THE LAW OF INSUEANCE FIRE, LIFE, ACCIDENT, GUARANTEE BY WILLIAM A. KERB Of the Minneapolis Bab ST, PAUL, MINN.: KEEFE-DAVIDSOIS' CO. 1902 1902- COPYEIGHT, 1902, BY . ^:EEF]p.*DAyiE)SO^' QO. STATE JOURNAL PRINTING COMPANY, Printers and Stereotype's, madison, wis. PREFACE. To treat comprehensively, yet tersely, of a large matter is always difficult. In the attempt to condense this work within the compass of a single volume, I have been obliged to treat but sparingly of many features worthy of extended discus- sion. It has been my aim herein to furnish to the practi- tioner and the student of non-maritime insurance a brief statement of the law thereof in such fonn as will, with the aid of the references and citations given, be a convenient aid and guide to investigation. WiLLiAii A. Keke. Minneapolis, Minn., March 15, 1902. TABLE OF CONTENTS. CHAPTER I. INTRODUCTORY. § 1. The Origin of Insurance. 2. General Classification. 3. Insurance by Contract — Definitions. 4-12. Divisions. 13. Basis of Contract. 14. A Personal Contract. 15. Nature of Contract. 16. Wliat are Insurance Contracts. 17. Essentials of Contract. 18. Form of Contract. CHAPTER II. THE PARTIES TO THE CONTRACT. § 19. T'wo Parties Necessary. 20. Who may be Insured. 21-23. Who may Insure. 24. Failure to Comply with Statute. 25. Vested Rights. 26. Retaliatory Statutes. 27-28. Corporate Powers — Ultra Vires Contracts. CHAPTER III. THE^ CONTRACT— FORM. § 29. Oral Contract. 30-33. Making and Enforcement. 34. The Binding Slip. 35. Merger of Oral Contract. 36-39. The Policy. Vi TABLE OF CONTEXTS. CHAPTER IV. THE CONTRACT (Continued)— MAKING. § 40-46. Consummation of Contract. 47. Delivery of Policy. 48. Duration of Contract. 49. Renewal of Contract. 50. Revival of Policy. 51-52. Application. CHAPTER V. THE CONTRACT (Continued)— OONSTITUENTSw § 53. In General. 54. Oral Contract to Issue Policy. 55. The Lex Loci. 56. Ctistom and Usage. 57. Application. 58. Endorsements. 59. Mutual Organizations. 60. Amendments to Charter and By-Laws. 61. Consent of Members to Same. 62. Amendments must be Reasonable. CHAPTER VI. THE CONTRACT (Continued)— INTERPRETATION. § 63. General Principles of Construction. 64. Intent of the Parties Important. 65. Ambiguities. 66. Restrictions and Forfeitures. 67. Writing Controls Print. 68. The Law of the Place. 69. Custom and Usage. 70. Standard Policies. 71. Policies of Mutual Organizations. CHAPTER VII. THE CONTRACT (Continued)— REFORMATION, MODIFICA- TION, AND RESCISSION. § 72. Reformation of Policy. 73. Modification of Contract. 74. DisalBrmance of Rescission. TABLE OF CONTENTS. Vll CHAPTER VIII. AGENTS. § 75. In General. 76. Actual Authority. 77. Burden of Proof of Agency. 78. Presumption of Fidelity. 79. The Agent Must be Disinterested, 80. Destroyed Property. 81. Whom Does Agent Represent. 82. Statutory Regulation of Agency. 83. Evidence of Agency. 84. Appointment of Agents. 85. Classification of Agents. 86. General Agents. 87. Officers of Insurer as Agents. 88. Acts, Admissions and Declarations. 89. Subordinate Lodges Agents of Grand Lodge. 90. Special or Local Agents. 91. Brokers and Solicitors. 92. Stipulations in Policy Regulating Agency. 93. Agents of Mutual Companies. 94. Stipulations in Application Regulating Agency. 95. Acts Before Issuance of Policy. 96. What Agents May Waive. 97. Fraud and Mistake^of Agent. 98. Collusion Between Agent and Insured. 99. Knowledge of Agent that Warranties are False. 100. Powers of Agent after Policy is Issued. 101. Known Limitations of Agent's Power. 102. What Constitutes Waiver by Agent. 103. Limitations Fixed by Policy. 104. Stipulations that Only Certain Officers can Waive. 105. Stipulations that no Officer can Waive. 106. Stipulations that Waiver Must be in Writing. 107. The Better Rule. 108. ^Standard Policies. 109. Collection of Premiums and Renewals. 110. Stipulations of Policy Against Giving Credit. 111. Manner of Payment of Premium. 112. Power of Agent to Waive Proofs of Loss. 113. Clerks and Sub-Agents. 114. Delegation of Powers. 115. Proof of Authority of Sub-Agent. Viii TABLE OF CONTENTS. 116. Termination of Agency. 117. Adjusters. 118. Appraisers. 119. Ratification and Adoption of Act of Agent. 120. Duties and Liabilities of Agents. CHAPTER IX. INSURABLE INTEREST. § 121-122. In Property — ^Necessity and Nature. 123-124. Duration and Continuance. 125-127. In Lives. CHAPTER X. THE PREMIUM. § 128-130. Definition and Necessity. 131. Conditions of Policy Regulating Payment. 132. Manner of Payment. 133. Notice of Premium Falling Due. 134. Tender. 135. Waiver of Nonpayment. CHAPTER XI. "WARRANTIES AND REPRESENTATIONS. § 136-138. Nature and Definitions. 139. What are Warranties. 140. Representations and Misrepresentations. 141. Concealment. 142. Fraud. 143. Mistakes of Agents. 144. Waiver of Misrepresentation, Breach of Warranty, Fraud or Concealment. 145. Burden of Proof of Breach of Warranty or Misrepresen- tation. CHAPTER XII. THE CONTRACT AND ITS INCIDENTS. § 146-147. The Subject Matter. 48-150. The Risk Assumed. 151. Terms, Conditions and Stipulations of the Policy. 152-157. The Liability of the Insurer. TABLE OF CONTENTS. IX CHAPTER XIII. NOTICE AND PROOFS OF LOSS. § 158. Stipulations of Policy. 159. Construction. 160. Mutual Insurance Companies. 161. Statutory Regulation. 162. Distinction Between Notice and Proofs. 163. Several Policies of Same Insurer. 164. No Policy Issued. 165. Total Loss under Valued Policy. 166. Computation of Time. 167. Conditions Requiring Strict Performance. 168. Liberal Construction of Conditions. 169. Excuses for Noncompliance. 170. Conditions not Requiring Strict Compliance. 171. Time to Furnish Not Definite. 172. Form and Contents. 173. Certificate of Magistrate, Notary Public, etc. 174. Who Must Furnish. 175. Mortgagee. 176. Partnership. 177. Assignee. 178. Creditor. 179. To whom Given. 180. Manner of Service. 181. Proofs as Evidence. 182. Fraud, Misrepresentation and False Swearing. 183. Examination of Insured Under Oath. 184. Books of Account, Invoices, etc. CHAPTER XIV. WAIVER OF NOTICE AND PROOFS OF LOSS. § 185. General Principles. 186. Waiver of Notice not Waiver of Proof. 187. Stipulations of Policy. 188-190. What Agents can Waive. 191-192. Waiver of Delay. 193-194. Waiver of Insufficiency. 195. Amended or Additional Proofs. 196. Proofs not Furnished by Proper Person. 197-198. Silence of Insurer. TABLE OF CONTENTS. 199-200. Denial of Liability. 201. After Time to Furnish Proofs has Expired. 202. In Answer. 203. Negotiations for Settlement. 204. Proceedings to Ascertain or Adjust Loss. 205. Furnishing or Refusal to Furnish Blanks. CHAPTER XV. ARBITRATION AND AWARD. § 206. Validity of Stipulations for Arbitration. 207-210. The Effect of such Stipulations. 211. When Stipulations for Arbitration Become Operative. 212. Submission. 213. Selection of Arbitrators and Umpire. 214. Conducting Appraisal. 215. Failure of Arbitrators to Agree. 216. Who Bound by Award. 217. Validity and Effect of Award. 218. Setting Aside Award. 219-220. Effect of Demanding or Participating in an Award. 221-222. Waiver of Right to Arbitration. 223. Denying Liability in Pleading. CHAPTER XVI. PROCEEDS OF POLICY. i 224-226. Payment. 227-230. Assignment. 231. Right to Change Beneficiary. 232. Rights of Creditors. CHAPTER XVII. SUBROGATION. \ 233. Definition and Explanation. 234. Right of Insurer. CHAPTER XVm. WAIVER AND ESTOPPEU § 235. Definition. 236. Division. 237. By Whom. 238. Estoppel. TABLE OF CONTENTS. Xl CHAPTER XIX REINSURANCE. § 239. Definition and Nature. 240. Who May Sue. 241. Right to Reinsure, 242. Insurable Interest. 243. Form and Essentials of Contract. 244. Agents' Powers. 245-248. The Contract. 249-251. Amalgamation or Consolidation of Companies. CHAPTER XX. PRACTICE AND PROCEDURE. THE LAW OF INSURANCE. CHAPTER I. INTRODUCTORY. § 1. The Origin of Insurance. 2. General Classification. 3. Insurance by Contract — Definitions, 4-12. ' Divisions. 13. Basis of Contract. 14. A Personal Contract. 15. Nature of Contract. 16. What are Insurance Contracts. 17. Essentials of Contract. 18. Form of Contract. The Origin" of Insurakce. § 1. Insurance law is generally conceded to have had its origin in the ancient marine law and customs of merchants. The origin of insurance is uncertain. By some it is as- serted to have existed in the time of the Koman Empire; others fix the date of its birth at a much later period. It is generally conceded that it is the product of the necessities of maritime commerce with its attendant risks and hazards ; and that all kinds of insurance known at the present day are but the result of the development of the principles of marine insurance, adapted to the expansion and progress of commerce and business enterprise and extended to cover the advancing and everchanging demands of both public and individual necessities. The antiquity and the public advantage of the KERR, INS.— 1 2 INTKODUCTORY. § 2 business was long ago recognized hj the parliament of Eng- land in the passage of the Statute 43 Eliz. c. 12, which recites the immemorial usage of policies of insurance "by means whereof it cometh to pass, upon the loss or perishing of any ship, there foUoweth not the undoing of any man, but the loss lighteth rather easily upon many than heavily upon few, and rather upon them that adventure not than upon those that do adventure ; whereby all merchants, especially those of the younger sort, are allowed to venture more willingly and more freely." General CLAssiFicATio} or in print and under tlie seal of tlie corporation, and properly signed and attested, restricts tlie power of the company to make a valid and binding contract of insurance in any other manner.* But such provisions refer only to executed con- tracts or policies of insurance, and do not interfere with the right of an authorized agent to make agreements and parol promises for the issuance of a policy, and as to tlie terms on which a policy should be issued,^© that a court would compel the company to execute the contract specifically, or where a loss has occurred enter a decree directly for the amount of the insurance recoverable under the policy which the insurer ought to have executed. Unless prohibited by statute or other positive regulation there is no authority in courts to Re- fuse to enforce any lawful agreement which parties have made, if sufficiently proved by oral testimony. The law dis- tinguishes between the preliminary contract to make insur- ance or issue a policy, and the executed contract or policy.^ * Constant v. Allegheny Ins. Co., 3 Wall. Jr. 316, Fed. Cas. No. 3,136; Lindauer v. Delaware Mut. S. Ins. Co., 13 Ark. 461. "New England F. & M. Ins. Co. v. Robinson, 25 Ind. 536; Roger Williams Ins. Co. v. Carrington, 43 Mich. 252; Firemen's Ins. Co. v. Kuessner, 164 111. 275; Dayton Ins. Co. v. Kelly, 24 Ohio St. 345; Re- lief Ins. Co. V. Shaw, 94 U. S. 574; Franklin Fire Ins. Co. v. Taylor, 52 Miss. 441; London Life Ins. Co. v. Wright, 5 Can. Sup. Ct. 466; Security F. Ins. Co. v. Kentucky M. & F. Ins. Co., 7 Bush (Ky.), 81; Baile v. St. Joseph F, & M. Ins. Co., 73 Mo. 371. Compare Henning V. United States Ins. Co., 47 Mo. 425. A by-law of a company which provides that, "in case of the absence, inability or death of the president, policies and other papers shall be signed by two directors," relates only to the formal execution of pa- pers which require signing, and does not exclude the making of oral contracts of insurance by any officer who may have authority, or be held out as having authority, to make such contracts. Emery v. Boston Marine Ins. Co., 138 Mass. 398; Sanborn v. Fireman's Ins. Co., 16 Gray (Mass.), 454; Commercial Mut. M. Ins. Co. v. Union Mut. Ins. Co., 19 How. (U. S.) 321; Franklin Fire Ins. Co. v. Colt, 20 Wall. (U. S.) 560; Eames v. Home Ins. Co., 94 U. S. 621; Walker T. Metro- § 29 OEAL CO^'TKACT. 49 2. Statutory Provisions. It is fundamental that the courts of a state will not en- force any contract made in direct violation of the laws of that state and that a party cannot enforce in any court a contract positively forbidden by the lex loci contractu. So where the statute of a state provides that a contract of insurance must be in writing, a parol contract is not binding nor of any effect whatsoever ; ^ and any alterations of a policy must be in writ- ing;''' and a parol agreement for renewal is void.^ Such statutes in their application to insurance contracts are anal- ogous in their operation to the operation of the statute of frauds in its relation to other contracts. Delivery is not necessary, if in other respects the contract is consummated. If an informal written contract be relied upon it must be shown to contain all the essentials of the written contract and be definite and certain respecting them.® But such statutes being in derogation of the common law which concedes to every one the right to make such contracts without the for- politan Ins. Co., 56 Me. 371; City of Davenport v. Peoria M. & F. Ins. Co., 17 Iowa, 276. "Roberts v. Germania Fire Ins. Co., 71 Ga. 478; Simonton v. Liver- pool, L. & G. Ins. Co., 51 Ga. 76; Clark v. Brand, 62 Ga. 23; Henning V. United States Ins. Co., 47 Mo. 425. Compare Baile v. St. Joseph F. & M. Ins. Co., 73 Mo. 371. Stamp laws do not affect the validity of oral contracts. At most, they throw doubt upon the admissibility in evidence of written contracts not properly stamped. And- state courts are not within the provisions of the Federal statute for rais- ing revenue to meet war expenditures, that no instrument not stamped according to the requirements of that statute shall be re- ceived in evidence in any court. Carpenter v. Snelling, 97 Mass. 452; Green v. Holway, 101 Mass. 243; Cooley, Const. Lim. (6th Ed.) 592; Wingert v. Zeigler. 91 Md. 318, 51 L. R. A. 316; Knox v. Rossi (Nev.), 48 L. R. A. 305, notes, 57 Pac. 179, and notes in 46 L. R. A. 454, ' Simonton v. Liverpool, L. & G. Ins. Co., 51 Ga. 76. ' Roberts v. Germania Fire Ins. Co., 71 Ga. 478. • Clark V. Brand. 62 Ga. 23. KERR, INS.— 4 50 THE CONTEACT FORM. § 30 mality of the evidence of a writing, are strictly construed and their scope will not be enlarged by imj^lication or intend- ment. Thus a statute which requires the conditions of in- surance to be stated in the body of the policy and forbids the consideration of the application of the insured or the by-laws of the company as a part of the contract unless incorporated in full into the policy, is held to be for the benefit and pro- tection of the insured, to apply only to written contracts of insurance, and not to prohibit or in any way affect oral insur- ances.^'' A general statute requiring insurance contracts to be in writing is to be construed in connection with and is modified by a provision in another statute relating to corpora- tions as a class, and giving to them the right to make oral con- tracts. -^-^ The fact that the legislature of a state has pre- scribed a standard policy to which all written contracts of in- surance must conform, does not restrict the right of an insurer to agree to issue a policy and to orally insure property against damage by fire until such policy shall be executed and de- livered ; but the parties will be conclusively presumed to have contemplated the form of policy required by law, and the terms and conditions of such a policy will be applicable in case of fire and damage to the property insured before delivery of the policy.-'^ Same — Making and Enforcement, § 30. Any insurance agent authorized to solicit insurance, fix rates, execute and deliver policies and collect preniium.s "Relief Fire Ins. Co. v. Shaw, 94 U. S. 574; Commercial Mut. M. Ins. Co. V. Union Mut. Ins. Co., 19 How. (U. S.) 318; Franklin Fire Ins. Co. V. Colt. 20 Wall. (U. S.) 560. "Baile v. St. Joseph F. & M. Ins. Co., 73 Mo. 371. distinguishing Henning v. United States Ins. Co., 47 Mo. 425, where the statute last referred to was overlooked. " Hicks V. British American Assur. Co.. 162 N. Y. 284, 48 L. R. A. 424. See Arrott v. Walker, 118 Pa. St. 249. I §§ 31-33 MAKING AND ENFORCEMENT. 61 has power to make an oral contract for temporary new insur- ance and for a renewal of existing contracts. §31. The contracting parties are presumed to contemplate the issuance of a policy with usual and customary conditions and stipulations. § 32. An oral contract to issue a policy will be enforced in equity. § 33. An agent who fails to insure or procure insurance ac- cording to his contract is liable to the promisee for all damages resulting through his breach of contract. In so far as he con- tracted to and had power to bind his principal, the latter is also bound to make good such damages. What Agents can Make Oral Contracts of Insurance. In order that an oral contract to protect the insured between the taking of the risk and the issuance of the policy be binding, it must be clearly established that it was made and that the agent who made it had power to bind the company insuring. If an agent is empowered to represent a fire insurance com- pan.y to solicit insurance, to receive premiums and to issue and deliver policies all on its behalf, then he will, in favor of third persons dealing with him in good faith, have authority to bind that insurer by parol contracts for insurance as well as by the execution and delivery of policies ; and if there be any restriction on his power in this respect, it will only affect those to whom notice of such restriction has been legally brought or given.^^ It is within the power of such an agent to orally agree that existing insurance shall be kept alive, and lliat policies about to expire shall be renewed even without prepayment of the premiums. ^^ Such power is not vested in "Post, c. 8, "Agents;" Parsons v. Queen Ins. Co., 29 Up. Can. C. P. 188; Angell v. Hartford Fire Ins. Co., 59 N. Y. 171; Patter- son V. Benjamin Franltlin Ins. Co., *81 Pa. St. 454; Commer- cial Mut. M. Ins. Co. V. Union Mut. Ins. Co., 19 How. (U. S.) 318. This rule embraces statutory agencies. Mathers v. Union Mut. Ace. Ass'n, 78 Wis. 588, 11 L. R. A. 83. I'-Van Loan v. Farmers' Mut. Fire Ins. Ass'n, 90 N. Y. 280; McCabe 52 THE OKAL CONTRACT. § 33 a soliciting agent authorized only to receive applications which he would forward to the company for its approval or rejection. ^^ One dealing with an agent will not be heard to assert in him power beyond the known limitations of hi& authority. ^^ The burden is on the party attempting to estab- lish such a contract to establish it in all its necessary details by a preponderance of evidence. ^'^ Not Within Statute of Frauds. Such a contract is not within the statute of frauds when the insurance is to commence within the year, since the agree- ment depends on a contingency that may happen within that time, and may by its terms be fully performed and ended be- fore the expiration of that time.^^ Proof of Contract. While an oral contract of insuiJance may be made and is enforcible, yet it will be presumed, from the custom of-iu- V. Aetna Ins. Co., 9 N. D. 19, 81 N. "W. 426; Cohen v. Continental Fire Ins. Co., 67 Tex. 325, 3 S. W. 296. Tliis is held even though the agent be not specially authorized to bind his company by a parol agreement for renewal, McCabe v. Aetna Ins. Co., supra; or if he b'3 only a statutory agent, McCabe v. Aetna Ins. Co., supra; Mathers v. Union Mut. Ace. Ass'n, 78 Wis. 588, 11 L. R. A. 83; or although it be stipulated on the face of the existing policy that it shall not be re- newed in that manner. Cases supra; Cohen v. Continental Ins. Co., supra; Knickerbocker Life Ins. Co. v. Norton, 96 U. S. 234; Chicago Life Ins. Co. v. Warner, 80 111. 410; Helme v. Philadelphia Life Ins. Co., 61 Pa. St. 107; Bowman v. Agricultural Ins. Co., 59 N. Y. 521; Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305; King v. Hekla Fire Ins. Co.. 58 Wis. 508, 17 N. W. 297. "Morse v. St. Paul F. & M. Ins. Co., 21 Minn, 407. See Fidelity & C. Co. V. Ballard & B. Co. (Ky.), 48 S. W. 1074. " More V. N. Y. Bowery F. Ins. Co., 130 N. Y. 537. "McCabe v. Aetna Ins. Co., 9 N. D. 19, 81 N. W. 426; Dinning v. Phcenix Ins. Co.. 68 111. 414. "Commercial Fire Ins. Co. v. Morris, 105 Ala. 298; King v. Cox,. § 33 MAKING AND ENFORCEMENT. 63 surance companies to contract by written policies, tliat nego- tiations were not intended to be final, and that there was no intention to complete the contract until the delivery of the policy. The proof that an oral contract of insurance was made must be full and clear. Not only must it appear that all the essentials, terms, conditions and stipulations were agreed upon, but it must be shown that it was the understand- ing and intention of the parties that there should be an oral contract which would for a specified, or reasonable time, or until the issuance of a policy, protect the insured, and this in- tent and understanding must be plainly inferable from the negotiations and surrounding circumstances.-'^ The prom- ise by an agent of several insurance companies, upon the re- ceipt of a premium, to issue a policy of insurance at a future day, and his statement that the property would be insured in the meantime, do not constitute an oral contract of insur- ^ance binding upon an insurer who afterwards assumes the risk, but are at most an oral contract of the agent on his own behalf.^" If the evidence shows that the only form of con- tract contemplated by the parties was -by a policy issued upon a written application, and there is no evidence of any inten- 63 Ark. 204, 37 S. W. 877; Wiebeler v. Milwaukee Mechanics' Mut. Ins. Co., 30 Minn. 464; Phoenix Ins. Co. v, Spiere, 87 Ky. 286; John R. Davis Lumber Co. v. Scottish U. & N. Ins. Co., 94 Wis. 472, 69 N. W. 156. "• Equitable Life Assur. Soc. v. McElroy, 49 U. S, App. 548, 83 Fed. 631; De Grove v. Metropolitan Ins. Co., 61 N, Y. 594; Delaware State F. & M. Ins. Co. v. Shaw, 54 Md. 546; Merchants' Mut. Ins. Co. v. Lyman, 15 Wall. (U. S.) 664; Myers v. Liverpool & L. & G. Ins. Co., 121 Mass. 338; Heiman v. Phoenix Mut. Life Ins. Co., 17 Minn, 153 (Gil. 127); Sandford v. Trust Fire Ins. Co., 11 Paige (N. Y.), 547; Wainer v. Milford Mut. Fire Ins. Co., 153 Mass. 335, 11 L. R. A. 598; Haskin v. Agricultural Fire Ins. Co., 78 Va. 700. ="'Kleis V. Niagara Fire Ins. Co., 117 Mich. 469, 76 N. W. 155; Mich- igan Pipe Co. V. Michigan F. & M. Ins. Co., 92 Mich. 482, 20 L. R. A. 277. 54 THE OKAL CONTRACT. § 33. tion to make a contract in any other form, there can be no recovery upon the negotiations as an oral contract. ^^ An oral contract of insurance does not arise from negotiations be- tween an applicant for insurance and an agent, where the applicant subsequently signs an application in which he agrees that the basis of the contract between him and the company should be the application and the premium paid by him, that the application should not be binding on the com- pany and that the policy should not be in force until actually issued. ^^ The Conditions of an Oral Contract. Upon an oral contract of insurance, where nothing is said about conditions, if a policy is to be issued, the parties are presumed to intend that it shall contain the conditions usually inserted in policies of insurance in like cases. And these same conditions will govern the rights of the parties if no policy be issued, as where a fire occurs immediately and be- fore a policy could have been executed. The question is one of intent to be inferred from the circumstances surroundinc: the negotiations and the relations and previous dealings of the parties construed in the light of those negotiations. Thus proof of former insurance which has expired, or which it is intended to renew or replace, is proper, for the former insur- ance might form in part the basis of the negotiations which might seem to include without specific mention some of the essentials of the new contract. And in connexion with these, it is proper to receive evidence of the "understanding" of the =^ Markey v. Mutual Ben. Life Ins. Co., 118 Mass. 178. "Fowler v. Preferred Ace. Ins. Co., 100 Ga. 330, 27 Ins. Law J. 168, 28 S. E. 398; Easley y. New Zealand Ins. Co. (Idaho), 27 Ins. Law J. 289. g 33 MAKING AND ENFORCEMENT. 55 parties as to whether the contract was completed, and as to its terms. ^"^ A parol contract by a duly authorized agent to insure a dwelling-house in a certain sum, takes effect immediately al- though no time is mentioned. ^^ And if it be understood by the parties that it shall continue in force for an indefinite period until there shall be some further communication be- tween the parties regarding a written policy, it will continue in force in the absence of a notice by either to the other, even after lapse of the time reasonably necessary for the ascertain- ment of the facts required for the determination of the matter as to the written policy. ^^ An oral agreement by an insur- ance agent upon application for insurance that in considera- tion of the necessary delay in procuring the I>olicy, the in- surance shall begin from the date of the application, is a valid contract upon which a recovery may be had in case of loss before the issuance of the policy, and is not a mere agree- ment for a contract ; ^^ and an agreement that the agent fix the amount of indemnity as he sees fit and proper, is binding upon the company where he does in fact fix it as sho^^^l by a memorandum made by liim, and the fact that the assured un- derstood that the term of insurance was one year while the '^Ganser v. Fireman's Fund Ins. Co., 38 Minn. 74; Home Ins. Co. V. Adler, 71 Ala. 516; Lipman v. Niagara Fire Ins. Co., 121 N. Y. 454, 8 L. R. A. 719; Fames v. Home Ins. Co., 94 U. S. 629; Karelsen v. Sun Fire Office, 122 N. Y. 545; Newark Machine Co. v. Kenton Ins. Co., 50 Ohio St. 549, 22 L. R. A. 768; Salisbury v. Hekla Fire Ins. Co., 32 Minn. 460; Stehlich v. Milwaukee Mechanics' Ins. Co., 58 N. W. 379, 87 Wis. 322. So in a mutual company, Van Loan v. Farm- ers' Mut. F. Ins. Ass'n, 90 N. Y. 280. The conditions of an ordinary policy are not available to an insurer in an action for breach of con- tract when it denies the making of the contract. Post, note 40. " Potter V. Phoenix Ins. Co., 63 Fed. 382. " Baker v. Commercial Union Assur. Co., 162 Mass. 358. =» Hardwick v. State Ins. Co., 20 Or. 547. 56 THE OEAL CONTKACT. § 33 agent understood it to be three years, does not render the contract incomplete so as to prevent a recovery for loss oc- curring within the first year where the premium is to he the same in either case.^'^ The rights of one whose property is destroyed after an oral contract to insure it hut before a pol- icy therefor is issued, are subject to the provisions of the standard policy prescribed by the law, and he can recover only by compliance with the conditions required by such a standard policy including that as to furnishing proofs within a speci- fied time.^^ When a written contract is executed it super- sedes all oral agreements previously had and made concern- ing matters governed by the written contract. ^^ Specific Performance of an Oral Agreement to Issue a Policy. It is well established law that upon proper proof that an oral contract has been made to do something, the consumma- tion of which involves the execution of a written instrument which is afterwards refused to be made, a court of equity will compel the execution of the written contract which was agreed upon. But in any such case the proof must be clear, satisfac- tory and convincing. The burden rests upon the one assert- ing the right to the written contract to establish his claim, and to show that an agreement to execute the written contract was in fact entered into and that nothing essential to a com- plete agreement was left open to future determination. This agreement must be mutual and bilateral, capable of enforce- " Craft V. Hanover Fire Ins. Co., 40 W. Va. 508, 21 S. E. 854, =« Hicks v. British American Assur. Co., 162 N. Y. 284, 48 L. R. A. 424; post, c. 13. "Notice and Proofs of Loss." ^ Union Mut. Life Ins. Co. v. Mowry, 96 U. S. 544; Merchants' Mut. Ins. Co. V. Lyman, 15 Wall. (U. S.) 664; Thompson v. Knickerbocker Life Ins. Co., 104 U. S. 252; Nebraska & I. Ins. Co. v. Seivers, 27 Neb. 541, 43 N. W. 351; Fowler v. Metropolitan Life Ins. Co.. 116 N. Y. 389; Smith v. National Life Ins. Co., 103 Pa. St. 177; Kleis v. Ni- agara Fire Ins. Co., 117 Mich. 469. 76 N. W. 155; post, § 35. § 33 MAKING AND ENFORCEMENT. 57 ment by either party, and so clear and specific in all material terms and details as to leave no reasonable doubt as to its meaning. These requirements being fulfilled a court of equity will coerce the execution of the written contract to which a suitor shows himself entitled. So a bill for the spe- cific performance of an oral contract to issue a policy can be maintained; and a cause of action in equity for specific performance of a contract to issue a policy may be joined with a cause of action upon the agreement to insure and the policy as decreed' by the court where a loss occurs before the issuance * Union Ins. Co. v. American Fire Ins. Co., 107 Cal. 327. 28 L. R. A. 692; Philadelphia L. Ins. Co. v. American L. & H. Ins. Co., 23 Pa. St. 65; Lee v. Massachusetts F. & M. Ins. Co., 6 Mass. 215; Pot- ter V. Phenix Ins. Co., 63 Fed. 382 (in oral contract it begins at once). "Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457. As to what constitutes an insurable interest, see post, ch. IX. 68 THE CONTRACT — FORM. § 3^ An Interest Policy is one in which the insured has an actual, insurable interest in the subject matter, so that, but for the indemnity and compensation contracted for, he would be, or be liable to become, pecuniarily damaged by the happen- ing of the contingency insured against.^^ An Open Policy is one in which the sum to be paid is not fixed absolutely, but is left open for determination by the parties when a loss occurs. This determination of the extent of the loss, and of the amount for which the insurer is liable, if at all, is called the adjustment of the loss. This form of policy is also used where the insurance is upon a class of property rather than specific articles, or where the risk changes as to location and quantity, or is variable ;^^ or merchandise in store where the stock is fluctuating both in amount and value ;^^ or a dwelling house where the insurance is for a fixed sura, and the obligation is to pay "all loss and damage"^ within the sum named.^^ A Valued Policy is one in which the interest of the insured in the subject matter and the amount of indemnity which he is to receive in case of total loss, is agreed upon by the parties in advance and stipulated in the policy. In the case of an open policy the insured must prove his insurable interest and the value of the property, but under a valued policy the sum fixed is conclusive except in case of fraud or gross overvalu- ■^^ Sawyer v. Dodge County Mut. Ins. Co., 37 Wis. 539; Williams v. Smith, 2 Caines (N. Y.), 130. ^"Williams v. Continental Ins. Co., 24 Fed. 767; Snowden v. Giiion, 101 N. Y. 458; Snell v. Delaware Ins. Co., 4 Dall. 430, Fed. Cas. No. 13,137. •^Strohn v. Hartford Fire Ins. Co., 37 Wis. 625; May, Ins. § 30; Watson V. Swann, 11 C. B. (N. S.) 756; Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 541; Hoffman v. Aetna Fire Ins. Co., Z2 N. Y. 405. "Farmers' Ins. Co. v. Butler, 38 Ohio St. 128. I I 39 THE POLICY. C9 ation.^2 -pijig valuation binds both parties and limits the right of recovery by the insured.®^ An excessive overvalua- tion is presumptive evidence of fraud. Where an ovmer of property about to be insured, knowingly, and with intent to deceive the insurer, overvalues such property, and the insurer relying upon his valuation enters into the contract, the con- tract is voidable by the insurer if it acts promptly upon its discovery of the fraud. If the knowledge does not come to it until after the loss, it may then take advantage of it.^^ If the statements of the insured in his application are made warranties his estimate of value must be fair and reasonable. A false Avarranty will be fatal ;^^ otherwise with an honest expression of opinion which overvalues the property ;^^ espe- '-Alsop V. Commercial Ins. Co., 1 Sumn. 451, Fed, Gas. No. 262; Universal Mut. Fire Ins. Co. v. Weiss, 106 Pa. St. 20; Cushman v. Northwestern Ins. Co., 34 Me. 487; Lycoming Ins. Co. v. Mitchell, 48 Pa. St. 367; Borden v. Hingham Mut. Fire Ins. Co., 18 Pick. (Mass.) 523; Lewis v. Rucker, 2 Burrows, 1171; McKim v. Phoenix Ins. Co., 2 Wash. C. C. 94, Fed. Cas. No. 8,862. An open policy pro- viding that the goods insured are "valued at as indorsed" means that the property is valued at the sum stated as its value, and not at the sum stated as the amount of insurance. The policy remains open if no valuation is indorsed. Snowden v. Guion, 101 N. Y. 458; Chisholm v. National Capitol Life Ins. Co., 52 Mo. 215; Connecti- cut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457; Bevin v. Connecti- cut Mut. Life Ins. Co., 23 Conn. 244; Briggs v. McCullough, 36 Cal. 542. "^Holmes v. Charlestown Mut. Fire Ins. Co., 10 Mete. (Mass.) 211; Luce v. Dorchester Mut. Fire Ins. Co., 105 Mass. 297. "Nassauer v. Susquehanna Mut. Fire Ins. Co., 109 Pa. St. 507; Whittle v. Farmville Ins. Co., 3 Hughes, 421, Fed. Cas. No. 17,603; Hersey v. Merrimac Co. Mut. Fire Ins. Co., 27 N. H. 149; Gerhauser V. North British & Mercantile Ins. Co., 7 Nev. 174; Sturm v. Great Western Ins. Co., 40 How. Pr. (N. Y.) 423. «^Sun Fire Office v. Wich, 6 Colo. App. 103, 39 Pac. 587; School Dist. No. 4 V. State Ins. Co., 61 Mo. App. 597; Carson v. Jersey City Ins. Co.. 43 N. J. Law, 300. ""First Nat. Bank cf Kansas City v. Hartford Fire Ins. Co., 95 U. S. 673. 70 THE CONTRACT — FORM. § 39 cially where it lias been examined and appraised hy the agent of the insurer.^ ^ But a condition in the policy avoiding it for overvaluation includes any substantial overvaluation whether made in good or bad faith.^^ It is sometimes difficult to determine whether a policy be valued or open, or partly valued and partly open.®^ Running, Blanket and Floating policies are often issued to cover risks where the amount of insurance required varies from time to time, or where the location of the subject of the risk, or the identity of the subject itseK, or the insurable inter- est of the insured therein is fluctuating, as in the case of factors and warehousemenJ** The Standard Policy. Very many states have passed laws prescribing the exact form of insurance policy to be used within their confines, and forbidding the use of any other form than the one prescribed. There is no question as to the validity and constitutionality of such regulation of the insurancebusiness,at least so far as con- ducted by foreign corporations ;'^^ but as to the power of a leg- " Hubbard v. North British & Mercantile Ins. Co., 57 Mo. App. I. ^ Boutelle v. Westchester Fire Ins. Co., 51 Vt. 4; Lycoming Fire Ins. Co. V. Rubin, 79 111. 402; Sun Fire Office v. Wich, 6 Colo. App. 103, 39 Pac. 587; School Dist. No. 4 v. State Ins. Co., 61 Mo. App. 597. ^'Cushman v. Northwestern Ins. Co., 34 Me. 487; Harris v. Eagle Fire Co., 5 Johns. (N. Y.) 368; Phoenix Ins. Co. v. McLoon, 100 Mass. 475; Post v. Hampshire Mut. Fire Ins. Co., 12 Mete. (Mass.) 555; Brown v. Quincy Mut. Fire Ins. Co., 105 Mass. 396; Lycoming Ins. Co. V. IMitchell, 48 Pa. St. 367; Riley v. Hartford Ins. Co., 2 Conn. 368; Snowden v. Guion, 101 N. Y. 458. Standard fire policies are usually valued. See post, "Valued Policy Law; Total Loss; Arbitration." 45 Cent. Law J. 373. ^''Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527; Hoff- man V. Aetna Fire Ins. Co., 32 N. Y. 405. "53 Cent. Law J. 106; Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281; O'Neil v. American Fire Ins. Co., 166 Pa. St. 72, 2(5 §39 THE POLICY. 71 islature to so restrict the right of the individual insurer there is much doubt.'^^ A legislature desiring to provide a uniform policy of fire insurance to be made and issued by all companies taking such risks, so that none other than the standard policy can be lawfully issued or delivered within the state, must itself provide definitely and clearly what the policy shall contain ; so that the enactment is a law complete in all its terms and conditions at the time of its passage, and nothing must be left to the judgment or discretion of an appointee of the legisla- ture ; so that, in form and substance, it is a law in all its de- tails in praesenti, but which may be left to take effect in futuro, if necessary, upon the ascertainment of any prescribed fact or event. So an act providing for a standard policy can- not constitutionally delegate to an insurance commissioner the preparation of the form of the policy without fixing its terms and conditions.'^^ Standard policies are ostensibly in- tended to insure fair and honest dealings between insurer and insured and to protect the latter from the consequences of contracts which he might otherwise make. The beneficent results, however, are more fanciful than real, and certain it is that both parties have been deprived of mutual advantages by the abridgment of their natural rights to contract. Statutory or standard policies are usually valued as to buildings. They do not present the alternative of wager L. R. A. 715; Anderson v. Manchester Fire Assur. Co., 59 Minn. 182, 28 L. R. A. 609; Bowling v. Lancashire Ins. Co., 92 Wis. 63, 31 L. R. A. 112; Hicks v. British America Assur. Co., 162 N. Y. 284, 48 L. R. A. 424; Business Men's League v. Waddill, 143 Mo. 495, 40 L. R. A. 501. '" Ante, c. 2, notes 24, 25. "Anderson v. Manchester Fire Assur. Co., 59 Minn. 182, 28 L. R. A. 609; O'Neil v. American Fire Ins, Co., 166 Pa. St. 72, 26 L. R. A. 715; Bowling v. Lancashire Ins. Co., 92 Wis. 63, 31 Ij. R. A. 112. 72 THE CONTKACT — FORM. § 39 policies to indemnity policies. It is true that, prima facie, they raise a conclusive presumption as to the value of the property insured. But the change is only one kind of indem- nity policy to another from the optional open or valued policy to the compulsory valued policy. '^It makes no contract for the parties. In this it permits absolute freedom. It leaves them to fix the valuation of the property upon such prudence and inquiry as they choose. It only ascribes estoppel after this is done ; estoppel, it must be obser^'ed, to the acts of the parties, and only to their acts, in open and honest dealing. Its presumptions cannot be urged against fraud," '^* and in some instances it permits the subsequent depreciation of the property to be shov^Ti.'^^ All contracts are entered into in contemplation of the law of the place, which becomes part of each contract and prevails over conflicting or opposing terms of the contract.'^^ The provisions of a standard policy issued under an unconstitutional statute will be construed as those of a voluntary contract of the parties, and not as the require- ments of a valid statute which can be waived only in the prescribed manner. '^''^ '^ Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup, Ct. 281. See 45 Cent. Law J. 373. "Rev. St. Mo. c. 89, art. 4, § 5897. "Ante, note 48; post, § 55. " Hicks V. British America Assur. Co., 162 N. Y. 284, 48 L. R. A. 424; Griffith v. New York Life Ins. Co., 101 Cal. 627, 40 Am. St. Rep. 96. Compare German Ins. Co. v. Eddy, 36 Neb. 461, 19 L. R. A. 707; Quinlan v. Providence W. Ins. Co., 133 N. Y. 365; Harris v. Phoenix Ins. Co., 85 Iowa, 238, 52 N. W. 128. The provisions of the Wisconsin statute creating a standard policy do not apply to town- ship mutual insurance companies. Worachek v. New Denmark Mut. H. F. Ins. Co., 102 Wis. 88, 78 N. W. 165. CHAPTER IV. THE CONTRACT (Confinwed)— MAKING. § 40-46. Consummation of Contract. 47. Delivery of Policy. 48. Duration of Contract. 49. Renewal of Contract. 50. Revival of Policy. 51-52. Application. Coi^SUMMATION" OF CONTRACT. § 40. An insurance contract is completed when the proposals of the one party have been unqualifiedly and unconditionally accepted by the other party, and the acceptance has been sig- nified by some proper act. § 41. The essential elements of the contract must be agreed upon. § 42. An application for insurance alone is a mere ofiTer to make a contract upon the terms specified, and forms no part of a contract until it has been unconditionally accepted. § 43. If negotiations are carried on by mail, the contract is complete when the offer of the one party has been uncondi- tionally accepted by the other and a letter of acceptance has been duly mailed. § 44. Policies of insurance must be executed by duly author- ized agents of the insurer. Provisions requiring them to be countersigned are not of the essence of the contract and may be waived. 45. Neither prepayment of the premium nor delivery of a policy are necessarily essential to the completion of the con- tract, unless made conditions precedent to its consummation by agreement of the contracting parties. § 46. Whether either or both are such conditions precedent may be either (a) A question of law, or (b) A question of fact, or (c) A mixed question of law and fact, depending al- ways on the circumstances of each case. 74 THE CONTRACT MAKING. § 40 The answer to an inqnirj as to whether or not certain nego- tiations and transactions between an applicant for insurance and an insurer looking towards the insuring of the former by the latter constitute a perfect or complete contract of insur- ance, involves no more than the application of the well known principles of law governing the completion and consummation of other contracts to the facts of the given case. To the making of any binding and enforcible contract there must be at least two parties capable in law of contracting in the prem- ises. There must be a distinct proposition made by one party and an unconditional acceptance of it by the other. This offer and acceptance must be communicated in some proper manner so that there is a distinct meeting of the minds of the contracting parties, and the object which the contract proposes to effect must be legal. There must be a mutuality of obligation. The offer and acceptance and their communica- tion may be expressed or implied, verbal or written, by acts or conduct, or Avriting, or words, or by all together, except in cases where special forms or requirements are demanded by the lex loci contractus. Concerning a contract of insurance, we have seen that there are certain imperative essentials; that, subject to some few exceptions, the contract may be oral or in writing; that statutory regulations of the form and substance of the con- tract are valid ; that the legislature of a state can restrict the making of such a contract within that state to corporations which have complied with certain prescribed requirements (at least as far as insuring corporations are concerned) ; and that only certain risks can be legally assumed by insurers. Applying this, then, to the consummation of a contract of insurance, we find that,- primarily, the establishment of the contract requires proof that its essential elements have been determined and agreed upon in legal form by two parties who § 40 CONSUMMATION OF CONTRACT. 75 are autliorized by tlie law of tlie place of the contract to undertake the obligations which they have assumed. Both parties must be bound — the one to insure, the other to pay the premium. All the necessary elements must be agreed upon, either expressly, or impliedly ; and if anything is left open and undetermined so that the minds of the parties have not met upon any essential point, no contract exists, and there is no liability on the part of the insurer to pay the loss, nor on the part of the insured to pay the premium ; as where the rate of premium is left undetermined, or the time when the policy will attach, or the apportionment of the risk has not been made, or the insured retains control over the premium note or any papers, the delivery of which is a condition precedent. And further, each party must have done all that was under- stood and agreed would be done before the risk would attach. When all this has been done, when all the essentials have been agreed upon, wdien the insurer has agreed to insure upon the exact terms proposed by the applicant, when nothing remains to be done by either as a condition precedent, then the contract is perfect and complete, and goes into effect immediately or at a stipulated date in the future. Until tlien it is only an executory agreement to make a contract. The relation of insurer and insured is established at the moment when the former has a cause of action against the latter for the initial premium, if this has not been paid, and when the latter is entitled to a delivery of his policy, if it has not been de- livered.^ ' Mattoon Mfg. Co. v. Oshkosh Mut. Fire Ins. Co., 69 Wis. 564, 35- N. W. 12; Lingenfelter v. Phoenix' Ins. Co., 19 Mo. App. 252; Ander- son V. Continental Ins. Co., 105 N. Y. 666, 106 N. Y. 661; Ellis v. Albany City Fire Ins. Co., 50 N. Y. 402; Hubbard v. Hartford Fire Ins. Co., 33 Iowa, 325; Baldwin v. Chouteau Ins. Co., 56 Mo. 151; Tayloe v. Merchants' Fire Ins. Co., 9 How. (U. S.) 390; Massasoit Steam Mills Co. v. Western Assur, Co., 125 Mass. 110; Taylor v. 76 THE CONTEACT — MAKING. §40 It is competent for the parties to make an oral contract of insurance in praese^iti to be followed by the execution and d eh very of a policy into which all previous negotiations will be merged, and which, when executed and delivered, will be the best evidence of tha contract ; but in view of the general custom of issuing policies upon all risks assumed, the proof of an oral contract for insurance prior to the issuance of a policy must be clear. If there has been no payment of the premium, or delivery of the policy, the contract is prima facie incomplete ; and one claiming under such a policy must show an understanding and agreement of the parties that it should become operative notwithstanding these facts.^ Prepayment of the premium is not necessary, if the amount be fixed and credit be given by the insurer.^ State Ins. Co., 107 Iowa, 275, 77 N. W. 1032; Mathers v. Union Mut. Ace. Ass'n, 78 Wis. 588, 11 L. R. A. 83; Michigan Pipe Co. v. Michi- gan F. & M. Ins. Co., 92 Mich. 482, 20 L. R. A. 277; Johnson v. Con- necticut Fire Ins. Co., 84 Ky. 470; Hamblet v. City Ins. Co., 36 Fed, 118; New Yorlt Life Ins. Co. v. Babcoclc, 104 Ga. 67, 30 S. E. 273, 42 L. R. A. 88; Hebert v. Mutual Life Ins. Co., 12 Fed. 807; Diboll v. Aetna Life Ins. Co., 32 La. Ann. 179. =^ Wainer v. Milford Mut. Fire Ins. Co., 153 Mass. 335, 11 L. R. A. 598; Myers v. Liverpool & L. & G. Ins. Co., 121 Mass. 338; Supreme Lodge of Protection v. Grace, 60 Tex. 569; Heiman v. Phoenix Mut. Life Ins. Co., 17 Minn. 153 (Gil. 127); Michigan Pipe Co. v. Michi- gan F. & M. Ins. Co., 92 Mich. 482, 20 L. R. A. 277; Hughes v. Mer- cantile Mut. Ins. Co., 55 N. Y. 265; Mattoon Mfg. Co. v. Oshkosh Mut. Fire Ins. Co., 69 Wis. 564, 35 N. W. 12; Travis v. Peabody Ins. Co., 28 W. Va. 583; Goddard v. Monitor Mut. Fire Ins. Co., 108 Mass. 57. Ante, p. 53. ' See post, note 7, and c. X, "Premium." Examples of incomplete contracts: People's Ins. Co. v. Paddon, 8 111. App. 447. Negotiations incomplete, Todd v. Piedmont & A. Life Ins. Co., 34 La. Ann. 63; Armstrong v. State Ins. Co., 61 Iowa, 212. Policy not delivered nor premium paid, Schaffer v. Mutual Fire Ins. Co., 89 Pa. St. 296; Wainer v. Milford Mut. Fire Ins. Co., 153 Mass. 335, 11 L. R. A. 598; St. Louis Mut. Life Ins. Co. v. Kennedy, 6 Bush (Ky.), 450; Myers v. Liverpool & L. & G. Ins. Co., 121 Mass. 338. § 40 CONSL'MMATION OF CONTRACT. 77 The Fixing of the Terms of the Contract. There must be a meeting of the minds of the contracting parties and an agreement, either express or implied, between them as to all the essential elements of the contract. Not merely the verbal and written negotiations are to be con- sidered, but also the relations of the parties to each other and to the subject matter, their previous business transactions, the established custom and usage of the place, and all sur- rounding facts and circumstances. Thus, where application for insurance upon merchandise in a storehouse is made to a company authorized to insure only against fire and marine risks, it can properly be inferred that the protection sought is against fire;^ and if the subject be an unfinished vessel and the hazard contemplated by fire alone, the contract must be regarded as one of fire insurance.^ It is sufficient if one party proposes to be insured, and the other party agrees to insure, and the essentials are ascertained or understood, and the prc- ]nium paid if demanded. It Avill be presumed that they con- template such form of policy with such conditions and limita- tions as are usual in such cases, or as have been used before between the parties.^ A contract is not incomplete merely because the premium has not been fixed nor paid, or the time Insurance not apportioned, Kimball v. Lion Ins. Co., 17 Fed. 625. Offer and acceptance not identical, Stockton v. Firemen's Ins. Co., 33 La. Ann. 577. Mutual offer not accepted, Alabama Gold Life Ins. Co. V. Mayes, 61 Ala. 163. Mutual company application not accepted by proper officers, Haden v. Farmers' & Mechanics' Fire Ass'n, 80 Va. 683. Attempted contract by unauthorized agent, solicitor, Ham- bkton V. Home Ins. Co., 6 Biss. 91, Fed. Cas. No. 5,972; Morse v. St. Paul F. & M. Ins. Co.. 21 Minn. 407. * Baile v. St. Joseph F. & M. Ins. Co., 73 Mo. 371. ' Eureka Ins. Co. v. Robinson. 56 Pa. St. 256. "Fames v. Home Ins. Co., 94 U. S. 621; Hebert v. Mutual Life Ins. Co., 8 Sawy. 198; 12 Fed. 807; Hicks v. British America Assur. Co., 162 N. Y. 284, 48 L. R. A. 424. 78 THE CONTKAOT— MAKING. § 40 for wliicli the insurance is to run has not he.en expressly agreed upon where there is a well understood rate on that cla? 3 of risks, and where the usual term is one year, and where an intention to give credit can be inferred. Where tliere have been previous relations between the parties an application is presumed to have been made with reference to such relations, and in the absence of an express contract or circumstances indicating a contrary intent, the parties will be held to have contemplated the issuance of the same contract as had been previously issued, for a similar amount and period, at the regular rate of premium, and that the usual course of busi- ness as to giving credit for the premium would still con- tinue.'^ The Effect of Making an Application. The making of an application is not, strictly speaking, es- sential to the making of an insurance contract. The offer may come primarily from tlie insurer. If an application is made its form and substance are matters for the determination of the parties. In any event an application is a mere offer to make a contract. When the party to whom it is made signifies his acceptance of it to the proposer (and not before) the minds of the parties meet and the contract is made. This ^Michigan Pipe Co. v. Michigan F. & M. Ins. Co., 92 Mich. 482, 20 L. R. A. 277; Boice v. Thames & M. Marine Ins. Co., 38 Hun (N. Y.), 246; Milwaukee Mechanics' Ins. Co. v. Graham, 181 111. 