale or transfer or change of title in the property insured, or the entering or fore- closure of a mortgage." There was due notice of the mortgage, and upon an alleged default the mortgagee forclosed. under a power of sale, and bought it in. This sale was subsequently set aside, and the mortgagor was permitted to redeem. The sale and pretended foreclosure having been declared illegal and void, it could not affect the insurance. Where the policy provides that if "the insured or any other person or parties interested shall take out an additional insurance" the policy shall be forfeited, the procurement of additional insurance by the mortgagee with- out the knowledge of the mortgagor will not affect the validity of the policy, and he is not a person interested with the insured under the tajcmeT policy. Niagara Fire Ins. Co. vs. Seammon (Supreme Court of Illi- nois). 2^ N. E. Rep.. 019. 172 INDICATOR'S DIGEST. WHAT CONSTITUTES OOUNTTElROLAIM.— In an action on a second fire insurance policy, issued by an insurance company on the same property, tlie answer alleged that such policy was intended as a renewal of the first policy, which had been paid; and that the risk of a second insurance for $1,000, for which the action was brought, was never, in fact, taken or assumed by the company. Such answer did not constitute a counterclaim, which would be taken as true in the absence of a denial. To be such it must amount to an independent cause of action, which the com- pany, if it had not been sued, might have enforced as plaintiff: Walker vs. American Cent. Ins. Co., St. Louis (Court of Ap- peals of New York), 38 N. E. Rep., 106. WHAT CONSTITUTES ADDITIONAL INSURANCE.— The owner of real estate insured for the benefit of the mortgagee contracted to sell and convey it to another party, who took pos- session and commenced repairs, and procured further insurance in another company. Afterwards without the knowledge of such purchaser, the mortgagee applied to the company issuing the first policy, and it indorsed thereon, "N (the mortgagee) is now recognized as the owner of this policy, and the property men- tioned as insured thereunder," subject to the conditions of the policy. The court held that the insurance procured by the mort- gagee was not "additional insurance" within the condition of the first policy, providing that it should be void if the insured had or procured additional insurance, except by agreement indorsed on or added to the policy. DeWitt vs. Agr. Ins. Co. (Sup. Ct. 2nd Dept.), 36 N. Y. S. Rep., 570. CONDITION IN POLICY AS TO ADDITIONAL INSUR- ANCE.— 'Where a policy of insurance contained a condition that it should be void if the insured obtained other insurance on the property, after the issuing of the policy the premises were mort- gaged to secure a loan then made, and covenanted in the mort- gage to cause the property to be insured, and that the policy shotild be made payable to and delivered to the mortgagee, and the mortgagee was also thereby authorized to procure insurance at the owner's expense, in case of the default of the latter to do so, before the delivery of the mortgage the mortgagee procured such insurance (assumed to cover the interest of the owner), without the knowledge or authority of the owner, and after the delivery «f the mortgage the mortgagee by mall sent notice merely that he had procured notice at his (the owner's) expense, withholding the cost of it from the money loaned. The owner was not informed and did not inquire whether the insurance covered his interest, or only the interest of the mortgagee, which would not constitute a breach of the jwlicy in suit. The owner is not to be deemed to have procured the additional insurance and the circumstances did not justify the conclusion that by acquiescence or ratification he had assented to or adopted the insurance as one covering his in- terest as owner, having no knowledge that such was the nature of the insurance, and owing no duty to his insurance company to inquire as to the terms of the contract made between other parties. Church of St. George of Glencoe vs. Sun Fire Office of London (Supreme Court of Minnesota), 55 N. W. Rep., 909. OTHER IXSUR.\NCE. 173 CONDITIONS IX FIRE INSURANCE POLICY AiS TO DOrBIiE INSURANCE.— A condition that a fire insurance policy shall be void, if any of the insured property is then insured, is reasonable. Evidence that one moved into a house T\-ith a part of his furniture, which he insured, and that he subsequently moved, and insured the rest vv'ithout intending to reinsm-e any of the previously insured part, was insufficient to show that there was no double insurance on any of the furniture, where the policies covered identical furniture and he failed to inform the second insurer of the first policy, and what part of the furniture he in- tended the second should cover. Westchester Fire Ins. Co. vs. Storm (Com-t of Civil Appeals of Texas). 2.5 S. W. Rep., 31S. ~ PROVISIONS OF POLICY AGAINST OYER INSURANCE.— Under a policy providing against other insurance, except to a certain amount permitted, with a mortgage clause making any loss payable to the mortgagee, and providing that she should not suffer for any act or neglect of the mortgagor, his rights are not affected by the mortgagor obtaining more insurance than the amount permitted, even though the policies are in his possession, or though the insurance is taken out by him. which, with the insurance then existing, does not exceed the amount permitted, is not invalidated by subsequent insurance by the mortgagor in excess of that amount. Mutual Fire Insurance Company of New York vs. Alvord {Circuit Court of Appeals. First Circuit), 61 Fed. Rep., 753. ADDITIONAL INSURANCE NOT COMPLETED.- A policy of fire insurance provided that in the event of other insurance without the consent of defendant, the policy should be void. In an action thereon defendant's agent testified that he had written the second policy for plaintiff, in another company, on the same property; had tendered the policy, and demanded the premium, which they promised to pay, but that they had failed to do so, and the policy was not delivered. It did not appear that they had requested him to T\Tite such second policy. Defendant of- fered to show that it was customary to write policies and hold them until the premiums were paid; that the second policy was regularly issued, and that after the fire plaintiffs had demanded such second policy of insurance. Falb vs. Phoenix Ins. Co. (Supreme Court of North Carolina). 13 S. E. Rep., 798. EFFECT OF ISSUING TWO POLICIES ON THE SAME DAY ON THE SAME PROPERTY.— An insurance company issued two policies on the same day to the owner of certain premises, the first policy being for $1,250 and the second for $750; the second policy providing that the loas, if any, was to be paid to the mortga- gee of the premises. Held, that the issuing of the two policies at the same time constituted but one transaction, the result being as thougih a single policy had been issued for $2,000, by the terms of which the loss, to the extent of $750, should be payable to the mortgagee, and consequently the company could not maintain that it "was liable to the mortgagee for only that proportion which the amount of his policy bore to the whole amount insured, thus claiming contribution from itself. Crow v3. Greenwich Insurance Co. (Supreme Court of N. Y.), 20 N. Y. Sup., 752. 174 INDICATOR'S DIGEST. PROVISION IN POLICY MAY BE WAIVED BY AGENT.— A provision in an insurance ijolicy, requiring consent for addi- tional insurance to be indorsed on the policy, may be oralljr waived by an agent of the insurer. Liverpool & London & Globe Ins. Co. vs. Sheffy ( Supreme- Court of Mississippi), 16 So. Rep., 307. CONSTRUCTIVE WAIVER OF ADDITIONAL INSUR- ANCE.— Where a policy of insurance provides that additional in- surance procured without permission therefor, also provides no agent has power to waive any conditions of the contract, the pro- curing of additional insurance after the policy is issued, without permission therefor, the fact that it is procured through the agent of the company does not amount to a waiver, as the agent had no power to waive the provision which was broken. Hesa vs. Washington F. & M. Ins. Co. (Supreme Court of New York), 11 N. Y, Supp., 299. VIOLATION OF ADDITIONAL INSURANCE CLAUSE- AGENCY OP BROKER.— Where a fire insurance policy provides it shall be void if the insured procures other insurance upon the property covered thereby without the consent of the company, and there is endorsed on the policy a consent for the insured to procure other insurance to a specified amount, the policy is void if he secm-es other in.surance to a greater amount than that i^er- mitted. A broker who, in the course of his business, merely pro- cures an application from the insured and a policy froan the company, and acts as an intermediary between the parties, is not the agent of the company, and cannot bind it by his representa- tions and agreements. Allen vs. German-American Ins. Co. (Court of Appeals of New York), 25 N. E. Rep., 309. POLICIES MADE VOID BY TAKING OUT ADDITIONAL INSURANCE. — In an action on an insurance policy containing a condition avoiding it if the insured should obtain other Insurance without the consent of the company. The fact that the second policy taken out also contained a clause providing that the exist- ence of other insurance should render it void, and that the insured failed to notify the second insurer of the existence of the first policy, will not render the first insurer liable on the theory that the second policy was wholly void, and hence not a violation of the condition in the first, since by obtaining a second policy valid on its face.without giving notice to the first insurer, the insured has defeated the purpose of the condition. Neither is the first in- surer rendered liable on the policy by the fact that the charter of the second company prohibited it from insuring property already insured, and declared policies issued in violation thereof void, since the presumption is that the second policy, being valid on Its face, iwas procm-ed by the insured with the intention of avail- ing himself of the protection which it prima facie afforded him. But a forfeiture of an insurance policy by reason of a violation of its condition by the insured is waived by the company, where, after full knowledge of the facts, it requires him not only to make proofs of loss, but causes him to go to the expense of making addi- tional proof, and of furnishing plans and specifications of the building destroyed. Replogle vs. American Ins. Co. (Supreme Court of Indiana) 31 N. E. Rep., 9-17. OTHER IXSURAXCE. 175 A FIRE FOLICY. COXDITIOXED THAT IT SHALL BE VOID if the insured "now has, or shall hereafter make or pro- cm-e any other contract of insurance, whether valid or not," the Supreme Court of Jlichigan holds, is avoided hy obtaining sub- setjiient insurance on the property, although such insurance is void by reason of a similar condition therein. Donogh vs. Farmers' Fire Ins. Co., 02 X. W. Rep., 121. PROCURING ADDITIONAL INSURANCE WITHOUT CONSENT. — Where a policy of insurance provides that it shall be void if additional insurance shall be secured without first ob- taining the endorsement on the policy of the written consent of the company thereto, the oral consent of the agent of the com- pany is not sufficient. The permission must be indorsed in writ- ing. German Insurance Co. vs. Heidnk (Supreme Court of Ne- braska), 46 N. W. Rep., 481. ACTION ON POLICY— OTHER INSURANCE.— In an action on a policy providing that it should be void in case of other in surance, it appeared that two years before the issuance of the policy, insured had applied to an agent for other insurance. The policies were issued for three years, and the premiums paid by the insurance agent; insured testifying, though, that he only applied for insurance for one year, and did not know that the policies had been issued for three years. The policies had not been issued to the insured, but were retained by the agent. The court held that, insured by the failure to demand the policies from the agent, will not be held, as a matter of law, to have acquiesced in their issuance, so as to render them valid and thei'eby avoid the policy in suit for failure to disclose such addi- tional insurance. Phoenix Ins. Co. vs. Hague iCt. Civ. App. Tex.), 34 S. W. Reporter, 654. PROVISIONS AGAINST FURTHER INSURANCE.- Where It. & D.. as partners under that style, 'were agents of an insm'ance company, when a policy of insurance upon a stock of goods was is- sued by the company through them, and they afterwards dissolved, and O. ceased to represent the company, but continued in the in- suran<;e agency business at the same place as a member of a new firm, using the srt:yle of O. & Co.. and the insured applied to G. for additional insurance on the same property, producing at the same time the former policy which G. examined, and thereupon issued another policy in a different company which G. & Co. then repre- sented, signing that policy with the name of the new firm, these facts did not amount to a consent by the first insurance company that the insured might obtain additional insurance embraced in the second policy. As G.'s agency for the first company had term- inated, he h;id no authoiity to represent that company, and the burden of verifying his authority was upon the insured, the policy on its face declaring that it would be rendered void by procuring further or additional insurance, unless by agreement indorsed upon or annexed to the policy. The ignorance of the insured that the first firm was dissolved, or that G.'s agency was in fact termi- nated, would not vary the relative rights of the parties. Greenwich Fire Ins Co. vs. Sabotnick fSupreme Court of Ga.1. 17 S. E. Rep., lien. •176 INDICATOR'S DIGEST. WAIVER OP CONDITION AS TO ADDITIONAL INSUR- ANCE.— lu an action on a fire policy, where the defense was that the policy was void because, at the time of its issuance, there was additional insurance without the knowledge of the company, yet if it with knowledge by its agent of such breach, requested and made a change in the form attached to the policy, and then re- turned the policy as one of binding obligation, it waived the breach of the condition. Amer. Fire Ins. Co. vs. 1st Nat. Bank, Vicksburg (Supp. Ct. Miss.), 18 So. Reporter, 931. CONDITIONS IN POLICY AS TO ADDITIONAL INSUR- ANCE.— Where an insurance policy expressly forbade other in- surance, the fact that a clause, "Total insurance permitted, $ — -," was not filled in, did not tend to show that the amount of insur- ance was not limited. Evidence that an insurance adjuster in- spected the stock after the fire, and suggested that the burned mid unburned goods be separated and that the assured did so at some expense as to additional insurance. Labell vs. Georgia Home Ins. Co. (Court of Civil Appeals of Texas), 28 S. W. Rep., 133. WAIVER OP CONDITION AGAINST ADDITIONAL IN- SURANCE.— AVaiver of an express condition against taking ad- ditional insurance can only be inferred when the evidence shows that the subject matter of the waiver and consent was in the minds of the parties, coming together on that definite proposi- tion. Declarations in policies against the power of officers or agents to waive conditions except in writing indorsed thereon must be enforced by the com-ts asi part of the contract, unless there is some valid reason for not doing so. Hartford Fire Ins. Co. vs. Small (Circuit Court of Appeals, Fifth Circuit), 66 Fed. Rep., 490. KNOWLEDGE O'F ADDITIONAL INSURANCE BY AGENTS.— Where one applied to an insurance company for in- svirance, and, on sfuch application, several companies, including the one'ap66. CONDITION OF POLICY CANNOT BE VARIED BY PAKOL AGREEJIEXT WITH AGEXT.— A clause in a policy on a stock of goods, requiring the assiu-ed to keep a set of books showing the changes taking place from time to time in the stock, cannot be varied by parol evidence that before the policy was issued the agent of the company told the assured that it was unnecessary to keep such books. And evidence to that effect does not tend to show a \vaiver by the company of that condition. Germania Ins. Co. vs. Bromwell (Supreme Ct., Ark.), 34 S. W. Reporter, S3. INSrRANCE POINTERS ON ORAL CONTRACTS.— Au oral executory contract for fire insurance is valid, the statute of fraude not appl.ving. If an oral contract fur lire insurance has been made, and be- fore the issuance of the ijolicy the property is destroyed by fire, equity ha^ jurisdiction to compel pa.vment of the indemnity. Though the insured understands the term to be covered b.v the insurance to be one year, and the agent of the company un- dei'stands it to be three years, costing in either case the same premium, this does not render the contract incomplete, so as not to warrant recovery for loss by fire occuiTing within one year. Wh«« an agent represents several insurance companies, and is trusted with blank policies, signed by the officers, with author- ity to negotiate policies and issue them without refeiTing them to the c-ompanies. and it is agreed by the insuretl that the agent shall place the rissk in such company as he selects, and he does place it with a company, as shown by a memorandum made b.v him. the agreement is binding on the company. Where, by agreement between the inevu-ed and the agent, the agent is to fix such amount of indemnity as he sees proper, and he does fix it. as shown by a memorandum made b.v him. the oral agreement is binding on The company. An agent of an insurance company authorized to negotitUe risks may give credit in such executm-y agreement for the pi^mium. Unless in stu-h agreement prepayment is made a condition precedent, the premium need not be paid until the ix>licy agreed upon is ready to be delivered. The agent, by mistake, entered in his memorandum the name of the wrong person as the assm-ed. This will be corrected in a suit in equity on such oral agreement, and the pei'son who owns the property insured and who negotiated the insurance may re- cover in his own name. <'roft vs. Hanover Pire Ins. Co. (Supreme Court of Appeals of West Virginia). 21 S. E. Rep.. oIicy insuring separate amounts on a building and its contents is not avoided as to the personality by a forfeitvu-e of the insurance on the realty, caused by a change in the title, though it provides that the "entU-e" policy shall be avoided by any change in the title of the subject of insiu-ance. Trabue vs. Dwelling House Ins. Co. (Supreme Court of Missom'i, Division No. 2i. e.". S. W. Rep.. S4S. VALID CONDITION RENDERING A POLICY VOIDABLE. —A fire insurance policy contained this clause: "That the haviug of other insurance upon the insm'ed property, or any part of It, valid or invalid, prior or subsequent, not made known to this com- pany, and consent to hereon, will render this policy void. ' It was held (!) That the violation of this provision In the assured, in procuring additional insnirance on tbe property without knowl- edge or consent of the first insurer, did not render the policy issued by it void, but voidable, at the election of said first insurer: i"2) that the proVision was a reasonable one. not unconscionable, ille- gal, nor contrary to public ix)liey: (3) that it was inserted in the insurance conti-aet for the benefit of, and might l>e waived by the instirer. Hughes vs. Ins. Co. of North America (Supreme Court of Ne- braska); 59 N. W. Rep. 112. CONDITIONS OF POLICY FOR INSURANCE.— In a suit on an insurance policy on lumber piled on a dock, in which there was a clear space clause, such policy having been issued in pkue of a prior policy, in which there was no such clause, the .seueral a.irents of the company having insisted upon the clause, it appeared that it was understood between the insured and the company's local agent that the use of the docks was to continue as in the past, and that the situation of the lumber at the time was regarded as ei]uivalent to the clear space required in the policy, although it was not by measurement equal thereto. A judgment for insured was proper. Michigan Sliingle Co. vs. Pennsylvania Fire Ins. Co. (Supreme Court of JlichiganV '<~ N. W. Rep., SO'2. i8S INDICATOR'S DIGEST. CONSTRUC'TiOfN OP PO'LIOY CONDITIONS.-— Where an appli- cation for insurance states that the insured is owner in fee simple of the property, and the policy makes the application a warranty upon breach of which the policy shall be null and void, the insurer cannot avoid the policy on the ground that the insured was in fact only a life tenant, when the fact was made known to the insurer's agent at the time the policy was issued. If the agent, with knowl- edge or notice that the title of the insured is only a life-estate, places the insurance and receives the amount of the premium as npon an absolute title, the insured is entitled to the same compen- sation for loss as if she held the fee. Where a policy upon a gin- house, and machinery is avoided as to the building by reason of a breach of warranty of the title, it is likewisie avoided as to the machinery, though there was no such breach as to that, its destruc- tion being a necessary consequence of the destruction of the gin- bouse. Western Assur. Co. vs. Stoddard (Supreme Court of Alabama), 7 South. Rep., 379. CONDITIONS OF INSURANCE POLICIES.— An advertise- ment and sale of insured property, under a power contained iu a mortgage, is not a violation of a policy of insurance which pro- vides that it shall be void on the entry of a decree of foreclosure of the insured property, since, though the foreclosure sale be regarded as equivalent to a decree of sale by a court of equity, such decree does not pass title until ratified by the court. Nor is such advertisement and sale a violation of a condition that the policy shall be void if the insured property is sold under a deed of trust, or any change is made in the title or possession of the prop- erty, since it is necessary for the sale under the power in the mortgage, to be repoi'ted to court, and the same proceedings had as if the property had been sold by a trustee under a decree and since, till such proceedings are had, the title of the assured has not come to an end, which is the only thing this clause of the policy contemplates. Hanover Plre Ins. Co. vs. Brown (Court of Appeals of Md.), 27 At. Rep., 314. VALIDITY OP CONDITIONS IN POLICY OF INSURANCE. —The act of 1889, providing for a uniform policy of fire insurance by making the use of the standard policy compulsory, enables the parties to bind themselves by the conditions contained in it. The standard policy was, under the act, prepared by the Insurance Commissioner, with the assistance of the Attorney-General. Its use by insurance companiee doing business in this State is made compulsory. The courts must, when called on, interpret it and its various provisions and conditions, and generally by the same rules as though the form of policy were voluntarily adopted by the par- ties. But in respect to the power of the parties to insert the pro- visions and conditions that are contained in the standard policy, and the binding effect of them, the act is conclusive; for it would be absurd to say that, while the statute compels the use of a par- ticular condition, the parties cannot or shall not bind themselves by it, but it may be nugatory. By requiring the condition to be inserted, the statute certainly en.ibles the parties to make the condition. Anderson vs. Manchester Fire Assur. Co. (Supreme Court of Michisan), 00 X. Y. Rep., 100.3. POLICY. 1S9 BREACH OF COXDITIOX IX IXSURAXCE POLICY.— Where insurauce is issued to a sole trader on bis entire stock of goods, a condition avoiding the policy if the property be sold or transferred, or any change takes place In title or possession is vio- lated hy his subsequently taking in a partner. Germania Fire Ins. Co. vs. Home Ins. Co. (Superior Court of New York City). 24 N. Y. Supp., 357. BREACH OF CONDITIONS IX POLICY.— The insui-ed is presumed to know the contents of his policy, and its conditions are obligatory upon him. Failure to disclose other insunaince or a mortgage incumbrance, of rw'hich the insurer had no knowl- edge, as required by the policy, will prevent reeoveiy for a loss. Ouinn vs. Phenix Ins. Co. of Brooklyn (Court of Civil Ap- peals of Texas), 31 S. "W. Rep., 566. THE SUPREME COURT OF ALABAilA HOLDS, That the failure to comply with a provision in a fire insurance policy which requires the insured to keep a barrel of water in a cer- tain part of the insured building, does not prevent a recovery on the polic}', where the property could not have been saved when the fire was discovered, with the aid of the water. Syndicate Ins. Co. vs. Catchings. 16 So. Rep., 46. VALIDITY OF PROVISION IN INSURANCE POLICY.— A clause in an insurance policy providing that the company shall not be liable for losses oecuring while any part of the isremium is overdue and unpaid is valid. Continental Insurance Co. of New Y'ork vs. Chew (Appellate Court of Indiana), 3S N. E. Rep., 417. VALIDITY OF POLICY.— A pai-ty who obtains a policy ft-om a former agent of the company, with whom he had done business, and who has in his possession blank applications and policies, will be protected in the absence of actual knowledge on his part that the party acting as agent wag in fact not the agent of the company. In re Pelican Ins. Co. of New Orleans (Supreme Coiu-t of Louisiana), 17 So. Rep., 427. CLAUSE RESTRICTING RIGHT TO SUE VOID.— Where a policy provides that "no action shall be brought by the insured to enforce the provisions of this policy, except against the at- torneys in fact, as representing all of the underwriters; and each of the underwriters hereby agrees to abide the result of any suit so brought as fixing his responsibility hereunder," such stipulation is void. The court saixi: A stipulation against en- forcement of an obligation by judicial process is, in effect, exemption from Uability on the obligation; and upon principle, as well as by the adjudged cases, such stipulation is void. And, a provision in a contract that the party breaking it shall noi be answerable in an action is a stipulation for ousting the courts of jurisdiction, and, as such, is void, upon grounds of public policy. Knorr vs. Bates fUnderwriter) (Com. PI. Ct. N. Y. City). 35 N. y. S. Rep.. 1060. igo INDICATOR'S DIGEST. EFFECT OF INVALID PROVISION.— An invalid provision in an insui'ance policy, attempting ito limit the right of the in- .sured to sue, does not destroy the underwriter's contractural ob- ligation to pay in the event of a loss. Knorr vs. Bates (Common Pleas of New York City and County, Special Term), 33 N. Y. Sup. Rep., 691. VALIDITY OF POLICY. — An insurance company cannot re- sist the payment of a policy obtained in good faith, and without misrepresentation, issued to a Arm, when there is only one per- son in said firm; particularly when the agent issuing the policy knowa that ooily one person composes said firm. In re Pelican Ins. Go. of New Orleans (Supreme Court of Louisiana), 17 iSo. Rep., 427. INVALID POLICY.— A policy obtained on a stock of mer- chandise belonging to a woman, who gave no supervision to the business, on representation that the owner was a business man, personally conducting the business, but for w^hich it would not have been issued, is invalid. Freediman vs. Fire Ass'n of Philadelphia (iSoipreme Court of Pennsylvania), 31 At. Rep., 39. STANDARD INSURANCE POLICY ACT OF PENNSYL- VANIA VOID.— Act, April 16,1891, "to provide for a uniform con- tract or policy of insurance," etc., which provides that the Insur- ance Commissioner shall prepare and file in his office on or before November 15, 1891, a printed form, in blank, for Are insurance policy, etc., to be known as the "Standard Fire Insurance Policy;" makes the use of such form of policy obligatory; and prescribes penalties to be imposed on any company, its officers or agents, for failure to comply with the requirements of the act — is uncon- stitutional and void, in that it is a delegation of legislative power. O'Neil vs. American Fire Ins. Co. (Supreme Court of Pennsyl- vania), 30 At. Rep., 943. PARTIAL STOPPAGE WILL NOT AVOID FIRiS POLICY. —Temporary cessation of the operation of the. machinery iu a saw-mill during the illness of the sawyer, the other business of the mill being carried on as usual, does not violate a condition of policy that it shall be void if the mill "cease to be operated for more than ten consecutive days." Ladd vs. Aetna Ins. Co. (Ct. App. N. Y.), 42 N. B. Rep., 197. AVOIDANCE OP POLICY BY CHANGE OF INTEREST MATERIAL TO RISK.— Where the business of a partnership is taken over by a joint stock limited liability company formed for that purpose there is such a change of interest as to invalidate insurances held by the flrm in the absence of notification of the change to, and assent by, the insurance company, though the members of the partnership hold nearly all the stock in the limited liability company. The A. G. Peuchen Company et al. vs. The City Mutual Fire Insurance Company, 18 A. R., 446; Powers vs. Guardian Fire and Life Insurance Company, 136 Mass., 108; Dermain vs. Home Mu- tual Insurance Company, La. Ann.. 69; and Hoffman vs. Aetna Fire Insurance Company, 32 N. Y., 405, distinguished. POLICY. 191 IN AN ACTION ON A FIRE INSURANCE POLICY, the Supreme Court of Miehisan held that a variauee between the declaration and the evidence as to the date of the policy is not fatal, proofs of loss having been made within the time required. Lum vs. United states Fire Ins. Co., 02 X. W. Rep., .j62. WHERE CHANGES IN THE INSUREDS INTEREST WILL VOID POIilCY.— Where a Are insurance policy provided that it should be void If any change took place in the interest of the insured, whether by voluntary act of the insured or otherwise, an executory agreement to convey the insured px-emises, under which the vendee took jiossession. and paid a part of the pur- chase price, is a breacli of this condition, and rendered the policy void. The word 'interest" is broader than the word ''title" and includes both legal and equitable rights. Gibbs vs. Fire Ins. Co. of Countv of Fhiladelphia 1 Supreme Court of Minn.). 61 N. W. Rep.. 137. CHANGE OF INTEREST THAT DOES NOT AVOID FOL- ICY. — In an action on an insurance policy it appeared that wJieii insured the property stood in the name of four persons. The one bringing the action testified that he explained to the agent the nature of the title, asserting tiat the others had but a conditional interest in the property; that after the policy was issued, and before tlie loss, they executed to him a quit-claim deed of their interest, thus making him. as he represented himself to be. the sole owner. The policy provided that if any change took place in the interest or possession of the property the policy should be void. Held, that the deed in this case did not work such a change in the interest of the insured as would avoid the policy. •Wieh vs. Equitable Fire & Marine Ins. Co. (Court of Appeals of Colorado). 31 Pac. Rep., 3S9. WHEN COURT SHOULD NOT DIRECT VERDICT.— Where a company, by its answer, admitted that there was a live policy at the time of loss, unless avoided by a breach of a eonditioTi against incumbrances, and by its assertions and proof at the trial took the position that such policy had been taken up and cancelled a few days after its issue, then there must have been another policy; at least it was a question for the jury whether there was or not and the company, not proving that the policy in existence at the time of loss also contained such condition, the court should not have directed a verdict for the company. Mistilski v. German Ins. Co. (Sup. Ct., Minn.), 67 N. W. Rep., 80. WHAT CONSTITUTES FAILURE TO OPERATE MILL.— Where the operation of a saw mill is temporarily suspended by reason of the illness of the sawyer, it does not cease to be operated within a condition of a fire insurance policy that it shall Ih- void if the mill cease to be operated more than ten consecutive days. If an insurance policy on a saw mill run b.v water power is vitiated by a temporary susiiiensiim of the operation of the mill, iu conse- quence of the illness of the sawyer, absence of logs, low water, or any cir,.-umstances which must necessarily cause such susi)ension from time to time, such a policy would have but little value. Ladd vs. Aetna Ins. Co. (Supreme Coiu-t of N. Y.(. l:4 N. Y. Supp., •"'^4. 192 INinCATOR'S DIGEST. POLICY TAKEN IN NAME OF INFANT.— Where the agrent -of a minor applied for insurance on her property, in ignorance of a rule of the company that no risks should be taken on prop- erty belonging to infants, the right of the insured to recover on the policy is not affected by private instructions from the com- pany to the general agents vs^ho issued it. Johnson vs. Scottish U. & N. Ins. Co. (Sup. Ct. Wis.), 67 Northwestern Reporter, 417. COMPELLING ISSUANCE OP POLICY.— In an action to compel a company to execute a policy after a loss, in accordance with an accepted application, the company cannot show that, un- der its form of policy, the claim for insurance money would be barred by limitation. Clarkson vs. Western Assur. Co. (Sup. Ct. 5th Dept.), 37 N. Y. :S. Rep., 53. EXCHANGE OF POLICIES.— A fire insurance policy, left with the agent of the company, with the express understanding and for the sole purpose of having another policy issued in its place, is not canceled until a new one is issued. Hickey vs. Hartford Fire Ins. Co. (Supreme Ct, 4th Dept.), 36 N. Y. S. Reporter, 329. SEPARATE INSURANCE OF DIFFERENT ITEMS IN ONE POLICY. — Where, in a policy of insurance, a separate valuation has been put upon the different subjects of insurance, as $300 on the dwelling-house, $175 on household furnitm-e, $75 on barn, $500 on horses, mules and colts while in barn or on farm, etc.. the contract is severable, and not entire and indivisible. In such case, the consideration for- insurance on the house might be stated in the policy as a separate item, so of the consideration for the household furniture, barn, horses, mules and colts, and the stating of the aggregate of these sums in the policy as the con- sideration, instead of the items separately, does not make the contract indlvisdble and entire, and for this reason a violation of a condition in the policy with reference to one class of prop- erty, does not render it void as to the other property covered. Phenix Ins. Co. vs. Grimes (Supreme Court of Nebraska), 50 N. W. Rep., 168. FICTITIOUS OR ASSUME© NAME IN INSURANCE POLICY.— Where the Christian name or names by which a party is presently known are different from those given him at his baptism, or by which he was formerly known, it is a question of tact whether such new name ia a "fictitious or assumed name." Consequently, whether evidence of general usage of insurance companies to cancel policies obtained under "fictitious or as- sumed names" as soon as such fact isi known to them is ad- missible or not depends in each case upon whether the evidence would support a finding that such new name was a "fictitious or assumed ^ame." And so, in a case being tried before a referee who determines both law and fact, evidence of usage being offered' and objected to. the i-eferee may properly reject the same, on the ground that the evidence does not Sufficiently show that such new name is a "fictitious or assumed name." Pollard vs. Fidelity Fire Ins. Co. (Supreme Court of SoutV Dakot.i), 47 N. W. Rep.. 1060. POLICY. 193 DENIAL OF EXECUTION OF POLICY.— The countersign- Iiil; of au insurauce policy by an agent, \Yhen required by the terms of the policy, is a part of its execution by the company; and when it purports to be countei-signed by such agent, no fur- ther proof as to his signature or authority is required, by the laws of Illinois, unless its execution is denied under oath. Firemen's Ins. Co. vs. Barnsch (Sup. Ct. 111.). 41 N. E. Re- porter, 2S5. "WHO IS ENTITLED TO INSFRANCE.— The general rule that a lli-e insurance policy is a personal contract with the party insured, and does not run witli the land, or pass to the purchaser by a sale of the property insured, and any assignment of the policy, to be valid and operative, must be with the knowledge and con- sent of the insurer, especially where the policy, by its terms, re- quires the assignment, if any, to be assented to by the company. New England Loan & Ti'ust Co. vs. Kennally (Supreme Court of Nebraska). ."T N. W. Rep., 750. ilLANING OF "DIRECT RESULT" IN POLICY.— The Su- preme Court of Minnesota holds that the word "du-ect" in a policy providing "against all direct loss or damage by fire'' means "immediate'' or "proximate" as distinguished from "remote," so that a company would be respoufible for damage to a building by fallinc walls, though it was not injured by fire or water. Ermentraut vs. Girard Fire & il. Ins. Co., 65 N. W. Reporter, RECALLING FIRE INSURANCE POLICY.— In au action on an insurance policy it appeared that the company's agent wrote the policy and forwarded it to one for delivery to the insured, in renewal of the expired policy. In the meantime, the property cov- ered by the policy had been burned. The agent heard of this on S\inday and wired his party not to deliver the policy. On the same day he told the insured that the policy had been received, and had lieen recalled. On the next day the insured wired the sub-agent to hold the policy. The policy having been returned, was demanded of the agent, and was afterwards again demanded, when the pre- mium was tendered for the first time. No contract of insurauce was made. The agent's act in recalling the policy on Sunday wa-; not the making of a contract, but wns au effort to reclaim the property of the company. N. Y'. Lumber & Woodworking Co. vs. I^eoplcs' Fire Ins. Co. 1 Supreme Court of Michigan). ."■"1 N. "\V. Rep., 4:^4. PROPERTY COVERED BY FARM INST'RANCE.— A policy of insurance upon certain farm property included stMbles and "hay therein or in stack." and designated the property as being in the possession of the insured, who is referred to as residing on land (a fai-ml pai-ticularly described. This would cover hay in stack situate off the land so described, and two miles distant from the residence of the insured, although the articles of in- corporation declared that only property under the "immediate control" of the insured should be subject to insurauce. iloreover, the aircut of the company who effected the insurance, and made the description of property inserted in the policy, knew of this hay. and. as between him and the insured, it was understood that it was to be covered by the policy. Soli vs. Farmei-s' Mutual Ins. Co. (Supreme Coiu-t of Minne- sota). -'2 N. AY. Rep.. liTll. I 94 INDICATOR'S DIGEST. PRO RATA CLAUSE IN INSURANCE POLICY.— The clause "this policy * * * covers pro rata on each of the fol- lowing articles," followed by a list of the articles insured, with the amount for which each was insured, insures each article sep- arately for such a part of the sum named in the list, as the policy is of the total Insurance agreed to be carried by the insured. Citizens' Ins. Co. vs. Ayers (Supreme Court of Tennessee), 13 S. W. Rep., 1090. SUFFICIENCY OF PLEADING IN ACTION ON INSUR- ANCE POLICY.— A complaint alleging that parties, as copart- ners, insiu-ed their goods, and that the policy had expired, but that the insurance company had agreed to renew it, and had accepted a premium for the same, but had failed to make the renewal, and that the goods were destroyed by flre within the period which the agreed renewal would have covered, and alleg- ing, further, a statement made both before and after the loss by the compani^'s agent, that the renewal bad in fact been made, is good on demurrer without alleging the performance of conditions precedent. Schwahn vs. Mich. Fire and JIarine lus. Co. (Supreme Court of Wisconsin), 61 N. W. Rep., 7S. CONSTRUCTION OF PRO RATA INSURAIvCB— VALID- ITY OF PROOFS OP LOSS.— Where an insurance policy provides that the auKiunt recoverable -under it shall be that proportion of the loss which the face of the polic.y is of all the insurance in force, that provision controls where the loss is less than the in- surance in force. The fact that a company rejects proofs of loss as incomplete, will not bar then- introduction in evidence, as the court is the ultimate .I'udge of their sufficiency. Hibernia Ins. Co. vs. Starr (Supreme Court of Texas), 13 S W. Rep.. 1017. WHAT IS -SHUTTING DOWN OF MILL?"— A saw-mill which has stopped running for the winter is "shut down," within the meaning of such term in a provision of a policy, though men are employed about the premises shipping lumber therefrom, and the machinery has not been dismantled and put in shape for the winte.r. McKenzie vs. Scottish U. it N. Ins. Co. (Sup. Ct. Cal.). 44 Pacific Rep., 923. SUIT iBY SURVIA'ING PARTNERS.— The fact that a policy on ipropertj' formerly owned by a firm was issued in the name of sueh firm after its dissolution by the death of one of the memberis of the firm does not invalidate the policy; the agent who procured the policy and countersigned it, knowing the cir- cumatanoes, and no application or representation being made in order to prociu-e the policy, wliich Mas merely a renewal of one issued to tlie firm. The fact that after the death of such member of the firm the survivors sue on a policy of insurance in favor of the firm, as surviving .partueivs instead of as indi- viduals, one of them alsio suing as administrator of the deceased partner, does not present a recovery. Fire Ass'n of Phil.adelphia vs\ I>auing (Court of Civil Appeals of Tex;>-), 31 S. W. Rep.. liSI. POLICY— PREMIUM. 195 COXSTRUCTION OF PKO RATA i.IRB INSURANCE: CLAUSE.— A policy for fire Insurance for three thousand dollars on property worth ninety thousand dollars, provided that the company insured said property for one-thirtieth of its value, and further provided that in case of loss the company should be liable only for such praportion of the loss as the sum insured by eald policy bore to the whole amount of the insurance. The total in- surance in force at the time of the loss was sixty thousand dol- lars, and under the terms and provisions of the policy the lia- bilitj- was for one-twentieth of the loss, and not one-thirtieth. Illinois Mut. Ins. Co. vs. Hoffman (Supreme Court of Illinois) 24 X. E. Rep., 412. PREMIUM. TAYMENT OF PREMIUM.— A transaction between a lire insurance company and its agent, without the knowledge, con- sent, or subsequent ratification of the assured, by which the agent is charged with the premium due on the policy, and on its cancellation is credited with the unearned portion of same, is not a payment of the premium which will inure to the benefit of the assured. Van Wert vs. St. Paul F. & M. Ins. Co. (Supreme Ct. 3rd Dept.), .30 N. Y. S. Reporter, .54. PAYMENT OF PREMIUM ON INSURANCE POLICY.— An insurance policy was about to expire, and the company sent to the assured a blank application for renewal, requesting him to sign and return, and telling him that what dividends belonged to him shouM be credited on the new policy. The policy was for- warded purporting on its face that the policy was paid, and no demand was made for the premium. The fact was prima facia evidence that the premium had been paid, or payment waived. Whiting vs. Mississippi Valley Mut. Ins. Co. (Supreme Court of Wisconsin), 4.5 N. W. Rep., 672. I'AYMENT OF PREMIUM TO BROKER BINDS INSUR- AXCE COMPANY'. — Where a broker, being applied to liy an iu- sm-ance agent to place a risk, writes to u company for the insur- ance, and the company sends him the executed policy, which he forwards to the agent to deliver, with directions to collect and remit him the premium, the assured's payment to such agent binds the company, though the policy is conditioned to be void unless the premium be paid within fifteen days from issue to the secre- tary or an agent of the company duly appointed as such in writ- ing," if the broker was in fact appointed by the company to de- liver and collect for that policy, the agent merely acting for him in the matter; and evidence that the company had for years sent the broker iwlic-ies on his applications, the premiums for which he collected and remitted, less his commissions, is proper to go to the jury on the question of such appointment. Arthurholt vs. Susquehanna Mut. Fire Ins. Co. of Harrisburs (Supreme Court of Pa.), 28 At. Rep., 197. ig6 INDICATOR'S DIGEST. EFFECT OF PAYMENT OF PREMIUM AFTER LOSS.- Whei-e the condition of a fire insurance policy states the company will not be liable for a loss, until the premium has actually been paid. A premium sent after a loss is presumed to be too late, anl the burden of proving an acceptance by the insurance company is on the insured. In the case of an agent of the company insur- ing his own property, and where he kept an account with the com- pany and credited the amount of his premium to it, and the same was subject to the order of the company, it was decided by the Supreme Court of Iowa that the premium should have been paid to the company in cash according to the condition of the policy. Moore vs. Rockford Ins. Co., r,~ N. W. Rep., -"OT. EFFECT OF FAILURE TO PAY PREMH^M.— It is well settled that on the failure to pay the premium on a policy, at the itime stipulated, it becomes lapsed and void. It is then no longer a contract enforciWe against the insurei-s. If the pre- mium was not paid when the day for payment came, the policy was void, for the parties to it have said that so it shall be. The forfeiture results from ithe non-payment alone, and from no other act. The payment is a condition precedent, which must be kept or the policy fails. It is a rule of common law that if the tei-ms of fhe contract violate no law of public policy, and have been freely entered into, a strict and exact compliance with them may be insisted upon. Dale vs. Continental Ins. Co. (Supreme Court of Tennessee), 31 S. ^Y. Rep., 266. WAIVER OP CONDITIONS FOR PREPAYMENT OF JPRBillUM.— An insurance company insured one against loss by fire and delivered the policy to brokers who had placed many policies before for the company, remitting the premiums monthly, and sometimes at longer intervals. The brokers delivered the policy to the agent of the insured the day after its issuance, with- out collecting the premium. Subsequently, and before the loss occurred, the insured paid the premium of $6 to his ageut, and the latter sent to the brokers !f80, taking a receipt "on account of mifjcellaneous companies." The agent testified that the premium was included in the remittance, which the company denied. The policy contained a clause that the company should not be liable "until the premium be actually paid." The court instructed the jury that if the insured's premium was included in the $80, they should find that the same had been paid to the brokers. The court also instructed the jury that if the company delivered the policy to the brokers, iwho delivered it to the agent, who delivered it to the insured, and at no time after the policy was so delivered, and the flre occurred, did the company give notice that it wishe:! to cancel the policy, then they must find for the insured. De- livery of a policy without requiring payment of premiums is a waiver of the condition of prepayment. Where the premium is charged to the agent personally by the company, and the former credits the insured, it is equivalent to payment. When an insur- ance company clothes a person with apparent authority to deliver policies and receive the premiums, it is estopped after the delivery of the policy to set up the defense that the agent acted without written authority, as reqviired by statute. Wytlieville Insurance & Banking Co. vs. Teiger (Supreme Court of Appeals of West Virginia). 18 S. E. Rep., VX>. PREMIUM. 197 WAIVER OF IMMEDIATE PAYMENT OF PREMIUMS — A fustoni existing between the agents of the parties, respectively, of collecting premiums on the tir-^t of each month on insurance effected lUn-ing the previous mouth, operates ,;s a waiver of im- mediate payment, when uo special demand is made. Potter vs. Phenix Ins. Co. (Circuit Court, "W. D. Missouri) 03 Fed. Rep.. ;:1S2. PROOF OF PAYMENT OF PREMIUJIS— CONSENT TO REMOVAI. OF PROPERTY.— The production by the assured of a policy reciting that the consideration is a named sum is prima facie proof of payment of the premium. Where the agent of a iii-e insurance company promises to indorse, on a policy left witli him for that pm'pose. the company's consent to the removal of the property insured, which indorsement he has authority to make, and he neglects to do so before the property is destroyed by fire, in an action on the policy the company is estopped to set up the want of such indorsement on the policy, caused by the negligence of irs own agent. Henschel vs. Oregon F. \- M. Ins. Co. (Snpreme Court of Washington). SI Pac. Rep., .332. CONDITIONS OF INSFRANCE POLICY AS TO PAYMENT I IF PREMIUM. — A policy of insurance provided that, upon the failure of the insm'ed to pay the premium note therein described in full, at maturity, such policy should cease to be in force, and continue null and void, while said note remained unpaid. Said note not having been paid at maturity, the insurance company ac- cepted as a credit thereon, an amount of money largely in excess of the premium earned, and before the note had been paid in full, the property insured was desti'oyed by fire; the note having been left with its local agent for collection. The policy was voidable only at the election of the insurance company, and, by receiving and detaining the part payment after default, and retaining the note for collection it waivetl the right to insist upon a forfeiture thereof. Phenix Ins. So. vs. Dungau (Supreme Court of Neb.). .5"> N. V\'. Rep.. lOmi. OFFER OF PREMIUM TO COMPANY'S AGENT CONSTI- TUTES PAYMENT.— An agent of an insiuance company, duly .authorized to take and approve risks and to insure, issued a policy of insurance, extending credit fcjr the premium, although the pol- icy acknowledged the payment thereof. Prior to any loss, the full amount of such premium was tendered by the insured to such agent, liut the money was not received, owing to the fact that the latter was about to enter a railroad car. and would not ac- cept the money. Before the agent returned home the property was destroyed by fire. Afterwards, but prior to Instituting suit on the policy, the amount of premium was paid to the company, and the same was retained by it, with full knowledge of all the facts. Such payment related back to the time the tender was made to the company's agent, and that the company could not avail itself of the condition contained in that policy, that "this company shall not be liable by virtue of this policy, or any re- newal thereof, until the premium therefor shall be actually paid," to prevent a recovery. Western Home Ins. Co. vs. Richardson (Supreme Court of Nebraska). -jS N. W. Rep. r,U7. igS INDICATOR'S DIGEST. TENDER OF UNEARNED PREMIUM.S— Where a policy provides, iu case ot its cancellation, that the unearned portion of the premiums shall be returned on the surrender of the policy, a notice to the insured of its cancellation, stating that the unearned premiums, if any, are subject to the order of insured on the surrender of the policy, is sufficient to cancel the policy, without further tender of such premiums. Walthear vs. Penna. Fire Ins. Co. (Sup. Ct., App. Div., 1st Dept.), 37 N. Y. S. Reporter, 857. NOTICE BY REGISTERED LETTER OF PREMIUM DUE. —A provision of the Postal Laws and Regulations, which pro- vides that, "after a receipt has been given and the matter has been numbered ajs prescribed in preceding sections, the letter or parcel becomes registered, etc. Notice of the time a premium note falls due, to be given by "registered letter," is not complete until the number has been indorsed on the letter. Ross vs. Hawkeve Ins. Co. (Supreme Court of lowii), 01 N. W. Rep., 8.j2. INSURANCE IN FORCE BEFORE PAYMENT OF PRE- MIX^M.— Where it is the custom of the agent of an insurance company to issiae policies and extend a credit of thirty days for the payment of the premium, the insvirance takes effect when the policy is issued. Where the agent of a company notifies the holder of an expiring policy that unless he gave notice to the contrary the policy would be renewed, they are bound, in the absence of instructions from him or by their own ijroposition, and are charged with the responsibility of renewing the policy. In such a case where the renewal policy is issued and retained by the agent, after which a definite agreement is made as to tlie time within which the premium could be paid, the policy is binding in the case of loss before the time limited for payment of premium, although the policy has not been delivered. The only question in siuch a case is the questions of fact as to the agreements and customs involved in the transaction, and these are for the determination of the jury. Long vs. North British & Mercantile F. & M. Ins. Co., 20 At. Rep., 1014. WAIVER OF PRBMIT^M PAYMENT.— The constitution of a mutual fire insurance association provides that insurance in the association should be perpetual, unless a member should with- draw, whirh he could only do by paying his proportion of all prior losses, and notifying the secretary; and, further, that, should any member fail to pay his assessments for more than 60 days, lie should forfeit his protection as a member until all dues should be paid. If, while a member is delinquent in the payment of assessments for more than sixty days, he suffered a loss, and the association, instead of declaring his protection as a member forfeited, should adjust the loss and allow the same, this would be a waiver of the forfeiture. The forfeiture would also be waived if, while the member was so delinquent, the association ■should make an assessment against him to pay losses sustained l)y other members. Farmers' Mut. Rel. Ass'u. vs. Koontz (Appellate Coiu't of Indiana), •".<• N. E. Rep., 14.5. PREMIUM. 199 PREMIUMS DUE IXSURAXOE CDilPANIES NOT SUB- JECT TO TAXATION.— The Supreme Court of Louisiana holds that, capital being taxable, tax on premiums ^yould be dual in character. That premiums due an insurance company, in course of collection, are not taxable. In taxing the property of other than banking institutions, property exempt from taxation is not included. The court 5>aid: The premiums unpaid arc the com- pany's unrealized earnings. They were not treated as invest- ments by the company. Time was not gi-anted to the debtoi-e, and interest exacted, as upon investments. It would be an oner- ous taxation that would make it bear on all the property of the company, and in addition exact a license, and compel it to pay taxes on its premiums in prospectu. These premiums, as generally understood, are not notes, bonds, an>d obligations in the daily course of business of a merchant or an insurance com- pany. A taxation on premiums would be, practically, a tax on income, and that is not authorized by the statutes. State vs. Mechanics & Traders' Ins. Co.. IS So. Kep., -ti52. RETURN OR TENDER OF PREMIUM NECESSARY TO CANCEU POLICY.— Under the form prescribed by the laws of the State of New York, commonly called a New York standard policy of fire insurance, the policy contained the following clause, viz.: ■■This policy shall be canceled at any time at the request of the insured: or by the company, by giving five days' notice of such cancellation. If this policy shall be canceled, as herein- before provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of thie policy or last renewal, this company retaining the customary short rates, except that, when this policy is can- celed by this company by giving notice, it shall retain only the pro rata premium." The actual return or tender by the company of the unearned premium is essential to the cancellation of the policy by it. Tisdell vs. New Hampshire Fire Ins. Co. (Superior Court of New York City). 32 N. Y. Supp. Rep., 166. ACTION FOR PRO RATA PREMIUM.— In an action by an instu-ance company to recover the earned portion of a premium on a policy issued by it. the answer admitted the issuance of the policy at the request of, and for the benefit of. the insureil; that it continued in force, until cancelled liy request; and that the earned portion of the premium was the sum stated in the com- plaint, which the insured agreed to pay, but it denied that the company had ever demanded, or that insured had neglected or refused "to pay, the same or any part, or that said sum, or any part, was due and owing. The answer admitted that the premium sued for was due and owing at the time the policy was surrendered, and was inconsistent with the claim that the insured had paid before the sui-render. Giving a check for the debt Is a conditional payment, and the debt is discharged only when the check is paid, unless it was agreed that the check should be received in satis- faction of the debt. Greenwich Ins. Co. vs. Oregon Imp. Co. (Supreme Court, Gen- eral Term. First Dep't), 27 N. T. Supp., 791. INDICATOR'S DIGEST. PREMIUM NOTE. ACTION ON PREMIUM NOTE.— In an. action on a premium; note given to a mutual fire insurance company by insured, it is proper to render judgment for the Avliole amount of the note in- stead of the amount of the assessment levied against it, as the form of the judgment is prescribed by statute, and no injustice results, because execution can issue only for the amount actually due. Taylor vs. Port Jefferson Milling iCo. (Supreme Court, General Term), 32 iN. Y. iSup. Rep., 307. ACTION ON PREMIUM NOTE.— A fire insurance policy for the term of five years at a gross premium for the entire time, the insured giving his note for such premium, due in one year from date, contained a stipulation to the effect that the failure by the insured to pay the premium note, when due, suspended the policy during such default, but that a subsequent payment of the premium in full revived the policy for the remainder of the term. The insured made default in the payment of s-uch note, and in an action upon the mote it was held that the com- pany was entitled to recover the full amount of the note. Phenix Ins. Co. vs. Rollins (Supreme Court of Nebraska), 63 N. W. Rep., 46. PROOFS OP LOSS. PROOF OP LOSS OF INSURED FROPEiRTY.— Failure to furnish proof of loss within thirty days after a fire, in accordance with the provision of an insurance policy, providing that persons sustaining loss or damage by fire shall forthwith give notice of such loss, and within thirty days thereafter, render a particular and specific account thereof, does not work a forfeiture of the policy, but merely delays the date when the loss will become pay- able. Kahnweiler vs. Phenix Ins. Co., of Brooklyn (Circuit Court D., Kan.), 57 Fed. Rep., 562. PROOFS OF LOSS.— When proofs of loss are furnished, and a negotiation follows between the parties, ended by a disagree- ment, as to the basis of adjustment of loss, it will be no defense to a suit on the policy that plans and specifications were not fur- nished by the insured; It being apparent there would have been no solution even if furnished, and suit was inevitable. Monteleone vs. Royal Ins. Co. (Supreme Ct. La.), 18 So Rep., 472. PROOFS OF LOSS. 201 PROOFS OP LOSS.— The Court of Civil Appeals of Texas Lolds that, whei-e the complaint in an action on a fire policy requiring proofs of loss by the insured alleges a compliance with those conditions by the parties bringing suit, it is error for the court on the trial to admit in evidence proofs of loss signed only by one of the parties to the suit, and a third person, who has no interest in the property. And where the party alleges a filing of a proof of loss and a waiver of proof, incompetent evidence (such as tlie above) is not harmless, where it cannot be told on which issue the jury found for the party bringing suit, and the judgment will be reversed by the higher court. Citizens' Ins. Co. vs. Shrader, 33 S. W. Reporter, 584. PROOF OB' LOSS: ADMISSIONS.-The proof of loss sub- mitted by the Insured, contained this clause, partly written and partly printed: The building described in said policy, or con- taining said property, was occupied in its several parts by the parties hereafter named, and for the following purposes: Used as a residence by Hill Adair, up to 3:30 p. m., September 20, 1890, and for no other purpose whatever." It was held by the court, that this was not an admission that the insured property i-e- mained unoccupied for ten days afterwards, within the terms of the policy, providing that it should be null and void in case the premises were at any tim.e unoccupied for more than ten con- secutive days. Hanover Fire Ino. Co. vs. Parrotte (Sup. Ot, Neb.), 66 N. W. Reporter, 636. PROOF OF LOSS.— Under a condition of a fire policy that in- sored should within sixty days after loss render a sworn state- ment showing his interest in the property, the cash value of each item, and the amount of loss thereon, and if required, should also furnish a certificate of the magistrate living nearest the tire, stating that he had! examined the cu-cumstances and beliieverl insured had sustained loss to the amount the magistrate should certify, recovery cannot be had where the insured's s.tatement dees not show the cash value of each article destroyed, and the magis- trate's certificate, wihich was demanded, was not that of the one nearest the fire, and was not furnished within the sixty days, anil was for those reasons returned. Gottlieb vs. Dutchess Co. Mut. Ins. Co. (Supreme Ct., 2nd Depit), 35 N. Y. S. Reporter, 71. PROOFS OF LOSS— APPOINTMENT OF ARBITRATORS. —When a fire occurs and the general adjuster of the insurance company tells the insured that he need not furnish any proofs of loss, the company is estopped from tal£ing advantage of the fact that proofs were not furnished within the time allowed in the policy which required all waivers by the company to be in writ- ing. Under a clause of a policy referring the loss to three arbitrators, one chosen by the company, one by the insured, and the third by these two. Where the company's arbitrator by his refusal to agree upon any person suggested by the other arbitrator the company cannot upon the trial of a suft upon the policy avoid the responsibility of its arbitrator defeating the condition of the policy, in regard to arbitration to settle the loss. Bishop TS. Agricultural Ins. Go. (Supreme Court of New York), 9 N. Y. Supp., 350. 202 INDICATOR'S DIGEST. PROO'FS O'F LOSS— Bills by cai'penters, says the Supi-eme Court of Iowa, as to the cost of repairing a building destroyed by fire are not sufficient proofs of loss. Heusinkveld vs. St. Paul Fire & Marine Ins. Co., 64 N. W. Reporter, 769. PROOF OF LOSS IN FIRE INSURANCE PROCEEDINGS. —An insurance policy covering a two story brick dwelling house, and its additions adjoining and communicating, embraces frame additions adjoining and communicating with the brick building. Where proofs of loss, in substantial compliance with the terms of the policy, are furnished the company, and it retains the same for more than a month without objection, it cannot afterwards object to their insufficiency. Carpenter vs. Allemania Fire Insurance Goinpany (Supreme Court of Penn.), 26 At. Rep., 781. DUE DILIGENCE IN FURNISHING PROOFS OP LOSS.— "Where proofs were submitted within two months after fire, they will be oonsidere'd as rendered "forthwith," when It appears that the fire was so extensive as to throw the entire business affairs of iusui-ed into confusion, that he 'was «ick for three weeks after- wards, was delayed in getting his books, had to take account of stocks for three years back; that it was customary for the ad- justers to finish their work before statement was sent, and that the statement, after being prepared, had to be printed. Hardneu v.s. Mill. Mech. Ins. Co. (Supreme Judicial Ct. Mass.), 41 N. E. Reporter, 658. PROOF OF LOSS ON BLANK FURNISHED.— After a no- tice of loss was sent to a fire insurance company and they re- turned a blank containing printed interrogations designed to be answered and which were answered, all of the information re- quired being furnished, although it Avas Indorsed "notice of loss," its character and sufficiency as proof of loss would be determined from what was contained therein — its contents. If the blank used in making such proof, being furnished by the insurance company, was not. when filled out, as complete as demanded by the policy, the responsibility for the omission and failure must be attributed to the company, not to the parties who were led into adopting and using the form. Brombery vs. ilinn. Fire Association (Supreme Court of Minnesota), 47 N. W. Rep., 07.5. COVEXANT TO KEEP COMPLETE SET OF BOOKS.— Where there is a covenant in a policy that the insured shall keep a complete set of books, and there is expert testimony that the system used showed a complete record, It must be left to the jm-y to determine whether the covenant was complied with. AVhere such policy requires a "set of books" to be kept by the assured, parol evidence as to the meaning of the term is admissable. A strict compliance with the warranties in a policy of insurance is a condition precedent to recovery, and therefore an Instruction that it is sufficient if the insured substantially complied therewith is erroneous, the sense in which such woi'd is generally understood being in contradistinction to an exact compliance. Western Assur. Co. vs. Althelmer Bros. (Supreme Court of Arkansas), 25 S. W. Rep. 1067. PROOFS OF LOSS 203 PROOF OF LOSS.— lu au action on a fire Insnrauee pollev, It IS e.^sential to the risht of recovery that proof of loss he furnisheil aecordinar to the conditions of the poliev. unless such conditions have been \v;t1vecl by the company. Sa^'ers vs. Hawkeye Ine, Co. (Supreme Court of Iowa) GH S. W. Rep.. 194. IXSUPFICIEXT PEOOFS OF LOSS.-Where in an action on a fire policy the proofs of loss required to be furnished before the action is brought are found to be insufficient, a vei'3ict should be directed for the insurance company. Proofs of loss must con- form to the requirements of the poUcy and the statute, and the condition precedent is not performed when the proofs furnished are ineiifBcieut to meet the requirements of the law. Brock v.s. Des Moines Ins. Co. (Supreme Ct. In.), 64 N. W. Rep.. OSo. PROOFS OF LOSS.— Where 20 different insurance companies are on a risk, which is destroyed by fire, the fact that proofs of loss are not submitted for two months after the fire will not inval- idate the policy under a clause in it requiring such proofs to be made as soon after the fire as possible; especially where the com- pany's adjuster visited the scene shortly after the fire and ex- amined the books and looked through the statements of the in- sured. Western Assiu-ance Co. vs. Studebaker Bros. JIanuf'g Co. (Supreme Court of Indiana), 23 X. E. Rep., 1138. COXSTRUCTXOX OF POLICY— PROOF OF LOSS.— An in- surance policy contained provision that proof of loss should be made within thirty days, and stipulated that no action should be maintained until aU the conditions of the policy had been com- plied with by the assured, and that no action could be maintained unless brought within six months after loss. Failure to make proof of loss within thirty days did not forfeit the policy, but only postponed the right of action until finished. Kenton Insurance Company vs. Downs (Court of Appeals of Kentucky), 13 S. W. Rep.. 882. EXCUSABLE DELAY IX XOTICE OF PROOFS OF LOSS — Tile law governins the qtiestlon as to whether delay in ;.'iving notice of loss Is excut^able, is that, while a compliance with such proiision is a cimdition precedent to a recovery upon the policy. the reqtiirement is to be liberally constiaied in favor of the as- sured: and while the delay in giving the notice, standing by itself, and disconnected from the circumstances explaining it, would be a clear violation of the obligation that the notice shotild be im- mediate, yet where the explanation given is of such a character as to show diligence on the part of the assured in attempts to comply, associated with the fact that the company was possessed of actual knowledge of the loss immediately after its occurrence, or where the company has assumed a position or done some act which prevented timely notice being given or had misled the as- sured in reference to it, or which was tantamount to a waiver of strict performance, a case is presented which excuses the delay. Solomon vs. Continental Ins. Co. (Superior Court of Xew Y'ork City, General Term). P.-2 X. Y. S. Rep., 7'>U. 204 INDICATOR'S DIGEST. THE COURT OF APPEALS OF KENTUCKY HOLDS, That iu au action, where it appears that, before commencing suit, the assured furnished the company with ijroofs of loss, it is imma- terial that such proofs were not furnished within thirty days after the loss, as required by the policy. German Ins. Co. vs. Brown, 2!J S. W. Rep., 313. IX THE CASE OF WHITE VS. ROYAL INSURANCE COMPANY, the City Court of Brooklyn decided that a statement iu the proofs of loss made on information and belief, as to the- cause of the fire, as required by the policy does not estop t!he assured, in an action on the policy, to contradict or explain a mis- take of his iniformant. 29 N. Y. Supp. 32.3. SECONDARY EVIDENCE OF PROOFS OF LOSS.— Upon the trial of an action to recover for a loss by fire, under an insur- ance policy, notice of the trial to the company's attorneys, to pi'O- duce proofs of loss, sent by the insured to the company In a dis- tant State, it not appearing that they were within reach of its at- torneys at that time, is sufficient to lay the foundation for secon- dary evi'dence. Whare proofs of loss are shown to have been properly mailed to the .company at their place at business or the home office, it will be presumed that they were received in due course of mail, till the contrary is mad© to appear. Dade vs. Aetna Ins. Co. (Supreme Court of Jlinn.), 56 N. W. Rep., 48. TAKING POS.SESSION OF i^OODS AFTER FIRE.— Pro- visions of an insurance policy covering a stock of goods for notice of loss iwithin a specified time, and in a particular manner, will be held to have been waived by the insurer, where, with knowl- edge of the loss of ipart of said stock by fire, it by its adjusting agent demands and oWains possession for several days, with the help of the latter, in ascertaining the amount of the loss. St. Paul Fire and Marine Ins. Co. vs. Gotthelf (.Supreme Court of Nebraska), 53 N. W. Rep., 137. DEFECTIVE PROOFS OP FIRE INSURANCE LOSS- CHANGE OF OCCUPANCY AND TITLE.— When there are de- fects in the proofs of loss, whether formal, substantial, or in- deed, in any respect, which could have supplied, if specific ob- jections had been made thereto by the underwriters, a failure on their part to object to the proofs on that ground, or to point out the specific defect, or call for information omitted within a rea- sonable time, is considered a waiver, however defective, informal, or insufficient such proofs may be. If it is essential for an under- writer to know by what title the insured holds the property in- sured, that inquiry should be made at the time of issuing the policy, and not deferred until after a loss has occurred. When- ever there has 'been a change of occupancy or of business, or the erection of additional buildings adjoining or near by the insured property, the question whether there has been a material in- crease in the risk, or not, is a question of fact to I>e determined by the jury; but whether au increase of risk avoids the liability of the insurer ds a question of law for the court. Peet vs. Dakota t'. & M. Ins. Co. (Supreme Court of South Dakota), 47 N. AV. Rep., 532. PROOFS OF LOSS. 205 CONDITIONS OF POLICY AS TO I'ROOF OF LOSS.— Fail- ure to fui;uish proofs of loss within sixty days after a rtie, as re- iliiired by a policy of insm-auce, wiU. not forfeit the right of an as- jsured to recover on the policy in the absence of a provision making siu-h failure a cause of forfeiture, even though the policy contained a stipulation that no action could be maintained on it until after full compliance ■n'ith all its requirements. Rynalski vs. Insurance Co. of State of Pennsj^lvania (Supreme Court of Michigan), 55 N. W. Rep.. Osi. MAKING PROOF OF LOSS.— Where a fire policy is Issued to a husband ou a building constituting his homestead, and be- fore any loss occurs he abandons his wife, she and a married woman, to whom the loss is made payable, and her husband, may make proof of loss, though the policy provides that if it is made payable to a third party, or held as collateral security, proofs of loss shall be made by the party originally insured. TTarren vs. Springfield F. ..V- M. Ins. Co. (Ct. Civ. App. Tex.). So Southwestern Reporter, 810. WHAT IS NOT AN ESTOPPEL TO DEFENSE. -The fact that an adjuster for a cooipany. after the refusal of an offer of settlement for a loss, told the insured to go on and make out proofs of loss, and afterwards in writing called attention to a formal defect in the proofs, which was remedied, will not estop the company to defend against an action for the loss, on the gi-ound of the Invalidity of the policy. _pji-eedman vs. Providence Washington Ins. Co iSup. Ct. Penna.). 34 Atlantic Reporter, 73i>. PROOFS OF L<>SS.— Notice of loss under a fire policy, sent Ijy a local agent of the company on information furnished by the insured, is sufficient. Where the company, after thirty days, within which the policy required that the proofs of loss should be made, sent the in-sured a blank form and receivfl the proofs therein without objection, proof of loss within thirty days is waived. Proof of loss under a fire policy may be waived by parol, though the policy requires the waiver to be in writing. Burlington In-;. Co. vs. Lowery (Supreme Ct. Ark.), 32 S. W. Bep., 3i4. COMPLIANCE WITH TERMS OF INSURANCE POLICY.- Where a policy of fire insurance provides that no claims for loss 'Jhall be payable until 60 days after the first meeting of the di- rectors held after filing proofs of loss, a complaint thereon which states that plaintiff is ignorant when such meeting was held; that defendant absolutely refuses to disclose it to him; that proofs of loss were furnished .Inly 17, l.SSO, when the amount was fullv adjusted, and that the sum became payable September li. l.s.s;"> sufflcientlv shows that (■•<) days have elapsed, when con- nected with general allegations of full performance by plaintiff. \lthou°-h the policy set forth in the complaint contains a pro- vision that it shall "be void if the premises become vacant, it is unnecessary to aUege that they did not become vacant, as this is matter of defense only. Butternut Mfg. Co. vs. Manufacturer's Mutual Fire Ins. Co. ^Supreme Court of Wisconsin), 47 N. W. Rep., .HiW. 2o6 INDICATOR'S DIGEST. PROOF OF LOSS AND PLEADINGS IN TKXAS.— It was no defense to an action on a policy that proofs of loss.-were not furnished within the time specified in the policy, where it was not averred that assured's right of recovery was forfeited by his failure to furnish them within the prescribed time. Cont. Ins. Co. vs. Chase (Supreme Ct., Tex.), 34 S. W. Re- porter, 93. STATEMENTS IN PROOF OF LOSS MAY BE EX- PLAINED. — The fact that, in answering a question upon a printed blank for making proof of loss, a party stated that the building was owned in fee simple, and was the homestead of himself and wife, does not constitute an attempted fraud avoid- ing the policy. Carey vs. Home Ins. Co. (Sup. Ct. la.), 60 N. W. Reporter, 920. SUFFICIEiNCY OP PROOFS AND EVIDENCE.— A condition in a policy requiring immediate notice of loss is complied with where the insured, who was absent at the time of the fire, on the day following notified the agents of the company, who im- mediately telegraphed the information to it. And a court is authorized to conclude that proofs of loss have been furnished, on the testimony of the insured that he swore to such proofs under the directions of the agents, and that they were delivered within the required time to such agents, one of the latter merely testifying that he did not recollect having received them. Oakland Home Ins. Co. vs. Davis (Ct. Civ. App., Tex.), 33 S. W. Reporter, 587. DELIVERY OF PROOFS OF LOSS TO ACJENT OF COM- PANY,— The fact that the local agents of a company ai-e not au- thorized to reeei-\-c proofs of loss by their commissions will not prevent a delivery of proofs to them being delivery to the com- pany, where the policy does not notify the holder of the limited power of the agents, and it appears that they had appai-ent au- thority by custom to receive them. Haidntn vs. Mill. Mech. Ins. Co. (Supreme .Tudiclal Ct. .Mass.l. 41 N. E. Reporter, 6.58. CERTIFICATE OF NEAREST NOTARY.— A fire insurauce policy provided that the insured should, if required, furnish the certificate of a notary living nearest the place of iir:>, as to the cu-cumstances of the fire. The insured voluntarily sent with his proofs of loss the certificate of a notary who transacted business about a block and a half from the fire. Three Tiolaries lived nearer, but the insured did not know it, as they did not have out signs at the houses where they lived, or crausact busiue>een made sooner, the question of reasonable time was for the jury. Carey vs. Farmers' & ilerchants' Ins. Co. (Supreme Court of Oregon), 40 Pac. Rep., 91. WHEN OBJECTIONS TO PROOF OF LOSS ARE WAIVED. — Objections to proof of loss are waived, where the proofs fur- nished are retained without objection, and refusal of payment is not based thereon. I Vergeront vs. (iernian Ins. Co. (Supreme Court o-I Wis.i, 20 X. W. Rep.. 1roofs of loss were not made as requn-ed by the policy. Roberts vs. Northwestern Nat. Ins. Co. (Supreme Court of Wisconsin), 02 N. W. Rep., 1048. AUTHORITY OF AGENT TO WAIVE PROOFS OF LOSS.— A waiver of proofs of loss by an agent of a foreign fire insur- ance company, who has authority to solicit policies, being sup- plied with blank forms having the lithograph signatures of the officers of the company thereon, and collect premiums, will bind the company, though he may not have had actual power to co so. Syndicate Ins. Co. vs. Catchings (Supreme Court of Ala- bama), 16 So. Rep., 46. AVAIVER OF PROOF OF LOSS— NOTICE OF CANCELLA- TION. — The fact that the amount of loss under an insurance policy has not been submitted to arbitration, as requli'ed by the policy, before suit, cannot avail as a defense, where the insured, in seeking an adjustment of the loss after it occurred, had been met by a denial of any liability whatever, and the assertion that tlie policy was not in force; and neither can a failure to give notice in writing, where the insured, in commimicating person- ally with the agent, immediately after the fire, is met again in like manner. A notice to the holder of a policy, declaring the effect of the holder's failure to pay the premium agreed, and di- recting attention merely to the cancellation conditions of the policy, is not such a notice of cancellation as is demanded by the policy. Savage vs. Phenix Ins. Co. of Brooklyn I'Supreme Court of Montana), 31 Pac. Rep.. 60. PROOFS OF LOSS JIFST BE FURNISHED OR WAIVED. — In an action upon a policy of insurance, wherein it is provided that in ease of loss the insured shall within Oo days render to the company an account of the loss, signed and sworn to. the in- sured cannot recover without showing either a waiver thereof oi- that proof of loss in substantial compliance with the terms of the policy had been rendered before the commencement of the suit In such a ease it is error for the court, in the absence of any proof of waiver, to refuse to instruct the jur.v "that, unless the plaintiff made proof of loss, in substantial compliance with the terms of the policy, before the commencement of the suit, he cannot recover." The evidence in a cause must be confined to the issues as formed by the pleadings. A waiver cannot be proved unless it is within the Issues made by the pleadings. Western Home Ins. Co. vs. Throp (Supreme Court of Kan- sas), 2.S Pac. Rep.. Oni. .212 INDICATOR'S DIGEST. WAn'ER OF PROOFS OF LOSS.— Where the officers aud agents of an insurance company take the position from the start that there is no liability under the policy on the ground that the Are was set by inaured, no proofs of loss need be made or tendered by insured before suit on the policy. Coryeon vs. Providence-Washington Ins. Co. (Supreme Court •of Michigan), Jan. 17, 1890, 44 N. W. Rep. 430. WAIVER OP PROOFS OF LOSS.— A condition In a fire policy that proof of loss be furnished the insurer within a cer- tain time is waived where, within that time, the agent and ad- juster of the company requested and obtained from insured a written statement under oath in relation to the fire, etc., and a list of the articles destroyed, with an estimate of the value of each, and then told the insured that there was nothing more for him to do. Carey vs. Allemania Fire Ins. Oo. (Supreme Ct. Penna), 33 Atlantic Reporter, 185. WHAT CONSTITUTES A WAIVER OF PROOFS OF LOSS. — If an insm-ance company, with knowledge of facts which render & policy voidable by them, deliberately claim and exercise a right which they can claim and exercise only by virtue of such policy, they thereby waive the right to avoid on account oif such facts. Where the policy confers upon the company the right to require the assured to submit to an examination under oath, and the company by virtue of such provision requires and makes such ex- amination, they cannot afterwards claim a forfeiture of the rights ot the assured under the policy on the ground that, up to the time of such examination, the assured had not given notice of loss or furnished proof of the same. Where the answer of the company alleges that they required and caused such examination to be had, and the evidence shows that at such examination a person ap- peared, claiming to represent the company, and conducted such examination apparently for them, and afterwards, in reply to a letter from the assured to the company in regard to the written statement taken on such examination, the same person writes an answer, purporting to be that of the company, written on one of the company's letter heads on which such pefson is advertised as the "adjuster" of the company, the jury may properly find that such person was the agent of the company. Evidence of such facts is competent and admissible upon the question of agency. Such evidence being before the jury, it is competent to shOAV that such person undertook that the statement so made on such ex- amination should be accepted as proof of loss, not as originally binding on the company, "but as the first step towards showing aii estoppel against the company, to be complemented by other neces- •sary steps or elements. If the company, on being informed that .such person, so assuming to act as agent, had represented and undertaken that sueh statement should be accepted as proof of loss, and that the assured was relying upon such understanding, did not notify the assured to the contrary, but encouraged the as- sured to continue in such belief, they were estopped from after- wards refusing to treat such statement as proof of loss. An objec- tion to the sufficiency of proof of loss on a specific ground is a waiver of all other grounds. Bnos vs. St. Paul Fire & Marine Ins. Co. (Supreme Court of South Dakota), 57 N. W. Rep., 919. PROOFS OF LOSS. 215 WAIVER OF COXDITION FOR PROOFS OF LOSS.— A denial of liability by an insurance company before the expiration of the time for making proofs of loss is a waiver of the condition requiring such proofs. German Ine. Oo. vs. i^-ederick (Circuit Court of Appeals, Eighth Circuit). 5S Fed. Rep.. 144. ■mHEX PROOFS OF LOSS ARE XOT WAIVED.— An at- tempt to show a waiver of proof of loss by a denial of liability by the company's special agent is without force when, subsequently to the alleged denial, assured and the com^pany signed an agi'ee- ment that the latter "will not be held to have waived any of its terms, as expressed in its contract, by any act of its special agent." Ins. Co. of North America vs. Caruthers (Supreme Court of Misaisaippi). 16 So. Rep., 911. WAIVER OF PROOFS OF LOSS.— Upon assm-ed's property being wholly destroj'ed, he notified the company, and its secre- tary, genei-Eil manager, and adjuster at once arranged for arbi- tration as to the amount of loss, ami promised to pay upon the making of an award. After the award was made, the company delayed payment on various grounds, but nothing was ever eaid as to assured's furnishing proofs of loss. The Supreme Court of Fennsylrania held that such proofs were waived. McGonigle vs. Susquehanna Mut. Fire Ins. Co., 31 At. Rep., S6S. WAIVER OF PROOFS OF LOSS.— The provisions of an insurance policy requiring proofs of loss to be furnished the insurer within a specified time, and in a particular manner, is waived by the insurer, if, with a knowledge of the fire, its ad- justing agent goes ujKin the ground, examines into the circum- stances of the fire, takes possession of the books and invoices of the insuretl. and with his help makes an estimate of the amount of the loss. Where the proof of loss submitted to an insurer is unsatisfactory, it should return the same to the insured within a reasonable tame, stating in what respect it is considered defective, and if it falls to do so it will be held to have waived any defect in such proof. Home Fire Ins. Co. (of Omaha^ vs. llammang (Supreme Court of Nebraskal. e,2 X. W. Rep., SS3. WAIVER OF PROOFS OF LOSS BY IXSURAXCE COM- PANY. — ^W^here a policy of fire insurance provides that no loss, shall be payable unless the insured shaU have furnished the com- pany with a written and sworn proof of loss, this may be waived by the subsequent acts of the company. If the company, after loss, refuses to pay it, and places its refusal upon any grounds other than insufficiency of proof of loss, it will be deemed to have waived that defect, and where the adjuster of the company takes, in the form of a memorandum, a statement of the claim made by the insured, and states that he will thereafter send a detailed and formal statement to be signed and sworn to, his failure to make out and forward such proofs for execution, will amount to a waiver by this company. Searle vs. Dwelling House Ins. Co. (Supreme Judicial Court of Massachusetts), 2."; N. E. Rep., 290. 214 INDICATOR'S DIGEST. WAIVER OF PROOFS— Where an agent appointed to adjust a loss under a Are policy testifies that he refused to settle because he had doubts as to the cause of the fire, an instruction that such refusal is a waiver of proofs is proper, although the policy con- tains a clause that such waiver cannot be made except in writing. Mix vs. Royal Ins. Co. (Supreme Cf. Penn.), 32 Atlantic Rep., 460. PROPERTY. PROPERTY COVERED BY INSURANCE POLICY.— An in- surance policy on a frame building and "contents," does not cover property removed from it to a new building on the farm. Benton vs. Farmers' Mutual Fire Insurance Co., of Kent Co. (Supreme Court of Michigan), 60 N. W. Rep., 691. EXAMINATION OF PROPERTY BY INSURANCE AGENT — The examination required to be made by the agent of an insur- ance company by the laws of Minnesota (Sec. 3643, Rev. St.) relates to the physical condition of the property such as an inspection would disclose, and does not relate to the matter of incumbrances. The "change" mentioned in that statute refers to some physical change in the insured property, its use, or its surroundings, and does not relate to a change respecting incum- brances. Webster vs. Dwelling House Ins. Co. (Sup. Ct. Minn.), 65 N. W. Reporter, 546. CANNOT RECOVER FOR EXCEPTED PROPERi'Y.— Where the written part of the policy insures a party's "stook of cloth, casslmers, clothing, trimming and all other articles usu- ally, in a merchant tailor's establishment," and the priurod ])art of the policy provides that "patterns" are not covered by the policy, no recovery can be had for their destruction. .Tohnson vs. Niagara Fire Ins. Co. (Sup. Ct. N. 0.), 24 ,S. E. Reporter, 424. RATIFICATION OF CONVEYANCE OF PROPERTY.- Though a poUcy lias become void by conveyance of insured prop- erty, it becomes valid on the company's giving consent to trans- fer the policy to a remote grantee of the insured, though It merely had knowledge that title had vested in such grantee, and •did not have knowledge of the Irrimediate conveyances; and' it is immaterial that the consent is in terms to the transfer of in- sured's interest in the policy. And, the time for which premium was paid for a policy not having expired when such consent was given, there was sufficient consideration for the consent of the company, though it might have insisted on a forfeiture for the previous transfer. North Brit. & M. Ins. Co. vs. Gunter (Ct. Civ. App. Tex.), 35 Southwestern Reporter, 715. PROPERTY. 215 IXSXRANCE OX EXEMPT PROPERTY.— A provision in a liolicT of insurance, taken out bj- the husband on a homestead, that, in ease of garnishment in consequence of any debt of the insured, any siiit on the policy by him, his representatives or assigns, shall, on application of the company, be stayed until said garnishment suit is disposed of, is void. Traders' Ins. Co. vs. Chase (Court of Ci-iil Appeals of Texas), 31 S. W. Rep., 1103. CHANGES IX COXDITIOX OF IXSCRED PROPERTY,— An insurance company cannot claim exemption for loss on ac- count of increasied risk due to a change in an insured building, when the proof shows that the change was known and approved by the agent of the company, and the company instead of can- celling the policy, had even offered to reduce the premium, as for lessened risk. Tie fact that an applicant for insurance who is askeS merely whether there is a mortgage on ilie property, responds in the negative, without dis^-losing a purchase-money Uen, does not render void the instirance, there being no lack of good faith, and the lien not being material ^o the risk. Phenix Ins. Co vs. Coomes iCourr of Appeals of Kentucky), 20 S. TV. Rep., 900. RIGHTS OF PARTXERS AS TO IXSCRAXCE OX FIRM PROPERTY. — A policy of Insurance upon partnership personal- ity, taken out by the partners in their firm name, is not vitiated by a contract between them, made while the policy was in force and before any loss was sustained, by which one of the partners agreed to sell his interest in the property insiured to the other, reserving the title to such interest until the purchase money should be paid, the loss occurring before payment in full had been made, the stiptilations in the policy bearing upon the sub- ject being that the policy snould be void if there be a mortgage, bill of sale, or other lien upon the property insured, or any part of it, either prior or subsequent to the issuance of the policy, without the fact being endorsed thereon, or if any change takes place in the title or possession of the property, whether by sale, transfer, conveyance, legal process, or judicial decree, or if the policy, before loss be assigned without the consent of the com- pany endorsed thereon, or if the insured is not the sole, abso- lute, and unconditional owner of the property insm-ed. A part- nership has no insurable interest in household, ornamental and kitchen furniture of one of the partners and his wife, or in their wearing apparel. A policy embracing these articles, as well aa property of the firm, is void as to the former owner, though valid as to the latter. Georgia Home Ins. Co. vs. Hall (Supreme Court of Georgia), 21 s. E. Rep., S2S. 2i6 INDICATOR'S DIGEST. REBUILDING. STIPULATION FOR REBUILDING IN TEXAS— A stipula- tion in a fire policy on a building, giving the company option to rebuild, being void in case of total loss, insured need not comply with the further stipulation, in connection with the above, that he should, if required, furnish plans and specifications of the building. Fire Ass'n Phil. vs. Brown (Ct. Civ. App. Tex.), 33 S. W. Rep., 997. RIGHT OF COMPANY TO REPLACE PROPERTY.— A pol- icy provided that the insurance company may either pay the loss or replace the property; that, if it should elect to pay the loss, the amount should not be payable until 60 days after receipt of "due notice, ascertainment, estimate, and eatisfactory proof of loss," including an award by appraisers when appraisal has been re- quired; but that, if it elects to replace the property, it must give notice of its intention within 30 days after receipt of the proof herein required it was held that notice of its Intention to replace the property must be given within 30 days after receipt of proof ol loss, and nrtt within 30 days after service of an award of the arbitrators, where an appraisal was required. McAllister vs. Niagara Fire Ins. Co. (Supreme Court. General Term), 32 N. Y. Sup. Rep., 358. REBUILDING CLAUSE— TEXAS LAW CONSTITUTION- AL.— Under the law of Texas (Sayles' Civ. Ct., Art. 2971), provid- ing that a fire insurance policy in case of a total loss shall be a liquidated demand against the company for the full amount of the policy, except in case of personal property, a clause in a policy on a house allowing the company, if the house is burned, to re- build is void in case of a total loss. This law does not impair the obligation of contracts in the case of foreign companies which voluntarily do business in the state. Nor does this statute deny equal protection of the law, because applicable only to companies Insuring against fire. Phoenix Ins. Co. vs. Levy (Ct. Civ. App. Tex.), 33 S. W. Rep., 992. WAIVER OF RIGHT 1X> REBUILD.— Where a submission to arbitration ae to the amount of a loss expressly states that it is made "without reference to any other question or matter of difference within the terms and conditions of the insurance," it neither waives, the company's right to rebuild instead of paying, as provided for in the policy, nor excludes proof of a previous oral waiver of such right. But where an Insurance company, by its adjuster, on being requested to rebuild a house destroyed by fire, unconditionally refuses to do so, and states that It will pay the amount of loss when the same is determined by arbitration, the com,pany elects to pay the loss, and waives its right to re- build. Piatt vs. Aetna Ins. Co. (Supreme Court of Illinois), 38 N E Rep., 580. RECEIVER. 217 RECEIVER. ACTION BY ATTORNEY-GENERAL TO DISSOLVE IN- SURANCE COMPANY. — Where an insolTent insurance company is dissolved on application of the attorney-general, the court has no po'wer to appoint a receiver to take charge of its efferts "dur- ing the pendency of an appeal by the corporation. State Investment & Ins. Co. vs. Superior Court (Supreme Court of Cal.l, 35 Pac. Rep.. 540. SUIT BY SrCCESSOR OF RECEIVER. -A policy of insur- ance to "E. S. Kearney, receiver for Holladay vs.. Holladay * * * on their one-half interest in the four-story frame building," etc., sufficiently shows the intent to insm'e the receiver as the representative of such interest, and no reformation of the policy ia required to enable his successor in the receivership to sue thereon. Steel vs. Phenix Ins. Co. of Brooklyn (.United States Circuit Court of Appeals), Ninth Circuit, 51 Fed. Rep., 717. WHEN INSURANCE COMPANY CANNOT HAVE RE- CEIVER REMOVED.— The Supreme Court of Wisconsin holds that, whei'e a corporation, having procured a policy of insui-ance, makes an assignment, and thereafter a receiver is appointed, the insurance company, after action on its policy by such receiver, cannot intervene in the original action, and ask that the appoint- ment of the receiver be set aside. Barth. vs. Amer. Ins. Co.. 65 N. W. Reporter, l(Xi5. RIGfHT OF RECEIVER TO ACT ON POLICY.— In an action on a policy of insurance in favor of a partnership, it was alleged that the person suing was receiver of the firm, appointed by order of the court, in a case of several persons against the firm with authority to reduce into his possession by suit or otherwise, all the assets and chooses in action of said firm. The insurance com- pany objected and alle.ged that the person suing had no legal capacity to sue: and that there was a defect of parties suing in the omission of the names of the members of the firm. Held, that the court properly overruled the objection since, if the person suing was receiver, and had authority to sue. he had capacity to sue. and in such event the members of the firm were unnecessarily parties. But wheif it appeared that the record of the case re- ferred to disclosed that the person suing was not appointed re- ceiver, but was, by consent, allowed to continue to manage the affairs of the firm, as he had been doing before the suit, on ac- count of a disagreement between the partners, the action could not be maintained since he was not a receiver, a real party in Interest, or a trustee of an express trust. Boyd vs. Royal Ins. Co.. IG S. E. Rep.. ."SO. 2i8 INDICATOR'S DIGEST. APPOIXTMENT OF RECEIVER CANCELiS EXISTING POLICIES.— Where a mutual insurance company becomes insol- vent, the order of the court appointing a receiver cancels all exist- ing policies, and no assessment can be made for premiums un- earned at the time of insolvency. Davis vs. Shearer. (Supreme Court of Wisconsin), 62 N. W. Rep., 1050. REFORMATION OF CONTRACT. REFORMATION OP IXSURAXCE POLICY FOR MIS- TAKE.— Where an insurance company is requested to issue a policy like a previous one to the same party, and in copying from the prior policy the word "thence" is inadvertently substituted £or "there," equity will reform the policy to express the inten- tion. Providence-Washington Ins. Co. vs. Brummelkamp (Circuit Court, N. D. New York), 58 Fed. Rep., 918. REFORMATION OF INSURANCE CONTRACT.— Evidence that a party applied for insurance in his own name on property to which he alone had title, and that he did not discover until after the loss, that the policy was made payable to his wife, Justified a reformation of the instrument— no motive being shown for him to have Insured in her name. Lancashire Ins. Co. vs. Lucas (Ct. App. Ky.), 34 S. W. Re- porter, 899. MISTAKE MUST HAVE BEEN MUTUAL IN ORDER TO HAVE POLICY REFORMED.- Where a party changed location of property insured, and gave description of new premises as a dwelling house, when it was in fact "over a grocery store," and the agent of the company denied that there was any mistake in the indorsement of change of location, a court of equity will not reform such policy, after loss, no mutual mistake being shown. Dougherty vs. Greenwich Ins. Co. (Ct. Chancery, N. J.), 33 At. Rep., 295. REFORMATION OF POLICY FOR MISTAKE.— A policy of insurance covering one's property generally was by an indorse- ment apportioned aimong several items. When the policy was about to expire he took it to the company's agent, with a request for reneA\al, but there was no request for a different policy, or for -any alteration of the terms of the old one. It was the intention of the parties that the new policy should contain the same pro- visions as those Indorsed on the old policy, and it would be re- formed accordingly. Cochran Cotton Seed Oil Co. vs. Phenix Ins. Co. (Common Pleas of New York City and County, General Term), 28 N. Y. Supp. 45. REIXSURAXCE— REIMO^'AL. 219 REINSURANCE. WHEN CONTRACT OF EEIXSURAXCE TAKES EFFECT. — A reinsurer is uot liable to the insiu'er for a loss which, un- known to either party, occurred before the reinsurance was effected, where the parties contracted with reference to a custom that reinsurance took effect from the time when it was granted. Union Ins. C«. of San Francisco vs. American Fire Ins. Co. of City of New York (Supreme Court of California), 40 Pac. Rep.. 4.51. SERVICE OF NOTICE AFTER REINSURANCE.— Where a policy of insurance is conditioned to be void in case of a change of ownership of the property without the consent of the insurer, and the insurer reinsures the risk covered thereby in another company siibject to all the conditions of the policy, the assured can only be required to look to the original insurer for consent to such a change of ownership. Faneuil Hall Ins. Co. vs. Liverpool & London & . E. Rep.. .".72. 224 INDICATOR'S DIGEST. RENEWAL, CONDITIONS IN INSURANCE AS TO ALTER- ATION OF BUILDING.— Where a policy of fire insurance is re- newed from year to year, the description of the insured property in the original policy must be applied to the condition of the property at the date of the last renewal. Where a building was described in a policy as a sawmill, size 29 by 48 feet, the portion used for a sawmill was first built. Then an addition was built onto the old building, with no partition between the two portions. In the lower story of the new part, and in the upper story of both parts, was placed machinery for a sash and blind manufactory. The size of the whole structure was 43 by 48 feet, but the size of each part did not appear. The insurance was upon the entire . stinicture, and so the new part is not to be regarded as a distinct building, the existence of which breaks the warranty. Garrison vs. Parmer's Mutual Fire Ins. Co. of Salem County (Supreme Court of New Jersey), 28 At. Rep., 6. REPRESENTATION. MISREPRESENTATIONS IN POLICY.— In an action on an Insurance policy to recover for property destroyed by fire, a plea which alleges that the policy was avoided by material misrepre- sentations as to the description of the premises in which the in- sured property was situated, as to the occupancy of such premises, and as to the interest or ownership of the insured, is insufficient, as it should set forth the representations complained of, and wherein they are untrue. Girard Fire Ins. Co. vs. Boulden (Supreme Court of Alabama), 11 So. Rep., 773. EFFECT OP IMMETERIAL MISSSTATEMENT BY IN- SURED.— Where an insurance policy provided that, if the insured misrepresented any material fact concerning the insurance, it should be void, a former policy on the property had been can- celled because the company issuing it was going out of business, and the insured represented that no former insurance has been cancelled. The misrepresentation was not material. The policy also provided that it should be void unless the insured was, at the date of the policy, the owner in fee simple of the land on which the building stood. Before the policy was issued, he gave a deed of the property, as a mortgage, and the policy stated that the property was mortgaged. It was held that he was the owner in fee simple. Hawley vs. Liverpool and London and Globe Ins. Co. (Supreme Court of California), 36 Pac. Rep. 920. REPRESEXTATIOX— RISK. 225 MISREPRESENTATIONS.— Ou an issue as to whether an lusm-ed misiuformeci the company as to the purpose for -which he occupied the insured premises, it is error for a court to charjjre that any concealment by the insiu-ed. in order to affect tlie policy, must have been willful and intentional. The only exception to tills rule is wfhere the assm'ed does not undertake to state the matter charged to be false as a matter of positive knowledge on his part, as if he states it on information and belief. Weigle vs. Cascade F. & M. Ins. Co. (Sup. Ct. Wash.1. 41 Pac. Rep., 53. MISREPRBSENT.\TION— BITILDING ON LEASED LAND. —A fire policy, says the Court of Civil Appeals of Texas, covering a house and personal property, separately valued, is not avoided as to the personal property, ^hough the building is on leased ground, by a clause that the entire policy shall be void if the sub- ject of insurance be a building on ground not owned by the Insured in fee simple. Such policy is, however, void as to the personal property, as well as to the house, for misrepresentations as to the title of the land on -which the house is situated, under a clause stating that it shall be void if the assured has misrepi-esented any material fact concerning '"^this insurance." Home Ins. Co. N. O. vs. Smith, 32 S. W. Reporter, 240. RISK. RISK ASSUMED BY POLICY.— Where, in a suit on a fire policy, no evidence is introduced or oifered to connect the insured with the fraudulent destruction of the property, which was in the sole charge of her agent, and there is no clause or condition in the policy excepting responsibility for such destruction, the loss is within the perils of the policy. Feibelman vs. Manchester Fire Assur. Co. (Sup. Ct., Ala.), 19 So. Reporter, 540. CHANGE MATERIAL TO THE RISK.— A provision in a policy of fire insurance permitting the insured to use "for the purpose of thresliing the crops on the premises a steam thresher with an efficient spark arrester" does not by inference prohibit the use of a steam engine in connection with a macliine for crushing grain. And tlie use of a steam engine on one occasion in connection with a machine for crushing grain is not a change material to the risk within the meaning of a condition requiring notice to be given to the insurers of any change material to the risk. Such a condition refers only to some structm\al alteration in the premises or habitual or permanent alteration in the natiu'e of the work or business carried on. Johnston t s. Dominion Grange Mutual Fire Ins. Co., 23 A. R.. 729. -226 INDICATOR'S DIGEST. SCOPE OF RISK OF FIRE POLICY.— A fire in a chimney, caused by the accidental ignition of soot, or the smoke issuing from such fire, is within the contract of insurance under a policy on goods contained in the building, which purports to cover all loss or damage by fire. Way vs. Aflbington Mut. Fire Ins. Co. (Sup. Jud. Ct. Mass.), 43 Northeastern Reporter, 1032. SALE. SALE OF INSURED PROPERTY.— A sale and conveyance ■of the insured property terminates and avoids a policy which con- tains the following stipulation: If the property insured be sold or transferred, * * * or if this policy shall be assigned be- fore a loss, without the consent of the company, indorsed hereon, * * * then, and in every such case, this policy shall be void. The Supreme Judicial Court of Maine says there is no statute in that state affecting the force of such clauses in policies of insur- -ance. Richmond vs. Phoenix Assur. Co., 33 Atlantic Reporter, 786. SALE OP INSURED PROPERTY.- Where a policy of in- surance provides that it shall be void if the property insured be sold or transferred, or any change take place in the title or pos- session thereof, a contract of sale under which the legal title does not change, has the effect of rendering the policy void if, by the terms of the contract, the loss resulting from destruction of the property without intmrance would fall upon the purchaser and not upon the one insured. Although the legal title may toe in him, his insurable interest has passed, and no one is permitted to hold insurance on property the destruction of which would re- sult in gain to him. Cottingham vs. Fireman's Fund Ins. Co. (Court of Appeals of Kentucky), 14 S. W. Rep., 416. EFFECT OF SALE UPON INSURANCE.— A policy of fire Insurance contained a clause in the following words: "When property insured by this policy, or any part thereof, shall be alienated or incumbered, or in any case of transfer or change of title to the property insured, or any part thereof, or of any inter- est therein, without the consent of the company indorsed hereon * * * this policy shall at once cease to be binding upon this company." Before the loss the assured contracted to sell the house and lot for the consideration of $850, $100 of which was paid down, the balance to be paid in 15 equal installments, each three months thereafter, with interest; the purchaser going into pos- session. None of the installments had become due when the house was totally destroyed by fire. The plaintiff could recover. Grable vs. German Ins. Co. of Freeport (Supreme Court of Nebraska), 49 N. W. Rep., 713. SALE— SERVICE. 227 CONTKACT OV SALE.— Where a contract of sale states that the goods aj-e fully insured by the seller, and by agreement the goods remain in storage until notes given in payment mature, the seller cannot recover of the purchaser insurance charges on the goods after the sale. Kugelman vs. Levy (Common Pleas of N. Y.), 24 N. Y. S., 559. EFFECT OP SALE OP INSURED PROPERTY UNDER FORECLOSURE.— An insiu'ance policy stipulated that it sihooild be void if, with the knowledge of the insured, forecloisfure pro- ceedings were commenced, or if any change took place in the interest, title or possession of property insured, whether by legal process or by voluntai-y act of the insured. After the issu- ing of said policy, a mortgage was given by the insured, with the consent of the insurance company, which was indorsed on the policy, "Loss, if any, payable to il., as his interest may ap- pear." The mortgage was foreclosed, and the insured property sold, and a deed made to JI., the mortgagee. It was held that on such sale the interest of the mortgagor and mortgagee in said policy ceased. McKinney vs. Western Assur. Co., of Toronto, Canada. , empowering the Insurance Commissioner to adopt a printed form, in blank, of a policy of fire insurance, to- gether with such conditions as may be indorsed thereon, which, as near as the same can be made applicable, shall conform to the type and form of policy adopted by another State, is uncon- stitutional, as a delegation of legislative power. Dowling vs. Lancashire Ins. Co. (Sup. Ct. Wis.), 65 N. W. Rep., 738. CONSTRUCTION OF IOWA STATUTE.— Under McClain's Iowa Code section 1734:. providing that no action shall be begun on an insurance policy within 90 days after notice of loss has been given, an action commenced ^vithin such time is premature, though it is brought after the loss has become payable by the terms of the policy. Section 1734, relating to evidence of value and t>roofs of loss "in any suit or action * * * on any policy of Insurance, * * * In case of the loss of any building so insured," provides that "no action shall be begun within 90 days after notice" of loss has beeen given, and that "all the provisions of this chapter shall apply to and govern all contracts and policies of insurance contem- plated by this chapter." The chapter in question relates to fire insurance generally, and section 1734 afpplies to insurance on stock of goods as well as buildings. Wilhelm vs. Des iloines Ins. Co. (Supreme Court of Iowa), 53 N. W. Rep., 233. CONSTITUTIONAL LAW AS TO INSURANCE BUSINESS. —Act, 1870, "to prevent the issue of unauthorized policies of in- surance," which makes it unlawful for any person, partnership, or association, to issue any policy of insurance against fire with- out authority to do so expressly conferred by a charter of incor- poration given according to law, and declares policies issued with- out such authority void, and the issuance thereof a misdemeanor, is not in conflict with Const. U. S. Amend. 14, prohibiting States from making any law which abridges the privileges or immunities of citizens of the United States, and from denying to any person the equal protection of the laws. Nor does such statute conflict with the bill of rights (Const. Pa., §1), which declares that all men are born equally free and independent, and have certain inherent and inalienable rights, among which are those of acquir- ing, ix)ssessing, and protecting property and reputation. The pre- liminary quailiflcation necessary to engage in such business, required by such act, is reasonable, and not burdensome; it merely securing adequate capital at the beginning of business, and State supervision during its continuance. Commonwealth vs. Yrooman (Supreme Court of Pennsyl- vania), 30 .At. Rep., 217. 230 INDICATOR'S DIGEST. STATUTORY REQUIREMENTS AS TO CONDITIONS IN POLICY— The statute provides that a failure to perform any eou- dition of an insurance policy issued after the statute takes effect shall not be valid defense to an action on such policy, unless such condition is printed in type as large or larger than that known as "long primer," or is written with ,pen and Ink in or on the policy. SXich statute is not in conflict with any provision of the constitu- tion of the United States or of the State of Virginia, and is valid. Dupuy vs. Delaware Ins. Co. (Circuit Court, W. D. Virginia), 63 Fed. Rep., 881. BREACH OF CONDITIONS BY CONVEYANCE TO SE- CURE DEBT.— A conveyance of real estate by a debtor to a cred- itor, under the statute, is an alienation of the property, operates to pass the title to the premises conveyed, and is not a mere Incumbrance upon it. Hence, where a policy of insurance cover- ing a building on the premises is issued, containing a condition that the 'policy should be void "if the property should be sold, or the title or possession of the property, or any part of it, trans- ferred or changed, whether by legal process, judicial decree, con- veyance or otherwise;" and where, pending such insurance, the holder of the policy thus conveys the property insured — the policy is thereby rendered void, and in case of -loss the assured cannot maintain an action against the insurer. Phoenix Ins. Co. of Hartford, Conn., vs. Asberry. (Supreme Ootirt of Georgia), 22 S. E. Rep., 717. STATUTORY CONDITIONS — VARIATION — UNREASON- ABLENESS—NOTICE OF VACANCY— MATERIALITY— CON- STRUCTION OF CONDITION — AGREEMENT BETWEEN MORTGAGEE AND INSURANCE COMPANY — SUBROGA- TION. — The defendants insured seven houses, described In the policy as "a two-story frame, rough-cast, felt-roofed block, 128x78 feet, containing seven dwellings, six of which are occupied by tenants, and one by assured." In the application the question as to how many tenants was answered "six tenants and applicant," but the defendant's agent was informed, and he advised them that "the largest house of the lot the applicant vnll occupy him- self." A variation of the statutory conditions was printed on the policy in these words: "This policy will not cover vacant or un- occupied buildings (unless insured as such), and if the premises shall become vacant or unoccupied . . . this policy shall cease and be void unless the company shall by endorsement . . . allow the insurance to become continued." Held: That the de- fendants could not escape liability upon the ground that the actual facts were not before them at the time of the application, nor by their variation of the statutory conditions that the policy would not cover vacant or unoccupied houses. Held, also, that the variation as to the premises becoming vacant or unoccupied in a case like this, where the houses were of a class likely to be occupied by monthly tenants or by tenants for short periods, where the moving out of one tenant and leaving the tenement vacant one day. whether the insured was aware of It or not, might avoid the policy, was unreasonable, and the rea- sonableness of the variation was to be tested with relation to the circumstances at the time the policy was Issued, and not In the light of those existing at the time at which the condition was sought to be applied. STATUTE— SUBROGATION. 2ji Semble, when an attempted variation of a statutory couditiou has been held for anj' reason not binding, the other conditions must then be read as if the attempted variation was not in the policy. Held, also, that the fact that three or four of the houses having been vacant to the knowledge of the plaintiff, for some months before the fire, was under a statutory condition requiring any change material to the risk to be made known to the in- surers, a change material to the risk, and the risk was inci'eased by it, and the failure to notify the defendants voided the policy "as to the part affected," which in this case was the whole block. Held, also, that the word "risk" in the statutory condition had no reference to matters relating to title. Held, also, that the defendants having under an agreement paid the mortgagees of the insured property and taken an assign- ment of the mortgage, conld not hold it against the mortgagor, the plaintiff, even though they could show that he never had any claim against them, and that thei-e is no authority for holding that the effect of the agreement between the mortgagees and the defendants, limited to the extent of the mortgagees' interest, was to do away, as between the plaintiff and the defendants, with the conditions upon which the policy was issued. McKay vs. Norwich Union Ins. Co., 32 C. L. J., 195. SUBROGATTOlSr. SUBEOGATIOX TO RIGHTS OF SCEETY.— A debtor who takes out a policy of insurance, payable to persons liable as his surety, upon property on t\ hich he has given them a lien for theu- protection, is. upon payment of the debt, subrogated to the rights of the sureties in the policy. Phoenix Assur. Co. vs. Allison. (Supreme Coiurt of Texasi, 30 S. W. Rep., 547. RECOVERY OF SfBROGATED CLAIM.— Where an insur- ance company on settling a loss is subrogated to a portion of a claim of its insured against one thi-ough whose negligence th.j loss was caused, such insurance company cannot bring an action to recover only its portion of such claim. Continental Ins. Co. vs. H. M. Loud & Sons Lumber Co. (Su- preme Court of Michigan^ 53 X. "SV. Rep., 39'>. SUBROGATION OF INSURER TO RIGHTS OF INSURED. —Under the statute directing, through its etandai-d form of in- sm-ance policy, the subrogation of the insurer to the rights of the insured against the party primarily responsible for the loss, such subrogation is a legal right, which must prevail unless a stronger equity be shown against it; and. where the insm-ed recovers a judgment against such party, the insurer is subrogated to his rights in the policy. Stonghton vs. Manufacturers' Natural Gas Co. iSuprcnif Court of Penn.i. .Ut At. Rep.. KkH. 232 INDICATOR'S DIGEST. SUBROGATION TO RIGHTS OF INSURED.— Where in- surer! property was destroyea through the negligence of a third person, and the insurer paid the loss, the action against such per- son for damages for causing the fire was properly brought at law by the insurer in the name of the insured. St. Louis, A. & T. Ry. Go., vs. Fire Ass'n of Philadelphia (Su- preme Court of Arkansas), ;.',(> At. Rep., 3.j(l. AN INSURjANOE COMPANY, on payment of insurance on propei-ty destroyed by fire while in transit, the Court of Ciyil Appeals of Texas holds, is subrogated to the rights of the owner of the property against the carrier for the loss. 'Houston Direct Nav. Co. vs. Insurance Co. of North America, 31 iS. W. Rep., 560. THE PRINCIPLE OF SUBROGATION IN INSURANCE.— When an insurance company pays to the assured the amount of a loss of the property Insured, it is subrogated, in a corresponding amount, to the assured's right of action against any other person responsible for the loss. This right of the insurer against such other person is derivoolicy requiring the assured to have the unconditional and sole ownership of the property is not violated where the assured has purchased the property at a judicial sale (which is afterwards aflirmed), and the insurer knows such to be the case when the policy is assigned to the in- sured. Morotock Ins. Co. vs. Pankey (Supreme Court of Appeals of Virginia), 21 S. E. Rep., 487. ■WHAT CONSTITUTES A CHANGE IN INTEREST IN PROPERTY. — A policy of insurance containing a provision that if any change takes place in the title, interest, or possession of the property, by sale, traosfer, or conveyance, without the consent of the insurer, the policy shall become void, is not invalidated by the making of a mortgage. The words "title" or "possession" as here used, mean an actual change in law and equity, and the word "interest" means a change in the insurable interest of the owner of the property, neither of which is affected by the e.^ecu- tion of a mortgage. Sun Fire Office of London vs. Clark (Supreme Ct, O.), 42 N. E. Reporter, 248. THE SUPREME COURT OF APPEALS OP WEST VIR- GINIA HOLDS, That where a policy has a clause which provides that, unless otherwise provided by agreement, etc., it shall be void if any change other than by death of the insured take place in the interest, title, oi^ possession of the subject of insurance (except change of occupants without increase of hazard), whether by judgment, legal process, or by the voluntary act of the insured or otherwise, that a deed of conveyance made by the insured during the policy, and before the loss, but i "valid by reason of the grantor's mental incompetency to make such deed, was not 6uch a change or transfer of title as would forfeit tho policy. Gerling vs. Agricultural Ins. Co., 20 S. E. Rep., 691. CONDITION IN POLICY— CHANGE OP TITLE IN PROP- ERTY INSURED— CHATTEL MORTGAGE.— A policy of insur- ance against fire provided that in the event of any sale, transfer or change of title in the property insured the liability of the com- pany should thenceforth cease; and that the jiolicy should not be assignable without the consent of the company endorsed thereon, and all encumbrances effected by the insured must be notified within fifteen days therefrom. Held, that giving a chat- tel mortgage on the property insured was not a sale or transfer within the meaning of this condition, but it was a "change of title" which avoided the policy. Also, that it was an encumbrance even if the condition meant an encumbrance on the policy. Citizens' Ins. Co. of Canadn vs. Salterio, 23 S. C. R., 155. TITLE. • 24r WHAT IS NOT A CHANGE OF IXXEREST.— Where in- sured liad agreed to exchange the property iDSured for certain lands, the exchange to be effected not later than a given date, and the agreement was never executed, there was no change of interest or possession, within tlie meaning of a provision invalidat- ing the policy "if any change take place in the interest, title or possession of the subject of insurance." Erb vs. German-American Ins. Co. (.Supreme Ct. la.). 67 Northwestern Reporter. cS4. COXDITIC>NS OF POLICY AS TO BI'lLDING OX LEASED GKOUXD. — A lire insurance policy covering a building, and aJsa separately valued artiiles of machinery and personal property in and about it, is avoided only as to the building which was situ- ated on leitsed .irrottnd. and not as to the other property, by a clause that the "entire policy shall be void if the subject of insur- ance lie a baihling on ground not ownel by the insured in fee simple." Hiberuia Ins. C;i. vs. Bills iStipreme Cotu-t of Tcxast. ll'.l S. W. Rep.. lltOo. HLSBAXlt SHOULD XOT IXSURE FOR WIFE IX' OWN NAME. — Under an insurance policy providing that the entire pol- icy shall be void if the interest of the insured be not truly stated therein where one instires property in his own name without in- forming the company that it belonged to his wife, neither he nor she can recover for a loss, there being no case for reformation of the policy for fraud, accident or mistake. Diffentiaugh vs. Union Fire Ins. Co. (.Supreme Court of Penn.i. 24 At. Rep., 74.".. FIRE INSUR A XCE— CHANGE OF POSSESSIOX,— Where a policy of insiu:ance is issued to a firm on its stock of goods, a dis- soltition of the firm, under an agreement whereby one partner re- mains in possession of the entire stock and gives his notes for the interest of the retiring partner, the latter retaining the right to see that such stcck is kept up to its present value till the debt is paid, is a breach of a condition against change of possession of the insured property. Jones vs. Phoenix Ins. Co. (.Supreme Ct. la.), 66 X. W. Re- porter, 169. COXDITIOX.-^ OF POLICY AS TO CHAXtlE OF TITLE.— Where the assiu'ed enters into an executory coun'act for the sale of the insureil premiso. and immediately informs tlie iusurance a;:ent as to such contract, and requests him to make the neces>.u y indorsement to avoid a forfeiture of the policy, a mistake of the airent in making the indorsement will not avoid tlie insurance. ,>^uch a couti-ai r followed by a delivery of posscssinn to the piu'- chasers. i^ .\ chauiic of title, within a condition of the policy that it shall lie void in case of such change, unless otherwise provided by agreement indorsed upon it. LaiM vs. Aetna Ins. Co. i Supreme Court of X. Y.t. --i X. Y. S\ipp., .'N4. ^42 INDICATOR'S DIGEST. TORISTADO. TORNADO FOLLOWED BY FIEE.— An insurance policy ex- empted the company from liability for fire caused by a hurricane, and provided that if the Insured building shall fall, except the result of a fire, the insurance shall cease. The burden of proof is on the assured to show that the fire was not caused by hurri- cane, or by the falling of the building Pelican Fire Ins. Co. vs. Troy Co.-Op. Ass'n (Supreme Oourt ■of Texas), 13 S. W. Rep., 980. TOTAL LOSS. MUNICIPAL CONDEMNATION OF BUILDING CREATES -A TOTAL LOSS. — When the building insured is so injured by fire as to be made insecure and a menace to- life, is condemned by the proper authorities, and any attempt to repair it is prohiibited by them, the insured may claim a total losis, although the building when Insured was not sound. In' such case the indemniity of the insured is not useless repairs, but the value of the building. Such prohibition of repalirs is within the police powers of a munici- pality. Monteleone vs. Royal Ins. Co., L. & L. (Supreme Ct. La.), 18 So. Reporter, 472. TOTAL LOSS UNDER TEXAS STATUTE.— Under the laws of Texas, making the amount of an insurance policy a liquidated demand against the company in case of the total loss of the property, where a petition on the policy alleged a total loss, a claim in the answer of the right to repair under its terms is not a defense, and it should be stricken out. In case of the total loss of a building, an insurer cannot offset against the amount due on its policy the value of the materials remaining undestroyed, in the absence of allegation and proof that the insured has converted such materials to his own use. The total loss, under such statute, does not mean the entire destruction of its materials, but that the building has lost its specific character and identity as a house; and in an action to recover for a total loss, evidence that by the use of the materials remaining, the building could be reconstructed for less than the amount of the policy, to authorize the company to rebuild, is inad- missible. Royal Ins. Co. vs. Mclntyre (Ct. Civ. App., Tex.), ,S4 S W Reporter, 669. TOTAL LOSS— USE. 243 TOTAL DESTRUCTION OF BUILDING.— AVhere the roof and interior woodwork of a building are destroyed by fire, leav- ing the walls standing, though somewhat damaged, it is a ques- tion for the jtn-y whether there was a "'total destruction" of the building, -within the meaning of a policy issued to the lessee of such building. Corbett vs. Spring Garden Ins. Go. (Supreme Court, General Term. First Department). 32 N. Y. Supp. Rep., 1059. EFFECT OF TOTAL LOSS UNDER TEXAS STATUTES.— Since by the Revised Statutes of Texas, Art. 2971, an insurance policy is a liquidated demand against the company for the amount of the policy, in case of a total loss, it was proper, says the Court of Civil Appeals of that State, where total loss was shown, to refuse to charge the jury with reference to an offer by the company to repair the property, though the policy pro- vided that this might be done. Commercial Union Assur. Co. vs. Mayer, 29 S. W. Rep., 93. UNAUTHORIZED INSURANCE. UNAUTHORIZED CONTRACT.— An insurance company is not liable for loss on a building burned before the application for insurance was mailed to it, merely because the local agent, when application was made, told the party that his instu-ance would begin at that time; he having no actual or ostensible authority to make a contract, and the building being one of a class which the company did not insure; and it makes no difference that art the time of the application the special agent of the company, who had no authority to enter into contracts, was present and ap- proved of it. Obrien vs. New Zealand Ins. Co. (Supreme Ct. Cal.), 41 Pac. Rep., 20s. USE. WHEN CHANGE OF USE AYILL NOT AVOID POLICY.— A clause in a policy providing for the insurance of premises for a certain period, "while occupied" for saddlery purposes, does not make a change of occupation avoid the policy— where it con- tains another provision avoiding it if the risk be increased by a change of the occupation. East Tex. Fire Ins. Co. vs. Kempner (Ct. Civ, App., Tex.), 34 S. W. Reporter, 393. 244 INDICATOR'S DIGEST. VACANT. "WHAT IS NOT A VACANCY OF BUILDING.— A vacancy of a building during the time necessary for tlie outgoing tenant to remove his goods, and the incoming tenant to place his goods in the building, is not within the meaning of a provision of a policy avoiding it in case it becomes vacant. East Tex. Fire Ins. Co. vs. Kempner (Ct. Civ. App., Tex.), 34 S. W. Reporter, 393. BURNING OF VACANT HOUSE— VACANCY.— The owners of a house, which was their residence, had been away on a hunt- ing trip for some days when it was burned. The husband re- turned to look after it every day or so, and left it in charge of a servant, who lived two or three hundred yards distant, but slept in the house at night, except the one on which it was burned. The court held that the house had been vacant, within the terms of the policy. Lester vs. Miss. Home Ins. Co. (Supreme Ct. Miss.), 19 So. Reporter, 99. VAOANOY OF BUILDINGS.— Where a vacancy permit was attached to a policy on buildings owned by two persons, and the company instructed its local agent to cancel such permit at its ex- piration, and this was shown to one of the owners the company was not liable for a loss after the permit expired, though the local agents had consented to temporarily extend the permit. The company in accepting the premium from its agents after the loss, but having no knowledge of the vacancy at the time of the loBs or the extension of the permit, did not waive compliance with the stipulation that it would not he liable if the premises were vacant. McLearv vs.' Orient Ins. Co. (CL Civ. App. Tex.), 32 S. W. Rep., .J.S.S. VACANT HOUSE.— A tenant of a dwelUng house placed all of her furniture in one room, and went on a visit for six weeks, with intention to occupy the house on her returuu The furniture was placed in one room so that the other rooms might be pa- pered and painted during her absence. She left the key with a friend, with directions to visit the house daily, and see that the doors were locked, and the window shutters closed. The Court held that the house was not vacant, within the meaning of a condition in the policy on the furniture avoiding it if the build- ing became vacant. But such house was unoccupied within the meaning of a policy insuring the furniture contained and while contained in the building "occupied and to be occupied as a dwelling house," and providing that the policy should be void if the building should become "vacant or unoccupied, and so remain for ten days." And the effect of allowing it to remain so for such time rendered the policy void. Huber vs. Manchester Fire Assur. Co. (Sup. Ct. 4th Dent 1 36 N. Y. S. Reporter, S73. \'ACANT. 245 VACANCY OF BUILDING.— 'Wliere a policy pvovicies tliat it shall be void "if the Iniilding be or become vacant or unoccu- pied, or not in use." the forfeiture and avoidance do not depend upon the knowledge of the assured of the fact of the vacancy. The question of whether u house is vacant, within the meaning of a policy, is a question for the court, and he may direct a ver- dict for the company. Schuermaun vs. Dwellina' House Ins. Co. (.Suprenie Ct 111.), ■iS Northeastern Reporter, 1093. VACATING- PREMISES— STirrLATION IN POLICY— Where the premises were occupied by tenants of insured at the time the risk was written, and the policy so specified, a stipula- tion in the policy making it void in case the premises became vacant and unoccupied without the consent of the company. Held, not violated, so as to defeat the recovery for the loss, by the fact that the evening beifore the fire, without the knowledge or con- sent of the insured, such tenants moved out of the building. German Ins. Co. of Freeport vs. Davis (Nebraska Supreme Court), 59 N. W. Rep., 69S. FIRE INStTRANCE— VACANT AND UNOCCIPPIE'D PREM- ISES. — A dwelling house in which the insured lived at the time the policy on it was issued, on the removal of his family from it to a house near by, becomes "vacant and unoccupied" vyithin the meaning of such words in a policy, avoiding it in such an event, though the house is still slept in occasionally by the em- ployes of the insured, and visited by his wife daily for the pur- pose of getting provisions stored in it. Agi-. Ins. Co. vs. Hamilton (Ct. App. Md.), 33 At. Rep., 429. TEMPORARY VACATION OF BUILDING.