158; Train v. Holland Purchase Ins. Co., 62 N. Y. 598; Winne v. Niagara Fire Ins. Co., 91 N. Y. 185; Michigan Pipe Co. v. North British & M. Ins. Co., 97 Mich. 493, 56 N. W. 849. In Cooke v. Aetna Ins. Co., 7 Daly (N. Y.), 555, it was held that the contract in prse- senti might be complete although the rate of premium was to be established by the insurer after investigation, and that the insured could recover for a loss occurring before he was notified of the amount of the premium. I 40 CONSCMMATIOX OF CONTKACT. 79 acceptance must be signified by some act;^ and mnst be by some one authorized to act on behalf of and bind the ac- ceptor.^ Agents have only such powers as their principal gives to them or holds them out to possess. An agent author- ized only to solicit insurance has no authority to bind his principal by contracting for insurance on its behalf. ^° An application may be accepted conditionally, as where it stipu- lates that the contract shall be completed only by the delivery of a policy properly countersigned, in which event there is no contract unless the policy be countersigned and delivered ;^^ or for a limited time, pending investigation, when the insur- ance will terminate at the expiration of the given period unless a policy issue ;^^ or it may state in terms that no lia- bility shall attach until the application is accepted and a policy delivered ;^^ or until approval by certain designated officers or agents of the insurer, in which case the insurer is not liable for a loss occurring before the stipulated approval has been given.''^ Where a written application is made for insurance the contract is not, as a general rule, completed "Allen V. Massachusetts Mut. Ace. Ass'n. 1G7 Mass. 18, 44 N. E. 1053; Covenant Mut. Ben. Ass'n v. Conway, 10 111. App. 348; Hel- man v. Phoenix Mut. Life Ins. Co., 17 Minn. 153 (Gil. 127). •Post, c. 8, "Agents." ^° Morse v. St. Paul F. & M. Ins. Co., 21 Minn. 407; Fleming v. Hartford Fire Ins. Co., 42 Wis. 616; Rowland v. Springfield F. & M. Ins. Co., 18 111. App. 601. "McCully's Adm'r v. Phoenix Mut. Life Ins. Co., 18 W. Va. 782; Moyes v. Phoenix Mut. Life Ins. Co.. 1 Mo. App. 584. " Barr v. Insurance Co. of North America, 61 Ind. 488. "Chamberlain v. Prudential Ins. Co. (Wis.), 85 N. W. 128. "Pickett V. German Fire Ins. Co., 39 Kan. 697; Atkinson v. Hawkeye Ins. Co., 71 Iowa, 340, 32 N. W. 371; New York Life Ins. Co. V. Babcock, 104 Ga. 67, 42 L. R. A. 90; Alabama Gold Life Ins. Co, V. Mayes, 61 Ala. 163. 80 THE CONTKACT — MAKING. §40 until the aj^plication lias been forwarded to, approved and accepted by those who have power to issue the policy. ^'^ The receipt of an application for insurance accompanied by a premium note at the home office of an insurer to which "they have been forwarded by a soliciting agent does not make a contract of insurance. The delivery of the note and appli- cation is in the nature of a proposition for insurance whicli requires the assent of the insurer to constitute a contract. And mere delay in acting upon the application is not the equivalent of an acceptance ;^*^ even though the agent has assured the applicant that the insurance was in effect from the signing of the application, since it is not the duty nor within the power of such an agent to construe the application and note nor to declare their legal effect. ^''^ And an insurer upori "Home Forum Ben. Order v. Jones, 5 Okla. 598, 50 Pac. 165; Armstrong v. State Ins. Co., 61 Iowa, 212. "Connecticut Mut. Life Ins. Co. v. Rudolph, 45 Tex. 454; Missel- horn V. Mutual Reserve Fund Life Ass'n. 30 Fed. 545; Kohen v. Mutual Reserve Life Fund Ass'n, 28 Fed. 705; Haskin v. Agricult- ural Fire Ins. Co., 78 Va. 700; New York Mut. Ins. Co. v. Johnson, 23 Pa. St. 74; Easley v. New Zealand Ins. Co. (Idaho), 27 Ins. Law J. 289; Fowler v. Preferred Ace. Ins. Co., 100 Ga. 330, 27 Ins. Law J. 168, 28 S. E. 398; More v. New York Bowery Fire Ins. Co., 130 N. Y. 537; Royal Ins. Co. v. Beatty, 119 Pa. St. 6; Winnesheik Ins. Co. v. Holzgrafe, 53 111. 516; Harp v. Grangers' Mut. Fire Ins. Co., 49 Md. 307; Heiman v. Phoenix Mut. Life Ins. Co., 17 Minn. 153 (Gil. 127) ; Alabama Gold Life Ins. Co. v. Mayes, 61 Ala. 163; Otterbein v. Iowa State Ins. Co., 57 Iowa, 274; Covenant Mut. Ben. Ass'n v. Con- way, 10 111. App. 348. "Dryer v. Security Fire Ins. Co., 94 Iowa, 471, 62 N. W. 799; Wlnchell v. Iowa State Ins. Co., 103 Iowa, 189, 72 N. W. 504; Fowler V. Preferred Ace. Ins. Co., 100 Ga. 330, 27 Ins. Law J. -168, 28 S. E. 338; Easly v. New Zealand Ins. Co., 27 Ins. Law J. 289; Fleming v. Hartford Fire Ins. Co., 42 Wis. 616. The company may under some circumstances be liable for the failure of an agent to seasonably forward an application. Walker v. Farmers' Ins. Co., 51 Iowa, 680, 2 N. W. 583; Fish v. Cottenet, 44 N. Y. 538. § 40 CONSUMilATION OF CONTKACT. 81 learning of a loss may reject an application ^v]lic]l it liad previously intended to accept where such intention has not been communicated to the applicant, and the application stij)ulates that its receipt and acceptance by the insurer must precede the consummation of the contract. ^^ It has been suggested that where the premium note is negotiable and the insurer upon receiving an application and note, remains silent, it may, under some circumstances, be held to have approved the application;^^ but such a holding- would amount to the courts making contracts for the parties instead of construing contracts which the parties have made for themselves. The applicant and insured are equally inter- ested in making the contract and it as much the duty of the latter to inquire whether his proposal had been accepted as it is the duty of the former to give the information. 2° Mutual Companies. In determining Avhether one has been received into the membership of and insured by a mutual insurance company, much depends upon the proAdsions of its charter, constitution and by-laws. Where it is required, as a condition precedent, that parties seeking to become members shall sign an applica- tion which 4s to form the basis of the contract, a failure to sign the application is evidence that a contract has not been made.^^ The charter provisions must be complied with. By- laws enacted for the use and benefit of the company may be waived by it. In case of conflict the former control. ^^ The "Allen V. Massachusetts Mut. Ace. Ass'n, 167 Mass. 18, 44 N. E. 1053. "Atkinson v. Hawkeye Ins. Co., 71 Iowa, 340, 32 N. W. 371; Pre- ferred Ace. Ins. Co. V. Stone, 61 Kan. 48, 58 Pae. 986. ^"Wlnchell v. Iowa State Ins. Co., 103 Iowa, 189, 72 N. W. 504. " Supreme Lodge of Protection v. Grace, 60 Tex. 569. " Davidson v. Old People's Mut. Ben. Soc, 39 Minn. 303, 1 L. R. A. 482; ante, "Ultra Vires;" Bishop v. Grand Lodge, 43 Hun (N. Y.), KERR. INS.— 6 82 THE CONTRACT — MAKING. § 40 delivery of a certificate is not always essentiaP^^ unless spe- cifically required. ^^ The Acceptance of the Offer and the Mutual Assent. A contract is not complete until the offer of one party hag been unqualifiedly and unconditionally accepted by the other. An application for insurance being a mere proposal may be withdrawn at any time before it is accepted, and the ap- plicant is not bound to accept a policy subsequently tendered. If upon receipt of an application the insurer rejects it, or accepts it with qualification, or makes a counter proposition, there is no contract. The old application as qualified or the new offer is then for the consideration of the applicant. The parties must agree upon the same identical terms. Until then the mutual assent, the meeting of the minds of the parties, which are vital to the existence of the contract, and without w^hich there can be no contract, are wanting. The obligation must be correlative. If there is none on the one side there is none on the other,^'* And this assent must be signified by 472; Belleville Mut. Ins. Co. v. Van Winkle, 12 N. J. Eq. 333; Taylor v. Grand Lodge A. 0. U. W,, 29 N, Y, Supp. 773, ="• Lorscher v. Supreme Lodge K. H., 72 Mich. 316, 2 L. R. A. 206. ^ Home Forum Ben. Order v. Jones, 5 Okla. 598, 50 Pac. 165. See, also. Van ^ Slyke v. Trempealeau County Farmers' Mut. Fire Ins. Co., 48 Wis. 683; Connecticut Mut. Life Ins. Co. v. Rudolph, 45 Tex. 454; Somers v. Kansas Protective Union. 42 Kan. 619; Dodd v. Gloucester Mut. Fishing Ins. Co., 120 Mass. 468; Cranberry Mut. Fire Ins. Co. v. Hawk (N. J,), 14 Atl. 745; Burlington V. R. D. v. White, 41 Neb. 547; Eilenberger v. Protective Mut. Fire Ins. Co., 89 Pa. St. 464; Union Mut. Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 222; Gay v. Farmers' Mut. Ins. Co., 51 Mich. 245. "Mutual Life Ins. Co. v. Young's Adm'r, 23 Wall. (U. S.) 85; Hamilton v. Lycoming Mut. Ins. Co., 5 Pa. St. 339; Globe Mut. Life Ins. Co, V, Snell, 19 Hun (N, Y,), 560; Eliason v, Henshaw, 4 Wheat. (U, S,) 225; Stockton v. Firemen's Ins. Co., 33 La. Ann. 577; Har- nickell v. New York Life Ins. Co,, 111 N. Y. 390; Wilson v. New § 40 CONSUMMATION" OF CONTKACT. 83 some act. A mere mental attitude is not enoiigli. Thus an insurer which has conchided to accept an application hut has not communicated such intention, may suhsequentlj refuse to accept the risk.^^ An insurance contract is not completed by the insurer consenting to a proposed change in a policy tendered when no notice of the acceptance is given tx> the in- sured ;^^ nor by the signing of an application and the exe- cution and tender of a policy to the applicant who thereupon refuses to accept it and pay the premium.^^ Even where the parties supposed they had agreed, and it turned out that there was a misunderstanding as to a material point, the requisite mutual assent as to that point being wanting, it was held that neither was bound. ^^ The law involved is expressed by the phrase "it takes two to make a bargain." ^^ The time during which an offer is to be accepted may be fixed by its own terms, or may be open, in which event the offer lapses after the expiration of a reasonable time. Hampshire Fire Ins. Co., 140 Mass. 210; American S. B. Ins. Co. v. Wilder, 39 Minn. 350; Diboll v. Aetna Life Ins. Co., 32 La. Ann. 179; Sheldon v. Hekla Fire Ins. Co., 65 Wis. 436. "See post, § 51; Rogers v. Charter Oak Life Ins. Co., 41 Conn. 97; Sheldon v. Atlantic F. & M. Ins. Co., 26 N. Y. 460, 84 Am. Dec. 213; Myers v. Keystone Mut. Life Ins. Co., 27 Pa. St. 268; Bennett V. City Ins. Co., 115 Mass. 241. Compare Keim v. Home Mut. F. & M. Ins. Co.. 42 Mo. 38, 97 Am. Dec. 291. =» Equitable Life Assur. Soc. v. McElroy, 49 U. S. App. 548, 83 Fed. 631. "Hogben v. Metropolitan Life Ins. Co., 69 Conn. 503; Schwartz v. Germania Life Ins. Co., 21 Minn. 215; Equitable Life Assur. Soc. v. McElroy, 49 U. S. App. 548, 83 Fed. 631. =« Baldwin v. Mildeberger, 2 Hall (N. Y.), 196; Goddard v. Monitor Mut. Fire Ins. Co., 108 Mass. 57; Coles v. Bowne, 10 Paige (N. Y.), 526; Calverley v. Williams, 1 Ves. Jr. 210; Crane v. Partland, 9 Mich. 493. '^ Mutual Life Ins. Co. v. Young's Adm'r, 23 Wall. (U. S.) 85. 84: THE CONTRACT — MAKING. § 4Q Correspondence — Negotiations by Mail. When negotiations concerning any business transaction are carried on by persons at a distance from eacb other, either by letter or by messenger, or by telegraph, an undelivered offer is ineffectual for any purpose. The offer may be revoked if overtaken before delivered and accepted. But an attempted revocation after delivery and acceptance of the offer is too late. The acceptance may be transmitted by the same instrumen- tality which conveyed the offer, or by any other appropriate method of communication. It must be evidenced by some act indicating an intention to make the contract upon the identical terms proposed, and communicated or put in a way to be communicated to the party making the offer. A mailed offer by an insurance company, prescribing the terms upon which it will assume a risk, is deemed- a valid undertaking on its part that it will be boimd, according to the terms ten- dered, if an answer is transmitted in due course of mail, ac- cepting them. Upon the acceptance of the terms proposed transmitted by due course of mail to the company, the con- tract becomes complete, and the insurer is liable for a loss occurring after the letter of acceptance has been mailed but before it was received. The party to whom the proposal is made has a reasonable time in which to accept or reject it, except where by its terms the offer lapses within a specified time.^" '"Eames v. Home Ins. Co., 94 U. S. 621; Thayer v. Middlesex Mut. Fire Ins. Co., 10 Pick. (Mass.) 326; Hallock v. Commercial Ins. Co., 26 N. J. Law, 268; Tayloe v. Merchants' Fire Ins. Co., 9 How. (U. S.) 390; State Mut. Fire Ins. Ass'n v. Brinkley Stave & Heading Co., 61 Ark. 1, 29 L. R. A. 712; Schultz v. Phenix Ins. Co., 77 Fed. 375 (negotiations by telegraph); Myers v. Keystone Mut. Life Ins. Co., 27 Pa. St. 268; Sandfcrd v. Trust Fire Ins. Co., 11 Paige (N. Y.), 547; Wallingford v. Home Mut. F. & M. Ins. Co., 30 Mo. 46; Dailey V. Preferred Masonic Mut. Ace. Ass'n, 102 Mich. 289, 57 N. W. 184; § 40 CONSUMMATION OF CONTRACT. 85 The Execution of the Policy — Countersigning. A policy, to be binding upon an insurer, must be executed by duly authorized officers or agents and in the manner pro- vided by the organic law of the corporation. A seal is not necessary unless the insurer can only bind itself by sealed written contracts. If a delivered policy is defectively ex- ecuted, its proper execution will be compelled if that be necessary to carry out the intention of the parties and to establish the contractual relations upon which they have agreed. This can be done in an action for specific perform- ance of the oral agreement, or by a suit to reform the policy, according to the given circumstances, and in either of these proceedings the courts will grant appropriate equitable relief, and at the same time, if a loss has occurred, will enforce the contract as perfected.''^ ^ Policies frequently provide that they shall not be valid or binding upon the insurer unless signed by designated officers and countersigned by the agent through whom they are issued. There can be no doubt of the right of any insurance company to thus create conditions precedent to the validity of its poli- cies and to their assumption of a risk through the issuance of a policy; and as an insured is conclusively presumed to know the contents and conditions of a policy imder which he claims, he is held to have notice thereof and of any limitations they make upon the powers of agents. It is accordingly held that a recital in the policy itself that it shall not be in force until countersigned by an authorized agent renders the policy Yonge V. Equitable Life Assur. Soc, 30 Fed. 902; Hartford S. B. I. & Ins. Co. V. Lasher Stocking Co., 66 Vt. 439. ="Ante, pp. 51-60, §§ 32, 33, "Specific Performance," notes 30--33; post, "Reformation;" Hamilton v. Lycoming Mut. Ins. Co., 5 Pa. St. 344; Mitchell v. Union Life Ins. Co., 45 Me. 104; Herron v. Peoria M. & F. Ins. Co., 28 111. 235. 86 THE CONTRACT — MAKING. §40 incomplete and invalid till so countersigned.^^ But such a stipulation does not prevent an authorized agent from making a valid agreement to execute and deliver a policy in the usual form.^^ It seems that countersigning may sometimes be waived by an agent if an intention to issue the policy as a complete contract without such countersigiiing be shown; ^^ but mere possession of a policy stating on its face that it is not to take effect until signed by the agent, and which is not so countersigned, is no evidence that the policy was ever de- livered with such intention ; ^^^ and the power of an agent to waive such a provision is not beyond question.^^ The Premium. The premium is the consideration moving to the insurer for its assumption of a risk. A contract of insurance is not complete until the amount of the premium is agreed upon. It is not necessarily payable in advance. In the absence of ^^Hardie v. St. Louis Mut. Life Ins. Co., 26 La. Ann. 242; Noyes V. Phoenix Mut. Life Ins. Co., 1 Mo. App. 584; Badger v. American Popular Life Ins. Co., 103 Mass. 244; McCully's Adm'r v. Plioenix Mut. Life Ins. Co., 18 W. Va. 782; Confederation Life Ass'n v. O'Donnell, 10 Can. Sup. Ct. 92; Peoria M. & F. Ins. Co. v. Walser, 22 Ind. 73; Security Ins. Co. v. Fay, 22 Mich. 467, 7 Am. Rep. 670; Wil- kins V. State Ins. Co., 43 Minn. 177; Grady v. American Cent. Ins. Co., 60 Mo. 116. ''Ante, §§ 29, 30. "Myers v. Keystone Mut. Life Ins. Co., 27 Pa. St. 268; Kautreuer V. Penn Mut. Life Ins. Co., 5 Mo. App. 581; Union Ins. Co. v. Smart, 60 N. H. 458; Hibemia Ins. Co. v. O'Connor, 29 Mich. 241; Norton V. Phoenix Mut. Life Ins. Co., 36 Conn. 503; German Fire Ins. Co. V. Laggart, 47 Kan. 663. "* Prall V. Mutual Protection Life Assur. Soc, 5 Daly (N. Y.)» 298; Badger v. American Popular Life Ins. Co., 103 Mass. 244. ''Wilkins v. State Ins. Co., 43 Minn. 177. And see Security Ins. Co. V. Fay, 22 Mich. 467; Lynn v. Burgoyne, 13 B. Mon. (Ky.) 400; Confederation Life Ass'n v. O'Donnell, 10 Can. Sup. Ct. 92; Mc- Cully's Adm'r v. Phoenix Mut. Life Ins. Co., 18 W. Va. 782. A § 47 DELIVERY OF POLICY. 87 any agreement concerning the time of payment of tlie pre- mium and where no custom or usage to the contrary is shown, the presumption is that the attaching of the risk and the pay- ment of the premium were intended to be coincident.^* Same — Delivery of Policy. § 47. Delivery may be actual or constructive, absolute or conditional. A policy becomes a binding con- tract — (a) When executed pursuant to an agreement where- by an insurer accepts a risk, and (b) The execution is intended as the final evidence of an acceptance of the risk, and (c) Nothing further is required to be done by the in- sured to signify his adoption of it. The delivery is complete whenever it is the intent of the par- ties that the policy shall become operative. Generally. x\ctual delivery of an insurance policy to the insured is not essential to either its validity or completeness as a contract of insurance unless expressly made so by the preliminary negotiations of the insured and the insurer, or by the terms of the policy itself. The policy, as such, comes into existence at the moment it is executed by the insurer. The contract is, as we have seen, complete when the proposals of the one party have been accepted by the other, and the acceptance has been signified by some proper act. The proposal and ac- ceptance may be oral, or written, or partly oral and partly written. Taken together they may constitute a contract of insurance in praesenti to be evidenced by the execution and de- livery of a policy in fidiiro; or they may amount to no more than an agreement of the insurer to assume the risk as soon as a policy is executed and before it is delivered ; or they may constitute an executory contract to insure upon the delivery '• Post, § 48, c. 6, 10. 88 THE CONTRACT — MAKING. § 47 to and acceptance of tlie policy by the insvired. The funda- mental question to be determined is, what was the real under- standing of the parties and when did thej agree and intend the policy would go into effect.^'^ The burden is upon a claimant to establish the assumption of the risk before the delivery of a policy by clear proof ;^^ whereas the possession of a policy by an insured is in itself evidence of the completion of the contract. Where there is no oral contract of insurance, and no contract contemplated except upon the delivery of the policy and payment of the premium, the relation of insurer and insured is not established until the policy is delivered and the premium is paid.^'"' When there is nothing to show the manual possession of the policy in such a case, the contract is prima facie incomplete as a contract; and the burden is upon him who asserts it to show that the real intention and understanding of the parties was to pass the legal title and possession without delivery in fact, and to account for the circumstance that the policy has not been put into his possession, as contracts of that kind usually are when completely executed, or in other words to show constructive possession. But this only goes to the ques- tion of evidence. Constructive delivery and constructive "Chamberlain v. Prudential Ins. Co. (Wis.), 85 N. W. 128; New York Life Ins. Co. v. Babcock, 104 Ga. 67, 42 L. R. A. 88; Newark Ma- chine Co. V. Kenton Ins. Co., 50 Ohio St. 549, 22 L. R. A. 768; Yonge V. Equitable Life Assur. See, 30 Fed. 902; Lorscher v. Supreme Lodge K. H., 72 Mich. 316, 2 L. R. A. 206; Bishop v. Grand Lodge, 112 N. Y. 627; Mut. Life Ins. Co. v. Young's Adm'r, 23 Wall. (U. S.) 85; Hubbard v. Hartford Fire Ins. Co., 33 Iowa, 325; Franklin Ins. Co. V. Colt, 20 Wall. (U. S.) 560; Piedmont & A. Life Ins. Co. v. Ewing, 92 U. S. 377; Home Forum Ben. Order v. Jones, 5 Okla. 598, 50 Pac. 165. ^Ante, c. Ill, note 19. =" Wainer v. Milford Mut. Fire Ins. Co., 153 Mass. 335, 11 L. R. A. 598; Myers v. Liverpool & L. & G. Ins. Co., 121 Mass. 338. § 47 DELIVEKT OF POLICY. 89 possession, if proved, are sufficient. A delivery may be "actual, that is by doing something and saying nothing, or verbal, that is by saying something and doing nothing, or it may be by both. But it must be by something answering to one or the other or both of tliese," and with an intent to give effect to the policy.'*'^ When an application has been made, approved, and ac- cepted, and a policy prepared and executed, and a notice of such execution given to the insured, as, for example, by mailing- it to him, the contract of insurance is complete, and the appli- cant is entitled to the policy. Then the offer of the one has been accepted by the other, the minds of the parties have met, and nothing further is needed to secure to the applicant the in- demnity for which he applied and which the insurer has consented to furnish him. An actual execution and a substi- tuted delivery of the policy has been effected. A physical transmission of the policy would not enlarge — except so far as the matter of proof !s concerned — nor does its absence diminish, his rights. ^^ Actual Delivery. Where actual delivery is by the terms of the contract a con- dition precedent to the attaching of the risk, the liability does ^''Markey v. Mutual Ben. Life Ins. Co., 103 Mass. 92; Phoenix Assur. Co. V. McAuthor, 116 Ala. 659, 22 So. 900; Heiman v. Phrenix Mut. Life Ins. Co., 17 Minn. 153 (Gil. 127) ; Morrison v. North Amer- ican Ins. Co., 64 N. H. 137; Merchants' Ins. Co. v. Union Ins. Co., 162 111. 173, and cases supra. *" Sheldon v. Connecticut Mut. Life Ins. Co., 25 Conn. 207; Shat- tuck V. Mutual Life Ins. Co., 4 Cliff. 598, Fed. Cas. No. 12,715: Lorscher v. Supreme Lodge K. H., 72 Mich. 316, 2 L. R. A. 206; Bishop V. Grand Lodge, 112 N. Y. 627; Tayloe v. Merchants' Fiie Ins. Co., 9 How. (U. S.) 390; Dailey v. Preferred Masonic Mut. Ace. Ass'n, 102 Mich. 289. 57 N. W. 184. 26 L. R. A. 171; Tennant v. Travellers' Ins. Co., 31 Fed. 322. 90 THE CO^'TKACT — MAKING. §47 not attach until tlie condition is met. The executory contract to issue and deliver a policy may still exist and remain valid and enf orcible ; but ihe policy as such has not become a con- tract until all conditions precedent created either by the pre- limir ary contract or by the very terms of the policy itself have been fully complied ^vi"h or effectually waived.^^ And the delivery must be absolute and intended to divest the insurer of any right of control over the policy as well as to convey to the insured absolute dominion over it. The general rule is that where a policy is to go into effect only upon its delivery, it does not become effectual until it is delivered by the insurer to the insured or some one acting on his behalf with the mutual understanding that it shall thereupon take effect. Manual possession by the assured is not indispensable.^^ But the mutual understanding and intention is necessary, and the transaction must be had with the insured or someone author- ized to act for him in the matter.^^ Possession of a policy is only presumptive evidence of its legal delivery. Thus in Badger v. American Popular Life *= Cases supra; Kohen v. Mutual Reserve Fund Life Ass'n, 28 Fed, 705; Misselhorn v. Mutual Reserve Fund Life Ass'n, 30 Fed. 545; McClave v. Mutual Reserve Fund Life Ass'n, 55 N. J. Law, 187; Harnickell v. New York Life Ins. Co., Ill N. Y. 390; Yonge v. Equi- table Life Assur. Soc, 30 Fed. 902; Myers v. Liverpool & L. & G. Ins. Co., 121 Mass. 338. « Brown v. American Cent. Ins. Co., 70 Iowa, 390, 30 N. W. 647; New York Life Ins. Co. v. Babcock, 104 Ga. 67, 42 L. R. A. 88; Schwartz v. Germania Life Ins. Co., 21 Minn. 215; Morrison v. In- surance Co. of North America, 64 N. H. 137; Tennant v. Travellers" Ins. Co., 31 Fed. 322; Hodge v. Security Ins. Co., 33 Hun (N. Y.), 583; Stebbins v. Lancashire Ins. Co., 60 N. H. 65; Hoyt v. Mutual Ben. Life Ins. Co.. 98 Mass. 539. "Stebbins v. Lancashire Ins. Co., 60 N. H. 65; Millville Mut. F. & M. Ins. Co. V. Collerd, 38 N. J. Law, 480; Heiman v. Phognix Mut. Life Ins. Co., 17 Minn. 153 (Gil. 127) ; Hawley v. Michigan Mut. Life Ins. Co., 92 Iowa, 593, 61 N. W. 201; post, c. 8, "Agents." § 47 DELIVERY OF POLICY. 91 Co./^ it ^Yas held that a policy of life insurance which pro- vided that it should not be in force until countersigned by "A. B. agent" was invalid till so countersigned, although A. B. himself was the assured and the policy had been received and retained by him, there being no evidence of waiver. Whether given occurrences and dealings with a policy are sufficient to constitute an actual delivery understood by both parties to pass the title in a policy to the insured is to be de- termined as a question of fact. In Markey v. Mutual Bene-' fit Life Ins. Co.,^^ the question for determination was whether there was an actual or constructive delivery of the policy. The facts were: The husband was ill. The agent went to his house, taking the policy with him. He passed it to the hus- band, saying he had brought him his policy. The hus- band said he was glad of it, he had been expecting it for some days past. He took it, read it over, handed it to his wife, saying, "there is your policy." She took it, glanced it over, and laid it upon the table. The husband told the agent "that he was not well enough to go out and get the 'money to pay for the policy ; that he had made an arrangement with B. to get the money and pay it to him." The agent said "he would go directly to B. and get the money for the policy," When he started to go the wife took the policy from the table and passed it to him, saying, "If you are going to B. for the money you may need the policy, and may as well take it and leave it with him." He took the policy. The wife's idea in giving it to him was that B. would want to see the amount he was to pay. Upon learning the policy had not been delivered to B. insured tendered the premium. It was held that the "103 Mass. 244; Prall v. Mutual Life Protection Assur. Soc, 5 Daly (N. Y.), 298; Davis v. Massachusetts Mut. Life Ins. Co., la Blatchf. 462. Fed. Cas. No. 3,642. *' 103 Mass. 78, 118 Mass. 178. 92 THE CONTRACT — MAKING. §47 evidence was insufficient to warrant a finding tliat tlie policy liad been delivered so as to make it a completed and binding contract. Constructive Delivery. A constrnctive delivery may be sufficient if evidenced by any act intended to signify that tlie instrument shall have present vitality, as where an application is accepted and a policy issued but never placed in the possession of the in- sured.''^ Delivery to Insurer's Agent. In determining whether a policy was delivered, effect must always be given to the intention of the parties, and what their conduct shows they considered a delivery must control. When the terms of an executed contract have been accepted by the in- sured, and the parties have thereafter treated it as in force, its delivery will be regarded as complete although it never passed out of the hands of the agent of the insurer. And the delivery by an insurer to its agent of a policy to be unconditionally de- livered by him to an insured, is in contemplation of laAv a delivery to the insured, even though its delivery to the appli- cant is by the policy made essential to its validity. ^^ And in "Fried v. Royal Ins. Co., 47 Barb. (N. Y.) 127; Newark Machine Co. V. Kenton Ins. Co., 50 Ohio St. 549, 22 L. R. A. 768; Schwartz v. Germania Life Ins. Co., 21 Minn. 215; Sheldon v. Connecticut Mut. Life Ins. Co., 25 Conn. 207; Lorscher v. Supreme Lodge K. H., 72 Mich. 316, 2 L. R. A. 206. See, also, Heiman v. Phoenix Mut. Life Ins. Co.. 17 Minn. 153 (Gil. 127) ; Union Cent. Life Ins. Co. v. Pauly, S Ind. App. 85, 35 N. E. 190. ^* Newark Machine Co. v. Kenton Ins. Co.. 50 Ohio St. 549, 22 L. R. A. 768; New York Life Ins. Co. v. Babcock, 104 Ga. 67, 42 L. R. A. 88; Mutual Life Ins. Co. v. Thomson, 94 Ky. 253; Kentucky Mut. Ins. Co. V. Jenks, 5 Ind. 96; Kelly v. St. Louis Mut. Life Ins. Co., 3 Mo. App. 554. g 47 . DELIVERY OF POLICY. 93 such case tlie agent cannot refuse to deliver the policy to the assured upon tender of the premium even though the risk has become undesirable, as where the risk is on a life, and before the arrival of the policy the applicant has become dangerously ill.^^ In Dibble v. Northern Assurance Co.,^*^ the plaintiff had for several years before the policy in suit was issued, placed his insurance with defendant's agent with authority to keep his property insured in such companies as he (the agent) might select, and to renew his policies when- ever necessary. The agent placed certain risks in the S. company which afterwards directed their cancellation. These policies were cancelled by the agent who thereupon placed the risks in defendant company, issued a policy and placed it in his safe for plaintiff, charged plaintiff and credited defendant with the premium and notified both. This was held a sufficient delivery. And so where the original agreement between the applicant and the agent vras that the latter should keep the policy when executed for the use and benefit of the former; ^^ and where the policy is redelivered to the agent to be kept by him with other papers of the in- sured ;^2 and where after being notified of the issuance of the policy the insured left it uncalled for in the hands of the agent ;^^ and where a renewal receipt was retained by the agent at request of the insured.^-* Where the application stip- '° Schwartz v. Germania Life Ins. Co., 21 Minn. 215; Porter v. Mutual Life Ins. Co., 70 Vt. 504, 41 Atl. 970; Southern Life Ins. Co. V. Kempton, 56 Ga. 339; Yonge v. Equitable Life Assur. Soc, 30 Fed. 902. ="70 Mich. 1, 37 N. W. 704; Hamm Realty Co. v. New Hampshire Fire Ins. Co., 80 Minn. 139, 83 N. W. 41; post, notes 78, 79. '1 Franklin Ins. Co. v. Colt, 20 Wall. (U. S.) 560. '2 Phoenix Ins. Co. v. Meier. 28 Neb. 124, 44 N. W. 97. =' Phoenix Assur. Co. v. McAuthor, 116 Ala. 659, 22 So. 903. "Tennant v. Travellers' Ins. Co., 31 Fed. 322. ^4 THE CONTRACT MAKING. § 47 nlates tliat tlie agent of tlie company tvIio forwards it shall act for both parties, delivery of the policy to him perfects the contract.^^ But the mere assumption of authority to act on behalf of the assured is not enough — the agent must derive the power from his principal.^® Thus a policy written and intended as a substitute for another policy in another com- pany, but not deliveied and of which the insured has no laiowledge until after the property has been destroyed, is not a binding contract.^'^ A general insurance agency, which represents several companies with authority to execute, issue and cancel policies for them all in proper cases, may also act as agent of an insured in waiving notice of cancellation of policies issued by any such companies, and in accepting for the insured new policies issued by itself in lieu of those can- celed.^* Delivery by Mail. A contract is complete when an application has been ac- cepted and a policy execu+ed and deposited in the mail, post- age prepaid, addressed to the applicant, with intent to have it take immediate effect,'^® and so if it be properly mailed to the agent of the insurer for unconditional delivery to the in- sured.^^ It is immaterial that the policy does not reach *» Alabama Gold Life Ins. Co, v. Herron, 56 Miss. 643. " See post, c. 8. " Stebbins v. Lancashire Ins. Co., 60 N. H. 65. See Dibble v. Northern Assur. Co., 70 Mich. 1, 37 N. W. 704; Merchants' Ins. Co. V. Union Ins. Co.. 162 III. 173. '^ Hamm Realty Co. v. New Hampshire Firs Ins. Co., 80 Minn. 139, 83 N. W. 41. "Northampton Mut. Ins. Co. v. Tuttle, 40 N. J. Law, 476; Dailey V. Preferred Masonic Mut. Ace. Ass'n, 102 Mich. 289, 57 N. W. 184, 26 L. R, A. 171; Yonge v. Equitable Life Assur. Soc, 30 Fed. 902. '"Kentucky Mut. Ins. Co. v. Jenks, 5 Ind. 96; Porter v. Mutual Life Ins. Co., 70 Vt. 504, 41 Atl. 970; ante, note 4S. I 47 DELIVERY OF POLICY, 95 either tlie Insured,*'^ or the agent,^^ ^in rjfter a loss has occurred, or that the policy provides that it shall not be in force until its delivery to the applicant "during his life and good health." *^2 Stipulations in Application or Policy Eequiring Delivery. A stipulation or condition in either an application or a policy that the contract shall not take effect until a policy is actually delivered to the applicant creates a valid condition precedent to the consummation of the contract, and the condi- tion must be either performed or vraived before the policy becomes operative.^^ A waiver takes place when the policy is delivered by the insurer itself ^^ or through an agent with authority to bind it by such an act.^^ Conditional Delivery. A policy may be delivered conditionally, in which case liability does not attach until the condition has been met or performed. An absolute and unconditional delivery does not occur until there is a transfer of the legal possession of the policy to the insured or to some person acting for him with *' Dailey v. Preferred Masonic Mut. Ace. Ass'n, 102 Midi. 289, 57 N. W. 184. 26 L. R. A. 171. "- Kentucky Mut. Ins. Co. v. Jenks. 25 Ind. 96. "' Mutual Reserve Fund Life Ass'n v. Farmer, 65 Ark. 581, 47 S. "W. 850. "See ante, note 42; Chamberlain v. Prudential Ins. Co. (Wis.), 85 N. W. 128; Schaffer v. Mutual Fire Ins. Co., 89 Pa. St. 296; Badger v. American Popular Life Ins. Co., 103 Mass. 244; Or- mond V. Fidelity Life Ass'n, 96 N. C. 158; McCully's Adm'r v. Phoenix Mut. Life Ins. Co.. 18 W.. Va. 782. •° Mutual Reserve Fund Life Ass'n v. Farmer, 65 Ark. 581, 47 S. W. 850; Dailey v. Preferred Masonic Mut. Ace. Ass'n, 102 Mich. 289, 57 N. W. 184, 26 L. R. A. 171. ""Post, c. 8, "Agents;" post, c. 18, "Waiver and Estoppel;" Con- necticut Ind. Ass'n v. Grogan's Adm'r (Ky.), 52 S. W. 959. 96 THE CONTRACT — MAKING. §47 tlie intent to give effect to the policy as a completed contract. Thns the exliibition of a policy to an applicant, or his tem- porary possession of the same while reading it, followed by its return to the agent constitute only a conditional delivery ;^^ and likewise the delivery of a policy upon the agreement that it was issued only as a substitute for a previous policy which Avas to be surrendered, and wdiich never was surrendered but enforced and paid;^^ and where the absolute delivery is de- pendent upon the approval of an agent's act by the insurer itself ;^^ and where a policy different from the one requested by an applicant is handed to him with a request that he return it if he did not wish to comply with its terms and pay the premiums )'^^ and wliere the attaching of the risk is contingent upon the premium being paid or some other event. ''^^ And parol evidence is admissible to prove that a policy, which is in form a complete contract, and of which there has been a manual transmission, was not intended to and did not become a binding contract until the occurrence or performance of some condition precedent resting in parol."^^ Delivery Obtained by Fraud. An insured cannot recover upon a policy which he has ob- tained through fraud, or misrepresentation, or concealment "Heiman v. Phoenix Mut. Life Ins. Co., 17 Minn. 153 (Gil. 127); Markey v. Mutual Ben. Life Ins. Co., 118 Mass. 178, 126 Mass. 158. "" Faunce v. State Mut. Life Assur. Co., 101 Mass. 279. "'Nutting V. Minnesota Fire Ins. Co., 98 Wis. 26, 73 N. W. 432. '"Myers v. Keystone Mut. Life Ins. Co., 27 Pa. St. 268. "^Harnickell v. New York Life Ins. Co., Ill N. Y. 390; Ware v. Allen, 128 U. S. 590; Mutual Life Ins. Co. v. Young's Adm'r, 23 Wall. (U. S.) 85; Brown v. American Cent. Ins. Co., 70 Iowa, 390, 30 N. W. 647. "-Nutting V. Minnesota Fire Ins. Co., 98 Wis. 26, 73 N. W. 432; Shields v. Equitable Life Assur. Soc, 121 Mich. 690, 80 N. W. 793; Faunce v. State Mut. Life Assur. Co., 101 Mass. 279. § 47 DELIVERY OF POLICY. 97 of facts material to the risk and which he ought to have com- municated to the insurer. "^^ Loss After Agreement is Made but Before Policy is Delivered. Since an oral contract of insurance is valid and enforcible, it follows that an oral agreement to insure m praesenti, though contemplating the future execution and delivery of a policy, protects the insured, and furnishes him the stipulated indemnity against loss or damage occurring before the delivery of the policy. The remedy of the insured in such a case is either by an action at law upon the oral contract of insurance, or by a proceeding in equity to compel the execution of the contract, and to recover upon it as thus executed, or by an action for breach of contract to insure, according to the cir- cumstances.'^^ Whether there was an oral contract of in- surance to become operative at once, or simply an executory contract for insurance to become effectual upon the delivery of a policy, must l)e determined according to the rules already laid down. If delivery be essential, it is completed when the policy has been executed, and the insurer intends it to become operative, and nothing further remains to be done by the insured to signify his acceptance of it.'''^ Until that time the insurer is not liable.'^^ Where an insurer has agreed to give written consent to a transfer of one of its policies upon given conditions Avhich have been performed, and the policy has been forwarded to it for indorsement, it is bound by the transfer, and estopped to "Wales V. New York Bowery Fire Ins. Co., 37 Minn. 106; Pied- mont & A. Life Ins. Co. v. Ewing, 92 U. S. 377; Cable v. United States Life Ins. Co., Ill Fed, 19. "Ante, §§ 30-33. "* Ante, p. 88. ''Allen V. Massachusetts Mut. Ace. Ass'n, 167 Mass. 18, 44 N. E. 1053; Lightbody v. North American Ins. Co. 23 Wend. (N. Y.) 18. Compare Cooke v. Aetna Ins. Co., 7 Daly (N. Y.), 555. KERR, INS.— 7 98 THE CONTKACT MAKING, § 47 dispute its validity though a loss occurred before the policy has been received or the indorsement made J '^ When an ap- plication for insurance is made to an agent representing sev- eral companies, the agent to select the companies and distrib- ute the risks, a valid contract of insurance is made with each company as soon as its policy is signed, although the property insured is destroyed by fire before the policies are delivered. In distributing the risks the agent is acting for the insured. '^^ But if the agent under such circumstances is not authorized by the applicant to select the companies, no contractual rela- tion exists between the applicant and any insurer until a policy has been executed and delivered and accepted. '^^ In a Missouri case it appeared that an application was made and accepted February 9th and the policy immediately made out, but the premium was not paid nor the policy delivered until March 14th. At the time of the delivery the property was on fire, which fact was known to the insured but not to the com- pany. It was held that the contract was completed on February 9th and that the insured was not bound to disclose the conditions existing when he obtained the policy.^'' In the absence of an oral agreement for insurance the risk does not attach until delivery of the policy although the pohcy has been executed and the applicant has been notified that it is ready for him.^^ An insurance company which on September "Medearis v. Anchor Mut. Fire Ins. Co.. 104 Iowa, 88, 73 N. W. 495. " Michigan Pipe Co. v. Michigan F. & M. Ins. Co., 92 Mich. 482, 20 L. R. A. 277. Compare New York L. & W. W. Co. v. People's Fire Ins. Co.. 96 Mich. 20. 55 N. W. 434. ""> Kleis V. Niagara Fire Ins. Co., 117 Mich. 469, 76 N. W. 155. *°Keim v. Home Mut. F. & M. Ins. Co., 42 Mo. 38; Hallock v. Com- mercial Ins. Co., 26 N. J. Law, 268. " Wainer v. Milford Mut. Fire Ins. Co., 153 Mass. 335, 11 L. R. A. 598; Myers v. Liverpool & L. & G. Ins. Co., 121 Mass. 338. § 47 DELIVERY OF rOLICY. 99 loth acknowledges the receipt from its agent, authorized to issue policies, of an application made on September 11th for insurance to begin September 12th and setting forth all the terms of the previous contract and which directs the agent to ^vrite out a policy for the desired amount, is liable for a loss occurring September 21st, although the agent writes out the policy for one year commencing September 22d.^2 Loss Before Any Contract is Made — Retroactive PoUcies. Policies are sometimes intended to have a retroactive effect. No particular form of words is necessary to make a policy retroactive. It is sufficient if it appears by the description of the risk and the subject inatter of thp contract that the policy was intended 'O oo\^er a previous loss, (^cntracts of this kind are a& valid as those intended to cover a subseiquent loss, if the in.sured. as welj £>,s the insuTor .are' ignorant of the loss at the time the com^&Qt is jnade. But if the property has been destroyed before the terms of the contract have been agreed upon, and the applicant knows this fact but does not communicate it to the insurer who accepts the risk and issues an antedated policy in ignorance of the loss, the policy is void as to and will not cover the loss, although antedated as of a time prior to the loss.^^ Unless a binding contract of in- *= Hartford Fire Ins. Co. v. King, 106 Ala. 519, 17 So. 707. See, also, Dailey v. Preferred Masonic Mut. Ace. Ass'n, 102 Mich. 289, 26 L. R. A. 171; Mutual Reserve Fund Life Ass'n v. Farmer, 65 Ark. 581, 47 S. W. 850; Angell v. Hartford Fire Ins. Co., 59 N. Y. 171; Cooper V. Pacific Mut. Life Ins. Co., 7 Nev. 116; Fried v. Royal Ins. Co., 50 N. y. 243. *» Wales V. New York Bowery Fire Ins. Co., 37 Minn. 106;. Suther- land V. Pratt, 11 Mees. & W. 296; Haskin v. Agricultural Fire Ins. Co., 78 Va. 700; Mercantile Mut. Ins. Co. v. Folsom, 18 Wall. (U. S.) 237; Hallock v. Commercial Ins. Co., 26 N. J. Law, 268; Collins v. Phoenix Ins. Co., 14 Hun (N. Y.), 534; Cobb y. New England Mut. M. Ins. Co., 6 Gray (Mass.), 192. 100 THE CONTKACT — MAKING. §4S surance lias been made before a loss^ it is not witliin the power of an agent to ratify an imperfect contract by issuing a policy thereafter.^^ The acceptance of an application for life insurance and the execution of a policy after the death of the applicant and "without knowledge thereof, fol- lowed by a deliveiy of the policy at the place Yv'here the de- ceased had resided, do not constitute a valid contract.^^ And a contract of insurance wholly made after the death of the ty intended to be insured, the insurer being ignorant of that fact, is void, although a policy be issued and dated prior to the death.^^ , . DjjEATIOK ' OS' CoiNTB^CY. - § 48. The intent of the parties as to the commeno'jment and ending of the contract and risk governs, if it can be ascertained from the contract and subject matter find riegotiations. The term of the insurance, that is the period during which the liability of the insurer continues, its inception and ending, is one of the essentials of the contract. It must be fixed by the contract itself or be inferable from the negotiations and circumstances surrounding the consummation of the con- tract.^'^ It may by stipulation not commence until a policy is delivered, or countersigned and delivered, or unless coun- tersigned and delivered before any material change takes "Hartford Fire Ins. Co. v. McKenzie, 70 111. App. 615; Franklin Ins. Co. V. Colt, 20 Wall. (U. S.) 560; Stebbins v. Lancashire Ins. Co., 60 N. H. 65; People v. Dimick, 41- Hun (N. Y.), 616, 107 N. Y. 13; Blake v. Hamburg Bremen Fire Ins. Co., 67 Tex. 160. ^' Misselhorn v. Mutual Reserve Fund Life Ass'n, 30 Fed. 545. See Mutual Life Ins. Co. v. Young's Adm'r, 23 Wall. (U. S.) 85; Pied- mont & A. Life Ins. Co. v. Ewing, 92 U. S. 377. *" Lefavour v. Insurance Co., 1 Phil. (Pa.) 558, 2 Bigelow, Life &. Ace. Rep. 158. "Ante, §§ 17, 40-46. I 48 DURATION OF CONTRACT. 101 place in tlie nature of the risk ; or it may begin upon tlie date of the application and continue for a fixed period unless the application be sooner rejected ; or the policy when issued may have a retroactive effect or be dated prior to the day of its execution and cover risks which have occurred prior to that time. The intent of the parties when ascertainable should control. ^^ The supreme court of California has laid doAvn the follow- ing rules which contain both a comprehensive and succinct statement of the law on this point: "(1) Where the exact time of the commencement and termination of the risk are specified in the policy, or, if no policy has been written, in the contract, such specification gov- erns. "(2) Where no time has been expressly indicated, the cir- cumstances of the case will be considered for the purpose of determining it. "(3) If "there are no circumstances indicating the inten- tion of the parties, and no time is specified in the contract, *' See supra. And see Buse v. Mutual Ben. Life Ins. Co., 23 N. Y. 516; Bradley v. Potomac Fire Ins. Co., 32 Md. 108; Whittaker v. Farmers' Union Ins. Co., 29 Barb. (N. Y.) 312; Hallock v. Com- mercial ins. Co., 26 N. J. Law, 268; Commercial Ins. Co. v. Hallock, 27 N. J. Law, 645; Lightbody v. North American Ins. Co., 23 Wend. (N. Y.) IS; City of Davenport v. Peoria M. & F. Ins. Co., 17 Iowa, 276; American Horse Ins. Co. v. Patterson, 28 Ind. 17; Atlantic Ins. Co. V. Goodall, 35 N. H. 328; Isaacs v. Royal Ins. Co., 39 Law J. Exch. 189; Atkins v. Sleeper, 7 Allen (Mass.), 487; Kentucky Mut. Ins. Co. V. Jenks, 5 Ind. 96; Perry v. Provident Life Ins. & Inv. Co., 99 Mass. 162; Sherwood v. Agricultural Ins. Co., 73 N. Y. 447; Schroeder v. Trade Ins. Co., 109 111. 157; Grousset v. Sea Ins. Co., 24 Wend. (N. Y.) 209; Collins v. Phcenix Ins. Co., 14 Hun (N. Y.), 534; Walker v. Protection Ins. Co., 29 Me. 317; Bradlie v. Maryland Ins. Co., 12 Pet. (U. S.) 378; Krumm v. Jefferson Fire Ins. Co., 40 Ohio St. 225. 102 THE CONTRACT — MAKING. § 48 the risk will be deemed to liave commenced at the date of the contract. "(4) In the case last mentioned, if before the contract of insurance is made the property has ceased to exist, although unknown to the parties, the risk never attaches." ^^ The charging of a full year's premium for a policy of reinsurance in which no dates are fixed is indicative of an in- tention to reinsure from the date of the original policy.^® A policy which in terms begins upon a date certain but contains a stipulation that it shall not be effectual until issued and de- livered, takes effect after it is delivered from the date stated in its terms and not from the date of delivery.®^ Liability for only a single year is assunied by a company which issues its policy promising to pay a given amount in ease of the death of the insured before noon of a date precisely one year from the date of the policy.^ ^ From the use of the phrase "at 12 o'clock noon" it will be presumed that the hour of twelve o'clock sun time was intended, and the customary use of standard time at the place of the making of the contract is not alone sufficient to show that by the custom of the place this phrase meant at twelve o'clock standard time.^^ A second benefit cer- tificate issued to one who had received payment under a former certificate which had been canceled, will not relate back to the date of the first certificate, even though it purports to be a "substitute" for the first one, so as to cover death resulting from injuries sustained while the first certificate »» Union Ins. Co. v. American Fire Ins. Co., 107 Cal. 327, 28 L. R. A. 692. ""Philadelphia Life Ins. Co. v. American Life & Health Ins. Co., 23 Pa. St. 65. *' Gordon v. United States Casualty Co. (Tenn.), 54 S. W. 98. °- Rosenplaenter v. Provident Sav. Life Assur. Soc, 91 Fed. 728. °' Jones V. German Ins. Co., 110 Iowa, 75, 46 L. R. A. 860, 81 N. W. 188. § 48 DURATION OF CONTKACT. 103 was in force, where tlie premium charged is different and tho new certificate provides that it does not cover death in con- sequence of a previous wound or injury.^* • A contract of insurance is deemed to have been made at the date of the policy notwithstanding it provides for an in- surance of the property from a time anterior to that date, Avhen it appears by an express provision of the application upon whicih it was issued that no liability should attach until the application should be approved by the insurers, and that such approval was made on the day the policy was dated.^^ A policy dated and issued after a loss and not made to take effect prior to its issue will not support a recovery for the loss though there be proof of an earlier parol agi-eement to insure ; but a valid parol contract for a policy for one year, made in October, and providing for the issuing of the policy early in November, will protect the applicant from damage by a fire occurring November 19th. The remedy is by suit to enforce the parol contract.^^ Where application for in- surance was made to an authorized agent upon the 18th of the month and it was agreed that the policy should be issued on that day, and the x)olicy was in fact issued on that day but was not delivered nor the premium paid till the 2 2d, it was held that the policy commenced to run on the 18th.