— If the building insured is an ice manufactory, and the insurance company knows that continuous operation or continuous personal occupancy is not practicable, and it is not contemplated by the insured and in- surer, the policy will not be avoided by a vacancy or cessation of operation for 10 days, although the policy declares that this shall render the polic.v void. Morotock Ins. Co. vs. Pankey. (Supreme Court of .\ppeals of Virginia), 21 S. E. Rep. 4'^T. WHAT CONSTITUTES VACANCY OF HOUSE.— Where a fire insurance policy contains a warranty that the insured is the unconditional owner of the property insured, and provides that a breach of warranty avoids the policy, the insurance company iwill not escape liability because the assured has a contract for a deed of the property, if the company was informed as to the title when the insurance was applied for, but issued the policy with such war- ranty and accepted the premium thereon. In an action on a fire Insurance policy, it appeared that the insured, at the time of the fire, had been absent several months. His family had been away eight days on a visit. The furniture was left in tlie house and rel- atives went there daily. There was no intent to abandon the house as a home. The house was not vacant, nor unoccupied, within the policy, which provided that the insured property should not become vacant nor unoccupied, or remain so for Ave consecu- tive days. McMuiTay vs. Capital Ins. Co. (Supreme Court of Iowa). 54 N. W. Rep., .3.54." 246 INDICATOR'S DIGEST. VACANT AND UNOCCXJPIED HOUSE— A house, which tor several months before loss, contained nothing but a blanket or two, and was merely visited twice a day by an employe of the owner, was vacant and unoccupied, within the provision of a policy avoiding the insurance if the house should be vacant and unoccupied toe ten dayy. Stapleton vs. Greenwich Ins. Co. (City Ct. N. Y.) 38 N. i . .5. Rep. 973. FIRE INSXJiRANOE— VACANT PREMISES— In an action on a fire policy containing a clause that it should be void if the house became vacant without a permit from an agent indorsed on the policy, it appeared that a vacancy permit for thirty days was made out by the agent, but not delivered to the insured, and there was no evidence of a permit ttiat the house should remain vacant longer than such thirty days. Held, that plaintiff could not recover where it was shown that the fire occurred after such thirty days. Maness vs. Sun Ins. Co. (Court of Civil Appeals of Texas), 32 S. W. Rep., 326. COOSISTRUCTION OF VACANCY CLAUSE.— A statement in a fire insurance policy that the property insured was occupied by a tenant at the date of the contract amounted to a warranty that It was so occupied at that time, but not that it would continue to be so occupied. A provision of a policy warranted that the building would continue to be occupied, except for a space not longer than ten days, unless the company gave its consent to a longer period of vacancy. If the building was not occupied at the date of the policy, but afterwards became occupied, the continuing warranty against vacancy would attach. Evans vs. Queen Ins. Co. (Appellate Court of Indiana), 31 N. E. Rep., 843. TA'HBRE THE DEFENSE OF AX INSURANCE COMPANY was that the insured property, at the time of issuing the policy, was vacant and at the date of the fire had been vacant and un- occupied for ten days. The insured admitted the facts of the defense, but pleaded in avoidance that the insurer issued the policy with actual knowledge of the fact that the insured prop- erty was then vacant and unoccupied. The Supreme Court of Nebraska held: (1) That the provision in the policy rendering it void in case the Insured property was at the date of the policy, or should afterwards become, vacant or unoccupied, was inserted for the benefit of the insurer; (2) That the existence of the va- cancy at the date of the issuance of the policy did not render the policy void, but voidable at the election of the insurer; (3) That, as the insurer issued the policy with actual knowledge of the fact that the insured premises were at the time vacant and unoccupied, it is now estopped from alleging such vacancy as a defense in an action on the policy; (4) That the knowledice of agent of the insurance company that the property insured was vacant at the date of the issuance of the policy was the knowl- edge of the company. Rochester Loan & Banking Co. vs. Liberty Ins Co 62 X W. Rep., 877. \\\CANT. 247 CONDITIONS OF POLICY AS TO VACATING PREMISES. — Wlieu a building insured airainst fire becomes unoccupied, the risk of its desti'uctiou is presumed to be increased. This presump- tion alone, is siutfltient to siisiain the burden imposed upon the insurers, unless it is rebutted by the peculiar condition, construc- tion :uid surrounding circumstances of the building. "White vs. Phoenix Ins. Co. (Supreme Judicial Cotn-t of Maine), •20 At. Rep., 1049. AVAIVER OF CONDITION AS TO VACANT PREMISES.— The fact that fire policy was issued and the premiums accepted, with knowledge that the building was vacant, is not a waiver of the condition rendering the policy void if the building became vacant or unoccupied, and remained so "for ten days." Queen Ins. Co. vs. Chadwick (.Ct. Civ. App. Tex..). 35 S. W. Rep., 2G. ISSUING POLICY ON VACANT HOUSE.— Where an agent issues a fire policy knowing the building is vacant because It has not yet been completed, vacancy of building in case of destruc- tion before completion will not defeat the policy. The assured on receiving the policy, objected to a clause re- quiring the building to be completed within thirty days, and the agent verbally agreed that the assured might take all the time he wanted. The Coxu-t of Appeals of Kentucky held, that this was a proper waiver of the condition. Queen Ins. Co. vs. Kline. 32 s. W. Reporter, 214. INFORMAL NOTICE OF VACANCY.— The fact that an in surance agent was notified by an assm-ed that the insured prem- isses had become vacant and that assured would move in shortly. and said: ''AH right," and that he would fix the policy, do not constitute a waiver of a provision in the policy that it shall be void if the premises become vacant without written consent of the company, where the policy provided that "the use of general terms, or anything less than a distinct, specified agreement * * * condition," and there is no evidence of the agent's power* except that the policy was endorsed, countersigned and delivered by him. Messelbach vs. Sun Fire Office (Com-t of Appeals of New York). 26 N. E. Rep., 34. ISSUING POLICY ON UNOCCUPIED PREMISES.— If an agent of a company, knowing that premises sought to be Insured are unoccupied, issues a policy thereon, using the form containing a clause which declares that the policy shall lieeome void in case the premises be or become vacant and unoceuiiied, and so remain for ten days, and if he fails to strike mit sucli clause, the fault being that of tlie agent, and not of the insined. it operates as a waiver of such conditions on the part of the company, and it will be liable in case of loss. AIsk, if in iiet:.itia- tions between the agent and insured, no time was definitely fixed within which the premises should be occupied, the policy would continue valid until the company or its agent notified the insured that it elected to cancel the policy and refund tlie premium. Milwaukee Mechanics' Ins. Co. vs. Brown (Ct. App.. Ka- 44 Pacific Reporter, 37. 248 INDICATOR'S DIGEST. INSURANCE CLAIM AS TO OCCUPANCV OK BUILDING. —A policy of insurance provided that it sliould be void if tlie prem- ises became vacant or unoccupied witliout the written consent of the company indorsed therein. The tenant occupying the insured building partially moved out the day before the tire, leaving in the building a portion of his furniture. The premises were not vacant or unoccupied within the meaning of the policy. Liverpool & London & Globe Ins. Co. vs. BuckstafC (Supreme Court of .Nebraska), 56 N. W. Rep., 695. OCCUPATION OF PREMISES.— Where a house budlt for dwelling purposes is used by the owner for cooking and general work in connection with an adjoining house where s'uch owner and his family lodge and eat, such house so used is not "vacant and unoccupied" within the meaning of a clause lin a policy wlhich provides that said policy shall become void if the 'house becomes vacant and unoccupied. Dwelling House Ins. Co. vs. Osborn (Ct. App. Kas.), 40 Pac. Refp., 1099. UNOCCUPIED DWELLING.— In an action on a fire policy -containing a provision that the company will not pay any lose •on a dwelling house which has remained unoccupied seven days, where it appeared, without dispute, that the house was unoccu- pied at the time of the fire, and had been so for over seven days continuously, the court should direct a verdict for the insurer. TJiompson vs. Caledonia Fire Ins. Co. (Sup. Ct. Wis.), 66 N. W. Reporter, 801. CONSTRUCTION OF POLICY CONDITIONS, VACANCY, OCCUPANCY. — The temporary absence of the occupant of a build- ing will not render a policy of insurance void, though it provides that it shall be void in case the building becomes vacant. Where a building is occupied and used for purposes prohibited by the policy the fact that the agent who issued the policy knew that the building was so occupied and nsed when the policy was issued and during its continuance will prevent the company from setting up such a breach after a loss has occurred. Forfeitures are not fav- ored in the law and courts will not enforce them, imless they arf obliged to. Springfield F. and M. Ins. Co. vs. MoLimans (SupMme Court of Nebraska), 45 N. W. 'Rep., 171. CONDITION AS TO VACANCY IN POLICY.— Where a fire insurance policy provides that it shall be void if the premises be- come vacant "without immediate notice to the company and con- sent indorsed thereon," "immediate" means "within a reasonable time;" and, after vacancy followed by such notice, the policy re- mains in force until consent is refused by the company. The in- sured requested one wlio placed the insurance to notify the com- pany that the premises were vacant. He had been the agent, and did not notify him that his agency was revoked, but sent a notice to the company, and it at once refused a permit. The property burned the day before the permit was refused. It was harirn- less error to charge that though the agency had terminated, yet, so far as concerned the insm'ed, he 'was still the agent, because she had not been notified of the changed relation. Strunk vs. Firemen's Ins. Co. of Chicago (Supreme Court of Pennsylvania), 28 At. Rep. 779. VACANT. 249 THE SUPREME COUKT OF TEXAS holds tliat a tire insur- ance poKey proyidiug that it shall "at once become null anil void," and the unearned premiums be returned, i- the premises become vacant without consent of the company, is avoided by a vacancy of three days, incident to a chanur of tenants. East Texas l^ire Ins. Co. vs. Kempner, 21 S. W. Rep., 122. WHERE FOrii DWELLIXC HOUSES INSURED WERE BURXED, -the fact that two of them ^\-ere unoccupied, thus vlti- ating the policy as to thi'iu, the Court of Appeals of Kentucky holds, does not prevent recovery for the other two. which were occupied. Speagle vs. Dwellin.a--House Ins. Co., 31 S. W. Rep., 282. COXDITIOXS OF POLICY AS TO OCCUPANCY OP PREMISES. — Where a fire insurance policy provided that, in case a. certain house and farming implements owned by the insured should be d^troyed by fire, the insurance company wx>uld pay his loss, to a certain amount, and that the policy should become void if the building described in the policy be or become vacant or unoccupied, and so remain for ten days. It was held, that the condition as to occupancy was not com- plied with by placing the farming implements in the house after the removal of the tenant from it. Martin vs. Roeheeter German Ins. Go. (Supreme Court, Gen- eral Term, Fifth Dep'mt.), 33 N. Y. S. Rep., 404. THE SUPREME COURT OF NEBRASKA holds that where the premises were occupied by tenants of insured at the time the risk was written, and the policy so specified, a stipulation in the policy making it void in case the premises became vacant and unoccupied without the consent of the company, is not violated, so as to defeat the recovery for loss, by the fact that, the evening before the fire, without the knowledge or consent of the instured, such tenants moved out of the building. German Insurance Company of Freeport vs. Davis. 59 N. W. Rep., iVM. WHAT CONSTITUTES UNOCCUPIED BUIL,DIX-i:4S.— A store building is unoccupied, within a fire policy conditioned to be void if the building remained vacant or unoccupied for 10 days, where more than that time before the fire the tenant's lease had expired, and he had removed all his property except a counter, and nothing else remained in the building except a small quantity of liquor, which the tenant had allowed a person, who had no rights from the owner of the building, to store there. Limbers vs. German Fire Ins. Co. of I'eiiria (Supreme Court of Ia.1. .'>7 N. W. Rep., 020. WHEN SUIT AGAINST COMPANY SHOULD BE DIS- MISSED.— In an action on a fire policy on a building, where a provision avoiding the policy if the building be or become "va- cant or unoccupied" and remains so for ten days, is set up as a defense, and there is evidence that the building had been unoc- cupied for three months, with nothing in it during that time but a blanket, and no evidence to relieve the policy-holder from the effect of the condition, the suit should be dismissed. Stapleton vs. Greenwich Ins. Co. (X. Y. City Ct.), 37 N. Y. S. Reporter, 347. 250 INDICATOR'S DIGEST. A^\LUE. EVIDENCE OF VALUE. — In an action on an insurance pol- icy, the sworn tax list rendered by insured is inadmissible in evidence to contradict tbe insured's testimony as to the value of the property, it being an admission for a special purpose. German Mut. Ins. Co. vs. r^iewedde (Appellate Court of In- diana), 39 N. E. Rep., 534. ACTION ON FIRE INSURANCE POLICY.— In an action on a policy of insurance the evidence showed that, though the insured ewore falsely as to the quantity and value of the goods in making out liis proofs of loss, they exceeded in value the amount of tbe insurance. Error could not be predicated on the instruction that no false swearing in making proof of loss will avoid the policy unless the evidence satisfies the jury that the insured knowingly and willfully swore falsely as to some material fact, and that the burden of proof is on the company to show the willful intent. Phoenix Ins. Co. vs. Summerfleld (Supreme Court of Missis- sippi), 13 So. Rep., 253. VAIiUE OF STOCK OF GOODS OOiVERBD BY INSUR- ANCE.— Where in an action by a fire insurance company to re- cover for the loss of a stock of goods, Instead of producing the ordinary books of account to prove the value of the goods de- stroyed, an inventory made in January previous to July In which the fire occurred with slips to ,show the subsequent changes were put in evidence. Such documents do not incontrovertibly show the amount claimed by the plainti^Ef as loss and damages is correct. Sohlesingen vs. Springfield P. & M. Insurance C!o. (Superior Court of New York City), 9 N. Y. Supp., 727. PROVING VALUE IN IOWA AND CHANGING USE OF INSURED BUILDING.— In ah action in Iowa on a policy of fire insurance on a building, where the person holding same intro- duces evidence as to the value of the building, the insurance com- pany may introduce evidence in rebuttal on the same point, since under Acts 18th Gen. Assem., o. 211, section 3, making the policy sufficient proof of the insurable value of the building, the person holding policy is not otoliged to offer any evidence on that subject in the first instance. Where a policy on insurance contains no express prohibition of a change in the use of the insured build- ing the fact that at the time of the loss the building was "used for a different purpose than that mentioned in the policy does not avoid the policy. The use for the illegal sale of intoxicating liquor of a building insured as a dwelling house cannot be said, as a matter of law, to increase the risk. ilartin vs. Capital Ins. Co. (Supreme Court of Iowa), 52 N. W, R«p., 534. \ALUE. 25' PROOF AS TO YALIK OF PKOFEKTi' DESTROYED.— In an action on a fire insui-ance policy on furniture, the assured and her husband may testify that the furniture •■^yas worth $o(K»." without showinc their knowledge of the value. Thomatston vs. Capital Ins. Co. (Supreme Court of Iowa), 61 X. W. Rep., 943. YALFE OF PROPERTY DESTROYED-On an issue as to the value of the building destroyed, at the date of the fire, where it appeared that it had no market value aside from the land, evi- dence of the cost of the building twenty years before the fire is admissible. Scott vs. Security Fire lus. Co. (Sup. Ct. la.) 60 X. W. Re- porter, 1054. FRAUDFLENT OYERYALUATIOX.— In an action on a valued policy of fii'e insurance, evidence is admissible on the part of the insurer to shovr that the property covered was fraudu- lently overvalued: but the burden of proof of this and other de- fenses is on the insurer, as the party suing need only prove his insuntnce and loss. TYhere such policy is on real and personal property, that on the realty is not void because of misrepresen- tation as to the value of the personalty. Sullivan vs. Hai-tford Fire Ins. Co. (Ct. Civ. App., Tex.), 34 S. 'W. Reporter, 999. EYIDENCE OF YALUE IN ACTION ON INSURANCE POLICY'. — The statute provides that in any suit against an in- surance company to recover for a total loss the amount of dam- age shall he the sum insured, and no other evidence shall be ad- mitted on the trial as to the value of the property insured, but that testimony to prove overinsurance fraudulently obtained may he admitted. Evidence of a grossly excessive and false state- ment in a proof of loss, as to the value of the property destroyed, is not admissible. Barnard vs. People's Fire Ins. Co. (Supreme Court of New Hampshire), 9 At. Rep.. 1033. YALUE OF INSURED FKoPERTY.— An insurance company sent an agent to inspect a dredge boat that had been recently re- paired. He made a thorough examination and the company wrote J6,000.00 upon her. The inspector had stated that she was worth ilO.OOO.tXi. and the mere fact that the owner had purchased her from the naval department for .'iT.7>0.iX> wiU not discredit such statement, nor rai>e a suspicion that the owner caused her de- struction. Flyer vs. German Aanerican Insurance Company (Court of Appeals of New York), 24 N. E. Rep.. 029. ACTION ON INSURANCE POLICY.— In an action on an in- surance policy to recover damages caused by fii'e to insmred house- hold furniture and wearing apparel in actual use. it was not error to instruct the jury that of the property desti'oyed they should, if possible, find the fair market value; otherwise that they should find the fair value from the evidence, and that such value was not what a junk shop or second-hand dealer would give for them. or what they would bring under exti-aordiuary circumstances or under a forced sale. Sun Fire i ittice vs. .\yer,-~t (Supreme Court of Neb.), 55 N. W. Rep., 636. 252 INDICATOR'S DIGEST. EVIDENCE OF INSURABLE VALUE.— In an action on a fire policy issued on a stock of goods, a charge by the court that the amount stated in the policy is prima facie evidence of the insurable value of the property is improper, as placing on the company the burden of proof that its real value vs^as less. Warshawky vs. Anchor Mut. Fire Ins. Co. (Sup. Ct. la.), 67 N. W. Rep., 238. INSTRUCTION ON FIRE INSURANCE POLICY.— In an ac- tion on a fire insurance policy which fixed the value of the dif- ferent items, an instruction of the court to the jury, which enum- erates the items instired and the values as fixed by the policy, such instruction covering all items enumerated in the policy, cannot be considered as authorizing the jury to include in their verdict any items not proved to have been destroyed. German Ins. Co. vs. Reed's Ex'r (Court of Appeals of Ken- tucky), 14 S. W. Rep., 395. VALUED POLICY. OHIO VALUED POLICY LAW.— The provision in an in- surance policy, that in case of loss the value and damage to the property shall, at the written request of either party, be sub- mitted to arbitration, and that no suit "shall be sustainable in any court of law or chancery, for the recovery of any claim by virtue of this policy, until after an award shall have been ofb- tained," is in conflict with the valued policy law of Ohio and therefore void in case of total destruction of real property. Queen Ins. Co. vs. Leslie (Supreme Court of Ohio), 24 N. E. Rep., 1072. CONDITIONS OF POLICY UNDER THE VALUED POL- ICY ACT.— Under the valued policy act of 1889, stipulations in a policy of insurance in conflict with any of the provisions of that act are inoperative, and this applies to a provision, in case of loss, for the appointment of arbitrators. If the property is totally destroyed there is nothing to arbitrate. Where all the combustible material in a building is destroyed by fire, although portions of the brick ivcalls are left standing, but are so injured by the fire that they must be torn down, for the purpose of insurance the property is totally desti-oyed; but, if the person insured should use the brick or other material not destroyed to build, the com- pany would be entitled to the value of such brick or material. German Ins. Co. of Freeport vs. Eddy (Supreme Court of Neb.), 54 N. W. Rep., 856. WAn'ER. 253 WAIVER. VALIDITY OF PAROL WAIVER BY AGENT.— An ngeut of an insurance t-oiupany may verbally waive a condition in a pol- icy tliougli the iH)licy provide that tlie conditiou]® can only be waived by writing indorsed tliereon. Burlington Ins. t'u. vs. Rivers (Court of Civil Appeals of Texas), 2S S. W. Rep., 4.1;^. LEGAL RIGHTS NOT WAIVED BY IMPUTATION.— The Supreme Court of Tennessee holds that Act 1893, c. 107, Sec. 1. providing that stipulations in a policy that the insurer, shall nut be liable for the full amount insured shall be void, cannot be waived by the acceptance of a policy containing such a stipula- tion. Bugger vs. Mech. & Traders' Ins. Co., N. 0., 32 S. W. Rep., 5. WHAT IS NOT A WAIVER.— Letters written to the general agents of an insurance company by a local agent who had noth- ing to do with the adjustment of the claim, containing mere sug gestions as to the settlement of the claim, and of whose contents the insm'ed had no knowledge until long aftfer the time limited by the policy for bringing suit had expired, are incompetent to show a waiver of such limitation. Hill vs. Phoenix Ins. Co. (Sup. Ct.. Wash.), 44 Pacific Rep., 146. WAIVER BY GENERAL AGENT IS GOOD.— A general pro- vision, says the Court of Appeals of Kansas, in a policy of in- surance that no officer or agent of the company issuing it shall have power to waive any of the conditions of the policy, unless such waiver be in writing, is nugatory, and does not protect the company from a parol waiver made by a general agent Long Island Ins. Co. vs. Great Western ilfg. Co., 42 Pacific Reporter, 739. WAIVERS REQORED.TO BE ENDORSED ON POLICY.— Where an insurance policy provides that all waivers shall be Indorsed thereon by agents, and that no agent shall be deemed to have power to waive a condition unless indorsed on the iwlicy, in a suit on such policy evidence of an agent's conversation, waiving a provision thereof, is inadmissible, in the absence of an indorsement thereon of the waiver. Warren vs. Phoenix Insurnnce Co (Supreme Court of New York), 19 N. Y. Sup., 991. THE SUPREME COURT OF KANS.\S DECIDES, that where a party seeking: to recover on a contract of insurance relies upon a waiver of an important condition of tlie contract by the insurer, he should definitely set forth such waiver in his pleadinjrs: and, unless this is done, proof to establish the same canncit be received. Gillett vs\ Burlington Iiisvrancp Company. 3'; I'ac. Plcp. ."12. 2S4 INDICATOR'S DIGEST. IMPIJCATIOX OP" WAIVER.— Tut fact that the agent and adjuster of a fire insurance company appear upon the premises after a lire, and commence an examination as to the amount C'f damage, does not constitute a waiver of the strict proofs of loss, when the company continuously insists thereon, and upon having an appraisement in accordance with the terms of the policy. Scottish Union & Nat. Ins. Co. vs. Clancey (Supreme Court of Texas), 18 S. W. Rep., 439. WHAT CONSTITUTES A WAIVER.— Where application for insurance is orally made, and there are no questions asked con- cerning incumbrances, and the Insured is una^^ are that the ex- istence of a mortgage Avas fatal to his insurance, the insurer AA'ill be deemed to have waived a provision for forfeiture by reason of existing incumbrances. German ilut. Ins. Co. vs. Niewedde (Appellate Court of In- diana), 39 N. E. Rep., 534. WHAT CONSTITUTES A WAIVER.— Where the agents of an insurance company promised to^ adjust the loss if the insured would come to Texas, and he did so, and endeavored to effect a settlement, which was evaded by the company's adjuster, and the agents represented that no advantage would be taken of the delay, and the compiany ajcquiesced in the conduct of its agents, such acts will amount to a waiver of a provision in the policy that suit must be brought within six months after loss, whether the insured knew of 'the limitation of the agents' authority for- bidding them to waive such provision, or not. Burlington Ins. Co. vs. Tobey (Court of Civil Appeals of Texas), 30 S. W. Rep., 1111. WAIVER BY AGENT A NULLITY.— Where a policy pro- vides that no officer or agent shall have power to waive any of its conditions, except by writing, and that no privilege affecting the insurance shall be claimed by the assured unless so written, after it has been accepted by the assured a parol waiver of any of the provisions by the agent from whom the insurance was obtained is a nullity. Egan vs. Westchester Fire Ins. Co. (Supreme Ct. Ore.), 42 Pacific Reporter, 611. WHEN CONDITION 0;F POLICY IS WAIVED.— Where a policy was issued with the knowle«ige of the agent that the prop- erty insured was subject to a chattel mortgage, a condition in the policy that it should be void if the property should be encum- bered by a mortgage is void. Robbinie vs. Springfield Fire and Marine Insurance Company (Supreme Court, General Term, Fifth Department), 29 N. Y. Supp., 513. WAIVER OP OQiNDTTION IN POLICY OF INSURANCE.— A condition in a policy which requires the consent of the company to the procurement of additional insurance to be indorsed on the policy, is waived, where the manager of the company, on being requested to make such indorsement, replies that it is unneces- sary. Frankfurter v.s. Home Insurance Co. (City Court of New York City, General Terim), 26 N. Y. Supp., 81. \\'A1YER. 255 WAIVER OF CONDITIONS IN POLICY.— Though a waiver of conditions after a policy is issued must be in accordance with its terms, if the agent, when the insurance was negotiated, knew the facts claimed to be a breach of condition, a waiver will be presumed. Wood vs. Am. Fire Ins. Co. (Supreme Court, General Term, Third Department), 29 N. Y. Supp. 250. ^ WAIVER OF CONDITIONS IX INSURANCE POLICY.— Where a clause of an insurance policy provided that the entire pol- icy should be void if the insm'ed had or should procure other in- surance, or incumber the property by mortgage, the existence of a mortgage and prior insurance on the insured property invalidated such policy, though the assured was not examined as to whether his property was incumbered, or verbally informed of the effect of such prior insurance or incumbrance, by the company, such facts not constituting a waiver of the condition. "O ilcox vs. Conl. Ins. Co. of N. Y. (Supreme Court of Wis.), 55 N. W. Rep., ISS. WAIVER OF CONDITIONS IN INSURANCE POLICY.— A lire insurance policy, providing that it shall cease to insure if de- fault is made in payment of the premium note, and the company shall not be liable during such default, does not become utterly extinguished on non-payment of the premium note, but the obli- gation of the risk is suspended during such default, unless the company waives it, or estops itself from insisting thereon; and a further provision that the company shall not become liable after default, until the policy is revived, by its written consent, on pay- ment of all amounts due thereon, does not affect this construction. While the insured asked the local agent for an extension when the premium note became due, but notified him of his intention to pay if it should be refused, and the agent promptly communi- cated this request to the general officers of the company, their silence for thi'ee months thereafter is strong, if not conclusive evidence of their consent to the extension. East Texas Fire Ins. Co. vs. Perkey (Court of Civil Appeals o£ Texas). 24 S. W. Rep., lOSO. WAIVER OF CONDITIONS OF POLICY.— A clause in a pol- icy of fire insurance, that "it is a condition of this insurance that the following improvements shall be completed within sixty days of date thereof, or policy will be null and void," does not render the policy absolutely void at the end of 60 days, upon failure to make the required improvements. AVhere such condition formed no part of the policy, as originally written, but was written on a separate piece of paper, and attached to the policy, by agents who had au- thority to issue the policy whether with or without the condition, the condition may be orally waived by such agents, in spite of a provision in the policy that no waiver shall be binding unless writ- ten upon the policy. Where the company, after the expiration of the sixty days, and with notice that the Improvements had not been made, recognize the policy as in full force by writing to the insured, in regard to iriving him additional insurance, without in- timating that said policy was not in force, such recognition consti- tutes a waiver of the condition. Manufacturers' and Merchants' Mut. Ins. Co. vs. .Ai-mstroni; I Supreme Court of Illinois), 34 N. E. Rep., r,',?,. 256 INDICATOR'S DIGEST-. WAIVER OF CONDITIONS.— The Circuit Court of Appeals recently held that ■w'here an agent took certain policies, with the knowledge that the insured intended to carry cither insurance, and the assured relying on the statements of the agent, and not look- ing at the policies themselves, took additional insurance, the com- pany iwias prevented from setting up the conditions of the policy in that regard, after loss, a party having a right to rely on tihe knowledge of the agent. Fireman's Fund Ins. Co. vs. Norwood (U. S. Cir. Ct. App.), 69 Federal Reporter, 71. , , WAIVER OF CONDITION IN POLICY.— In an action on a fire insurance policy by a mortgagee of the premises, it appeared that after obtaining the policy the mortgagor conveyed the title to his wife, and so informed the company's agent, who had written the policy and who subsequently l-enewed it. After the rencAval the holder was assured by the agent that the policy was all right, and after the fire the company called for additional proofs of loss, without mentioning a forfeiture. Held, that the right to a forfeiture on account of the change of title previous to renewal was waived. Harrington vs. Franklin Fire Ins. Co. of Philadelphia (Su- preme Court of New York), 21 New York Sup., 32. WAIVER OF CONDITIONS OF IXSrRANCE POLICY.— Where an insurance agent solicited insurance on property in an adjoining State, assuming to act with full authority of an unre- stricted agency, and a person contracted for insurance with him. and paid him the premium, and the company received it. and issued a policy, the jury are warranted in finding that the agent was a general agent, and not a special agent without authority to make the contract.. Whether or not a change in the use of in- sured premises from a store, with oil lamps, to a variety theatre, with electric lights, incre.ised the risk, thereby avoiding the policy, is a question for the jury, and expert evidence is admis- sible; the determination of the question involving simply matters of common knowledge or observation. Hahn vs. Guardian Assur. Co. (Supreme Coui-t of Ore.).. 32 Pae. Rep., 683. WAIVER OF CONDITIONS IN POLICY.— An insurance broker solicited applications for insurance, v?hich were sent by him to the agents of the insurance companies, by whom policies were sent to the broker. The premiums were charged to the broker, but the companies had no claims against him unless the premiums were collected. The court held that a finding by the jury that the broker was the "duly authorized" agent of the companies, within the meaning of the provision in the policies requiring payments of premiums to the company, or its duly authorized agents, within a certain time, would not be disturbed by the upper court on appeal. And where it appears that the companies had frequently accepted premiums on policies sent to the broker after the expiration of the time within which the premiums were required to be paid, a finding by the jury that the companies waived their right to avoid policies sent such broker for non-payment of premiums within the required time will not be disturbed. Estes vs. Home Mfgrs. & Traders' JIut. Ins. Co. (Sup Ct N. H.), 33 .Atlantic Reporter, 515. ^^'AIVER. 257 WAIVER or CONDITIONS.— A warranty iu a policy of in- surance, that a continuous clear space should thereafter be kept between the lumber insured and any wood-working establish- ment, is waived, if the insurer's agent knew that there was no such clear space. Liverpool & London & Globe Ins. Co. vs. Farnsworth Lumber Co. (Supreme Coiu't of Jlississippi), 17 80. Rep., ilo. WAIVER OF CONDITIONS.— Where a policy of Insurance provides, "This entire policy, unless otherwise provided by agree- ment indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter procure, any other contract of insur- ance, whether valid or not, on property covered in whole or in part by this policy," it was held, by delivering the policy know- ing the existence of other instu'ance on the premisies, the insurer waived the condition, though no such waiver was indorsed on the policy. Anderson vs. Manchester Fire Assur. Co. (Supreme Court of Minn.), 63 N. W. Rep., 1241. KNOWLEDGE OF COMPANY WAIVES CONDITIONS.- The fallTU'e of insured to keep his last inventory, sales and pur- chases, and his books of account, in an iron safe, or in some build- ing other than that in which the insured property is located, as required by a policy, does not render the policy void, where the Insurance company knew at the time of the issuance of the policy the insured had no iron safe, and intended to keep the inventory, etc., in the building where the property was located. Mitchell vs. Miss. Home Ins. Co. (Supreme Ct. Miss.), 18 So. Rep., S6. WAI'\'ER OF CONDITION IN INSURANCE POLICY. BY AGENT. — Where the agent of an insurance company informs the holder of a policy that though the policy provides that it shall be void if the house becomes vacant or unoccupied the Insurance should be good for a vacancy of 30 days, and that if all or a por- tion of the insured goods remained in the house it would be con- sidered occupied, the company is liable notwithstanding the pro- vision of the policy that the agent had no authority to change or modify any of its conditions, as his representations are merely si construction of the terms vacant or unoccupied. Hotchkiss vs. Phenix Ins Co. (Supreme Com'c of Wisconsin), -H: N. W. Rep., 1046. WAIVER BY PAROL OF CONDITIONS OF POLICY.— Where an insurance agent, ^"ith authority to receive premiums and issue policies, exercises such authority, with notice from in- strred that there is concuiTent insurance on the premises, the com- pany is estopped, after a loss, to declare the policy forfeited be- cause consent to such concurrent insiu-ance was not indorsed on the policy, asi provided for therein. Though an insurance policy provides that none of its conditions can be waiveil unless such waiver be indorsed thereon, where an authorized agent accepts a premium, having knowledge that a condition of the policy is being violated by the existence of concurrent insurance, without an in- dorsement of consent, the waiver may be shown by parol. Hibernian Ins. Co. vs. Malevinsky (Court of Civil Appeals of Tex.t. 1'4 S. W. Rep., siH. ■258 INDICATOR'S DIGEST. WAIVER OF CONDITIONS OF POLICY.— The provisions in an insurance policy requiring proofs of loss, and allowing the company a limited time after proof in which to determine the mat- ter and pay the loss, are waived by a denial of liability by the com- piany. Hartford Fire Ins. Co. vs. .Tosey (Court of Civil Appeals of Texas), 25 S. W. Rep., (JS4. VERBAL WAIVER OF CONDITIONS IN FIRE INSUR- ANCE POLICY.— A parol waiver of conditions in a fire insurance policy may be accepted by a general agent so as to bind the com- pany, despite the fact that the policy requires it to be done in writing. The words in a policy requiring the assured to have an "absolute fee-simple title," means that he claims and holds under a deed of conveyance or other evidence of title, purporting to invest them with an estate in fee-simple. Phenix Insurance Company of Brooklyn vs. Bowdre (Supreme Court of Mississippi), 7 S. Rep., 596. NOT A WAIVER OF' BREACH OF CONDITIONS.— A breach of condition against incumbrances in the policy on a stock of merchandise renders the policy void, and it does not become valid as to merchandise placed in the store after the stock was incumbered. The fact that the adjnister of an insurance company directed the insured, after loss, to prepare his proofs and send them to the company, does not waive breach of a condition where the adjuster did not know of the breach at the time, and, after discovery, disclaimed any liability on the part of the company. Gray vs. Guardian Assur. Co. (Supreme Court, General Term, Third Department), 31 N. Y. S. Rep., 23T. WHEN AGENT QDDES NOT WAIVE CONDITION IN POL- ICY BY PRO1MISB.--A policy of insurance provided that it should be void if the insured should procure other insurance on the prop- erty, and that no officer or ageiit could waive such condition except by endorsement on the policy. The insured having ob- tained other insurance, informed the agent who had issued the policy to him, and the latter said that he would attend to it, but failed to do so. The insured did not then have the policy with him, nor did he afterwards apply to the agent for the written consent to the other insurance as required by the policj^ The agent's promise did not constitute a waiver of the conditions nor affect the right of the company to insist on a forfeiture. Baumgartel vs. Providence-Washington Ins. Co. (Com-t of Appeals of New York), 32 N. B. Rep., 990. WAIVING CONDITIONS OF POLICY.— When an insurance company issues its policy, and accepts and retains the premium, withoiut an application by the insiired, and without making in- quiry as to the condition of the property or the state of its title, and the insured has in fact an insurable interest, the company will be conclusively presumed to have insured such interest, and to have waived all provisions in the policy providing for its for- feiture by reason of any facts or circumstances affecting the condition or title of the property, in regard to which no such statement was required or inquiry made. German Ins. & Sav. Inst, vs.- Kline (Supreme Court of Ne- braska), 62 N. W. Rep., S57. WAIVER. 259 M'AIVKR OF CO:^vD^rIOX IX policy by AGEXT.— The knowledge by tlie agent of the existence of an invalid chattel mortgage on goods insured, before issuing a ili'e policy but not heeded, and inconsistent with conditions herein, is a waiver of such conditions, it being assumed that if otherwise the insured would not have accepted the policy, and the knowledge of the agent being that of the company. Forward vs. Continental Ins. Co., 21 X. T. S., Oil. SUFFIOIEXT AYAIVER OF COXDITIOX OF POLICY.— Though a fire policy, permitting alterations in tlie building not exceeding 10 days, provide that any exteusiion of the privilege must be previoiisly consented to in writing by the secretary, or otherwise be void, still, if the local agent communicates to the olflcei's of the company the fact of more extended alterations be- ing made, and it makes no objection, the fact of the condition being violated cannot be set up in discharge of the policy on the occasion of a subsequent loss. Stauffer vs. Manheim JIutual Fire Ins. Go. (Supreme Court of Pennsylvania), 24 At. Rep., 754. WAIVER OF IXSURANCB COXDITIOXS BY AGENT.— Though the policy of fire insurance may provide that no agent of the company, nor any person other than its president or secretary shall waive or modify any conditions or limitations of Its policies, a waiver by an agent with general powers will be sustained. Where an application for insurance, which is flUed out by the agent of the company, and which does not contain the answers to questions as they were given by assured, the company is bound by the omis- sion and not the insured. Where proofs of loss axe received by the company without objection, further proofs without a demand therefor by the company are not necessary. German Ins. Co.. of Freeport, vs. Gray (Supreme Court of Kansas). 23 Pac. Rep., 637. WAIVER OF CONDITIONS OP IXSURAXCE POLICY.— In an action on an insurance policy, a special verdict that parties owned the lumber insured, that the quantity was greater In value than the insm-ance sought to be recovered, that the lumber was not piled 300 feet from the mill, and that the fire was caused by a general forest conflagi-ation, is defective for failure to state the terms of the policy, and that any lumber was desti-oyed by fire, and should be set aside. It appeai'ed that immediately after the fire the company's adjuster visited the premises, and, after ex- amination, said there could be no objection to payment, so far as the ''space clause" of the policy was concerned, but suggested that they had little, if any, lumber in the yard where the fire oc- curred; that thereafter the rompany's general agent wrote them saying he could prove that none of the lumber destroyed was their lumber; that they in answer wrote that the company's adjuster had waived formal proof of loss, and, if it was not satisfied with his action, "I desire that you say so now. so that we may put our- selves in proper shape;" aud that the general agent replied that he was satisfied they had no lumber among that bm-ned, and that he might sue at once. It was held a waiver of the "space clause" as a defense. ilcCormick vs. Royal Ins. Co. of Liverpool (Supreme Court of Penn.). 29 At. Rep., 747. 260 INDICATOR'S DIGEST. WAIVEiR OF CONDITIONS OX POLICY— Where proofs of loss are made by the mortgiagee of the insured premises and the company objects thereto only on the ground that they should have been made by the assured, it thereby waives the condition of the policy that the consent of the company to the commencement of foreclosure proceedings should be indorsed on the policy, and that proofs of loss should be made vyithin 60 days after the fire. Moore vs. Hanover Fire Ins. Co. (Supreme Court of N. Y.), 24 N. Y. S., 507. WAIVER OF OOiNDITIONS IN FIRE INSURANCE POI^ lOY.— The condition in a policy of insurance, that if the mortgage on the property be foreclosed without permission of the com- pany, the policy shall be void, is waived when on application for written consent the company neither assented nor refused, nor did it make any objection to the loss papers when the property burned. Armstrong vs. Agricultural Ins. Co. (iSupr/ame Court of New York), 9 N. Y. Supp., 873. VERBAL WAIVER BY AGENT.— A condition in a policy, which recites that conditions therein contained can be waived by agents only in writing indorsed thereon, does not prevent a verbal waiver by the agent from binding the company, But evidences of declarations of a man who was merely found in the office of an insurance agent, without proof of his relation to the company, is inadmissible to prove a waiver of a condition in the policy. Penna. Fire Ins. Co. vs. Faires (Ct. Civ. App. Tex.), 35 S. W. Reporter, 55. WiAIVER OF INSURANCE CONDITIONS BY AGENTS.— Where a policy of fire Insurance provides that it shall be void if the premises insured remain vacant or imoccupied without the written consent of the company, a verbal notification to the local agent whioh is accepted by him without requiring written notice amounts to a waiver by the company of the condition requiring notice in writing. The adjustment of a loss without formal proofs iv/'aives that provision of the policy requiring them. O'Brien vs. Prescott Ins. Co. (Supreme Court of New York), 11 N. Y. Supp., 125. WAIVER OF CONDITIONS IN INSURANCE POLICY.— A policy of insurance on a farm building declared that any change in the title, possession, or interest of the insured in the property without consent indorsed on the policy would render it void. The insured mortgaged part of the farm, but- not the part on which the house stood, and asked the company's local agent whether it was necessary to have the company's consent indorsed on the policy. The agent's reply that such indorsement was not neces- sary was a waiver by the company of the condition. A stipula- tion in an insurance policy that the conditions of the policy can be waived only by the general agent in writing does not render an oral waiver by a local agent inoperative, since such stipulation may itself be waived. Phenix Insurance Company vs. Hart (Supreme Court of 111.), 36 N. E. Rep., 990. WAIVER. 261 WHAT CONSTITUTES WAIVER OF CONDITIOXS IN POLICY.— Where a change takes place in the possession of the property insured by legal process, in violation of the terms of the policy of insurance, the policy is forfeited, and the forfeiture is not waived by the local agent of the company who negotiated the insurance, where the waiver is not endorsed on the policy in writing as required by the policy. Carey vs. Phenix Ins. Co. (Supreme Court of Wis.), 54 N. W. Rep., 403, Jan. 31, 1893. WAIVER OF CONDITIONS BY AGENT.— The provisions, in a contract of insurance, restricting the power of an agent to waive conditions, except in a prescribed manner, cannot be deemed to apply to those conditions the breach of which avoids the contract in its inception, when it appears that the agent delivered the policy and- received the premiums with a full knowledge of the facts constituting such breach. Wood vs. American Fire Ins. Co. (Ct. App. N. Y.), 44 North- eastern Reporter, 80. WAIVER OF BREACH OF INSURANCE CONTRACT BY AGENT.— A principal is not legally chargeable with notice of facts learned by an agent in the course of an employment in no way connected with his agency. A forfeiture of an insurance policy having occurred from a breach of its conditions, an agent of the insurer, who has no knowledge or notice thereof, is not to be deemed to have waived the same statements not intended to have such an efEect. St. Paul F. & il. Ins. Co. vs. Parsons (Supreme Cotirt of Minnesota), 50 N. W. Rep., 240. WAIVER OF BREACH OF CONDITIONS IN INSURANCE POL/ICY.— When proofs of loss are submitted to an insurance company it is bound by the objections it then makes to paying the loss, and if payment js refused solely on the ground that the proofs of loss are not in proper form, then the company cannot afterward assert breaches of conditions in the policy of which it had notice when the proofs were submitted, as the insured has a right to assume that the objections made are the only ones he will be called upon to answer. German Ins. Co. vs. Gibson (Supreme Court of Arkansas), 14 S. W. Rep., 672. WAIVER OF CONDITIONS OF POLICY .-A policy of fire insurance provided that the extent of the loss, unless agreed upon by the parties, must, as a condition precedent 10 payment, be determined by arbitration. Upon being notified of loss, the com- pany made objections to the proofs, denied that the loss was an honest one, and declared that it would give the insured nothing that he could not demand under a strict construction of the policy, but said nothing about the necessity of arbitration. The company waived the right to insist on arbitration as a condition precedent to suit. A local insurance agent, who solicits insurance, collects premiums, and issues policies is a proper person on whom to serve notice of a demand upon the company for arbitration, provided for in a policy. Phenix Ins. Co. vs. Stocks (Supreme Court of Illinois), 36 N. E. Rep., 40S. 262 INDICATOR'S DIGEST. WAIVING OB" CONDITIONS IN INSURANCE POLICY BY AGENT.— An insurance agent possessing tlie limited power of soliciting: insurance, delivering policies, and receiving premiums, cannot waive the condition in a policy prohibiting the use of gas- oline in the building insured. Permission in a fire insurance pol- icy to use the building for "any mercantile purpose" does not authorize its use as a ■ restaurant. Garretson vs. Merchants' and Bankers' Insurance Company (Supreme Court of Iowa), 45 N. W. Rep., 1047. WAIVER OF CONDITIONS BY AGENT.— That the general agent of the insurer after the loss informed the insured that he need not give the general notice of loss required by a provision of a fire policy, constitutes a waiver of such requirement by the company. American Cent. Ins. Co. vs. Heaverin (Ct. App. Ky.), S.j S. W. Rep., 922. WAIVER OF CONDITIONS OF POLICY.— In an action on a policy providing that, in case of disagreement as to the loss, it should be ascertained by appraisers and that no action should be maintained until after full compliance with the policy, it appeared that, the appraiseiis having faileNDITIOXS— WHAT IS NOT A WAIVER — Evidence tbat the insvired, after loss, separated the undamaged from the damaged goods, and sold them, without consent of the insurer, before its adjuster had seen them, sho-\Ys a breach of a policy requiring the insured to separate the damaged and undam- aged jiroperty. and mal^e a complete inventory^ and exhibit it when requii-ed to the adjuster of the company. The examination of the agent of the insured as to the loss after proofs have been submitted is not a waiver of a breach of the policy by the in- sured, where it is expressly provided that an examination shall not be a waiver. And a parol waiver by an agent is void where the policy requires such waiver to be indorsed on it in writing. Oshkosh Hatch Works vs. ^Manchester Fire Assur. Co. iSup. Ct. Wis.), GG X. W. Reporter, .".2.-.. ACTS OF COilPANY A WAIVER OF BREACH OF CON- DITIONS.— An insurance company, which, after a loss of the property, covered by its policy, with a knowledge of acts amount- ing to a breach of wan-anty by the insured, fails to declare such policy forfeited, but on the contrary continues to recognize its liability on same by demanding repeated proofs of loss, and by insisting upon arbitration under a stipulation which applies to the measure of damages only, will be held to have waived all de- fenses based upon such breach of warranty and resulting for- feiture of the policy. This is so, notwithstanding the secretary of the company, in returning the proof of loss for correction, added "This company neither admits nor denies its liability, nor waives any of its rights under said policy." Home Fire Ins. Co. vs. Kennedy (Sup. Ct. Neb.), 66 N. W. Rep., iiTS. W.AJVER OF CONDITION UNDER NEW YORK STAND- ARD POLICY.— The New York standard policy .provides that it shall be void if the sub.lect of insurance shall become incumbered with a chattel mortgaffe. without the written consent of the com- pany, anil that it shall not be held to have waived any condition of the policy, or any forfeitiu'e thereof by any act on its part relating to any appraisal, or to any examination of the property insured. The Supreme Com-t of that State (First Department) held that a forfeiture on the ground that the property was stib- ject to a mortgage at the time the policy was issued wa^ not waived by the company's taking part in an appraisal after loss. Walker vs. Phoenix Ins. Co.. S.i X. Y. S.. Rep., :^T4. WAIVER OF CONDITION IN POLICY'.- An insurance policy on lumber contained a warranty by assured that a clear space of I'll feet should be maintained between the property insureil and any wood-working or manufactnrinsi establishment, any vio- lation of this warranty to render the policy null and void. Held, in a suit on the policj, that the company is I'stopped from avoid- ing the sajne for deficiency of clear space, where its agent, when he wrote the policy, knew the condition of the insured propertN*. and that 150 feet clear space did not by actual measurement exist, and that assured could not control a clear space for that dis- tance, in consideration of the situation of the property Insured. was equivalent to 15fJ feet as ordinarily understood, and fixed the rate aoeordingly, accepted the premium and knew that no change was made by the insured, and took no step to cancel the policy. Michigan Shingle Co. vs. State Inv. & Ins. Co., 53 N. W. Reo.. 04.-, 264 INDICATOR'S DIGEST. WAIVER OF CONDITIONS IN POLICY.— Where the agent of an insurance company is notified, at the time the application tor insurance is made, that the insured only owns an estate for years in the land on which the building is located, insurer will I)e held to have waived a condition in the policy, when issued, avoiding it in case his interest is not a fee simple, though the policy also contains a condition that no agents can waive pro- visions of policy, except in writing indorsed thereon. Goss- vs. Agr. Ins. Co. (Supreme Ct. Wis.), 65 N. W. Rep., 1036. WAIVER OP CONDITIONS IN FIRE INSURANCE POL- ICY. — ^Where an insurance company has given time on fhe pay- ment of premiums', and the plaintiff had also been given time on other policies; and the poli,ey in suit was delivered without pay- ment of premium, such action is a waiver of the condition in tlie policy, and the policy shall be void if the premiums are not paid when due. Where a tenant, without knowledge or consent of the insured, erects an addition to the houee covered by the policy, it idoes not void the policy, unless it contains a stipulation to the effect that an increase by a tenant will render it null and void. Nebraska and I. Ins. Co. vs. Ohristiensen (Supreme Court of Nebraska), 45 N. W. Rep., 924. IMPLIED WAIVER OF CONDITION IN FIRE POLICY.— Where a policy is taken in the name of a trustee, on the advice of the agent of the insurer, the agent being aware at that time of the property being held in trust, and that the premium is paid by the real party in interest, the insurer cannot claim a forfeiture of the policy under a condition avoiding the same unless the in- terest of the insured is the unconditional and sole owner, though the policy provi'des that no condition therein can be waived by an agent except in writing endorsed on the policy. Nor is such policy avoided by a conveyance by the trustee to the real party in interest. Rhode Island Underwriters' Aesn. vs. Monarch (Ct. App. Ky.), 32 S. W. Reporter, 959. WHAT COJflSTITUTES A WAIVER OP PROVISIONS OP POLICY.— A policy of fire insurance on the flouring mill of the Bellevue Roller-Mill Company, dated September 9, 1893, for one year, provided as follows: "This policy, unless othervnse pro- vided by agreement indorsed hereon or added hereto, shall be void if the sub.ieot of insurance be a manufacturing establish- ment, and cease to be operated for more than ten consecutive ■days." It appeared that said mill was compelled to suspend operations during a portion of each year because of the water freezing in the mill race which conducted it to the mill, and that the agent of the insurance company, knowing this fact, had granted repeated renewals of the insm-ance on the mill for peri- ods of one year, and that on the 9th of September, 1893, the policy sued on was issued as a renewal for one year of a former policy, without written application, and received the premium for the same. On December 9, 1893, the mill closed down, and so remained until May 10, 1894, when the loss occurred. It was held that, under the facts of this case, the insurance company had waived the provisions of the policy above quoted. Bellevue Roller-Mill Co. vs. London & L. Fire Ins. Co. (Su- preme Court of Idaho), .39 Pac Rep., 196. WAIVER. 265 WAIVER OF ONE BREACH IS NOT WAIVER OF OTH- ERS.— Tlie fact that an agent waived certain breaches of the conditions of the policy after loss will not prevent the company from insistin.£: on other breaches, not then known to it or its agent, as a defense to liability on the policy. United States Ins. Co. vs. Jloriarty (Ct. Civ. App Tex ) 36 S. W. Reporter, 944. THE COURT OF CIVIL APPEALS OP TEXAS holds that, the taking possession of property injm-ed by the fire does not waive a breach of the policy, when it is done in ignorance of the breach. A waiver by one who is agent of an insurance company for procuring insurance, of a breach of a policy, is not binding upon the company, if he had no authority to act after the loss. German-American Ins. Co. of New York vs. Waters. 30 S. TV. Rep., 576. THE SUPREME COURT OP WASHINGTON HOLDlS, that a provision in an insurance policy 'that "it is understood and agreed that, during such times as said mill is idle or not in oper- ation, a watchman shall be employed by the insured to be In and upon the premises constantly, day and night," appearing on a small slip of paper pasted on the face of the policy, and having no connection with the warranties or clauses of forfeiture in the policy, is not such a special warranty on the part of the insured that its breach will forfeit the policy or prevent recovery when the loss is in no way attributable to such breach. Hart vs. Niagara Fire Ins. Co., 38 Pac. Rep., 213. WHAT CONSTITUTEiS WAIVER OF CONDITIONS IN FIRE INSURANCE POLICY.— Where one requested an insurance company's local agent to write an application lor him for a policy in such a company, and informed him that the property to be in- sured by him iwas incumbered for $4,900, at the agent's request the company's secretary, who was present, drew up the applica- tion, which falsely stated that the property was incumbered for -only $2,000. The acts off the secretary and agent, with full knowl- edge of the incumbrance, were binding on the company, and a waiver of the condition in the policy avoiding it for false state- ments as to incumbrances.. Bourgeois vs. Mutual Fire Ins. Co. of Marshfield (Supreme Court of Wis.), 57 N. W. Rep., 38. WAIVER OF PROVISION IN POLICY AS TO PAYING ASSESSilENT.— Where the charter of a m^utual fire insurance company provided that a policy-holder's failure to pay an assess- ment within thirty days after notice thereof should suspend the liability on the policy, and a copy of this provision was sent to a policy-holder with a notice of an assessment without any ex- planation, such action was, as to that assessment, a waiver of a provision of the policy by which it was to be suspended for failure to pay an assessment within a shorter time. In such case, if a loss occurred within thirty days after notice of an assessment, the subsequent tender by the insured of the amount of the as- sessment, which the company refused, does not affect the latter's liability on the policy. MacKinnon vs. Mutual Fire Ins. Co (Supreme Court of Wis- consin), 53 X. W. Rep., 19. 266 INDICATOR'S DIGEST. WAIVER OF STIPULATION IN POLICY— The sending of ail adjuster by an insurance company to adjust a loss is a waiver of a stipulation in the policy requiring written notice of the loss. German Fire Ins. Company vs. Stuart (App. Ct. Ind.), 42 N. E. Rep., 287. WAIVER BY AGENT AS ADJUSTER.— Where an adjuster, after learning of the destruction of the insured's itemized inven- tory, ledger and scratch-book, refused to proceed with the Inves- tigation of the loss until the insured agreed that further investi- gation into the loss should "not be taken as any waiver of any defense of the companies by reason of the breach of warranty as contained in the iron-safe clause, we having lost our detailed inventory," there vyas evidence from which a jury might infer a waiver of the requirement to produce the books other than the detailed inventory, particularly as the adjuster, after making an estimate of the loss, pursuant to said agreement, applied to the assignees of the policies for duplicate invoices of purchases of stock. The limitation in a policy of the power of an agent to waive certain oonditions in the policy does not apply to the adjuster after the policy has become a demand against the com- pany. Roberts et al. v. Sun Fire Ins. Co. (Ct. Civ. App., Tex.), 35 Southwestern Reporter, 955. WAIVER OF ACTION ON POLICY.— The insurer is always represented by persons of experience in such matters, while the insured is usually a man of much less general information, with little or no knowledge in relation to insurance matters. Such being the relation of the parties, good conscience requires that there should be no attempt to overreach the insured by the in- surer. It does not follow that the terms of insurance contracts. can be set aside or disregarded. Such contracts, like all others, must be presumed- to have been entered into by both parties with then- eyes open, and the conditions to which they have assented must be enforced in contracts of this kind the same as in any other. But it does follow from the relation of the parties to each other that courts will require the utmost frankness on the part of those representing the insurer in their dealings with the insured. In a ease where the conceded facts fail to show that the insured had any direct promise that the loss would be ad- justed in the future, and the whole, or any portion of the loss paid; but, it does appear from the undisputed testimony that at each time when the offer of compromise on the part of the insured was rejected by the company such rejection was made under such, circumstances, and in such manner, as to warrant the in- sured in believing that the matter was still open for further con- sideration and adjustment between the parties. So long as the insured is thus given the right to suppose that the question of adjustment is an open one, he has the right to assume that the condition of the policy as to the time for the commencement of an action had been 'waived by the company; and such waiver would continue until by some definite action on its part the company had notified the insured of the rejection of his claim, after which he would have a reasonable time in which to commence an action upon the policy. David vs. Oaldaml Home lus. Co. (Supieme Court of Wash- ington), 39 Pac. Rep.. 44:!, \\"An'ER. 267 WAH'ER OF AUBITRATION CLAUSE BY INATTEX- TIOX.— Under the laws of Massachusetts, making the failure of aji insurance company to act within ten days on a written re- quest of the insured, requiring it to name three referees, or select one of thi-ee named therein, for arbitration, the failure of an in- surance company to pay any attention to a request duly made is a waiver of arbitration. ilcDowell vs. Aetna Ins. Co. (Supreme Judicial Ct. Mass.). 41 X. E. Reporter. 665. AGENT HAS XO AUTHORITY TO WAIVE PROOFS.— Where a local recording agent, with atithority to issue policies of insurance and deliver them, and to collect premiums, and whose business it was to notify his company of any Are which might occur within his territory, advised his company that such a fire had occurred, and the company advised such agent that an ad- juster would give the matter attention as soon as he could do so consistently ^v1th other duties, and the local agent so notified the assured, and within a few days thereafter stated to the assured that an adjuster would be there on a day named, and for the as- sured to get his appraiser ready, such agent liad no authority to waive proofs of loss, and, further, that the above facts did not constitute a waiver of proof. Harrison vs. Hartford Ins. Co. (Circuit Court, S. D. Iowa), E. D.), 50 Fed. Rep., 732. WAITER OF PREMIUM AND ARBITRATION ON INSUR- ANCE POLICY.— A provision in a policy of fire insurance that no liability sjjall attach to the company until the premium thereon is paid, is waived by the unconditional delivery of the policy to the insurc-'d by the agent, upon the agreement of the agent to extend credit to the insured. " A recording agent of an insur- ance company who is responsible to his company for premiums, has a right to deliver policies without exacting payment of the premium, and his responsibility for it to the company renders the company Uable under the policy. The provision of a fire in- surance policy providing for arbitration is waived, if the com- pany accepts the proofs of loss without objection, and places the denial of its liability upon grounds other than the amount of loss. Farnum vs. Phenix Ins. Co. (Supreme Court of California), 23 Pae. Rep., 869. WAI^'ER OF PROOFS OF LOSS AND INCUMBRANCE- DEFECTIVE ASSIGNMENT.— By accepting proofs of loss with- out objection thereto, an insurance company waives any defects or informality therein, and an offer of compromise, made by the adjuster of the companj- after such defective proofs of loss are served, is further evidence of their acceptance by the company. Where a policy is issued with knowledge that the property cov- ered is incumbered, the fact that the items of incumbrance are afterward changed, but not changed so as to increase the amount, will not void the policy. Where the poUcy provides that it may be assigned only with the consent of the company an assignment is valid, made before consent is obtained, if such consent is there- after secured. Dwelling-House Ins. Co. vs. Gould (Supreme Court of Penn- sylvania). 19 At. Rep., 79.3, 268 INDICATOR'S DIGEST. A SPECIAL AGENT AND ADJUSTER of a fire company niay waive proofs of loss though the policy provides that he can- not do so. Dwelling House Ins. Co. vs. Dowdall (Supreme Ct. Ills.), 42 N. E. Reporter, 606. WAIVER OF PROOFS BY ACTS OF ADJUSTER.— The statements or conduct of an adjuster for a company may operate as a waiver of the making of formal proof of loss, within the time fixed in the policy, though contrary to the terms of the policy. Perry vs. Dwelling House Ins. Co._(Sup. Ct. N. H.), 33 At- lantic Reporter, 732. WAIVER OF DELAY IN NOTARY'S CERTIFICATE.— A demand by an insurance company for further proof is a waiver of the right to object to the failure of the insured to furnish proofs of loss within the time limited by the policy. Merchants' Ins. Co. of Newark vs. Gibbs (Court of Errors and Appeals of New Jersey), 29 At. Rep., 485. WAIVER OF QUESTION AS TO PROOF OF LOSS.— Where a parol contract of insurance was made by an agent authorized to take risks, it need not be shown affirmatively that he had au- thority to contract by parol. When an insurance company in an action on a contract of insurance denies having insured the destroyed property, and raises no issue as to the proofs of loss, it waives that question, and therefore error cannot be predicted on a charge which assumes that proof of loss was made. Stiokley vs. Mobile Ins. Co. (Supreme Court of Sqath Caro- lina), 16 So. E. Rep., 280. WAIVER OF PROOF— WILLFUL BURNING.— By failure upon part of insurer to object to the proofs of loss, and by plead- ing, in abatement of an action on a policy, that said action was brought' within less than 60 days after due notice and proof had been received, the insurer waives any right to plead in bar the defects in the proof. A conspiracy or willful burning of the prop- erty cannot be shown, unless specially pleaded. The fact that one who threatened to burn the property, and behaved in some ways suspiciously, is the husband of one of the assured owners, is not, by itself, evidence to connect them with the burning. PlaintiflC'a judgment affirmed. Heidenreich, et al. vs. Aetna Ins. Co. (Oregon Supreme Court), 37 Pac. Rep.,, 64. QUESTION OF WAIVER OF PROOFS OF LOSS FOR THE JURY.— The fact that a fire insurance company's special agent, after a loss occurs, by its direction ascertains its extent, and reduces the same to writing, does not constitute a waiver in law of proofs of loss, where the policy makes it the duty of the in- sured to furnish the company a sworn statement; but it is a question for the jury whether the insured was led to believe from the conduct of the compaay that formal proofs of loss would not be required. Where, on statement of facts, the jury might find that proofs were waived, the higher court will not set aside the finding, because the trial judge instructed them that the facts constituted a waiver in law. Dwelling House Ins. Co. vs. Dowdall (Supreme Ct. Ills.), 42 N. E. Reporter, 607. WAIVER— WARRANTY, 269 WAIA-ER OF NOTICE AND PROOF OF LOSS.-Notice and proof of loss can be waived by parol, though the policy provides that they shall be waived only by indorsement on the pi>licy. An agent who nas specific authority merely to sign and issue policies is not authorized to waive the requirements as to notice and proof of loss. Burlington lusurauee Co. vs. Kennerlv (Supreme Court of Ai-kansas), 31 S. W. Rep., 155. WAIVER OF SAFE CLAUSE BY aGENT.— An agent of an Insurance company, who has authority to Issue and countersign policies, may strike out parts of a provision in regard to the keep- ing of a set of books "locked in a fire-proof sale" at night, on ob- jection to accepting policy with that in it. Par.sons vs. Knoxville Fire Ins. Co. (Supreme Ct., Mo.), 34 S. W. Reporter, 476. WHAT CONSTITUTES WAIVER OF SPECIAL REQUIKE- JIENTS. — The general agent of an insurance company that had issued a policy which forbade additional insurance without its consent, on being informed that additional insurance had been procured, replied: "We must be undersrtood as positively declining to permit the other insurance without information." The desired information was given, but the agent made no further response and kept the policy without cancelling It. Held, that this was sufficient to justify a 'Ending that Dhe company had waived the requirement about additional insurance. Phenix Ins. Co. vs. Johnsiton (Supreme Court of Illinois), 3.! N. E. Rep., 429. WARRANTY. WHAT IS SUFFICIENT COMPLIANCE WITH PROMIS- SORY WARRAN jJY'. — The keeper of a country store had a policy or insurance on his stc>ck of goods, whiohi contained a clause pro- viding that it was one of the conditions of the policy that insured should keep a set of books showing a complete record of his busi- ness, purchases, sales, etc., and should take an inventory at least once a year; keep such books and inventory in an iron-proof safe. and produce the same in case of loss, and that failure to com- ply with such condition should avoid the policy. His store and stock were destroyed by fire, and in an action subsequently brought against the insurance company it appeared that he kept a set of books in a primitive manner, which books were in a safe and were produced, except a cash-sales book covering twenty-one days before the fire, which had inadvertently been left out and was burned; that such books showed his purchases and credit sales, and some of his cash sales, as well as the result of the last inventory before the fire. The U. S. Circuit Court of Appeals held that the promiissory safe clause of the policy was a condition subsequent only, and that the facts shown were sufficient to jus- tify a find of compliance therewith. Western Assurance Co. vs. Redding, OS Fed. Rep.. 70S. 270 INDICATOR'S DIGEST. AGREEMENT TO KEEP ACCOUNTS A REPRESENTA- TION AND NOT A WARRANTY— In an application for fltre in- sliranee, containing at its close a clause ttiat "applicant war- rants that tlie foregoing is a full and true exposition of all the facts and oircumistances, conditions, situations, and value O'f and title to the property to be insured, and is offered as a basis of the insurance requested, and is made a special warranty," the answer "Yes" to the question, "Do you agree to keep merchan- dise and oash accounts?" is a mere representation, and not a warranty. Aetna Ins. Co. of Hartford, Conn., vs. Norman (Appellate Court of Indiana), 40 N. E. Rep., 1116. WHEN STATEMENTS IN APPLICATION ARE WAR- RANTIES.— Where the parties in a contract of insurance have expressly agreed that the validity of the contract iis to depend upon the existence of a fact, courts will not inquire as to the ma- teriality of such fact to the risk, but treat the question as settled by the express- agreement. The very ground of the rule is that the contract has been made the fact a warranty, and material. Consequently, where there Is no such agreement there is no war- renty. Statements by one party can only be given the effect of a warranty when they have been adopted by the other party, and when both have agreed that they are to have that effect. Liverpool & London & Globe Ins. Co. (Couit of Civil Appeals of Texas), 29 S. W. Rep., 678. BREACH OF WARRANTY IN FIRE INSURATSTCE POL- ICY'.— A warranty in a fire insurance policy, that the insured is not to work at night or by artificial light, is not broken by the use of artificial light in the nighttime for a pm'pose other than performing work. In an insurance policy insuring a gin house, a warranty that the insured will keep a barrel full of water and two buckets in the same room as, and within ten feet of the gin stand, is broken by keeping the barrel in an adjoining room which is inaccessible at the time of the fire, on account of cotton piled around the door, though such barrel is within seven ieet of the gin stand. Mechanic's and Trader's Ins. Co. vs. Thompson (Supreme Court of Arkansas), 21 S. W. Rep., 469. WAREHOUSEMAN. INSURANCE BY ^WAREHOUSEMAN.~The question as to whether a warehouseman agreed to insure a consignment is a question of fact. An agreement by a warehouseman not to Insure controls over a custom to insure and precludes the shipper from sharing in any open policies in the warehouseman's possession. Cottrell vs. Brannin (Court of Appeals of Ky.), 20 S. W. Rep., 703. WATCHAIAN. 271 WATCHMAN. COXDITIOX NOT BROKEN BY WATCHMAN SLEEFiNU —A policy conditioned ihactlie 'nsured keep a watchman on dUTv at night is net avciided b> the fact that the watchman, in t'.uj em- ployment of -ivhom iiibuied u-^ed reasonable diligence, was at the time of the lire a&ieep on the premises. Burlington Ins. Co. vs. Coffman (Ct. Civ. App. Tex.) 35 S. W. Reporter, 407. WHAT IS NOT A COMPLIANCE WITH WATCHMAN CLAUSE. — That an employe of insured, who worked ahout in- sured's buildings dm-ing the day, and slept at night in a house about 350 yards distant from same, visited the buildings several times during the night, is not a compliance with a warranty in the policy that a watchman should be kept on duty "constantly day and night in and Immediately about" the buildings insured. Such breach avoids the policy, irrespective of its materiality. McKenzie vs. Scottish U. & N. Ins. Co. (Sup. Ct. Cal.), 44 Pacific Reporter, 922. IN THE CASE OF THE HANOVER FIRE INSURANCE CO. TS. GUSTIN. the Supreme Court of Nebraska decided that the statement in an application for the issuance o€ a policy of in- surance on a planing mill, that "a watchman is kept on the premises at night, and at all other times when the works are not in operation or the workingmen present," should receive a reason- able construction, and therefore the mere temporary absence of such watchman within the time contemplated did not relieve the insurer from liability for loss caused by a fire which originated during such absence. 59 N. W. Kep. 375. , OOMPAJsY LIABLE THOUGH INSURED'S WATCHMAN WAS ASLEEP. — The application for insurance on a mill con- tained an agreement by insured to "have a watchman on the premises at -al^ht and on Sundays, and at all times when work is suspended." The policy recited that "it is warranted on the part of the insured that a watchman shall be kept on duty at night, or this policy shall be void." The Court of Civil Appeals of Texas held that, insured by employing a reliable watchman and charging him with the duty of watching the premises, sub- stantially complied with the contract in that respect, though the watchman may have been asleep at the time of the fire. Phoenix Assur. Co. vs. Coffman, 32 S. W. Reporter, 810. 272 INDICATOR'S DIGEST. LIFE INSURANCE ACTION. ACTION ON INCONiTBSTABOE POLICY.— A clause in a policy, providing that if the insured should die three or more years after the date thereof, and after all due premiums were paid, the policy should be inoo-ntestable, did not preclude the com- pany from asserting as a defense to an action on such a policy that the action was not brought within six months from the in- sured's death, as required by the policy. Brady vs. Pi-udential Ins. Co. (Supreme Court of Pennsylvania),^ 32 At. Rep., 102. DATE OIF lOOMMENOBMENT OF ACTION.— A life policy provided that no action should be brought upon it until thirty days after the receipt by the insurer of proofs of death of the insured. The complaint in the action alleged that proofs of death were delivered to and received by the insurer on a certain date, which was more than thirty days before the filing of the complaint, upon which alone the summons by which the action was commenced could be issued. The court held that reference could be made to the date of filing of the complaint, to deter- mine whether the action was prematurely brought, and the omission of a distinct allegation that the thirty days had elapsed did not render the complaint defective. Conn. Mut. Life Ins. Co. vs. McWhirter (U. S. Cir. Ct. App.), 73 Federal Reporter, 445. ACTION ON POLICY: PLEADING IN TEXAS.— In an ac- tion on a life policy on the joint lives of a party and his wife, containing a provision that no forfeiture should be declared for non-payment of premium, unless a notice in writing should have been mailed by the company to the insured, it was error to admit, over objection, evidence of such notice and forfeiture, where they had not been afiirmatively alleged by the company, though the party suing had alleged, and the company, by both general and special denials, denied that the policy was in force at the date of the death of the wife, and that the husband and the wife had complied with the terms of the policy as to the payment of ijremiums. Mullen vs. Mut. Life Ins. Co. (Sup. Ct, Tex.), 34 S. W. Rep., (303. ACTION— ADMINISTRATOR. 275 IN AJSf ACTION ON A LU^ INSiURAiNCE, the defense waa that at the time of effecting the insurance deceased had chrouie epilepsy, and it appeared that durinig his childhood he was sub- ject to fits or weak spells. The Supreme Court held that, his father and sister having testified that he was not so troubled for 12 years before the policy was issued, and that he was in good health at that time, it was proper to refuse to charge pei-emptor- ily for the company. Dietz vs. Metropolitan Life Ins. Co., 32 At. Rep., 119. THE SUPREME COUIOT OF NEW YORK holds, antenuptia,! agreement by a wife that she will not claim any dower, or any share or interest in the husband's personal estate, does not estop her, after the husband's death, to claim under a policy on his life, issued while he was married to his first wife, providing that the insurance money shall be paid to his personal representatives "for the benefit of his widow, if any." Van Dermoor vs. Van Dermoor 30 N. Y. S., 19. ACCOUNTING. BILL FOR ACCOUNTING UNDER SEMl-TONTINB POL- ICY. — The relation between the holder of a matured semi-tontine policy and the insutance company is that of debtor and creditor merely, and Involves no tnist relation; and a policy holder who is. dissatisfied with the amount of the surplus which is apportioned; to him by the company, pursuant to the terms of the policy, can- not maintain a bill for an account and discovery when there are- no siifiicient allegations of fraud. Everspn vs. Equit. Life Assur. Soc. U. S. (Cir. Ct. App. U. S.), 71 Federal Reporter, 570. ADMINISTRATOR. RIGHTS OF RBPRESENTAlTIVES APPOINTED IN DIF- FERENT STATES. — An administrator of the deceased holder of a life insurance policy appointed in the State where the policy is. and having possession of the policy, is entitled to recover the- amount du« thereon, as against an administrator appointed in any other State, including that in which the decedent resided at. the time of his death. New York Life Ins. Co. vs. Smith (Circuit Court of AppealSi Ninth Circuit), 67 Fed. Rep., 694. -274 INDICATOR'S DIGEST. THE MERE FACT THAT A POLICY HAS been made "pay- able to the assured, his executors, administrators, or assigns," the Supreme Court of Louisiana holds, does not authorize an insur- ance company to insist that the succession of the deceased policy- holder should be placed in the hands of an administrator, in order to make payment to him, when the heirs have been placed in possession by order of the court, unless special circumstances are shown, which would make a payment co the heirs dangerous. Pratt vs. Manhattan Life Ins. Co., J.7 So. Rep., 341. ADMINISTRATION IN DIFFERENT STATES— SUITS ON TilFE INSURANCE POLICY.— A -widow, shortly after her hus- band's death, removed from Illinois to Oalifcrnia, taking vedth her .a policy of insurance on her husband's life, and there took out let- ters of administration, and brought suit on the policy. In the meantime an administrator had been appointed in Illinois and had there brought suit on the policy. The pendency of the Illinois suit was no bar to the California suit, for the policy was assets of the estate in the latter State and the issuance of the letters of administration was legal. The California suit could not be de- feated on the ground that the deceased, before his death, had as- signed the policy to a third person, it appearing that such assign- ment was made for the purpose of defrauding his creditors, of whom his wife was one; for Civil Code, California, makes all transfers of property with intent to defraud any creditor, void as to all creditors, and makes it the duty of an administrator where there is a deficiency of assets, to sue for all property conveyed by the decedent for the purpose of defrauding Ms creditors. The alleged fact that the conveyance was valid by the laws of Illinois, where it was made, was immaterial, lor the laws of Illinois could not affect property and credits in California, against the express provisions of the California statute. Smith vs. N. Y. Life Ins. Company (Circuit N. D. Cal.), 57 Fed. Rep., 133. ADVANCEMENTS. ADVANCEMENTS OX LIFE POLICIES.— Insurance by a father on his life in the nam^ of a son, or in his own name and subsequently transferred to hi^; son, is, in the absence of evidence showing a different intention, termits him to use it. Porter vs. United States Life Ins. Co. (Supreme Judicial Court of Mass.), 35 N. E. Rep., 578. AUTHORITY OF AGENT TO DELIVER POLICY BEFORE PAYMENT OF PREMIUM:.— The provision in a policy that it shall not take effect unless the premium is actually paid, if it stood alone, would, of course, limit the agent's authority to de- liver a policy until he had received a cash premium; but where the ctistom of agents to give credit in certain cases to persons with whom they are well acquainted, and knew to be responsible, and not to call for the money at the time the policy was delivered; and one of the instructions given to such agents affords a strong presumption that the custom was known to the company, as the instruction states that agents must not deliver policies tmtil the whole premiums are paid, as the same will stand charged to their account until the premiums are received or the policies are returned to the office. "Where the policy is delivered without requiring payment, the presumption is — especially if it is a stock company— that a credit was intended: and the rule is weU settled, where a credit is in- tended, that the policy is valid, though the premium was not paid at the time the policy was delivered, as, where credit is given by the general agent, and the amount is charged to him by the com- pany, the transaction is equivalent to payment. Smith vs. Provident Sav. Life Assur. Soc. (Circuit Court of Appeals. Sixth Circuit), 65 Fed. Rep., 765. 276 INDICATOR'S DIGEST. AGENT OF INSUEEE OK INSURED— Where an application for insurance was taken by an agent who was accustomed to solicit insurance for the Insurer, and the agent, without the knowledge or fault of the insured, intentionally inserted false answers to the question in the application blank, though the questions were answered truthfully by the insured, the acts and knowledge of such agent are imputable to the insurer, though the application contained a stipulation that the agent solicited and took the application as the agent of the insured. Bernard vs. United Life Ins. Co. (Sujp. Ct. App. Div.) 30 N. Y. S. Reporter, 35G. AUTHORITY OF AGENTS TO WAIVE CONDITIONS IN LIFE IXiSURAXGE POLICY.— Where a life Insurance policy pro- vides that no agent can alter, modify or waive any of the terms or conditions of this policy, and that if any subsiequent premium thereon be not paid when due, and a separate receipt, signed by the president or secretary of the company in each case, given therefor, then the policy should cease, the general agents of the o -mpany, without its consent, cannot extend the time for its p'.iyment. Where such agents, under a custom in their office, of which the company has knowledge, has liberty, not to make any new agreement as to time for paying premiums, but accept pay- ment after they are due, and thus waive the right to claim a forfeiture, provided that at the time the conditions have not been changed by an alteration in the health of the Insured, and they extend the time of a payment of a premium by the assured, the risk is on him, that, pending the day granted by his agents, he may change in health or die, and his insurance be lost; and, in case of his death before payment, the policy is forfeited. Conway vs. Phoenix Mut. Life Ins. Co. (Court of Appeals of N. y.), 35 N E. Rep., 420. POWER OP INiSURAlNiCE AGtHNT.— A party executed his note to D, personally, in payment of the premium for insurance in a company of wihioh D was Stat© manager, receiving from the latter a contraiot giving him a riglit to renew the note for three years, and D receipted for tie noit© in an official capacity, on a blank furnished by the company. The first note was taken up and a second not© given at the instance of B, who signed him- self "Supt. of Agents," and subsequently at th© request of S, who appeared on the letter heads bearing the company's name as "icashier," and so signed in the letters to the insured. The latter sent a third mote, with a check for the interest due, the receipt of which was acknowledged by S^ as cashier, and S forwarded a new policy and promised to return th© second note. It appeared that D acted for the company in selecting its medical examiners, and had authorized insured to recommend suitable persons for suicih position; that he also .had authority to solicit insurance, and that S was in the employ of both D and the company. ' The policies were issued from the company's home office in another State. The court held that the taking of the premium note, and the renewals, were within the apparent scope of D's employment, and that the company was bound to return the second note, which insured had renewed. Getz vs. Equit. Life Assur. Sec. U. S. (Supreme Ct Iowa) 64 N. W. Reporter, 799. AGENT. 277 WHEN ADMISSIONS 0.F AGENT ARE NOT BINDING — Where an insurance policy provides that agents of the insurer are not authorized to make, alter or discharge contracts, waive forfeitures or receive premiums in arrears, the sr:itements of an asent employed solely to collect weekly premiums are not bind- ing on the company. Eisner vs. Frudential Ins. Co. of America (City Court of Brooklyn, General Term). 34 X. Y. Snp. Rep.. 246. LIABIOTY FOR AGENT'S DEFAULT.— Where a note is given to an insurance agent by an applicant for a ixjlicy to pay the premium, with the understanding that the note will be re- turned if the policy is not issued, and the policy is not issued, the insurance company is liable to the maker of the note in the case the latter is compelled to pay it at the suit of a bona fide pur- chaser from the agent, to whom it was made payable. New York Life Ins. Co. vs. Baese (Court of Civil Appeals of Texas), 31 S. W. Rep., 824. RIGHTS OF AGENT ON DISCONTINUANCE OF BUSI- NESS. — A person was appointed general agent of a life insurance company, to solicit insurance on the "natural premium plan," as distinguished from "the level premium plan." He was to receive as compensation a certain commission on all first and renewal premiums collected on policies issued under the contract. The company agreed, in case of a discontinuance of the agency for any cause except dishonesty, after he had secured a certain amount o(f insurance in force, to collect all the premiums possible, and pay to him a certain per cent of the renewal commissions collected for a period of five years. The contract provided that the company could terminate the contract "upon the neglect or re- fusal of the agent to account for all moneys belonging to the company, or for dishonesty," or for non-compliance with certain rules and instructions. The company abandoned the "natural premium plan" without the agent's consent, and refused to allow him to solicit risks according to that plan. This action con- stituted a wrongful termination of the agency. After thus ter minating the agency, the company endeavored to induce persons wiom the agent had insured on the "natural premium plan" to change their jxjlicies for "level premium policies." Even conced- ing that the agency was not wrongfully terminated, this action constituted a violation of the company's engagement to collect renewal premiums and pay the agent a percentage thereof. When a person agrees to act as agent for a life insurance company, for a stated commission to be paid on premiums collected, he cannot abandon the agency at any time without cause, and sue the com- pany for the reasonable worth and value of his services. And in an action by a general insurance agent against his principal for services rendered under an express contract, which was wrongfully terminalred by the principal, when all the facts are stated in the complaint entitling him to recover damages as for the violation of the express covenant, he may recover his damages for that breach even though he has asked to have his damages assessed for the reasonable worth and value of his re- newals. , Newcomb vs. Imperial Life Ins. Co. (United States Circuit Court of Missouri), 51 Fed. Rep., 725. 27S INDICATOR'S DIGEST. SUPERINTENDENT OP AGENTS IS NOT A MANAGING AGENT.— All agent of an Insurance company, wliose duties are confined to superintending certain soliciting agents, whom he has no authority either to employ or discharge. Is not a "managing agent" on whom summons against the company may be served. Schryver vs. MetroDolitan Life Insurance Co. (Ulster County Court), 29 N. Y. S., 1092. CONDITIONS IN PO'LIOIBiS AS TO POWER OF AGEiNTS.— A provision in a life insurance policy withholding from the agents authority "to mate, alter, or discharge this or any other contract in relation to the matter of this insuraiLce," does not limit the powers of the insurer's agents in preparing and accept- ing an applicant for insurance. Mutual Ben. Life Ins. Co. vs. Robison (Circuit Court of Ap- peals, Eighth Circuit), 58 Fed. Rep., 723. SERVICE ON CORPORATION MAY BE SERVED ON MAN- AGING AGENT. — A local superintendent of a life insurance com- pany, who has general supervision of the business of his district. Is a "managing agent," on whom process against the company may be served, as provided by statute. MuUins vs. Met. Life Ins. Co. (Supreme Court, General 'Term, First Department), 28 N. Y. Supp., 959. AUTHORITY OB" AGENT MUST BE STATED.— A com- plaint in an action on a life insurance policy, which to avoid de- fault in payment of premium which would forfeit the policy must not only allege that the agent extended the time, but must state that he had authority to do so; Mut. Life Ins. Co. vs. Wilson (Ct. App. Ky.), 34 S. W. Rep., 708. VALIDITY OP AGREEMENT BY AGENiT.— An arrangement or agreement made by the agent of an insurance company, where- by the rentals due for his private apartments should be deemed payment of the assured's premium, is wholly beyond the scope of the agent's power as the manager or general agent, and is not binding upon the company, unless authorized by previous author- ity or subsequent sanction. Whatever an agent does can be done only in the way usual in the line of business in which he is acting. There is an implication to this effect arising from the nature of his employment, and it is as effectual as if "expressed in the most formal terms. It is present whenever his authority is called into activity, and prescribes the manner, as well as the limit of its exercise. The mistaken confidence in the personal integrity of the agent cannot affect the company or relieve the assured from the consequence of his failure to pay the premium, within the prescribed time. While hardship may soinietimes result from such confidence, it is better so than to relax the familiar rule that an agent cannot bind his principal by acts done without authority; and that other rule, that all persons dealing with an agent, are bound to ascertain the scope of his authority or otherwise they act at their peril. Sullivan vs. Germania Life Ins. Co. (Supreme Court of Mon- tana), 39 Pac. Rep., 742. AGENT— APPLICATION. 279 RIGHT TO TERMINATE INSURANCE AGENCY.— The con- tract of an insurance agent to commissions on renewal policies does not make his agency an agency coupled with interest, so as to prevent the company terminating it at will. Stier vs. Imperial Life Ins. Co. (Circuit Court, W. D. Mis- souri). oS Fed. Rep., S43. KNO'n'LEDGE OF AGENT.— Where a policy provides that uo agent can stipulate for a modification of its provisions not brought t.> the knowledge of his principal officers, knowledge of the general superintendent that material statements in the appli- cation were false is not knowledge on the part of the company. Ward vs. Met Life lus. Co. (Sup. Ct. En. Conn.). 33 Atlantic Reporter. 902. BOI'ND BY AGENT'S ACTS.— A person beirg canvassed for life insurance t>y an agent, took out policies on the lives of her sister and brother, payable to herself, having signed their names to the application with the knowledge of the agent. After sev- eral years she ascertained that the policies were void on that account, and brought an action to recover the premiums paid. Here the company was chargeable with the agent's knowledge of the invalidity of the policies, and the person was entitled to recover, though the facts were never communicated to the com- pany. The company having received the person's money, and had the benefit of it. could not defend the action on the ground of the person's negligence in falling to read the conditions of the contract of insurance appearing in the premium receipt books furnished her. The defense that the one suing had forged the nan'es of her sister and brother to the applications, and that she was attempting to take advantage of her own wrong in maintain- ing the action, could not be sustained in the absence of any evi- dence of intent to deceive, and of any representation on her part that they were genuine, and, in view of the agent's assurance of her competency, to sign their names. Fulton vs. Meti-opolitan Life Ins. Co. (Court of Common Pleas. of New York City and County^ 19 N. Y. Sup.. (16O. APPLTCATIOX. APPLICATION .A.S EVIDENCE IN PENNSYLVANIA.— t'nder the Pennsylvania statute which provides that an applica- tion for an insurance policy not attached to the policy shall not be considered a part thereof, the court properly rejected an ap- plication detached from the policy, offered in evidence by the in- sm-ance company In an action against it on the policy. It will not be presumed that the application was ever attached thereto: that fact. If it existed, beng, of necessity, within the knowledge of, and capable of being shown by. the company. Mahone vs. Pacific Mut. Life Ins. Co. (Supreme Court of Pennsylvania), 22 At. Rep., .S70. 28o INDICATOR'S DIGEST. ESTOPPEL OF INSURER TO DISPUTE TiRUTH OP AN- SWER. — When an applicant for lite insurance, in answer to a question, states the facts fully and truthfully, and the agent of the company, authorized to ask tie question and -write the answer, putting his own construction on such facts, dedfuices therefrom on erroneous answer, which he writes down, assuring the applicant th'it it is the proper answer upon the facts stated, and' the one the Insurer wants, the insured is not precluded by his ^yarranty in the application from showing the fa;cts and circumstances under which the answer was made, and when so shown the insurer is estopped from questioning the truth of the answer. Mutual Benefit Life Ins. Co. vs. Bobison (Circuit Court of Appeals, Eighth Circuit), 58 Fed. Rep., 72.3. CONSTRUaTION OF STATEMENTS IN APPLICATION.— The statements contained in an application for a policy of life insurance will not be construed as warranties, which, if untrue in any particular, would avoid the policy, unless the provisions of the application and policy, taken together, leave no room for any other construction. While in the application for a policy, it is declared that all statements written on the application are warranted to be true, inasmuch as the policy refers to the an- swers to the questions contained in the application as state- ments, and not as warranties, the court will construe them merely as statements; and therefore holds that the insured is bouna only" to the exercise of good faith, and to answer truth- fully as to all matters within his knowledge, .md an omission to state a fact which he honestly deemed immaterial will not vitiate the policy. Northwestern Mut. Life Ins. Co. vs. Woods (Supreme Court of Kansas), 39 Pac. Rep., 189. APPLICATION FOR LEPE POLICY— CHANGE OF AN- SWl'JRS BY AOBNT.— Action by appellant against the appellees (bust' and and wife) to iL-ancel a policy of life insurance on the iusbf ad which is made payable to the wife. The complaint charg-s, as a ground for cancellation, that the policy was pro- cured \)y means of false and fraudulent answers contained in the apfflication, viz.: "Has any application for insurance upon your lif V ever been made to any company upon which a policy has not beei" granted? No. Has any unfavorable opinion upon the insurable aess of your lite ever been given by a physician? No." During tt? pendency ot this suit the insured died, and upon re- fusal to pcy the loss, a, cross complaint was filed by the benefi- ciary, demi-uded judgment, and upon submission a special finding was made i.-xjon which judgment was rendered favorable to the appellee ben >ficiary. The appellant company appealed to this court, wherehv it is held, that an insurance 'company cannot, after assured b.^s been fatally injured, avoid the policy on his life. Issued on an aj.'^lication written out by a state agent, though the agent wrote '■herein "No," in place of applicant's answer "Yes," to the queati'vn whether he had been rejected for life in- surance, and though a copy of the application was attached to the policy in assured 's possession, neither assured nor the benefi- ciary having known of such change. Judgment for appellee af- firmed. Michigan Mutual Life Ins. Company vs. Leon (Indiana Su- preme Court), .37 N. E. Rep., 584. APPLICATION. 28i EFFECT OP AGENT SIGNING APPLICATION FOR IL- LITERATE PERSON.— Where an agent soliciting life insurance fills out an application for an illiterate person, and signs tlie same, without informing him of its contents, there is no warranty by the assured of the truth of the facts therein stated. O'Rourke vs. John Hancock Mutual Life Ins. Co. (Fifth Dis- trict Court of New York City), 30 N. Y. S., 215. JIISREPRESENTATIONS IN APPLICATION— QUESTION FOR JURY. — Under the statutes, providing that misrepresenta- tion in the negotiation of insui-ance by the assured shall avoid the policy, unless made with Intent to deceive, or unless it increased the risk, false answers to questions made on application for a policy which provided that false answers would render it void must also be shown to have been made with intent to deceive. Whetiier answers to questions set out in an application for life insurance were false, and made with intent to deceive, is a ques- tion for the jury. Levie vs. Metropolitan Life Ins. Co. (Supreme Judicial Court of Massachusetts). 39 N. E. Rep.. 792, INTERPRETATION OP ANSWERS EST APPLICATION.— A check mark (V) placed opposite a question as to whether any proposition, negotiation, or examination for insurance on the ap- plicant's life had been previously made, on "which no policy was issued, cannot be construed as a negative answer when it appears that like check marks were placed opposite certain other ques- tions which previous answers seemed to render immaterial, ap- parently meaning that the question was noted but no answer was deemed necessary, and that, as a matter of fact, although the applicant had made other applications, he could not have known at the time in question whether or not policies had been issued thereon. Manhattan Life Ins. Co. vs. P. J. Willis & Bro. (Circuit Court of Appeals. Fifth Circuit), 60 Fed Rep., 237. STATEMENTS FOR PENSION AND APPLICATION FOR LIFE INSURANCE. — Statements made to a third party, by one applying for a pension, as to his physical condition at that time, are inadmissible in a suit on a policy of life insurance afterwards applied for and obtained by the pensioner. Statements made by an applicant for a pension, to one act- ing as his attorney, are privileged communications, and cannot be proved in an action on a life policy, subsequently applied for and obtained by the pensioner. The report of the physicians who examined a person on his application for a pension is not admissible, as to his physical condition at that time, as tending to show the falsity of state- ments afterwards made by him in an application for lite insur- ance, where it does not appear that he knew of the report or its contents. Affidavits of his neighbors in support of his appUcation for a pension, containing statements as to his health, are not admis- sible, where it does not appear that he procured them, or that he knew of the contents of such affidavits. Mutual Life Ins. Co. vs. Selby (U. S. Cir. Ct. App.), 72 Fed- eral Reporter, 980. 282 INDICATOR'S DIGEST. SUBSEQUENT STATEMENTS OF INSURED.— Proof of a statement made by insured, after tlie issuance of a life policy, contradictory of statements made in Ms application, is not ad- missible, as against the beneficiary in an action of the policy. Thies vs. Mut. Life Ins. Co. (Ct. Civ. App. Tex.), 35 South- western Reporter, 677. MISRBiPRESElNTATION IN APOPLICATION.— An answer, in proofs of death, that the insured had had "kidney trouble" is not inconsistent with an answer in an application that he never had "disease of the kidneys." Hogan vs. Met. Life Ins. Co. (S. J. Ct. Mass.), 41 N. E. Re- porter, 663. MASSACHUSETTS LAW CONSTITUTIONAL.— The Su- preme Judicial Court of Massachusetts holds that the law of 1887, as amended in 1892 and 1893, of that State,' providing in effect, that in an action on a life policy, where the application is not attached to the policy, and therefore not a part of it, and that oral evidence is not admissible to prove that statements referred to in the policy and material to the risk were untrue, is not un- constitutional as a restriction on the liberty of contract, guaran- teed by the Declaration of Rights, of that State. Considine vs. Metr. Life Ins. Co., 43 N. E. Reporter, 201. EiPPBCT OP FALSE; STATEMENfTS IN APPLICATION.— A false answer to an appJioation for insurance to- a question, constituting a warranty, as to whether he ever had any of cer- tain enumerated diseases and ailments will constitute a breach of the contract, though such disease or ailment is not material to the risk, unless the same was not inherent but temporary, and due to extraordinary and exceptional outside causes, such as ex- cessive work or heat. Mutual Life Ins. Co. of New York vs. Simpson (Supreme Court of Texas), 31 S. W. Rep., 501. AVHEX INCORRECT ANSWER DOES NOT AVOID POL- ICY.— The fact that the word "no" is given as the answer to the question in the application whether any relative had died of cou- siumption or any pulmonary disease does not avoid the policy, though it appears that a brother of the applicant had died of pneumonia some years before, where the answers were written by the medical examiner, and the applicant, Avhen questioned as to the death of the brother, said that she did not know of what disease he died. Alger vs. Metropolitan Life Ins. Co. (Supreme Court, General Term), 32 X. Y. Sup. Rep., 323. NOTICE OP PORMER AVRITTEN APPLICATION.— A com- pany is charged with notice of a former written application and examination of insm-ed, forwarded to its general agent, and not accepted. An informal unwritten examination, not based on a written application, and stopped by the examiner as useless, is within the meaning of the question whether any proposition or negotiation or examination for life insurance has been made in this or any other company on which a policy has not been issued. Mutual Life Ins. Co. of New York vs. Nichols (Court of Civil Appeals of Texas), 26 S. W. Rep., 998. APPLICATION— ASSIGNMENT. 285 FALSE STATEMENT AS TO AGE AVOIDS POLICY.-In an application for insurance, where the assured, in answer to ques- tions asked of him, had represented and warranted himself as one year younger than he rea'.ly was, such answers were warranties, and will be regarded as material to the risk, and being false, avoid the policy. Schmin. vs. National Life Ins. Co. (Supreme Court, General Term, 3rd Dejit.). 32 N. Y. S. Rep., 513. ASSIGNMENTS. EFFECT OF ASSIGNMENT OF POLICY.— A life insurance policy, assigned by an insolvent debtor, as security, to one of his creditors, becomes the property of his estate upon the transfer by that creditor of his claim to another. Morgan vs. Dugan (Court of Appeals of Maryland), 30 At. Rep.. 55S. RIGHTS UNDER AN ASSIGNED POLICY— Where a bene- ficiary of a life policy assigned it to another vyith a condition fhat, at maturity, $L500 of the proceeds should be paid to the assignor, and the assignee paid assessments amounting to $2,S00. and the total sum due on the policy was §2,774. the assignee was only en- titled to the balance after paying the assignor the .$l,5iX). Light vs. Lauser (Sup. Ct. Penna.) 34 Atlantic Reporter, ■6r,_). ASSIGNMENT OF LIFE INSURANCE POLICY FOR BENE- FIT OF CREDITORS.— Where a debtor takes out a policy of life insurance and after holding it a short time, in good faith, trans- fers it by Indorsement to some of his creditors, taking from them an agreement by which they were to pay the premiiinis, and, from the proceeds of the policy retain the amount of their claims, and pay over any surplus remaining to his heirs, such a trans- action is not in fraud of creditors not participating, and is valid and will be sustained. Johnson vs. Alexander (Supreme Conrt of Indiana), 25 N. B. Rep., 706. ASSIGNMENT OF LIFE INSURANCE POLICY.— Where a life Insurance policy is assigned to a creditor of the assured, and the policy delivered to him, and thereafter a i>art interest therein is reassigned to the assured, and the policy delivered back to him with the original assignment attached to it in such a manner as. to admit of its being readily removed without showing any signs of such removal, the assignee is guilty of such a lack of care of his own interest, that he cannot recover anything if the policy is thereafter surrendered for a paid-np policy assigned to another, unless he can show that the parties to the transaction, aside from the assured, had notice of the assignment to Wm, or of such facts in regard thereto as wooald put a prudent man npon inquiry. Bridge vs. Wheeler (Supreme Judicial Court of Massachu- setts), 25 N. E. Rep,, 612. 284 INDICATOR'S DIGEST. ASS'IGNiMENT OiF INiSUftANOB POLIOY.— An assignment of a life insurance policy is governed by the laws of the place where the assignment is made. Criswell vs. Whitney (Appellate Court of Indiana), 41 N. B. Rep., 78. ASSIGNMENT OF POLICY.— Under the statute, providing that'a policy for the benefit of the wife of the insured may be assigned by her with the written consent of her husband, such a policy is not assignable by the iwife during the life time of the husband where it provides that, in ease of the death of the wife before the husband, the insurance shall go to their (ihildren. Where such policy provides that it cannot be assigned except in writing, a mere delivery by the husband and wife, to secure a Joint note executed by them, does not operate as an assign- ment of the policy, but is only a pledge of the wife's contingent interest in the policy. Travelers' Ins. Co. vs. Healy (Supreme Court, General Term, Third Department), 33 N. Y. Sup. Rep., 911. INTEREST OP ASSURED IN LIFE INSURANCE POLICY ASSIGNED TO CREDITOR.— The assured under a life insurance policy assigned it to one of his creditors, who was to pay the premium, the proceeds to be applied to any indebtedness existing lietween them and the balance, if any, to go to the assured's legal representatives. A few years later the parties had a settlement which was put in writing, no mention being made of the insur- ance. The creditor paid the premiums until the policy became self-supporting. After the death of the assured his representa- tive sought to recover the proceeds of the policy. In the absence of any evidence of an agreement of the parties after the settle- ment, it is presumed that such original agreement continued and the representatives of the assured are entitled to the proceeds of the policy, less the amount paid as premiums by the creditor and interest thereon. ^ Shackelford vs. Mitchell (Common Pleas of New York City and County), 10 N. Y. Sup., 122. FORM OP DECISION IN NEW YORK.— In an action by a receiver in supplementary proceedings to set aside an assignment of policies on the life of a judgment debtor, and to impress a trust on the proceeds of the policies, the judge handed down a memorandum of decision discussing certaia questions of law. Taut not formally stating a determination of all the issues in- volved or any direction to enter judgment, except the words "judgment for defendants, with costs." But it stated, first the plaintiff's legal right to the policy, then stated a conclusion on two questions of fact, followed by a discussion of plaintiff's claim against certain of the defendants, but not deciding plain- tiff's claim as against the other defendants. The court held that such a decision was insufiicient to authorize the entry of a judgment dismissing the complaint and awarding costs. And an order awarding life insurance to one of the claimants as against the other will not justify the company in paying the amount to such person, where it had knowledge of the fact that a third person, not a party to such action, held the legal title to the policy. Reynolds vs. Aetna Life Ins. Co. (Sup. Ct. App. Div.), 39 N. y. Supp. Reporter, 885. ASSIGNMEXT. 2S5 ASSIGNMENT OF LIFE INSrRANCE POLICY.— A creiii- tor, by the transfer to him of a policy on the life of his debtor, can acquire no greater interest iu the policy than such sum as will pay his debt and interest, and premiums paid by him and interest. Cawthorn vs. Perry (Supreme Court of Texas), 13 S. W. Rep., 2G3. ■\VH-\T IS NOT AN ASSIGNMENT OF INSURANCE POL- ICY. — That insured executed a Toluntary assignment of the policy on his life, in duplicate, and mailed a copy to the insurer, in ac- cordance with its rules, the other being retained by insured until his death, does not constlttite an assignment. Spooner's Adm'r vs. Hilbish, ex'r, (Sup. Ct. App. Va.), 23 S. E. Rep., 751. YALIDITY OF ASSIGNMENT OF LIFE INSURANCE POL- ICY. — Under the statutes, providing that any policy for the benefit of the wife of the insured may be assigned with the written con- sent of the husband, such a policy is assignable, though it provides that, in case of the death of the wife before the husband, the insurance shall go to the children. Since the policy can only be assigned in writing, a mere delivery by the husband and wife to secure a joint note executed by them does not transfer any inter- est in the policy, either by pledge or otherwise. Travelers' Ins. Co. vs. Healey (Supreme Court, Special Term, Rensselaer County), 2S N. Y. Supp., 47S. ASSIGNMENT OF LIFE POLICY.— An instrument reciting that "I. the * * * person insured, * * * hereby request and authorize the said company, in the event of my death prior to the death of the person hereinafter named, to pay the benefit specified in sfid policy to M.. and the receipt signed by said person shall be conclusive evidence that such sum has been paid * * * and that all claims under this policy have been fully satisfied,'' but that "nothing herein is to vary * * « any of the provisions of said policy," is such an assignment of a life policy payable to the executors or administrators of the as- sured as will authorize M. to sue thereon in her own name. Grogan vs. U. S. Indus. Ins. Co. (Sup. Ct., 3rd Dept), 36 N. Y. S. Reporter, 687. INTEREST AND RIGHTS OF INSURED AND OF BENE- FICIAillES IN POLICY— ASSIGNMENT OF POLICY' TO SE- CURE DEBT— JUDGMENT FOR DEBT. EFFECT OF.— Where an insurance was effected upon the life of a person for the bene- fit of her father, brothers and sisters, the beneficial interest in the policy, as soon as it was issued vested in them, and the con- tract of the insurers being to pay them the moneys payable under the policy, the insured could not by any act cif hers de- prive them of the interest so vested in them, or of their right to call upon the insurers for payment; and an assignment made by her to a stranger to secure a debt had no effect upon their inter- est or right; but an assignment made by the father to such stranger was effectual to transfer his individual beneficial inter- est and right, and the assignee thereby became the mortgagee of such interest and right; and the recovery of a judgment by the assignee against the father for the amount of the debt did not preiudicially affect the security. Dolen vs. Metropolitan I>ife Ins. Co.. .31 C. L. J., 97; 26 O. R.. 07. 286 INDICATOR'S DIGEST. ASSIGNMENT OF POLICY "AS INTEREST MAY AP- PEAR."— Where a life insurance policy is assigned, payable to the assignee as interest may appear, on his promise to pay the pre- miums and keep the policy alive, the assured is entitled to a re- assignment of the policy on repayment of yrhat the assignee has paid on the policy. Bohleber vs. AVaelden (Supreme Court of N. Y.), 23 N. Y. S., 391. THiB S'UiPRJEME COURT OF NEW YORK holds that an as- signment of a life insurance policy on consideration that the assignee "Iteep the insured from want" is absolute, and will not be uet aside for failure of the assignee to perform his agreement, fraud or mistake being the only ground for cancelling an Instru- jnent, but the assignor's remedy is an action for damages or .."'ircific performance. Bohleber vs. Waelden, 30 N. Y. S., 312. RIGHTS OF ASSIGNEE IN ASSIGNMENT OF LIFE POL- ICY. — That an absolute assignment of a life policy was merely Intended to secure a debt due the assignee is shown by an allega- tion in the petition of the assignee for the appointment of an administrator of the estate, of the assignor that he -was a credi- tor of the estate for the debt so secured. Out of the proceeds of a life policy assigned by the insured to secure a debt the assignee is entitled to only so much as will satisfy his demand. McDonald vs. Birss (Supreme Court of Michigan), 58 N. W. R;ep., 359. VALIDITY OF ASSIGHSTMEINT OF LIFE INSURANCE POLICY. — An endowment policy, insuring a husband's life for 15 years, provided for the payment of the amount of the insurance to his wife "for her sole use, if living, or, if the person whose life is insured shall survive .said term of 15 years, the sum above insured shall be then paid to him." The interest of the "wlto ceased on the survival of her husband for 15 years; and on as- signment of the policy by husband and wife during the 15 years, though invalid as to the wife when made, was made valid by the survival of the husband for that period. Miller vs. Campbell (Court of Appeals of New York), 35 N. E. Rep., 651. ASSIGNMENT OF INSURANCE POLICY.— An insured as- signed his life policy to a creditor as collateral security for an advancement of premiums, which was also secured by mortgage. After the creditor's death his executors agreed to surrender the policy if the insured would pay them $450, which was a lien on Iiis homestead, and $122 advanced as premiums since the creditor's death. One of the executors advanced the amount for the in- sured to his co-executors, and took an assignment of the policy signed by all the executors, and an absolute assignment from the inaured and the beneficiaries. The lien on the homestead was released. The executor was entitled to receive from the proceeds of such policy the money actually paid by him to his co-executors, with interest, and the balance should be paid to the beneficiaries. Burnham vs. White (Court of Appeals of Kentucky), 22 S. W. Tlep., 555. ASSIGNMENT. 287 EIGHT TO RECOVER SURPLUS ON ASSIONJIENT OF LIFE INSURANCE POLICY.— Where a life insurance policy is assigned as collateral security for a debt, and the amount of the policy is paid to the creditor by the insurance company, the sur- plus, after satisfaction of the debt, may be recovered in an action for money had and received. Sharp vs. Rose (Supreme Court of New York), 20 N. Y. Sup., S26. SCALING AGREEMENT WITH BE-NEIPICIARY.— An agree- ment between an insurance company and the insured and the beneficiary in a life policy for scaling down the amount named in the policy is binding on an assignee of the policy; and an agreement that the amount should be scaled down two-fifths is an extinguishment to. that extent of such amount. Leonard vs. Charter Oak Life Ins. Co. (Sup. Ct. Errors Conut), 33 Atlantic Reporter, 511. ASSIGNMENT UNDER NEW YORK MARRIED WOMEN'S ACT. — Under the laws of New York authorizing a married woman to insure the life of her husband for the benefit of herself and her children, a married woman who has effected such insurance upon the life of her husband has no power to assign the policy during the life of any of her children. An assignment made by lier while one child was living is invalid, and is not validated by the subsequent death of the child. It was void in its inception. and could not be made valid afterwards. Brick vs. Campbell (Court of Appeals of New Y'ork), 2.5 N. E. Rep., 493. RIGHTS OF WIFE IN ASSIGNMENT OF POLICY.— Where an endowment policy is for the benefit of insured, if living, other- wise to estates or assigns, its delivery vests title in the whole of it in both husband and wife; and, though the wife's interest be in some sense contingent, the husband cannot rifterwards divest it by any assignment or pledge oi the policy, A policy on the husband's life for the benefit of his wife cannot be assigned by them jointly to secure his debt. His act cannot divest her inter- est, and her's is void for that purpose. Union Central Life Ins. Co. vs. Woods (Appellate Court of Indiana), 37 N. E. Rep., ISO. BY WHOM CONDITIONS AS TO ASSIGNMENT OF POL- ICY ARE ATAILABLE.— One of the stipulations in a life insur- ance policy was that "no assignment of this policy shall be valid unless made in writing indorsed thereon, and unless a copy of such assignment shall be given to the company within 30 days after its execution." Held, that this provision not being one which goes to the essence of the contract, but being merely designed to protect the insurer against the danger of having to pay the policy twice, by requiring evidence of a change of beneficiai'ies to be put in reliable form, and promptly furnished to the company, no one but the Insin-er can avail himself of a non-compliance with it. An assignment of the policy, although not indorsed on it or given to the insurer, is nevertheless valid as between the parties to the assignment. Hogue vs. Minnesota Packing & Provision Co. (Supreme Court of Minnesota). 00 N. W. Rep.. .812. 288 INDICATOR'S DIGEST. ASSIGNMENT OF POLICY FOR LESS THAN FACE NOT A WAGER— In an action by the assignee of a life policy for $2,000, where the consideration paid was shown to be $700, and there was no evidence as to assured's expectancy of life when the policy was issued or when it was assigned, there was not such a disproportion between the amount of the policy and the consideration as to bar a recovery on the ground that the assign- ment was in the nature of wagering contract. McHale vs. McDonnell (Supreme Ct. Penn.) 34 Atlantic Re- porter, 966. ATTACHMENT. LIFE INSURANCE POLICY NOT ATTACHABLE.— The in- terest of insured in a policy on his life is contingent, and there- fore is not attachable; and the recovery of a judgment in at- tachment does not make it operative as a lien on property which i8 not sub.i'ect to attachment. It can only be attached when the debt is one actually existing in favor of the insured or the bene- ficiary, and has become absolutely payable by the happening of the event upon which its payment conditionally depended. Kratzenstein vs. Lehmann (City Ct.), 39 N. Y. Sup. Reporter, 838. BENEFICIARY. "LEGAL HEIRS" AS BENEFICIARIES.— Where one desig- nates his "legal heirs" as beneficiaries in a life policy, an irre- vocable interest vests in those them living, and, on their birth, those subsequently born, who would on the death of the insured be his heirs. Yore vs. Booth (Supreme Ct. Gal.), 42 Pac. Rep., 808. NAMING BENEFICIARY IN LIFE POLICY.-In an action on a life policy it appeared that the first policy Issued named one C, wife of the party bringing the action. The policy was delivered to her, and the premiums paid by her and her husband Afterwards C. died, and the agent of the company told her hus- band that a new policy should be issued, which was done and the beneficiary specified in it was "Estate." The Court held that the word "Estate" referred to estate of the beneficiary named in the original policy. 37 ^.Tt Reprerf^lil.''^^- '"'■ ^'"^^ ^*- ^^^^ ^'-' '^^ ^^^'■^' BENEFICIARY. 289 CONSENT OF BENEFICIARIES NECESSARY TO RE- LEASE ON. SURRENDER OF POLICY.— Under a life policy payable to insured in t\yenty years, if be was then alive; but in ease of his death before that time payable to his mother, if living; if not, to his brothers and sisters;" and providing that on surrender at the end of three years, "receipted by insured and beneflciaries," the cash value specified would be paid, it is neces- sary on making such surrender, that the receipt be signed, not only by insured and his mother, but by the other beneflciaries. Lockwood vs. Mich. ilut. Life Ins. Co. (Supreme Ct. Mich.), <3C N. W. Reporter. 229. CONSTRUCTION OF POLIOY AS TO BENEFICIARIES. —A policy of life insurance payable to the legal representatives of the insured "for the express benefit" of his wife and two daughters, is presumed to go to the three beneficiaries in equal parts to each; and their rights as such become vested and transmissible upon the issuance of the policy. At the time of the death of the in- sured the only sui-viving beneficiary was a daughter, who was also sole legatee under the will of the mother. Held, that the daughter took one-third in her own right, and one-third also as sole legatee; that the remaining third belongs to the heir of the. other deceased daughter. Small vs. Jose (Supreme Judicial Court of Maine), 29 At. Rep., 976. AUTHORITY TO CHANGE BENEFICIARY.— As a general rule applicable to the ordinary policies of life insurance, where- the policy designates a person to whom the insurance money is to be paid, the person who procures the insurance and who con- tiaues to pay the premiums has no authority, by will or deed, to changt- the designation of title to the moneys. He is under no obligatioii to continue to pay the premiums, unless he has cov- enanted so to do, but if he does so the person originally desig- nated in the policy will derive the benefit. The change of desig- nation can only be made by the persons originally designated, and therefore all of such i)ersons must concur in the change. If the policy is for the benefit of a woman and her children, the- children as well as the woman must concur. Griffith vs. New York Life Ins. Co (Supreme Court of Cal£_ fornia), 36 Pac. Rep., 115. LEGATEES OF LIFE INSURANCE BOUND BY RULES OF COMPANY.— Deceased had four policies on his life, payable to his estate, and the by-laws of three of tlie companies provided that if the beneficiary died before the insured, the proceeds should be paid to the relations of l^e insured, and that the insured should not have the right to dispose of the proceeds by will. The de- ceased devised one-third of his entire estate, consisting of all of his life insurance, real estate and personality, to a certain person. and the remaining two-thirds to two nieces. The Supreme Court. of Appeals of Virginia held that the deceased intended to devise the whole of the life insurance, and that, as the proceeds of three- of the policies became the property of his nieces, under the by- laws of such companies, and no interest in them could pass to the- other legatee, the nieces were put to their election to take under- or against the will. Tompkins vs. Griffin's Ex'rs, 23 S. B. Reporter, 756. 1290 INDICATOR'S DIGEST. WHEN BENEFICIARY MAY BE CHANGED— The insured in a life policy payable to his executor or administrator may, without consent of the insurer, designate his mother as his ben- -eficiary, and she is entitled to receive the proceeds of the policy. Prudential Ins. Co. vs. Young (App. Ot. Ind.), 43 N. E. Re- porter, 253. WIFE'S INTEREST IN LIFE INSURANCE POLICY.— A life insurance policy, in which a maiTied woman is named as beneflcary, vests a complete title in her, which inures to her separate benefit. It cannot be subjected to a lien for her hus- band's debts, nor can her husband surrender the policy and have a new one issued with another beneficiary named therein without her consent firsrt legally obtained. The company will be liable on the original policy to the original beneficiary. A. M. Putnarn vs. New York Life Ins. Co. (Supreme Court of Louisiana), 7 S. Rep., 602. INSURANCE FOR BENEFIT OF WIFE—DEATH OF BENEFICIARY'. — A husiband insured his life, the policy being made payable "to his wife Sarah, ,her executors, administrators, or assigns." It was held that the policy was one under the On- tario Act for securing to wives and children the benefit of life in- surance (R. S. O., c. 136, s. 5), and that the provision in the policy for the payment to her, her executors, administrators or assigns became void on her death in the lifetime of her husband, and that the insurance money formed part of the personal estate of the latter. In re Baton, 29 C. L. J.. 3T9. JOINT RIGIDTS OiP WIFE AND OHILDilEN IN' INSURiANCE ON HUSiBAND'S LIFE.— The Gen. St., 1865, provides that a mar- ried woman may cause her husband's lite to be insured for her sole use, and that the insurance shall be payable to her for her own use. Section 18, c. 115, provides that, where a policy is expressed to be for the beneifit of any married woman, it shall inure to her separate use and benefit, and that of her children. It is held, that a policy of insurance procured by a married woman on her husband's life, and payable to her or her legal representatives, inured to the separate use and benefit of the assured and her children jointly. Reed vs. Painter (Supreme Court of Missouri, Div. No. 2), 31 S. W. Rep., 919. DEVISE OF LIFE INSURANCE BY AVILL:— Where a per- son procures a benefit certificate upon bis life in an insurance company, in which his wife is named as beneficiary, and she dies before he does, but during her lifetime makes a will devising all her property to him for and during his life, and after his death, to her daughter, and during his lifetime the insured, who survives his wife but a few months, also makes a will, giving the proceeds of said benefit certificate to the daughter, said wills have been properly probated, the proceeds of said certificate, when paid by the insurance company, pass to and become the property of the daughter. Brew vs. Clements (Supreme Court of Kansas'), 20 Pac. Rep , 704. BENEFICIARY— CANCELLATION. 291 ACTION OX LIFE INSURANCE POLICY BY BENEFI- CIARY. — A maa obtained a. policy of insurance on his life, pay- able to liis wife, JL, or to bis beirs at law. At tbe time he was living with JL, and bad married her, but tbe marriage was Told, because be bad a former wife living and undivorced. Sbe was entitled to tbe insurance money. Overbeck vs. Overbeck (Supreme Court of Pennsylvania), 25 At. Rep., (U6. TO WHOM POLiICY OF LIFE INSURANCE IS FAYAjBLE.— If a life insurance policy is taken out, and premiums paid by tbe assured, and tbe policy made payable at bis death to his iwife, and, in case of her decease during his lifetime, to her children by him, and in such case, if all the beneficiaries named in tbe policy die before the death of the assured, and at his death becomes subject to administration and bequest, the same as his other personal property. Ryan vs. Rothweiler (Supreme Court of Ohio), 35 N. E. Rep., 679. MEANING OF MONEY PAYABLE TO CHILDREN IN A POLICY.— By a policy of life insurance tbe insurers agreed to pay the amount of insurance, within ninety days after due notice and satisfactory evidence of tbe death of the Insured, to the wife of the insured or her legal representatives; or if she should not then be living, to her children, or to their guardian if under age. The wife predeceased the insured. Two of her children predeceased her, one of them leaving a child:— Held, that only tbe children who survived the wife were entitled to sibare in tbe insurance moneys payable under tbe policy. Murray et al. vs. Macdonald, 13 C. L. T., Oce. N. 6; 22 O. R., 557. Russell vs. Russell, 64 Ala., 500, followed. CANCELLATION. CANCELLATION OP POLICY.— A policy which provides that the company may cancel it without notice unless the premiums are paid within a certain time does not become void merely by non-payment of tbe premiums within such time, but it remains in force until affirmative action is taken by the company to cancel it. O'Brien vs. Prudential Ins. Co. of America (Common Pleas of New York City and County, General Tenn), 33 N. Y. Sup. Rep., 67. CANCELLATION OF POLICY FOR NON-PAYMENT OF PRBMIUMS. — Where an insurance policy provides that, unless the premiums are paid Trithin four weeks after maturity, the company shall be at liberty to cancel the policy without further notice, a policy does not become void merely by non-payment of the premium within the four weeks, but it remains in force until affirmative action is taken by tbe company to cancel it. Brady vs. Prudential Insurance Co. of America (Common Pleas of New York City and County, General Term), 29 N. Y. Supp., 44. 292 INDICATOR'S DIGEST. CHILDREN. INSURING THE LIVES 0(P CHILDiREN.— Law of 1892, which provides that a policy on the lite of a child under two years of age shall not be issued to an amount exceeding $30, does not prohibit the issuing of several policies, each for that amount. O'Rourke vs. John Hancock Mutual Life Ins. Oo. (Fifth Dis- trict Court of New York City), 30 N. Y. S., 216. LIMITING THE AMOUNT OF INSURANCE FOR CHIL- DREN.— The statute providing that a "policy" may be taken out on the life of a child for an amount not exceeding $30, does not forbid several policies for that amount, but merely limits the amount of a single policy. O'Rourke vs. John Hancock Mut. Life Ins. Co. (Common Pleas of New York City and County, General Term), 31 N. Y. Supp., 130. COMMISSIONS. LIABILITY FOR COMMISSIONS.