^''' In Parry v. Provident Life Ins. & Inv. Co.,^^ a policy of in- "Wood V. Massachusetts Mut. Ace. Ass'n, 174 Mass. 217, 54 N. E. 541. "Dayo V. Hawkeye Ins. Co., 72 Iowa, 597, 34 N. W. 435. ^ Home Ins. Co. v. Adler, 71 Ala. 516, 77 Ala. 242. "Hubbard v. Hartford Fire Ins. Co., 33 Iowa, 325. »' 99 Mass. 162. See Thibeault v. St. Jean Baptist Ass'n, 21 R. I. 157, 42 Atl. 518. "From" — "until," Isaacs v. Royal Ins. Co., L. R. 5 Exch. 296, 22 Law T. (N. S.) 681; Howard's Case, 2 Salk. 625; "be- tween" dates, Atkins v. Boylston F. & M. Ins. Co., 5 Mete. (Mass.) 439. See, also, 2 Parsons, Contracts (7tli Ed.), pp. 635, *504, 795- 104 THE CONTRACT — MAKING. §48 surance "for tlie period of twelve montlis" from noon of the day of its date to noon of the day of its expiration, was made "against loss of life" of the assured, in a sum payable to his wddow on proof "that the assured at any time after the date hereof, and before the expiration of this policy, shall have sus- tained personal injury caused by any accident," "and such in- juries shall occasion death within ninety days from the hap- pening thereof." By an accident which happened at nine o'clock in the forenoon, the assured sustained personal in- juries which occasioned his death about the same hour on the ninety-first day thereafter, excluding the day of date of the accident from the computation; the whole period being in- cluded within the twelve months. It was held that death did not occur within ninety days from the happening of accident, and that the clause limiting the liability of the insurer to the occurrence of death from the injuries within ninety days from the happening of the accident was not inconsistent with the provision by which insurance was given "for the period of twelve months," nor did it refer only to such injuries as should occasion death within ninety days after the twelve months. The acceptance of an application for membership in a mutual organization does not bind the applicant to continue his membership indefinitely.^^ A contract of insurance is terminated by an assignment for the benefit of creditors made by the insurer during the life of the contract. ^*^*' 798, *662--665; Protection Life Ins. Co. v. Palmer, 81 111. 88; Liberty Hall Ass'n v. Housatonic Mut. Fire Ins. Co., 7 Gray (Mass.), 261. «* Bankers' Ace. Ins. Co. v. Rogers, 73 Minn. 12, 75 N. W. 747. "» Smith V. National Credit Ins. Co., 65 Minn. 283, 33 L. R. A. 511. See Boston & A. R. Co. v. Mercantile Trust & Deposit Co., 82 Md. 535, 28 L. R. A. 97. g 4:9 eenewal of contkact. 105 Renewal of Contract. §49. A valid contract of renewal of insurance maybe made "by parol. It must contain all the essentials of a valid original contract. A parol agreement to renew an existing policy of insurance is valid. It may be made by any agent who has authority to solicit insurance, accept risks, agree upon and settle the terms of insurance, and issue and renew policies. The pre- mium need not be paid in advance, nor tendered on the day when the renewal should be made, provided the course of deal- ing between the parties has been such as to justify the infer- ence and belief that credit is to be extended. ^*^^ The oral promise to renew must contain all the essntial elements of a valid contract of insurance. ^^^ The agreement upon the •essentials may be express or implied. It is sufficient if the minds of the parties met as to the tenns, and nothing re- mained to be done except that the agent should renew the expiring policy and that the insured should then or later pay the premium. ^^^ Thus where a policy for a single year at a stipulated annual premium has been once rencAved, an agreement for another renewal accompanied by a payment of the same premium, but without any term being fixed, will continue the policy in force for another year.^^^ Upon fail- '"^See ante, p. 45, § 29; Eames v. Home Ins. Co., 94 U. S, «29; McCabe v. Aetna Ins. Co., 9 N. D, 19, 81 N. W. 429; Bald- win V. Phoenix Ins. Co. (Ky.), 54 S. W. 13; Lockwood v. Middlesex Mut. Assur. Co., 47 Conn. 553; Squier v. Hanover Fire Ins. Co., 18 App. Div. 575, 46 N. Y. Supp. 30. '"- Sater v. Henry County Farmers' Ins. Co., 92 Iowa, 579, 61 N. W. 209; ante, §§ 17, 29, 30; Mallette v. British American Assur. Co., 91 Md. 471, 46 Atl. 1005. "•'King V. Hekla Fire Ins. Co., 58 Wis. 508; Hartford Fire Ins. Co. V. Walsh, 54 111. 164. '" Scott V. Home Ins. Co., 53 Wis. 238. 106 THE C0>;TRACT MAKING. § 49 lire of tlie authorized agent of an insurer to renew an expiring policy the insurer becomes liable in an action for damages bj the insured to the same extent as if the policy hid been renewed; or an action will lie against it for specific per- formance of its agreement to renew. ^"^ There is some disagreement among authorities as to the effect of a renewal. Mr. May says : "It is generally held to be a new contract, upon the terms and conditions stated in the policy expired — the old application, in the absence of evidence to the contrary, serving as the basis of the new con- tract, and as if made at the date of the renewal." ^'^^ But the renewal may be upon different terms and amount to a modi- fication of the former contract. And there would seem to be a difference between life insurance contracts which are in their nature continuous during the life of the insured though contingent upon the payment of stipulated premiums, and fire insurance contracts which are intended only to cover specified risks for shorter periods of time and usually con- tain provisions ^permitting of their cancellation. A renewal receipt is simply evidence of a continuance of the original contract between the same parties, upon the same risk and subject to the same hazard, unless the insurer has consented to some substitution of interests or change of risk and hazard. ^'^'^ An insurer is estopped to deny the renewal of a policy where its agents, who had power to insure, repre- sented to the insured that it had been renewed, and received "'Ante, §§ 30-33. "U May, Ills. (3d Ed.) § 70; Peacock v. New York Life Ins. Co., 20 N. Y, 293; Hartford Fire Ins. Co. v. Walsh, 54 III. 164; Witherell V. Marine Ins. Co., 49 Me. 200. 1" Firemen's Ins. Co. v. Floss, 67 Md. 403; Lancey v. Phoenix Fire Ins. Co., 56 Me. 562. § 49 RENEWAL OF CONTRACT. 107 and appropriated money which was paid to cover the cost of renewal. -^^^ The agreement to renew must he clear as well as complete. Loose and informal conversations hetween an agent and an insured Avill not hind the insurer. It must appear that the parties intended to make a renewal agreement and understood that they had perfected the agreement. ^^^ When this appears, the renewal contract is complete, even though the policy itself provides that it shall not be renewed in that manner. ^^^ No present and valid contract of renewal which will make an insurer liable for a subsequent loss is shown by proof that shortly before the expiration of a former policy, an insured instructed his employee, ^^ho was also the insurer's agent, to renew the policy when it expired, which the agent promised, but neglected to do.^^^ A condition in a renewal policy that the party insured is in "good health" is to be construed in connection with the terms of the original policy and the state- ments therein made respecting health. ^^^ "' International Trust Co. v. Norwich Union Fire Ins. Soc, 71 Fed. 81. 17 C. C. A. 608. "* O'Reilly v. Corporation of London Assur. Co., 101 N. Y. 575; Mallette v. British American Assur. Co., 91 Md. 471, 46 Atl. 1005; Croghan v. New York Underwriters' Agency, 53 Ga. 109; Taylor v. Phoenix Ins. Co., 47 Wis. 365. A preliminary agreement to keep the policy alive, not incorporated in the policy itself, is of no effect. Giddings v. Phoenix Ins. Co., 90 Mo. 272. And see Royal Ins. Co. v. Beatty, 119 Pa. St. 6. ""McCabe v. Aetna Ins. Co., 9 N. D. 19, 81 N. W. 429; Cohen v. Continental Fire Ins. Co., 67 Tex. 325. See Giddings v. Phoenix Ins. Co., 90 Mo. 272. '" Idaho Forwarding Co. v. Fireman's Fund Ins. Co., 8 Utah, 41, 17 L. R. A. 586. ^^- Peacock v. New York Life Ins. Co., 20 N. Y. 293, 1 Bosw. 338; Day V. Mutual Ben. Life Ins. Co., 4 Bigelow, Life & Ace. Rep. 15. Effect upon rights of creditors, Norwood v. Guerdon, 60 111. 253, 4 108 the contract — makixg. - § 50 Revival of Policy. § 50. When a policy, which does not in terms provide for its revival, lapses or is forfeited, it can only be re- vived (a) By a new contract upon a suflB.cient considera- tion; or (b) By the insurer waiving the lapse or forfeiture. As the word "renewal" presupposes the existence of a live and existing contract whose continuation was sought or agreed upon, so the word "revival" contemplates the expira- tion of a previous contract wdiose reinstatement is under consideration. Nothing can revive a policy wliich has be- come null and void except a new contract supported bj a valid and sufficient consideration,^ ^^ or such conduct of the insurer as amounts to a waiver and operates as an estoppel. -^^^ The receipt of a premium after knowledge of a forfeiture is a waiver of the forfeiture ; but such knowledge on the part of the insurer at the time of payment must be proved before a waiver is established, ^^^ It has been held that the attaching of a mortgage clause to a forfeited policy without a new con- sideration creates no liability against an insurer ; ^ ^^ nor does a consent to a transfer of the policy. ^^''^ An agent cannot revive a forfeited policy by giving an antedated receipt for Bigelow. Life & Ace. Rep. 30; Clarke v. Schwarzenberg, 164 Mass. 347. •"Lantz V. Vermont Life Ins. Co., 139 Pa. St. 546; Phoenix Ins. Co. V. Tomlinson, 125 Ind. 84; New York Cent. Ins. Co. v. Watson, 23 Mich. 486. "^Security Ins. Co. v. Fay, 22 Mich. 467; Brink v. Hanover Fire Ins. Co., 70 N. Y. 593. "=^ Ellis V. State Ins. Co., 68 Iowa, 578, 27 N. W. 762; Sheppard v. Peabody Ins. Co., 21 W. Va. 368. "" Baldwin v. German Ins. Co., 105 Iowa, 379, 75 N. W. 326. "' Davis V. German American Ins. Co. 135 Mass. 251. See, also, Graham v. Fireman's Ins. Co., 87 N. Y. 69; Hanover Fire Ins. Co. v. National Exchange Bank (Tex.), 34 S. W. 333. , I 50 KEYIVAL OF POLICY. 109 tlig premium ;^^^ nor by redelivery of a canceled policy after a loss.^^^ But an agent empowered to issue and renew policies is usually held to have power to waive violations of their conditions, and in so far as he acts within his authority binds his principal by waiver express or implied, so long as his acts are not illegal. ^^"^ A life policy which has lapsed through non-payment of the premium, is not revived by a payment made after the death of the insured, where the fact of death was unknown to the insurer when the payment was accepted. ^^^ Where consent of an insurer is obtained to the revival of a policy only by the making and approval of a renewal application, the repre- sentations contained therein become a part of the original contract.^" Eeinstatement of a policy will, upon a proper showing, be coerced by a court of equity, as where a surrender has been obtained through fraud or deceit or misrepresenta- tion, ^^a ^Yhen the contract is silent as to the conditions upon which it may be revived after it has lapsed or been for- feited, an insurer is under no obligation to consent to a revival or renewal, and may attach such conditions precedent as it chooses to its consent if given ; but, where the contract itself prescribes the terms, the insured need do no more than comply with such terms, and the consent of the insurer is unnecessary.-'^^ ""Diboll V. Aetna Life Ins. Co., 22 La. Ann. 179. "» Hartford Fire Ins. Co. v. Reynolds, 36 Mich. 502; Crown Point Iron Co. V. Aetna Ins. Co., 53 Hun, 220, 6 N. Y. Supp. 602. ""Post, c. 8, "Agents." "' Wyman v. Phoenix Mut. Life Ins. Co., 45 Hun (N. Y.), 184; Ellis V. State Ins. Co., 68 Iowa, 578, 27 N. W. 762. '" Metropolitan Life Ins. Co. v. McTague, 49 N. J. Law, 587. '^ Heinlein v. Imperial Life Ins. Co., 101 Mich. 250. 25 L. R. A. 627. '^"Manson v. Grand Lodge A. O. U. W., 30 Minn. 509; Dennis v. Massachusetts Ben. Ass'n, 120 N. Y. 496, 9 L. R. A. 189; Jackson v. 110 the contract — making. §§51,52 Application". §51. An application is a mere request or proposal for in- surance. § 52. The application may be, but is not necessarily, a part of a contract or policy issued by an insurer in acceptance of the proposal. An application for insurance is a very different tiling from the contract of insurance to wliich it leads. It is only an offer by one wlio desires to be insured to some insurer to enter into a contract concerning a specified subject matter upon specified terms. This offer the insurer may accept or reject, absolutely or with some qualification or condition. The contract is not made until the proposal of one party has been unqualifiedly and unconditionally accepted by the other party, and the acceptance has been signified by some proper act, so that neither party can recede without liability. -^^^ The words used in an application are given their ordinary and usual meaning, and the construction is the same as that of a policy. ^^^ Whether an application is a part of a policy s-ubsequently executed and delivered to an insured must be determined from an inspection and construction of the policy itself. The question is often of vital importance in cases where there is an issue as to fraud, conceahnent, or misrepresentation by the Northwestern Mut. Relief Ass'n, 78 Wis. 463; Lovick v. Providence Life Ass'n, 110 N. C. 93; Lindsey v. Western Mut. Aid Soc, 84 Iowa. 734, 50 N. W. 29. The privilege of reinstatement according to the provisions of a policy is a substantial right, of which an insured can- not be deprived by any subsequent by-law not expressly authorized by the contract. Sieverts v. National Benev. Ass'n, 95 Iowa, 710, 64 N. W. 671. '=' Chamberlain v. Prudential Ins. Co. (Wis.), 85 N. W. 128; ante, §§ 40-42. '=' Mobile Life Ins. Co. v. Walker, 58 Ala. 290; Chamberlain v. Prudential Ins. Co., supra. See "Construction of Policy." § 52 APPLICATION". Ill insured, or his breacTi of a warranty, representation or condi- tion. More especially is this true in life insurance, wliere the applications are usually forwarded to the home office of the insurer, and acceptance or rejection is based chiefly upon the statements of the applicant. The fact that acceptance is an act of the insurer who prepares the policy and has the opportunity in preparing the policy to say whether or not the application shall be a part of it has led to the adoption of the rule that the application is only a part of the final con- tract when incorporated into it or attached to it, or included either expressly or by necessary implication. But when the application is a part of the contract all its terms, conditions, statements and representations are entitled to as much con- sideration as if set out in full upon the face of the policy. ^^'^ The presumption is that the person who signs an application for insurance knows and indorses its contents. ^^^ The errors and mistakes of the agent in writing down the answers given by the applicant are chargeable to the insurer unless the acts of the agent are sanctioned by the applicant. ^^^ In so far as an applicant assumes to answer questions asked him by *"Ante, §§ 40-46; post, c. 11, "Warranties and Representa- tions." Missouri, K, & T. Trust Co. v. German Nat. Bank (C. C. A.), 77 Fed. 117; Rogers v. Phoenix Ins. Co., 121 Ind. 570; Reynolds v. Atlas Ace. Ins. Co., 69 Minn. 93, 71 N. W. 831; Vilas v. New York Cent. Ins. Co., 72 N. Y. 590. The warranties and stipulations in an application are embraced in a provision in a benefit certificate making part of the contract "the statements" made by the insured in his application. Foley v. Royal Arcanum, 151 N. Y. 196; Kelley v. Mutual Life Ins. Co., 75 Fed. 637. *'» Hartford L. & A. Ins. Co. v. Gray, 80 111. 28, 91 111. 159. '^''Rissler v. American Cent. Ins. Co., 150 Mo. 366, 51 S. W. 755; Ames V. Manhattan Life Ins. Co., 40 App. Div. 465, 58 N. Y. Supp. 244; Fletcher v. New York Life Ins. Co., 4 McCrary, 440, 14 Fed. 846; Marston v. Kennebec Mut. Life Ins. Co., 89 Me. 266, 36 Atl. 389. 112 THE CONTRACT — MAKING. § 52 the insurer lie must answer fairly, fully and honestly. He is not required to volunteer information. ^^*^ If a question asked is ambiguous, so that it might be misunderstood by an applicant, it is not error to allow him to testify, upon trial of an action on the policy, as to his understanding of the question when he answered it.^^^ "" See post, c. 11, "Warranties and Representations." "^ Mutual Mill Ins. Co. v. Gordon, 121 111. 366. CHAPTER V. THE CONTRACT (Confinwed).— CONSTITUENTS. § 53. In General. 54. Oral Contract to Issue Policy. 55. The Lex Loci. 56. Custom and Usage. 57. Application. 58. Indorsements. 59. Mutual Organizations, 60. Amendments to Charters and By-laws. 61. Consent of Members to Same. 62. Amendments Must be Reasonable. In General. § 53. The policy, when issued and accepted, constitutes the only contract of the parties concerning the matters mentioned therein. Other papers are often included in the policy by ex- press reference or by implication so that they form a part of it. After the terms of an insurance contract have been re- duced to writing, signed by one party and accepted by the other, with the mutual understanding that it is then complete and operative, neither party can abandon that instrument and resort to the negotiations which were preliminary to its execution for the purpose of ascertaining what the contract is. All antecedent and contemporaneous negotiations and verbal statements appertaining to the subject matter of the written contract are merged and excluded when the parties assent to a written instrument as expressing their agreement.^ * Fowler v. Metropolitan Life Ins. Co., 116 N. Y. 389, 5 L. R. A. 805; New York Life Ins. Co. v. McMaster's Adm'r, 57 U. S. App. 638, 87 Fed. 63; Union Mut. Life Ins. Co. v. Mowry, 96 U. S. 544. See ante, §§ 36-39. KERR, INS.— 8 114 THE CONTRACT — CONSTITUENTS. §54 Tiius parol agreements for the future cannot be shown ; and a prior verbal agreement between insured and the agent of the insurer, that a policy for a stated time should be kept renewed, is of no effect if not contained in the policy when executed.^ Subsequent promises or agreements of the insurer, not rest- ing upon a new consideration, do not enter into the original contract." The holder of a policy is conclusively presumed to have knowledge of its contents, and in the absence of proof of fraud to ha-s'e assented thereto.^ And the beneficiary is bound by all the valid conditions;' and both are bound by the contents of an application attached to and forming part of the policy.^ Oral Contract to Issue Policy. § 54. The oral promise of an insurer to issue a policy binds it to execute one in the usual form and with the usual condi- tions. Upon an oral contract of insurance, where nothing is said about conditions, if a policy is to be issued, the parties are presumed to intend that it shall contain the conditions usually inserted in policies of insurance in like cases, or as ^Hartford Fire Ins. Co. v. Davenport, 37 Mich. 609; Hearn v. Equi- table Safety Ins. Co., 3 Cliff. 328, Fed. Cas. No. 6,299; Giddings v. Phoenix Ins. Co., 90 Mo. 272; Mecke v. Life Ins. Co., 8 Phila. 6, 3 Bigelow, Life & Ace. Rep. 747. = Knickerbocker Life Ins. Co. v. Heidel, 8 Lea (Tenn.), 488; ante, §§ 36-39. * Condon v. Mutual R. F. L. Ass'n, 89 Md. 99, 42 Atl. 944, 44 L. R. A. 149; New York Life Ins. Co. v. McMaster's Adm'r, 57 U. S. App. 638, 87 Fed. 63; Brown v. United States Casualty Co., 88 Fed. 38: Wilkins v. State Ins. Co., 43 Minn. 177. Compare Miotke v. Milwau- kee Mechanics' Ins. Co., 113 Mich. 166, 71 N. W. 463. 'Donald v. Chicago, B. & Q. Ry. Co., 93 Iowa, 284, 33 L. R. A. 492; Wheeler v. Odd Fellows' Mut. Aid & Ace. Ass'n, 44 Minn. 513. » Reynolds v. Atlas Ace. Ins. Co., 69 Minn. 93, 71 N. W. 831; "Wheeler v. Odd Fellows' Mut. Aid & Ace. Ass'n, 44 Minn. 513; John- son V. Dakota F. & I\I. Ins. Co., 1 N. D. 167. 45 N. W. 799. § 55 THE LEX LOCI. 115 have been before used by the parties. That a particular condition is usual must be shown by the party who alleges it/ The acceptance of a policy after a loss covered by an oral contract of insurance is not conclusive proof as to the terms of the original agreement but is evidence of an admission by the insured that it contained the terms agreed on.^ And likewise where a binding slip has been issued as evidence of temporary insurance till a policy can be prepared.^ Pre- liminary negotiations will be construed in connection with such form of policy as may be prescribed by the law-making body.^'^ It has been held that where an insurer denies the making of any preliminary contract, it cannot demand com- pliance by the insured with conditions which would have been contained in a policy if one had been issued ;^^ but the better rule is that the party who seeks to take advantage of a contract must take it cum onere, and is bound by all the con- ditions and stipulations which form a part of it.^^ The Lex Loci. §55. The law of the place where a contract is made enters into and forms an essential part of every contract. Whatsoever the law of the state where the contract is made declares with respect to the subject matter of the contract 'Smith V. State Ins. Co., 64 Iowa, 716; ante, §§ 30-33. * Salisbury v. Hekla Fire Ins. Co., 32 Minn. 458. •Lipman v. Niagara Fire Ins. Co., 121 N. Y. 454, 8 L. R. A. 719; Edwards v. Mississippi Valley Ins. Co., 1 Mo. App. 192; De Grove v. Metropolitan Ins. Co., 61 N. Y. 594; Karelsen v. Sun Fire OtBce of London, 122 N. Y. 545. "Hicks V. British American Assur, Co., 162 N. Y. 284, 48 L. R. A. 424. "Gold V. Sun Ins. Co., 73 Cal. 216; Campbell v. American Fire Ins. Co., 73 Wis. 100; American Cent. Ins. Co. v. Simpson, 43 111. App. 98. "Hicks V. British American Assur. Co.. 162 N. Y. 284, 48 L. R. A. 424. See post, c. 13, "Proofs of Loss; " Barre v. Council Bluffs Ins. Co., 76 Iowa, 609, 41 N. W. 373. 116 THE CONTKACT CONSTITUENTS. § 55 or annexes as the incident of tlie contract, whether granting a privilege or announcing a prohibition, is as mnch part and parcel of the contract as though written therein or indorsed thereon, x^l statutory laws in existence at the place of the making of the contract are necessarily contemplated and included in the contract and no contract can change the law. And because the Constitution of the United States prohibits these states from passing any law impairing the obligation of contracts it is not competent for a legislature to destroy the protecting provisions of' a statute which relates not merely to the remedy but enters into the consideration and becomes a constituent part of every policy of insurance by a subsequent repeal of the statute. ''The obligation of a contract consists in its binding force on the party who makes it. This depends on the laws in existence when it is made. These are necessarily referred to in all contracts and form a part of them as the measure of obligation to perform them by the one party and the right acquired by the other. * * * If any subsequent law affect to diminish the duty or to impair the right, it necessarily bears on the obligation of the contract in favor of one party to the iTijury of the other; hence any law which in its opera- tion amounts to a denial or obstruction of the rig-hts accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the constitution." ^^ "McCracken v. Hayward, 2 How, (U. S.) 612; Equitable Life !Assur. Soc. V. Clements, 140 U. S. 226, 11 Sup, Ct. 822; Haynie v. Knights Templars & M. Life Ind. Co., 139 Mo. 416; Jarman v. Knights Templars & M. Life Ind. Co., 95 Fed. 70. "It is a sound rule of construction that a statute should have a prospective opera- tion only, unless its terms show clearly a legislative intention that it should operate retrospectively. And some of the states have deemed it just and wise to forbid such laws altogether, by their constitu- tions." Cooley, Const. Lim. (5th Ed.) 456; Oshkosh Gas Light Co. §§ 56, 57 CUSTOM AND USAGE — APPLICATION. 117 But wliere tlie right of a party to avoid a contract on the ground of a statutory enactment based upon the declared public policy of the state, pertains rather to the remedy than an essential element of the contract inducing its execu- tion, it may by subsequent act of the legislature be entirely taken away and the parties remitted to the terms of the con- tract as expressed on its face.-^* When a fire insurance policy is written on property within the corporate limits of a city, all the ordinances of such city Avhich affect the rights of the parties in case of a loss under the policy, become a part of the contract, binding upon both insurer and insured ; and in so far as they are applicable, such ordinances govern and control in the adjustment and settle- ment of a loss covered by the contract. ^'^ Custom and Usage. § 56. And so with a common and universal custom or usage which is not at variance with the terms of the contract or in opposition to law.^'' Application. § 57. The application is a part of the contract when incorpo- rated therein, or attached thereto, or expressly referred to and included. 1^ V. Germania Fire Ins. Co., 71 Wis. 454, 37 N. W. 819; Lindsey v. Western Mut. Aid Soc, 84 Iowa, 734, 50 N. W. 29; Germania Life Ins. Co. V. Peetz (Tex. Civ. App.), 47 S. W. 687; Fidelity & Casualty Co. V. Loewenstein, 97 Fed. 17. 46 L. R. A. 450; Rosenplanter v. Provi- dent Sav. Life Assur. Soc, 96 Fed. 721, 46 L. R. A. 473; Central Bank Df Washington v. Hume, 128 U. S. 195; Hicks v. British America Assur. Co., 162 N. Y. 284, 48 L. R. A. 424; Connecticut Mut. Life Ins. Co. v. Cushman, 108 U. S. 51; Roberts v. Winton, 100 Tenn. 484, 41 L. R. A. 275; ante, "The Standard Policy." " Ewell V. Daggs, 108 U. S. 143, 2 Sup. Ct. 408. "Larkin v. Glens Falls Ins. Co., 80 Minn. 527, 83 N. W. 410; Fire Association v. Rosenthal, 108 Pa. St. 474. "Ante, c. Ill; Walls v. Bailey, 49 N. Y. 464; Howard v. Great Western Ins. Co., 109 Mass. 384. See "Evidence." "Ante, §§ 51, 52. See, also, "Warranties." lis THE CONTKACT CONSTITUENTS. § 58 Indorsements. § 58. Indorsements on a policy are usually part of the policy. Where the body of a policy refers to annexed conditions, such conditions printed on the back of the policy, though unsigned, are a part of the contract ; ^^ memoranda and mar- ginal clauses relating to the subject matter or conditions, made prior to delivery, form a part of the instrument if such ap- pears to have been the purpose and intention of making them.i» Other Papers. Any paper may b}'' proper reference and inclusion be made a part of the policy, as, for instance, a premium note,^*^ or a preliminary survey; ^^' or a rider containing an "iron safe'* "Kensington Nat. Bank v. Yerkes, 86 Pa. St. 227; Gauthier v. Canadian Mut. Ins. Co., 29 Up. Can. C. P. 593; Alabama Gold Life Ins. Co. V. Thomas, 74 Ala. 578. "Graham v. Stevens, 34 Vt. 166; Patch v. Phcenix Mut. Life Ins. Co., 44 Vt. 481; Pierce v. Charter Oak Life Ins. Co., 138 Mass. 151; Cowles V. Continental Life Ins. Co., 63 N. H. 300; Guerlain v. Co- lumbian Ins. Co., 7 Johns. (N. Y.) 527; Wright v. Mutual Ben. Life Ass'n, 118 N. Y. 237; Mead v. Northwestern Ins. Co., 7 N. Y. 530. Not a part. Planters' Mut. Ins. Co. v. Rowland, 66 Md. 236; Mullaney v. National F. & M. Ins. Co., 118 Mass. i593; Bassell v. American Fire Ins. Co., 2 Hughes, 531, Fed. Cas. No. 1,094. See, also, Alabama Gold Life Ins. Co. v. Thomas, 74 Ala. 578; Ferrer v. Home Mut. Ins. Co., 47 Cal. 416; Girard Life Ins. Annuity & Trust Co. v. Mutual Life Ins. Co., 97 Pa. St. 15; Grandin v. Rochester German Ins. Co.,^ 107 Pa. St. 26; Stone's Adm'rs v. United States Casualty Co., 34 N. J. Law, 371; Kingsley v. New England Mut. Fire Ins. Co., 8 Cush. (Mass.) 393. ^° Schultz V. Hawkeye Ins. Co., 42 Iowa, 239; American Ins. Co. v. Stoy, 41 Mich. 385. Compare American Ins. Co. v. Gallaghan, 75 Ind. 168. "Steward v. Phoenix Fire Ins. Co., 5 Hun (N. Y.), 261. §58 INDORSEMENTS. 119 clause; 22 or a rider containing a mortgage clause ;2-^ but outside papers must be imported in such a manner as to leave no doubt of the intention of the parties. ^^ Thus a prospectus of a life insurance company, not annexed to a policy nor included by reference, cannot affect, nor vary, nor modify the strict terms of the policy itself .^^ It is not made a part of th'e policy by an indorsement on the policy that it may be had gratis.^^ It has been held that pamphlets sent out by an insurance company, and containing representations as to the plans upon which the company insures, may be considered in determining the meaning of the policy,^^ or even what the contract is ; ^^ but however important they might be in an action brought by an insured to rescind the contract upon the grounds of misrepresentation in its procuring it "would be impossible to sustain the claim that the statements and representations contained in the pamphlet issued by the com- pany were to be regarded as affecting or modifying the strict 'terms of the policy without disregarding the established rule "Crigler v. Standard Fire Ins. Co., 49 Mo. App. 11; Keeley-Good- fellow Shoe Co. v. Liberty Ins. Co., 87 Tex. 112, 26 S. W. 1063, 8 Tex. Civ. App. 227, 28 S. W. 1027; American Fire Ins. Co. v. First Nat. Bank (Tex. Civ. App.), 30 S. W. 384. See Jackson v. British American Assur. Co.. 106 Mich. 47. 30 L. R. A. 636 (and notes). =« Hastings v. Westchester Fire Ins. Co., 73 N. Y. 141; Westchester Fire Ins. Co. v. Coverdale, 48 Kan. 446; Phoenix Ins. Co. v. Omaha Loan & Trust Co., 41 Neh. 834. 25 L.R. A. 679. "Goddard v. East Texas Fire Ins. Co.. 67 Tex. 69. 60 Am. Rep. 1; Phoenix Ins. Co. v. Wilcox & G. Guano Co., 25 U. S. App. 201, 65 Fed. 724; Gunther v. Liverpool & L. & G. Ins. Co., 34 Fed. 501; City Ins. Co. V. Bricker. 91 Pa. St. 488. ^"Fowler v. Metropolitan Life Ins. Co.. 116 N. Y. 389, 5 L. R. A. 805; Ruse v. Mutual Ben. Life Ins. Co., 23 N. Y. 516, 24 N. Y. 653. '» Knickerbocker Life Ins. Co. v. Heidel, 8 Lea (Tenn.), 488. "Bruce v. Continental Life Ins. Co., 58 Vt. 253. =« Smith V. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 727; Southern Mut. Life Ins. Co. v. Montague, 84 Ky. 653. 120 THE CONTEAOT — CONSTITUENTS. § 59 of law that a written contract merges all prior and contempo- raneous negotiations in reference to the same subject, and that the whole engagement of the parties and the extent and manner of their undertaking is embraced in the writing." ^^ Mutual Organization's. § 59. When a policy of insurance is effected in a mutual in- surance company the insured becomes a member of the corpo- ration, and is held to have notice of and is bound by all the provisions of its charter and by-laws as they then exist. A policy holder in a mutual insurance company or asso- ciation stands in a dual position and relation. He is both a policy holder and a member. He is alike insurer and insured, but in both capacities he is a member, and it is because he is a member that he occupies both of these posi- tions. His liabilities as insurer and his rights as insured depend upon the obligations and conditions of his member- ship. These obligations and conditions are evidenced by the charter or articles of incorporation, by the constitution and by-laws of the association, and by his application for and cer- tificate of membership, and by the law of the place of the contract.^*^ The insured is presumed to have notice of the =^ Fowler v. Metropolitan Life Ins. Co., 116 N. Y. 389, 5 L. R. A. 805. See ante, note 1; Fuller v. Metropolitan Life Ins, Co., 70 Conn, 647. Compare Wood v. Dwarris, 11 Exch. 493, 2 Bigelow, Life & Ace. Rep, 418; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 281; Higbee v. Guardian Mut. Life Ins. Co., 53 N, Y. 603. 2" Holland v. Supreme Council of C. F., 54 N. J, Law, 490; Thibert V. Supreme Lodge K. of H., 78 Minn. 448, 81 N, W, 220; Susque- hanna Mut. Fire Ins. Co. v, Leavy, 136 Pa. St. 499; Lawler v. Murphy, 58 Conn. 294, 8 L. R. A. 113; American Ins, Co. v. Henley, 60 Ind, 515; Borgards v. Farmers' Mut. Ins. Co., 79 Mich. 440, 44 N, W. 856; Donald v. Chicago, B. & Q. Ry. Co., 93 Iowa, 284, 33 L, R. A. 492; Home Forum Ben. Order v. Jones, 5 Okla. 598; Railway P. & F, C, Mut. Aid & Ben, Ass'n v. Robinson, 147 111. 138, i ■^ 60 AMENDMENTS TO CHARTER OR BY-LAWS. 121 existence and contents of the charter and by-laws then in force from the date of his membership, and they are as bind- ing ujoon both the member and the beneficiary or payee named in the certificate as is the certificate itself, even though they ^re not specifically incorporated into or referred to in the certificate.^^ The rights of one who claims against an order through membership in one of its subsocieties, are subject to the provisions of the constitution of the subsociety to which lie belongs.^- But a member is only bound by such rules, regulations and by-laws as have been properly enacted, and are not opposed to the organic law of the association, or con- trary to public policy, or the established law of the land. When the terms of a policy and a by-law conflict, the former, if intra vires, controls.'"'^ Same — Amendments to Charter or By-laws. § 60. The holder of a certificate in a mutual benefit associa- tion is not affected by the adoption of new or the modification of existing by-laws without his consent. '' Supreme Council of R. A. v. Brashears. 89 Md. 624, 43 Atl. ■866; Cotter v. Grand Lodge A. O. U. W., 23 Mont. 82, 57 Pac. 650; Hass V. Mutual Relief Ass'n, 118 Cal. 6, 49 Pac. 1056; Barbot v. Mutual Reserve Fund Life Ass'n, 100 Ga. 681, 28 S. E. 498, and cases supra. See Kendrick v. Ray, 173 Mass. 305, 53 N. E. 823, as to effect upon creditor seeking to reach proceeds. =- Polish Roman Catholic Union v. Warczak, 182 111. 27, 55 N. E. 64. »^ Davidson v. Old People's Mut. Ben. Soc, 39 Minn. 303; Wiberg V. Minnesota S. R. Ass'n, 73 Minn. 301; Morrison v. Wisconsin Odd Fellows' Mut. L. Ins. Co.. 59 Wis. 162, 18 N. W. 13; Luthe v. Farm- ers' Mut. Fire Ins. Co.. 55 Wis. 543, 13 N. W. 490; Fry v. Charter Oak Life Ins.- Co., 31 Fed. 197; Mutual Assur. Soc. v. Korn, 7 Cranch (U. S.), 396; Doane v. Millville Mut. M. & F. Ins. Co., 45 N. J. Eq. 274. See, also, Evans v. Trimountain Mut. Fire Ins. Co., 9 Allen (Mass.), 329; Hale v. Mechanics' Mut. Fire Ins. Co., 6 Gray (Mass.), 169; Brewer v. Chelsea Mut. Fire Ins. Co., 14 Gray (Mass.), 203; Sheldon v. Connecticut Mut. Life Ins. Co., 25 Conn. 207. 122 THE COXTEACT — CONSTITUENTS. § Gl § 61. The consent of the member is evidenced by his accept- ance of a policy which in terms incorporates the charter and by-laws then in force or that may thereafter be enacted. Since the provisions of the charter and by-laws of a mutual organization as they exist at the time of the issuing of a cer- tificate to a member are an integral part of the contract be- tween the parties, it follows that they cannot be subsequently changed at the will of the company without the consent of the insured. Any other holding would violate the well settled doctrine of contractual rights which necessitates the mutual assent of the contracting parties to the modification or alter- ation of an executory contract. Thus a change in a by-law extending the time for payment of a loss, unless pursuant to a reservation of the power in the insurer so to do, does not affect policies issued before it was adopted ; ^^ nor the enactment of a by-law creating a forfeiture,^^ or forbidding the assign- ment of certificates,^® or reducing the classification and caiisea of total disability under an accident policy,^'^ or creating new conditions precedent to reinstatement,^^ or in any other way affecting the rights or remedies of the member.^^ A contract " Morrison v. Wisconsin Odd Fellows' Mut. L. Ins. Co., 59 Wis, 162, 18 N. W. 13; American Ins. Co. v. Stoy, 41 Mich. 385. ^''Beclier v. Farmers' Mut. Fire Ins. Co., 48 Mich. 610, 12 N. W. 874. =* Wheeler v. Supreme Sitting, 0. of I. H., 110 Mich. 437, 68 N. W. 229. «' Starting v. Supreme Council. R. T. of T., 108 Mich. 440, 66 N. W. 340. ^ Sieverts v. National Benev. Ass'n, 95 Iowa, 710, 64 N. W. 671. '" Carnes v. Iowa State Travelling Men's Ass'n, 106 Iowa, 281, 76 N. W. 683; Supreme Lodge, K. of P., v. Stein, 75 Miss. 107, 37 L. R. A. 775; Mutual Aid & Instruction Soc. v. Monti, 59 N. J. Law, 341, 36 Atl. 666; Rosenberger v. Washington Mut. Fire Ins. Co., 87 Pa, St. 207; Great Falls Mut. Fire Ins. Co. v. Harvey, 45 N. H. 292; Borgards v. Farmers' Mut. Ins. Co., 79 Mich. 440, 44 N. W. 856. Compare Pain v. Societe St. Jean Baptiste, 170 Mass. 319, 52 N. E. 502. J § 61 AMENDMENTS TO CHARTER OR BY-LAWS. 123 once made with a member cannot differ in its essence from one made with anyone else, and he cannot, without his consent, be brought into changed responsibilities which import new terms into the agreement itself. Whatever force unauthor- ized changes in the charter or by-laws, or the unauthorized adoption of new by-laws may have in regard to other matters, they will not be allowed to destroy express contracts against the will of the insured. But changes authorized by the charter or the legislative act by virtue of which the insurer is created, are authorized by the contract itself. Whether or not the rights of a member are subject to modi- fication by the subsequent changes in the by-laws or charter will depend upon the terms of the contract. If it provide that members shall be bound by all articles and by-laws then existing, or which may at any time be adopted, the company may subsequently alter or amend its by-laws and articles, and members will be thereby iDound, for their consent thereto is given by accepting membership upon such terms, and conditions to this effect are valid. In such cases changes are made not in violation of the contract but in harmony with it. The acceptance of an insurance contract in the form of a certificate which recites that any violation of the "require- ments of the laws now in force or hereafter enacted, governing the order or this clause, shall render this certificate null and void," and that a condition iipon which it depends is "the full compliance with all the laws of the order now in force or that may hereafter be enacted," makes all such existing by-laws and those subsequently enacted during the life of the insured- a part of the contract, binding alike upon the beneficiary and the member, and authorizes the adoption of a new by-law forfeiting the certificate if the insured should take his own life sane or insane,^*^ or a by-law providing for forfeiture of "Supreme Commandery, K. of G. R., v. Ainsworth, 71 Ala. 436; 124 THE CONTRACT — CONSTITUENTS. § 61 memberslilp of tliose wlio follow a proliibited occupation.^^ And so wliere the change is pursuant to the general law of the domicile of the corporation which gives the right to alter or amend by-laws,^^ for the parties will be presumed to have contracted with reference to such laws as in their direct or necessary legal operation controlled or affected the obligations of the contract. A stipulation in the certificate that the member is bound by all the lawful "by-laws, rules and regulations of the association" relates only to those in existence when the con- tract is consummated and does not authorize the insurer to thereafter change the contractual rights of the insured. ^^ As Fullenwider v. Supreme Council, R. L., 180 111. 621, 54 N. E. 485; Daughtry v. Knights of Pythias, 48 La. Ann. 1203; Supreme Lodge, K. of P.. V. Kutscher, 179 111. 340, 53 N. E. 620. *^ Loeffler v. Modern Woodmen, 100 Wis. 79, 75 N. W.. 1012. See, also, Duer v. Supreme Council, 0. of C. F., 21 Tex. Civ. App. 493, 52 S. W. 109; Supreme Council, A. L. of H., v. Adams, 68 N. H. 236, 44 Atl. 380; Connelly v. Masonic Mut. Ben. Ass'n, 58 Conn. 552, 9 L. R. A. 428; Supreme Lodge, K. of P., v. Trebbe, 179 111. 348; Pain v. Societe St. Jean Baptiste, 172 Mass. 319, 52 N. E. 502; Allen v. Life Ass'n of America, 8 Mo. App. 52; McKean v. Biddle, 181 Pa. St. 361; Hass V. Mutual Relief Ass'n, 118 Cal. 6, 49 Pac. 1056; Supreme Lodge, K. of P., V. La Malta, 95 Tenn. 157, 30 L. R. A. 838. ^Stohr V. San Francisco M. F. Soc, 82 Cal. 557; Sargent v. Su- preme Lodge, K, of H., 158 Mass. 557; ante, note 13. See, as to the right of a corporation to change its by-laws, when authorized by its charter, though it may affect the rights of stockholders, Schrick v. St. Louis Mut. House Bldg. Co., 34 Mo. 423; Northern R. Co. V. Miller, 10 Barb. (N. Y.) 283; Hyatt v. McMahon, 25 Barb. (N. Y.) 468; Currie's Adm'rs v. Mutual Assur. Co., 4 Hen. & M. § 62 AMENDMENT MUST BE REASONABLE. 127 the exercise of discretionary powers, or direct the course o£ an action in matters of expediency or policy, tliey \d\l not allow a benefit society by changing its by-laws to arbitrarily repudiate a policy of insurance, or to destroy a vested right, or to seriously impair the contractual rights of a member by any arbitrary or unreasonable exercise of power.^^ In a re- cent case in Minnesota, the question was as to the validity oi'. a by-law taking away from a member the right to a written or printed notice of assessments, and substituting a notice pub- lished in a newspaper with a provision that failure to get the notice should not relieve a member from the suspension consequent upon non-payment of the assessments. The court said : "It is possible that, as an original by-law, a provision of this character would be held reasonable and operative on the ground that, if persons chose to become members of an association with such drastic rules, theirs was the right so to ■do. But this was not the law when the plaintiff united with his lodge. The question is not as to the reasonableness of a by-law in force when he cast liis fortunes with the order, but it is as to the reasonableness of a change in a by-law after he became a member, and of which it was not shown that he had any personal knowledge. In fact it has been held that pro- visions for forfeitures in the original by-laws of mutual benefit societies, without providing for notice or giving an opportunity to be heard, are void because unreasonable. ^" * * The rights of members in these associations must, of course, depend upon the articles or by-laws to which all mem- bers assent when becoming such; and, generally speaking,' the same body which is authorized to make by-laws can *» Jarman v. Knights Templars' & M. Life Ind. Co., 95 Fed, 70 ; Su- preme Council, L. of H., v. Adams, 68 N. H. 236, 44 All. 380; Su- preme Tert, K. of M., v. Hammers, 81 111. App. 560. Compare Pain V. Societe St. Jean Baptiste, 172 Mass. 319, 52 N. E. 502. 128 THE CONTKACT CONSTITUENTS. § 62: change, amend, or repeal those already made; and to this plaintiff agreed when he joined. But changes, amendments and repeals are subject to the restrictions and limitations of the by-laws themselves as well as those of the charter or articles of association, and are also subject to the implied con- dition of being reasonable. * * * "W'e are compelled to hold that a change or amendment to the by-law in force when plaintiff entered the association whereby it was incum- bent upon the reporter of his lodge to give him notice of assessments, if or a greater or less number than two, which deprived him of all right to any notice, either directly or indirectly, by means of a provision rendering a failure to give notice as determined upon by his lodge wholly immaterial, was a vitally important change, and, as to him, unreasonable and void."^" And similarly it has been held by a federal court that a provision in a contract subjecting the rights of a mem- ber in a society to the rules and regulations then existing or as they might be changed, does not authorize the society to change its rules so as to deprive the members of part of the benefits guaranteed him by his policy.^ ^ ^'> Thibert v. Supreme Lodge, K. of H., 78 Minn. 448, 81 N. W. 220, 47 L. R. A. 136. " Jarman v. Knights Templars' & M. Life Ind. Co., 95 Fed. 70, 53 Cent. L. J. 391. CHAPTER VI. THE CONTRACT (Oowiinued)— INTERPRETATION. § 63. General Principles of Construction. 64. Intent of the Parties Important. 65. Ambiguities. 66. Restrictions and Forfeitures. 67. Writing Controls Print. ' 68. The Law of the Place. 69. Custom and Usage. 70. Standard Policies. 71. Policies of Mutual Organizations. General Principles of CoNSTRUCTioiir. § 63. Insurance contracts are to be interpreted by rules ap- plicable to other contracts, and to be enforced in accordance with the expressed intention of the parties. It lias been fitly said that common sense and a desire to pro- mote and enforce good faith should be the chief guides in the interpretation of contracts. Policies of insurance are pre- sumed to contain the complete engagements of both insurer and insured in regard to the subject matters embraced in them. They, like all other contracts, must be construed according to the intention of the parties as manifested by the words used and accordino; to their ordinary signification. When words are used which have an usual and common acceptation they will be given their plain, natural and obvious meaning, unless it affirmatively and clearly appears that they were not intended to have such meaning. Courts can- not make contracts for parties, or render a party liable on a different basis from that upon which his liability was stipu- KERR, INS.— 9 130 THE CONTRACT INTERPRETATION: § 63 lated for.^ It is the duty of the court in all cases where the question is simply the determination of the meaning of a written document, to declare its legal interpretation ; and it is error to leave its construction to a jury.^ But where the contract relates to matters or business of a technical char- acter, and contains terms or words having a technical or peculiar application and meaning in such matters or business, resort may be had to the testimony of experts or those ac- quainted with the particulars to which the terms and words relate, and where such testimony is conflicting, the question of the meaning of such terms and words may be referred to a jury.3 In case of ambiguity that construction should be given which will give the policy effect rather than that which will make it void.* Having indemnity for their object, policies will be liberally construed to that end. Hence a liberal construction, if it is a reasonable one and will prevent injus- tice, should be adopted when a literal construction would *Foot V. Aetna Life Ins. Co., 61 N. Y. 571'; O'Neil v. Pleasant Prairje Mut. Fire Ins. Co., 71 Wis. 621, 38 N. W. 345; Mississippi Mut. Ins. Co. V. Ingram, 34 Miss. 215; Goodrich v. Treat, 3 Colo. 408; Supreme Council, R. T. of T., v. Curd, 111 111. 284. In Walsh v. Hill, 38 Cal. 481, the court said: "In the construction of written in- struments, we have never derived much aid from the technical rules of the hooks. The only rule of much value — one which is fre- quently shadowed forth, but seldom, if ever, expressly stated in the books — is to place ourselves as near as possible in the seats which were occupied by the parties at the time the instrument was exe- cuted; then, taking it by its four corners, read it." ^Dwight V. Germania Life Ins. Co., 103 N, Y. 341; Johnson v. Northwestern Nat. Ins. Co., 39 Wis. 87; Thurston v. Burnett & B. D. F. Mut. Fire Ins. Co., 98 Wis. 476, 74 N. W. 131. ' Whitmarsh v. Conway Fire Ins. Co., 16 Gray (Mass.), 359; Home Mut. Ins. Co. v. Roe, 71 Wis. 33, 36 N. W. 594. * Harper v. Albany Mut. Ins. Co., 17 N. Y. 194. § G3 GENERAL PRINCIPLES OF CONSTRUCTION. 131 lead to manifest injustice.^ The whole contract, whether composed of one or several instruments, must be read and construed together, and indorsements referred to may be con- sidered in arriving at their meaning;^ v/here words used are in their import equivocal, reference may be had to the subject matter and the circumstances surrounding and con- nected with the procuring of the policy;"^ and parol evidence is admissible to establish a fact collateral to the written con- tract.^ An insurer is presumed to know what is obvious in regard to the property insured.* Unless the language used excludes the presumption, a policy of fire insurance must be presumed to have been made with reference to the nature and character of the property insured, and to the owner's use of it in the ordinary manner, and for the purposes for which such property is ordinarily held and used.^'' If reading a policy in connection with the subject matter and surrounding circumstances, and giving to the language used its ordinary and natural meaning, the intention of the parties becomes manifest such intention must prevail ; and when a reasonable "Mauger v. Holyoke Mut. Fire Ins. Co., 1 Holmes, 287, Fed. Cas. No. 9.305; Miller v. Insurance Co,. 12 W. Va. 116; Matthews v. American Cent. Ins. Co.. 154 N. Y. 449. 39 L. R. A. 433; Brink v. Merchants' & Mechanics' Ins. Co., 49 Vt. 442; State Ins. Co. v. Hughes, 10 Lea (Tenn.), 461; Teutonia Fire Ins. Co. v. Mund, 102 Pa. St. 89. «St. Clair County Benev. Soc. v. Fietsam, 97 111. 474; post, § 64; ante, § 58. 'Haws V. Philadelphia Fire Ass'n, 114 Pa. St. 431; Monroe B. & L. Ass'n V. Liverpool & L. & G. Ins. Co., 50 La. Ann. 1243, 24 So. 238; Kenyon v. Knights Templar & M. Mut. Aid Ass'n, 122 N. Y. 247; Voss v. Connecticut Mut. Life Ins. Co., 119 Mich. 161, 77 N. W. 697; Teutonia Fire Ins. Co. v. Mund. 102 Pa. St. 89. * Planters' Mut. Ins. Co. v. Deford, 38 Md. 382. "Hey V. Guarantors' Liability Ind. Co.. 181 Pa. St. 220. "Boright V. Springfield F. & M. Ins. Co., 34 Minn. 353; Holbrook V. St. Paul F. & M. Ins. Co.. 25 Minn. 229. 132 THE CONTEACT INTERrRETATION. § 63- construction can be placed upon the words tliemselves without resorting to extrinsic evidence, such evidence is inadmis- sible.ii An insurer which continues to use a form of policy that has been uniformly construed by the highest courts of the state which granted its charter and by other courts of last resort, will be presumed to have contracted with that con- struction in view.^^ A policy renewed from, year to year will be construed in respect to the condition of the property at the date of the last renewal.^^ A life insurance policy is- held to be a single and entire contract commencing witJi its issuance, continuing during the life of the insured or the time stated, and subject to breach or discontinuance for viola- tion or nonperformance of its conditions.-^* In so far as it evidences the intention of the insured to dispose of the pro- ceeds of the insurance it is in the nature of a will.^^ Con- ditions and limitations, or words of exception will be rigidly construed, and if capable of two meanings, will be given that one which is most favorable to the insured ;^^ but a special clause which creates an exception to a general one, governs the latter when the meaning is clear. ^'^ Stipulations "Johnson v. Northwestern Nat. Ins. Co., 39 Wis. 87; Foot v. Aetna Life Ins. Co., 61 N. Y. 571; De Graff v. Queen Ins. Co., 38 Minn. 501; Paul v. Travelers' Ins. Co., 112 N. Y. 472; West v. Citizens' Ins. Co., 27 Ohio St. 1; Baltimore Fire Ins. Co. v. Loney, 20 Md. 36. "Fidelity & Casualty Co. v. Loewenstein (C. C. A.), 97 Fed. 17, 46 L. R. A. 450, 88 Fed. 474. " Garrison v. Farmers' Mut. Fire Ins. Co., 56 N. J. Law, 235, 28 Atl. 8. "Fearn v. Ward, 80 Ala. 555; Goodwin v. Provident Sav. L. Assur. Soc, 97 Iowa. 226, 32 L. R. A. 473. "Chartrand v. Brace. 16 Colo. 19. 12 L. R. A. 209. ^"Fidelity & Casualty Co. v. Chambers, 93 Va. 138, 24 S. E. 896; Burkard v. Travellers' Ins. Co., 102 Pa. St. 262. " Mitchell Furniture Co. v. Imperial Fire Ins. Co., 17 Mo. App.. 627; Grandin v. Rochester German Ins. Co., 107 Pa. St. 26. § 64: INTEXT OF PARTIES. 133 which relate merely to the procedure after a loss will be reasonably and not rigidly construed. ^^ The assertions, promises, representations, or construction of an agent cannot prevail over the plain and unambiguous provisions of a policy. ^^ The practical interpretation of an agreement by the parties to it is always a consideration of great weight. ^^ Punctua- tion is an uncertain aid to construction. "It may be resorted to when other means fail ; but the court will take the instru- ment by its four corners in order to ascertain its meaning. If that is apparent on judicially inspecting the whole, the punctuation will not be suffered to change it." The words control the punctuation marks and not the punctuation marks the words. ^^ Intent of Parties. § 64. A policy should, if possible, be so construed as to carry- out the object and intent of the parties; but purpose or intent cannot supersede the plain and unambiguous language of the policy. The intention of the parties as gathered from the whole contract must control. The performance of a contract should be such as is re- quired by the spirit and meaning of the contract, and the in- tention of the parties as expressed therein. When it is possible to detennine from a policy upon what terms the minds of the parties met, the courts must interpret ^* Paltrovitch v. Phoenix Ins. Co., 143 N. Y. 73, 25 L. K. A. 198. '"Quinlan v. Providence W. Ins. Co., 133 N. Y. 360; Chamberlain V. Prudential Ins. Co. (Wis.), 85 N. W. 128; Wilkins v. State Ins. Co., 43 Minn. 177; Lycoming Fire Ins. Co. v. Langley, 62 Md. 196; post, c. 8, "Agents." =" Brooklyn Life Ins. Co. v. Dutcher, 95 U. S. 269. -^Boright V. Springfield F. & M. Ins. Co., 34 Minn. 353; Ewing's Lessee v. Burnet, 11 Pet. (U. S.) 41; Holmes v. Phoenix Ins. Co., 98 Fed. 240, 47 L. R. A. 308. 134: THE CONTRACT INTERPRETATION. § G5 and give effect to the policy according to tlie intent thereby evidenced. When the language of the policy is ob- scure, resort may be had to the nature and subject matter of the risk and the circumstances surrounding the procuring and issuing of the policy, for the purpose of discovering what the actual purpose and intent of the parties was. But an unexpressed intent cannot contradict, vary, or control the clear intent of the parties as expressed in the writings which they have deliberately executed. The question then is not what the parties intended, but what means the language they have employed.^^ When the contract has been partly exe- cuted, there is no surer way to find out what the parties meant than to see what they have done.^^ Ambiguities. § 65. When the language of a policy is ambiguous, it is taken most strongly against the insurer. If there is a seeming inconsistency between different pro- visions of a policy a court will endeavor to give effect to both ; but if the meaning is ambiguous, or if the policy is so drawn as to require interpretation and to be fairly susceptible of two '"Merchants' Mut. Ins. Co. v. Lyman, 15 Wall. (U. S.) 664; Union Mut. Life Ins. Co. v. Mowry, 96 U. S. 544; Quinlan v. Providence W. Ins. Co., 133 N. Y. 360; Foot v. Aetna Life Ins. Co., 61 N. Y. 571; Wells, Fargo & Co. v. Pacific Ins. Co., 44 Cal. 397; Blinn v. Dresden Mut. Fire Ins. Co., 85 Me. 389; Montgomery v. Firemen's Ins. Co., 16 B. Mon. (Ky.) 427; The Sydney, 27 Fed. 119; Johnson V. Northwestern Nat. Ins. Co.. 39 Wis. 87; Schreiber v. German American H. Ins. Co., 43 Minn. 367; St. Nicholas Ins. Co. v. Mer- chants' Ins. Co., 11 Hun (N. Y.), 108; cases ante; Supreme Council, R. T. of T., V. Curd, 111 111. 284. Oral evidence admissible to show the "understanding," Ganser v. Fireman's Fund Ins. Co., 38 Minn. 74. =^ Brooklyn Life Ins. Co. v. Butcher, 95 U. S. 269; Ganser v. Fireman's Fund Ins. Co., 38 Minn. 74. § 66 KESTRICTIONS AND FORFEITURES. 135 different constructions, the one will Be adopted that is most favorable to the insured. This rule, recognized in all the authorities, is a just one, because the instrument is drawn by the insurer. It is its language which the court is invited to interpret, and it is reasonable that its own words should be construed most strongly against itself.^'* Courts are al- ways reluctant to deprive an insured of the benefits of a policy by any narrow or technical construction of the con- ditions, or stipulations, or exceptions, which limit the scope of the liability of the insurer or impose upon the insured conditions precedent to his right to recover. ^5 But this rule is only to be applied where there is doubt as to the intent of the parties and as to the meaning of the language used ; and has no application where there is no ambiguity and no incon- sistent or conflicting provisions.^® Restriction's and Forfeituiies. § 66. Conditions and stipulations whose meaning is doubt- ful will be so construed as to avoid, rather than to create, for- feitures, and against the one for whose benefit they were im- posed. 2' ** Atlantic Ins. Co. v. Manning, 3 Colo. 224; Burkhard v. Trav- ellers' Ins. Co.. 102 Pa. St. 262; Allen v. St. Louis Ins. Co., 85 N. Y. 473; London Assurance v, Companhia de Moagens, 167 U. S. 150; Northwestern Mut. Life Ins. Co. v. Hazel ett, 105 Ind. 212; Hardesty V. Forest City Ins. Co., 77 111. App. 413. "Burkheiser v. Mutual Ace. Ass'n (C. C. A.), 61 Fed. 816, 26 L. R. A. 112; Burnett v. Eufaula Home Ins. Co., 46 Ala. 11; Commer- cial Ins. Co. V. Robinson. 64 111. 265; Matthews v, American Cent. Ins. Co., 154 N. Y, 449, 39 L. R. A. 433; State Ins. Co. v. Maackens, 38 N. J. Law, 564; Sergent v. Liverpool & L. & G. Ins. Co., 155 N. Y. 349; American Surety Co. v. Pauly, 170 U. S. 133, 160; Schroeder v. Trade Ins. Co.. 109 111. 157. ^«Foot V. Aetna Life Ins. Co., 61 N. Y. 571; Holmes v. Phenls Ins. Co. (C. C. A.). 98 Fed. 240. 47 L. R. A. 308; Thurston v. Bur- nett & B. D. F. Mut. Fire Ins. Co., 98 Wis. 476, 74 N. W. 131. "Eastern R. Co. v. Relief Fire Ins. Co., 98 Mass. 420; Martin v. 136 the contract — interpretation. §§ 67, 68 Writing Controls Print. § 67. Where the written and printed portions of a policy- conflict, the former control. It frequently happens tliat special printed or written slips are attached to the body of the general form of policy used. For the purposes of construction, such special slips are to be regarded as part of what is known as the written part of the policy, which, as more clearly and immediately expressive of the intention of the parties, is allowed a controlling force in case of repugnancy between it and the agreements which (as applicable to policies in general) are found in what is termed the printed blank or form.^^ This is subject to the rule that words of exception are construed most strongly against the one for whose benefit they were intended.^' The Law of the Place. §68. The general rule is that the law of the place where a contract is made governs as to the nature, the obligation and the interpretation of it. The parties may stipulate for a differ- ent rule of construction. Obligations in respect to the mode of their solemnization are subject to the rule locus actum regit; in respect to -their interpretation, to the lex loci contractus; in respect to the mode of their performance to the law of the place of per- formance. Matters bearing upon the interpretation and va- Manufacturers' Ace. Ind Co., 151 N. Y. 94; Piedmont & A. Life In?. Co. V. Young, 58 Ala. 476; McNamara v. Dakota F. & M. Ins. Co., 1 S. D. 342, 47 N. W. 288; Griffey v. New York Cent. Ins. Co., 100 N. Y. 417; State Ins. Co. v. Maackens, 38 N. J. Law, 564. =*Mascott V. Granite State Fire Ins. Co., 68 Vt. 253; Fire Ins. Ass'n of England v. Merchants' & Miners' Transp. Co., 66 Md. 339; West Branch Lumberman's Exchange v. American Cent. Ins. Co.. 183 Pa. St. 366; Phoenix Ins. Co. v. Taylor, 5 Minn. 492 (Gil. 393). » Canton Ins. Office v. Woodside (C. C. A.), 90 Fed. 301. i ■g 68 TUE LAW OF THE PLACE. 13T lidity of a policy of insurance are to be determined by the law •of the place where it is made unless the parties have stipu- lated otherwise. The remedies are to be governed by the law of the place w^here an action is brought. For purposes of construction it is always legitimate to consider the time when and the circumstances under which a contract was made, and the law under Avhich it was made is one of these circuni- ■stances.^" A policy made in one state, to be performed wholly or partially in another, is prima facie to be construed according to the laws of the former ;3^ but where the con- tracting parties belong to different states and it does not appear where it was made, or delivered, or payable, or where the premium Avas paid, the locus may be inferred to have been in either state.*^- The place of the making of a contract of insurance is the place where the final act is performed Avhich is necessary to establish the relation of insurer and insured. Thus where an application is forwarded from Chicago to New York, and a policy returned containing a condition that it will not be binding until countersigned by an agent and until the advance premium is paid to the agent in Chicago, the contract is not complete until these conditions are complied with, and Chicago is the place of the contract ;^^ and Avhere the policy does not '"Mullen V. Reed, 64 Conn. 240, 24 L. R. A. 664; London Assur. V. Companhia De Moagens Do Barreiro, 167 U. S. 149, 17 Sup. Ct. 789; Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146, 36 L. R. A. 271; State Mut. Fire Ins. Ass'n v. Brinkley Stave & Heading Co., 61 Ark. 1, 29 L. R. A. 712; Voorheis v. Peoples' Mut. Ben. Soc, 91 Mich. 469. 51 N. W. 1109. "' Seamans v. Knapp-Stout & Co. Company, 89 Wis. 177, 27 L. R. A. 362. •" Pennypacker v. Capital Ins. Co., 80 Iowa, 56, 8 L. R. A. 236. ''Pomeroy v. Manhattan Life Ins. Co.. 40 111. 398; Mutual Life Ins. Co. V. Hill (C. C. A.), 97 Fed. 263; Giddings v. Northwestern Mut. Life Ins. Co.. 102 U. S. 108. 138 THE CONTKACT — INTERPRETATION. § 08^ tecome effectual until delivery, it must be construed accord- ing to the law of the place of deliyery.^^ A constructive delivery, or mailing the policy to the insured, or delivery to one authorized to receive the policy for him, is often sufficient,, and the place of completion is in such case the place where the insurer has done some act intended to signify that the instrument shall have immediate vitality, or has put the policy beyond its control.^'' Interest should be computed according to the law of the state where the policy is payable.^® An as- signment of a policy is subject to the law of the domicil of the assignor and assignee.^^ Policies issued upon applications- "Continental Life Ins. Co. v. Webb, 54 Ala. 688; Heebner v. Eagle Ins. Co., 10 Gray (Mass.), 131; In re Insurance Co. of Penn- sylvania, 22 Fed. 109; In re Breitung, 78 Wis. 33, 46 N. W. 891, 47 N. W. 17; Cromwell v. Royal Canadian Ins. Co., 49 Md. 366. Com- pare Bailey v. Hope Ins. Co., 56 Me. 474. Policies issued by foreign companies, doing business in Massa- chusetts by virtue of its laws, to citizens thereof, are governed by the laws of the states in which the companies have their domicile, when the policies were executed there and the conditions thereof were to be performed there by the companies. In such cases the nonforfeiture law of Massachusetts does not apply. Smith v. Mut- ual Life Ins. Co., 5 Fed. 582; Desmazes v. Mutual Ben. Life Ins^ Co., 7 Ins. Law J. 926; Shattuck v. Mutual Life Ins. Co., 7 Ins. Law J. 937; Whitcomb v. Phoenix Mut. Life Ins. Co., 8 Ins. Law J. 624, Contra,. Morris v. Penn Mut. Life Ins. Co., 120 Mass. 503; Holmes v. Chdirter Oak Life Ins. Co., 131 Mass. 64. See, also, Equitable Life Assur. Soc. V. Clements, 140 U. S. 226; Provident Sav. Life Assur. Soc. V. Hadley (C. C. A.), 102 Fed. 856. Compare Cravens v. New- York Life Ins. Co., 148 Mo. 583, 53 L. R. A. 305. *^Ante, § 47, "Delivery of Policy;" Seamans v. Knapp-Stout & Co. Company, 89 Wis. 177, 27 L. R. A. 362; Northampton Mut. L. S. Ins. Co. V. Tuttle, 40 N. J. Law, 476; Marden v. Hotel Owners' Ins. Co.. 85 Iowa, 584, 52 N. W. 509. , ^"Grangers' Life Ins. Co. v. Brown, 57 Miss. 308; Merchants' &. M. Ins. Co. V. Linchey, 3 Mo. App. 588. =' Connecticut Mut. Life Ins. Co. v. Westervelt, 52 Conn. 586; Lee v. Ably. 17 Q. B. Div. 309; Mutual Life Ins. Co. v. Allen, 138- Mass. 24. i 68 THE LAW OF THE TLACE. 139 forwarded to tlie home office of the insurer where they are passed upon and accepted, and whence the policies are issued, are governed by the law of the state where such office is, and are not affected by the statutes in effect at the residence of the insured in another state.^^ P>ut in Wisconsin it is held that the provisions of the statutes of that state conclusively estab- lishing the value of insured real property when wholly de- stroyed to be the amount of the insurance, applies to contracts made out of the state when the property is situated in that state.^® A contract which in terms provides for the payment of premiums, and making of proof, and for performance by the insured, at its home office in New York, is to be construed as a New York contract. ^^ The rights and liabilities of in- surer and insured under a fire insurance policy, will be inter- preted in connection with the ordinances of a city wherein the property covered ^vas situated, when such ordinances were in effect both at the time of issuing the policy and at the time of a loss -thereunder and have a direct bearing upon the terms of the policy.^^ Decisions by courts of last resort construing »» State Mut. Fire Ins. Co. v. Brinkley S. & H. Co., 61 Ark. 1, 29 L. R. A. 712. Compare Seamans v. Knapp-Stout & Co. Company, 89 Wis. 177, 27 L. R. A. 362; Seiders v. Merchants' Life Ass'n, 93 Tex. 194, 54 S. W. 753; Seamans v. Temple Co., 105 Mich. 400, 28 L. R. A. 430. =' Seyk V. Millers' Nat. Ins. Co., 74 Wis. 67. 3 L. R. A. 523. ^"Mutual Life Ins: Co. v. Dingley, 40 C. C. A. 459, 100 Fed. 408, 49 L. R. A. 133; Mutual Life Ins. Co, v. Hill, 38 C. C. A. 159, 97 Fed. 263, 49 L. R. A. 127; Seiders v. Merchants' Life Ass'n, 93 Tex, 194, 54 S. W. 753; Germania Life Ins. Co. v. Feetz (Tex. Civ. App.). 47 S. W. 687. "Larkin v. Glens Falls Ins. Co., 80 Minn. 527, 83 N. W. 410; Hamburg-Bremen Fire Ins. Co. v. Garlington, 66 Tex. 103; Brady V. Northwestern Ins. Co., 11 Mich. 445; Fire Association v. Rosen- thal, 108 Pa. St. 474; Monteleone v. Royal Ins. Co., 47 La. Ann. 1563. 140 THE CONTRACT — INTERPRETATION. § 09 a policy against tlie contention of tlie insurer, create a douLt as to its interpretation of sufficient gravity to be resolved in favor of tlie insured, if the insurer continues to issue the same form of policy. ^^ It is in accord T\ith the weight of authority and with prin- ciple that where the parties to a contract live in different states, or if living in one state they make a contract to be performed in another, they may, acting in good faith, and without intent to evade the law, agree that the law of either state shall control in the interpretation and validity of the ■contract. A stipulation in an application that a policy issued thereon shall be construed by the law of the domicil of the insurer is valid and effectual ; ^^ and so if the stipulation is in the policy. ^^ But such stipulations cannot overcome the effect of statutes in force at the place where the contract is actually made.^^ Custom and Usage. g 69. The parties to a contract of insurance will be presumed to have contracted with reference to known usages and cus- toms which enter into and govern the business or subject matter to which it relates.^^ *= Fidelity & Casualty Co. v. Lowenstein (C. C. A.), 97 Fed. 17, 46 L. R. A. 450. « Johnson v. New York Life Ins. Co., 109 Iowa, 708, 78 N. W. 905; Mutual Life Ins. Co. v. Dingley (C. C. A.), 100 Fed. 408, 49 L. R. A. 133. "Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146, 36 L. R. A. 271; Wayman v. Douthard, 10 Wheat. (U. S.) 1; Liverpool & G. W. Steam Co. v. Phenix Ins. Co.. 129 U. S. 397; Voorheis v. People's Mut. Ben. Soc, 91 Mich. 469. 51 N. W. 1109. , '^New York Life Ins. Co. v. Russell (C. C. A.), 77 Fed. 95. *■ McGregor v. Insurance Co. of Pennsylvania, 1 Wash. C. C. 39, Fed. Cas. No. 8,811; Arnould, Ins. 65; Hicks v. British America Assur. Co., 162 N. Y. 284, 48 L. R. A. 424; Home Ins. Co. v. Adler, 71 Ala. 516, 77 Ala. 242; Boright v. Springfield F. & M. Ins. Co., 34 Minn. 353; Holbrook v. St. Paul F. & M. Ins. Co., 25 Minn. 229; Hey § 70 STANDARD POLICIES. 141 A custom or usage, to be valid and binding, must be general, well established, reasonable, and not subversive of general principles of law.*' Usage and custom are admissible to explain what is doubt- ful, but never to contradict what is plain.^s STAifDAED Policies. § 70. A standard policy, whose form is prescribed by the legislature of a state, and whose use by insurance companies doing business within that state is made compulsory, should, so far as concerns the interpretation of the body of the policy whose wording follows the statute, be construed as a statutory enactment, and not as a contract prepared by the insurer. We liave already seen that ambiguous words or phrases found in ordinary insurance policies, -which are the voluntary contracts of the insured and insurer, are construed most strongly against the latter in accordance with the rule "verba fortius accifiuntur contra 'proferentem." This ancient rule is based upon reason and was framed for the purposes of justice, and should not be asserted or construed so as to defeat the very ends it was intended to accomplish. Keason is the V. Guarantors' Liability Ind. Co., 181 Pa. St. 220; Jones v. German Ins. Co., 110 Iowa, 75, 81 N. W. 188, 46 L. R. A. 860; Home Ins. Co. V. Favorite, 46 111. 263; Mason v. Franklin Fire Ins. Co., 12 Gill (Md.), 468; Edie v. East India Co., 2 Burrows, 1226; Hazard's Adm'r v. The New England Marine Ins. Co., 8 Pet. (U. S.) 582; Rogers v. Mechanics' Ins. Co., 1 Story, 607, Fed. Cas. No. 12,016; Union Cent. Life Ins. Co. v. Pottker, 33 Ohio St. 459; Helme v. Philadelphia Life Ins. Co., 61 Pa. St. 107; Baxter v. Massasoit Ins. Co., 13 Allen (Mass.), 320. "Merchants' Ins. Co. v. Prince, 50 Minn. 53; Bryant v. Com- monwealth Ins. Co., 6 Pick. (Mass.) 131; Macy v. Whaling Ins. Co., 9 Mete. (Mass.) 363; Cobb v. New England Mut. Marine Ins. Co., 6 Gray (Mass.), 192; Livingston v. Maryland Ins. Co., 7 Cranch (U. S.). 506. "Grace v. American Cent. Ins. Co., 109 U. S. 278; Hone v. Mutual Safety Ins. Co., 1 Sandf. (N. Y.) 149; Manson v. Grand Lodge, A. 0. U. W., 30 Minn. 509. 142 THE CONTRACT INTERPRETATION. § 70 soul of the rule, and wlien tlie reason of any particular rule ceases, so does the rule itself. "Cessante ratione legis cessat ipsa lex." So when the law of the place where the contract is made prohibits the parties to an insurance policy from agreeing upon their own terms, and prohibits the insurer from preparing its own policy, and prescribes the very words and form of the only policy which can be legally executed, a policy which is issued in conformity to the law is, in so far as it follows the prescribed form, prepared not by the insurer, but by the legislature, which alone is responsible for uncertainties and ambiguities of the language in which it has expressed itself ; and the reason for the rule '^contra 'proferentem" does not exist, and the act of the legislature should be interpreted and construed as any other statute in derogation of common right and not as a contract prepared by the insurer. "^^^ There is no more justice, nor logic, nor reason in favor of a contrary doctrine than there would be in an assertion that a penal stat- ute ought to be construed most strongly against a criminal and in favor of the prosecution, because such statute was enacted to protect the public and to suppress and punish crime. In a New York case ^^ it was said that a standard policy should be construed most favorably to the insured, but the question under consideration was the effect to be given to the words "the insured," and it is doubtful if it was intended to hold more than was decisive of the case, viz. : that the language was intended to have a reasonable and not unreasonable mean- ing. In a later case the same court construes the act pro- viding for a standard form of policy as itself making the contract of insurance, saying, "upon the' passage of this im- «» Rottier v. German Ins. Co., 86 N. W. 889 (Minn,). *« Matthews y. American Cent. Ins. Co., 154 N. Y. 449, 39 L. R. A. 433. § 71 POLICIES OF MUTUAL ORGANIZATIONS. 143 portant legislation the policy of insurance was no longer of special moment, except as evidence that a contract to insure had been made ; for it was no longer competent for the parties to incorporate into the policy any provision whatever, outside of those embraced within the terms of the standard policy." ^*^ A policy issued under and in conformity to an unconstitu- tional statute prescribing a compulsory form of policy, will be construed as a voluntary contract. Its provisions are sub- ject to the ordinary rules of waiver, while the provisions of a valid standard policy can only be waived in the manner provided therein.^ ^ Policies of Mutual Organizations. § 71. The contract between a mutual aid or benefit insurance company and one of its members is, in legal contemplation, a policy of insurance, and to be construed as such. The relation between a mutual insurance or benevolent organization and a member to whom a certificate or policy has been issued is contractual, and the contract will be con- strued under the rules of construction applicable to other insurance contracts. Whatever be the terms of payment of premium or dues by the member, or the mode of securing pay- ment of the fund or benefit, it is still a contract of insur- ance.^^ Of two reasonable constructions, that one will be »" Hicks V. British America Assur. Co., 162 N. Y. 284, 48 L. R. A. 424; Hamilton v. Royal Ins. Co., 156 N. Y. 327, 50 N. E. 863. " Anderson v. Manchester Fire Assur. Co., 59 Minn. 182, 28 L. R. A. 609; Straker v. Phenix Ins. Co., 101 Wis. 413, 77 N. W. 753: Dowling V. Lancashire Ins. Co., 92 Wis. 63, 31 L. R. A. 112; O'Neil V. American Fire Ins. Co., 166 Pa. St. 72, 26 L. R. A. 715; Hicks v. British America Assur. Co.. 162 N, Y. 284, 48 L. R. A. 424. Sea, also. Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146, 36 L. R. A. 271; Queen Ins. Co. v. Leslie. 47 Ohio St. 409, 9 L. R. A. 45. "Cluff \. Mutual Ben. Life Ins. Co., 99 Mass. 317; Elkhart Mut. Aid B. & R. Ass'n v. Houghton, 103 Ind. 286; State v. Bankers' & 144: THE COXTKACT INTERPRETATION. § 71 adopted whicli "will best effectuate the objects of the association and sustain the claims of the members.^^ Certificates are sometimes construed as if a will or testament. Vested, rather than contingent rights are favored ; the first, rather than the second taker.^^ Where the certificate of membership of a mutual benefit society is authorized bj its charter, but is inconsistent with the by-laws, the former controls ;^^ but neither the customs, nor opinion of the officers as to the meaning of express words in the contract, can affect the rights of a member.^® Merchants' Mut. Ben. Ass'n, 23 Kan. 499; Folmer's Appeal, 87 Pa. St. 133; Illinois Masons' Benev. Soc. v. Baldwin, 86 111. 479; Com. V. Wetherbee, 105 Mass. 149; Holland v. Supreme Council, O. C. F., 54 N. J. Law, 490; Goodman v. Jedidjah Lodge No. 7, 67 Md. 117. "^ Maynard v. Locomotive Engineers' Mut. L. & A. Ins. Ass'n, 16 Utah, 145; Ballou v. Gile, 50 Wis. 614; Elsey v. Odd Fellows' Mut. Relief Ass'n. 142 Mass. 224. "Chartrand v. Brace, 16 Colo. 19, 12 L. R. A. 213; Bolton v. Bol- ton, 73 Me. 299; Union Mut. Ass'n v. Montgomery, 70 Mich. 587. ^' McCoy v. Northwestern Mut. Relief Ass'n, 92 Wis. 577, 66 N. W. 697; Davidson v. Old People's Mut. Ben. Soc, 39 Minn. 303; Union Mut. Fire Ins. Co. v. Keyser, 32 N. H. 313; Failey v. Fee, 83 Md. 83, 32 L. R. A. 311. ^"Manson v. Grand Lodge, A. 0. U. W., 30 Minn. 509; V/iggins v. Knights of Pythias, 31 Fed. 122; District Grand Lodge No. 4 v. Cohn, 20 111. App. 335; Davidson v. Supreme Lodge, K. of P., 22 Mo. App. 263. CHAPTER VII. THE CONTRACT (Cow^inwecZ)— REFORMATION, MODIFICATION, AND RESCISSION. § 72. Reformation of Policy. 73. Modification of Contract. 74. Disaffirmance or Rescission. Reformation" of Policy. § 72. Where, through the mutual mistake of the parties, or the mistake of one party and the intentional fraud of the other, a contract of insurance has been made which does not express the real intention and agreement of the parties thereto, a court of equity will, upon a proper showing, reform the contract so as to make it express that intention and agreement. In such matters the courts act with great caution, and will grant a prayer for reformation only upon clear and convincing proof that the contract ought to be reformed. It sometimes happens that through the mutual mistake of the insurer and the insured, a policy of insurance secures to the iiisured benefits, protection, or indemnity, which the in- surer did not intend to furnish and which the insured did not intend to obtain. That a court of equity has power to correct this mutual mistake, make the instrument given in execution and fulfilhnent of the preliminary negotiations con- form to the real intention of the parties as established by clear and convincing proof, and hold the parties to their actual agreement, cannot be doubted. And this power is not strictly limited to cases of mistake of fact, but extends also to mistakes of law. While, if nothing more than the bare mistake be sho-\vn as a reason for relief, it will rarely, if ever, be granted, yet equity will interfere where it further appears KERR, INS.— 10 146 THE CONTKACT — EEFORMATION, ETC. § 72 that the one party, availing himself of the opportunities af- forded bj the mistake, will enforce an unconscionable ad- vantage "without consideration, he being in no position entitling him to equitable protection, and the other party not being blamable. But this jurisdiction will be exercised with caution, and only very clear and convincing proofs will be sufficient to overcome the presumption that the written instru- ment which the parties have executed for the purpose of evidencing and carrying into effect their agreement is in legal effect or in terms contrary to their intention. A suit to ob- tain such relief may be maintained either before or after a loss. Oral evidence is admissible to show the true agreement.^ If reformation be sought solely upon the ground of mis- take of fact, it must appear that the mistake was mutual and common to both parties. A court cannot create for the parties a contract which they did not both intend to make. A mis- take on one side may be ground for rescinding, but not for reforming, a contract.^ But evidence that a written agree- ment was made through the honest mistake of one party and ^Snell V. Atlantic F. & M. Ins. Co., 98 U, S. 85; Hearne v. New England Mut. Marine Ins. Co., 20 Wall. (U. S.) 488; Coles v. Bowne, 10 Paige (N. Y.), 526; Palmer v. Hartford Fire Ins. Co., 54 Conn. 488; Henderson v. Travelers' Ins. Co., 65 Fed. 438; German Fire Ins. Co. V. Gueck, 130 111. 345, 6 L. R, A. 835; Globe Ins. Co. v. Boyle. 21 Ohio St. 119; Mead v, Westchester Fire Ins. Co., 64 N. Y. 453; Kleis V. Niagara Fire Ins. Co., 117 Mich. 469, 76 N. W. 155; Bryce V. Lorillard Fire Ins. Co., 55 N. Y. 240; Slobodisky v. Phenix Ins. Co., 52 Neb. 395, 72 N. W. 483; Spurr v. Home Ins. Co., 40 Minn. 424; Fitchner-v. Fidelity Mut. Fire Ass'n, 68 N. W. 710; Id., 103 Iowa, 276, 72 N. W. 530; Maher v. Hibernia Ins. Co., 67 N. Y. 283; Bailey v. American Cent. Ins. Co., 4 McCrary, 221, 13 Fed. 250. "Moeller v. America Fire Ins. Co.. 52 Minn. 337; Hearne v. New England Mut. Marine Ins. Co., 20 Wall. (U. S.) 488; Baldwin v. State Ins. Co., 60 Iowa, 497; McCormick v. Orient Ins. Co., 86 Cal. 260; Durham v. Fire & Marine Ins. Co., 22 Fed. 468, 10 Sawy. 526. § 72 EEFOKMATION OF POLICY. 147 fraud or concealment of the otlier, is sufficient to entitle the former to a reformation.^ Upon the principle that he who seeks equitable relief must come into court with clean hands, a suitor cannot have a policy reformed so as to relieve him from the consequences of his own fraudulent or dishonest act. An insurance company can, with the consent of the insured, after the happening of the contingency insured against, sub- stitute a new policy in the place of, and for the purpose of correcting, one previously issued, thus making itself liable under the last instead of the first policy.* These rules apply also to renewals.^ A misdescription of the subject matter,^ or the insured,''^ may be corrected. The failure of an in- sured to read his policy when it was delivered to him is not such negligence as defeats his right to a reformation.^ An insured cannot ignore his policy which does not correctly embody the agreement and sue upon the oral contract; he must seek his remedy by an equitable action to rescind or "Palmer v. Hartford Fire Ins. Co., 54 Conn. 488; Fitchner v. Fi- delity Mut. Fire Ass'n, 103 Iowa, 276, 72 N. W. 530; Devereaux v. Sun Fire Office of London, 51 Hun (N. Y.), 147; Cushman v. New England Fire Ins. Co., 65 Vt. 569; Doniol v. Commercial Fire Ins. Co., 34 N. J. Eq. 30. *Ford V. United States Mut. Ace. Relief Co., 148 Mass. 153, 1 L. R. A. 700; post, note 21. "Palmer v. Hartford Fire Ins. Co., 54 Conn. 488; Phoenix Fire Ins. Co. V. Hoffheimer, 46 Miss. 645; Van Tuyl v. Westchester Fire Ins. Co.. 55 N. Y. 657. "German Fire Ins. Co. v. Gueck, 130 111. 345; Bryce v, Lorillard Fire Ins. Co., 55 N. Y. 240. 'Globe Ins. Co. v. Boyle, 21 Ohio St. 119; Keith v. Globe Ins. Co., 62 111. 518. "Fitchner v. Fidelity Mut. Fire Ass'n, 103 Iowa, 276, 72 N. W. 530; La Marche v. New York Life Ins. Co., 126 Cal. 498, 58 Pac. 1053; ante, note 5. Compare Reynolds v. Atlas Ace. Ins. Co., 69 Minn. 93. 148 THE CONTRACT EEFORMATION, ETC. § 72 reform tlie policy upon the ground of fraud or mistake.*^ But where a policy is issued under circumstances which, constitute a waiver of its conditions, recovery may be had mthout having the policy reformed so as to express the con- sent of the insurer to the violations of its terms ;^° and so- frequently the doctrine of waiver and estoppel is invoked, and proof of mistake is pei-mitted and a suitor allowed to recover directly in an action at law.^^ But proof of mistake or misde- scription should be received with great caution in actions at law, and only when the variance is immaterial or where the real contract of the parties is apparent. Then parol evidence is sometimes admissible, not to vary the written contract, but simply to identify its subject matter, or" the parties, or some person or thing described or referred to.^^ A court of equity may in a single action, upon proper proof, reform a policy and enforce it as reformed. ^^ A party may not have a policy reformed after he has sued upon it and failed to recover, ^^ but the mere commencement of a suit which is dismissed without a determination upon the merits » Kleis V. Niagara Fire Ins. Co., 117 Mich. 469, 76 N. W. 155. ^o Hobkirli v. Phoenix Ins. Co., 102 Wis. 113, 78 N. W. 160. "Omaha Fire Ins. Co. v. Dufek. 44 Neb. 241, 62 N. W. 465; Ameri- can Cent. Ins. Co. v. McLanathan, 11 Kan. 533; Amazon Ins. Co. v. Wall, 31 Ohio St. 628; Manhattan Ins. Co. v. Webster, 59 Pa. St. 227; Germania Life Ins. Co. v. Lunkenheimer, 127 Ind. 536; Lum- bermen's Mut. Ins. Co. V. Bell, 166 111. 400, 45 N. B. 130; Wilson v. Conway Fire Ins. Co., 4 R. I. 141; Gerrish v. German Ins. Co., 55 N. H. 355; Kansas Farmers' Fire Ins. Co. v. Saindon, 52 Kan. 486, 53 Kan. 623. "Greenleaf, Evidence, § 300 et seq.; Phenix Ins. Co. v. Gebhart, 32 Neb. 144. Compare Kleis v. Niagara Fire Ins. Co., 117 Mich. 469, 76 N. W. 155. " Spurr V. Home Ins. Co., 40 Minn. 424, §§ 32, 33. "Washburn v. Great Western Ins. Co., 114 Mass. 175; Steinback v. Relief Fire Ins. Co.. 77 N. Y. 498. § 72 REFORMATION OF TOLICT. Ii9 is no bar to a subsequent action for reformation.^^ A suit for reformation can only be maintained by the real party in interest and the plaintiff must be a party or privy to the con- tracts^ Courts will enforce the contracts of parties, but cannot make contracts for them. A policy will only be reformed upon clear and convincing evidence that the insurer agreed to in- sure the insured in respect to some particular subject matter upon terms mutually understood, and that the policy does not contain the agreement made by the parties. There must be proof of mutual agreement on the terms of the contract, and proof of mutual mistake, or mistake on the part of one and fraud, misrepresentation, or concealment on the part of the other party to the contract in order that a decree reforming it may be granted. ^"^ Eeformation will not be granted at the instance of one who is guilty of laches, ^^ or fraud in pro- " Spurr V. Home Ins. Co., 40 Minn. 424. "Newman v. Home Ins. Co., 20 Minn. 422 (Gil. 378); Baldwin v. State Ins. Co., 60 Iowa, 497; Moeller v. American Fire Ins. Co., 52 Minn. 337, 54 N. W. 189; Dean v. Equitable Fire Ins. Co., 4 Cliff. 575, Fed. Cas. No. 3.705. "Travelers' Ins. Co. v. Henderson, 69 Fed. 762, 16 C. C. A. 390; St. Clara Female Academy v. Delaware Ins. Co., 93 Wis. 57, 66 N. W. 1140; Dougherty v. Greenwich Ins. Co. (N. J.), 33 Atl. 295; Schmid v. Virginia F. & M. Ins. Co. (Tenn.), 37 S. W. 1013; New York Life Ins. Co. v. McMaster's Adm'r, 57 U. S. App. 638, 87 Fed. 63; Westchester Fire Ins. Co. v. Wagner (Tex.), 38 S. W. 214; Hartford Ins. Co. v. Haas, 87 Ky. 531; Doniol v. Commercial Fire Ins. Co.. 34 N. J. Eq. 30; Mead v. Westchester Fire Ins. Co., 64 N. Y. 453; Aetna Life Ins. Co. v. Mason, 14 R. I. 583; German Ameri- can Ins. Co. v. Davis, 131 Mass. 316; Insurance & Banking Co. v. Butler, 55 Md. 233; Hughes v. Mercantile Mut. Ins. Co., 55 N. Y. 265; Travis v. Peabody Ins. Co., 28 W. Va. 583. "St. Paul F. & M. Ins. Co. v. Shaver, 76 Iowa, 282, 41 N. W. 19; Bishop V. Clay F. & M. Ins. Co., 49 Conn. 167; Susquehanna Mut. Fire Ins. Co. v. Swank, 102 Pa. St. 17; Reynolds v. Atlas Ace. Ins. Co., 69 Minn. 92. 150 THE CONTKACT KEFOKMATION, ETC. §§ 73, 74r curing tlie policy/^ or when no action is maintainable on tlie policy because of lapse of time.^'^ Modification' of uokteact. § 73. In the absence of statutory provisions to the contrary, a policy may be modified or varied by a subsequent verbal agreement of the parties. Stipulations in a contract requiring changes or waiver to be in writing are not binding.21 DiSAFFIBMANCE OE RESCISSION". § 74. A policy or renewal procured or issued through fraud, deceit, concealment or misrepresentation of either party may be disaflarmed by the party not at fault ;*2 and a policy which does not express an agreement of the parties because their minds did not meet upon an essential, as, for instance, upon "Spare v. Home Mut. Ins. Co., 19 Fed. 14; ante, notes 3, 4; Cush- man v. New England Fire Ins. Co., 65 Vt. 569. '"Thompson v. Phoenix Ins. Co., 25 Fed. 296. "Mobile Life Ins. Co. v. Pruett, 74 Ala. 487; Harris v. Phoenix Ins. Co.. 85 Iowa. 238, 52 N. W. 128; Westchester Fire Ins. Co. v. Earle, 33 Mich. 153; Fireman's Fund Ins. Co. v. Norwood, 69 Fed. 71, 16 C. C. A. 136; London & L. Fire Ins. Co. v. Storrs, 71 Fed. 120, 17 C. C. A. 645; Lamberton v. Connecticut Fire Ins. Co., 39 Minn. 129. For substitution of policy, see Ford v. United States Mut. Ace. Relief Co., 148 Mass. 153, 1 L. R, A. 700; Cheever v. Union Cent. Life Ins. Co., 5 Bigelow, Life & Ace. Rep. 458. Stand- ard policies may and often do require waiver or modification to be done in a particular manner. The method thus prescribed is ex- clusive. Hicks V. British America Assur. Co., 162 N. Y. 284, 48 L. R. A. 424. See, also, cases in note 51, c. 6, ante; Quinlan v. Provi- dence Wash. Ins. Co., 133 N. Y. 365; Mutual Life Ins. Co, v. Dingley, 100 Fed. 408, 49 L. R. A. 132. "Harris v. Equitable Life Assur. Soc, 64 N. Y. 196; Godfrey v. New York Life Ins. Co., 70 Minn. 224; Michigan Mut. Life Ins. Co. v. Reed, 84 Mich. 524; Trabandt v. Connecticut Mut. Life Ins. Co., 131 Mass. 167; Globe Mut. Life Ins. Co. v. Reals, 50 How. Pr. (N. Y.) 237. As to rescission for breach of contract, see American Union Life Ins. Co, v. Wood (Tex.), 57 S. W. 685. § 74: DISAFFIRMANCE OR RESCISSION. 151 the subject matter, may be canceled or rescinded.^' In this connection, the ordinary rules of ratification, waiver and es- toppel apply. "'Hearne v. New England Mut. Marine Ins. Co., 20 Wall. (U. S.) 488; Benson v. Markoe, 37 Minn. 37; Wheeler v. Odd Fellows' Mut. Aid & Ace. Ass'n, 44 Minn. 513; McKinnon v. VoUmar, 75 Wis. 82. The contract may be abandoned or rescinded by mutual consent of the parties. Mutual Life Ins. Co. v. Phinney, 178 U. S. 327, 20 Sup. Ct. 906; or by the election of the insured to have it terminated when this election is accepted by the insurer. Mutual Life Ins. Co. V. Sears, 178 U. S. 345; Mutual Life Ins. Co. v. Hill, 178 U. S. 347. See, also, Hamm Realty Co. v. New Hampshire Fire Ins. Co., 80 Minn. 139, 83 N. W. 41. See, also. Cable v. United States Life Ins. Co., Ill Fed. 19. CHAPTER VIII. AGENTS. § 75. In General. 76. Actual Authority. 77. Burden of Proof of Agency. 78. Presumption of Fidelity. 79. The Agent Must be Disinterested. 80. Destroyed Property. 81. Whom does Agent Represent. 82. Statutory Regulation of Agency. 83. Evidence of Agency. 84. Appointment of Agents. 85. Classification of Agents. 86. General Agents. 87. Officers of Insurer as Agents. 88. Acts, Admissions and Declarations. 89. Subordinate Lodges Agents of Grand Lodge. 90. Special or Local Agents. 91. Brokers and Solicitors. 92. Stipulations in Policy Regulating Agency. 93. Agents of Mutual Companies. 94. Stipulations in Application Regulating Agency. 95. Acts before Issuance of Policy. 96. What Agents May Waive. 97. Fraud and Mistake of Agent. 98. Collusion between Agent and Insured. 99. Knowledge of Agent that Warranties are False. 100. Powers of Agent after Policy is Issued. 101. Known Limitations of Agent's Power. 102. What Constitutes Waiver by Agent. 103. Limitations Fixed by Policy. 104. Stipulations that only Certain Officers can Waive. 105. Stipulations that no Officer can Waive. 106. Stipulations that Waiver Must be in Writing. 107. The Better Rule. 108. Standard Policies. 109. Collection of Premiums and Renewals. § 75 IN GENERAL. 153 110. stipulations of Policy Against Giving Credit. 111. Manner of Payment of Premium. 112. Power of Agent to Waive Proofs of Loss. 113. Clerks and Sub-agents. 114. Delegation of Powers. / 115. Proof of Authority of Sub-agent 116. Termination of Agency. 117. Adjusters. 118. Appraisers. 119. Ratification and Adoption of Act of Agent. 120. Duties and Liabilities of Agents. In General. § 75. Insurance companies, like other corporations, must transact their business through agents. Insurance agents in all their dealings and relations are gov- erned by the general rules of the law of agency; e. g., (a) They bind their principal by all acts performed within the scope of their real or apparent authority. (b) The principal is not bound by the acts of the agent in excess of his actual authority, except in cases where the doctrine of estoppel can be invoked. (c) The public is not affected by secret limitations upon the apparent authority of an agent. (d) The one asserting agency must prove its existence and extent. The powers of agents are liberally construed in favor of the insured. An agent cannot act for both insurer and insured in the same transaction without the consent of both. An agent has no power to insure property after it has been destroyed. The Powers of the Agent. The powers possessed by the agents of insurance companies,' like those of agents of any other corporation, are to he inter- preted in accordance with the legal principles which govern the general law of agency. Agents possess only such powers as have Leen conferred upon them verbally, or by an instru- ment of authorization, or such as third persons have a right loi AGENTS. § '^5 to presume they possess. "Wliere the act or representation of the agent of an insurance company is alleged as the act of the principal — and therefore binding upon the latter — the test of the liability is the same as in other cases of agency. If a person knows that an agent is acting under circumscribed or limited authority, and that his acts are outside of and transcend the authority conferred, the principal is not bound ; and it is immaterial whether the agent be a general or a special one, because the principal may limit the power of one as well as the other. But the principal is always bound by the acts of his agent within the real or apparent scope of his authority. The existence and extent of an agent's power or authority to act on behalf of or to bind his principal in a particular manner or at all must be determined as questions of fact. The legal effect thereof when thus ascertained becomes a question of law. The powers of an agent may be express, i. e. directly given him by his principal, orally, or in writing; or implied,.!, e. necessary and convenient for the execution of his express au- thority; or apparent, i. e. such as he assumes to have and which he exercises with the knowledge of and approbation of his principal. The actual powers of an agent consist in the sum total of these three, or so many of them as exist in a given case. A power specifically granted, carries with it by implication such other and incidental powers as are directly and immedi- ately appropriate to the execution of the specific power granted — such as are suitable and proper to that end. Henco the implied powers of the agent. The rule as to apparent authority rests essentially on the doctrine of estoppel. The rule is that where one has reasonably and in good faith been led to believe from the appearance of authority which another permits his agent to have, that the agent was possessed of § 75 IN GENERAL. 155 certain powers, and because of such belief bas in good faith dealt with such agent exercising those powers, the principal will not be allowed to deny the agency to the prejudice of one so dealing. To bind a principal for an unauthorized act of his agent, on the ground that a long course of dealing and con- duct on the part of the agent created or established apparent authority in the agent to do the act sought to be enforced, it must be shown that the principal had notice of such conduct and course of dealing, and permitted or acquiesced therein, or that the course of dealing was of such a nature and char- acter as to make it the duty of the principal, as a matter of law, to know of it. If the nature of the business or dealings of the agent be of this latter character, and the principal by his culpable negligence permits it to continue, he is estopped to deny the authority of the agent. But if it be not of such character, then, to bind the principal on the theory of ap- parent authority, it must be shown that he knowingly per- mitted or sanctioned the conduct and course of dealing. And on the question of the authority of an agent the party dealing with him may prove the course and manner of dealing between the principal and agent from which actual authority may be implied, though the party did not know of such course and manner of business at the time he dealt with the agent. ^ 'Knickerbocker Life Ins. Co. v. Norton, 96 U. S. 234; Union Mut. Ins. Co. V. Wilkinson, 13 Wall. (U. S.) 222; Greenleaf v. Moody, 95 Mass. 363; Weidert v. State Ins, Co., 19 Or. 261, 20 Am. St. Rep. 809, 1 Am. & Eng. Enc. Law, 965, 989, 999; Jackson v. Mutual Ben. Life Ins. Co., 79 Minn. 44, 82 N. W. 366; Columbia Mill Co. v. Na- tional Bank of Commerce, 52 Minn. 225; Quinlan v. Providence Wash. Ins. Co., 133 N. Y. 365; Markey v. Mutual Ben. Life Ins. Co., 103 Mass. 78; Keith v. Globe Ins. Co., 52 111. 518; Farmers' Mut. Ins. Co. V. Taylor, 73 Pa. St. 343; Ruggles v. American Cent. Ins. Co., 114 N. Y. 415; Farnum v. Phoenix Ins. Co., 83 Cal. 246; Dwel- ling House Ins. Co. v. Dowdall, 159 111. 179. 156 AGENTS. § 76 The tenaency of courts is toward the liberal construction of an agent's powers.^ Actual Authority. § 76. The actual authority conferred upon an agent is pri- marily the limit of his powers. Unless the act of an agent which is in excess or abuse of his actual authority has induced a third person, who believed, and had a right to believe, that the act was within the author- ity of the agent and exercised in a proper way, to act or re- frain from acting in reliance thereon, and who would be injured if the act was not considered that of the principal, the latter would not be bound.^ A request by an insurance com- pany of a given person that he shall collect a balance due from a former agent, or to make up his account from his books, or mail a canceled policy, does not give him apparent author- ity to issue policies for the company.^ An agent who insures the hull of a boat under a short certificate, subject to the condi- tions of an open policy, which is referred to, such policy being without a clause which could cover such hull, being a cargo policy, does not bind his principal, because there is no real or apparent authority manifest,^ Wliere an insurance company gave its agent a power of attorney constituting him its true ^ Union Mut. Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 222; Aetna Ins. Co. V. Maguire, 51 111. 342; Merchants' Ins. Co. v. New Mexico Lumber Co., 10 Colo. App. 223, 51 Pac. 174; Winne v. Niagara Fire Ins. Co.. 91 N. Y. 185; St. Paul F. & M. Ins. Co. v. Parsons, 47 Minn. S52; Union Mut. Life Ins. Co. v. Masten, 3 Fed. 881; Haughton v. Ewbank, 4 Camp. 88; Grady v. American Ins. Co., 60 Mo. 116. ^ Walsh V. Hartford Fire Ins. Co., 73 N. Y. 5; Reynolds v. Con- tinental Ins. Co., 36 Mich. 131; Sun Fire Office v. Wich, 6 Colo. App. 103, 39 Pac. 587; Dryer v. Security Fire Ins. Co., 94 Iowa, 471, 62 N. W. 798; German Ins. Co. v. Davis, 40 Neb. 700, 59 N. W. 698. *Rahr v. Manchester Fire Assur. Co., 93 Wis. 355, 67 N. W. 725. ' Barry v. Boston Marine Ins. Co., 62 Mich. 424, 29 N. W. 31. 76 ACTUAL AUTHORITY. 15T and lawful attorney to act as its agent and receiver, and effect insurance, and exercise other powers necessary to the ordinary working of an insurance company, and such agent made deposits with a banker, bought exchange, etc., the ac- count being kept in the name of the company, and in the course of these transactions the agent became indebted to plaintiff, it was held that the transactions were outside the usual business of the company and it was not liable.*^ In a federal case defendant insured the interest of a half owner of a vessel, w^hich became stranded during a voyage ; insured requested insurer to render her assistance and a Avrecking master was sent with instructions to render necessary assist- ance. Insured abandoned his interest, and the wrecking master with the aid of the master and the crew, and wdthout other authority from the insurer, after removing the vessel to a harbor, attempted to navigate her to her home port, during which attempt she was lost. Held, that the insurer was not liable to the OAvner of the uninsured interest for the loss, and is not, as to him, chargeable with negligence.'^ An agent who is only authorized to solicit and take applications for insur- ance, receive the premiums, and deliver the policies which have been signed by the proper officers, has no authority, either expressed or implied, to make a binding contract of insurance,^ or to waive a breach of the stipulation in the policy that subsequent additional insurance shall not be ef- fected on the property without the consent of the underwriter.^ And an oral permission by an agent that premises may remain vacant is not binding on the insurer, nor of any benefit to the "McDonald v. Royal Ins. Co., 3 Riiss. & G. (Nova Scotia) 428. ■ Kirby v. Thames & Mersey Ins. Co., 27 Fed. 221. -^ Morse v. St. Paul F. & M. Ins. Co.. 21 Minn. 487. ■'Alabama State Miit. Assur. Co. v. Long Clothing & S. Co. (Ala.), 2G So. 655. 158 AGENTS. § "iQ insured, where lie liad express notice that the company had refused to have such a proA^sion written in the policy. ^"^ Nor can an agent waive a provision of the policy that "no in- surance would be binding until actual payment of the pre- miiun" where the policy states that none of its terms can be waived by anyone except the secretary of the company. ^^ An agent with power to issue policies, may bind his principal by an oral contract to insure ; ^^ and by putting construction upon doubtful language in the policy ; ^^ and by the renewal of ex- " Sutherland v. Eureka F. & M. Ins. Co., 110 Mich. 668, 68 N. W. 985. "Wilkins v. State Ins. Co., 43 Minn. 177; post, note 259. "Sanford v. Orient Ins. Co., 174 Mass. 416, 54 N. B. 883; Stelick V. Milwaukee Mechanics' Ins. Co., 87 Wis. 322, 58 N. W. 379; Ganser V. Fireman's Fund Ins. Co.. 38 Minn. 74; Ruggles v. American Cent. Ins. Co., 114 N. Y. 415; Mathers v. Union Mut. Ace. Ass'n, 78 Wis. 588, 47 N. W. 1130; post, notes 208, 209, 253-255. But see More v. New York Bowery Fire Ins. Co., 130 N. Y. 537. ^^Hotchkiss V. Phoenix Ins. Co., 76 Wis. 269; Standard Life & Ace. Ins. Co. V. Fraser (C. C. A.), 76 Fed. 705; Campbell v. International Life Assur. Soc, 4 Bosw. (N. Y.) 298; Phoenix Ins. Co. v. Wartten- berg (C. C. A.), 79 Fed. 245, 26 Ins. Law J. 552; Mathers v. Union Mut. Ace. Ass'n, 78 Wis. 588, 47 N. W. 1130; Michigan Shingle Co. V. State Inv. & Ins. Co., 94 Mich. 389, 53 N. W. 945; Michigan Shingle Co. v. Pennsylvania Fire Ins. Co.. 98 Mich. 609, 57 N. W. 802; Graybill v. Penn. Township Mut. Fire Ins. Ass'n, 170 Pa. St. 75, 50 Am. St. Rep. 747; Steen v. Niagara Fire Ins. Co., 89 N. Y. 315; Dryer v. Security Fire Ins. Co., 94 Iowa, 471, 62 N. W. 798; Winchell v. Iowa State Ins. Co., 103 Iowa, 189, 72 N. W. 503; Kroeger v. Pitcairn, 101 Pa. St. 311. And the representation of an agent that under a certain clause in the policy the insured, by pay- ing the annual premium, would have a period of thirteen months during which the policy could not be forfeited, puts a construction on the policy which binds the company. McMaster v. New York Life Ins. Co., 78 Fed. 33. Otherwise if the application make the solicitor the agent of the insured. Hubbard v. Mutual Reserve Fund Life Ass'n. 80 Fed. 681; New York Life Ins. Co. v. Fletcher, 117 U. S. 519. Where the agent of an insurer writes in the application that the applicant had no other insurance, although the applicant told him § 76 • ACTUAL AUTHORITY. 