— Where a contract of em- ployment provided that one should devote his v^hole time to the service of an insurance company, and act exclusively for it so far as first to tender to it all risks obtained by him, and that the company vvfould pay him certain commissions on premiums "on policies Issued" through his instrumentality, the company cannot escape liability for commissions where it arbitrarily and without any reason refused to accept a risk procured by him. Madden vs. Equitable Life Assurance Society of the United States (Superior General Term), 32 N. Y. S. Rep., 752. COMPULSORY REFERENCE IN AN ACTION TO RE- COVER COMMISSIONS.- In an action against a life insurance company to recover commissions for procuring insurance under a contract, a schedule was annexed to the complaint, containing about 90 items, giving the numbers of the policies procured, names of the insured, the amounts paid, and the commissions alleged to be due to the agent thereon. The answer was a gen- eral denial a.s to the existence of the contract, and as to each and all the amounts claimed by him in his schedule. The exam- ination of a long account was required, within the statute pro- viding for compulsory references. Hibbard vs. Commercial Alliance Life Ins. Co. (Supreme Court of New York City), 24 N. Y. Supp., 332. COMMISSIONS— CONTRACT. 293 ^ RENEWAL COMMISSIONS OF LIFE INSURANCE AGENTS. — Where a life insurance company employed an agent for one year, and agreed to pay him a certain amount monthly, and "regular commissions" on policies obtained by him, the termi- nation of the contract by mutual agreement did not terminate the plaintiff's right to the renewal commissions on the business ob- tained by him during the year. Hale vs. Brooklyn Life Insurance Co. (Court of Appeals of New York), 24 N. E. Rep., 317. CONTRACT. DISAFFIRMANCE OF CONTRACT BY INFANT.— Where an infant, 17 years old, obtains a policy of insurance, upon which he pays the premium and makes several semi-annual payments dur- ing his minority, but disafl&i-ms the contract immediately upon hi^ becoming of full age and offers to surrender the policy to the ii svrance company, and demands the return of the money so paid, he can, in case of refusal, maintain an action for its recov- ery. Johnson vs. Northwestern Mut. Life Ins. Co. (Supreme Court of Minn.) 57 N. W. Rep., 934. WHAT LAW GOVERNS AN INSURANCE CONTRACT.— A Vermont corporation did business as a life insurance company in the State of New York, having an office in New York City. A resident of New Jersey effected insurance in such company by delivering, through his agent, an application to its general agent in New York, and receiving the policy there from such general agent. The contract of insurance was a New York contract, and subject to the laws of that State as to forfeiture for non-payment of premiums. Hicks Ts. National Life Ins. Co. (Circuit Court of Appeals, Second Circuit), 60 Fed. Rep., 690. LIFE INSURANCE— COMPLETED CONTRACT.— Where de- ceased, in his application, agreed that the proposed insur'ance should not be binding on the insurance company until the pre- mium should be received by the company, during his lifetime, and the company's agent afterwards wrote to deceased that he had his iwlicy, and subsequently left with deceased's clerk a receipt reciting that the policy would be delivered within a specified time, upon payment of a certain sum, and acknowledging pay- ment of a part of the first premium, in board of agent, and the company's agent represented to deceased's brother that the insur- ance would hold good from that time, but it was not shown that deceased ever received the receipt, or absented to its terms, or that the premium had been paid in deceased's lifetime, or that the policy was delivered, there was no evidence of a completed contract of insurance, or to insure. Rossiter vs. Aetna Life Ins. Co. (Supreme Court of Wisconsin), 64 N. W. Rep., 876. 294 INDICATOR'S DIGEST. PLACE OF CONTRACT.— A life insurance policy issued upon an application which is made a part of satue, and which expressly provides that "the place of the contract shall be the city of Philadelphia, State of Pennsylvania," is to he governed by the laws of that State, though insured was a resident of Tenn- essee at the time of making the application. Penn Mut. Life Ins. Co. vs. Mechanics' Savings Bank & Trust Co. (U. S. Cir. Ct., App.), 72 Federal Reporter, 413. LIFE INSURANCE BY DESCENT.— As between the insured and the insurer a policy of life insurance is a contract for the ben- efit of the beneficiary, who takes by contract rather than by In- heritance. Under the code of Iowa, a policy payable to the legal heirs oif the insured goes to his children to the exclusion of his wife, unless he leaves no issue, in which case one-half goes to his wife and one-half to his children. Phillips vs. Carpenter (Supreme Court of Iowa), 44 N. W. Rep., 898. CONSTRUCTION OF CONTRACT OF EMPLOYMENT.— A certain contract between the parties, whereby one was employed as the general agent of an insui'ance company, and was to re- ceive certain renewal commissions as a part of his compensation for his services as such agent, construed, and held, that he is not entitled to such commission on renewal premiums paid after the termination of his agency, by his discharge for cause. .Jacobson vs. Connecticut Mut. Life Ins. Co (Supreme Court of Minn.), 63 N. W. Rep., 740. CONTRACT TO COMPENSATE RETIRING PRESIDENT. —A contract reciting that, whereas a certain person had been connected with a mutual life insurance company a great many years, and had been largely instrumental in building it up to its high standing, and had resigned the office of president, and it was deemed desirable in the interests of the company that it retain the benefit of his experience, wherefore it was mutually agreed that he, so far as his health permitted, would serve the com- pany in an advisory capacity, give its officers all the aid in his power to maintain and extend its business prosperity, and not become an officer or enter the employ of any other life insurance company, in return for which the company was to pay him for life the salary mentioned, has been pronounced void because it was apparent that the true consideration for the payment of the annuity was a desire of the trustees to compensate the person for past services, which they could not do by any such agreement, and because such contract, being made to continue during a life, was beyond the power of the trustees to make, thus taking the management of the business of the corporation out of the hands of the policy-holders, who constituted the members of the corpo- ration, and in whom, by the statutory power given them of elect- ing the trustees, was vested the ultimate control of the manner in which the business of the corporation should be conducted and the determination of who should be its officers, as well as for other good reasons. Beers vs. New York Life Ins. Co. (Supreme Court of New York), 20 N. Y. Sup., 788. CONTRACT— CREDITORS. 295 EFFECT OF CHANGE IN CONTRACT.-The mere fact that a policy was retui-ued to the general agent, and by him to the company, for the sole purpose of changing the terms of payment and the beneficiary, did not operate to cancel the policy, nor give the right to demand a new health certificate. Krause vs. Equitable Life Assur. Soc. of United States (-Su- preme Court of Michigan), 03 N. "\V. Kep., 4^0. CONTRACT BY WIFE A CHARGE OF SBPARATE ES^ TATE. — Where a married man makes application for life insur- ance, and his wife, In the absence of the husband, agrees to take the policy on coiyiition that it be made payable to her. and gives. her note in payment of the first premium, her separate estate is. charged with its payment. Mitchell vs. Richmond. (Supreme Court of Pennsylvania). 30 At. Rep., 486. PLACE OF CONTRACT AND LAWS GOVERNING INSUR- ANCE. — A provision in an application for life insurance that it "is made to a. certain life insurance company of New York, sub- ject to charter of the company and the laws of the State of New York," locates the contract in such State, and requires that rights; under it shall be determined by its laws. Griesemer vs. Mutual Life Ins. Co. of New York (Supreme' Court of Washington), 38 Pac. Rep., 1034. CREDITORS. RIGHTS OF CREDITORS IN LIFE INSURANCE.— The Su- preme Court of ilississippi holds that the creditors of a decedent are not entitled to subject the proceeds of policies on his life^ to the payment of their claims, where the policies are payable to his wife, in the absence of a showing that he was insolvent wlien- the premiums were paid, and that he was then indebted to such creditors. Jones vs. Patty, 18 So. Rep., 794. LIFE INSURANCE POLICY AS COLLATERAL SECURITY. —A policy of life insurance for $1,800 was made payable to a credi- tor of the insured who received the entire amount of the policy on the death of the insured. In an action by the administrator against the creditor the question A\as whether the policy was issued to the creditor as coUa.teraI security for his claim or whether he took the absolute title. A written agreement, executed within two months of the death of the insured, wherein the creditor agreed to receive $500 as his part of the sum to be paid on the policy, and which provided for the distribution of the residue among the in- sured's heirs and next to kin, warranted a finding by the jury that the creditor took the policy only as collateral security. Tennant vs. Dudley (Supreme Court of N. Y.), 22 N. Y. Supp.. 876. 2g6 INDICATOR'S DIGEST. RIGHT OF CREDITORS TO LIFE INiSUBANCE.— Where the statute provides that a married woman may insure the life of her husband for her sole use, and that the insurance shall be pay- able to her free from the claims of her husband's creditors, but that, if the premium paid in any year out of the property of the husband exceeds $500, such exemp'tion shall not apply to the excess of 3500, but such excess shall inure to the benefit of the husband's creditors. "Where the wife paid the premiums on the Insurance of the husband's life from her sieparate property, and the amount thereof was not repaid to her, no part of the in- surance money is subject to the debts of the husband as assets of his estate. In re Goss's Estate (Supreme Court of N. yT), 24 N. Y. Supp., 623. CREDITOR'S INSURANCE ON LIFE OF DEBTOR.— A creditor may Jawftdly take out a policy of insurance on the life of his debtor in an amount to cover the debt and the cost of such insurance, together with the interest on such amounts dur- ing the period of the expectancy of life of the insured according to the Carlisle tables; and the fact that the debtor dies before the expiration of his expectancy will not affect the validity of the policy, or the right to recover the whole amount thereof. A firm insured their debtor, a healthy man of 42 years, in the sum of $3,000 to protect a debt of about $100. His expectancy of life, according to the Carlisle tables, was 26 years, and the assessments and annual dues during such time would have amounted, together with interest, to $4,336.31. This was not a gambling transaction, and the creditors were entitled to the full amount of the policy, though the insured died within a few years. Ulrieh vs. Reinoehl (Supreme Court of Pennsylvania), 22 At. Kep., 862. ; DEATH. PRESUMPTION OF DEATH OF INSURED.-The United States Circuit Court of Appeals holds that, in an action on a pol- icy on tlie life of one who disappeared about a year before the commencement of the suit, it is proper for the court to charge that the death of an absent person may be presumed in less than seven years from the date of the last intelligence from him, from facts and circumstances other than those showing exposure to danger which might probably result in death. It is also proper to charge that, while seven years is the period at which the presumption of life ceases, this period may be shortened by proofs of such facts and circumstances connected with the per- son whose life is the subject of inquiry as, submitted to the test of reason and experience, would force a conviction of death within a shorter period. N. W. JIut. Life Ins. Co. vs. Stevens, 71 Federal Reporter, 258. DEATH— EVIDEXXE. 297 PRESUMPTION AS TO DEATH CAUSED BY INSANITY.— In an action on a life policy, the fact that the evidence shows that the cause of the Insured death was insanity does not tend to prove that he committed suicide; insanity being a disease liable to cause natural death, and the prestimption toeing, where insured was found dead, that his death was natural or accidental. "Waycott vs. Metropolitan Life Ins. Co. (Supreme Com-t of Vermont), 24 At. Rep., 992. WHAT IS INSUFFICIENT TO ESTABLISH DEATH— In an action on a life policy evidence that the insured, a man of in- dustrious habits, and with happy home relations, left home on a short hunting trip, stating that he intended to hire a boat for the purpose, and has not been seen for two years; that a boat was found shortly afterwards with certain articles in it, but no evidence to connect either with the insured; that his wife and daughter believe him to be dead, is insufficient to establish the death. All evidence of the disappearance of bodies in a certain body of water is inadmissible to show such death, where it is not shown that he fell into such water. Martin vs. Union Mut. Life Ins. Co. (Supreme Ct. Wash.), 43 Pac. Kep., 53. DISTRIBUTION. DISTRIBUTION OF INSURANCE MONEY.— Where a policy of Ufe insurance is made payable to the wife of the insured "for her sole use if living, and. If not living, to her children, or their guardian for their use," if the wife dies before the person insured, and one of the children has previously died leaving children, the children are entitled to the share which would have gone to their parent if living. Walsh vs. Mutual Life Ins. Co. (Supreme Court of New York), 15 N. Y. Supp., 697. EVIDENCE. EVIDENCE OF BUSINESS HABITS.— The Supreme Court of Minnesota holds that evidence as to the business habits, pur- suits and associations of the insured, at and before the time of the issuing of a life policy, are admissible, as bearing on the question whether he was temperate. Chambers vs. N. W. Mut. Life Ins. Co., 07 N. W. Reporter, 367. 2g8 INDICATOR'S DIGEST. CONFLICTING BVIUBNCE AS TO OWNERSHIP OB^ POLICY BENEFITS.— In an iactiou against an executor, to deter- mine the ownership of the proceeds of a life insurance policy, where the evidence is conflicting, the verdict of the jury Is final. Ghidester vs. Yard (Supreme Court of I'enn.), 26 At. Rep., 002. ADMISSION OF INCOMPETENT TESTIMONY.— The Su- preme Court ot Texas says: The admission of incompetent testi- mony of a material character on an important issue, in an action on an insurance policy, concerning which the evidence is con- flicting is ground for reversal, where it is not shown It was with- out prejudice. Mutual Life Ins. Co. vs. Baker, 34 S. W. Reporter, 604. EXAMINATION OF COMPANY'S BOOKS WHEN AL- LOWED.— Where an agent of a life insurance company kept books of his agency and offered the company a statement of the business done by hiiu, as a basis to compxite commissions upon, he will not be given an order to inspect the company's books for the same purpose, and if it ever does become necessary the evidence can be reached by a subpoena duces tecum. Perls vs. Metropolitan Life Ins. Co. (Common Pleas of New Y'ork City and County), 10 N. Y'. Sup, 110. EAaDENOE IN ACTION ON LIFE POLICY.— In an action against a life insurance company on a policy of insurance, the policy may be introduced in eyidence, although It does not name the beneficiary, when it is folloiwed by evidence showing who the beneficiary was. While the Pennsylvania statute provides that unless the application for insurance or a copy thereof, be attached to the policy, such application shall not be admissible in evidence in an action between the parties, such application will however, be admissible against the company if not attached, as it will not be allowed to profit by its own neglect. Norristown Title Trust and Safe Deposit Co. vs. John Han- cock Mut. Life Ins. Co. (Supreme Court of Pennsylvania), 19 At. Rep., 274. AGTIOiN ON POLICY OF LIFE IINSURANCE.— Where an action on a life insurance policy is defended on the ground that the insured falsely slated that no company had ever declined to grant insuran'Ce on his life, an application made by him to an- other company, and indorsed "declined" by the medical director of such company, is admissible in evidence, where it is shown that the medical director's action was a rejection of the applica- tion; and such indorsement is not subject to the objection that it is a declaration of a third person, since it was offered to show the action of the company, and not the action of the medical director. Where th(^ insured waiTants statements in his application to be true, an untrue statement is a breach of warranty, and it is Im- material whether or not the insured knew that it was untrue. The mere fact that an effort was made by plaintiff, within a year before suing on a policy, to effect a 'compromise, does not show a waiver by defendant company of a provision of the poKcy that no action shall be maintained thereon after one year from the death of the insured. Elliott vs. Mutual Ben. Life Ass'n of America (Supreme Court, General Term, First Dep't), 27 N. Y'. Supp., 696. EVIDENXE— EXEMPTION. 299 WHEN PAROL E\"IDEXCE IS ADMISSIBLE.— Where, by a written agreement, a certain indebtedness is secured by the as- signment of a life insurance policy, parol evidence is admissible to show that subsequently it was agreed that other indebtedness ehould be secured thereby. Morgan vs. Dugan (Court of Appeals -if .ilarylaiid), 30 At. Rep.. ooS. AFFIDAVITS NOT EVIDENCE.— In an action on an insur- ance policy, allidaylts taken by representatiye of insurer con- cerning matters occurring before the death of the insured, with- out the knowledge of the beneficiary, are inadmissible in evi- dence against him, in connection with the proofs of death fur- nished by the beneficiary. Plumb vs. Penn Mut. Life Ins. Co. i Sup. Ct. Mich.), 6.") N. W. Rep.. 614. THE COURT OF APPEALS OF KENTUCKY HOLDS, that where a witness did not testify that he had expert knowledge of the forms and contents of life insurance i>olicies, or to any facts by which to determine his competency to testify in regard thereto, his testimony as to the differences between the policies of two companies was inadmissible. Cobb's Adm'r vs. Wolf. 29 S. W. Rep., 303. EVIDENCE MUST BE CONCLUSIVE TO AVOID POLICY. — ^In an action on a lite insurance policy the company claimed that it was void because of false representations as to the age of insured, and offered evidence of the record of the baptism of a granddaughter of the insured to prove that the insm-ed must have been much older than stated. Held that the evidence was properly rejected, as the record of a baptism can only be evidence of the fact of baptism and of its date. McGuirk vs. Mutual Benefit Life Co. of Hartford (Supreme Court of New York), 20 N. Y. Sup., 908. EXEMPTIONS. EXEMPTIONS IN PROCEEDS OF LIFE INSURANCE.— Under Code 1892, Sec. 1965, the proceeds of a life insurance policy, not exceeding f 5,000, inure to the benefit of the heirs and legatees, freed from all liability for the debts of decedent, though such policy was made payable to the executor or administrator of the insured. Coates vs. Worthy (Supreme Court of Mississippi). IT So. Rep., 606. EXEMPTION OF LIFE INSURANCE IN KEXTUCKY.- Under the exemption statute of Kentucky relating to life insur- ance, insurance made by a husband for the benefit of his wife and children is vaUd as a"gainst creditors and exempt from their claims, whether the insured was insolvent or not at the time the 300 INDICATOR'S DIGEST. insurance was effected, unless it was secui-ed witli the purpose and intent of sequestering the estate or any portion thereof with intent to defraud his creditors thereby. Hite vs. Aetna Life Ins. Co. (Court of Appeals of Kentucky), 13 S. W. Rep., 367. FORFEITURE. FORFEITURE OF POLICY BY NON-PAYMENT OF PRB- MIIJiMS.— Where a policy of life insurance contains a provision that if the premiums are not paid as stipulated the consideration of the contract shall be deemed to have failed, and the company shall be relieved from all liability thereunder, failure to pay the premium when due operates as a formal release of the company from all liability under the policy. Where a person takes the benefit of insurance for a number of years, he will not be heard to claim that his failure to pay a premium was only a rescission of the contract, resulting from the discovery of alleged frauds on the part of the company. He cannot rescind without restoring the benefits, and the premiums he has paid have given him in- demnity which he cannot return. Keilner vs. Mutual Life Ins. Co. of New York (Circuit Court of the United States, District of New Jersey), 43 Fed. Rep., 623. FOBFBITiUiRE OF POLICY ON NON-PAYMEiNT OF PRE- MIUM NOTE. — 'Under a policy providing that "a grace of one month will be allowed in payment of premium, at the expiration of which time, if said premium remain unpiaid, this policy shall thereupon become void," and also that if any note given on ac- count of the premium be not paid when due, this policy shall be void, and all payments made upon it shall he forfeited to the company. The insurance comes to an end upon default in pay- ment of a premium note unless the insurers elect to keep it in force, and proceedings by the insurers to collect a note given for a premium are not sufficient evidence for suoh election. Nor are equivocal acts such as carrying the policy in the books of the insurers as an existing policy, and including the amount in their oflicial returns of insurance in force, any evidence of waiver of the forfeiture, these acts not being known to the insured or in- tended to influence his conduct. McGrachie vs. North American Life Insurance Company. THE INDICATOR, Vol. 12, p. 256, fol- lowed. "Month" in an insurance policy in the form here in ques- tion, with provisions for payment of semi-annual premiums on named days of specific calendar months, means a calendar month. Per 'Hagarty, C. J. O., and Osier, J. A. — ^Payment must be made during the life of the insured, and if the life drop before the ex- piration of the time of grace and before payment, the risk comes to an end. Per Burton and Maclennan, J. J. A. — Payment may be made at any time before the expiration of the time of grace, whether the life was dropped or not. Manufacturers' Life Insurance 'Company vs. Gordon, 29 O. Li. J. 200, 13 C. L. T., 137. FORFEITURE. 301 LIFE INSrRAXCE.— The Supreme Court of Indiana holds that the principle of quantum yalebat has no application to policies of life insurance which ai-e indivi^ble, and where a policy had been forfeited under its terms for non-payment of premiums there can be no proportionate recovery upon it, on the ground that it provided for the issuance of a paid-up policy pro- portionate in amount to the number of premiums paid, no ap- plication for such paid-up policy, nor offer to surrender by the Insured, being shown. Meyer vs. Manhattan Life Ins. Co., 43 N. E. Reporter, 448. FORFEITITRE OF LIFE POLICY.— Under Laws X. Y. 1876, c. 341, as amended by Laws 1877, c. 321, providing that life insur- ance policies shall not be declared forfeited by reason of non-pay- ments of premiums until after thirty days' notice given, and that payment made within the thirty days shall be deemed a full com- pliance with the requirements of the policy in respect to the pay- ment of premiums, an insurance company is liable on a policy, a premium on which was owing at the time of the death of the insured, without payment or tender of the premium; notice of forfeiture under the statute not having been given. Andrews, Earl and Gray, JJ., dissent. Baxter vs. Brooklyn Life Ins. Co. (Court of Appeals of New York), 23 X. E. Rep., 1048. FORFEITURE OF POLICY— A policy was conditioned that It should become void on non-payment of premiums or premium notes when due. A note payable on demand was given in pay- ment of the premium and a receipt therefor executed by the in- surer, extending the policy for six months provided the note was paid on demand. No demand for payment was made, and on the expiration of the six months insured tendered the amount of the note and the next premium which then fell due. Insured refused to accept the money, claiming a forfeiture of the policy. Insured then again tendered the unpaid premiums when the next p'-emium fell due, which was again refused by the insurer for the same reason, and notice given insured that no money would be received in future from him. The Supreme Court of Illinois held that insured's failure afterwards to tender future premiums did not impair the right to recover under the policy. Trav. Ins. Co. vs. Pulling, 43 N. E. Reporter, 7(33. NOTICE OF FORFEITURE.— A life insurance policy, after providing for insurance for one year, proceeded: "And the said society promises and agrees to renew and extend this insurance each successive year from the date thereof, upon condition that the assured shall pay certain mortuary premiums and the annual expense charge, being the consideration for the continuance of the Insurance in each successive year." The insurance here was for life, provided the assured paid premiums as agreed, differing only , in form from the customary life insurance contracts, and was de- terminable only by the notice required by law, "stating when the premium will fall due, and that if not paid the policy, and all payments thereon, will become forfeited and void." And such notice must state that the policy "will become forfeited and void" if the premiums are not paid as agreed." « J McDougall vs. Provident Sav. Life Assur. See. of New York (Supreme Court ot New York), 19 X. Y. Sup., 481. 302 INDICATOR'S DIGEST. FORFEITURE OF LIFE INSURANCE FOR NON-PAY- MENT OF PREMIUMS.— The New York statute provides that no i)olicy shall be forfeited for non-payment of a premium when it is due, unless at least 30 days prior thereto a notice of the date when the premium falls due "shall be duly addressed and mailed to the person whose life is insured * * * at his or her last Icnown postoffice address, postpaid by the company, or by an agent of such company," etc. To show compliance with this statute, a clerk of a company, testifying by deposition, was asked whether he had "mailed" such a notice, and answered "yes," but then proceeded to state what he had done, saying, among other things, that he personally deposited the notice in the gen- eral postoffice, without stating, however, that he had prepaid the postage. The U. S. Circuit Court of Appeals held that, even if the word "mailed" when standing alone, is to be considered as implying prepayment of postage, the proof was InsuflBcient, and the deposition was properly excluded. Provident Sav. Life Assur. Soc. vs. Nixon, 73 F'ederal Re- porter, 144. "WAIVER OF FORFEITURE BY ACCEPTANCE OF PRE- MIXJIMS.— Where a policy of life insurance contains a provision that it shall be forfeited if the assured becomes intemperate so as to serioTisly and permanently impair Ms heajlth, if the ajgent of the company accepted the premiums from year to year with full knowledge of the habits of the assured, even thougb they recited that they did not ■waivie any forfeiture as to intemper- ance, the company is liable as for a waiver of the forfeiture. Aetna Life Ins. Co. vs. Hanna (Supreme Court of Tfexas), 17 S. W. Rep., 35. WAIVER OP FORFEITURE.— Though the insured had been notified that the premium on his policy was due on' a certain ■date, or ten days afterwards, a circular issued by the company and sent by one of its agents to the insured, reciting the liber- ality of the company in extending the time in which to pay premiums— thirty days on tontine policies, and ten, days on all others — is admissible to prove waiver of a condition providing that the policy should become void if the premium was not pafd when due; the insured being justified in believing that his policy, designated by the company as a "limited tontine" was, in fact, a ^'tontine." U. S. Life Ins. Co. vs. Ross (Supreme Ct. 111.), 42 N. E. Re- porter, 859. WAIVER OF FORFEITURE IN LIFE INSURANCE.— Seven months after default in the payment of annual premium on a life policy the assured sent the money to the company, with a. letter from its medical examiner as to his health. The money was placed to his credit, but the company wrote him at once, insisting on a medical examination and certificate. He refused vo do any- thing further, and demanded a receipt for the premium, or a re- turn of his money. The company immediately wrote its local agent, insisting on a medical examination; but the money was not returned, and the assured was not advised of the last" letter of the company prior to his death by consumption, six days after it, was written. The Supreme Court of Wisiconsin held that the ■company waived tlie forfeiture of the policy. Rasmusen vs. N. Y. Life Ins. Co., 04 N. W. Rep., 301. FORFEITURE. 303 CONDITIONS AS TO WAIVER OF FORFEITURE.— Where a policy provides that only the president or secretary, in wridng, has power to waive a forfeiture, no recovery can be had on the ground that the agent waived compliance by the insured with a pre virion of the policy; unless there is evidence of such a usage or (.-c ursr of business as to justify the inference that the com- pan^' had extended its agent's authority, and thus modified the restriction of the policy. Stewart vs. Union Mutual Life Ins. Co. (Supreme Court, Gen- eral Term, First Dep't), 27 N. Y. Supp.. 724. WAITER OF FORFEITURE.— On the day after a life policy was alleged to have lapsed for non-payment of premiums, tbe person insured wrote to the company, asking for "figures for a paid-up policy, free from all liens or claims," and "a detailed statement of the condition of my policy." Two days later the president wrote him that the equity of his policy was represented by the amount of his liens, and there would be no paid-up policy, free of liens, but he did not claim that the policy had lapsed. The court held that such letter was an admission that the policy was in force at the time of the alleged lapse. Rowo vs. Brooklyn Life Ins. Co. (Sup. Ct), 38 N. Y. S. Re- porter, 62i. WHEN FORFEITURE OF POLICY CAlNNOT BE WAIVED. — A policy issued under the laws of the state of New York, which statute was intended, as a matter of public policy, to inhibit for- feitures by life insurance companies, except by the meth d there- in provided, viz.: "No life insurance company doing business in this state shall have power to declare forfeited or lapsed any policy * * * by reason of non-payment of premiums," e c, except as therein provided. The statute is a limitation on the IK)wer of the company to do a specified thing, except under pre- scribed conditions. That which a corporation has not the power to do, if attempted to be done by it, is noiU and void. If the in- sured should attempt to waive all notice of non-payment of pre- miums, if the power was lacking in the corporation to declare a forfeiture in consequence thereof, it is not perceived how it can be done. The very idea of a waiver involves the right of the c n- tracting parties to make and accept such waiver. Consent never gives jurisdiction not otherwise possessed of the subject matter to a court, for the reason that it lacks the power to adjudicate such subject matter, except as conferred by law. A corporation, being the creature of the law, must confine its functions to the limits prescribed for its action; and, if the law expressly inhibits it from doing a given thing, it is powerless to do that thing, and if it can do it only in a given manner, the prescribed method becomes the measure of its power. The statute in question is regarded as indicative of the legislative will, that, as a matter of public policy, life insurance companies should be deprived of the power to declare policies forfeited for non-payment of pre- miums except in the prescribed mode, and that, being deprived of the power so to do, a waiver on the part if the insured cannot be construed to confer such power, in the face of the law which has taken it away. Griffith vs. New York Life Ins. Co. (Supreme Court of Cali- fornia). 36 Pac. Rep,, 117, 304 INDICATOR'S DIGEST. .FRAUD. PROCURING LOAN FRAUDULENTLY FROM INSUR- ANCE COMPANy.^A company fraudulently Induced to lend money on land In excess of its value may retain and enforce its security against the land, and at the same time maintain an action against the borrower to recover damages for the fraudulent rep- resentations. Union Central Life Insurance Co. vs. Schneidler (Supreme Court of Indiana), 29 N. E. Rep., 1071. FRAUDULENT REPRESENTATION OF COST— Where the agent's representation as to the total cost of a ten-year endow- ment policy is both false and fraudulent, and the assured believes it, and in reliance on it is deceived by it, takes out the insurance and gives his notes in payment of the first premium, he may re- scind the contract on learning of the fraud. Such representation is one of fact, and does not come within the rule as to "matter of opinion and ordinary trade talk." Beckwith vs. Ryan (Sup. Ct. Err. Conn.) 34 Atlantic Re- porter, 488. POLICY VOIDABLE NOT VOID FOR FRAUD. -Whore the fraudulent representations alleged, in seeking lo recover pre- miums paid on a policy, were committed by the company's agent in not having the application signed, and in stating that it was not necessary, and that no medical examination was required, the policy issued by the life insurance company is not absolutely void, but only voidable. Mailholt vs. Met. Life Ins. Co. (Sup. Jud. Ct. Mass.), V-2 At- lantic Reporter, 989. AVOIDANCE OF SURRENDER POLICY FROM FRAUD OR DECEIT.— ^The rules which govern the purchase and sale of policies of insurance are the same which govern the purchase and sale of any other species of personal property; and it does not follow that, because contracts of insurance are said to be uber- rimae fidei, a contract for the purchase and sale of a policy is so too. And where a person about two months before his death, when, as the company who had insured his life knew, he was very 111 with heart disease, surrendered to such company a $5,000 policy, upon which premiums to the extent of $415.75 had been paid, and received therefor $780, $250 in cash and the discharge of a debt of $530 for which he had pledged the policy, the transac- tion cannot be avoided on the ground that, at the time it took place, the insured was under the delusion that he would live a long time, and that the company had permitted him to remain under that delusion knowing that he could not recover; for the mere omission of the company to inform insured that he was mistaken was not fraud or deceit. Smith vs. Hughes, L. R. fi Q. B.„ 597, followed; Potts vs. Temperance and General Life Ins. Co. of North America, 29 C L. J., 119; 13 C. L. I. Occ. N., 81. FRAUD. 305 EVIDENCE OF FRAUD.— lu the above case the manager of the iusurei-s hail stated to the Insured that he would tecommend what has been proposed, !fL\".o, for him. and that that was the best that he could recummeud to the committee. There was 110 evi- dence to show that this statement was not made in good faith, or that the insurers or their committee were prepared to s'ive more, or that they were prepared to act in the matter at all except upon the recommendation of their manager, and it did not appear that the manager would have been Avilling to recommend anythin.g more, had what he proposed not been accepted by the insured. It was held that such a statement was not 1 videuce of fraud to go to a jury. Potts vs. Tempei-ance and General Life Ins. Co. of North America, supra. MATERIALTY OF FALSE STATEMENTS IN AFFLICA- TION. — A State statute providing that no misrepresentations or unproved statements of the applicant, made in good faith, shall effect a forfeiture, or be ground of defense, unless the same re- late to some matter material to the risk. Is remedial in its nature, and within the police power of the State. The effect of such a statute is to leave open for judicial investigation, in the ordinary way. the ciuestion whether any fact concerning which inquiry was made, and an untrue answer given, n-as material to the risk. If found to be material the policy wil' '^e avoided, whether the untrue answer was made In good faith or not. If found not to be material, then the breach of warranty will work no prejudice to the insured, if the answer was given in good faith; but if in bad faith, and for the piu-pose of misleading the company, then the policy will be avoided, notwithstanding the immaterialty of tUe fact Inquired about. By the weight of authority in this country an iusiu-anee ex- pert cannot be asked his opinion whether an undisclosed or mis- represented fact is or is not material to the risk; but he may be asked concerning the usage of companies generally in respect to charging higher rates, or rejecting risks, when made aware: of the particular fact In question. This rule is applicable to life insurance when the question relates to one of a class of facts which such companies are frequently required to consider in relation to the accejitance of risks, so that the witness may base his answer on well defined practice of such companies; but csare must be taken that the witness be not allowed to substitute his own opinion, or that of his own company, for the usage of companies generally. .\s the modern practice of the life com- panies seems to b'e not to vary the premium except for age, and either to accept risks of the same age. or reject them altogether,, the question should, in such cases, be limited to whether insur- ance companies generally, if aware of the undisclosed fact, would reject the risk. The burden of proof to establish the materialty of a mis- representation or concealment, as well as the fraudulent intent. where that is necessary, is on the company. Nor is the burden shifted where it is admitted that insured made an untrue answer concerning other insurance; for if there be a presumption that liis failure to mention it was intentional, this is met by the pre- sumption that a man does not make a fraudulent misstatement, and the c|Ucstion is tlierefore for the jury, upon all the evidence. I'enii Mut. I.ifi' In<. Co. vs. Merchants' Sav. Bank it Trust Cci. iT' S. Cir. Ct. Ajip.i. 72 Fed. Rep., 41.'i. 3o6 INDICATOR'S DIGEST. GIFT. GIFT OF LIFE INSTJRANCE.— A perison insured his life and signed a document directed to the managers of the insurance company, in these Tvords: "I give and bequeath to * * * the amount stated on the policy given on my life by the Sun Life Insurance Co." "To be paid to none other unless at my request ■dated later." After showing or reading the policy, which he re- tained, to the plaintiff, he handed the document to her, remarking: "There, that is as good as a will." In an action brought by the plaintiflE against the administrator of the estate of the insured to recover the amount of the above policy received by him, 'Which the plaintiff claimed she was entitled to under above document, it was held that on account of its incompleteness, the transaction was not a gilt or a declaration of trust, as the trust intended was not irrevocable, nor could the paper take effect as a will, because of its want of witnesses. Kreh vs. Moses, 22 O. K., 307. GIFT OF LIFE INSURANCE BENEFIT.— A policy of life insurance payable to "the legal representatives of the assured" may be made the subject of a gift, in the same manner as a bond or other moneyed obligation, with the same results. Such gift may be effected by mei-e delivery, without assignment of the instrument, accompanied by such verbal or written instructions as indicate a clear intention to give, and its subsequent retention by the donee. In such case the latter, if he or she have an in- terest in the continuance of the life of the assured, will be en- titled in equity to the money due upon the policy at maturity, notwithstanding it contains a clause forbidding any assignment except with the consent of the insurer. Such prohibitory clause cannot prevent the vesting of an equitable interest in the proceeds of the policy. .Travelers' Ins. Co. vs. Grant (Ct. Chancery, N. J.), 33 At- lantic Reporter, 1060. HEALTH. PROVISIONS AS TO HEALTH: INSURANCE OF CRIP- PLES.— A provision in a policy that no obligation was assumed by the company unless at the date of the policy the insured was in sound health, refers to assured's physical condition, apart from her condition of imbecility and the fact that she was a cripple, of which the insurer was apprised. Robinson vs. Met. Life Ins. Co. (Sup. Ct, App Div 2nd Dept.. ::!T X. Y. S. Reporter, 146. HEIRS— HUSBAND AND WIFE. 307 HEIRS. WHEN HEIRS MAY RECOVER MONET DUE ON POLICY. — Wbere the beneficiary o£ a life insurance policy had no insurable interest, and the father of such beneficiai-y paid the first annual premium, and was to pay the premiums thereafter, the heirs of the assured can recover the money due on the policy on his death, In preference to such beneficiary. Mayber vs. Manhattan Life Ins. Co. (Supreme Court of Texas), 27 S. W. Rep., 124. MEANING OF INSURANCE POLICY PAYABLE TO "HEIRS.'' — By a policy of life insurance, the money to become due upon it at the death of the person insured was made payable to his "heirs." By the word "heirs" was meant tlje persons en- titled to the surplus of his personal estate under the statute of distributions, and that the money was payable to his widow and chilr'ren in the proi)ortions Indicated by the statute. Leavitt vs. Dunn CCourt of Errors and Appeals of New Jer- sey), 2L At. Rep., 590. HrSBAND AND WIFE. HUSBAND'S RIGHTS AS HEIR.— A life insurance policy taken out by a husband, and made payable to his wife, her exec- utors, administrators, or assigns, is her separate property; and he is entitled to one-third thereof, as heir of the wife, in case she dies first. The fact that there was no administration on the wife's estate until after the husband's death does not deprive his estate of his right as her heir. In re Dobbel's Estate. (Supreme Court of California), 38 Pac. Rep., 87. HUSBAND AND WIFE— WILL— STATUTE.— A bequest of a policy of insurance to the testator's wife is a valid declaration of trust" within the meaning of a statute which allows a man to in- dorse upon any policy effected by him on his life, or to make by any writing identifying the policy by number or otherwise, a declaration that the policy is for the benefit of his wife, or for his wife and children, and declares that such policy shall inure and be deemed a trust for the benefit of his wife for her separate use and of his children, etc., and that the money payable thereunder shall not be subject to the control of the husband or his creditors. MeKibbon vs. Feegan, 21 Ont, A. R., 87. 3o8 INDICATOR'S DIGEST. VESTED RIGHTS— A wife, to whom mutual life certifi- cates issued on the life of her husband are made payable, does not become vested with an interest which is a separate estate on the issuance of the policies; but the policies are mere rights of action of the wife, and on her death before the death of her husband they become his propeity, and her heir acquires no interest in the fund. Handwerker vs. Diermeyer (Sup. Ct. Tenn.), 36 Southwest- ern Rep., 8C9. DEBT OF HUSBAND CANNOT BE DEDUCTED WHEN LOSS IS PAYABLE TO WIFE.— A husband insured his life for the benefit of his wife, and afterwards procured a loan from the insurance company, the wife signing the note for security. The policy at the time of the loan had lapsed, but the unpaid prem- iums were paid out of loan and forfeiture waived. The insur- ance was payable to wife on husband's death, "the balance of the year's premiums, if any, and all other indebtedness, being first deducted." The Appellate Court of Indiana holds, under the above conditions and facts, that the loan cannot be deducted from the amount of the insurance payable to the wife on the death of the husband. Union Cent. L=f« 12=. Co. vs. Woods, 39 N. E. Rep., 205. INSANITY. , INSANITY CLAUSE IN LIFE INSURANCE POLICY.- Where a life insurance policy contains a clause that, if the assured commits suicide, tie policy shall be void; in a suit to recover thereunder, the burden is on the company to show that the provision has been violated. If the proofs of death show death by suicide, and are not contradicted liy evidence on the trial, the company will be entitled to judgment in their favor. Dennis vs. Union Mutual Life Insurance Company (Supreme Court of California), 24 Pac. Rep., 120. SUFFICIENT EVIDENCE OF INSANITY.— In an action to set aside an assignment of a life policy, it appeared that the party bringing the suit, becoming insane, was placed in an asy- lum, remaining two months. The physician in charge testified that she was of sound mind when discharged, and several lay witnesses testified that after she came back from the asylum she was able to take care of the house, do her own shopping, etc. The nurse at the asylum testified that she was not rational when discharged, and the physician who attended her for several months thereafter gave evidence that she was not rational dur- ing that time. There ^Yi\s^ l.iy lestimony to the same effect. A few months after her discharge her husband took her to the asenl of the insurance company, and after she had executed the assignment, she signed it at his request, without inquiry on her INSURABLE INTEREST. 309 pai-( or explanation on bis. The court lield that a finding that she had not mental capacity to make the assignment would not be disturbed on appeal. Gibbons vs. Gibbons (Sup. Ct. Penna,), 34 Atlantic Eepor- ter, 847. INSURABLE INTEREST. INSURABLE INTEREST.— Where an applicant for life insur- ance caused the policv to be issued in-favor of another, the effect is the same as if it had been issued to the applicant, and assigned to such other person; and therefore the policy is not subject to the objection of want of insurable interest. Glassey vs. Metropolitan Life Ins. Co. (Supreme Court, Gen- eral Term), 32 N. Y. Sup. Rep., 335. INSURABLE INTEREST.— Where a widow, with two un- married children, and her son-in-law, live together as one family, both before and after the death of his wife, pursuant to a tem- porary and indefinite arrangement between him and his mother- in-law, and he pays no more than a reasonable price for his board, the mother-in-law has no insurable interest in his life. Adams Administrator vs. Reed (Ct. App. Ky.), 36 South- western Reporter, 568. INSURABLE INTEREST IN MEMBER OF FAMILY.— Where a husband separated from his wife without a divorce, and afterwards until his death lived with his sister, payi'ig no board, and was nursed and cared for by her as a i.iember of the family, a policy on the brother's life, issued in favor of the sis- ter by a company organized under an act authorizing the insured to name the beneficiary, who might be one of the family, or an heir, was valid, though the wife of deceased ourvivcd him. Hosmer vs. Welch (Sup. Ct. Mich.), 67 Nortiswesteru Rep., 501. INSURABLE INTEREST BETWEEN CO-PARTNERS.— Whatever insurable interest one may have in his partner's life ceases when the latter retires unindebted to the firm; and where each of the two partners took out a policy on his life payable to the firm, and premiums of like amount on each were paid out of the firm's assets, the continuing partner bas no claim on his re- tired partner's policy as against the latter estate. Nor will the fact that the retired partner, Ivy contract with one remaining in business, agrees that the policy may be transferred to him, contr61 the rule of public policy to the extent of keeping alive the policy when the insurable interest has ceased. If the retiring partner was a debtor to the firm or the partner remaining in the business, then the firm or remaining partner may have at interest in the policy equal to the extent of the debt, and may to this extent have an insurable interest in the life of the assured. Cheeves vs. Anders (Court of Civil Appeals of Texas), 2." S. W. Rep., 324. 310 INDICATOR'S DIGEST. INSURABLE INTEREST.— A creditor, says the Supreme Court, Appellate Division, fourth department of New York, has an insurable interest in the life of his debtor. Talbert vs. Storum, 39 N. Y. Supp. Reporter, 1047. INSURABLE INTEREST.— The Appellate Court of Indiana holds that an uucle living on his sister's place, and keeping his nephew, the child of his sister, has no insurable interest in such child; and the policy is against public policy as a wagering con- tract. Prudential Ins. Co. vs. Jenkins, 43 Northeastern Reporter, 1056. INSURABLE INTEREST IN LIFE POLICY— A minor daughter has an insurable interest In the life of her father. And where a father procures a policy for the benefit of his daughter, Bhe acquires a vested interest in the policy on its delivery to him; and on the death of such daughter it becomes payable to her legal representatives or administrator, if she dies before the father. Geoffioy vs. Gilbert (Sup. Ot. App. Div.) 38 N. Y. S. Re- porter, 643. VOID LIFE INSURANCE.— When one obtains a life insur- ance policy upon the life of a person in iwhom he has no insurable interest, and the policy is simply a wagering policy, and at the death of the assured the association pays the money to the bene- ficiary, the administrator and heirs at law of the deceased will not be allowed to lay claim to the reward of iniquity. They were not parties to the contract of insurance nor have they been injured by it. Smith vs. Pence (Supreme Court of Jlichigan), i5 N. W. Rep., 183. WAGERING POLICIES.— In an action on a life insurance policy, it appeared that the insured took out the policy in her own name, and afterwards delivered it to her daughter, with instruc- tions to pay the premiums, pay the insured's funeral expenses, and that the balance should go to the daughter's child. The daughter paid the premiums as directed. The policy was not a wagering policy, and was valid. Burke vs. Prudential Ins. Co. of America (Supreme Court of Pennsylvania), 26 At. Rep., 445. QUESTION AS TO INSURABLE INTEREST.— In a policy issued by an insurance company on the life of one, who named a certain college as beneficiary, where the insured was to pay the premiums, and in case of death the institution was to reap the benefit, the question was raised as to whether the college had an insurable interest in the man's life. This policy was issued, and then the suit was brought for some of the year's unearned pre- mium, to test the case, before quite a number of applications for Bimilar policies would be made out. It is a conceded fact that a man can take out a policy on his own life and leave the pro- ceeds to any person or institution he pleases by will, but the question as to whether he could, in the eyes of the law, make a corporation the direct beneficiary was a mooted point. The de- cision of the court was in favor of the insurance company, thus INTEREST— JUDGMENT. 31, creating a precedent that a corporation or otlier party in similar cases has no insurable interest in the life of a j>erson who might seek to benefit it by means of direct life insm-auct. Trinity College vs. Ti-avelers' Ins. Co. of Hartford. ; / " V . INTEREST. RESERVE FUND OF LIFE INSURANCE COMPANY— IN- TEREST.— Interest earned on the statutory reserve fund of a life insurance company is part of its assessable income. Confederation Life Association vs. Citv of Toronto, 31 C. L. J.,. 172. INTOXICAXTS. CONDITION OF POLICY AS TO TSE OF INTOXICATING l-IQUOES — In an action on a policy conditioned to be void if tlie insured shaU become so far intemperate as to impair his health, the complaint Tvill be dismissed where the affidavit of the cause of death shows that the remote cause was alcoholism, though it also states that the immediate cause was alcoholism and extreme prostration. Hanna vs. Connecticut Mut. Life Ins. Co. iSiiperior Com't oC New York City, General Term), 2S N. Y'. Supp., (561. JUDGMENT. EFFECT OF JUDGJIENT ON PERSONS NOT PARTIES.— A judgment on a life insurance policy in favor of the beneficiary named, rendered in an action to which the widow of deceased was not a party, does not estop her from asserting a claim to said life Insurance money before Its payment to said named beneficiary. Weigelman vs. Bronger (Court of Appeals of Kentucky), 28 S. W. Rep., 334. 312 INDICATOR'S DIGEST. LIMITATION. LACHES OP COMPANY EXTEND LIMITATIONS— The limitation in a policy of insurance providing that no action can be maintained thereon after six months from the death of in- sured will not apply, when after the death of insured, the agent of the company had taken proof of death, and other papers be- longing to same, and filed them with the company, which after rejecting the claim, had nevertheless retained the policy and other papers until after the six months had expired. Dougherty vs. Metr. Life Ins. Co. (Supreme Ct. App. Div.). 88 N. Y. S. Reporter, 258. LOAN. INSURANCE LOAN.— A condition imposed by a life insur- ance company in lending money that the borrower shall take a policy with it is valid. The taking of a bonus for a loan from the borrower by the lender's agent, without the lender's knowl- edge, does not render the loan usurious. Washington Life Ins. Co. vs. Lane (Court of Chancery of New Jersey), 19 At. Rep.. 617. LOSS. PENALTY FOR FAILURE TO PAY LOSS.— The statute pro- viding that health and life insurance companies failing to pay a loss when due are liable for 12 per cent of such in addition thereto, does not violate the United States Constitution in its pro- vision that no State shall deny the equal protection of i'ts laws to persons within its jurisdiction. Union Central Life Ins. Co. vs. Chowning (Supreme Court of Texas), 26 S. W. Rep., 982. DAMAGES FOR DELAY IN PAYING LOSS.— The statute providing that life insurance companies failing to pay a loss within the time specified in the policy shall be liable to pay the holder 12 per cent of the amount of the loss, in addition thereto, and a reasonable attorney's fee for the collection of the loss, ia constitutional. Mutual Life Ins. Co. of New York vs. Walden (Court of Civil Appeals of Texas), 20 S. W. Rep., 1012. PARTXERSHIP— POLICY. PARTNERSHIP. 313 DISSOLUTION OF CONTRACT OF PARTNERSSIPS WITH AGENT— A bill against an insurance agent and tbe Insur- ance company alleged that the party suing made a contract of partnership with such agent, by which the suitor was to receive one-half of all renewal commissions on all business secured through the agency during the continuance of the partnership; that the company had approved the contract; that it was the custom in life insurance business to allow general agents a per- centage of the renewal premiums, and that the contract was made witli reference to such custom; that the company wrongfully afterwards directed the agent to dissolve complainant's relations with the company; and that the agent has in his possession re- newal premiums belonging to the party bringing the suit; and praying for a discovery of the amount received during the con- tinuance of the contract and for a dissolution and accounting. The court held that the bill was not defective as to the company, and that it was a proper party to the suit. Houghton vs. State Mut. Life Assur. Co. (Supreme Ct. Mich.^ ^ Northv^estern Reporter, US. POLICY CONDITIONS OF LIFE INSURANCE POLICY.— Under the conditions of a ten-payment life policy, that, after two or more of the premiums have been paid, the policy becomes a paid up non-forfeiture policy, for as many tenths of the face of the policy as there have lieen premiums paid, requiring no further payment of premium.'', subject to no assessments, but entitled to its pro- portion of the surplus accumulations in the ratio of its contribu- tion thereto, on the insured ceasing to make payments there is no occasion for the issuing of a new policy for the proportional amount. An agreement by the company after insured has paid several premiums, to state an account of the policy and issue a paid up policy for the amount of the policy, is without considera- tion. Kerr vs. Union Mut. Life Ins. Co. (Supreme Court of New York), 23 N. Y. Supp.. 619. WHEN LIFE POLICY IS NOT BINDING.— There can be no recovery on a life policy, conditioned that it is void if at the date of its issue, insured is not in sound health, when it is proven that for three years previous to such date, in.sured was so afflicted with disease that he was unable to pursue his usual calling, and that this disease lead to his death. Volker vs. Metropolitan Life Ins. Co., 21 N. Y. Sup.. 4."iii. 314 INDICATOR'S DIGEST. OONSTRUOTION 0.P MFfE INSURiANCE POLICY.— A lifp insurance policy insuring the life of a father was issued upon an, application by both the father and the son, in which the latter was named as beneficiary. The policy was made payable to the "assured" after due notice of the death of the "person whose life is hereby insured." It was held to be a contract made with the son in his own name and for his own benefit. Cyrenius vs. Mutual Life Ins. Co. of New York (Court of Ap- peals of New York), 40 N. E. Rep., 225. EVIDENCE OP BREACH OP CONDITION.— In an action on a life insurance policy the defense was breach of condition in falsely representing that insured had never suffered from certain diseases. The physician's certificate in the proofs of death stated that deceased was afflicted with heart disease, and had been> ill for about one year when the physician was called to attend him. Held, that the inference from such statements was that insured died of heart disease, and that he had been afflicted with it for a year before his death. Proppe vs. Metropolitan Life Ins. Co. (Common Pleas of New York City and County, General Term), 34 N. Y. Sup. Rep., 172. CONDITIONS IN LIFE POLICY.— In an action on a life poi icy conditioned on insured being in good health at the time of the delivery of the policy, it appeared the policy was delivered on Tuesday; that on the preceding Saturday night the insured was not feeling well, and took medicine; on Monday she had some disturbance of the bowels; on Tuesday and Wednesday she was about the house, doing her household work, resting occa- sionally; on Priday inflammation of the bowels set in, and on Saturday she was seriously ill, and died the following Tuesday. The court held that it was a question for the jury to determine whether she was in good health at the time of the delivery of the policy. Plumb vs. Pi'un Mut. Life Ins. Co. (Sup. Ct. MicU.), 65 X. W. Reporter, 614. ACTION OF LIFE INSURANCE POLICY.— Under a condi- tion in a policy of the life insurance that proofs of loss should be accompanied by a statement by the physician attending the de- ceased in his last illness, such statement was made in the form of answers to questions printed in a blank furnished by the com- pany, and could not be used as evidence against the plaintiff in an action on the policy. The application for a policy at life in- surance contained a statement, warranted by the applicant to be true, of the name of the last physician by whom he had been at- tended. In an action on the policy, on evidence that another phy- sician had attended him at a later date, before his application defendant requested that a verdict be directed in its favor. The court instructed the jury that if such attendance was for a real or supposed disease, the verdict should be for the defendant. This limitation was proper. Helwig vs. Mutual Life Ins. Co. (Supreme Court of New York), 12 N. Y., Supp., 172. POLICY. 315 PERSONAI. LIABILITY OF, EXECUT0R3.-A policr of life msurance payable to the widow and surviving children of the insured is no part of the assets of the estate, and, if collected bv the executors, the latter are personally liable to the beneficiaries for the amount. Heydenfeldt vs. Jacobs (Supreme Couit of California), 40 Pac Rep.. 492. DESCRIPTION OF INSURANCE POLICY.-It is sufficient to describe generally a policy sued on as a policy of insurance cov- enanting to pay to the assured, his executors, etc.. a spe;ied sum upon satisfactory proof of his death during the continuance of the policy, without stating the other terms and conditions thereof and the policy cannot he excluded because of this omission as variant from the one described. Manhattan Life Ins. Co. vs. P. J. Willis & Bro. (Circuit Court of Appeals. Fifth Circuit), 60 Fed Rep., 237. CONDITlONt^ OF A LIFE INSURANCE POLICY.— A condi- tion in a life insurance policy that it shall be void if the assured •■shall become so far intemperate as to impair his health seriously and permanently, or induce delirium tremens," is not violated if the assured indulges in the use of intoxicating liquors even to the extent of impairing his health seriously unless the impairment is permanent. A physician may not testify as to matters learned by hearing' his partner and one of his partner's patients talking In their common office. Aetna Life Ins. Co. yj. Deming ^Supreme Court of Illinois), 24 N. E. Rep.. S(.;. MODIFICATION OF LIFE POLICY.— Where an a.greement was entered into betwee'i a policy-holder and an insiu'ance com- pany "that all restrictions of travel, occupation, or residence ex- pressed in the original policy" shall be waived and that from the date of the agreement the policy shall be "incontestable," and that when the policy becomes a claim "the amount of insm'ance" shall be paid on approval of the proof of loss, the provision in the original jMjllcy that in case of death by suicide the company shall ne liable only for the "net value of the policy" no longer remains .n force. Simpson vs. Life Ins. Co. of Virginia (Supreme Court of North Carolina), 20 S. E. Rep., 517. LAWS OF NEW YORK AS TO CONDITIONS IN POLICY.— The laws of New York, providing that no life insurance company doing business in the State shall have [xiwer to declare a policy forfeited or lapsed for non-payment of any premium, unless notice stating the amount of such premium, the place where and person to whom the same is payable, shall first be given the assured, ap- plies only to policies issued in the State of New York, and not to policies issued in other States by New York companies. A life insurance policy issued in Pennsylvania which contains a stipulation that it "is a contract made and to be executed in the State of New York, and shall he construed only according to the laws" of that State, will be construed as though actually executed and delivered in New York. Griesemer vs. Mutual Life Ins. Co. of New York (Supreme Court of Washington), 38 Pac. Rep., 1031. 3i6. INDICATOR'S DIGEST. COXSTRUOTIOX OF LIFE INSURANCE POLICY.— Where a, life insurance policy is made payable to the wife of the assured or, in case of her death before his death, to their children, the words "their children" will be construed to mean the children of the assured and his wife to the exclus;ion of children of either not common to both. Evans vs. Opperman (Supreme Court of Texas), 13 S. W. Rep., 312. LIFE INSiURANOE— SBMI-TONiTINE POLJCY.— The relation between the holder of a matured semi-tontine policy and the in- surance company is 'that of debtor and creditor merely, and in- Tolves no trust relation; and a policy-holder who is dissatisfied with the amount of the surplus which is apportioned to him by the company, pursuant to the terms of the policy, cannot main- tain a bill for accounting and discovery when there are no suffi- cient allegations of fraud. Everson vs. Equitable Life Assur. Soc. CCircuit Court, W. D. Penn.), 68 Fed. Rep., 258. DELIVERY OF POLICY OF LIFE INSURANCE.— Where a life insurance policy has been forwarded by the company to its agent, and by him to the broker to whom application was made for insurance, to be delivered to the applicant, and the amount •of the premium has been appropriated to the use of the company, will be held completed and binding though the policy was not delivered to the applicant, but to his widow after his death. Mut. Life Ins. Co. of N. Y. vs. Thompson (Court of Appeals of Ky.), 22 S. Rep., 87. RIGHT TO PAID UP POLICY.— Where the holder of a life insurance policy oilered to surrender it to the agent from who'm he procured it in order to obtain a paid up policy as i>rovided in the policy, and the agent took no action in the matter, and did not infonm'the policy-holder as to the proper procedure until the time prescribed for obtaining the paid-up policy had expired, and the policy-holder's only knowledge of the insurance company was what he obtained from the agent, the issuance of such paid up policy will be compelled. O'Connor vs. Germania Life Ins. Oo. (Supreme Court, Special Terra, Brie County), 32 N. Y. Supp. Rep., 1106. LIFE INSURANCE POLICY CONSTRUED.— Under the Maryland .statute forbidding a foreign insurance company to do business in the State before filing a copy o£ its charter with the Insurance commissioner, and a company denies its corporate ex- istence, the papers on file in the commissioner's otfice are com- petent evidence of the incorporation. The condition in a policy that all suits on it shall be brought within six months from the death of the insured is waived by an agreement -with the com- pany's superintendent within the time as to the amount due and the superintendent has agreed to pay the same as soon as received from the home office. The company is entitled to an instruction in its favor to the following effect: If the diseased was not in sound health at the time of making her application for insurance, but said she was or failed to say she was not. the verdict should be in favor of the company. Metropolitan life Insi. Co. of New York vs. Dempsey (Court of Appeals of Maryland). 19 At. Ren.. G42. POLICY— PREMIUMS. 317 .-.E SUPREME COURT OF MICHIGAN HOLDS, that where it has be«ii agreed between a debtor, since deceased, and his cred- itor, that the proceeds of a certain life insurance policy shall be applied to extinguish the debt, the creditor, after collecting the insurance, is estopped to say that by the terms of the insurance contract its proceeds were not applicable to the debts of deceased. Maybury vs. Berkery. 60 N. W. Rep., 699. DEOLARATIOXS OF INSURED.— In an action by beneficia- ries on a life policy, declarations of insured as to his age in ap- plications for other insurance are inadmissible to show that the ajre given by him in the application for the policy sued on was false. And evidence that the proof of death furnished states that insured was born in 1S29, does not require a finding that the statement in his application that he was born in 1830 was false. Tore vs. Booth (Supreme Ct. Cal.), 42 Pacific Rep., SOS. CONSTRLCTION OF POLICY OF LIFE INSURANCE.— A life insurance polic^■ provided that a sum named therein should be payable to the wife of the insured or to her legal representa- tive, within a specified time after the death of the insured, or if she were not then living, to her children. The wife having died before the husband, her interest in the policy was thereby extin- guished, and the creditors of her estate have no claim on the fund; the clause authorizing payment to her legal representatives meaning not her .administrator, but someone appointed by her to receive the fund. Where there were no children living at the time of the wife's death or when the policy became payable, the fund passed to the grandchildren by the laws of de.?eent. In re Conrad';~ Estate (Supreme Court of Iowa), .jG N. W. Rep., 535. PREMIUM. RECOVERY OF PREJIIUMS FOR FRAUD.- Where a policy was issued to a wife by an insurance company on the life of her husband, without his knowledge, but on the solicitation of the comi>any's agent, and in a manner contrary to its rules, if she was innocent of any fraud, and was induced by the fraudulent rep- resentation of the agent to make the application, she may rescind the contract by discovering the fraud, and recover the premium paid. Where a regulation of a life insurance eompany required that the examination of the back of the application must be per- sonally signed by the insured, but such rule was not on the paper signed by her in securing a policy on her husband's life, there is no presumption of knowledge by her of the rule. The fact that such rule was embodied in a receipt book given her after taking out the policy and before making the payments sought to be re- covered, raises no presumption that she read the rule before mak- ing the payments. Fisher vs. iletropolitau Life Ins. Co. (Supreme .ludicial Court of Ma-.-arhu.sctts), Ss N. E. Kep., oi\:',. 3i8 INDICATOR'S DIGEST. PREMIUMS MAY BE RECOVERED WHERE POLICY HAS BEEN VOID.— Where a policy of insurance provided that it should be void if the insured be in poor health at the time of delivery, on the refusal of the company to pay the Insurance on that ground, the beneficiary is entitled to recover the premiums paid. Dougherty vs. Metr. Life Ins. Co. (Sup. Ct. App. Div.), 38 N. Y. S. Reporter, 258. ACTION TO RECOVER PREMIUM.— An administrator sued a life insurance company to recover the premium^ alleged to have been paid by his intestate upon an application for insurance, which was not grajited by the company, and he put in evidence the latter's receipt for such premium, which provided for repay- ment if the application was denied. The testimony of the com- pany's agent, who conducted the transaction, showed that the intestate had given a sight draft for the premium, but had paid no cash; that the draft was protested, and had never since been paid; and that it was partly on this ground that the application had been refused. There was no conflicting evidence suffi'Oient to raise a doubt. It was held that it was proper to direct a ver- dict for the company. Whiting vs. Ekiuitable Life Assur. Soe. (Circuit Court of Ap- peals, Fifth Circuit), 60 Fed. Rep., 196. RECOVERY OF PREMIUMS PAID ON VOID POLICY.— A life insurance agent solicited a young lady to insure her father for her benefit, and she signed her father's name to the application on the agent's representation that she had authority to do so. Thu agent certified that he had seen and examined the father, and recommended his acceptance. Subsequently the company issued to the young lady a policy on her father's life, which required all applications to be signed by the one proposed for insurance as a condition precedent to its validity. The agent's knowledge as to the failure of the father to sign thfe application was the knowledge of the company, and as the policies were void and known by the company to be so, the young lady was entitled to recover back the money paid by her for premiums. Fulton vs. Metropolitan Life Ins. Co., City of New York, 2 N. Y. Sup., 470. POSSESSION OP POLICY NO PRESUMPTION OF PAY- MENT OF PREMIUM.- The possession of a policy of insurance containing a clause, "in further consideration of the sum of $67.50 to be paid in advance," is not evidence of the payment of the first premium. In an action on a policy of life insurance, defendant's agent testified that the first premium was never paid, and that he gave the policy to his clerk to deliver to decedent, and also gave him a receipt for decedent, provided he paid the money. The clerk testified that he gave the policy to decedent, who said he had no money at the time, and that witness told him he was in- structed by the agent to leave the policy for inspection, but that it was not to be in force until the first premium was paid, and that witness called on decedent many times, and was unable to obtain the money or the policy. The evidence failed to show a waiver of the payment of the first premium, and consequently that the policy was not in force. (Juinby vs. New York Life Ins. Co. (Supreme Court of N. Y.), 24 N. Y. Supp., 593. PREMIUMS. 319 vnRT?^^^^'-^^'^ -^'-^^^ *^-'^' I'^ORFEITED POLICY IX XEW iOKIv.-Assumpsit will uot lie to recover premiums paid on life nsurance policies alleged to have been wrongfully t'orfeited bv i^M"*"*'"*^"' P"* ^^^ i'emedy of the insured is either by an action at law for damages for the iusurer-s breach of contract, or an action m equity to have the poUcies adjudged to be in force t^kudera vs. Met. Life Ins. Co. (Sup. Ct., ApJ. Term. 1st Dept.), 39 >. \. Supp. Reporter, 1059. SECURITY FOR PREMIUMS ADVAXCED.-A party, at the request of the insured, aad on his agreement to assign the policy as security, paid the premiums on the policy to prevent it from lapsing. The insured assigned the policy, as agreed, and after- wards a paid up policy was issued in its place and delivered to the assignee. It was held, that the assignee was entitled to a lien on the paid-up policy for the amount of his payments. Mandevllle vs. ilackey (Supreme Court, General Term, Fifth Dept), 34 X. Y. Sup. Rep., 622. XOX-PAYMEXX OF PREMIUM— XOTICE TO IXSUEED.— Where a conttact of life Insurance is made with the beneficiary to whom the policy is delivered, and to whom, or to whose per- sonal representatives, it is payable, and the person whose life is insured has no interest in the policy, and the beneficiary is desig- nated as the pei-son who must pay the premiums, such bene- ficiary is the person "assured" within the laws of Xew York, pro viding for proof of service of notice to "the assured." Rowe vs. Brooklyn Life Ins. Co. (.Sup. Ct.), oS X. Y. S. Re- porter, G2L PAYMEXT OF PREMIUM.— A life policy was conditioned not to be binding tiU payment of the first premium, and until the receipt for same, attached to the policy had been counter- signed by the agent of the company and delivered during the life time of the insured, and provided that no conditions could be waived except by officers of the company. The receipt attached provided that it should not be valid unless countersigned by a designated agent. The court held that the receipt signed for such agent by another agent, with the fact that, on the death of the insured liability was denied solely on the ground of suicide, was prima facie evidence of payment of the premium. Union Cent. Life Ins. Co. vs. Hollowell (App. Ct.. 'nd.), 43 X. E. Reiwrter. 277. PAYMEXT OF PREMIUMS: RIGHTS OF BEXEFICIARY. — In ease an insurer and insured agree that the latter may give, and the former will accept, notes for the first annual premium, payable in installments, and that the default of the maker in paying any one of them at maturity should operate as a revoca- tion of the policy, such default revokes the conti-act, both as to insured and beneficiary- For the rights of the latter are purely derivative, and depencient altogether upon the terms of the con- tract. He can insist upon the integrity of the contract, nothing more. He cannot claim to be put in a better jKisition than that in which the instired placed himself. Fenn vs. Union Cent. Life Ins. Co. (Sup. Ct., La.). 19 So. Rep., 62-3. 320 INDICATOR'S DIGEST. RIGHT TO REDUCTION OF PREMIUM AFTER FIRST YEAR.— Oue who is the agent of an insurance company for the purpose of receiving applications for insurance has authority to agree for the company that a life policy shall in its second year be reduced one-half in amount, and where the answer alleges that the company delivered a policy tor double- the amount desired, but with the understanding that after the first year It should be reduced, the holder can introduce a written demand for the second year's premium on the unreduced policy. Sengfelder vs. Mutual Life Ins. Co. of New York (Supreme Court of Alabama), 31 Pac. Rep., 428. PAYMENT OF PREMIUMS WITH I'ARTNERSHIP MONEY. — A\'here one misappropriated money of a partnership of which he was a member, and applied a portion thereof to the pay- ment of premiums on life insurance procured by him for his wife's benefit, the amount misappropriated exceeding the amount of the policies, the surviving partner could recover such proceeds, the wife's insurable interest not beinK property in the sense that it was mingled with the money converted, so that only the amount of the premiums could be recovered. Holmes vs. iGilman (Court of Appeals of N. Y.), 3-i X. B. Rep., 205. DBLIViERY AND PAYMEiNT OF PREMIUM.— Where an in- surance agent agreed with one who held his note, that he should secure an application for a policy, and that the premium should be paid by an indorsement of the amount on the note. The latter induced a party to apply for the insurance under an agreement that he should pay the premium, and take an assignment of the policy as security. 'The policy was sent to a third person to be delivered when the indorsement was made on the note. Before such indorsement was made, and policy delivered to the insured, he died. The polity provided th3.t the insurer should not be liable unless the premium was paid and the policy delivered during the lifetime of the insured. It was held that there was neither a payment of the premium to the company, nor delivery of the pol- icy to the beneficiary. Hawley vs. Michigan Mut. Life Ins. Co. (-Supreme Court of Iowa), 61 N. W. Rep., 201. NON-PAYMENT OF PREMIUM — FORFEITURE — ELEC- TION — WAIVER. — Whore an application for insurance, which ia made part of the contract, contains a condition that the policy should become null and void on the non-payment, at maturity, of a promissory note .ijiven for the premium, but that the note must nevertheless be paid; and such note not being paid when it falls due the policy tlicrcby becomes void, but only at the election of the insurers, who, however^ are not bound on non-payuieut of the note to do any act to determine the risk. In the absence of an election to continue the risk it comes to an end. and the insurers can demand payment of the note, and accede during the cm^reney of the note to the iustirev's request for cancellation of the policy, without such demand and refusal amounting to evi- dence of election on their part to forfeit the policy. But if a de- mand had been responded to liy payment during the life of the assured, forfeiture might have oecn thereby waived. McGeiVchie vs. North American Life Assurance Company, 29 C. L. J., 70; 21) A. R. See Imperial Life Insurani-e Co. vs. Glass, The Indicat(Ji-, Vol, XII., 101, 179. PREMIUMS. 321 RECEIVING PROPERTY IN PAYMENT OF PREMIUMS— Authority in an insurauce agent to collect premiums does not im- ply authority to accept property in payment in lieu of cash. Equit. Life Assur. Soc. vs. Cole (Ct. Civ. App. Tex.) 33 South- western Reporter, 721. KECOYERY OF PREMIUM PAID— In an action against an insurance company to recover a premium paid to its agent, a receipt for the premium signed by the agent individually is ad- missible to show that he received the money, notwithstanding a provision of the policy that receipts for premiums should be signed by the secretary and countersigned by the person to whom the premium is paid. Such provision may be waived by tne com- pany. Equit. Life Assur. Soc. vs. Cole (Ct. Civ. App. Tex.) 35 South- western Reporter, 720. RI&HT TO RECOVERY OF PRBMIUMS.^Where the agent of a life insurance company, in filling up an application, writes a false answer, so as to make it appear that the applicant was qualified to insure in such company, knowing that he was not, and the applicant signed the application without reading it, on the statement of the agent that it was "all right," he may, on discovering the fraud, recover the premium paid, and surrender the policy. Miller vs. Union Central Life Ins. Co. (Supreme Court, Gen- eral Term, Fifth Dept.), 33 N. Y. Supp. Rep., 112. RIGHT OF RiBOOVERY OF PREMIUMS PAID BY FIRM.— Where a partner obtains a policy of insurance on his life, pay- able to himself and his partner, or their administrators or assigns, the premium on which is paid out of the partnership assets, and afterwards, on the dissolution of the partnership, conveys all his interest in the firm property to his partner, and afterwards dies, the continuing partner, having no interest in the life of insured at the time of the latter's death, cannot recover on the policy, as against the estate of the insured. In such case, however, the con- tinuing partner has a right to reimbursement from the proceeds of the policy for the premium paid by the nrm. Cheeves vs. Anders (Supreme Court of Texas), 28 S. W. Rep., 174. LAPSE OF LIFE INSURANCE POLICY— RECEIPT OF PREMIUMS BY AGENT.— When a life insurance policy has be- come void through a failure to pay the stipulated premiums, and the policy provides that asents are not authorized to make, alter, or discharge contracts, or waive forfeitures, or to receive pre- miums In arrears, except on a written application in prescribed form for a revival, which must be acted on by the company itself, it is error for the court to refuse to charge the jury that a collect- ing agent had no power to waive the forfeiture, or to bind the company by receipt of the premiums in arrear, without any ap- plication for revival, and for the court to charge that payment by the assured, and receipt by the agent, of the premium in arrear, for the purpose of revival, would warrant a recovery on the lapsed policy; there being no evidence that the agent actually possessed, or ever before attempted to exercise, the power to waive a for- feiture or revive a lapsed policy. iletropolltan Life Ins. Co. vs. JIcGrath fSupreme Court of New .Jersey), 19 At. Rep., 386. 322 INDICATOR'S DIGEST. FAILURE TO PAY PREMIUM.— A life insurance policy con- tained a provision that if a note taken for the premium or renewal premium, or any part thereof, shall not be fully paid when due, the premium shall be considered as fully earned, and the policy no longer be in force or binding upon the company. The holder gave his note for the premium iwhich he failed to pay when it became due. Held that the company was released thereby. Imperial Life Ins. Co. vs. Glass (Supreme Court oi Alabama), 11 So. Rep., 671. TENDER OP PREMIUM CONSTBUiOTIVEL-Y WAIVEiD.— Where, after presentation of proofs of loss under a life insurance policy, the company notifies assured that the policy is forfeited for non-payment of a premium, assured need not tender the amount ot such premium before suing on the policy, as it clearly appears that, if the premium were tendered where made, it would not be accepted. Griesemer^ vs. Mutual Life Ins. Co. of New York (Supreme Court of Washington), 38 Pac. Rep., 1031. LIABILITY FOR FAILURE TO PAY PREMIUMS UNDER ASSIGNMENT OF POLICY.— Where a life insurance policy ia assigned to secure the assignee against a contingent liability dependent upon the life of the insured, and such assignee is paid by a third person, a sum sufficient to pay the premiums while such contingency exists, but he does not agree to pay them, he is not liable in damages^ to the assured's estate for permitting the policy to la.pse by failure to apply the money received to the pay- ment of such premiums. Kolloran vs. Sweet (Supreme Court of New York), 25 N. Y. Supp., 295. CONSIDERATION IN NEGOTIABLE INSTRUMENTS.— One of the conditions annexed to a policy of insurance was that it should not be valid or binding until the first premium was paid to the company, but no special mode of payment was pro- vided for by the policy. This company delivered the policy to the assured, and took his promissory notes for the first premium. Even in the absence of any express agreement to that effect, the company must, In judgment of law, be deemed to have accepted the notes in payment, and the policy became binding, and consti- tuted a valid consideration for the notes. Union Central Life Ins. Co. vs. Taggart (Supreme Court ot Minnesota), 56 N. W. Rep., 579. PAYMENT OF LIFE INSURANCE PREMIUMS WITH STOLEN MONEY.— Life insurance for the benefit of the wife of the insured was procured, and all the premiums paid with money stolen by the insured from a firm of which he was a member. The amount stolen exceeded the amount of the policies. The en- tire proceeds of such policies belonged to the firm as against the wife. Where lite insurance for the benefit of the wife of the in- sured is procured with his money, but the subsequent premiums are paid by money stolen by him from a firm of which he was a member, the wife is entitled to the amount of such insurance, charged with a lien for the amount of the premiums paid with the stolen money. ( Holmes vs. Davenport (Supreme Court of New York), 18 N. Y. Supp., 56. PREMIUMS. 323 RIGHT OF AGENT TO MAKE DISCOUNT ON PREMIUMS. — The action uf an insurance agent in allowing one whose life he has written to retain one-half the first premium, the amount of the agent's commission, in consideration of the insured's furnish- ing him with the names of certain others whom he might solicit. Is not a violation by the company of the statutes, which prohibits any "distinction or discrimination as to the premiums or rates charged" on life insurance policies. Quigg YS. Coffy (Supreme Court of Rhode Island), 30 At. Rep., 794. ACTION ON INSUtRANiCE POLICY.— In an action on an in- surance policy where the payment of the premium is allegel, and there is judgment by default, it Is not necessary to prove the payment of the premium. A motion to set aside a default judg- ment will not be granted where the defense Is a forfeiture of the policy, unless it is shown that such forfeiture has in no way been waived, and that on another trial the result would probably be different. Union Cent. Life Ins. Co. vs. Lipscomb (Court of Civil Ap- peals of Texas), 27 S. W. Rep., 307. "WAIVER OF CONDITION FOR PROMPT PAYMENT OF PREMIUM.— Though a policy of lite insurance contained a con- dition that it should be forfeited ff insured failed to pay any in- stallment of premium when due, whether, in an action thereon, the non-payment relied on for a forfeiture was a quarterly in- stallment under a subsequent agreement by which a proportion of the annual premium was to be paid, and the company's evi- dence relied on to establish such subsequent agreement also showed that it agreed with insured to receive the quarterly pay- ments after they became due, if made within a reasonable time, the company is estopped to Insist on a technical forfeiture. Where a life insurance company receives from the assured pay- ment of an installment overdue, it waives the right to claim a forfeiture on the ground that such subsequent installment was not paid on the day it became due, in accordance with a con- dition in the policy that it should become void if any installment shovild not be paid on the day when payable. DeFrece vs. National Life Ins. Co., 32 N. E. Rep., 556. REVIVAL OF VOID POLICY OF INSURANCE.— Wbere one obtained a policy of insurance on her father'.s life, without the condition of the company's contract to insure, that the consent of the person insnired must be personally subscribed on the applica- tion having been complied with. On her stating to the secretary that she understood the policy was of no effect, and that she wanted the premiums paid to be returned, he replied that it was void, but that the company might waive its objection to the validity of the policy if she would obtain her father's consent to the policy, and a physicians' ceitlflcate as to his health. Instead of doing so she brought action for the premiums. They both treated the policy as void, and neither could revive it without the- consent of the other, and in such case the premiums could be re- covered. Fulton vs. Metropolitan Life Ins. Co. (Court of Common Plear of N. Y., City and County), 23 N. Y. Supp., 598. 324 INDICATOR'S DIGEST. NOmOE OF INSURANCE PREMIUMS.— The statute of New York, requiring life insurance companies, doing business in that state, to give notice to the holders of policies of the accruing of their premiums, as a condition of the right to forfeit the policies for non-payment of premiums, is not a violation of the constitu- tion of the United States, as operating unequally upon companies of New York and of other states doing business therein. Phinney vs. Mut. Life Ins. Co. of New York (Circuit Court, D. Washington, N. D.) 67 Fed. Rep., 483. LIABILITY OF COMPANY FOR RETURN OF PREMIUM. —The liability of an insurance company for the return of prem- iums Is by no means absolute, but depends upon the question vyhether the policy has ever become a binding contract between the parties. If it has and the risk has once commenced, then there can be no apportionment, nor will an action lie for the recovery of the premiums paid. If a person is induced by false representations to take out a policy he can avoid it, and recover the premiums paid upon it. But the representations must be material as to him; such as work an injury to him. And moreover in such case it should be shown that there was a rescission, or that it was unnecessary, by reason of the policy being entirely worthless. Mailholt vs. Met. Life Ins. Co. (Sup. Jud. Ct. Mass.), 32 At- lantic Reporter, 989. , NON-PAYMENT OF PREMIUM AND APPLICATION OF DIVIDENDS.— An endowment life insurance policy was Issued by an insurance company to mature In twenty-two years unless the insured should die before that time. The premium was pay- able annually for the period of ten years, partly in cash and part- ly in premium notes of the insured bearing interest. The policy provided that if default should be made by the insured in the payment of any premium the defendant would pay (at the ma- turity of the policy) as many tenths of the sum originally insured as there should have been complete annual premiums paid at the time of such default. "But, in order to secure such proportion of the policy, all premium notes must be taken up or the interest thereon be paid annually in cash on the date of the annual ma- turity of the premium, until the notes are canceled by returns of the surplus, or the whole policy will be forfeited, unless one or more annual payments have been made in full by cash payment or by the application of the dividend." Construing the policy as to any notes outstanding when the insured makes default in respect to the annual premium he must continue to pay the inter- est in cash until the principal is extinguished by the application of dividends as a condition of maintaining the right to receive a corresponding number of "tenths" of the sum insured. But the complete payment of the cash premium for any year or years and the payment of the notes given for such years secures a non- forfeitable endowment of a corresponding number of "teuths" of the policy. A dividend being applicable towards the payment of a note at the same time that the interest of the note fell due the default of the insured to pay the interest does not discliarge the insurance company from the duty to apply the dividend if such application would pay off the note and so prevent a forfeiture of the policy. Th? default of the insured in the payment of interest, PREMIUM NOTE. 325 axnounting to four cents, is too trifling to be noticed. A non- forfeitable endowment oi one-tenth of the policy having been secured, that may be recovered at maturity, less whatever may remain unpaid of the outstanding notes after applying dividends to extinguish the same (the policy so providing). Van Xorman vs. Northwestern Mut. Life Ins. Co. (Supreme Court of Minnesota), 52 N. W. Rep., 988. PREMIUM NOTE. PAYMENT OF NOTE GIVEN FOR LIFE INSURANCE PREJIIUMS. — An agent of a life insurance company took a note from an applicant and indorsed it over to the company. Through some error in signing the application afterward rectified, the ap- plicant refused to pay the note when due. In the settlement of the agent's account, at the end of the year, the note was charged to him. If the company intended to repudiate the policy because of non-payment of note, the note by that act became void; if, on the other hand, it simply charged the note to the agent and took the amount out of his account, then the agent can recover on the note, and the policy is valid. Maskev vs. Turner (Supreme Court of Michigan, 45 N. W. Rep.. 6U. ' THE SUPREME COURT OF NORTH CAROLINA HOLDS, that where a father who has given his note a payment of the first premium on a life'policy taken out by his minor son, in con- sideration that the policy be made payable to him and his heirs, with knowledge that the policy was made payable to him, and after his death to his son, makes no objection until after the ma- turity of the note, he cannot defend an action on the note by showing thai the policy was not made payable as agreed. The fact that the note was made payable to the agent of the com- pany is immaterial. Roddy vs. Talbott, 20 S. E. Reporter, 375. CONDITIONS IN LIFE INSURANCE POLICY AS TO PAYING PREMIUM NOTE.— Where a life insurance policy con- tained a provision that "if a note, taken for the premium or re- newal premium, or any part thereof, on this policy, shall not be fully paid when "due. the premium shall be considered as fully earned, and the policy no longer be in force or binding upon the company," and the holder of a policy gave his note for the pre- mium, which he failed to pay when it became due, the company was released thereby. A provision in a life insurance policy authorizing the deduction from the amount payable in case of the death of the insured of any balance of the premium for the year remaining unpaid, or any indebtedness on the policy, is not in force or binding upon the company if a note for a premium, or any part thereof, is not fully paid when due. Imperial Life Ins. Co. vs. Glass (Supreme Court of Alabama^ 11 S. Rep., 671. 3z6 INDICATOR'S DIGEST. WHEN PAYMENT OP PREMIUM BY NOTE WILD NOT KEEP POLICY ALIVE— The giving of a note for a premium to an agent, who had no power to postpone payment of the premium or to substitute anything for it, which was never accepted by the company or brought to Its knowledge, will not keep alive a policy which provides that the company assumes no risk except for that portion of the year for which the premium shall have been ac- tually paid cash in advance. Smith vs. New England Mut. Life Ins. Go. (.Circuit Court of Appeals, Third Circuit), 63 Fed. Rep., 769. LIABILITY FOR FAILURE TO PAY PREMIUM NOTE.— A failure to pay the premium note due on an insurance policy, which provides that a failure to pay the premium notes when due ■shall render the policy null and void, without notice to the parties interested or other action on the part of the company, will render the policy void without any formal cancellation of the policy. Union Cent. Life Ins. Co. vs. Chowning (Court of Civil Ap- peals of Texas), 28 S. W. Rep., 117. FORFEITURE FOR FAILURE TO PAY PREMIUM NOTE.— A life policy and premium note executed contemporaneously are parts of the same contract. Under a life policy providing that failure to pay, when due, "any moneys required to be paid," shall render the policy void, and a premium note executed at the same time, reciting that if not paid at maturity the policy shall become void, failure to pay works absolute forfeiture. Laughlin vs. Fidelity Mutual Life Association (Court of Civil Appeals of Texas), 28 S. W. Rep., 411. WHEN PAYMENT OF LIFE POLICY CANNOT BE AVOID- ED. — When a life in.surance policy recites that it is issued on the application of the insured, and the company takes the note , of the beneficiary, a grandson of the insured, in payment for the first premium, there being no deception as to the real party to fhe insurance, the company is estopped to deny that the policy -was issued on the application of the insured. As an insured may make a person who has no insurable interest in his life the bene- ficiary in the life policy, the fact that the premiums are paid by such beneficiary does not render the policy void, but the courts will consider him a trustee for the benefit of those legally entitled to the policy. Mutual Life Insurance Co. of N. Y. vs. Blodgett, 27 S. AV. Rep., 286. CONDITION IN POLICY- NOTE OIVBN FOR PREMIUM- NON-PAYMENT— DEMAND OF PAYMENT AFTER MATURITY —WAIVER.— A condition in a policy of life insurance provided that "if any premium, note, cheok or other obligation be not paid when due, this policy shall be void, and all payment made upon it shall be forfeited to the oomipany." Held, aflirming the decision of the Court of Appeal for Ontario (20 A. R., 187), that where a note given for a premium under said policy was partly paid when due and renewed, and the renewal was overdue and unpaid at the death of the assured, the policy was void. And further, that a demand for payment after the maturity of the renewal was not a waiver of the breach of the condition so as to keep the policy in force. McGeachie vs. North American Life Ins. Co., 23 S. C. R., 148. PROCEEDS. 327 PROCEEDS. RIGHTS OF EXECUTORS AND TESTAMENTARY GUAR- DIANS TO RECEIVE PROCEEDS OF INSURANCE MONEYS.- Where a statute declares that insiu-ance moneys to which infants are entitled may be paid to the executors named in the last will and testament of the insured, or to a guardian of the infants duly appointed by the courts, and that such payment shall be a good discbarge to the insurers; payment to the testamentary guardian of tbe infants is not sufficient, he not being competent under such a statute to discharge the insurers. Campbell et al. ts. Dunn et al., 22 O. R., 98. RIGHT TO PROCEEDS OF INSURANCE BY DEBTOR FOR CREDITOR.— A creditor agreed that if ,his debtor would apply for and procure the insurance of his (the debtor's) life, in an indicated insurance association and for a designated sum, in a specified manner, he, the creditor, would from time to time pay the premium assessments necessary to keep the insurance alive, and at the debtor's death, and the creditor's receipt of the proceeds of the insurance, would apply the same to the reim- bursement of the expenditures for premiuims, with interest, and then to the satisfaction of his debt with interest, and pay over to the debtor's wife whatever balance should remain of such proceeds. It was held (a) that there was suiflcient consideration to support the creditor's promise, and (b) that the proceeds o£ the insurance in the creditor's hands are there upon a trust, the performance of which the debtor's wife may enforce by suit in equity. Sell vs. Stellar (Court of Chancery of New Jersey), 32 At. Rep.,' 211. TRANSFER OF LIFE INSURANCE POLICY AS SECUR- ITY. — TVhere one, being indebted to another on his notes, deliv- ered to her a writing, endorsed "assignment of policies," whereby he directed whoever might administer his estate, on his death, to appropriate the proceeds of certain policies of insurance on his life to the payment of any notes she might then hold against him, and she testified that he said he transferred the policies to her as collateral security, and that the policies were hers, and that the writing was to show that they belonged to her, and that he put them in her box, in his office, which was marked with her name, and afterwards the insolvent left the box with its contents with her for examination and she retained them, there was evi- dence, independent of the writing, to justify a finding that Ihe policies were delivered as collateral security for the notes. Provi- sion In a life insurance policy that no assignments shall be valid unless in writing, and the policy shaU not be assigned without the written consent of the insm-ance company, do not defeat the transfer of the policy by delivery thereof, though it render the Xwllcy void at the company's option. Hewins vs. Baker (Supreme Judicial Court of Massachusetts), 37 N. E. Rep., 440. 328 INDICATOR'S DIGEST. DISTRIBUTION OF PROCEEDS.— Under- a life insurance policy payable to the wife of the insured, or any wife that may survive him., and minor children living at the time of his death, the beneficiaries take per capita, and the law of descents and dis- tributions does not apply. Heydenfeldt vs. Jacobs (Supreme Court of California), 40 Pac. Rep., 192. WHO IS ENTITLED TO PROCEEDS OF LIFE POLTOY.— Where a father took out a policy on his life, payable to his daughter four years old, or her "legal representative," and she married and died before her father, her husband is not entitled, under the laws of New York, to the proceeds of the policy. The executors of the insured should receive the fund. Geoffroy vs. Gilbert (Sup. Ct. N. Y. County), 36 N. Y. S. Rep., 884. ENFORCEMENT OF AJGREEMBNT TO DIVIDE PRO- CEEDS OF LIFE INSURANCE.— Where one, after procuring insurance on her life, payable to one not a blood relative, had the policy changed so as to make it payable to one who was a blood relative, the latter agreeing to receive the proceeds in trust for the first party, who accordingly delivered up for cancellation the former insm-ance certificate, which had been delivered to him, the second party cannot, after receiving the proceeds, refuse to pay it over, on the ground that th6 first party had no insurable interest in the life of deceased. Hurd vs. Doty (Supreme Court of Wisconsin), 56 N. W. Rep., 271. RIGHT TO PROCEEDS OF POLICY.— AVhere a life insur- ance policy recites that the insurance will be paid to the wife of the insured, for her sole use, if living in conformity with the stat- ute, after a satisfactory proof of the death of the insured during the continuance of the policy, but if the insured shall survive said term of fifteen years from the commencement of tlie insur- ance, it shall be paid to him, the interest of the wife is soich as depends on the death of the insured within the fifteen years. Miller vs. Campbell (Superior Court of New York City, Gen- eral Term, March 6, 1893), 22 N. Y. Sup., 388. PROFITS. RIGHT OF INSURED TO PROFITS.— Discretion of di- rectors of company to retain profits to provijie for contingencies. Where a person Insures with a company upon their "endowment participating plan," and the company, by the contract of insur- ance, agree to pay him at the end of a specified period, if he sur- vived, a certain sum, together with his share of the profits made in that branch of the business during the period, he must ac- quiesce in the discretion of the actuary and directors of the com- pany, bona fide exercised, and must take his share of what was apportioned as divisible surplus. And statements made by otG.- PROFITS— PROOF OF LOSS. 329- cers of the company in letters or pamphlets as to the course pur- sued by them in dividing the surplus would not advance an action by him against the company for an account and payment of his- share of all the profits. And a representation made, that partici- pating policies "would receive their equitable share of the divisi- ble surplus"' points to the exercise of the discretion of the mana- gers of the company, and the expression, "divisible surplus," is one that refers to something less than the entire profits. Before deVisi- ble profits can be ascertained it wouldi seem to be essential for the security of policy-holders to keep such resources in hand as would cover the whole liabilities of the company, having regard to the uncertain chances of mortality, the fluctuations in the rate of in- terest on securities and re-investments, and the amount of ex- penses likely to be incurred in the future. Bain vs. Aetna Life Insurance Company, 20 O. R. 6; 21 O. R., 233. See Fuller vs. Knapp, 24 Fed. Rep., at p. 105. EIGHT OF INSURED TO WITHDRAW INSURANCE AC- CUMULATIONS.— An insurer insured the life of I., "hereinafter called "the insured.' * * * for the term of his natural life." and agreed to pay the amount of said insiu-ance "to the assiired. imder this policy, to-wit: A. M. I., wife, and M. C. C, daughter, of said I., and his other childi'en."'' * * after proof of the death during the continuance of this policy of the said person whose life is insured." It was provided that upon the completion of a stated period with the termination of the policy "by lapse or death" the accumulations apportioned to the policy should secure "to the assured" one of five benefits, at the option of the assured, one of which was "to withdraw the entire equity in the accumula- tions that belong to this policy in cash." After the expiration of such term, I. could not elect to withdraw said "equity," as his wife and children were the sole beneficiaries. It was immaterial that I. had paid the premium, and had possession and control of the policy, and that his wife and children had no knowledge of it. New York Life Insurance vs. Ireland (Supreme Court of Texas'), IT S. W. Rep., 61T. PROOFS OF LOSS. WAIVER OF PROOFS OF DEATH.— The refusal of a life insurance company to allow a holder of a policy to prepare the proofs of death which it required, on the ground that the policy was void, is a waiver of the requirement. O'Rourke vs. John Hancock Mut. Life Ins. Co. (Common Pleas of New York City and County. General Term), 31 N. Y. Supp., 130. EFFECT OF STATEMENTS IN PROOFS OF LOSS.— State- ments as to the cause of death, in proofs of loss under a life in- surance i)olicy. are conclusive upon the party who makes them, by pleading or otherwise, only until he gives the insurance com- pany reasonable notice that he was mistaken, after which they 330 INDICATOR'S DIGEST. have the effect of solemn admission, under oath, against interest, but are not conclusive. Travelers' Ins. Co. vs. Melick (U. S. Circuit C!ourt of Appeals), 65 Fed. Rep., 179. EEBATE. PAROL AGREEMENT FOR REBATE.— A parol agreement made by a mutual life insurance company with a policy-holder at the time that the latter executes his premium note, payable four months after date, that the maker should have a rebate lof 30 per cent of the face of the note, is not contradictory of the vsTitten obligation, and, in an action by such company against the maker, an affidavit of defense setting up such agreement is sufficient. Mich. Mut. Life Ins. Co. vs. Williams (Supreme Court of Penn.), 26 At. Rep., 655. PENNSYLVANIA ANTI-REBATE LAW.— The Pennsylvania statute prohibiting insurance companies from making any dis- crimination in favor of iadividuals between rates of insurance of the same class and usual expectations of life, and making the violation thereof a minciemeanor, is not unconstitutional, and is within the police powers of the legislature. The title of that act, "to prevent any life insurance company, or agent thereof, doing business in Pennsylvania, from making or permitting any distinction or disc-rimination in favor of individuals between in- surants of the same class and equal expectations of life, in the amount of payment of premiums or rates charged for policies of life or endowment insurance, and providing a penalty for viola- tion thereof," sufficiently set forth its object. Commonwealth vs. Morning Star (Supreme Court of Penn- sylvania), 22 At. Rep., 866. RECEIVER. CLAIMS AGAINST RECEIVER OF LIFE INSURANCE COMPANY.— When the receiver of a life insurance company, who was appointed on the voluntary dissolution of the company, ad- vertised for claims, as required by statute, and distributed the assets, it is too late to substitute iiim as a party defendant in a suit which was pending against the corporation when he was appointed. Owen vs. Homeopathic Mut. Life Ins. Co. (Supreme Court of New York), 10 N. Y., Sup. 75. RECOVERY— RENEWAL. 331 RECOVERY. RECOVERY OX SPECTJ.LATI^•E LIFE POLICY.— The right •of the legal representatives of an assured person to recover the proceeds of a speculative life policy from a person who has re- ceived the money ceases where an executor or administi-ator has received and in good faith distributed it. Blake vs. Metzgar (Supreme Court of Pennsylvania), 24 At. Rep., 755. RECOVERY OX LIFE INSURAXCE POLICY.— The assured under a life insurance policy died in possession of his policy, which came to the hands of the administrators appointed in the State where the assured resided. Subsequently an administrator in another State, where the assm-ed had property, was appointed. The last named administrator never having had possession of the policy cannot recover upon it, as against the one having it in his possession. \ Morrison vs. Mutual Life Ins. Co. (Supreme Court of New York), 10 X. Y. Sup., 445. RENEWAL. WHEX POLICY IS XOT REVIVED.— In an action on life policies, it appeared that they lapsed in December, 1893, for non-payment of weekly premiums, and that the home office alone could revive them; that on January 3d the beneficiary made written application to the local agent for their revival, but paid ao money at the time; that the application recited that liability exists on the part of the company until it, at its home office, shall have approved the application, and "the policy shall not be in force until the fact of its official revival shall be indorsed upon it by the secretary of the company at its home office * * * and shall be% delivered to the applicant so indorsed; nor shall said policy then be in force unless, at the time of its delivery as aforesaid, the insured shall be living and in sound health;" that a few days after the application was made, the beneficiary paid the agent part of the amount due on premiums, and on .January 11. 1894. paid the balance: that the assured died on the latter date: that the policies, with revival indorsed, were re- turned to beneficiary .January 29. 1894: nnd that she knew when she paid the money to the agent that if the policies were not re- vived they would be returned to her. The Supreme Court of Michigan, on the above facts, held that there was no revival of the policies. Clark vs. Metropolitan Life Ins. Co.. 65 N. W. Reporter. 1. 332 INDICATOR'S DIGEST. REINSTATEMENT NOT A NEW CONTRACT.— Where a policy of insurance issued in New York on the "renewable term" plan is forfeited by failure to pay premiums, a reinstatement of the policy, on the same terms, is not the making of a new con- tract, but merely a cancellation of the forfeiture, leaving the original policy in force as a New York contract. Goodwin vs. Provident Sav. Life Assur. Soc. (Supreme Ct. la.), 66 N. W. Rep., 157. WHEN ACTION TO RENEW INSURANCE POLICY WILL LIE.— Insured took out a life policy, payable to her son if he lived, otherwise, to her estate, and paid the fii'st premium. The son paid the other premiums, but testified that he managed her estate, and paid them in her behalf, and his testimony was corroborated by circumstances. It was held that the policy was not void as a wager policy. The insurers' agents, by falsely representing that the policy was void, and iwithout allowing the son time to get advice, having persuaded him to give up the policy on repayment of the premiums paid, an action to revive the policy would lie. It is no defense to such an action that the premium falling due shortly after surrender of the policy was not paid or tendered, as the company, by its own acts, had rendered it unnecessary. Tender of payment , was also unnecessary, since the company's president had given written notice to insured that thereafter he would receive due notice of the day when such premium would fall due, and no such notice was given. Heinlein vs. Imperial Life Ins. Co. (Supreme Court of Jlichi- gan), 59 N. W. Rep., 615. REPRESENTATIONS. REPRESENTATIONS IN APPLICATIONS.— Merely callings a physician to prescribe for a temporary indisposition, not seri- ous in its nature, and not affecting the person's sound bodily health, is not being attended by a physician within the meaning of such word in an application for insurance. Plumb vs. Penn Mut. Life Ins. Co. (Sup. Ct. Mich.), 65 N. W. Rep., 614. BFIETEOT OiP MISSITATiEJMiENT IN APPLICATION FOR LIFE POLIOY. — An application for a life insurance policy pro- vided that it should be void if the statements in the application were not true, and declared that the applicant knew that untrue answers or supipressions of facts as to her health would vitiate the policy. The Supreme Court of Rhode Island held that where both the mother and sister of Uie applicant, who afterwards died of consumption, had died of that disease, the failure of the ap- plicant to mention the sister's death avoided the policy, although the doctor who had examined her had previously rejected her, during her mother's life, as beimg liable to contagion from the latter. Jerrett vs. John Hancock Mut. Life Ins. Co., 30 At. Reporter,, 793. REPRESENTATIONS. 333 MISREPRESENTATIONS IN APPLICATION FOR LIFE INSURANCE.— A life insurance policy made the statement of the application a part erf the policy, and also made any misrepresen- tations in such application a ground for avoiding the policy. An applicant gave as his physician one who was not, nor had been Tvithin the year, acting in such capacity. This was sulficient to avoid the policy. | Phillips vs. New York Life Ins. Co., 9 N. Y. Sup., S36. FALSE STATEMENTS IN APPLICATION RENDERS POL- ICY VOID.— iWhere a policy contains a provision that "in con- sideration of warranties in application for this policy," the com- I)any "does hereby insure" the application to the extent of the warranties referred to, is a part of the contract of insurance. An application contained the statement, warranted to be true, that a certain person was assured' s wife, and named as the beneficiary in the policy. The fact was that the assured had abandoned his lawful wife, and. was living in adultery with the person named as his wife in the policy. It was held, that the false statement avoided the policy. Travelers' Ins. Co. vs. Lampkin (Court of Api)eals of Color- ado), 38 Pac. Rep.. 335. EFFECT OF MISREPRESENTATIONS IN POLICY.— It is easy to see how an insurer by multiplying immaterial statements to be made by the insured, and giving to them, by the wording of the policy, the technical character of warranties can, in the ab- sence of any statute provision under the subject, place the assured in a position in which it will be difficult, if not impossible, for iim, although he has acted in good faith, to recover upon his eon- tract, because of some inaccurate statement on his part. If he is held to have warranted the truth of a statement, its exact and literal tmth is a necessary condition of his right to recover, how- ever immaterial the statement may be, and however honest may have been his conduct. The general opinion prevails, that it was the intention of the Legislature of Massachusetts, by the statute of 1S78, to change this rule to some extent, an^ to enact in place of it one which should hold the contract valid unless the mis- statement, if made in the negotiation of the contract, was made with an actual intent to deceive, or unless the misstatement was of a matter which actually increased the risk of loss; and this with reference to statements which may be said by the parties to be warranties as well as those which wei-e only representa- tions. Such was already the law as to statements not technical warranties. As to' mere representations, the statute may well be held to be only declaratory, but as to warranties it made a new rule. It speaks in terms neither of warranties or representations, technically so called, but deals with all misrepresentations made preme Judicial Court of Mass.). 39 N. E. Rep., 771. in negotiating the contract or policy. Misstatements of fact, whether the statement is said to be by the parties a warranty or a representation, are equally misrepresentations, and are placed in eacb case upon the same footing by the statute which applies to them if the statements are called "warranties" by the parties -no less than if they are mere "representations." White vs. Provident Sav. Life Assur. Soc. of New York (Su- 334 INDICATOR'S DIGEST. WHEN ORAL REPRESENTATIONS CANNOT BE SHOWN. —Where the company having alleged that the misrepresentations upon which it had acted to its own disadvantage were contained in the written application of the assured, it is not entitled on trial to show what oral representations the assured had made to the physician at the time the examination was being made, with a view to the approval or rejection of the insurance. Banker's Life Ass'n vs. Lisco (Supreme Ct. Neb.), 66 N. W. Rep., 412. EESCISSION. NOT A RESCISSION BY INSURED.— A party applied to a company for a policy on his life and executed two negotiable notes in payment of the first year's premium, his application saying that his subsequent premiums should be payable semi- annually. The policy sent him required annual. Before its is- suance he had written the agent that he did not want the policy, and for the return of the notes, and on receipt of the policy repeated his request, saying he would surrender the policy. Na objection then being made to the time at which premiums were payable, nor was the policy ever returned, but lapsed for non- payment of further premiums. The Court of Civil Appeals of Texas held that there was no rescission, so as to entitle him to recover back the amount of the notes he had paid to bona fide holders. New York Life Ins. Co. vs. Miller, 32 S. W. Reporter, 550. SALE OF POLICY. S.4LE AND TRANSFERS OF LIFE POLICIES.— A policy of life insurance issued to a person insured is a proper subject of sale and transfer, and is enforceable in the hands of an assignee, thoueh he had no insurable interest in the life of the payee. Steinback vs. Diepenbrook (Sup. Ot. App. Div., 1st Dept.), 3T N. Y. S. Rep.. 279. SECURITIES— STATUTES. 335 SECURITIES. WITHDEAT^'AL OF SECrRITIES FROM STATE.— Under the statute proTlding that the securities which an insurance com- pany Is required to deposit with the State treasurer before en- gaging in business shall remain in his hands, notwithstanding the company ceases to do business, and shall only be withdrawn on the order of the Supreme Court, or when the company shall show to the satisfaction of the Insurance commissioner and State treas- urer that the risks of the company are less than the securities, in which case the company shall be permitted to withdraw the sur- plus, an order for the withdrawal of securities to pay death losses of a company which has ceased to issue policies because its capital has become so impaired as to render it unprofitable and imprudent to continue business will not be made where, from the company's showing, its death claims and policies outstanding approximate the amount deposited, and the death claims may have been in- creased- since such showing, and the policy-holders express a de- sire to be heard in opposition. ; Imperial Life Insurance Co. ts. Hambitzer (Supreme Court of Michigan), 55 X. W. Rep., -365. STATUTES. STATITTORY ENACTMENT IN FAVOR OF WIVES AND CHILDREN— T\TL,L.— VARIANCE — APPORTIONMENT. — Un- der a statute which provides that "the insured may by an instru- ment in writing, attached to or indorsed on, or identifying the policy by its number or otherwise, vary a policy or a declaration or an apportionment previously made so as to restrict or extend, transfer or limit the benefits of the policy to the wife alone or the children, or to one or more of them, although the pali'2. STATEMENT.< IN APPLICATION FOR LIFE INSURANCE. —Error cannot be predicated on the refusal of the court to .i^ive special charges, where their substance is euibmced in those al- ready given. Statements by an applicant for a policy of life in- surance concerning his physical condition, though uot correct, will not avoid a policy issued him, where the statements! were made in good laith. aud such applicant had no reason to suspect, or meins of ascertaining, that he was alBicted with a latent disease. Endowment Rank, Knights of Pythias, vs. Rosenfield (Su- preme Com-t of Tennesseej, 22 S. W. Rep.. 204. STATEMENTS IN APPLICATION FOR LIFE INSURANCE. — The agent of a life insurance association took the application of a man who was unable to read or write, and put his age at less than It really was. stating at the time that he would make the assured out younger than he was. The company cannot de- feat a. recovery on the policy issued on such application, on the ground that the application contained untrue statements, though the policy coutained a provision that such statements should render the policy void. Keystone Mut. Ben. Ass'n vs. Jones (Court of Appeals of Maryland), 20 At. Rep., 195. APPLICATION OP MUTUAL BENEFIT INSURANCE.— Where an application for membership in a benevolent society di- rects payment of the certificate, on the member's death, to his wife, cannot be treated by the society as a warranty that the beneficiary named is the applicant's wife, in the absence of any intimation in the application itself that the facts therein stated are warranties, though the constitution of the society declares the application to be a warranty, since the constitution is not binding on one who Is not yet a member, but who simply pro- poses to become one. Where the constitution and by-laws of a benevolent society establish three classes of beneficiaries, the family of the member, relations by blood, and those dependent on him for support, a named beneficiary, designated as the mem- ber's wife, who is dependent on him tor support, and who is in- no.:ent of any wrong, is entitled to payment on the member's death, though she was not in fact bis lawful wife, because ha had been guilty of bigamy in marryin? her. Supreme Lodge A. O. U. W. vs. Butchinson (.Appelate Court of Indiana). 33 N. E. Rep., 8ie. 356 INDICATOR'S DIGEST. LIABILITY FOR FALSE STATEMENT IN APPLICATION. —A statement that "no application has been made to any other company for insurance" is material, and, if false, constitutes a breach of warranty that the answers to questions in the applica- tion are true. _ ^, ,,. , Bernard vs. United Life Ins. Ass'n (City Court of New Yor]£, Oeneral Term), 32 N. Y. Supp. Rep., 223. FALSE REPiRESENfTATIOiNS IN APPLICATION FOR LIFE INlSURANCOE.— W'here an applicant for life insurance, in answer to a question to what extent he used alcoholic stimulants, an- swered, "None," proof of a single use of liquor was not sufficient to prove the answer false, but it would be necessary to prove a iabit of using stimulants. Gmnd Lodge A. O. U. W. vs. Belcham (Supt. Ct. of 111.), 33 N. E. Rep., 886. APPLICATION AND POLICY TO BE CONSTRUED AS ONE.— In an action on a policy of life insurance the policy and the application therefor must be construed as one instrument. When the insured suppresses, in his application, the fact of the existence of other insurance on his life in violation of a condition of the policy, it will be conclusively presumed that the suppres- sion was intentional; and in an action on the policy, the fact of the existence of other insurance at the tiipe of application being undisputed, the court may properly refuse to eved submit the case to the jury. Studwell vs. Mutual Ben. Life Ass'n (Superior Court of New Yorli City), 19 N. Y. Sup., 709. BREACH OP WARRANTY IN APPLICATION.— Where by the terms of a certificate of insurance, issued by a mutual benefit association, the application and medical examination rire made a part of the contract, and in such application it is stipulated that the statements made and answers made to the medical examiner are to be deemed warranties, untrue statements in such appli- cation and untrue answers made to the medical examiner in answer to questions propounded constitute a breach of the war- ranty and avoid the contract. Knudson vs. Grand Council of Northwestern Legion of Honor ■(Supreme Court of South Dalsota), 63 N. W. Rep., 911. WAIVER OF OBJlEJOTION TO APPLICATION.— A benefl- •cifiry's release of liability on -a life policy may be impeached by troof that the company's agent, who has also been insaired's man of business, read the beneficiary a fl'Ctitious doctor's letter, falsely i stating the cause of death, told her that insured had made false . state nents in her application, and that she could not recover, and that the beneficiary signed the release relying on said letter rep- r'.sentations. Two months after her policy had been issued, in- isured wrote the company that in looking over their application blank she had noticed questions which the doctor had not asked her, and answered them to the effect that she had consulted a doctor for hfart failure. The company's examiner had certified ier heart soi nd. The company's acceptance of an assessment 20 ■day,3 after receipt of the letter was evidence that it had waived •objtetion to the aiiplication on that account. Silk vs. Mutual Reserve Fund Life Ass'n (Supreme Court of Pennsylvania), 28 At. Rep., 445. APPLICATION— ASSESSMENTS. 357 ESTOPPEL TO ASSERT BREACH OF CONDITION.— To an interrogatory in an application for insurance the applicant re- turned a true answer; but the agent taking the application know- ingly and intentionally, without the knowledge of the applicant, substituted and inserted a false answer. The company is estopped to allege the false answer as a defense to an action upon the policy issued on the application. Bernard vs. United Life Ins. Ass'n (Common Pleas of New York City and County), 33 N. Y. Supp. Rep., 22. ASSESSMENTS. FAILURE TO PAY ASSESSMENT.— An Insurance certificate provided that on failure to make payments at maturity in Jan- uary, April, July or October, the membership should be forfeited. The insured was mortally wounded April 2Sth and died May 1st. The last day of April fell on Sunday, and the April assessment was not paid. The laws of California, as do some other states, provide that, when any contract is to be performed on a holiday, it may be performed on the next business day. The court held that the last day to pay the assessment was May 1st, and the insured having died on that day, the insurance was in force. Northey vs. Bankers' Life Assn. (Supreme Ct. Cal.), 42 Pac. Kep., 1079. PAYMENT OF ASSESSMENT AFTER DEFAULT.— By a certificate issued to a member of a subordinate assembly of a. benefit society, in favor of his wife, payment was conditioned upon his being a member in good standing at the time of his- death. Under the constitution of the assembly the member wa& not in good standing on November 1, 1888, because of a failure to pay dues. On that day an assessment was levied, and he was^ notified, but failed to pay within 30 days, which was an addi- tional ground of suspension. A few days later he paid the assess- ment, but before the money was forwarded to the supreme treas- urer he was notified that he would have to be re-examined by the medical examiner before reinstatement. Another assessment was levied on January 1, which was paid on the 17tn by a mes- senger of the wife. The officer receiving the money did not know it was not sent by the husband, or that it ever reached the supreme treasurer. By the society's laws the only way in which a member could be reinstated more than 30 days after his sus- pension was, by obtaining a new medical certificate and a major- ity vote of the assembly. The payment of the assessment did not constitute a waiver by the society, as the officers receiving them had no authority to waive its laws. The society was not bound to restore the money as a condition of iis right to deny that the member was in good standing. Lyon vs. Supreme Assembly Royal Soc. Good Fellows (Su- preme Judicial Court of Massachusetts), 26 N. E. Rep., 236. 358 INDICATOR'S DIGEST. MUTUAL INSURANCE— NOTICE OF ASSESSMENTS.-- >Vhere the by-laws of a mutual insurance company provids that failure to pay assessments within thirty clays from date of mail- ing of notice of same to address of insured forfeits the policy, such failure to pay is fatal, where the notice is sent, thous'li it was never received by the insured. Survick vs. Valley JIut. Life Ass'n. 23 S. B. Rep., 223. NOTICE OF AiSSESSMENT.-^Where the statute provides that no life insurance company doing business in the State of New York shall declare any policy lapsed for non-payment of premiums or interest thereon without first mailing to the insured a written notice stating the amount of such premium or interest, and that, if not paid in thirty days, the policj^ will be avoided, mortality assessments, which by terms of the policy are uncer- tain in amount and time of payment, and which are payable only on notice and demand, are not premiums or interest payments within the meaning of the act. Merriman vs. Keystone Mut. Ben. Ass'n (Court of Appeals of New York), 33 N. E. Rep., 738. NOTICE OF ASSESSMENTS IN MUTUAL BENE.FIT IN- SURANCE.— Ttie defendant having held itself out to be a cor- poration, and having contracted with the plaintiff as such, held to be chargeable as a corporation. The contract of the defend- ant, in its nature one of life insurance, embraces the promise of the defendant to pay the plaintiff a specified sum upon the death of her husband, who was a member of the defendant order, but with the express condition that he should comply with all the rules and requirements of the order. The plaintiff, suing on that contract, alleges generally such compliance. The defense was that he had been delinquent in the payment of dues and assess- ments, particularly stated in the answer. The burden of proof as to such default was on the defendant. The members of the order were required, by its construction, to pay specified assess- ments on the death of a member for the maintenance of the ben- eficiary fund, and by neglect to make payment within a time specified a member ipso facto forfeited his rights under the bene- ficiary contract. The notice of such assessments made upon members must be given to them before they could be deemed to be in default for non-payment. Peculiar provisions of the con- tract between the corporation and the assured member, found in Its constitution and by-laws, construed as contemplating that specified dues shall be payable quarter-yearly at specified periods without notice, but that a member does not forfeit his rights under the contract of insurance merely by neglect to comply with this requirement: that only by a formal suspension from the order for such cause are rights forfeited. It being contem- plated by the constitution of the order that suspension shall not necessarily result from non-]iayment of dues, the lodge being authorized to "otherwise direct," and in view of the general rule that such rights of membership are not to be declared to be forfeited without notice or opportunity to be heard. A declared suspension, ex parte and without notice, is ineffectual to termi- nate the obligation of the defendant under the contract. Scheufler vs. Or.-md Lodge A, O. V. W. of Minnesota (Su- preme Court of Minnesota), 47 N. W. Rep., 79!). ASSESSMENTS. 359 ASSESSilEXTS IX MUTUAL SOCIETY.— Insured, in a mu- tual benefit association, by failure to pay an assessment in excess of that called lor by his contract of insurance, does not forfeit his policy; nor does he by the payment of excessive assessments waive his right to refuse to pay subsequent similar excessive assessments; nor is he prevented from contesting the legality of aa assessment by the statement that the call was made in ac- cordance with the provisions of the policy. Langdon vs. Mass. Ben. Life Assn. (Sup. Jud. Ct. Mass.), 44 Northeastern Reporter, 22ti. REQUIREMENTS AS TO MAILING ASSESSMENT NO- TICE. — "Where the constitution of a mutual benefit association requires notice of assessment to be given its members by "mail- ing them a notice to their last address as shown by the branch books," and a notice is maUed to a member at a different address from that shown in such books, a failure by the assured to pay the assessments will not forfeit his rights under his certificate of membership. The placing of a notice, properly addressed and stamped, upon a desk from which the mail carrier, whenever he delivered mail, took letters so left to deposit them in the mail, was not a mailing of the notice within the contemplation of the contract. Molloy vs. Supreme Council of Catholic Mut. Ben. Ass'u (Su- preme Court of lowaj, 01 N. W. Rep.. !i2.S. WHO SHALL PAY ASSEJSSMENTS ON POLICY.