159 isting insurance ;-^^ and by an nnexecutcd oral agreement to renew ;^^ and by any act, agreement, representation or waiver within tbe ordinary scope and limit of his business which is not knowTi by the assured to be outside the authority granted to the agent. -^^ The oral fraudulent representations of the insurer's agent, as to the terms of the policy to be issued, bind the insurer and constitute ground for rescission, although the policy pro- vides that no statements, promises, or information made or given by the person soliciting or taking the application for a policy shall bind the company or affect its right, unless reduced to writing and presented in the application to the officers of the company at the home office. ■^'^ An insurance company is liable to third persons in a civil action for the frauds, deceits, concealments, misrepresentations and omis- sions of duty of a general agent in the course of his employ- that he had certificates of membership in co-operative companies, which the agent said were not considered insurance by him, the company is bound by the agent's interpretation, and is estopped from asserting to the contrary. Continental Life Ins. Co. v. Cham- berlain, 132 U. S. 304, 33 L. Ed. 341; post, note 341. The agent can- not bind his principal by his expression of an opinion as to the law of the contract. Mutual Life Ins. Co. v, Phinney, 178 U. S. 327- 343; Chamberlain v. Prudential Ins, Co. (Wis.), 85 N. W. 128. "Carroll v. Charter Oak Ins. Co., 40 Barb. (N. Y.) 292; Baubie v. Aetna Ins. Co.. 2 Dill. 156. Fed. Cas. No. 1,111. "McCabe v. Aetna Ins. Co. (N. D.), 81 N. W. 426. Compare John- son V. Connecticut Fire Ins. Co., 84 Ky. 470; O'Reilly v. Corporation of London Assur.. 101 N. Y. 575; Dinning v. Phoenix Ins. Co., 68 111. 414; Croghan v. New York Underwriters' Agency, 53 Ga. 109; Taylor V. Phoenix Ins. Co.. 47 Wis. 365, 2 N. W. 559; Kruger v. Western F. & M. Ins. Co.. 72 Cal. 91; New York Cent. Ins. Co. v. Watson, 23 Mich. 486. •■'Milwaukee Mechanics' Ins. Co. v. Brown (Kan.), 44 Pac. 35; Union Mut. Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 222; Continental Ins. Co. V. Kasey. 25 Grat. (Va.) 268. " McCarty v. New York Life, Ins. Co.. 74 Minn. 530, 77 N. W. 426. 160 AGENTS. § 76 ment ■^'lien tlie acts committed are apparently within the general scope of his authority although not so in fact, although his conduct was not authorized or justified hy it;^* and is bound by the agreement of its agent to return a note given for the premium if the application is not accepted. ^^ "When the instructions of the principal are equivocal and fairly susceptible of two different constructions, it is bound by the interpretation acted on by its agent,^*^ The principal is bound by the contract of employment for the solicitation of risks made by its general agent, unless the person employed had notice of private restrictions upon the agent's authority. ^^ A demand upon an agent under the provisions of a contract is a demand upon his principal. ^^ An appointment to act as "agent or surveyor" must be taken in the general sense and as conferring all the powers which the company might give its representative. The term "surveyor" does not limit the word "agent." An agent so appointed may bind his prin- cipal by false representations which it was beyond the scope of his power to make.^^ It will be presumed that the agent of the insurer who issues a policy, has authority to consent to its assignment. ^^ When the Principal is Not Bound — Illustrations. The acts of an agent do not bind his principal, when as- sured is notified by the application and the policy that state- " Atkins V. Equitable Life Assur. Soc, 132 Mass. 395; New York Life Ins. Co. v. McGowan, 18 Kan. 300. ^» Mutual Life Ins. Co. v. Gorman (Ky.), 40 S. W. 571. -" Winne v. Niagara Fire Ins. Co., 91 N. Y. 185. -' Equitable Life Assur. Co. v. Brobst, 18 Neb. 526, 26 N. W. 204. See post, "Sub-agents." " Belt V. Brooklyn Life Ins. Co., 12 Mo. App. 100. =' Lycoming Fire Ins. Co. v. Woodworth, 83 Pa. St. 223; Markey V. Mutual Ben. Life Ins. Co., 103 Mass. 78. -* Breckinridge v. American Cent. Ins. Co.. 87 Mo. 62. § 76 ACTUAL AUTHORITY. 161 ments will not be recognized by the company unless tbey are in writing, and that no stipulation or agTeenient should be in force unless it is in writing, ^^ An agent cannot revive a canceled policy already rejected by his company unless he has authority covering the specific case.^® An insurance company which repudiates an unauthorized compromise after a loss between its agent and the insured, whereby the payment of an additional premium by the latter was to be accepted by way of a waiver of a forfeiture under a clause respecting the condition of the property, is not bound to pay to the insured an amount equal to the additional premium paid by him to the agent, where it never received such premium from the agent or held him in any way bound for it.^^ One, who has knowledge that a soliciting agent has no authority to complete contracts, cannot claim the benefit of a contract against a principal as the result of negotiating with the agent. ^^ If the blanks and forms furnished an agent disclose the limitations on his authority he cannot bind his principal by acts done in excess thereof in a transaction in which such blanks and forms are used.^^ It is not within the implied powers of an agent to agree to issue a life insurance policy to "Clevenger v. Mutual Life Ins. Co., 2 Dak. 114; Hubbard v. Mut- ual Reserve Fund Life Ass'n, 80 Fed. 681; New York Life Ins. Co, V. Fletcher, 117 U. S. 519; Hill v. London Assur. Corp., 34 N. Y, St, Rep. 65, 12 N. Y. Supp. 86. =« Hartford Fire Ins. Co. v, Reynolds, 36 Mich. 502, " Merchants' Ins. Co. v. New Mexico Lumber Co., 10 Colo. App. 223, 26 Ins. Law J. 969. 51 Pac. 174, ^"Haskin v. Agricultural Fire Ins, Co., 78 Va, 700; Dryer v. Se- curity Fire Ins. Co., 94 Iowa, 471. 62 N. W, 798, '"Lee V. Guardian Life Ins. Co., 2 Cent. Law J. 495; Walsh v, Hartford Fire Ins. Co., 73 N. Y, 5; New York Life Ins. Co. v. Fletcher, 117 U. S. 519; Messelback v. Norman, 122 N. Y. 578; Clev- enger V. Mutual Life Ins. Co., 2 Dak. 114; Globe Mut. Life Ins. Co. v. Wolff, 95 U. S. 329, KERR, INS.— H 162 AGENTS. § Y6 a plijsiclan vriih. tlie agreement to take the payment of the premiums in professional services.^*' Secret Restrictions on the Power of an Agent. Special instructions limiting the authority of an agent, whose powers would otherwise be co-extensive with the busi- ness intrusted to him, must be communicated to the party with whom he deals, or the principal will be bound to the same extent as though such special instructions were not given.^^ It is well settled that the acts of an agent within the apparent scope of his authority, although in violation of undisclosed instructions, are binding on the principal unless there was something in the nature of the business or the facts of the case to indicate that the agent is acting under special instructions or limited powers, or unless the acts were done under such circumstances as to put the person dealing with the agent upon notice or inquiry as to his real authority.^^ If an insurer expressly gives an agent powers outside of his written au- thority, or encourages him to exercise them for a long time and ^"Anchor Life Ins. Co. v. Pease, 44 How. Pr. (N. Y.) 385. See, also, as to implied powers of agent, Beebe v. Equitable Mut. L. & E. Ass'n, 76 Iowa. 129, 40 N. W. 122; Barber v. Connecticut Mut. Life Ins. Co., 15 Fed. 312; Commercial Assur. Co. v. Rector, 55 Ark. 630; Getz v. Equitable Life Assur. Soc, 96 Iowa, 138, 64 N. W. 799; Northern Assur. Co. v. Hamilton, 50 Neb. 248, 69 N. W. 781; Mary- land Fire Ins. Co. v. Gusdorf, 43 Md. 506; Reynolds v. Continental Ins. Co., 36 Mich. 131; Com. v. Mechanics' Mut. Fire Ins. Co., 120 Mass. 495; Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Train y, Holland Purchase Ins. Co., 62 N. Y. 598; Guardian Mut. Life Ins. Co. V. Hogan, 80 111. 35; United States Life Ins. Co. v. Advance Co., SO 111. 549; post, notes 259, 270-275. ^'Ruggles v. American Cent. Ins. Co., 114 N. Y. 421; Southern Life Ins. Co. v. McCain, 96 U. S. 84; German Fire Ins. Co. v. Co- lumbia Fncaustic Tile Co., 15 Ind. App. 623, 43 N. E. 41; Mohr & Mohr Distilling Co. v. Ohio Ins. Co., 13 Fed. 74. . ^^^ Harnden v. Milwaukee Mechanics' Ins. Co., 164 Mass. 382; Union Mut. Ins. Co, v. Wilkinson, 13 Wall. (U. S.) 222. § T7 BURDEN OF PROOF OF AGENCY. 163 ratifies them so as to induce the public to rely on his enlarged agency, it cannot afterwards, without notice to those who knew of this course of dealing, fall back on his written au- thority to avoid acts done by their encouragement in the general scope of the business. ^^ The fact that an insurance agent, having authority to issue policies, has received instructions not to insure a certain per- son, does not invalidate a contract by the agent to issue a policy to him when the latter had no knowledge of such in- structions.^^ After the death of the insured, one who repre- sents himself to be, and who was held out to the public as, a general agent, told the policy holder that he had no doubt the policy would be paid. Held, though between himself and the company he was by private arrangement without authority to adjust losses, that the evidence of what he said and did wliile actin"* in the capacity of general agent was admis- sible.^* Burden of Proof of Agency. § 77. The one asserting, must prove agency. The burden is on the party asserting agency in a given per- son to prove the existence of the agency and the authority claimed for the agent. And the evidence produced for this purpose must go further than merely to be consistent with the *' Farmers' Mut. Ins. Co. v. Taylor, 73 Pa. St. 343. '* Hicks V. British America Assur, Co., 13 App. Div. (N. Y.) 444, 43 N. Y. Supp. 623; American Employers' Liability Ins. Co. v. Barr (C. C. A,), 68 Fed. 873; Hartford Fire Ins. Co. v. Farrish, 73 111. 166; Krumm v. Jefferson Fire Ins. Co., 40 Ohio St. 225. As to effect of custom giving notice of limitations of agent's powers, see 2 Duer, Ins. (Ed. 1846) p. 351; Drake v. Marryat, 1 Barn. & C. 473; Arm- strong V. State Ins. Co. 61 Iowa, 212; Winnesheik Ins. Co. v, Holz- grafe, 53 111. 524. "Home Life Ins. Co. v. Pierce, 75 111. 426. But see American Life Ins. Co. v. Mahone, 21 Wall. (U. S.) 152. 164 AGENTS. § '''8 hypothesis that the agency existed with the power asserted. This rule has in some states been regmlated by statute.^® The law makes it obligatory upon the party dealing with an agent to ascertain the extent of his authority. If he fails to do so, it is at his own peril. One applying for insurance through a soliciting agent is bound to ascertain the scope of his authority,. and is chargeable with knowledge of limitations of the agent's power ; unless the principal has clothed the agent with appar- ent power to act in the premises.^'^ Presumption" of Fidelity. § 78. Agents are not presumed to disobey orders. In the absence of clear, affirmative evidence txD the contrary,, the agent is not to be presumed to have disobeyed his instruc- tions and violated his obligations to his principal.^^ And if an agent acting within the lines of his presumptive authority exceeds it, that is a matter within the exclusive knowledge: of the insurer, who must prove it.^^ "American Underwriters' Ass'n v. George, 97 Pa. St. 238; Gude V. Exchange Fire Ins. Co., 53 Minn. 220; Home Ins. & Banking Co. V. Lewis, 48 Tex. 622; Abraham v. North German Ins. Co., 40 Fed. 717; Marline v. International Life Assur. Soc, 62 Barb. (N. Y.) 181; Tripp v. Northwestern Live-Stock Ins, Co., 91 Iowa, 278, 59 N. W. 1; Dryer v. Security Fire Ins. Co., 94 Iowa, 471, 62 N. W. 798; Mechem, Agency, § 276. See post, "Statutory Regulation of Agency;" Gore v. Canada Life Assur. Co., 119 Mich. 136, 77 N. W. 650. "Sun Fire Office v. Wich, 6 Colo. App. 103, 39 Pac. 587; Dryer v. Security Fire Ins. Co., 94 Iowa, 471, 62 N. W. 798; German Ins. Co. V. Davis. 40 Neb. 700, 59 N. W. 698. " Herman v. Phoenix Mut. Life Ins. Co., 17 Minn. 153. "First Nat. Bank of Devils Lake v. Manchester Fire Assur. Co.,. 64 Minn. 100. § 79 agent mrst be disinterested. 165 Agent Must be Disinteeested. § 79. An agent cannot bind his principal by acts in his own favor.^o The acts of an agent wlio represents both insurer and in- sured in the insuring of property are not binding on his principals unless ratified by them.^^ An agent of an insurer who makes application to it for insurance on his ovm prop- erty, directly or indirectly for his own benefit, is acting for himself, and his acts or knowledge do not bind his principal. ^^ An insurance company is not liable on a policy written by an agent for the company on property pled'ged to banks of Avhich such agent was president or cashier, where the risk was declined by the company for other reasons than the agent's interest in the property, of which fact the company was not informed, altliough the insured was not notified of such refusal until after the property was destroyed, where she knew of such agent's interest in the property.'*^ But the fact iliat an insurance agent who issued a policy to a school district, was at the same time director of the district, will not avoid the policy, where the president, who was selected for that purpose, acted for the district in the matter and the agent did not.^'* But one who is a mere guard or watchman over property and *° Neuendorff v. World Mut. Life Ins. Co.. 69 N. Y. 389. ^^ Hartford Fire Ins. Co. v. McKenzie, 70 111. App. 615; Zimmer- mann v. Dwelling-House Ins. Co., 110 Mich. 399, 68 N. W. 215; Mer- cantile Mut. Ins. Co. V. Hope Ins. Co., 8 Mo. App. 408; Glens Falls Ins. Co. V. Hopkins, 16 111. App! 220, 14 Ins, Law J. 317. "Ramspeck v. Pattillo, 104 Ga. 772, 42 L. R. A, 197; Wildberger V. Hartford Fire Ins. Co., 72 Miss. 338, 28 L. R. A. 220; Harle v. Council Bluffs Ins. Co., 71 Iowa, 401, 32 N. W. 396. ^Rockford Ins. Co. v. Winfield, 57 Kan. 576; Idaho Forwarding Co. V. Fireman's Fund Ins. Co.. 8 Utah. 41. " German Ins. Co. v. Independent School District, 49 U. S. App. 271, 80 Fed. 366. As to agent acting for both with knowledge of In- surer, see Van Schoick v. Niagara Fire Ins. Co., 68 N. Y. 434. 166 AGENTS. § 80 also the agent of an insurance company, may, at the request of the owner, write a valid policy of insurance on such property in the company of which he is such agent. ^^ Destkoted Pkopeett. § 80. An agent cannot insure destroyed property. Power is invested in agents for the promotion and protection of the interests of the principal; hence no agency, however general in its terms, embraces the power to insure property after knowledge that it has been lost.^^ Unless a binding contract of insurance is made before a loss occurs, an agent has no power to ratify an imperfect contract and issue a cer- tificate of insurance thereafter. ^'^ Where one man who was agent of a mercantile company, and at the same time agent of an insurance company, is told by the manager of the former company to renew certain policies with the insurance com- pany of which he was agent, and was authorized to use the funds of the mercantile company for that purpose, but negli- gently fails to do so, after having agreed to do it, no contract of insurance exists, which will cover a subsequent loss, al- though the agent had authority to issue the policies.^^ But an agent may, after a loss, fill up and deliver a policy which, previous to the loss, he had undertaken to execute. This is not the making; but the fulfillino; of a contract.^^ «Northrup v. Germania Fire Ins. Co., 48 "Wis. 420, 4 N. W. 350. See Powers v. New England Fire Ins. Co., 68 Vt, 390. " Stebbins v. Lancashire Ins. Co., 60 N. H. 65; People v. Dimick, 41 Hun (N. Y.). 616; Hartford Fire Ins. Co. v. McKenzie, 70-111. App. 615. ''Blake v. Hamburg Bremen Fire Ins. Co., 67 Tex. 160, 2 S. W. 368. *^ Idaho Forwarding Co. v. Fireman's Fund Ins. Co., 8 Utah, 41. *' Franklin Fire Ins. Co. v. Colt, 20 Wall. (U. S.) 560. § 81 whom does agent represent. 167 Whom Does Agent Represent. § 81. "Whether a person acting in the transactions leading up to a contract of insurance is the agent of the insurer or the in- sured is a mixed question of law and fact, to be determined from the circumstances of each case. It is impossible to lay down any hard and fast rule to de- termine whether one taking a particular part in the negotia- tions prior to the consummation of a contract of insurance was, in so doing, the agent of the one party or the other. The agent issuing the policy is the agent of the insurer. So are his subagents and clerks and solicitors in so far as they act in and about matters pertaining to the business of the insurer. But all these might be agents of the insurer for certain matters, and agents of the insured for other matters con- nected with the same transaction. Solicitors and brokers are agents of one party or the other according to their relations to the insurer or the insured, and the part they play in each particular transaction. Wliether one is the agent of the in- surer or the insured is a question of law for the court, or of fact for the jury, or a mixed question of law and fact, to be determined by the circumstances of each case.^^ There ""State V. Johnson, 43 Minn. 350; Gude v. Exchange Fire Ins. Co., 53 Minn. 220; Fame Ins. Co. v. Mann, 4 111. App. 485; Commercial Fire Ins. Co. v. Allen, 80 Ala. 571; Niagara Ins. Co. v. Lee, 73 Tex. 641; Harle v. Council Bluffs Ins. Co.. 71 Iowa. 401, 32 N. W. 396; May V. Western Assur. Co., 27 Fed. 260; Campbell v. Supreme Lodge, K. of P.. 168 Mass. 397; Smith v. Home Ins. Co., 47 Hun (N. Y.), 30; How v. Union Mut. Life Ins. Co., 80 N. Y. 32; Deitz v. Providence Washington Ins. Co., 31 W. Va. 851; Pierce v. People,. 106 111. 11; North British & M. Ins. Co. v. Crutchfield, 108 Ind. 518; Arff V. Starr Fire Ins. Co., 125 N. Y. 57; Sullivan v. Phenix Ins. Co., 34 Kan. 170; Kausal v. Minnesota Farmers' Mut. Fire Ins. Ass'n, 31 Minn. 17; Continental Life Ins. Co. v. Chamberlain, 132 U. S. 304; Atlantic Ins. Co. v. Carlin, 58 Md. 336; Susquehanna Mut. Fire Ins. Co. v. Cu&ick, 109 Pa. St. 157. In Noble v. Mitchell, 100 Ala. 519, 25 L. R. A. 238, it was held that one who placed a risk through brokers 168 AGEOTS. § 81 is no general nile that a party applying to an insurance troker in respect of any matter thereby under all circumstances makes him his agent in that matter. The question of whose agent the broker is, is one of evidence in each particular case ; though if all that appears is the fact of an application to him, he would very likely be regarded as the agent of the party applying to him.^^ If the insured employs an insurance agent to place insurance for him, the one employed is the agent of the insured and not the agent of the insurer ; but if acting on behalf of the company, or the agent of the company, the broker solicits the insurance, he is the agent of the com- pany at least to the extent of knowdedge acquired in securing the insurance and as to matters and acts necessarily incidental to his procuring the insurance.^ ^ On principle, as well as for considerations of public policy, agents of insurance companies, authorized to procure applica- tions for insurance, and to forward them to the companies for acceptance, must be deemed the agents of the insurers and not of the insured in all that they do in preparing the appli- cation, or in any representations that they may make to the insured as to the character or effect of the statements therein in another state acted as agent for insurer, under the statute in force in Alabama. See post, "Statutory Regulations of Agency;" "Brokers and Solicitors." " Parker & Young Mfg. Co. v. Exchange Fire Ins. Co., 166 Mass. 484, 44 N. E. 615. ^- Coles V. Jefferson Ins. Co., 41 W. Va. 261, 25 Ins. Law J. 247, 23 S. E. 732; United Firemen's Ins. Co. v. Thomas (C. C. A.), 92 Fed. 127; Estes v. Aetna Mut. Fire Ins. Co., 67 N. H. 597; McElroy v. British America Assur. Co. (C. C. A.), 94 Fed. 990; Gaysville Mfg. Co. V. Phoenix Mut. Fire Ins. Co., 67 N. H. 457; Fromherz v. Yank- ton Fire Ins. Co., 7 S. D. 187, 63 N. W. 784; Michigan Pipe Co. v. Michigan F. & M. Ins. Co.. 92 Mich. 482, 20 L. R. A. 277; John R. Davis Lumber Co. v. Hartford Fire Ins. Co., 95 Wis. 206, 70 N. W. 84. § 81 WHOM DOES 'AGENT KEPKESENT. 169 contained. This rule is rendered necessary by the manner in which business is now usually done by the insurers. They supply these agents with printed blanks, stimulate them by the promise of liberal commissions, and then send them abroad in tlie community to solicit insurance. The companies em- ploy them for that purpose, and the public regard them as the agents of the companies in the matter of preparing and filling up the applications — a fact which the companies perfectly understand. The parties who are induced by these agents to make applications for insurance rarely know anything about the general officers of the company, or its constitution or by-laws, but look to the agent as its full and complete repre- sentative in all that is said or done in regard to the application. And in view of the apparent authority with which the com- panies clothe these solicitors, they have a perfect right to consider them sucli.^^ An insurance agent, who, in pur- suance of general directions given him by the owners of property, procures a second policy on the same from a com- pany not represented by him, through an agent who was in the habit of exchangiiig policies with him, and who charged the premiums to him, acts in getting insurance solely as the agent of the proj^erty owners.^^^ In ]\IcGraw v. Germania Fire Ins. Co., application was made to agents for insurance. "^American Life Ins. Co. v. Mahone, 21 Wall. (U. S.) 152; Union Mut. Ins. Co. V. Wilkinson, 13 Wall. (U. S.) 222; Malleable Iron Works V. Phoenix Ins. Co., 25 Conn. 465; Hough v. City Fire Ins. Co., 29 Conn. 10; Woodbury Savings Bank & Building Ass'n v. Charter Oak F. & M. Ins. Co., 31 Conn. 517; Miner v. Phoenix Ins. Co., 27 Wis. 693; Winans v. Allemania Fire Ins. Co., 38 Wis. 342; Rowley v. Empire Ins. Co., 36 N. Y. 550; Brandup v. St. Paul F. & M. Ins. Co., 27 Minn. 393, 2 Am. Lead. Cas. (5th Ed.) 917 et seq.; Wood, Ins. c. 12; May, Ins. §§ 120, 139; Kausal v. Minnesota Farm- ers' Mut. Fire Ins. Ass'n, 31 Minn. 17. But see Northrup v. Piza, 43 App. Div. 284, 60 N. Y. Supp. 363. "" Merchants' Ins. Co. v. Union Ins. Co., 162 111. 173. 170 AGENTS. § 82 Tliej were nuable to place the whole amount desired in com- panies which they represented and went to the agent of other companies from whom they obtained the balance. They made to such agent verbal representations regarding the con- ditions of the property on which insurance was desired. With these representations insured was not concerned. In an ac- tion on a policy, thus procured by such agents, it was held that they were the agents of the company, not of insured, and the x)olicy could not be avoided on account of the falsity of representations made by them.^'* Statutory Regulation of Agency. § 82. It is within the power of a state to fix the status of those acting as solicitors or brokers or taking any steps towards the procuring or issuing of an insurance policy. Such statutory regulations supersede any stipulations or agreements of the parties to the contrary. Statutes imposing civil or criminal liability upon agents of a foreign insurance company doing business within a stato without license are valid. Such statutes are strictly construed against agents. Several states have passed laws to the effect that "whoever solicits, procures, or receives in or transmits from any state "54 Mich. 145; Michigan Pipe Co. v. Michigan F. & M. Ins. Co., 92 Mich. 482, 20 L. R. A. 277. In May v. Western Assur. Co., 27 Fed. 260, plaintiff made application to B. for insurance. They had dealt with each other for years, and B. knew the condition of the prop- erty. He was unwilling to carry the full amount asked for in com- panies he represented, and applied to C, agent of another company, for a portion of it. Without communicating with plaintiff and with- out knowledge concerning the property, C. took the risk, issued a policy, and delivered it to B., and he to A. The court held that plaintiff and B. acted as principals; that if C. chose to act upon rep- resentations made by B. whom he regarded as a subagent, his prin- cipal Avas bound. See, also. Mesterman v. Home Mut. Ins. Co., 5 Wash. 524. 24 Am. St. Rep. 877. § 82 STATDTORY REGULATION OF AGENCY. 171 any application other than his own for membership or insur- ance in any corporation or association shall be deemed and held to be the agent of such corporation or association." ^^ The purpose of these statutes is to settle, as between the par- ties to the contract of insurance, the relations of the agents through whom the negotiations were conducted. Many in- surance companies provide in their applications and policies, that the agent through whom the application was procured, shall be the agent of the insured. Under that provision they are able to avail themselves, in case of loss, of defenses which woidd not have been available if the solicitor had been re- garded as their agent. Thence arise cases of apparent hard- ship and injustice. That is the e\al which is intended to be remedied by these statutes, and they ought to be so in- terpreted as to accomplish that result. These statutes are constitutional.^^ The power with which persons authorized "Joyce, Ins. § 512 et seq.; Gen. St. Conn. 1888, §§ 2898, 2923; Ga. Laws 1887, p. 121, § 9; McLain's Iowa Code 1888, § 1732; Rev. St. Maine 1883, p. 445, § 19; Acts Mass. 1887, c. 214, § 87; Ann. Code Miss. 1892, § 2327; Rev. St. Mo. 1889, § 5915; Comp. St. Neb. 1891, c. 16. § 8; Laws N. H. 1889, c. 94, § 2; Laws N. Dak. 1891, p. 203, § 28; Rev. St. Ohio, Smith & B. 1890, § 3644; St. Okla. 1890, p. 637, § 23; Pub. Laws R. I. Jan. 1884, p. 55; Id. Jan. 1885, p. 63: St. S. C. 1883, p. 460, § 6; Rev. Laws Vt. 1880, § 3620, p. 697; Acts Va. 1887, p. 349, c. 271, § 5; Sanb. & B. Ann. Wis. St. 1889, Vol. 1, p. 1186, § 1977; Laws Minn. 1895, c. 175, §§ 25, 88, 91; Rev. St. Tex. 1895, art. 3093; Code Ala. § 1205. For statutory regulation of ad- justers of foreign unlicensed insurance companies, see French v. People, 6 Colo. App. 311, 40 Pac. 463, where the court held that con- struction of the statute which would punish a professional adjuster exercising his vocation anywhere would make such statute void. See, also, People v. Gilbert, 44 Hun (N. Y.), 522. =""Cook V. Federal Life Ass'n, 74 Iowa, 746, 35 N. W. 500; St. Paul F. & M. Ins. Co. V. Shaver, 76 Iowa, 282, 41 N. W. 19; Continental Life Ins. Co. v. Chamberlain, 132 U, S. 304; Paul v. Virginia, 8 Wall. (U. S.) 168; Noble v. Mitchell, 164 U. S. 367, 100 Ala. 519, 25 L. R. A. 238; Hooper v. California, 155 U. S. 648; List v. Com., 118 Pa. St. 322; German Ins. Co. v. Everett (Tex.), 36 S. W. 125. 172 AGENTS. § 82 by an insurance company to solicit insurance or receive pre- miums, and declared by statute to be the agents of the com- pany to all intents and purposes, are invested by law for tbe protection of the public, cannot be limited by a clause in the application, providing that no statements, representations, promises or information given to such person shall be binding on the company, or affect its rights, unless reduced to writing and presented to the officers of the company at its home office. Any information given by an applicant to such agents is in contemplation of law given to the company itself, and pre- vents a defense on the grounds that it is not set out in the application. The knowledge of such an agent is imputed to his principal.^ ^ The rule that insured must know at his peril whether the person with whom he is negotiating as an agent has the authority he assumes to exercise, is changed by such a statute ; and an insurance company is responsible for the acts of a person who assumes to represent it by soliciting insurance if it issue a policy, or otherwise it accepts, adopts, or takes ad- vantage of his acts.^* And under such statutes a company is bound by a policy issued by its agent in territory wherein th(; agent was forbidden to insure.^^ An oral contract for im- mediate insurance is within the powers of such an agent not- "New York Life Ins. Co. v. Russell (C. C. A.), 77 Fed. 94; Alkan v. New Hampshire Ins. Co., 53 Wis. 136; St. Paul F. & M. Ins. Co. V. Shaver, 76 Iowa, 282; Marston v. Kennebec Mut. Life Ins. Co., 89 Me. 266, 36 Atl. 389; Bennett v. Council Bluffs Ins. Co., 70 Iowa, 600; Wood v. Firemen's Fire Ins. Co., 126 Mass. 316 (contra). And see John R. Davis Lumber Co. v. Hartford Fire Ins. Co., 95 Wis. 226, 70 N. W. 84, 27 L. R. A. 131; United Firemen's Ins. Co. v. Thomas (C. C. A.), 92 Fed. 127. '* Alkan v. New Hampshire Ins. Co., 53 Wis. 136; Body v. Hart- ford Fire Ins. Co.. 62 Wis. 157, and cases in note 57. ■'Knox V. Lycoming Fire Ins. Co., 50 Wis. 671; German Ins. Co. V. Everett (Tex.), 36 S. W. 125. § 82 STATUTORY REGULATION OF AGENCY. 175 withstanding a stipulation in the application (wliicli insured signed without knowing its contents) that the insurer would not be liable until the application and premium were received bj its secretary.^'' An insurance broker employed by an insured to procure insurance is the latter's agent in respect to everything that does not conflict with his agency for the in- surer as declared by statute, and he may bind the insured in matters pertaining to the procurement of the policy.^ ^ Validity and Enforcement of Penal Statutes. A state can lawfully punish or regidate, by the imposition of civil liability or otherwise, the doing, by agents of a foreign insurance company within its territory, of acts which are cal- culated to neutralize and make ineffective a statute prescribing conditions precedent to the right of such corporation to do business within the state; and it can make an agent liable personally to the insured for a loss covered by a policy issued by the agent of a company not entitled to do business in the state.^^ The fact that an insurance solicitor placed a risk through brokers in another state, without knowing what com- ^^ Mathers v. Union Mut. Ace. Ass'n, 78 Wis. 588. 47 N. W. 1130, 11 L. R. A. 83. Compare Ebert v. Mutual Reserve Fund Life Ass'n, 81 Minn. 116, 83 N. W. 507. "' John R. Davis Lumber Co. v. Hartford Fire Ins. Co., 95 Wis. 226, 70 N. W. 84, 37 L. R. A. 131, 2 Am. & Eng. Enc. Law (1st Ed.), 595; Wood v. Firemen's Ins. Co., 126 Mass. 316. "■'Noble v. Mitchell, 164 U. S. 367, 17 Sup. Ct. 110; Hooper v. Cali- fornia, 155 U. S. 648; Seamans v. Knapp-Stout & Co. Company, 8» Wis. 171, 61 N. W. 757; Paul v. Virginia, 8 Wall. (U. S.) 168; Con- tinental Life Ins. Co. v. Chamberlain, 132 U. S. 304; Indiana Millers' Mut. Fire Ins. Co. v. People, 65 111. App. 355; Parker v. Lamb, 91> Iowa, 265. 68 N. W. 686; State v. Stone, 118 Mo. 388. For prosecu- tions under such statutes, see People v. Howard, 50 Mich. 239, 15 N. W. 101; State v. Johnson, 43 Minn. 350; French v. People, 6 Colo. App. 311, 40 Pac. 463; People v. Gilbert, 44 Hun (N. Y.), 522; State v. Farmer, 49 Wis. 459, 5 N. W. 892. 174 AGENTS. § 82 pany took it, will not release him from liability under the provisions of such a statute. In a Minnesota case, the pro- curing of a single policy through brokers was held not "acting as agent" for the company issuing the policy.^^ In a prosecu- tion against the agent of a foreign insurance company for acting as agent without the proper certificate of the Insurance Commission it was held immaterial and no defense that the company he represented had complied with the statute.^ ^ Under Illinois Act 1869, making it unlawful for any agent or agents, or any other person in any manner, to aid an insurance company, not incorporated in the state, and not entitled to do an insurance business therein, a person or corporation is liable for aiding such foreign insurance company in the transaction of insurance business in any manner, although not the agent of the company in the ordinary sense of the term, and although acting under a contract with the insured ex- pressly stating that such person or corporation is his agent only.®^ And one whose business is to negotiate insurance in domestic companies acts as an insurance broker in informing a duly licensed agent of foreign companies that certain persons desire to obtain insurance on their lives, within Mass. Stat. 1887, ch. 214, §§ 93-98, providing that whoever for compen- sation "acts, or aids in any manner," in negotiating contracts of insurance shall be deemed an insurance broker and no per- son shall act as such broker without procuring a license therefor.®^ « Noble V. Mitchell, 100 Ala. 519, 25 L. R. A. 238, 164 U. S. 367; post, note 64. " State V. Johnson. 42 Minn. 350. '= People V. Peoples' Ins. Exchange, 126 111. 466, 2 L. R. A. 340; Pierce v. People, 106 111. 18. "" Pratt V. Burdon, 168 Mass. 596, 47 N. E. 419. As to what consti- tutes doing business under such statutes, see Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739; State v. Johnson, 43 Minn. 350. ^ 83 evidence of agency. 175 Evidence of Agency. § 83. Authority of an agent to act for an insurer may be shown by the acts and conduct of the parties as well as by proof of direct authority. The delivery of blank policies and renewal receipts by an insurer to an agent to be by the latter filled in and issued shows the authority of the agent to represent the insurer in all matters connected with soliciting insurance and issuing, can- celing, and renewing policies. The admissions of the officers and general agents of the in- surer, while acting within the line of their duty, as to the au- thority of an agent are evidence of the same. There is no presumption concerning the existence or extent of an agent's authority. Neither an individual nor a corpora- tion can be bound 'by the acts of an alleged agent without proof of the agency. Whether the relation of principal and agent exists between the two parties is generally a question of fact. But where facts are undisputed, or the evidence is such that only one inference or conclusion can properly and rea- sonably be drawn from them, it then becomes the province and duty of a court to determine whether they create any agency, and if so, with Avhat powers and limitations. This is true Avhether the agency is sought to be established by previous direct authorization, or by the course of conduct and dealings of the parties before the act alleged, or by subsequent ratifica- tion. And while it is not always necessary to prove an ex- press contract between the parties in order to establish the relation of principal and agent, either that must be done, or the acts, dealings and conduct of the parties must be proved to be of such a nature that the relation may properly be in- ferred therefrom. An exception to this rule exists of course where the agency is created by statute.®^ "Ante, note 1. 176 AGENTS. § 83 Acts and Conduct of Parties. It may be stated as a general rule that wherever an insur- ance company holds one out to the public as its agent, or knowingly permits one to act as its agent without dissent, or where the course of dealing between the agent and insurer has been such as to warrant tlie reasonable presumption of au- thority in the agent, the insurance company will not be heard to deny authority in such agent so as to affect the rights of third parties who have relied and acted thereon in good faith and with reasonable prudence.^^ Aside from any other facts the authority of an agent to act for an insurer may be inferred from the course of dealing between them, and evidence that tlie agent assumed to act for the insurer with its knowledge, but without its dissent, is sufficients^ But such authority cannot be inferred from the acts, statements, or representa- tions of the agent alone though he assunied to act for the "' Hamilton v. Home Ins. Co.. 94 Mo. 353; Fay v. Richmond, 43 Vt. 25; Perkins v. Washington Ins. Co., 4 Cow. (N. Y.) 645; Lungstrass V. German Ins. Co., 57 Mo. 107; Indiana, B. & W. Ry. Co. v. Adam- son, 114 Ind. 282; Woodbury Sav. Bank & Bldg. Ass'n v. Charter Oak F. & M. Ins. Co., 31 Conn. 518; Lightbody v. North American Ins. Co., 23 Wend. (N. Y.) 18. In McArthur v. Home Life Ass'n, 73 Iowa, 336, 35 N. W. 430, the court held the insurer bound by the act of one who claimed to be its agent, who forged some of the papers in an ap- plication on which a policy was issued by the company and altered by the agent, where the premium was paid by the insured without knowledge of the fraudulent acts of the agent. An insurance com- pany is estopped to deny that one sent out by it to solicit business for it is its agent, although the policy provides that no person, unless authorized in writing, shall be deemed to be its agent. Hart V. Niagara Fire Ins. Co., 9 Wash. 620, 27 L. R. A. 86; Spitz v. Mutual Ben. Life Ass'n, 5 Misc. Rep. 245, 25 N. Y. Supp. 469. "Newman v. Springfield F. & M. Ins. Co., 17 Minn. 123 (Gil. 98); Guernsey v. American Ins. Co., 17 Minn. 104 (Gil. 85); Day v. Me- chanics' & Traders' Ins. Co., 88 Mo. 325; Flynn v. Equitable Life Ins. Co., 78 N. Y. 568; Mechem, Agency, §§ 84, 276; Connecticut Mut. Life Ins. Co. v. Bulte. 45 Mich. 113. § 83 EVIDENCE OF AGENCY. 177 insurer. '^^ Proof of ratification or adoption of an unautlior- ized act by an agent must show that the action of the principal was tahen vnth full knowledge of the acts of the agent.'^-' Where defendant's cashier made representations to a policy holder in its office on a matter relating to the business of the corporation which were designed to, and did, affect an act beneficial to it, and which was acted on by it, it was held in the absence of proof as to the cashier's authority, that there was prima facie evidence of his authority to bind his principal.'^^ And where the secretary of an insurance com- pany gave his assent to the assignment of a policy, his au- thority to do so can be presumed."^^ The appointment of an officer who acts publicly as such in connexion with cor- porate affairs, can be assumed in the absence of anything warranting a contrary inference. '^^ In Enos v. St. Paul P. &: M. Ins. Co., the supreme court of South Dakota held that when in a suit against an insurer, its answer alleged that it had caused an examination of the insured to be had after the loss, and the evidence showed that at such examination a per- son appeared, claimed to represent the company and conducted such examination apparently for it, and afterwards in reply "Cases supra; Huesinkveld v. St. Paul F. & M. Ins. Co. (Iowa), 76 N. W. 696; Marvin v. Wilber, 52 N. Y. 270; Reynolds v. Conti- nental Ins. Co., 36 Mich. 131; Graves v. Horton, 38 Minn. 66; Flem- ing V. Hartford Fire Ins. Co., 42 Wis. 616; Rahr v. Manchester Fire Assur. Co.. 93 Wis. 255, 67 N. W. 725. "Morse v. St. Paul F. & M. Ins. Co.. 21 Minn. 407. See post, § 119. "Knauer v. Globe Mut. Life Ins. Co., 16 Jones & S. (N. Y.) 454; Abraham v. North German Ins. Co., 40 Fed. 717. "Conover v. Mutual Ins. Co.. 3 Denio (N. Y.), 254. "Bank of U. S. v. Dandridge, 12 Wheat. (U. S.) 89; Merchants' Bank v. State Bank, 10 Wall. (U. S.) 644; Fayles v. National Ins. Co., 49 Mo, 380; Aetna Ins. Co. v. Maguire, 51 111. 342; Indiana B. & W. Ry. Co. V. Adamson, 114 Ind. 282. KERR, INS.— 13 178 AGENTS. § 83 to a letter from tlie assured to (he company In regard to such examination, the same person wrote an answer, purporting to be that of the company, "UT:'itten on one of its letter heads, on which such person was advertised as the adjuster of the com- pany, the jury might properly find that such person was the agent of the company. '^^ Possession of Blank Policies as Evidence of Agency. Where an insurance company entrusts to an agent blank policies, and renewal receipts, signed by its president and secretary, to be filled up by such agent when issued, it consti- tutes him its agent for the purpose of soliciting and procuring insurance and issuing policies for it thereon and renewing the same, and all matters connected tlierewith, and it cannot question the general authority of the agent to act for it in those particulars.'^® Admissions of Officers and Agents. The authority of an agent cannot be proved by the mere declarations or admissions of the agent himself; but he is a competent witness upon a trial to testify to the existence of facts which constitute the agency. The agency and power of a subordinate may sometimes be proven by the declarations and admissions made by a managing agent while acting within the scope of his agency and when they relate to the subject or "4 S. D. 639, 57 N. W. 919; Slater v. Capital Ins. Co., 89 Iowa, 628, 57 N. W. 422. '"Carroll v. Charter Oak Ins. Co., 40 Barb. (N. Y.) 292; Union Ins. Co. V. McGookey. 33 Ohio St. 555; Train v. Holland Purchase Ins. Co., 68 N. Y. 208; Howard Ins. v. Owen's Adm'rs, 94 Ky. 197. But see More v. New York Bowery Fire Ins. Co., 130 N. Y. 537, 29 N. E. 757, where the court held insurer was not bound by an oral contract of its agent to insure where the agent told plaintiff that his powers were limited to taking and forwarding applications for approval or rejection of the company. § 84: APPOINTMENT OF AGENTS. 179 matters "with reference to wliicli lie was empowered to act for his principal. Thus, the affidavit of the president of an insur- ance company made to procure a continuance in an action on account of the absence of a witness, is competent evidence against the company of the facts stated therein, viz. : that the witness mentioned in the affidavit was as stated therein its agent with the powers claimed for him by the president in the affidavit.'^^ Appointment of Agents. § 84. No unusual formalities are required in the appointment of agents of insurance companies unless prescribed, by statute or required by the charter or by-laws of the company. One may become the agent of an insurance company with greater or less power according to the circumstances of the given case (1) by virtue of a special contract either oral or written; (2) by virtue of some general principle of the law of agency; (3) by custom and course of dealing between him and the insurer ; (4) by his assuming to act for the insurer with its knowledge and without its dissent; (5) by the insurer adopting an agent's unauthorized action on its behalf; (6) by an insurer holding him out as its agent or clothing him with apparent power to represent it; (7) by virtue of some pro- vision in the application or policy furnished by the insurer ; (8) through some statutory provision; (9) through some provision of an insurer's charter or by-laws vesting specific powers in certain officers or other persons collectively or in- dividually; (10) ex necessUate.'^^ In case of foreign insur- " Schreiber v. German-American Hail Ins. Co., 43 Minn. 367; Cot- ton States Life Ins. Co. v. Edwards, 74 Ga. 220; Bartlett v. Fire- men's Fund Ins. Co., 77 Iowa, 155, 41 N. W. 601; Mechem, Agency, § 102; Scott V. Home Ins. Co.. 53 Wis. 238, 10 N. W. 387; Agricult- ural Ins. Co. V. Potts, 55 N. J. Law, 158, 39 Am. St. Rep. 637. "Perkins v. Washington Ins. Co., 4 Cow. (N. Y.) 646; Joyce, Ins. 180 AGENTS. § 85- ance companies, tlie statutes of many states Impose conditions- regulating the appointment of their agents within the state, and require the appointment of agents upon whom service of process may be made in suits against such companies. Some states prohibit the agents of foreign insurance companies doing business within a state without procuring from the commissioner of insurance a certificate of authority. A for- eign corporation cannot enforce any contracts made by it or its agents where the law has not been obeyed ; "^^ but such con- tracts can be enforced against the insurer.^" . Classification" of Agekts. § 85. The agents here considered are either (a) General agents. (b) OflB-cers of the insurer, or (c) Special or local agents. Insurance agents are (1) general; or (2) officers of the in- surer; or (3) special with either plenary or limited powers,, depending upon the terms of the grant of their power and upon the authority exercised by them with the assent of their principals. The nature of the agency and the extent of an agent's powers are to be determined by the same rules that control in respect to other agencies. An insurer may limit §§ 390 et seq., 408; Emery v. Boston Marine Ins. Co., 138 Mass. 398; Independent Mat. Ins. Co. v. Agnew, 34 Pa. St. 96; Greenleaf V. Moody, 13 Allen (Mass.), 363; Witherell v. Maine Ins. Co., 49 Me. 200; Newmark v. Liverpool & L. F. & L. Ins. Co., 30 Mo. 160; Leiber v. Liverpool, L, & G. Ins. Co., 6 Bush (Ky.), 639; Goodwillie V. McCarthy, 45 111. 186; Bradford v. Homestead Fire Ins. Co., 54 Iowa, 598, 7 N. W. 48; Pacific Mut. Ins. Co. v. Frank, 44 Neb. 320, 62 N. W. 454; Fayles v. National Ins. Co., 49 Mo. 380; Mound City Mut. Life Ins. Co. v. Huth, 49 Ala. 529. "McCanna & Fraser Co. v. Citizens' T. & S. Co. (C. C. A.), 76 Fed.. 420, 35 L. R. A. 236; Randall v. Tuell, 89 Me. 443, 38 L. R. A. 143; Seamans v. Christian Bros. Mill. Co., 66 Minn. 205. 68 N. W. 1065. •"Ganser v. Fireman's Fund Ins. Co., 34 Minn. 372, 25 N. W. 943. § 86 GENERAL AGENTS. 181 the powers of its agents, and when either actual knowledge of a limitation on an agent's power or snch notice thereof as a prudent man is bound to regard, is brought home to the insured, he is estopped from claiming that such limitation does not exist, and from asserting in the agent powers in oppo- sition to such limitation.^ ^ Same — Genekal Agents. § 86. A general agent of an insurance company is one •who has all the powers of his principal in relation to those matters in which he represents his principal. The insurer is bound by the knowledge of and notice to its general agent. A general agent has the power to institute civil proceedings to collect money due his principal. As to his power to insti- tute criminal prosecutions, quaere. Who is a General Agent. The term ''general agent," in insurance matters, is often used with reference to the geogi-aphical extent of an agent's authority, in contradistinction to a "special" or "local" agent who may have equal powers within a more limited area. Whether an agent belongs to one class or the other is often a question of fact depending on all the circumstances and sur- roundings of the case and the parties. Strictly speaking the term "general agent" is descriptive of one who stands in the place of a representative or officer of a company. Such an agent may generally make the contract which the insurer is empowered to make.^^ An agent who is intrusted with '^ Weidert v. State Ins. Co., 19 Or. 261, 20 Am. St. Rep. 809. "An universal agent is one authorized to transact all of the business of his principal of every kind. A general agent is an agent who is em- powered to transact all of the business of his principal of a particu- lar kind or in a particular place. A special agent is one authorized to act only in a specific transaction." Mechem, Agency, § 6. '^Ewell's Evans, Agency, p. 21; Thompson, Corp. § 4878. 182 AGENTS. § 86 the management of tlie company's affairs in a state is a gen- eral agent, thoiigli liis powers be restricted to a single state.^^ An agent authorized to receive and accept proposals for risks, subject to the approval of the company, to issue and deliver policies, and renew the same, and receive premiums therefor, who has been supplied with blanks signed by the president to be filled and countersigned, is a general agent. ^^ Likewise an agent authorized to issue and renew policies, and to trans- act the business of the insurer at a particular place.^^ *» Southern Life Ins. Co. v. Booker, 9 Heisk. (Tenn.) 606; Hart- ford L. & A. Ins. Co. V. Hayden's Adm'r, 90 Ky. 39; Boehen v. Will- iamsburg City Ins. Co., 35 N. Y. 131; Continental Ins. Co. v. Ruck- man, 127 111. 364, 27 N. E. 77. "Georgia Home Ins. Co. v. Kinnier's Adm'x, 28 Grat. (Va.) 88; Painter v. Industrial Life Ass'n, 131 Ind. 68; German Ins. Co. v. Gray, 43 Kan. 497; Phenix Ins. Co. v. Hunger, 49 Kan. 178; Millville Mut. M. & F. Ins. Co. v. Mechanics' & W. B. & L. Ass'n, 43 N. J. Law, 652; King v. Council Bluffs Ins. Co., 72 Iowa, 310; West v. Norwich Union F. Ins. Co., 10 Utah, 448; Howard Ins. Co. v. Owen's Adm'rs, 94 Ky. 197; Newark Machine Co. v. Kenton Ins. Co., 50 Ohio St. 558; Viele v. Germania Ins. Co., 26 Iowa, 9; Goode v. Georgia Home Ins. Co., 92 Va. 392, 30 L. R. A. 842; Hartford Fire Ins. Co. V. Orr, 56 111. App. 629; Harding v. Norwich Union F. Ins. Co., 10 S. D. 64, 71 N. W. 755. "It is clear that a person authorized to ac- cept risks, to agree upon and settle the terms of insurance and to carry them into effect by issuing and renewing policies, must be regarded as the general agent of the company." Pitney v. Glen's Falls Ins. Co., 65 N. Y. 6. See, also, Post v. Aetna Ins. Co., 43 Barb. (N. Y.) 359; Carroll v. Charter Oak Ins. Co., 40 Barb. (N. Y.) 292; Lightbody v. North American Ins. Co., 23 Wend. (N. Y.) 18; Mc- Ewen V. Montgomery County Mut. Ins. Co., 5 Hill (N. Y.), 105; Gloucester Mfg. Co. v. Howard Fire Ins. Co., 5 Gray (Mass.), 498; Krumm v. Jefferson Ins. Co., 40 Ohio St. 225. The part of the opin- ion in Pitney v. Glen's Falls Ins. Co., 65 N. Y. 6, above quoted, is made part of the text in May, Ins. § 126. See, also, § 129. «' Pitney v. Glen's Falls Ins. Co., 61 Barb. (N. Y.) 335, 65 N. Y. 6; Continental Ins. Co. v. Ruckman, 127 111. 364; Travelers' Ins. Co. V. Harvey, 82 Va. 949; Cole v. Union Cent. Life Ins. Co. (Wash.), 60 Pac. 68, 47 L. R. A. 204. 86 GENERAL AGENTS. 183 Powers of General Agent. The absolute powers of a general agent of an insurance com- pany are difficult of precise definition. They vary in dif- ferent cases according to the power given the agent by his principal, the power which the agent assumes to exercise with the acquiescence of the principal, the distance between the agency and the home office, the customs of the business in the locality in which the agency is situated, and the necessities and surroundings of the given case.^® While he cannot dis- pense with or modify the essential character or substance of the contract, he can, even in the case of a mutual company where greater strictness is sometimes required, determine as to the amount and nature of the risk and the rate of premium. He may make such memoranda and indorsements modifying the general provisions of the policy, and even inconsistent therewith as in his discretion seems proper, before the policy is delivered and accepted. He may also insert by memoran- dum or indorsement a description of the property insured, in- consistent with the description of the same contained in the application. His acts and knowledge are those of his prin- cipal. He may appoint and employ sub-agents, adjusters, and appraisers if necessary, for the furtherance of the inter- ests of his principal.^'^ A general agent of a foreign insur- *"See ante, "General Agents;" Eclectic Life Ins. Co. v. Fahren- krug, 68 111. 463; Travellers' Ins. Co. v. Edwards, 122 U. S. 457; Mc- Gurk V. Metropolitan Life Ins. Co., 56 Conn. 528; Eastern R. Co. V. Relief Fire Ins. Co., 105 Mass. 570; Union Mut. Ins. Co. v. Wilk- inson, 13 Wall. (U. S.) 235; Lungstrass v. German Ins. Co., 57 Mo. 107; Jervis v. Hoyt, 2 Hun (N. Y.), 637; Greenleaf v. Moody, 13 Allen (Mass.), 363. "Biddle, Ins. §§ 116, 121; Eastern R. Co. v. Relief Fire Ins. Co., 105 Mass. 570; Post v. Aetna Ins. Co., 43 Barb. (N. Y.) 351; Con- tinental Ins. Co. V. Ruckman, 127 111. 364; Manhattan Fire Ins. Co. V. Weill Ullman, 28 Grat. (Va.) 389; Pitney v. Glen's Falls Ins. Co., 65 N. Y. 6; Harding v. Norwich Union F. Ins. Soc, 10 S. D. 64, 71 184: AGENTS. § 86 ance company doing business in Canada will be deemed to be possessed of all tbe powers of an agent at the head office of the company.^^ Whatever he does and says in soliciting, issuing and delivering policies and collecting premiums has the same effect as if done by the company itseK, even though it may be contrary to his special instructions of which the other party had no notice.^^ Thus a policy issued upon subject matter beyond the territory in which a general agent is authorized to act, is valid unless the want of authority is brought home to the insured.^** And a general agent may, in the absence of a known restriction upon his authority, bind his principal by delivering a policy without requiring payment of the pre- mium, notwithstanding that the application signed by the insured provided that the policy should not be binding upon the company imtil the cash premium was received by it or its agent during the lifetime of the person assured.^ ^ He has authority to adjust and settle losses and waive proofs of loss;^^ and to bind his principal by a contract of employment for the solicitation of risks, unless the person employed had N. W, 755; Planters' Mut. Ins. Co. v. Rowland, 66 Md. 236. But see Gore V. Canada Life Assur. Co.. 119 Mich. 136, 77 N. W. 650. ^ Campbell v. National Life Ins. Co., 24 Up. Can. C. P. 133. «' Fireman's Fund Ins. Co. v. Norwood (C. C. A.), 69 Fed. 71; Story, Agency, §§ 18, 126 et seq.; Biddle, Ins. §§ 116-121; Ruggles v. American Cent. Ins. Co.. 114 N. Y. 421; Georgia Home Ins. Co. v. Kinnier's Adm'x, 28 Grat. (Va.) 88. Post, "Collection of Premi- ums." "^Lightbody v. North American Ins. Co., 23 Wend. (N. Y.) 18. ^'Southern Life Ins. Co. v. Booker, 9 Heisk. (Tenn.) 606; Cole v. Union Cent. Ins. Co. (Wash.), 60 Pac. 68, 47 L. R. A. 204, But see post, notes 268 et seq. «' Little V. Phoenix Ins. Co., 123 Mass. 380; Travelers' Ins. Co. v. Harvey, 82 Va. 949; German Ins. Co. v. Gray, 43 Kan. 497; Swain v. Agricultural Ins. Co., 37 Minn. 390. Post, "Waiver of Proofs of Loss." •§ 86 GENERAL AGENTS. 185 notice of private restrictions upon tlie agent's aiithority.^-"^ A statement by a general agent of a corporation in the course •of his employment as to a fact within his oflficial knowledge, touching the status of a mattei' intrusted to him is admissible in evidence on behalf of the party with whom the corporation was dealing at the time.*^^ He may orally consent to contem- porary insurance on the property in another company, not- withstanding a prohibition in the policy against taking :additional insurance without written consent indorsed on the policy. He can dispense with a condition orally thougli the policy requires it to be in writing.^^ And may waive a condition inserted in the policy issued by his company.^*^ He has authority to demand an appraisement and may waive the same after it has been made;'''^ but he cannot bind the com- pany by an agreement to receive a less premium that that fixed by the policy.^* An insurance company is bound by the knowledge of its general agent concerning the title to the insured property and by his act in issuing a policy thereon without a written appli- »' Equitable Life Assur. Co. v. Brobst, 18 Neb. 526. Post, "Sub- agents." " Agricultural Ins. Co. v. Potts, 55 N. J. Law, 158, 39 Am. St. Rep. 637; ante, note 77. "^^ Coles V. Jefferson Ins. Co.. 41 W. Va. 261, 23 S. E. 732; Gold- ■water v. Liverpool & L. & G. Ins. Co., 39 Hun (N. Y.), 176; Steen v. Niagara Fire Ins. Co., 89 N. Y. 315. Can waive method of waiver and binds company by his construction. Carrigan v. Lycom- ing Fire Ins. Co.. 52 Vt. 418. ••Kruger v. Western F. & M. Ins. Co., 72 Cal. 91, 1 Am. St. Rep. 42; Imperial Fire Ins. Co. v. Dunham, 117 Pa. St. 460, 2 Am. St. Rep. 686. Post, note 198. " Northern Assur. Co. v. Samuels, 11 Tex. Civ. App. 417, 33 S. W. 239. '^ Brown v. Massachusetts Mut. Life Ins. Co.. 59 N. H. 298, 47 Am. Rep. 205. Post, notes 259-270. 186 AGENTS. § 86 cation ;^^ and Is chargeable ■^■itli the knowledge of its general agent concerning the custom of receiving premiums after tliej become due.^°° Notice to a general agent of an insurer, of a sale, or conveyance, or change of possession of property insured, and a waiver by him of the condition of the policy of the company against it, bind the company. ^''^ Power of General Agent to Institute Civil or Criminal Pro- ceedings. The institution of civil proceedings to collect money due his principal is within the scope of the agency of a general agent of an insurance company ; but it is more than doubtful whether the institution of criminal proceedings on behalf of his prin- cipal against embezzling sub-agents, employed by the general agent and personally liable to him, would under any circum- stances be within the scope of his agency. An insurance com- pany is not liable for the torts of its general agent in the course of and within the scope of his agency, Avithout its participa- tion, ratification or direct authority, when the tortious act was committed for a purpose at least partially personal to the agent. ^'^^ But in Michigan it was held that a general agent for a district embracing several states had such authority in any one of them, though his office be in another, as will make his principal liable for a malicious prosecution in its name with his connivance in either state. ^^^ ■"• Liverpool & L. & G. Ins. Co. v. Ende, 65 Tex. 118. ^•^ Phoenix Mut. Life Ins. Co. v. Hinesley, 75 Ind. 1; Union Mut. Ins. Co. V. Wilkinson, 13 Wall. (U. S.) 222; Miller v. Mutual Ben. Life Ins. Co., 31 Iowa, 216. "'Planters' Mut. Ins. Co. v. Rowland, 66 Md. 236; Millville Mut. M. & F. Ins. Co. V. Mechanics' & W. B. & L. Ass'n, 43 N. J. Law, 652. "-Larson v. Fidelity Mut. Life Ass'n, 71 Minn. 101, 73 N. W. 711; Norman v. Insurance Co. of North America (111.), 4 Ins. Law J. 827. "■''Turner v. Phcenix Ins. Co., 55 Mich. 236, 21 N. W. 326. § 87 OFFICERS OF INSURER AS AGENTS. 187 Acts Not Within Scope of Power of General Agent— Illustra- tions. General authority given an agent to issue policies and con- tracts of reinsurance throughout the country in cases where a Lloyd's Association has a similar amount of insurance on the same risk, does not include authority to reinsure a Lloyd's Association of which he is the general attorney, against one half of a risk which the latter has outstanding. ^^^ When an insurance company rejects an application after part of the premium has been paid to one of its general agents, and the agent by arrangement with the applicant retains the premium note given, and the cash paid, and attempts to induce the company to reconsider its action, the company is not liable for loss occurring after it had rejected the application.^*'^ An insurance company is not liable for advertising bills con- tracted by its general agent without special authority in the absence of a custom giving him power to contract such debts on behalf of his principal. ^^^ Officers of Insurer as Agents. § 87. The oflacers of an insurance company are its agents, and are governed by the rules applicable to other agents. Since a corporation must perform all its acts through its officers primarily and the agents appointed by them, it fol- lows that in the sum total of the powers of the officers must be found the authority to discharge all the corporate functions. The powers of the different officers are fixed by the provisions of the charter or articles of incorporation and the constitution and by-laws togetlier with the statutory enactments of the place of incorporation and of the lex loci contractus. It is ele- *"* Timberlake v. Beardsley, 22 App. Div. (N. Y.) 439. •"■■' Otterbein v. Iowa State Ins. Co., 57 Iowa, 274. •"» United States Life Ins. Co. v. Advance Co., 80 111. 549. 188 AGENTS. § 88 mental that everyone is lield to know the statutory and written law regulating the acts of the corporation and its agents. The authority of an officer to bind an insurer must be shown by the party asserting it.-^*^''' And an insurance company is not bound by notice coming to the knowledge of its president unless he is shown to have authority to act for it in the prem- ises. ■'"^ The power to represent absent members and vote in their behalf, expressly conferred upon the board of di- rectors, involves the exercise of discretion, and cannot be delegated except under express grant of authority. ^°^ Same — Acts, Admissions, and Declarations. § 88. The acts, admissions, declarations and representations of an officer acting within the scope of his authority bind the company. Admissions made by the treasurer and secretary within the scope of their authority bind the company as do all repre- sentations made by them.^^° The knowledge of the president binds the company if received within the line of his duty,^^^ and representations made by the cashier of an insurer, ^^^ and the admissions of the president or manager ;^^^ but hearsay information received by an officer of a company upon or con- cerning matters not within the scope of his powers and duties, ^"^ Ante, §§ 69-72. ^°' Home Insurance & Banking Co. v. Lewis, 48 Tex. 622; Tripp V. Northwestern Live Stock Ins. Co., 91 Iowa, 278, 59 N. W. 1. '•^ Farmers' Loan & Trust Co. v. Aberle, 18 Misc. Rep. 257, 41 N. Y. Supp. 638. "° First Baptist Church v. Brooklyn Fire Ins. Co., 18 Barb. (N. Y.) 69: Cotton States Life Ins. Co. v. Edwards, 74 Ga. 220; Muhleman v. National Ins. Co., 6 W. Va. 508; ante, note 77. "^ Home Insurance & Banking Co. v. Lewis, 48 Tex. 622. "-Knauer v. Globe Mut. Life Ins. Co.. 16 Jones & S. (N. Y.) 454; Abraham v. North German Ins. Co., 40 Fed. 717. "' Schreiber v. German- American Hail Ins. Co., 43 Minn. 367; Eartlett v. Fireman's Fund Ins. Co., 77 Iowa, 155, 41 N. W. 601. § 88 ACTS, ADMISSIONS, AND DECLARATIONS. 189 does not bind the company. ^^^ Where the secretary and agent of the insurer with full knowledge of the premises, and without inquiring of the insured, put a value upon the prem- ises insured the company cannot complain of misrepresenta- tions as to the value. -^^^ The officers of an insurance company in Indiana, not authorized to do business in Illinois, in re- ceiving by mail an application from a person in Illinois for insurance in property there situated, issuing a policy thereon and sending it to Illinois, are chargeable with knowledge that they are participating in an act to be consummated by agents in Illinois forbidden by the laws of the latter state. Their knowledge is that of the company. ^^^ The requirements of a policy as to proofs of loss may be waived by a letter written by the secretary at the office of the company, as a reply of the company to a notice of loss, notwithstanding a provision of the policy that no officer, agent or representative can waive any condition except by a writing indorsed on the policy. Such provisions do not apply to the company itself. ^^^ The secretary of an insurance company may bind it by waiving the provisions of a policy, which gives it sixty days after proofs of loss have been made in which to pay.^^^ The acts of the president and secretary performed in the office of the company within the scope of their apparent power, whether they are written or verbal, whether they make a contract, waive a forfeiture or give consent, bind the company. ^^^ The "* Supreme Council of A. L. H. v. Green, 71 Md. 263, 17 Am. St. Rep. 527. "° Redford v. Mutual Fire Ins. Co.. 38 Up. Can. Q. B. 538. "• Indiana Millers' Mut. Fire Ins. Co. v. People, 65 111. App. 355. '" Powers V, New England Fire Ins. Co., 68 Vt. 390. "' Farmers' Mut. Fire Ins. Co. v. Ensminger, 12 Wkly. Notes Cas. (Pa.) 9; Georgia Home Ins. Co. v. Jacobs, 56 Tex. 366. ""Hartford Life & Annuity Ins. Co. v. Eastman, 54 Neb. 90, 74 N. W. 394; Dilleber v. Knickerbocker Life Ins. Co., 76 N. Y. 567; 190 AGENTS. § 89 financial collector of a local order of a mutual benefit society may extend the time in which members may pay their assess- ments, especially where his action is suj)ported by a custom of doing so without objection. ^^"^ A mutual company is bound by the action of its secretary in giving notice to a policy-holder. ^^^ SUBOEDINATE LoDGES, § 89. Subordinate lodges are usually agents of their grand lodge. In a mutual benefit life insm'ance company, the fact of membership carries with it the obligations derived from- the rules of the society as well as the obligations imposed by the general laws of insurance. A member is presumed to know and is bound by such rules and laws. Subordinate lodges cannot by the mere assumption of authority invest themselves with j)owers which they do not possess; nor will either an applicant for membership, or a member, be heard to assert in such subordinate lodges power or authority especially re- served in the constitution or by-laws to a superior lodge, except in cases Avhere custom or usage has established the right of the subordinate lodge to exercise such power and authority in the place of or on behalf of the superior body. The mere statement in the constitution or by-laws of a mutual organization composed of subordinate lodges and a grand lodge that the former are the agents of their members, and not the agents of the latter body, will not prevail over the legal effect of the actual status of the bodies toward each other as established by their general business transactions and rela- First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305; Marcus V. St. Louis Mut. Life Ins. Co.. 68 N Y. 625. "•'Whiteside v. Supreme Conclave I. O. H., 82 Fed. 275. "•Olmstead v. Farmers' Mutual Fire Ins. Co., 50 Mich. 200. § 89 SUBOEDINATE LODGES. 191 tions.^^^ A mutual benefit organization whose by-laws pro- vide that all applications for membership approved bv tlic local lodge and its medical examiner shall be forwarded to the grand officers of the order for approval, and that the order shall not be bound until a certificate be issued and signed by the grand president and grand secretary, is not liable upon the death of a person to whom such certificate had not is- sued, although he had been initiated into the order and paid the required dues and assessments, and the local lodge had failed to promptly forward his application;^"-^ but otherwise if the certificate had been delivered to the subordinate lodge Avhich neglected to deliver it to the member J ^^ A certificate of insurance in a mutual order will not be forfeited for a cause known to the subordinate lodge to which a member belonged, where such subordinate lodge thereafter, with full knowledge, continued to treat the insurance as in full force, receiving the member's dues and paying the money over to the supreme lodge. ^^^ The concealment by the officers of a subordinate lodge of the falsity of the answers of an applicant '"^ Lorscher v. Supreme Lodge, K. of H., 72 Mich. 316, 2 L. R. A. 206; Holland v. Taylor, 111 Ind. 122; Protection Life Ins. Co. v. Foote, 79 111. 361; Young v. Grand Council A. O. A., 63 Minn. 506; Austerlitz v. Order of Chosen Friends, 14 Nat. Corp. Rev. 630 (1897); Whiteside v. Supreme Conclave I. O. H., 82 Fed. 275; Clark v. Mutual Reserve Fund Life Ass'n, 14 App. (D. C.) 154, 43 L. R. A. 390; Sovereign Camp, W. of W., v. Rothschild, 15 Tex. Civ. App. 463, 40 S. AV. 553. '^^ Misselhorn v. Mutual Reserve Fund Life Ass'n, 30 Fed. 545; Kohen v. Mutual Reserve Fund Life Ass'n, 28 Fed. 705; Kendall v. Pacific Mut. Life Ins. Co., 10 U. S. App. 256, 51 Fed. 689; Mutual Life Ins. Co. v. Young's Adm'r, 23 Wall. (U. S.) 85, 23 L. Ed. 152; Elder v. Grand Lodge A. O. U. Wi (Minn.), 82 N. W. 987; Home Forum Ben. Order v. Jones, 5 Okla. 598, 50 Pac. 165. "* Lorscher v. Supreme Lodge K. of H., 72 Mich. 316, 2 L. R. A. 206. "" High Court I. O. F. v. Schweitzer. 171 111. 325, 49 N. E. 506. 192 AGENTS. § 90 for membership, cannot be charged to the applicant unless he requested the same.^^^ The failure of the secretary of a local subordinate branch or section to transmit to the general board of control, within the time specified by the general law of an order, moneys paid to him in due time by a member, will not be ground for forfeiture of the policy of such member, since the secretary's negligence is not chargeable to the member, but is that of an agent of the order, noj;withstanding a pro- vision in the general laws of the order to the effect that he is to be regarded as an agent of the member, and not of the order, where the general laws also require the member to pay dues to such secretary only, and provide that the secretary shall trans- mit immediately after the 10th of each month all moneys collected by him, and that the local branch shall be responsible to the board of control for all such moneys collected by the secretary. ^^'^ Special or Local Agents. § 90. Special or local agents of insurance companies have only limited powers within limited territory, except when particular power is granted to them to act in certain matters. The- terms "local" and "special" agents are often used interchangeably in speaking of the agents, other than gen- eral, of an insurance company. Properly spealdng, a special agent is one appointed for a particular purpose, and "« Knights of Pythias of the World v. Bridges, 15 Tex, Civ. App. 196, 39 S. W. 333. ""•Supreme Lodge 'k. P. v. Withers, 177 U. S. 260, 20 Sup. Ct. 612. But see Nassauer v. Susquehanna M. F. Ins. Co., 109 Pa. St. 509; Eilenberger v. Protective M. F. Ins. Co., 89 Pa. St. 464; Lycom- ing Fire Ins. Co. v. Ward. 90 111. 545; Indiana Ins. Co. v. Hartwell, 100 Ind. 566; North B. & M. Ins. Co. v. Crutchfield, 108 Ind. 518; Whiteside v. Supreme Conclave I. O. H., 82 Fed. 275; Campbell v. Supreme Lodge K. P. of W., 168 Mass. 397, 47 N. E. 109. § 90 SPECIAL OR LOCAL AGENTS. 193 a local agent is one of limited powers within a given and confined geographical area. To this class belong solicitors, brokers, medical examiners, agents to accept service of process, adjusters, appraisers, sub-agents and officers of insurance com- panies, except in cases where general or specific authority is granted by the charter, by-laws, conditions of policy, statutes, or necessities of the case. The acts, knowledge and represen- tations of such agents witliin the scope of their authority bind their principal. The term "local" -agent conveys no other meaning than that of an agent at a particular place or locality, but whether such agent has general or limited powers is not determined by simply calling him a local agent. The agents of insurance companies are scattered through the states in thousands. There are not only local agents appointed in every city and village, but also so-called general agents, who have charge of a large territory, and whose powers are usually much greater than those of a local agent. The actual powers of both classes of agents may be different from their apparent powers. It is essential to remember that so long as the agent acts within the apparent scope of his authority, the principal is bound by his acts, though they may be in excess of or viola- tive of his authority. ^^^ A special agency properly exists where there is a delegation of authority to do a single act or particular acts ; in contra- distinction to a general agency, where there is a delegation of power to do all the acts connected with a particular trade, business or employment. The authority of the agent must be deterpiined by the nature of the business and the apparent '=* Southern Life Ins. Co. v. Booker, 9 Heisk. (Tenn.) 607; Bohen V. Williamsburgh City Ins. Co., 35 N. Y. 131; Markey v. Mutual Ben. Life Ins. Co.. 103 Mass. 78; Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117; Eclectic Lifa Ins. Co. v. Fahrenkrug, 68 111. 463; Warner V. Peoria M. & F. Ins. Co.. 14 Wis. 345. KERR, INS.— 13 194 AGENTS. § 90 scope of liis employment therein. It cannot be narrowed by priyate or imdisclosed instructions unless there is something in the nature of the business or the circumstances of the case to indicate that the agent is acting under special instructions or limited powers. ■^^'^ The ordinary and usual powers of local agents are to solicit insurance, fix rates, issue policies, and collect premiums. They may, in many cases, bind the principal by their acts in issuing policies with knowledge of facts violating the condi- tions of the policy, by giving credit for premium, and by other acts generally done by them in the usual course of busi- ness. But whatever incidental powers local or special agents authorized to accept applications for insurance, fix premiums, and issue policies, may have in connexion with the issuance and conditions of a policy, or while the property insured is in existence, cease when the subject of the risk is destroyed; and, when a claim of loss is asserted, the proceedings to estab- lish and enforce such claim are not impliedly within the scope of such an agency. -^^^ AVhere an agent's authority expressly excluded the power to insure manufactories, and other special hazards, the mere circumstance that he had acted as local agent of the company was not equivalent to a declaration by it of authority in him to insure every kind of property and to exercise unlimited power. The proper inference would be that he had such powers only as were conferred by his com- mission, and could only insure in the mode required by the company's charter, in the absence of a custom or course of dealing to the contrary. ^^^ If the powers of an agent of a mutual company are limited to taking insurance, receiving '=° Bliss, Life Ins. §§ 277, 281 et seq.; cases supra. "" Ermentrout v. Glrard F. & M. Ins. Co., 63 Minn. 307, 30 L. R. A. 246. "^ Reynolds v. Continental Ins. Co., 36 Mich. 131. § 91 BROKERS AND SOLICITORS. 195 fees for the same, and receipting therefor, the fact tliat the policy was obtained by him, raises no legal presumption that he was authorized to receive assessments subsequently made.^^^ And one employed as a clerk or agent to solicit insurance and renewals of policies, and ^^ithout any authority, except such as might arise from the course and nature of his employment, is not authorized to waive the payment of a pre- mium on a contract for a renewal. -^^^ Brokers and Solicitors. § 91. Whether an insurance broker or an insurance solicitor is the agent of the insurer or of the insured must be deter- mined from the facts and circumstances of each case. This rule is subject to the statutory regulations before mentioned. The business of a broker is to serve as a connecting link be- tween the party who is to be insured and the party who is to do the insuring,— to bring about the meeting of their minds which is necessary to the consummation of the contract. In the discharge of his business he is the representative of both parties to a certain extent. The relation of a broker or a solicitor to insurer and in- sured, and whether he is the agent of the one party or the other in a given case, must depend on the facts and the circumstan- ces of that case. The broker or the solicitor may be the agent of either party to the contract, or he may be the agent of each party for certain purposes. Thus he may be the agent of the insured in making the application and representations as to llie property, and the agent of the insurer to deliver the policy and collect the premium. In any case he represents his principal within the scope of his authority and binds his principal by his acts, knowledge and representations within the scope of such authority. A solicitor is one who solicits in- "- Crawford County Mut. Ins. Co. v. Cochran, 88 Pa. St. 230. "= Hambleton v. Home Ins. Co., 6 Biss. 91, Fed. Cas. No. 5,972. 196 AGENTS. § 91 surance either witli or witliout precedent autliority from an insurer. A broker is one who procures insurance, and ne- gotiates between the insurer and the insured. In the absence of previous authority to represent an insurer, solici- tors and brokers are ordinarily agents of the insurer for the purpose only of collecting the premium and delivering the ix)licy. In other respects they are agents of the insured; ^^'^ and their powers as agents of the insurer end when the policy is delivered. ^^^ One soliciting insurance and taking the ap- plication, will, in the absence of notice to the contrary, be held the agent of the company which accepts the application,, issues the policy, and retains the premium. And the issuance of the policy under such circumstances estops the insurer to- deny his agency. -^^^ But the solicitor may properly be held the agent of the applicant for the purpose of holding a pre- mium note in escrow until the maker satisfies himself as to the conditions of the contract. ^^'^ Domat thus defines his functions : "The engagement of a broker is like to that of a. "^Arff V. Star Fire Ins. Co., 125 N. Y. 57; Union Ins. Co, v, Chipp, 93 111. 96; East Texas Fire Ins. Co. v. Brown, 82 Tex. 631; Security Ins. Co. V. Mette, 27 111. App. 324; Allen v. German American Ins. Co., 123 N. Y. 6; 2 Am. & Eng. Enc. Law (1st Ed.), 595; Gude v. Exchange Fire Ins. Co., 53 Minn. 220. In Bernheimer v. City of Leadville, 14 Colo. 518, 24 Pac. 332, is found a discussion as to who are brokers, and what insurance agents come within the terms of an ordinance providing for the payment of license fees by insurance brokers. See, also, Fromherz v. Yankton Fire Ins. Co., 7 S. D. 187, 63 N. W. 784; Wilber v. Williamsburg City Fire Ins. Co., 122 N. Y.. 439; Wood v. Firemen's Fire Ins. Co., 126 Mass. 316; Newark Fire Ins. Co. V. Sammons. 110 111. 166. "'Linderv. Fidelity & Casualty Co., 52 Minn. 304; Goldin v. Northern Assur. Co.. 46 Minn. 471. ""London & Lancashire Fire Ins. Co. v. Gerteson (Ky.), 51 S. W.. 617. "^Mehlin v. Mutual Reserve Fund Life Ass'n (Ind. T.), 51 S. W.. 1063. § 91 BROKERS AND SOLICITORS. 197 proxy, a factor, or other agent, but with this difference, that the broker being employed by persons, who have opposite in- terests to manage, he is, as it were, agent both for the one and the other, to negotiate the commerce and affair in which he concerns himself. Thus his engagement is two-fold, and consists in being faithful to all the parties in the execution of what everyone of them entrusts him wnth; and his power is not to treat, but to explain the intentions of both parties, and to negotiate in such a manner as to put those who employ him in a condition to treat together personally." ^^^ Story says this statement of the functions of a broker is "a full and exact description according to the sense of our law."^^^ Brokers — Agents of Insurer — Illustrations. If a broker acts on behalf of an agent of an insurance company and solicits insurance from parties, he is the agent of the company and his knowledge is imputed to it. But if the assured employs the broker to place the insurance for him, the broker is the agent of the assured and not of the insurance company. ^^^ In an Indiana case, an appli- cation for a line of insurance was made to an insurance broker in Chicago. He in turn applied to a firm of insur- ance brokers also in Chicago to place a portion of the insur- ance, no particular company being designated. This firm placed the insurance in part, and then forwarded to the agent of the defendant at Indianapolis a copy of the de- scription of the risk they had received with a blank fonn of application for insurance, without mentioning any par- "''Domat, Civil Law (Strahan's Translation), bk. 1, tit. 17, art. 1. ""Story, Agency (9th Ed.), P- 31, note 3; Hooper v. People, 155 U. S. 648, 15 Sup. Ct. 207; How v. Union Mut. Life Ins. Co., 80 N. Y. 32; Monitor Mut. Ins. Co. v. Young, 111 Mass. 537; Hartford Fire Ins. Co. v. Reynolds. 36 Mich, 502. ""Mohr & Mohr Di&tilling Co. v. Ohio Ins. Co., 13 Fed. 74. 19S AGENTS. . § 91 ticiilar company. Defendant tliroiigli said agent at Indian- apolis, who was secretary of the company, wrote up the policy and forwarded it to the firm of insurance brokers who de- livered it to the brokers from whom they received the appli- cation and he delivered it to the assured. The firm of insurance brokers in this instance, as on former occasions, Avith the knowledge and consent of defendant retained a portion of the premium for their services and remitted the balance to defendant. The court held the brokers were agents of defendant to the extent that it was bound by their knowledge of the premises insured.^^^ In another case the plaintiff contracted for insurance with one who was not an agent of defendant nor of its resident agents. Such person received from plaintiff the premium, which was transmitted, directly or indirectly, by him to the company, and a policy was returned through him, and by him delivered to plaintiff, and the court held that whether defendant, its resident agents or plaintiff, regarded such person as the agent of the insurer or not, he was such in the eye of the law, notwith- standing the policy provided that "any party, other than the assured, procuring the insurance, either at the office of the company or its agents, shall be considered the agent of the insured and not of this company. "^"^^ Where in pursuance of a circular issued by an insurance company offering com- missions for business procured, a broker applies for insur- ance on property of another to the general agent of the com- pany, receives the policy and is charged with the premium, such broker is agent of the company in securing the insurance, notwithstanding a provision of the policy that if it be pro- '« Indiana Ins. Co. v. Hartwell, 123 Ind. 177. ^" Bassell v. American Fire Ins. Co., 2 Hughes, 531, Fed. Cas. No. 1,094. 91 BROKERS AND SOLICITORS. 199 cured by a broker liG shall be considered the agent of the insured. ^'*^ Brokers — Agents of Insured — Illustrations. In a recent New York case, Peckham, J., says: "What is understood under the designation of an insurance broker is, one who acts as a middleman between the insured and the company, and who solicits insurance from the public under no employment from any special company; but having se- cured an order, he either places the insurance with the com- pany selected by the insurer, or in the absence of any selec- tion by him, then with the company selected by such broker. Ordinarily the relation between the insured and the broker is that between the principal and his agent, and according to Arnould on Insurance, (2d Ed. vol. 1, c. 5, p. 108), 'the business of a policy broker would seem to be limited to receiving instructions from his principals as to the nature of the risk and the rate of premium at which he wishes to insure, communicating these facts to the underwriters, ef- fecting the policy with them on the best possible terms for his employer, paying them the premium and receiving from them whatever may be due in case of loss.' "^''•* A broker or solicitor, if not in any way previously authorized by or con- nected with the insurer, is the agent of the insured in procur- ing the policy and in any representations he may make concerning the property. He is only the agent of the insurer to deliver the policy and collect the premium. ^^^ If the insured first places in the hands of an insurance broker, who ''• Gaysville Mfg. Co. v. Phoenix Mut. Fire Ins. Co., 67 N. H. 457, 3G Atl. 367. •"Arff V. Star Fire Ins. Co.. 125 N. Y. 57, 21 Am. St. Rep. 721. "'Gude V. Exchange Fire Ins. Co.. 53 Minn. 220; Fromherz v. Yankton Fire Ins. Co., 7 S. D. 187. 63 N. W. 784; Rahr v. Manchester Fire Assur. Co.. 93 Wis. 355, 67 N. W. 725; Wilber v. Williams- 200 AGENTS. ' § 91 is not tlie regular agent of a company, a written application for insurance, lie invests him with an indicium of agency and is bound bj statements he may make in the application, and cannot deny that he was his agent. -'^^ Where the in- sured filled out an application and gave it to an insurance agent with instructions to procure insurance in any good company, and such agent procured insurance on such appli- cation in a company other than his own, he was held to be the agent of the insured. ■'^'^ A broker is not the agent of the insurer in procuring insurance where, having no authority from or blanks of the insurer, he requests it to write a certain policy, which it does, and for his seiwices allows him a commission on the cash pre- mium received. ^^^ A broker in such case and independently of a statute on the subject, is the agent of the insured, and his acts and representations within his authority as such agent are binding upon the insured though for some purposes he may be the agent for the insurer. In Wisconsin he is the agent of one who employs him to procure insurance in respect to everything which does not conflict with his agency for the insurer as declared by Rev. St. Wis. § 1977, providing that whoever solicits insurance on behalf of an insurance corpora- tion or property o^vner shall be held an agent of such corpora- burgh City Fire Ins. Co., 122 N. Y. 439. See, also, John R. Davis Lumber Co. v. Hartford Fire Ins. Co.. 95 Wis. 226, 70 N. W, 86. '"Fame Ins. Co. v. Thomas, 10 111. App. 545; Kings County Fire Ins. Co. V. Swigert, 11 111. App. 590. "'Fame Ins. Co. v. Thomas, 10 111. App. 545; Seamans v. Knapp- Stout & Co. Company, 89 Wis. 171; How v. Union Mut. Life Ins. Co., 80 N. Y. 32. •" Seamans v. Knapp-Stout & Co. Company, 89 Wis. 171, 27 L. R. A. 362; Gude v. Exchange Fire Ins. Co., 53 Minn. 220; Freedman v. Providence Wash. Ins. Co., 182 Pa. St. 64, 37 Atl. 909; Allen v. Ger- man American Ins. Co., 123 N. Y. 6; Ben Franklin Ins. Co. -v^ Weary, 4 111. App. 74. § 91 BROKERS AND SOLICITORS. 201 lion to all intents and purposes, and lie may bind the insured in matters pertaining to the procurement of the policy. ■''^^ The loiowledge of a broker or mere soliciting agent is not chargeable to the insurer. ^^^ One ^vho at the request of the insured for other insurance in lieu of a canceled policy applied to another firm of insurance brokers and received from them a policy which he delivered to the insured is not the agent of the company issuing the last policy. ^^^ A broker employed by insured to procure a policy has no im- plied authority to collect the premium for the company after the delivery of the policy, although the company in- trusted the policy to him for delivery. ^^^ An agent or T3roker of a fire insurance company having power and author- ity to deliver a policy issued by it and to receive the premium thereon, has no authority nor is it within the apparent scope of his authority to bind the company by subsequently altering the contract of insurance by the insertion of a clause binding the company to pay the loss to one other than the insured, although such policy was w^ritten for the assured on the application of the agent. ^^^ Solicitors. One who on his own behalf solicits insurance, submits applications to a company, and, if accepted, receives the pol- "' John R. Davis Lumber Co. v. Hartford Fire Ins. Co., 95 Wis. 226, 70 N. W. 84; American Fire Ins. Co. v. Brooks, 83 Md. 22. 34 Atl. 373; Standard Oil Co. v. Triumph Ins. Co., 3 Hun (N. Y.), 591; Lange v. Lycoming Fire Ins. Co., 3 Mo. App. 591; Blackburn, Low & Co. V. Vigors, 17 Q. B. Div. 553. ""Fromherz v. Yankton Fire Ins. Co., 7 S. D. 187, 63 N. W. 784; Gude V. Exchange Fire Ins. Co., 53 Minn. 220, and cases in preced- ing notes. In an extreme case, Illinois held the contrary. Union Ins. Co. V. Chipp, 93 111. 96. ^'■'- State V. Johnson, 43 Minn. 350. ''= Citizens' Fire Ins. Co. v. Swartz, 21 Misc. Rep. 671, 47 N. Y. .Supp. 1107. '"Duluth Nat. Bank v. Knoxville Fiie Ins. Co., 85 Tenn. 76. 202 AGENTS. § 91 icy, and on its delivery collects tlie premium T\diicli he pays, over to the company, receiving a commission thereon, without any antecedent authority to act for such insurer, has not,, in the absence of statutory provision or some custom or mode of transacting business on the part of the insurer which would warrant the insured in believing him to be invested with, greater powers, authority to bind the company by his oral contract to insure, nor to consent to the procurement of additional insurance, nor to waive any of the terms or conditions of the policy, nor does his knowledge bind the company. Such an agent is the representative of the com- pany only for the purposes of delivering the policy and col- lecting the premium, and when that is done his agency ceases. •'^^ But when an insurance company appoints a solic- itor its agent to solicit, take and transmit to it applications for insurance to be by it accepted or rejected the rule is reversed^ and the solicitor must be deemed the agent of the company in all that he does in preparing the application and in any repre- sentation he may make as to the character or effect of the statements therein contained ; and this rule is not changed by a stipulation in the policy subsequently issued that the acts of such agent in making out the application shall be deemed the acts of the insured. ^^^ '=^'Gude V. Exchange Fire Ins. Co., 53 Minn. 220; Goldin v. North- ern Assur. Co., 46 Minn. 471; People v. People's Ins. Exchange, 126 111. 466, 2 L. R. A. 340; Wilkins v. State Ins. Co., 43 Minn. 177; Northriip v. Piza, 43 App. Div. 284, 60 N. Y. Supp. 363. ''' Deitz V. Providence Wash. Ins. Co., 31 W. Va. 851, 33 W. Va, 526; Phoenix Ins. Co. v. Stark, 120 Ind. 444; Rogers v. Phenix Ins. Co., 121 Ind. 570; Niagara Ins. Co. v. Lee, 73 Tex. 641; Crouse v. Hartford Fire Ins. Co.. 79 Mich. 249; Southern Life Ins. Co. v. Mc- Cain, 96 U. S. 84; Kister v. Lebanon Mut. Ins. Co., 128 Pa. St. 558, 5 L. R. A. 646; Hoose v. Prescott Ins. Co., 84 Mich. 309, 11 L. R. A, 340; Whitney v. National Masonic Ace. Ass'n, 57 Minn. 472. § 91 BROKEKS AND SOLICITORS. 203 Powers of Solicitor — Illustrations. An insured is cliargeable with knowledge of the limitations upon the powers of a soliciting agent, and 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 is situated ; ^^*^ and witli knowledge that he cannot consent to an assignment of the policy. ^^^ lie has no au- thority to bind the company by declarations as to the validity of the certificate or as to the rights and liabilities of the company, when not^made in the discharge of his duty as agent in the transaction in question ;^^^ nor accept the sur- render of a policy. ^^^ He cannot bind his principal by a contract of insurance unless there is proof of his authority ; ^®^ has no power to construe an application for insurance and a premium note, nor to declare their legal effect ;^*^^ cannot waive a forfeiture of any of the conditions of the policy ;^^- cannot consent to additional insurance. ^®^^ An agent au- thorized to solicit and receive applications for insurance has no power to accept an application and bind his principal by a statement made to the applicant that the risk attached at a certain moment. ^"^^ An agreement to procure a policy to be issued, does not create a present liability against the com- 156 Dryer v. Security Fire Ins. Co., 94 Iowa, 471, 62 N. W. 798. '" Strickland v. Council Bluffs Ins. Co., 66 Iowa, 466, 23 N. W. 926. But see Fitchner v. Fidelity Mut. Fire Ass'n (Iowa), 68 N. W. 710. '■•^ Schoep V. Bankers' Alliance Ins. Co., 104 Iowa, 354, 73 N. W. 825. ^'^ Susquehanna Mut. Fire Ins. Co. v. Swank, 102 Pa. St. 17. '«" Todd V. Piedmont & A. Life Ins. Co.. 34 La. Ann. 63. '"' Winchell v. Iowa State Ins. Co., 103 Iowa. 189, 72 N. W. 503. 1" Hansen v. Citizens' Ins. Co., 66 Mo. App. 29; Torrop v. Imperial Fire Ins. Co., 26 Can. Sup. Ct. 585. "-" Heath v. Springfield Fire Ins. Co., 58 N. H. 414. '"Stockton V. Firemen's Ins. Co., 33 La. Ann. 577; Summers v. Commercial Union Assur. Co.. 6 Can. Sup. Ct. 19. 204: AGENTS. § 92 panj.^*'^ An iinder^ATiter is not bound by notice of a fact to its solicitor ;^^^ nor by notice after the policy has issued, to one v:ho effects insurance under no employment by it, but for a commission paid by it to him for such risks as he obtains and it chooses to accept. In such case his agency ceases with the delivery of the policy. ^^® Stipulations in" Policy Regulating Agency. § 92. The actual status of an agent of the insurer, as to nxat- ters precedent to the issuance of the policy, is not affected by stipulations in the policy making him the agent of the insured. The authorities are divided on this question, but the above rule is expressive of the preponderance of the law on the sub- ject. And indeed, it seems most consonant with justice and reason, that an insurer should not be heard to deny that it is represented by those whom it hires and sends out as its agents, or that such agents have powers necessary to the transaction of its business. The true status of an agent and his legal relation to both insurer and insured can be better de- termined from a consideration of his business dealings and relations with both parties than from the terms of a policy. of the contents of which the insured had no information or knowledge until after its delivery. ^^'^ After the courts had generally established this doctrine, €. g. that soliciting agents of insurance companies are agents of insurer and not of insured, many of the insurance com- panies, in order to obviate it, adopted the ingenious device ^•'^ Farmers' & Merchants' Ins. Co. v. Graham. 50 Neb. 818. 70 N. W. 386. ""' Tate V. Hyslop, 15 Q. B. Div. 268. ""■Devens v. Mechanics' & Traders' Ins. Co., 83 N. Y. 168; Heath y. Springfield Fire Ins. Co., 58 N. H. 414. !•' Ante, notes 1-6. § 92 STIPULATIONS IN POLICY REGULATING AGENCY. 205 of inserting a provision in tlie policy that the application, by whomsoever made, whether by the agent of the company or any other person, should be deemed the act of the insured and not of the insurer. But, as has been well remarked, "A device of words cannot be imposed upon a court in place of an actuality of facts." The real situation cannot be hidden in this manner. Such a clause is no part of a contract. It is an attempt to reverse the law of agency, and to declare that a party is not bound by his agent's acts. Whether one is an agent of another is a question of mixed law and fact, depend- ing on the authority given expressly or impliedly. And when a contract is, in fact, made through the agent of a party, the acts of that agent in that respect are binding on his prin- cipal. It w^ould be a stretch of legal principles to hold that a person dealing Avith an agent, apparently clothed with authority to act for his principal in the matter in hand, could be affected by notice, given after the negotiations were completed, that the party with whom he had dealt should be deemed transformed from the agent of one party into the agent of the other. To be efficacious, such notice should be given before the negotiations are completed. The application precedes the policy, and the insured cannot be presumed to know that any such provision will be inserted in the latter. To hold that, by a stipulation unknown to the insured at the time he made the application, and when he relied upon the fact that the agent was acting for the company, he could be held responsible for the mistakes of such agent, would be to impose burdens upon the insured -ikvhich he never anticipated. Hence if the agent was the agent of the company in the matter of making out and receiving the application, he cannot be converted into an agent of the insured by merely calling him such in the policy subsequently issued ; nor is there any differ- ence between stock and mutual insurance companies in this 206 ' AGENTS. § 92 respect. It was formerly held in New York^^^ that where tlie insured had contracted that the person who procured the insurance should he deemed his agent, he must be bound by the agreement; but in subsequent cases^^^ tliis doctrine was '°^» Rohrbach v. Germania Fire Ins. Co., 62 N. Y. 47, 20 Am. Rep. 451; Alexander v. Germania Fire Ins. Co., 66 N. Y, 464. '""Whited V. Germania Fire Ins. Co., 76 N. Y. 415, 32 Am. Rep. 330; Sprague v. Holland Purchase Ins. Co., 69 N. Y. 128. In Pat- ridge V. Commercial Fire Ins. Co., 17 Hun (N. Y.), 95, it was said of the agency clause: "This is a provision which deserves the con- demnation of courts, whenever it is relied upon to work out a fraud, as it is in this case." In Continental Ins. Co. v. Pearce, 39 Kan. 396, 18 Pac. 291, it is said: "This is but a form of words to attempt to create on paper an agency, which in fact never existed. * * » The real fact, as it existed, cannot be hidden in this manner; much less can it be destroyed, and something that did not in reality exist be placed in its stead. The substance is superior to the mere drap- ery of words with which one party wishes to bring into existence and clothe an unreal authority." In Indiana it is also held that a recital in the policy that the broker obtaining an insurance is the agent of the insured is not conclusive upon that subject. Indiana Ins. Co. v. Hartwell, 100 Ind. 566. In North British & M. Ins. Co. v. Crutchfield, 108 Ind. 518, 9 N. E. 458, the agency clause was held to be absolutely void as applied to a local agent, upon whose counter signature the validity of the policy, by its terms, was made to de- pend. In Boetcher v. Hawkeye Ins. Co., 47 Iowa, 253, it was held that, if the assured had the right to believe the soliciting agent was the agent of the company, the insertion of a clause in the policy providing that he was the agent of the assured constituted a fraud upon the latter, of which the company could not take advantage. Nassauer v. SuSQuehanna M. & F. Ins. Co., 109 Pa. St. 509; Kister v. Lebanon Mut. Ins. Co., 128 Pa. St. 553, 5 L. R. A. 646; Lycoming Fire Ins. Co. v. Ward, 90 111. 545; Kausal v. Minnesota Farmers' Mut. Fire Ass'n, 31 Minn. 17; Planters' Ins. Co. v. Myers, 55 Miss. 479, 30 Am, Rep. 521; Schunck v. Gegenseitiger Wittwen & Waisen Fond, 44 Wis. 369; Grace v. American Cent. Ins. Co., 109 U. S. 278, 3 Sup. Ct. 207; Whiteside v. Supreme Conclave I. 0. H., 82 Fed. 275; Supreme Lodge K. P. v. Withers, 177 U. S. 260, 20 Sup. Ct. 615; McElroy v. British American Assur. Co. (C. C. A.), 94 Fed. 990; Arff V. Star Fire Ins. Co., 125 N. Y. 57. See, contra, Campbell v. Su- preme Lodge K. P. of the World, 168 Mass. 397, 47 N. E. 109; Wilber V. Williamsburgh City Fire Ins. Co., 122 N. Y. 439. § 92 STIPULATIONS IN POLICY KEGULATING AGENCY. 207 lield to be limited to such acts as the agent performed in the obtaining of the policy and not applicable to renewals. But while such stipulations are ineffectual to change the status of one who is in fact the agent of the insurer so as to make him instead the agent of the insured, they are valid and effective as controlling the status of persons operating on their own account or on behalf of the assured, and not representing the insurer in procuring the insurance. ^"^^ In a Maryland case, the agent of a company which had issued a policy on the property was applied to for a renewal thereof. He declined to accept the risk entire, but issued a policy for a portion of the amount desired and procured a policy in defendant company for a similar amount. Both policies came to insured tlirough one not an agent of de- fendant to whom payment of the premium was made. The policy issued by it provided that "any person, other than the assured, wdio may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in the policy, and not of this company, under any circumstances whatever, or in any transaction relating to this insurance." The court held that these facts formed a proper basis for the application of the provision quoted, and de- fendant was not bound by the acts of the agents of the other company. ^'^^ ""Kister v. Lebanon Mut. Ins. Co., 128 Pa. St. 553, 5 L. R. A. 646; Davis V. Aetna Mut. Fire Ins. Co., 67 N. H. 335, 27 Ins. Law J. 549, 39 Atl. 902; Estes v. Aetna Mut. Fire Ins. Co., 67 N. H. 462, 33 Atl. 535; Sowden v. Standard Ins. Co., 44 Upper Can. Q. B. 95, 5 Ont. App. 290; Fowler v. Preferred Ace. Ins. Co., 100 Ga. 330, 28 S. E. 398; Globe Mut. Life Ins. Co. v. Wolff, 95 U. S. 329; New York Life Ins. Co. V. Fletcher, 117 U. S. 519. •^Atlantic Ins. Co. v. Carlin. 58 Md. 336; Wilber v. Williamsburgh City Fire Ins. Co.. 122 N. Y. 439. 208 AGENTS. § 93- Agents of Mutual Compakies. § 93. There is no diflFerence in this regard between the pow- ers of agents of stock and agents of mutual companies prior to the delivery and acceptance of the policy. It is often contended that tlie difference in tlie character of "stock" and "mutual" insurance companies makes a differ- ence in the relative duties of the applicant and the company^ and in the authority of the agents employed ; that in the case of a mutual company, the application is in effect not merely for insurance, but for admission to membership, — the appli- cant himself becoming a member of the company upon the is- suance of the policy. This distinction is usually based upon the ground thut the stipulations held binding upon the in- sured are contained in the charter or by-laws of the company, and that a person applying for membership is conclusively bound by the terms of such charter and by-laws. It is true that in the case of a mutual company the insured becomes in theory a member of the company upon the issuance of the pol- icy. But in applying and contracting for insurance, the ap- plicant and the company are as much two distinct persons as in the case of a stock company, and there is no reason for holding the agent who takes the application any less the agent of the insurer in the one case than in the other. The member- ship does not begin until the policy is issued. As to all previous negotiations the agent acts only forthe company.^'^^^ But after '"'* Russell V, Detroit Mut. Fire Ins. Co.. 80 Mich. 407, 45 N. W. 356; Grace v. American Cent. Ins, Co., 109 U. S. 278, 3 Sup. Ct. 207; Harle v. Council Bluffs Ins. Co., 71 Iowa. 401, 32 N. W. 396; Kister V. Lebanon Mut. Ins. Co., 128 Pa. St. 553; Boetcher v. Hawkeye Ins. Co., 47 Iowa, 253; Planters' Ins. Co. v. Myers, 55 Miss. 479; Deitz V. Providence Wash: Ins. Co., 31 W. Va. 851, 33 W. Va. 526; Newark Fire Ins. Co. v. Sammons, 110 111. 166; Coles v. Jefferson Ins. Co., 41 W. Va. 261, 23 S. E. 732; American Fire Ins. Co. v. Brooks, 83 Md. 22, 34 Atl. 373; Sullivan v. Phenix Ins. Co., 34 Kan. § 94 STIPULATIONS IN APPLICATION. 2U9 an applicant has accepted a policy in a mutual company and has thereby become a member he is bound by all the stipula- tions in the policy and all the conditions and provisions of the charter and by-laws. He is chargeable with notice and knowl- edge of, and is conclusively presumed to know, the extent and limitations of the agent's x^ower and authority as fixed by the charter or by-law^s.