— In an ac- tion on a life insurance policy, conditioned to he void if any assessment was not paid within a certain time from notice there- of, and that a notice by mall, directed to assured's address, as appearing on the company's books, should be deemed a legal notice, the company pleaded forfeiture for non-payment of the assessment. The guardian of the Infant beneficiary testified that after the policy was issued he and assured went to the company's office and requested the manager to address all notices of assess- ment to the guardian, which he agreed to do; that thereafter for a time the notices were sent to witness, which he paid, when he learned that a third i)arty had paid an assessment for assured; that he then told the company's officers that such third party had no right to pay the assessments, and that something was wrong; that such officers stated that it was all right, and they would not allow the policy to lapse; that if any assessment was not paid, they would telegraph, so he could pay it In time; that no notice of assessment the non-payment of which the company claimed to operate as a forfeiture was sent to him, and that he had no knowledge thereof until two days after the expiration of the time limited for its payment, when the company refused to accept the same. Two of the company's officers denied making any agreement to send the notices to the guardian, and testified that assured notified them to send all notices to him. The court allowed the jury to determine whether assured notified the com- pany to send the notices to him, and charged that, if they so found, the guardian could not recover. Held, that under all fne evidence the ruling was proper, though the testimony of the com- pany's officers as to the notices given by assured was not con- tradicted. Keeler vs. New York State Mut. Ben. Ass'n (Supreme Court of New York), 20 N. Y. Sup., 935. 360 INDICATOR'S DIGEST. MANDAMUS TO COMPEL MUTUAL BENEFIT COMPA- NIES TO MAKE ASSESSMENTS.— Under a certificate of mem- bership in a mutual benefit association, plaintiff was entitled, on tlie death of the member, to a certain sum, for which an assess- ment was to be made on all the members. Part only of that sum having been paid on the death of such member, plaintiff recov- ered judgment for the amount unpaid, but execution thereon was returned unsatisfied. A mandamus might be granted to compel the association to make an assessment on the members to pay the judgment. People vs. Masonic Guild and Mut. Ben. Assn. (Supreme Court of New York), 12 N. Y. Sup., 171. LIABILITY FOB ASSESSMENT IN MUTUAL BENEFIT INSURANCE.— The by-laws of a oo-operative assessment insur- ance company provided that the certificate of membership should contain the specified terms of the contract between the associa- tion and the member. A certificate provided that it was issued in consideration of the representation contained in the application and the sum of $25, and the further sum of $5.60, to be contrib- uted bi-monthly. There was a contract obligation on the part of the member to pay bi-monthly $5.60 which could be enforced at law. Smith vs. Brown (Supreme Court, General Term, Fifth De- partment), 27 N. Y. Supp., 11. NON-PAYMENT OF ASSESSMENTS — FORFEITURE AVAIVBR. — Where a mutual insurance company has without ob- jection received payment of assessments from a member after the proper date for their payment, they are not thereby debarred from insisting on a subsequent occasion upon the strict observ- ance of the conditions of the company as to payment when they give notice that they intend so to insist, and there is no conduct on their part tending to mislead the insured. Redmond vs. Canadian Mutual Aid Association, 18 A. R., 335. Buckbee vs. United States Ins. Co., 18 Barb., 541, and Insurance Co. vs. Eggleston, 96 U. S., 572, distinguished. Thompson vs. St. Louis Ins. Co., 52 Mo., 469, commented upon. And see Lefflngwell vs. Grand Lodge A. O. U. W., The Indicator, Vol. XI., 728. DUTY TO MAKE ASSiBSQMBNTS IN FRATERNAL INSUR- ANCE. — Under a contract of fraternal insurance which stipulates for the payment of such a sum as shall be realized from £in assess- ment upon all the members subject to assessment not exceeding one thousand dollars there is an implied promise on the part of the association that an assessment will be made, which, if duly paid, would produce one thousand dollars, or as much thereof as would, with the funds on hand, make that sum, and where the contract provides that the insured, on the death of any member, should pay an assessment of whatever the directors might deem necessary, it is incumbent upon the directors to levy an assess- ment large enough to raise the amount called for by the certifi- cate. In the absence of an assessment a recovery may be had for the full amount of the certificate unless it is shown by way of defense that a proper assessment would not have produced that amount. Lawler vs. Murphy (Supreme Court of Errors of Connecticut), 20 At. Rep., 457. ASSESSMENTS. 361 NOTICE OF INSUiiAXCE ASSESSMENT.— Where the laws of an insurance association require notice of each assessment to be given to each member, and provide that failure to pav such assessments within 30 days from the date of the notice shall be cause for suapension. a member cannot legally be suspended for non-payment of an assessment of which It is not shown that he was notified. Supreme Ixxlge Knisrhts of Honor vs. Dalfery (Supreme Court of lUinoisJ. 28 X. B. Rep., TSo. EFFECT OF ASSESSMENT AFTER NOTIOE OF FOR- FEITURE.— The levy and collection of an assessment by a mu- tual fire insurance company on the premium note of a member after the forfeiture of his policy, and knowledge of such for- feiture by the company, does not constitute a waiver thereof, where such assessment is made to pay losses occurring prior thereto. The fact that such assessment realized more than enough to pay such losses is insufficient evidence of an intention to waive such forfeiture, where it appears that from the begin- ning of the investigation of the loss under such member's policy, the company denied all liability because of such forfeiture. Farmers' Mut. Life Ins. Co. of Dug Hill vs. Hull (Court of Appeals of Maryland), 27 At. Rep., 169. NON-PAYMENT OF ASSESSMENT IN MUTUAL INSUR- ANCE. — When in an action to recover upon a certificate of insur- ance issued by a mutual benefit society, the defense is forfeiture for non-payment of an assessment, and the evidence shows that the assured has paid to the lodge suflicient funds to cover all legal assessments made against him, no forfeiture can be de- clared, even though the lodge may have made such an appropria- tion or application of the funds paid in as to ostensibly show that assured was in arrears for the last assessment made prior to his death. Elliott vs. Grand Lodge A. O. U. AV. Kansas (Ct. App. Kas.), 42 Pacific Reporter, 1009. MUTUAL BENEFIT INSURANCE— ASSESSMENTS.— Where the only evidence in an action on an endowment policy of the sending of the notice of assessment was given by an em- ploye of the association, who testified solely from the records in the office and from the usual course of its business, and his tes- timony as to when the remittance of the assessment was received by the company in response to the notice was in conflict with the date of the sender's letter and of the letter of the association ac- knowledging receipt of the remittance a default in not remitting in time is not established. Where the remittance of part of an assessment was retained nearly two months after its receipt without objection or demand for the balance, the association could not at the end of that time, and after making another assessment against the member, which, together with the balance due on the former assessment, was paid, declare a forfeiture because the remittance was not sent in time. Great Western Mut. Aid Assn. vs. Colmar (Ct. App. Colo.), 43 Pacific Reporter, 159. 36z INDICATOR'S DIGEST. BURDEN OF PROOF AS TO IXSUFFICIENCY OF AS- SESSMENTS.— Where a life insurance policy for a stated sum provides that, if the assessment levied to pay it is insufficient, the beneficiary shall receive only such proportion as may be appli- cable to its payment, the burden of proving the assessment was not sufficient is on the insiu-er. People's Mut. Ben. Soe. vs. McKay (App. Ct. Ind.), 39 N. B. Rep.. 2H1. ■MUTUAL BENEFIT INSURANCE— NOTICE OF ASSESS- MENT—A notice from an insurei- that an assessment would fall due at a certain time is not notice that the policy will be can- celled unless the assessment is paid, and such notice cannot for- feit and terminate the policy. Plnster vs. Merchants' & Bankers' Ins. Co. (Sup. Ct. la.), 65 N. W. Reporter, 1004. MUTUAL BENEFIT ASSOCIATIONS: ASSESSMENTS AND FORFEITURES.- Insured in, a mutual benefit association, by failure to pay an assessment in excess of that called foi- in his contract of insurance, does not forfeit his policy. And by payments of previous excessive assessments, he does not waive his right to refuse to pay subsequent similar excessive assess- ments. Margesson vs. Mass. Ben. Ass'n (Sup. Jud. Ct. Mass.), 42 N. E. Reporter, 1132. WIH-EN FORFEITURE FOR NON-PAYMENT OP ASSESS- MENT IS NOT WiAIViBD.— After a member of a mutual benefit association had made default in the payment of an assessment, the amount was handed to the treasurer of the association. He gave no receipt, but said he would take the money to the next meeting of the association, and ask to have the member rein- stated, and if it were done he would mail a receipt. The member died before the next meeting and the money was returned. There was no waiver of the forfeiture of membership incurred by such non-ipayment. MoGowan vs. Supreme Council of Cajtholic Mut. Ben. Ass'n (Supreme Court, General Term, Fifth Dept.), 28 N. Y. Supp., 177. MUTUAL BENEFIT— VALIDITY OF ASSESSMENT NO- TICE. — Articles of a mutual benefit association provided that, when official notice was received of the death of a member. It was the duty of the secretary to notify each member; that each member should within fifteen days after the receipt of such no- tice, pay to the secretary $1.10; and In case he should neglect to pay wltiin fifteen days, he should again be notified by the secre- tary; and if such sum was not then paid within fifteen days after the second notification, his name should be erased from the roll of members. The Supreme Court of Michigan held that, the legality of notices was not affected by the fact that the second notice was given a day or two earlier tlian was provided by such articles. Also, that where an assessment was irregular because a quorum of the trustees was not present, it was cured by the approval of the minutes at a subsequent meeting when a ma- jority or quorum was present. Wolf vs. Mich. Masonic Mut. Ben. Ass'n, 66 N. W. Reporter, 576. ASSESSMENTS. 3^3 MUTUAL BENEFIT IXSUKANCE.— Statements of a mem- ber that he does not intend to pay assessments any longer may be shown in a suit on his membership policy, in, connection with proof of his failm'e to pay subsequent assessments. Van Frank vs. U. S. Masonic Ben. Assn. (Supreme Ct. 111.). 41 X. E. Rep., 1003. MUTUAL BENEFIT IN.SUKANc 'E— FAYMEXT BY CRED- ITOR. — Payment of assessments on a benefit certificate by a ben- eficiary wlio is merely a creditor of the instired will not entitle him to recover uu the certificate. Clarke vs. Sehwartzenbers: iS. J. Ct. Mass.t, 41 X. E. Rep., THE SUPREME COURT OF IOWA HOLDS. That where the by-laws of a mutual benefit insurance society iJrovide that as- sessments for death losses^ shall be levied by the board of direc- tors, the board cannot delegate such power to the president. Garretson vs. Equitable Mutual Life & Endowment Ass'n (Supreme Court of Iowa), lil X. W. Rep.. 0.52. BUEDEX OF PROOF AS TO ASSESSMEXTS.— In an action on a fraternal accident policy providing that the company shall act be liable in an amount greater than that realized from the assessments of the members, the burden of proof is on the com- pany to show that the amount realized by the assessment was less than the amount claimed, the matter being peculiarly within its knowledge. Gnan vs. Masons' Frat. Ace. Ass'n (Stipreme Ct. Mich.) G7 X'orthwestern Reporter, 547. THE SUPREME COURT OF PENNSYLVANIA HOIjDS. That where, after default as to assessments in a mutual insurance com- pany, notices of other assessments are sent such member, who thereupon makes application for reinstatement and pays all such assessments to a general agent, who receives the payments with- out condition, and subsequently such member is notified of an assessment for semi-annual dues, which he promptly pays, the insurance company Is estopped to deny that the member had been reinstated. Commonwealth vs. Providence Life Ins. Ass'n., 30 At. Rep., 163. REQUIREMENT OF ACTUAL NOTICE OF FRATERNAL INSURANCE ASSESSMENT.— Where the policy of a fraternal insurance association requires payment of assessments to be made within thirty days from date of notice of the death assessed for. and provides that failure to pay within such time renders the certificates void, that there must be actual notice to the assured of such death, before a forfeiture would result for non- payment oif assessments. Notices of death were issued and mailed to the assured on a certain date, and taken by an author- ized person from the postoffice to his residence. .Vt this time he was ill, and unable to understand or transact any business, and so remained until his death, before which time the envelope con- taining the notice was not opened. The certificates were not for- feited for non-payment of the assessments, since the assured had no actual notice thereof. Courtney vs. I'uiteil States Masonic Ben. Ass'n (Supreme Court of lowaj, r:.'. X. W. Rep., 23*. 364 INDICATOR'S DIGEST. PAiYMENIT OiP LIBTB INSURANCE PREMIUM.— Where the secretary of a life insurance company in writing assures a per- son that certain notices relative to assessments would be given before there could be any forfeiture of a policy, and the person, relying on such assurance, takes policies with the company, he has a right to rely on such assurances until notified to the con- trary, though the policies provided that the assessments shall be made according to the articles of incorporation, and the articles,, which were not attached to the policies, and had never been seen by insured, provided for payment of assessments when due. True vs. Bankers' Jjife Association of iMinnesota (Supreme Court of Wisconsin), 47 N. W. Rep., 520. SUiFIFICIENCY OF NOTTOE OIF ASSBSSMEiNT.— Under a' statute providing that notice of each assessment made by a life insuraxice company shall state the purpose of the assessment;, that no policy shall be forfeited for non-payment of premium, without notice; and that, if payment is made within the life of the notice, it shall be in full compliance with the requirements of the policy, notwithstanding anything therein to the contrary — a condition in a policy that, if no notice is given, the assured shall forward to the company an amount equal to the previous assessment, is inoperative, and no forfeiture can be declared on non-payment of a premium, where the notice merely stated when it would be payable. Warner vs. National Life Ass'n (Supreme Court of Michigan), 58 N. W. Rep., 667. NOTICE OF ASSESSMENT AixO WaIVER OF FORFEIT- URE.— In an action against a mutual relief association, it ap- peared that the by-laws of the association required notices of assessment to be sent to the assured as found upon the books, and that assured's address was "Cordelia Jackson, care of Wm. T. Jackson," her husband. The secretary testified tnat it was his habit to send notices' according lo the addresses on the books, but sometimes he addressed them to the persons in whose care they were required to be sent; that he made out the notices with the aid of another, to all members in good standing, afterwards compared them with a list of such members, and placed them in a box, in which they were carried to the postoffice, accompanied by an agent of the company, who saw them delivered. There was no positive testimony that the notice in question was ac- tually sent, and there was strong evidence that it was never received. Other evidence tended to show that, even it there was a forfeiture, the member had been reinstated. The evidence did not justify the court in charging that, but for the evidence of reinstatement, he would, if requested, instruct the jury to find for defendant. The by-laws provided tnat, within six months after a forfeiture, the defaulting member might he reinstated by paying all arrearages, and furnishing a satisfactory certificate of health. After the assessment, for which a forfeiture was claimed, several notices of subsequent assessment were sent to the as- sured, each accompanied by a reinstatement contract for her to sign. It was an error to charge that the sending of these rein- statement notices "was not necessarily" a waiver of the forfeiture. This was a question for the jury. Jackson vs. Northwestern Mutual ^{.elief Association (Su- preme Court of Wisconsin), 47 N. W. Rep., 732. ASSESSMENTS. 365 GRADES IX ASSE.S8MEXT INSURANCE.— Tne estaDIlsh- ing of five grades iu an assessment association is not for the pur- pose of grading benefits, but for regulating assessments. There wag but one mortuary fund from which benefits were to be paid, and a rerdict finding the beneficiary entitled to her share of gen- eral mortuary fund, instead of the proceeds of an assessment on a single grade, will not be disturbed on appeal. Old Wayne Mut. Life Ass'n ts. Nordby (Supreme Court of Indiana), 24 N. E. Rep., 159. MUTUAL BENEFIT INSURANCE COJIPANY RUN ON ASSESSMENT PLAN. — A foreign insurance company applied for leave to da business under the statute to regulate mutual bene- ficiary associations, providing insurance on the "assessment plan." The commissioner, after examination and approval of the company, granted the license, but subsequently, objection having been made that the company did not provide insurance on the plan named, because it agreed to pay definite amounts under fixed assessments due at stated periods, refused to reissue the license. The company then changed its plan so as to authorize higher or lower assessments, as might be demanded. There was no legal reserve in the company, but instead an emergency fund, accumu- lated under the act, so as to be equal at least to one assessment on aU members. The act, although requiring application to the commissioner for leave to do business, provided that when this had been made, and the company approved, license should issue. The insurance was on the assessment plan, and the company therefore entitled to a license. Covenant Mut. Ben. Soc. of Illinois vs. Root (Supreme Court of Wisconsin), 54 N. W. Rep.. 33. LEGALITY OF ASSESSMENTS IN ENDOWMENT ASSO- CIATION. — The by-laws of an "endowment league" provided for general and endowment funds created by quarterly dues and monthly assessments, and for the payment of matured endowment coupons out of the general fund, provided the holder is "in good standing" at the maturity of the coupon. They also provided that "when the demands of the endowment fund require, the levy of additional assessments shall be made"; that such fund should only be used to pay matured coupons and that the board of di- rectors are "invested with full power to enact laws for the gov- ernment of the league." Such board had no authority, without the consent of all the members, to divide the endowment fund and create a reserve fund, by amendment to the by-laws, so that the demands on the former fund would require the levy of addi- tional assessments, and add to the condition of payment of cou- pons that "the assessments levied for the month in which the cou- pon is payable," must be paid. Where, at the time of the levy of certain extra assessments of a member, there was more than enough money in the endowment fund and in other funds not pro- vided for by the by-laws at the time he became a member, to which part of the former fund had been transferred, to meet all obligations payable out of the endowment fund, such extra assess- ments are illegal, though the amount in the endowment fund as kept by the association was insuflicient to .pay such obligations. Assessments levied to meet prospective obligations on endowment coupons are illegal. Hogan vs. Pacific Endowment League (Supreme Court of California), 33 Pac. Rep., 924. 366 INDICATOR'S DIGEST. VALiIDITY OF MUTUAL BENEFIT ASSES&MBiNTS.— Th& validity of an assessment is not affected by the fact that the benefit had already been paid, where the payment was made out of the reserve fund created by initiation fees under authority of the charter, and the assessment was levied to reimburse such fund. McGowan vs. Supreme Council of Catholic Mut. Ben. Ass'n (Supreme Court, General Term, Fifth Dept.), 28 N. Y. Supp., 177. LIABILITY FOR FAILURE TO PAY ASSESSMENT.— Where a member of a benevolent suciety is suspended for non- payment of assessments, and his reinstatement depends upon the payment of such assessments, followed by a vote of his lodge, the fact that, in response to a notice from the society, he paid a cvrr- rent assessment after it was due, will not waive the formalities requisite for reinstatement. Rice vs. Griind Lodge of A. (). U. W. of Iowa. (Supreme Court of Iowa), 00 X. W. Rep., 72(!. BBXP:FIT IXSURAXCE— XOTICE.— The Supreme Judicial Court of Massachusetts holds that, where a member of a hen(>lit association received no notice of au iissessment, the fact thai:, on subsequent notice of suspension for non-payment of dues, hi! M'ut the amount Avitli an application for reinstatement, which waM defective because not sijined by two other members, as recpiired by the by-law.s, doe.s not constitute a waiver of his rights, where such application containeil a statement that he had not received notice of the assessment. Waterwortb vs'. Auierican Order of Druids, 42 X. E. Reporter, 106. LK(!ALITY OF FAYMIOXT OF ASSESSMKXTS.— The con- stitution of a subordinate council of a society with a relief fund feature provided that the seia-etary of the subordinate council should receive assessuu^nts of members entitled to relief benefits; that he should be under bonds; and that the subordinate council might permit him to select an assistant, for whose act.s lie should be responsible. It being the uniform practice of the members to make pnymeuts to the wife of the secretary, who had no office, at his house, in his absence, and her authority not having been quesitioned, she would be treated as his assistant, so that a pa.\'- nient to her would prevent forfeiture. Andei'son vs. Supreme Council of Order of Chosen Friends (Court of Appeals of New York), .SI X. E. Rep., 1002. WHAT COXSTITUTES AX IXSURAXGE ASSOCIATIOX.- A fraternal and benefit association that x-equires, for membership, no medical examination, unless a benefit certificate is desired, and such members are required to pay assessments based on their age, with additional assessments from time to time, on death losses is, a.'i regards its beneficial ob.iect, subject to the provisions of the laws of Iowa, that "all insurance companies or associations" shall attach to the policy a copy of any application which, by the terms of the policy, is made a part thereof, or affects the validity of the policy, an omission to do which shall preclude the insurer from relying on the application as a defense to the policy. Grimes vs. Northwestern Legion of Honor (Supreme Court of Iowa), 04 N. W. Kep., 800. ASSESSMENTS. 367 LIABILUIES OF MEMBERS FOR ASSESSMENTS.— Where one had accepted a certificate of membership in a mutual benefit society, by the terms of which certain beneficiaries were, upon his death, to be paid a named amount in consideration of an admis- sion fee paid and further sums to be paid by him, so long as he should be a member, when duly assessed by its oflicers. upon the deaths of other members of the soiiecy. The certificate also pro- vided for a forfeiture of his membership on non-payment of any assessment within twenty days after notice. He was liable for assessments regularly made by the officers of the society, upon the deaths of other members, while his membership coniinued. The effect of such a stipulation for forfeiture in a certificate of membership in a benefit society is to cut off tie possibility of future obligation, but not to disturb the validity of past indebted- ness of the member. His promise to pay the assessments, when duly called, to meet the obligations of the society accruing upon the deaths of other members, is the consideration for the benefit he derive.'* from his insurance as a member of the society. Ellerbe vs. Barney (Supreme Court of Missouri), 25 S. W. Rep., 3S4. WAIVER (IF RAYMENT OF ASSESSMENTS.— A benefit certificate provided for the payment of six asseii?:meuts per an- num, and stipulated that no claim could be made thereunder un- less all assessments were paid. A member tailed to meet the assessments due June 1 and August 1. On September 1 the company wrote to him: "Acrordinjr to the conditions of your certificate of membership, an assessment amounting to .~?2'.t.4ii will be due and payable at this office ou October 1." The member died on September 30. The letter quoted above was a waiver of his default, and his b-eneficiaries were entitled to re- cover the amount of his insurance. Murray vs. Home Benefit Life Ass'n (Supreme Court of Cali- fornia). 27 Pac. Rep.. oOS. WAIVER (IF DEFAULT ON ASSESSMENT CERTIFI- CATE. — Where a member of a co-opei-ative insurance association, who tallies a certificate conditioned upon the compliance by the member with the rules of the association, and violates a rule in regard to the payment of dues, the acceptance of the dues by a local olficer uf the lodge, after the death of the member will not operate to waive the defatilt. the local officer being autb uizel only to do that which the bv-laws and consititution direct him to do. Brown vs. Grand Cmincil Nnrthwestern Legion of Honor (Su- preme Court of Iowa), 4(j N. W. Rep.. lOSH. WAIVER OF CONDITIONS FOR PAYMENT O'F ASSESS- MENT.— Where money for payment of an assessment on a certi- ficate in a benefit asso^:-iation is retained by the association, and a receipt therefor mailed, stating a condition on which it was accepted, the association must, in the absence of any stipulation for such communication through the mail, show that it was re- ceived by assured, otherwise the fact that the mone.v was re- ceived after the time fixed for payment of the assessment will be held to be waived. Shea vs. Mass. Ben. Ass'n (Supreme Judicial Court of Mass.), 35 N. E. Rcp. Sf5. 368 INDICATOR'S DIGEST. WAIVER OF FORFEITURE FOR NON-PAYMENT OF ASSESSMENTS.— The by-laws of a mutual life instirance com- j)any provided that the Insurance committee should be the execu- tive head of the association, and that the secretary should keep a record of the business, the register of members, hold in trust funds for claims, and pay the same on approval, and hold his books subject to inspection by the insurance committee. Held, that, though a by-law declared failure to pay an assessment within 60 days of notice thereof a forfeiture of membership, still, where payments after that time were accepted, and notices of subsequent assessments were sent, and a notice sent by the sec- retary, stating that the insurance committee had instructed him to receive remittances after the 60 days, provided the member was in good health, forfeiture by reason of non-payment was waived: so that insurance could be recovered where a Inember, while in good health, was killed, though at the time an assessment was unpaid more than 60 days after notice. Moore vs. Order of Railway Conductors of America (Supreme Court of Iowa), 57 N. W. Rep., 623. ■WINDING UP AFFAIRS OF MUTUAL BENEFIT CORPOR- ATIONS. — ^When a mutual benefit insurance corporation was or- ganized under the statute which provided that all the money de- rived from the first-class assessments therein provideu for should be divided into two funds, one to he set aside as a reserve fund for the exclusive payment of matured endowment certificates, and the other to constitute a benefit fund to be applied exclusively to the payment of disability benefits, and that no portion of the money so received should be used for any other purpose. The act further provided for assessments to meet expenses. A re- ceiver was appointed for the corporation in a suit to wind up its -affairs. Though the business prosecuted by the corporation may have been illegal, ana ultra vires, the certificate holders are not entitled to recover the money paid by them in assessments and initiation fees, as for money had and received, but, in distributing the assets, each should receive from the fund derived from assess- ments of the first class a dividend in proportion to the amount paid by him into that fund. Fogg vs. Supreme Lodge Order of Golden Lion (Supreme Judicial Court of Massachusetts), 33 N. E. Rep., 692. CONSTRUCTION OF THE A. O. U. W. CONSTITUTION.— SERVICE OF ASSBSSMEiNT NOTICiE.— Under the constitution of the Ancient Order of United Workmen, a member cannot be legally expelled for non-payment of dues unless he is served with a notice of such a proceeding, and has an opportunity to he heard in opposition if he so desires. Where an assessment has been ordered by the superior authorities of the order, it is mandatory upon the subordinate lodges to make the assessment, and it is not necessary that the fact that the assessment was ordered should apipear on the minutes o# the lodge. The fact that the assessment was actually made may be proved by the evidence of those who were present at the meeting at which it was or- dered. It is suflicient proof of the service of a notice of assess- ment upon a member if the officer whose duty it was to forward such notices testifies that he mailed the notice of the assessment in question, and that he believes he mailed it to every member. ASSIGNMENT. 369 although he cannot swear that he particularly remembers send- ing it to the member in question. Baclidahl vs. Grand Lodge A. O. U. W. (Supreme Court of Wisconsin), 48 N. W. Rep., 454. ASSIGNMENT, ASSIGNMENT OF INSt'EANOE POLICY.— Where a policy of insurance expressly stipulates that no assignment shall be valid Tvithout the consent of the company, an assignment iwithout such consent is of no effect. Moise vs. ;\Iut. Res. Fund Life Ass'n (Supreme Court of Lou- isiana), 13 So. Rep., 170. ASSIGNMENT OF LIFE INSURANCE POLICY TO CRED- ITOR. — A provision in a life insurance policy, declaring that the claim of any creditor as beneficiary or assignee thereunder shall not exceed the actual bona fide indebtedness of assured to such person, does not require a showing of such bona fide indebtedness by a creditor, where the controversy is not with the insm-ance company, but with other claimants, and where the company had •disclaimed any interest in the controversy and deposited the money for whosoever may be found entitled. Hurst vs. Mut. Res. Fund Life Ass'n (Court of Appeals of Maryland), 26 At. Rep., 956. ASSIG-NMENT OF INSURjANCE POLICY.— In fire policies there is generally a condition that any assignment >will be void, except the assent of the underwriters be first obtained. The rea- son for this is obvious. A fire policy may be underwritten for one person when it would not be for another. In all such cases the character for integrity and caution of the party constitute Important considerations. While the character of one person would be a complete guaranty that he would not fire his own house and goods, the character of his assignee might furnish no such assurance; and, therefore, it is that in fire policies the assent of the underwriters is indispensable to the validity of the assign- ment. No such reason obtains in the case of an insurance on human life, and a life policy may be assigned without the con- sent of the insurer. Oator vs. Mut. Res. Fund Life Ass'n. (Court of Appeals of Md.), 26 At. Rep., 959. ACTION ON POLICY'.— Where an assignment of a life insur- ance policy by the assured to his creditors, though prima facie absolute, wag treated by all parties as intended for security merely, and the creditor himself did not claim the entire amount of the insurance, but on the death of the assured surrendered the policy and assignment, with the notes which it was intended to secure, on payment of his claim by the insurer, it is not essential that a court of equity should decide that the assignment was in- tended as security merely, before bringing suit in the city court of New York to enforce payment of the balance of the policy to the representatives of the assured. Cushman vs. Family Fund Soc. (City Court of New York), 9 N. Y. Supp., 272. -37° INDICATOR'S DIGEST. RATIFICATION OB^ ASSIGNMENT OF POLICY— Where the beneficiary in a life insurance policy, after assigning it, agrees •with the assignee, in consideration of a certain portion of the pro- ceeds, to assist in its collection, it is a ratification of the assign- ment. Jewelers' League of the City of New York vs. De Forest (Su- preme Court, General Term, Second Department), 30 N. Y. S., 88. VALIDITY OF ASSIGNMENT OF POLIOY.— 'Where the as- signee of a mutual benefit life insurance policy of $2,000 pays the insured ?300 and agrees to pay the dues and assessments thereon, in consideration of the assignment, the assignment is not invalid as a gambling transaction, in the absence of proof of the age or expectancy of life of the Insured. W'here the con- stitution and by-laws of a mutual beneifit insurance association name the classes of persons who may be beneficiaries of policies issued by it, in an action against such associajtion and the bene- ficiary named in a policy issued to one's deceased husband, to recover the amount due thereon, the burden is on her to show- that such beneficiary is not within any of the classes named. Nye vs. Grand Lodge A. ■ O. U. W. (Ajipellate Court of In- diana), 36 N. E. Rep., 429. DISTRIBUTION AMONG MEMBERS OF BENEFIT ASSO- CIATION— Holders of matured certificates in an assigned benefit association are not entitled to preferences over fellow members in the distribution of its assets, but all will participate in propor- tion to their several contributions. In re Order of Tonti's Estate (Supreme Ct. Penna.) 34 Atlantic Reporter, 440. EQUITABLE ASSIGNMENT OF ORDER TO PAY MONEY. An order directing the treasurer of a life insurance company to pay a death claim "out of any sum belonging to the mortuary fund," signed by the vice-president and secretary, operates as an equitable assignment for so much of the mortuary fund, though a by-law of the company provides that every claim shall be paid by means of "an order drawn upon the depository of the mor- tuary and benefit fund," signed by the president or vice-president, treasurer and secretary. People vs. Flour City Life Ass'n (Supreme Court, General Term, Fiftb Dept.), 33 N. Y. Supp. Rep., 97. DISTRIBUTIOiN AMONG MEMBERS UPON ASSIGNMENT OP BENEFIT ASSOdATION.— -Where the members of a benefit association receiving certificates, maturing in 28 years, bind each member to continue his certificates in force for that time, and to pay any assessments that might be made, and providing that. If the member shall comply with all the requirements of the associa- tion to the amounts paid in by them, though a part only of the date of his certificate, receive a sum not exceeding one-eighth of the sum mentioned therein, and shall, at the end of each suc- ceeding three and one-half years, receive a like amount, the funds of the association, on its making an assignment tour years after organization, will be distributed among the members in propor- tion to the amounts paid in by them, though a part only of the certificates have run three and one-half years. In re Order of Fraternal Guardian's Estate (Supreme Court of Pa.) 28 Atlantic Reporter, 482. ASSIGNMENT— BENEFICIARY. 371 ASSIGNMENT OF CERTIFICATE OP MUTUAL BENEFIT INSURANCE.— /The statute providing that when a policy of insur- ance is effected by any person, on his own life for the benefit of his representatives or a third person, the person for whose benefit it was made shaU be entitled thereto against the creditors and representatives of the person effecting the same, does not apply to a certificate issued by a benefit association, so far as to defeat an assignment of such certificate. A condition in the certificate requiring an alteration of the contract to be in writing, and signed by the treasurer, and a rule of the association requiring the member insured and the present beneficiary to sign the form of assignment, are merely regulations for the protection of the association, which it may dispense with if it sees fit. Anthony vs. Mass. Ben. Ass'n (Supreme Court of Mass.), 33 N. E. Rep., 577. BENEFICIARY. BENEFICIARIES IN MUTUAL BENEFIT INSURANCE.— A member of an endowment order, in his application to be trans- ferred to another class in the order, named his wife, or in case of her death, his son as beneficiary. By a provision in the certi- cate issued thereon; the application was made a part of the con- tract between the member and the order. The certificate, as issued, only named the wife as beneficiary. The application, from the fact that it was made a part of the contract controlled, and upon the death of the wife, the son became beneficiary. In such case the fact that the member accepted and kept the certi- cate without objection will not imply his assent to the designa- tion of his wife as beneficiary, and thus estop the son from claim- ing to be such, as mere silence is not sufficient to set aside a designation made In the application, which by the terms of the certificate was made a i»art of the contract. EcMer vs. Terry (Supreme Court of Mich.), 54 N. W. Rep., 704. THE BENEFICIARY IN MUTUAL, LIFE INSURANCE.— The beneficiary named in the jjolicy of a mutual benefit society has no suci. vested right in the policy and the money it represents that the insured cannot charge the beneficiary in compliance with the terms of the policy and with the consent of the association. The beneficiary in a mutual benefit policy must be a relative of the insured by Wood or marriage, or in a position to expect some benefit from the continuance of the insured's life, or the contract is a wagering one, and void, as against public policy. Where such certificate is assigned by the insured to secure a creditor, the creditor is entitled only to so much of the proceeds as is necessary for his indemnity, and the representatives of the insured are en- titled to the balance. Metropolitan Life Insurance Co. vs. O'Brien (Supreme Court of Michigan), 52 N. W. Rep., 1012. 372 INDICATOR'S DIGEST. MUTUAL BENEFIT INSURANCE-RULES GOVERN BEN- EFICIARY.— The beneficiary of a mutual benefit association must enforce her claim under the rules of the association, and in the absence of fraud must exhaust her remedy under the charter and by-laws before she has any remedy in the courts. Fillmore vs. Great Camp of Maccabees (Sup. Ot. Mich.), 66 N. W. Reporter, 675. RIGHTS OF BENEFICIARY UNDER CERTIFICATE.— The beneficiary in a certificate has an assignable interest, though the insured has power to change the beneficiary. In an action against a life association to recover the amount of a policy as- signed by the beneficiary, the assignor is not a necessary party merely because the assignment was made to secure a loan from the assignee to the insm'ed, of a less sum than the amount of the policy. Lawler vs. Xat'l Life Ass'n of Hartford (Supreme Court, Gen- eral Term, Fifth Dept.), 31 N. Y. S. Rep., 875. INDEPENDENT PERSON AS BENEFICIARY.— Where a mutual benefit society, organized for the benefit of relatives and persons dependent on members, issues a certificate payable to a member's aifianced wife, the question whether she was really dependent on the member, and was therefore entitled to a bene- ficiary, is a question of fact. Where the affianced wife was, dur- ing the entire period of her engagement, working for her own living, earning more than her intended husband during part of that time, and receiving nothing from him except occasional pres- ents of clothing and money, she is not dependent on him. Alexander vs. Pai-ker (Supreme Court of Illinois), 33 N. E. Rep., 183. DESIGNATION OF BENEFICIARY IN MUTUAL BENE- iTT INSURANCE. — An association amended its constitution pro- viding a mode by which members might designate their bene- iiciaries, and declaring that where marriage is contracted after issuance of a policy, and said policy becomes payable through •death, it shall be paid to the widow, or in the event of her death to their joint issue, if any, unless otherwise oi-dered. Where a member had, before adoption of such amendment, designated his mother as his beneficiary, in the manner then provided by thes , 28 N. Y. Sup. Rep., 276. CERTIFICATE. ACTION OX CERTIFICATE OF MEMBERSHIP.— In an action against a benefit association on a certificate of membership, the association denies liability because of non-payment of assess- ment, evidence is inadmissible that it was the association's custom to reinstate members on payment of defaulted assessments, as a matter of course, if no other charges were preferred against them. Dickinson vs. Grand Lodge A. O. U. W. of Pennsylvania (Su- preme Court of Pennsylvania). 28 At. Rep., 293. CERTIFICATE IX MUTUAL BEXEFIT ASSOCIATIOX.— Where an application for membership in a mutual benefit associa- tion names a certain nerson as beneficiary, and the constitution of such association provides for the payment of the benefits sectu-ed in case of death to the persons named as beneficiaries by the members in their applications, or in default of such appoint- ment, to the heirs or legal representatives of such members, the obligation of such association arising upon the issue of a certifi- cate of membership, is to the person so named as beneficiary, alone, and such person cannot recover in an action brought as administrator of the member. Iowa State Traveling Men's Association vs. Moore (U. S. Cir. Ct. App.). 73 Federal Reporter, 750. CERTIFICATE OF BEXEVOLEXT SOCIETY PAYABLE TO "LEGAL HEIRS."— EFFECT OF. BETWEEX CHILDREX OF FIRST MARRIAGE AXD SECOND WIPE.— A widower, hav- ing two children, insured in a benevolent society and took out his certificate payable to his "legal heirs" and subsequently married a second time, and died without having altered the certificate, leaving his wife surviving with the two children of the first marriage. It was held that under the words of direction, "tft his legal heirs," the two children of the deceased, being the heirs and only heirs of the deceased, were entitled to the whole fund pay- able under the certificate as personae designatae, and that the widow was not entitled to any share of it. Means vs. The Ancient Order of United Workmen et al., 22 O. R., 34. But see Walsh vs. Walsh, The Indicator, Vol. XII., 101. 386 INDICATOR'S DIGEST. CONSTRUCTION OF ASSESSMENT INSURANCE CER- TIFICATE.— Where an assessment insurance association calls from each member a "first death assessment" and when the first member dies such a fund is insufficient to pay the certificate, it shall make a regular assessment to meet it, wliich should be appro- priated to the full satisfaction of the certificate. Wadsworth vs. Jewelers' & Tradesmen's Co. (Superior Court of New York City), 9 N. Y. Supp., 711. PAYMENT OF CERTIFICATES OF MUTUAL BENEFIT INSURANCE.— Where a certificate in a mutual benefit insurance company provides for its payment in an amount to be computed according to the laws of the society, and these latter provide that their provisions in regard to the payment of such certifi- cates may be changed at any time, a member is bound by a change made in such laws after his procurement of the certifi- cate, and before the time of its payment. Bowie vs. Grand Lodge of Legion of the West (Supreme Court of California), 34 Pac. Rep., 103. HOLDERS OF MATURED CERTIFICATES ARE CRED- ITORS— The Court of Appeals of Maryland holds that the holders of matured certificates of a mutual benefit society are creditors of the society, and as such may secure their claims by attach- ment, and are entitled to a preference over holders of unmatured certificates, the holders of such unmatured certificates being still members of the society. The validity of the claims of the former are unaffected by the insolvency of the society, occurring after their certificates matured. Failey vs. Fee (Order of the Iron Hall), 34 Atlantic Re- porter, 840. RIGHTS OF CREDITORS TO BENEVOLENT INSUR- ANCE.— The creditors of a deceased member of a benevolent in- surance association have no claim upon a fund resulting from a certificate expressed to be payable "subject to will," where no will was made, when the objects of the association are expressed to be the promotion of benevolence and charity by establishing a relief fund from which persons designated by the member, or in the absence of designation liis heirs, may receive a benefit upon his death. In the absence of a will, when directed to be paid subject to will, the funds belong to the heirs, and not to the gen- eral estate of the insured. Beechel vs. Imperial Council of the Order of Chosen Friends (Supreme Court of New York), 11 N. Y. Supp., 321. PROVISION IN CONSTITUTION OF BEXNEVOLBNT SO- CIETY AS TO GRANTING BENEFICIAiRlY CERITIFUOATES.— Where the constitution of a benevolent society provides that bene- ficiary certificates may he granted to persons who take a certain degree all tftie steps laid down in the constitution in connection with the taking of that degree must be complied with before any beneficiary certificate can be legally issued. Where, therefore, the holder of a certificate, though in all other respects duly quali- fied and accepted as a member of the degree in question, dies before actually going through the ceremony of initiation, the cer- tificate is not enforceable. Devins vs. Royal Templars of Temperance, 29 C L J 197- 13 C. L. T., 138. • • •. CERTIFICATE. 387 TRANSFER OF CERTIFICATE.— Where insured, in consid- eration of money paid, and tlie payment of all assessments and dues, sold Ms benefit certificate to another person, the Insured being at the time an old man, and in poor health, the association should be allowed to prove in a suit by such assignee upon the certificate, the ago of the insured at the tima of the transfer; such fact tending to show whether the transfer was made in good faith, or whether it was speculative, and in the nature of a wager. Sup. Lodge Knights of Honor vs. Metcalf (App. Ct. Ind.), 43 Northeastern Reporter, 893. WHO IS ENTITLED TO PROCEEDS OF CERTIFICATE.— The statutes of Massachusetts have not been so changed since May 5, 1885, as to allow a member of a benefit society conducting its business under St. 1885, to designate a mere creditor as his beneficiary. AVhere a member of a benefit society designates a creditor as the beneficiary in a certificate issued to him, in viola- tion of the statute, the whole contract is not void ; and the execu- trix of such member's estate is entitled to the money due on the certificate, in trust for the benefit of those who, at the time the contract was made, were entitled to be named as beneficiaries. Clarke vs. Swartzenberg (Supreme Judicial Court of Massa- chusetts), 38 N. E. Rep., 17. CERTIFICATE OF MEMBERSHIP SUBJECT TO SUBSE- QUENT CONDITIONS.— Where the application for membership in the endowment rank of a benevolent association provides that the applicant shall conform to and obey the regulations of the order governing the rank then in force or that may hereafter be enacted, and the certificate of membership recites that the con- sideration on which it was issued is, among other thing's, the full compliance by the member with all such regulations, the right of the member to benefits is subject to a validly enacted law of the order, passed after the issuance of the certificate, pro- viding that no member who commits suicide shall be entitled to benefits. Supreme Lodge Knights of Pythias of the World vs. La Malta (Supreme Court of Tennessee), 31 S. W. Rep., 493. LIFE INSURANCE CERTIFICATE AS AFFECTED BY IN- SANITY AND SUICIDE.- An applicant for life insurance stated that he was temperate and correct in his habits and promised to remain so. With the exception of once, no evidence was intro- duced to show that the applicant was intemperate in his habits, which was not sufficient to warrant a finding that he was intem- perate within the contract. The certificate contained a provision that if the assured ^ould die in violation of the laws of the land, no recovery could be had. The assured shot himself eleven days after the issuance of the certificate, the evidence showed that there was an insane impulse in the family, which justified a ver- dict In favor of the claimant. , Meacham vs. New York Mut. State Ben. Ass'n (Court of Ap- peals of New York), 24 N. E. Rep., 283. BROOBEDS OF CEiRTIFIOATE 0(F MnjTCTAL BE;NBFIT INSURANCE. — Wlien a membership certificate in a mutual bene- fit society, issued for the benefit of a member's wife, contains no 388 INDICATOR'S DIGEST. stipulation that the benefit is to accrue to the legal representa- tives of the wife, such certificate creates a resulting trust in favor of such member, in case the wife dies first, and the proceeds of such certificate on his death are a part of his estate. Nor will the fact that, by a by-law of the society, such member could not transfer the certificate without his wife's consent, vest in her sueh an interest that her next of kin would be entitled to the proceeds of the certificate in case she died first. Haskins vs. Kendall (Supreme Judicial Court of Massa- chusetts, Mar. 1893), 33 N. B. Rep., 495. CHANGE OP CERTIFICATE IN MUTUAL BENEFIT SO- CIETY.— A mutual benefit society which issues to a member a certificate of insurance, condition, among other things, "on paral- ysis so extensive as to produce absolute disability," cannot mod- ify the certificate, by excluding this cause of disability, without the express consent of the member. Whether a person is totally disabled from following any vocation, within a benefit insurance certificate, is for the determination of the .I'ury at the trial. Starling vs. Royal Templars of Temp., etc. (Supreme Ct. Mich.), Of! N. W. Rep.. 341. CONTRACT. WHAT CONSTITUTES AN INSURANCE CONTRACT.— An unincorporated society, having the characteristics of a fraternal organization, required as a condition of membership a physician's certificate of good health. On admission each member received a certificate entitling his beneficiary to $2,000 on his death. Each member, to keep his certificate in force, must pay an assessment on each death among the members. It was held that the society was, in effect, a mutual life insurance company, and the cer- tificate an insurance contract. Daniher vs. Grand Lodge, A. O. U. W. (Supreme Court of Utah), 37 Pac. Rep., 245. ASSUMI'TIOX OF SUPREME LODGE CONTRACTS ON FORMATION OF GRAND LODGE.— The constitution and laws of the Supreme Lodge of the Ancient Order of United Workmen, a corporation under the laws of Kentucky, provide that in certain events the subordinate division known as "Grand Lodges" might l.-e set apart from the supi-eme lodge, and thereafter collect and disburse their own beneficiary funds. Plaintiff, as a member of the Grand Lodge of Massachusetts, received a benefit certificate under the .seal of the Supreme Lodge. Afterwards the Grand Lodge was set apart, and a proper proportion of the beneficiary fund turned over to it. Later the (Jrand Lodge was incorporated under the laws of Massachusetts, and assumed and promLseil to pay "all the obligations and liabilities of the beneficiary and other elaims against said association, whether already accrued or here- after payable." After this change the member paid his assess- ments to the new corporation, and was recognized as a member in good standing until his death. This effected a complete nova- CO-OPERATIVE— DEATH. 389 tion of the contract, and the new corporation was liable for the certificate. Burns vs. Grand Lodge, A. O. U. W. (Supreme Judicial Court of Massachusetts), 26 N. E. Rep., 443. CO-OPERATIVE. CO-OPERATIVE ASSOCIATIONS UNDER THE LAWS OF NEW YORK. — Laws of New York, 1883, e. 175, sec. 5, providing that co-operative life insurance companies should issue policies to their "members" for the payment of money on the "decease of a member,"' restricted their insurance to the lives of members only, and was construed as denying them the power to receive infants as members. Laws 1892, c. 690 (the insurance law), re- pealed such act, but continued such companies without reorgani- zation^ subject to its provisions so far as applicable to such companies. Art. 1. sec. 5.5, entitled "General Provisions," pro- vides that no policy shall be issued on the life of another with- out the application of such person, but that a person liable for the support of a child "may take a yearly renewable term policy thereon," which after a certain time may become "an ordinary life policy." Art. 6, sec. 201, referring to co-operative life Insur- ance corporations, confines the business of such companies to cases where policies are issued to "members" only. The Court held that section 55 relates to eases within the general life insur- ance laws, and does not enlarge the powers of co-operative com- panies as restricted by section 201. People vs. Industrial Ben. Ass'n (Supreme Ct., 4th Dept.), 3R N. Y. S. Reporter, 963. DEATH. RIGHTS OF SOCIETY TO DECIDE ITS OWN DEATH CLAIMS. — A mutual benefit society's laws provided that the so- ciety had power to pass on any claim for a death loss, and that its decision on any such claim should be final, and that no suit, at law or in equity, should be brought on such claim. Plaintiff's husband became a member of the society, and held an endowment certificate, which, upon his death while a member in good stand- ing, would entitle plaintiff to receive a certain amount. After her husband's death plaintiff presented her claim to the society, which, after a hearing, was rejected. Where no charge was made that the society acted fraudulently, or contrary to its rules, its decision was final. Caafield vs. Knights of the Maccabees (Supreme Court of Michigan), 49 N. W. Rep., 874. 390 INDICATOR'S DIGEST. PRESUMPTION AS TO DEATH IN COMMON DISASTER. — Wliere the member of a benefit association, -whose certificate is payable to his wife, or in case of her death in his life-time, to his children, or, if there be no children, to his mother, and if she be dead, to his father, and failing all these, to his brothers and sis- ters, perishes in a flood with his wife and children, there is no presumption as to survivorship, but the widow's representative IS entitled to the fund, in the absence of evidence that she pre- deceased her husband. Rogers vs. Cowman (Court of Appeals of Maryland), 21 At. Rep., 64. BINDING FORCE OF DECISION BY COMMITTEE ON DEATH CLAIMS.— The law of a mutual benefit association, that the decisions of its committee on the death claims shall be final and exclusive of any action at law, is not against public policy, and in the absence of bad faith on the part of the committee a decision that a person named as a beneficiary was not within the classes allowed by the laws of Jhe association to be beneficiaries, prevents an action, though the agent of ^he association fraudu- lently told the member at the time he joined the association that such person could be his beneficiary. Hembeau vs. Great Camp of Knights of Maccabees (Supreme Court of Mich.), 59 N. W. Rep., 417. PRESUMPTION OF DEATH.— Where a married man disap- pears, and is not heard from for seven years, and when last heard from was in good health and showed no intention of returning, but assumed to be an unmarried man, there is no presumption of his death within two years of his disappearance, so as to render valid an insurance on his life, which expired two years after his disappearance because of non-payment of assessments. It is a familiar rule that one shown to be alive will be pre- sumed to continue to live, some authorities say, until he reaches the age of 100 years. Equally familiar is .the rule "that when a person has not been heard of for many years, the presumption of the duration of life ceases at the end of seven years." Seeds vs. Grand Lodge of Iowa, A. O. U. W. (Supreme Court of Iowa), 61 N. W. Rep., 411. REFUSAL OF PHYiSICIAN TO FURNISH DEATH CERTI- FICATB-^SBRVIOE OF SUMiMONS.— The obstinate and unjust refusal of a physician to furnish a death certificate of the cause of the death of the insured, so that those interested are thereby prevented from complying with a condition of the policy requir- ing all claims against the company to be asserted within one year after death of the assured, cannot deprive them of the right to enforce the policy. A Boston insurance company, doing busi- ness in the State of New York, by permission of the State, on condition that it shall subject itself to the laws of the State, and that process served on it in the State shall be binding upon it, cannot, in an action on its po'licy issued in New York, brought in New York by a resident of New Jersey, set up the defense that the contract was executed and delivered at the home office in Boston, and that, therefore, the New York courts were without jurisdiction of the case. O'Neill vs. Massachusetts Ben. Ass'n (Supreme Court of New York), 18 N. Y. Supp., 52. DEATH— DEFAULT. 391 CERTIFICATE OF CAUSE OF DEATH.-In an action upon a life insm-ance policy, a physician's certificate of the cause of death, offered in evidence by the beneficiary, is not binding as an admission of all the facts recited therein, but is an admission only of the cause of death stated. Redmond vs. Industrial Ben. Ass'n (Supreme Com-t. General Term, Third Department), 28 N. W. Supp., 1075. NOTICE OF DEATH TO LIFE IXSXJRANCE COMPANY.— Where a certificate of life insurance simply requires satisfactory proof of the death of the insured, all the beneficiary will be re- quired to prove is death, and all evidence as to cause of death wiU be stricken out as irrelevant. Buffalo Loan, Trust & Safe Deposit Co. vs. Knights Templar & Masonic Mutual Aid Association (Supreme Court of New York), 9 N. Y., Supp., 346. DEFAULT. COMPUTATION OF TIME OF INSURANCE DEFAULT— BY-LAT\'S AGAINST SUIT.— Where the contract between a member of an insurance association and the association provides that he shall forfeit his rights when he is "in arrears with his dues and assessments for a period of six months" he is not in arrears until six months from the last day on which the pay- ments could legally have been made. A by-law, which provides that in case of disputes "the members shall exhaust their reme- dies within the order before resorting to a court of law," can only be applied to disputes among the members, and does not apply to a contest with the order itself over the payment of a death claim. Bukofzer vs. U. S. Grand Lodge I. O. O. F. (Supreme Court of New York), 15 N. Y. Supp., 922. WAIVER OF DEFAULT ON LIFE INSURANCE PRE- MIUM. — In an action on a mutual benefit certificate, plaintiff need not prove that the assured paid all the premiums assessed against him, since the failure to pay is an affirmative defense, the bm'den of which rests on defendant. Where the holder of the certificate dies after he has been notified of an assessment, but before the time allowed for its payment, his failure to pay does not forfeit the certificate. Though before his death he may have failed to pay an assessrment which he was notified to pay, the certificate is not forfeited in New York if the notice did not state, that unless it was paid the certificate would be forfeited. Where such an as- sociation makes an assessment on a member, it waives the right to claim a forfeiture of his certificate for his failure to pay a premium or assessment previously due. Elmer vs. Mutual Benefit Life Assn. (Supreme Court of New- York), 19 N. Y. Supp., 2S9. 392 INDICATOR'S DIGEST. DELIVERY. WIHAT MAiKES DELIVERY OF POLICY ON AjGENT'S OWN LIFE.— (An insurance solicitor procured three applications for in- surance—one for himself and two for others. Policies were issued upon them and left on the desk of the local manager of the com- pany in envelopes addressed to the respective parties, to be taken by the solicitor and delivered. He took them, delivered two and retained his own. The Supreme Court of Illinois held that his policy had been duly delivered to him. Mass. Ben. Life Ass'n. vs. Sibley, 42 N. E. Reporter, 137. DUES. PAYMEiNT OF BENEVOLENT SOCIETY DUES.— Where it is shown that it was the custom of the secretary of a benevolent insurance society to receive and receipt for dues, the tender of such payment to him is good, and he has no' right to refuse to receive them upon the ground that bhey must be paid at a meet- ing of the society or Its directors. Where the by-laws provide that a member in default should be entitled to all rights in the society as soon as he became clear on the books, a member in default who tendei'ed his dues to the secretary, who refused to receive them on the ground stated above and who died before a meeting of the society or its directors, is to be considered as a matter of law, in good standing, and clear on the books. Roeding vs. Sons of Moses (Common Pleas of New York), 11 N. Y. Supp., 712. COMSTRUCTION OP RULES OF MUTUAL BENEFIT SO- CIETY— Where, by the laws of a beneficial association, the failure of a member to pay his dues to the lodge forfeits his rights, under a certificate in the endowment rank, and the rules of the order requiring the officers of the lodge to notify the secretary of such rank of the non-payment of lodge dues by the member, so that this forfeiture may be enforced, a failure by the lodge officers to give such notice is imputable to the association, and it cannot al- lege such failure as a reason why the receipt by the endowment rank of the assessments due it by the member should not be con- sidered a waiver of the forfeiture of his rights as a memUer oT the rank. Sup. Lodge Knights of Pythias vs. Kalinski (United States Sup. Gt.) 16 Supreme Court Reporter, 1047. DUES. 393 ^0^■-PAi•ME^■T of dues and FOEFEITCRE.— The by- laws of a mutual beaefit association provided that "each mem- ber shall pay the amount due on fhe notice of the collector, within thu-ty days from the date of such notice," and on failure to pay, shall stand stispended. A member failed to pay such assessment within thirty days from its date; but after the ex- piration of that lime, notices of other assessments were sent to him, requesting that he pay the therein-mentioned assessments due from him, to maintain his standing in the order, and reciting that "to avoid suspension, this notice must be paid on or before" a certain date, and that "the sending of this notice shall not be held to waive forfeiture or lapse of membership by the non-pay- ment of pre.'ious assessmenTS." Within thirty days after the date of the last notice, the member died, and tender of the amount due on such assessment was made within that time. The court held that the sending of such notices extended the time of payment of the overdue assessments. McGowan vs. X. W. Legion of Honor (Supreme Ct. la.), 67 Northwestern Reporter, 89. EFFECT OF XOX-PAYMEXT OF ADVAX'CE FEES.— A life Insurance association approved an application, and issued and forwarded to its general agent a policy for delivery to the applicant. The application and policy each contained a condi- tion, in substance, that there was no binding contract of insur- ance until the written application was received and accepted, and the policy issued by the association, and delivered to the proposed member in person, during his life time and in good health, nor until the admission fee and advance premium were paid thereon; "that no agent of the association had authority to make, alter, or discharge contracts, waive forfeitures, extend credit, or grant permission, and no alteration of the terms of the contract should be valid, and no forfeiture thereunder should be waived unless alteration or waiver should be in writing and signed by the president and another officer of the association." By a contract appointing this general agent of the association, which was signed by the p-'^;'dent and secretary, his compensa- tion for soliciting and obtaining pa'-ties to become members of the association, and insured therein, was fixed at the whole sum of the admission fees and advance premiums to be paid by each person insured. The Supreme Court of Nebraska held that the part of the contract in relation to the compensation of the gen- eral agent gave him the right to collect of each person of whom he received an application, when he delivered the policy, the membership or admission fees and advance premiums, and to keep them. That in collecting he might, at his option, demand immediate payment or extend credit, and that if he extended credit, it was not for the company, but for himself; that the association had surrendered the right to any further control or direction of the collection of the fees and advance premiums to be paid by persons insured through this general agent; that the contract with the general agent was inconsistent with theii" right to insist on the enforcement of the stipulations in regard to pay- ment contained in the application and policy: that a delivery of the policy to the applicant, made or caused to be made by said general agent, was good, and the contract of insurance binding, notwithstanding credit was extended for the payment of the membership fees and advance premiums. Pythian Life Ass'n vs. Preston, 66 X. "R'. Reporter, 44.1. 394 INDICATOR'S DIGEST. PAYMENT OP DUES AFTER DISBANDING OF LOCAL LODGE.— A member of an order which is social as well as ben- eficiary, whose lodge is disbanded for lack of members, and whose transfer card is refused by the other local lodge, is not bound to transfer his membership to a foreign lodge, but may send his assessments to the supreme council. Starling vs. Royal Templars of Temp., etc. (Supreme Ct. Mich.), 66 N W. Rep., 340. EFFECT OF FAILURE TO GIVE NOTICE OF ANNUAL DUES.— The certificate of membership of a benefit association provided that the policy should be avoided by failure to pay the annual dues when due. The by-laws provided that a notice of the amount of annual dues should be given the members 30 days before they became due. In the absence of such notice, the fail- ure to pay the annual dues when due did not avoid the policy. Garretson vs. Equitable Mut. Life & Endowment Ass'n (Su- preme Comt of Iowa), 61 N. W. Rep., 952. WHEN CONDITION IN LIFE INSURANCE POLICY BE- COMES BINDING. — An applicant for insurance in a mutual life company paid the admission fee, and took a receipt therefor, which expressly provided that the policy should not go into effect until the application had been accepted and approved. The warranty paragraph in the application provided that the policy should not go intO' force until the actual pai^ment to and acceptance of the annual dues, and the actual delivery of the policy to the applicant. The application was not accepted, nor were the annual dues paid, and therefore no binding contract iwas created. Winfleld vs. Mutual Reserve Fund Life Ass'n (U. S. Circuit Ct. Tenn.), 53 Fed. Rep., 208. CONDITIONAL ACCEPTANCE OP DELINQUENT PAY- MENTS NO WAIVER.— Where an insurance policy, conditioned to be void on non-payment of dues, provides that the assured may be reinstated on payment of delinquent dues and "satisfac- tory evidence of good health," the taking of delinquent dues by the insurer from an agent of the assured, on the day before the assured's death of fatty degeneration of the heart, and the giving of a receipt shall be void unless the assured is in as good health as when originally received as a member, do not constitute a waiver of the breach of good health, could, under the circum- Btances, be furnished. Ronald vs. Mutual Reserve Fund Life 4.ss'n (Court of Appeals of New York), 30 N. E. Rep.. 739. PAYMENT OF DUES A CONDITION PRECEDENT.- Where a mutual benefit certificate, and the application for it, provide that if the monthly dues, assessments, etc., required to be paid, are not paid to the company on the day due, the certifi- cate shall be void, the payment of such dues, and assessments, is a condition precedent to any subsequent liability of the com- pany; and it need not take any action declaring a forfeiture in order to relieve it of liability. Where certificate provides that mailing notice shall be deemed sufficient, etc., the fact that in- sured was insane at the time does not render the notice in- effective. Pitts vs. Hartford Life & Annuity Ins. Co. (Sup. Ct. Errors Conn.), 34 Atlantic Reporter, 95. EMBEZZLEMENT— ENDOWMENT. 395 EMBEZZLEMENT. LIABILITY OF LODGE TO BENBFIOIAlRY FOR EMBEZ- ZLEMENT BY OFFICER.— In an action against a Knights of Pythias lodge by the widow of a deceased member, to recover the amount due her from the relief fund, a branch of the order, it appeared that after notice by the lodge of such member's death, and that he was in good standing, as required by the by- laws, the money was paid by a bank to their secretary, on a check drawn by the proper officer of the relief fund, payable to the lodge, and by such secretary paid to their presiding officer, who embezzled the same; and tiat the by-laws of the order re- quired such benefits to be paid by the relief fund to the lodge, and by it to the beneficiary. The widow was entitled to recover, though such by-laws required all moneys due the lodge to be paid to its ti^asurer. Fisher vs. Knights of Pythias (Supreme Court of Pennsyl- vania, Jan. 23, 1893), 25 At. Rep., 869. ENDOWMENT. BENEFIT ASSOCIATIONS ORGANIZED UNDER LAWS 1S69 cannot conduct endowment insurance business. Laws 1869, Act 104, Sec. 1, authorized not less than five persons to incor- I)orate to secure to the family or heirs of a member on his death a certain sum of money by assessment on the members, or to secvire in the same manner a certain sum, weekly or monthly^ to a member disabled by sickness or otherwise. A fraternal bene- ficiary association organized under such act was not authorized to conduct an "endowment insurance" business. Pub. Acts 1S93, No. 110, defines fraternal beneficiary associations, and provides who may be beneficiaries, and how such associations may be organized. Sec. 3 provides that all such associations, organized under the laws of and now doing business in the State, shall be considered duly organized, o'aA "may continue such business," provided they comply with the requirements of the act as to an- nual reports, etc. Such act does not authorize a fraternal bene- ficiary association organized iindey Laws 1869, Act 104, which has been unlawfully conducting the business of "endowment in- surance," to continue to do business by complying with the re- quirements as to reports, etc. Walker vs. Giddings (Supreme Court of Michi^rau). 61 N. W. Rep., iil2. 396 INDICATOR'S DIGEST. WUAiT CONSTITTJlTES BNDOiWRxbNT FUNO.— The con- stitution of a fraternal association provided that it might issue endowment or life certificates, not exceeding $250 each, payable in 100 months or on total disability or death; and that, when there was a sufficient sum in the maturity fund, the lowest serial number of the endowment certificates' might be retired. The sum provided by such certificates to be paid was an endowment fund. Wain.er vs. Giddings (Supreme Court of Michigan), 61 N. W. Rep., 513. ENDOWMENT OF MUTUAL BENEFIT INSURANCE.— A member of a mutual aid association directed, in accordance with Its laws, that a benefit of $1,000 on his death should be paid to his uncle and aunt. He afterwards married. A subsequent amendment of the laws of the association provided that such benefit should be paid, on the decease of a member, first to the widow, second to the children, if there be no widow; third to the parents, if there be no widow or children; and empowered a mem- ber to designate any beneficiary; provided, that he must leave at least one-half thereof to the widow, if there be one, and, if not, then at least one-half to the children, if any. The member there- after died, leaving a widow, without having made any other designation. The widow took the whole fund, as the designation could not operate under the law as amended, not even to cut down her right to one-half of the fund. Sanger vs. Rothschild (Court of Appeals of New York), 26 N. B. Rep., 3. SPECIAL ENDOWMENTS BY MUTUAL BENEFIT SO- CIETIES.— Where a mutual benefit society issues to each of its rnembers of a certain class special endowment coupons, entitling him, at the maturity of a coupon, to the whole amount of one assessment from every member of that class, the number of such assessments being regulated annually by the grand lodge of the society, and paid into a special fund, a member whose coupon falls due, with others, at a time when there is not enough in said fund to pay them in full, can only recover his proportionate share of the fund. A mutual benefit society, being trustee for its mem- bers of a certain class of a special benefit fund, can assert its rights to a proportionate share therein against one of their num- ber who seeks judgment for more than his share. Perpoli vs. Grand Lodge of Legion of the West (Supreme Court of California), 36 Pac. Rep., 936. EVIDENCE. EV1DEN(_-B ON LIFE INSURANCE CERTIFICATE -In an action on a life insurance certificate, the association to establish that statement, in the member's application, that he was and had been free from disease, and for years liad not been under the care of a physician, were knowingly untrue, relied on the testi- EVIDENCE. 397 mony of a physician that, during the two months preceding tlie application, he had repeatedly examined the applicant, and had informed him that he had a certain disease, and that his chances of recovery were very poor; but there was other testimony that such examination took place after the application, and also that the diagnosis was incorrect. ThLs raises a question of fact as to the accuracy of the physician's statement as to date, and the correotness of his diagnosis, which was for the determination of the jury and not the court. In Massachusetts the right of action on such a certificate rests In the administrator and not In the person for whose benefit the insurance is effected. Flynn vs. Massachusetts Mut. Ben. Ass'n (Supreme Judicial Court of Massachusetts), 2'> X. E. Rep., 716. JUBGMEXT WITHOUT EVIDENXE.— In an action on a mu- tual benefit insurance certificate, where the certificate has been introduced in evidence, a substantial compliance with its pro- visions must be shown, and where a general denial has been en- tered by defendants, a Judgment for plaintiff on the pleadings will be reversed. Knights of Honor vs. Forston (Supreme Court of Texas), 14 S. W. Rep., tl2J. EVIDENCE IN SUIT ON LIFE POLICY.— In an action on a life insurance policy, in pursuance of plaintiff's notice, the com- pany produced on the trial the proofs whfch had been submitfed. A witness testified that when plaintiff notified the company of the party's death she received blanks, which as filled up and re- turned to the company, were the proofs offered, and when the company on trial objected to testimony as to execution of the proofs, plaintiff stated that it might be stricken out, if the com- pany would admit that the proofs were regular, which it refused to do. The Supreme Court of Michigan held that the proofs were properly admissible. Maier vs Mas. Ben. Assn., 65 N. W. Reporter, 552. TRAXSACTIOXS WITH DECEDENT AS EVIDENCE.— In an action on a mortuary benefit certificate, brought against a mutual benefit society by a deceased member's wife, to whom it was expressly made payable, members of the society, who are subdect to assessment to pay mortuary benefits, are not incompe- tent witnesses, under the statute which declares that where any party to a contract is dead, and his right therein has passed to the litigant, who represents his interest, no person whose interest is adverse to such decedent shall be a competent witness as to an.v matter occuiTing before his death, since the deceased member never had any right to the benefit mentioned in the certificate, and the litigant does not represent him. Where the minutes of a mutual benefit society show that a motion was made to suspend a certain member, but do not show what action was taken on the motion, it is competent to prove by parol evidence that the motion was put and carried. Hamil vs. Supreme Council of the Royal Arcanum (Supreme Court of Pennsylvania). 2.5 At. Rep., 645. 398 INDICATOR'S DIGEST. EXPULSION. VALIDITY OF LAWS— A provision In the constitution of a benefit society providing that if a member of the order make to its chief or to the public an accusation against a member that shall be false or malicious shall be suspended or expelled, is not void as having nothing to do with the transaction of the busi- ness of a fraternal insurance society. People vs. Women's Cath. Order Foresters (Sup. Ct. 111.), 44 Northeastern Reporter, 401. EXPULSION OF MEMBER.— Where the conetitution of a benevolent society gives a member the right to appeal from an order of expulsion, a vcrit of mandamus vyill not issue in favor of an expelled member until he has exhausted the remedies vrithin the society, although the order of expulsion was against the rules and usages of the society. Screwman's Ben. Ass'n vs. Benson (Supreme Court of Texas), 13 S. W. Rep., 379. MUTUAL BENEFIT ASSOCIATION: EXPULSION OF MEMBER.— Evidence that at the time of a member's expulsion from a mutual benefit association he was sick with a fatal dis- ease was inadmissible in an action on the benefit certificate, where the case was not tried on the theory that the order expelled him because he was sick, and for the purpose of avoiding the pay- ment of his certificate. Where the rules of such an association are not contrary to public policy or the law of the land, the merits of a judgment in accordance with same will not be in- quired Into collaterally, where the procedure was not in bad faith or repugnant to natural justice. Croak vs. High Court I. O. O. P. (Supreme Ct. 111.), 44 North- eastern Reporter, 525. RIGHT OF EXPULSION FROM MUTUAL BENEFIT IN- SURANCE.— A by-law of the Masonic Mutual Benefit Society, passed in view of a by-law of the Masonic lodges excluding saloon keepers from the privileges of the lodges, and providing that any member becoming a saloon keeper shall forfeit his membership in the society, applies to those who are and continue, as well as to those who become, saloon keepers after its passage. Where a by-law of such society provides that any member expelled from the Masonic lodge to which he belongs shall forfeit his member- ship in the society, such membership is forfeited by his being debarred, against his will, of the privileges of his lodge, though not, in form, expelled therefrom. The fact that the ofllcers of a mutual benefit society receive assessments from a member after the passage of a by-law expelling him therefrom will not estop him from disavowing his membership when sued for assessments made after those paid. Ellerbe vs. Faust (Supreme Court of Missouri), 25 S. W. Ren. 390. EXPULSION. 399 REMEDY FOR EXPULSION— A member of a benefit soci- ety who has been expelted cannot resort to the courts for rein- statement without first exhaasting the remedies provided by the constitution and by-laws of the eociety; and this though the order of expulsion be void. People vs. Women's Oath. Order Foresters (Sup. Ct. 111.), 44 Northeastern Reporter, 401. EXPULSION OF MEMBERS OF ASSOCIATION.— Where no provision is made in the constitution or by-laws of a voluntary benefit association for a mode of procedui'e in expelling members for non-payment of dues, or for notice and opportunity to be heard, the courts w'll issu? an order for the reinstatement of a member expelled wit^iout reasonable notice of the proceedings which resulted ^n his expulsion, and a fair opportunity of pre- senting his defease. Von Arx vs. Gruelti Verein (Sup. Ct. Cal.), 45 Pacific Re- porter, 685. EXPULSION OF MEMBER FROM BENEFICIARY ORDER. — A member of an association in which he has pecuniary rights cannot he expelled, unless he is found guilty of an offense which either affects the interests or good government of the association, or is indictable by the law of the land. A report by a subordi- nate lodge suspending a member for 99 years, because he had, without any intent to defraud, misrepresented his age, and be- cause he had made the insurance payable to one as his wife whom he knew was not his wife, without any appeal, is unauthor- ized and void. A member so suspended, when the supreme body reverses the decision of the subordinate body, will in law he considered as having been in good standing, the same as if even no expulsion had taken place, though his death occur in the interim. Vivar vs. Supreme Lodge of Knights of Pythias (Supreme Court of New Jersey), 20 At. Rep., 36. EXPULSION OF MEMBER FROM SUPREME COUNCIL OF A BENEVOLENT SOCIETY.— A benevolent order contained three grades of membership. The laws of the order provided for the expulsion of a member, and gave the method of procedure in expelling members of the two subordinate councils only. The supreme council was vested with original jurisdiction in cases of its own members, and had appellate jurisdiction as to matters emanating from the two lower councils. A member of the high- est grade was expelled by the supreme council, and petitioned the court to compel his reinstatement, on the ground that the procedure followed in expelling him did not conform to the method provided by the laws of the society. The court decided the mode of procedure provided in the case of the expulsion of members of the two lower councils did not apply to the proceed- ings by the supreme council to expel one of its members, and that that body might adopt any method of trial which it might choose, subject to the implied limitation. that it must be fair. Spillman vs. Supreme Court of Home Circle (Supreme Judi- cial Court of Massachusetts), 31 N. E. Rep., 776. 400 INDICATOR'S DIGEST. FORFEITURE. FORFEITURE OF POLICY AND REINSTATEMBNT.- Where a policy has been forfeited by non-payment of premiums, ^he subsequent acceptance of the premiums by the agent of the company will not reinstate the policy, unless the agent was au- thorized to receive the money or to waive the forfeiture. Jackson vs. Royal Benefit Soc. (City Ot. N. Y.), 37 N. Y. S. Rep., 28. NOTICE OF FORFEITURE OF LIFE INSURANCE POL- ICY.— The Laws ot 1876, as amended by Laws 1877, provide that no life insm-ance company shall have power to declare a policy forfeited or lapsed for non-payment of any annual premium or interest, unless notice' to pay within a certain time has been given. Laws 1885 provide that Laws 1876 shall not apply to policies issued on monthly or weekly installments of premiums if the ap- plications therefor waive the notices. Laws of 1877 applies to policies payable out of a fund created by assessments. Jacklin vs. Nat. Life Assn. of Hartford (Supreme Court of N. Y.), 24 N. Y. S., 746. FORFEITURE OF POLICY FOR NON-PAYMENT GIF ASSESSMENTS.— In an action on a policy of mutual life insur- ance, the widow of a deceased member sought to establish a waiver of forfeiture for non-payment of an assessment by show- ing that the association had previously accepted assessments after default, both from deceased and others. The evidence showed that deceased was on all such occasions fully aware that he had forfeited his rights, and had applied for reinstate- ment, with a certificate of good health, and that, as to the . Masonic Life Ass'n of Western New Yorli (Supreme Court, General Term, Fifth Dept), 34 N. Y. S. Rep., 563. FORFEITURE OF MUTUAL B^EfNEFIT INSURANCE.— Where a life insurance company mails to a policy-holder notice of the death of another member, which notice requires him to pay an assessment therein stated within thirty days from the date of the notice, under penalty of forfeiture of his policy, and he, through no fault of his, did not receive such notice until after the expiration of the thirty days, it was no such notice as, in the absence of an agreement to that effect, would work a forfeiture of the policy. Merriman vs. Keystone Mut. Ben. Ass'n (Court of Appeals of New York), 33 N. E. Rep., 738. WHEN BENEFIT MFE ASSOCIATION CANNOT FOR- FEIT MEMBERSHIP.— A. benefit life association which has habitually and without objection allowed calls to be paid by checks mailed by a member on the last days named therein cannot declare a forfeiture of his membership for a failure to comply with a recent condition printed in fine type in its form of mortuary notice, requiring remittance to reach the home office on or before the limitation therein, where it appears that this was the only notice of changed conditions sent to such member, and he testifies that he did not see it, and never heard of it till the trial of his action to compel the association to reinstate him in membership. Van Bokkelen vs. Mass. Ben. Life Assn. (Sup. Ct. 1st Depart.), 35 N. Y. S. Reporter, 863. FORFEITURE OF MUTUAL INSURANCE BY FALSE STATEMENTS.— Where one residing in Atlanta, Ga., who was already a member of a beneficiary society, having its headquar- ters and principal office in Baltimore, Md., and who was the holder of a certificate of membership which embodied and embraced a policy of insurance by the society upon his life, made at different times two written applications for membership in the same society, and in each of them made several material representa- tions, among them that he was not a member of that societv and thus obtained on each application a separate certificate of 'mem- bership and policy of insurance upon his life, which declared iipou Its face that, if the representations upon which the certificate was granted were not true, the certificate should be void both these certificates should, after the death of the member, be treated as void, and of no effect, unless the company had notice at some time before receiving the last dues upon some one of the three certificates that the same identical person was a member when he applied for and procured one or both of the additional certificates, and the cumulative insurance which they provided 21 S^K Rep'^'sss' ^''°'''*^ ^'" ^^''"^ (Supreme Court of Georgia), FORFEITURE. 403 KILLING OF INSURED BY INSANE PFNEFICIARY.— The killing of insured by an insane beneficiary, under circum- stances which would constitute murder, if the beneficiary were sane, does not work a forfeiture of the policy. Holdom vs. Grand Lodge A. O. U. W. (Supreme Ct. Illinois), ■43 N. E. Rep.. 772. 'MUTUAL BENEFIT INSURANCE.— The rule that conditions of forfeiture in an insurance policy may be waived by the insurer applies as well to mutual benefit associations as to incorporated companies. Ry. P. & F. Cond. Mut., etc., Assn. vs. Tucker (Supreme Gt HI.), 42 N. E. Reporter, 3^. FORFEITURES IN MUTUAL BENEFIT SOCIETIES.— In the organization of the Knights of Pythias the endowment rank is separate from the lodge, and is for insurance purposes only. The constitution provides that when a member withdraws from his lodge, or his membership therein ceases from any cause other than death, all his right and interest in the endowment rank are forfeited. The constitution also creates a board of control, hav- ing entire control over the endowment rank, subject to restric- tions by the supreme lodge, and with power to enact general laws, rules and regulations in conformity with this constitution, and to alter and amend the same when, in its judgment, the needs of the rank require it. It is also given authority to hear and (ietermine all appeals. Pursuant to this authority, the board enacted that, when a member in the endowment rank became in arrears to his lodge for an amount equal to one year's dues, he should forfeit hi? membership in the rank, and render his endow- ment certificate void. In a case thereafter arising it appeared that a member of tha rank had died, owing more than the pre- scribed dues, but had not been suspended by his lodge, and owing to the failure of the proper ofiBcer of the lodge to notify the section of the rank to which he belonged of the arrears, such section had continued to receive the monthly assessments levied on the rank. The board held that on these facts the certificate had not become void, and the beneficiary was entitled to the- in- surance money. Where a like state of facts was shown, the court would follow this ruling, as being an. authoritative construction of the regulations by the same body that enacted them. ' Supreme Lodge Knights of Pythias of the World vs. Kalinski (Circuit Court of Appeals, Fifth Circuit), 57 Fed. Rep., 34S. WAR'ER OF FORFEITURE.— If an agent of a fraternal in- surance-association may change by parol agreement the time fixed by the by-laws for monthly payments, and waive a forfeit- ure which would otherwise restilt from the failure to make such payments at the time fixed, a forfeiture is not waived by the mere promise of the branch president of such association that he would send notice when payments became due, where it did not appear that the president, in making such proniise, assumed to act on behalf of the association, nor that the parties in interest -were misled by such promise. Eichel vs. S. L. Knights of Pythias (App. Ct. Ind.), 43 North- eastern Reporter, 1014. 404 INDICATOR'S DIGEST. WAIVER OF FO|lFEITURE FOR NON-PAYMENT OF DUES.— Ib an action on a mutual benefit certificate it appeared that at the time of the member's death he was in arrears for assessments, but that a few days before he had made a payment ou account of such assessment, which was received by the asso- ciation. During tlie time of his membershiip fifty-three assess- n.ents had Ijeen levied against him. One was paid when due, the dates of two payments did not appear, and fifty were paid at times varying from two days to six months after tbey were due, and were received by the financial officer of the lodge, and paid over to the supreme financial officer, as provided by the constitution of the association, and retained by him. The court held this was sufficient to authorize a finding that the time of payment of assessments was extended. Teclimeyer vs. S. C. Royal Templars, etc. (Sup. Ct. App. Div.), 40 N. y. Supp. Reporter, 23. WAIVER GIF FORFEITIURB OF MEMiBERSHIP OF MU- TUAL BENEFIT SQiOIEITY.— Where the by-laws of a mutual benefit society* require each member to pay a fee of one dollar, after having been a member for one year, for the beneficiaries of the next meml>6r who shall die, and make a similar payment at each death, suoh fee is due from a member one year after he ioins, though no member may have died during such year. Where a member was sixteen months in arrears for non-payment of a death benefit fee, and the society did not strike his name from the list of members, or take any action to enforce payment of such fee, but received from him his monthly dues and fines during such sixteen months, the society waived the forfeiture of his membership for such non-payment. Menard vs. Society of St. Jean Baptiste (Supreme Court of Errors of Connecticut), 27 At. Rep., 1115. WAIVER OF FORFEITURE OF POLICY.— An assessment not having %een paid within 30 days after notice, as required by the policy, wliich provided that on such default the policy should be void, and all rights under it forfeited, unless the insured should be reinstated in his rights by the offi'cers of the company, a duplicate notice of the assessment was sent, across the face of which was stamped: "Certificate forfeited for non-payment. May be renewed by immediate payment, if tue risk is approved by the association, upon receipt of said payment at the home office." Upon receipt of the notice the Insured paid the assess- ment, and a receipt was delivered to him, stating that the pay- ment was received on the conditions that the insured was in good health, etc. It was held that the association waived Its right to a forfeiture of the policy. Sieburg vs. Massachusetts Ben. Life Ass'n (Supreme Court, General Terms, First Dept), 33 N. Y. Sup. Rep., 1064, WAIVER OF FORPBITUEE OF MUTUAL BENEFIT IN- SURANCE.— Where a member of a benefit society is in default for non-payment of an assessment, which, by the rules of the* society, forfeits his right, the forfeiture is not waived by the society sendmg a notice of the next assessment, and calling atten- tion therein that the prior assessment remained unpaid. Where it is shown that a large proportion of the assessments of a benefit FORFEITURE— FOREIGN COMPANIES. 405 society are accepted after they are due, and it is claimed that a waiver of forfeiture should be implied therefrom, but no practice is shown of receiving past due assessments from sick members, such waiver does not extend to a member who was sick at the time his past due assessment was tendered to the society. Schmidt vs. Modern Woodmen of America (Supreme Court of Wisconsin), 54 N. W. Rep., 264. WHAT IS NOT A WAIVER OF FORFEITURE OF MU- TUAL BENEFIT MEMBERSHIP.— A mutual benefit association, certificates of membership in which were issued subject to the condition that they should be void in case payments were not made on or before the day fixed therefor, sent to one H, who was designated by a member, under the rules of the association, to receive notices, a printed notice, on April 1, 1895, that such member's annual dues would be due May 29 following, and called attention to the necessity of payment in order to avoid forfeiture. H had been accustomed to pay dues and assessments for the member as they matured, but he neglected to pay the dues for May 29, 1895. On June 4 the secretary of the association wrote the member, asking whether his dues had been paid, and stating that if they had not his membership was forfeited, and could be reinstated only on application to the executive committee. On receipt of the letter H sent . the association his check for the amount of the dues. The check was received, and deposited In bank by the association. On June 1 a mortuary call was made on the member, but it was stated that it should not be held to waive any forfeiture caused by non-payment of any previous sum. On June 14 the secretary wrote the member that his cer- tificate had lapsed, and could be reinstated only upon application. On June 21 he again wrote, referring to the previous letter, and inclosing a blank form for reinstatement. The member refused to sign the application because of the statement therein that hla membership had expired. During all this time the dues which had been paid after the forfeiture were held subject to the order of the member In case he did not apply for reinstatement. The Supreme Court, New York County, held that the forfeiture of membership was not waived by the association. People ex rel. Leerburger vs. Mut. Res. Fund Life Assn., 37 V. Y. S. Reporter, 617. FOEEIGN COMPANIES. SERVICE OF PROCESS ON FOREIGN COMPANIES.— The appointment of the State superintendent of insurance. as the at- torney of a non-resident insurance company for the purpose of re ceiving" service of process, as required by the New York statute, does not authorize him to accept service by mail, and such service IS Toid. I Farmer vs. National Life Ass'n of Hartford, Conn. (Circuit C6«rt E. D. New York), 50 Fed. Bep„ 829. 4o6 INDICATOR'S DIGEST. A FOBEIG-N MTJTUAL BENEFIT SOCIETY, whicli has" failed to icomply with the laws of the State, and- is therefore forbidden, under penalty, to do business in the State, cannot sue under the statutes to recover money assessed against its members in the State, and which was voluntarily paid by such' members to its agent for the use of the company, as the claim "arose out of" forbidden acts within the statute. People's Mut. Ben. See. vs. Lester (Supreme Court of Mich- igan), 63 N. W. Rep., 977. LIABILITY OF FOREIGN MUTUAL ASSOCIATION.— Where a foreign mutual insuranct^ company authorizes a person in the State of Kansas, whom it designated aS its local or branch secretary, to receive assessments from its members in that State, and countersign and deliver receipts therefor, and forward ' the money so received to the home oiHce in another State, and the company has no other officer in the county where service is' sought upon the company upon vyhom service may be had, ser- vice on said local secretary is a valid service under the Kansas statute. And where suit is brought on a benefit certificate for $2,000, issued by a mutual assessment insurance company, where- in the company promises to pay the beneficiary therein named 75 per cent of the proceeds of one full assessment of all the members at the time of the membei-'s decease, and the only issue in the case is whether or not the menlbershlp lapsed during the' lifetime of the member, the beneficiary imay recover thereon without prov- ing a demand on the company to make an assessment to pay the' loss, or that an assessment has been made, or, if made, the amount thereof. In the absence of any proof on the part of the; company, showing the amount of such assessment, the presump- tion in favor of the beneficiary is that an assessment would pay the full amount named in the certificate. Southwestern Mut. Ben. Ass'n of Marshalltown vs. SwenSori (Supreme Court of Kansas), 30 Pac. Rep., 405. , i'OREIGN ASSESSMENT COMPANIES IN OHIO:— Corpo- rations organized under section 3630 of the Revised Statutes; ^vhich do not comply with the laws regulating regular mutual life insurance companies, have no power to issue policies guaranteeing any fixed amount to be paid at the death of the member, "except such fixed amount shall be conditioned upon the same being realized from the assessments made on members to meet it;" and those corporations so organized which do comply with such laws are not authorized to issue endowment policies "promising to pay to members during life any sum of money or anything of value." Such Ohio corporations are not permitted to do business in an- other State upon substantially the same basis and limitations as they are in Ohio, when by the laws of such other State they are not permitted to issue such endowment policies, nor any policy of insurance so conditioned, nor any that. does, pat specify the-sum oT money to be paid, and unconditionally obligate such c&rpora- tlon to pay the amount so specified, to the- beneficiaries 'Of' sucli payment; and corporations organized^ on 'tlie- assessment plan under the laws of such other State are nOt'entl'tled to -d6 busin'fesa in this State. '"' . • ....:.':;'. ;„:•.■;..'. ■■•. .;;: State ex rel. Attorney-General vs. Western Union Mwtual' Life and Accident Society. (Supreme^'Gpurt-of-Oliio), 24 N. B.' Rep., 392. '*' . ■ . . ' FOREIGN COMPANIES. 407 REGULATION OF FOREIGN INSURANCE COMPANIES.— Under the statutes wliich directs tlie revocation of the license of any foreign insurance company that shall remove to the federal courts "any action or proceeding commenced in any State court of this State upon a claim or cause of action arising out of any business or transaction in fact done in this State," it is immaterial whether the suit removed was brought hy a citizen of Illinois or of some other State. In mandamus to compel the auditor to can- cel such a license, an allegation that properly certified copies of the application for removal, the bond, and the order of removal were delivered to the auditor is sufficient without setting out copies of these documents or stating their legal effect. People vs. Pavey iSupreme Court of Illinois). 37 N. E. Rep., 691. FOREIGN BEXEVOLENT SOCIETY, POLICY ISSUED BY —CONDITIONS NOT ON FA€E OF POLICY— RULES OF SO- CIETY— BENEFICIARIES— RIGHT OF SOCIETY TO LIMIT TO CERTAIN CLASS— SUBSTITUTION OP OTHERS BY WILL. — A policy upon the life of the plaintiff's deceased husband was issued before his marriage by a foreign benevolent society (the Brotherhood of Railway Trainmen) not incorporated or reg- istered under any act of the Province of Ontario, payable to his mother, who predeceased him, or his executors. By one of the by-laws of the society it was provided that where the assured married after the date of the policy, it ipso facto became payable to the widow, "unless otherwise ordered after date of such mar- riage." Under another by-law the policy could be made payable only to a wife, an affianced wife, a blood relation, or a person dependent on the assured, and was not to be willed or trans- ferred to any other person. By his ^vill the deceased purported to give to his widow the amount of this and another insurance subject, however, to the payment of his debts. Held, that the policy was capable of b«ing controlled by conditions not set out upon its face, the Ontario insurance act having no application in this case ; and as the insurance and the rights of the parties under it did not depend upon anything contained in the act to secure to wives and children the benefit of life insurance (R. S. O., ch. 136), It was not necessary to consider whether it was brought within the scope of that act by its amendment of 1888; and, therefore, the binding terms of the contract were to be found upon its face and in the rules of the society, which formed part of the contract. Held. aL^o, that under the terms upon which the society agreed to pay this money, the assured had no power to bequeath any part of it to his executors or his creditors, and the society had the right to say that their contract was to pay the money only within a certain class; that the assured had no right to substi- tute a beneficiary outside that class; and, therefore, the mone.y belonged to the widow free from the obligation to pay debts. Morgan vs. Hunt, 26 O. R., 568. 4o8 INDICATOR'S DIGEST. FRATERNAL SOCIETIES. APPEAL PROM PINE BY PRATERNAL SOCIETY.— Where the by-laws of a fraternal society empowers it to subject Its members to fines and penalties, a member will not be allowed to resort to the court for relief for fines claimed to have been ille- gally imposed, until he has exhausted all the remedies provided by the laws of the society. Burns vs. Bricklayers' Benevolent and Protective Union (City Court of Brooklyn), 10 N. Y. Supp., 916. ORGANIZATION OP MUTUAL BENEFIT ASSOCIATIONS. —In order to organize a fraternal beneficiary society under the statutes of New York, two hundred persions must make applica- tion in writing for membership in such society, and after the preliminary license is issued the prescribed two hundred persons must subscribe in writing to be beneficiary members before the issuance of the final certificate to do business, and without a compliance with these provisions mandamus will not be issued to compel the superintendent of insurance to issue such certificate. In re Schmltt (Supreme Court of New York), 10 N. Y. Sup., 583. BENEVOLENT ASSOCIATIONS: SUBMISSION OF GRIEVANCES.— Members of fraternal benevolent associations m.ay lawfully agree, as part of their scheme of organization, to submit their domestic grievances in the first instance to the In- ternal tribunals of their order, and having so agreed cannot against the protest of the association, maintain a civil action against it, until the condition precedent has been, in legal con- templation, complied with. Knights of the Golden Eagle vs. Smith (Sup. Ct., N. J.), 33 Atlantic Reporter, 849. LEGAL STATUS OF FRATERNAL INSURANCE ASSO- CIATION.— An association organized under tbe general incoi-po- ration laws of the State, the principal object and functions of which are to secure to each member thereof the payment on his death, to his beneficiary or representative, of a certain sum of money, subject to the fulfillment, of the conditions imposed by the charter and by-laws, is essentially a life insurance company, and the relations between such companies and the members are purely business relations, based upon contract. The fact that such an organization restricts it? membership to persons belong- mg to, and in good standing in a fraternal or benevolent society known as "Free and Accepted Masons," under 50 years of age, does not make it a secret, benevolent or fraternal society, and does not bring it within the proviso to section 53 of the insurance ■ laws of the State. Masonic Aid Ass'n vs. Taylor (Supreme Court of South Da- kota), 50 N. W. Rep., 93. . FRATERNAL SOCIETIES— FRAUD. ' 409 SECRET AND FRATERNAL SOCIETIES.— A corporation ■with an insurance feature consisting of the participation in a benefit fund, by those members of its local branches who pay- assessments, whose constitution declares "secret work" to be one of its functions, and whose branches are to meet with a watch- man at the outer and a vldette at the inner door, is within Gen. St. Sec. 2903, excepting every secret or fraternal society from the prohibition of section 2S92 against the doing of business within the State, without authority from the insurance commissioner, by foreign corporations organized for the purpose of furnishing in- surance on the assessment plan. Pawcett vs. Supreme Sitting of Order of Iron Hall (Supreme Court of EiTors of Connecticut), 29 At. Rep., 615. FRAUD. FALSE STATEMENTS IN LIFE INSURANCE APPLICA- TION. — An application for life insurance contained statements, warranted by the applicant as true, that he had never since child- hood been afflicted with certain specified diseases. In an .iction for the insurance there was evidence that before the application some of the ailments mentioned therein existed, sufficiently seri- ous to have an important bearing on his general health, and that they were the cause of his death soon after the procurement of the insurance. The statements being untrue in these particularsi, there can be no recovery of the insurance. Bancroft vs. Home Benefit Life Ass'n (Supreme Court of New York), 12 N. Y. Supp., 719. EFFECT ON POLICY OF FALSE STATEMENT AS TO HEALTH. — 'A false statement by the insured as to the then state of his health, made while the policy was in force, under the mistaken belief that he was obliged to make a statement to rein- state the policy, does not avoid it. If a company has the power to cancel, or the power to terminate by notice, or the right to require statements, by the contract between the parties, then the assertion that it will exercise that power is a sufficient considera- tion to justify a reliance upon a statement affecting the value of the risk voluntarily made by the assured. Such a statement leads the insurance company, presumptively, to a different course of action than it might otherwise take. It suspends its i>ower of revocation, whether it had actually taken any action towards the cancellation or not. But where the relations of the parties, as in a life insurance policy, consist on the one part of an obligation to pay the premiums demanded, and on the other side to continue the risk of insuring the life which is growing more hazardous as life advances In age, those relations may not be terminated by either party, as against the other party, by the exercise of any option, except for the one cause of failure to perform. Bridge vs. National Life Association (Supreme Court, Special Term. St. Lawrence County), 33 N. Y. Sup. Rep., 553. 410 INDICATOR'S DIGEST. EALSB REPRESENTATIONS AS WARRANTIES.— Under a provision in an application for Insurance making representations, whether known to be false or not, warranties, a statement, to the best of applicant's belief, that no company had refused him a policy, when in fact a policy had been refused,' will defeat the policy. I Kemp vs. G. T. Mut. Benefit Ass'n (Supreme Com't of New York), 5th.Dept. 19 N. Y. Sup., 435. , RESCISSION OF COMPROMISE: MONEY MUST FIRST BE REPAID COMPANY.— The beneficiary of a life insurance cer- tificate, who settles for less than its face, cannot rescind the settlement for fraud, and maintain an action on the claim, with- out first repaying the money received. Moore vs. Mass. Benefit Assn. (Sup. Jud. Ct., Mass.), 43 N. E. Reporter, 298. SUBSTITUTION OF BENEFICIARY PROCURED BY FRAUD. — Where, by fraud, one procures his substitution as ben- eficiary in a benefit association certificate, an action for the fraud wiil not lie against him by the original beneficiary. Hoeft vs. Sup. Lodge K. of H. (Supreme Ct. Cal.), 45 Pacific Rep., 186. FUNDS. PRESUMPTION AS TO FUNDS OF BENEVOLENT ASSO- CIATION.— In the trial of an action against a life insurance com- pany organized on the assessment plan, brought by a person entitled to a benefit in consequence of the deatn of a member of such company, the burden is not upon the party suing to show that the company is in possession of funds sufllcient to pay his claim; it appearing that the company, by its charter, is required to assess its members on the occun-ence of the death of a mem- ber, and to keep on hand an emergency fund, collected from annual dues, and also a general reserve fund derived from sev- eral various sources, facts which raise a presumption of sufficient resources or funds. Grindle vs. York Mut. Aid Ass'n (Supreme Judicial Court of Maine),- 32 At. Rep., 808. FUNERAL BENEFITS— HEALTH. 411 FUNERAL BENEFIT. PROVISION FOR FUNERAL EXPENSES OF MEMBERS. — The by-laTT of a society stated its objects to be, (1) to give its members financial relief in time of sickness; (2) legal protection In case of wrongs; and (3) funeral expenses in case of death; and they also provided for a tax for funerals. The provision in re- gard to funerals required tlie society to pay the expenses, and did^ not mean merely that the members of the society should be called' on to attend a member's burial. Thomas vs. Societa Italiana Di Mutuo Soccorso (Common Pleas of New Citv and County, General Term), 31 N. Y. S. Rep., 815. MUTUAL BENEFIT INSURANCE.— Under the constitution of a mutual benefit society which provides that a member shall be entitled to funeral benefits if he is "not more than three months' dues in arrears at the time of his death," a member whose dues are in arrears for three months, and who dies the day before the dues for the following month are payable is en- titled to funeral benefits. A by-law of the society, which pro- vides that "any member becoming three months' in arrears" shall not be entitled to the benefits until eight weeks have ex- pired from the time he has paid up in full, being in conflict' with the above provision of the constitution, must yield to it. Sherry vs. Operative Plasterers' Mutual Union (Supreme Court of Pennsylvania), 20 At. Rep., 1062. HEALTH. BREACH OF HEALTH WARRANTY.— In an action on a policy of life insurance, the defense was a breach of warranty by the insured in falsely answering to his application that he had never had consumption. The policy was issued on JIarch 20, and the insured died of acute tuberculosis October 7 following. A pBysician testified for defendant that in Februai-y he treated in- aured- for consumption, and at the tihie discovered what are known as "Koch" baciUi." The presence of bacilli was confirmed by another physiciari. A sister of insured testified that in Feb- mary insured -suffered from a- cold, but'a'fter treatment his cough disappeared,- and- he'wasapparently healtliyv- con-tinning his usual en!jplo^fent'a«--a-'raborer tlntfl'-withTn a--few wefeks ^of 'his -death'. Defendant's examining physician testified that on March lO^he njade'a'tliorbtigh exaniinatiMi of-insvtred by the uBual tests, and found Ms lungs in a perfectly -healthy, condition p thtlt;he talked 412 INDICATOR'S DIGEST. with insured several weeks later, and saw nothing to Indicate any lung trouble or disease of any kind. It was for the jury to determine whether insured was afflicted with consumption when the insurance was Issued. , Tucker vs. XJ. S. Life and Accident Ass'n (Court of Appeals of New York), 30 N. E. Kep., 723. HEIRS. ■CONSTRUCTION OF "HEIRS'' IN BENEFIT CERTIOFI- CATE. — Under the Arkansas statute the wora "heirs" in a bene- fit certificate means those designated by the statute of distribu- tion of personal property, which excludes the wife, except in the event that he leave none of his own kindred surviving him. Where a society pays money under a benefit certificate into court to await the decision of who it belongs to, the provision in the certificate that the beneficiaries shall be limited to the members of the assured's own family, or those dependent upon him, will avail to change the rule of the statute. Johnson vs. Supreme Lodge of Knights of Honor (Supreme Court of Arkansas), 13 S. W. Rep., 794. INJUNCTION. WHEN INJUNOTIOiN WILL NOT LIE AGAINST INSUR- ANCE ASSOCIATION.— The laws of New York, providing that no 054er enjoining a domestic insurance corporation shall, be granted otherwise than on the application of the attorney-gen- eral;, iiexcept in an action by a judgment creditor, or in proceed- ings supplementary to execution," prohibits an injunction against a co-operative insurance corporation, on the application of a member, to enjoin it from enforcing certain assessments against him. , "Si^ymour vs. Mutuail Reserve Fund Life Ass'n. (Supreme Ct. 'N. Y.* County), 35 N. Y. S. Reporter, 793. INSOLVENCY. 413 INSOLVENCY, mSOLVENCY CXF MUTUAjL, BENEFIT INSURANCE COiM- PAiM. — 'Where an assessment insurance company becomes in- solvent, and its affairs are vested in the superintendent of the insurance department, death losses must be paid up pro rata from its assets, although an assessment for a particular loss had been made and collected, but not paid to the beneficiary prior to the insolvency. The statute providing that upon the insolvency of an assessment insurance company, death losses must be paid pro rata from its assets, is not a law impairing the obligation of a contract, In that it authorizes a disposition of such assets other- wise than as provided by certificates of membership, as, the company being a creature of the law, the law creating it is part of all its contracts with its members. EUerbe vs. United Masonic Ben. Ass'n (Supreme Court of Mo.), 21 S. W. Rep., 843. DISSOLUTION OF INSURANCE COMPANIES.— In an action by the people to dissolve an insolvent insurance company, where there is a judgment providing for closing up its affairs through a receiver and the 'court, and appointing a referee to take proof of claims against the company, it is improper to allow an intervention by beneficiaries, under a certificate of insurance daiming a certain fund in the hands of a receiver collecte(^ on the dfeath of assured, and to appoint another referee to take proof of such claim. ■* People vs. Grand Lodge of Empire Order of Mutual Aid of State of New York (Supreme Court of New York), 24 N. Y. Supp., 37fi. DISSOlLUTION OF RELIEF ASSOCIATION.— The employes of a railway company formed a voluntary relief association, the cfcarter declaring the objects to be the extension of relief to em- pftyes in case of death, sickness, etc.; the obligations of the asso- ciation were guaranteed by the company. The charter was re- pealed some years afterwards and the company withdrew its guaranty. The association transferred its assets to the railway company in trust to be turned over to a new association after the old liabilities were liquidated, and such of the members as wished to withdraw were paid their share of the assets. This transfer and agreement was void, yet as 95 per cent of the members of the old association have joined the new, and depend upon it for a continuation of their insurance, and the railway company is able and willing to perform its covenaats, a receiver will not be ap- pointed for the old association to take possession of its assets, at the instance of a member who refused to join the new asso- ciation, when such an appointment would in effect destroy the association. Baltimore and O. Ry. Company va. Cannon (Court of Appeals of Maryland), 20 At. Rep., 123. 414 INDICATOR'S DIGEST. INSOLVENCY OF MUTUAL BENEFIT ORDERS.— Where the rules of a rautual benefit oj-der provide thai the reserve fund of its local branches in other States shall be controlled by and belong to the supreme lodge, title to such fund is in the supreme lodge, and must be so distributed that each member shall derive a benefit from the entire corpus of the assets of the supreme lodge, without regard to its local habitation. Where such order becomes insolvent, and a domiciliary and an ancillary receiver are appointed therefor, the local branches cannot refuse, without good cause shown, to turn over the assets to the ancillary receiver; and, when he has possession thereof, the coui't may order them transmitted to [he domiciliary receiver. Where the fund has been garnisheed in the hands of an officer of the local branch, the court will not make an order for the payment of such fund into such receiver's hands, until the questions arising under the garnishment proceedings are determined. Baldwin vs. Plosmer (Supreme Court of Michigan), 59 N. W. Rep., 432. TRANSFER OF ASSETS TO GBiNERAL REICEIVER.— Where a mutual benefit association, with a reserve fund held by the subordinate lodges in the different States, but owned and controlled by the supreme lodge, becomes insolvent, and a re- ceiver is appointed, with power to collect the assets, wherever found, and wind up the association, ancillary receivers of the several branches will be ordered to transmit such reserve fund to the general receiver. Buswell vs; Supreme Sitting of Order of Iron Hall {Supreme Judicial Court of Mass.), 36 N. E. Rep., lOfiS. DISTRIBUTION OF INSOLVENT ASSETS.— The constitu- tion of a co-operative or assessment life insurance company pro- vides that the assessments should be applied to the creation of two distinct funds, one of which was a "death fund," and the other a "reserve fund;" that death claims should be paid from the "death fund," and that no death claim should be paid fromi the "reserve fund" except upon a contingency that never happened. The company was dissolved at the suit of the attorney-general, and a receiver put in charge of its property. Although the "death fund" was insufficient to pay the death claims In full, the death claimants were not entitled to share in the "reserve fund." The constitution also provided that the reserve fund should be paid only to those members who are living when the fund was to be divided, and who had paid all assessments. After the suit to dis- solve the company had begun, an assessment was made by order of the,' court. Thosi^ who paid assessrhent were entitled to be repaid such assessment in full out of the reserve fund, and the balance would be divided pro rata among those members whopaid all assessments up to the commencement of the suit, regardless of the last assessment, since the pendency of the suit was a suf- ficient excuse for the members who failed to pay the last assess- ment. The time at which to determine such which members were to share in the reserve fund and which In the death fund is the date of the commencement of the suit, and not the date Of the decree of dissolution. A death claim, which had been apjOroved before the levy of the last assessment made before suit, has no priority over other death claims where the assessment in question INSURABLE INTEREST. 41'; •svas not made to satisfy that particular claim, but merely to in- crease the death fund. The costs of the receiver should be paid pro rata out of the two funds. In re Equitable Resei-ve Fund Life Association (Court of Ap- peals of New Tork), SO X. E. Rep., Hi. IX SI' R ABLE INTEREST. INSURABLE INTEREST IN LIFE OF ASSURED.— Where one having an insurable interest in the life of another takes out a policy thereon, he may assign such policy to one who has no insurable interest. Souder vs. Home Friendly Soc. of Baltimore (Court of Ap- peals of ilaryland), 20 At. Rep., 137. NO INTEREST ON INSURANCE CONTRACT.— A contract of membership in a mutual benefit association, embodied in the certificate of membership, the constitution and l3y-laws, and such oral evidence as is necessary to connect them, is an unwritten contract, in an action on which interest is not recoverable. Ry. P. & F. Cond., etc., Assn. vs. Tucker (Supreme Ct. 111.), 42 N. E. Reporter, 398. PECUNIART INTEREST IN AN INSURED LIFE.— In an action on a mutual life insurance certificate by the trustee of the beneficiary, where it appeared that the beneficiary had no insur- able interest in the life of the insm-ed, and the question of whether the securing of the insurance was the act of the insured or that of the trustee of the beneficiary, liting left to the jury, the verdict in favor of the company will not be reversed on appeal. Whitmore vs. Supreme Lodge Knights and Ladies of Honor (Supreme Com-t of Missouri), 13 S. E. Rep., 495. RECOVERY OF PREMIUMS PAID ON INVALID POLICY.— When the beneficiary named in the certificate of an assessment insurance association has no insurable interest in the life of the assured, he cannot recover from the association dues and assess- ments paid by him for the insured as money paid on a considera- tion which has failed, the association having no notice that the beneficiary, and not the insured, was paying the dues and assess- ments. Knights and Ladies of Honor vs. Burke (Court of Aippeals of Texas), 15 S. W. Rep., 45. 4i6 INDICATOR'S DIGEST. INSURANCE COMPANY. WHAT CONSTITUTES INSURANCE COMPANY.— Where members of an association pay an admission fee, montlily dues and assessments, as ordered from time to time, and from funds thus raised the association contra<;ts to repay to the members cer- tain sums in case of sicliness or death, or at the expiration of a fixed number of years, such an association does an insurance business, within the meaning of the statute providing penalties for any person or association which shall do an insur- ance business without complying with the general regulations provided by the statute, for" the transaction of such business. Such a business cannot be carried on by a corporation whose cer- tificate of incorporation stated that it is for "social or fraternal beneficial purposes or both." Order of the International Fraternal Alliance of Baltimore City vs. State (Court of Appeals of Maryla.nd^. 26 At. Bep., 1040. INTOXICATION. DEFENDING SUIT ON GROUND OF HABITS OF INTOX lOATION.— Where a company offered evidence that deceased died from the effects of intoxication, which would avoid the pol- icy sued on, it is in the discretion of the trial court to permit the party suing to introduce evidence in rebuttal showing the tem- perate habits of the decedent. And where the family doctor tes- tifies that the party died of pneumonia, and two doctors as ex- perts for the company testify that the conditions, as indicated by hypothetical questions, were those of excessi\e use of liquors, there is such conflict of testimony that It should be left to the jury. Maier vs. Mas. Ben. Assn. (Supreme Ct. Mich.), 65 N. W. Reporter, 552. LIABILITY. LIABIL/ITY OF MUTUAiL LIFE INSURiANOB COMPANY.- In an action against a mutual life insurance company on a death claim for $3,000, testimony by its secretary that the assessment levied to meet plaintiff's claim produced only $600 does not pre- LIABILITY. 417 elude a recovery for a larger sum, where the circulars issued by the company and the statement of its officers show that it had a large membership and reserve fund at or about the time the claim matured. Wabash Val. Protective Union of Cl^wfordsville vs. James (Appellate Court of Indiana), 35 N. E. Bep., 919. LIABILITY OF BENEVOLEXT ASSOCIATIONS TO EXE- CUTION. — It is only the beneficiary or mortuary funds of the association which are exempt under the statutes. The contingent fund, which may be used in payment of the expenses of the association is liable to be taken for its debts. Lake vs. Minnesota iMasonic Relief Assn. (Supreme Court oi: Minn.), 63 N. W. Rep., 263. MUTUAL INSURANCE— LIMITED LIABILITY.— Where, under the application and certificate of membership, a mutual benefit association was not to be liable for the death of the assured by suicide, the association cannot be held for such death, even though neither the by-laws nor the rules of the association authorized such limitation. McCoy vs. N. W. Mut. Relief Association (Sup. Ct. Wis.), 66 N. W. Rep., 697. LIABILITY OF COMPANY FOR DEATH OF ASSURED BEFORE ISSUANCE OF POLICY.— An application for a mutual life insurance policy, together with the membership fee and first quarterly premium, were received by a mere solicitor, who was not an agent of the company. The application provided that the company should not be liable until it and the membership fee were received by the secretary in New York. The policy pro- vided that it should not be binding until the insured paid the membership fee and the premium, and until it was countersigned by the agent of the company. The insured was killed two days before the policy was counter- signed and such fee and premium were received by the agent. It was held that the company was not liable. Tha fact that after the insured's death the solicitor delivered the policy to his ad- ministrator did not render the company liable; it appearing that the agent received the membership fee and premium, and coun- tersigned and sent the policy to the solicitor for delivery, in ignorance of the insured's death. Newcomb vs. Provident Fund Soc. of New York City (Court of Appeals of Colorado), 38 Pac. Rep., fil. LIABILITY OP MEMBERS OF MUTUAL AID ASSOCIA- TIONS.— The members of a mutual aid association, with a fluctu- ating membership, the officers of which are not authorized to pledge the individual credit of the members, and the expenses of which are, bv the by-laws, to be paid out of a particular fund, raised bv setting apart a certain percentage of the monthly dues, are not 'liable for the salary of the manager, so as to authorize him to bring action against the treasurer thereof. Georgeson vs. Caffrey (Supreme Court of N. Y.), 2-1 N. Y. Supp., 971. 4i8 INDlCAtOR'S DIGEST. LIEN. RIGHT TO LIEN ON FUND DEPOSIT KD WITH STATE TREASURER.— The statute requiring tbat injnds or securities of tlie value of $5,000 sliall be placed with the State Treasurer, and be held by him in trust for the contract holders of the corpora- tion, and also provides that "unles-s the contract shall have been invalidated by fraud or by breach of its conditions, the corpora- tion shall be obligated to pay the beneficiary the amount or amounts specified in its contract at the time or times named, and such indebtedness shall be a lien upon all the property of such corporation." Upder these provisions the State Treasurer was simply the custcidian of_the securities placed in his possession, holding them in trust for the beneficiary and other claimants, if there were such, and the indebtedness to the beneficiary was a lien upon them. But the beneficiary, having a lien upon them for the payment of the indebtedness to her, had a right to have that lien enforced, and to make the State Treasurer, as such custodian, a party to the action. Kruger vs. Life & Annuity Ass'n (Supreme Court of Cali- fornia), 39 Pac. Rep., 213. MEDICAL DIRECTOB. POWERS OF MEDICAL DIRECTOR.— Where the rules of a mutual insurance company provide that "the medical director shall examine all applications and report upon their acceptance or rejection, and his decision shall be final," the medical director is the sole judge as to whether the applicant's health is such as to make him a fit subject for insurance, and in the absence of fraud or collusion his decision is final and cannot be reviewed by a court or jury. Redmond vs. Canadian Mutual Aid Association, supra, 18 MEMBERS. 4t^ MEMBERS. RIGHTS UP MEMBERS IN DISSOLUTION OF MUTUAL ENDOWMENT ASSOCIATION.-Where a mutual endowment association, whose policies are to be paid from a fund raised by assessments on the holders of policies, is dissolved under general statute ISTS, the maturing of its immatured policies is arrested, and the right of holders thereof is to share, as members of the association, in its assets, after its liabilities are discharged. Where the policies are made payable in the event that the bene- ficiaries arrive at a specified age, they do not mature, bo as to be debts of the association, until the beneficiaries reach that age, even though, before them, all dues and assessments that can be required of the holders have been paid. Gray vs. Merriman (Supreme Court of Minnesota), 57 N. W. Rep., 463. RIGHTS OP MEMBER OP MUTUAL BENEFIT INSUR- ANCE ASSOCIATION.— The constitution of an endowment society having three classes of memberships, in which the assess- ments were fixed, was amended by creating a fourth class in which assessments were graduated according to age, the amend- ment providing that those already members should be admitted to the fourth class on a physician's certificate approved by the med- ical examiner-in-ohief, and the payment of fees, and that "in these cases the limit as to age shall not apply." A member previous to the amendment, after the amendment was adopted forwarded the certificate of a competent physician, with the feefe, for admission to the fourth class; but the medical examiner arbi- trarily refused to approve it, on account of the member's age. It w€is held that the beneficiaries were entitled to recover on his certificate as a member of the fourth class, although during bis life he made no formal tender of assessment dues. Sourwine v.s. Sup. Lodge K. of P. of the World (Appellate Court of Indiana), 40 N. E. Rep., 646. BENEFIT SOCIETLES: RIGHTS OF MEMBERS AND BENEFICIARIES.— The constitution of a benefit society pro- vided that "members who fail to pay their dues within two meet- ings after general meeting shall be pxcluded from all benefits until their dues are paid at the next last pay night. Before this time such members have no claim on the society. * * * Mem- bers in arrears, and their families, are entitled only to burial ground, i. e., grave- no other expenses. Members in arrears for six months shall be stricken from the rolls." The court held that. on the death of a mem"ber in arrears for dues, but not for a period of six months, his widow, as beneficiary, was not entitled to recover the death fund provided by such constitution. Morris vs. Krakauer, Y. M. Assn. (Sup. Ct. App. Div., 1st De.pt.), 37 N. Y. S. Reporter, 948. 420 INDICATOR'S DIGEST. LIFE INSURANCE— NOTICE OF WITHDRAWAL.— Where the by-laws of a life insurance association provide that a member may at any time withdraw from the association by giving notice in writing of such intention to do so, and paying all assessments and dues to date of notice. The giving of such notice is a bar to recovery under the certificate, though the association had never assented to the notice or erased the member's name from its books, and all assjssments and dues were paid to the date of tht death of th« insured. Cramer vs. Masonic Life Association of Western New York (Supreme Court of New York), 9 N. Y. Supp., 356. ASSESSMENT ASSOCIATION.— When the officials of an association have been guilty of illegal acts equity will interfere to protect the rights of the members, though no such right of inter- ference is given by the act under which the association is organ- ized, and the assets will be protected by injunction if necessary. An association which depends largely for its success upon the lapsing of a large share of its membership is not within the meaning of the New Jersey statute, providing for the organiza- tion of benevolent institutions, and a receiver will be appointed by the court to wind up its afifairs and distribute the assets among its members. ■Peltz vs. Supreme Chamber of the Order of Financial Union (Court of Chancery of New Jersey), 19 At. Rep., 668. APPEAL FROM DECISION OF MUTUAL BENEFIT SO- CIETY. — A by-law of a mutual benefit association may provide that a member claiming benefits must prosecute an appeal fi-om an adverse decision to the highest tribunal of the society, and he will not be held in court until he has exhausted all the remedies provided by tl^e society. But so tar as such a by-law attempts to make the fin^ decision of the society binding, so as to bar a re- sort to the courts, it is void and of no effect. Supreme Council of the Order of Chosen Friends vs. Forsiuger (Supreme Court of Indiana), 25 N. E. Rep., 129. BENEFIT SOCIETY— SUSPENSION OF SUBORDINATE LODGE FROM BENEFIT.— Where the constitution of an endow ment society provides for a certain procedure as precedent to the suspension of a subordinate lodge and its members from all share In the endowment fund for non-payment of assessments made by the supreme authorities of the society, a member of such lodge cannot be deprived of his share in the fund unless the suspension of the lodge was in accordance with such constitutional require- ments. Young vs. Grand Lodge, etc. (Supreme Ct. Penna.), 33 At. Rep., 1038. CONDITION PRECEDENT AS TO GOOD STANDING.