^'^^ Stipulations in Application Regulating Agency. § 94. An applicant for a policy of insurance is bound by a stipulation in his written application that a third person par- ticipating in the negotiations shall, for the purposes of procur- ing the policy, be deemed his agent, and not the agent of the insurer. Where an insurance policy is based upon a written applica- tion such application is the initial step towards the consumma- tion of the contract. It is in itself an agreement of the parties, wherein they are privileged, unless prevented by statute, to make such stipulations as they choose concerning the conduct of subsequent negotiations and proceedings ; and no principle of law is violated by enabling the parties to say who are the agents of each party, and what shall be the status of agents. 170; Kausal v. Minnesota Farmers' Mut. Fire Ins. Ass'n, 31 Minn. 17; Joyce, Ins. § 393; May, Ins. § 139 et seq. "^Morawetz, Priv. Corp. §501; Bacon, Ben. Soc. 426; Niblack, Mut. Ben. Soc. §§ 12, 166; Miller v. Hillsborough Mut. Fire Assur. Ass'n, 42 N. J. Ea. 461; Leonard v. American Ins. Co., 97 Ind. 299; Brewer v. Chelsea Mut. Fire Ins. Co., 14 Gray (Mass.), 209; Mer- serau v. Phoenix Mut. Life Ins. Co., 66 N. Y. 274; Sovereign Camp W. of W. V. Rothschild, 15 Tex. Civ, App. 463, 40 S. W. 553; Manufact- urers' & Merchants' Mut. Ins. Co.~v. Gent, 13 111. App. 308; Coles v. Iowa State Mut. Ins. Co., 18 Iowa, 425; Mitchell v. Lycoming Mut. Ins. Co., 51 Pa. St. 402; Bauer v. Samson Lodge, K. P., 102 Ind. 262; Fugure v. Mutual Soc. of St. Joseph, 46 Vt. 362; Fitzgerald v. Metropolitan Ace. Ass'n. 106 Iowa, 457, 76 N. W. 809; ante, note 122, "Subordinate Lodges as Agents." KERR, INS.— 14 210 AGENTS. § 94 The reasoning in supiDort of the rule laid down in thfe previous section, is based upon the theory that the insured has no knowl- edge of stipulations in the policy regulating agency until the contract is completed, and that such stipulations are not brought to his notice till the pohcy is delivered. But this reasoning has no relevancy in a discussion of the rights of the parties to stipulate for themselves in the application. It is competent for any party or corporation to employ an agent in the negotiation of a contract, whether of insurance or other- wise, and to amplify or limit the powers of such agent. And if an aj)plicant signs a contract making a solicitor his agent in the matters then pending, he is held to have knowledge of its contents ; and he w^ill not be heard to say after Ms application has been accepted and acted on, that he did not know the con- tents of his proposal upon which the subsequent contract is based ; he is estopped to assert such a claim in a suit wherein he relies upon and seeks to enforce such contract. It may well be argued in certain cases that fraud will justify the rescis- sion of the contract where the applicant can bring himself within the rules of law entitling him to relief from a contract which he did not intend to make ; but one cannot be heard to assert and disaffirm his contract in the same action. He must take it cum onere or reject it altogether. He cannot main- tain his action on the policy, issued upon his proposal, and at the same time repudiate the terms of his proposal. A pro- vision of an application that the person taking it and the medical examiner shall be and are the agents of the applicant and not the agents of the insurer in the preparation of the application and as to all statements and answers contained therein is binding upon the insured ; and false statements and answers are chargeable to and imputed to the insured even though he answered the questions truthfully and the § 94r STIPULATIOiS'S REGULATING AGENCY. 211 false answers were inserted by the agent without the knowl- edge of the insured. ^"^^ Limitations of Rule. A provision in an application making a general agent of the insurer the agent of the insured cannot change the legal status of the agent. ^''■^ The declarations made bj a medical ex- aminer in his letter to his insurance company, as to the habits of the applicant,, are not binding upon the latter notwith- standing the fact that the application provides that the medi- cal examiner is the agent of the applicant in filling up the same, and the applicant knew that under certain conditions a letter was to be written to the company by the medical ex- aminer in relation to the application and the examination. ^'^'^ The stipulation in an application that "the application has been made, prepared, and written by the applicant, or by his own proper agent" does not make the agent of the insurer, who "==New York Life Ins. Co. v. Fletcher. 117 U. S. 519; Maier v. Fi- delity Mut. Ins. Ass'n (C. C. A.), 78 Fed. 5G6; Ward v. Metropolitan Life Ins. Co., 66 Conn. 227; Ketcham v. American Mut. Ace. Ass'n, 117 Mich. 521, 76 N. W. 5; McCoy v. Metropolitan Life Ins. Co., 133 Mass. 82; Flynn v. Equitable Life Assur. Soc, 67 N. Y. 500; Lee v. Guardian Life Ins. Co., 2 Cent. Law J. 495; Messelback v. Norman, 122 N. Y. 578; Globe Mut. Life Ins. Co. v. Wolff, 95 U. S. 329; Knick- erbocker Life Ins. Co. v. Norton, 96 U. S. 240; Hubbard v. Mutual Reserve Fund Life Ass'n, 80 Fed. 681; Bernard v. United Life Ins. Ass'n, 14 App. Div. (N. Y.) 142, 43 N. Y. Supp. 527; Chamberlain v. Prudential Ins. Co. (Wis.), 85 N. W, 128; Wilber v. Williamsburgh City Fire Ins. Co., 122 N. Y, 439; Walsh v. Hartford Fire Ins. Co., 73 N. Y. 5; Clevenger v. Mut. Life Ins. Co., 2 Dak. 114, 3 N. W. 313. See post, note 218; Ebert v. Mutual Reserve Fund Life Ass'n, 81 Minn. 116, 83 N. W. 507. "'Coles V. Jefferson Ins. Co., 41 W. Va. 261, 25 Ins. Law J. 247, 23 S. E. 722. "° Massachusetts Ben. Life Ass'n v. Robinson, 104 Ga. 256, 7 Ins. Law J. (N. S.) 1003, 42 L. R. A. 261; Endowment Rank, K. P., v. Cogbill. 99 Tenn. 28. 26 Ins. Law J. 920. 41 S. W. 340. 212 AGENTS. § US' solicits the insurance, the agent of tlie insured for tlie purpose of taking the ai)plication, so that the insured "will be bound bj the mistake or fraud of the agent in transcribing his answers to the questions in the application,^'''^ Befoke Issuance of Policy, § 95, An insurer is always bound by the acts, knowledge, fraud, mistake and representations of its agents while they act within the scope of their real or apparent authority. The insurer is chargeable with the knowledge of its agent, (a) Acquired by him in the line of his duty, or (b) Had in mind by him during the discharge of his duty. Notice to an insurance agent, at the time of receiving an ap- plication or issuing or renewing a policy, of facts material to the risk is notice to the insurer. The great preponderance of decided cases hold that the agents of an insurance company authorized to procure appli- cations for insurance and to forward them to the company for acceptance are the agents of the insurers, and not of the in- sured, in all that they say or do in procuring or preparing the applications. Public policy and good faith require that the persons clothed by the insurance companies with power to examine proposed risks, and fill out^ receive, and approve applications for insurance, shall bind their principals by acts done and knowledge acquired by them in the execution of such power. ^'^'^ "''O'Farrell v. Metropolitan Life Ins. Co., 22 App. Div. 495, 48 N. Y. Supp. 199; rehearing denied in 48 N. Y. Supp. 695. ^"Home Fire Ins. Co. v. Gurney, 56 Neb. 306, 76 N. W. 553; Home Fire Ins. Co. v. Fallon, 45 Neb. 554; Kausal v. Minnesota Farmers' Mut. Fire Ins. Ass'n, 31 Minn. 17, and cases cited; Quinn v. Metro- politan Life Ins. Co. 10 App. Div, 483, 41 N. Y. Supp. 1060; Tooker V. Security Trust Co., 26 App. Div. 372, 49 N, Y. Supp. 814; Metro- politan Ace. Ass'n V, Clifton, 63 111. App. 197; Coles v. Jefferson Ins, Co., 41 W. Va. 261, 23 S. E. 732; Marston v. Kennebec Mut. Life Ins. Co., 89 Me. 266, 36 Atl. 389; German Ins. Co. v. Gray, 43 Kan. 497, 8 L. R. A, 70; Equitable Life Ins. Co, v. Hazel wood, 75 Tex, 338, 7 § 95 BEFORE ISSUANCE OF POLICY. 213 Acts of Agents. If the agent of insurer assumes the responsibili tj of valu- ing the property he insures, and was not influenced bv the rep- resentations or refusal of the insured to answer questions, the eonipanv is bound. ^"^ "When the insured signs the ap- plication in blank and the agent of the insurer, without au- thority or direction from insured, fills out the blanks therein, the company cannot take advantage of any misstatements contained in it.^^^ If the agent of insurer writes the answers concerning the title of insured to the property without making inquiries of him the question of waiver is for the jury, notwithstanding a provision in the policy declaring that it shall be void if the true state of the title is not dis- closed. •'^^ An insurer cannot take advantage of the fact that its agent who took the application for the insured, signed the latter's name thereto with his authority ;^^^ and after re- ,ceiving a premium and issuing a policy therefor based on an apj)lication filled up by its authorized agent, is estopped to set up false answers therein, unless the applicant was aware at the time the answers were being written, or before signing the application, that they were written falsely to defraud the company. ^^^ L. R. A. 217; Continental Life Ins. Co. v. Chamberlain, 132 U. S. 304. There is no difference in this particular between agents of stock and mutual companies; nor between regularly appointed and statutory agents. Bourgeois v. Northwestern Nat. Ins. Co., 86 Wis. 609, 57 N. W. 348; Boyle v. Northwestern Mut. Relief Ass'n, 95 Wis. 312, 70 N. W. 351; Continental Life Ins. Co. v. Chamberlain, supra. m Perry v. Mechanics' Mut. Ins. Co., 11 Fed. 485. ''" Kingston v. Aetna Ins. Co., 42 Iowa, 46. "" Dahlberg v. St. Louis Mut. F. & M. Ins. Co., 9 Mo. App. 584. "'Prudential Ins. Co. v. Cummins' Adm'r, 19 Ky. Law Rep. 1770, 27 Ins. Law J. 637, 44 S. W. 431. '"■ Southern Ins. Co. v. Hastings, 64 Ark. 255, 41 S. W. 1093. 2U AGENTS. § 95 "What Knowledge of Agent Binds Insurer. A principal is bound witli notice of sucli facts as come to his agent's knowledge wliile acting within the scope of his agency, or had in mind by the agent while discharging his duty. Knowledge acquired by an agent in the taking or preparation of an application, or in and about the issuing of a policy in connection with the subject matter thereof, is imputed to the insurer. And the insurer is chargeable with the soliciting agent's knowledge concerning the falsity of statements made in the application. ^^^ And notice to an agent's clerk is notice to the agent and hence to the prin- cipal. ^^^ But a provision that the agent's knowledge of the falsity of any statement made by the assured shall not affect the company's right to declare the policy void on account of a breach of warranty is binding on the assured. ^^^ In order to avoid the effect of a condition against prior insurance, proof that the agent who took the application was put upon inquiry is insufiicient. It must be slio\vn that the agent ac- tually knew of outstanding insurance. He cannot be held to have such knowledge where he mistakenly supposed the "' German Ins. Co. v. Gray, 43 Kan. 497, 8 L. R. A. 70; Kauffman v. Robey, 60 Tex. 308; Massachusetts Life Ins. Co. v. Eshelman, 30 Ohio St. 657; Smith v. Niagara Fire Ins. Co., 60 Vt. 682, 1 L. R. A. 217; McGurk v. Metropolitan Life Ins. Co., 56 Conn. 528, 1 L. R. A. 563; Wade, Notice, § 687; Stone v. Hawkeye Ins. Co., 68 Iowa, 737; Phenix Ins. Co. v. Searles, 100 Ga. 97, 27 S. E. 779; Richmond v. Niagara Fire Ins. Co., 79 N. Y, 230; Mullin v. Vermont Mut. Fire Ins. Co., 58 Vt. 113; Couch v. Rocliester German Fire Ins. Co., 25 Hun (N. Y.), 469; Forward v. Continental- Ins. Co., 142 N. Y. 382, 2h L. R. A. 637. '"' Bennett v. Council Bluffs Ins. Co., 70 Iowa, 600, 31 N. W. 948. ^'^ Hutchison v. Hartford Life & Annuity Ins. Co. (Tex.), 39 S. W. 325; Ebert v. Mutual Reserve Fund Life Ass'n, 81 Minn. 116, 83 N. W. 507. § 95 BEFORE ISSUANCE OF POLICY. 215 other insurance to have lapsed ; ^^'^ and the knowledge must be of matters mentioned in the policy and application. ^^^ A different rule obtains in South Carolina, where it is* held that an insurer cannot claim a forfeiture of a policy for violation of its conditions, if the agent who issued the policy had information which, if i>ursued, would have led to actual knowledge of the existence of the facts on account of which the forfeiture was claimed, even though he did not have any actual knowledge at the time of issuing the pol- {Qj^rss Knowledge of a fact- received by an agent at a time when he is not acting as such, if actually had in mind by the agent when he subsequently acts for his principal, will, as respects that transaction, be imputed to the principal ; ^^^ but the agent's knowledge of matters affecting the risk acquired while attending to his own affairs will not be chargeable to his principal unless it was present in his mind when the policy was issued, or when, in the line of his duty to his prin- cipal, he did some act recognizing the validity of the policy after its issuance. ^^"^ The insurer is not chargeable with notice of a chattel mortgage on the insured property though its agent who issued the policy had previously acquired knowledge of the mortgage in the capacity of notary public "» Steele v. German Ins, Co., 93 Mich. 81, 18 L. R. A. 85. »"Enos V. Sun Ins. Co., 67 Cal. 621; Traders' Ins. Co. v. Cassell (Ind. App.), 50 Cent. Law J. 248. In Mississippi it is held that no- tice to an agent whose authority is limited to soliciting, receiving, and submitting applications, and delivering policies and collecting premiums, that one who is about to insure a general stock of mer- chandise keeps gunpowder in his store, is not notice to the prin- cipal. Liverpool & L. & G. Ins. Co. v. Van Os, 63 Miss. 431. "' Gandy v. Orient Ins. Co., 52 S. C. 224, 29 S. E. 655. "'Wilson V. Minnesota Farmers' Mut. Fire Ins. Ass'n, 36 Minn. 112. '"o Phoenix Ins. Co. v. Flemming, 65 Ark. 54, 39 L, R. A. 789. 216 AGENTS. § 95 and attorney for tlie insured. ^^-^ Knowledge of tlie condi- tion of property acquired by an agent in connection with his duties as agent of another company, some days before tlie issuing of the policy in suit, does not create the presumption that he knew the previous condition still existed when he issued the latter policy, and that he intended to waive any provisions of the policy, when it further appears that the insured had previously agreed to put the property into the condition required by the policy ;^^^ but the mere fact that several months have elapsed between the time when an agent received notice of the condition of property insured and the issuing of the policy, the notice coming in the course of the negotiations for the placing of the insurance does not as a matter of law disconnect the notice and the policy. ^^^ No- tice received by the secretary of the insurer through an agent of the company at a different place than that where the prop- erty was situated and after the issuance of the policy, of the fact that a cotton gin was maintained in the insured building, is not such a notice as compelled the insurer to claim a for- feiture immediately.^^* It is not a reason for the avoidance of a policy that there was a failure to state all the material facts in the application, when such facts were known to the insurer's agent w^ho Avrote the application ; ^^^ nor that the premises were used for purposes other than those set forth in the application and policy when the agent had full knowl- "1 Shaffer v. Milwaukee Mechanics' Ins. Co., 17 Ind. App. 204, 46 N. E. 557. i»* Merchants' Ins. Co. v. New Mexico Lumber Co., 10 Colo. App. 223, 26 Ins. Law J. 969. 51 Pac. 174. 193 Weber v. Germania Fire Ins. Co., 16 App. Div. 596, 44 N. Y. Supp. 976. "* Texas Banking & Insurance Co. v. Hutchins, 53 Tex. 61. "='Post, note 199; Aetna Life Ins. Co. v. Paul, 10 111. App. 431. § 90 WHAT AN AGENT MAT WAIVE. 217 edge of all the uses when he received the application. '^^^ If a policy is issued solely npon the judgment of the agent of the insurer after an inspection of the premises covered by it, his knowledge as to the character of the property and the man- ner of its use before it Avas insured is the knowledge of tlio company. ^'^'^ What an Agent mat Waive. § 96. Since the acts and knowledge of the agent, within the limitations already defined, are chargeable to and bind his principal, and Since, as we shall hereafter see, the insurer waives (a) The existence of prohibited conditions in, or (b) Forbidden use of the property insured by issuing a policy with knowledge of such conditions or use, it follows: ri) That an agent authorized to issue policies can bind his principal by insuring property with actual knowledge of a breach of the conditions of the policy: and that (2) The issuing or renewing of a policy of insurance by an agent who has knowledge of an existing breach of conditions is a waiver by the insurer of such breach: and (3) Will estop the insurer from insisting upon a for- feiture on account of such breach. From what has already been said, it is evident that all knowledge concerning the condition, use, ownership, occu- pancy or title of property about to be insured, and all knowl- edge of any facts concerning a life about to be insured, and all knowledge in any way material to or in any manner affect- ing the risk about to be insured, whatever be tlie form or nature of the insurance, which comes to an agent whether in soliciting insurance, or in receiving applications, or in or >»'' Imperial Fire Ins. Co. v. Shimer, 96 111. 580. But see Birming- ham Fire Ins. Co. v. Kroegher, 83 Pa. St. 64. '"' Brink v. Merchants' & Mechanics' Ins. Co., 49 Vt. 442. 218 AGENTS. § 96 about tlie making of the contract or issuing tlie policy, becomes the knowledge of his principal. The conditions and stipulations usually found in policies of insurance, e. g. prohibiting certain use of the insured property, against change in title, or encumbrance or other insurance or va- cancy, etc., are insert-ed for the protection and benefit of the insurer by whom they may be waived; and an insurer by issuing a policy waives all objections on account of matters (concerning the insured property) of which it had prior knowledge; and those matters cannot be set up to defeat an action on the policy. It follows, therefore, that the knowledge of an agent au- thorized to issue policies, of facts wdiich render the policy voidable at the insurer's option, is the knowledge of the in- surer ; and if, wath knowledge of such facts, the agent issues a policy, which but for such knowledge would have been void- able or even absolutely void, the insurer will be estopped to assert any defense arising out of the facts so known to its agent, and will be held to have waived all rights to avoid the policy, because of such facts. This is so, even if the policy denies the right of an agent to waive any of its pro- visions, or proliibits any waiver, except in writing indorsed upon the policy or attached thereto. An insurance company cannot relieve itself from the legal consequences which the knowledge of its agent imposes upon it by providing in the policy that "the use of general terms, or anything less than a distinct, specific agreement, clearly expressed and indorsed on the policy, shall not be construed as a waiver of any printed or written condition or restriction therein ;" that the agent "has no authority to waive, modify or strike from the policy any of its printed conditions ;" that his assent to an increase of risk is not binding upon the company until it is indorsed upon the policy and the increased premium paid; g 9G WHAT AN AGENT MAY WAIVE. 219 and tliatj in case the policy shall become void by the violation of any condition thereof, the agent has no power to revive it ; ^^^ nor by a provision of the policy that no person except the president or secretary is authorized to make alterations or discharge contracts or waive forfeitures. ^^^ "«Gans V. St. Paul F. & M. Ins. Co., 43 Wis. 108; Trustees of St. Clara Female Academy v. Northwestern Nat. Ins. Co., 98 Wis. 257, 73 N. W. 768; Hartford Fire Ins. Co. v. Keating, 86 Md. 130, 3? Atl. 29; Patridge v. Commercial Fire Ins. Co., 17 Hun (N. Y.), 95; Whited V, Germania Fire Ins. Co., 76 N. Y. 415; Forward v. Conti- nental Ins. Co., 142 N. Y. 382, 25 L. R. A. 637; ante, note 96. ^"^'John Hancock Mut. Life Ins. Co. v. Schlink, 175 111. 284, 51 N. E. 795. See, also, Russell v. Detroit Mut. Fire Ins. Co., 80 Mich. 407, 45 N. W. 356; Kausal v. Minnesota Farmers' Mut. Fire Ins. Ass'n, 31 Minn. 17; Germania Life Ins. Co. v. Koehler, 168 '111. 2B3, 4S N. E. 297; Home Ins. Co. v. Mendenhall, 164 111. 458; McGurk v. Metropolitan Life Ins. Co., 56 Conn. 528, 1 L. R. A. 563; -Commer- cial Ins. Co. v. Spankneble, 52 111. 53; Boetcher v. Hawkeye Ins. Co., 47 Iowa, 253; German Ins. Co. v. Gray, 43 Kan. 497, 8 L. R. A. 70; Firemen's Ins. Co. v. Horton, 170 111. 258; Richmond v. Niagara Falls Ins. Co., 79 N. Y. 230; Smith v. Commonwealth Ins. Co., 49 Wis. 322; Oakes v. Manufacturers' F. & M. Ins. Co., 135 Mass. 248. Compare Pottsville Mut. Fire Ins. Co. v. Fromm, 100 Pa. St. 347; Alston V. Greenwich Ins. Co., 100 Ga. 282, 29 S. E. 266. Illustrations of Waiver of Conditions of Policy. Requiring sole and unconditional ownership: A provision in a policy for forfeiture in case the title of the assured is other than sole and unconditional ownership is waived, notwithstanding a pro- vision prohibiting the agent from waiving any of its conditions, except in writing upon or attached thereto, where the agent solicit- ing the insurance receives and transmits the application, delivers the policy, and receives the premium with knowledge that the as- sured does not own the sole and unconditional title. Scott v. Ger- man Ins. Co., 69 Mo. App. 337; Home Ins. Co. v. Duke, 84 Ind. 253: Phenix Ins. Co. v. Searles. 100 Ga. 97. 27 S. E. 779; Caldwell v. Fire Ass'n of Philadelphia, 177 Pa. St. 492; Graham v. American Fire Ins. Co., 48 S. C. 195, 26 S. E. 323; Germania Fire Ins. Co. v. Hick, 125 111. 361; Trustees of St. Clara Female Academy v. North- western Ins. Co.. 98 Wis. 257, 73 N. W. 767. But see, contra, Liver- pool & L. & G. Ins. Co. V. Van Os, 63 Miss. 431. And so with a condition against additional insurance. Home 220 AGENTS. § 97 Fraud and Mistake of Agent. § 97. The insurer is bound by the act of its agent who, either intentionally or negligently, writes false answers in an appli- cation, which the applicant signs in good faith, believing that it contains the answers he has given. Where an applicant for insurance answers fully and lion- •estlj, but the agent of the insurer intentionally or negli- gently writes false and untrue answers, or omits to write Fire Ins. Co. v. Wood, 50 Neb. 381, 69 N. W. 941; Gandy v. Orient Ins. Co., 52 S. C. 224, 29 S. B. 655; Erb v. Fidelity Ins. Co., 99 Iowa, 727, 69 N. W. 261; Strauss v. Phenix Ins. Co., 9 Colo. App. 386, 48 Pac. 822; Schroeder v. Springfield F. & M. Ins. Co., 51 S. C. 180, 28 S. E. 371; Cans v. St. Paul F. & M. Ins^. Co., 43 Wis. 108. And a condition against vacancy: Jordan v. State Ins. Co., 64 Iowa, 216; Prendergast v. Dwelling House Ins. Co., 67 Mo. App. 427; Menk v. Home Ins. Co., 76 Cal. 51. And a condition against incumbrance: Harding v. Norwich Union Fire Ins. Soc, 10 S. D. 64, 71 N. W. 755; Crescent Ins. Co. v. Camp, 71 Tex. 503; Russell v. Detroit Mut. Fire Ins. Co., 80 Mich. 407; Phoenix Ins. Co. v. Warttemberg (C. C. A.), 79 Fed. 245, 26 Ins. Law J. 552. Against misrepresentation or concealment: By issuing a policy with knowledge of the true condition of the title of the property Insured, insurer is estopped to claim a breach of a condition of the policy rendering it void if the insured shall have concealed or mis- represented any material fact or circumstance concerning the sub- ject of the insurance. Queen Ins. Co. v. May (Tex.), 43 S. W. 73; Firemen's Ins. Co. v. Horton, 170 111. 258; Graham v. American Fire Ins. Co.. 48 S. C. 195, 26 S. E. 323. ' Iron-safe clause: But the waiver of an iron-safe clause by an agent at the time of issuing the policy is ineffectual, when the policj' stipulates against the power of the agent to waive conditions. Post, note 235; Roberts, Willis & Taylor Co. v. Sun Mut. Ins. Co., 13 Tex. Civ. App. 64, 35 S. W. 955. Contra, Home Fire Ins. Co. v. Gurney, 56 Neb. 306, 76 N. W. 553. An agent cannot waive a provis- ion that "no insurance would be binding until actual payment of the premium" where the policy itself contains a provision that none of the terms can be waived by any one except the secretary of the company. Wilkins v. State Ins. Co., 43 Minn. 177. The knowledge of the general agent of an insurer of the custom of stove merchants § 97 FRAUD A^D MISTAKE OF AGENT. 221 doTVTi some answers in the application, and the applicant signs his name thereto in good faith believing that it con- tains the answers he has given, the company is bonnd by the act of its agent, and cannot relieve itself from liability on account of the mistake, omission or representations in the application. 2'^*' Where a mistake in issuing a policy, as to use and have on the premises gasoline for the purpose of exhibit- ing stoves, and of the fact that the insured has been in the habit of so using gasoline, has no effect, either as an estoppel or as a waiver of a clause avoiding the policy for the use or keeping of gasoline upon the premises, "notwithstanding any usage or custom of trade or manufacture." Fischer v. London & L. Fire Ins. Co., 83 Fed. 807. in Cases of Life Insurance: A policy is not rendered void by a statement in the application that the applicant had never used intoxicating liquors except occa- sionally, and had never been other than a sober and temperate man, where the agent knew that the applicant had taken the Keeley treat- ment for the liquor habit. De Witt v. Home Forum Ben. Order, 95 Wis. 305, 70 N. W. 476. And notice to an agent authorized to receive premiums that an insured from whom he receives a premium is re- siding in prohibited territory, contrary to the prohibition of the policy, is notice to the company. Germania Life Ins. Co. v. Koehler, 168 111. 293, 48 N. E. 297; Quinn v. Metropolitan Life Ins. Co., 10 App. Div. 483, 41 N. Y. Supp. 1060. But see Flynn v. Equitable Life Assur. Soc, 67 N. Y. 500, where the court held the medical examiner was not the insurer's agent in filling out the application, where the statements in the application were stipulated to be warranties. =<"> Phoenix Ins. Co. v. Warttemberg (C. C. A.), 79 Fed. 245, 26 Ins. Law J. 552; Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274; Swan V. Watertown Fire Ins. Co., 96 Pa. St. 37; German Ins. Co. v. Gray, 43 Kan. 497, 8 L. R. A. 70; Whitney v. National Masonic Ace. Ass'n, 57 Minn. 472; Phenix Ins. Co. v. Golden, 121 Ind. 524; Stone V. Hawkeye Ins. Co., 68 Iowa, 737; Equitable Life Ins. Co. v. Hazle- wood, 75 Tex. 338, 7 L. R. A. 217; Smith v. Farmers' & Mechanics' Mut. Fire Ins. Co., 89 Pa. St. 287; Gray v. National Ben. Ass'n, 111' Ind. 531, 11 N. E. 477; Continental Life Ins. Co. v. Chamberlain, 132 U. S. 304; Farmers' Ins. Co. v. Williams, 39 Ohio St. 584; Coles V. Jefferson Ins. Co., 41 W. Va. 261, 23 S. E. 732; O'Farrell v. Metro- politan Life Ins. Co., 22 App. Div. 495, 48 N. Y. Supp. 199, 695. But see New York Life Ins. Co. v. Fletcher, 117 U. S. 519. 222 AGENTS. § 97 where it names a person not owner of tlie property insured as the person assured, is the fault of the agent, the principal cannot take advantage of it."*'^ Nor can an insurer repudiate such fraud or mistake of its agent, and thus escape the obliga- tions of its contracts, merely because the assured accepted in good faith the act of the agent without examination ;^*'2 or take advantage of a provision forfeiting the premiums if the warranties are not true; but upon canceling the policy must return the unearned premium ; ~^^ or of a misstatement in the application, if the insured stated the facts truthfully and in good faith, where the application was written by the agent and assented to by the assured in reliance upon the advice and sujDerior knowledge of the agent ;^*^"* and knowl- edge that an insurance agent cannot issue a policy, does not prevent an applicant from relying upon him to write the answers in the application. ^^^ Misrepresentations of Agents. An insurance company is bound by the misrepresentations of its agent while acting within the general scope of his authority. It is liable to third parties in a civil action for frauds, deceits, concealments, misrepresentations, and omissions of duty of its general agent in the course of his employment, although his misconduct was not authorized or ratified by it, when his acts are apparently within the scope ^" Poughkeepsie Sav. Bank v. Manhattan Fire. Ins. Co., 30 Hun (N. Y.), 473; Vezina v. Canada P. & M. Ins. Co., 9 Quebec Law Rep. 65. '""' Kister v. Lebanon Mut. Ins. Co., 128 Pa. St. 553, 5 L. R. A. 646. ^"^ McDonald v. Metropolitan Life Ins. Co, (N. H.), 38 Atl. 500. ="" Phoenix Ins. Co. v, Warttemberg (C. C. A.), 79 Fed. 245, 26 Ins. Law J. 552. ^"' Bowlus V. Phenix Ins. Co., 133 Ind. 106, 20 L. R. A. 400. § 97 FRAUD AND MISTAKE OF AGENT. 223 of liis authority, tlioiigli not so in fact. -°^ Frandulcnt mis- representations made by a solicitor to an applicant concern- ing the terms of the policy to be issued, are ground for re- scission of the contract, although the policy contained a pro- vision that no statements made by the agent should bind the company. ^'^'^ An insurance company is estopped to deny the renewal of a policy when its agents authorized to make contracts of insurance Tepresented to the insured that it had been renewed, and received and appropriated money which they had good reason to believe was. paid to cover the cost of renewal.^*'^ Where defendant's agent represented that plaintiff might use a stove on board the vessel insured when he was fitting her up for use in the spring, though his book of instructions provided that the risk was to include or- dinary refitting in the spring, and that the policy was to specify the kind of fuel to be burned, it was held that de- fendant was bound by the representation, and the risk in- cluded the use of a stove for that purpose. ^"^^ But a misrep- resentation by a soliciting agent as to the conditions of the policies of a rival company, is not such fraud as to relieve the insured from his contract to pa}' a premium, where the means of information were equally open to both parties ; ^^° and false statements by an agent inducing a settlement of a loss are not actionable. ^^^ '"'New York Life Ins. Co. v. McGowan, 18 Kan. 300; Hopkins v. Hawkeye Ins. Co.. 57 Iowa, 203. ^" McCarty v. New York Life Ins. Co., 74 Minn. 530, 77 N. W. 426. And by talking a premium note payable to himself. First Nat. Bank of Dubuque v. Getz, 96 Iowa, 139, 64 N. W. 799; Godfrey v. New York Life Ins. Co., 70 Minn. 224, 73 N. W. 1. ^"^ International Trust Co. v. Norwich Union Fire Ins. Soc, 17 C. C. A. 608, 71 Fed. 81; McCabe v. Aetna Ins. Co. (N. D.), 81 N. W. 426; post, notes 253-255. "^ Lyon V. Stadacona Ins. Co., 44 Up. Can. Q. B. 472. ""American Steam-Boiler Ins. Co. v. Wilder, 39 Minn. 350. ^'Thompson v. Phoenix Ins. Co., 75 Me. 55. 224 AGENTS. §97 While tlie insured is justified in loolving to tlie agent for information and directions in tlie preparation of the applica- tion, and may rely on a reasonable construction j)ut upon an ambiguous provision of a policy by an agent of the .insurer, he cannot assert the representations and promises of the agent against the plain and unambiguous terms and stipulations of the policy. When the policy is executed and delivered it becomes the contract of the parties. In it all prior negotia- tions and transactions of the parties are merged. If it is not the contract for which the insurer bargained, he can refuse to accept it; but he cannot accept it and make it the basis of a claim against the insurer without subscribing to all its terms and conditions. ^^^ Thus, where it was provided in the policy that no representations made by the person who pro- cured the application therefor should be binding on the company unless reduced to writing and presented to the of- ficers of the company at the home office, a New Tork court held that statements made by an agent and not reduced to writing could not be proven in an action against the company for false representations, and breach of contract based there- on ; that where a pamphlet, issued by the company, contained a full and true statement of the plan of insurance adopted, and there was no concealment or misrepresentation concern- ing it, contemporaneous suggestions made by the agent of the company as to the comparative superiority of the plan were recommendations and expressions of his own opinion, related to the future, and were not imputable to the company.^^^ In Maryland an insurer brought suit to recover on a premium "= Union Mut. Life Ins. Co. v. Mowry, 96 U. S. 544; Wilkins v. State Ins. Co., 43 Minn. 177; Quinlan v. Providence Wash. Ins. Co., 133 N. Y. 360. =" Simons v. New York Life Ins. Co., 38 Hun (N. Y.), 309; Ebert V. Mutual Reserve Fund Ass'n, 81 Minn. 116, 83 N. W. 507. § 98 COLLUSION BETWEEN AGENT AND INSURED. 225 note containing a promise that tlie maker wonlcl pay "in such portions, and at such time or times, as the directors of said company may, agi-eeably to their act of incorporation, re- quire." The act made all insured by the corporation mem- bers of it, and provided that the balance due on any premium should be payable in part or wholly at the discretion of the directors. The application signed by insured recited that the company would not be bound by any act or statement made to or by the agent, restricting its rights or varying its w^ritten or printed contract, unless inserted therein in writing. Oral evidence was held inadmissible to show that when the insur- ance was effected the company's general agent represented to defendant that he had made special arrangements with the company whereby defendant would be liable to pay only a certain per cent., on his note.^^^ Collusion Between Agent and Insured. g 98. The agent does not bind the insurer by any ^et done in furtherance of a fraudulent and collusive agreement between him and the insured. As has been seen, an agent is appointed to further the in- terests of his principal, and will not be permitted, without his principal's full knowledge and consent, to represent the other party also in the same transaction. No one can suppose that an insurer clothes an agent with authority to perpetrate a fraud upon itself. When an agent is perpetrating a fraud upon his principal in furtherance of an agreement between himself and any third party there is no agency in respect to that transaction; and to hold his principal responsible for his acts and in favor of the one with whom the agent colludes, would be a monstrous injustice. If the assured is a party "* Lycoming Fire Ins. Co. v. Langley, 62 Md. 196. KERR, INS.— 15 226 AGENTS. § 99 to or an accomplice in, or participates in tlie fraudulent act, lie cannot take advantage of it.^^^ Thus where a false state- ment was made by the insured concerning his health, and the answers "were the basis of the contract, which provided that if they were untrue the policy would be void, and the agent had knowledge of the falsity, it was held that notice to the agent did not operate as notice to the company; that the agent had no authority to accept false answers and that the false statement was a fraud which could not be taken advan- tage of by the representatives of the party who made it.^^^ But it has been held where the insurer's agents solicited a party to insure his life, which he refused to do, but suggested taking a policy in his father's name on his father's life, for his own benefit, and without the knowledge of the father and with that of the agents, application was made in the name of the former, and a policy issued as if he had made the application, that the knowledge and privity of the agents prevented the transaction from being a fraud upon the company. ^^"^ Same — Knowledge of Agent that Wakeanties are False. § 99. Many authorities hold that where by the terms of the policy the statements m.ade in the application are warranties, the agent's knowledge of the untruth or falsity of such state- ments before the delivery of the policy does not bind the in- surer, except in cases where the relation and status of the agent is fixed by statute. This is the view taken by the supreme court of the United States and by the federal courts. In the case of New York "'Lewis V. Phoenix Mut. Life Ins. Co., 39 Conn. 100; New York Life Ins. Co. v. Fletcher. 117 U. S. 519. "" Galbraith's Adm'r v. Arlington Mut. Life Ins. Co., 12 Bush (Ky.), 29; Smith v. Cash Mut. Fire Ins. Co., 24 Pa. St. 323; Lowell V. Middlesex Mut. Fire Ins. Co., 8 Cush. (Mass.) 127; Ketcham v. American Mut. Ace. Ass'n, 117 Mich. 521, 76 N. W. 5; Cook v. Stand- ard Life & Ace. Ins. Co., 84 Mich. 12, 47 N. W. 568. =^" Guardian Mut. Life Ins. Co. v. Hogan, 80 111. 35. § 99 KNOWLEDGE OF AGENT OF FALSE AVAKKANTIES. 227 Life Ins. Co. v. Fletcher, a person had applied in St. Louis to an agent of the company for an insurance on his life. The agent, under general instructions, questioned him on subjects material to the risk. He made answers which, if correctly written down, and transmitted to the company, would have probably caused it to decline the risk. The agent, without the Icnowledge of the applicant, wrote down false answers, concealing the truth, which were signed by the applicant without reading, and by the agent transmitted to the com- pany, and the company thereupon assumed the risk. It was conditioned in the policy that the application and answers were parts of it, and it was stipulated in the application that the answers therein were warranties and that no statement to the agent not thus transmitted should be binding on his principal; and a copy of the answers with these conditions conspicuously printed upon it, was attached to the policy. Field, J., said : "It is conceded that the statements and rep- resentations contained in the answers, as written, of the as- sured to the questions propounded to him in his application, respecting his past and present health, were material to the risk to be assumed by the company, and that the insurance was made upon the faith of them, and upon his agreement accompanying them, that if they were false in any respect, the policy to be issued upon them should be void. It is sought to meet and overcome the force of this conceded fact ' by proof that he never made the statements and representa- tions to which his name is signed ; that he truthfully answered those questions ; that false answers written by an agent of the company were inserted in place of those actually given, and were forwarded with the application to the home office ; and it is contended that, such proof being made, the plaintiff is not estopped from recovering. But on the assumption that the fact as to the answers was as stated, and that no further obligation 228 I AGENTS. §9^ rested njDon tlie assured in connection witli tlie policy, it is- not easy to perceive how the company can be precluded from setting up their falsity, or how any rights upon the policy ever accrued to him. It is, of course, not necessary to argue that the agent had no authority from the company to falsif}' the answers, or that the assured could acquire no right by virtue of his falsified answers. Both he and the company were deceived by the fraudulent conduct of the agent. The assured was placed in the position of making false repre- sentations in order to secure a valuable contract which, upon a truthful report of his condition, could not have been ob- tained. By them the company was imposed upon and in- duced to enter into the contract. In such a case, assuming that both parties acted in good faith, justice would require that the contract be canceled and the premiums returned. As the present action is not for such a cancellation, the only re- covery which the plaintiff could properly have upon the facts he asserts, taken in connection with the limitation upon the powers of the agent, is for the amount of the premiums paid, and to that only would he be entitled by virtue of the statute of Missouri." "But the case as presented by the record is by no means as favorable to him as we have assumed. It was his duty to read the application he signed. He knew that upon it the policy would be issued, if issued at all. It would introduce great uncertainty in all business transactions, if a party making written proposals for a contract, with representations to induce its execution, should be allowed to show, after it had been obtained, that he did not know the contents of his proposals, and to enforce it, notwithstanding their falsity as to matters essential to its obligation and validity. Contracts could not be made, or business fairly conducted, if such a rule should prevail ; and there is no reason why it> should be § 99 KNOWLEDGE OF AGENT OF FALSE -WARKANTIES. 229 applied merely to contracts of insurance. There is nothing in -their nature which distinguishes them in this particular from others. But here the right is asserted to prove not only that the assured did not make the statements contained in his answers, but that he never read the application, and to recover upon a contract obtained by representations admitted to be false, just as though they were true. If he had read even llie printed lines of his application, he would have seen that it stipulated that the rights of the company could in no respect be affected by his verbal statements, or by those of its agents, unless the same were reduced to Avriting and forwarded witli his application to the home office. The company, like any other principal, could limit the authority of its agents, and thus bind all parties dealing with them with knowledge of the limitation. It must be presumed that he read the applica- tion, and was cognizant of the limitations therein expressed. * * * He is, tlierefore, bound by its statements. * * * If the policy can stand with the application avoided, it must stand upon parol statements not communicated to the com- pany. This, of course, cannot be seriously maintained in the face of its notice that only statements in writing for- warded to its officers would be considered. A curious result is the outcome of the instruction. If the agents committed no fraud the plaintiff cannot recover, for the answers reported are not true ; but if they did commit the imputed fraud he may recover, although, upon the answers actually given, if truly reported, no policy would have issued. Such anoma- lous conclusions cannot be maintained." "There is another view of this case equally fatal to a re- covery. Assuming that the answers of the assured were falsified, as alleged, the fact would be at once disclosed by the copy of the application, annexed to the policy, to which his attention was called. He would have discovered by inspcc- 230 AGENTS. § 99 tion that a fraud had been perpetrated, not only upon Idmself but upon the company, and it would have been his duty to make the fact known to the company. He could not hold the policy without approving the action of the agents and thus becoming a participant in the fraud committed. The retention of the policy was an approval of the application and of its statements. The consequences of that approval cannot after his death be avoided." No one can claim the benefit of an executory contract fraudulently obtained, after the discovery of the fraud, without approving and sanction- ing it.^^^ In a later case this court sustained a statutory '''117 U. S. 519; ante, note 173; Globe Mut. Life Ins. Co. v. Wolff. 95 U. S. 329; Knickerbocker Life Ins. Co. v. Norton, 96 U. S. 240; Loehner v. Home Mut. Ins. Co., 17 Mo. 247; Ryan v. World Mut. Life Ins. Co., 41 Conn. 168; Lewis v. Phoenix Mut. Life Ins. Co., 39 Conn. 100; Simons v. New York Life Ins. Co., 38 Hun (N. Y.), 309; Lycom- ing Fire Ins. Co. v. Langley, 62 Md. 196; American Ins. Co. v. Nei- berger, 74 Mo. 167; Richardson v. Maine Ins. Co., 46 Me. 394; Rey- nolds V. Atlas Ace. Ins. Co., 69 Minn. 94; Singleton v. Prudential Ins. Co., 11 App. Div. (N. Y.) 403; Phosnix Ins. Co. v. Warttemberg, 26 Ins. Law J. 552 (C. C. A.), 79 Fed. 245; Ketcham v. American Mut. Ace. Ass'n, 117 Mich. 521, 76 N. W. 5; Maier v. Fidelity Mut. Life Ass'n, 47 U. S. App. 322, 78 Fed. 566, 26 Ins. Law J. 292; Cleaver v. Traders' Ins. Co., 65 Mich. 527; Cook v. Standard Life & Ace. Ins. Co., 84 Mich. 12; Gould v. Dwelling House Ins. Co., 90 Mich. 302; Ward v. Metropolitan Life Ins. Co., 66 Conn. 227. For similar holdings where the application limits agent's powers, though statements are not warranties, see McCoy v. Metropolitan Life Ins. Co., 133 Mass. 82; Bernard v. United Life Ins. Ass'n, 14 App. Div. 142, 43 N. Y. Supp. 527; Shannon v. Gore District Mut. Fire Ins. Co., 37 Upper Can. Q. B. 380 (one judge dissenting). Where the statements of insured are made warranties, knowledge of insurer's agent that they are untrue does not bind insurer. Foot v. Aetna Life Ins. Co., 61 N. Y. 571; Flynn v. Equitable Life Ass. Soc, 67 N. Y. 500. Otherwise if statements are not warranties. Rohrbach v. Aetna Ins. Co., 62 N. Y. 613; Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281, 92 N. Y. 274. For holdings adverse to New York Life Ins. Co. v. Fletcher, 117 U. S. 519, see German Ins. Co. V. Gray, 43 Kan. 497, 8 L. R. A. 70; Phenix Ins. Co. v. Golden, § 100 POWER OF AGENT AFTER ISSUANCE OF POLICY. 231 provision making the person soliciting tlie insurance tlie company's agent, notwithstanding a contrary stipulation in the application, and held that in such case the rule established in New York Life Ins. Co. v. Fletcher did not apply, and that the act and knowledge of the agent bound the com- pany.^^^ PowEK OF Agen"t After TssuAisrcE of Policy. § 100. An insurance agent who has authority to take risks and issue policies can, in the absence of known restrictions placed on his authority either by his principal or by statutory enactment, waive the conditions of the policy after it has been issued. ^20 Following the rule that the powers of an agent are co-exten- sive with the business entrusted to his care, and that he is pos- sessed of all the authority necessary to the full and complete discharge of his duty to his principal, it has been held that, in the absence of any known limitations of his presumptive au- thority, an agent invested with power to issue policies has au- thority to cancel them;^^^ to consent to alterations in the insured property ;^^^ to consent to the assignment of a pol- 121 Ind. 524; Stone v. Hawkeye Ins. Co., 68 Iowa, 737; Smith r. Farmers' & Mechanics' Mut. Fire Ins. Co., 89 Pa. St. 287; Equitable Life Ins. Co. v. Hazlewood, 75 Tex. 338, 7 L. R. A. 217. "» Continental Life Ins. Co. v. Chamberlain. 132 U. S. 304. =='" Niagara Fire Ins. Co. v. Brown, 123 111. 356; Grubbs v. North Carolina Ins. Co., 108 N. C. 472; May, Ins. § 511; Germania Life Ins. Co. V. Koehler, 63 111. App. 188, 168 111. 293; Alexander v. Conti- nental Ins. Co., 67 Wis. 422; Union Mut. Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 222. As to right of agents to waive conditions of standard policy, see Straker v. Phenix Ins. Co., 101 W's. 413, 77 N. W. 753; Anderson v. Manchester Fire Assur. Co., 59 Minn. 189; Hicks V. British American Assur. Co., 162 N. Y. 284, 48 L. R. A. 428. "' Runkle v. Citizens' Ins. Co., 6 Fed. 143. '=^ Packard v. Dorchester Mut. Fire Ins. Co., 77 Me. 144. 232 AGENTS. § 100 icj;^^^ to correct tbe policy before loss so as to make it cor- respond with tlie real agreement of the parties ;^^^ to consent to the sale and encumbering of the property ; ^^^ to consent to other insurance in other companies contrary to the conditions of the policy ; ^^^ to waive the conditions of the policy regard- ing the use of gasoline on the premises ; ^"'^ to consent to the removal of the property insured ;^^^ to waive a condition of a policy avoiding it if the insured is not in sound health at date of execution of policy ;-^^ to bind the insurer by his fail- ure to make a proper indorsement on the policy, upon being inquired of about the necessity therefor ;^^^ to waive the conditions of a life insurance policy forbidding the assured to reside within certain specified territory. ^^^ An insurance company, whose authorized agent assures the assig-nee for creditors of the insured after such assignee has sold the insured property, that the policy need not be transferred until after the deed is made to the purchaser, and which subsequently claims from the assignee an assessment for another loss, cannot escape liability for a loss occurring before the execution of the deed on the gi'ound that there ^^'Chauncey v. German American Ins. Co., 60 N. H. 428; Spring- field P. & M. Ins. Co. V. Davis (Ky.), 37 S. W. 582; Frane v. Burling- ton Ins. Co., 87 Iowa, 288, 54 N. W. 237; German Ins. Co. v. Penrod. 35 Neb. 273, 53 N. W. 74. "* Taylor v. State Ins. Co., 98 Iowa, 521, 67 N. W. 577; Warner v. Peoria M. & F. Ins. Co.. 14 Wis. 345. "^Manchester v. Guardian Assur. Co., 151 N. Y. 88; Silverberg v. Phenix Ins. Co., 67 Cal. 36; Rediker v. Queen Ins. Co., 107 Mich. 224. 65 N. W. 105; King v. Cox, 63 Ark. 204, 37 S. W. 877. ^» Schomer v. Hekla Fire Ins. Co., 50 Wis. 575. ^" Arkell v. Commerce Ins. Co. v. 69 N. Y. 191, 7 Hun, 455. =="-« New England F. & M. Ins. Co. v. Schettler, 38 111. 166. ==» Hilt V. Metropolitan Life Ins. Co., 110 Mich. 517, 68 N. W. 300. *^ Allen V. St. Louis Ins. Co., 85 N. Y. 473. "^Germania Life Ins. Co. v. Koehler, 168 111. 293. § 100 POWER OF AGENT AFTER ISSUANCE OF POLICV. 233 has been no transfer of tlie policy;-"- and is bound by a notice to such agent that the premises have become vacant, ahhoug-h such knowledge was imparted to him as agent for the owner of the premises for the purpose of renting the same.