— A party made application for membership in a mutual benefit society, agreeing to conform to and obey its laws, rules and regu- lations, or submit to the penalties provided Certificates were issued to him, entitling his wife, as beneficiary, to $3,000 insur- ance upon his life. One condition of such certificate was that he should be in good standing at the time of his death. Seven months before his death he was suspended from the society for misconduct. He MEMBERS— OCCUPATION. 421 was notified of the proceeclings against him, but did not appear to defend against the charge, and did not talie an appeal, as he was permitted to do by the rules of the society. After his sus- pension no dues were charged against him or paid by him. His ividow brought an action to recover the amount of the insurance. It was held that, as he had ceased to be a member of the society in good standing, and had not availed himself of the remedies provided by the rules of the society, nor resorted to direct legal proceedings to obtain reinstatement, there could be no recovery. Supreme Lodge K. of P. of the World vs. Wilson (Circuit Court of Appeals), liii Fed. Rep., 78^. AGREEMENT TO RECEIVE INSURANCE MONEY.— Where a member of a mutual benefit association causes a new certificate to be issued in favor of defendant under an agreement that de- fendant should receive the money, and apply it to certain pur- poses, a trust is created 'which attaches to the money as soon as it comes into defendant's hands. Hirseh vs. Auer, 29 N. X. Sup. Rep., 917. VAXIDITY OF MEMBERSHIP CERTIFICATE IN MU- TUAL BENEVOLENT SOCIETY.— In an action by the benefic- iary of an insurance certificate against a benefit society, the in- troduction of the certificate is prima facie evidence of the good standing of the deceased in the society, though )■2l^. I ■^TIERE MUTUAL IXSURANCE BEXEFIT BELONGS TO FAMILY. — A life insurance policy is not a specialty within the rule that specialties are assets belonging to the jurisdiction in which they are at the time of the owner's death. "Where the by- laws of a mutual benefit society state its object to be "to promote the welfare of all its members, and to furnish substantial aid to their families," the insurance is for the benefit of the imme- diate family of the member, though by its terms the policy is payable to his "legal representative," and though he stated in his application that the policy was for the benefit of his estate. Sulz vs. Mutual Reserve Fund Life Ass'n (Supreme Court. Special Term, Kings County), 28 N. Y. Supp., 263, 424 INDICATOR'S DIGEST. MASSACHUSETTS POLICY CONSTRUED IN GEORGIA. —The law of Massachusetts provided at the time a life policy was issued: That no company shall make any stipulation in its iu- surance contracts concerning the court of Jurisdiction wherein any suit thereon may be brougiat, nor shall limit the time within wliich such suit may be comm.enced to less than two years after the cause of action accrues, and any such condition or stipulation shall be void. The Supreme Court of Georgia held that, a stipu- lation in a policy issued in the former State limiting the time within which suit may be commenced thereon to one year from the termination of the life of the member to whom it is issued is void, and suit may be brought thereon at any time within the period allowed by the statute of limitations. Mass. Ben. Life Ass'n vs. Hale, 23 S. E. Reporter, 849. INTEIRPRiETAJTION OP MiUTUAL BENEFIT INSURANCE POLICY. — ^A policy in a mutual benefit society provided that the society would pay the sum of $5,000 from the mortuary fund, as hereinafter provided, and that all claims on the mortuary fund arising between stated intervals of assessment, should be paid pro rata out of the next succeeding mortuary caW, but not to exceed the face of each certificate. There was no ambiguity, so as to render applicable the rule that a policy should be construed most strongly against the insurer, and thereby impose an absolute liability on the society of $5,000, but It was liable only for the pro rata part of the mortuary fund where it appeared that the reserve fund was not available. Gyllenhammer vs. Home Ben. Soc. of N. Y. (Common Pleas of N. Y. City and County), 24 N. Y. Supp., 930. MUTUAL BENEFIT INSURANCE— CHANGING TERMS OF POLICY.— Where a life insurance company issued a policy payable in 11 years, if the assured should live that time, it can- not, by afterwards adopting a by-law that all persons holding such policies who should live the period of expectation, and be- come totally disabled, should be entitled to receive yearly one- tenth of the amount of their policies, affect the right of assured to collect the amount of his policy as provided therein, though In his application he bad agreed to accept the policy subject to such regulations of the company as then existed, or might there- after be adopted. "VVeiler vs. Equit. Aid Union (Sup. Ct, 4th Dept.), 36 N. Y. S. Reporter, 734. PREMIUMS. PAYMENT OP PREMIUMS, CLAIMS REGARDING— Where the insurer at no time prior to the death of the insured claimed that premiums were unpaid, or claimed a forfeiture of the policy for such reason, but tacitly admitted payment to its PREMIUMS. 42s agent by directing insured to send all further payments to the home office, it cannot after death of insured claim that the pay- ments to the agent prior to the notice to make them direcr"were unauthorized. Nat. Life Maturity Ins. Co. vs. Whitacre (App. Ct. Ind.) 43 N. E. Reporter, 905. PAYMENT OF PREJIIUJIS BY MAIL.-Where an insur- ance company authorizes payment of premium hy mail, the pay- ment is made when the letter containing the remittance is de- posited in the postoffice. Primeau vs. National Life Ass'n (Supreme Ckjurt of New York, General Term, First Department), 28 N. Y. Supp.. 794. WHEN PREMIUM IS PAID BY TRANSMISSION BY JIAIL. — When an insurance company authorizes an insured to send a premium by mail, such premium is paid when the letter containing it is deposited in the postoffice addressed to the com- pany. JleCluskey vs. National Life Assn. of Hartford (Supreme Court. General Term, First Department), 28 N. Y. Supp., 931. ADMISSION OF INSURED ADMISSIBLE AGAINST BEN- EFICIARY.— Where a policy taken out by insured on his life, and payable to his wife, contains a provision that he may change the beneflciai-y at will, his admission in regard to a forfeiture of the policy for non-payment of premiums is admissible against the wife, in an action brought by her to recover on the policy. Fidelity Mut. Life Ass'n vs. Winn (Supreme Ct. Tenn.), 33 S. W. Reporter, 1045. PAYMENT OF PREMIUM ON LIFE POLICY.— A life insur- ance association employed an agent who, among other applica- tions, sent in his own. The agent's accounts were in a loose way, and it was difficult to tell on which side was the balance; not long before the death of the assmed the association sent him back some money which it claimed was an over-payment. After the death of the a.ssured the association cannot, under the cir- cumstances, be heard to say that the dues, fees, and assessments had not been paid. Bankers' and Merchants' Mut. Life Ass'n vs. Stapp (Supreme Court of Texas), 14 S. AV. Rep., 1&8. PAY'MENT OF LIFE INSURANCE PREMIUMS.— In a contract of life insurance the premiums were paid monthly. Upon the failure to make any monthly payment the insured had the right to be reinstated within sixty days after such default upon paying the proper premiums. Such a default having occurred and more than sixty days having elapsed, thecircumstancesbeingsuch tiat the court charged the jury that the company had waive! its objection to the lapse of time, the company having consented to reinstate the insured. This instruction was not excepted to, and hence, being taken as the law of the case, the insured had the right to avail himself of such consent of the company, and to be reinstated upon the payment of the premium then due, although the company demanded payment of the premium for a succeed- ing month not yet due. Coburn vs Life Indemnity & Investment Co. (Supreme Court of Minn.), 54 N. W. Rep., 373, Feb. 24, 1893. 426 INDICATOR'S DIGEST. CONDITIONS OP ACCEiPTANCB O'F OVBRiDUB LIFE P'RE- MIUM.— There was a failure to pay a premium due on a life insurance policy, and the policy provided that such a failure should render it void. The assured tendered the premium which the company accepted on condition that the assured was of tem- perate habits and in as good health as when the policy was is- sued. Such payments and receipt constituted a new contract, and it appearing that the assured was neither temperate nor in as good health as when originally assured, the policy remained void. Ronald vs. Mutual Reserve Fund Life Assn. (Supreme Court of New York), 10 N. Y. Sup., 632. PROCEEDS. WHERE THE STATUTE UNDER WHICH A MUTUAL BENEFIT society is organized provides that money arising from Insurance shall be exempt from execution, and shall not be appro- priated in payment of any debt of the member, the 'Court of Appeals of New York holds, that the proceeds of a policy payable to the member's "legal representatives" is not liable for the mem- ber's debts. Sulz vs. Mutual Reserve Fund Life Ass'n, 40 N. B. Rep., 242. DISPOSITION OF PROCEEDS OF MUTUAL BENEFIT IN- SURANCE. — ^The constitution and by-laws of a mutual benefit association provided for the payment of a certain sum, on a member's death, "to his family or dependents, as such member may have directed;" that a member might at any time change his designation of a benefiiciary; and that "in the event of the death of the beneficiary of a member, and no change of bene- ficiary shall have been made as hereinbefore provided, the share of such deceased beneficiary shall be paid to his or her legal representative." It was held, that the provisions in regard to payment to the representative of a deceased beneficiary merely designated the person to whom the association might make pay- ment in discharging its liability, and where a beneficiary died before the member of the association, and no new designation was made, the next of kin of the beneficiary are not entitled to the insurance, but it will go to the family or dependents of the member, as provided by the constitution. Somon vs. O'Brien (Supreme Court, General Term, First De- partment), 33 N. Y. Sup. Rep., 815. . DISTRIBUTIQiN OF PROCEEDS OF AID ASSOCIATION.— A benefit society doing business in Pennsylvania, but organized in Illinois under a law that associations which are intended to benefit widows, orphans, heirs, and devisees of deceased members thereof, and where no annual dues or premiums are required, and, where the members shall receive no money as praflts and Otherwise, shall not be deemed insurance companies, is not an PROCEEDS-PROOFS OF DEATH. 427 insurance company imuc-i the laws of Pennsylvania, nor are its certificates, issued in Illinois, to members in Pennsylvania, con- tracts of insurance. Where such certificate recites that at the memher's death, his devisees, or if there be no will, his heirs at law are to receive the fund named in the certificate, the word heirs means the distributees under the interstate law of the member's domicile. Under such certificate the member has simply power to devise to a person of the class for whose relief the society was organized, but such power does not create any property in the member, and the certificate does not therefore settle property free from his debts. An executor, not being of the class of beneficiaries named, is not made a devisee by reason of his duty to collect the assets of an estate to pay its debts, since the certificate, being for the benefit of the class named, places the fund beyond the reach of creditors. N. W. Masonic Aid Ass'n of Chicago vs. Jones (Supreme Court of Penn.l, 26 At. Rep., 253. PROOFS OF DEATH. WHAT IS NOT PROOF OF DEATH.— Evidence that in- sured, a steward on a ship, went on shore at a port, that the hat which he had on was found in his cabin, and that since then nothing had been heard from him for three and a half years, is insufficient to prove his death. Straub vs. Grand Lodge. A. O. V. W.. N. T. (Sup. Ct, 1st Dept.), "~ X. T. S. Reporter, 750. WHERE THE LAWS OF A BENEFIT SOCIETY PROVIDE that "further proof may be required if deemed necessary by the supreme commander." the Supreme Court of Michigan holds that, the society cannot demand further proof of loss, after the usual proof has been made, unless the supreme commander personally "deems" it necessary. Tessman vs. Supreme Commandery of The United Fi-iends of Michigan. 61 X. W. Rep.. 261. THE APPELLATE COURT OF INDL\N.4 holds, that where the constitution and by-laws of a mutual benefit association do not require the beneficiary to make proofs of death of a member, the failure of the subordinate lodge to make a report of the cause of the death of a member, as required by the constitution and by- laws, does not affect the right of the beneficiary to recover. Agents employed by benevolent insurance societies to solicit in- surance have power to waive stipulations in the benefit certificate which do not relate to the by-laws. Provisions in the by-laws that a person obtaining membership by false statements as to his age shall be expelled, and forfeit all benefits, relate to proceed- ings which may be taken during his lifetime, and do not prevent the beneficiary from recovering after his death. Supreme Council of Catholic Benevolent Legion vs. Boyle, 37 X. E. Rep., 1105. 428 INDICATOR'S DIGEST. MUTUAL BENEFIT INSURANCE— PROOF OF LOSS.- Where a mutual benefit association had expressly waived proof of death, it is an unnecessary and unreasonable requirement to demand that the beneficiary should supply such proof in the form prescribed by the by-laws of the association, with manv of the provisions of which she could not comply. Fillmore vs. Great Camp of Maccabees (Sup. Ct. Mich.), 66 N. W. Reporter. 675. PROOFS OF DEATH IN LIFE INSURANCE.— In an action on a life insiurance policy it appeared that the policy lapsed on February 9, 1890, but the insured renewed the policy on the filing of a warranty in writing that he was in sound health. Tlie in- sured died May 7, 1890, and the proofs of loss first served stated tliat his last illness was from February 6 until May 9, 1890. Such liroofs were not conclusive, but the beneficiary could show that the statements therein were erroneous or inadvertently made. Spencer vs. Citizens' Mut. Life Ins. Ass'n (Superior Court of New York City), 23 N. Y. Sup., 179. WAIVER (W PROOFS OF LOSS.^Where application is made to the proper officer of a mutual benefit association for Wanks on which to make proofs of loss, and the officer replies that it would be useless to submit the proofs, as the claim would not be allowed, the requirement of proof of loss is thereby waived. Hutchinson vs. Supreme Tent of Knights of Maccabees of the World (Supreme Court of New York), 22 N. Y. Supp., 801. WAIVER OF PROOFS OF LOSS.— A policy issued by an assessment life insurance company may be assigned on the com- pany's refusal to pay, or furnish blanks, as required by the policy, witli which to make proof of loss, nothing in the policy prohibit- ing such assignment. Where a policy issued by an assessment life insurance company provides that "proofs must be completed on blanks furnished by the union," the refusal to furnish blanks, on application, on the ground that the policy is void because a premium has not been paid, will excuse failure to make proof of loss. Meagher vs. Life Union (Supreme Court of New York), 20 N. Y. Sup., 247. WAIVER OE PROOFS UNDER LIFE POLICY.- The evi- dence showed that the objections of the insurer to the proofs of loss furnished were such as it would be hard to attribute to it any other motive than the fraudulent purpose of allowing the limitation to expire; that ini addition to frequent letters written by the company, demanding purely formal changes in the proofs, without intimating dissatisfaction with the claim, the vice-presi- dent of the company stated to the beneficiary's agent that the beneficiary had the blanks necessary to be filled up, and if they were, intelligently filled he had no doubt that the matter would be aiTanged. The Court of Civil Appeals of Texas held that the evidence was sufficient to establish a waiver of the condition of the policy. Mut. Res. Fund vs. Tolbert, 33 S. W. Reporter, 295. . RECEIVER— REINSTATEMENT. 429 RECEIVER. RECEI^'ER FOR SOLVENT BENEFICIAL, ASSESSMENT ASSOCIATION. — A court of equity has no jurisdiction to appoint a receiver of aud dissolve a solvent beneficial assessment asso- ciation on the ground of mismanagement, fraud, and the abuse of corporate powers. Mason vs. Supreme Court of Equitable League of America of Baltimore City (Court of Appeals of Maryland), 27 At. Rep., 171. APPOINTMENT OF RECEIVER ON APPLICATION BY STl)CIvHOLDER. — In a proceeding by policy-holders to have a receiver appointed for a mutual benefit association, a complaint alleging that It Is insolvent, that Its assets amount to $1,000,000; that its officers have no reason to suspect, or means of ascertain- ing, that he was afflicted with a latent disease. Endowment Rank, Knights of Pyth.ias, vs. Rosenfield (Su- preme Court of Tennessee), 22 S. W. Rep., 204. APPOINTMENT OF RECEIVER ON APPLICATION BY STOCKHOLDER.— In a proceeding by policy-holders to have a receiver appointed for a mutual benefit association, a complaint alleging that it is Insolvent; that its assets amount to $1,000,000; that its officers have converted $750,000 to their own use; placed them in a bank under their contrc!, without security, save the money so deposited; that the money due the corporation Irom branches in the various States is only secured by the indemnity of such irresponsible bank; that the chief officer, who has misap- propriated the funds, and whose duty it is to call meetings of the board of managers, fails to do so, and refuses to allow the proceedings to be published as required; and that a large sum win fall due on certain certificates within about six months from the filing of the complaint— states ample cause for the appoint- ment of a receiver. Supreme Sitting of the' Order of Iron Hall vs. Baker (Su- preme Court of Indiana), 33 N. E. Rep., 112S. REINSTATEMENT. REINSTATING MEMIBER OF MUTUAL LIFE ASSOCIA- TION.— A reinstatement by a mutual life Insurance company of a member whose policy had lapsed on his payment of the back dues, on condition that he is now, and has been during the past twelve months In continuous good health and free from all dis- ease Infirmity or weakness, is not vitiated by slight Illness, with- 430 INDiICaTOR'S DlGfiST. in such twelve months, of a temporary nature, which indicates no vice in his constitution, and from which he had fully recov- ered at the time of his reinstatement, but the illness must have been such that he would not have been received if he had been an original applicant for insurance. French vs. Mutual Reserve Fund Life Ass'n (Supreme Court of North Carolina), 16 S. E. Rep., 427. REINSTATEMENT — MISREPRESENTATIONS.— A certifi- cate for reinstatement reciting that insured is in good health is not such a misrepresentation as will avoid the policy, though insured at the time had a cold and died a few weeks later of cancer, the exact nature of the latter disease not being discov- ered until just before death. Seiverts vs. Nat. Ben. Ass'n (Supreme Court of Iowa), 64 N. W. Rep., 671. REINSTATEMENT OF POLICY.— Where the defense in an action on a life insurance policy is that the policy had lapsed for non-payment of premiums, and that the insured had procured It to be reinstated by representations as to his health, which he knew at the time were false, the company must prove that the insured knew such representations to be false. Patten vs. United Life Ins. Ass'n (Supreme Court of New York), 24 N. Y. Supp., 269. RESTORATION OF SUSPENDED MEMBER OF MUTUAL BENEFIT ASSOCIATION.— Where a member of a mutual benefit association is suspended for non-payment of assessments, and neglects during his life time to secure his reinstatement in ac- cordance with the terms of his certificate and the provisions of the order, his restoration to membership canno^ be effected after his aeatn by the paying of the sum due from him to the company at the time of his de^h, though the period within which if alive, he could have secured his reinstatement, haa not yet ex- pired. Modern Woodmen of America vs. Jameson (Supreme Court of Kansas), 31 Pac. Rep., 734. REINSTATEMENT OF SUSPENDED MEMBER OF FRA- TERNAL SOCIETY.— The rules of a society provided that on death of a member in "good standing" the order should pay to his beneficiary a certain endowment; that a person should be deemed in good standing, for the purpose of claiming endowment, who at the time of his death was not indebted to his council; that failure to pay an assessment within a certain time should operate as a suspension of the member; and that no suspended person should, during suspension, have any claim of any description whatever against his council or the order, nor be entitled to any of the privileges of membership. Held, that the endowment could be recovered where the deceased member was not indebted to his council, though he liad not had his suspension removed for failure to pay assessments within the prescribed time. Though the rules of the order provide that mere payment of back assessments shall not affect a reinstatement, this does not prevent payment thereof, so as to entitle the beneficiary to the endowment. In the ab- sence of any rule to the contrary, the payment may be made by the beneficiary. O'Grady vs. Knights of Columbus (Supreme Court of Errors of Connecticut), 25 At. Rep., 111. REINSTATEMENT— reinsurance;. 431 REMEDY FOR REIXSTATEMEXT.— Where a polioy in a mutual lite insurance company has been forfeited by failure to pay the premiums upon the day fixed, and the holder has the right, upon certain terms, which he is able and willing to fulfill, to be relieved from his default, his remedy against the company is not by mandamus, but in a court of equity, for relief in the natiu'e of specific performance. Bradbury vs. Mut. Reserve Fund Life Ass'n (Court of Chan- cery of Xew .TersoyK 31 At. Rep.. TT.i. IX THE CASE OF TAYLOR VS. GRAND LODGE OP AX- CIEXT ORDER OF T-XITED WORKMEX, of the State of Xew York, the opinion of Mr. Justice Ward at Circuit, is as follows: After a mutual benefit certificate had bcsn forfeited the holder applied for reinstatement. The application was objected to as irregular, and a second application was made, and was accepted on the condition that the applicant comply with the conditions of membersihip. At the first meeting thereafter he paid the fees entitling him to full membership, but only partial membership was conferred at that meeting. In accordance with the laws of the association no beneficiary certificate was issued, though he had been required to sigu an application; but he was notified to attend at the next meeting, when full membership would be con- ferred. The application for the benefieiai-y certificate stated that none should be issued until full membership should be conferred. At the time of the next meeting the applicant was too ill to at- tend, and died a few days later. Held, that none of the condi- tions on which beneficiary certificates were issued were waived by the association. (Supreme Court, General Term, Fifth Dept), 29 N. Y. Sup. Rep., 773. REINSURAXCE. COX.^TRI'CTION' OF REIXSURAXCE COXTRACT.— A policy of a thousand dollars was issued upon the life of a person who subsequently secured from the company another policy of three thmisand dollars, the intention being as expressed by the ap- plication and the entire transaction to be to make the total amount of insurance in force three thousand dollars, but the original imlicy of one thousand dollars was not taken up or can- celled, .^fter the death of the insured, however, a recovery of four thousand dollar.'^ will not be permitted, as the entire proceed- ing shows that the evident intent of both parties was to supersede the original policy by the second policy. Wheeler vs. Odd Fellows" Mut, Aid and Ace. Ass'n (Supreme Court of Minnesota), 47 X. W. Rep., 148. 43-2 INDiCATOk'S £)IGEST. EEJECTION". PRIOR REJECTION OF INSURED— In an action on a life policy, where the defense was breach of the warranty that the Insured had never been rejected by any other company, it was shown that the agent who took the application and the medical examiner of the company, who was also examiner for another company, had told the vice-president of the Insuring company that the insured had an application then pending in such other company, that he was a good risk, and that they would transfer the risk to the insuring company; that, in order to do this the medical examiner rejected "Insured for the other company, and accepted him for the insuring company. The court held that the officers of insurer having issued the policy with full knowl- edge of the facts, it was thereby prevented from setting up the rejection as a breach of the conditions of the policy. Koenlg vs. United States Life Ins. Ass'n (Sup. Ct., N. Y. County), 3S N. Y. S. Reporter, 506. RELATIONSHIP. CONSTRUCTION OF TERMS OP RELATIONSHIP.— When the words "related to," "relations" or "next to kin" are used, their legal sense is restricted to relations by blood and is never extended to connections by marriage. Supreme Council of the Order o£ Chosen Friends vs. Bennett (Court of Chancery of New Jersey), 19 At. Rep., 785. FRATERNAL INSURANCE.— The by-laws of a charitable association, organized to establish a relief fund for the benefit of its members, provided that on satisfactory proof of a member's death tlie person or persons designated by such member "related to" or dependent upon him should be entitled to the sum named in his certificate of membership. The phrase "related to" prop- erly includes the wife of a member's grand nephew, though she was neither related to the member by blood, nor dependent upon him. Bennett vs. Van Riper (Court of Errors and Appeals of New Jersey), 22 At. Rep., 1055. RELIEF— REPRESENTATIONS. 433 RELIEF. GIFT FOR RELIEF OF BENEVOLENT SOCIETIES.— Where a number of persons belonging to a benevolent society were iiilled and injured by a cyclone, and a call was made on tbe different brandies of the society for financial aid for the sufferers. The money sent to the society in response to the call was given in trust, to be distributed among the sufferers in proportion to their necessities, and the society had no discretion as to how mucli should be distributed, but was bound to distribute the whole sum. Supreme Lodge Knights and Ladies of Honor vs. Owens (Court of Appeals of Kentucky), 22 S. W. Rep., 327. REPRESEXTATIOiSr. ESTOPPEL OF INSURANCE COMPANY TO CLAIJI POL- ICY VOID. — Where a life insurance company issues a policy knowing that answers in the application on which it is issued are false, it is estopped to claim that the policy is void because of such falsity. Mutual Reserve Fund Life Assn. vs. Sullivan (Court of Civil Appeals of Texas), 29 S. W. Rep., 190. UABILITY FOR FRAUDULENT REPRESENTATIONS BY INSURANCE COMPANY. — An action for fraudulent representa- tions by an insurance company, inducing a settlement for a death claim, may be maintained without returning the sum received on such settlement, since the defrauded party has the right to affirm the settlement and recover the damages sustained by the fraud. Wabash Val. Protective Union of Crawfordsville vs. James (Appellate Court of Indiana), 25 N. E. Rep., 919. FALSE REPRESENTATIONS IN APPLICATION FOR LIFE INSURANCE. — An applicant for insurance stipulated that his answers and statements should be taken as warranties, and the certificate of insurance contained a clause that it should be null and void if any of the statements in the application were false. The applicant falsely stated in his application that he had never liad piles. There could be no recovery on the certificate, although his death did not result from the piles, and although he was ignorant that he had them. Baumsart vsi. Modern Woodmen of America (Supreme Court of Wis.), .55 N. W. Rep., 713. 434 INDICATOR'S DlGESf. EFFECT OF MISSTATEMENT ON LIFE INSURANCE.— A statute, such as that of Pennsylvania, providing that no untrue statement in an application for a life insurance policy, if made in good faith, shall work a forfeiture or he a ground of defense, unless ■ it relate to a matter material to the risk, is of binding effect, though assured on his application expressly agreed that every statement shall be material, and that any misstatement shall avoid the policy, notwithstanding any law to the contrary. Where a life insurance policy is issued payable to the wife and children of assured, vdth a reversion to him in case of their prior death, and suit is brought on the policy by the wife and children, a statement made by the insured subsequent to the issue of the policy is not admissible to impeach the good faith of statements in his application. Hermany vs. Fidelity Mutual Life Ass'n (Supreme Court of Pennsylvania), 24 At. Rep., 1064. BFiFECrr OF FiAiLS® REPBEJSEINiTATIONS.— The relation between the supreme council of the Order of Chosen Friends and a beneficiary memtoer to whom, under its relief fund laws, a re- lief fund certificate has been issued. Is a contractual relation, and, by the relief fund laws of the order, persons engaged in certain occupations are excluded from beneficial membership. Among the persons so excluded are retail liquor dealers and bar- tenders. The deceased, in his apiplioation for a relief fund cer- tificate, represented that his occupation was that of a printer, and his business was that of a pressman, and in his statement to the medical examiner he represented that he was not engaged in the manufacture or sale of wine, beer or distilled liquors. In fact, his occupation was, at the time of his making the applica- tion, and for several years before had been, that of a bartender. Held, that the contract of the order to pay benefits was avoided by the fallse and fraudulent representation by which it was ob- tained. 1 Holland vs. Supreme Counoil of the Order of Chosen Friends (Supreme Court of New Jersey), 25 At. Rep., 357. KESERVE FUND. DISTRIBUTION OF RESERVE FUND ON DISSOLUTION. —The constitution of a mutual benefit life association provided that its funds, which were derived wholly from assessments, should be divided into two portions, designated respectively as the "death fund," for the payment of death claims, and the "reserve fund." There wag no provision in the constitution as to what disposition of the reserve fund should be made in case of a dissolution of the association, but there was a provision that, in case any unforeseen deficiency In the fund should occur, the reserve fund might be used for paying death claims. Upon the dissolution of the association the reserve fund was distributable only among the holders of unforfeited certificates of membership RESERVE— SICK BENEFITS. 435 at the time of the dissolution, but was liable for the payment of death claims, for which the "death fund" was insufficient at the time of dissolution, ratably with all other creditors of the associa- tion. In re Equitable Reserve Fund Life Ass'n (Supreme Court of New York), 16 X. Y. Supp.. 80. DISTRIBUTIOX OF RESERVE FUND.— The by-laws of a mutual benefit association provided that assessments should be applied to create a "mortuary and benefit fund" and a "reserve fund." Death claims were payable out of the mortuary and bene- fit fund. The reserve fund was declared to be "for the exclusive use and benefit of members" of the association, but that it "may be" used to pay death claims in excess of the experience table of mortality, and that after it should have reached a certain sum the accumulations should be divided among the members, or applied to death claims, "as may be determined by a Tote of the members." It was held that, on dissolution of the association, the reserve fimd was distributable exclusively among holders of certificates in force, and that death claimants were not entitled to share therein. People vs. Life Union (Supreme Court, General Term, First Dest), 31 N. Y. S. Rep., 1120. RESERVE AND DEATH FUNDS IN CO-OPERATIVE COMPANY. — A co-operative insurance company issued "life re- serve" and "life" certificates. A reserve fund was created by as- sessments on holders of reserve certificates only; a death fund by equal assessments on all of the members. The constitution provided also that |10,000 should be transferred from the re- serve fund to the death fund, and be Invested for the purpose of paying death claims only; that only holders of reserve fund certificates should share in the death fund. In a proceeding to dissolve the company it was found that the reserve fund em- braced all of the property, and that there were death claimants under both certificates. The Supreme Court, 5th department, of New' York, held that the $10,000 would be transferred to the death fund by act of law, and all claimants would share equally therein. People vs. Life & Reserve Fund Assn. 36 N. Y. S. Reporter, 1059. SICK BENEFITS. SIOK BBNiEJFITS INCLUDE LUNACY.— Lunacy is disability under the contract of a mutual benefit association that agrees to pay beneiflts to "every member who, through sickness or other disability, is unable to follow his usual business." MoOullough vs. Expressman's Mutual Benefit Association (Supreme Court of Pennsylvania), 19 At. Rep., 355. 436 INDICATOR'S DIGEST. AMENDMENT TO ACTION FOR SICK BENEFITS— In an action against an insurance company for sicli benefits, brought Defore a justice on written pleadings, whert the society denies that he was sick and unable to work, and denies that he is entitled to any sick benefits from the society, may, after he has rested, no surprise being claimed, amend by alleging that he obtained ad- mission to the society by false and fraudulent representations. Runge vs. Esan (Common Pleas of New York City and Coun- ty, General Term), 26 N. Y. Supp., 33. BBNEIFICIAL SOCIETIES--SIOK DEINBPITS— Under the provisions of the by-laws of a beneficial society that no sick bene- fits shall be granted to "resident brothers" for more than a week prior to application for the same, and an "absent brother" claim- ing benefits must send a statement of Lis case, attested by the sachem of a tribe near the place where he may be, one out of the jurisdiction of the tribe or lodge to which he belongs is an "absent brother," without regard to the place of his legal resi- dence. Walsh vs. CoBumnes Tribe No. 14, Imperial Order of Red Men (Sup. Court of California), 41 Pac. Rep., 418. WeO IS ENTlTiLlED TO SIOK BENEFITS.— 'In an action against a lodge of Odd Fellows to recover a sick benefit, the com- plaint alleged that, in the government of subordinate lodges of the Independent Order of Odd Fellows, there are various appel- late tribunals to review the action of subordinate lodges in failing to pay sick benefits, and that the meimber upon the failure of the lodge to pay him sick benefits, invoked the jurisdiction of said tribunals, and litigated his claim before them, and that they adjudged that he was not entitled to his claim, or any part thereof. Held, that by this allegation, the submission to this tribunal was a submission to arbitration, and its decision and award, which in the absence of fraud or mistake, is binding on the member. Robinson vs. Templar Lodge I. 0. O. F. (Supreme Court of California), 31 Pac. Rep., 610. SUICIDE. CONSTRUCTION OF INCONTESTADLE CLAUSE.— One clause in the printed policy for life Insurance provided that: "Death of the member by his own hand, whether voluntary or involuntary, sane or insane, is not a risk assumed by the associa- tion in this contract (except return of premiums, with interest, etc.); but the board of directors may in writing waive the condi- tions." Written in ink across the face of the policy, and forming a part of it, was the following: '^Atter five years from the date of this certificate, it is incontestable for any cause, except non- payment of dues or mortuary assessments, the age of the appli- cant being correctly stated in the application for the certificate." More than five years after the date of the certificate the insured SUICIDE— SUSPENSION. 437 came to his death by his own hand. The Supreme Court of Minne- sota held that the incontestable clause applied, that the company had waived the condition and that it was liable for the full amount of the policy. ilarecl£ vs. JIut. Reserve Fund Life Ass'n, 64 N. W. Rep., 68. PRESUMPTION OF SUICIDE.— Evidence that a person went to bed as usual, and in the morning was found drowned in a cistern, the opening of which was 15 by 20 inches, raises a pre- sumption of suicide, so as to defeat recovery on a policy of life insurance excepting risks arising from suicide. Johns vs. Northwestern Mutual Relief Association (Supreme Court of Wisconsin), 63 N. W. Rep., 276. SUICIDE FORFEITS POLICY.— Under a policy which pro- vides that "death of the member by his own hand" is not a risli assumed, and that amount recoverable in such case shall be restricted to the assessments paid in and interest on same at 6 per cent, the beneficiary cannot recover more than the amount of such assessments with interest, where the assured shot himself, and eight davs later died from the effects of the wound thus in- flicted. Thommen vs. Jewelers' & Tradesmen's Co. (N. Y. City Ct.), 37 N. Y. S. Reporter, 222. STIPULATION AGAINST SUICIDE.— A life insurance com- pany may lawfully stipulate against liability for the death of insured by his own hand, whether sane or insane. But. where on the face of the policy it is provided, that if it should continue in force for five years, it should thereafter be incontestable for any cause except the non-payment of dues, and on the second page, among the provisions, requirements and benefits, referred to as part of the contract, appeared a clause that if insured died by his own hand, whether voluntarily or involuntarily, sane or insane, the company would not be liable, the Court of Civil Appeals of Texas held that suiciae by insured, after the policy had been in force five years, would not relieve the company from its liability. Mutual Reserve Fund Life Ins. Ass'n vs. Payne, 32 S. W. Rep , 1063. SUSPENSION. SUSPENSION OF SUBORDINATE LODGE OF FRA- TERNAL INSURANCE SOCIETY.— Where the laws of a State organization of a fraternal insurance society provide that upon the suspension of a subordinate organization, all the members of the latter should be suspended unless they, applied to the former for reinstatement, and further provided that the State organization should not be responsible for negligence of the subordinate or- ganizations in serving notices of assessments or suspensions, one who joins the organization is bound by notice of the provisions of 438 INDICATOR'S DIGEST. Its laws, and the suspension of tlie subordinate lodge of ■which he is a member, without notice to him, will, unless he applies for reinstatement within the time limited, render his insurance void. Peet vs. Maccabees (Supreme Court of Michigan), 47 N. W. Rep., 121. BENEFIT SOCIETY— SUSPENSION OF SUBOEDINATE LODGE FROM BENEFIT.— Where the constitution of an endow- ment Society provides for a certain procedure as precedent to the suspension of a subordinate lodge and its members from all share in the endowment fund for non-payment of assessments made by the supreme authorities of the society, a member of such lodge cannot be deprived of his share in the fund unless the suspension of the lodge was in accordance with such constitutional require- ments. Young vs. Grand Lodge, etc. (Supreme Ct. Penna.), 33 At. Rep., 1038. SUSPENSION OF MEMBER FROM BENEFIT ASSOCI> • TION.— As in all other cases, forfeiture of the insurance provided by mutual benefit association is not favored by the courts. They, in construing the conditions of membership when a forfeiture Is claimed, will preserve, if possible, the equitable rights of the holder of the certificate of membership. Where the by-laws of a mutual benefit life association provide that if a member fails to pay an assessment before the first day of the following month ajfter he receives notice thereof, he shall stand suspended, and during his suspension his benefit certificate shall be void, and that the head clerk of such association shall mall to such member a notice of his suspension, informing him what it is necessary for Mm to do to become reinstated, if, after the non-payment of such assessment, the head clerk failed to mail or otherwise notify such member of his suspension, and the association makes a subse- quent assessment upon him, and thereby treats him as a member, and the local agent of the association receives payment of such assessments, alter the member is dead, from a friend who sup- posed him to be In a swoon only, and the agent in good faith reinstates such member, and the association does not return the money received upon such assessments to the beneficiary, or to the friend paying the same, the benefit certificate cannot be con- sidered void, or the member deemed suspended at the time of his death. Modem Woodmen of America vs. Jameson (Supreme Court of Kansas), 30 Pac. Rep., 460. STATUTES. BENEVOLENT SOCIETIES IN PENNSYLVANIA.— The Su- preme Court of Pennsylvania holds that because the real purpose of an act of the Legislature was to take certain Insurance busi- ness out of the control of the insurance department, while the body of the act affirmatively grants to certain corporations the STATUTES— WAIVER. 439 po-wer to make contracts with their members to pay money or benefits in the contingencies of sickness, accident, disability or death, is no ground upon which to question its validity where the legislative object, as shown by the bodv of the act, is fully ex- pressed in its title. The act of May 23, 1891 (P. L. 107) is, there- fore, constitutional. Commonwealth vs. Keystone Ben. Ass'n, 32 Atlantic Rep., 1027. WAIVER. WHO MAY WAIVE CONDITIONS.— Under a provision that no waiver shall be valid unless made in writing signed by the President or Vice-President and Secretary or Assistant Secretary, neither a solicitor of the company nor a superintendent of agen- cies, who is merely an agent working for commissions, and hold- ing no official position in the company, can waive the conditions of the policy. Bernard vs. United Life Ins. Ass'n. (City Court of New York, General Term), 32 X. T. Supp. Rep.. 223. WAH'ER OF POLICY CONDITION BY AGENT.— Where the general manager of a life insurance company who must be regarded as standing in place of the company, publicly authorizes a local agent of the company to receive the fees and insurance dues in it; such authorization will operate to waive the restriction In the application and policy under which agents were authorized to «>Ilect admission fees only and the company will be estopped from denying it. Hartford Life & Annuitv Ins. Co. vs. Hayden (Court of Ap- peals of Kentucky). 13 S. W". Rep., 585. WAIVER OF REQUIREMENTS A QUESTION FOR THE JURY. — In an action on a certificate issued by a benevolent ao- city, it appears that the constitution of the society provided that a member suspended for non-payment of assessments could, within four months, be reinstated, on payment of the assessments due, but that if an assessment remained due more than four months a member could be reinstated only by a vote of his lodge after paying all assessments due, and furnishing a health certifi- cate; that assured had often let his assessments become overdue, and then sent the money to the society, by whi is wrong and will be set aside. Cram vs. Equitable Accident Association of Binghamton, 11 N. Y. Supp., 462. AMOUNT OP ASlSESStMENT ON POLICY.— It is necessary to show, in an action on an accident insurance certificate, the amount which would have been realized upon an assessment, or that some sum would have been realized, or no recovery can be had. Martin vs. Equitable Ace. Ass'n of Binghamton (Supreme Court of New York), 9 N. Y. Sup., 16. WHERE AN ACXIDENT POLICY PROVID'ED FOR PAY- MENT of a certain sum in case of death, and that such payment shall be conditioned "upon the same being realized from assess- ments" under the laws of New York and the by-laws of the com- pany provided for assessments to pay losses where there were no funds on hand, the Supreme Court of Iowa holds, that the beneficiary can sue at law to recover the amount, and need not file a bill to compel the levy of the assessment. In such an ac- tion it is unnecessary to allege or prove funds in the treasury of the company, or that an assessment was levied or moneys realized to pay the claim. Follis vs. United States Mut. Ace. Assn., 62 N. W. Rep., 807. INSURANCE ASSESSMENTS FOR LOSSES PRIOR TO ADMISSION OF MEMBER.— A mutual assessment insurance company has no power, in the absence of a provision therefor in its policies or its rules and regulations, to charge a member with an assessment made before he became a member, or for losses arising prior to his membership, and, therefore, where the money deposited by a member to meet future assessments was sufficient to meet all lawful assessments made before his death, he would not be in default by reason of the fact that the company used the money by applying it on an assessment made prior to his becom- ing a member. Evarts vs. United States Mutual Ace. Ass'n (Supreme Court of New York), 16 N. Y. Supp., 27. 446 INDICATOR'S DIGEST. EFFECT OF FAILURE TO PAY ASSESSMENT— Wha:e a policy containing a clause to the eflfect that, if the insured should fail to pay his premium note ati the time it matured, then the policy should cease to be in force, and remain null and void dur- ing the time the note remained unpaid after maturity, but that the payment of the premium should revive the policy, and make it good from the date of the payment of the premium note. The court said: "The clause referred to ds not unreasonable. It is but fair and jugt that, vchile the insured is in default of the payment of his premium note, the company should not be liable for loss, when the pai'ties have so agreed." National Masonic Ace. Assn. vs. Burr (Supreme Court of Ne- braska), 62 N. W. Rep., 469. ASPHYXIATION. ACCIDENT INSURANCE— ASPHYXIATION.— An aceidenr tal asphyxiatioa by illuminating gas vchich escaped into the room where insured slept was not within a clause providing that the insurance did not cover injuries, fatal or otherwise, resulting from poison or anything accidentally or otherwise taken, absorbed or Inhaled. Fidelity & Casualty Co. vs. Waterman (Sup. Ct. lU.), 44 N. E. Reporter, 283. AUTOPSY. RIGHT OiF INSURANOB COMPANY TO MAKiB AUTOiPSY. — ^A provision in a policy, that "any medical adviser of the asso- ciation shall be permitted to examine the person or body of the insured, in respect to any alleged injury or cause of death, when and as often as may be required by the association, and, in case of a post-mortem examination by or on the part of insured's rep- resentatives, the association shall be given opportunity to attend and participate," only authorizes an inspection of the body while it is unburied, and does not mean that the association may have the body exhumed. A provision in a policy that the insurance shall not extend to injuries of which there is no visible mark, or cover accidental injuries or death resulting from specified causes, does not give the insurer the right to make an autopsy, on the ground that he may find something which would exempt it from payment of loss. Wehle vs. United States Mut. Aec. Ass'n (Superior Court of New York City, General Term), 31 N. Y. S. Rep., 865. BENEFICIARY— BURDEN OF PROOF. 447 BENEFICIARY. PAROL EVIDENCE AS TO BENEFICIARY.— Where a pol- icy designates the beneficiary by name, and states that she is the daughter, and it appears that he has such daughter, parol evidence is not admissible to show that the wife, bearing same name as daughter, was the beneficiary. Standard Life & Accident Ins. Co. vs. Taylor (Ct. Civ. App. Tex.), 34 S. W. Reporter. 781. RIGHTS OF BEiNBFIOIARY.^Where an insurance company admits liability on a i)olicy payable by name to decedent's daughter, if surviving, otherwise to the personal representatives, and pays the amount in court, if the evidence establishes the Identity of the daughter with the beneficiary named in the policy, the administrator has no interest in the policy, and the question of the daughter's insurable interest is immaterial. Standard Life & Accident Ins. Co. vs. Catlin (Supreme Court of Michigan), 63 N. W. Rep., 897. BURDEN OF PROOF. BURDEN OF PROOF UNDER ACCIDENT POLICY— Under a policy promising indemnity in case death results solely because of bodily Injuries effected by external, violent and accidental means, and independently of aU other causes, the burden of proof is on those claiming under the policy to show that the accident was the sole cause of death, independently of all other causes. Nat Masonic Ace. Ass'n vs. Shryock (U. S. Cir. Ct. App.) 73 Federal Reporter, 774. WHERE BURDEN OiE* PROOF IS ON THE INSURER.— In an action on an accident policy exempting the insiu-er from liabil- ity if death was caused by being on the platform of a moving railway train, or in attempting to enter a train while in motion, it appeared that the train on which deceased was a passenger stopped at a station before it reached his destination, and that soon after it started again he was found between the station plat- form and the nearest rail, with his legs crushed by the wheels of the car. The burden of proof being on the insurance company to show that deceased was killed by being on the platform or in getting on the train while in motion, it was a question for the jury whether such was the fact Nor does suoh evidence show as 448 INDICATOR'S DIGEST. a matter of law that deceased's death was the result of "a volun- tary exposure to unnecessary danger," within the meaning of such a condition in the policy. Anthony vs. Mercantile Mut. Ace. Assn. (Supreme Judicial Court of Massachusetts), 38 N. E. Rep., 973. BURDEN 0(P PROOF AS TO A NEGATIVE.— In an action on a policy for accident insurance, providing that it shall not cover, suicide, or voluntary exposure to unnecessary danger, party proving cause of death is not obliged to prove that the insured did not commit suicide or did not voluntarily expose himself to unnecessary danger. Williams vs. United States Mut. Ace. Ass'n (Supreme Court, General Term, Third Department), 31 N. Y. S. Rep., 343. BURDEN OF PROOF IN ACTION ON POLICY.— In an action on a policy insuring deceased against death from bodily injuries "through external, violent and accidental means," but limiting the recovery to $100 in case of death resulting "from injuries wantonly inflicted by the insured," where the complaint alleged that insured died from external, violent ani accidental means, and that his injuries were not wantonly inflicted by himself, and the answer, besides a general denial, set up a sep- arate defense that the insured died from injuries wantonly in- flicted by himself, the burden was on the beneficiary to prove by a preponderance of the evidence that deceased died from the causes stated in the complaint, in order to recover more than the $100. Whitlatch vs. Fidelity & Casualty Co. (Court of App. N. Y.), 43 N. E. Reporter, 405. CARRIERS' INDEMNITY. CARRIERS' INDEMNITY POLICY.— Under a policy indem- nifying employers and carriers for liability incurred by reason of accident, the liability of the insurer becomes fixed on the hap- pening of the accident or casualty, even though the amount of such liability is contingent, to the extent that the amount which the insured may be adjudged to pay has not yet been ascer- tained. And where such company becomes insolvent, the meas- ure of its liability is the losses incurred by the insured in acci- dents happening before such insolvency, though the amounts had not been ascertained or paid until after such insolvency, as well as for those incurred and paid by the insured before the insol- vency. Such insolvency cancels all policies as to future losses; but since the insolvency is a breach of contract, the policy- holders are entitled to recover the unearned premiums. Boston & A. R. Co. vs. Mercantile Trust & Deposit Co. (Ot. App. Md.), 34 Atlantic Rep., 779. CLASSIFICATION— CONTRACT. 449 CLASSIFICATION. CLASSIFICATION OF RISK.— Where an applicant for acci- dent insurance had truthfully described his calling, and all the facts concerning his business were known by the company, the fact that he was improperly classified is no toar to his recovery of the policy. Emlaw vs. Ti-avelers' Ins. Co. (Sup. Ct, Mich.), 66 N, "ST. Rep., 469. COMPANY BOUND BY CLASSIPICATIOM OF RISK.— Where an applicant for insurance against accident makes a true and full statement of his occupation to the company's agent, the company is bound, after loss, by the classification which the agent gives him; and if he is wrongfully olasslfled, according to the company's rules, the fact that he certifies to an understanding of the company's classification of risk, and that he belonged to the class given, is immaterial, when in fact his only means of understanding such classification is through the representations of such agent A cattle dealer, insured under an accident policy which permits him to attend his cattle in transit on the cars, can rigi..— ally do, on such a trip, whatever is customary among rea- sonably prudent cattle dealers under like circumstances; and in an action on a policy for injuries received while attending his cattle at a way station it is not prejudicial error to permit him to show what is the common practice among cattle dealers. Pacific Mutual Life Ins. Co. vs. Snowden (Circuit Court of Appeals, Eighth Circuit), 58 Fed. Rep., 342. CONTRACT. WHEN CONTRACT OF INSURANCE CANNOT BE RE- FORMED.— An application for an accident policy recited that the company would not be liable for an injury happening prior to the receipt and acceptance of the application for membership fee by the secretary of the company. A party was injured after application was made, but before acceptance of such applica- tion, and before Issuance of the policy, which provided that it should take effect from its date. The court held in a suit to reform the policy so as to make it take effect from the date of the application, that blank form of a receipt, alleged to be simi- lar to the one made out by the agent of the company at the date of the application, which stated that the insurance if accepted should take effect from the date of application, was inadmissi- 450 INDICATOR'S DIGEST. ble, in the absence of evidence that the receipt actually given had been countersigned by the general agents of the company, as required by a provision in such blank form. U. S. Mut. Ace. Assn. vs.Kittenring (Sup. Ct. Col.), 44 Pa- cific Reporter, 595. WHEN CONTRAOT UF INISURANOE TAKES EJPFBCT.— Where the applica)tlon expressly maue a part of the policy pro- vides that the company shall not be liable for injury or death happening prior to the "receipt and acceptance" of the applica- tion and membership fee, the contract does not take effect until acceptance, and the company is not estopped to deny liability for death occurring prior thereto by having received the applica- tion and retained the fee. Coker vs. Atlas Ace. Ins. Co. (Court of Civil Appeals of Texas), 31 S. W. Rep., 708. CONSTRUCTION OP CONTRACT OF INSURANOE.— .Words in a policy must be taken in their ordinary sense as commonly used and understood; and, if the sense in which they are used is uncertain, as they are found in a contract prepared and exe- cuted by the insurer, they should be construed most favorably to the insured. The character and purpose of the contract must be considered, and, if there is any doubt as to the true meaning of any of its terms, it must be interpreted in the sense in which the insured had reason to suppose it was understood. For the pur- pose of upholding a contract of insurance, its provisions will be strictly construed as against the insurer. When its terms permit more than one construction, that will be adopted which supports its validity. It is only when no other is permissible by the lan- guage used that a construction which works a forfeiture will be given to it. Looking ait a contract in the light of these rules, it is not unreasonable to hold that the understanding to indemnify the insured against "loss by severance of one entire hand" has reference not alone to an injury which involves the loss or re- quires the amputation of the "entire hand" in a strictly anatomi- cal sense, but that the effect, as well as the extent, of the loss by severance is to be considered in determining whether, within the terms of the contract, the "entire hand" is gone. To require the insured to submit to a strictly literal interpretation of such a contract prepared for him by the insurer, without regard to the purpose of the contract, or the understanding by the parties, would be to hold that only in cases of the severance of the entire hand in a most accurately anatomical or technical sense could the insured recover under such a clause of the policy. In construing such a contract the law does not require an injury which comes within a strictly accurate and technical definition of the words employed, but one which reasonably, fairly, and practically comes within the meaning of the terms employed in their general and usual meaning and acceptation. In a contract of insurance pro- viding for indemnity for the loss of a limb the compensation to be paid is not merely for the physical pain of its amputation, but principally for the deprivation of its use as a member of the body. Sneok vs. Travelers' Ins. Co. of Hartford, Conn. (Supreme Court, General Term, Fifth Dept.), 34 N. Y. S. Rep., 545. CONTRACT— DEATH. 451 INDEMNITY INSURANCE— CONSTRUCTION OF CON- TRACT.— Where a bond by an indemnity company to an em- ployer, indemnifying him for one year against the dishonesty of an employe, provided that a claim nnder the bond or any renewal thereof should embrace only acts committed during its currency, and required the employer, within three months after expiration of the bond, to notify the company of the acts complained of, and the company issued receipts renewing the contract under each for one year "in accordance with the terms of the bond, the guar- anty to cover the period above named only," each renewal was a separate contract; and the fact that during a term of renewal there was discovered thefts, committed during the terms of the bond and a previous renewal, would not make the company liable therefor, where the discovery was made too late to hold the com- pany under the bond or the renewal in force when the thefts were committed. De Jernette vs. Fidelity & Casualty Co. (Ct. App. Ky.), 33 S. W. Reporter, 828. 'CONSTRUCTION OF CONTRACT OF EMPLOYES' IN- SURANCE. — A ijolicy issued to an employe recited that it was issued on application for "indemnity against claims for compen- sation for personal injuries," and stipulated that insurer would pay to the employer "all sums for which he shall become liable to his employes." The conditions of the policy prohibited the employer from settling with his employes, without the consent of the insurer, who was also to assume charge of actions against the emn'-^yer; and also provided that the employes should not sue on the agreement after a certain date, unless an action against the employer was then pending. The court held that the contract was one of indemnity against liability, and payment of the employer of a judgment against him was not a condition precedent to the insurer's liability. Also, entry of judgment by the injured employe against the employer, makes the liability of insurer "due absolutely." Hoven vs. Employers' Liability Assur. Co. (Sup. Ct. Wis.), 66 Northwestern Reporter, 46. DEATH. DEATH FROM ACCIDENT COMBINED WITH DISETASE —Where a policy provides that the company shall be liable only when the death results solely because of bodily injuries effected by external, violent and accidental means, and independently Of all other causes, the insurer will not be liable, if at the time of the accident insured was suffering from a pre-existing disease, and death would not have resulted from the accident in the ab- sence of such disease, but insured died because the accident aggravated the disease, or the disease the effects of the accident. Nat. Masonic Ace. Ass'n vs. Shryock (U. S. Cir. Ct. App.) 73 Federal Reporter, 775. 452 INDICATOR'S DIGEST. OPINION OF NON-EXPERT AS TO CAUSE OF DEATH— The opinions of attendants or relatives, who are not experts, as to the cause of a person's death are not admissible. American Ace. Co. vs. Fldler's Adm'x (Ct. App. Ky.) 35 Soutti- western Reporter, 906. DEATH iBY ACCIDENTAL POISONING UNDER ACCI- DENT PODICY. — ^Under an accident policy which provides that recovery shall only be had for death occasioned by "external, violent and accidental means," recovery may be had for death resulting from accidental taking of poison. That a death is the result of an accident imports an external and violent agency as the cause. Healy vs. Mutual Ace. Ass'n of the Northwest (Supreme Court of Illinois), 25 N. E. Rep., 52. RECOVERY FOR DEATH BY MJUBDBR UNDER ACOI- DEN'T POiLICY. — ^Where a policy of accident insurance provides that it shall not be valid if the insured suffers injury or death from injuries inflicted "by the insured or any other person," no recovery can be had for a death by murder. Travelers' Ins. Co. vs. McCarthy (Supreme Court of Color- ado), 25 Pac. Rep., 713. RECOVERY UNDER AOCID^NT INSURANiOE FOR DEATH BY BLOOD POISONING.— Plaintiff sued on a policy of accident insurance issued to her deceased husband. The policy was pay- able in case of death through accidental means which were the proximate and sole cause, and not where death was caused wholly or in pai't by bodily in.flrmity or disease. The evidence showed that death was caused by blood poisoning occasioned by the in- oculation of some poisonous substance onto a wound at or very soon after the wound was made. Where the inoculation occurred at che time the wound was made, and was a part of the accident, such accident was the sole and proximate cause of the death, though blood poisoning ensued. Martin vs. Equitable Ace. Ass'n (Supreme Court of N. Y.), 16 N. Y. Supp., 279. EXPERT TESTIMONY AS TO PROXIMATE CAUSE OiF DEATH. — In an action on an accident insuranioe policy, the jury was warranted in finding that a fall was the sole cause of death of the insured, where there was testimony that deceased was usually in good health till the time of the fall, and had shown no signs of degeneracy of the brain. The physicians testified that the post-mortem examination showed a contusion of the cerebellum, which culminated in an effusion of blood on the brain, producing apoplexy and death, and that in tlieir opinion the oontusion was 'caused by the fall. Another physician, who also assisted at the poat-mortem, testified to the existence of de- generation of the cerebrum, and to a deceased condition of certain arteries, which, in his opinion, were of long standing, and caused death independently of the fall. A special verdict containing an aflirmative answer to the question: "Was such injury the sole cause of death?" is equivalent to a finding that the injury was the sole and proximate cause of the apoplexy which was the immediate cause of death. Hall vs. American Masonic Ace. Ass'n (Supreme Court o£ V/isconsin), 57 N. W. Rep., 366. DEATH. 453 NOTICE OF DEATH ON ACCIDENT INSURANCE POLICY. — A certificate of membership in a co-operative accident insur- ance company provided that notice of any accidental injury must be given, with full particulars of the accident and injury, within ten days after injury or death; and that the insurance did not cover disappearance or injury, whether fatal or non-fatal, of which there is no visible mark on the body of the insured. Where a large building, in which the place of insured was situa- ted, fell, and it was three days before it was learned, by the re- covery of his body, that he perished in the accident, a notice of de^th served eight days later, but eleven days after the accident, was sufficient. Trippe vs. Provident Fund Society (Superior Court of New York City), 22 N. Y. Sup., 173. CONSTRUCTION OF rOLJCY— EXTERNAL INJURIES PRODUICING ERYSEPEILAS— PROXIMATE OR SOLE CAUSE OF DEATH— IMMEDIATE NOTICE OF DEATH— WAIVER.— An accident policy issued by the appellants was payable in case inter alia, "the bodily injuries alone shall have occasioned death within ninety days from the happening thereof, and provided that the insurance should not extend to hernia, etc., nor to any bodily injury happening directly or indirectly in consequence of disease, nor to any death or disability which may have been caused wholly or in part by bodily infirmities or disease prior or subsequent to the date of this contract, or by the taking of poison, or by aa.y surgical operation or medical or mechanical treatment, nor to any case except where the injury aforesaid is the proximate or sole cause of the disability or death." The policy also provided that in the event of any accident or injury for which any claim may be made under the policy, immediate notice must be given in writing, addressed to the manager of the company at Montreal, stating full name, occupation and address of the insured with full particulars of the accident and injury; and failure to give such immediate written notice shall invalidate all claims under the policy. The insured was accidentally wounded in the leg and within four or five days the wound, which at first appeared to be a slight one, was complicated by erysipelas from which death ensued 23 days after the accident. Notice of the accident and death wa.s duly sent to the company, and re- ceived by it at Montreal about two weeks after the death. The manager aokmrwledged receipt of proofs of death without com- plaining of want of notice, and ultimately declined to pay the claim on the ground that the death was caused by disease, and therefore the company could not recognize the liability. At the trial the court found on the facts that the erysipelas followed as a direct result from the external injury. The Supreme Court held that the external injury was the proximate or sole cause of death within the meaning of the policy. Also, that the company had not received sufficient notice of the death to satisfy the re- quirements of the policy, and that by declining to pay on other grounds there had been no waiver of any objection which it had a right to urge in this regard. The Accident Insurance Company of North America v? Young. 20 S. C. R., 280. 454 INDICATOR'S DIGEST. DEATH BY MOB AN ACCIDENT.— Death by hanging at the hands of a mob is an accident, within the meaning of an accident insurance policy insuring against "bodily injuries sustained through external, violent and accidental means." Fidelity & Casualty Co. vs. Johnson (Supreme Court of Mis- sissippi), 17 So. Rep., 2. EVIDBNOE OF DEATH BY AOOIDENT.— In an action on an accident policy, it was shown that deceased had a fall, of the effects of which he complained for several days, and then fell sick. From this sickness he never recovered, and throughout its continuance he complained of the hurt, and bore a bruise. His attending physicians testified that he died of typhoid fever, and that this disease was never produced by the bruise; his nurse, a competent one, of long experience, testified that he did not have typhoid fever; and it was admitted that bruises might produce other forms of fever. The evidence was sufficient to support a verdict that the death of deceased was the result of the accident. Standard Life & Accident Ins. Co. vs. Thomas (Court of Ap- peals of Kentucky), 17 S. W., 275. DEATH BY FREEZING.— By the terms of an accident policy Issued by the defendants to one Church as a member of the plaintiffs' association, the defendants undertook to pay the In- surance money within ninety days after suffieient proof that the assured "shall have sustained bodily injuries effected through external, violent and accidental means within the intent and meaning of this contract and the conditions hereunto annexed, and that such injuries alone shall have occasioned death within ninety days from the happening thereof," with the further pro- viso that the insurance "shall not extend to death or disatfility caused by an injury of which there shall be no external and visible sign, nor to any case except wben some Injury effected as aforesaid is the proximate and sole cause of the disability or death; and no claim shall be made under this policy when the death or disablement may have been caused in consequence of exposure to any obvious or unnecessary danger." Ohm-ch was returning to Fort McLeod from one of his trips in company with a driver, when his wagon broke down, and being too cold and numb to walk and unable to ride, he remained where he was while the driver rode to Port McLeod for assistance. When it came he was found frozen to death. It was held that the assured met his death as a result of an injury effected th;ough external, violent and accidental means within the meaning of the policy. Nortliwest Commercial Travelers' Association vs. London Guarantee Co., .''.1 O. L. J., 37. ACCIDENT INSURANCE— MUTUAL COMBAT.— If both parties engage willingly in personal encounter, it is a mutual combat or fight, a death resulting therefrom is not included In a policy of accident Insurance whicli excepts from the risk death or Injury caused by fighting. It makes no difference in such case whether the slayer was sane or insane. Gresham vs. Equitable Life & Ace. Ins. Co. (Supreme Court of Georgia), 13 S. B. Rep., 752. DEFAULT— DISABILITY. 455 DEFAULT. DEFAULT IN PAYMENT OF ACCIDENT INSURANCE.— An ignorant negro was hired as supernumary porter on a railroad. He was asked to t&ke an accident insurance policy. He did not know what that was. It was explained and a policy offered him for $15. He said he did not have the money. The solicitor offered to take an order payable out of his wages, which he gave, informing the solicitor of the nature of his employment and the uncertainty of his earning wages. None of the papers were read to him, nor did he read them, and it was with difficulty that he could read at all. The first installment of the order was pay- able out of his wages for December. On December 24th the order was given to the railroad company, and about January 10th it was returned with the information that he had left the service and nothing was due him. No notice of non-payment was given him, and no further effort made to collect the premium. On January 23rd the negro was injured while coupling cars. He was entitled to notice of demand and non-payment of the order, and the insurance company could not insist on a forfeiture of the policy. Eury vs. Standard Life and Accident Ins. Go. (Supreme Court of Tennessee), 14 S. W. Rep., 929. DISABILITY. WHEX NOT "IMMEDIATELY DISABLED," CANNOT RE- COYER. — ^A company is not liable on its accident policy insuring against loss of time for injuries through external and accidental means which shall, independently of all other causes "imme- diately" and whoUy disable the insured from transacting any business in his occupation, where the insured, injured by a fall, was able for two months to attend partly to his business, but at the end of that time became totally incapacitated by a stroke of paralys'is. which was the direct result of the accident. ilerrill vs. Travelers' Ins. Co. (Supreme Ot. Wis.). 64 X. W. Rep., 1039. IMMEDIATE DISABILITY IN ACCIDENT INSURANCE.— It often happens that considerable difficulty arises in determining whether or not a particular thing is the proximate or remote cause of an injury and Its consequences; and to avoid this difficulty in the numerous and ever-varying cases which might arise, the company in its contract meant to have it understood that it would 456 INDICATOR'S DIGEST. not be responsible for loss of time resulting from physical injury, unless it was plain and manifest that the injury, directly, alone, and without delay occasioned such loss of time; and that it would not be liable for loss of time which might result from other intervening causes, taking effect after the injury was actually received. Where a man has received a blow on the head, which, at the time of its infliction, does not appear to be serious, and for a month goes on regularly, though with some inconvenience, attending to his business, and then becomes un- able for a long time to transact business at all, it is certainly not improbable, to say the least, that something else other than the original injury may have caused his condition or largely contrib- uted thereto. The insurance company framed its policy in order to avoid the hazard and uncertainty of litigating just such ques- tions and issues as these. By the terms of Its eontr.ict it is not liable in this case. Williams vs. Preferred Mut. A.cc. Ass'n (Supreme Court of Georgia), 17 S. E. Rep., 982. ACCIDENT INSURANCE— PEBMANEflSTT DISABILITiY.— Where an accident policy was issued against accidental death and permanent disability in the sum of $1,000, which provided inter alia for the payment of "the whole of the principal sum named," in the event of "the total and permanent loss of the sight of both eyes." Before the insurance was issued the appli- cant had lost the sight of one eye; which was known to the gen- eral and the soliciting agent of the company when he was in- sured. Subsequently he sustained the loss of the remaining eye. He will be entitled to recover the entire amount. Humphreys vs. National Benefit Association (Supreme Court of Pennsylvania), 20 At. Rep., 1047. DISEASE. WHERE A PROVISION IN AN ACCIDENT INStlRANCE POLICY expressly withheld the insurance from "any bodily in- jury arising directly or indirectly in consequence of any disease," and from "any death or disability which may have been caused wholly or in part, by bodily infirmities or disease, one who was insured under such a policy, while pursuing his business as a traveling salesman, sustained a heavy fall which caused his death. The uncontradicted testimony of experts who conducted the post mortem showed that the heart and brain were generally diseased, and that this caused the fall and death. In such case there could be no recovery under the policy. Sharpe vs. Commercial Travelers' Mut. Acc't Ass'n of Amer- ica (Supreme Court of Indiana), 57 N. E. Rep., 353. EMPLOYMEXT— EXPOSURE. 457 EMPLOYMENT. ACCIDENT INSURANCE— CHANGE OF EMPLOYMENT. — ^Where one at the time of taking accident insurance was a railroad employe, and contracted to pay the higher premium de- manded on account of the hazardous employment, he is entitled to the benefits of the exception in the policy allowing railroad employes to board a moving train, though before his accident he had ceased to be so employed, and was a fariher. Emp. Liability Assur. Corp. vs. Kochelle (Ct. Civ. App. Tex.), 35 Southwestern Reporter, 869. NECESSARY ALLEGATIONS WHERE THERE ARE EX- CEPTIONS IN POLICY.— Under a policy providing that, if in- sured is injured or killed in any occupation classed by the com- pany as more hazardous than that recited in the application, the beneficiary shall be entitled only to a reduced sum ; a beneficiary who sues for the entire amount of the policy must allege and prove that the insured was not killed in a more hazardous oc- cupation. American Ace. Co. vs. Carson (Court App., Ky.), 36 South- western Reporter, 168. EXAMIXATION. EXAMINATION OF BODY BY PHYSICIAN OF COMPANY. ^A policy of accident insurance provided that the company's medical adviser might examine the body of the assured at any time. No request was made for an examination till some weeks after the burial, when a request was made, not to the beneficiary, but to the widow of the decedent, and was refused. The United States Cirouit Court of Appeals held that this was no defense to an action by the beneficiary. Amer. Emp. Liability Ins. Co. vs. Barr, 68 Fed. Rep., 873. EXPOSURE. VOLUNTARY EXPOSURE TO DANGER.— Where one called at a sawmill to have some lumber cut for a cabinet to be used in his ofiice, and while standing near a saw stepped on a block. 458 INDICATOR'S DIGEST. which was concealed in the sawdust on the floor, and instinct- ively threw out his arm to recover himself, when his hand came in contact with the saw, and was 'Cut off. The insured, in enter- ing the sawmill, was acting within the scope of his employment, and it would not be held, as a matter of law, that he voluntarily exposed himself to danger, though shortly before the accident he had been operating the saw himself. Hess vs. Van Auken (Common Pleas of New York City and County), 32 N. Y. Supp., 126. EXTERNAL. ACCIDENT INSURANCE.— The Appellate Court of Indiana holds that a complaint in an action on a life insurance policy in- suring a party against death from "external, violent and acci- dental" means, must show that the injuries causing such party's death were "accidentally" received. Newman vs. Ry. Off'l & Bmp. Ace. Ass'n, 42 N. B. Reporter, ACCIDENT INSURANCE.— In an action on ap. accident in- surance policy which insures against death from external, violent, and accidental means, not suicidal, a general verdict and sipecial findings, that the insured was killed by a bullet penetrating the heart, establishes the fact that death was caused by external violence within the policy. Warner vs. U. S. Mut. Ace. Ass'n (Supreme Court of Utah), 32 Pae. Rep., 696. EXTERNAL, VIOLENT AND AOCIDENTAL.— A person who is unexpectedly shot by another, without cause o» provoca- tion, is injured by "external, violent and accidental means," within a policy insuring against such injuries. And where a policy insures against death by such means, a provision that it shall not cover intentional "injuries" inflicted by the insured or any other person refers only to non-fatal Injuries. American Ace. Co. vs. Carson (Court App., Ky.), 36 South- western Reporter, 169. CAUSE O'P DEATH UNDER ACOIDBNT POLICY.— There can be no recovery under a policy covering only death by acci- dent of which there shall be visible and external signs, for a death resulting from a malignant pustule superinduced by bacilli anthrax introduced into the system by accidental contact with putrid animal matter, as such a death results directly from dis- ease and not accident. 'Bacon vs. United States Mutual Accident Association (Court of Appeals of New York), 25 N. B. Rep. , 399. ACCIDENT INSURANCE— EXTERNAL INJURY.— Where an accident policy secured the person to whom it was issued against bodily injuries effected through external, violent and accidental means, and it appeared from the evidence that the party, while EXTERNAL— EVIDENCE. 459 in an emaciated and feeble condition, after safely alighting from a train, carried his baggage, which weighed 60 to 80 pounds, a distance of about 50 yards, and "injured himself in some way or other" so that soon after putting down the baggage a defect in the vision of one of his eyes became apparent, which finally re- sulted in a total loss of sight, but it also appeared that he had not fallen or received a blow or jax or shock of any kind, and there was nothing unusual in the way the baggage was carried, or in his mode of locomotion, the Supreme Court of Gteorgia held that he was not entitled to recover, as the injury was not attri- butable to the causes stated in the policy. Cobb vs. Pref'd Mut. Acc't Ass'n of N. Y., 22 S. E. Rep., 976. CONSTBUOTION OF POLICY— "EXTERNiAL," INJURY.— The plaintiff was insured by the defendants against "any bodily injury caused by violent, accidental, external and visible means." The policy, however, excepted injuries arising from "natural dis- ease or weakness, or exhaustion consequent upon disease." The injury on which the action was based was occasioned by the plaintiff stooping to pick up a marble, in doing which he dis- located the cartilage of one of his knees. Before the accident the plaintiff has not suffered from any weakness of the knee or fcnee-joint. The defendants resisted the action on the ground that the injury was not due to any external cause, and was there- for not within the policy. It was held that the accident was caused "by violent, accidental, external and visible means" with- in the meaning of the policy, and that the plaintiff was entitled to recover. Hamlyn vs. The Crown Insurance Companv (1893). 1 Q. B., 750; 29 C. L. J., 434. EVIDENCE. ADMISSIBILITY OF CIRCULARS ISSUED BY COMPANY IN EVIDEiNlCE. — .Circulars issued by authority of the insurer, and brought to the notice of the insured before the policy was written, are admissible in evidence where they advertised that the insurer wrote policies paying one-third for the loss of one foot, and stated no restrictions as to persons in whose favor such policies should be written. Such circulars are admissible to show that the insurer had held its agent out as authorized to write such policies to all persons. Frank vs. Pacific Mutual Life Ins. Co. of California (Supreme Court of Nebraska), 62 N. W. Rep., 454. 460 INDICATOR'S DIGEST. FOREIGN COMPANY. SERVICE OF PROCESS ON FOREIGN INSURANCE COM- PANY.— Service of process on a non-resident insurance company doing business in this State may be made on the State auditor where the company fails to file the stipulation to that effect, as required by the statutes. Masonic Fraternal Ace. Ass'n vs. Riley (Supreme Court of Arkansas), 31 S. W. Rep., 148. FOREIGN INSURANCE COMPANY IN SOUTH CARO- LINA.— Failure to pay a loss under a contract of a foreign insur- ance company with a non-resident, where the loss is payable in the State, creates a cause of action "within the State" under the law of South Carolina, giving Circuit Courts jurisdiction of ac- tions by non-residents against foreign corporations. Carpenter vs. American Ace. Co. (Sup. Ct., S. C), 24 S. E. Rep., 501. FORFEITURE. FO'BPBITURE OF AOCIDENT INSURANCE.— Forfeitures are not favored in law, and he who claims one must show a fairly olear right to insist upon it. Held, that the insured had not, by his acts, forfeited his right to recover indemnity money of the company on its accidental insurance certificate issued to him. iBall vs. Northwestern Mut. Ace. Ass'n (Supreme Court of Minnesota), 57 N. W. Rep., 1063. TiHE SUiPRBME COURT OP IIX.INOIS holds that where the by-iaws of a mutual benefit association provide for forfeiture of membership if the member fails to pay an assessment "within 30 days from the date of the notice thereof," a notice which Is mailed so as to reach the insured November 30th, and which de- mands payment on or before December 28th, is not sufficient to sustain a forfeiture, since the "date" of the notice is the time when it is or could be received. Where a m'ltual benefit society urges its members to deposit money with it in advance of the assessments, and agrees to apply such deposits to the payment of future assessments, a notice demanding three dollars from a member, that being the full amount of the assessment, when the member had one dollar deposited with the society, is invalid as demanding more than is due. United States Mutual Ace. Ass'n of City of New York vs. Mueller, 37 N. E. Rep., 882. FORFEITURE— GAS. 461 FORFIEITURE OF ACCIDENT INSURANCE.— Where an ap- plication for accident insurance stated that the insurance should be based on the orders given herewith on the railroad company by which he was employed, to be paid from his wages each month, and agreed that the payments, in the orders above men- tioned, should be premiums for the four separate insurance con- tracts, and that each payment should apply only to its correspond- ing insurance period, and that no claim should be made for any injury received during any period not actually paid for before such injury. The policy was issued, and the insured delivered to the insurance company orders on the railroad company for the payment, for each of four successive months, of the premiums on the policy. The giving of the orders did not operate as a payment, whether they were collected or not; and when he drew his entire wages each month before the order for the correspond- ing month was paid he forfeited his rights under the policy, though he was not notified by the insurance company of the non- payment of the orders. landis vs. Standard Life and Accident Ins. Co. (Appellate Court of Indiana), 33 N. E. Rep., 989. GAS. DEATH BY INHALING GAS COVERED BY ACCIDENT POLICY. — A provision of an accident policy that it "does not in- sure against death or disablement * * * arising from any- thing accidentally taken, administered, or inhaled, contact of poisonous substances, inhaling gas, or any surgical operation," does not relieve the insurer from liability for death caused by fnhaling illuminating gas, which accidentally escaped into a hotel room, where the insured was sleeping. Slenneilley vs. Emp. Liab. Assur. Corp.. N. Y. (Ct. App., N. Y.), 43 N. E. Reporter, 54. ACCIDENT INSURANCE ON DEATH PROM GAS.— A per- son who was injured under the accident policy died from the inhalation of noxious gas. The policy provided that it did not cover death except by violent accidental means, of which there should be a visible and external sign, and expressly provided that it should not cover death from the inhalation of gas." The court defines a death within the terms of the policy to be one not re- sulting from disease, or any conscious or voluntary act on the part of the deceased, and limits the provision regarding the in- halation of gas. to a voluntary and intentional inhalation there- of, and sustain a recovery under the policy. Picket vs. Pacific Mutual Life Insurance Company (Supreme Court of Pennsylvania), 22 At. Rep., 870. 462 INDICATOR'S DIGEST. FUNDS. TITLiE TO DEPOSITED FUNDS.— Money deposited with a private banker to secure him from liability on a bond, and mingled by him with other funds of the banlj, with the knowl- edge of the depositor, passes to the banker's assignee, under a general assignment. Such deposit, though evidenced by a cer- tificate of deposit stating the object for which it is made, is a general and not a special deposit. (Mutual Accident Association vs. Jacobs (Supreme Court of Illinois), 31 N. E. Rep., 414. HAZARD. ACCIDENT INSURANCE; INCREASE OF HAZARD, SCAL- ING BENEFIT — ^An accident policy providing that if insured was injured while engaged in any occupation classed as more hazard- ous than that stated in his application, the benefit should be such sum as the premiums paid would purchase at the rate fixed by the company for such increased hazard, and an application stated that insured was a blacksmith employed by the railroad com- pany. It was shown that at the date of the application insured also acted as switchman and car coupler, which were classed as more hazardous than blacksmiths, and that he was killed while attempting to uncouple cars. The court held that the recovery should be limited according to the increased hazard. Standard Life & Ace. Ins. vs. Taylor (Ct. Civ. App. Tex.) .34 S. W. Reporter, 781. BFIFECrr ON ACCIDEiNT INSURANOE POLICY OF IN- CREASED HAZARD.— It is competent for a life and accident policy to provide that, if the insured shall be injured in any oc- cupation rated by the company as more hazardous than that given by the insured, his insurance shall only be as much as the premium paid will purchase at the rate fixed in the company's tables for such increased hazard; and, if the policy does not name the increased hazard, it is for the jury to determine whether a change in the risk has taken place, and the degree the risk has been increased. Where a policy contains a condition that, in consideration of the statement of facts warranted to be true in the application of the policy, and of the payment of certain sums, the company hereby insures, etc., the apiplioation referred to is part of the contract of insurance. Where the insured person, while 1 boy, received Injuries from which he recovered so that HAZARD— INDEMNITY. 463 they did not increase his liability to accidental injury, or con- tribute to the accident which resulted in his death, his policy was not forfeited by a statement in his application that he had never been physically injured, or subject to bodily or mental infirmity or disease; the insured being entitled to a liberal con- struction in his favor. Standard Life and Accident Insurance Company vs. Martin (Supreme Court of Ind.), 33 N. E. Rep., 105. INCORPORATION. INCORPORATION OF CASUALTY INSURANCE COJIPA- NIES. — Laws of 1S92 enumerate the various kinds of insurance companies that may be incorporated thereunder, and subdivision 8 provides for companies to insure "against any other casualty specified in the charter which may lawfully be The subject of insurance.' A company may be incorporated under rubdivision 8 to insure owners, lessees, tenants, etc., against loss of life or damage to health or property, caused by imperfect sanitary con- dition of premises owned, leased or occupied by them, or imper- fect plumbing, bursting pipes, or leaks, "and for the doing of such other business as may be lawfully connected with Ihe busi- ness of sanitary inspection," as such 'insurance is not contrary to public policy, good morals, or business principles, and is not prohibited by the preceding seven subdivisions. People vs. Rosendale (Supreme Com't of N. Y.), 25 N. Y. Supp., 769. INDEMNITY. RlBCOVERY" OF WBEICLY INDEiMNITY.— An accident policy required proof of insured's claim to be filed within seven months after the injury. The limit of time for which insured could re- cover was twenty-six consecutive weeks. It was held that, where final proof of claim was made before the expiration of the twenty- six weeks, insured could not recover for any time after the claim was filed. Bickford vs. Travelers' Ins. Co. (Supreme Court of Vermont), 32 At. Rep., 230. 464 INDICATOR'S DIGEST. INSURABLE INTEREST. INSURAiBLE INTBRBSiT.— Where one effects an insurance upon his own life, and in the policy designates another as payee, the latter may maintain an action on the policy, without showing an insurable interest; but such beneficiary has no such vested or permanent interest in the policy as to prevent the assured, with the assent of the company, substituting a new beneficiary. Robinson vs. U. S. Mut. Ace. Ass'n (U. S. Cir. Ot.), 68 Fed. Rep., 825. INTENTIONAL INJURIES. ACCIDENT INSURANCE— INTENTIONAL INJURIES.— A policy insuring against injuries through "external, violent and accidental means," except when resulting from "intentional in- juries" and other specified causes, does not exempt the insurer from liability for injuries inflicted independently by third persons, where the other causes specified all involve acts in which the insured must participate by intent or consent. Button vs. Amer. Mut. Ace. Ass'n (Supreme Ct. Wis.), 65 N. W. Reporter, 861. AOCIDENT INSURANCE— INTE'NTIIONAL, INJURIES.— The death of an officer, resulting from wounds inflicted by a prisoner while resisting arrest, is not death from "accidental injuries," within the meaning of that phrase as used in an accident policy. Under an accident policy expressly providing that it shall not cover "intentional injuries inflicted by the insured or any other person," no recovery can be had for the death caused by the insured being shot by a prisoner whom he is attempting to arrest. American Accident Co., of Louisville, vs. Carson (Court of Appeals of Kentucky), 30 S. W. Rep., 879. INTOXICATION. INTOXICATION AS A DEFENSE TO AOCIDENT POLICY.— A provision in an accident policy that none of its conditions can be waived by any agent of the company is valid, and a condition INTOXICATION— LIABILITY. 465 that the insurance does not cover death resulting from intoxica- tion is not waived because the agent who received and filled out the application knew that the applicant was an intemperate man, though the application stated that his habits were correct and temperate. It is competent for the company to show what in- sured's condition was when he received the injuries, and in order to do this witness may be asked whether he impressed them as being intoxicated; whether he was drunk or sober, and whether, In their judgment, he was capable of taking care of himself as though he was sober. Cook vs. Standard Life and Accident Ins. Co. (Supreme Court of Michigan), 47 N. W. Rep., 568. LIABILITY. INJURIES RECEIVED WHILE VIOLATING LAW.— Where a railroad company permits the public to go over its tracks, at a place not a street crossing, for a sufficient length of time to create a license, a person crossing the track at such point is not guilty of "violating the law," within the meaning of an accident policy exempting the company from liability where a party walks along the railroad track, except wliere same shall be laid across or along streets or highways. Lehman vs. Great Eastern Casualty & Indem. Co. (Sup. Ct. App. Div.), 39 N. Y. Supp. Reporter, 912. WHEN LIABILITY FOR ACCIDENT INSURANCE CEASES. — One insured by an accident policy "as a passenger In a public conveyance provided by a common carrier," after he had alighted from a railroad train at a station from which he intended to continue his journey by a later train, attempted to speak to the engineer about a matter having no connection with the continuance of his joiu^ney, or his condition as a passenger, and, while crossing the platform of a car, fell and was injured. He could not recover on the policy for his Injuries, because after -arriving at the end of his journey the liability ceases. Hendrick vs. Employers' Liability Assur. Corp (Circuit Court, E. D. Missouri, N. D.), 62 Fed. Rep., 893. ACCIDENT POLICY: LIABILITIES.— Where an accident policy prepared in blank for insuring in a principal sum for death, and in a weekly indemnity, not exceeding 52 weeks, for total disability, and with separate provisions for payment in each case, was filled out and executed only for the weekly indemnity, and this made payable to the insured, and the insured died within twenty-four hours afterwards from an accident, held that his per- sonal representative was not entitled to recover indemnity for the balance of the period. Rosenbury vs. Fidelity «& Casualty Co. (App. Ct., Ind.), 43 N. K. Reporter, 317. 466 INDICATOR'S DIGEST. LIABILITY AS FOR LOSS OF FOOT— One cannot, under an accident policy, recover as for the loss of a foot, where, by reason of an injury to his back, he is deprived of use of his leg, except ■when wearing an artificial support for his body. Stever vs. People's Mut. Acct. Ins. Ass'n of Pittsburg (Su- preme Court of Pennsylvania), 24 At. Rep., 662. DENIAL OF LIABILITY NOT A WAIVER OP NOTICE.— Denial of liability by an accident Insurance company and refusal to pay its policy will not vcaive notice of accidents required to be given it, when made after the time within which notice and proof of accident can be made. And declarations made t>y an insurance company to a third person, denying its liability on a policy, will not avail the beneficiary on the question of waiver of notice required to be given to the company. Emp. Liability Assur. Corp. vs. Rochelle (Ct. Civ. App. Tex.), 35 S. W. Reporter, 870. CASUALTY INSURANCE— LIABILITY OP MASTER FOR SERVANT'S NEGLIGENCE.— A casualty company insured plate glass in a building. The policy provided that the com- pany, at its option, might replace the glass, or pay its actual value, and that when necessary the owner of the building, who took the policy, should at his own expense, remove woodwork, gas fixtures, or other obstructions to the replacing of the glass. The company notified the party with whom it had a contract for such replacements to put in new glass. The workmen of such contractor found that the gas pipes interfered with the work, and negligently detached two lengths in the cellar, so that when the gas was lighted in the evening an explosion oc- curred, which damaged the building. The court held that the contractor was not liable for the negligence of his employes, the acts being outside of their employment; nor was the casualty company liable. McCauley vs. Fidelity & Casualty Co. (Sup. Ct. App. Div.), 38 N. Y. S. Reporter, 773. LIABILITY FOR DIVERSION OF TRUST FUNDS.— Where the amount of a claim under an employer's liability insurance policy for mjuries to an employe is sent by the insurance com- pany to the agent through whom the employer obtained the pol- icy, and the agent, with the consent of the employer applies the same to a claim held by him against the employer,' the injured employe may recover such amount though h« had executed a re- ceipt for the amount, and given a release of all claims on ac- count of the accident, as such papers were required by the in- surance company before payment of claims. T!„fp^f^^'''^o°c''V®,v'^^ ^- Holmes Refining Co. (Superior Court of) Buffalo), 28 N. Y. Sup. Rep., 493. LIMITATION. 467 LIMITATION. LIMITATIOX OF ACTION.— An action, in Texas, on an acci- dent policy is brought in time where petition is filed and a non- resident notice served on defendant company within the time limited by the policy for bringing action, though the citation is not served on defendant's agent till after the lapse of such time. Standard Life & Accident Co. vs. Askew (Ct. Civ. App. Tex.), 32 S. W. Rep., 31. LlillTATIOX TO ACTION OX ACCIDENT POLICY.— "Where an accident policy stipulated that nc legal proceedings for a recovery should be brought within fnree months after proofs of injury were furnished, nor at all unless brought within six months, the stipulation is valid; and the six months' period of limitation begins to run from the date the proofs are filed, and not at the expiration of the three months. Provident Fund Soc. vs. Howell (Supreme Ct. Ala.). IS So. Rep.. 311. LIMITATION OF ACTION.— Where by the terms of a policy six months are allowed to complete proofs of death, and ninety days thereafter are reserved to the company, within which the claim may be paid, a provision limiting the time within which an action on the policy may be brought to "one year from the time of the alleged accidental injury" will only operate to limit the bringing of an action to within a year after the ninety days within which the claim might have been paid. No right of action against the company accrued until then, and no limita- tion can commence until there is a complete right of action. Cooper vs. United States Mutual Accident Ass'n (Supreme Court of New York), 10 N. Y. Supp., 748. ACTION ON POLICY: WHEN LIMITATION COMMENCES TO RUN.— An accident policy provided for an immediate written notice of an injury, and proof of accident within seven months, no action under the policy to be begun within one year from the time of the accident, and no legal proceeding for recovery there- under to be brought within three months after the receipt by the company of the proof of injury. It was held by the court that the year in which suit was required to be commenced be- gan, not at the date of the death of the assured, but upon the expiration of the three months after furnishing proofs of death, during which legal proceedings were prohibited. Alllbone vs. Fidelity & Casualty Co. (Ct. Civ. App. Tex.), 32 S, W. Reporter, 5f)9. 468 INDICATOR'S DIGEST. NEGLIGENCE. DAMAGES FOR PERSONAL INJURIES NOT MITIGATED BY INSURANCE MONEY— In an action for the death of a per- son, caused by the negligence of another, money received from accident insurance, held by deceased, by the widow cannot be set off against her claim for damages on account of such negli- gence of employer. Tyler S. E. Ry. Co. vs. Rasberry (Ct. Civ. App. Tex.), 34 S. W. Reporter, 794. NEGLIO'ENCB OF INSURED BARS RECOVERY.— No re- covery can be had on an accident insurance policy conditioned that the insured shall use due care, where he sat down on the end of a railroad tie, dangerously near a side track, and accident- ally fell asleep, and had his arm crushed by a train. The word "roadbed," in an accident in.surance policy, providing that it shall not cover injuries in consequence of insured's "walking or being on the roadbed of any railway," does not include the ends of ties of unusual length extending to a point where persons standing or sitting would be beyond the reach of passing trains. Standard Life & Ace. Ins. Co. vs. Langoton (Supreme Court of Ark.), 30 S. W. Rep., 427. NOTICE. SUFFICIENCY OF NOTICE OP INJURY.— Under an acci- dent policy which provides that, in case of an injury totally disabling the insured from carrying on his work, notice of the accident shall immediately be given the company (giving full particulars), and, in case "such" injuries cause the death of the insured, notice shall be given "in like manner." It is not neces- sary, where the injuries caused death, but did not totally disable the insured, at the time, from working, to give notice of the accident at the time it happened, as the policy fails to provide for any notice in such case. Nor is it necessary to give the par- ticulars of the accident, etc., as the words "in like manner" qualify the time in which the notice shall be sent. Where an accident policy, after providing for notice of injuries causing total disability to be given, provides that, in case ''such" injuries cause death, then affirmative proof of the same shall be made within six months after the accident, proof of death from injuries which did not cause total disability need not be given until six months after the insured's death. Under an accident policy re- quiring immediate notice of the death of the insured to be given, NOTICE— OCCUPATION. 469 and proTiding that the same shall be given by letter, notice given within ten days after the death is sufficient, as the word "Immedi- ate" will be construed "reasonable." Where the only dispute as to the facts showing whether reasonable notice was given to an insurance company of the insured's death, as required by the policy, is whether a letter containing such notice was sent, it is a question for the jury whether the notice was sent, and for the court whether it was reasonable. The fact that a letter was mailed, duly stamped and addressed, Is evidence that the person to whom it was sent received it. McFarland vs. United States Mut. Ace. Assn. of City of New York (Supreme Com-t of ilissouri, Division No. 1), 27 S. W. Rep., 436. NOTICE TO INSURER UNDER ACCIDENT POLICY.— Where a policy provided for certain compensation "for injm-ies resulting in death * * * effected during the life of the certi- ficate, which should immediately disable insured from pursuing his occupation." * * * It was also provided that written no- tice should be given the insurer, within ten days of the date of accident and injury for which claims should be made, stating the circumstances of the accident and nature of the injury, that there should be no claim to indemnity for disability unless disa- bility occurred within thirty days from the date of the accident, of which the insurer should have had notice within the ten days, nor any claim to death benefits unless death resulted within ninety days from the accident, of which accident the insurer should have had notice within ten days. While the certificate was in force the insured stepped on a wire nail, inflicting a small, but visible, wound in the foot. He continued to pursue his occupation for fourteen days, and was then talien ill and died from lockjaw resulting from the wound. No notice of the acci- dent was given within ten days of the occurrence of the acci- dent, but proofs of death were furnished in due time. The United States Circuit Court of Appeals held that, the terms of the cer- tificate did not require notice to be given within ten days of the happening of an accident which did not immediately disable the insured from pursuing his occupation, and did not within such ten days give rise to a claim for indemnity or death benefit, and that the beneficiary was entitled to recover. Odd Fellows Fraternal Ace. Assn. vs. Earl, 70 Federal Rep., 18. OCCUPATION. THE RISKS INCIDENT TO OCCUPATION MAY BE SHOWN BY WITNESSES.— AVhere the application for accident insurance stated that deceased was employed as an extra con- ductor, testimony of a witness engaged for years in the railway service, that an extra conductor when not engaged in running trains, may perform other service required of him, warrants a finding that an extra conductor could brake a train without los- ing his classification as such. Standard Life & Ace. Ins. Co. vs. Koen (Ct. Civ. App. Tex.), 33 S. W. Reporter, 133. 470 INDICATOR'S DIGEST. PAROL EVIDENCE. AOMISSIBILITry OF PAROL. EVIDENCE.— In an action on a policy of accident insurance, where the company set up a con- tract to accept a weekly payment for a certain number of weeks in discharge of the claim, parol evidence is admissible to show that the insured could not read or write, and placed his mark on the proofs of loss without knowledge that they contained such contract, and that he afterwards refused to sign a receipt in full when the sum of such weekly payments was paid to him. Lord vs. American Mut. Ace. Assn. (Supreme Court of Wis- consin), 61 N. W. Rep., 293. POISON. ACCIDENTAL DEATH BY POISONING.— An accident in- surance policy contained, on the part of the assured, the pro- vision, "I agree that this insurance shall not be held to extend * ** to poison in any way taken, administered, absorbed or inhaled." The Supreme Court of Illinois held that the words "in any way" related to the mode or manner in which the poison was taken, and not to the motive in taking it, and that death by involuntary poisoning was therefore within the policy. Metropolitan Ace. Assn. vs. Froiland, 43 N. E. Reporter, 766. pnTt^^Sr^S^^. COMPANY LIABLE FOR ACCIDENTAL i-UibUINIJNG.— An accident insurance companv, whose policy msures agamst death from injuries through ''external, violent and accidental means" unless it is caused from "taking poison " oreon *^*'^'' '^ '*^^'^ ^°'" '^^^^^ ^'^°'^ accidental taking of J^'^^Z^^^^^- "^'o- "^'S- Dunlap (Supreme Ct. 111.), 43 X. E. Re- porter, i bo. PROOFS— POLICY. 471 PROOFS. PROOF REQUIRED IN ACTION ON POiL/ICY— In an action on an accident policy, in a case of suicide, to find a verdict for the insurance company, tlie Jury must be satisfied that the in- sured intentionally took his own life. The common experience of mankind teaches that suicide is not an ordinary mode of death. The natural instinct of self-preservation is opposed to it. It is also a breach of the criminal law. No jury should be allowed to find one guilty of such a violation of law, — of such a perver- sion of the ordinary rules of human action, — except upon a pre- ponderance of proof. Whitlach vs. Fidelity and Casualty Co. (Supreme Court, Gen- eral Term. Second Dept.), 28 N. Y. Supp., 951. POLICY. CONDITION IN ACCIDENT POLICY.— In an action on an accident policy providing that the company should not be liable if the accident happened while insured was "upon a railroad bridge, trestle, or roadbed (railway officers and employes, while engaged In the prescribed duties as such excepted), where the undisputed evidence shows that the insured was killed while walking on the roadbed of a railroad company, of which he was not an officer or employe, the beneficiary in the policy cannot recover. Pacific Mutual Life Ins. Co. (App. Ct. Ind.), 41 N. E. Rep., 968. CONDITIONS OF ACCIDENT INSURANCE POLICY.— In an action on an accident insurance policy, where the petition does not allege compliance by the assured with the conditions of the policy, and no objection is made thereto, both the allegation and proof of such facts are waived, though necessary to entitle in- sured to recover if not waived. In such action the burden is upon the company to allege and prove a breach of any of the conditions of the policy which will defeat a recovery. Where the evidence is conflicting as to whether the assured was intoxi- cated at the time he was killed, and consists entirely of the ob- servations of persons who saw him before and after the accident, findings of the jury that he was not intoxicated, and that he was using due care, will not be disturbed. Evidence by a physician as to what he noticed with reference to the assured's breath at the hospital after the accident is properly excluded when the time that the physician saw him has not been fixed. Sutherland vs. Standard Life and Aec. Ins. Co. (Supreme Court of Iowa), 54 N, W. Rep., 453. Jan. 31, 1893. 472 INDICATOR'S DIGEST. CONSTBUCTION OF ACCIDENT INSiTJiRANCE.— Wh&re one's hand was cut off a short distance above the knuckles, leav- ing nearly the whole of the palm and a part of the second joint of the thumh, which he testified was of considerable use to him, it is not a loss of "one entire hand" within the meaning of an ac- cident policy. Sneck vs. Travelers' Ins. Co. (Supreme Court, General Term, Fifth Department), 30 N. Y. Supp., 881. EMPLOYER'S LIABILITY POLICY— CONDITION— CON- STRUCTION— DEFENSE OF ACTIONS BROUGHT BY EM- PLOYEES.— In an action upon an employer's liability policy, vrhereby the defendants agreed to pay the plaintiff all sums up to a certain limit and full costs of suit, if any, in respect of which the plaintiff should become liable to Ms employees for injuries received whilst in his service, subject to the condition, amongst others, that "if any proceedings be taken to enforce any claim, the company shall have the absolute conduct and control of de- fending the same throughout, in the name and on behalf of the employer, retaining and employing their own solicitors and coun- sel therefor," the plaintiff is not entitled in the face of such a stipulation to claim from the defendants the amount of a judg- ment obtained against him by an employee in an action defended by the plaintiff through his own solicitor and counsel, leaving the defendants to show as a defense, or by way of counterclaim, that they could have done better by defending it themselves; nor was an offer by the plaintiff, at a time when the action was at issue, and on the list for trial the following day, to hand over the de- fence to the defendants' solicitors, a sufficient compliance with this condition. Wythe vs. Manufacturers' Accident Insurance Co., 26 O. R., 1.^3. CONDITIONS IN ACCIDENT POLICY.— In an action on an accident policy, which provided for payment for death only when, the death occurred ninety days after the accident, it was shown that the death occurred on June 26th. and the accident occurred either on March 23d or March 30th. Before the insured's death, his wife, who wag the beneficiary under the policy, had written to the company to claim indemnity for loss of time. In this letter she stated that the accident occurred on March 23d. The accident did not incapacitate the insured from labor until fully a week after it occurred. The letter did not conclude the bene- ficiary from showing that the accident occurred on March 80th. An accident insurance policy provided that a failure to give im- mediate written notice of an accidental injury or death to the company at its home office should invalidate the policy. The beneficiary went to the office of the local agent to notify him, and left word with his clerk, whereupon the local agent notified the home office in writing. The home office thereupon had the case investigated by its officers, and its surgeon attended the post mortem examination of the insured. The notice was given to the local agent in May, and, although the accident occurred in March, it did not nppear to be serious until April. Held, proper to submit to the jury tho question whether written notice had been given within a reasonable time, and whether the com- pany had waived such notice. American Ace. Ins. Co. vs. Norment (Supreme Court of Ten- nesifeel, 18 S. AA'. Rep., 395. POLICY. 473,. DEATH WHILE VIOLATING LAW— An accident policy stipulated tliat tlie insurance should not cover death while in- sured was engaged in any unlawful act. A criminal statute prohibited seining, under certain circumstances, in streams above tide water. The court held that an answer in an action on such policy alleging that insured, at the time of his death, was engaged in seining in a certain river, but omitting to state that such river was above tide water was defective. Conboy vs. Ky. Off. & Emp. Ace. Assn. (App. Ct. Ind.), 43 Northeastern Reporter, 1017. CONSIRUCIIGN OF CONDITION IN AOCIDBNT POLICY.— In determining the meaning of the term "accident," as used in an accident policy, the natural and reasonable Import of the whole contract must be taken into consideration. Where one had a policy on his life, the policy containing these words, "?4,UOO.OO shall be paid in case of death by accident," and "shall be entitled, in case of his death from natural causes, to $100.00," and met his death in a tight in which he voluntarily engaged, the bene- ficiary under the, policy was entitled to recover as lOr death by accident. Lovelase vs. Travelers' Protective Ass'n of America (Supreme Court of llissouri. Division No. 1), 28 S. W. Rep., 877. ^VHEN LIFE POLICY TAKES EFFECT.— In an action on. an accident policy it appeared that the policy was issued Jan- uary 16th, to take effect January 20th, and that for the premium assiu-ed gave an order on his employer payable out of his wages for Febriiaiy and the succeeding months, his wages being due on the 18th of the month after that in which they were earned.. The policy recited that it was issued in consideration of an order for monies on the employer, and provided that "in case of just claim before the first premium is due, if the sum due insured Is- less than the sum of all the payments called for by the order, it shall be credited thereon; if greater the order shall be receipted and the balance paid assured." The day before the policy went into effect assured left his employer, drew all his wages, and on February 3d, while still out cf such employ, was killed. The Appellate Court of Indiana held that the beneficiary could re- cover. Travelers' Ins. Co. vs. Cash, 42 N. E. Reporter, 246. WHEN CONDITION OF ACCIDOBJNT POLICY IS NOT VIO- LATEiD. — Under a policy providing that the insurance shall not extend to injuries received in consequence of violating the law, the fact that insured was killed in a difficulty soon after leaving a bawdyhouse, and while he was carrying concealed weapons, does not prevent a recovery, it not appearing that his death was the natural result of either his visit to the house or the act of carrying the weapon. The facfr that insured was shot immedi- ately after leaving a bawdyhouse does not prevent a recovery under a. policy providing that the insurance shall not extend to injuries due to an "unnecessary exposure to danger." Where the insured was killed by a shot from a pistol in the hands of an- other, and deceased did nothing to provoke the shooting, the- killing was accidental, within the meaning of the policy, though the person shooting intended to kill deceased. Jones vs. United States Mut. Aco. Assn. of City of New York, 61 N. W. Rep., 485. 474 INDICATOR'S DIGEST. WHEiN PROVISION IN POLICY IS COMPLIED WITH— A provision in an accident insurance policy issued to a railway em- ploye that the assured shall leave in the hands of the paymaster of the railroad the installments of premium as agreed in an order of the assured on the paymaster to retain the installments out of the assured's wages, is complied with by leaving his dues in the hands of the paymaster without seeing that the latter turns them over to the company. Fidelity & Casualty Co. vs. Johnson (Supreme Court of Mis- sissippi), 17 So. Rep,, 2, REiASONABLB COMPLIANCE WITH TERMS OF POLICY. — A policy of accident insurance provided that, in case of death or injury, notice of claim should be given to the secretary of the company immediately after the accident, and positive proof of death should be furnished within six months' thereafter, as con- ditions precedent. Where the insured, a tugboat engineer, dis- appeared on November 9, 1892, and his body was found in the water near the tugboat on April 19, 1893, and notice of death wa.s furnished May 26, 1893, and the proofs July 12, 1893, it showed a reasonable compliance with the terms of the policy. Kentzier vs. American Mut. Ace. Ass'n (Supreme Court of Wisconsin), 60 N. W. Rep., 10O2. CONDITIONS OF ACCIDENT INSURANCE POLICY.— Where an accident insurance policy Is, by its terms, made pay- able in ease of death received through external, violent and acci- dental means, the Intent is that the means, or that whicli caufced the injury, must be external. Where the assured chokes to death while attempting to swallow a piece of beefsteak, which acci- dentally lodges in his windpipe, death results from violent and accidental means within the meaning of the conditions of si'ch policy. No construction should be placed on an accident Insur- ance contract that would defeat the intention of both parties to it Am. Ace. Co. vs. Riegart (Court of Appeals of Kentucky), 23 S. W. Rep.. 191. ACCIDENT INSURANCE— "BEING ON RAILWAY ROAD- BED."— One W. held a policy of accident insurance, which pro- vided that it should not cover "injuries or death resulting from, or caused, directly or indirectly, wholly or in part, by * * * voluntary exposure to unnecessary danger, * * « vvalking or being on a railroad bridge or railroad, * * * nor to negli- gence contributing to the injury or death." W. went to a rail- way station, to meet his sister on incoming train. He stood on a sidewalk, at a highway crossing beside the station, on the op- posite side of the tracks from the platform. As the train ap- proached, thinking his sister could alight more easily on the platform side, he started to cross the tracks, a distance of about twelve feet; and as he was stepping on the platform, he was struck by the train and killed. His wife, the beneficiary in the policy, sued the company. The court held that the phrase walkmg or being on a railway bridge or roadbed" was not to be construed with absolute literaluess, and did not obligate the insured not to cross a railroad, at- the place provided for the public to cross it, or at a public thoroughfare. Also that the ciuestion of contributory negligence was for the jury ' Traders' & Travelers' Ace. Co. vs. Waglev (U " S Cir Ct App.), 74 I'^Meral Reporter, 4.57. .^ v • ■ • v.i. POLICY. 475 ACCIDENT WHILE VIOLATING LAW.— Where an accident insurance policy provides that it shall not cover any accident which occurs while the insured is engaged in any act which is a violation of the law. a person who slips upon the frozen ground while engaged in hunting at a time when hunting is unlawful, cannot recover under his accident policy. Duran vs. Standard Life & Accident" Ins. Co. (Supreme Court of Vermont), 22 At. Rep,, 530. WHAT IS OOVEBED BY ACCIDENT INSURANCE.— An in- surance company issued to a party a policy insuring him against injury or death, effected thi-ough external, violent, and accidental means, but not covering death resulting from duelling or fighting, or happening while or in consequence of violating the law. Such party was shot by another, while engaged in an altercation, but the assured was unarmed at the time. The court held that his death was accidental, and the company was liable upon the IKjllcy. Robinson vs. Ins. Co. (Cir. Ct. U. S. Mo.), 68 Fed. Rep., 825. ■^THAT CONSTITUTES LOSS OP LIMBS ?— Where a policy of insurance provides for payment in case one should "suffer the loss of the entire sight of both eyes, or the loss of two entire iands or two entire feet, or one entire hand and one entire foot," where insured was accidentally shot in the back, producing par- alysis of the lower part of the body and entirely destroying the use of both feet, he has suffered the loss of both feet within the meaning of the policy. Sheanon vs. Paciflx; Mutual Life Ins. Co. (Supreme Court of Wisconsin), 46 N. W. Rep., 799. CONSTRUCTION OF ACCIDENT POLICY.— A policy in- suring against death and other injuries resulting from "external, violent and accidental means," covers death by stumbling and falling against a locomotive engine. Where ons who is running rapidly towards an approaching train for tie purpose of getting the mail-bags, stumbles, as be nears the track, and falls against the engine, the injury is clearly not "intentional" within the exception of an insurance policy; nor can it be construed as the result of "walking or being on a railroad" track, or of "voluntary exposure to unnecessary danger," within the meaning of other exceptions. Equitable Ace. Assn. vs. Osborn (Supreme Court of Alabama), 9 South. Rep., 869. CONSIDER-iTION IN POLICY— A policy reciting that in •consideration of the warranties contained in the application, and an order for moneys upon a railroad company the company in- sures, etc., does not by the subsequent provision that the sums named in the order must be paid according to the terms of the order, to keep the policy in force, make such payment part of the consideration. And where a policy provides that it shall be void in case insured fails to pay, or leave in the hands of the paymas- ter the installments of premiums as agreed iu order given by the insured to the insurer on the railroad coiiipauy by which insured was enipldyed. it ;s incumbent in a suit on the policy to show that it had been k,?pt in force by the pay incut of the premiums; and it is not enough to show that insured had continued to work for the comiiany to the time of the accident. Farrell vs. Amer. Empl. Liability Ins. Co. (Sup. Ct. Vt.) 34 Atl. Reporter, 478. 476 INDICATOR'S DIGEST. ACCIDENT INSURANCE: TWO POLICIES IN ONE COM- PANY.— An application for accident insurance had a printed clause reading, "I have no other insurance in this company." A prior application had been taken by the same agent, and the two policies were issued by the same company, which received the premiums on both. The Supreme Court of Michigan held that the company was thereby prevented from denying the validity of either policy. Emlaw vs. Travelers' Ins. Co., 66 N. W. Reporter, 469. ACCIDENT INSURANiCE^WAiLKING ON RAILROAD TRACK. — 'Deceased, who was killed in attempting to cross rail- road tracks near a station where, with the permission of the. company, they were commonly crossed by the public, was "walk- ing or being on the roadbed," within the meaning of a policy providing that, for injuries received while walking or being on the roadbed of any railway, the beneficiary shall be entitled only to the death loss provided in the classification for railway em- ployes. Keene vs. New England Mut. Ace. Ass'n (Suprefne Judicial Court of Massachusetts), 41 N. E. Rep., 203. WIHERE VIOLATIONS OP CONDITIONS OF ACCIDENT POLICY IS A QUESTION FOR THE JURY.— In an action on an accident policy it appeared that assured undertook in the day- time to cross railroad tracks at a station at a place where they were commonly crossed by people with the permission of the company, and that he was struck and killed by detached freight cars which had been "kicked" along the track, the sight of which was cut off by an umbrella which he was carrying to protect himself from rain. The assured's acts were not necessarily a violation of conditions in the policy providing that no claim under it should be valid in case of death resulting from "any voluntary exposure to unnecessary danger, hazard, or perilous aaventure," and requiring the assured "to use all due diligence for personal safety and protection" ; and the question of such, violation was for the jury. Keene vs. New England Mut. Ace. Ass'n (Supreme Judicial Court of Massachusetts), 36 N. E. Rep., 89L CONSTRUCTION OF EMPLOYERS' LIABILITY INSUR- ANCE POLICY. — An application by an ice company for a policy of insurance against loss to it from injuries to its employee stated that its business was ice dealer at a particular place named, where it was cutting ice; that "the operations carried on by the work people are cutting and hauling ice." The applica- tion was made a part of the policy which was issued. It provided that the sum to be paid the employer should be for injuries to any employe in its service, "while employed in the employer's work, in any of the occupations, or in any of the places, men- tioned on the schedule hereto." The schedule gave such occupa- tions as "all operations connected with the business of ice- dealers." The insurance company was not liable for losses paid the employes for injuries received while erecting a new ice house at the place stated in such application, though it was customary for ice dealers to erect their own ice houses. People's Ice Co. vs. Employers' Liability Assur. Corp. of Lon- don (Supreme Court of ^Massaelivisetts), 36 N. E. Rep., 754. POLICY. 477 EMPLOYERS' LIABILITY INSURANCE.— The Supreme Court of Jliimesota holds that under such a policy, the insured need not give notice to company until an accident has happened and he has been notified himself of the claim; that the insurance company is liable to him for amount of judgment, within limi- tation, though he has not paid the judgment. And if the in- sured has failed in business, the liability of the company did not pass to his assignee, and the party injured could garnishee the company to recover the amount of his judgment. Anoka Lumber Co. vs. Fidelity & Casualty Co., 65 N. W. Re- porter, 354. ACCIDENT INSURANCE— CON'STRUCTION OF CONDI- TIONS.— The words "disease" or "bodily infirmities" as used in the provision of an accident policy exempting Insurer from lia- bility for injuries caused thereby, mean practically the same thing, and only iniclude an ailment or disorder of a somewhat established or settled character, and not merely a temporary disorder, arising from some sudden and unexpected disarrange- ment of the system, though it produces unconsciousness. In- juries caused by a fall due to a temporary and unexpected physical disorder are "violent," "external" and "accidental" within the meaning of such words in a policy. Meyer vs. Fidelity & Casualty Co. (Supreme Ct. la.), 65 N. W. Rep., 32S. PERFORMANCE OF CONDITIONS IN A LIFE POLICY.— In an action on a life insurance policy the jury found that the party was injured and died within ninety days afterwards; that the beneficiary procured blank forms and executed proofs of •death, and forwarded them to the company, and that such proofs were accepted and retained by it; and also that immediate writ- ten notice of the death was given by the beneficiary, or some one in her behalf, to the company. The Appellate Court of Indiana held that these findings failed to show compliance with a condi- tion "in the policy, that written notice should he given the com- pany "of any accident or injury for which a claim is to be made, with full particulars of same, and the full name and address of the insured." Standard Accident Ins. Co. vs. Strong, 41 N. E. Reporter, 604. AVHAT CONSTITUTES THE LOSS OF A HAND.— Whether the tearing off of three fingers wholly, and a part of the other, and cutting the hand, and destroying the joint of the thumb, was the loss of one hand, "causing immediate, continuous and total disability" of the same, within the meaning of the contract of insurance, was a question of fact for the jury; and the jury have found that such loss of the hand was entire. On the part of the insurance company it is contended that there is no such thing as the loss of the hand unless the injury is such as to require the amputation of the hand above the wrist. That would be too much of a refinement upon language for practical purposes. The hand was for use; and, if it was injured so as to become useless as a hand, then the company became liable for its loss under the contract. Lord vs. American Mut. Ace. Assn. (Supreme Court of Wis- consin), 61 X. W. Rep., 293. 478 INDICATOR'S DIGEST. CONSTRUCTIOiN OP ROADBED IN POOCY.— A space of ten feet ■between railroad tracks is not the "roadbed," witliin a policy of accident insurance which provides that it does not cover accidents on "a railroad bridge, trestle or roadbed." Meadows vs. Pacific Mut. Life Ins. Co. of California (Supreme Court of Missouri, Division No. 2), 31 S. W. Rep., 578. THE SUPREME JUDICIAL COURT OF MASSACHU- SETTS holds that where a policy provided that walking or being on the roadbed of any steam railway were hazards not covered by it, and deceased, while walking between the tracks of the railway was struck by an engine and killed, defendant was not liable on the policy. Piper vs. Mercantile Mut. Ace. Assn., 37 N. E. Rep., 759. REPRESENTATION. MISSTATEMiBNT QiF INCOME IN AiOOIDBNT INSUR- ANCE. — In an application for accident indemnity, when the ap- plicant states his income truly, but the agent, without his knowl- edge or consent, increases the amount so as to place the appli- cant in another class of insured, an agreement that the society shall not be bound by any statement made to, or knowledge pos- sessed by, the agent not written in the application, and that such person is the applicant's agent, to entei' his answer, does not relieve the insurer of its estoppel to contest the policy. A clause in an application for mutual accident indemnity, agreeing that the benefits to which the applicant shall become entitled, shall be governed and paid in the same ratio that his income shall bear to the amount of indemnity insured, is binding on the in- sured, though the agent, by false statements as to his income, has put him in a higher class, paying larger premiums. Howe vs. Provident Fund Soc. (Appellate Court of Ind.), 3i N. E. Rep., 830. REINSTATEMENT. REINSTATEMENT OF MEMBER OF ACCIDENT INSUR- ANCE COMPANY.— A notification by an accident insurance com- pany, to a member, that his policy had lapsed, but that the com- pany would reinstate him and carry his policy, upon the remit- tance of his check for a specified amount, does not make the reinstatement depend upon the receipt and payment of the check, but such reinstatement becomes complete by the mailing of a letter containing the check, on the day the notification was re- SHOCK— STATUTE. 479 ceived; and hence tbe member may recover for accidental injuries sustained wliile the latter was in transit, and before it reached the company. Calvin vs. N. S. Mut. Ben. Ass'n (Supreme Court of Nev7 York), 21 X. Y. S.. 734. SHOCK. ■'ACCIDENT"— SHOCK CAUSED BY FRIGHT.— A shock to the nerves of an employe caused by fright sustained in the dis- charge of his duty, and incapacitating him from employment, is an "accident," within the meaning of a policy iss'ied by a rail- way company to such employe, under which a weekly allowance is to be paid by the company in case of such employe "being incapacitated from employment by reason of an accident sus- tained in the discharge of his duty in the company's service." Pugh vs. London, Brig'hton & South Coast Ry., 65 L. J. Rep. Q. B. D.. 521. STATUTE. CONSTRUCTION OF STATUTE.— The defendant, with the object of starting a branch of the "International Fraternal Alli- ance" of Baltimore, while in Ontario induced a number of per- sons to make application for membership therein, and to pay a joining fee of $5, which in addition to certain alleged social benefits entitled a member on application therefor, and on pay- ment of certain fees to pecuniary benefits, namely, a certificate entitling the member to a weekly payment in case of sickness or accident, and certain other sums in case of death or after a stated period. The defendant gave the applicants a receipt acknowledging the payment of the $5, for, as stated, purposes mentioned in an agreement written thereunder, namely, to for- ward to the head office the application on signature thereof, and if declined to return amount paid; but, if accepted, the payer was constituted a member of the society, entitled to the full benefits of all its social and moral advantages, and thereafter might secure all the pecuniary benefits on application therefore. It was held that the defendant was carrying on the business of accident insurance without having obtained the necessary license therefor, contrary to section 49 of the Insurance Act, Revised Statutes of Canada, 1886, ch. 124; and that no protection was afforded by section 4-3 of that act, relating to societies or asso- ciations of persons for fraternal, benevolent, industrial or re- ligious purposes, the scheme not being an insurance of the lives 480 INDICATOR'S DIGEST. of the members exclusively. Tbe defendant was convicted for carrying on such business. Re&ina vs. Stapleton, 21 0. R., 679. SUICIDE. SUICIDE CLAUSE IN LIFE INSURANCE POLICY.— In an action on a lite insurance certificate, which contains a clause that death by suicide, whether sane or insane, shall prevent recovery, tbe questioB of suicide is not one of law, but one of fact to be -decided from all the surrounding circumstances. Washburn vs. National Ace. Soc. (Supreme Court of New York), 10 N. Y. Sup., 366. SUICIDE A QUESTION FOR THE JURY.— In an action on an accident policy it appeared that the insured was found between 5 and 6 o'clock in the morning in a eanal at the foot of a street at or near the termination of a sidewalk running up to the margin of the canal, where there had previously been a bridge, and where a new one was being constructed, which was unprotected; and there was direct and positive proof as to the cause of death and the surrounding circumstances, the Supreme Court of New York, 4th Dept., held that it was a question for the jury whether the insured committed suicide. De Van vs. Com. Trav. Mut. Ace. Ass'n, 36 N. Y. S. Reporter, 931. "SiUICIDE (SANE OR INSANE)."— The condition of a policy was that it should not cover a case if death resulted from "suicide (sane or insane)." It was- not denied that the assured died from the effects of a pistol shot fired by himself, but it was insisted and testimony was offered to show that when the insured so fired the shot his mind "had become so dominated and controlled by an unnatural impulse to fire said pistol into his own forehead that his will could not resist said impulse, and that he did not voluntarily or intentionally fire the same, but in obedience to such impulse. That at the time when said shot was so fired deceased had become mentally incapable of understanding and appreciating the physical nature and consequences of the act he was then committing, and did not understand nor appreciate the same, and did not then know nor recognize the fact that by so firing that pistol he would take his own life." Life insurance companies long since inserted in their contracts a clause of non- liability in case the assured died by "suicide" or "by his own hand," which courts have construed as synonymous terms. In constructing this clause courts have widely differed, some — nota- bly those of England, Massachusetts, and New York — holding that no recovery can be had in case of self-destruction, however insane the act of the assured might have been; while others- including that of Vermont — have held that when one's reason and judgment had become so impaired that his mind was over- thrown, and he could not resist the insane idea that he must SUICIDE. 481 take his own life, although his mind in that condition contrived the means, and his physical strength carried them out and took his life, such self-destruction did not avoid the policy. After the decisions holding companies liable in case of suicide by the assured while insane, many companies inserted the condition of non-liability in case of "suicide, sane or insane." This clause has been before the courts for construction, and the decisions generally are that a company is not liable if the assured design- edly dies by his own hand, that is, if he commits the act inten- tionally with knowledge of his consequences, although uncon- scious of its criminal character. This is as far as many of the courts have been required to go upon the facts before them, but the question has arisen in some instances as to the liability of the insurer in case the assured destroys himself in such an in- sane condition as to be incapable of understanding the physical nature and consequences of the act he was doing, — did not know that by firing the pistol, hanging himseff, or doing like acts, he would take his own life. That the insurer is liable in such cases is maintained, apparently, in Insurance Co. vs. Daviess' Ex'r, 87 Ky., 541, 9 S. W. Rep., 812, and Adkins vs. Insurance Co., 70 Mo., 27; and perhaps some other cases. The contrary rule is the bet- ter doctrine. The parties in the present case contracted, and the condition is expressed, in terms not easily misunderstood. The words are: "Nor will it (the policy) cover death or injury re- sulting from* * * suicide (sane or insane)." It is not con- tended that the insured was in any way misled, nor that the con- tract was contrary to sound morals or public policy. If the insured can contract against hazardous occupations, residence within the tropics in July and August, death in a duel, by the hands of the law, in war. or when intoxicated, why can they not limit their liability in case of suicide, felonious or otherwise? It is the court's duty to construe the contract made by the parties, not contract for them. The better construction to give a term or phrase in a contract is the one according to its ordinary and common meaning, as mankind would generally understand it. The insurer in this case was evidently unwilling to incur the perils of insanity, and this clause limiting its liability was inser- ted for its protection. It was a valid contract. The insurance company had the right to say that it would not hold itself responsible for the acts of the insured. It did while insane, and the question is. can the court, with such a contract before it, attempt to measure the degree of insanity? The construction contended for the words "sane or insane" are immaterial, sur- plusage, of no force whatever. That must have insanity for some purpose. Felonious suicide was not alone in contempla- tion of the party to the contract. If it had been, there was no necessity of doing anything to the general words. The insurance company says that "by force of them, we are not to be liable in case the assured dies by suicide, sane or insane," and the only answer is, "It is true the assured died by his own hand when insane, but he was very insane; in fact so insane that when he took his life he did not know what he was doing, nor the effect of his acts." If this construction of the contract be adopted there is added to it an element not agreed to by the parties. If the death of the assured was caused in the manner and under the circumstances stated the insurance company cannot be held liable. There is nothing in the evidence nor offer of evidence tending to show an accidental discharge of the pistol, nor that 482 INDICATOR'S DIGEST. death resulted from anything save the pistol shot fired by the assured. And there can be no recovery if the assured committed the fatal act otherwise than accidentally. The clause "suicide, sane or insane," was intended to, and does, include self-destruc- tion irrespective of the assured's mental condition at the time of the act which caused his death. This is following the better rule, in that it gives effect to- the contract made by the parties, and the logical conclusion of the better considered cases. Billings vs. Accident Ins. Co. of North America (Supreme Court of Vermont), 24 At. Rep., 656. TIME. ACCIDENT POIilCJy.— Under an accident policy inisuring a person against the loss of the money value of his time, not ex- ceeding $25 per week, nor for more than 32 consecutive weeks, a recovery may be had for time actually lost, within the limits prescribed, though the employer of the insured continued his pay during his disability. Globe Ace. Ins. Co. vs. Helwig (App. Ct. Ind.), 41 N. E. Rep., 976. VALIDITY OP CONDITION IN INSURANCE POLIOY.— A condition in an accident insurance policy that no action thereon shall be brought unless commenced "within a year" from the accidental injury, is not a contravention of the statute, which forbids any person licensed to do insurance business to limit the terms within which suit shall be brought "to a period less than one year." In the absence of a waiver of such condition on the part of the insurer, it is valid as a reasonable agreement. Lowe vs. United States Mut. Acc't Ass'n (Supreme Court of North Carolina), 20 S. E. Rep., 170. VOLUNTARY EXPOSURE. CONDITIONS OF ACCIDENT POLICY AS TO VOLUN- TARY EXPOSURE.— Voluntary exposure to unnecessary dan- ger, conditioned by an accident policy to relieve the insurer from liability, is intentional exposure to danger, as where one acts so recklessly and carelessly as to show an utter disregai'd of a known danger, or does an act in the face of risk of danger so obvious that a prudent man, exercising reasonable foresight, would not have done it, De Loy vs. Travelers' Ins. Co. (Supreme Ot. Penna.), 32 At- lantic Reporter, 1108. VOLUNTARY EXPOSURE. 483 VOLUNTARY EXPOSURE.— One who carelessly steps on a railroad track without noticing an approaching train, is not guilty of "voluntary exposure,, to danger within the meaning of an accident insurance policy. Such act must be done design- edly, not accidentally; and consequently one cannot be said to be guilty of a voluntary exposure to danger unless he intention- ally and consciously assumes the risk of obvious danger. Lehman vs. Great Eastern Casualty & Indem. Co. (Sup. Ot. App. DiT.), 39 N. Y. Supp. Reporter, 912. EXPOSURE TO PERILS.— A clause in an accident policy provided that the insurance should not cover death resulting in consequence of voluntary exposure to unnecessary danger or perilous venture. The court held that an action by the bene- ficiary, an answer was suflBcient which alleged that, at the time of his death, insured was seining in a river which was very swift, and full of sudden step-ofEs and holes; that, while so en- gaged, he suddenly came to one of such step-offs or holes, and stepping into said hole, where the water was deep, and being nuable to swim, was drowned. Conboy vs. Ry. Officials & Employes' Ace. Assn. (App. Ct. Ind.), 43 Northeastern Reporter, 1018. ACCIDENT INSURANCE; VOLUNTARY EXPOSURE— A, by riding a bicycle race, does not as a matter of law over-exert himself, or voluntarily expose himself to danger, within a pro- vision of an accident policy that it shall not cover injuries result- ing from voluntary over-exertion or voluntary or unnecessary ex- posure to danger. Keefe vs. Nat. Ace. Soc. (Sup. Ct. App. Div. 3rd Dept.) 38 N. Y. S. Reporter, 854. VOLUNTARY EXPOSURE TO DANGER UNDER ACCI- DENT POLICY. — In an action on a policy which insured against death' by accident it appeared that deceased was sitting on a bag on a railroad track at a highway crossing, near a curve; that he sat with his back to the curve, conversing with another per- son; that a train came suddenly around the curve, and on warn- ing deceased started up, but reaching to get his Isag was struck oy the engine. The policy expressly provided that it did not cover injuries caused by "voluntary exposure to unnecessary danger." The court held that the act described was not within the exception. Fidelity & Casualty Co. vs. Chambers (Sup. Ct. App. Va.), 24 Southeastern Reporter, 896. THE SUPREME COURT OF MICHIGAN HOLDS, That under an insurance policy, providing that it should be void if the accident occurred from voluntary or unnecessary exposure to danger, no recovery can be had for the death of the assured caused by jumping from a moving train after it had passed a station. Smith vs. Preferred Mut. Ace. Ass'n, 62 N. W. Rep., 990. 484 INDICATOR'S DIGEST. WAIVER. WAIVER OF NOTICE— The provisions in a life insurance policy requiring immediate notice of death or accident to be given the insurer may be waived by the company or its general agent. Amer. Ace. Co. vs. Fidler's Adm'x (Ct. App. Ky.) 35 S. W. Rep. 905. WAIVER OF PROOF OF DEATH.— Proof of death under a policy is waived by the declarations of one of the officers, made to the beneflciar.y, to tlie effect that the officers knew of the member's death; that it would be of no use to make proofs, be- cause the insurance did not cover such a case, and that the claim would not be paid. Met. Ace. Assn. vs. Froiland (Sup. Of. 111.), 43 N. E. Reporter, 766. WAIVER OF CONDITIONS IN ACCIDENT INSURANCE. — Where a condition in an accident insurance policy requires written notice to the insurer of any accidental iniury to Ihe in- sured, "with full particulars of the accident and in.ijry," and provides that "failure to give such notice within ten days from the date of either injury or death," shall invalidate all claims Tinder the policy, the ten days under which to give the notice do Tiot begin to run until the fact of death, and the circumsf.ances under which it occurred, have been ascertained. The insurer waived the coQdition requiring notice within ten days by retain- ing, without objection, a notice of the accidental death of the insured, given more than ten days after such death, and a .sub- sequent notice by the administrator of the insured; by furnishing the necessarjr blanks and proofs of loss; by retaining, without objection, the proof made in compliance with the r.erms of the policy; and by subsequently calling for and receiving further in- formation. Trippe vs. Provident Fund Society (Court of Appeals of N Y.), .^5 N. B. Rep., 316. ABANDONMENT. 485 MARINE INSURANCE. ABANDONMENT. WHO ilAY MAKE ABANDONMENT.— Tlie fact that the in- surance on the owner's Interest In a vessel is made payable to the mortgagee, does not prevent the owners from abandoning the vessel to the insurers as a constructive total loss, where the mort- gage expressly provides that the owners shall control and possess the vessel until default in the payment of the mortgage; the rule being that the abandonment may be made by the person who has the power to make a legal transfer of the vessel. ^Murray vs. Great Western Ins. Co. (Supreme Court of New York). 2.5 N. y. Supp.. 414. ABANDONMENT.— In the absence of a requirement In the policy, it is not necessary that an abandonment to the Insurer of the interest of the Insured, so far as covered by his policy, in a vessel of which there has been a constructive total loss, should specify the fractional interest conveyed. And an absolute rejec- tion by a marine insurer of an abandonment, which contains an offer to make any further conveyance or assurance of title to the abandoned vessel which may be required is a waiver of the right to object to the form of the abandonment. Ins. Co. of N. A. vs. Johnson (XJ. S. Cir. Ct. App.)t 70 Fed. Rep., 794. ABANDONMENT OF SHIP— SALVAGE- UNDERWRIT- ERS' RIGHT TO FREIGHT- DEDUCTIONS FROM FREIGHT. — A ship was abandoned to underwriters as a total loss. By the charter-party it was agreed that the cash for ship's disbui-se- ments at ber port of loading should be advanced by the char- terers, "ship paying 2^ per cent commission, including insur- ance." Held, that in estimating the amount of freight to which the underwriters were entitled by vu'tue of the abandonment, a sum advanced by the charterers under the above agreement, being advance freight, was to be deducted from tue gross freight, but that the cost of coals bought during the voyage for the purpose of the voyage, and paid for by the master's draft matm-ing after the date of abandonment, was not to be deducted from the gross freight. "The Red Sea" (1895), p. 293, 11 R., ."30. 486 INDICATOR'S DIGEST. ABANDONMENT TO INSURE©.— The owner of a craft worth $9,000, which was insured for $5,000, discovered that it had sprung a lealv, and so notified the insurance company. The agent pro- ceeded to the boat with a wrecliing vessel, the owner of which agreed to raise her for' $1,800. The agent urged tlie owner to enter into this arrangement, and agreed to pay the bill. This was refused, and the sinking craft abandoned to the insurers. She could have been repaired for $300, and all that the owner was entitled to recover was $2,100, as this amount would have saved the boat, and an owner will not be permitted to abandon a ship to insurers which can be saved for less than half the amount of the insurance. Hundhousen vs. United States F. & M. Ins. Co. (Suprem? Court of Tennessee), 17 S. W. Rep., 152. CONSTRUCTIVE TOTAL LOSS— NOTICE OF ABANDON- MENT—SALE OF VESSEL BY MASTER— NECESSITY FOR SALE.— If a disabled ship can be taken to a port and) repaired, though at an expense far exceeding its value, unless notice of abandonment has been given, there is not even a constructive total loss. If the ship is in a place of safety, but cannot be re- paired where she is, nor taken to a port of repairs, and if in- structions from the owner cannot be received for some weeks, the expense of preserving her, the danger of her being driven on shore and the probability of greater deterioration in value during the delay, will justify the master, when acting bona fide and for the benefit of all concerned, in selling without waiting for instructions, and the sale will excuse notice of abandonment. Nova Scotia Marine Ins. Co. vs. Churchill, 26 S. C.~R., 65. MARINE INSURANCE: ABANDONMENT: SEAWORTHI- NESS.— In an action upon a marine polic.v, it was held that the sudden sinking of a canal boat while being towed down the North river was not conclusive evidence of unseaworthiness, and that there was room for finding that there was a loss by peril of the sea; the evidence being that there were shad-iwles in the river at the place of sinking, and that another vessel had been lost n-om collision with such obstructions. And where a policy provides that there could be no abandonment except In case of total loss, it was not necessary, in case of constructive total loss, to prove abandonment. McLain vs. Brit. & Foreign Marine Ins. Co. (Sup. Ct., App Div.), 37 N. Y. S. Reporter, 77. MARINE INSURANCE — ABANDONMENT — WAIVER.— A policy of insurance on a cargo of corn provided that the acts of the insurer in recovering, saving, or disposing of the property insured should not be considered as a waiver or acceptance of an abandonment, or as affirming or denying any liability under the policy, but that such acts should be considered as done for the benefit of all concerned, without prejudice to the rights of either party. By taking possession of and selling the injured portion of the cargo, with notice that the injury was caused by ice, the insurer did not waive a provision in the policy exempting it from liability caused by ice, or render itself liable to a charge of con- version. Schuyler vs. Phoenix Ins. Co. (Supreme Court of Kew York) 10 N. Y. Sup., 205. ACTION— ADVANCE. 487 ACTION. SUFFICIENCY OF STATEMENT IN ACTION ON JIARINE POLICY. — Where the complaint in an action on a maritime policy alleges "that plaintifE has duly performed all the conditions of said policy of insurance on his part," it suflaciently alleges that the boat of the Insured was in a seaworthy condition, within the requirements of the policy. JIcLiain ts. British & Foreign Marine Ins. Co., 35 N. Y. S. Rep., 827. ADVANCES. ADVANCES TO MASTER AT PORT OF LOADING— CON- STRUCTIVE TOTAL LOSS— ABANDONMENT OF SHIP- FREIGHT COLLECTED AT PORT OP DISCHARGE— DEDUC- TIONS FROM FREIGHT— UNDERWRITER'S BIGHT TO AD- VANCE FREIGHT.— By charter party it was provided that "suf- ficient cash for ship's ordinary disbursements at port of loading to be advanced to the master by charterers or their agents * * • ^hip paying two and a half per cent, including insurance. Maste» to give his draft on owners or consignees as required and cus- tomai-y to cover same, which shall be paid out of the first freight collected." Advances were made and the ship proceeded on her voyage, but became a constructive total loss when close to her port of destination. She was subsequently brought to her des- tination, where she discharged her cargo. The master's draft for advances ultimately came into the hands of the consignees. The freight was collected by the ^ip-owners. In an action by the underwriters on hull and machinery against the ship-owners to recover the whole of the freight so collected, it was held that the ship-owners were entitled to deduct the sum advanced at the port of loading from the freight collected by them, on the ground 488 INDICATOR'S DIGEST. that the underwriters were only entitled to the charter party freight earned from the use of the ship after abandonment. De- cision of the court below, see The Indicator, Vol. xvii., p 266, affirmed. The Ked Sea, 65 L. J. Rep., P. D. & A. 9. IX>SURAXCE OX ADVANCES.— Where a. vessel valued at and insured for $100,000 is a total loss, and all the policies have been paid except one for $5,000, an action thereon cannot be de- feated merely because other insurance, to the amount of $28,750, "on advances," incident to the operation of the vessel, has also been paid; and it is immaterial whether such advances were th^ proper subject of insurance or not, so long as the insurance did not cover the vessel or any of her belongings. And where in marine insurance "on advances" is written in the valuation clause, which already contains a jirinted description of all parts of the ship, the policy may be consti'ued to be not upon advances for repairs, but upon scoiething independent of the ship, such as moneys advanced in Ler business. Providence-Washington Insurance Co. vs. Bowrlng (Circuit Court of Appeals, Second Circuit), .JO Fed. Rep., 613. AGENT. AUTHORITY OF MARINE INSURANCE BROKER.— Where it is the custom for marine insurance brokers to buy the insurance and deliver policies to the insured on their own account, a broker can recover of the insured the premiums on policies procured by him, though he has not paid such premiums to the insurer. Where a marine insurance broker in the State of Washington procures for a customer insurance in a foreign State and country, recovery of the premium can not be defeated because the Insurers are not authorized to do business in AVashington. Ward vs. Tucker (Supreme Court of Washington), 8.T> Tao. Rep., 1086. ADMISSIiBIDITY OP AGENT'S STATEMENTS —Where, at the instance of the insurer, a member of the Board of Under- writers, a telegram is sent to the board's agent of the port where an insured cargo was sold, such agent's letter to the board in an- swer tnereto, in regard to the loss and sale, is admissible against the insurer, though it is not entirely responsive to the telegram, it being in the nature of a report to his principal by an agent and therefore eauivalent to admissions by the principal. A letter by such agent to a reinsurer is not competent evidence aguinst the insured, as it is merely a statement to a third party, with whom the insured has no relation. Meyer vs. Great Western Ins. Co. (Supreme Court of Califor- nia), 38 Pac. Rep., 83. APPLICATION— AVERAGE. 489 APPLICATION. REPRESENTATION IN APPLICATION FOR INSURANCE. — An application for insurance on a vessel at Halifax contained these questions: "Where is the vessel?" and "When to sail?" The following answers were given by the insured: "Was at Buenos Ayres or near port," and "3d February, bound up the river; would tow up and back." The vessel was towed up the river and was damaged coming down, but not in tow. It was admitted, in an action on the policy, that towing up and down the river was a matter material to the risk; and it was held that the words "would tow up and back" in the application did not express a mere expectation or belief on the part of the assured, but amounted to a promissory representation that the vessel would be towed up and down, and this representation not having been carried out the policy was void. Bailev vs. Ocean Marine Insurance Company, 22 N. S. Reps., 5; 19 S. C. R., 153. AVERAGE. GENERAL AVERAGE— COALS CONSUIIED IN WORKING STRANTDED SHIP OFF THE GROUND.— Where a ship or her tackle are intentionally put to an abnormal use, involving an extraordinary risk of injurj' for the purpose of saving ship and cargo from imminent peril, any consequent loss to the ship is the subject of general average contribution. Working the engine of a ship whilst she is fast ashore is an abnormal use of them; con- sequently, c-oal consumed, and injury to the engines in so working them is the subject of general average contribution. English and American Shipping Co. vs. Inilemnitr Mutual Marine Ins. Co. (The Bona), 11 R., 46. CONSTRUCTION OF GENERAL AVERAGE BOND.— In an action on a general average bond given by an insurance company on the partial wreck of a '-essel containing a cargo where iff had insured the charge of a tug for ordinary service, is not admissible in evidence to show tne value of the service of a tug for wrecking purposes. Expenses of a cargo incurred after it was substantially all delivered, but before the vessel was in a place of safety, are properly allowed in the general average, as the community of interest between the vessel and the cargo docs not cease until the vessel has reached a jjlace of safety. Wheeler vs. Continental Ins. Co. (Supreme Court of New York), 9 N. Y. Supp., 142. 490 INDICATOR'S DIGEST. PROVISION IN MARINE INSURANCE OF DEDUCTION IN LIEU OF AVERAGE.— A policy of insurance covering several of libelant's tugs, and agreeing to "indemnify the insured for any loss or damage arising out of any accident caused by collision to any other vessels, their freights and cargoes, for vrhich said tugs or their owners may be legally liable," contained also the follow- ing provision: "It is understood and agreed that in case of loss $50.00 is to be deducted therefrom in lieu of average." A col- lision having occurred, by vchich two vessels belonging to differ- ent owners were injured, through the negligence of one of the insured tugs, the insurer claimed to deduct $50.00 for each vessel injured. The intent of the policy was that only $50.00 should be deducted for each accident, though more than one vessel were damaged. N. Y. C. & H. R. R. R. Co. vs. British and Foreign Marine Ins. Co. (District Court, S. D. New York), 58 Fed. Rep. 916. GENERAL AVERAGE— STRANDED STEAMER— DAM- AGE TO ENGINES— COST OF COAL FOR WORKING EN- GINES.— The "Bona," in the course of a voyage from Galveston to Liverpool, stranded while crossing Galveston bar and was in a position of considerable danger. She remained fast for four days, during which period her engines were worked from time to time with the intention of getting the ship off by that means. These means were ultimately successful, but her boilers and engines were damaged. The policy of insurance effected by the plain- tiffs with the defendants included payment of general average charges according to York-Antwerp rules, so that the cost of the repairs to the engines could not be excluded from general average in the present instance. The defendants, however, refused to in- demnify the plaintiffs in respect of the ship's contribution in gen- eral average in respect of coals consumed in working the engines, on the ground that such working was not a general average act, and the damage sustained by them not a general averagS^loss; so that, on the same principle, the coal was not a subject for general average contribution. Held, that if in endeavoring to refloat a steamship stranded in a position of peril, the engines are inten- tionally worked, at the risk of damage, for the common safety, the damage so caused to the tsngines is, apart from the York- Antwerp rules, a general average loss, and the value of the coal consumed in working the engines is also the subject of general average contribution. The court acted on the principle that there was the necessary element of sacrifice present in this case which gives rise to general average, viz.: the intentional abnormal risk to which the engines were put to save ship and cargo, and the use of the coals as accessory to the engines. English and American Shipping Co. vs. Indemnity Mutual Marine Assurance Co. (The Bona), (1895), p. 125. .GBNIERAL AVERAGE- INSURANCE ON HU1>L— ABAN- DONMENT— ATTEMPT TO SAVE VESSEL AND CARGO— EX- PENSES INCURRED— LIABILITY OF CARGO TO CONTB;IB- UTE— AVERAGE BOND.— A schooner loaded with coal was stranded in Humber Bay, near Toronto, and abandoned. The hull was insured, hut not the cargo, and notice of abandonment was given to the underwriters, wlio secured the services of an ex- perienced wrecker and a wrecking expedition and attempted to save the vessel. It wf.s considered advisable, and the best course AVERAGE. 491 in the interest of the owners of the cargo as well as the under- writers, to attempt to save the vessel and cargo together. A portion of t!ie coal was taken out and attempt made to save the vessel, but without success, and she had to be abandoned. Be- fore any of the cargo was delivered, the owners and underwriters executed an average bond, by which, after a recital of the loss of the schooner, they respectively bound themselves to pay the losses and expenses incurred according to their respective shares in the vessel, her earnings as freight and her cargo, and that such losses and expenses should be stated and apportioned in accordance with the established laws and usages of the Province of Ontario in similar cases by a named adjuster. The adjuster apportioned the loss between the underwriters as owners of the material saved and the owners of the cargo, maKing the amount due from the latter $2,314, and an action was brought against them on the average bond to recover the same. The sum of ?557 was paid into court and liability beyond that amount was de- nied. Held: that the average bond only obliged the owners of the cargo to pay what should be legally due according to thcB law of .general average; that the cargo and vessel were never in that common peril which gives the right to claim for general average; ajxi that the sum paid into court was sufficient to cover the cost which would have been incurred in saving the cargo by itself. Jind the underwriters were not entitled to recover more. Western Assurance Company vs. Ontario Coal Company, 1-' C. L. I., 469. CHARTERED HOflVlBWARD FREIGHT— FOREIGN STATE- MENT CLAUSE— GENERAL AVERAGE.— The plaintiffs, who were owners of a vessel chartered to proceed to a port in the United States, as ordered at port of call, and there load a cargo for the United Kingdom or Continent, and deliver the same on being paid the agreed freight, effected with the defendant, an underwriter at Lloyd's, an Insurance on ■■chartered homeward freight," the voyage being described In the policy as from Liver- pool to Delaware Breakwater, and thence to New York or one other named port, and thence to any port in the United Kingdom or Continent within named limits, and general average was to be pajable 'as per foreign statement if required." The plain- tiffs' vessel left Liverpool In ballast, under the above charter, and two days afterwards, in consequence of heavy weather caus- ing her tanks to leak, put into Holyhead without incurring ex- pense in so doing; but at that place some expense was Incurred, and, three days later, she returned to Liverpool, where further ex- penses were incurred In repairs, but none of the Items of ex- penditure at Holyhead or Liverpool were Incurred for the preser- vation of ship and freight. The vessel then sailed for Delaware Breakwater, ■where she received orders for Baltimore, to which port she proceeded, and then loaded, under the charter, a cargo which she delivered at Barrow. By an average statement pre- pared in London, according to the alleged provisions of American law, general average charges in respect to the expenses incurred In Holyhead and Liverpool were shown, Including a sum for wages and victualling of the crew whilst the vessel was at Holy- head and Liverpool. By the statement the ship was made to bear one part of these charges and the chartered freight the other part. Tile plaintiffs brought action in respect of the defendant's 492 INDICATOR'S DIGEST. proportion of the latter part or sum, alleging that a general aver- age loss had arisen, which had been properly adjusted according to American law, and that the plaintiffs must be treated as hav- ing contributed to the loss on the basis of the statement. It was held, that, as the ship was under charter outward bound in bal- last to load for the return voyage, and the only persons interested in the ship and chartered freight were the shipowners, the ex- penses in question were not a general average loss for which the defendant could be liable under the policy on chartered home- ward freight, and as there was no necessity for any foreign ad- justment, the "foreign statement" clause had no effect. The Brigetta, L. R. (189-3), p. 189. BARRATRY. BARRATRY.— The policy ATitten by the Portland Lloyds cov- ers barratry of the mariners, but not of the master, when the in- sured is an owner of the vessel. The master of a ship, who i.s a part owner, may be guilty of barratry towards his co-owners, si> as to avoid a policy of insurance, written in their favor, that does not cover the risk of barratry of the master. A marine policy covers negligence of the master and mariners. The testimony of an experienced seaman relative to proper measures whicli should be taken to prevent stranding is competent as bearing upon the proper navigation of a vessel, a question wholly for the jury to consider. Hutchins vs. Ford (Supreme .Judicial Court of Maine), 10 At. Rep., 832. CANCELLATION. LOSS OF FREIGHT— "OAXOBLLIXG OF CHARTER"— I>BLAY THROIiGH PERILS OF THE SEA.— A policy of insur- ance upon freight contained the provision, "no claim arising from the cancelling of any charter shall be allowed." The vessel on her way to the port of loading under a charter party stranded and sustained such damage as to necessitate repairs which made the voyage contemplated by the charter impossible; but no agree- ment to set aside the charter was made by the parties "The ship-owner had insured the freight from perils of the sea under a time policy. Held, that a claim by vhe ship-owner under the policy for the loss of freight so caused was not a claim arising from the "cancelling" of the charter within the exception in the policy, the charter being at an end through sea perils and not bv consent. In re Jamieson and Newcastle Steamship Freight Ins As,so- ciation (1895), 2 Q. B., 90; 14 R., 200. • CANCELLATIOX— CARGO. 493 MISTAKE OF FACT IN CANCELLATION OF POLICY OF MARINE INSURAXOE.— Where a policy of mai-ine insurance is cancelled by mutual consent on the return of the unearned premium, and neither party knew at the time that the insured steamer had been lost, the cancellation is voidable, as made in ignorance of a material fact, and the Insured is entitled to recover the amount of the policy less the retux-ned premium. Duncan vs. N. Y. Mul. Ins. Co. (Court of Appeals of N. Y.). 53 N. E. Rep., 730. CARGO. POLICY ON CARGO— "WARRANTED FREE FROM PAR- TICULAR AVERAGE TNLBSS THE SHIP BE STRANDED"— CARGO NOT ON BOARD AT TIME OF STRANDING.— The plaintiffs effected with the defendants, the British and Foreign Marine Insurance Company, Limited, an insurance on a parcel of rice on a voyage from Calcutta to Demerara, or Barbadoes, in a named ship. The policy contained the common memorandum, by which rice is warranted free from average unless general or the ship be stranded, and a special memorandum by which the rice was "warranted free from particular average unless the ship be stranded. * » * " xhe ship which was chartered by the plaintiffs to carry a cargo of rice, including the parcel in ques- tion, was of French nationality. She encountered heavy weather, which obliged her master to jettison some of the rice, and subse- quently to put into Mauritius for repairs. To effect these repairs the cargo was discharged, and part of ^... including some of the rice in question, being damaged, was condemned as unfit to be forwarded, and sold. Whilst the vessel was being repaired, and whilst the whole of the cargo was on shore, a cyclone burst over the island, during which the vessel was stranded, and was found to have sustained such damage that she was condemned and abandoned. The remainder of her cargo was subsequently shipped on board a British vessel, and after a portion of it, in- cluding some of the rice in question, had been, in the course of the voyage, damaged by sea perils, it was finally delivered at Barbadoes. Freight pro rata itineris was, according to French law, paid by the plaintiffs on all rice discharged from the French vessel at Mauritius. The insurance company paid their propor- tion of general average and forwarding charges, but disputed the plaintiff's claim for a particular average loss on the rice sold at Mauritius, and on that subsequently damaged in the British ves- sel, imluding the pro rata freight charged against the rice. It was held that the insurance company was not liable, as the stranding took place at a time when the insured goods were not on board the vessel, and, therefore, the wairanty against particu- lar average remained in force. The Alsace Lorraine (1893), p. 209. 494 INDICATOR'S DIGEST. CARGO IN SEPARATE PACKAGES— DAMAGE TO CER- TAIN PACKAGES ONLY— EXAMINATION OF C5ARG0— EX- PENSE OF EXAMINING SOUND PAOKAGBS.— Where a cargo of several packages is insured, and some of the packages are damaged by a peril of the sea, the shipper is not entitled to re- cover from the undervrriters the expense of examining the whole cargo to ascertain vs^hich of the packages have been damaged. His claim must be restricted to the packages which have in fact been damaged and the expenses Incurred in the examination and sale of them ; the underwriters are accountable only for the direct operation of a sea damage and not for consequential re- sults; they do not guarantee that the goods shall be free from suspicion. Lysaght vs. Coleman, 14 R., 338. MARINE INSURANCE ON CARGO.— In an action on a pol- icy of marine insurance for merchandise claimed to have been shipped in a certain vessel, the testimony of a witness who counted the different packages as they were taken on boaid, and who is able to state the number of packages from a shipping bill made by him, is sufficient proof that the cargo insured was in fact shipped. Voisin vs. Commercial Mut. Ins. Co. (Supreme Court, General Term, First Department), Feb. 17, 1893, 22 N. Y. Stip., 348. CHARTER. CHARTER PARTY FOR LUMP SUM FREIGHT- INSUR- ANCE "ON PROFIT ON CHARTER * * * WAHRANTBD FREE FROM ALL AVERAGE"— GOODS NOT IN MERCHANT- ABLE CONDITION— FREIGHT NOT PAYABLE— LOSS OF PROFIT ON CHARTER- BFFE'OT OF WARRANTY— VALU- ATION CLAUSE LEFT BLANK— AMOUNT RECOVERABLE- CONCEALMENT OF MATERIAL FACT— WAIVER OF IN- QUIRY BY UNDERWRITERS.— If goods are not in a merchant- able condition when tendered to the consignee, freight is not payable in res,pect thereof; it is not necessary that there should be a total destruction of the goods. Dakin vs. Oxley, 15 G. B. N. S., 646, 667; Boux vs. Salvador, 3 Bing N. C, 266; Duthie vs. Hilton, L. R., 4, C. P., 138. followed. Where a charter-party is for a lump sum freight, and a policy is effected "on profit on charter * * * warranted free from all average," the profit insured is as specific as the freight on any particular species of cargo, and in the event of a total loss of that profit the assured is entitled to recover; it is not necessary that there should be a total loss of all freight under the bills of lading. Where the valuation clause in a marine policy is not filled up, but at the foot of the policy the amount of the insurance is inserted, such statement cannot be treated as the valuation where, without any difficult inquiry, the amount intended to be protected can be ascertained. CHARTER— COMPROMISE. 495 Where in an insurance "on profit on charter" underwriters make no inquiry as to the terms of the charter party or as to the freights, they cannot afterwards be heard to say that these particulars not having been disclosed constitute a material con- cealment which invalidates the policy, they not being entitled to be told facts about which they waive all inquiry. (Haywood vs. Rodgers, 4 East, 590; Inman S. S. Co. vs. BischofC. 7 App Cas., foUowed.) Asfar & Co. vs. Blundell et al., 15 R., 291 (1S95), 2 Q. B., 196. CHARTERED FREIGHT— FIRE— WAXT OF REPAIRS.— By a charter party for the hire of the "Alps"' as so much per month, it was provided that in the event of loss of time from "want of repairs," preventing the working of the vessel for more than twenty-four hours, the payment of hire was to cease until the vessel was again in an efficient state to resume the service. The owners of the vessel insured chartered freight with the Thames and Mersey Marine Insurance Company (Limited), by which they were to be indemnified against loss of freight by "perils of the seas, * * * fire, etc." The "Alps" was damaged by fire and had to be repaired, the repairs occupying thirteen days, during which time the payment for her hire ceased. In an action brought by the owners of the ship against the underwriters to recover for loss of freight under the policy, it was held that they were entitled to recover, as the loss of hire was the direct result of one of the perils insured against. The "Alps" (1893), P. 109; 62 L. J. P. 59. COMPROMISE. COMPROMISE OF MARIXE INSURANCE.- A fire broke out in the hold of a vessel, and, in order to save her and her cargo, she wa^ scuttled and sunk. She was afterwards raised at an ex- pense of about $15,000, and the damage to the vessel and furnish- ing was found to be about the same in amount. An agreement "was entered into between the owner and the insurance agents for adjusting the loss, which provided that such adjustment related only to the damage to the property covered, and did not apply to "any question that may arrive for saving boat and cargo." Proofs of loss made out on this basis were forwarded to the different companies, accompanied by a statement that the insured would make further claim for the expense of raising the vessel. After a conference between the owner and a committee of the Insurance companies, a paper was signed reciting that the loss and damage by fire which occurred to the vessel was adjusted by 515,364.78 (the exact sum covered by the proofs already fur- nished), "payable, without discount, upon presentation of the policies to the several companies by the assured," etc. In accord- ance therewith the sum was paid nearly two months before actually due by the terms of the policy, and receipts in full were given to the companies, respectively. Parol evidence was admis- sible to show that this settlement referred only to the damage to 496 INDICATOR'S DIGEST. tlje vessel, and that the expense of raising her was left open for ttimre adjustment. Although the payment of one-half the lia- bility before it was due was a sufficieut consideration for releasing the claim to the remainder, if so intended by tlie parties, yot parol evidence was admissible to show that it was not so Intended, but was a mere waiver by the insurance companies. A clause in the receipts reciting that' the policies were thereby surrendered and ■ <-iim'elled\ and all claims thereunder forever waived, wa,s not a contract, wliich would take the instrument obt of the rule which admits parol evidence to show that a receipt expressed more than was iBtended, when such a clause was inserted in pursuance of a provision in the policies that the insurer might, at his option, terminate the same upon notice to the insured, in which case the latter was entitled to a ratable proportion of the premiums for the unexpired term. Fire Insurance Ass'n vs. AVickham (Supreme Court of the United States), 12 S. C. Rep.. 84. CONTRACT. CONTRACT TO PROCURE INSURANCE NOT A MARI- TIME CONTRACT.— When a carrier and forwarder, on receiving certain barrels of cement at New York, delivered to the shippers a bill of lading stamped as follows: "Insured Buffalo to Milwau- kee, $5,400. Premium paid," and a marine loss having occurred in transit, the shippers brought this suit, alleging that the stamped bill constitutes a contract equivalent, to a valued marine policy issued by the carrier, on which they were entitled to re- cover .1!5,400, though such sum was beyond their actual loss. The «tamij was not a policy or contract of insurance, but merely a representation or guaranty that insurance In the amount stated had been or would be effected, which interpretation was borne out by the evidetici-i as to the previous negotiations of the parties; that the libel could not be sustained; and that it could not be amended so as to proceed upon such a representation or guaranty, because that was not a maritime contract, but a preliminary con- tract only, of which an admiralty court has no jurisdiction. Marquardt vs. French (District Court S. D. New York), Jan. 5, 1893, 53 Fed. Rep., 603. GOODS SHIPPED AND INSURED IN BULK— LOSS OF PORTION— TOTAL OR PARTIAL LOSS— CONSTRUCTION OF CONTRACT.— A cargo of railway ties were shipped on a voyage from (jaspe to Boston, and a policy of Insurance on same pro- vided that "the insurers shall not be liable for any claim for damages on * * * lumber * * * but liable for a total loss of part if amounting to five per cent on the whole aggregate value ot such articles." A certificate given by the agents of the insurers when the insurance was effected had on the margin the following memorandum: "Free from partial loss unless caused by stranding, sinking, burning, or in collision with another ves- sel and amounting to ten per cent." On the voyage a part of the CONTRACT— DAMAGE. 497 cargo was swept off the vessel during a storm, tlie value of whicb the shipper claimed under the policy. Held, that the shipper was entitled to recover; that though by the law of insurance the loss would only have been partial, the insurers, by the policy, had agreed to treat it as a total loss; and that the memorandum on the certificate did not alter the terms of the policy, the words "free from partial loss" referring not to a partial loss in the abstract applicable to a policy in the ordinary form, but to such a loss according to the conti-act embodied in the policy, Held, also, that the policy, certificates, and memorandum together, con- stituted the contract, and must be so construed as to avoid any repugnance between their provisions and any ambiguity should be construed against the insurers, from whom all the instruments emanated. Judgment of Supreme Com-t of New Brunswick. (THE INDICATOR. Vol. XYII., p. 234) reversed. Mowat vs. Boston Marine Ins. Co., 26 S. C. K., 47. DAMAGE. ^'HAT COXSTITCTES XaXICE OF DAMAGE.— A vessel carrying goods insured by a marine insurance company reached the port of destination on Thursday, but could not reach its dock until the vessel had b«en lightened. It finally reached the dock on Saturday, and was unloaded on that day, when it was discovered that the goods were damaged. Notice given to the insurance com pany on the following Monday or Tuesday was within the mean- ing of the policy, that, in case of damage, it should "have early notice thereof." Rodes vs. Detroit Fire and Marine Ins. Co. (Supreme Court, General Term, Third Department), 26 X. T. Supp., 242. DUTY OF INSURED UNTDER MARINE POLICY.- Where a policy insuring a vessel against fire provides that if fire occurs, the Insured must protect the property from further damage, and shall put it in the best possible order, and the vessel, on taking fire, is sunk to extinguish the flames, it is the duty of the in- sured to raise the vessel; and where the vessel is raised by the insurer, at the request of the insured, the cost of raising may be deducted from the amount due under the policy. Hebner vs. Sun Ins Co. (Supreme Ct. His.), 41 N, E. Rep., 627. EXPENSE INCIDENTAL TO MARINE LOSS.— In gathering dates on the river Euphrates, the intending shipper sent an agent up the river, who bought the dates on the trees and caused them to be picked and boxed there. A house was necessary to do the work in and board the men whUe picking the dates. This house was hired by the year, though used for about six weeks only. This is the most economical, if not the only, way to procure the dates. The entire product of one season haying been lost on the steam- ship Iberia by collision with the steamship Umbria, the shipper 498 INDICATOR'S DIGEST. claimed as an item of liis damage the rent of the house on the Euphrates and the expense of the agent. The allowance of this item was proper. The Umbria (District Court of the United States, Eastern District of New Yorli), 46 Fed. Rep., 927. DEMURRER. DEFECTIVE DEMURRER.— A declaration alleging a total loss, and claiming reeoTery for the same, also alleged abandon- ment to the insurer, and that the loss amounted to more than one- half of the' whole value declared in the policy, but did not allege that the loss amounted to less than the whole value. The allegations of abandonment and amount of loss were merely immaterial, and not ground for a demurrer, assigning as causes for demurrer only that the declaration was double, repug- nant, ambiguous, and multifarious, and that such demurrer did not present the question wheiher, under a declaration for a total loss, the insured could recover for a. constructive total loss. Washburn & Moen Man'fg 'Go. vs. Reliance Marine Ins. Co. (Circuit Court, D. Massachusetts), 66 Fed. Rep., 69. DESTINATION". WHAT CONSTITUTES FINAL DESTINATION WITH RE- GARD TO MARINE INSUiRANCE.— An open policy of marine insurance provided that the risk continued and endured until the goods and merchandise insured had been safely landed; and a special clause, written on the margin, provided that the policy should cover also all risks at and from the port of destination'^to the final destination. The latter clause only applied when the destination of the goods was beyond the seaport, and when a cargo was unloaded, and placed upon the wharf at the port to which it was consigned, it had reached its final destination, within the meaning of the policy, though the consignee had not taken actual possession. (Beddall vs. British & Foreign Marine Insurance Co, (Sup Court of N. Y.). 21 N. Y. S., 710. FOREIGN CO.— FRAUD. 499 FOREIGN COMPANY. INTERSTATE COMMERCE LAW AND FOREIGN INSUR- ANCE COMPANIES.— The business of marine insurance, says the Supreme Oourt of the TJnited States, like other insurance business, is not commerce, or an instrumentality thereof, but merely an incident, and therefore the constitutional provision as to interstate commerce does not prevent a State from prescribing conditions on which an insmrance company may do business in the State, or from enforcing such conditions. Hooper vs. People of State of California, 15 U. S. S. C. Rep., 207. FRAUD. FAIiSB REPRESENTATIONS OF ANTERIOR.— A suit brought upon a policy of marine insurance, where the loss oc- curred outside of the express limits of the policy, and the com- plaint is based upon alleged false and fraudulent negotiations leading up to the making of the policy, is not within the jurisdic- tion of a court of admiralty. Williams vs. Providence-Washington Ins. Co. (Dist. Court S. D. N. T.), 56 Fed. Rep., 159. MARINE INSURANCE AGAINST FRAUD OF' THE MAS- TERS. — In an action on a marine policy insuring merchandise against the fraud of the master, evidence that much of the cargo was sold, some of it beyond its original price, before it was dis- charged, and before the damage to the vessel was ascertained; that the cost of repairing the vessel was trifling, and occupied only a few days; that the master, a part owner of the vessel, though knowing the owner, failed to notify him either of the damage to or sale of the cargo; and that soon after the repair of the vessel he abandoned the voyage, and sailed to another, dis- tant i>ort— Is sufficient to sustain a verdict that the sale was fraudulent. Meyer vs. Great Western Ins. Co. (Supreme Court of Califor- nia), 36 Pac. Bep., 82. 500 INDICATOR'S DIGEST. HAKBOR. "AT AND FBOM"— HARBOR AS DEFINED FOR CUS- TOM'S PURPOSES— HARBOR AS KNOWN TO -SEA-FARING MEN.— The ship "Minister of Marine" was insured under a policy of marine Insurance "at and from Sydney to St. John," etc. She called at Sydney for orders, but was not at anchor there, coming only within the waters known on the charts and to practical men as "Sydney Harbor," but five miles distant from the harbor of North Sydney and ten miles distant from the harbor of Syd- ney. Held, that the vessel was territorially at Sydney within the terms of the policy and that it was not necessary that she should come to a stand in order to be there. Troop vs. St. Paul Fire and Marine Ins. Co., 33 N. B., 105. INSURABLE INTEREST. INSURABLE INTEREST; SEAWORTHINESS.— One who has possession of a vessel under a contract to run her and hold her as security for advances, has an insurable interest in her. Encountering heavy seas is not such a sea peril as Is contem- plated in marine insurance, and a vessel which goes down with no other cause than that is presumptively unseaworthy. The Gunlare (Circuit Court of the United States, Eastern District of I^ouisiana), 42 Fed. Rep., 861. INSURABLE INTEREST UNDER MARITIME LOAN.— The Cassa Marlttima advanced money on a vessel and its freight, and took from an insurance company a policy of insurance against the loss of the vessel from the dangers of the sea. It also took from the master an instrument securing the loan on the vessel and its freight earnings, and providing, among other- things, that the owner or master should not take any other advances upon the vessel or its earnings at the port of loading, but that, if they did, they should be bound to return the present loan to the plaintiff, even though the vessel should be lost. The master violated this provision by procuring other advances at the port of loading. The vessel was lost. The subsequent loan being procured toy the mas- ter without the knowledge or consent of the Cassa Marittima, its insurable interest in the vessel and freight was not impaired: by reason of the violation of that provision, and it might proceed against the master or owner, or against defendant upon the policy of insurance, at its election. The insurable interest 'in such case INSTRUCTIONS— LIABILITY, 501 ■was not affected by any personal liability of tlie master in taking the subsequent advances. Cassa Marittima vs. Plioenix Ins. Co. (Court of Appeals of New York), 29 N. E. Rep., S62. INSTRUCTIONS. MARINE INSURANCE: ERRONEOUS INSTRUCTIONS.— In an action by an insurance company to recover back money paid on a loss of coal based on the insurer's failure to disclose that they were charterers of the barge, by the capsizing of which the loss occurred, where the evidence of the notice to the com- pany of such fact after loss and before payment was meager, and the only evidence as to whether the company had knowledge of that fact when the risk was taken was given by the company's agent, who testified that he had no notice, it was reversible error to permit the shipping clerk of the insured to testify that he knew that they were charterers, and that the agent of the company saw his books before the policy issued, and on such evidence to submit to the jury the question of the company's notice at the time the risk was taken, the books themselves giving no In- formation, as to the facts in question. Reliance Maiine Ins. Co. vs. Herbert (Sup. Ct., App. Div.), 88 N. Y. S. Reporter-. 373. LIABILITY. LIABILITY FOR CONTRACT IN VIOLATION OF TERMS. — The mere fact that the owners of an insured vessel agreed to carry goods to a point beyond the limits of their iwlicy, and ac- cepted freight therefor, does not avoid the policy, where they afterwards abandoned the trip before commencing it. Moser vs. Providence- Washington Ins. Co. (City Court of New York, General Term), 30 N. Y. S. Rep., 814. LIABILITY HNDER THE "SUE AND LABOR" CLAUSE IN POLICY. — An instuance company is not liable under the "sue and labor" clause of a marine policy for expenses incurred by the assured in sending out a tug to look for insured dumping scows, which were reported to have gone adrift, but which in fact were at the time tied up in a safe place. Barney Dumping-Boat Co. vs. Niagara Fire Ins. Co. (Circuit Court of Appeals, Second Circuit), 67 Fed. Rep., 341. 502 INDICATOR'S DIGEST. LIABILITY FOR MARINE INSURANCE ON SPECIAL VERDICT.— In an action on a marine insurance policy it appeared that tlie vessel Insured was, in a storm, cut adrift from a pro- peller, and lost. A special verdict was found that the vessel was cut adrift "to relieve the propeller and tow from a danger of navigation, and for the best interest of the property at risk." Here the insurer'^ liability was not limited by such verdict to a general average loss, as it did not show the sacrifice was made as the sole means of averting an immediate, common danger to the property and crew. Britisih America Assur.Oo., vs. Wilson (Supreme Court of Indiana), 31 N. E. Rep., 939. CLAIM— TOTAL LOSS— LIABILITY OF UNDERWRITERS. The Celestina in a voyage from Ayre to Swansea, and (or) thence to any ports and places in tlie Straits of Jlagellan, had on board a cargo of goods consisting inter alia of coal. This cargoi was in- sured against fire, the insurance being effected by the plaintiffs, who were insurance brokers, on behalf of the owner of the cargo, a merchant at Chili, for £3,300. In the course of the voyage the coal took fire and the ship was abandoned on the high seas by her orew. She was shortly after picked up by another English vessel and towed into Rio, wnere, the Dre being extinguished, sne was placed in the hands of the .1udge to enforce a claim for salvage. An arrangement was made in England by the plaintiffs with the owners of the salvor vessel that the Celestina should be released on the payment of £1,250, which sum was raised by contribution from the underwriters on the policy in various proportions, the policy being indorsed on the payment of each proportionate part, "Settled a claim on account without pre.iudice." Instructions were sent to Rio for the ship's release, but the Brazilian court re- fused to release her, and having sold both ship and cargo, retained the proceeds. The underwriters, on the court finding that they must pay a total loss, contended that credit should be given to them for their contribution to the sum paid to the salvors. It was held, on the ground that the plaintiffs in effecting the settlement with the salvors were not acting for the assured, that the under- writers must pay a total loss, and were not entitled to deduct the sum paid in settlement of the salvage claim. Buchanan & Co. vs. London & Provincial Marine Ins. Co 65 L. J. Q. B., 92. LIEN. NO MARITIME LIEN FOR MARINE INSURANCE -There IS no statute in the State of Washington giving a lien for insur- ance premiums in this State, and whether such a lien exists tm- der the general maritime law is a question upon which there ia a conflict of authority. A majority of cases, and the weightier de- cisions, affirm that insurance for the personal benefit of an owner IS not essential to render a vessel seaworthy, or an aid to naviga- LIEX— LOSS 503 tion, and theie can be uo reason for giving credit to the vessel for such expense, therefore the lien does not exist, in the absence of statute. The Hope (United States District Court, "Washington), 49 Fed. Kep., 279. LOSS. WHEN INSURER CAXXOT DEFEND AGAINST IIARIXE LOSS. — It seems that a certificate by the inspector of a local board of underwriters that a certain vessel is in good condition, priv- ileged to carry cotton seed and cotton to a certain amount, and that cotton and other merchandise shipped on her would be in- sured at the usual rates by the companies composing the board of underwriters, prevents a company which is a member of that board from questioning the seaworthiness of the vessel, as against a shipper of cotton seed in it, whom it insured shortly after^ the Issuance of the certificate. Western Assur. Co. vs. So. Cotton Oil Co., 6S Fed. Rep., 924. MARINE INSURANCE — LOSS — DEVIATION CLAUSE- CHANGE OF VOYAGE.— The plaintiffs effected with the defend- ants a policy of marine insurance on goods to be shipped "from the Mersey or London to any port in Portugal and [or] Spain this side Gibraltar, and [or] at and from thence to any place or places in the interior," Including all risks from leaving the warehouse In the United Kingdom till delivery at the warehouses of the con- signees. In the margin of the policy was the following clause: "Deviation and [or] change of voyage and [or] transhipments not included in the policy to be held covered at a premium to be arranged." They subsequently consigned goods from Bradford to Madrid, intending them to go via Seville, but not expressly in- structing their shipping agents to that effect. The goods were declared under the policy, and shipped on a vessel which was lost while on that part of the voyage common to ships bound either for the western or for the eastern ports of Spain. It was then discovered that the goods had been shipped to Cartagena on the east coast of Spain. The vessel was not bound for Seville, but for Carril and Huelva. this side Gibraltar, and to Cartagena and other ports on the east coast of Sjiain. The plaintiffs informed the defendants of the mistake, and offered to pay the proper extra premium for Cartagena. This offer was refused. It was held that the Insured voyage was from Mersey or London to some port in Portugal or the west coast of Spain, and that the goods not having been shipped to any such port, the policy never attached; that "change of voyage" in the deviation clause applied only to the case where the policy having attached by the starting of the goods on the insured voyage, a change of voyage was subsequently made, and that the defendants were therefore not liable. Simon. Israel & Co. vs. Sedgwick et al., 62 L. J. Q. B.. 163. 504 INDICATOR'S DIGEST. OPEN POLICY— CONDITIONS — CERTIFICATED — PAR- TIAL LOSS OP WHOLE— TOTAL LOSS OF PART.— An open policy of marine insurance is subject to the oondiMons embodied on the certificate. A total destruction of a part of goods, insured in bulk, is only a partial loss, and not a total loss of a part. Mowat vs. Boston Marine Ins. Co., 33 N. B., 109. COUNTERCLAIM OF PREMIUM NOTES AGAINST LOSS. —In an action on a marine insurance policy which provides for the payment of the loss after deducting all unpaid premium notes and other indebtedness, the insurer may counterclaim for pre- mium notes given by the insured, in payment for insurance on other vessels, which were due and unpaid at the time the action commenced, jbut not for other premium notes not then due. Murray vs. Great Western Ins. Co. (Supreme Court of New York), 25 N. Y. Supp., 414. LOSS UNDER MARINE POLICY.— A marine policy upon a canal boat excepted from the risk of perils resulting from "want of ordinary skill in loading the cargo," and "rottenness, inherent defects, and other unseaworthiness." The policy covered, subject to exceptions, insuiance against fire as well as the usual peril of inland waters, and an indorsement permitted tlie carrying of lime in barrels. In the course of a voyage fire was discovered and such barrels of lime as were on the deck were removed, but it was found impossible to unload that portion of the cargo wEich was in the hold. Thereupon the boat was scuttled. The fire was the direct cause of loss and it in for the jury to decide from the evidence whether or not It was jastiflable to scuttle the boat and wliether the loss was such as came within the exceptions, and the court was nat justified under these facts in taking the question from the jury. Singleton vs. Phenix Ins. Co. (Supreme Court of New York), 11 N. Y. Rep., 141. PARTIAL LOSS: SUING AND LABORING CLAUSE: CON- DITIONING DAMAGED GOODS: METHOD OP ASCERTAIN- ING PARTIAL LOSS.— A barge laden with bags of rice of the declared value of £450 came into collision with a steamship and sank, and was submerged for two tides. The barge was floated and proceeded to her destination, where the cargo was tendered to the consignees, who refused to take delivery, and the rice was, with the approval of the underwriters, kiln dried at a cost of £68 and sold for £111. Held, that this was a partial loss and not a total loss; that the partial loss was to be ascertained by compar- ing the value of the rice when sound with tlie value of the dam- aged rice after it had been kiln-dried, and not with its value as it arrived damaged at its port of destination; and that, as under the suing and laboring clause the underwriter was liable tor costs reasonably incurred in conditioning damaged goods, as be- tween him and the assured, the loss for which he was liable was to be calculated on the value of the goods when conditioned. Francis vs. Boulton, 65 L. J. Rep., Q. B. D, , 153. LOQS OF VESSEL BY UNSKILLFUL MANAGEMENT.— The navigation laws of Canada prescribe that every ship, whether sailing ship or steamer, shall go at a moderate speed in a fog, LOSS— NEGLIGENCE. 505 mist, or falling snow, and in case of any damage to person and property arising from the non-observance by any vessel of the rules prescribed, shall be deemed to have been occasioned by the willful default of the person in charge at the time. The fact that a steamer equipped with a compass known to be defective is driven at unabated speed in a dense fog, and in direct violation of the foregoing statute, was driven upon an island and injured, will relieve an insurance company from liability under a policy that excepts unseaworthiness from the perils it insures against, unless it be shown that neither the speed of the steamer nor the defect of the compass caused or contributed to cause, the loss under the policy. Richelieu & Co. Nav. Co. vs. Boston Marine Ins. Co. (Supreme Court of the United States), 10 Sup. Ct. Rep., 934. MORTGAGOR. IXSURANCE BY MORTGAGOR.— The agent of a creditor applied to the debtor for security, and the latter conveyed to the agent shares in a vessel, receiving back an agreement to recon- vey on payment of the debt to the agent, who was described in the bill of sale as trustee. Thereafter, and before the payment of the debt, the debtor died, and the trustee took charge of the vessel and procured to himself insurance thereon. Upon a loss the debtor's administrator could recover no part of insurance collected by the trustee before the payment of the debt. Burlingame vs. Goodspeed (Supreme Judicial Court of Massa- chusetts), 26 N. E. Rep., 232. ]S^EGLIGEXCE. LOSS OF STEAJIBOAT FROM PERILS INSURED AGAINST. — ^A steamboat ran on a bar, and after she was got off, the master, fearing that she would be lost from her leaks, ran her on another bar, when she became a total loss owing to the rapid rise of the river. This running on the second bar having been done in good faith to save her, there was no negligence on the part of the master, and the vessel was lost by a peril of the river within the meaning of a policy of insurance, insuring against perils of the river. The Xatchez (U. S. District Court, Eastern Disti-iet of Louisi- ana). 42 Fed. Rep., 169. 5o6 INDICATOR'S DIGEST. DUTY OF INSURED UNDER MARINE POLICY.— Where a policy insuring a vessel against fire provides tliat If fire occurs, the insured must protect the property from further damage, and ahall put it in the best possible order, and the vessel, on taking fire, is sunk to extinguish the fiames, it is the duty of the insured to raise the vessel; and where the vessel Is raised by the insurer, at the request of the insured, the cost of raising may be deducted from the amount due under the policy. Hebner vs. Sun Ins. Co. (Supreme Court of Illinois), 41 N. E. Kep., 627. ORDINARY NEGLIGENCE AS AFFECTING MARINE IN- SURANCE.— In an action on a marine insurance policy containing no exception for losses occasioned by want of ordinary care, but covering the perils of the sea, and "all other perils * * * that have or shall come to the hurt * * * of the said ship," ordin- ary negligence of the ship's master is no defense. Rule 5 of the New York-Antwerp rules, whicli provides that when a ship is intentionally run ashore because she is sinking no damage caused "by such intentionally running on shore" shall be made good as general average, has no application to an action on a marine policy Avhi( h provides that general average shall be payable ac- cording to the New York- Antwerp rules, where the ship was run ashore after she was beginning to sink, to prevent further loss, and no further damage was caused thereby. A charge of unaea- worthiness by reason of the pilot's intoxication is not sustained where there is no evidence direct of his condition beyond the fact that he had been drinking, and no evidence that he was not perfectly capable when the vessel left port, or, if he was not, that the master knew the fact, and that the pilot, when sober, was one of the best. Earnmoor S, S. Co. vs. Union Ins. Co. (District Court of the United States, Southern District of New Yorli), 4-4 Fed. Rep., 374. STRANDING BY NEGLIGEMCIE OF MASTER.— After pass- ing a certain point at night, a vessel tacked, and the master pro- posed to take a certain course (northeast), which, if made good, would have carried the vessel clear of obstructions. There was a dense fog around the vessel, and she stranded at midnight. She had been within the clear weather range of a certain light for two hours, but her navigators had not seen It. She had in fact been making a northerly course, owing to a change in the wind and to the existence of a certain current. The fact that the cur- rents at that region are variable is well known to navigator.s. and is set forth in ordinary sailing directions. No soundings were taken, tliough they would have l>een sufficient to tell the vessel navigators that she \\-as not making her proposed course good, and the importance of taking frequent soundings in those waters is given in ordinary sailing directions. The stranding arose from negligence. Such negligence would defeat any claim for contri- bution by the vessel owners on account of such stranding. Where a marine protest, showing the fact that the stranding of vessel was caused by negligence, is open to inspection of under- wi-iters, and there is no misrepresentation or concealment on the part of the ship's owners or agents, payment by the underwriters to a ship's agents, on account of a general average adjustment, is voluntary, and cannot be recovered back. Phipps vs. The Nicanor (Circuit Court of the United States, Southern District of New York), 44 Fed. Rep., 504. POLICY. 507 POLICY. AMOUXT RECOYBRABLE UNDER MARINE INSUR- ANCE. — Where the vessel insured is valued in the policy at a specified amount, and a partial loss is incurred, the insurer pays only such proportion of the actual loss as the sum insured bears to the stated value of the vessel. Western Ass-ui-. Co. vs. S. W. Trans. Co. (U. S. Ot. App.), 68 Fed. Rep., 923. VALIDITY OF MARINE POLICY WHERE A3I0UNT IS UNCERTAIN.— Where, on application for insurance on a cargo soon to be shipped, facts necessary to determine the amount of insui"ance and premiums are not known, a memorandum of In- surance to a certain amount, at a reasonable premium, and pro- viding for a policy when the facts are found out by the appli- cant and made known to the insurer, is a valid contract. But failure of the applicant to send such information to the insurer without unreasonable delay avoids the contract. Scammell vs. China Mut. Ins. Co. (S. J. Ct. Mass.), 41 N. E. Reporter, 648. PREMIUil NOTES— YESSELS MOETGAGED— EARNED PREMIUMS- RIGHT :C0 JtECOYER FOE. ON NOTES.- The plaintiffs issued several insurance policies on different vessels of the defendant, and accepted twelve months' notes for the pre- miums. Before these notes matured the defendant made an as- signment in trust, and mortgaged the vessels so insured, and took out new policies on the same vessels, payable in case of loss to the mortgagee. After these policies had been taken out, the agent of the plaintiff company sent his clerk to the defendant for the old policies, which the defendant refused to give up, saying that there might be losses of which he had then no knowledge for which the company might be liable under these old policies. One of the conditions of the policies was to the effect that whenever the premiums had not been paid or a note had been taken for the premium and the a.^sured became bankrupt or mortgaged the vessel, the policy became void. The plaintiffs took no further action with regard to the old policies, and when the notes ma- tured brought action for the full amount. The premiums on the second policies had been paid by the mortgagee. It was held, that by the terms of the policies they became void when the vessels were mortgaged, and that the plaintiffs were only entitled to recover for the amount of the earned premiums up to the time the vessels were mortgaged. When the policies became void the consideration for the notes failed, but this did not prevent the plaintiffs from recovering that part of the consideration for the notes which had been paid or earned. Roval Canadian Insurance Company vs. Scbofield, 13 O. L. T., 154. 5o8 INDICATOR'S DIGEST. OONSTRUOTION OF MARINE POLIOY.— A policy of marine insurance which is expressed to be "free from partial loss" covers a loss which, though not actually total, is as a matter of law con- structively total. Mayo vs. India Mutual Ins. Co (Supreme Judicial Court of Massachusetts), 25 N. E. Rep., 80. MEMORANDUM IN LLOYD'S POLICY— CONSTRUCTION OF— OR THE SHIP IS "BURNT."— A ship is not burnt within the meaning of the memorandum in Lloyd's policies, unless the in- jury done by fire is sufHcient to cause such an interruption of the voyage as to make the vessel pro tempore incapable of being properly used for the purposes of her voyage. Such a condition may be described by the term "temporarily innavigable." The Glenlivet Steamship Company vs. Titoombe, 62 L. J. P. 55; (1893) P. 164. INTERPRETATION OF MARINE INSURANCE. POLICY.— Where an indorsement on a policy of reinsurance provided that the reinsurance should be to the extent of one-half of the amount of each and every risk which equals or exceeds in value the sum of $15,000 on cargoes insured by the re-insured ynder certain open policies, and on cargoes of the value of $50,000 and upwards, the policy to cover the excess of $25,000, not exceeding the sum of $50,000 on any one cargo. The open policies issued by tbe re- assured provided that the insured should enter for insurance all goods at the full value thereof. In fixing the liability of the re- assurer the word "risk," as used in the indorsement, referred to the value of the property as indorsed on the open policies, rather than the value of the property as adjusted after a loss. Continental Ins. Co. vs. Aetna Ins. Co. (Court of Appeals of N. Y.), 33 N. E. Rep., 724. CGNSTliiUOTION OP CONDITIONS OP MARINE INSUR- ANCE POLICY. — 'Where a policy of insurance on goods contained the following provision: "It is understood and agreed that in case any agreement be made by the assured with any carrier, by which sucli carrier stipidates to have, in case of any loss for which he may be liahlii, the benefit of this insurance, then, in that event, tlie insurers shall be discharged of any liability for loss hereunder," the through bill of lading under which such goods were transported contained this stipulation: "And any carrier by water, liable on account of loss of, or damage to, any of said property, shall have the full benefit of any insurance that may have been effected upon, or on account of, said property." The application of the clause in the policy must be confined to those cases, only, when the carrier was liable for the loss, and the policy remained in full force as respects sea perils, for which the carrier was not legally responsible. Therefore, where a lighter belonging to one carrier, a railroad company, was directed by the employes of another carrier, a steamship company, to move in a slip, and in so moving she grounded on a shoal in the slip, and was then pierced by a log, the existence «f which was up to that time unknown, the damage was not caused by negli- gence on the part of either carrier, and the insurance company whiCii had insured the cargo was liable. Penn. R. Co. vs. Manheim Ins. Co. (Dist. Court, S. D., N. Y.), 55 Fed. Rep., 301. POLICY. 509 CONSTRUCTION OF MARINE POLICY— A policy of marine insurance containing a printed clause whicb prohibited the vessel from certain waters, including the Gulf of Campeachy, had writ- ten into it the amount of insurance, the name of the vessel, and the terms of the policy, after "which was written the words, "excluding the Gulf of Campeachy." The com-t held that the written words were not for the purpose of qualifying the printed clause, but for calling particular attention to the Gulf of Cam- peachy, near which the vessel was when insured. Pai-ker vs. China Mut. Ins. Co. (S. J. Gt. Mass.), 41 N. E. Rep., 267. TERMS OF MARINE INSURANCE POLICY.— Where cotton is thrown into the river by the careening of a steamboat from which it is being unloaded, the injury to the cotton is caused by a peril of the river, within the meaning of an insurance policy which provides that the liabilities and perils assumed by the company are of rivers, fires, jettisons, and all other perils, and losses caused by reason of such dangers. The insurance company is not re- lieved from liability on the policy for such injury because the cotton was thrown into the river by the mere carelessness or un- skillfulness of those engaged in unloading it. Crescent Ins. Co. vs. Vicksburg, Y. & S. R. Packet Co. (Su- preme Court of Miss.), 13 So. Rep., 254. CONSTRUCTION OF POLICY — "ICE-BOUND" — "OPEN WATER." — By the rules of a Mutual Insurance Associatloii, "if a ship insured shall be and remain wi'eckea, .stianded or sunk for a period of four months within European waters, or for a period of six months in any other part of the world, and during .. WARRANTY. ilAEINE IXSURANCE— BREACH OF WARRANTY.— An express warranty, in a policy, that the vessel insured was to nav- igate only inland waters of the United States and Canada, is broken where the vessel goes into the open waters of the Atlantic Ocean beyond Sandy Hook, And the breach of warranty, whether material or immaterial, when express, renders the policy void from the time of such breach, and no recovery can be had for subsequent loss, though not produced or contributed to by such breach of warranty. Cogswell vs. Churb (Sup. Ct. 1st Dept.), 36 N. Y. S. Reporter, 1076. PROHIBITED WATERS— WARRANTY— OUSTOil.— In an action on a policy of insurance on a vessel, the plea alleged that the vessel was in waters prohibited by the terms of the policy. In reply, the plaintiff set up a custom in the city of St. John that the vessel must be lost in the prohibited waters in order to relieve the company; and that the mere passing through or entering pro- hibited waters did not void the policy. It was held that the pro- hibition in the policy amounted to a warranty that the vessel would not enter the prohibited waters; and that a custom could not be given in evidence against a warranty. Troop vs. Union Insurance Company, 13 C. L. T., 312. 522 INDICATOR'S DIGEST. MISCELLANEOUS. ACTIOlSr. OWNER CAN ALONE SUB.— Where insured property has been destroyed by a wrongdoer, and the insurer has paid to the owner less than the value of his property, the insurer cannot sue the wrongdoer in his own name for the injury. The action must be brought in the name of the owner of the property destroyed. Watts vs. Southern Bell Telephone & Telegraph Co. (Circuit Court, D., West Virgina), 66 Fed. Rep., 433. SUFFICIENCY OF ANSWER IN ACTION ON TORNADO POLICY.— In an action against a tornado insurance company, the complainant alleged that the property was destroyed by a cyclone or hurricane, and the answer denied that the loss was occasioned by a tornado, cyclone or hurricane, and alleged that it was caused by a very high wind forcing a steamboat against it. The special allegations of the answer were inconsistent with the general de- nial, and controlled it, and the answer was therefore insufficient. Queen Ins. Co. vs. Hudnut Co. (Appellate Court of Indiana), 35 N. E. Rep., 397. TIME OF BRINGING ACTION ON POLICY IN lOWA.- The law of Iowa providing that no actions shall be begun on an insurance policy within ninety days after notice of loss has been given^ prevents the insured from suing within that time, thougl> the insurer, on receipt of proof of loss, absolutely denied lia bility. Finster vs. Merch. & Bankers' Ins. Co., 65 N. W. Reporter, 100. ACTION OF TORT-RIGHT TO JURY.— A claim by an in- surance company to recover back from the insured the sum of .fSO loss tinder an insurance effected by him, payment of which is alleged to have been procured by false and fraudulent repre- sentation, is not an action of contract, but one arising ex delicto, and can be required to be tried by a jury under a statute, pro- viding that "either party may require a jury in tort or replevin where the sum or the value of the goods sought to be recovered exceeds $20, and in all other cases where the amount sought to be recovered exceeds $30. Re London Mutual Fire Ins. Co. vs. McFarlane, 26 O. R., 15. ACTI ox— AGENT. 523 LIVE STOCK INSURANCE: PREMATURE ACTION — Under a liye stock Insurance policy providing that the company on receiving satisfactory proof of death of the animal, would pay the amount of the policy "in 60 days after the approval of the claim by its executive board," proof of death being waived, and liability being denied by the company on other ground, action may be brought at once. Whitten vs. New Eng. Live Stock Ins. Co. (Sup. Jud. Ct., Mass.), 43 N. E. Reporter, 121. PENDENCY OF OTHER ACTIONS.— An action against an insurance company by an assignee of the claim for loss under the policy is not abated by the pendency in a United States court in another State of a creditor's bill brought subsequently to the assignment, against the insured a.id the company, to re- strain the disposition of remainder of the insured property, and to reach the funds due under the policy, where the plaintiff against company was not served, and could not be l>rought into court except by voluntai-y appearance. State vs. Superior Ct. (Sup. Ct. Wash.), 4.'5 Pacific Rep., 670. FIDELITY INSURANCE— DEFENSE TO ACTIONS.— A re- ceiver of a national bank sued a former employe of a bank and a guaranty company upon a bond of indemnity against the fraud- ulent acts of such employe, which contained a provision that it should be essential to the validity of the bond that the signature of the employe be subscribed thereto. The parties sued set up the defense of non est factum, that they had not made the bond. The bond offered in evidence was not signed by the employe of the bank, and there was no evidence that it had been executed by the guaranty company. The court sustained the defense and dis- missed the suit. Blackmore vs. Guaranty Co. of N. A. (U. S. Cir. Ct. App.), 71 Federal Reporter, 363. AGENT. INSURANCE APPLICATION FILLED OUT BY AGENT.— An agent authorized to take applications for insurance, should be regarded to lie acting within the scope of his authority where he fills up the blank application of insurance: and if. by his fault or negligence it contains a misstatement not authorized by the in- structions of the party who signed it, the wrong should be im- puted to the company and not to the assured. When the agent thus authorized by his company to take applications for insur- ance, without the knowledge of the applicant, writes false answ- ers to questions contained in the application, contrary to the di- rections of the applicant, who makes true answers to such ques- tions, the company will 1/e estopped by the answers thus written by its agent. State Ins. Co. vs. (iray (Supreme Court of Kansas 1, 2."i Pae. Rep.. 197. .24 INDICATOR'S DIGEST. SUIT BY AGENT— Tlie Court of Civil Appeals of Texas saysr An agent who is charged with and becomes liable to the company for the premiums ou policies issued by him may sue for such pre- miums in his own name. Waters vs. Wandless, 35 S. W. Reporter, 18i. RATIFICATION OF ACTS OF AGENT.— ThP acceptance by the insurer of an application forwarded through a person assum- ing to act as its agent, the applicant being ignorant of his want of authority, is a ratification of the acts of such agent in solicit- ing and contracting for the insurance within the scope of his apparent authority. -Terry vs. Provident Fund Soc. of New York, 41 N. E. Rep., IS. LIABILITY OF AGENT DOING BUSINESS WITHOUT LICENSE.— Act of May "t, 187G, provides, that any person trans- acting business in the commonwealtli as the agent of an insur- ance company of any other State without a certificate of author- ity, as required by the Act to whicli it is a supplement, shall be guilty of a misdemeanor. Commonwealth vs. Reinoehl (Supreme Court of Pennsylvania), 29 At. Rep., 896. FRAUDULENT ACT OF AGENT.— A principal is not bound by the unauthorized and fraudulent acts of his agent, done and performed in pursuance of a corrupt conspiracy between such agent and the person who seelig to obtain the benefit of the fraud. This principle applies to the case of an agent of a life insurance company who agreed with the assured to misrepresent his age in order that lie might obtain a policy. The agent is a competent witness to prove the fraud, as the Wisconsin statute which ex- cludes the testimony of a party, or the person under whom he claims, as to transaction had by him personally with a deceased or insane person, under whom his opponent claims, does not exclude the testimony of an agent of such party. Hanf vs. Northwestern Masonic Aid Association (Supreme Court of Wisconsin), 45 ,N. W. Rep., 315. WHEN AGENT IS BOUND TO INSURE.- Every agent is bound to execute the incidental orders and instructions of his principal whenever, for a valuable consideration, ho has under- taken to perform certain offices or duties out of which they spring. Nor does it matter Avhether such orders or instructions be ex- pressly given, or arise from implication, either from the habits of the parties in their previous intercourse, or from the general usage of trade. Thus an agent having the goods of his principal in his hands, is bound to insure them in tliree instances. First, where there is a positive order. Secondly, wherever the usage of trade, or the previous habit oC dealing between the parties, creates an implied obligation to insure them; although there be no special order for the particular case. Thirdly, where a merchant abroad sends his bills of lading to a correspondent here, and en- grafts thereupon an order to insure, as the implied condition, on which the bills of lading are to be accepted, the agent is bound to obey, if he accepts them. In these three instances the agent will render himself responsible for all losses and injuries growing out of the omission to insure. But, unless something has been held out by the agent to the principal to induce the belief that he ■will procure insurance, he will not be compelled to insure. AGENT. 525 WHAT CONSTITUTES A MANAGING AGENT.— Au agent of an insurance company wlio has the entire superintendence of all the company's business within a certain territory, is a "man- aging agent," within tlie statutes providing that summons against a corporation may be sei-ved against its managing agent. Ives vs. Metropolitan Life Ins. Co. (Supreme Court, General Term, Third Department), ::;S N. Y. Supp., 1030. CONTRACT OF EilPLOYMENT BY INSURANCE AGENT. — Where an insurance agent agrees in his written contract oif em- ployment that the state of his accounts shall be determined by an inspection of his boolis, and that such inspection, made by an authorized agent of the company, shall be binding on him, the result of such inspection is conclusive, and he cannot introduce evidence attacking the inspector's report. Owiter vs. Metropolitan Life Ins. Co. (Common Pleas of N. T. <;ity), 24 N. Y. Supp., 731. AUTHORITY OF INSURANCE AGENT.— In an indictment for acting as agent for a foreign insurance company without au- thority from the insurance commissioner, as required by the Min- nesota statute, the only question is whether the agent held the commissioner's certificate or not, as it makes no difference whether the company was regularly in the State or not. State vs. Johnson (.Supreme Court of Minnesota), 45 N. W. Eep., 711. CONTRACT OF EilPLOYMENT OP INSURANCE AGENT. — Where the written conti-act of employment between an agent and an insurance company stipulates that the agent sh;ill com- mence no action relating to the employment until ten days after notice of the particulars of his claim shall have been served on the president or secretary of the company, he cannot recover for services rendered without proof of the giving of such notice. Prudential Ins. Co. vs. Myers (App. Ct. Ind.), 44 N. E. Rep., 50. WHAT IS NOT A MATERIAL ALTERATION OF CON- TRACT OF SURETY FOR AGENT.— A contract between an in- surance company and its agent provided that the latter should make monthly reports of business transacted, and on demand pay over to his principal all moneys due him. "The compensation of the agent was fixed at twenty-five per cent of the business done, and he gave a bond to secure the performance of his contract. After the execution of the Ijond, and without the knowledge of the surety, the compensation of the agent was changed to twenty- eight and one-third per cent, and he was given permission to em- ploy solicitors, paying them out of his commission. In a suit agai^st the surety on the bond, to recover money which it was alleged the agent had not accounted for, the Supreme Court of Nebraska held: (1) That the compensation of the agent was not an essential ingredient of the contract, and increasing his com- pensation did not amount to a re-employment at a different com- pensation from that fixed in the contract; (2) that there had been .HI material alteration in the terms of the contract to secure the performance of which the bond was given, and that the surety was not released. Tavlor vs. Standard Life & Ace. Ins. Co.. 66 N. W. Reporter, '647. 526 INDICATOR'S DIGEST. WHO IS A GENERAL AGENT.— A general agent is an agent ^yho is empowered to transact all the business of his principal of a particular kind or in a particular place. A special agent is one authorized to act only in a specific transaction. Thus, a person authorized to accept risks, to agree upon and settle the terms of insurance, and to carry them into effect by issuing or renewing policies, must be regarded as a general agent of the com.pany. South Bend Toy Manfg. Co. vs. Dakota F. & M. Ins. Co. (Su- preme Court of South Dakota), 52 N. W. Rep., 866. ACTION AGAINST AGENT IN PENNSYLVANIA.— In order to enforce the statutory liability for the loss against an agent who wi-ote a policy for a foreign company which had not com- plied with the laws of Pennsylvania, the insured need not make proofs of loss to the company within the time stipulated in the policy, but the delivery of such proofs to such agent is sufficient. And the law of that State makes not simply the general agents of the company liable for the amount of the loss, under such circumstances, but makes the party who acts for the company in that particular instance liable. McBride vs. Rlnard (Supreme Ot. Penna.), 33 Atlantic Rep., 750. WHEN COMPANY WILL NOT BE BOUND BY REPRE- SENTATIONS OF AGENT.— When a policy of insurance, says the United States Circuit Court of Appeals, describes the class of risks thereby insured, and the assured has a fair opportunity to read the instrument, the company issuing the same will not be bound by representations made by its agent, in good faith and without intent to deceive or defraud, that the policy covers certain risks that are not in fact within its provisions. In construing the provisions of a written instrument or agreement, and in determin- ing its legal effect, the parties act at arm's length, if the agree- ment is couched in plain language, and no fraud or deceit is practiced. Travelers' Ins. Co. vs. Henderson, 69 Federal Rep., 762. APPLICATION. THE SUPREJIE COURT OF PENNSYLVANIA holds, that Act of May 11, 1881, requiring that insurance policies shall have attached to them copies of the application, etc., otherwise the ap- plication, etc., shall not be admissible in evidence, applies only to the case of policies issued by an insurance company, and not to the case of a beneficial association which issues certificates of membership. Johnson vs. Philadelphia R. R. Co., 29 At. Rep., 854. APPLICATION— ARTICLES. 527 EFFECT OF APPLICATION ANSWERS.— Tlie assured, says the Supreme Court of Minnesota, warrants tlie truth of his answers made in his application, but he is bound only so far as he uu'dertook to answer, and his warranty cannot be extended beyond the answers actually given. Hale Ts. Indemnity & Inv. Co., 68 N. W. Reporter, 1S.3. APPRAISEMENT. ACTION ON POLICY OF INSURANCE FOR APPRAISE- MENT. — When an appraisement of damages is offered to prove the loss by fire, in an action on a policy of insm'ance, and is ob- jected to on the ground that it is not made as required by the policy, the objection is rightly overruled, if it appear that, by an agreement made after the fire, the parties superseded the ap- praisement clause of the policy. By the terms of an agreement, an umpire was authorized to act, in appraising a loss by fire, only in case of disagreement between the appraisers and only on matters of difference. The appraisers together examined the damaged goods, and then one offered to the other to appraise the loss at 50 per cent of the amount insured, and the latter refused. After that, the appraiser first named, in bad faith, prevented any further meeting of the appraisers. The other appraiser and the umpire had authority to make a valid appraisement. Doying vs. Broadway Ins. Go. (Court of Errors and Appeals of N. J.), 27 At. Rep., 927. ARTICLES. EFFECT OF INVALIDITY OF PROVISION IN ARTICLES. —Since conti-ibutors to a guaranty fund are presumed to know that a provision in the articles that they shall be members of the association, and that itg directors shall be chosen from them, is invalid, such a provision does invalidate guaranty fund notes given by them. Bern- vs. Anchor Mut. Fire Ins. Co. (Supreme Court of Iowa) G2 N. w! Rep., 681. 528 INDICATOR'S DIGEST. ASSESSMENTS. ACTION TO RECOVER ASSESSMENTS.— lu au action to recover assessments, for mutual insurance of live stock, the affi- davit of defense is good vyhere it denies the existence of the in- debtedness for which the assessment is alleged to have been madt , Hoffman vs. Whelan (Supreme Court of Pennsylvania), 28 At. Rep., 498. EFFECT OF A SURRENDER WHEN AN ASSESSMENT IS DUE. — A membership and insurance contract between a mutual insurance company and one of its members provided that the in- surance contract might be cancelled at the request of a member by his paying all assessments against him to date of such request, together with cancellation fee of two dollars, and surrendering to the insurance company the membership insurance contract. A member surrendered his insurance, contract, and paid the cancel- lation fee; but neglected to pay an assessment due from him at the date of surrendering his Insurance contract. Held, the insur- ance and membership contract remained in force. Burmood vs. Farmers' Union Ins. Co. (Supreme Court of Ne- braska), 60 N. W. Rep., 905. ASSIGNMENT. VALIDITY OF ASSIGNMENT BY CORPORATE PRESI- DENT. — An assignment of an insurance policy by a corporation, by its president and general manager, wh.0, with one another, who advised and ratified the assignment, owned all the corporate stock, is valid. Glover vs. Rochester German Ins. Co. (Supreme Court of Washington), 39 Pac. Rep., 380. ACTION BY ASSIGNEE ON POLICY.— Where an insurance policy on a horse was assigned by the owner to another to secure a debt, and the horse was killed by a locomotive, a settlement be- tween the owner and the railroad company does not preclude such party from recovering on the policy from tbe Insurance company. Algase vs. Horse Owners' Mutual Indemnity Ass'n of Roches- ter (Supreme Court, General Term, Third Department), 20 N. Y. Supp., 101. ASSIGNMENT. 5.29 VALIDITY OP ASSIGNMENT FOR CREDITORS.— Where the agents of a foreign insurance company, after having learned that the company had assigned, but before receiving official no- tice of the assignment, canceled certain polici^, and took from the holders assignments of unearned premiums, which they sought to set off against their debt to the company. As the as- signment by the company Tvas made under a foreign statute, which rendered it void as to the agents, such cancellation of policies was not fraudulent, as to other creditors. The fact that the agents filed claims for unearned premiums with the assignee, after giving proper credit for the balance due the company by them does not estop them from contesting the validity of the as- signment, as affecting their right of set off. Franzen vs. Hutchinson (Supreme Court of Iowa), 62 N. TV. Rep., 698. VALIDITY OF ASSIGNMENT TO SECURE DEBT.— A mu- tual benefit order deposited money with a trust company, which thereafter became unable to repay it. The benefit order then assigned the fund to another in terms to secure a promissory note given for a loan, and the money thus obtained was disbursed in the usual course of business. Held, that as the effect of the assignment was to secure a debt, it was not void, conceding that the benefit order could not legally make a promissory note. The loan to secure which the assignment was given having been authorized at a meeting of the order, and the money obtained used for its benefit, equity will not, at the instance of the receiver of the insolvent depositary, forbid its payment to the assignee out of money in his hands, on the ground that the officers executing the assignment had no authority to do so. Commonwealth vs. Suffolk Trust Company (Supreme Judicial Court of Mass.), 3T N. E. Rep., 757. KENEWAL BY CONSENT— NEW CONTRACT YEAR BY JfEAR— ASSIGNMENT TO TRUSTEES FOR CREDITORS.— An accident policy of insurance with a company which provides for the payment of a premium for one year from the date there- of, and which is capable of being renewed only by consent of the company, is not a continuing policy for all purposes, but upon each renewal a new contract is entered into year by year. When, therefore, the person assured has assigned all his prop- erty, "credits, estate and efCccts whatsoever" to trustees for the benefit of his creditors, and died two years afterwards from an accident, while the renawed policy was subsisting, tne moneys payable thereunder do not pass to the trustees under the deed, but 'belong to the executors of the assured. Stokell vs. Heywood, G5 U. J. Rep. Ch'y. D., 721. THE SUPREME COURT OF MICHIGAN HOLDS, that the president of a New Jersey corporation may execute In New York, before a commissioner of Michigan, an assip;nment of a mortgage owned by tne corporation. When a mortgage held by a citizen of New Y'ork was assigned in trust to the treasurer of New Jersey for the benefit of holders of policies In a certain New Jersey In- surance company, the mortgagor cannot, in a suit to foreclose, set up that no statute of New Jersey authorizes the Treasurer to hold such security. Such mortgage assigned to one as State Treas- urer, and to his successors and assigns, to protect policy-holders in an insurance company, the assignment being made merely be- 530 INDICATOR'S DIGEST. cause of Ms pasiticm as Treasurer, his successor in office maj maintain a suit to foreclose. Gray vs. Waldron, 60 N. W. Rep., 288. ASSIGNMENT OF INSURANCE POLIOY.— The assignment of an Insurance policy constitutes no consideration for an agree- ment then made tay the assignee, where a mortgage theretofore given by the assignor, to the assignee had provided for the ob- taining of the policy on the mortgaged property, and the assign- Lewis vs. McReavy (Supreme Court of Wash), 34 Pac. Rep., 832. ATTACHMENT. INSURANCE BY DEBTOR AFTER ATTAOHlMENT.— Fire insurance is in effect a contract of indemnity against loss or damage suffered by an owner or person having an interest in the property insured. An attaching creditor has an insurable interest in the buildings covered by his attachment. But where he fails to procure any insurance on such interest, and the debtor takes out a policy at his own expense, the latter effects insurance on his own interest in the property, and not on that of his creditor. Donnell vs. Donnell' (Supreme Judicial Court of Maine), 30 At. Rep., 67. BOND. FIDF;:;ITY INSURANCE— INTERPRETATION OF BOND.— Bonds of indemnity given by fidelity insurance companies are analogous to ordinai-y policies of insurance, and are governed by the same principles of interpretation. Savings and Trust Co. vs. Guarantee Co., N. A. (U. S. Cir. Ct Md.), 68 Fed. Rep., 459. ACTION FOR BREACH OF BOND OF INSURANCE AGENT.— In an action against sureties on the bond of an insur- ance agent, whereby thejr were held and firmly bound unto the insurance company in a certain sum, and for which payment they bound themselves jointly and severally, a, complaint alleging a breach of the bond by the principal obligor by receiving $321 as such agent, and a refusal to pay it over, states a cause of action. In such an action, a claim that the agent received in the aggre- gate a certain' sum of money collected from persons named therein, and a claim that fie received another sum from another person. BOND— CAPITAL. 5 3 1 do not constitute separate causes, but are items in the same cause of action. Northern Assur. Co. of England vs. Hotchkiss (Supreme Court of Wiscousin), 63 X. W. Rep.. 1020. BY-LAWS. FAXHENT OF ARREARAGES.— The by-laws ol an insur- ance benefit association provided that if a member was in arrears for dues when taken sick, he should not receive benefits during such sickness. The acceptance of such arrearages from a mem- ber by the association is not a waiver of that by-law. Xagel vs. Glasbm-ger (.Supreme Court of New York), 10 N. Y. Sup., 503. THE SUPREME COURT OF IOT^'A HOLDS, that where the by-laws of an insurance company give the direction of its affairs to a body selected from members who were guarantors, other members, by acquiescing in such arrai(gement, waive their right to share in the control. The fact that losses are to be paid from a guaranty fund which is accessible in case the assessment on policies is insufficient, but that any moneys paid therefrom shall be treated as an advancement, to be subsequently repaid, does not make the company a stock company. Corey vs. Sherman, 60 X. W. Rep., 233. CAPITAL. LIABILITY FOR UXPAID STOCK SUBSCRIPTIONS.— Un- der the Colorado statute, which provides that stockholders in cor- porations are not required to pay on subscriptions to stock until after 20 days' personal notice or 30 days' written or printed no- tice, an action cannot be maintained against stockholders of stock, until such notice has been given and the time allowed thereby expired. TVhere an execution against a fire insurance corporation has been returned, "X'o property found," and the company has gone out of business, a suit to reach unpaid subscriptions to Its stock must be brought under the statute, which provides for suits in equity, joining with the corporation each of its stockholders who may be held for the amount of their unpaid subscriptions of stock. Universal Fire lu^. Co. vs. Taber (Supreme Court of Color- ado), 27 Pac. Rep., 890. 532 INDICATOR'S DIGEST. TAXATION OF CAPITAL STOCK— The New York statute of May 26, 1881, wliich provides, in relation to tlie taxation of corporations, tliat tUey shall tre subject to a tax upon their cor- porate franchise or business to the amount of a specified rate upon its capital stock, is not a tax upon the capital stock, but upon the corporate franchise, and the fact that a portion of the capital stock is invested in government bonds does not exempt that por- tion of the capital from consideration in computing the tax. To this decision Justices Harlan and Miller dissent, because the tax in controversy is in effect a tax upon the bonds of the United States held by the insurance company. Home Ins. Co. of New York vs. State of New York (Supreme -Court of the United States), 10 Sup., Ct. Rep., 1093. CHARTER. LIABILITY OP COMPANY ON REPEAL OF CHARTER.— The repeal of a statute under which an insurance company is or- ganized, by a subsequent act of the Legislature, which declares the charter of such insurance company forfeited tinless the com- pany complies with tha provisions of the repealing act within a limited time, does not work the cancellation of policies of said company outstanding at the time of the passage of the later act, though the company failed to comply with its provisions, and thus forfeits its charter. The acts of the insurance company in deciding to close up its business, and notifying the plaintiffs that the company would not be liable on its policies issued to them, without returning to the plaintiffs the unearned cash premiums paid by them to secure said policies, did not operate as a cancella- tion of said policies. Manlove vs. Commercial Fire Ins. Co. (Supreme Court of Kan- sas), 27 Pac. Rep., 979. THE SUPREME COURT OF ERRORS of Connecticut decides that the Insurance Commissioner's petition, under the statutes for annulment of the charter of an insolvent company and for a receiver, to be brought to the Superior Court of the county of its locajtion, "It in session," and, if not, to a judge of the Supreme Court of Errors, cannot he brought to such judge during a regular term of the Superior 'Court, in the interval of a ilny to day ad- journment. Mansfield vs. Mutual Benefit Life Ins. Co. (Supreme Court of Errors of Connecticut), 29 At. Rep., 137. CARRIER— CONTEMPT 533 CARRIER. VALIDITY OF INSURANCE IN FAVOR OF COMMON CARRIER.— The Supreme Court of Minnesot.i holds that, the common car-rier may lawfully insure against liability for loss of goods carried, though the loss be occasioned by fii'e occasioned by the negligence of its own servants. "There can be no reasons of public pelicy why corporations, who must always act through an agent or servant, ought not to be permitted to insure against liability duo to such negligence." Minn., St P. & S. M Ry. Co. vs. Home Ins. Co., 66 N. W. Re- porter, 132. CLAIM. RAILROAD AID ASSOCIATIONS— ACCEPTANCE OP BENEFIT A RELEASE OF CLAIM.— Where a raih-oad aid asso- ciation, composed of associated companies and their employes, Is in charge of the companies, who guaranty the obligations, supply the facilities for the business, pay the operating expenses, take charge of and are responsible for the funds, make up deficits in the benefit fund, and supply surgical attendance for injuries re- ceived in their service, an employe's agreement, in his voluntary application for membership, that acceptance of benefits from the association for an injury shall release the railroad company from any claim for damages for same, is not invalid as being against public policy, or for want of consideration or mutuality. Otis vs. Pennsylvania Co. (TJ. S. Cir. Ct, Indiana), 71 Federa" Reporter, 136. CONTEMPT. VIOLATION OF VOID ORDER WILL NOT CONSTITUTE CONTEMPT.— In action by the attorney-general to dissolve an in- solvent insurance company the court has no authority, on decree- ing dissolution, to appoint a receiver, and restrain such corpora;, tion. its directors, agents, attorneys, creditors, ^*n., from carrying 534 INDICATOR'S DIGEST. on any litigation, and from interfering with or tailing possession of any of its assets; and disobedience to sucli order does not con- stitute contempt. Harrison vs. Hebbard (Supreme Court of California), 35 Pac. Rep., 555. CONTRACT. LIBERTY OP CONTRACT: CLASS LEGISLATION.— A contract of Oliio provides that no railroad company, insurance company, or other association, or other persons shall require any agreement or stipulation with any other person, in or about to enter the employment of a railroad company, whereby such person agrees to waive any right to damages from such railroad, company for personal injuries, or any other right whatever an? all such agreements and stipulations sihall be void. .The Circuit Coui-t of the United States holds that such statute violates the CouBtiltution of tlie United States by depriving the persons af- fected by It of their liberty of contract, without due process of law. Shaver vs. Pennsylvania Co., 71 Federal Reporter, 931. CONSTRUCTION OP CONTRACT OF TITLE INSURANCE. —Action by the insured against the insurer on a title insurance policy. The Supreme Court of Milwaukee held that, under the terms of the policy, when the insurer corporation undertook to defend the title or interest of the insured, it was bound to pro- tect him through all stages of the proceedings against him (as well after the foreclosure sale as before the judgment in the pro- ceedings), or else notify him that it would not, and furnish him all necessary information of the status of the proceedings in time to enable him to protect himself. Quigley vs. St. Paul Title Insurance Co., 66 N. W. Reporter. 364. WHAT CONSTITUTES A CONTRACT OF INSURANCE.- A contract by a foreign corporation (says the Supreme Judicial Court of Massachusetts), in consideration of a sum paid, to pur- chase at a fixed price, accounts which during one year, a business firm should have against ascertained insolvent debtors, or debtors against whom execution should be returned unsatisfied, is a contract of insurance within the laws of Massachusetts, pro- viding tha.t a contract of insurance is an agreement by which one party, for a consideration, promises to pay money or its equivalent, or to do something in which the other party has an interest. Such contract by a foreign corporation not admitted to do business in the State is unlawful. And such contracts in that State are also unlawful, as they are not authorized by the sta- tute. The Supreme Court will of its own motion refuse to en- force an illegal contract. Claflin vs. U. S. Credit System Co., 43 N. E. Reporter, 293. CONTRACT. 535 CONTRACT OF BANK TO PROCURE INSWRANCE.— tra- der the revised statutes of the United States (bee. 5136, els. 37), empowering a national bank to make contracts, and to exerciSe all powers necessary to carry on. the banking business, it is not empowered to execute an agreement to procure a person applica- tions for insurance, if he would procure for it a customer. In an action by an insurance agent for a breach of such a contract, the bank may set up the defense of ultra vires. Dresser vs. Traders' Nat. Bank (Sup. Jud. Ct. Mass.), 42 N. E. Rep., 567. CREDIT INSURANCE, DISCONTINUANCE OF BUSINESS —Where a member of a firm dies after the sale b^ it of goods on credit, but before the vendees fail in business, the business of such firm is not discontinued by, and on the date of, the death of such member, within the meaning of a condition 5n a credit insurance policy issued by such firm, providing that it shall be void in the event of the discontinuance of business by the fii-m. Amer. Credit Indemnity Co. vs. Cassard (Ct. App. Md.) 34 Atlantic Reporter, 703. CREDIT INSURANCE POLICY.— A contract by which a cor- poration, though called a ''guarantee" or "surety" company, un- dertakes, in consideration of premiums paid, to indemnify the other party to such contract against losses by uncollectible debts, is not a contract of suretyship, but a policy of insurance, and as such is subject to the rule that ambiguities in the policy drawn up by the insurer, who makes his own conditions, are to be re- solved against the draftsman. Tebbets vs. Merc. Credit Guarantee Co. (U. S. Cir. Ct. App.). 73 Federal Reporter, 95. INSURANCE COMPANY CANNOT DO BANKING BUSI- NESS. — A corporation entitled an insurance company, whose offi- cers are authorized to write insurance of various kinds, "and gen- erally to do all things necessary and proper in carrying on the general insurance business," is not empowered in Tennessee to do a banking business, although its charter provides that it may purchase, hold and convey any and all kinds of estate, real, per- sonal, or mixed, receive in trust money or other valuable things, and loan surplus funds on any stocks of any incorporated com- pany, or of the United States, or "invest them in any real or per- sonal estate, or closes in action, or other good securities." And notwithstanding that the State Constitution of Tennessee merely prohibits the diminution and increase of the powers of corpora- tions by "special laws," and although the statute of 1887 author- izes "any company" incorporated under the laws of Tennessee, and having power, under its charter, "to receive money in trust," to do a general banking business, and provides that it shall there- by forfeit any ."immunity." an insurance company, incorporated before the adoption of said constitution, which is authorized to receive money in trust, and whose charter provides that it shall pay a State tax on "the amount of capital stock actually paid in * * * in lieu of all other taxes and assessments," loses such immunity upon undertaking to do a banking business, since the constitution provides that "all property, real, personal, or mixed, shall be taxed." State vs. Memphi.^ City Bank (Supreme Court of Tennessee), 19 S. W. Rep., 1044. 536 INDICATOR'S DiIGES'P. COMPLETBD C'ONTSACT OP INSUBAiNCB.— Where one applied for insurance against damage arising from the explosion of his boiler, and the insurance company deposited in the mai) a letter eontaining the policy applied for, and the report of its , inspector, who had examined the boiler, and suggested certain changes in the setting of the boiler, it was held to be a com- pleted contract of insurance, and that such report was not a con- dition precedent, on the fulfillment of which the contract was to take effect. Hartford Steam Boiler Inspection & Ins. Co. vs. Lasher Stocking Co., 29 At. Rep., 629. DEBTS. POLICY SECURITY FOR OUTLAiWBD DEBTS.— Though certain notes, to secure which an insurance policy was taken out on the maker's life, were outlawed at the time of his death, they are within a clause in such policy providing that the pro- ceeds thereof were to be applied to the payments of the "payee's then subsisting pecuniary demands." Townsend vs. Tyndale (Sup. Jud. Ot. Mass.), 43 N. E. Rep., 107. PARTNERSHIP CREDITS CANNOT BE APPLIED TO PERSONAL DEBTS. — Where an insurance agent, who was in- debted to his company, took in a partner, and the partnership thereafter represented the company, and opened new books, and kept its business separate from that formerly done by the agent, payments made to the company during the existence of the part- nership, could not be applied to the agent's individual debt, as- against his oo-partner. Hoffman vs Smith (Supreme Court of Iowa), 63 N. W. Rep., 182. DELIVERY. WHAT IS NOT A DELIVERY OF POLICIES.— The fact that a debtor authorizes his creditor, in case of his death, to take certain life insurance policies from among his papers, and hold them as collateral, where such policies are neither actually deliv- ered nor authorized to be taken during his life time, does not constitute a pledge of the policies as collateral,, entitling the creditor to their possession after the death of the debtor. Heilbrou vs. Guaranty Loan and Trust Co. (Sup. Ot., Wash,), 43 Pacific Reporter, 932. DEPOSITS. 537 DEPOSITS. PAYMEXT BY DEPOSIT IX IXSOLVEXT BAXK.— A fire insurance loss was adjusted and the amount due agreed upon. Tlie agent of the company therefore deposited in a local bank the aniount due and notified the insm-ed to call and get it. The notice was receiyed after banking hours and when the insured went to the bank the next day, to get his money, the bank had failed. This did not amount to' payment by the company. Had the assured delayed in calling for the money, or had he agreed that it s.'rould be left there for him, it would have amounted to payment, but in selecting this method of payment without agree- ment, the company assumed the risk. Clemens vs. Livingston, County Mutual Fire Ins. Co., Supreme- Court of THew York, 12 X. Y. Supp., 433. DEPOSITS IX XEW YORK.— The New York statute requires foreign insurance companies doing business in that State "to de- posit with the superintendent of the insurance department, for the benefit and security of policy-holders residing in the United States, a sum not less than $200,000 in bonds of the United States »r of the State of Xew York." TThen more than §200,000 are so deiKJsited with the superintendent, the trust as to the surplus is not a voluntary trust, but the statutory trust attaches to the whole deposit, and the courts cannot interfere with its custody or ad- ministration, otherwise than according to the terms of the stat- ute. In a suit to withdraw such surplus from custody, allega- tions that It "was from time to time deposited with the succes- sive superintendents of insurance, to be held, by them and their successors, for further benefit and security of the policy-holders in the United States," shows that the parties to the transactioEj had in contemplation The same statutory trust that attached to the original deposit of S200,0(X). Lancashire Ins. Co. vs. Maxwell (Supreme Court of X'ew York), 16 X. Y. Supp., 53. DEPOSITS WITH INSURANCE SUPERIXTEXDEXT IN XEW YORK.— The Court of Appeals of Xew York holds that the law of 1869. c.,902, of that State, authorizing certain life Insur- ance companies to make special deposits with the insurance de- partment for the protection of holders of registered policies and annuity bonds, does not apply to a company which was not in- corporated under the act, and which never issued registered policies annuity bonds. People vs. American Steam Boiler Ins. Co., X. 1'., 41 X. E. Rep., 423. 538 INDICATOTR'S TDIG^rST. BEPARTMBNT DEPOSITS.— The New York statute pro- vides that insurance companies incorporated by or organized under the laws of any foreign government shall deposit with the superintendent of the insurance department, for the benefit and security of the policy-holders in the United States, a sum not less than $200,000 in stocks of the United States or of the State pf New York. The courts have no power to authorize or direct the withdraiwal from such ofHclal trustee of any amount so deposited in excess of the minimum amount required. Liancashire Ins. Co. vs. Maxwell (Court of Appeals of New York), 30 N. E. Rep., 192. DIRECTOES. POWERS OP DIRECTORS OF MUTUAL , INSURANCE COMPANIES.— The Supreme Court of Illinois holds that, where a loss is claimed under an alleged oral contract of insurance whjoh has some evidence to support it, payment of a little more than half (the claim in settlement is within the power of the directors, as a valid compromise of a doubtful claim. And the fact that oral contracts of Insurance are forbidden by the by- laws of a company does not render such settlement ultra vires, since such company may waive by-laws of its adoption. ■Stoehlke vs. Hahn et al., 42 N. E. Rep., 150. EMBEZZLEMENT. EMBEZZLEMENT OP INSURANCE FUNDS.— The Supreme Court of Oregon holds that where an indictment charges that a party was the employe and embezzled the money of a certain firm, while the evidence ■ showed that the moneys "belonged to a certain fire insurance company, the court should have directed an acquittal. State vs. Morgan, 42 Pacific Reporter, 128. EMPLOYER 559 EMPLOYER. CONSTEUCTION OF EUPLOYER'S INDEMNITY BOND.— Under a bond given an employer for the term of a year by whicli a company covenants that, during its continuance, his employe shaU faithfully perform his duties, and, at the cessation of said employment, he sliall turn over to the employer all moneys and property, and indemnifies the employer against loss by default of the employe, occurring during the continuance of the bond, and discovered during said continuance, or within six months there- after, or within six months from the death, dismissal, or retire- ment from the employer's service of the employe, recovery can be had for no default not discovered within six months after the termination of the year tor v^hich the bond was given, notwith- standing the empioye thereafter, continued in the employment, and similar bonds were given from year to year. Lombard Investment Co. vs. American Surety Co. (U. S. Cir- cuit Court), 65 Fed. Rep., 476. EMPLOYE'S RELIEF ASSOCIATION— CONTRACT RE- LEASING EMPLOYER.— A railroad employe who, upon becoming a member of a voluntary relief association, composed of employe^ and to whose funds the company is bound to contribute in case of deficiency, signs, without fraud or undue influence, a contract that in case of injury he shall elect either to take the benefits provided by the association or have his action against the company, cannot avoid the effect of such agreement on the ground that he signed it without reading it or understanding its purport, and that he was at a disadvantage in dealing with the company. The fact that at the time of receiving the relief from the association he was not aware of the strength of his case against the company, was igno- rant of certain important facts and of witnesses by whom he could prove them, is to be regarded merely as his misfortune, and does not avoid the effect of his election in barring an action against the company. Tickers vs. Chicago, B. & Q. R. Co. (U. S. Clr. Ct. Illinois), 71 Federal Reporter, 139. CONTRACT OF INDEMNITY.— A contract between a com- pany and an employer, guarantying the fidelity of the employe, having been executed at the request of such employe, his obli- gation to indemnify the company is co-extensive with the obli- gation of it |to indemnify the employer; and any provisions in the contract between the company and the employer as to prdof of liability, which were binding on the company, in (favor of the employer, are equally binding on the employe in favor of such guarantying company. But a stipulation in such a contract that the voucher or other evidence of payment by the company to the employer should be conclusive evidence against the em- ploye as to the fact and extent of his liability to the company is 540 INDICATOR'S DIGEST. void, as against public policy, in so far 3,s it makes such voucher or other evidence of payment conclusive evidence. Fidelity & Casualty Co. vs. EickhrifC (Supreme Ct. Minn.),' 65 N. W. Rep., 351. EXAMINATION. PAYMENT OF EXPENSES OF DEPUTY.— The insurance act provides that the superintendent may examine the financial condition or management of any insurance company, incorporated by or doing business in his State, and may compel the attendance of witnesses, production of papers, etc., in the prosecution of such examination. The act could have no extra territorial force, and therefore the superintendent being without power to act outside, of the State, could not draw on the State fund for the payment of his deputies' expenses, in attending an insurance convention without the State, and in investigating the condition of a company in another State, though It was doing business in his State. Carlile v^. Hurd (Court of Appeals of Col.), 31 Pac. Rep., 952. EXEMPTION. INSURANCE MONEY EXEMPT IN MISSISSIPPI.— The provisions of the law of Mississippi (Code 1892, sec. 15^2), impos- ing liability for the debts of deceased on his exempt property, in the absence of wife or children, is limited by section 1965 of the Code, ■wfhich provides that the proceeds of a life insurance policy, not exceeding $5,000, payable to the executor'o'r administrator, shall Inure to the heirs or legatees, freed from all liability for the debts of the deceased. Coates vs. Worthy 0 of paid-up capital, exclusive of assets deposited in another State for the special security of the insured therein, a company having less than that amount of capital cannot recover, in Iowa, assessments under a policy of insurance Issued on property in Iowa. Seamans vs. Zimmerman (Stipreme Court of Iowa), 59 N. W. Rep., 290. LIABILITY OF A FOREIGN CORPORATION TO GAR- NISHMENT. — A foreign insurance company had a general office in California for the management of its business in Washington and other States, and there disbursed its funds for the payment of losses. It had a local agent in Washington, who issued policies, and on whom process could be served. The situs of the debt for a loss on a policy issued by the local agent in Washington was not, for the purpose of suit, limited by the domicile of the com- pany or of the assured in that State, but the assured could sue the company in California, and therefore liis creditors could gar- nishee the debt there. Ncuf elder vs. German-American Ins. Co. (Supreme Court '.f Wash.), 33 Pae. Rep., 870. FOREIGN COMPANIES IN MONTANA: FEES TO STATE. —The law of Montana relating to the organization of corpora- tions In that State, provide that the instrument by which a pri- vate corporation is formed is called "articles of incorporation," and that on filing a copy, certified by the county clerk, with the Secretary of State, the Secretary must issue to the corporation a certificate, and thereupon the persons signing the articles, and their associates and successor shall be a body corporate. The law further provides that the Secretary of State must charge and collect, for receiving and filing each certificate of incorpora- tion, the sum of 50 cents on each .f 1,000 of the capital stock of the company. The Supreme Court of that State held that a foreign in.surance company is not required, on filing its charter as pro- vided by statute, to pay' to the Secretary of State such fees. State vs. Travelers' Ins. Co.. 44 Pacific Reporter, 409. FOREIGN COMPANIES IN LOUISIANA.-The Supreme Court of Louisiana holds that it is within the power of the State to forbid a citizen of the Staic doing any act in the State which violates the laws of the State. And If a party, while in that State, takes out an open policy in a marine insurance companv domiciled out of the State, and which has not complied with the laws of that State for doing business within its territory cover- FORFEITURE— FRAUD. 547 ing pi-operty situated within tliat State, he is liable to the pen- alty of the statute provided against such act. And the mailing of a letter or telegraphing a communication by which, instantly, each shipment of goods is insured, and the risk attached, is do- ing an act in that State to effect insurance, and comes within the act forbidden by the statute. State vs. AUgeyer, IS Southern Reporter, 904. FORFEITURE. WAIVER OF RIGHT TO DECLARE FORFEITURE.— Where an insurance company, after the death of the animal in- sured, with knowledge ot all the facts on which it haa a right to avoid the certificate of membership and insurance, accepts the proofs of loss after requiring assured to insert some additional facts therein, and makes and collects of him an assessment cover- ing the loss of such animal and others, which it has a right to do only by reason of the existence of the contract of insurance, it thereby waives the right to declare a forfeiture. Lobee vs. Standard Live Stock Insurance Go. (.Superior Court of Buffalo, Gen. Term), 33 N. T. Sup. Rep., 657. THE SUPREME COURT OF PEXXSl'LYANIA HOLDS, that under a by-law of a mutual live-stock insurance company providing that the insurance shall be confined within a twelve- mile limit, removal of the property insured beyond such limit will not forfeit the insurance. Reck vs. Hatlxiro ilut. Live-Stoek & Protective Ins. Co., 30 At Rep., 205. FRAUD. WHEN MEMBER OF MUTUAL COMPANY CANNOT I'LEAD FRAUD.— One induced to become a member ot a mutual insurance company by false representations of an agent as to the number of members cannot in an action against him on his premium note to recover an assessment by a subsequently ap- pointed receiver of the company, set up fraud in defense, where after he discovered the fraud, he paid assessments, and other parties afterwards became members of the company. Eickman vs. Hersker, receiver (Supreme Ct. Penn.), 33 At- lantic Reporter, 229. 548 INDICATOR'S DIGEST. SUFIFICIENCY OF INDICTMENT FOR FRAUDULENT INSURANCE CDAIM. — An indictment for presenting to an insur- ance company a fraudulent claim is suflBcient, where it alleges that the total loss was not the sum asserted in the proofs, that the claim against the prosecuting company was not justly used, and that both the total loss claim and the claim against said company were false and fraudulent, to the insured's knowledge, and were feloniously presented in violation of the statute. People Ts. Spiegel (Court of Appeals of New York), 38 N. E. Rep., 284. WHAT FALSE REPRESENTATIONS WILL, NOT RE- LIEVE MEMBERS OF MUTUALS.— The organizers of a mutual insurance company published notices that it would have a guar- anty fund not to exceed $50,000, "which shall be paid as ordered by the directors and as required in said articles and by-laws." The company issued advertisements stating that the guaranty fund was pledged to prompt payment of losses should other funds be inadequate; and that it was to protect policy-holders against an assessment of more than one-sixth of the amount of their notes in any year; while it was not an asset, and afforded no protection. The Supreme Court of Iowa held that such false representations did not constitute such fraud as entitled sub- sequent members and policy-holders to be relieved from liability on their premium notes. Corey vs. Sherman, receiver, etc., 64 N. W, Rep., 829. GARNISHMENT. GARNISHMENT— LIABILITY OF INSURANCE COMPANY. —Where an insurance company, in consideration of a surrender by a party of his policy, agreed to send to its agent, for such party, a cashier's check for a certain sum, payable to the order of such party, the insurance agent became the agent of this party, so that the mailing of the check to him was delivery to said party, and the amount could not be reached by a subsequent garnish- ment against the company. Campbell vs. Hanney (Supreme Ct. R. I.), 33 At. Rep., 444. COMPANY MAY HOLD SUFFICIENT TO INDEMNIFY ITSELF AGAINST GARNISHMENT.— Where judgment was re- covered against a company, as garnishee, in an action against the assignee of a policy, and subsequently, on the death of the assignee, the company paid his executor the proceeds of a policy on his life, in consideration that it be permitted to retain a suf- ficient amount to indemnify it against the judgments recovered in case the assignment of the policy was declared invalid by the courts, on such assignment being set aside, the executor cannot deny the right of the insurer to indemnify itself against the judgment from the amount retained for that purpose. Spooner's Adm'r vs. Hilbish. ex"r (Sup. Ct \nn Va 1 •>•; «! E. Rep., 752. ■ ■ . - . . GARNISHMENT— GIFT. 549 GARNISHMEiNT FOR INSURANCE ON EXEMPT PROP- ERTY.— Money due from a policy of fire insuranc©, taken by a debtor for his own protection, for the loss of personal property which is exempt from execution, is not subject to garnishment, even where the creditor has a lien on the property destroyed. Ward vs. Goggan (Court of Civil Appeals of Texas), 23 S. W. Rep., 479. GARNISHMENT PROCEEDINGS IN IOWA— PAYMENT IN ANOTHER STATE.— In an action in an Iowa court on a policy of insurance issued to an Iowa corporation by a Pennsylvania insur- ance company, doing business in Iowa and Illinois, an action against the insured in Illinois by other pai'ties residing therein, and the garnishment of its claim against the insurance company, may be pleaded in abatement; because presuming the laws of Illinois, which are not pleaded, to be the same as those of Iowa, the Illinois court had acquired jurisdiction of the cause of action, since Code Iowa, Sec. 2580, provides that an action aided by at- tachment may be brought in any county of the State, wherever any part of the property sought to be attached may be found, when the defendant whose property is thus presumed is a non- resident, and Section 1144 requires a foreign insurance company doing business in this State to appoint an agenlj upon whom pro- cess may be served. > German Bank vs. American Fire Ins. Co. (Supreme Court of Iowa), 50 N. W. Rep., 53. GIFT. GIFT IN VIEW OF DEATH.^A gift in view of death is where one, in anticipation of death from a severe illness then afflicting him, or from some imminent peril to his life, to which he expects to be exposed, makes a gift accompanied by the de- livery of the thing given, either actual or symbolic, which i^" ac- cepted by the donee, the law denominates such a gift a "donatio causa mortis." It has been the settled law of England that de- livery is essential in gifts causa mortis; and there has never been any controversy upon that point in this country. Since delivery is an essential element to complete the transfer of title or prop- erty in personalty, the authorities holding to the view that the title passes and becomes vested in the subject-matter of a do- natio causa mortis during tlie life of the donor are dominated by the idea of delivery. But, while delivery is a prerequisite to the transfer of title, it does not follow that there is always a transfer of title where there is a delivery, nor that the delivery of the chattel and the transfer of the title are contemporaneous, in cases where the title is transferred. The better doctrine upon the transfer of tie title to gifts causa mortis is that which ac- cords with Jnstinian'a definition, and recognizes the subject- matter of the gift as becoming the property of the donee in the 550 INDICATOR'S DIGEST. event of the donor's death; i. e., the donor's death is a condition precedent to the vesting of the title to the thing given to the donee. This seems to be the rule adopted by the English courts of chancery, and is supported also by American courts and text writers. Hatcher vs. Buford (Supreme Court of Arkajisas), 29 S. W. Rep., 641. INCUMBRANCE. NOTICE OF CONDITIONS AND INCUMBRANCE.— Where an insurance policy is delivered by the agent of the company at the request of the insured to a person designated by the latter, the insured is chargeable with notice of its conditions, though he did not read it, and when delivered was sealed in an en- velope. The insurer, when there is no written application, is not bound to inquire as to incumbrances on the property before issuing a policy containing conditions making it void in case there are incumbrances. Nor is the insured notified of mortgages by the existence of records showing same, and the statute that "all persons shall be charged with notice" of the records applies only to creditors and future purchasers. Aetna Life Ins. Co. vs. Holcomb (Supreme Ct., Tex.), 34 S. W. Rep., 915. INJUNCTION INJUNCTION AGAINST CONTRACT FOR PERSONAL SERVICES.— Unless personal services are individual and peculiar, because of their special merit or unique character, a negative covenant, even when express, not to render them to others, will not be enforced by injunction in order that the employer may have the incidental benefit of an affirmative covenant, to serve him ex- clusively for a specified time. Where one assigned to a firm his interest in a certain contract of agency for an insurance com- pany, and in the assignment covenanted to remain with the firm as special agent in a named State for one year, and to give his entire time and attention to fhe business of that company by pro- curing for it applications for insurance, an injunction will not be granted at the instance of the firm, to restrain the assignor from soliciting insurance or transacting business for a rival company, the assignment containing no express covenant that he would not do so, and it not appearing that he was a specially skillful, successful or expert insurance agent, whose place could not be readily supplied by another equally competent to attend to the business for which his services had been engaged. Burney vs. Rule (Supreme Court of Ga.), 17 S. B. Rep., 986. INSOLVENCY. 551 INSOLVENCY. INSOLVENCY DOES NOT RE'LBASE MEMBERS OF MU- TUAL COMPANIES.— The insolvency of a mutual company and its assignment for benefit of creditors do not terminate the obli- gation of members and policy-holders to contribute to payment of losses which occurred prior to the assignment. Corey vs. Sherman, receiver, etc. (Supreme Ct. la.), 64 N. W. Rep., 829. LIABILITY OF INSURANCE COMMISSIONERS FOR IN- SOLVENT COMPANIES ADMITTED.— The act of an insurance commissioner in admitting a company to do business in the State is judicial, and no personal liability attaches to him for such action unless corruption is proved, and a charge in a bill that he knowingly issued a license to a company which had not complied actually with the law, is not equivalent to charging him with a wilful and malicious violation of the law. State vs. Thomas (Supreme Court of Tennessee), Feb. 6, 1890, 12 S. W. Rep., 1034. INSURANCE OF SECURITIES— AGREEMENT TO REP.4.Y SUMS PAID UNDER POLICY— INSOLVENCY OF INSURANCE COMPANY— SCHEME OF ARRANGEMENT— PAYMENT UN- DER SCHEME — DISCHARGE OF LIABILITY UNDER AGREEMENT.— The appellants insured by a policy the principal and interest of the debentures of a limited company, the directors of which, who are the respondents in the appeal, by an agree- ment undertook to pay to the insurers all sums within a pre- scribed amount which the latter should have paid under the policy. Default was made in the payment of the debenture in- terest, and, the appellants, finding themselves unable to meet their liabilities, a resolution for their voluntary winding up was passed; and a scheme of arrangement was subsequently sanc- tioned by the court, under which, "in lieu of its liabilities under such policies," the rate of interest payable by the appellant cor- poration was. as from the date of the winding up resolution, re- duced, and the time for payment of principal was extended. A payment of interest was made by the appellants calculated at the original rate up to the resolution for winding up, and at the re- duced rate for the pwiod subsequent thereto, and the appellants claimed to be reimbursed by the respondents. Held, by the House of Lords, affirming the decision of the Court of Appeal, that the respondents were not liable, as the payment was made wlioUy under the scheme and not under the policy, and no distinction could be drawn between the amount calculated at the higher and that at the lower rate of Interest. Mortgage Insurance Corporation vs. Pound, 65 L, 3. Rep., Q. B.. 129. 552 INDICATOR'S DIGEST. INSURABLE INTEREST. UNDISCLOSED INTEREST NOT SECURED BY POLICY. —Where the owner of a half interest in property obtains insur- ance in his own name, the company supposing him to be the sole owner, such insurance does not cover the interest of his co-owner. Hebner vs. Sun Ins. Co. (Supreme Court of Illinois), 41 N. B. Rep., 627. INSURABLE INTEREST.— A consummated agreement for the sale of a deed of trust and of a note secured thereby, which is in the purchaser's possession, vest him with an equitable title, so as to give him an insurable interest in the property covered by the deed, though the note is not indorsed by the seller. Int. Trust Co. vs. Norwich Union Fire Ins. Co. (U. S. Cir. Ct. A^PP-). 71 Federal Reporter, 82. INSURABLE INTEREST OF STOCKHOLDER IN COR- PORATION PROPERTY.— Whenever there is a real interest to protect, and a person is so situated with respect to the subject of insurance that its destruction would or might reasonably be ex- pected to impair the value of that interest, an insurance on such interest would not be a wager within the statute, whether the Interest was an ownership in or a right to the possession of the property, or simply an advantage of a pecuniary character having a legal basis, but dependent upon the continued existence of the subject. The stockholder in a corporation has no legal title to the corporate assets of the property, nor any equitable title which he can convert into a legal title. The corporation itself is the legal owner and can deal with corporate property as owner, sub- ject only to the restrictions of the charter. But stockholders in a corporation have equitable rights of a pecuniary nature, growing out of their situation as stockholders, which may be prejudiced by the destruction of the corporate property, and they therefore have an insurable interest in the property with which the profits of the corporation are earned. Riggs vs. Commercial Mutual Ins. Co. (Court of Appeals of New York), 25 N. E. Rep., 1058. INSURANCE. INSURANCE ON GOODS BY CARRIER.— Where a carrier secures insurance on goods belonging to numerous owners, for their benefit as well as his own, and, the goods being destroyed, collects the entire amount of the insurance, equity has jurisdlc- INSURANCE— INTEREST. SSJ tion, on the ground of avoiding a multiplicity of suits and the diffi- culty of making proper apportionment, of a suit brought by some of the owners, for the benefit of all who might join with them, to recover their alleged proportional interest therein. Where a car- rier voluntarily, and primarily for its own benefit, insures goods received for transportation, but under policies purporting to insure "eachand all owners of such goods," such owners may maintain a bill against it to recover insurance money, averring that they were insured, that the goods were destroyed, and that the carrier col- lected the entire amount of insurance. Where, however, the poli- cies provide that where no owner of goods, who has insured for himself, shall be entitled thereunder, except to the excess of his loss, a bill is demurrable which fails to state whether there was such other insurance, and its amount, if any; for if the carrier collected insurance on complainant's goods in excess of its own loss, and to which neither it nor complainant was entitled under the policy, this could give rise to no equities in favor of com- plainant. Pennefeather vs. Baltimore Steam Packet Co. (Circuit Court D. Maryland), 58 Fed. Rep., 481. INSURANCE COMMISSIONER. DISCEETION OF INSURANCE COMMISSIONER.— The in- surance statutes of Connecticut vest the commissioner of insur- ance with discretionary power, and give him the authority to see that all laws relating to insurance companies are enforced. The insurance commissioner's duties are quasi judicial, and mandamus will not lie to compel him to issue a certificate of admissioc to a foreign insurance company, which has been refused in his discre- tion after a hearing. American Casualty Ins. Co. vs. Fyler (Supreme C!ourt of Er- rors of Connecticut), 22 At Rep., 494. INTEREST. INTEREST ON ESCROW FUNDS.--Certaiu funds of an in- solvent, which were claimed by several creditors, one of them a bank, were, by an order of the court, which was made by the con- sent of all the parties in interest, paid to the bank; it agreeing to pay them over to the court's order if it was finally decided that the bank was not entitled to them. Meantime the bank used the funds ag its own. Where the funds were afterwards ordered to be paid over, the bank was liable for interest thereon for the time it held and used them. In a suit against the bank by the parties.. 554 INDICATOR'S DIGEST. entitled to such interest, they were not estopped by reason of the fact that they had consented to the original order made by the ■court directing the funds to be paid to the bank. Kenton Ins. Oo. vs. P^irst Nat. Banii (Court of Appeals of Kentucky), 19 S. W. Rep., 185. RIGHT TO INTEREST ON SECURITIES DEPOSITED.— Laws 1892, provide that, so long as a company which has depos- ited securities with the Superintendent of Insurance, shall con- tinue solvent, and comply with the Insurance laws, it may collect the interest on its deposit. Section 76 provides tbat, when a re- ceiver of such company is appointed and qualified, he shall take possession of the securities deposited. It was held, that the re- ceiver of a solvent company, which has been dissolved because It had discontinued its business, was entitled to the interest col- lected by the Superintendent of Insurance on the securities de- posited. People vs. American Steam-Boiler Ins. Co. of New York City (Supreme Court, General Term, First Dep't), 33 N. Y Sup. Rep., 834. JURISDICTION. JURISDICTION OF COURTS.— A libel in admiralty may be maintained in any Federal district against a corporation of an- other state in which service can be secured upon a duly authorized agent of such corporation. In re Louisville Underwriters (Supreme Court of the United States), 10 Sup. Ct. Rep., 586. CONFLICTING JURISDICTION BETWEEN STATE AND FEDERAL COURTS.-The claim of mortgage bondholders of a -corporation to an equitable lien on the proceeds of Insurance poli- cies on the corporate buildings, by virtue of a stipulation in .the mortgage for insurance for their benefit, may be determined in a federal court, notwithstanding the pendency in the State courts of suits wherein other bondholders seek the same relief. A fed- eral court has no jurisdiction to interfere, by injunction against either party, with a suit previously brought in a State court by the liquidators of a corporation, upon insurance policies in their possession and covering the corporate buildings, although the complainants in the federal court claim an equitable lien on the proceeds thereof. | The Chicago T. & iS. Bank vs. Bentz (Circuit Court E D Louisiana), 59 Fed. Rep., 645. JURISDICTION OP FEDERAL COURTS— FOREIGN IN- SURANCE COMPANIES.-The constitution of the State of Oali- fornia provides in Article XII., Section 15, "No corporation organ- ized outside of the limits of this State shall be allowed to transact business within this State on more favorable conditiona than are prescribed \)y law to similar corporations organized 'ander the JURISDICTION— LIABILITY. 555 laws of this State." Section 616 of the political code provides, "The insurance commissionei- must require, as a condition pre- cedent to the transaction of insurance business in this State by any foreign corporation or company, that such corporation or company must file in his office the name of an agent, and his place of residence in this State, on whom summons and other process may be served In all actions or other leg^al proceedings against such corporation or company. The agent so appointed and des- ignated shall be deemed in law a general agent, and must be the principal agent or chle; manager of the business of such corpora- tion or company in this State/' Shalnwald vs. Davids (Di'st. Gourt N. D. Cal.), 69 Fed. Rep., 704. JUDGMENT CREDITOR. RIGHTS OF JUDGMENT CREDITORS.— A policy-holder in the Maine Mutual Accident Association, yrho has recovered judg- ment against the company upon a claim under his policy, and de- manded payment of the same from the State treasurer out of the company's funds in his hands, more than thirty days before equit- able proceedings of insolvency "were instituted against the com- pany by the State insurance commissioner, does not thereby ac- quire for his claim any preference ovet the legal claims of the other creditors of the company. Smith Ins. Com. vs. Maine Mut. Ace. Ass'n (Burrill Inter- vener). 29 At. Rep., 991, Supreme Judicial Comt of Maine. LIABILITY. THE SUPREME COURT OF MINNESOTA holds, that an absolute denial of all liability on a policy of insurance, and a refusal to paj-, are a waiver of the right of the insurer to have a stipulated time after proofs of loss in which to pay. Hand vs. National Live Stock Ins. Co., 59 N. W. Rep., 538. LIMITING LIABILITIES OF CORPORATION POWERS — An "association or number of pej^ons"' who in conducting the business of insurance profess to limit their liability to the amount of money contributed by each, and assume to give perpetuity to the business by making membership certificates transferable by the assignment of the member or his personal representatives, are "acting as a corporation" so as to authorize a judgment of ouster on quo warranto under the statutes, where they have not incor- porated according to the statute. Green vs. People (Supreme Court of Illinois), 37 N. E. Rep., 842. 556 INDICATOR'S DIGEST. LIABILITY AFTER WITHDRAWAL FROM ASSOCIA- TION.— One who acted as attorney in fact for and was a mem- ber of an underwriters' association at the time policy was issued, but who with his associates withdraws from the company in which the policy was written, without giving notice to the policy- holder, is liable on the policy, though no proof of loss was served on him. Walker vs. Beecher (Com. PI. N. Y. City), 36 N. Y. S. Repor- ter, 470. RAILROADS CANNOT ESCAPE LIABILITY FOR NEGLI- GENCE BY CLAUSE IN LBASE.s-The Supreme Court of Iowa has decided that a clause in a lease by an elevator owner whose building stood on ground owned by a railroad providing that the railroad should not be liable for fire caused by its negligence was void, being against public policy. The facts in the case under which the decision was made were: H. J. Griswold owned an elevator on ground owned by the railroad and held by him under lease, in which he had agreed with the railroad that it should not be liable for damage by fire caused through its negligence. The elevator was destroyed lay fire started by sparks from a passing engine. The insurance companies paid assured, and being subro- gated sued the railroad for the amounts so paid. The railroad set up its exemption under the lease, but the insurance companies denied the validity of the lease, claiming it was void as against public policy in that it undertook to protect the '•ailroad against its own negligent act. The lower court held the lease valid, but the Supreme Court holds it void. The question is said to be- a new one, never having been passed on by any Appellate Court before, and an important one to Insurance companies, as such leases are in general use by railroads all over the country. Griswold et al. vs. 111. Cent. R. R. Co. (Supreme Court la.). 57 N. W. Rep. 843. LIABILITY OP COMiPANY FOR INTENTIONAL DE- STRUCTION OP STOCK.— A policy insuring one against loss from death of a horse by "disease or accident" provided that the assured should use all care for the health and preservation of the horse, and in case of sickness promptly summon the best veterin- arian accessible, or, if none could be had, provide the best avail- able care and attention, and that its benefit should not extend to any fatal injury which occurred through the connivance, suffer- ance, or act of the owner. Where such horse was intentionally killed tvro hours before the expiration of the policy, on the advice of a veterinarian sent by the company to treat the horse, not because the horse was in pain, but because it could not recover, and that this result was procured by the assured to enable him to make a claim under the policy, the company was not liable, though its president directed the assured to follow the veterin- arian's instructions as tc treating the horse. Where the business of a live-stock insurance company is to Insure against loss by the death of live stock, the autliority of the president to impose a liability on the company for stock intentionally destroyed will not be presumed, but must be shown by the policy-holder seeking to enforce such liability. And where the policy of such company does not provide for liability for stock intentionally destroyed, an action for loss of such stock cannot be maintained, though it was destroyed by direction of the company's president. Tripp vs. Northwestern Live-Stock Ins. Co. (Supreme Court of Iowa), 59 N. W. Rep., 1. LIABILITY. 557 LIABILITY OF LIFE TENANTS FOR INSURAN.CE.— Where the executor of a will under which a life tenant is in possession of a building, before the death of the life tenant, pays a premium on a fire insurance policy for a term of years, the estate of the life tenant is .chargeable with only that proportion of the pre- mium which would insure the premises up to the time of her death. In re Wvatt's Elstate (Surrogate's Court, Orange County), 30 N. Y. S.. 176. NOTICE TO COMPANY "OF TERMINATION OF BONDS- MEN'S LIABILITY.— Where the State agent of an insurance company is charged with making advances to agents, and has general supervision of them, notice to him, by a sub-agent, of a termination of the contract, and by the latter's bondsmen that they WQuld no longer be liable- on the bond for advances, is notice to the company. Union Cent. Life Ins. Co. vs. Smith (Supreme Coiu-t of Michi- gan), 63 N. W. Rep., 438. PERSONAL LIABILITY OF EXECUTOR FOR PROCEEDS OI' SALE. — Where, in an action to enforce the personal liability of two esecutrices, one of whom is the widow and the other the daughter of the testator, for loss of the proceeds of a certain sale of land, it appears that the widow was by the will entitled to a life-estate in all of testator's property, that the sale of property was made by her under a power of sale given in the will, and the proceeds received by her, not as executrix, but as a life-tenant, and that the daughter never received such proceeds in fact or in law, the execuu'ices are not responsible as such, Ln an accounting before the surrogate, for the proceeds of such sale. In re Blanvelt (Court of Appeals of New York), 30 N. E. Rep., 194. LIABILITY OF INSURANCE COMPANY DISOHAROBD BY ACCEPTANCE OF DRAFT. — ^When an insurance company sends to a bank a draft, payable to the insured, for less than the amount of the policy and loss, with instructions to deliver the same when she will sign an accompanying receipt in full, claim- ing to her knowledge that the amount of the draft is the full amount of its liability, and she, knowing the conditions, indorses the draft for collection and deposit, and it is collected by the bank, this amounts to a binding compromise. The fact that the assured does not sign the receipt is immaterial, since by indors- ing and accepting the draft she agrees to the conditions. In such case the insured cannot escape the binding effect of the com- promise, because in indorsing the draft and leaving it with the bank for collection, she did not intend to accept the terms on which it was offered, but merely to place the money within the jurisdiction of the court, preparatory to an action aided by at- tachment against the company for the full amount of the policy, since by her act of indorsing the draft she accepted it. The com- promise is not without consideration, because the adjusters have fixed the loss at the full amount of the policy, where the company has since the adjustment claimed that under its contract the less amount was due. Keek vs. Hotel Owner's Mutual Fire Ins. Co. (Supreme Court of Iowa), 55 N. W. Rep., 438. 558 INDICATOR'S DIGEST. LIABILITY FOR DESTRUCTION BY LIGHTNING AND WIND.— Undei- a policy covering direct loss from lightning, but excluding loss from wind, there can be no recovery for damage by -wind, though, but for the weakening of the building by light- ning, it would not have been blown down. Beakes vs. Phoenix Ins. Oo. (Court of Appeals of New Tork), 38 N. E. Rep.. 453. LIABILITY OP SURETY ON EMPLOYE'S INDEMNITY BOND.— A surety on a fldelity bond, indemnifying a corporation against loss of money intrusted to its treasurer, through the "em- bezzlement or larceny of same by him" is not liable for money intrusted to him, and for which he failed to account, on which, while in his hands, the corporation charged him interest. Milwaukee Theater Co. vs. Fidelity & Casualty Co. (Sup. Ct. Wis.), 66 N. W. Reporter, 360. AN INSURANCE COMPANY, which by the express terms of its policy has been absolved from liability, and is under no legal obligation to pay a loss, because of a stipulation contained in the bill of lading of the insured property, whereby the carrier llaWe for the loss is to have the benefit of such insurance, the Supreme Court of Minnesota holds, has the right to impose as terms of payment for such loss that it have an unqualified absolute right to proceed against the carrier primarily liable to the Insured. Such can-ier Is not in a situation to complain, or object or to de- mand that he have the benefit of the payment. Southard vs. Minneapolis, St. P. & S. S. M. Ry. Co., 62 N. W. Rep., 442 REORGANIZATION NOT LL4.BLE FOR LIABILITIES OF PREDECESSOR.- The Supreme Court of Minnesota held recently that, where a company having been declared illegally organized, and the same parties, using the same name, reincorporated ac- cording to law, and on receiving funds on hand of old company, offered policy-holders opportunity to become members of the new, or to receive their share of the fund, and a party never did either, his share remiaining uncalled for, and he never having been assessed as a member of the new organization, the latter is not liable on the old certificate. Adams vs. N. W. Endowment & Legacy Ass'n, 65 N. W. Re- porter, 360. INSURANCE AGAINST LIABILITIES AS CARRIER.— In an action on an insurance policy the bills of lading fixed the lia- bility of the railroad company to the shippers as' carrier and warehouseman, are the measure of the insurance company's lia- oility to the railway company, and cannot be varied by verbal evidence. In an action to enforce rights dependent upon a written contract, although the suit be between strangers to the instrument, or between a stranger and one of the parties to the contract, the rule against varying a written instrument applies. A liability in- curred by the railway company on a collateral contract to procure insurance on the property of shippers, is not a liability as carrier or wai'ehouseman, within the meaning of the policy. Minneapolis, Saint Paul & Saute Ste. Marie Railway Company vs. Home Insurance Company (Supreme Court of Minnesota) 56 N. W. Rep., 815. LIABILITY— LICENSE. 559 LIABILITY FOR FAILURE TO SECURE INSURANCE ON PROPERTY— In an action to recover damages for failure to ful- fill an agreement to procure insurance on the property of another, it is no defense that the party sued was acting as agent for another in making the agreement, unless such fact was disclosed at the time to the party seeking the insm-ance on his property. Banks vs. Cramer (Supreme Ct. Mich.) 66 N. W. Re- porter, 946. LIBEL. LIBEL OF INSURANCE OFFICER.— A newspaper publica- tion imputing immoral and disgraceful complicity in the conduct of an -insurance swindle," and charging culpable, if not criminal, misbehavior in the management of one's' business, is libelous, per se. In an action for libel against a newspaper of large circula- tion, where the actual injury to the plaintiff! is explicit, consisting ot scornful treatment by his club and business- associates, and there is no proof of probable cause or malice, a verdict of $5,000 for plaintiff is not excessive. Hartman vs. Morning Journal Association, Common Pleas of New York, 19 N. Y. Supp., 398. LICENSE. INSURANCE AGENT'S LICENSE. FEE.— An insurance agent who solicits insurance for a company, and has power to write and issue policies, is not an insurance broker, nor subject to a city ordinance requiring insurance brokers to pay a license fee. Bernheimer vs. City of Leadville (Supreme Court of Colorado), 24 Pac. Rep., 332. DOING INSURANCE BUSINESS WITHOUT LICENSE.— By the act of October 24, 1887, to regulate the business of insur- ance, no unincorporated company is required to obtain, or can ob- tain, from the insurance commissioner a license to transact the business of insurance within this State; and the penalty pre- scribed in the ninth section of the act for doing or performing any of the acts or things mentioned therein for any insurance company is not applicable unless the insurance company is one incorporated under the laws of this State, or some other State, or of a foreign government. According to the facta appearing in the record, the Guarantee and Accident Lloyds is a voluntary as- sociation, unincorporated, consisting of 100 natural persons. This being so, the company cannot be licensed to transact tho insurance^ 560 INSURABLE INTEREST. business in tliis State; and, although there is no statutory author- ity for it to transact the business without a license, a person whc, as its agent, assists in doing so, is not guilty of any offense. Fort vs. State (Supreme Court of Ga.), 18 S. E. Rep., 14. REGULATION BY STATE OF LICENSE TAX.— The State has power to adopt all reasonable rules necessary to the regulation of insurance business within the State. Acts 1886-87, p. 85, pro- viding "that all insurance companies doing business as such in the State of Alabama, whether chartered by the State or admitted from other States," shall have an actual, paid-up capital of not less than $100,000, and providing "that all insurance companies doing business in the State, both foreign and domestic, shall be required to make an annual sworn statement to the auditor of their assets," applies only to chartered companies, and not to an unincorporated association. Acts 1886-7, p. 105, entitled "An act to require all insurance companies not organized under the laws of this State to pay a uniform license tax for the privilege of doing business in this State," applies only to foreign incorporated insurance companies, and mandamus does not lie to compel the issuance of such license to a foreign unincorporated insurance association. In the absence of a statute requiring incorporation, citizens of the State, acting as individuals or associations, may conduct insurance business in the State without being incorporated; and under the constitution of the United States, such privilege inures to citizens of other States. Hoadley vs. Purifoy (Supreme Court of Alabama), 18 So. Ren.. 220. LIENS. INSURANCE AGAINST LIENS ON REALTY.— An insur- ance policy was upon a mortgage, and the covenant in it was to indemnify the holder against "all loss * * * by reason of defects or unmarketableness of the title to estate or interest in- sured, * * * or because of liens or incumbrances charging the same at the date of this policy." A building was then in pro- cess of erection on the mortgaged premises, and is so set forth in the policy. While it was in progress, and for six months after- wards, the possibility of the filing of mechanics' liens, which would relate back to the commencement of the building, and thus antedate the mortgage, created a two-fold danger: First, it was a defect in the title which might make It unmarketable as a first incumbrance, and, if the holder was compelled to sell it, he could only do so at a loss; and, secondly, in ease of a sale of the prop- erty, the mechanics' liens would have priority in the distribution of the proceeds, and the mortgage might have to bear a de- ficiency. The covenant already quoted insured against both losses, but, as the insurer was not willing to undertake the In- definite liability of the first, a clause was added, "saving the defects, lians, or incumbrances excepted in Schedule B." This was clearly a restriction of the liability previously assumed, and LIENS. 561 was not intended to create any new liability of its own. Turning to Schedule B, we find that it sets out "defects or objections to title, and liens, charges and incumbrances thereon, which do or may now exist, and against which the company does not agree to insure;" and, first, "unmarketability by reason of the possi- bility of mechanics' and municipal liens is excepted from insur- ance." Possibility of liens, to affect marketability, must, of course, be a present possibility. A future possibility of liens can never be escaped in any case, and therefore cannot make a title unmarketable. But "actual losses by reason of such liens * * • * are insured against," and "snch liens" are those already referred to, those having a present .possibility. The meaning of this language does not admit of doubt. The main covenant in- cludes several classes of liabilities. Schedule B excepts one class — unmarketability by reason of possibility of liens — but, by an exception to the exception, prevents the exclusion of actual losses by such liens; that is, should a mechanic's lien intervene, the in- surer will not indemnify for the loss from the unmarketability of the mortgage thereby caused, but will make good any actual loss, such as the deficiency of the fund to satisfy the mortgage after payment of the lien. The general intent and effect of the whole IKJlicy were to insure the mortgage as a valid security both as to title and incumbrances. As to title, all defects were included, ex- cept the one of unmarketability, by reason of possibility of liens. As to liens or incumbrances, only those were included which come under either: First, the main covenant (those actually charging the property at tlie date of the policy) ; or, secondly, under Sched- ule B, mechanics' or municipal claims "which do or may now exist" at the same date, to-wit, inchoate mechanics' liens, which, though not yet in actual existence, may, within six months of the completion of the building, spring up and acquire an existence as of a date prior to the policy. Not until, by the lapse of time, the danger of such would be passed, would the mortgage be secure as a first incumbrance. Before so secure, there was the danger, not only of mechanics', but also of municipal liens intervening. The latter was therefore classed with the former, and actual loss by reason of either was insured against. But there is no cov- enant or language indicating any intent to go beyond that limit of time, and to assume a general liability to indemnify against possible future incumbrances, municipal or other. The policy was executed in 1888. The municipal work for which the claims in question were filed was not done till 1891. Such claims were neither a charge on the property at the date of the policy, nor became so within the period "provided for in Schedule B. They were not within the policy at all, and created no cause of action under it. Wheeler vs. Real Estate Title Ins. & Trust Co. (Supreme Court of Pennsylvania), 28 At. Rep., 849. 56z INDICATOR'S DIGEST. LIMITATION. WHEN STATUTE OiF LIMITATION BEGINS TO RUN.— One ^who collects money on a policy of insurance for the beneficiary, without any right to retain it, or any trust duty to discharge in respect to it, is liable to an action by the beneficiary for its re- covery without any previous demand ; and hence the beneficiary's right of action accrues when the money is collected. Wood vs. Young (Court of Appeals of New York), 36 N. E. Rep., 193. STATUTE OF- LIMITATIONS AND ASSESSMENTS.— The statute of limitations, says the Supreme Court of Pennsylvania, does not commence to run against a cause of action on a prem- ium note given by a member of a mutual insurance company, providing for payment in such sums as the company may, for the purpose of paying losses, require, until an assessment is levied. Eickman vs. Hersker, 33 At. Rep., 280. INSURANCE OASES— LIMITATION TO ACTION ON A POLICY.— A policy insuring against liability for injuries to third persons provided that, in case the insured should be sued by a person injured, an action by the insured on the policy must be brought within six months from the termination of the action try the injured person. The Supreme Court of New York, First De- partment, held that the "termination" of such action, in which judgment for the party injured had been affirmed on appeal, was on the filing of the^mandate of the upper court, and not on the payment of the judgment. People vs. Amer. Steam-Boiler Ins. Co., 35 N. Y. S. Rep., 322. LOSS. MEANING OF "LOSS' IN CREDIT INSURANCE.— A policy of credit insurance Insured the holder, to a certain amount, against "loss sustained by reason of the insolvency of debtors owing the insured for merchandise." It also contained various provisions as to loss to be first borne by the insured, other insur- ance, limitation of loss on individual debtors, disposition between insurer and insured of debts on which settlements were made or offered, etc., a provision that, "in adjusting losses * * * * before determinilig the percentage of loss to be borne by the company, there shall first be deducted all sums paid, offered, and LOSS— MORTGAGE. 5&3 accepted, settled or secured, and the value of any securit.v or col- lateral. * * *■• The U. S. Court of Appeals held that the loss insured against meant, not the whole amount due from an in- solvent debtor at the time of his suspension, but the amount remaining due after deducting from such indebtedness any pay- ments made by the debtor, and that a clause in the policy pro- viding that when only a part of the loss was covered by it the inxportionate part of everything realized should l>e credited to- so much of the loss as the policy covered, did not change such meaning, but if such clause did not refer to the case of other insurance, and introduced an ambiguity, the doubt should be solved against the insurance company which prepared the policy. Mercantile Credit Guarantee Co.. N.» Y., vs. Wood, 68 Fed. Kep., 529. FIDELITY INSURANCE: NOTICE OF LOSS.— A surety company executed and delivered to a bank a bond, insuring it against loss by any act of fraud or dishonesty of its cashier in connection with the duties of that oflSce, or the duties to which in the bank's service he might be subsequently appointed, occurring during the continuance of the bond, and discovered within six months afterwards, and within six months of the death, dismissal, or retirement of the cashier from its service. The bond reqnired that the company should be notified of any act of the cashier which might involve a loss for which the com- pany would be liable "as soon as practicable after the occuiTence of such act shall have come to the knowledge'' of the bank, and It required proofs of loss to be furnished by the bank. The bank suspended payment, and passed into the hands of a receiver, who afterwards notified the company of the discovery of dishonest acts of the cashier, furnished proofs of loss, and brought suit upon the bond. The United States Circuit Court of Appeals held that, the terms of the bond did not require notice of suspicions of dishonest acts- to be given; that the evidence as to the time when the dishonest acts were discovered being conflicting, the question of whether the notice was within the time, and with reasonable promptness should be determined by the jury. Also that the service of the receiver was service of the bank, and within the protection of the bond. American Surety Co. vs. Pauly, 72 Federal Reporter. 470. MORTGAGE. RIGHTS OF MORTGAGEE.— Where, by the terms of a pol- icy, the loss is payable to a mortgagee, as his interest may appear at the time of such loss, the right of such mortgagee to maintain in action is not necessarily defeated by' such misrepresentations in the applications as, by the terms of the contract between the insurer and insured, would defeat the right of the insured to main- tain an action on his own behalf. State Ins. Co. vs. New Hampshire Trust Co. (Sup. Ct. Neb.), 00 N. W. Reporter, 9. 564 INDICATOR'S DIGEST. ACTION AGAINST EXECUTOR TO FORECLOSE MORT- GAGE.— A statute providing that an action may be commenced against an executor "at any time after the expiration of six months from the granting of letters testamentary," and "until the final settlement of the estate and discharge of such executor," and "not otherwise," does not apply to a suit against an executor to foreclose a mortgage and subject the mortgaged premises to its payment; nor need the claim be first presented to him and dis- allowed •Teel vs. Winston (Supreme Court of Oregon), 29 Pac. Kep., 142. RIGHTS UNDER A NOTE SECURED BY MORTGAGE.— Where suit is brought on a note and to foreclose a mortgage, fail- ure to establish rights under such mortgage does not interfere with the right to enforce collection of the note, and to this end attachment or garnishment may be resorted. to. It was not, in the first place, necessary to Join the action on the not© with the action to foreclose the mortgage. The person to whom the note was payable was entitled to judgment on it, although he failed to establish his right to a foreclosure. It being proper to sue upon the note, it is manifestly true that one would have a right to insti- tute any auxilliary proceedings for the collection of the note which he would have the right to do if the suit was upon the note alone, and not coupled with the suit to foreclose the mortgage. ■ Joseph vs. People's Savings Bank (Supreme Court of Indiana), 31 N. B. Rep., 526. MUTUAL. POWERS OP MEMBERS OF MUTUAL INSURANCE COM- PANY.— Where the charter of a mutual insurance company pro- Ti in the sound discretion of such court. It is not error, in such cases, to refuse to appoint a master to ascertain who are the legal claimants, and the aggregate amount of their claims; since the policy-holders are not concluded by the decree ordering the assessment from defending on any ground peculiar to themselves, respectively, and other questions that may arise oau be settled in the distribution of the fund. WcHid vs. Standard Mutual Live Stock Ins. Co. (Supreme Court of Penn.), 26 At. Rep.. 103. LIMITATION OF SUSPENSION OF MEMBERS OF MU- TUAL COMPANIES. — Under the articles of incorporation of a mutual fire company, which prohibited the suspension of a them- ber for non-payment of assessments until after the expiration of 30 days from the "mailing of a registered letter to him by the secretary, containing notice of such assessment," the 30-day period does not run from the date that tht letter was deposited in the postofflee to be mailed and registered, but from the date that the registration was completed by making the proper entries in the books of the postoffice. and the procuring of a receipt by the sender as provided in the postal regulations, and where the last of the 30 days after the registration of such a letter falls on Sunday, the member has the whole of the following Monday In which to pay his assessment. Halbrook vs. Mill Owners' Mut. Ins. Co. (Supreme Court of Iowa), .-.a N. W. Rep., 229. XAME. VALUE OF COMPANY NAME.— In an action between insur- ance companies, involving the right to the use of the name. "New York Underwriters' Agency."' in which the pecuniary value of the name was alleged, but no evidence thereof was offered, and no money judgment was asked or given, no basis existed for grant- ing an extra allowance to the successful party. The fact that such an allowance was inserted in the findings below, to "which 566 INDICATOR'S DIGEST. no specific exceptions were taken, and that the appeal was -sim- ply from that part of the judgment awarding the allowance, did not deprive the court of the right to review the allowance. Hanover Fire Ins. Co. vs. Germania Fire Ins. Co. (Supreme Court of New York), 18 N. Y. Supp., 50. NEGLIGENCE. RAILROADS CANNOT ESCAPE LIABILITY FOR NEGLI- GENCE BY CLAUSE IN LEASE.— The Supreme Court of Iowa has just decided that a clause in a lease by an elevator owner whose building stood on ground owned by a railroad providing that the railroad should not be liable for Are caused by its negli- gence was void, being against public policy. The facts in the case under which the decision was made were: H. J. Griswold owned an elevator on ground owned by the railroad and held by him under lease, in which he had agreed with the railroad that it should not be liable for damage by fire caused through its negli- gence. The elevator was destroyed by fire started by sparks from a passing engine. The insurance companies paid assured, and being subrogated sued the railroad for the amounts so paid. The railroad set up its exemption under the lease, but the insurance companies denied the validity of the lease, claiming it was void as against public policy in that it undertook to protect the raih-oad against its own negligent act. The lower court held the lease valid, but the supreme court holds it void. The question is said to be a new one, never having been passed, on by any appellate court before, and an important one to Insurance companies, as such leases are in general use by railroads all over the country. Gi-iswold et al. vs. 111. Cent. E. R. Co. (Supreme Court la.i. rn N. AY. Rep. .S43.' NOTE. BONA FIDE HOLDER OF NOTE.— A regularly authorized insurance agent, to whom is forwarded by his company a policy to be delivered to the assured, together with the latter's note for collection or discount, and who discounts it without any knowl- edge of the soliciting agent's fraudulent representations in pro- curing the policy, and who has no interest in the insurance or connection with the soliciting agent except an agreement that he will discount notes taken by the latter, is a bona fide holder of the note, and the soliciting agent's misrepresentations are not available as a defense against him. McMahon vs. Thomas (Supreme Court of California), 39 Pac. Rep., 783. NOTE— POLICY. 567 ACTION ON NOTES.— Where one gave his notes to the agent of a foreign Insurance company, individually, lor the renewal of premium notes previously given, and the agent advanced his own money to the company for the insured, it is no defense, in an action on the notes, that the company had not complied with the provisions of law, so as to entitle it to do business in the State. Russell vs. Jones (Supreme Court of Alabama), 13 So. Rep., 145. WHAT CANNOT BE SET UP IN DEFENSE TO INSUR- ANCE NOTE. — Where a written application for insurance, signed by the insured, recites that the premiums are to be paid annually, and the same fact is stated in the policy delivered to and read by the insured, he cannot defend an action on a note given in part payment of the premium, on the ground that the policy did not conform to a parol agreement that the premiums were to be paid semi-annually instead of annually. Chamberlain vs. WrigTit (Ct. Civ. App. Tex.), 3.5 Southwest- ern Reporter, 707. PLEADING. AMENDMENT OF PLEADINGS AFTER VERDICT.— In an action upon an insurance policy, testimony was admitted which was admissible under the pleadings. After a verdict in favor of the assured, the court allowed an amendment to the complaint under which this testimony would have been admissible. This was an abuse of the discretion given the court in allowing amend- ments to pleadings, for which the judgment will be reversed. Guerin vs. St. Paul F. & M. Ins. Co. (Supreme Court of ilinne- sota), 46 N. W. Rep.. 13S. POLICY. CONSTRUCTION OF CONDITIONS IN INSUR.\NCE POL- ICY. The condition in an Insurance policy that if any of the rep- resentations are untrue, the policy shall be null and void, only make it voidable at the election of the company. The enforce- ment of a promise to pay tlie premium will act as a waiver on the part of the company. Where the application and policy vary in e.ssential points they are to be construed together iu order to get the meaning of the contract. Schreiber vs. German American Hail Ins. Cu. iSuin-eme Court of Minnesota I. 4." N. W. Rep.. 7ns. 568 INDICATOR'S DIGEST. VALIDITY OF INSURANCE POLICY ISSUED BY INTBK- ESTBD AGENT.— An insurance policy issued by an agent of the company to a corporation of which he is a stockholder and officer is void. Greenwood Ice & Coal Co. vs. Georgia Home Ins. Co. (Su- preme Court of Mississippi), 17 So. Rep., 83. THE SUPREME COURT OP LOUISIANA decides that, in an open policy of insurance, in which an aggregate amount Is expressed, there are as many contracts of insurance as there are indorsements on the policy of separate shipments of goods. If the open policy contains all the conditions which govern the ship- ments of goods specially insured under the policy, and the com- pany reserves the right to reject or accept each special insurance in each shipment, the contract must be considered as made at the domicile of the company issuing the open policy. Under such a policy, the insurance company having no agent in Louisiana, it cannot be considered as doing an insurance business in the State. There is a clear distinction between the business of insurance agency and the conducting of an insurance b-usiness. State vs. Williams, 15 So. Rep., 290. FRAUDULENT EXCHANGE OF INSURANCE POLICIES. —Where an insured party was induced to surrender certain poli- cies of insurance, and accept others in place thereof, through fraudulent representations, and under circumstances reasonably such, as to mislead and prevent them from examining the new policies in detail, and discovering the difCerence between them and the surrendered policies, such case must be determined upon the findings of the court. It appeared that two policies of insur- ance which were first issued and delivered to the insured in con- sideration of two promissory notes for $195 each, were to run five years and by the express terms of the notes and policies it was agi-eed that in no event should the insured be called upon to pay more than the amount of the premium notes, and the premium notes were paid in full to the insurance company. In the new policies issued to take the place of those originally issued, there were no new obligations incurred, by the insured, except those assumed by them in accepting the new policies, and neither did the company assume any new obligations. But in the new poli- cies, the liability of the insured was increased two-fold by a provision inserted in the new policies containing an agreement to pay, in addition to the premium, such assessments as might be made by the directors of the company, not exceeding five times the amount of the annual premium. There was no new under- taking on behalf of the company, and no surrender of any previ- ous obligations of the insured beyond the old policies. They were misled and deceived by statements and misrepresentations of the company, and in reliance thereon were fraudulently induced to surrender the old policies and accept the new ones, without com- paring them or reading over the conditions and provisions of the latter, and did not discover the provision above referred to on the new policies, until the assessment was made by the receiver The company, having by Its own false and fraudulent representations induced the insured to surrender the old policies for the so-called "duplicate" policies, should not now be permitted to enforce fh(» latter. 167. Wyman vs. Gillett (Supreme Court of Minn.), 56 N. W. Rep. POLICY. 56^ RIGHT TO EXAJIIXE AND RETURN POLICY.— One who orders a policy of insurance, of a particular class, and gives his note for the amount of Uie premium, which the agent of the company has advanced, has a reasonable time within which to discover that a policy sent to him by mail is not of the class. ordered, and to object and return the same. If his offer to re- turn, made in due time, be rejected, his retention of the policy thereafter without appropriating it or making any use 'yt it will not subject him to pay the note. Jones vs. Gilbert (Supreme Court of Georgia), 20 S. E. Rep., 48. EFFECT OF ORAL MODIFICATION OF POLICY.— In an action on a policy of boiler insurance, it appeared that the policy only covered seven boilers, which were all that the insured had wien the policy was issued, and that he afterwards put in two more boilers, one of which exploded. "When the two boilers were put in they were insipected by the company's inspector, at the Insured's request, and the inspector told him that these boilers were insured. It appeared that both the insured and the inspec- tor erroneously believed that there was no more risk in using nine boilers than in using seven, if only seven were used at once, and that the policy covered any seven boilers in use by the insured. The statement of the inspector did not constitute a modification of the policy. Laclede Fire Brick Mnfg. Co. vs. Hartford Steam Boiler In- spection and Ins. Co. (.Circuit Court of Appeals. 8th Circuit), 60- Fed. Rep., 351. TITLE INSURANCE— CONSTRUCTION OF POLICY.- A title insurance company issued to D, the holder of a mortgage on certain real estate, a policy insuring him, to an amount named, against loss sustained through defects in the title to such prop- erty, or liens or inciynbrances thereon, existing at the date of the policy. Conditions annexed to the policy provided that no right of action upon it should accrue until the insured had con- veyed or agreed to convey to the company his interest in the property at a price which, in the case of a title acquired through foreclosure, should be the amount bid at the foreclosure sale; that payment, discharge, or satisfaction of the mortgage indebt- edness, except by foreclosure of the mortgage, should annul the policy; and that the company should have the opportunity to defend any suits affecting the title. After the issue of the policy suits were brought to establish mechanics' liens on the property, claimed to have existed when the policy was issued. The com- pany defended them, but the liens were estrblished and the property sold to satisfy them. D foreclosed his mortgage by publication of notice and sale of the property, and bought it in for the amount due on his mortgage, with interest and costs. The United States Circuit Court of Appeals held that the pur- chase of the property by D did not cancel the mortgage debt, and so annul the policy, but that the title company was bound either to buy the property for the amount bid at the sale or re- deem it from sales under the liens, and that the plaintiffs were entitled to recover the amoimt paid by them for that purpose. Minn. Title Ins. Co. vs. Drexel, 70 Federal Reporter, 194. .570 INDICATOR'S DIGEST. UNTRUE ANSWERS VOID POLICY— Where a policy of insurance provides that any untrue answer to questions contained in the application shall void the policy, the answers amount, in effect, to a warranty, and the matter of their materiality is not open. Stensgaard vs. St. Paul Real Estate Title Ins. Co. (Supreme Court of Minnesota), 52 N. W. Rep., 910. THE SUPREME COURT OF NEW YORK HOLDS, that where the complaint in an action on a live stock insurance policy -alleged the death of the animal insured, but does not allege de- fault in payment of any sum due on the policy, the defect is not cured by an admission in the answer of the death of the animal, where that fact alone was not sufficient^o create a liability. Gill vs. Aetna Live Stock Ins. Co., 31 N. Y. S. Rep., 485. RECOVERY ON A TITLE INSURANCE POLICY.— Where an insurer agreed to indemnify, save harmless, and insure the In- sured mortgagee against loss, not exceeding $2,200, by reason of incumbrances on the mortgaged premises, and defects in the title to the same; and further agreed, in case of suit, to defend the same for and in the name of the mortgagor, or pay the claim on which suit is brought, or pay the insured the amount of the liability under the policy. The insurer undertook the defense of such a suit, and assumed to save the insured mortgagee harm- less, but a loss occurred by reason of the negligence of the in- surer. It was held, under the provisions of the policy, the amount of recovery for loss caused by such negligence is not limited to $2,200. Quigley vs. St. Paul Title Ins. & Trust Co. (Supreme Court of Minn.), 62 N. W. Rep., 287. INSURANCE PO'IjICIBS AS SBOURTTY.— A debt payable in installments was secured to its whole amount by insurance pol- icies on certain buildings for the beneiftt of the creditor and also by the guaranty of a third person for the part iirst due. The creditor had a right to hold the insurance money paid when the buildings were burned as security for the part of the debt not covered by the guaranty, although not yet due, and the guarantor was liable for the unpaid installments covered by his guaranty. Where a creditor whose debt is secured by fire insurance policies, and in part by a personal guaranty, accepts from the insurance companies an amount less than the face of the policies, the bur- den of proof is on the guarantor to show that the creditor got less than was due him, and thereby released the guarantor from his contract. Kortlander vs. Elston (United States Circuit Court "of Ap- peals, Sixth Circuit), B2 iFed. Rep., 180. DEATH OF LIFE INSURANCE APPLICANT BEFORE ISSUANCE OF POLICY.— Where an application for life insur- ance has been made to an insurance solicitor, but the applicant dies before a policy is issued, and none in fac^ is ever issued, the presumption is that there was no contract of insurance, and no purpose to contract, otherwise than by a policy made and deliv- ered upon simultaneous payment of the premium. This presump- tion is renderei? conclusive where the application provides that it lis agreed and understood that only the home office of the com- POLICY— PREMIUMS. 571 pany has authority to determiue whether a policy shall issue on the application, and there shall be no contract until a policy is issued, and delivered and the first premium paid, while the appli- cant is living and in the same condition of health prescribed ii the application. In view of such provisions, there is no room for the application of tie rule that the powers of a local agent of a corporation are sometimes measured, not by his actual, but by his apparent, authority; and it is immaterial that such agent agrees to take, or does take, a portion of the first premium in trade from the applicant's store. The death of the applicant before his application reaches the home office revokes the offer to become insured, as well as destroys the subject of the insur- ance, and renders the making of the proposed contract imi)ossi- ble. The improvement of the application by the company's med- ical director before receiving notice of the applicant's death, even If it amounts to a determination to accept the same, does not complete the contract, when 'inch acceptance is never commun.- cated to the applicant's personal representative. Paine vs. Pacific Mutual Life Ins. Co. (L. S. Circuit Court of Ajipeals. Eighth Circuit), 51 Fed. Rep., 6S9. WHERE CONDITIONS IX IXSURAXCE POLICY ARE NOT BINDING. — An executory contract for the sale of land, by the terms of which the title is not to pass unless the vendee pays the deferred payments, does not constitute a change of title, within the meanins of an insurance policy which declares that a change of title shall avoid the policy. Home Ins. Co. of New York vs. Betliel ^Sup^eme Court of Illinois). 32 Northeastern Rep.. 510. PEEMIUMS. WHEN PARTY PAYING PREiUUMS IS NOT ENTITLED TO BENEFIT.— All the stockholders of a corporation having as- sented to the use of corporate funds for the payment of premiums on a policy on the life of one of the stockholders, payable to his wife, another stockholder, and the payments having been made while the company was solvent, its receiver cannot, because of such diversion of funds, maintain an action to have the i)olicy declared his property. Little vs. Garabrant (Supreme Ct. 1st Dept), 35 N. Y. S. Rep., t>S9. AGENTS ALTHORITY TO WAIVE PAYMENT OF PRE- .^^UMS— An agent with authority to solicit applications and collect premiums can waive a condition for payment of the pre- TTiinm in quarterly installments, and accept payment of the entire annual premium in advance. Where an insured tenders the instirer's collection agent -*3(», the full annual premium, and the agent accepts only SiO. and promises to pay the company the other ?10 in satisfaction of his debt to insured, the company is bound by the agent's waiver of the cash payment. Kerlin vs. National Accident Ass'n of Indianapolis (Appellate Court of Indiana,). 36 N. E. Rep., 156. 572 INDICATOR'S DIGEST. INSURANCE AGENT NOT LIABI,E FOR RETURN OF PREMIUM.— A person contracting with an authorized agent, with Isnowledge of the fact of agency, cannot recover of the agent the premium paid, for failure of the principal to issue the policy required by the contract. Bleau vs. White (Supreme Ct. Mich.), 68 Northwestern Re- porter, 115. RIGHTS OF CREDITORS IN FRAUDULENT PAYMENT OF PREMIUMS.— A father who procures a policy of insurance to be issued on his life payable to his child, and pays the premiums with his own money, malces a voluntary gift or assignment of a portion of his estate, which constitutes an investment for the benefit of the person for whose benefit the policy was issued. There can be no difference between a policy thus procured and the assignment of a policy originally issued in his own name. The insurance constitutes the property purchased, and is the subject matter of the investment. If the father be in debt, such volun- tary Investment is fraudulent in law, as to his existing creditors, without "regard to his intent or to his circumstances and condition as to his ability to i>ay. Without the statutory intervention the whole of the insurance would be subject to the debts of the Insured. It is settled law in New Jersey that all voluntary gifts are conclusively fraudulent and absolutely void as against all existing creditors, without regard to the actual intention of the donor. A married man may rightfully devote a moderate portion of his earnings to insure his life, and thus make reasonable pro- vision for his family after his decease, without being held to in- tend to hinder, delay or defraud his creditors, providing no such fraudulent intent is shown to exist or must be necessarily in- ferred from the surrounding circumstances. A man who has just suffered a large judgment to be recovered against him, and at once procures a very large policy of insurance to be issued on his life for the benefit of his wife, and keeps it up for years by pay- ment of the annual premiums, and during all that time does not pay anything on his judgiuont indebtedness, does by such conduct at once induce the belief mat he intended to devote money to the enrichment of his wife wuich he ought, in mercantile honesty, to have applied to the paymuat of his debt, and such conduct is in law and morals a hindenrig, delaying and defrauding of his cred- itors. Merchants' & Miners' Transp. Co. vs. Borland (Court of Chan- cery of New .Jersey), 31 At. Rep., 272. PROCEEDS. WHERE PROCEEDS OF POLICIES ARE INDIVIDUAL ASSETS.— A member of a firm who had contributed all the cap- ital took out policies on his life, and paid the premiums out of the firm funds. He assigned the policies, on certain conditions, to- his co-partners. Afterwards they were reassigned to him, with- out condition. Another policy taken out by him later, the pre- PROCEEDS— PROXIMATE CAUSE. 573 miTims on whick were also paid out of the firm fuiKjB, was not assigned. At the time of uuoh traiisaotious. the firm was solv- ent, and there was a large balance to tti« credit of thft Insured on the books of the firm. It was held that, though prsmiums may have been paid out of the apparent assets of the firm after it had become insolvent, the proceeds of the policies were the Individual assets of the insured, as between his individual creditors and the firm creditors. Bartlett vs. Goodrich (Supreme Court, Special Term, New York County). 33 X. Y. S. Rep., 444. PROOFS OF LOSS. FIDELITY INSURANCE— PROOFS OF LOSS.— Proofs of loss under a bond of suretyship are mercantile documents and are not to be tested by the same rules of interpretation as an indictment, or even a pleading. It is only required that they shall contain a brief and general statement of the facts with substantial accuracy, truthfully informing the insurer how the loss occurred, and not tending either by what they contain, or what they omit, tj mislead the insurer. Where such bond pro- vides that certain statements and accounts "shall be prima facie evidence" of a loss, such expression is not necessarily confined to the consideration of a claim against the insurer, before suit; and it is proper to instruct the jury, on a trial of an action on the bond, that the bank whose employe was insured, has made out a prima facie case by offering in evidence the statements and accounts. American Surety Co. vs. Pauly (V. S. Cir. Cr. App.), 72 Fed. Rep., 4S4. PEOXIMATE CAUSE. APPLICATION OF DOCTRINE OF PROXIMATE CAUSE.— There is a difference in the application of the doctrine of prox- imate CAUse to actions for negligence and actions on contracts to indemnify for the results of a given cause. In the former, the liability is measured by the natural and probable consequences of the negligent act. In the latter, the liability is measured by the contract itself, to indemnify against death that should result within ninety days from accidental bodily injuries alone, and the doctrine of proximate cause is applicable only to aid in determining whether or not the fatal result was caused solely by the act or accident against which the indemnity was given. Travelers' Ins. Co. vs. Mellck (U. S. Court of Appeals). 65 Fed. Rep.. 170. 574 INDICATOR'S DIGEST. RECEIVER. FOREIGN RECEIVERS.— The receiver of a foreign mutual insurance company, appointed by a court of competent jurisdic- tion may maintain an action to recover an assessment on a pre- mium note given by a person residing in Wisconsin, and v(rhich was a part of tlie assets of the insolvent company in the hands of the receiver at the time the assessment vras made. In such proceeding the decree of the foreign court, unless attaclted by direct proceedings, is not open to collateral attack in the courts of Wisconsin. Parker vs. Stoughton Mill Co. (Supreme Ct. Wis.), 64 N. W. Rep., 751. RECOVERY. RECOVERY OF STOCK BONUS VOLUNTARILY PAID.— Where a corporation makes a new issue of stock and demands from the stockholders a bonus for subscribing therefor, a stock- holder vi'ho pays the bonus under protest is not entitled to recover it unless he paid it under duress or compulsion, and the mere denial by the corporation of hig right to take the new stock with- out paying the bonus does not constitute duress, as he might tender the market value of the stock, and. upon refusal of the tender isue and recover the amount he was damaged thereby, and with that money buy other shares. De la Cuesta vs. Ins. Co. of North America (Supreme Court of Pennsylvania), 20 At. Rep., 505. ACTION BY BAILEE I^O RECOVER.— lu an action by a bailee to recover insurance effected by him, in his own name, for the benefit of whom it may concern, his testimony that he was the "owner" of the goods under certain contracts (being the con- tracts of bailment), which were then before the insurance com- panies, and of whose legal effect they were bound to take notice, is a statement of a legal conclusion, and does not estop him from showing in a subsequent suit, and as against his bailors, that they were the true owners. Proof of a genuine signature to a ,document whose authenticity is denied casts upon the oppo- site party the burden of showing that the writing above the signa- ture was forged. Sturm vs. Boker (Supreme Court of the United States), 14 Supreme Court, Rep., 99. i REFEREE— REMOVAL. 575- REFEREE. AGREEMENT AS TO REFEREE DECISION VOID.— A stipulation in a certificate of insurance, that any action upon same shall he tried before a referee, is void as against pubUe- policy, being an attempt to limit the jirrisdiction of courts and prevent jury trial. Such a provision, said the court, has no reasonable relation to the contract of insurance. Its insertion is- unnecessary to the ijrotection of the insurance company, and may be regarded, therefore, as an unimportant provision. The dictates of a sound public policy would seem to require that con- tracts of insurance; while providing every wise and reasonable restriction, should not compel the individual who seeks to insure his life to submit, as a condition of obtaining that insurance to conditions which are in violation of constitutional rights. Sanford vs. Commercial Tiav. Mut. Ace. Assn. (Ct. App.. X. y.1. 41 X. E. Rep., 694. REFORMATIOX. REFORMATION OF INSURANCE POLICY.- An insurance company issued a policy to one as receiver, the understanding being that it should run" to such receiver and his successors, but through inadvertence it simply ran to the receiver. The receiver is entitled to have the policy reformed so as to express the real agreement without the necessity of resorting to intrinsic proof. Where the failure of the assured to sue within the time limited by the poUcv was due to the assurances of the authorized agents of the company, that the claim would be paid, the company cannot avaU itself of the limitation. Thompson Receiver, vs Phenis Insurant^ Company of BrrKiklvn ^United States Supreme Court), 10 Sup. Ct. Rep.. 1019. REMOVAL OF SUIT. RICHT OF REMOVAL OF CAUSES.-Where. in an action k^rl^Mr-%^nel';"h: 'owner, who has the full legal 576 INDICATOR'S DIGEST. title, so as to defeat the right of the railroad company to a re- moval of the legal cause of action to the Federal Court on grounds of diverse citizenship, the Federal Court vfIU separate the legal cause of action, and vcill not allow the joinder of parties having •only equitable claims to defeat the right of removaL Over vs. Lake Brie & Western Ry. Co. (Circuit Court D. In- diana), 63 Fed. Rep., 34. REPRESENTATIONS. %YHBN COMPANY WILL NOT BE BOUND BY REPRE- SENTATIONS OF AGENT.— When a policy of insurance, says the United States Circuit Court of Appeals, describes the class of risks thereby insured, and the assured lias a fair opportunity to read the instrument, the company issuing the same will not be bound by representations made by its agent, in good faith and without intent to deceive or defraud, that the policy covers certain risks that are not in fact within its provisions. In con- struing the provisions of a written instrument or agreement, and in determining its legal effect, the parties act at arm's length, if the agreement is couched in plain language, and no fraud or deceit is practiced. Travelers' Ins. Co. vs. Henderson, 69 Federal Rep., 762. RIGHT OF COMPANY. WHAT BARS RIGHT OF COMPANY.— Where a judgment has been rendered against an insurance company in a suit by an assignee of the policy for the purpose of collection, and the in- sured afterwards sued such assignee, charging conspiracy to de- fraud him out of part of the judgment, and made the company a nominal pai-ty defendant, a decree entered in the latter suit by consent of the complainant and the assignee, which com- pletely settled their rights operated as a discontinuance of the suit against the company, so that it could not afterwards file a cross-bill in such action. Cartwright vs. Johnson (Supreme Ct. Mich.), 68 Northwest- ern Rep.. 141. SALE— SECURITY. 577 SALE. SALE OF BUSINESS OF AN INSURANCE AGENCY.— Ac tion may be maintained, says the Supreme Coiu-t of Mississippi, on the covenant of an insurance agent, in his contract for the sale of his business, not to re-engage in it, tliough the buyer does not execute to the seller notes for the deferred payments, as provided in the contract of sale; the seller having given orders to insurance companies, on the buyer for the purchase price, which were accepted by the buyer, and the companies having afterwards accepted, in lieu of the buyer's personal pliability on tis acceptances, the undertating of his transferee of the "busi- ness that such payments should be a charge on the business. A covenant in such contract of sale that the seller, in addi- tion to maintaining for the buyer, so far as he could, the good will of the business and its patronage, would not re-engage in such business, is not personal, but inures to the benefit of one to whom it is assigned with the business. Klein vs. Buck. LS Southern Reporter, S91. SECUEITY. LIFE INSURANCE POLICY AS SECURITY FOR IN- DEBTEDNESS. — The owner of a policy of life insurance, being also an executor of an estate, and indebted to it for securities which he had converted to his own use, placed the policy among the papers of the estate and with it a letter, stating that the policy was collateral for the payment of his indebtedness. After- wards he informed those interested in the estate that he had dis- posed of some of its securities, but had secured the estate by substituting this policy, and that he held it for the benefit of the estate. Subsequently he testified that, after placing the policy among the papers of the estate, he did not regard it as his in- diviiiual property, but held it in trust for the estate. A declara- tion uf trust in favor of the estate was proven, and in equitj- the polic.v belonged to the estate. Falk vs. .Janes (Court of Errors and Appeals of N. J.), 26 At. Rep., 1-33. 578 INDICATOR'S DIGEST. SERVICE OF PROCESS. ADMISSION OF SERVICE OF SUMMONS.— Where a super- intendent of a foreign insurance company, in pursuance of a power of attorney executed to him, admits due service of a sum- mons sent to him, such service is valid and suflBcient to bind the company. Farmer vs. National Life Association of Hartford (Supreme Court of Nevir Yorli), 21 New Yorli Sup., 1056. SBRVIOB OP PROCESS UPON INSURANCE COMPANIES IN INDIANA— CONTRACT WITH AGENT.— The statutes of In- diana provide the method by which the service of .process shall be made upon insurance companies, and by implication insurance companies are exempted from the general statute relating to the service of process upon corporations, but where the plaintiff in a suit is the agent upon whom the company has authorized service to be made, then such service shall be made upon the auditor In pursuance to the insurance act, and not upon the corporation as provided in the incorporation act. A contract by which a foreign Insurance company employs an agent to represent it, is not such a contract as is contemplated by the insurance act, and a suit thereunder can only be brought in a court which has actual juris- diction of the corporation itself, Rehm vs. German Ins. & Sav. Inst. (Supreme Court of In- diana), 25 N. E. Rep.. 173. SERVICE OF PROCESS ON INSURANCE COMPANY IN KENTUCKY.— The statutes of Kentucky provide tha,t an action against an insurance company may be brought in the county in which its principal office or place of business is, or if it arises out of a transaction with an agent of the company it may be brought in the county in which such transaction took place. It is further provided that the summons may be served in any county upon the defendant's chief otScer or agent, or it may be served upon the highest officer or agent who may be found In the county wherein the action is brought. In an action on a petition which states that the chief office of the company Is in Jefferson county, but that the cause of action arose in Allen county, a judgement may be taken in Allen county based on service of process in Jeffer- son county. The fact that a policy recites that it is signed and delivered at a certain place is not conclusive, and it may be shown by proof that it was in fact delivered elsewhere. Kentucky M. S. P. Co. vs. Logan's Adm'r (Court of Appeals Of Kentucky), 14 S. W. Rep., 337. SERVICE— STATUTES. 579 SERVICE OF SUMMONS ON FOREIGN INSURANCE COMPANY. — The summons in an action against a foreign insur- ance company upon a liabilit.v incurred by doing business in tlie State of Indiana may be served upon ttie auditor of the State, if there is no agent in the county where the suit is brought, though the company has never been licensed to do business in tlie State, and has never filed with the Auditor of State a written consent to such service of summons. Diamond Plate Glass Co. vs. Minneapolis ilutual Fire Ins. Co. (Circuit Court D. Indiana). June 29. 1892. 53 Fed. Rep., 2T. SERVICE OF PROCESS IN NEW YORK.— Process against a foreign corporation was served on its managing agent and cashier under the New York statute, which provides that such service may be made within the State upon the president, treasurer, or secretary, and, if none such b^e found, then upon the oflBcer per- forming corresponding functions. It is unnecessary that such last-mentioned person should have entire control or charge of the business of the corporation in order to validate service ou him. Taylor vs. Granite State Provident Association (Supreme Court of New York), 20 N. Y. Sup., 135. SICKXESS. LIVE STOCK INSURANCE: NOTICE OF SICKNESS.— A provision in a policy of insurance on a horse, that " if the animal shall become sick or disabled the insured shall notify the com- pany within 15 hours," is valid, and a failure to give the notice within the required time after sickness is known to an agent of the insured in charge of the horse will preclude a recovery for its death. Swain vs. Security Live Stock Ins. Co. (Sup. Jud. Ct., Mass.), 4.3 N. E. Reporter. 105. STATUTES. THE COURT OF APPEALS OF NEW YORK lecides, that the statutes providing for the incorporation of companies to con- duct the various kinds of insurance therein referred to. does not authorize the organization of^an insurance company vhich pro- posies to carry on. as a part of its business, "the inspection and certification as to the sanitary condition of buildings :ind prem- ises. People vs. Woodward, 36 N. E. Rep., S06. 58o INDICATOR'S DIGEST. RETALIATORY STATUTES.— Under the retaliatory statute of Maryland, when a Maryland company has been refused ad- mission to New York, solely upon the discretion of the Commis- sioner of Insurance of New York, the refusal of admission of New York companies to Maryland is wholly within the discretion of the Maryland Commissioner. Talbott, Insurance Commissioner rs. Fidelity & Casualty Co. of New York (Court of Appeals of Maryland), 22 At. Bep., 395. OOiNSTBUCTION OF STATUTE.— Where a statute provides tliat if an insured by any writing identifying the policy of Insm-- -ance on his life by its number or otherwise, makes a declaration that the policy is for the benefit of Ws wife or of his wife and ■children or any of them, such policy shall enure and be deemed a trust for these and shall not be subject to the control of the hus- Ijand or his creditors or form part of his estate when the sum secured becomes payable, the insured's will, if identifying the l)articular insurance, will satisfy tlie statutory provision. Be Lynn vs. The Toronto General Trust Company, 20 O. R., 475. See Worley vs. Northwestern Masonic Aid Association, 10 Fed. Rep., 227; McOlure vs. Johnson, 10 N. W. Rep., 217. CONSTRUCTION OF STATUTES IN THE REGULATION 'OE^ INSURANCE.— The statute regulating insurance and insur- :ance companies, and providing that no "company" shall transact insurance business In the State without a certificate, must be con- strued in connection with a later enactment, forbiddiing any "individual or association of individuals" to do such business ■without complying with the laws "governing the business of in- surance," and applies to individuals as well as corporations. A State has full power to prescribe the conditions on which an in- surance business may be carried on its limit by individuals, pro- vided it does not discriminate in favor of its own citizens. State V5. Stone (Supreme Court of Missouri), 34 S. W. Rep., 164. SUING. RESTRICTIONS AS TO SUING AGAINST PUBLIC POLICY.— The stipulation in a policy, on which one hundred in- surers are severally liable for a hundredth part of the insurance, that the assured shall not sue more than one of the insurers at a time, is against public policy, though it is further provided that a final decision in any such action shall be decisive of insured's claims against each of the others. N. .1. & P. Concentrating Works vs. Ackerman (Sup. Ct, N. Y Co.), 37 N. Y. S. Reporter, 489. SURETY— TAXATION. 581 SURETY. SURETYSHIP OF EMPLOYE.— A bank employes bond, conditioned for tbe reimbursement of any loss sustained by rea^ son of fraud or dishonesty in connection witli the discharge of his duties, provided that any claim under the bond should embrace and cover only acts and defaults committed dming its currency, and within twelve months next before the date of discovery of the act or default upon which such claim was based. The United States Circuit Court of Appeals held that such bond did not cover a default committed more than twelve months prior to its discovery, which would, however, have been discovered within a year from its commission had not such discovery been pre- vented by the act of such employe in falsifying the books during^ the year preceding the discovery. Fidelity & Casualtv Co. vs. Consol. Nat. Bank, 71 Federal Rep., 116. ' TAXATION. MUNICIPAL LICENSE TAX.— A city charter which gives the Common Council power to license and tax "all * * * agencies of the insurance oflBces in raid city," authorizes the City CouncU to require of each insurance agent a separate tax and license for each company he represents, but an ordinance requir- ing a license only from those agents who represent companies located outside the city, is void for unreasonableness. Simrali ys. City of Covington (Court of Appeals of Kentucky), 14 S. TV. Rep., 369. UNIFORMITY OF TAXATION OF INSURANCE COM- PANIES.— Where the statutes provide that, in computing the tax- able property of insurance companies organized under the laws of the State, the value of the land on which the company pays taxes shall be deducted from its net assets above all liabilities, as shown by the last report of the insurance commissioner, and the remainder shall be the amount for which the company shall be assessed. Pub. Acts 1S93 amend such statute, by adding a pro\iso that no such deduction shall be made for real estate mortgages ownetl by such companies. Such amendment so far as it°provides that there shall be no deduction from their assets foi mortgages upon which they pay taxeti. is in contravention of the constitutional provision that taxation shall be uniform, and that all assessments on property shaU be at its cash value. Standard Life and Acot. Ins. Co. vs. Board of Assessors of Detroit (Supreme Court of Mich.), 55 N. "W. Rep., 112, 582 INDICATOR'S DIGEST. EXEMPTION OF INVESTMENT OF INSURANCE COM- PANY IN NEW YORK.— The laws of 1886 of New York, pro- viding that the personal property of all insurance comnanles "incorporated under the laws of that State, or any other State or country, and doing business in the State, shall hereafter be exempt from taxation, except as in this act prescribed." exempts a foreign insurance company from taxation on shares of stock owned by it in a New York bank. Aetna Ins. Co. vs. New York City (Sup. Ct. App. Div.), 40 N. Y. Supp. Rep., 120. TAXATION OF INSURANCE COMPANIES.— The New York act (June 15, 1886), declaration personal property of insurance companies, "shall hereafter be exempt from all assessment of taxation," does not affect the assessments already made for the year 18B6, or the taxes to be imposed thereon for that year, not- withstanding the provision of section 6 that the act should take effect immediately. Aetna Ins. Co. vs. Mayor of New York (Cir. Ct. N. Y.), 35 N. Y. S. Reporter, 857. TAXATION IN LOUISIANA.— Foreign companies, being re- quested, in order to carry on business in Louisiana, to have an authorized agent upon whom process may be served, do not, in appointing a board of directors to act as their agent, localize their business any more than those companies which manage their af- fairs through agencies not organized into boards, tlie duties of each agency being about the same. A non-resident creditor of a State cannot be said to be, in virtue of a debt which a resident owes him, a holder of, property within its limits. The creditor is not within the State's jurisdiction, and of no value to the debtor, and is not property within the State, but property of the creditor, taxable at liis place of residence. Tangible movable property may be taxed where situate, under a special statute which provides foi- its taxation! Liverpool & London & Globe Ins. Co. vs. Board of Assessors, (Supreme Court of Louisiana), 11 South Rep., 91. CORPORATION TAXATION IN PENNSYLVANIA.- Act June 1, 1889, Section 1 (P. L. 420), imposes a tax upon all mort- gages held by "any joint stock company, association, limited part- nership, bank, or corporation." Section 21 imposes a tax on the capital stock of corporations, but provides that corporations, etc., "liable to tax on capital stock under this section, shall not be re- quired to pay further taxes on the mortgages," etc., "constituting any portion of their assets, within the appraised value of their capital stock." Held, that the capital stock of corporations was the first to be taxed at its appraised value, and then their mort- gages not included in the appraised value of the capital stock are to be taxed under Section 1. Under Section 2 of the act requiring ©very taxable, whetlier corporate or individual, to make a sworn return to the assessors, it is the duty of all corporations, no mat- ter under which section (1 or 2) they are taxable, to make the re- quired return. Pennsylvania Co. for Insurance vs. Board of Revision, Su- preme Court of Pennsylvania, 21 At. Rep., 163. TAXATION— TITLE. 5S3 TAXATION OF CORPORATE STOCKS.— The Alabama Code provision, that the capital stock of private corporations shall be taxable, except so much thereof as may be invested in property otlierwise taxed, does not render taxable such portion of the capital stock of an insurance company as is invested in Alabama State l)onds which are by statute made non-taxable. State vs. Stoned-all Ins. Co. (Supreme Court of Alabama), 7 S. W. Rep., 754. TAXATION OF TITLE INSURANCE COMPANIES.— The Supreme Court of Minnesota holds that where a title insurance company, organized under the laws of that state, avails itself of another provision of tJie laws of that state and engages in the annuity, saJe-deposit and trust business, all of its property is sub- ject to assessment and taxation under the general tax law, in the same manner as the property of annuity, safe-deposit and trust companies organized under another act of its Legislature in 1883. Nelson vs. St. Paul Title Ins. & Trust Co., 66 N. W. Reporter, 206. INSURANCE ON ILLEGAL BUSINESS STOOK.— Wbere a merchant has paid the proper privilege tax, but subsequently the stock exceeds the limit covered by the license (Miss.), his business becomes from that moment illegal, and a contract of insurance issued afterwards on the stock is one made in reference to a. business illegally carried on. and therefore invalid, under the laws of Mississippi. Sun. Mut. Ins. Co. vs. Searles (Supreme Ot Miss.), 18 So. Rep., 544. TITLE. TITLE INSURANCE- RIGHTS OF INSURED— A party executed a real estate mortgage to secure the payment of his promissory note, and as a further security for the payment of the note, he and certain other parties executed to the mortgagee a bond, conditioned that he would complete a certain building on the mortgaged premises, pay and discharge all claims for labor and material furnished for the building, and all liens on ac- count of same, and indemnify and save harmless the mortgagee from all such claims and liens, including expenses incurred in clearing or satisfying same. The insurer then iseued its policy 584 INDICATOR'S DIGEST. of insurance of the title, guarantying the mortgagee that his mortgage was a first lien on the premises, and agreeing to in- demnify him against prior liens. The contract having failed to pay certain claims for labor and material furnished for the com- pletion of the building, the same became liens on the premises, superior to the lien of the mortgage. The insurer of the title paid off these liens and obtained an assignment of the bond from the mortgagee. ' The court held that it had a cause of action or the bond to recover the amount it had paid out to satisfy the liens. St. Paul Title Ins. & Trust Co. vs. Johnson (Sup. Ct. Minn.), 67 Northwestern Reporter, 543. TORISTADO. CONDITIONS IN TORNADO POLICY.— Wliere stock covered by a tornado policy was Injured, the damages are to be deter- mined by the depreciation in value immediately after the injury. The provision in a tornado policy that notice of loss shall be given to the secretary in writing is satisfied by sending notice to the company. Lewis vs. Burlington Ins. Co. (Supreme Court of Iowa), 45 N. W. Rep., 749. TRUST FUND. VOLUNTARY TRUST FUND.— A company deposited with the treasurer of a State a fund as security for payment of poli- cies, though not required to do so by law. The treasurer's re- ceipt described the fund, and declared that it was held as guar- anty for the payment of policies "in trust for the policy-holders.' The com't held that the deposit created a trust fund for such purpose, which could not be applied to the claims of general creditors until such special claims were satisfied. The fact that such officer had no capacity to receive it does not defeat the trust, it being immaterial whether it was held in an ofiicial or individual capacity. Those protected by such fund are not pre- vented from participating in the general fund, after the special fund has been extinguished. Where a company has created such fund, and has become insolvent, should the general assets be insufficient to pay the taxes levied on its capital stock, such special fund is liable for the unpaid balance. Boston & A. R. Co. vs. Mercantile Trust & Deposit Co. (Ct. App. Md.), 34 Atlantic Reporter, 778. TRUSTEES— WAIVER. 585, TRUSTEE. REYIA'AL OF ACTION AGAINST TRUSTEES OF INSUR- ANCE COMPANY. — An action was commenced in 1879 against the trustees of an insurance company. In 1882 one of the defend- ants died, and in 1883 letters testamentary were issued to his executor. In 1891 plaintiff moved to sever the action, and to revive the same against his executor. Such motion was properly granted, in that, if the action be considered an action at law, no mere lapse of time would absolutely defeat an application for a continuation of such action in the name of the representative of the deceased party while in an action in equity, the ten year limit applied. Mason vs. Sanford, 33 N. E. Rep., 546. INSURANCE MONEYS— SECURITY BY FOREIGN TRUS- TEE. — An infant was entitled to share in certain insurance moneys, accruing under a policy upon the life of her deceased father. The infant lived with her mother in a foreign State, and the mother had been appointed by a Surrogate Court of that State guardian of the infant, and had given security to the satisfaction of that Court. In an application by the mother to be appointed trustee under the Act of the Legislature of Ontario to secure to wives and children the benefit of life insurance to receive the infant's share of the insurance moneys without security, it was held that the seciu:ity given by her in the foreign court would not attach to her appointment as trustee under the Ontario Act, and that she oould not be appointed trustee unless she furnished the- necessary security in Ontario. In re Slosson, 13 C. L. I. Occ. N., 89. WAIVER WAIVER OF RIGHTS BY COMPANY.— The Supreme Court of Nebraska holds that a clause providing that an insurance policy shall be suspended during the time the premium note shall remain unpaid after maturity is for the benefit of the company, and may be waived by it. McEvoy vs. Nebr. & Iowa Ins. Co., 65 N. W. Reporter, 888. WAIVER OF LIMITATION OF TIME FOR SUIT.— Where an insurance company, by asking the insured not to sue, and hold- ing out hopes of payment without suit, induces him to refrain from suit until expiration of the time limited in the policy, the ■586 INDICATOR'S PIGEST. ■company waives the limitation. Where the comgjihy has, once waived the limitation as to time for suit on the policy, it cannot revive it. Illinois Live Stock Ins. Co. vs. Baker (Supreme Court of 111.), 38 N. E. Rep., 627. LIVE-STOCK INSURANCE— WAIVER.— A live-stock insur- ance company which, In response to a verbal notice that a horse Insured by it is sicE, sends its surgeon, who examines the horse : and continues to visit it until he finally orders it to be killed as incurable, waives a right to forfeit the insurance for want of a written notice of the horse's disease, as required by the policy. Smith vs. People's Mut. Live-Stock Ins. Co. (Sup. Ct. IPenna.), 33 Atlantic Reporter, 567. WHAT CONSTITUTES WAIVER OF CONDITIONS OF POLICY.— The life of a horse was insured, the policy providing that, in case of sickness or accident, the owner should at once notify the company. The horse was taken sick with pink-eye, and remained sick for a week, when it died. No notice of the sick- ness was given to the company. The policy was forfeited. Part of the premium fell due, but was not paid until the horse was taken sick, and another installment fell due and was paid after the horse died. These payments were retained for a time, and the money was then tendered back to the owner. The company did not thereby waive the forfeiture of the policy. Green vs. Northwestern Live Stock Ins. Co., 54 Northwestern Rep., 349. WARRANTY. WeBRB RElPBBSEiNTATIONS ARE A QUESTION FOR THE JURY. — ^Where the application for a policy of insurance is not made a part of the contract between the parties, and the policy contains no warranty of the truth of- the statements in the application, both the materiality and the truth of the state- ments of the assured in applying for the policy, are to- he deter- mined by the jury in an action on the policy; and a recovery cannot be defeated unless such statements, or some of them, are found to be ma/terial and untrue. Fidelity & Casualty Co. of iN&w York vs. Alpert (Circuit Court of Appeals, Third Circuit), 67 Fed. Rep., 460. WHERE STATEMENTS IN LIVE STOCK INSURANCE ARE NOT WARRANTIES.- Where the language of the applica- tion and policy construes the statements of the former as warran- ties, and also as representations, a false statement as to the amount paid by assured for the insured horse is to be deemed a representation, and is immaterial, where the policy is for one-half -of the alleged value— said value being equal to the price said to have been paid— and provides that "if the insurance stiall have been found to have been greater, the company shall'be liable for WARRANTY. 587 no more than this proportion." The material difference hetwee'^j a mere representation and a warranty is that warranties cannot be deviated from, whether material or immaterial, while repre- sentations may be false, if of an Immaterial fact, without avoiding the policy, or, if of a material fact, an immaterial deviation from the representation will not vitiate the policy. Every representa- tion is to be deemed to be material which there Is a just reason to believe determined, or may have determined, the insurer to insure, or influenced his estimate of the premium. Indiana Farmer's Live Stock Ins. Co. vs. Bogemnn (Appellate Court of Indiana), 36 X. E. Rep., 927. WHAT IS NOT A BREACH OF WARRAXTT OF OWNER- SHIP. — The buyer of a horse purchased on credit for $1,000 gave his notes to the seller for that sum, secured them by a chattel mortgage on the horse, and insured it in a company against loss by death in the sum of $500; loss, if any, payable to the seller as his interest might fippear. The conti-act of purchase con- tained a provision that if the horse should die within a certain time thereafter the seller is to take insurance and give up the rotes. The court held that such provision was not a breach of the clause in the policy that the insured is "the sole, absolute and unconditional owner" of the horse. Kells vs. N. W. Live Stock Ins. Co. (Sup. Ct. Minn.), 67 N. W. Reporter, 21.5. TOPICAL INDEX. 589 FIRE INSURANCE. ABANDONMENT. of mutual policy 155 ACTION. — (See Arbitration, Removal of Suit, Reformation of Contract, Title, Ownership.) in case of disputed title 17 in case of concealment of use 17 second, continuation of first 17, 21 on policy containing terms differing from Michigan Standard 18 for loss of haryesting machine 18 sufficient cause for 18 sufficient answer in '. IS premature before arbitration and award 19 against non-resident companies 19, 27 for breach of contract 19 provisions of policy must be complied with first 19 where it may be brought '20, 21 in case of fraud 20 what must be shown to recover 20 in case of two claimants 20 Insurable interest must be shown 21 joinder of 21 by assignee of claim 21 in case of transfer 22 restricting right of is against public policy 22 for damages caused by fire 22 where proofs of loss are retained by company 22 £lS to limitations of time 'J2 ■effect of facts on rs is defective unless other insurance is stated 24 when answer in is demurrable 24 parties to 24 as regards false swearing 24 to reform policy 24 <;opy of application not necessary 25 after settlement 25 against agent only, valid 25 when threats are used in settlement 25 when hazard is increased without notice to company.. 25 when complaint is insufficient IS, 26 absence of general manager no cause for new trial 26 where it is premature 2-3 admissible testimony 26 ■cause of must be stated 26 must be commenced within time limited by policy 26 against foreign company 20, 27 when assignment is admitted 27 when not barred by limitation 20. 27 590 TOPICAL INDEX. fair market value should be found 27 failure to state cause 27 in policy guaranteed by another company 2S when time for is limited ^ 28 In errors in application 28 when it may be brought in Iowa 21, 229 ADDITIONAL INSURANCE.— (See Other Insurance.) ADJACENT BUILDING. not included by implication 28 ADJUSTMENT. when ratification of is effectual 29 construction of 29 authority of adjuster 29 adjuster has no power to delegate his authority ?3 compromise by adjuster voids conditions 74 appointment of adjuster waives pi'oof s of loss 210 ADMINISTRATOK. insurance procured by 30 AGENT. authority to reinsure 30 presumption of authority 30 may operate through asslstarrt 30 authority of 30, 31, 43, 77, 101, 220 where he exceeds his autliority 31 authority as to renewal 31, 220 authority to receive notice of cancellation 31 authority to waive conditions 31 oral agreement of 31, 261 husband's authority as agent 32 lack of authority of 32 when broker is not agent of the company 32 powers of general agent : 32 power to bind his company 33, 34, 37, 38 power to make contract 33 power of sub-agents 33 powers as to other insurance 33 delegation of power 33, 177 power of local agents to consent to changes ' 34 knowledge of is knowledge of company 34, 35, 40, 42, 122 insured chargeable with liuowlelge of limitations of au- thority of 34 where his knowledge is not knowledge of company 35 notice to is notice to company 35 knowledge of as to sale and ownership 35 power to fill out application,. 36 acts ratified by issuance of policy 36 where broker is agent of assured 37 wiieie cannot act for two companies 37 what constitutes 38 misstatements bind company 38, 39- entitled to no fee from Insured 38 cannot waive conditions of standard policy 38 binds company by signing application 38 where his statements are not binding on company. ...... 40 binds company by settlement of loss 39 sureties on bond not released by taking partner 39 knowledge of concurrent insurance 3Q- TOPICAL INDEX. 591 may waive provisions regarding proof of loss 39 ■when verbal promise is not binding 39 vrhere policy to himself is void 40 efiEect of acting for botli parties 40 effect of arbitration and understanding with 40 when company is liable for policy issued by 41 company cannot deny authority of, when it accepts busi- ness from 41 evidence of agency 41 definition of general agent 41, 256 provinces defined 42 authority to receive proof of loss 43 oral consent does not waive provisions of policy 42 power to waive performance 42 authority to waive forfeiture 101 acts of in placing mortgage 109 liability of to company , 127 liability for failure to collect Insurance 128 when he cannot waive notice of loss 135 when evidence is admissible to prove negligence 160 no authority to waive conditions 174 as to additional insurance 176 power to bind company by oral contract 178 when one not an agent binds company 189 authority to waive proofs 211, 267 when broker is agent of company 256 ALIEXATIOX.— (See Mortgage, Policy, Sale.1 ALTERATION.— (See Repairs, Risk.) permission to make construed 43 APPLICATION. — (See Agent, Concealment, Description, Repre- sentation. Warranty. when inconsistent with policy 25 when it must be attached to policy 43. 44, 75 misrepresentations in not alw.-iys fatal 43 conditions as to representations 44 rejected prevents recovery for loss -14 cannot be changed by oral agreement 44 materiality of answers 45 where right of company to rely on is not defeated 45 failure to notify insured of Its rejection 69 omissions of answers by agent bind company 259 APPRAISEMENT. where amount of loss cannot be exactly ascertained 45 person not disqualified to act because he has acted on previous occasions 'i'3 a condition precedent 4G alsagreement as to amount of loss a condition to 46 where it is binding 4') of value by agent 46 waives forfeiture 4^ stipulation for separate 47 when award is required 47 when not a condition precedent 47 written offer to submit to, not a waiver 4S misconduct of appraisers 48 where company waives requirement for 48, 20S may exclude property not in description 4S 592 TOPICAL INDEX. rejection of material testimony fatal to award 49 appraisal clause valid 49 assumption of regularity 49 when suit is brought before it is concluded 138 must be part of proofs of loss 209 ARBITRATION. not waived by failure of either party to demand 19 no bar to suit 50, 54, 57 where agreement is not waived 5Q expert may be employed 50 what sustains demand for 51 provision for, legal and enforceable 19 agreement terminated by unreasonable delay 51 interpretation of agreement 51 necessity of precluded by refusal to pay loss 51 agreement to waiver provision as to time of settlement. . 52 a condition precedent 52 what constitutes a refusal 52 condition of may be waived by company 52 relates only to property damaged 53 provision for reasonable 53 where owner may testify as to value 53 when third arbitrator is necessary 53 is optional 54 refusal to, waives 54, 57 Is valid where concurred in by one arbitrator and um- pire 54 -effect of failure to agree 55 unnecessary when liability is denied 55 waived by actions of company 55 In case of damage from two fires 55 misrepresentations release insurer from agreement 5'> does not deprive insured of right to introduce evidence in action % 56 stipulation for, revocable 56 assured not obliged to request 56 binding where estimate is accepted by arbitrators 56 waived when neither party demands 57 where it is not a condition precedent 57 when arbitrators are partial to company 57 what is a refusal 138 when it does not bind mortgagee 153 cannot be insisted on before suit may be brought 185 refusal of company's arbitrator to agree to a third 201 demand for waives proofs of loss 211, 213 when waived 261 waived by inattention 267 ARSON. untruthful statements as to apprehension of, void policy 57 person cannot be convicted of bui'ning his own house ... 5S evidence required on trial 58 cannot be proven as a defense unless specially pleaded . . 5S existence of previous fires 58 ASSESSMENT.— (See Insolvency, Mutual Companies, Pre- mium Note.) order for does not authorize penalty for non-payment of premium - 59 TOPICAL INDEX. 593 must be shown in action that a failure to pay forfeits insurance 59 method of making 59 policy-holders liable for second 59 cannot be levied on solvent members to pay deficiencies of Insolvent 155 after ■svithdrawal of member 155 when void 156 not Included in exemptions from corporate debts 157 cannot be made on premium notes of one class to pay losses in another 158 cannot be collected for losses prior to date of policy .... 15S what determines legality of 159 waiver of payment 265 ASSIGNMENT. for claim against second company " 21 agenf s approval binding on company 34 where assignee sells to third party 24 of policy to secure indorser 60 extent of company's liability to assignee 60 without consent, void 60, 62 policy cannot be assigned to third person without consent of insurer 61 breach of warranty regarding assignment renders policy void 61 validity of assignment of lease 61 effect of on policy 61 waiver of objections to assignment of Interest 62 of part of insured property 62 of right to damages in case of loss 62 ■waiver of conditions 62 "As his Interest may appear" operates as 63 to one having no interest in property 63 of policy on personal property 63 rights under , 63 of interest in firm 64 verbal > 64 effect of fraud in 106 of mortgage 145 effect of to mortgagee 145 invalid without consent of Insurer 153 ATTACHMENT. effect of on insured property 64 of property of company after suit to wind up 64 insurance by debtor after 65 BANKRrPTCT.— (See Insolvency.) BENZINE. — (See Kerosene, Hazard, Policy.) keeping for necessary use 65 statement as to origin of fire 65 BOND. of directors of mutual company 66 BROKER.— (See Agent.) when agent of assured 37 authority to act for insurer 66 when not agent for company 67 BriLDING.— (See Dwelling.) effect of change in use 67 594 TOPICAL INDEX. evidence of character 67 BURDEN OF PROOF.— (See Evidence.) BY-LAWS.— (See Mutual Companies.) CANCELLATION.— (See Evidence, Premium.) agent's authority to receive notice 31 notice to broker not valid 68 notice to insured necessary , 68 by substitution of second policy 6S povrer of agent 69 recovery of premium after 69 failure of agent to notify insured 69 evidence required 69 binding slip subject to 70 when notice to agent not binding 160 not effected until Issue of new policy 192 effected by tender of unearned premium 198, 199 what is proper notice of ; 211 effected by appolntmeint of receiver 218 CAPITAL STOCK.— (See Mutual Companies.) of mutual companies when unpaid 70 CARGO. salvage in case of fire in 71 CASH VALUE.- (See Damage, Valuation.) CAUSE OF LOSS.— (See Loss, Risk.) CERTIFICATE.- (S'ee Proofs of Loss.) CHARTER. — (See Assessment, Mutual Companies, Parol Con- tract, Premium Note.) CHATTELS.- (See Mortgage, Title.) title in mortgage 71 waiver of forfeiture in case of 71 policy forfeited by chattel mortgage 72, 168 mortgage on one article does not forfeit policy 72, 163 CLERK.— (See Agent.) of agent, authority of 72 company bound by 73 knowledge of agent's clerk 73. COMBINATIONS. action to restrain 73 validity of 73 COMPANY.- (See Mutual Companies.) COMPROMISE.— (See Adjuster, Concealment.) offer to not admissible in evidence 74 verbal offer of adjuster .,,', 74 acceptance binds settlement 74 not binding in New Jersey 74 waives conditions 74 , CONCEALMENT.— (See 'Fraud, Mortgage, Title.) as to use of premises I7 unintentional 44 of mortgage .........75, 143 as to ownership 75 by mortgagor of other liens , ,[[ 146 as to occupancy jgl CONSTRUCTION.(See Application, Contract, Policy ) CONTRACT.— (See Application, Parol, Policy.) not complete when application rejected 44 authority of agent's clerk to make .!!.'!!! 72 TOPICAL INDEX. 595 made by company in other states 75 time of making _'_'_"' 75 application a part of ..'..'.'.'.. 75 construed in favor of insured ..!.!!! 56 when not separable 76 77 validity of modification , ' 76 place of 7g disability of \,[\ 76 conflict of laws 76 interpretation of 77 when contracts of state in which home office is 77 when separable 77 without written policy 77 to hold expired policies 78 when unalterable 78 when agent acts for insured 78 interim 78, 79 validity of verbal 79 courts will construe liberally 79 made by attorneys void 80 what makes a valid SO terms must be understood 80 performance of 81 obligations of 81 what constitutes joint 81 rights of insurers under 81 notice to terminate si for benefit of contractor 82 with mortgagee 152 what is not a Sunday 184 conditional 186 indivisible and entire 192 when divisible 249 CONTRIBUTION.— (See Adjustment.) when right of does not exist 82 CORPORATION.— (See Capital Stock, Insolvency, Mutual Companies.) CUSTOM. of other agents not admissible as evidence 42 evidence of among agents 83 DAMAGES.— (See Loss.) for breach of covenant to insure 83 suit for negligence 84 DELAY. of notice not a waiver 84 in furnishing proofs of loss 81 when not a bar to action 13+ DELITERX. what constitutes 81 DESCRIPTION.— (See Application, Use or Occupation.) where it is entire contract 85 eflfect of indefinite 80 as to location of property 85 of remaining property 86 eflfect of changing number of building B6 of location 86, 8T sufficiency in proofs of loss 87 596 TOPICAL INDEX. what is included In 8T misdescription of land 87 of premises insured 87 mistake in description of land will not affect risk 88 effect of misdescription by agent 125 DIAGRAM. effect of misstatement in 88, -DIRECTORS. — (See Assessment, Insolvency, Mutual Com- panies.) -DISTANCE. — (Adjacent Buildings, Description, Building.) DOUBLE INSURANCE.— (See Other Insurance.) -DUE DILIGENCE.— (See Notice, Proofs of Loss.) DWELLING.— (See Building.) hotel not insurable as 88 where contract is severable 83 what is an appurtenance to 89 what is essential to constitute occupancy of 162 EMBEZZLEMENT.— (See Fraud.) ESTOPPEL.— (See Evidence, Waiver.) EVIDENCE.— (See Action, Agent, Parol.) of cancellation 69 where parol evidence is harmless error §9 where preponderance of only is required 89 ■of oral understanding 89 as to fireproof safe 89 In foreclosure 90 to prove fraud of agent of two companies 90 •conflict of 91 to reform policy 91 where there was no written application 91 when parol is inadmissible 179 secondary in proofs of loss 204 must be within issues of pleading 211 of insurable value 252 :bxecution. when sale under Is not a change of Interest 91 effect of sale under 91 EXPERT. when opinion is unnecessary 92 EXEMPTION. of insurance money 92 EXPLOSION. where no fire ensues 92, 93 of lamp does not void policy 162 PALL OF BUILDING.— (See Building.) as the cause of fire 93 FIRE LIMITS. removal of buildings from 94 construction of ordinance 94 FIRM PROPERTY. insured by one partner 94 FIXTURES. where property is insured as 95 FLOATING POLICY.- (See Policy, Risk.) what it covers 95 FOREIGN, COMPANIES.— (See Garnishment, Statute, Taxa- tion, Unauthorized Insurance.) not liable to substituted service 19 TOPICAL INDEX. 597 when policy of is not void 77 validity of policy 95 seiTiee in case of 96. 99 when contract with is completed 96 when cannot enforce assessments 96 requirements of 96, 97, 9S right to adjust loss 97 service of summons on 97, 99 jurisdiction in case of (see 3iu-isdictionl 98. 99 illegal contracts by 97. OS regulation of in Tennessee 98 right to sue 99 status in Kansas 9S. 99 not subject to garnishment 99 in South Carolina 99 when they cannot deny jurisdiction 122 FORFEITURE.— (See Agent. Concealment, Evidence, Fraud, Incumbrance, Mortgage. Premium. Premium Xote. Proofs of Loss. Title, Value, Warranty, Waiver.) waiver by appraisement 47 death of assured before loss 100 where it is waived lOQ estoppel of claim of 100 in case of transfer of title 101 in case of prior insurance 101 by fraudulent claim 101 by default in assessments .' 101 agent's authority to waive 101 when It is not waived 123, 146 for concealment by mortgagor 146 as affected by mortgage 186 failure to make proofs of loss in a given time 203 when insurer waives 254 FRATTP. — (See Concealment, Representations.) when not a valid defense 22, 102 when it forfeits policy 101 when it does not forfeit 102 what constitutes 102 in proof of loss 102 In assignment 103 in case of claim 103 bv agent 103 GARNISHMENT. when company not liable to 60 when no defense 103 of claim against company 104 ' after contract to rebuild lOi jurisdiction in 122 GASOLINE. — (See Concealment, Hazard, Risk.) when its use voids policy 104. 1< »5 printed and written stipulations 105 when its use does not void policy 101 condition as to use cannot be waived by agent 262 GENERAL AGENT.— (See Agent.) GOODS AND MERCHANDISE.— (See Insurable Interest, Title.) HAZARD. — (See Increase of Risk.) 598 TOPICAL INDEX. inconsistency between printed and written stipulations. 105 ILLEGAL INSURANCE.— (See Unauthorized Insurance.) INCENDIARISM.— (See Arson.) INCREASE OF RISK.— (See Occupancy, Repairs, Use.) by ilioving smolcestaclc 25 when caused by exposing property i 38 by use of building as residence 67 construction as to 106 in case of misrepresentations 106 by use of building 107 liability for .- . . . 107 question for jury 107 in case of incumbrance 107 by erection of adjacent building 108 evidence as to ,108 waiver of forfeiture from 108 renders policy void 186 INCUMBRANCE.- (See Insurable Interest, Mortgage, Mort- gagee and Mortgagor, Title.) when Its existence Is known to sub-agent 33 when knowledge by agent binds company 3i waiver of conditions against 108, 109 where policy Is not voided by 1,09, 110 when condition Is not waived 109, 110 when forfeiture is not waived 109 conditions as to future 110 paid off will not affect collection of insurance 110 on leased property 110 where execution of mortgage Is not breach of condition. 148 negligence of agent to disclose 159 foreclosure of not, a violation of policy 188 knowledge of agent waives conditions 254, 259 foreclosure without permission of company 260 INFLAMMABLES. violation of provision Ill ■where their use Is necessary Ill INSOLVENCY.— (See Capital Stock, Receiver.) In case of fire loss Ill In case of mutuals 112 in Wisconsin 112 INSURABLE INTEREST.— (See Incumbrance, Title.) must be shown in action 21 is covered by policy 35 as affected by assignment 61 in buildings in course of construction 113 construed , 113, 114, 166 In household furniture 113 in case of husband and wife 114, 115 what is valid 114 of building contractor 114 when purchaser has 115 of partner 115 of public carrier 115 of warehouseman 116 Incorrectly stated 126 as affected liy mortgage clause 143 who has 164 TOPICAL IXDEX. 599 of husband 166 insured must have 226 INSURANCE. refusal to transfer IIG construed 116 INSURANCE COMPANY.— (See Mutual Company.) INVENTORY. construed 117 failure to make 117 what must be included 117 f iiilure to make no defence of claim 117 production on demand ". 117, 124 made when policy is issued, sufficient 120 demand for waives pi-oofs of loss 210 INVOICE— (See Inventory.) as evidence of value 250 IRON SAFE CLAUSE.— (See Inventory.) construction of lis, 119, 121 when it is a warranty 118, 110. 120 what is a waiver of 118 when it is not a warranty 119 when agent cannot waive 119 when it is complied with 120 when it is a part of policy 120 when failure to comply with does not void policy 257 may be waived by agent 269 JUDGMENT.— (See Incumbrance.) when it voids policy 121 correction for mistake 121 JURISDICTION.— (See Foreign Companies.) of courts cannot be contracted away by individuals .... 5i when the court has 122 when it would be ousted 122 against foreign companies 122 JURY. — fSee Evidence.) KEEPING AND STORING.— (See Gasoline, Hazard, Risk.) LAW.— (See Statute.) LEASED GROUND.- (See Title.) LESSEE. when he can recover 122 effect of putting in possession 239 LE"V^ AND EXECUTION.— (See Insurable Interest, Title.) effect of on policy 123 when it voids policy 123 LIABILITY. — (See Adjustment, Gasoline, Loss, Use, Waiver.) denial of waives notice of loss 124 for failure to produce invoice 124 of agents for worthless insurance 124 for fraud in proofs of loss 124 for failure to procure insurance 125 for unreported policy 125 of another company through void policy 125 for misdescription by agent 125 by change in use 125 of reinsuring company 126 , computation of pro rata 126 6oo TOPICAL INDEX. avoided by false statements of Insured 126 where insured's interest is incorrectly stated 126 where contract has been changed 126 in case of negligence 127 for protection of insured goods 127 of agent to company 127 for acts of appraiser , 127 for failure of agent to coillect insurance VIS of railway company for fire 128 under two-thirds clause 12S of third person 129 not a lien on property of member of mutual 120 for merchandise warehoused in transit 129 of railway company for loss of insured freight 130 of applicant for insurance 130 LIEN. — (See Incumbrance, Mortgage, Title.) LIGHTNING. as a cause of loss 130 LIMITATION. of action in Dalsota 103 when it does not bar claim 27 construction as to time 28, 131, 132, 133, 134, 135 of action by foreign companies 132 seryice of summons 132 of action by receiver of mutual company 133 In case of proof of loss 133 governed by date of fire 133 what is not a waiver of 133 when it cannot be set up as a defense 134 of right to bring suit 134 of amount of recovery 1S4 when statute of begins to run 19, 134 by contract 135 what is a waiver of 137 LOCAL AGENT.— (See Agent.) LOCATION.— (See Description.) LOSS.— (See Limitation, Risli.) appraisement of 46 must be less than total insurance to secure apportion- ment 51 notice of waived by denial of liability 124 when agents cannot waive notice of 135 certificate of indispensable in Minnesota 135 when notice of must be given 136 governed by laws of state in which it occurs 136 particular account of 136 account of a condition precedent 137 refusal to pay creates right of action 137 where Insured need not prove exact extent of 137 payment of not covered by policy I37 to be determined by arbitration 137 correction of policy after 138 in case of concurrence of two causes of 138 means of determining the amount of . . . I^is MACHINERY. "■■■ when it is real property 138 effect of idleness of on insurance .....". 139 TOPICAL IXDEX. 6oi MAGISTRATE'S CERTIFICATE— iSee Proofs of Loss.) what is requirement of 139 ■waiver of conditions of 139, 1-tO construction of 140, 141 when it is invalid 140 MARKET VALUE.— (See Valuation.) MEASURE OF DAMAGES.— (See Adjustment, Building, Ex- plosion, Insurable Interest, Loss, Mortgage, Repairs, Sub- rogation, Valuation, Valued Policy.) MECHANIC'S LIEN. — (See incumbrance. Insurable Inter- est) MERCHANDISE. definition of 141 MILL. — (See Rist, Use or Occupation.) MISREPRESENTATION.— (See Representation.) MISTAKE. — I See Agent, Application, Concealment. Description, Reformation, Representation, Warranty.) when it does not void policy 141 in proofs of loss U- in dating policy.' 142 of clerk as to ownership 210 MORTGAGE. — (See incumbrance, Mortgagee and Mortgag- or, Policy, Title.) when company is bound by agent's knowledge of 35 assured may enter into appraisement without notice of . . 4£ concealment of void policy '■.■ where it is no defense S5 record of not notice to insurer 14:1 construed in Texas - 14'2 where it is not breach of condition 143 construction of 143, 144, 146 without consent of insurer 143 when it does not void policy 14.3, 14.5 as affected by other insurance 144 of one article 144 when not a bar to recovery IJri what is a discharge of 145 amount of recovery under 145 when it violates condition in policy 145 notice of foreclosure 14»5 foreclosure without consent of insiu-er 14il Ijnowledge of estops avoidance 147 '■N. T. Standard Mortgage Clause" construed 147 where it voids policy 147 effect of "Union Mortgage Clause" 147 when it waives defense of forfeiture 14S on one class of property does not preclude recovery on another 151, 14S existence of when policy Is issued 14S; when condition is not waived 149 notice to agent suflicient 161 action under in case of loss 167 when foreclosure is illegal 171 MORTG-IGEE AND MORTGAGOR. — (See Incumbrance. In- surable Interest Mortgage.) right of mortgagee 1^9 as his interest may appear 149, 150, 151 6o2 TOPICAL INDEX. subrogation to right of mortgagee 149 right to recover not prevented by voluntary destruction by ovraer 150 in name of mortgagee 150, 151 notice of sale to attorney is notice to mortgagee 150 parties to action when in the name of mortgagee 150 additional insurance does not affect mortgagee's right. . . 151 conditions for benefit of mortgagee construed 152 when in name of mortgagor 153 when funds in the hands of company are not subject to garnishment by creditor of mortgagor 153 mortgagee not bound by arbitration when not a party to it 153 failure of mortgagor to pay premiums 153 when mortgagee may bring suit in own name 167 Insurance by mortgagor subject to mortgage 170 when insurance procured by mortgagee is not additional.. 172 rights of mortgagor not affected by additional insur- ance 173 MUNICIPAL CORPORATIONS. liability for supply of water 154 liability for defective water works 154 -MUTUAL COMPANIES.— (See Assessments, Insolvency, Premium Note.) bond of directors for guarantee fund 66 notice to restore impaired capital 70 default in assessments 101, 158 insolvency of 112 lien on property of members 129 action by receiver to recover assessments 132 withdrawal of members 154, 155, 15B solvent members cannot be assessed for delinquencies of insolvent lo5 rights in Kansas 15b abandonment of policy 156 claims for return premiums 156 void assessments 15B determination of solvency 156, 157 who are members. . . : 157, i5g members liable for notes .' 15s liability of members not terminated by death 157 when members cannot avoid policy ' 157 members bound by laws I57, 159 construction of law as to different class of business .' 158 provision for guaranty fund I51J members cannot be assessed for losses prior to date of policy 158 when policy is void I59 as to collection of assessments 150 may issue both cash and assessment policies 159 payment of assessment waived 265 NEGLIGENCE. of railroad company 115 does not relieve company from liability 127 of mortgagee to notify company of sale 152 where negligence of agent will not avoid policy 159 evidence of on part of agent 160 when negligence of agent waives condition 160 NOTE.— (gee Premium Note). TOPICAL INDEX. 603 NOTICE.— (See Cancellation, Other' Insurance, Proofs of Loss.) immediate of loss construed 20 wlien service on an agent is uot binding ICO to clerk of agents, notice to company 160 to agent, notice to company I61 OCCUPANCY.— (See Use, Vacant.) when conditions of are not violated 161 what is not misrepresentation as to 161 construction of 161, 162, 163 by representative of insured 162 by insured who has conspired to burn the property 162 change of 162, 163 what constitutes, of dwelling 162 when change of will not work forfeiture 16? OPEN POLICY.— (See Policy.) on personality 163 when compliance with condition in is not required 164 ORAL CONTRACT.— (See Pai-ol Contract.) OTHER INSURANCE. amount must be stated 24 agent's authority to consent to 33, 34, 177 agent's Icnowledge binds company 35, 39, 176, 258 agent's verbal promise before issue of policy not binding 39 where it does not work forfeiture 100 where condition is not violated 110 obtained through mistake 142 when it does not affect amount of recovery 144 by owner does not affect right of recovery by mort- gagee 151 notice to agent's clerk binds company 160 by mortgagee does not forfeit 167 knowledge of 168, 257 waiver of condition 16S when it voids policy 174, 175, 187 when it does not void policy 169, 170 when company is estopped to deny its consent 169 condition not complied vdth by notice by director 170 when adjustment waives 170 without consent 170, 171 what does not constitute 171, 172 dispute over 171 by mortgagee without knowledge of mortgagor 171 as renewal of first policy 172 when insurance by mortgagee is not 172 by mortgagee without owner's knowledge 172 double insurance 173 over insurance 173 contract not completed 1~3 two policies on same date 173 conditions may be waived by agent 174 constructive waiver of 174 what is not consent by company 1 1 o provisions against 17-' failure to disclose 175 conditions as to 176, 177 when conditions are waived 176 knowledge of by agent 176 6o4 TOPICAL INDEX. agent cannot waive 176- failure to disclose 189 causes forfeiture 254, 255 promise of agent does not waive 258 when company entitled to non-suit 177 condition subsequent 17 ? consent to procure 177 without notice to company 182 OWNERSHIP.— (See Insurable Interest, Title.) effect of misrepresentation 113, 165 when condition is not void 164 waiver of condition 164 construed 10-t, 166 when transfer is not breach 165 unconditional and sole 166 concealment of 166 misstatement as to •. 166, 170 insurance by half owner does not cover interest of other 167 in case of insurance for more than the mortgage 167 effect of change 167, 190. change construed 168 of policy 168 mistake by clerk 210 OVER- VALUATION.— (See Valuation.) PAROL CONTRACT. where agent's agreement holds 31, 78, 178 provisions not waived by oval consent of agent 42 agreements merged in written application 44 verbal assignment of policy 64 verbal offer to compromise 74 agreement of agent for other insurance not sufficient. . . 175 as to renewal not binding 178 in case of non-performance of conditions 178 construed 178 insurance pointers 179 waiver by agent 253, 255, 260 when waiver may be shown by 257 authority of agent to make verbal contract need not be shown 268 PAROL EVIDENCE.- (See Evidence,) where it is harmless error 89 as to contents of building 178 where It is inadmissible 179 PARTIAL LOSS.— (See Loss, Measure of Damages.) PARTNER.— (See Owner, Title.) PAYMENT.- (See Premium, Premium Note.) in full in Tennessee 180 PERPETUAL POLICY. in case of transfer 180 PETROLEUM.— (See Kerosene.) PLEADING.— (See Action.) ratification of policy 180 under laws of Texas 181 POLICY.— (See Agent, AUenation, Application, Cancellation. Construction, Contract, Description, Floating Policy, Parol Contract, Premium, Reformation, Risk, A'^acant, Waiver.) containing terms different from Michigan standard 18 TOPICAL INDEX. 605 yrovisioH as to chauge 35 agent cannot waive conditions of standard 38 on liarvesting machine 181 written and printed stipulations 105 as to cliange of risk 181 construction of 181, 182 wliat is covered by 182, 183 as to otiier insurance , 182 governed by attaclied form 1S3 construction of Michigan standard on lumber 183 in regard to steam boiler 183 release will not prevent recovery 184 terms agreed to on Sunday 184 what is covered by 184 as valid and effective 184 should be construed liberally 184 rendered void by failure to set forth title 184 amount may be limited 185 when provision as to suit is void 185 when building is used for other purposes 185 conditions of govern 185 when company cannot claim forfeiture 186 when it is conditional 1S6 affected by increase of risk 186 pro rata daiise 186,194,195 conditions must be consistent 186 binding slips 187 to whom conditions apply 187 as affected by change in title 187 rendered void by other insurance 187 clear space clause 187 construed as to title 188 as affected by foreclosure 188 standard construed 188 violated by sale 189 holder must know its conditions 189 when violation of conditions will not void 189 as to unpaid premiums 189 procured by one not actual agent 189 right to sue under 189, 190 Issued to a firm 190 misrepresentation as to ownership 190 standard policy act of Pennsylvania 190 not avoided by partial stoppage 190 avoided by change of interest 190 variance as to date 191 when voided by change of interest 191 when not voided by change of interest 191 evidence as to another 191 failure to operate mill 191 taken in name of infant 192 compelling issuance after loss 192 exchange of 1^^ on different items in one policy 192 fictitious or assumed name 192 countersigning by ageiif part of its execution 19^ is a personal contract with insured 193 6o6 TOPICAL INDEX. meaning of "direct result" 193 recalling of by agent 193 property covered by farm insurance 193 agreement to renew . . | 194 shutting down of mill 194 Issued to firm after death of one member 194 may be binding without delivery 198 POSSESSION.— (See Title.) PEAOTIOE.— (See Action.) when agent exceeds authority • 31 PRELIMINARY AGREEMENT.— (See Parol Contract.) PREMIUM.— (See Agent, Policy, Premium Note, Taxation.) may be received after cancellation 69 must be returned to cancel 68 acceptance after linowledge of loss waives forfeiture 100 conditions as to unpaid 189 what is not payment 195 what is payment 195 payment to brolser binds company 195 payment after loss 196 failure to pay 196 prepayment waived by delivery of policy 196 waiver of immediate payment 197 offer to agent constitutes payment 197 proof of payment of 197 tender of unearned 198, 199 notice by registered letter 198 effect of credit 198 waiver of non-payment in mutual companies 198 unpaid not taxable in Louisiana 199 action to recover earned portion 199 delivery of policy without payment 264, 267 PREMIUM NOTE.— (See Premium.) when failure to pay does not forfeit 197 form of judgment in mutual company 200 company may recover in full 20O default In payment 255 PROOFS OP LOSS.— (See Magistrate's Certifies te, Notice.) false swearing as to 24 sixty days' clause waived 52 expert testimony may be used by appraiser 50 delay in furnishing 84, 200 what Is sufl5cient description ; 87 as to time fire occurred 89 fraud in vitiates policy 124 where action is premature 135 magistrate's certificate 139 where additional are waived 142 right of mortgagee to furnish 147 what is suflBcient 200 signed by one plaintiff , 201 admission as to occupancy 201 violation of conditions in making 201 in a case of arbitration 201 carpenter's bills not sulHcient 202 retention by company waives objection 202 "due diligence" construed 202 TOPICAL INDEX. 607 on blank furnislied 202 covenant to keep complete set of Dooks 202 must be furnished according to conditions of policy 203 wliere delay in furnishing will not invalidate policy 203 failure to make in certain time does not forfeit policy 203, 205 excusable delay 203 requirement to furnish in given time construed 201, 206 statement made on Information and belief 204 secondary evidence in 204 notice of waived by insurer taking possession 204 defective 204. 205, 208 who may make 205 may be waived by parol 205 compliance with terms of 205, 206 statements in may be explained 206 immediate notice of loss construed 206, 207 delivery to agent 206 certificate of nearest notary 206 where they are a condition precedent to right of recovery 207 where objections are waived 207 what is a waiver of 207, 209, 210, 212, 213 where compliance of proofs with contract cannot be questioned 207 waived by. denial of liability 20S. 210, 213. 214. 2.3S waived by appointment of adjuster 208, 210 not part of coatract 208 when sufficiency of cannot be objected to 209 waiver of sufficient excuse for not furnishing 209 what is not waiver of 210. 213, 254 waived by demand for arbitration 211 ■wadving defects in by refusal to pay based on other grounds 211 authority of agent to waive 211 as affected by notice of cancellation 211 must not be made by insured when incendiarism is charged -1^^ waived by demanding arbitration 213 failure to" return waives -defect 213 PROPERTY. covered by iwlicy - -14 examination by agent -li excepted not covered by policy 214 ratification of conveyance 214 insurance on exempt 215 changes in condition of 215 rights of partners to insurance on firm property 215 REBUTLDIXG. stipulation for in Texas -lb notice must be given within 30 days 216 clause void in total loss 216 waiver of right to rebuild 216 RECEIPT.— (See Payment, Preminm, Waiver.) RECEIVER. — (See Insolvency.) when court has no iwwer to appoint 217 suit by successor of 21^^ when he cannot be removed -IT 6o8 TOPICAL INDEX, right to act on policy 217 appointment of cancels existing policies 218 RESCISION— (See Cancellation.) REFORMATION OF CONTRACT. when agent is misled by misrepresentations 24 for mistake 218 mistake must be mutual to justify 21S REINSURANCE. when it takes effect 219 service of notice after 219 rights of policy-holders against reinsurer 219 REMOVAL., of harvesting machine for repairs 18 consent to by agent 107 of goods without indorsement 219 failure of agent to indorse consent to 220 when company is released from liability 220, 221 consent of agent binds company 220 RENEWAL.— (See Policy.)' agent's authority as to 31 what is not 138 estoppel by declaration of agent 221 premium must accompany notice of ■ 221 construction as to 222 changing terms In 222 RENT. liability of company on insurance against 222 REPAIRS. what is not a permit 223 effect on policy 223 when do not work forfeiture 223 construction of policy as to 223 change of risk by 224 when conditions are waived 259 REPRESENTATIONS.— (See Agent. Application, Descrip- tion, Title.) false answers written by agent 39 in application, construed 44 w^here do not defeat recovery 102 What constitutes 181 alleged misrepresentations must be specific 224 effect of immaterial 224 misrepresentations must be intentional to affect policy . . 225 as to building on leased ground 225 RISK. — (See Dwelling, Increase of Risk, Oceupany, Policy, Repairs.) assumed by policy 225 change material to 225 scope of 226 : SALE. under execution 91 notice to attorney is notice to mortgagee 150 of mortgaged property 152 when it does not invalidate policy ; . . . 71 Avhen it voids policy 226 without change in legal title 226 when policy is not voided 226 recovery of insurance charges after 227 TOPICAL INDEX. 609 under foreclosure 146, 227 effect 0* judicial 2iO conditions waived 262 SEPARABLE CONTRACT.— (See Contract.) SERVICE.— iSee Garnisliment.) validity of on agent 227 upon whom summons may be sen-ed 227, 229 SET OFF.— (See Insolvency.) SETTLrEMEXT.— (See Adjustment.) SHIFTING RISK.— (See Floating Policy.) SPECIAL, HAZARD.— (See Hazard, Risk.) STATUTE.— (See Policy, Unauthorized Insurance.) statutory conditions govern policy 228 variations from 228 of Wisconsin 228, 229 providing for privilege tax 228 authorizing suits 229 of Iowa 229 constitutional law as to insurance business 229 as to conditions in policy 230 conveyance under 230 valuation of statutory conditions 230 SUB-AGENT.— (See Agent.) SUBROGATION.— (See Mortgagor and Mortgagee.) to released right 23 to rights of surety 231 recovery of subrogated claim 231 of insurer to rights of insured 231, 232 to rights of owner 232 principal of in insurance 232 absence of statutory enactment 232 of covenant in lease 233 SURRENDER OF POLICY.— (See Cancellation.) TAXATION. privilege tax of cities 22S right to reduction of 233 validity of city 233 of domestic companies 234 of stock of insurance companies 234 in Louisiana 234 in New York 235 TENANT. proceedings to oust 235 rights of when premises are damaged by fire 235 THEFT. — I See Loss, Policy, Removal.) THRESHING MACHINE. "in use" construed 236 TITLE. — (See Incumbrance, Insurable Interest, Mortgage, Mortgagor and Mortgagee, Ownership.) in case of forged deed 17 agent's knowledge of conditions Wnds company 37, 18S science as to ownership 71 wiiere transfer works forfeit in 101 as affected by levy 123 affected by chattel mortgage 149 failure to set forth renders policy void 184 change in affects policy 187, 189 when change in voids policy 191, 2nfl 6io TOPICAL INDEX. when cliange does not -void policy 191, 256, 258, 260 should be determined before loss 204 transfer of 214 -when cbanige does not vitiate policy 215 when Involved in litigation 235 as affected by the sale by t-wo partners to the third 236 of land not owned by insured 236 held as security for debt 236 possession good evidence of 287 in insured and wife jointly 237 ■when it is disputed 237 change of material to risk 237, 238, 239, 241 evidence of 238 property on leased ground 238, 241 misrepresentation of 239 transfer with consent of agent 23H transfer of interest in policy 239 wliat is not a change of 240, 241 acquired at judicial sale 240 what is a change of 240, 241 giving of mortgage is change of 240 of wiif e 241 mistake of agent In making indorsement of sale 241 knowledge of company -when application is made 245 TORNADO. followed by fire 24j£ TOTAL LOSS.— (See Abandonment, Loss.) recovery for not precluded by arbitration for damaged property 53 under Texas laws 181, 242, 243 makes rebuilding clause void '. 216 created by municipal condemnation of building 242 of building 243 UNAUTHORIZED INSURANCE. liability of ageaits- for 124 effect of '. 243 USE.— (See Risk.) when hazard is increased by lOT change in 125, 181 -when conditions as to are not -violated IHl when change of will void policy Ig.j ■when change of will not void policy 24'!. A^ACANT.^ when building in course of construction is not 36 effect of negligence of agent to indorse permit 166 when conditions of are not violated lei what is not vacancy 244, 245^ 246, 248, 249 wliat is vacancy 244, 245, 249 exiMiiation of permit removes liability 244 knowledge of by assured not necessary 245 vacancy of house without knowledge of insured 245, 249 ■when it does not void policy ........' 245 ■what is vacant bouse 246 beyond period allowed by policy cause for forfeiture .246 248 construction of clause ' 240 knowledge of insurer 246 increase of risk by 247 what is not waiver of 247 TOPICAL INDEX. 6ii what Is waiver of 247 informal notke of 247 issuance of policy by agent on premises he knows to be vacant 247 temporary absence not A-acancy 24S immediate notice of 248 incident to change of tenants 249 waiver of claim by agent 257 parol notice to aneut 260 YALrE. what is a fair , 27 estimate of agent binds company ^ 40 purchaser may testify as to 40 inadmissible evidence of 250 false swearing as to 250 inventory as evidence of 250 proving in Iowa 250 proof of 251 of property destroyed 251 overvaluation must be prov on by insurer 251 what evidenx^ of is not admissible 251 of insured property 251 what is fair market value 251 evidence of insm-able 252 instruction of court as to 252 VALUED POLICY. Ohio law 252 conditions of policy under 252 WAIVER. — (See A sent, Xotice. Other Insurance. Policy, Title.) of magistrate's certificate 40 of forfeitui-e 100, 198 of conditions of incumbrance 108, 109 of additional insurance by knowledge of agent 176 when it can be inferred 176 of defense of forfeiture by mortgage 148 of prepavment of premium by delivery of policy 196 of proof "of loss 207. 208, 209 of defect in proofs of loss 208 of right to rebuild 21S of concMtion as to vacancy 247 validity of parol by agent 253 legal rights not waived by imputation 253 what is not 25?, 258, 263 try general a.gent 253 must be indorsed on policy 253 must be set forth in pleading 2.53 Implication .of 254 of forfeiture by reason of incumbrance 25t what constitutes 254 of limitation clause by negotiations for settlement 254 bv agent a nullity 254 of condition in policy 2.54. 255, 256, 260 as to other insurance 254, 256, 257, 258 of default in payment of premium note 255 mav be orallv made by agent 255 of forfeiture for change of title 256, 2.58, 260, 201 of condition as to clear space clause 257. 259. 26? 6i2 TOPICAL INDEX by knowledge of companv 257 by agent 237, 259, 260, 2«1, 262, 264 of proofs of loss 258, 261 verbal of agent valid 250 of conditions as to alterations 259 by parol 261 of arbitration by company 261 of gasoline conditions 262 of notice of loss 262 of comdiitions of appraisement 262 of conditions as to sale ; 262 of conditions as to ownership , 262 of breach of acts of company , 26a of conditions under New York Standard policy 263 by notification to agent 264 of paymenc of premium by delivery of policy 264, 267 of condition as to sole ownership 264 of closing dOTvn of manufacturing establishment 204 of one breach not Avaiver of another 265 by agent lacking authority 265 ■of watchman clause 265 by false statement of mortgage 265 of provision for paying assessment in mutual 265 of stipulation by sending adjuster 266 of action on policy 266 of arbitration clause 267 when agent has no authority to waive proof 267 of proofs of losis and incumbrance 267 special agent may waive proofs of loss 268 of proofs by acts of adjuster 268 of delay in notary's certificate 268 of question as to proof of loss 268 of right to plead defects in proofs 268 of proofs of loss a question for jury 268 of notice and proof of loss 269 of salfe clause bj' agent , 269 of special requirements 269 TVARRAiNTY. what is sufficient compliance with 269 agreement to keep accounts is not 270 when statements in application are 270 breach of 263, 270 WAREHIOiUSEMAN. Insurance by 270 WATCHMAN, failure to comply with conditions as to 45_ condition not broken by watchman sleeping 271 clause not complied with ; 271 temporary absence does not relieve from liability 271 company liable though watchman was asleep. 271 involved in litigation, effect on policy 2?.*' TOPICAL INDEX. 613 LIFE INSURANCE ACTION.— (See Forfeiture, Policy, Premium, Proof? of Death.) on Incontestable policy 272 date of commencement In case of lapse 272 testimony as to disease 273 in case of antenuptial agreement as to dower 273 ACCOrNTING. under semi-tontine policy 273 ADMINISTRATOR. rigbts of in different States 273 on policy made payable to 274 in different States 274 ADVA^XEMENTS. ' on policies 274 AGENT. construction of contract 275 cannot waive conditions 275, 276 delivery of policy before payment of premium 275 knowledge of imputable to company 276 power of 276, 278 when admissions of are not binding 277 company liable for agent's default 277 rights of on discontinuance of business 277 superintenden/t of agents not a managing agent 278 service may be served on managing 278 authority must be stated 278 vaJidlty of agreement by 278 right to terminate agency 279 knowledge of 279 forgery of signatures in application 279 right to commissions 292 . can agree to reduction of policy 320 APPLICATION.— (See Agent, Policy, Representations.) must be attached to policy 279, 2S2 effect of agent's error 280 statements in not warranties 280 change of answer by agent 280 effect of agent signing for illiterate pei-son 281 misrepresentations in 281, 282, 332 answer of question by mark 281 statements for pension not admissible in action 281 subsequent statements 282 when incorrect answer does not void policy 282 former written application 282 false statements as to age 2S3, 317 when detached by company's neglect 298 rejected admissible as evidence 298 failure of insured to sign, voids 318 false statement by agent entitles applicant to recover premium 321 6i4 TOPICAL INDEX where insured not informed of purport 346 part of contract 371 ASSIGNMENT. of policy for security " 283 rig-lits of assignee under 283, 286 for benefit of creditors 283, 284, 286 wlien not binding on company , 283 governed by laws of place where made 284 what is not 2S4, 283 as afEected by settlement 284 of judgment debtor's policies 284 interest acquired by creditor in 285 not executed by delivery of policy 285 what Is 285 to stranger to secure debt cannot affect beneficiaries' rights 285 "as interest may appear" 286 not affected by failure to jjerform agreement 286 validity of 286 as security for premiums advanced 286 right to recover surplus 287 scaling' agreement with beneficiary binding on assignee.. 2B7 under New York married women's act 287 right of wife in 287 by whom conditions are available 287 ifor less than face not a wager 288 while insane 308 premiums paidi by assignee 319 when assignee is not liable for permitting policy to lapse. 322 ATTACHMENT.— (See Garnishment.) life policy not attachable 288 BENEFICIARY.— (See Policy.) rights under assignment ; 285 legal heirs as ■ 288 construction of "estate" as ; 2S8 consent of necessary to release 289 construction of policy as to 289 authority to change 289 death of before insured 289, 290 291 when may be changed 290 wife as .290, 291 joint rights of wife and children .'..'. 290 children as .291 294 under Iowa code '..,..."...' 294 when has no insurable interest 307 is the person assured .' 314 BURDEN OF PROOF.— (See Proof of Death.) . CANCELLATION.— (See Agent, Notice, Policy, Premium) for non-payment of premiums 291 not effected by change in contract oqk CHILDREN. **° have joint interest with wife 290 as beneficiaries 29I 294 iaw regarding insurance of ..., 292 limiting amount of insurance ....'" 29'' TOPICAL INDEX. 615 "their children" construed 316 COMMISSIONS.— (See Agent.) right of agent to where company refuses to accept risk. . 292 compulsory references in an action to recover 292 right to renewal 293, 294 CONCEALMENT. — (.See Application, Representations, Warranty) CONSIL>i:.KATION.— (See Premium.) CONTRACT.— (See Cancellation, Policy, Reformation.) disaffirmance of by infant 293 ilaw governing place of 293, 294, 293 what is not a completed 293 for benefit of beneficiary ■ 294 of employment construed 294 to ccKupensate retiring president 294 change in does not cancel 295 by wife a separate estate 295 CONTRIBUTION.— (See Contract, Policv.) CREDIT INSURANCE.— (See Policv.) CREDITORS. rights of In life insurance 295, 296 insurance on life of debtor. 296 DEATH.— (See Beneficiary, Policy.) presumption of 296 caused by Insanity 297 what Is insufficient to establish 297 DECEDENT'S ESTATE.— (See Administrator.) DECISIONS.- (See Contract, Policy.) DELIYERY.- (See Agent, Policy, Premium.) DISAPPEARANCE.— (See Death.) DISEASE.— (See Policy.) DISTRIBUTION. of Insurance monev 297 ENDOWMENT POLICY.— (See Policy.) ESTATE. — (See Administrator, Policy.) EVIDENCE.— (See Contract, Policy.) detached application inadmissible 279 of business habits 297 conflicting as to ownership of policy benefits 298 admission of Incompetent 298 examination of company's boolis by agent 298 policy may be Introduced as 2i)S when rejected application of another company is admis- sible 298 when parol is admissible 299 affidavits as in proofs of death 299 as to differences between policies of two companies .... 299 must be conclusive to void poUcy 299 as to age of insured 299 as to notice of premium due 302 admissible to prove waiver 302 opinions as to suicide not 337 what is improper as to suicide 339, 340 EXAMINATION OF INSURED.— (See Policy.) EXEMPTIONS. in proceeds of life insurance 299 6i6 TOPICAL INDEX ■ of life insurance, in Kentuclij' 299 FORFEITURE.— '(See Contract, Policy, Premium, Waiver.) by non-payment of premium. _ 300, 301, 302 by non-payment of premium note 300 where there can be no proportionate recovery under 301 notice must state conditions 301 waived by acceptance of premium 302 when it is waived 302, 303 who has power to waive 303 when it cannot be waived 303 by non-payment of premium note 320 FRAuij. — (See Forfeiture, Policy, Representations.) in procuring loan ; 304 as to cost of policy 304 when it does not void policy 30-i what is not ; 304 what is not evidence of 305 materiality of false statements in application 305 burden of proof to establish is on company 305 GIFT.— (See Assignment.) of life insurance. . . , 306 life policy may be made subject of 306 HEALTH. provision as to 306, 314 HEIRS.— (See Beneficiary, Husband and Wife.) when they have preference to beneficiary 307 meaning of insurance payable to 30T HUSBAND AND WIFE.— (See Beneficiary, Will.) husband cannot divest wife's interest by assignment.... 287 wife's policy cannot be subject to lien for husband's debt 290 insurance of husband by wife 296 wife's policy her separate property 307, 315 bequest of policy to wife by will 307 deat'i of wife before husband 308 loau to husband cannot be deducted from wife's policy . . 308 INFANT.— (See Children.) INSANITY.— (See Policy, Suicide.) as cause of death 297 in case of suicide 30S sufficient evidence of 308 INSURABLE INTEREST. acquired by applicant causing policy to- be issued In favor of another ^qq of mother-in-law 309 acquired by sister 309 between co-partners 309 of creditor on life of debtor 310 of uncle in life of nephew 310 of minor daughter on life of father 310 lack of voids policy ' 310 what is not wagering policy ."..'.' 310 in case of policy issued for benefit of college . . 310 INTEREST. on reserve fund 31-1 TOPICAL INDEX, 617- INTOXICATION. when it does not void policy 311 health must be permanently impaired to make condition valid 315 JUDGMENT. effect on persons not parties 317 LIMITATION. extended by laches of company 312 LOAN. valid condition 312 LOSS. penalty for failure to pay 312 damages for delav in paying 312 PARTNERSHIP. with agent, dissolution of 313 PAYMENT. — (See Evidence, Premium, Premium Note.) POLICY. — (See Contract. Forfeiture, AVaiver.) clause as to time of bringing suit 272 subject to administration on death of beneficiary 291 as collateral security 295 admission that it Is in force 303 when contract for surrender may not be voided 304 conditions for paid-up 313 when recovery cannot be had 313 construction of 314, 316 evidence of breach of condition 314 condition as to health 314 statement of physician in proofs of death 314 payable to widow not part of assets of estate 315 description of 315 condition as to intemperance 315 effect of incontestable clause 315 construction of New York laws 315 construction of "their children" 316 semi-tontine construed 316 delivery of 316 right to paid-up 316 application of proceeds of to debt 317 declaration of insured 317 wife's interest extinguished by her death 317 possession of is pr^umption of payment of premium .... 318 what is not delivery of 320 PREMirM. — (See Agent Forfeiture, Policy, Waiver.) deliver}- of policy before payment of 255 conditions a& to payment cannot be v/aived by agent. . 276 authority of agent to extend time of payment 278 agreement of agent in regard to paymert 278 effect of non-payment 291, 300, 301 payment of construed 293 refusal of company to accept relieves insured from fur- ther efforts 301 acceptance of waives forfeiture 302 recovery of for fraud 317 recoverable when policy has been void 318 action to recover when application is rejected 318 possession of policy is presumption of pajment 318 paid on forfeited policies in New York 319 • .6i8 TOPICAL INDEX security for premiums advanced 319' paid by beneficiary makes him the assured 319 evidence of payment of 319 paid by note , 319, 322 right to reduction of after first yeai'. 320 payment of vs^ith partnership money 320, 321 what is not payment of 320 paid by note 320 receiving property in payment 321 recovery of premium paid 321 may be recovered for fraud by agent, h • • 321 Teceipt of by agent 321 failure to pay releases company 322 tender of constructively vraived 322 liability of assignee for non-payment of 322 payment of with stolen money 322 right of agent to make discount 323 payment of need not be proven in judgment by default. . 323 waiver of condition for prompt payment 323 recoverable on void policy 323 notice of 324 liability of company for return of 324 paid-up policy on default of premium 324 condition as to payment waived by delivery 34.5 'PREMIUM NOTE. ' effect of default 319, 325 non-payment forfeits 320, 322, 325, 326 acceptance of binds company 822 objection must be made before maturity 325 when premium paid by note will not keep policy alive. . . 326 part of contract • 326 given by beneficiary 326 -PROCEEDS. applied to debts 317 rights of executors to receive 327 rights to by debtor for creditor. | 327 in case of transfer for security. 327 distribution of 328 who is entitled to 328 enforcement of agreement to divide 328 wife's right to . . ; '. . . .328,' 348 PROFITS. . right of insured ta 328 right of insured to withdraw ' 329 PROOFS OF LOSS. filled before commencement of action 272 , affidavits as evidence 1 299 waiver of _ ' 329 effect of irtatements as to cause of death 329 -REBATE. giving applicant one-half commission for a consideration is not a violation of law 327 parol agreement for 320 Pennsylvania law .'.'.".".'....... 330 TOPICAL INDEX. 619 RECEIVER. claims against ^30 RECOVERY. on speculative policy 331 possession of policy 331 RENEWAL.— (See Policy.) agfents' right to commission 293 when xwilicy is not renewed 331 reinstatement not a new contract 332 when action to renew will lie 332 REPRESENTATIONS. as to health 314 as to attendance by physician 332. 333 effect of misstatement in application 332 false statement as to relationship of beneficiary 333 effect of misrepresentations 333 when oral cannot be shown 334 RESCISSION. when there is none 334 SALE.— (.See Policy.) policy a proper subject of 334 SECURITIES. withdrawal of from state 335 STATfTES. In favor of wives and children 335 law making company liable for damages for failure to pay loss constitutional • 336 construction of statute as to good faith 336 SnCIDE. burden of proof on company 308 clause waived by incontestable clause 315 presumption against it in action 336 in case of insanity 336, 337, 340 opinions not evidence 337 not a breach of warranty 337 with intent to secure insurance to estate vitiates policy. . 337 where it is valid defense 338 contemplation of 338 presumption of not sufficient 338, 339 intent must be shown 339 declaration of intention 339 in case of incontestable policy 339 improper evidence of 339. 340 SURRENDER OF POLICY.— (See Policy.) receipt of beneficiary necessary 289 unauthorized 340. 341 by mistake 340 for policy of less amount 341 of paid-up policy 341 SURRENDER VALUE. acceptance of by guardian 341 when it cannot be recovered ,. 342 TAXATION. liability of insurance companies 342 of foreign companies 342 620 TOPICAL INDEX TRANSFER. of life insurance by executor 343 VALUE. equitable value of life policy , 343 WAIVER.— (See Agent, CaDiceLlation, Forfeiture, Policy, Pre- mium.) of conditions by agent 275 of forfeiture by acceptance of premium ; 302 of foi-feiture 302, 303 power of corporations in New York 303 validity of 344 implied waiver of limitation of suit , 344 of answers in application 344 of condition as to murder 344 of conditions as to payment of premium 345 of objections in pleading 345 WARRANTY.— (See Application, Policy, Suicide.) statement in application to be construed as 280 in application, part of contract 333, 346 suicide not a breach of , . . 337 against suicide 340 breach of as to use of intoxicants 345 validity of in application fidled by agent 346 false answer as to medical attendance breach of 346 when suit should be dismissed for breach of 347 effect of 347 breach of vitiates policy 347 WIFE'S POLICY.— (See Will.) wife entitled to one-half of proceeds in Texas 347 when life insurance goes to the wife in Tennessee 347 construed in Kentucky 348 rights and liabiOities of widow 348 WILL. devise of life insurance by 290 bequest of policy to wife 307 effect of on policy 34S ASSESSMENT LIFE INSURANCE. ACTION. limitation of time 349, 350 for reinstatement .' sjg cannot be brought until rules of society are exhausted . . 350 place of construed in Iowa 35O pleadings in _\ [ 359 on certificate 350 premature must be pleaded 35I parties to in Rhode Isiand 35I amendment of names of defendants 351 AFFIDAVIT. party may disprove making of 35I AGE. false statements as to 352 misrepresentations without intent to deceive ,. 352 incorrectly started by agent 355 AGENT. authority of in delivery of policy 352 TOPICAL INDEX. 621 of insurer or insured 353 compromise by 353 authority in deliverins policy 353 false statements bv waive breach of condation 357 AGREEMENT. construed 353 APPLICATION. statements as to previous illness 354 false statements In 354, 356 false statement as to business voids policy 355 when statements in are warranties 355 statements mad* in good faith will not avoid 355 misstatements as to age made by agent 355 where statements cannot be construed as warranties 355 false statements as to use of intoxicants 356 application and policy construed as one 356 breach of warranty in 356 waiver of objection to 356 estoppel to assert breach of condition 357 false statements 409 ASSESSMENTS.— (See Action, Forfeiture, Policy.) non-payment forfeits membership 349 when lasit day for payment falls ou Sunday 357 payment after default 357, 363, 366 notice of necessary 358, 361, 362, 363 in excess of that called for by contract 359, 362 requirement as to mailing notice 359, 364 who shall pay 359 mandamus to compel company to make 360 inability for 360, 367 effect of receiving after due 360, 366, 368 duty to make 360 effect of, after notice of forfeiture 361 Avhere non-payment does not forfeit 361 burden of proof as to insufficient 362 when notice of cannot forfeit 362 when forfeiture for non-payment is not waived 362 statements from a member that he does not intend to pay 363 payment by creditor 363 power to levy may be delegated to president 363 burden of proof as to 363 effect of written assurances from secretary 364 purpose must be stated 364 grades In 365 assessment plan defined 365 when extra are illegal 365 validity of 366 payment to wife of secretary prevents forfeiture 366 an Insurance association defined 366 payment of waived 367 acceptance after death of member 367 effect of retention of money for by association 367 winding up affairs 368 service of notice of .' 368 denial of liability for non-payment 385 622 TOPICAL INDEX. suspension for non-payment. ■ISO ASSIGNMENT. when without consent is of no effect 309 of policy to creditor • 369 may be made without consent of Insurer 369 for security 3G9 what is a ratification of , 3T0 validity of ^^*' rights of members in an assigned association 370 of order to pay money 370 distribution among members upon assignment 370 of certificate 371 to one having no insurable Interest 415 beneficiary;— (See Insurable Interest, Policy, Wife.) named in application controls 371 may be charged 371, 375 rules govern •, 372 has an assignable Interest 372 independent person as 372 designation of 372, 376, 377, 379 need not have an insurable interest 372 374 has no vested Interest in benefit certificate 373, 376, 378 death of before member 373 in case of insolvency 373, 376 infants as 374 when proof as to who are is not necessai-y 374 when beneficiary acquires vested interest 374 who are 375 when change of is not complete 375 right of Insured to change 375, 378, 379, 380 what constitutes a joint tenancy in the beneficiaries .... 376 change of must be according to provisions 377, 379 change of in Wisconsin 377 what is a valid change of '. 377, 379, 380 change without surrender 378, .^Sl what is not a valid change of 378, 380 death of member before change of is complete S7S has no vested interest until death of insured 379 construction of by-laws as to change of 380 change of as affected by amendment to by-laws 381, 382 illegal change of 381 when cannot be changed by will 381 Insurance fund not exempt from debt of Insured 382 where may sue without appealing to Supreme Lodge 3S2 effect of revoking designation of ,S84 named in certificate 395 BOLXTY. conflicting claims for 382 BTfRBEN OF PROOF. on insurer 383 BY-LAWS. not binding on one not a member 352 change of as to beneficiary 382 amendment of 383 members must be notified of amendments 383 TOPICAL INDEX. 623 subsequent by-la-svs 384 construction of 38-1 requirements of cannot be waived 384 effect of revoking designation of beneficiary 384 effect on certificate by amendment to 384, 386 CERTIFICATE.— (See Beneficiary, Fraternal Societies.) effect on by amendment to by-laws 384 action on 3S5 obligation to beneficiary named 3S5 payable to l^al heirs 385 construction of 386 payment of affected by change in by-laws 386 holders of matured are creditors 38C) payable "subject to will" 386 not enforceable in case of death before complete initia- tion 386 transfer of 387 who is entitled to proceeds of 387, 3S8 subject to subsequent conditions 3S7 as affected by insanity and suicide 387 proceeds of 387 cannot be changed without consent of member 388 validitv of 421 COXTRACT. what constitutes an insurance 388 ■ assumption of by Grand Lodge 388 not complete until dues are paid 394 CO-OPEKATIVE. under New York laws 389 DEATH. —(See Beneficiary, Policy,) right of society to decide its own death claims 389 presumption of in common disaster 390 binding force of decision of committee on claims 390 presumption of in disappeai-ance 390 refusal of physician to furnish death certificate 390 certificate of cause of .391 notice of to company 391 DEFArLT. — (See Assessments, Dues, Forfeiture.) computation of time of 391 waiver of 391 DELI^TERY. what constitutes 392 DDES.— (See Default, Forfeiture, Waiver.) tender of to secretary 392 construction of rules regarding 392 non-payment of and forfeiture 393, 419 effect of non-payment of advance 393 payment of after disbanding of lodge 394 effect of failure to give notice 394 must be paid before contract is binding 394 conditional acceptance of, no waiver 394 payment of a condition precedent 394 expulsion for non-payment of 394 EMBEZZLEMENT. liability of lodge for embezzlement of oflBcer 395 -624 TOPICAL INDEX. ENDOWMENT. fraternal associations cannot transact endowment busi- ness 395 wliat consititutes endowment fund 396 designation of right to ' . 396 special by mutual benefit societies 396 EVIDENCE. as to health 396 certificate as 397 proofs as 397 transactions with decedent as 397 EXPULSION. of member 376, 398 validity of laws as to 39S for engaging in forbidden occupation 398 remedy for 399 for non-payment of dues 399 rights of members regarding 399 mode of procedure of 399 FORFEITURE.— (See Certificate.) for non-payment of dues 393, 401 cannot be declared' until member has notice of unpaid assessments 358 not worlied by failure to pay assessments in excess of contract 359 when it cannot be declared 361 waived by retention of part of remittance 361 waived by accepting assessments after due 368 as to reinstatement 400 notice of required 400 for non-payment of assessments 40Q, 401 rules of courts as to 401 acceptance of past due assessments ■ 402 non-receipt of notice 402 changed conditions as to 402 by false statements 402 not brought about by liilllng of insured by insane bene- ficiary ." ■ 403 conditions may be waived 403 in mutual benefit societies 403 waiver of 403, 404 what is not a waiver 405 FOREIGN COMPANIES. service of process on 405 failure to comply with laws of State 406 liability of 406 in Ohio 406 regulation of 407 in Ontario 407 FRATERNAL SOCIETIES.— (See Beneficiary, Certificate,' Ex- pulsion.) appeal from fine 408 organization of in New Yorlt 408 submission of grievances 40g legal status of 408409 TOPICAL INDEX. 625 FRAUD. — ^See Application, Forfeiture.) iu stiitemeuts as to health 409 false representations as warranties 410 money must be repaid before rescinding settlement for fraud' 410 Substitution of beneficiary 410 FUNDS. presumption as to 410 FUNERAL BENEFIT. provision for funeral of members 411 when member is in arrears for dues 411 HEALTH. breach of health warranty 411 HEIRS. construction of in certificate 412 INJUNCTION. when it will not lie 412 INSOLYENCT.— (See Assessments.) death losses must be paid pro rata 413 action to dissolre 413 of relief association 413 title to reserve fund 414 transfer of assets to general receiver 414 distribution of assets 414 INSURABLE INTEREST. of beneficiary not necessary 372 certificate may be assigned to person having none 415 unwritten contract 415 when beneficiarv has no 41.") INSURANCi:. COMPANY. what constitutes 41G INTOXICATION. defending suit on grounds of 410 LIABILITY. for larger sum than realized by one assessment 410 of benevolent association to execution : . . . 417 for death by suicide 417 for death before issuance of policy 417 of members 417 LIEN. right to on fimd deposited with State treasurer 418 MEDICAL DIRECTOR. powers of 41S MEMBERS. rights of in dissolution 419 rights to change class 419 in arrears for dues 419 effeit of notice of withdrawal 420 protciteil by equity 420 right of appeal 420 su^ljension for non-payment of assessments 420 conditions as to good standing 420 atrref ment to receive insurance mouey 421 validity of certificate 421 OCCITATION. effect of changing after effecting insurance 421 626 TOPICAL INDEX. POLICY.— (See Certificate.) not made binding by delivery after death 353 voided by false statements 355 what constitutes in Pennsylvania 422 terms binding 422 conditions as to paid-up 422 construction of conditions 423 conditions as to payment 423 indisputable .' 423 not a specialty 423 Massachusetts pollqy construed in Georgia 424 interpretation of mutual benefit 424 changing terms of 424 PREMIUMS.— (See Assessments.) when they cannot be recovered 415 claims of unpaid must be made prior to death 424 payment by mail 425 admission of insured adimissible against beneficiary 425 when insurer is estopped from claiming non-payment 425 right of reinstatement after default 425 conditions of acceptance of overdue 426 PROCEEDS. liability of for members' debts 426 dls-position of 426 PROOFS OF DEATH. what is not 427 right to demand further 427 governed by constitution and by-laws 427 effect of waiver 428 not conclusive , 428 waiver of *. 428 RECEIVER. juvlsdiotion of court of equity 42!) appointment by application of stockholder 4-'i> REINSTATEMENT. of member lapsed for back dues 429, 430 as affected by misrepresentations 430 cannot be effected after death 431 by payment of back assessments ■. 430 remedy for 43I of forfeited ' certificate 431 REINSURANCE. construotion of 43I REJECTIONS. prior rejection of insured 430 RELATIONSHIP. construction of terms of 432 "related to" construed 4Q'> RELIEF. gift for 43.. REPRESENTATION. policy voided by false 3,54 as to use of intoxicants 350 burden of proof as to false 383 false as warranties 41Q TOPICAL INDEX. 627 knowledge of false estops company 433 liability of company for fraudulent 433 false in appiication 433 effect of misrepresentations 434 RESERVE FUND. distribution of on dissolution 434. 435 SICK BENEFITS. include lunacy 435 amendment to action for 436 to "absent brothers" 436 who Is entitled to 436 SUICIDE. where evidence is conflicting 375 when insane 38T incontestable clause applied to 436, 437 presumption of 437 forfeits policy 437: stipuiation against 437 SUSPENSION.— (See Assessments. Members.) of subordinate lodge 437' equitable rights of members favored bv courts 438. STATUTES. benevolent societies in Pennsylvania 438' WAIVER. — (See Application, Assessments, Beneficiary, By-laws, Default, Forfeiture, Proofs of Death.) of objection to application 356 of conditions of payment 367 of default 367, 391 of payment of assessment 367 of right to change beneficiary 375 of by-laws 384= who may waive conditio!® 439' of policy condition by agent 439' of requirements a question for the jury 439' of conditions of certificate 440' right to 440- conditions waived by collection of assessments 440 WARRANTY.— (See Application.) statements in application are 355 breach of 440 breach of must be specially pleaded 441 ACCIDENT INSURANCE. ACTION. — (See Forfeiture, Policy, Premium, Proofs of Death.) limitation of 441, 467 policy cannot oust courts of jurisdiction 441 after proof .s of death 442 for dismissal of agent 442 defense of brought by employes 472 AGENT. scope of 442 acting for rival company 44.S knowledge of imputed to principal 44:! ■628 TOPICAL INREX. APPLICATION.^(See Agent, Policy, Represeutation.) misrepresentations in 443 part of contract 443 ARBITRATION. validity of agreement 444 waiver of 444 effect of clause in policy 444 ASSESSMENTS. allegation of liability on 444 in mutual companies '. 445 failure to make 44"i amount must be stated 445 beneficiary need not prove that assessment was levied . . . 445 prior to admission of member 445 effect of failure to pay 446, 460 ASPHYIATION. death by- ■..:::.■;.•..■. ...■.'.•.•.•.•.-.- :;:.•..•.•.■.■.•...; 446 AUTOPSY. right of company to make 440 BENEFICIARY.— fSee Insurable Interest, Policy.) parol evidence as to 447 rights of 447 BURDEN OF PROOF.— (See Proofs of Death.) accident must be shown as sole cause of deatli 447 where it is on insurer 447 as to a negative 448 where it is on beneficiary 448 ■CARRIER'S INDEMNITY. liability fixed on happening of accident 448 CLASSIFICATION. improper no bar to recovery 449 company bound by 449 CONTRACT.— (See Application, Policy.) when cannot be reformed 449 when takes efCect 450 must be construed favorably to insured '. 450 each renewal a separate 45X employes' insurance construed 4.51 is new each year 1 529 DEATH. — (See Disease, Poisoning.) from accident combined with disease 451 ' opinions as to cause of 452 from accidental poisoning 450 from murder 452 by blood poisoning 4-^,2 expert testimony as to cause 450 notice of 453, from disease following injury . .4.-)H 454 by mob an accident /. 454 by freezing 4.54 by mutual combat , 454 from bullet 458 from inhaling gas 401 while violating law / 4-0 TOPICAL INDEX 629, DEFAULT. lu payment of accident insurance 455 DISABILITY. must be immediate 455 permanent 456 DISEASE.— iSee Death.) following injury 453, 454 injm-ies caused by 456 EMPLOYMEXT.— ^See Classification.) change of . 457 EXAMINATION. of body by physician of companv 457 EXPOSLKE. yoduntary ta danger 457 EXTEKXAL.— (See Death, Disease.) injuries as cause of death . , 453 must be proven 458 death from bullet 45S must be visible 4.j8 injury inflicted by over exertion 4.59 construed 4.59' EVIDENCE. what is sufficient 454 admissibility of circ;il;irs issued by cdmii.-iny 459 parol admissible 470 FOREIGN COMPANY. service of process v.n 460 in South Carolina 40i > FORFEITFRE.— iSee Assessment, Polic.-.M not favored by law 4(50 for non-payment of nssosments 400 by non-iiayment nf onlers 4(>1 GAS. — (See Death.') death liv inhaling 461 FUNDS. title to deposited 462 HA.ZARD.— (See Classitication.) increased limits recovery 462 INCORPORATION. of casualty company 46S INDEMNITY. recovery of weekly 463 INSURABLE INTEREST. need not always be shown 464 INTENTION.AL INJURIES. do not exempt from liability from other causes 464 defined 464 INTOXICATION. as a defense 464 insufficient evidence 471 LIABILITY. violaitins the law 465 when it ceases 465 imder weelily indemnity clavise only 465 for lijss of foot 466 630 TOPICAL INDEX. denial of not a waiver '**)^ of master for servant's negligence 466 for diversion of trust funds 466 LIMITATION.— '(See Action.) of time of action in Texas 467 of time of action 467 when it begins to run 467 NEGLIGENCE. oif another 46S of insured bars recovery 468 NOTICE. of injury 46S, 469 of death 472 waiver of 484 OCCUPATION.— (See Classification.) rislis incident to may be shown 469 TAKOL EVIDENCE. admissibility of 470 POISON.— (See Deaith.) death for involuntary 452, 470 company liable for death by 470 PROOFS.— (See Action, Death, Suicide.) required In death from suicide , 471 POLICY.— (See Action, Classification, Death, Forfeiture, Insur- able Interest, Intoxication, Notice, Premium.) conditions as to walliing on railroad 471, 474, 476, 478 insurer must prove breach of conditions 471 loss of section hand construed 472 employer's liability 472, 476 conditions as to notice 472 conditions as to violating law 473, 475 whole contract must be taken into consideration 473 when it takes effect 473 when condition is not violated 473 conditions as to leaving premium in hands of paymaster. 474, 475 must not be construed to defeat intentions of both parties 474 reasonable compliance with terms of 474 scope of 475 two in one company 476 notice under employer's liability 477 "violent" and "external" construed 477 performance of conditions 477 loss of hand construed 477 REPRESENTATION. as to income 478 REINSTATEMENT. complete by mailing check 478 SHOCK. caused by fright 479 STATUTE. construction of 479 SUICIDE.— (See Death, Policy.) question of fact not law 480 question for jury 480 TOPICAL INDEX 631 when insane 480 TIME. Insurance against loss of 482 in which suit may be brought 482 VOLUNTARY EXPOSURE. defined 482, 4S3 stepping on railroad track 483 bicycle riding 483 jumping from moving train 483 WAIVER.— (See Notice, Policy, Proofs of Death.) of immediate notice of death 484 of proofs of death 484 of conditions 484 MARINE INSURANCE. ABANDONMENT.— (See Average.) who may make 485 waiver of right to object to sufiicieney of form 485 underwriter's right to freight 485 right of insured to 4S6 when master is justified in 486 not necessary to prove 486 waiver of 486 ACTION. — (See Policy.; sufficiency of statement 487 ADVANCES. may be deducted from freight collected 487 insurance on 488 AGENT. authority of broker 488 admissibility of statements of 4S8 APPLICATION.— (See PoUcy.) representation in 489 AVERAGE.— (See Abandonment.) affected by abnormal use of ship 480. 490 construction of 489 deduction in lieu of 490 where cargo is left on board for benefit of vessel 490 as affected by "foreign statement" clause 491 FARKATRT. master may be guHty of 482 CANCELLATION.— (See Charter. Contract, Policy.) of charter 492 mistake of fact in 493 CARGO. not on board at time Off stranding 493 in separate packages 494 proof that it was shipped 494 CHARTER.— (See Cancellation.) cancellation of 492 for lump sum freight 4&4 insurance of "profit on" 49.i want of repairs 495 632 TOPICAL INDEX. COMPROMISE, by payment of half the liability 495 CONTRACT. to procure insurance not a maritime contract 496 total or partial loss 496 DAMAGE.— (See Loss.) what constitutes notice of 49T by sinking vessel to extinguish fire 49T rent as an item of 497 DEMURRER. defective ■' 498 DESTINATION. what constitutes final 498 FOREIGN COMPANY. states may regulate 499 FRAUD. false representations of anterior 499 insurance against fraud of the master 499 HARBOR. defined • 500 INSURABLE INTEREST. inheres in contract to run vessel 500 INSTRUCTIONS. under maritime loan 500 effect of erroneous 501 LIABILITY. for contract in violation of terms 501 sue and labor clause 501 on special verdict 502 for total loss 502 for loss under change of voyage 503 LIEN. no maritime for marine insurance 502 LOSS.— (See Liability.) when insurer cannot defend against 503 under change of voyage 503 total loss of part 504 counterclaim under 504 from scuttling a boat to extinguish fire 504 method of ascertaining partiad ^ . . 504 of vessel by unskillful management 504 "by perils of river" construed 505 MORTGAGOR. insurance by 505 NEGLIGENCE. construed 505 duty of insured 506 ordinary as affecting insurance 506 stranding by negligence of master 506 POLICY.— (See Reinsurance.) amount recoverable 507 validity where amount is uncertain 507 premium notes for 507 construction of . .508 reinsurance indorse'ment .' ,508 TOPICAL INDEX, 633. prohibitive clause 509 throwing cargo into water by careening of boat 509 "ice-bound," "open water" 509 "honour" policies 509 collision clause 510 on advances 510 RBCOYERT. ■from negligent tug 511 part owner mav bring action for 511 REIXSrEANCE. liability of reinsurer 511 collision clause 512 policy not in accordanee with slip 512 REPAIRS. loss of time from want of 495 ito old vessel 51U when net cost of exceeds one-half value of vessel 517 REPK 1.SEXTATIOX. misrepresentation must be made clear 513 with intent to deceive 513 RISK. commencement of 513 when it attaches 513 of vessel in i)ort of distress 514 SEAWORTHINESS. need not be pleaded 514 matter of warranty by insured 514 affected by lack of coal 514 defined 515 warranty as to 515 STRAXDIXG. salvage loss 515 to save vessel 516 SrBROGATIOX\ by paying loss to shipper 516 in case of several companies 516 liability for life salvage 516 TAXATIOX. of premiums 517 TITLE. presumption of 517 TOTAL LOSS.— (See Repairs, Seaworthiness.') constructive total loss construed 517 insurance against total loss only 518 destruction of ship after she had become a constructive total loss 518 TOWAGE. warranties under towage policy 518 USAGE. "at and from" a port construed 519 local usage 519 VALUED POLICY. value of ship greater than that stated in policy 520 construed 520 •€34 TOPICAL INDEX. WAIVER. of conditions 520 WARRANTY. breach of 521 as to prohibited! waters 521 MISCELLANEOUS. ACTION. must be brought in name of owner of property destroyed. 522 when answer is inconsistent with denial 522 time of bringing In Iowa 522 for the recovery of insurance paid 522 denial of liability 523 pendency of other 523 signature of employe necessary Ini fidelity insurance 523 AGENT. — (See Application, Representations.) scope of authority 523, 571 may sue for premiums 524 ratification of acts of 524 doing business without license 524 fraudulent acts of 524 when he is bound to Insure 524 managing agent defined 525 contract of employment by 525 authority of regulated by insurance commissioners' cer- tificate 525 compensation not essential to contract 525 general agent defined 526 aetioru aigainst in Pennsyavania 526 when company is not bound by representation of 526 not a broker 559 board of directors acting as 582 APPLICATION. effect of false answers in by agent 523 "attached to policy construed 526 effect of answers in 527 APPRAISEMENT. action for 527 ARTICLES. effect of invalidity of provision in 527 .ASSESSMENTS. action to recover 528 effect of surrender when assessment is due 528 must be levied before statute of limitations begins to run. 562 amount of in insolvent company rests with court 565 suspension for non-payment 565 -ASSIGNMENT.— (See Mortgage, Policy.) validity of by president 52S action by assignee 528 validity of for creditors 529 to secure debt ; . . . . 529 TO trustees for creditors 529 of mortgage to protect policy-holder 529 of insurance policy as affected by previous mortgage 530 TOPICAL INDEX 635 ATTACHMENT. insurance by debtor aiter 530 BOND. interpiretatlon of fidelity bond 530 action for breach r>f 530 BY-LAWS. not ■waived by acceptance of arrearages 531 giving direction of affairs to certain members 531 CAPITAL. liability for unpaid 531 taxation of 532 less than statutory requirements bar recovery 546 first to be taxed in Pennsylvania 582 taxable in Alabama 583 <:harter. liability of company on repeal 532 suit for annulment of 532 CARRIER. may insure against loss of goods carried 533 CLAIM. acceptance of benefit, a release of 533 CONTEMPT. violation of void order will not toastitute 533 CONTRACT. liberty of violated by legislation 534 construction of as to title insurance 534 construed 534 of bant to procure insurance 535 not annulled by death of member of firm 535 of credit insurance constnied by same rules as govern others -"'So as an insurance company excludes banking in Tennessee. 535 when it is complete 536 notice of termination of 557 DEBTS. policy security for outlawed 536 partnership credits cannot be applied to personal 536 DELITERT. what is not dellvei-y of policy 536 DEPOSITS. payment by in insolvent bank 537 in New York 537, 538 DIRECTORS. powers of in mutual companies 538, 564 EMBEZZLEMENT. of insurance funds 538 EMPLOYER. indemnity of against loss by default of employe 539 contract releasing 539 contract to indemnify employer executed at request of employe 539 EXAMINATION. payment of expenses of deputy 540 EXEJIPTION. insurance money exempt in Mississippi 540 636 TOPICAL INDEX. of benefit funds from creditors ; ^40 of investment of company from taxation in New Yorli. . . 582 EXPI.OSION. consti-uction of policj' against 541 FEES. allowance of attorney's 541 in Montana 546 FOREIGN COMPANY. contract with unauthorized 534 right to do business in Illinois 542 right to sue in Arliansas 542 service on In Kansas 542 service of process on 542, 543 service of pirocess on In New Yorli 543 must have certificate of authority 543 premium notes given before admission are void 544 service of i>rocess on in Cajlif orni;i 544 penalty for acting as agent for 544 service of process on in Indiana 544 right o£ to endoin one of similar name by another 545 governed by laws of State where policy is issued 045 taxation of in Louisiana 545 may be ousted from Ohio 545 appointment of attorney in Nev/- York .546 requirements as to capital iu Iowa 546 liability of to garnishment 546 collection of fees against in llontana 546 insurance in in Louisiana 546 FORFEITURE.— (See Policy, Waiver.) waiver of right to declare 547 removal of property does not work forfeiture 547 FRAUD. — (See Representations.) .when member of mutual company cannot plead 547 indictment and evidence in case of fraudulent claim .... 548 what ifalse representations will not relieve members of mutuals 548 GARNISHMENT. after sending check to agent in payment of loss 548 company may hold sufficient to indemnify iitself against. 548 for insurance on exempt property 549 proceedings of in Iowa 549 GIFT. in view of death : 549 INCUMBRANCE.— (See Mortgage.) insurer not bound to inquire as to 550 INJUNCTION. against contract for personal services 550 INSOLVENCY. does not release members of mutuals 551 licensing of insolvent compan.v by commissioner 551 agreement under insolvency proceedings 551 judgment acquired before, does not give preference 555 INSURABLE INTEREST. attaching creditor has 530 undisclosed not secured by policy 552^ TOPICAL INDEX. 637 secured bj- consummated agreement 552 of stockholder in corporation property 552 INSURANCE. on goods by carrier 552 companr organized for cannot do banliing business 555 INSURANCE COMMISSIONER. liability of for insolvent company 551 discretion of 553 INTii-KEST. on escro^v funds 553 right to on securities dejiosited 554 JURISDICTION. of equity to comi)el accounting 552 over eoi-porations of other States 554 conflicting betT\'een State and Federal courts 554 of Fedei"al courts 554 JUDGMENT CREDITOR. rights of 555 LIABILITY. discharge of under agreement 551 denial of waives rights 555 limiting liability of corporation powers 555 after vsithdrawal from association 556 of railroads for negligence by clause in lease 556 of company for intentional destruction of stocli 556 of life tenants for insurance 557 notice to company of termination of bondsmen's liability. 557 of executor for proceeds of sale 557 of insurance company discharged by acceptance of draft. 557 for destruction by lightning and wind 558 of surety on employe's bond 558 rights of company absolved from 558 reorganization not liable for liabllitifes of predecessor .... 558 bills of lading measure of liability of insurance company to railroad 558 for failure to procure insurance on pi-opertv of another. . 559 LIBEL. of insurance oflicer ' 559 LICENSE. agent not subject to broker's 559 doing business without 559 regulation by State of tax 560 LIENS. insurance against liens on realty 560 LIMITATION. when statute of begins to run 562 LOSS. meaning of In credit insurance 562 notice required in fidelity insurance 563 MORTGAGE. of assigned ma.v be foreclosed ."2!l rights of mortgagee 563 action to foreclose 564 failure to establish rights under does not interfere with collection of note 564 638 TOPICAL INDEX. MUTUAL.— '(See Charter.) powers of members of 564 wittding up of 564 vojuntary ^association for 565 assessments in investment company 565 assessments in insolvent company 565 limiltation of suspensiop of members 565 NAME. value of company 565 NEGLIGENCE. railroads cannot escape liability for 566 NO XXV. bona fide bolder of 566 action on cannot be defended by alleging non-compliance with law 567 nonconformity to parol agreement as a defense to pay- ment of 56T payment cannot be enforced where policy is not what was ordered 56S> may be collected independently of mortgage 56& PLEADING. amendment to after verdict 567 POLICY. voidable only at election of company .567 issued by interested agent is void 568 insurance under open policy 568 fraudulent exchange of 568 right to examine and return 569 effect of oral modification of 560 of tiUe insurance construed 569 voided by untrue answers 570 loss under Uve stock 570 recovering under title insurance policy 570 as security 570 death of aixplicant before issuance of 570 conditions in as to change of title 571 PREMIUMS.— (See Note, Policy.) notes for taken before admission of company 544 when party paying is not entitled to benefit 571 agent's authority to waive payment of 571 agent not liable for return of 572 rights of creditors in fraudulent payment of premiums . . . 572 enforcement of promise to pay acts as waiver 567 paid by use oif corporate funds 571 PROCEEDS. liability of executor for proceeds of sale 557 where they are individual assets ,=i7'> PROOFS OF LOSS. are mercantile documents under bond of suratyshiD' STi PROXIMATE CAUSE. application of doctrine of r-r-y RECEIVER. may maintain action to recover an assessment .f>74 RECOVERY. of stock bonus voluntarily paid 574 TOPICAL INDEX 639, by bailee 574 REFEREE. agreement as to referee decision void 575 REFORMATION. of insurance i)olicy 575 REMOVAL OF SUIT. right of - 575^ REPRESENTATIONS. condition as to 567 when company is not bound bv representations of agent. 576 RIGHT OF COMPANY. what bars 576 SALE. of an insurance agency 577 SECURITY. life policy security for indebtedness 577 SERVICE OF PROCESS. admission of makes valid 578 ttX>on insurance companies in Indiana 578 upon insurance company in Kentucky 578 upon foreign corporation in Kentucky 579 upon foreign corporation in New York 579 SICKNESS. notice of in live stock insurance 579 STATUTES. for incorporation of companies in New York 579 retaliatory in Maryland 580 construed 5S0 in the regulation of insurance 580 SUING. restrictions as to against public policy 580- SURETY. of employe 581 TAXATION. of foreign corporations in Louisiana .545- municipal 581 uniformity of 581 exemption of investments of insurance company 582 of insurance companies 582 in Louisiana 582 corporation taxation in Pennsylvania 582 of corporate stocks 583 of title insurance companies 5S;5 payment of privilege tax 3i3 TITLE. rights of insured under title insurance ."iSo change of construed 571 delivery necessary to compJete transfer of 549 TORNADO. conditions in policy 584 TRUST FUND. liable for unpaid taxes in insolvent company 584 TRI-STEE. revival of action against 585 security by foreign 585 640 TOPICAL INDEX. WAIVER. of rights by company , 585 of Limitation of time for suit , 585 of right of forfeiture 586 of conditions of policy 586 Vv'ARRANTY. whertf policy contains no 586 where statements aii-e not 586 wliat is not a breach of 587 CASES DIGESTED. Aco't Ins Co. of N A. vs. Young 453 A. O. XJ. W. vs. KoWer S7T trt»S? S5""'-M„)?K ^^f^ -^--y.: ^ Artherholt vs. Susquehanna Mut. Adams vs. Northwestern End't Hire 196 A ^^ ^^n'S. ^°---i^ ?5S '*-'''l"l ' et "al- ' vs.' citizens ' ins.' Co .' .' 237 aS^= \^- °!?™^'^ ?lr W- ^^ -*^ "^s- Star Fire Ins. Co 161 Aetna Ins Co. vs. Attorney-Gten. Armstrong vs. Agricultural Ins or Ontario 1S3 Co 146 280 Aetna Ins. Co. vs. Holcomb 148 Armstrong vs. Warreii.' .■.".■.■.".■ .■'...! 378 Aetna Ins. Co. vs. Norman 270 Armstrone vs "Westprn Man TiTut Aetna Ins. Co. vs. New York City 582 Ins Co western Man. Mut. ■*-of"o,.iS^,.?i2- ^'- ^^°P'^'^ ^^'}5 ,„ Arnfeld W.' Gukrdian' Ass.'co.:;:; 68 of Greenville.... 87, 139, 110 Avery vs. N. Y. Mut. Ins. Co SLi tt^f T°?- ?°- '^^- I^°senburg 68 Bacon vs. U. S. Mut. Acct. Assn.. 458 Aetna Life Ins. Co. vs. Demmg... 316 Backdall vs A O U W 369 ^tl^f ^If® t"|- ?.°- "'^^ S'"'"^^---- ^ Bailey vs. Ocean Marine ins! Co::." 489 Aetna Life Ins. Co. vs. Hanna 302 Bain vs. Aetna Life Ins. Co 329 Aetna Life Ins. Co. vs. Holcomb.. 5»0 Baker vs. German Ins. Co 163 Agricultural Ins. Co. vs. Hamilton 215 Baker vs. Westchester Ins. Co 78 Agricultural Ins. Co. vs. Morrow. 148 Ball vs. Northwestern Mut Acct Agricultural Ins. Co. vs. Potts.... lOU Assn •''""^^^'^®™ ^^^- ^<=°'^- ^ Ahlberg vs^ German Ins. Co K8 Ballentyne vs."itoikinnow;;:::;::: 514 Aikshaw The ............ BU Bait, and Ohio R. R. vs. Cannon.. 413 Alamo Ins. Co. vs. Lancaster » Baldwin vs. Hosmer 414 Alamo Ins. Co. vs. Schmitt ^ Bancroft vs. Home Ben. Soc....354, 409 Albany Ins Co. vs. McAllister 127 Bangor Sav. Bank vs. Niagara Alder vs. StofEel.. 377 p-jre Ins. Co 50 Alexander vs. Parker 372 Banks vs. Cramer 559 Algase vs. Horse Owners' Ind'y Bankers & Mer. Mut. Life Assn Assn 528 vs. Stapp .' 425 Alger vs. Met Life , 282 Bankers' Life vs. Lisco 334, 3a Allen vs. German Am. Ins. Co 174 Bard vs. Penn. Mut. life Ins. Co. 170 Allen vs. Milwaukee Mech. Ins. Barnard vs. iB^ber 177 Co 117 Barley vs. Aetna Ins. Co 65 Allen vs. St. Lawrence Co. Ins. Barnard vs. People's Fire Ins. Co. 251 Co 40 Barnes vs. Dominion Grange Mut. AUemania Ins. Co. vs. Peck 134 78, 79 Alps, The 485 Barnes vs. Heckla Ins. Co 219 Alsace. Loralne 493 Barney Dumping Boat Co. vs. Ni- Allibone vs. Fidelity and Cas. Co.. 4OT agara Ins. Co 501 Am. Acct. Ins. Co. vs. Carson Barth vs. Am. Ins. Co 217 4S7, 458, 464 CBartlett vs. Goodrich 573 Am. Acc't Ins. Co. vs. Fidler's Bates vs. United Life Assn 423 Admrs 452, 4S4 Baumgart vs. Woodmen of Am... 433 Am. Acc't Ins. Co. vs. Norment.. 472 Baumgartel vs. Prov. Wash. Ins. Am. Acc't Ins. Co. vs. Rlegart.... 474 Co ffig Am. Cas. Ins. Co. vs. Pyler -5K Baumiller vs. Workingmen's Co- Am. Cent. Ins. Co. vs. Cowan 143 Operative Ins. Co Kl Am. Cent. Ins. Co. vs. Hagerty 70 Bawden vs. Ixm., Edln & Glas- Am. Cent. Ins. Co. vs. Heaverln.. 262 gow Assurance Co.... 443 Am. Cent. Ins. Co. vs. Hagerty 70 Baxter vs. Brooklyn Life Ins. Co. 301 Am. Credit Ins. Co. vs. Cassard... 535 Bay of Naples 71 Am Fmn TJahilitv In^! Cn v;h"rch Mut. Ins. Oo. vs. Cheek.... 228 Bullman vs. N. B. & Mer. Ins. Co. ^?Jir°" °^ ^'- George vs. Sun Fire j^Y 53 Omce 172 Burke vs. Niagara' 'Fire 'ins.' Co. . . ' 170 citi^pn? Tn«' n?' ^^- ^''^^^ ^^* Burke vs. Prudential Ins. Co 310 c tilenl Tnl' n' ^!- S^rader... 201 Burlingame vs. Goodspeed 506 tiero '™' fSSnS^S'^'cg^^?^: ^ CUizej^s^CoVofEv^^viilevs. Sii F-g^'^'l— " - g&r^%M^?^c^°' i Burlington Ins. Co. vs. Lowery. 150, 206 Clark vs. Met. Life Ins Co"?".. . I". 331 240 117 INDEX OF CASES DIGESTED. 643 Clark vs. Svea Ins. Co 95 Cottrell vs. Brannin 270 Clarke vs. Swartzenberg 368,387 Courtney vs. U. S. Mas. Ben. Clarkson vs. Western Ass' ce. Co... 192 Assn 363 Clemens vs. Livingston Co. Mut. Covenant Hut. Ben. vs. Root 365 Fire Ins. Co 537 Cowan vs. Lon. Assurance Cor 99 Coats vs. West Coast P. & M. Ins. Cram vs. EquitaiWe Acct. Assn 445 Co 24 Cramer vs. Mas. Life Assn of Coats vs. Worthy 299,540 Western N. Y 420 Cobb's Adim'rrs. vs. Wolf 299 Crescent Ins. Co. vs. Vicksburg 509 Cobb vs. Covenant Mut. Ben 440 Criswell vs. Whitney 284 Cobb vs. Covenant Mut. Life Ins. Crittenden vs. Springfield F. & il Co 346 Ins. Co 141 Cobb vs. Keith 69 Croak vs. High Court I. O. F 398 Oobb vs. Preferred Mut. Acct. Croft vs. Hanover Fire Ins. Co 179 Assn ". . . 459 Crow vs. Greenwich Fire Ins. Co. . 173 Coburn vs. Life. Ind'y. & Invest. Cullin ^■s. Kts. of the Maccajbees.. 385 Co 425 Curnaw vs. Phoenix Ins. Co 118 Codiraji Seed Oil Co. vs. Phenix Curry vs. Sun Fire Office 9L Ins. Co 218 Cushman vs. Family Fund Soc 369 Cogswell vs. Church 521 Cushman vs. N. B. Fire Ins. Co.. 24 Cohen vs. Clements 127 Cyrenius vs. Mut. Life Ins. Co 314 Coker vs. Atlas Acct. Ins. Co «0 Dade vs. Aetna Ins. Co 20i Colby vs. Parkersburg Ins. Co.... 151 Dailey vs. Preferred Mas. Mut. Coles vs. Jefferson Ins. Co 32 Accident Assn 444 Coleman vs. Phoenix Ins. Oo 163 Dakin vs. Oxley 494 Collins vs. Bankers' Acct. Ins. Co. 445 Dale vs. Cont. Ins. Cq^ 136 Collins vs. Lon. Assurance Co 107 Daniher vs. A. O. U. W 388 Collins vs. Mer. & Bankers' Mut. Daughty vs. Kts. of Pythias 384 Ins. Co 110 David vs. Oakland Home Ins. Co. . 266 Coml. Fire Ins. Co. vs. Cap. City Davis vs. Aetna Ins. Co 76 Ins. Co 114 DaWs vs. Anchor Mut. Fire Ins. Coml. Fire Ins. Co. vs. Friedlander 56 Co 67_ xg^ Coml. Fire Ins. Co. vs. Morris.... 80 Davis vs. Guardian Assur. Co 48 Coml. Trav. Assn. vs. Newkirk 382 Davis vs. Phoenix Ins. Co lu Coml. Union Ins. Co. vs. Mayer 243 Davis vs. Shearer 218 Commonwealth Ins. Co. vs. An- Davis vs. Western Home Ins. Co.. 108 drews 58 Davis Shoe Co. vs. Kittaning Ins. Commonwealth vs. Keystone Ben. „*-^° 22 Assn 439 Dearborn vs. A. S. Holmes Refln- Coanmonwealth -1-^. Morning Star.. 330 ing Co 4g5. Commonwealth vs. Prov. Life De Freece vs. Nat. Life Ins. Co.. .. 323 Assn 363 I^e Grote vs. De Grote 382 Commonwealth vs. Reinoehl 5M De Jemette vs. Fidelity & Cas. Co 451 Commonwealth vs. Suffolk Trust De la Cuesta vs. Ins. Co. of N. A. . 574 Co 528 De Loy vs. Travelers' Ins. Co 482 Commonwealth vs. Vroomaji 229 De Van vs. Com. Trav. Mut. Acct. Conboy vs. Ry. Officials & Emp. ^-*-?f" 480 Ace. Assn 473. 483 De W itt vs. Agr'l. Ins Co 144, 172 Confederation Life Assn. vs. City Deitz vs. Prov. Wash. Ins. Co 210 of Toronto 311 Dening vs. Mer. Cotton Press & Conn. Fire Ins. Co. vs. Hamilton Storage Co 129 47, 209 Dennis vs. Mass. Ben. Life Assn.. 384 Conn. Mut. Life Ins. Co. vs. Akens 336 Dennis vs. Un. Mut. Life 308 Conn. Mut. Life Ins. Co. vs. Mc- Dermain vs. Home Mut. Ins. Co... 190 Whlrter 272, 336 Det. Man. Mut. Fire Ins. Co. vs. Conselvea vs. A. L. H 374 Jiemll j5g Considine vs. Met. Life Ins. Co.... 282 Devms vs. Royal Templars of Cont. Ins. Co. vs. Aetna Ins. Co.. 508 .^^.^emp 3gg Oont. Ins. Co. vs. Board of Fire Diamond Plate Glass Co. vs. Minn. Underwriteo-s of Pacific 74 ' Mut. Fire 67a Cont. Ins. Co. vs. Chase 103,181, 206 Di Messiah vs. Gem 382 Cont. Ins. Co. vs. Chew. .39, 100, 189, 208 Dick vs. Equitable F. & M. Ins. Oont. Ins. Co. vs. H. M. Loud & Co. 34, joo Sons 231 Dickerman vs. Quincy Mut Fire Cont. Ins Co. vs. Ins. Co. of Pa.. 90 Ins. Co 41 Cont. Ins. Co. va Wilson 54 Dickerman vs. Ver. Mut. Fire. Ins. COnwav vs. Phoenix Mut. Life Co 21 Ins. Co 276 Dickinson vs. A. O. U. W of Pa. .. . 385 Cook vs. Standard Life & Acct. DIetz vs. Metropolitan Life 273 Ins. Co 465 Dlffenbaugh vs. Union Fire Ins. Cooledge vs. Cont. Ins. Co 186 Co 241 Cooper vs. Met. Life Ins. Co 288 Dilling vs. Draemel 129 Cooper vs. V. S. .Mut. Acct. Assn. 467 Dodds vs. A. O. U. ^' 374 CopemlCTis, The 513 Dolen vs. Met. Life Ins. Co 285 Corbett vs. Spring Garden Ins. Co. 243 DollofE vs. Phoenix Ins. Co 101 Corey vs. Sherman 159, 531, 548, '51 Dom. Grange Mut. Ins. Co. vs. Coryeon vs. Prov. Wash. Ins. Co.. 212 Bradt 83 Cottingham vs. Fireman's Fund Donaldson vs. Sun Mut. Ins. Co... 63 Ins Co 2';2 Donnell vs. Donnell 65,530 «4^ INDEX OF CASES DIGESTED. Donogh vs. Farmers' Fire Ins. Co. 175 Cent. Ins Co ^. .^_^......30, 37 Dougherty vs. Greenwich Ins. Co. 218 Emp. liability Cor. vs. Emp. L.ia- Dougherty vs. Met. Life Ins. Co.. tuity Co. of TJ. ® 545 312, 318, 344 Emp. Liability Cor. vs. Rochelle Douglass vs. Phenix Ins. Co 122 457, 466 Dover Glass Works vs. Am. Fire EJnglish & Am. Shipping Co. vs. T„^ Co 185 Ind'y Moit. Mar. Ins. Co 489, 490 ■r>„„;i'iJV-l,="T oi,"TTi'a"r'o 104 161 229 Enos vs. iSt. Paul F. & M. Ins. Co 212 Dow ng vs. Lan Ins CO 1U4, l«fl, ^^ Bnright vs. aVEontauk Fire Ins. Co. 53 Dowllngvs. Merchants Ins. Co.... 126 jjipstlln vs. State Ins. Cb 91 Doymg vs. Broadway Ins. Co. a£i Equitable Aoct. Assn. vs. Osborn 475 Dresser vs. Traders' Nat. Bank.... Mo Equitable Life Ass'ce iSoc. vs. Cole 3ai Dryer vs. Security Fire Ins. Co... 31 Erb vs. Ger. Am. Ins. Co ,. 241 Duff vs Fire Assn 178 Brmentraut vs. Am. I'ire ins. Co. M 'Dusser vs Mech & Traders' Ins. Krmentraut vs. Girard Ins. Co.l35, 193 Qn" ' ...180, 253 Estey vs. Barnes 18 Dunoan'Vs.'N."V.'Mut:"ins; Co 493 Estes vs^^H^^e Man. & Traders' ^^^ Dundee Chem. Woiiks vs. N. Y. jj„^ ^^^ Standard ' Life & Acct. Mut. Ins. Co KL j„g ,qq 455 Dunlop vs. Osbourne Fire Ins. Co. . 62 Evans vs. Opperman 316 Dupuy vs. Del. Ins. Co.. 102, US, 160, 230 Evans vs. Queen Ins. Co 246 Duran vs. Standard Life & Acct. Evarts vs. U. IS. M?ut. Acct. Assn. 445 Ins. Co 475 Everson vs. Equitable Life Assce. Dwelling House Ins. Cto. vs. Brew- Society 273, 316 ster •■ 210 Bvoy vs. 'Expressmen's Aid Soc. 351 Dwelling House Ins. Co. vs. Dow- Failey vs. Fee (Order Iron Hall).. 386 dall ■ 268 palb vs. 'Phoenix Ins. Co 173 Dwelling House Ins. CO. vs. Gould 267 paik vs. Janes 577 ' X)welling House Ins. Co. vs. Jones. 210 Fancull Hall Ins. Co. vs. L. & L. Dwelling Hlouse Ins. Co. vs. Os- & G. Ins. Co 209 bom 248 Parr vs. A. O. U. IW. of 'Wis 376 Tilager vs. Fireman's Fund Ins. Co. 107 Parjeon vs. Fogg fiO Eagle Fire Ins. Co. vs. Globe L. & Farmer vs. Nat. Life, Assn 405, 578 T. Co ™ Farmer vs. Phenix Ins. Co Eaele Fire Ins. Co. vs. State of Farmers' nvDut. Fire Assn. vs. Ohio 81 Kryder 87 Eammoor vs. Cal. Ins. Co 614 Farmers' Mut. Fire Ins. Co. vs. Earnmoor S. S. Co. vs. Union IBurch 139 Ins. Co 506 Farmers' (Mut. Fire Ins. Co. vs. 'Easley vs. Valley Mut. Life Assn. 400 Sehafer 108 Fast Texas Fire Ins. Co. vs. Blum 39 Farmers' Mut. (Life Assn. vs. Hall 361 "East Texas Fire Ins. Co. vs. Farmers* Mut. Bel. Assn. vs. Brown 67 'Koontz 198 TSast Texas Fire Ins. Co. vs. Farmers' Union Ins. Co. vs. Wlld- Clarke 147 er ; 101 East Texas Fire Ins. Co. vs. Famum vs. Phenix Ins. Oo 267 Harris H** Farrell vs. Am. Emp., (Liability East Texas iFire Ins. Co. vs. Ins. Co 475 Kempner 180., 243, 244, 24fl Faughner vs. Man. (Mut. Fire Ins. East Texas Fire Ins. Co. vs. Co 44 Perkey 243, 244, 249, 255 Faust vs. Am. Fire Ins. Co 65 Eastmure vs. Canada Acc't Ins... Fawcett vs. Iron Hall 409 Co 442, 44S Feibelman vs. (Manchester Ass'ce Fberman vs. Am. Fire Ins. Co.... 229 Co 74, 2K Fx-kler vs. Terry 371 Fenn vs. Union Cent. (Life Ins Co. 319 Eddy vs. Lon. Ass. Cor 149, 151 Fidelity & Cas. Co. vs. Altiert 586 Edwards vs, Arquette (Ag'l Ins. Fidelity & Cas. Co. vs. Chambers 483 C'0.5 60 Fidelity & Cas. Co. vs. Consol Nat. Eean vs. Oakland Home Ins. Co.. 134 Bank ; 581 Epan vs. Westchester Ins. Co.... 254 Fidelity & Cas. Co. vs. BlckhofC. . 540 Epbert vs. St. Paul F. & M. Ins. Fidelity & Cas. Co. vs. Johnson.. Co 519 454, 474 Ehrsam [[\aach. Co. vs. Fhenix Ins. Fidelity & Cas. Co. vs. Waterman 446 Co 5*39 Fidelity Mut. Life Assn. vs. Winn 425 Fichel vs. Knights of Pythias 403 Fillmore vs. Kts. of Maccabees 372, 428 Eickman vs. Hersker 547, 562 Finch vs. Druids 380 Ellerbe vs. Barney 367 Flndley vs. Ins. Co. of (N. A Bllerbe vs. Faust 398 44,^58, 228 Ellerbe vs. United Mas. Ben. Assn 413 Finster vs. Mer. & Bankers' Ins. Elliott vs. A. O. U. W 361, 401 Co 3Ki, 522 Elliott vs Mut. Ben. Life Ins. Co. 29i! Fire Assn. vs. Brown 216 Elmer vs. M'ut. Ben. Life Assn... 391 Fire Assn. vs. Colgln 49, 162 Eisner vs. Prudential Ins. Co 277 Fire Assn. vs. Laning 194 Emig:h vs. State Ins. Co 26 Firs Ins. Assn. vs. Wlokham 496 Frniow v= Travelers' Tns. Co.. 449, 470 Fireman's Fund Ins. Co. vs. Bark- Empire State Ins. Co.. vs. Am. er 75 INDEX OF CASES DIGESTED. 645 Fireman's F^ind Ins. Co. vs. Buck- Gerling vs. Agr'I Ins. Co 208, 240 staff 132 Ger. Am. Ins. Co. vs. Chippewa Fireman's Fund Ins. Co. vs. Nor- Circtiit Court 543 wood 256 Ger. Am. Ins. Co. vs. Hart 43 Foremen's Ins. Co. vs. Appleton Ger. Am. Ins. Co. vs. Humphrey Paper Co 43 72, 101 Firemen's Ins. Co. vs. Barnsoh 193 Ger. Am. Ins. Co. vs. (Waters 265 First Cong'l Church of Rocliland Ger. Banic vs. Am. Fire Ins. Co... 549 vs. Holyoke Mut. Fire Ins. Co... 223 Ger. Ins. Co. vs. Board of Com- First Nat. Bank vs. Dakota F. & missloners of Shawnee 103 iM. Ins. Co 27 Ger. Ins. Co. vs. Brown 204 First (Nat. Bank of Devil's I^ake Ger. Ins. Co. vs. Columbia En- vs. Am. Cent. Ins. Co 168 caustic Tile Co 41, 73, 136 First Nat. CEank of Mt. Vernon Ger. Ins. Co. vs. Davis 245, 249 vs. Sarlls ' 94 Ger. Ins. Co. vs. Eddy i52, 541 Fisher vs. Am. Legion of Honor.. 373 Ger. Ins. Co. vs. Fairbank 148 Fisher vs. Knights of Pythias 395 Ger. Ins. Co. vs. Frederick 213 Fisher vs. Met. 'Lafe Ins. Co 317 <3«r. Ins. Co. vs. Gibbs 168 Flannery vs. State Mut. Fire Ins. ^er. Ins. Co. vs. Gibson 261 ~„ ^ Ger. Ins. Co. vs. Gray 259 ^° •■•, „a <^6'". Ins. Co. vs. Hall 97 Fleeman vs. Fleeman 379 Qg^. Ins. Co. vs. Hayden 101, 169 Flynn vs. Mass. Ben. Life Assn.. 397 oer jng iqo. .^g Heiduk 175 Fogg vs. Golden Lion 368 Cer. Ins. Co. vs. Luckett 144 Foley vs. Farragut Fire Ins. Co.. 113 Ger. Ins. Co. vs. Penrod 36 Foley vs. Mut iLife Ins. Co 340 Ger. Ins. Co. vs. Reed's Ex'rs..l00. 252 Foley vs. ORoyal Arcanum 355 Ger. Ins. Co. vs. Rounds 34, 72 Follls vs. U^. ,Mut. Acct Assn.. 44^ §-■ I-; ^^^: ^^1^/ ^ii^e^: 11 Forbes vs -^- ^ire Ins. Co 28 ^^^ j^-^j j„g ^^ ^^_ Niewedde.. Fort vs. State &W 250, 254 Forward vs. Cont. Ins. Co. ..42, 165, 259 Germania Ins. Co. vs. Bromwell..' 179 Fox vs. Capital Ins. Co 116 Germania Ins. Co. vs. Deckard 106 Fraim vs. Nat. Ins. Co 104 Germania Ins. Co. vs. Home Ins. Francis vs. Boulton 504 Co. ............ 189 Frane vs. Burlington Ins. Co 35 Germania Ins. Co. vs. Thompson.. 82 i. „„it ,7,; -Dw^ifiS nvr„t Tift. Tr,= Germania Ins. Co. vs. TOTarner... 51 Frank vs. ^Pacific Mut. Life Ins. ^^^ ^^_ Equitable Life Assurance Co 459 Society . 276 Frankfurter vs. Home Ins. Co.. 42, :&4 Gibbs vs. Fire Ins. Co. of County Franklin Brass Co. vs. Phoenix of Philadelphia 191 Assurance Co 107 Gibbons vs. Gibbons 309 t;-,„^„„„ ,„ TT„t„i,i„„„„ c'M Glde vs. Dakota CF. & M. Ins. Co.. 136 Franzen vs. Hutchinson 529 (jjibert vs. State Ins. Co 39, 99 Fred Miller Brewing Co. vs. Coun- q.^ ,,3 Aetna 'Live Stock Ins. Co. 670 oil Bluffs Ins. Co 227 Gillett vs. Burlington Ins. Co 253 Freedman vs. Fire Assn 190 Girard Ins. Co. vs. iBoulden 224 Freedman vs. Prov. Wash. Ins. Girard Ins. Co. vs. Frymier 207 Co 205 Given vs. Rettew 169 French vs. Mut. Res. Fund Life Glasseyvs Met Lite Ins Co. m .-„_ 430 Glenhvet St's'p Co. vs. Tltcombe.. 508 _jissn. ■■■■■■■■■■■■. „ Globe Acc't Ins. Co. vs. Helwig.. 482 French vs People 97 ^.j^.^^^ ^^^j, Q^r. Ins. Co.. .. Fritz vs. Lebanon Ins. Co .^10 45^ 52, 528 Fritz vs. Quaker City Mut. Fire. Gnau vs. Masons' Fraternal Acc't Ins. Co 20b j^esj, 363_ 444 Fulton vs. Met. Life Ins. Co Goldman vs. N. B. & M. Ins. Co... KSO 279 318, 323 Gongower vs. E'quitable Mut. Life Galantshik vs. Globe Fire Ins.' Co. ' & iBndowment Assn. .. .... 364 125 150 Goode vs. Georgia Home Ins. Co.. 33 ... ^ ■c•„.,s^„v.^^ -vTiit,!!.! Goodwin vs. Prov. Sav. Life As- Garretson vs. Equitable Mutual gurance Society 33-2, 339 Life & Endt. Assn 363, 394 Qpss vs. Agr'I Ins. Co 264 Garretson vs. Mer. & Bankers' qoss vs. Peters 66 Ins. Co l^' 262 Gottlieb vs. Dutchess Co. Mutual Garrison vs. Farmers' Mut. Ins. Fire Ins. Co 201 Po 224 Grable vs. Ger. Ins. Co 226 r^^i^= •■',=" 'ii-i.Wnlilin Tns Co 184 Gray vs. Germania Ins. Co 177 Geiss vs. Franklin ms. ^o Guardian Ass'ce. Co 258 Geofroy vs. Gilbert 310, ^'=« gyay vs. Merriman 419 Georgeson vs. Caffrey. ;...•-• t>-i Q.j.j^y .^g Caldron 530 Georgia Home Ins. Co. vs. Jiart- Graybill vs Penn. Township Mut. lett ^ Fire Ins. Co 178 Georgia Home Ins. Co. vs. Hall... 215 Great iWestern Mut. Aid Assn. vs. Georgia Home Ins. Co. vs. Leav- Colmar 381 erton 1"' Green vs. People 555 Georgia Home 'ins. Co. vs. Schield m Green vs. N. W. Live Stock Ins. Georgia Home Ins. Co. vs. Stein... 153 Co 686 646 INDEX OF CASES DIGESTED. Greenwich Ins. Co. vs. Oregon Hartford Fire Ins. Co. vs. Josey... Imp. Co 199 30, 186, 258 nrppnwipTi Tti«i Vn vs Sahntnirk 17R Hartford Plre Ins. Co. vs. Kahn... 19 Greenw Oft Ins. Co. vs. SabotnicH: 176 Hartford Fire Ins. Co. vs. King-... 75 Greenwich Ins. Co. vs. Waterman 519 Hartford Fire Ins. Cb. va. IMc- Greenwood Ice & Coal Co. vs. Lamore 169 Georgia Home Ins. Co 48, 568 Hartford Fire Ins. Co. vs. Small... 176 Grelss vs. State Invest. & Ins. Co. liO Hartford Fire Ins. Co. vs. Wil- Gresham vs. Equitable 'Life & liams 143, 150 Accident Ins. Co 454 Hartford L. & A. Ass'n vs. Hay- Griesemer vs. Mut. Ufe Ins. Co.. den 439 295, 315, 322 Hartford L. & A. Ass'n vs. Way- Grlfflth vs. iNew York Ofe Ins. land 374 Co 289, 303, 346 Hartford Steam Boiler & Inspec- Grlmes vs. Northwestern Legion tlon Co. vs. Lasher E36 of Honor 366 Hartman vs. Morning Journal Grindle vs. York Mut. Aid Assn. . . 410 Assn 559 Gristock vs. Royal Ins. Co 29, 207 Harvey vs. Van Oaot 343 Griswold vs. Brega 94 Hartwell vs. Cal. Ins. Co 141 Grogan vs. U. S. Ind. Ins. Co 285 Haskins vs. Kendall 388 Guenther vs. Cary 64 Hatcher vs. Buford 550 Guerin vs. St. Paul F. & M. Ins. Hathaway va. Orient Ins. Co... 144, 153 Co 567 Havens vs. Germania Fire Ins. Co. 139 Guinn vs. Phenix Ins. Co 149, 189 Haverstiok vs. Penn. Township Guinn vs. Phoenix Ins. Co 74 Mut. Fire Ins. Co 59 Gulf C. & S. F. Ry. Co. vs. Zlm- Hawley vs. L. & L. & G. Ins. Co.. 224 merman , 130 Hawley vs. Mich. Mut. Life. Ins. Gunlare, The : 500 Co 320 Gunther vs. L. & L. & G. Ins. Co.. Ill Haywood ^-s. Rodgers 495 Gyllenhammer vs. Home Ben. Soo. 424 Hazeltine vs. Miss. Val. Fire Ins. Haar vs. Indus. Ben. Ass'n 353 Co 27 Hahn vs. Guardian Ass'ce Co 256 Healy vs. Mut. Acc't Ass'n of N. Hale vs. Brooklyn Life Ins. Co.... 293 W 452 Hale vs. Equitable Aid Un 384 Hebner vs. Sun Fire Office. .167, 497, 506 Hale vs. Ind'y & Invest. Co.... 339, 527 Heffron vs. Klttaning Fire Ins. Co. 162 Halbrook vs. Mill Owners' Mut. Heidenreleh et al. vs. Aetna Ins. Ins. Co 565 Cb 268 Hall vs. Am. Mas. Acct. Assn 452 Heillbrou vs. Guaranty Loan & Hall vs. Concordia Fire Ins. Co.... 182 Trust Cb 5J6 Hall vs. Niagara Fire Ins. Co Heinlein vs. Imperial Life Ins. Co. 332 61, 165, 235, 237 Helvrig vs. Mut. Life Ins. Co 314 Hall vs. N. "W. End't & Leg, Ass'n 377 Hembeau vs. Kts. of Maccahees.. 3S0 Halpin vs. Ins. Co. o'f N. A 139 Henderson vs. Travelers' Ins, Co.. 344 Hamil vs. Roj'al Arcanum 397 Hendriok vs. E^mp. Liability Ins. Hamilton vs. L. & L. & G. Ins. Co. 57 Co 465 Hamlyn vs. Crown Ins. Co 459 Henschel vs. Oregon P. & M. Ins. Hand vs. Nat. Live Stock Ins. Co.. 555 Co I97, 220 Handworker vs. Diermeyer 308 Herbert vs. Lukens 128 Hanf vs. N. W. Mas. Aid Assn 524 Hermany vs. Fidelity Mut. Life Hanna vs. Conn, Mut. Life Ins. Co. 311 Ass'n 434 Hanna vs. Hanna .' 375 Hess vs. Van Auken 458 Hanover Fire Ins. Co. vs. Brown.. Hess vs. Washington F & M. Ins. S3, 188 Co 174 Hanover Fire Ins. Co. vs. Ger- Heuer vs. N. W. Nat. Ins. Co 93 mania Fire Ins. Co 566 Heuer vs. Westchester Fire Ins. Hanover Fire Ins. Co. vs. Gustin.. 271 Co 92| 98 Hanover Fire Ins. Co. vs. Nat. Ex. Heuslnkveld Cap. Ins Co 21 - Bank 146 Heuslnkveld vs. St. Paul F. & M. Hanover Fire Ins. Co. vs. Parrotte 201 Ins. Co 202 Hanover Fire Ins. Co. vs. Shrader. Hewins vs. Baker 327 115, 180 Heydenfeldt vs. Jacobs 315, 328 Hardnen vs. Mil. Meoh. Ins. Co. 202, 206 Hihbard vs. Oom'l Alliance Life Hardwick vs. State Ins. Co 31 Ins. Cb 292 Hargraves vs. Home Ins. Co 91 Hibernia Ins. Co. vs. Bills . . 241 Harkey vs. Mech. & Traders' Ins. Hibernia Ins. Co. vs. Malevlnsky. 2St _ Co 74 Hibernia Ins. Co. vs. Starr 194 Harrington vs. Franklin ili-e Ins. Hickey vs. Hartford Plre Ins Co 192 , Co 256 Hicks vs. Nat. Life Ins. Co 293 Harrison vs. Ger. Am. Ins. Co 52 Hill vs. Com'l Un. Fire Ins Co 223 Harrison vs. Hartford FUre Ins. Hill vs. Lon. Ass'ce Co.. . 220 Co 47, 267 Hill vs. Phoenix Ins. Co '.'. 253 Harrison vs. Hebbard 534 Hines vs. Mut. Life Ins. Co. of Ky. 343 Hart vs. Citizens' Ins. Co. of Pitts. 133 Hirsch vs. Auer 421 Hart vs. Niagara Ins. Co 265 Hlrschl vs. Clark ' 380 Hartford Fire Ins. Co. vs. Bonner Hite vs. Aetna Life Ins. Co..."."" 300 Mer. Co 54 Hoadley vs. Purltoy ' 560 Hartford Fire Ins. Co. vs. City of Hobbs vs. la. Mut. Ben. Assn " " 422 Peoria 233 Hoeft vs. Kts. of Honor 410 INDEX OF CASES DIGESTED. 647 Hoffman vs. Aetna Ins. Co 190 In re Equitable Res iFund Ass'n Hoffman vs. Germania Fire Ins. 415 435 Co 126 In re Goss's Estate '. 2% Hoffman vs. Smith 536 In re Grant 336 Hoffman vs. WhelaR 528 In re Jamieson & Newcastle Hogan vs. Met. Life Ins. Co 282 Steamship Ass'n 492 Hogan vs. Paoiflo End't League... 365 In re Louisville Underwriters 554 Hogue vs. Minn. Packing & Prov. In re Order Fraternal Guardian's Co 287 Estate 370 Holdom vs. A. O. U. W 403 In re Order Tonti Estate 370 Holland vs. Chosen Friends 434 In re Oshkosh Mut. Ins. Co 112 Holmes vs. Davenport 322 In re O'Connell's Estate 30 Holmes vs. Gllman 320 In re Pelican Ins. Co 189, 190 Home Fire Ins. Co. ot Omaha vs. In re Schmitt 403 Hammaug 140, 213 In re Slosson 585 Home Fire Ins. Co. ot Omaha, vs. In re St. Paul Ger. Ins. Co 27 Murray 135 In re Wm Roddick 373 Home Friendly Soc. vs. Berry 402 In re "Wyatt's Estate 557 Home Ins. Co. vs. Bean 185, ai Ins. Co. o£ N. A. vs. Baehler 134 Home Ins. Oo. vs. Board ot As- Ins. Co. of N. A. vs. Caruthers... as sessors 233 Ins. Co. of N. A. vs. John3on.4S5, 517 Home Ins. Co. vs. Bethel 571 Ins. Co. of N. A. vs. Simons 21 Home Ins. Co. vs. Delta Bank 117 Ins. Co. of N. A. vs. Starr 51 Home Ins. Oo. vs. Fallon 28, 38 Ins. Trust Co. vs. Nor. Un. Fire Home Ins. Co. vs. Gibson 123, 209 Ins. Co 221, 552 Home Ins. Oo. vs. Kennedy 56, 263 International Fraternal Alliance Home Ins. Co. vs. State of N. T... 532 vs. State 416 Home Ins. Co. vs. Winn 124 Ionia, B. & B. Far. Mnit. Ins. Co. Home Ins. Co. of N. O. vs. Gary.. 120 vs. Ionia Circuit Judge 59 Homo Ins. Co. of N. O. vs. Har- Ionia, E. & B. Par. Mut. Ins. Co. rington 179 vs. Otto 155 Home Ins. Co. of N. O. vs. Smith.. la. State Trav. Men's Ass'n vs. 225, 236 Moore 385 Hong' Sling vs. Royal Ins. Co 131 Iron Hall vs. Baker 429 Hope, The 603 Isgrigg vs. Schooley 378 Hooper vs. State of Cal 96, 499 Ives vs. Met. Life Ins. Co 525 Hoose vs. Prescott Ins. Co 35 Jacklin vs.' Nat. Life Ass'n 400 Horsch vs. Dwelling House Ins. Jackson vs. Brit. Am. Ass'cc Co.. 137 Co 114 Jackson vs. N. W. Mut. Relief.... 364 Hosmer vs. Welch 309 Jackson vs. Boyal Ben. Soc 400 Hotchkiss vs. Phenix Ins. Co 257 Ja<:obs vs. St. Paul F. & M. Ins. Houghton vs. State Mut. Life Ins. Co 17, 40 Oo 313 Jaco'bson vs. Conn. Mut. Life Ins. Houston Direct Nav. Co. vs. Ins. Co 294 Co. of N A 232 Jeane vs. A. O. U. 'W 350 Hoven vs. Emp. Liability Ins. Co. 451 Jerrett vs. John Hancock Mut. How vs. How 540 Life Ins. Co 332 Ho^re vs. Prov. Fund Soc 478 Jewelers League vs. De Forest — 370 Huber vs. Manchester Fire Ass'ce Jinks vs. Kts. & Ladies of Honor. 380 Co 244 Johns vs. N. W. Mut. Relief — 437 Hughes -vs. Ins. Co. of N. A 187 Johnson -vs. Alexander 283 Humphreys 'vs. Nat. Ben. Assn 456 Johnson vs. Dakota F. & M. Ins. Hundhousen vs. TJ. S. F. & M. Co 103 Ins Co 486 Johnson vs. Kmghts of Honor 412 Hurd vs Doty 328 Johnson vs. Niagara Fire Ins. Co.. 214 Hurst ITS. Mut. Res. Fund Life Johnson vs. N. W. Mut. Life Ins. Assn 369 Co 293 Hutchlns vs Ford 492 Johnson vs. Philadelphia R. R. Co. 526 Hutchinson 'vs Kts. of Maccabees. 428 Johnson vs. Scottish Un. & Nat. Hutchinson vs. L. & L. & G. Ins. Ins. Co ...44, 192 Qq IS Johnston vs. Dom. Grange Mut. 111. LlVe ' Stock Ins. Co. vs. Baker 586 Fire Ins. Co ^ . ....... 225 ni Mut Ins Co vs. Hoffman.... 1S5 Jones vs. Alliance Mut. Fire Ins. Imperial Life Ins. Co. vs. Glass... Co ^ ....^... ...... 155 322, 325 Johnson vs. Farmers' Fire Ins. Imperial" Life Ins. Co. vs. Ham- Co •/,-,:^ ••; ^ bitzer 335 Jones vs. Gilbert 569 Ind. Farniere'Live Stock Ins. Co. Jones vs. Patty.......... 295 vs Boffeman 587 Jones vs. Phoenix Ins. Co 241 Ind 'ins. Co. vs. Hartwell 40 Jones vs. U. S. Mut Aoc't Ins. Tnd Ins Co vs Glenn 26 Co 473 Ingersoli vs.' Kts. of Golden Rule. 375 Joseph vs. P6ople;s Sa'v. Bank 564 Tti re Blauvelt 557 Jory vs. Am. Legion of Honor 381 In re Conrad's Estate 317 Kahnweller vs. Phenix Ins. Co.. IS re gi.7ne''"^.'""..':°.•.■.•.•.■.•.■.•.■;: m Kan. Far. Ins. Co. vs. Saind^?;.'': "^ \l re ^°a^on.'.^^''".'.".::::;::::;:::: m Kan. Home ms. co. vs. wilde'i'..'.'; i^" 648 INDEX OF CAlSES DIGESTED. Kan. Mut. Ll!fe Ins. Assn. vs. Hill. 342 Karleson vs. Sim Fire Office 70 Kase vs. Hartford Fire Ins. Co 61 Keck vs. Hotel Owners Mut. Fire Ins. Co 557 Keefe vs. Nat. Acct. Assn 441, 483 Keeler vs. N. T. State Mut. Ben Assn 359 Keene vs. N. B. Mut. Aoct. Assn.. 476 Keilner vs. Mut. Life Ins. Oo 300 Kelly vs. Nor. Un. Fire Ins. Co.... 63 Kells vs. N. W. Live Stock Ins. Co. 587 Kemp vs. G. T. Mut. Ben. Assn.... 410 Kennedy vs. Agrl. Ins. Co 96 Kentoin Ins. do. vs. Downs 203 Kenton Ins. Co. vs. First Nat Bank 554 Kentucky M. S. F. Co. vs. Logan's Admrs 678 Kentzier vs. Am. Mut. Acot. Assn. 474 Ker. vs. Un. Mut. JAte 313 Kerlin vs. Nat. Acct. Assn. of In- dianapolis 571 Keystone Mut. Ben. Assn. vs. Jones 355 Kiernan vs. Dutcliess Co. Mut. Fire 71, 100 Kierman vs. Agrl. Ins. Co 76. 108, 109, 121 Klmmel vs. Plokneyville Mut. Fire Ins. Co 157 King Brick Man. Co. vs. Phoenix Ins. Co 181 King vs. Masonic Life Assn. of "West New York 402 Kinne vs. Mich. Mut. Life Ins. Co.. 342 Klein vs. Buck S77 Knights and Ladies of Jlonor vs. Burke 415 Knights and Ladies of Honor vs. Ot76T1S 43^ Knights of Golden Bagie vs! 'SmVtJi 408 Knights of Honor vs. Dalfrey 361 Knights of Honor vs. Forston 397 Knights of Honor vs. Metcalf 387 Knights of Honor vs. Woolachlager 383 Knights of Pythias vs. Kalinski.392, 403 Knights of Pythias vs. La Malta. . . 387 Knights of Pythias vs. Rosenfleld. 355, 429 Knights of Pythias vs. Wilson 421 Knorr vs. Bates 22, 189, ISO Knop vs. Nat. Fire Ins. Co.... 126, 164 Knoxville Fire Ins. Co. vs. Avery 28 Knoxvllle Fire Ins. Co. vs. Hira. . 119 Knudson vs. Northwestern Le- gion of Honor 356 Koenig vs. U. B. Life Ins, Ass'n. 432 Koons vs. La Fonciere Compagnie D' Assu etans 515 Kolloran vs. IS'weet 322 Kortlander vs. Elston 570 Kratzenstein vs. Lehman 288 Krause vs. Equitable Life Ass'ce Soo 295 Kreh vs. Moses 306 Krug vs. Ger. Fine Ins. Co 161 Kruger vs. Life & An. Ass'n 418 Kugleman vs. Levy 2''7 Kumle vs. A. O. U. W 382, 421 tabell vs. Georgia Home Ins. Co. 176 Laclede Fire Brick Man. CO. vs. Hartford Steam Boiler Ins. Co.. 569 Xadd vs. Aetns Ins. Co 190, 191, 241 Lafflm v.s. Travelers' Ins. Co 540 Laird vs. Equitable Life Ass'ce , Boc 3,)0 Lake vs. Minn. Mas. Relief 417 Lake Erie & ^V. Ry. Co. vs. Mld- dlecoft 128 Lakings vs. Phoenix Ins. Co 86' Lan. Ins. Co. vs. Lucsis 218 Lan. Ins. Co. vs. Maxwell 537, 538 Landis vs. Standard Ass'n 461 Lane vs. St. Paul F. & M. Ins. Co. 135 Langan vs. Royal Ins. Co 86 Langdon vs. Mass. Ben. Life Ass'n 359 Laughlin vs. Fidelity Mut. Life Ass'n 326 Law vs. N. B. Mut. Acc't Ass'n.. 441 Lawler vs. Murphy 360 Lawler vs. Nat. Life Ass'n 372 Lawrence vs. Niagara Ins. Co 47 Leaf vs. Leaf 381 Leavltt vs. Dunn 307 LefBngwell vs. A. O. U. W. of la. 401 Lohman vs. Great Eastern Cas. Oo 465, 483 Leiter vs. Beecher 25 Leitz vs. Teutonia Ins. Co 131 Lennels vs. Egg Harbor Com. Bank 125 Lennox vs. Greenwich Fire Ins. Co « Leonard vs. Charter Oak Life Ins. Co 287 Lester vs. Miss. Home Ins. Co. . . 244 Levell vs. Royal Arcanum 355 Levie vs. Met. Ufe Ins. Co 281 Levy vs. Magnolia Lodge 376 Lewis vs. Burlington Ins, Co 584 Lewis vs. MoReavy 53tt Liberty Ins. 7o. vs. Boulden 165 Light vs. Countrymen's Mut. Fire Ins. Co 114 Light vs. Lauser 283 Limberg vs. Ger. Ins. Co. of Peoria 248 Lindsey vs. Western Mut. Aid Soc. 440 Linscott vs. Orient Ins. Co 102 Lipman vs. Niagara Ins. Co 187 Litihgow vs. Kts. of Maccabees — 422 Little vs. Garabrant 571 L. & L. & G. Ins. Co. vs. Board of Assessors 545. 582 L. & L. & G. Ins. Co. vs. Buckstaft 248 L. & L. & G. Ins. Co. vs. Colgin.53, Ifil L. & L. & G. Ins. Co. vs. Parns- worth Lumber Co 257 L. & L. & G. Ins. Co. vs. Hall 46 L. & L. & G. Ins. Co. vs. Ricker.. 75 L. & L. & G. Ins. Co. vs. Sheffy 120, 174 L. & L. & G. Ins. Co. vs. TilUs.... 39 Lobee vs. Standard Live Stock Ins. Co 547 Lockwood vs. Mich. Mut. Life Ins. Co 289 Lombard Invest. Co. vs. Am. Sure- ty Co 539 Lon. ^ijLan. Ins. Co. vs. Crunk 94 Lon. &Lan. Ins. Co. vs. Storrs 46 Long vs, N. B. & M. Ins. Co 198 Long Island Ins. Co. vs. Gt. West- ern Man'g Co 253 Loomis vs. Rockford Ins. Co 76, 77 Lord vs. Am. Mut. Acc't. Ins. Co. 470, 477 Louisville Und. vs. Durland 183 Lovelase vs. Trav. Pro. Assn 473 Lowe vs. OJ. S. Mut. Acc't. Assn... 482 Luhrs vs. Luihrs 373 Lum vs. U. S. Fire Ins. Co 80, 191 Lycoming Fire Ins. Co. vs. Batch- elder i5g Lynn Gas & El. Co. vs. Merldan Fire Ins. Co 22 Lynn vs. Toronto Gen. Trust Co.. .580 INDEX OF CAISBS DIGESTED. 649. ^lows""' ^""^ ^°''- ^'^ ^""^ ^^'- 357 ^"^^^y ^- R°™- Cath. Mut. Ins. L^^hl^.?^^^^:::;;;;---- ||tMoS^>-^Avs:ExpVessmen^sMui: ^ MacllT??'^,^t"ni.i^T^/"^;'^?- ^ M«g""«uffh VS." Phoenix "ins.' Co;: mI Maciay vs. Equitable Life Ass'ce MoDonald vs. Birss.... 286 Maclav V? '^.^toi.i^T^-/"^; '^?- ^ McCullouirh vs. Phoenix Ins. Co."." Ws Soo Equitable Life Ass'ce MoDonald vs. Birss.... 286 Mad^"en-vs:-E:,uit"able"Life"Ass-"ce: '*' M^ES^^fl'V^-AffnT iS'cS';'" " ' '. l^ Mah;';,o'^i"";i"/-fi-VrVV--; 292 McDowell vs. Conn. Fire Ins. Co. ^^»]ii"?=''t,,^!^-"5= Mi-ti.Ml^---;^- VA McEvoy vs. Neb,_ & la. Ins. Co... Grt« ^ ^^ J^i.^ .ri-aa ^c. i«.v;iyt» w«Il VB. ACina inS. CO iTah^Vik"V,i""li'„'-«"VrVV--J 292 McDowell vs. Conn. Fire Ins. Co.. 58 klahone vs. Pacific Mut. Life 279 McEvov vs Neb & la Tns Co >;SK Mai?hnl?-.-'^^^%"'t%H^^ ^l^-^' ^6 M^^ParLTd vrKitTantaiTns.'^Co ! ! ^f Mailholt vs. Met. Life Ins_ Co. .304 S9A Tvr^Ti'oT-ionH „= -o,^ n.fe p. t=C Mailholt vs. Met. Life Ins. Co.. 304, 324 McFarland vs. Ey. Off & "Bmp Manchester Fire Ass'ce. Co. vs. Accident Assn. 441 A/r=i^^^ ; ii- ; ^ McFarland vs. U. S. aiut Aoot. Manchester Fire Ass'ce Co. vs. Assn 469 Tvro"'^^ !S" ^'J,^.- "^^ '•■■• 101 MoFetridg-e vs. Phenix Ins. Co.."....' 94 Manchester Fire Ass'ce. Co. vs. M«Geachle vs. Nth. Am. Life Ins Koerner 262 Oo 3^ 326 MandevUle vs. Mackey S19McGonigle vs. Agrlcuitura'l'"'lns'. Maness vs. Sun Fire Offloe 246 Co . . . 109 ^.^.^l^^tt^n Life Ins. Co. vs. P. J. McGonigle vs. Susquehanna Mut. Wilhs & Bro 281.315, 345 Fire Ins. Co 38,108, 213 Manlove vs. Com'l Fire Ins. Co.... 532 McGowan vs. Cath. Mut Ben. Mansfield vs. Mut. Ben. Life Ins. Assn 362, 366 ,Co 532 McGowan vs. N. W. Legion of Man. & Mer. Mut. Fire Ins. Co. vs. Honor 393 Armstrong- 255 McGuirk vs. Mut. Ben. Life Ins. Man. Life Ins. Co. vs. Gordon 300 Co 299 Mareck vs. Mut. Res. Fund Life MoHale vs. McDonnell 288- Ass'n 437 McKay vs. Nor. Un. Ins. Co 231 Margesson vs. Mass. Ben. Life McKee vs^ Susquehanna Mut. Fire Ass'n 362 Ins. Co 163 M'aril vs. Conn. Fire Ins. Co. 111 McKeesport Machine Oo. vs. Ben Marlborough, The 515 Franklin Ins. Co 86, 184 Marshall vs. Franklin Fire Ins. McKenzle vs. Scottish Un. & Nat. Co 116, 180 Ins. Co 194, 271 Marshall vs. Reading Fire Ins. McKibbon vs. Feegan 307 Co 41, 95 McKinney vs. "Western Ass'ce. Co. 227 Martin vs. Ca,pital Ins. Co 250 McKinnon vs. Mut. Fire Ins. Co. ... 265 Martin vs. Equita'ble Acc't Ass'n McLain vs. Brit. & For. Marine 445. 452 Ins. Oo 486, 4Sr Martin vs. Ins. Co. of N. A 78 McLaughlin vs. Equitable Life Martin vs. Moran 347 Ass'ce. Soo 422 Martin vs. Roch. Ger. Ins. Co 249 McLaughlin vs. Gt. Western Ins. 511 Martin vs. tTn. Mut. Life Ins. Co. 297 Oo 511 Marquardt vs. French 496 McLaughlin vs. McLaughlin 375, 384 Maskey vs. Turner 325 McLeary vs. Orient Ins. Co 244 Mason vs. Equitable League 429 McLeod vs. Universal Marine Ins. Mason vs. Sanford 585 CO 520 Mas. Aid Ass'n vs. Taylor 408 McMahon vs. Thomas 566 Mas. Frat. Acc't Ass'n vs. Riley. 460 McMurray vs. Capital Ins. Oo 245 Mas. Mut. Life Ass'n vs. Jones 377 McNally vs. Phenix Ins. Co 140 Mass. Ben. Life Ass'n vs. Halo... 424 McNamara vs. Dakota F. & M. Haes. Ben. Life Ass'n vs. Richart 356 Ins. Co 79 Uass. Ben. Life Ass'n vs. SiWey.. 392 McPhillips vs. Lon. Mut. Ins. Co... 63 Masterman vs. Home Mut. Fire McVey vs. A. O. U. 'W 354 Ins. Co 176 Meacham vs. N. T. Mut. State Ben. Matt vs. la. Mut. Aid Ass'n 350 Assn 387 Mawhinney vs. Southern Ins. Co. 18 Mead vs. Phenix Ins. Co 85 Maxcv vs. N. H. Fire Ins. Co 150 Meadows vs. Pacific Mut. Life Ins. Mayber vs. Manhattan Life Ins. Co 478 Co 307 Meagher vs. Life Union 428 Maybury vs. Berkery 317 Means vs. A. O. U. W., et al 385 Mavnard vs. Vanderwerker 378 Mechanics' Ins Co. of Phil. vs. Mavo vs. India Mut. Ins. Co 508 Hodge 106 Mayor of Vicksburg vs. Sun Mut. Mech. & Traders' Ins. Co. vs. Fire Ins. Co 228 Thompson 270 McAllister vs. Niagara Firo Ins. Mech. Ins. Co. of Phila. vs. Hodge Co. 216 55, 106, 223 McBrrde vs. Rinard 526 Mengel vs. N. W. Mut. Life Ins. McCarvel vs. Phenix Ins. Co 209 Co 345 McCauley vs. Fidelity & Cas. Ins. Menard vs. Soc. of St. Jean Bap- Co 466 tiste 404 McOlare vs. Mut. Res. Fund Life Menneilley vs. Emp. Liability Ins. Ass'n 352, 353 Co 451 McCluskpv vj;. Nat. Life Ass'n... 425 Mercantile Credit Guaranty Co. vs. McCormlck vs. Orient Ins. Co 113 Wood 563 McCormick vs. Royal Ins. Co 259 jTsr. & Miners' Trans. Co. vs. Bor- McCoy vs. N. W. Mut. Relief 417 land 572' ■650 INDEX OF CAISES DIGESTED. Mer, Cotton Press & Storage Co. Moore vs. Hanover Fire 280 vs. Ins. Co. of N. A 516 Moore vs. Rockford Ins. Co 196 Mer. Ins. Co. vs. Un. Ins. Co 21 Morlarty vs. gome Ins. Co 186 Mer. Ins. Co. of N. J. vs. Brown.. 146 Morgan vs. Dugan 283, 299 Mer. Ins. Co: of N. J. vs. Gibbs... 268 Morgan vs. Hunt 407 Merrill vs. Cbmmonwealth Mut. Morley vs. I... & L. & G. Ins. Co.. 6S ins. Co 65 Moretock Ins. Co. vs. Cheek 142 Merrill vs. Travelers' Ins. Co 455 Morotook Ins. Co. vs. Pa.nkey.240, 246 Merrlman vs. Keystone Mut. Ben. Moretock Ins. Co. vs. Ro(lefer.l43, 168 Assn ■ 368, 402 Morris vs. Far. Mut. Fire Ins. Co. Messelback vs. Sun Fire Office.-. ... 247 92, 383 Met. Aoct. Assn. vs. Frollarcl..470, 484 Morris vs. Krakauer 419 Met. Lite Ins. Co. vs. Dempsey.. 316 Morrison vs. Mut. Life Ins. Co... 331 Met. Life Ins. Co. vs. McGrath... 321 l^iortstage Ins. Co. vs. Pound B78 Met. Life Ins. Co. vs. O'Brien 371 Morton vs. iHart 124 Metzger vs. Manchester Fire ivioser vs, Pro v. Wash. Ins. Co 501 Assce. Co 102 Mosher vs. Prov. fWlash. Ins. Co.. 513 Meyer vs. Fidelity & Cas. Co 477 Mosness vs. Ger. Am Ins. Co 49 Meyer vs. Gt. Western Ins. Co.488, 499 Wott'v.s, Citizens' Ins. Co 77 -Meyer vs. Manhattan Life Ins. Co. 301 Mowat vs. Bost. Marine Ins. Co. Mich. Mut. Life Ins. Co. vs. Leon.. 280 '. 497, B04 Mich. Mut. Life Ins. Co. vs. Wil- Muench vs. Globe Fire Ins. Co.... 81 Hams 330 Mulderick vs. A. O. U. W 379 Mich. Pipe Co. vs. Mich. F. & M. Mullen vs. Mut. Life Ins. Co 272 Ins. Co 85 MulUns vs. Met. Life Ins, Co 278 Mich. Shingle Co. vs. Penna. Fire Munroe vs. Prov. Perm. Fire- Ins. Co 1S7 men'fl Relief 351 Mich. Shingle Co. vs. State Invest. Munroe, The BIO & Ins. Co 263 Murphy vs. Am. Mut. Aoc't Ass'n 443 Miles vs. Conn. Mut. Life 341 Murray vs. Gt. Western Ins. Co.. Miller vs. Campbell, 286, 328 485, 504, 617 Miller vs. Scottish Un. & Nat. Ins. Murray vs. ilome Ben. Ass'n 367 Co 32 Murray et al. vs. Macdonald 291 Miller vs. Un, Cent. Life Ins. Co... 321 Mut Acc't Ass'n vs. Jacobs 462 Mil. Mech. Ins. Co. vs. Brown.. 38, 247 Mut. Aoc't Ass'n vs. Tuggle 445 Mil. Mech. Ins. Co. vs. Niewedde.. 149 Mut. Ben. Life Ins. Co. vs. Robin- Mil. Mech. Ins. Co. vs. Stuart 55 son ; 278, 280, 545 Mil. Theatre Co. vs. Fidelity & Mut. Fire Ins. Co. vs. Alvo.rd..57, 173 Cas. Co 558 Mut. Fire Ins. Co. vs. House 97 Minn. St. Paul & Ste. Marie H. R, Mut. Life Ins. Co. vs. Baker 29S Co. vs. Home Ins. Co 533, 558 Mut. Lite Ins. Co. vs. Blodgett... 326 Minn. Title Ins. Co. vs. Drexel.... 569 Mut. I,ife Ins. Co. vs. Hayward.. 337 Mlnn'I's Threshing Mach. Co. vs. Mut, Iwelllng House Ins, Molloy vs. Catholic Mut. Ben. Co 162 ,/^*'?'? i; 359 Nappanee B^irniture Co, vs. Ver- Monteleone vs. Royal Ins. Co., 200, 242 non Ins. Co 1S2 Mofflt vs. Phenlx Ins. Co 262 Natchez. The 506 Montgomery Co. Far. Mut. Ins. aSTat. Home (B. & Li Assn. vs. -,,r^°l 7®- Milner. 157 ©welling House Ins. Co 46 Monteleone vs. iRoyal Ins. Co 200 Nat. Life IMIaturlty vs. Wihltacre.. 425 Moody vs. Amazon Ins., Co 162 Nat. Mahaiw© Bank vs. Hand... 83 Moody vs. Ins. Co.... 184 Nat. Mas. Acc't Assn. vs. Burr.. Mooney vs. Buford & George 444 446 Man'f'g Co. 544 Nat. Mas. Acc't Assn. vs. Shyrook Moore vs. N. Y. Bowery Ins. Co.. 69 447 451 Moore vs. Brit. & For Marine.... 518 ,Neb. and la. Ins. Co. vs. Chris- Moore vs. Mass. Ben. Life Ass'n.. 410 tiensen . 264 Moore vs. Order Railway Conduc- Neb, & I. Ins, Co. vs.'Se^ard,'!!!!! 137 t°''s 368 Nelson & St. Paul Title Ins. Co., 583 INDEX OF CASES DIGESTED. 651 N- T., C. & (H. R. rE,. Co. V3. Brit. Earl 469 -sil.^hil^^^J'}?- Si- ■■-;■■ --^ 1^^ Oelzer Mnfg. Co. vs." HamV Brem. Neufelder vs. Ger. Am. Ins. Co 546 Ins. Co la vitZ Tt^?„^-J,^^T^°- J^^ Freeport. 60 O'Grady vs. Knights of Columbus 430 New Boston iFire Ins. Co. vs. Saun- O'Hara vs. United Brethren 423 T«^viTr.,;:;i"„" ■".:;■ T o- ■„■ ^9 O^Leary vs. iMer. cS: Bankers' Mut. New England Loan & Trust Co. Ins. Co . . 171 mIw S?''n'^"j •^- :,• 133 O'iNea vs. Am. Fire ins. Co..::::.: 190 I'Y, ^?'l^^ Turnpike Co. vs. O'Neill vs. Mass. Ben. Assn 390 i^ ■^'l- Peoples Fire Ins. Co 103 OIRourke vs. John Hancock Mut. rs. y. Real Estate & Builders Ins. Ijfe Ins. Co 2S1, 292, 329, 346 Co. vs. 'Motley 235 Osewalt vs. Hartford Fire Ins. Co. 141 Newcomb & Imperial Life 277 Oshkosh (Match: iWorks vs. Man- Newcomb & I»rov. Fund Soc 417 Chester Fire Assurance Co 263 Newman vs. R'y Off & Emp Osterman vs. Dist. G. L^,^^^'= tS= n i ®* Owiter vs. Met. Lite Ins. Co 525 Phir^o Firemen s Ins. Co. of pacific Mut. Life Ins. Co. vs. Nixon vs. Queen Ins. Co 136 pX vl Paiiflc •■MutV -.Life: :::::: 571 Nomstown Title. Trust & Safe Palatine Ins. Co. vs. Brown IIS ■Deposit Co. vs. John Hancock Paltrovitch vs. Phoenix Ins. Co Mut. (Life Ins. Co 298 140, 206 N. Bt & M. Ins. Co. vs. Freeman 72 Parker vs. China Mut. Ins. Co.... 509 N. B. & M. Ins. Co. vs. Gunter... 214 'Parker vs. Roch. Ger. Ins. Co... 38 N. IB. & iM. Ins. Co. vs. Ijambert 78 Parker vs. Stoughton Mill Co SI* N. B. & M. Ins. Co. vs. Lathrop.. Parker vs. Sun Fire Office 234 26, 102 Parsons vs. Knoxvllle Ins Co. .262, 269 N. B. & M. Ins. Co. vs. Tourville 103 Patten vs. United Life Ins. Ass'n. 430 Northern vs. Hotchkiss 531 Peet vs. Dakota F. & M. Ins. Co. Northern vs. Samuels 208 87. 110, 204 Northy vs. Bankers' Life Assn.... SHI Peet vs. Kts of Maccabees..' 438 Northern vs. Bankers' Life Assn. 357 i>eifter vs. Bates 145 N. W. Com'l Trav. Assn. vs. Lon. Pelican Ins. Co. vs. Smith 165 Guaranty Co 454 Pelican Ins. Co. vs. Troy Coop. N. W. (Mas. Aid Assn. vs. Jones... 427 Ass'n 242 N. W. Mut. Life Ins. Co. vs. Pelican Ins. Co. vs. Wilkerson 117 Stevens 296 Pelzer Man'f'gi Co. vs. Ham. N. W. Mut. Life Ins. Co. vs. Brem. In.s. Co 131 Woods 280 Pelzer Man'f'g Co. vs. St. Paul F. N. W. Nat. Ins. Co. vs. Mize 119 & M. Ins. Co 116 N. IW. Trans. Co. vs. Bost. Mar. Pelzer Man'f'g Co. vs. Sun Fire Ins Co 516 Ofllce 23 N. W. Trav. (Men's Assn. vs. Peltz vs. Order of Financial Un... 420 Schauss 400 Peuoil vs. Home Ins. Co 51 Norwich vs. Standard Oil Co 232 fferin Mut. Life Ins. Co. vs. Mech. Nor. Un. Ins. Co. vs. Girton 25 & Sav. Bank & Trust Co.294, 305, 336 Norwood vs. Alamo Fire Ins. Co.. 160 Pennefather vs. Bait. Steam Nourse vs. XJv. Sailing Ship Packet Co 553 Owners' Assn 616 Penn. Co. for Ins. vs. Board of Nova Scotia CVTar. Ins. Co. vs. Revision ■•■• 582 Churchill 486 Penn. Fire Ins. Co. vs. Faires.105, <.60 Nova Scotia Mar. Ins. Co. vs. Penn. R. R. Co. vs. Manhelm Ins. Stevenson 513 Co 508 Nye vs A O. U. W 370 Pennypacker vs. Capital Ins. Co.. 98 Oakland Home Ins. Co. vs. Allen 26 People vs. Am. Steam Boiler Ins. Oakland Home Ins. Co. vs. Bank & Insp. Co .......537 554 5W of Commerce 151 People vs. Empire Oraer Mut. Aid 413 Oakland Home Ins. Co. vs. Davis 206 People vs. Equitable Mut. Fire •OTBrien vs. New Zealand Ins. Co. 213 Ins. Co TO, 166, 15/ O'Brien vs. Prescott Ins. Co 260 People vs. Fanshawe 58 O'Brien vs. prudential Ins. Co... 291 People vs. FeSler ■■ 644 O'Connor vs. Germania Life Ins. People vs. Fidelity & Cas. Co 642 Co 318 People vs. Flour City Life Ass'n. 370 OddFe'liows' Frat. Acc't Assn. vs. Peciple vs. Indus. Ben. Ass'n 389 652 INDEX OF OAISES DIGESTED. People vs. Life & (Res. Fund Pittsburg- Storag-e Co. vs. Scottish Ass'n 435 Tin. & Nat. Ins. Co 18? People vs. Life Union 435 Piatt vs. Aetna Ins. Co...' 216 People vs. 'Manhattan Mut. Fire Piatt vs. Cont. Ins. Co Ill Ins. Co 112 Plumb vs. Penn Mut. Life Ins. People vs. Mas. Guild & Mut. Co 299. 314, 332 Ben. Assn 360 piyer vs. Ger. Am. Ins. Co , 251 People vs. Pavey 407 Pollard vs. Fidelity Fire Ins. Co.. 192 People vs. Reliance Mar. Ins. Co. 517 Pool vs. Mil. Meoh. Ins. Co 12? People vs. Rosendale 463 Porter vs. U. S. Life Ins. Co 275 People vs. Spiegel 103, 548 Potter vs. Phenix Ins. Co 30, 1.97 People vs. Women's Cath. Order Potter vs. Phoenix ins. Co 79 of Foresters 398, 399 Potts vs. Temp. & Gen. Life 305 People vs. Woodward 579 Powers vs. Guardian Ins. Co 19(V People ex rel. Commonwealth Ins. Pratt vs. Dwelling House Ins. Co. IBS Co. vs. Coleman 235 Preston vs. Mut. Life Ins. Co 339 People ex rel. Leerburger vs. Mut. Pretzfelder vs. Mer. Ins. Co 21, 55. Res. Fund Life Ass'n 405 Price vs. Home Ins. Co 169 People's Ice Co. vs. Bmp. Liabil- Prlmeau vs. Nat. Life Assn 425 ity Ins. Co 476 Proppe vs. Met. Life Ins. Co 314 People's Mut. Beil. Soc. vs. Mc- Prov. Fund Soc. vs. Howell 467 „Kay 362. 383 Prov. Sav. Life Assurance Soc. vs. People's Mut.' Ben. Soc. vs. Les- Nixon 302 ter -. 406 Prov. Sav. Life Assurance Soc. vs. Peoples Mut. Fire Ins. Co. vs. Reutlinger 346 G-rofE 159 Prov. Wash. Ins. Co. vs. Bowring. 488 People's 'St. R. R. of Luzerne Co. Prov. Wash. Ins. Co. vs. Brum- vs. Spencer 20 melkamp 218- Perls vs. Meft. Ldfe Ins. Co 298 Prudential Ins. Co. vs. Jenkins.... 310 Perpoli vs. Dwelling House Ins. Prudential Ins. Co. vs. Myers 525 „Co 76, 268 Prudential Ins. Co. vs. Young aO' Perpoh vs. Legrion of the West... 396 Pugh vs. Lon., Brighton & South Perry vs. Cobb 565 Coast R. R 479 Perry vs. Dwelling Houtse Ins. Co. Putnam vs. N. Y. Life 290 „ 76, 268 Pythian Life Assn. vs. Preston.... 393 Peuohen Co. et al. vs. City Mut. Queen Ins. Co. vs. Chadwick 247 Ins. Co. 190 Qiioen Ins. Co. vs. Hudnut Co 522. Pfister vs. Gerwig 158 Queen Ins. Co. vs. Kline 247 Phenix Ins. Co. vs. Bowdre 258 Queen Ins. Co. vs. Leslie 252 Phenix Ins. Co. vs. Charleston Queen Ins. Co. vs. State 7?, Bridge Co 138 Quieg vs. Coffy 323 Phenix Ins. Co. vs. Ccomes.. 215 Quigley vs. St. Paul Title Ins. & Phenix Ins. Co. vs. Copeland 176 ■frust Co ' 534 570 Phenix Ins. Co. vs. Covey 39 Quinby vs. Ni^Y'Life'lns.' Co'.'.'....' 318 Phenix Ins. Co. vs. Dungan 197 Quinn vs. Royal Ins. Co 132 ?hfJI,-5 T^f- n?- ,Tf ■Sr,?^'' ^ Rademacher vs. Greenwich Ins. Phenix Tns. Co. vs. Hart 260 qq 53 ^£»^iJ T^= r-n "^^ •T°^r1nl°" ^^s R'y 'Pass.' & ' F't. Cond'rs: 'Ass-n: ?h^«P t"^- .S°- ^®- T,T°""^ 5o vs. Loomis 376 ?S»nW tS|- On v^; ^"^fhr T ,;;V; *^ R'y- P^^ss. & F-t CondTs. Ass'n. ^ TviJr % ■ °™^''^ ^^"^'^ IK, vs. Tucker 403, 415 pL\nix\'L.''co;Vs.-Roiiins::::::::: 200 gtS^^^senvfiTY Sfeins-co" m Phenix Ins. Co. vs. Stock? 261 Sf ^Pl'i^j®" ^5,,t • tS/,H ® ^A coo Phenix Ins. Co. vs. Wilcox & b»^ S= ?r,?wJiJf,t T;^?«;;;i; Glbbs Guano Co 88 R„^<=S ^^- Hatboro Mut. Live Stock Phillips vs. Carpenter 294 & Prov. Co 547 Phnil^ vs N. Y:^Llte-ins.-Co::::: 3^ K\^™?"^ ^«- Canadian ^-nt MA Phinney vs. Mut. Life Ins. Co 324 Ass'n 360. 418, 39- Phipps vs. Nicanor ;. 506 5^ ^ The......;^ 485, 488 H-'ioenix Ass'ce Co. vs. Allison.149, 231 Redmond vs. Ind Ben. Assn. ... 391 Phoenix Ass'ce Co. vs. Coftman ^f^^ ''^- Equitable F. & M. Ins. 34 271 CO 169 Phoenix'ins.''Co."vs."Asbery.'.'.'.'..! 230 S^ed vs. Painter 290 Phoenix Ins. Co. vs. Center.. 210 5«f"a vs Stapleton . . 480 Phoenix Ins. Co. vs. Dolan 146 Rehm vs. Ger. Ins. & Sav. Inst... S78 Phoenix Ins Co. vs. Greer 93 Reliance Marine Ins. Co. vs. Her- Phoenix Ins. Co. vs.Hague 175 „bert 501 Plioenix Ins. Co. vs. Levy 216 Reliance Mut. Ins. Co. vs. Sawyer 98 Phoenix Ins. Co. vs. Summerfleld Replogle vs. Am. Ins. Co 174 ^24, 250 Reynolds vs. Aetna Life Ins. Co. . . 284 Phoenix Ins. Co. vs. Ward... 147 Reynolds vs. Haines 92 Phoenix Ins. Co. vs. Witt J 239 Reynolds vs. la. & Neb. Ins. Co.. US Pickett vs. Pacific Mutual Life Rheims vs. Standard Fire Ins. Co. 208 Ins. Co 461 Rhode Island Und. Assn. vs. Mon- Pioneer Man'f'g Co. vs. Phoenix arch 264 Ass'ce Co. 51 Rice vs. A. O. IT. W : 366, 439' Finer vs. Mer. Mut. Acc't Ass'n... 478 Richelieu & Co. Nav. Co. vs. Bost. Pitts vs. Hartford L. & A. Co 394 Mar. Ins. Co 505 INDEX OF CASES DIGESTED. 653 Richmond vs. rhoenix Assoe. Co. Co. of N. A 630 32, 226 Scammel vs. China Mut. Ins. Co.. 607 Rlekerson vb. Ger. Am. Ins. Co 87 Schaeffer vs. Par. Mut. Ins. Co... 107 Rlckerson vs. Hartford Fire Ins. Schauer vs. Queen Ins. Co 31 Co 83' Sohlesslngen vs. Springlleld F. & Rieg-el vs. Am. Life Ins. Co 340 M. Ins. Co 250 Rlggs vs. Coml. Mut. Ins. Co.... 552 Soheufler vs. A O. U. |W 358 Ritter vs. Mut. Life Ins. Co 337 Scheurman vs. Dwelling House Roberts \-s. Firemen's Ins Co 42 Ins. Co 245 Roberts vs. N. W. Nat. Ins. Co. .32, 211 Schmidt vs. iMod. "Woodmen 405 Roberts et. al. vs. Sun Fire Office Schmitt vs. Nat. Life Ins. Co 283 119, 266 School Dlst. vs. Germ. Ins. Co 186 Robbins vs. Springfield F. & M. Schreiber vs. Ger. Am. Hall Ins. Ins. Co 254 Co 546, 567 Robinson vs. Iris. Co 4re Schroedel vs. Humboldt Fire Ins. Robinson vs. I. O. O. F. Templar Co 2S7 Lodge 436 Schroeder vs. Far. Mut. Fire Ins. Robinson vs. Met. Life Ins. Co. 306, 344 Co 154 Robinson vs. Penna. Ins. Co 89 Schryver vs. Mut. Lite 278 Robinson vs. U. S. Mut. Acct. Schuyler vs. Phoenix Ins. Co. ..486, 521 Assn 464 Schwahn vs. illch. F. & M. Ins. Robinson vs. I. O. O. F. Templar Co 194 Lodge 436 Scott vs. Hartford Fire Ins. Co 251 Robison vs. Ohio Farmers' Ins. Scott vs. Security Fire Ins. Co.... 251 Co 37 Scott vs. Sun Fire Ins. Office 68 Roch. Loan & Banking Co. vs. Scottish Union & Nat. Ins. Co. vs. Libertv Ins. Co 166, 246 Clancy 254 Rockforii Ins. Co vs. Storig 161 Scranton Steel Co. vs. Ward's Roddick vs. Ind'y Mut. Mar. Ins. Ket. & IL. S. One a Co . 510 Screwmen s Ben. Assn. vs. Ben- Roddv -i-s. Talbott...' 325 „son „ ^■■■^■- ^ Rodes vs. Det. F. & M Ins Co.... 497 Seamans vs. Knapp, Stout & Co. 75 Roeding- vs. Sons of Moses! 382 Seamans vs. Miller's Mut. Ins. Co. 156 Rogers vs. Coml. Un. Ina Co 55 Seamans vs. Temp.e Co 96 Rosrers vs Cowman 390 Seamans vs. Zimmerman 546 Romaine vs. Union Ins. Co 19 Searle vs. Dwelling House Ins. Ronald vs. Mut. Res. Fund Life „*-o- ■■•■■■■■ ■■Lii------- SS \sgri 394 426 Seeds vs. A. O. U. W. of la 390 RoseVsVkiinberiy & ciai-k'Co.'.'...! 96 l^'y^''*^^ ^,s-„^''it. Ben. Assn m Rose vs. Wortham 347 fe}} ^s. Stellar .••;• — ^ Rosenburv vs. Fidelity & Cas. Co. 465 Sellers vs. Commercial Fire 36 Ross vs. Hawkeye Ins. Co 193 ^elby vs. Mut. Life Ins. Co 347 Rossiter vs. Aetna Life Ins Co.... 293 Sengfelder vs. Mut. Llfe........^.. m Rothrock vs. Dwelling House Ins. f^'^sent vs. L. & Ia & ■&. Ins. Co. 207 Q^ . . 98 Seymour vs. Mut. Res. Fund Lafe Rowe'vs.''Brooldyi''Life'insV Co!! oi^^^,"^,.■ -i;"-VV '.VVr'-i'" ^^ 303 319 Shackett vs. People s (Mut. Ben. Royal AdelpMa vs. Capella ! 379 o^"";,^,^:","™'™^-;" i,li; ?S Royal Can. Ins. Co. vs. Schofield.. 507 fJ^P'^e'*?/^ vs. Mitchell 284 Royal Ins. Co. vs. Heller 222 Shainwald vs. Davids. 555 Royal Ins. Co. vs. Mclntyre 242 fjank vs. Glens Falls Ins. Co..... 31 Royal Ins. Co. vs. Parlin & Oren- Shapiro vs. (Western Home Ins. R^iVvs.'^^Ses!!!!!!!!!!!!!!!!!!!!! K? Shatre vs. com. Trav. Mut. Acc't Russell vs. Man. & B'l'rs Ins. Co. 105 Assn 4Bt. Ruthven vs. Am. Fire Ins. Co 33 Shaver vs. Penna. Co 534 Ryan vs. Rockford Ins. Co 17 gherry vs. Op. Plasterers' Mut. Ryan vs. Rothweiler 291 Union 411 Rynalskl vs. Ins. Co. of State of Sieburg vs. Mass. Ben. Life Assn. 404 Pa 2^ Sheanon vs. Paciflc Mut. Life Ins. Sabin vs. Fhinney 372 co 475 l^?I5„^^^; ^^r^7T.n?^Tn?°ro'" ^ Sherry VS. Op. Plasterers' Mut. Un. 404 Saltiero vs. City of Ix)n^ Ins Co 62 gHi- '^g. jj^t. (Rgg 5,^^^ Uje Sample vs. L. & L. & G. Ins. Co.. idz »„„_ ■kr Sample vs. London Fire Ins. Co.. 22 f^^n. ...^..... . ....... sm Sanford vs. Com. Trav. Mut 575 Silva vs. Sup. Council, etc 381 Sanford vs Royal Ins. Co 184 Silver vs. Western Ass'ce Co 97 Sanger vs Rothschild 396 Silvers vs. Mich. Mut. Ben. Assn. 374 Sargent vs. Knights Temp. (Sup. Simon, Israel & Co. vs. Sedgwick. 503 rL^^ge) 376 Simpson vs. Lafe Ins. Co. of Va. . 315 Sater vs !Henry Co. Far. Mut. Simrall vs. City of Covington 581 Fire Ins Co 1''8 Singleton vs. Phentx Ins. Co 501 Saunders vs Agr'l Ins. Co 182 Skuedera vs. Met. Life Ins. Co — 319 Savage vs Phenix Ins. Co 2U. Slocum vs. Western Ass'ce Co.... 122 Savannah F & M. Ins. Co. vs Small vs. Jose 289, 343 Pelzer Manfg. Co 233 Small vs. Westchester Ins. Co .132, 238 Sav. & Trust Co. vs. Guarantee Smith vs. Brown 360 654 INDEX OF CAISES DIC4ESTED. Smith vs. Cal. Ins. Co BO Standard Life & Acct. Ins. Co. vs. Smith & iHilglhes 304 Taylor 447, 462 Smith vs. N. B. CVtut. liife Ins. Co. 326 Standard Life & Acct. Ins. Co. vs. Smith vs. iN. Y. Ufe Z74 Thomas 4bl fiipith vs. Pence SW Stanhilber vs. Mut. Mill Ins. Co... 73 Smith vs. Phenix Ins. Co. .......... . 289 stapleton vs. Greenwich Ins. Co... Smith vs. People's Mut. Ben. See. 422 246 24» Smith vs. People's Mut. Live Star Un. Lumber Co. vs. Finney.. 23 Stock Insurance Co.... 586 gtarok vs. Un. Cent. Life Ins. Co. 33J ^fit ^^- ^'•^^^"^'^ ^^'- ^°''^- 444 Starling vs. Royal Templars of Smm.-v^.-i'VeierVed Mut.-Acci: ^^ s,^r^f-Serman.V.V.V.V.-.V. ''': . 1^ "^'^c^°^-"'^""^'"^''"" ^5itafl^J-i^^^^'icis;co:::;;::; i£ Snedk vs. Tra:vele"rs'lns:'Co.'.V.460. 472 State vs. Mech. & Traders' Ins. Snedicor vs. Citizens' Ins. Co 160 Co ; 1»9 Sneed vs. Brit. Am. Ins. Co 24, 118 State vs. Memphis City Bank 535 Solbrio vs. Manhattan Life Ins. State vs. Morgan 538 ■Co 544 State vs. Penn. iMut. Life Ins. Co. 343 Soli vs. Far. Mut. Ins. Co 193 State vs. Phenix Ins. Co 99 Solomon vs. Cont. Ins. Co 203 State vs. Sarvis 58 Somon vs. O'Brien 426 State vs. Stone 580 Souder vs. Home Friendly Soc — 415 state vs. Stonewall Ins. Co 583 Sourwine vs. Sup. Lodge K. of P. 419 State vs. Superior Court 523 South Bend Toy Mnfg. Co. vs. Da- State vs. Thomas 551 kota F. & M. Ins. Co 626 State vs. Travelers' Ins. Co 546 Southard vs. Minneapolis 558 state vs. Williams 568 Southern Ins. Co. vs. Parker 121 State ex rel. Att.-Gen. vs. West- Southern Hiome B & L. Assn. vs. ern Union Mut. Life Ins. Co 406 Home Ins. Co 147 state Ins. Co. vs. Beliford 20 South Western Mut. Ben. Assn. State Ins. Co. vs. Jamison Via vs. Swenson 406 state Ins. Co. of Des Moines vs. Sparks vs. Nat. Mas. Acct. Assn.. 542 Jordan 33 Speagle vs. Dwelling House Ins. State Ins. Co. of Des Moines vs. Co , 249 Taylor 38 Spooner's Admrs. vs. Hilbish..285, 548 state Ins. Co. vs. N. H. Trust Co. 563 Spencer vs. City Mut. Life Assn... 428 state Invest. & Ins. Co. vs. Super- Spillman vs. Home Circle 399 ior Court 21V Spratt vs. N. O. Ins. Co 88 state Kan. Co. vs. Gray 526 Springfield F. & M. Ins. Co. vs. State Mut. Fire Ins. Co. vs. De Jarnett 72 Brinkley Stave & -H. Co 7T Springfield F. & M. Ins. Co. vs. StaufEer vs. Manhelm Mut. Ins. Hull 25 Co 259 Springfield F. & M. Ins. Co. vs. StaufEer vs. Penn. Mut. Fire McLimans 248 Assn 169 Springfield F. & M. Ins. Co. vs. Steel vs. Phenix Ins. Co.... 133, 134, 217 Village of Keesville 154 steinbach vs. ODiepenbrook 33* St. Louis, A. & T. Ry. Co. vs. Fire Stenlick vs. Mechanics' Ins. Co.... 34 Assn .84,232, 542 Stensgaard vs. St. Paul Real St. Paul F. & M. Ins. Co. vs. Got- Estate Title Ins. Co 570 thelf 204 Stevens vs. Queen Ins. Co 109' St. Paul F. & M. Ins. Co. vs. Kelly 166 stever vs. Peoples' Mut. Accident St. Paul F. & M. Ins. Co. vs. Kidd 183 Assn ; 466 St. Paul F. & M. Ins. Co. vs. Par- Stewart vs. Un. IMut. Ufe Ins. Co. 303 sons 261 stiokley vs. Mobile Fire Ins. Co.. 268 St. Paul F. & M. Ins. Co. vs. Troop 519 stier vs. Imperial Life :....275, 2179 St. Paul Ger. Ins. Co. vs. Crad- Stockton Combined Harvester and dock 99 Agr'l Works vs. Glens Falls Ins. St. Paul Title Ins. & Trust Co. vs. Co ... 55 Johnson ....;. 584 stoehlke vs. Hahn, et al..'. '.'.". .538', B64 Standard Fire Ins. Co. vs. WiUock 120 stohr vs. San Francisco Mus. Standard Life & Acet. Ins. Co. vs. Fund Soc 383 •Askew 467 Stokell vs. Hey wood .!.'.!.. ■.'..!.'.... 529 Standard Life & Acct. Ins. Go. vs. Stone vs. Mut. Fire Ins Co 104 0.^°^'''^ i" T i^®^»^- A°' P t*''°"a ^^^ Stott vs. Lon. & Lan. Ins. Co 45 ^*.^"i^?'''^ ^"® ^ ^°°^- ^"^- ^°- ■^®- .,„ Stoughton vs. Man. SSTat. Gas Co.. 211 Catlln .................'....... 44, gtraub vs. A. O. U. W 427 Standard Life & Acct. Ins. Co. vs. Strunk vs. Firemen's Ins. Co. of Langston 46S Chicago 248 Standard Life & Acct. Ins. Co. vs. Stuart vs. Mut. Res. Fund Life Koen 468, Assn 440 Standard Life & Acct. Ins. Co. vs. Studwell vs. Mut. Ben. Life Assn. 356 Martin.. 463 Sturm vs. Baker 574 Standard Life & Acct. Ins. Co. vs. Sullivan vs. Germania Life Ins. Strong 477 Co. Z7» INDEX OF OASES DIGESTED. 655. Sullivan vs. Hartford Fire Ins. Traders' & Trav. Aco't Assn. vs. Co 251 Wlagley 474 Sullivan vs. Industrial Ben. Assn. 350 Travelers' Ins. Co. vs. California Sulz vs. iMut. Hes. Fund Life Ins. Co ;.. 131 Assn 423, 426 Travelers' Ins. Co. vs. Cash 473- Summerfield vs. N. B. & ffller. Ins. Travelers' Ins. Co. vs. Dunlap 470 Co 48 Travelers' Ins. Co. vs. IHealy..284, 285- Summerfleld vs. Phoenix Assur- Travelers' Ins. Co. vs. Henderson ance Co 223 526, 576 Sun Fire Office vs. Ayerst 27, 261 Travelers' Ins. Co. vs. Grant 306 Sun Fire Office vs. Clark 240 Travelers' Ins. Co. vs. Lampkin. .. 333 Sun Fire Office vs. Wich 130 Travelers' Ins. Co. vs. McCarthy.. 452 Sun M'ut. Ins. Co. vs. Mattingley 209 Travelers' Ins. Co. vs. Melich. .330, 573 Sun Mut. Ins. Co. vs. iSearles 583 Travelers' Ins. Co. vs. Pulling 301 Sunderland Steamship Co. vs. Trinity College vs. Travelers' Ins. North of England Ins. Co 509 Co 311 Survick vs. Valley Mut. XJfe Assn 35S Tripp vs. N. W. Live Stock Ins. Susquehanna Mut. Fire Ins. Co. Co 556 vs. Oberholtzer 167 Trippe vs. (Prov. iFUnd'tSoo 463, 484 Sutherland vs. .Standard Life & Troop vs. St. Paul F. & )M. Ins. Accident 471 Co 500 Swain vs. Security Live Stock Troop vs. Union Ins. Co 521 Ins. Co 579 True vs. Bankers' Life Assn. of Sweeting vs. (Mut. iB^ro Ins. Co 170 IMinn 364 Swing vs. Ackley Lumber Co 156 Tubb vs: CL. & L. & G. Ins. Co... 106 Syndicate Ins. Co. vs. Bohn 148 Tucker vs. U. S. Xdfe and Acc't Syndicate Ins. Co. vs. Catchings.. Assn 412 189, 211 Turnbull vs. Home Ins. Co 104 TaJibert vs. Storum 310 tTi^I^E S. ^S- RV- Co. vs. Rasiberry. 468 Talbott Ins. Com'r vs. Fidelity & fflvS= ^ ^ rai rn 580 Umbna. The 483 Tanenbaum' ' Vs.' " Feisi! ::::::::::::: 77 union B. & .L. Assn. vs. Rockford ^fJls^'co'^'- ^'™°"' ^"*- ^''^ » Uni"on fns. Co. •vsiBarwick;:::::::: OT Tayiir vs. A;■b."^^j:■w::::."::::::::■ 431 Union Cent. Lite ms. co vs. '"Ssn "'■ '"'^""^ ^'"■'" ^^- 67» uS.^C™"life-Ins; Co.-Vs: Holl?: ""' Taylor vs. Port Jefferson MilUng ^ urCenV.- Life 'ins: Co. ' Vs! ' LipsI ''' -r^ylo^^l^-'si^'^^^'^'^i^ & A<=°'t 525 uS°Ceni:Life-ins.Co.Vs.Schneid: '"^ Ins. Co 020 j^^ jlj^ Taylor vs. State Ins Co 30 un. Cent.' LKe Ins'.' Co.' vs.' Smith!.' 557 Tebbets vs. Mer. Credit Guaranty un. Central Life Ins. Co. vs. Tag- Co • 0" g-art 322 Teckmeyer vs. «oyal Templars of Un. Cent. Life Ins. Co. vs. Woods. Temperance wt 287, 308 Teel vs. "Winston ob4 un. Mar. Ind. Co. vs. Boswick 512 Tefft vs. IProv. Wash. Ins. Co 64 un. Ins. Co. of Cal. vs. Am. Ins. Tennant vs. Dudley ^ Co 219 Terry vs. Prov. Fund Soc w4 un. Nat. Bank vs. Ger. Ins. Co. 35, 185 Terwilliger vs. Indus. Ben. Assn.. 352 University Fire Ins. Co. vs. Taber. 631 Tessman vs. United Friends of U. S. Ins. Co. vs. iMoriarity 142, 263 Mich ^ U. S. Life Ins. Co. vs. Ross 302' Thame's '& Mersey Ins. Co. vs. U. S. Mut Acct. Ass'n vs. City iPittson & Bing 520 of New York 460 Thebaud vs Gt. Western Ins. Co. 515 U. S. Mut. Acct. Assn. vs. Kitten- ThipI>welling House Ins. ,^ ^^V^.K-ft^'f,?!. 5.^' ".- ; ; ; ; ; ; ^ CO. ..;.•.■■-•■•■• •••••V- 215 Von Arx vs. Gruelti Verein 399 Traders' Ins. Co. vi.(P^aud..m, 187 Voisln vs. Com. Mut. Ins. Co 49* 542 173 549 318 ,656 INDEX OF OASES DIGESTED. Wabash Val. Protective Assn. vs. „ Westchester Ins. Co. vs. Coverdale James *!'?. ^^2 Westchester Ins. Co. vs. Storm.... Wadswor'th vs.' Jewelers & Trades- ^^ ^^^''^^^i °°5^^-.V.V.-.:.V.:.:-.V.V.V.'. w"Ber'v1'p™v:'lns;c'o: ::::::::::: SW Westche^ter ms. Co. vs. Wagner Walner vs. Dwelling House Ins. Westfield Cigar Co. vs. Ins. Co. of ^^ TValdradt vs.' Phoenix ins. Co. 12^ .^^jieeler vs. Continental Ins. Co... 489 W'aldron vs. Home Mnit. Ins. Co.... lu -^heeler vs. Odd' Fellows' Mutual Walker vs. Am. Cent. Ins. C0..171, Ui ^,^ ^^^ Accident Ass'n.......... 431 Walker vs. Beecher 1^. mo Whiting vs. Mississippi Val. Mut. Walker vs. Giddlngs ......395, d9b j^^^ ^^^ ,95 ^fl^e^r ^1: ^ren^'^!n?1:o':=°V.i38; | Wheeler vs. Real Estate Title Ins. ^^^ ^afirvV1kS^''L«e"inl^'co':^ •. i i ! ! ! | Whiie' ' vsV Phoen^' Ins.' Co. . ! 247 Walih vs. Bed Men 43B white vs. Prov. Sav. Life Assur- Walsh vs.- Walsh •■ 373 anoe Soc iH Walthear vs. Penna Ins. Oo i»» White vs. (Royal Ins. Co 65, 204 .Wanless vs. Lan. Ins. Co..... ^» Whiting vs. Equitable Ldfe Assur- Ward vs. China Mut. Ins. Co...... 614 whitlach vs. Fidel. & Cas. Co.448, 471 Ward vs. Met. Life Ins. Co ^(s, d*( whltmore VB. Knights & Ladies of Ward vs. Nat. Flte Ins. Co 124 jjonor 416 wt^iJ^, '^■Hudson '.'.'.'.'.'.\'.'.'. 133 Whitney vs. Nat. Mas. Acc't Ass'n 442 wtrnir vs-NaLLUe Ass:n.364, 423. 458 Whitten vs. N. E. Live Stock Ina Warner vs. U. S. Mut. Acc't Ass'n 458 Co bi6 Wiarren vs. Phoenix Ins. Co.... 220, 253 -vvich vs. Equitable F. & M. Ins. Warren vs. Springfield F. & M. Co 191 Ins. Co ""' '*"' Wilbur vs. Williamsburg City Ins. Warshawky vs. Anchor iMut. Ins. Co X'-Vt A' M Co •'•°'' ''"^ Wilcox vs. Cont. Ins. Co 255 WiKskburn Mill Co. vs. Fire Ass'n. 167 Wildberger vs. Hartford Ins. Co... 40 wllhbum & Moen Man'f'g Co. vs. ^„^ :W^iSfl'" vs. pes Moines Ins. Co... m Reliance Mar Ins. Co. ■ 498 Wilklns vs. State Ins. Co. 31 Washburn vs Nat Acc't Soc 480 Williams vs. Greenwich Ins. Co. ... 28 Washington Life Ins. Co. vs. Lane 312 Williams vs. Hartford Ins. Co ... 15S Waters vs. Wandless 624 Williams vs. Preferred Mut. Aoot. Waterworth vs. Am. Order of Assn 458 Dniids 3«6 Williams vs. Prov. Wash. Ins. Co. 499 •Watts vs Southern Bell Tel. & Williams vs. U.S. Mut. Acct. Assn. 448 Tel Co ^ Williamsburg City Ins. Co. vs. Way' vs. Abington Mut. Ins. Oo... m. Ouwin 170 Waycott vs. Met. Life 297 Willow Grove Creamery Co. vs. Webster vs Dwelling House Ina. Planters Mut. Ins. Co Z5 Co 114, 143, 214 Wilson vs. Aetna Ins. Co 177 ■arM^ -.ra TT <5 Milt Aoc't Ass'n 446 Wilson vs. Mnt. Fire Ins. Co 82 wiidert vs Statflns Co ...... 44 Wilson vs. N. W. Mut. Aoot. Assn. 442 wligle vs ■ Cascade F & ii. Ins. Winfield vs. Mut. Res. Fund Life Co 225 Assn 394 _^'7' ', „ ,11 Wirgman vs. Miller 348 Weigelraan vs. Bronger Sll xB-ist vs A O TT W W? Wetler vs. Equitable Aid Un 424 wolcott'vs Snra^ue 2^0 Weir vs. Aetna Ins. Co 89 Wo f vs imch Mas ' 'iM'ut' " 'T'lf^ Wells vs. Covenant Mut. Ben. Assn . . .™? . . . 362 -'^s®'" ^^^ Wood vs.'Am.'Fi're' iris. "Co! '.!".! '.".'.'. West of Eng. Fire Ins. Oo. vs. 64, 91^ 92, 237, 255, 261 Isaacs 81 Wood vs. Standard Mut. Live Western & At. Pipe Line Co. vs. Stock Ins. Co 565 Home Ins. Oo 86 Wood vs. Young B62 Western Ass'ce Co. vs. Altheimer Woodcock vs. Hawkeye Ins. Go 28 Bros 202 Woodside & Co. vs. Globe Marine. 518 Western Ass'ce Co. vs. Ontario Wooliver vs. Boylston Ins. Co 89 184 Coal Co 491 Wright vs. Fire Ins. Assn '. 145 Western Ass'ce Co. vs. Redding... 269 Wright vs. Royal Ins. Co 63 Western Ass'ce Co. vs. Sarah J. Wright vs. Susquetoanna Mut Ins ^ Weed 511 Co ' [ 54 Western Ass'ce Oo. vs. Southern Wyman vs. Gillett ...'.'. g6S Cotton Oil Co 503 Wyman vs. Phoenix Mut. Life Ins Western Ass'ce Co. vs. S. W. Co 345 Trans. Co 607 Wythe vs. Man. Aoot. Assii!! 472 Western Ass'ce Co. vs. Studebaker Wytheville Ins. & Banklne Co vq' Bros 203 Tleger rqf W^estern Ass'ce Oo. vs. Stoddard.. 188 Toch vs. Home Mut. Ins"co irk Western Ass'ce Co. vs. Williams... 220 Tore vs. Booth.. ' ""fflg m Western Home Ins. Co. vs. Rich- Young vs. Grand Lodge,' "etc" "420' ^s ardson 197 Young vs. Sons of Progress '" «l Western Home Ins. Co. vs. Throp. 211 Zell vs. Herman Far. Mut Ins ' Co" 77 COMPANIES REPORTED. Abington Mutual Fire Accident Ins. Co. of N. A 453, Aetna Ins. Co.. 56, 68. 76, 87, 89, 139, 140, 148, 177, 183. 190. 191, 204, 21S, 241. 267, 268, 270. 508, Aetna Life Ins. Co 284, 293, 299, 302, 315, 328, 338, Aetna Live Stock Ins. Co Agricultural Ins. Co 76, 96, 105, 108, 109, 121, 146, 148, 172, 182, 201 208, 240, 245, 260, Allemannla Ins. Co.. 84, 90, 134, 164, 202, Alamo Ins. Co 22, 26, Albany Ins. Co Alliance Mutual Fire Amazon Ins. Co 45, American Aco't Ins. Co 452, 457, 458, 460, 464. 472, 474, American Casualty Ins. Co 'American Central Ins. Co... 37, 70. 76. 99, 143, 168, 171, 172, American Credit Indemnity Co — American Bmp. Liability Ins. Co.. 457, American Fire Ins. Co.... 24. 28, 33, 48, 61, 64, 65, 66, 91, 92, 110, 119, 120, 174, 176, 185, 190, 209, 217, 229, 237, 255, 261, American Legion of Honor 373, American Life Ins. Co American Mas. Life Ass'n .\merican Mutual Acc't Ass'n.. 443, American Order of Druids American Steam Boiler Ins. Co — 537, 541, 554, American Surety Co.... 470, 474, 477, 539, 563, Anchor Mutual Fire 57, 67, 157, 158, 184, 236, 252, A O U. ■W....349, 360, 354, 355, 356, 358, 361, 366, 368, 370, 374, 376, 377, 378, 379, 382, 385, 388, 390, 401, 403, 421, 431, Atlas Acc't Ass'n V Bankers Acct. Assn.........--.-- Bankers' Life Ass'n... 334, 351, 3o7, Ben Franklin Ins. Co......... ■■•■»&. Boston Marine Ins. Co..^/, 504, 5W, Boylston Ins. Co ^ ■■■ ■ ' Bricklaye-rs' Ben. and Prov. Umon British Am. Ass'ce Co.. 24, ^40, 118, British & For. Marine Ins.^Co^.: Broadway Ins. Co... .....■•-•••••■• • Brooklyn Life Ins. Co.^3, 301, 303, Brotherhood of R. B Brakemen Burlington Ins. Co 31, 35, 142, ISO. 162. 205, 221, 227, 2oi. 2d4, 269. 271, C & W. Man. Mutual ■•■ Caledonian Ins- Co....... ••■••■••■°'' California Ins. Co.. 50, 116, 126, 137, §ISI^fan^'iSiriS&-Ass'n::;|; g^?S??iS l^n?gi5?|-o? America.;!^'; cttholic Mutual Ben. Ass'n........ Charter Oak Life Ins. Co China Mutual Ins Co 226 482 582 550 570 260, 264 212 160 127 155 162 434 228 237 240 117 133 564 292 532 552 480 456, 675 484 553 262 535 475 549 381 452 462 464 366 563 573 627 439 450 450 364 184 516 184 408 510 518 527 319 372 584 236 248 514 443 418 145 251 225 381 366 287 228 Chosen Friends 366. 420, 432, Church Mutual Ins. Co Citizens' Ins. Co.... 77, 160, 194, 201, Citizens' Ins. Co. of Canada Citizens' Ins. Co. of Bvansville Citizens' Ins. Co. of Pittsburg City Mutual Ins. Co 190, Commercial Alliance Life Commercial Ins. Co 36, 66, 114, Commercial Mutual Ins. Co 494, Commercial Travelers' Ass'n... 382, Commercial Travelers' Mut. Acc't Ass'n Commercial Union 56, 85, 88, 131, 221, 243 Commonwealth Ins. Co 235 Commonwealth Mutual Ins. Co 65 Concordia Fire Ins. Co 182 Confederation Life Ins. Co 311 Connecticut Fire Ins. Co HI, 209 Connecticut Indemnity Ass'n 441 Connecticut Mut. Life Ins. Co 272, 294, 311. 336, 341 Continental Ins. Co... 39, 42, 54, 74, 90, 100, 103, 111, 165. 181. 186. 189, 196, 203, 206. 208 ,231, 255. 259, 489, 508 Council Bluffs Fire Ins. Co 227 Countrymen's Mut. Fire Ins. Co.. 114 Covenant Mutual Ben. Ass'n 346. 365, 376, 440 Crescent Ins. Co 509 Crown Ins. Co 459 Dakota F. & M. Ins. Co 27, 79, 87, 103, 110, 136, 204, 526 Delaware Ins. Co 102, 115. 160. 230 Des Moines Ins. Co 203, 229 Detroit F. & M. Ins. Co 497 Detroit Man. Mut. Ins. Co 158 Dominion Grange Mut. Ins. Co — 78, 79, 82, 225 Dresden Mutual Fire Ins. Co 128 Druids, Order of 380 Dutchess County Mutual Fire Ins. Co 70, 90, 201 Dwelling House Ins. Co. ..i 46. 52, 75, 76, 98, 114, 143, 155, 162, 187, 210. 213, 214, 245, 248, 249, 267, 268 Eagle Fire Ins. Co 36, 81 East Texas Fire Ins. Co ..39, 67, 118, 147, 181, 243, 244, 249, 255 Empire Order Mutual Aid 413 Empire State Ins. Co 30 Employers' Liability Cor 451, 457, 461, 465, 466, 476, 545 ■ Equitable Aid Union 384, 424 Equitable F. & M. Ins. Co 34, 100, 169, 191 Equitable Lite Ass'ce Soc 273, 276, 292, 295, 316, 318, 321. 310. 341, 422 Equitable Mutual Fire Ins. Co.... 70, 156, 157 Equitable Mutual Life & End't Ass'n 354, 363, 394 Equitable Reserve Fund Life Ass'n *!■*. ^f Expressmen's Aid Soc 351 Family Fund Soo 369 Faneuil Hall Ins. Co 219 Farmers' & Merchants' Ins. Co... 207 Farmers' Fire Ins. Co 117. 175 Farmers' Mutual Fire Ins. Co — 87, 107, 108, 129, 134, 154, 159, 184. 193, 383 Farmers' Mutual Fire Ins. Co. of Keat Co 2" 658 INDEX OF COMPANIES RErORTED. Farmers. Mutual Fire Ins. Co. of ,^^^ Hc,meFireJn«.Co^28,^|, 42,^51.^56. flJSS ^'rr."FSflis.^?o".Vl01. 528 Ho- Fire Ins. Co of New Or- Farragut Fire Ins. Co. Fidelity & Casualty Co.... 446. 448, 450, 454, 465. 466, 467. 471, 474, 477, 483. 549, 542, 545, 558, 580. 681, Fidelity Fire Ins. Co r\V' Fidelity Mutual Life Association. 145, 162, 167. 178. 190, 194. ai«. 113 leans „ Home Fire Ins. Co. of Omalia..... 135, 140, 586 Home Friendly Society .402, 192 Home (Man's & Traders' Mutual IFire •jw Home Mutual Fire Ins. Co 176. 145, 162, 167. 178, wu, i»*. |«, II g°SU^?ii<, 'Mutual Life Ins. Co. Fire Insurance Association..... 4»b, w j^ Owners' Mut. Ind'y Assn... Fire Ins. Co. of Co. of Pnll i»i - ._.._.,_„. Fireman's Fund ^ire ^Ins. Co. ■ . . . . ^^ Fireman's Ins. Co. of Chicago — 223 Mr'emen's Ins. Co.. 42. 43, 193 2S6, 248 Foresters.Order of ^...;;;..;352.391. d»» 178 Franklin Fire Ins. Co.. 116 180. 184, Franklin Mut. Fire Ins. Co ••..•■•■ Georgia Home Ins. ^Co..^..33,^48. 109, German Am. Hail Ins. Co.......... German Am. Ins. C0...43, 49. 52, 56, 72 84, 87. 101. 164. 174, 238. 241, 265, 543, German Ins. & Sav. Inst............ German Ins. Co. ...34. 35, 36 41, 43. 60 71, 72, 73, 97, 100, 101, 105, 123, i36, 144, 148, 150, 159, 163, 168, 175, 185, 191, 204, 207. 213, 226 Hotel Owners' Mut. Fire Ins. Co. Humboldt Fire Ins. Co Illinois Live Stock Ins. Co Illinois Mutual Ins. Co -.. Imperial Life Ins. Co.. 275, 277, 279, 322. 325, 332, 335. Indemnity & Investment Co Indemnity Mutual Marine Ins. Co. 489. 490, India Mutual Ins. Co Indiana Farmers' Live Stock Ins. ^0 M, Indiana" Ins.' Co 26, Industrial Ben. Assn 350. 352, 353, 389, Ins. Co. of N. A.. 21, 44. 58, 78, 86, 134 139, 187, 213, 228, 232, 485, 516, Ins. Co. of State of Pa 571 225 213 415 256 177 330 523 557 237 586 195 578 238, 245, 249, 252, 261, 266, o41 international Fraternal Alliance.. German Ins. Co. of Philadelphia.. IBI lonia, Baton & Barry Mutual Fire German Mutual Ins. Co 250, 254 57, Germania Fire Ins. Co.... 51, 82, 106, Iowa Mutual Aid Assn. .^6; ;i39, 143, 177, 179,' 181, m, 566 -wa ^.u.^^^. ^.^ Germania Life Ins. Co........... OT, rflb j^^^^ ^ j^gj,_ j^g^ ^^ Girard F. & M. Ins. Co.... 193, 207, Glens Falls Ins. Co 31, Globe Accident Ins. Co Globe Fire Ins. Co 81, 125, Globe Marine Ins. Co. 224 55 482 150 518 380 Iowa State Traveling Men's Ansn. Iron Hall 386, 409, Jefferson. Ins. Co Jewelers' & Tradesmen's Co — 386, Jewelers' League Golden Cross J»" john -Hancock Mutual Life Ins, Golden Lion .,....._^. ..••_•.•■.•■••. »?» co 281, 292. 298, 328. 332 Kansas Farmers' Fire Ins. Co.. Good Temp. Mut. Benefit Ass'n. _ Granite State Prov. Ass'n 543, 579 Great Eastern Cas. & Indemnity Kansas Home Ins. Co. 41, 88, 110, Co. ."■•••• .....•••-.• 466, ¥M Kansas Mut. Life Ins. Co Kenton Ins. Co. Great Weatera Ins. Co x».^„.u„ x.i=. -.v „, .^'^' *!?• P', ^1*=.,^' fJ^' IJ1 Keystone Mut. Ben. Assn Great Western Mutual Aid Ass n. 361 ' 355 358 402 Greenwich Ins- Co- • • -28, f , 53. 173, Klttaning Ins. Co '...,22, 47! * - "5, 199, 218, 246, 249, 519 Knights of Golden Eagle Guaranty Co. of ><. A 523, o30 Knights of Golden Rule Guaranty Loan & Trust Co o36 Knights of Honor Guardian Firs Ins. Co 361, 333, 337 397, 410, 48,^8, 101, 137^ 256, 258 Knights of Maccabees...' 372. 389, 390, 422, 131 Knights of Pythias.... 355, 384, 387, 392. 395, 403, 419. 666 Knights Templar and Mas. Mut. Aid Assn Knoxville Fire Ins. Co 153, 169, 176. 186, 192, 233, 251, 258, 267 28, a9, 262, Hartford Life & Annuity. . .374, 394, 439 La Fouciere Compagnl D'Assur- Hartford Steam B. & Ins. Co.. 536. 569 ances Hatboro Mutual Live Stock and Lancashire Ins. Co 104,161,218, Provision Ins. Co 547 228,229,537, Hawkeye Ins. Co 26, 198, 203 Lebanon Mutual Ins. Co 28, Hekla Ins. Co 219 Legion of the West 380, Henry County Farmers' Mutual Liberty Ins. Co 165,166, Ins. Co 178 Lite & Annuity Assn Herman Farmers' Mutual Fire 77 Life & Reserve Fund Assn Hibernia Ins. Co 1*4, 241, 257 Life Indemnity & Investment Co.. Holyoke Mutual Ins. Co 222 Life Ins. Co. of Virginia Home Ben. Assn 354, 367, 409, 424 Life Union Home Circle 399 Lion, Fire Ins. Co Hamburg-Bremen Fire Ins. Co.. 117. 121, Hanover iFire Ins. Co 83. 115, 146, 179, 180, 188, 201, 260, 27l, Hartford Fire Ins. Co.... 19, 30, 40, 46, 47, 54, 61, 75, 83, 141, 143, 150. 510 508 587 40 391 574 205 416 155 350 422 113 383 414 3^ 4S7 370 340 158 155 34:i »4 162 403 376 412 438 421 391 269 515 53S 210 396 213 418 435 339 315 435 33 INDEX OF COMPANIES REPORTED. 659 L.. & Z,. & G. Ins. Co.. 19, 39, 46, 53, 57. 58, 75, IOC, lU, 120. 132, 161, 174, 207, 257, 224, 248, 270, 545, Livingston Co. Mut. Fire Ins. Co.. London Assurance Cor.. 22, 107, 149, 151, Mutual Ben. Life Ass'n....356, 391, BW Mutual Ben. Life Ins. Co 582 278, 280, 298, 299, 532 537 Mutual Fire of N. Y 57, 97, 104, 170, 173, 365 219 Mutual of Marshfleld 265 London & Lan. Ins. Co. ...45, 46, 94^ 264 Mut. Life Ins. Co. .272, 278, ' 281, ' 282 London & Prov. Marin-3 Ins. Co... B02 London, Edinbuvjr & Glasgow Fire 44:^ London Mutual Ins. Co 63, Long Island Ins. Co Louisville Underwriters 183, 296, 297, 298, 300, 312, 314, 315, 316, 320, 322, 324. 326, 331, 337, 339, 342, 344, 522 Mutual Reserve Fund Life Ass'n 253 352, 353, 354, 356, 369, 394, 554 405, 412, 423, 431, 433, 437, Lycoming; Fire Ins. Co I5g National Acct. Soc Maine Mutual Acct. Assn. Manchester Fire Ins. Co 62, 74, 102. 187, lSi8, 225, 244, 257. 262, Manhattan Life Ins. Co.... 274, 281, .441, 480, 440 571 301, 307, 316, 345, 544 555 National Ben. Assn 456 National Firo Ins. Co.. 104, 124, 126, 263 164, 483 National Life Assn 364, 372, 400, Manhattan Mutual Fire Ins. Co... Manhsim Mutual Ins. Co 259, KB, 409, 423, 578 112 National Life Ins. Co 283,293, 323 508 National Live Stock Ins. Co 5K Manfrs. Acct. Ins. Co '. 472 National Masonic Acct. Assn. ..442, Manfrs. & Bldrs. Fire Ins. Co Manfrs. and Mer. Life Ins. Co Manfrs. Mutual Ins. Co 44, 156, Masonic Fraternal Acct. Assn 363, 444, Masonic Guild & JIutual Benefit 105 444, 446, 447, 451, 25.') Nebrabka & Iowa Ins. Co.. 137, 264, New Boston Fire Ins. Co 460 New England Fire Ins. Co _ New England Loan & Trust Co — Assn 360 New England Live Stock Ins. Co. . Masonic Life Assn 408 New England Mutual Acct. Soc.441 424 270 Masonic Life Assn. of Western New York 402, 420 Masonic Mutual Life Assn 377 Mass. Ben. Assn.... 350. 359, 362, 367. 371, 384, 390, 392, 397, 402, 404, 410, 416, .Mechanics & Traders' Ins. Co... 74, 180, 199, 253, Mechanics' Fire Ins Co 34, 55, 69. 106, Mercantile Credit Guarantee Co... 535, Mercantile Trust & Deposit Co " Merchants & Bankers' Mutual Ins. Co 110, 125, 171, 262, 362, Merchants' Ins. Co 21, 55, 109, 125. 146, Merchants' Mutu.al Acct. Assn.. 448, Meriden Ins. Co , Metropolitan Life Ins. Co.. 273, 278, 279, 281. 282, 285, 288, 297, 298, 304, 306, 309, 312, 313. 314. 316, 318, 321. 323, 331, 344, 347, 371, Michigan F. & M. Ins. Co .'85, Michigan Masonic Ben. Assn Michigan Mutual Life Ins. Co 280, 239, 320, 330, Michigan Mutual Ben. Assn Mill 0\\'n,ers' Mutual Ins. Co ilillers' Mutual Ins. Co Milwaukee Mechanics' Ins. Co. ..38, 55, 117, 127. 149, 202, 206, 542 585 59 24 193 523 476 326 Minneapolis Mutual Fire Ins. Co.. New England Mutual Ufe Ins. Co. New Hampshire Fire Ins. Co.. 150, 163, New Orleans Ins. Co New York Bowery Ins. Co... 51, 63, 69, 72, New York Life Ins. Co. 273, 274, 277, 289, 290, 294, J02, 303, 318, 329 333 334 232 New York Mutual Ins. Co.. 61,' 493! 514 New York State Mutual Benefit 563 Association 359, 387 New Zealand Fire Ins. Co 448 Niagara Fire Ins. Co.... 127, 129, 166, 167, 170, 171, 186, 187, 214, 216, 235, 522 237, 265, North American Life Ins. Co.. 320, 268 North British & Mer. Ins. Co 478 17, 26, 48, 102, 103, 120, 198, 22 Northern Insurance Co 208, Northwestern Commercial Trav- elers' Association 464 Northwestern Endowment & Leg- acy Association 377, Northwestern Legion of Honor — 356, 366, 367, Northwestern Live Stock Ins. Co. 656, 586, Northwestern Masonic Aid Ass'n. Northwestern Mutual Accident Association 442, Northwestern Mutual Life Ins. Co. 280, 293, 296, 2S7, 324, 199 76 34R 243 501 328 214 531 568 593 587 524 460 Minneapolis Mutual j' ire ins. 1.0 oia Northwestern Mutual Relief Asso- Minnesota Fire Assn ,.. 29, M2 elation 364, 417, , Northwestern National Fire Ins, Minnesota Masonic Relief Assn Minnesota Odd Fellows' Mutual Ben. Ass'n 345 437 375 Co 32, 93, 119, 2U Minnesota Title Ins. Co 669 Northwestern Traveling Men's As Miss. Home Ins. Co.. ..108, 234, 244, 257 „^°5iti, TTAinr;V.;;'nn Miss. Valley Ins. Co .27, 195 Norwich Union Ins. Co .... ... Mobile Ins Co 232, 268 25, 63, 222, 230, 232, 55.i Modern Woodmen 405, 433,' 438 Nova Scotia Marine Ins. Co 486, 613 Montauk Fire Ins. Co 53 Oakland Home Ins. Co.. 26, 134, 151, 206 Mortease Ins Co ... 578 Ocean Marine Ins. Co 489 Montgomery ' County Farmers' Odd Fellows' Fraternal Accident Mutual Fire 157 Associatio-i 469 Morotock InB. Co. .142, 143, 168, 240, 245 Odd Fellows' Mutual Aid & Accl- Mutual Acc't Ass'n of N. W...452, 462 dent Association 431 66o INDEX OF COMPANIES REPORTED. Ohio Farmers' Ins. Co 37 Old Wayne Mutual Life Ass'n.... 36o Omaha Fire Ins. Co 87- HO, 124 Operative Plasterers' Mut. Union. 411 Order Financial Union 420 Order Railway Conductors 368 Oregon P. & M. Ins. Co 197, .220 Orient Ins. Co.. 102, 113, 144, 153, 164, 244 Osborne Fire Ins. Co 62 Oshlcosh Mutual Fire Ins. Co 112 Paciflc Endowment League 366 PaciHo Mut. Life Ins. Co.... 279, 449, 459, 461, 471, 475, 478, 484, 571 Palatine Ins. Co US Pamlico Ins. & Banlting Co 73 Parkersburg Fire Ins. Co 151 ralican Ins. Co 117, 165, 199, 242 :»'enn Mutual Life Ins. Co,... 294, 299, 305, 314, 332, 336, 342 Pennsylvania Co. for Insurance — 582 Pennsylvania i^'lre Ins. Co S9, 105, 187, 198, 260 Pennsylvania Mutual 'Fire Ins. Co. 169, 170 Pennsylvania Township Mut. Fire A.ss'n 59, 178 People's Fire Ins. Co 193, 251 People's Mutual Accident Ins. As- sociation 466 People's Mutual Beneflt Society.. 348, 362, 383, 406, 422 People's Mutual Fire Ins. Co 159 People's Mutual Live Stock Ins. Co 586 Phenix Ins. Co.... 19, 25. 30. 39. 42, 57, 87, 89, 90, 94, 99, 122. 133. 134, 138, 140, 142, 149, 152, 176, 189. 192, 197, 200, 206, 209, 211, 215, 217, 218, 239, 257, 258, 261, 262, 267, 504. 575 Phoenix Assurance Co 32, 34, 51, 107, 222, 226, 231, 271 Phoenix Ins. Co.... 20, 24, 53, 74, 79, 114, 118, 123, 138, 140, 146, 147, 163, 166, 173, 175, 181, 210, 216, 220, 230, 239, 247, 250, 253, 260, 263, 521, 558 Phenix Mutual Life Ins. Co.., 276, 345 Plncknayville Mutual Fire Ins. Co. 157 Planters' Mutual Fire Ins." Co 25 Preferred Masonic Mut. Accident Association 444 Preferred Mutual Accident Asso- oiatiOT 456, 459, 484 Providence Ins. Co 516 Provident Fund Society 417, 453, 467, 478, 484, 524 ProvId,5at Life insurance Asso- ciation 363 Preseott Fire Ins. Co 35, 260 Provident Perrn Firemen's Relief Association ./.'.C 331 Provid5nt Savings Life Assurance S0C...275, 301, 302. 302, 332, 333 339, 346 Providence Washington Ins. Co... 64, m, 205, 210, 212, 218, 258, 488, 499, 501, 513 Prudential Ins. Co.. 272, 277, 290, 291 310, 525 Pythian Life Association 393 Quaker City Mutual Ins. Co 20S Queen Ins. Co 31, 73, 109, 136, „ , „ 246, 247, 252, 522 Quincy Mut Fir© Ins. Co.. 41, 68, 93, 101 Railway Oft. & Emp'rs' Accident Assn 441, 458, 473, 483 Railway Pass'rs & Freight Cond'rs Mutual Ben. Assn 376, 403, 415 Reading Fire Ins. Co 41, 95 Red Men 436 Reliance Marine Ins Co.... 498, 501, 517 Reliance Mutual Ins. Co 98 Rhode Island Underwriters 261 Rochester German Ins. Co... 38, 45, 52, 249, 52i Rockford Fire Ins. Co.... 17, 49, 76, 77, 154, 161, 196 Roman Catholic Mut. Ins. Co 440 Royal Adelphia 379 Royal Arcanum 365, 397 Royal Ben. Soc 400 Royal Canadian Ins. Co 607 Royal Ins. Co.... 29, 57, 66, 68, 86, 131, m, 184, 200, 207, 214, 217, 224, 238, 242, 259 Royal Son. of Good Fellows 357 Royal Templars of Temp.. 386, 388, 394, 401 San Francisco Musical Fund Soc... 383 Savannah F. & M. Ins. Co 233 Scottish Union & National Ins. Co. 32, 44, 182, 192, 194, 264, 271 Screwman's Ben. Assn 398 Security Fire Ins. Co 34, Kl Security Live Stock Ins. Co 6'79 Societa Italiana DI Muto 411 Sons of iMoses 392 Southern Ins. Co 81, 121 Southern Mutual Irs. Co 223 Southwestern Mut. Ben. Assn 406 Spring Garden Fire Ins. Co 213 Springfield F. & M. Ins. Co. ..25, 72, 315, 141, 154, 205, 248, 250, 254 St. Jean de Baptlste 404 St. Lawrence County Mutual Ins. Co 40 St. Paul F. & M. Ins. Co.. 17, 27, 40, 63, 116, 135, 166, 168, 183, 195, 202, 204, 212, 261, 500, 519, 567 St. Paul German Ins. Co 27, 99, 183 St. Paul Title Ins. Co.... 534, 570, 583, 584 Standard Ac'c't Ins. Co 447, 464, 455, 461, 462, 463, 465, 467, 468, 469, 471, 475, 477, 525, 581 Standard Fire Ins. Co. ..62, 120, 145, 208 Standard Live Stock Ins. Co 547 Standard Mutual Live Stock Ins. Co 568 Star Fire Ins. Co 161 State Ins. Co 20, 26, 30, 31, 33, 38, 39, 44, 91, 99, 125, 563 State Investment & Ins. Co. .20, 217, 263 State Mutual Fire Ins. Co 39, 77 State Mutual Life Ins. Co 313 Stonewall Ins. Co 583 Sun Fire Office.. 23, 27, 68, 70, 91. 119. 130, 133, 167, 172, 234, 240, 2 16, 247, 251, 266 Sun Ins. Co 497, 506, 662 Sun Mutual Fire Ins. Co. .63, 93 209, 228, 683 Supreme Council A. L. H 374 Susquehanna Mutual Fire Ins. Co. 38, 54, 108, 157, 163, 195 213 Svea iFIre Ins. Co 95 Syndicate Ins. Co 147, 189, 211 Temperance & Gen. Life Ins. Co.. 3(B Teutonia Fire Ins. Co 131 Thames & Mersey Marine Ins. Co. Traders' & Travelers' Aoc't Ins. Co. Traders' Ins. Co 171, 187, Travelers' Ins. Co... 131, 284, 285, 3M., 306, 311, 329, 333, 344, 432, 449, 452, 455, 462, 470, 472, 473, 476, 482, 484, 626, 546, 673. United Brethren Mut. Aid Assn... 620 474 215 676 INDEX OF COMPANIES REPORTED. 66i Dnlled Life Assn.... 276, 347, 353, 356, 357. 423, United Masonic Ben. Assn 363, United States Fire Ins. Co... SO, 191. 265, United States Industrial Ins. Co... United States Life & Acct. Assn.. United States Life Ins. Co....27ti, United States Mutual Acct. Assn.. 443, 446, 450, 458, 460, 46 1, 467, 469, 479, Union Central Life Ins. Co. .287, 304. 308, 312. 319, 821, 322, 323, 326, 336, 338 339 Union Ins. Co 19, 21, 60, 241.' 506,' Union Ins. Co. of California Union Marine Ins. Co Union Mutual Ins. Co 297. 308, Universal Marine Ins. Co University Fire Ins. Co Vallev Mutual Life Assn 358, Vermont Mutual Fire Ins. Co 21, Vernon Ins. Co 182 439 Virginia F. & M. Ins. Co 46 413 Wabash Valley Pro. Union 417. 433 Washington F. & M. Ins. Co 174 486 Washington Life Ins. Co 312 285 West Coast F. & M. Ins. Co 18, 24 412 West of England Fire Ins. Co 81 302 Westchester Ins. Co... 78. 92, 93, 126, 132. 173, 23i K4,..542 „ Western Ass'ce Co. . .07, 122, 183. 192, 482 200, 203, 220, 224, 269, 491, 503. oU7, 511 Western Home Ins. Co.. 108, 137. 197. 211 ,., Western Man. Mutual Ins. Co 18 K, Western Mutual Aid SoC 440 Sfi Western Union Mutual Life 405 ^ Williamsburg City Fire Ins. Co. .37, 170 308 Workingmen's Co-op. Assn 361 520 Woman's Catholic Order of For- 53 esters 398, 390 400 Wythevllle Ins. & Banl^ing Co.... 196 34 Yorli Mutual Aid Assn 410