^^^ An agent's authority to alter or modify a policy by oral or written agTcement, may be inferred from a course •of dealing acquiesced in by the principal, ^^"^^ even though the policy provided to the contrary. ^^^ But a waiver of the "iron safe" clause by an insurance agent at the time of issuing a policy is ineffectual, where the policy stipulates against the power of the agent to waive conditions. -■^'^ ^\Tien the policy provides that no action should be brought upon it unless it was begun within twelve months after loss or damage occurred, and the assured has assented to the stipulation by accepting the policy, it is not in the power of local agents or of adjusting agents, in the absence of express authority from the company's managing officers, to waive it after loss or damage had occurred, unless fraud has been perpetrated on the insured which induced him to delay bringing suit until after the bar of the contract attached. ^^^ Power of Broker or Solicitor After Delivery of Policy. An insurance broker or soliciting agent whose business is merely to solicit insurance, present applications therefor to "= Highlands v. Lurgan Mut. Fire Ins. Co., 177 Pa. St. 566. -'" Clay V. Phoenix Ins. Co., 97 Ga. 44, 25 S. E. 417. =33a j)ey V. Mechanics' & Traders' Ins. Co., 88 Mo. 325. '"Knickerbocker Ins. Co. v. Norton, 96 U. S. 234. "^Roberts v. Sun Mut. Ins. Co., 13 Tex. Civ. App. 64, 35 S. W. 955; Quinlan v. Providence Wash. Ins. Co., 133 N. Y. 356; Egan v'. Westchester Ins. Co., 28 Or. 289, 42 Pac. 611; East Texas Fire Ins. Co. v. Kempner, 87 Tex. 229; Sutherland v. Eureka F. & M. Ins. Co., 110 Mich. 668, 68 N. W. 985. Contra, Home Fire Ins. Co. v. Gurney, 56 Neb. 306, 76 N. W. 553. See ante, note 199. ■'" Underwriters' Agency v. Sutherlin, 55 Ga. 266. 234 AGENTS. § 101 the agents of the insurance company, and if accepted to re- ceive the policies, deliver them to the insured, and collect the premiums,* has no further powers; and cannot thereafter bind the insurer by his consent to the procuring of other insurance on the property and cannot waive the provisions of the policy in that regard. ^^''^ Nor can he bind the company by subsequently altering the policy so as to make it payable to one other than the insured.^^^ Known Limitations on Agent's Powee. § 101. An agent cannot waive conditions contrary to his known instructions or in violation of known limitations of his power. Where an insured applied to an agent for a vacancy permit and was told by the agent that the insurer would not allow him to issue such a permit, he cannot establish a waiver by the insurer of the provisions of the policy prohibiting vacancy by proof of an oral waiver thereafter made by the agent. ^^* Nor will the act of the agent in stating to the insured that it will not be necessary for him to keep a set of books in an iron safe as required by the policy, bind the insurer where the policy requires such a waiver to be in writing and attached to the policy. ^■^^ "'Goldin V. Northern Assur. Co., 46 Minn. 471; Duluth Nat. Bank V. Knoxville Fire Ins. Co., 85 Tenn. 76; Oshkosh Match Works v. Manchester Fire Assur. Co.. 92 Wis. 510, 66 N. W. 525; Citizens' Fire Ins. Co. v. Swartz, 21 Misc. Rep. 671, 47 N. Y. Supp. 1107; Queen -Ins. Co. V. Young, 86 Ala. 424. "■'Duluth Nat. Bank v. Knoxville Fire Ins. Co., 85 Tenn. 76, 4 Am. St. Rep. 744. -'^ Sutherland v. Eureka F. & M. Ins. Co., 110 Mich. 668, 68 N. W. 985; McCleary v. Orient Ins. Co. (Tex.), 32 S. W. 583; Jackson v. Mutual Ben. Life Ins. Co., 79 Minn. 44, 81 N. W. 545, 82 N. W. 366. -'"Roberts v. Willis & Taylor Ins. Co., 13 Tex. Civ. App. 64, 35 S. Vv^. 955; Egan v. Westchester Ins. Co., 28 Or. 289, 42 Pac. 611; East Texas Fire Ins. Co. v. Kempner, 87 Tex. 229. See note 256. §§ 102, 103 limitations fixed by policy. 235 What Constitutes Waiver by Agent. § 102. The mere knowledge by an agent of the violation of the condition of a policy does not constitute a waiver. There must be some affirmative act or word evidencing an intention to waive the rights of the insurer. Thus tlie agent's knowledge before the issuing of the policy, of the intention of the proposed insured to effect other insur- ance, will not render ineffective a stipulation avoiding the policy in case of such other insurance.^^^ A condition as to the future use of the insured premises is not waived by the mere knowledge on the part of an agent of the insurer that the property is occupied for an unlawful use. His language and conduct must be such as to reasonably imply an intention to waive such condition or consent to such use; and the issuing of a permit to use the premises for an extra hazardous purpose for a specified period does not allow the continuation of the use beyond the time specified in the permit. ^■^^ Same — Limitations Fixed by Policy. § 103. The insurer often limits and defines the powers of its agents by specific provisions of the policy. Among the more common provisions of this nature are (a) That only certain agents can waive the terms of the policy. (b) That no officer or agent can waive them. (e) That a waiver must be in writing indorsed on the policy. After a policy is issued and accepted, the insured is bound to know and take notice of all its provisions limiting or restrict- ing the powers of the agents of the insurer in their further dealings relating to the policy and the property insured. =" United Firemen's Ins. Co. v. Thomas (C. C. A.), 82 Fed. 406; Home Ins. Co. v. Wood, 50 Neb. 381, 69 N. W. 841; Sutherland v. Eureka F. & M. Ins. Co., 110 Mich. 668; Cable v. United States Ins. Co., Ill Fed. 31. =*'Betcher v. Capital Fire Ins. Co., 78 Minn. 240; Concordia Fire Ins. Co. Y. Johnson, 4 Kan. App. 7, 45 Pac. 722. See Straker v. Phenix Ins. Co., 77 N. W. 752. 236 AGENTS. § 103 If one dealing wltli an agent knows tliat lie is acting under a circumscribed or limited authority and that his act is out- side of and transcends the authority conferred, the principal is not bound ; it is immaterial whether the agent is a general or a special one. Where restrictions upon the agent's power apj)ear in a policy, the insured is bound to take notice of tJiem; and in the absence of evidence tending to show that his powers have been enlarged by the usage of the company, its course of business, or by its consent express or implied, the policy must control and the authority, as limited, must he regarded as the measure of the agent's power,^^^ e. g. if an open policy provides only for the insurance of property owned or held in trust or on commission, or sold and not delivered, an agTeement on the part of the agent to insure property not coming within such language is void.^"*^^ Thus where a policy in terms denies to any agent, local or general, the power to waive any of its conditions and reserves that authority solely to the company or some officers of the com- pany, a waiver by an agent cannot bind the company. ^^'* A provision that no agent is empowered to waive any of the ="Quinlan v. Providence Wash. Ins. Co., 133 N. Y. 356; Wilkins V. State Ins. Co., 43 Minn. 177; Roberts, Willis & Taylor Co. v. Sun Mut. Ins. Co., 13 Tex. Civ. App. 64, 35 S. W. 955; Fowler v. Preferred Ace. Ins. Co., 100 Ga. ■830, 28 S. E. 398; Monitor Mut. Fire Ins. Co. V. Buffum, 115 Mass. 343; Cleaver v. Traders' Ins. Co., 65 Mich. 527, 32 N. W. 660; Merserau v. Phoenix Mut. Life Ins. Co., 66 N. Y. 274; Catoir v. American Life Insurance & Trust Co., 33 N. J. Law, 487; Northwestern Nat. Ins. Co. v. Mize (Tex.), 34 S. W. 670; Bur- lington Ins. Co. V. Gibbons, 43 Kan. 15, 19 Am. St. Rep. 118; Weidert V. State Ins. Co., 19 Or. 261, 20 Am. St. Rep. 809. But see Home Ins. Co. V. Gilman. 112 Ind. 7. =«» First Nat. Bank of Waxahachie v. Lancashire Ins. Co., 62 Tex. 461. "^Marvin v. Universal Life Ins. Co., 85 N. Y. 278; Hale v. Me- chanics' Mut. Fire Ins. Co., 6 Gray (Mass.), 169; Wilkins v. State Ins. Co., 43 Minn. 177. § 104 ONLY CERTAIN OFFICERS CAN WAIVE. 237 conditions of the policy without special authorization refers to special, not general, agents. ^^^ These limitations are for the benefit of the company and may be insisted upon or waived by it. The company is not bound to act upon its declarations in the policy that its agents have limited powers ; it may at any time by course of dealing or by contract give them unlimited authority. ^^^ A restriction in a policy upon an agent's authority cannot be construed to refer to his acts or knowledge prior to the delivery of the policy.^^'^ Same — Stipulations that Only Certain Officers Can Waive. § 104. A condition in a policy of insurance that its terms can be changed by certain agents only, is valid. The forfeiture of a contract of insurance, or a condition w^hich is essential to the continuance of such contract, cannot be waived by an agent when the contract itself declares (a) that he shall not have power to waive it, or, (b) that only certain officers of the company, which do not include him, shall have such powder; unless it appears that subsequent to the execution of the contract, authority has been given to the agent to w- aive the forfeiture or condition, or the company has knowingly permitted him to exercise such power. ^^^ In a Wisconsin case the policy w^as issued to the owner, payable to a mortgagee as interest should appear, conditioned that if the property should thereafter be incumbered without the =*' Carrigan v. Lycoming Fire Ins. Co., 5-3 Vt. 418. ^^^ Knickerbocker Life Ins. Co. v. Norton, 96 U. S. 234; Godfrey v. New York Life Ins. Co., 70 Minn. 224, 73 N. W. 1. =" Grouse v. Hartford Fire Ins. Co., 79 Mich. 249, 44 N. W. 497; Zell V. Herman Farmers' Mut. Ins. Co., 75 Wis. 521, 44 N. W. 828. =" Porter v. United States Life Ins. Co., 160 Mass. 183; Lyndsay V. Niagara Dist. Mut. Fire Ins. Co., 28 Up. Can. Q. B. 326; Wilkins V. State Tns. Co.. 43 Minn. 177. 238 AGENTS. § 105 consent of insurer's secretary in writing, tlie policy was to become void. It was expressed in the policy '"tliat no of- ficer, agent or employe, or any person or persons, except the secretary in writing, can in any manner waive any of the conditions of this policy, which is made and accepted on the above express conditions." During the life of the policy the mortgage existent when the policy issued was paid, and another mortgage was issued without consent. Held, that a local agent could not bind his principal by verbal consent to the execution of a second mortgage.^^^ Same — Stipulations that No Officer Can Waive. § 105. A provision " that no ofacer, agent or representative can waive any of the provisions except in writing indorsed thereon " is void. This restriction is so broad that it applies alike to every officer, agent and representative of the company; and, as a corporation can only act through such agencies, the substance of the provision is that the company shall not be held to have waived any of the terms or conditions of the policy unless its waiver be expressed by a written endorsement on the pol- icy. That is to say, in other words, that one of the parties ^"Hankins v. Rockford Ins. Co.. 70 Wis. 1, 35 N. W. 34; Merserau V. Phoenix Mut. Life Ins. Co., 66 N. Y. 274; Marvin v. Universal Life Ins. Co., 85 N. Y. 278; O'Reilly v. Corporation of London Assur. Co., 101 N. Y. 575; Kyte v. Commercial Union Assur. Co., 144 Mass. 43; Mclntyre v. Michigan State Ins. Co., 52 Mich. 188; Bowlin v. Hekla Fire Ins. Co., 36 Minn. 433; Shuggart v. Lycoming Fire Ins. Co., 55 Cal. 408; Enos v. Sun Ins. Co., 67 Cal. 621; Leonard v. American Ins. Co., 97 Ind. 299; Winnesheik Ins. Co. v. Holzgrafe, 53 111. 516; Universal Mut. Fire Ins. Co. v. Weiss, 106 Pa. St. 20; Pottsville Mut. Fire Ins. Co. v. Minnequa Springs Imp. Co., 100 Pa. St. 137; Stark County Mut. Ins. Co. v. Hurd, 19 Ohio, 149; Evans v. Trimountain Mut. Fire Ins. Co., 9 Allen (Mass.), 329, But see Planters' Ins. Co. V. Rowland, 66 Md. 236. § 1U5 STIPULATIONS THAT NO OFFICER CAN WAIVE. 230 to a contract, wliicli is not required bj law to be in writing, cannot, subsequent to tlie making of tbe contract, waive, by parol, provisions which had been incorporated into the con- tract for his own benefit. A contracting party cannot so tic his own hands and so restrict his own legal capacity for future action, that he has not the power even with the assent of tlie other party to bind or obligate himself by his further action or agreement contrary to the terms of the wi'itten contract. Except where prevented by the operation of the Statute of Frauds, or some equivalent prohibition, a policy of insurance may be made or changed by parol. A written agreement is (subject to these exceptions) of no higher legal degi*ee than a parol one, and either may vary or discharge the other ; and one who has agreed that he will only contract by writing in a certain way does not thereby preclude himself from making a parol bargain to change it. There is no more force in an agreement in writing not to agree by parol, than in a parol agreement not to contract in writing. Such a provision does not in any way limit the legal capacity of an insurer to act through its authorized agents in the ordinary manner, nor prohibit them from waiving such provisions or conditions as they could otherwise waive.^^*^ Contra. Speaking of this provision the supreme court of Iowa re- cently said : "There is some conflict in the authorities as to '""•Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Lamberton v. Connecticut Fire Ins. Co., 39 Minn. 131; Joyce, Ins. § 433; American Cent. Ins. Co. v. McCrea, 8 Lea (Tenn.), 513; Von Bories v. United Life F. & M. Ins. Co., 8 Bush (Ky.), 133; Maryland Fire Ins. Co. v. Gusdorf, 43 Md. 50G; Kniclterboclter Life Ins. Co. v. Norton, 96 U. S. 234; Stolle v. Aetna F. & M. Ins. Co., 10 W. Va. 546; Carruge V. Atlantic Fire Ins. Co., 40 Ga. 135; Wakefield v. Orient Ins. Co., 50 Wis. 532; Whited v. Germania Fire Ins. Co., 76 N. Y. 415; Morrison V. Insurance Co. of North America, 69 Tex. 353. 240 AGENTS. § 10(> wlietLer this kind of an agreement or provision is valid or not, But we think the decided weight is in favor of the proposi- tion that it is. * * * We do not mean to be under- stood as holding that the company could not itself, through its general agents, waive these provisions of the policy. What we do hold is that these provisions * * * are a limita- tion upon the power of its local, special, and adjusting agents, of which the plaintiffs had, or are presumed to have had, knowledge; and that any agreement or waiver which they attempted to make would not be binding upon the com- pany because not authorized." ^^^ Same — Stipulations that Waiyee Must be in Wkiting. § 106. An agent who is authorized to indorse a written waiver or consent to a violation of the conditions of a policy is sometimes held to have authority to waive the same condi- tions (a) By an oral agreement to waive; (b) By acts which in law amount to waiver; (c) By representations which will estop the insurer from de- nying the waiver. The decisions on this question are irreconcilable. In Ne- braska, Arkansas, Iowa, New Jersey, and Missouri, the au- thority of the agents of the insured to Avaive the conditions ==^iRuthven v. American Fire Ins. Co., 92 Iowa, 326, 60 N. W. 666, citing Burlington Ins. Co. v. Gibbons, 43 Kan. 15, 22 Pac. 1010; Weidert v. State Ins. Co., 19 Or. 261, 24 Pac. 242; Cleaver v. Traders' Ins. Co., 71 Mich. 414, 39 N. W. 571; Quinlan v. Providence Wash. Ins. Co., 133 N. Y. 360; Smith v. Niagara Fire Ins. Co., 60 Vt. 682, 15 Atl. 353; Walsh v. Hartford Fire Ins. Co., 73 N. Y. 5; Hankins v. Rockford Ins. Co., 70 Wis. 1, 35 N. W. 34; Gould v. Dwelling-House Ins. Co., 90 Mich. 302, 51 N. W. 455; Clevenger v. Mutual Life Ins. Co., 2 Dak. 114, 3 N. W. 313; Enos v. Sun Ins. Co., 67 Cal. 621, 8 Pac. 379; Kyte v. Commercial Assur. Co., 144 Mass. 43, 10 N. E. 518; Kirkman v. Farmers' Ins. Co., 90 Iowa, 457, 57 N. W. 953; O'Leary V. Merchants' & Bankers' Mut. Ins. Co., 100 Iowa, 173, 69 N. W. 420. § 106 WHEN WAIVER MUST BE IN WRITING. 2il of a policy may be exercised verbally, notwitlistanding a pro- vision in the policy tbat such waiver can be made only by a Avritten indorsement on the policy. -^^ Some of the early New York cases strengthen this view. Thus where it was stipulated in a policy that "The generating or evaporating within the building or contiguous thereto of any substance for a burning gas, or the use of gasoline for lighting, is prohibited, unless by special agreement indorsed on this policy," and the agents who took the risk gave oral pennis- sion to insured to put in a tank for making gasoline if it was placed fifty feet from the building, and were present when it was put in, it was held that this was a waiver which bound the company; and consent to putting in the apparatus im- plied consent to use the product thereof for lighting the building. ^^^ A representation by an agent that the policy would be made to cover the change of title, and would cover the interest of one as mortgagee where it had before covered his interest as owner, was held* to bind the company under the following cir- cumstances. It was provided in the policy, that if the prop- "»Phenix Ins. Co. v. Covey, 41 Neb. 724, 60 N. W. 12; Young v. Hartford Fire Ins. Co., 45 Iowa, 377; Wilson v. Commercial Union Assur. Co., 51 S. C. 540, 29 S. E. 245 (vacancy) ; Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S. W. 959; Hamilton V. Home Ins. Co., 94 Mo. 353; Breckinridge v. American Cent. Ins. Co., 87 Mo. 62; Hilt v. Metropolitan Life Ins. Co., 110 Mich. 517, 68 N. W. 300; Beebe v. Ohio Farmers! Ins. Co., 93 Mich. 514, 53 N. W. 818; Smith v. German Ins. Co., 107 Mich. 270, 65 N. W. 236; Radiker V. Queen Ins. Co., 107 Mich. 224, 65 N. W. 105; Redstrake v. Cumber- land Mut. Fire Ins. Co., 44 N. J. Law, 294; O'Leary v. German Amer- ican Ins. Co., 100 Iowa, 390, 69 N. W. 686; Morrison v. Insurance Co. of North America, 69 Tex. 353. ^'^Arkell v. Commerce Ins. Co., 7 Hun (N. Y.), 455; affirmed, on the ground that the tank was not "contiguous," 69 N. Y. 191; Rich- mond V. Niagara Fire Ins. Co., 79 N. Y. 230. KERR, INS.— 16 242 AGENTS. § 106 erty insTircd slioiilcl be sold, or if tlie interest of tlie assured was not truly stated, the policy should be void ; that anything less than a distinct, specific agreement, indorsed on the jwlicy, should not be construed as a ^vaiver of any of its conditions ; and that any person who may have procured the insurance to be taken "shall be deemed to be the agent of the assured, and not of the company under any circumstances whatever, or in any transaction relating to this insurance." The policy was obtained through H., and countersigned by him as de- fendant's agent. It was twice renewed ; each renewal receipt, signed by defendant's president and secretary, contained this: "Not valid unless countersigned by the duly author- ized agent of the company." H. countersigned each as agent, and received and forwarded the premiums to defendant. On making application for a third renewal, plaintiff noti- fied H. that he had sold the property, and his interest was that of mortgagee. H. received the premium, gave a re- newal certificate, and said he would make it all right. There was no indorsement made on the policy or other notice given. Held, that H., being the authorized agent of defendant, it was bound by his acts ; they amounted to a waiver of the con- ditions in the policy, and plaintiff's interest as mortgagee was insured by the last renewal receipt. ^^^ An insurer is chargeable with the omission of its agent authorized to issue policies, to make a promised indorsement of the existence of a chattel mortgage upon the property at the request of an in- sured, who is unable to read and relies upon the assurance given him and also leaves the policy in the custody of the agent. ^^^ ^=*Whited V. Germania Fire Ins. Co., 76 N. Y. 415, 13 Hun (N. Y.), 191; Redstrake v. Cumberland Mut. Fire Ins. Co., 44 N. J. Law, 294. ==■' McGuire v. Hartford Fire Ins. Co., 7 App. Div. 575, 40 N. Y. Supp. 300; McCabe v. Aetna Ins. Co. (N. D.), 81 N. W. 426; Phoenix Ins. Co. V. Copeland, 86 Ala. 551, 4 L. R. A. 848. § 107 when waiver must be i^' wkitixg. 243 Same — The Bi:tter Rule. § 107. But the better rule is that an oral waiver by a local agent after the delivery of the policy is not binding upon the insurer if the policy requires such waiver to be in writing. Where a policy permits an agent to exercise a specified authority, but prescribes that the principal shall not be bound unless the execution of the power should be evidenced by a "VATitten indorsement upon the policy, the condition is of the essence of the authority, and the consent or act of the agent not so indorsed is void.^^^ Speaking on this question the supreme court of Wisconsin recently said : "We know of no good reason that should cause us to declare such a cove- nant or stipulation void. It is a plain and exact stipulation of the contract upon which the minds of the parties met, and is as binding upon the assured as any stipulation in the policy. When the assured sought to have the local agent ^vaive the forfeiture, he knew by the terms of his policy that the agent had no power or authority to waive it unless it was indorsed on the policy in writing. This provision was a clear restric- tion and limitation of his power. It was the fault of the insured that he failed or omitted to have the waiver in- dorsed. The courts cannot relieve a party from his neglect to abide by the stipulations of his contract, nor make a new contract for him different from what he made himself." ^^"^ ""Walsh V. Hartford Fire Ins. Co., 73 N. Y. 10; Marvin v. Uni- versal Life Ins. Co., 85 N. Y. 278; Quinlan v. Providence Wash. Ins. Co., 123 N. Y. 360. -" Oshkosh Match Works v. Manchester Fire Assur. Co., 92 Wis. 510, 66 N. W. 525; Carey v. German American Ins. Co., 84 Wis. 80, 54 N. W. 20; Egan v. Westchester Ins. Co., 2^ Or. 289, 42 Pac. 611; East Texas Fire Ins. Co. v. Kempner, 87 Tex. 229; Northwestern Nat. Ins. Co. v. Mize (Tex.), 34 S. W. 670; O'Leary v. Merchants' & Bankers' Mut. Ins. Co., 100 Iowa, 173, 69 N. W. 420; Gould v. Dwelling House Ins. Co., 90 Mich. 302, 51 N. W. 455. 244: ^ AGENTS. §§ 108, 10i> Same — Stakdaed Policies. § 108. No agent can waive any of the provisions of a stand- ard policy except in the manner therein provided. An agent cannot waive any of tlie conditions of a standard policy, nor the manner of waiving therein required. And where the standard policy provides "no officer * * * shall have power or he deemed or held to have waived any provision or condition imless such waiver, if any, be written upon or attached hereto," it prohibits a waiver in any other manner.^'^^ Collection" of Premiums and Renewals. § 109. An agent empowered to issue policies has, in the ab- sence of some known limitation on his power in that particu- lar, authority to collect and receive premiums and renewals^ and to give reasonable credit therefor. It would seem well settled by the great weight of authority, that, in view of the general customs and usage of insurance agents, at least in the case of stock companies, a person deal- ing with an agent clothed with power to issue policies, has a right to assume, in the absence of notice to the contrary, that the agent has authority to accept the payment of pre- miums and to exercise his judgment as to mode of pay- ment, and to give a reasonable credit therefor. Thus an agent may accept cheeks or notes ;^^^ and may interpret the- ="^'Straker v. Phoenix Ins. Co., 101 Wis. 413, 77 N. W. 753; Ander- son V. Manchester Fire Assur. Co., 59 Minn. 189; Wadhams v. West- ern Assur. Co., 117 Mich. 514, 76 N. W. 6; Hicks v, British America Assur. Co., 62 N. Y. 284, 48 L. R. A. 425; Quinlan v. Providence Wash. Ins. Co.. 133 N. Y. 356. "=» Franklin Ins. Co. v. Colt, 20 Wall. (U. S.) 560; Jones v. New York Life Ins. Co., 168 Mass. 245; Tayloe v. Merchants' Fire Ins. Co., 9 How. (U. S.) 390; Miller v. Brooklyn Life Ins. Co., 12 Wall. (U. S.) 285. Or may agree that payment be deferred, Southern Life Ins. Co. V. Booker, 9 Heisk. (Tenn.) 607; Slobodisky v. Phenix Ins. ■§ 109 COLLECTION OF I'KEMIUMS AND KENEWALS. 245 contract as to tlie day the premimn falls due so as to Liud tlie company. ^''^ He may extend credit to the insured for tho payment of the premium and charge himself with the same ;^^^ €ven although he retains the renewal receipt at the request of the insured j^*^^ and the insurer will be bound although the property insured be destroyed before the term of credit has oxpired.^^^ He may bind the insurer by his acts and declara- tions inducing a member of a mutual benefit association to be- lieve that the time for payment of assessments would be •extended as on former occasions, even though the manager of the association has told assured that such assessments were overdue. ^''^ A mere collector for a life insurance com- pany has no implied authority to waive the requirement of a Co., 53 Neb. 816, 74 N. W. 271; Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117; New York Cent. Ins. Co. v. National Protection Ins. Co., 20 Barb. (N. Y.) 468; Sheldon v. Connecticut Mut. Life Ins. Co., 25 Conn. 207; Chickering v. Globe Mut. Life Ins. Co., 116 Mass. 321; Home Ins. Co. v. Curtis, 32 Mich. 402. But see Hambleton v. Home Ins. Co., 6 Biss. 91, Fed. Cas. No. 5,972. But the agent cannot bind the insurer by an agreement to give credit for the premium con- trary to the terms of the policy, in the absence of some usage or special instructions to the contrary. Wilkins v. State Ins. Co., 43 Minn. 177; Carter v. Cotton States Life Ins. Co., 56 Ga. 237; Globe Mut. Life Ins. Co. v. Wolff, 95 U. S. 329; Cyrenius v. Mutual Life Ins. Co., 18 App. Div. 599, 46 N. Y. Supp. 549; Pottsville Mut. Fire Ins. Co. V. Minneaua Springs Imp. Co., 100 Pa. St. 137. ^^'^ Campbell v. International Life Assur. Soc, 4 Bosw. (N. Y.) 298. See ante, note 13. =" Mechanics' & Traders' Ins. Co. v. Mutual Real Estate & Bldg. Ass'n, 98 Ga. 262, 25 S. E. 457; Farragut Fire Ins. Co. v. Shepley (Minn.), 80 N. W. 976. ^-^Tennant v. Travellers' Ins. Co., 31 Fed. 322. ="' Squier v. Hanover Fire Ins. Co., 18 App. Div. 575, 46 N. Y. Supp. 30. ^"Sweetser v. Odd Fellows Mut. Aid Ass'n, 117 Ind. 97; Zell v. Herman Farmers' Mut. Ins. Co., 75 Wis. 521; Knickerbocker Life Ins. Co. V. Norton, 96 U. S. 234; Wyman v. Phoenix Mut. Life Ins. Co., 119 N. Y. 274. 246 AGENTS. § 110 policy as to tlie time of tlie payment of premiums.^^^ An agent cannot, by giving an ante-dated receipt for a premium, revive a policy whicli has become forfeited for non-payment according to tbe terms of the contract. ^^^ He has no implied authority to accept payment of premium notes received by him and transmitted to the company and not in his possession at the time of payment. ^^'^ Stipulations ix Policy Against Giving Credit. § 110. Many policies in terms deny to an agent the right to give credit for premiums. Such stipulations in a policy are usually held valid; but being inserted by the insurer for its own benefit, they may be waived by it. Any Kmitation on the power of an agent to collect premiums or give credit therefor when brought to the knowledge of the assured is effectual. The insurer can hedge the agent round with restrictions and limitations, and may waive the same by an opposite course of dealing. Thus, the company may by its conduct estop itself from asserting the provision of its pohcy forbidding its agents to accept anything but cash in pay- ment of premiums. ^^^^ In Wilkins v. State Ins. Co.,^*'^ the agent of the defendant whose general duties were to solicit insurance, fill up blanks in printed policies already signed by the general officers of the company and left in his possession, countersign and deliver the same, and collect and remit the premiums, had assumed to waive irdmediate payment and had delivered the policy in suit =^» Bryan v. National Life Ins. Ass'n, 21 R. I. 149, 42 Atl. 513. See note 259. ="" Diboll V. Aetna Life Ins. Co., 32 La. Ann. 179. "" Long Creek Bldg. Ass'n v. State Ins. Co., 29 Or. 569, 46 Pac. 366. ="" Godfrey v. New York Life Ins. Co., 70 Minn. 224, 73 N. W. 1. =^'43 Minn. 177; Jackson v. Mutual Ben. Life Ins. Co., 79 Minn. 44, 81 N. W. 545. 82 N. W. 366, § 110 STIPULATIONS IN POLICY AGAINST GIVING CREDIT. 247 to the plaiiitifP, giving the Latter a temporary credit for the premium. The premium had not been paid before the fire occurred. The court said : "The question is whether the company was bound by the act of the agent in waiving im- mediate payment of the premium, and giving plaintiff credit. The policy contains a provision that 'no insurance shall be considered as binding until actual payment of the premium.* * * * It is the undoubted right of the company, as in the case of any principal, to impose a limitation upon the au- thority of its agents. And it is as elementary as it is reason- able that if an agent exceeds his actual authority, and the person dealing with him has notice of that fact, the principal is not bound ; and it is upon this proposition that defendant chiefly relies. There are tw^o provisions in the policy to which he refers in support of his contention. The first is that 'no officer, agent, or representative of the company, shall be held to have waived any of the terms or conditions of this policy unless such waiver shall be indorsed thereon.' * -X- * -jj^jg provision will not support defendant's con- tention, but the other or second one does. It is as follows: 'this policy is made and accepted upon the above express terms, and no part of this contract can be Avaived except in writing signed by the secretary of the company.' The words 'policy' and 'contract' are evidently here used as synonymous, and the latter clause clearly means that none of the terms of the policy can be waived by anyone except the secretary. Conceding that this would not prevent the company itself, through its Iward of directors, or other body representing it in its corporate capacity, from waiving any of the terms or conditions of the policy, yet it is a plain declaration that no representative of the company but the secretary can do so, and hence that no local agent can do it. This, being in the policy i^-self, was notice to plaintiff that this agent * * * 248 AGENTS. - § 110 had no authority to Tvaive the condition that no insurance would be binding until payment of the premium. It is no answer to say that he did not read the policy, and hence did not know what it contained. He was bound to know this; and, by accepting the policy, he is estopped from setting up powers in the agent in opposition to the express limitations contained in it." But a general agent who collects enough cash on the first premium to pay the part thereof which is due to the insurer, may extend credit for the balance of the premium which goes to him by way of commission for effecting the insurance ; and a policy delivered under such conditions is binding on the insurer, though the terms of the policy require the first pre- mium to be paid in cash before the delivery of the policy. ^^^* If the policy provides that payment of the premium must be ]nade on or before the day it falls due, and every renewal certificate contains notice to the effect that no agent is author- ized to receive any premium after it becomes due without special permission from the company's officers, it is beyond the power of local and limited agents to nullify these pro- visions and bind their principal by a course of dealing with policy holders in violation thereof. ^^^ Thus where the policy stipulates that it will be forfeited if the renewal premium is not paid when it becomes due, and an indorsement is that "Agents of this company will receive premiums when due, but are not authorized in any case to make, alter or discharge contracts," the acceptance of a renewal premium by an agent after it becomes due, does not bind the company, unless it ratifies his act.^'^° ^•^^ John Hancock Mut. Life Ins. Co. v. Schlink, 175 111. 285. ^'» Lewis V. Phoenix Mut. Life Ins. Co., 44 Conn. 72. ""Franklin Life Ins. Co. v. Sefton, 53 Ind. 380; Koelges v. Guard- ian Life Ins. Co., 2 Lans. (N. Y.) 480; Bouton v. American Mut. Life § 110 STIPULATIONS IN POLICY AGAINST GIVING CREDIT. 219 <3ontra — Waiver of Stipulation against Credit. Some courts, acting upon the theory that the collection of premiums and renewals are mthin the general scope of the agent's authority, have held that the provisions of the policy ■denying agents the right to deliver or renew policies with- •out prepayment, may be effectually waived by the agent. Thus in New York an insurer is presumed to know and is bound by the terms of a contract entered into by its agent providing for the payment of the first premium by note, not- withstanding a provision in the policy that it shall not take lake effect until the first premium is paid.-'^^ And in Ne- braska and Arkansas the unconditional delivery of a policy •without requiring payment of the premium in cash, by a general agent of the company having authoritj^ to make terms for insurance, countersign and deliver policies, and collect premiums, operates as a waiver of a provision requiring cash papnent of premiums.^"^^ Where application for insurance is made to an agent witliout any company being desigTiated, and such agent writes a policy providing that there should be no liability until the premium is paid, and that "it is expressly covenanted by the parties hereto that no officer, agent or repre- "sentative of the company shall be held to have waived any Ins. Co., 25 Conn. 542; Ryan v. World Mut. Life Ins. Co., 41 Conn. 168; Acey v. Fernie, 7 Mees. & W. 1.>1; Catoir v. American Life In- surance & Trust Co., 33 N. J. Law, 487; Wall v. Home Ins. Co., 8 Bosw. (N. Y.) 597. =" Stewart v. Union Mut. Life Ins. Co., 155 N. Y. 257, 27 Ins. Law J. 698, 49 N. E. 876; Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117. But see Cyrenius v. Mutual Life Ins. Co., 18 App. Div. 599, 46 N. Y. Supp. 549; Southern Life Ins. Co. v. Booker, 9 Heisk. (Tenn.) 606; Farnum v. Phcenix Ins. Co., 83 Cal. 246, 17 Am. St. Rep. 233, and note. "-American Employers' Liability Ins. Co. v. Fordyce, 62 Ark. 562, 36 S. W. 1051; Pythian Life Ass'n v. Preston, 47 Neb. 374, 66 N. W. 445. 250 AGENTS. § 111 of tlie terms or conditions of this policy, unless sucli waiver shall be indorsed hereon in writing," the question of agency is not affected because the principal was undisclosed ; and the agent has authority to bind the company by a parol agree- ment extending the time for making payment of the premium, the limitation quoted not being on his power, but merely relating to the manner in which the exercise of it should be evi- denced.^"^^ The recital in a policy of life insurance issued by a non-resident company, that "the first premium is to be paid in advance," is not notice to the insured that the general agent of the company in the state has no authority to accept a note for the premium, where he furnishes a printed blank on which to execute the note and accepts the note executed thereon, and the policy and receipt are thereupon delivered to the appli- cant, though the policy provides that "no person except the president or secretary is authorized to make, alter, or discharge contracts, or to waive forfeitures." ^'^^ Manner of Payment of Premium:. gill. An agent cannot bind the company by taking anything but money in payment of premiums, except in cases where general custom or his course of dealing, with the knowledge of his principal, warrants some other inference. It is an elementary principle, applicable alike to all cases of agency, that 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 ="' Young V. Hartford Fire Ins. Co., 45 Iowa, 377; Mississippi Valley Ins. Co. v. Neyland, 9 Bush (Ky.), 430; Sheldon v. Connecti- cut Mut. Life Ins. Co., 25 Conn. 207; Trustees of First Baptist Church V. Brooklyn Fire Ins. Co., 19 N. Y. 305; Bowman v. Agricult- ural Ins. Co., 59 N. Y. 521. "^Washington Life Ins. Co. v, Menefee's Ex'r (Ky.), 53 S. W. 260; Connecticut Ind. Ass'n v. Grogan's Adm'r (Ky.), 52 S. W. 959. § 111 MANNER OF PAYMENT OF PKEMIUM. 251 employment, and it is as effectual as if it had been expressed in its most formal terais. Thus the taking of a horse by an agent of an insurance company to pay the premium of a policy is ultra vires, and a fraud as respects the company. No valid contract could arise from such a transaction.^"^ Nor is an insurance company bound to approve an application sent it by its soliciting agent even though he had already accepted livery hire as payment for the premium, unless the agent had either actual or apparent right to contract for livery service at the expense of the insurer.^^^ In a Georgia case the policy provided that the premiums were to be paid an- nually— $100 by a loan and $107.30 in cash, and was to be void if pajTiient was not made according to its terms. It was expressed in the application that the policy should not be bind- ing until the first premium was received by the company during the assured's life-time and good health. Defendant's agent contracted with insured that the premium • for the first year should be paid in ser\dces to be rendered by the latter as medical examiner for the company. If such ser- vices exceeded in value the amount of the first year's pre- mium, a credit was to be given for the excess on the premium for the second year. The death of insured occurred during the first year. The fees for his services did not amount to as much as the premium. Held, that the act of the agent Avas in excess of his authority and there could be no recovery. ^'^^ =■' Hoffman v. John Hancock Mut. Life Ins. Co., 92 U. S. 161; Cyrenius v. Mutual Life Ins. Co., 18 App. Div. 599, 46 N. Y. Supp. 549; Crawford County Mut. Ins. Co. v. Cochran, 88 Pa. St. 230; ante, note 30. But see Van Werden v. Equitable Life Assur. Soc, 99 Iowa, 621, 68 N. W. 892; John Hancock Mut. Life Ins. Co. v. Schlink, 175 111. 284. ""Winchell v. Iowa State Ins. Co., 103 Iowa, 189, 72 N. W. 503. *" Carter v. Cotton States Life Ins. Co., 56 Ga. 237; Anchor Life Ins. Co. V. Pease, 44 How. Pr. (N. Y.) 385, 4 Bigelow, Life & Ace. Ins. Rep. 215. 252 AGENTS. § 112 But an agreement made by a local agent and approved by tlie general agent of the territory in which it was made, that fees due the insured for services to the company should be applied in payment of premiums on his policy, constitute a waiver of the conditions of the policy regarding payment. ^'^^ The insurer is not concerned in the arrangement made be- tween the agent and the insured regarding payment of that part of the premium which goes to the agent in payment of his commission. ^^^^ Agent Taking Note Payable to Himself. An insurance company is chargeable with the fraud of Its general manager and state agent in procuring a renewal of a premium note payable to himself upon a false promise that he would return the original which had in fact been assigned to an innocent holder, where it had furnished him blank receipts to fill out when premium notes were taken, and issued a policy to the maker without having received a cash payment, and by other officers assuming to act for the company induced the maker to believe the agent had authority to take and renew premium notes. ^'^^ Power of Agent to Waive Proofs of Loss.**" § 112. A general agent of the insurer, or its adjuster, can ■waive proofs of loss; and service of proofs of loss on them is service on the insurer. "'Willcuts V. Northwestern Mut. Life Ins. Co., 81 Ind. 300; Van "Werden v. Equitable Life Assur. Soc, 99 Iowa, 621, 68 N. W, 892. ="« John Hancock Mut. Life Ins. Co. v. Schlink. 175 III. 284. -"First Nat. Bank of Dubuque v. Getz, 96 Iowa, 139, 64 N. W. 799; Godfrey v. New York Life Ins. Co., 70 Minn. 224, 73 N. W. 1; New York Life Ins. Co. v. Rolirbough, 2 Willson Civ. Cas. Ct. App. (Tex.) 167. Compare Jackson v. Mutual Ben. Life Ins. Co., 79 Minn. 44, 81 N. W. 54.5, 82 N. W. 366. ^ See post, c. 14, "Waiver of Notice and Proofs of Loss." § 113 CLERKS AND SUB-AGENTS. 253 A special or local insurance agent cannot waive proofs of loss. Service of proofs of loss on them is not sufacient. An agent with power to waive proofs of loss can waive the provisions of the policy requiring such waiver to be in writing and indorsed on the policy, except where the policy is a stand- ard policy. Clerks and Sub-agents. § 113. General, special and local agents of insurance compa- nies have as an incident to their powers the right to employ clerks and sub-agents to perform, or assist them in performing, the detail and ministerial portion of their duties to their prin- cipal. The powers which may be delegated to clerks and sub-agents must be determined by the nature of the business required to be done by the primary agent to accomplish the purposes of the agency, and the customs of the locality. Insurance companies are presumed to know, when tliey employ agents, that according to the general course of busi- ness, the agents will have clerks and sub-agents to assist them in the detail and clerical work of the agency, and that an agent could not in very many cases transact the business intrusted to his care alone and unaided. It being therefore reasonable and customary for agents to employ others in doing the work, it is just and reasonable that the principal should be held responsible for the acts of the agent's employes and sul>agents. True, the general rule is, that agents cannot delegate their power without express authority from their principals ; but in many cases such authority may be implied, as where it is nec- essary to accomplish the purposes of the agency, or where it is the ordinary custom so to do, or where it is understood by the parties to be the mode in which the agency might or could be carried on. All services are not of sucli a personal nature as to come within the rule delegatus non potest delegare. Generally speaking, therefore, agents of insurance companies. 25-i AGENTS. § 113 authorized to contract for risks, collect and receive premiums, and deliver policies, may confer upon tlieir subordinates tlio same powers. ^^^ An insurance company -wliich k^ows that a clerk in* the office of its general agent passes on applications and signs the agent's name, and is in the habit of acting for him in such matters, is responsible for the acts of such clerk "within the scope of the agent's authority in connection with the business. ^^^ A provision in a policy that "only such persons as shall hold the commission of this company" shall be considered as its agents in any transaction relating to the insurance, will not prevent the employment by the authorized agents of sucli company, of clerks who may act on behalf of such agents, and who stand in the same relation to the principal as the agents, and can bind the company within the proper scope of their employment. ^^^ Though an agent cannot delegate his au- thority, he may employ clerks and sub-agents, whose acts, done in his name and recognized by him, either specially or ^'^Deitz V. Providence Wash. Ins. Co., 33 W. Va. 526, 31 W. Va. 851; Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117; Bennett v. Council Bluffs Ins. Co., 70 Iowa, 600; Goode v. Georgia Home Ins. Co., 92 Va. 392, 30 L. R. A. 842; Arff v. Star Fire Ins. Co., 125 N. Y. 57; Steele v. German Ins. Co., 93 Mich. 81; Michigan F. & M. Ins. Co. V. Wich, 8 Colo. App. 409, 46 Pac. 687; Kuney v. Amazon Ins. Co., 36 Hun (N. Y), 66; Runkle v. Citizens' Ins. Co., 6 Fed. 143 (distin- guishing powers which can from those which cannot be delegated) ; Krumm v. Jefferson Fire Ins. Co., 40 Ohio St. 225. -^- Fitzpaterick v. Hartford Life & Annuity Ins. Co., 56 Conn. 116; German Fire Ins. Co. v. Columbia Encaustic Tile Co., 15 Ind. App. 623, 43 N. E. 41. ^»^Arff V. Star Fire Ins. Co., 125 N. Y. 57, 10 L. R. A. 609; Inter- national Trust Co. v. Norwich Union Fire Ins. Soc, 71 Fed. 81, 17. C. C. A. 608; Bennett v. Council Bluffs Ins. Co., 70 Iowa, 600, 31 N. W. 948; Waldman v. North British & Mercantile Ins. Co., 91 Ala. 170. And notice to such clerk is notice to the company. Phceni.'^ Ins. Co. V. Ward, 7 Tex. Civ. App. 13, 26 S. W. 763; Bennett v. Council Bluffs Ins. Co., supra. § 113 CLERKS AND SUB- AGENTS. 255 according to liis usual method of dealing with them, -will he considered as his acts and will bind his principal.^^^ Where an insurance agent permits his sub-agent to receive premiums from and deliver policies to the insured, the acts of the sub- agent are regarded as the acts of the agent, and persons dealing with the sub-agent have a right to judge of the extent of his authority by the nature of the business intrusted to him ; and the waiver by such sub-agent of a condition of a policy is the waiver of the agent, and of the company he represents. ^^^ The insurer's assent to an assignment of the policy is properly evidenced by the signature of sub-agents as "agents," although the fact of their sub-agency is not made apparent in the writing. ^^^ One employed by the commissioned agent of an insurance company to solicit risks, make surveys, collect premiums and deliver policies, and who receives as compensation a share of the earnings of the business, and is accustomed to fix rates, which are accepted and approved by the agent with the knowledge of the officers of the company, is an agent of the latter, and his acts bind it.^^^ A. gave B. power of attorney to underwrite any policy not exceeding one hundred pounds and to subscribe it in his name, and to settle and adjust losses, etc. Held, that although B. cannot delegate his whole authority to another, yet, having signed a slip for a policy, *" Lingenf elter v. Phoenix Ins. Co., 19 Mo. App. 252; International Truot Co. V. Noiwich Union Fire Ins. Soc, 71 Fed. 81, 17 C. C. A. 608. =^'Grubbs v. North Carolina Home Ins. Co., 108 N. C. 472; Deitz V. Providence Wash. Ins. Co., 33 W. Va. 526, 31 W. Va. 851. See contra Waldman v. North British & Mercantile Ins. Co., 91 Ala. 170, 24 Am. St. Rep. 883. "'" Chauncy v. German American Ins. Co., 60 N. H. 428. ^' Davis V. Lamar Ins. Co., 18 Hun (N. Y.), 230; Van Schoick v. Niagara Fire Ins. Co., 68 N. Y. 434; Chase v. People's Fire Ins. Co., 14 Hun (N. Y.), 456; Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117. 256 AGENTS. § 114: the signature of liis clerk for liim and in liis absence, to a policy written in pursuance of the slip, is a good execution of the power, being only a ministerial act, which might be done by another by his authority. ^^^ But an agent's clerk who has no authority to contract for or issue policies, cannot waive a provision avoiding a policy if the insured property becomes encumbered by a chattel mortgage. ^^^ Delegation" of Power. § 114. Authority implying the exercise of judgment or dis- cretion cannot, in the absence of a known usage, or unless justified by the necessities of the case, be delegated by the agent to another without the consent of the principal. The adjusting agent of an insurance company has no power to delegate his authority, and the company is not bound by the acts of a sub-agent appointed by him, in the absence of a showing that he customarily delegated his authority to others with the consent of the company.^^^ Nor can the authority conferred upon an insurance agent to allow extensions of time on premium notes, be delegated without consent of the com- pany. ^^^ The directors of a mutual insurance company "^ Mason v. Joseph, 1 Smith, J. P. Eng. 406. ''"German-American Ins. Co. v. Humphrey, 62 Ark. 348, 35 S. W. 428, 25 Ins. Law J. 658; Dwelling-House Ins. Co. v. Snyder, 59 N. J. Law, 18, 34 Atl. 931. ^^'^'^ Brown v. Railway Passenger Assur. Co., 45 Mo. 221; Farmers' Mut. Fire Ins. Co. v. Chase, 56 N. H. 341; McClure v. Mississippi Valley Ins. Co., 4 Mo. App. 148; Runkle v. Citizens' Ins. Co., 6 Fed. 143. '"Monroe v. British & F. M. Ins. Co. (C. C. A.), 52 Fed. 777; Albers v. Phoenix Ins. Co., 68 Mo. App. 543; Ruthven v. American Fire Ins. Co., 92 Iowa. 316, 60 N. W. 663. "= Home Fire Ins, Co. v. Garbacz, 48 Neb. 827, 67 N. W. 864. §§ 115, 116 TERMINATION OF AGENCY. 257 cannot delegate a right conferred on them to represent absent members and vote for them at meetings. ^^^ Same — Evidence of Authority of Sub-agent. § 115. The one asserting power in a sub-agent has the bur- den of proving the existence and extent of the power. One who desires to avail himself of the acts of another whom he claims was a sub-agent, must prove the appointment of the sub-agent bj the agent, and the power of the latter to make such an appointment. ^'^'^ Termination of Agency. § 1 16. The authority of an agent to represent an insurer may be terminated by the terms of the appointment, by the act of the parties, or by operation of law. Persons who deal with an agent in the particular business with which he was intrusted may rely upon the continuance of his authority until informed of its revocation, and are not afieeted by secret or special agreement limiting or terminating the agent's authority. Statutory agencies can only be revoked in the manner pre- scribed by statute, and after they have served the purpose in- tended by the law. The revocation or cessation of an agent's authority termi- nates the authority of all those who derived their power through him. Where an agency is created for a given or definite period, or until the happening of a particular event, the expiration of that period or the happening of that event operates to ter- minate the agency. And it may be terminated at any time, unless otherwise stipulated in the contract of employment, by revocation of authority by the principal, or by the renuncia- "' Farmers' Loan & Trust Co. v. Aberle, 18 Misc. Rep. 257, 41 N. Y. Supp. 638. "^American Underwriter's Ass'n v. George, 97 Pa. St. 238; ante, § 77. KERR, INS.— 17 258 AGENTS. § 116 tion of his agency by tlie agent. It may always be terminated by the mutual consent of the parties, subject to conditions hereinafter mentioned. Parol revocation or renunciation is sufficient. ^^^ One who is insured in a mutual insurance company accepts the policy with all the conditions and limitations contained in the charter, by-laws, and policy, and is bound by pro- visions therein denying to agents any powers after the delivery of the policy.^^® Where a firm or corporation which has appointed an agent is dissolved, or goes into bankruptcy, the agency is thereby revoked. ^^'^ The agency ceases when the company goes out of business. ^''^ Authority to two persons to act as "agent," terminates with the death or insanity of either ;^^^ but a contract authorizing a firm of insurance brokers to procure and keep alive fire insurance for a business =''' Copeland v. Mercantile Ins. Co., 6 Pick. (Mass.) 198; Gundlach V. Fischer, 59 111. 172; Oregon & W. Mortg. Sav. Bank Co. v. Ameri- can Mortg. Co., 35 Fed. 22; Story, Agency, §§ 463--481. "It may have been called into being for the express purpose of performing a single act or series of acts, and, these being performed, the agency would be terminated by the accomplishment of that for which it was cre- ated. * * * So, subsequent changes in the conditions or relation of the parties may render the continuance of the agency incon- sistent or impossible, and it will be terminated by operation of law." Mechem, Agency, § 199 et seq. =»» Bourgeois v. Mutual Fire Ins. Co., 86 Wis. 402, 57 N. W. 39. '"^Rowe V. Rand, 111 Ind. 206; Schlater v. Winpenny, 75 Pa. St. 321; Montross v. Roger Williams Ins. Co., 49 Mich. 477; Whitworth V. Ballard, 56 Ind. 279. '"' North Carolina State X.ife Ins. Co. v. Williams, 91 N. C. 69. ="" Hartford Fire Ins. Co. v. Wilcox, 57 111. 180; Martine v. Interna- tional Life Assur, Soc, 62 Barb. (N. Y.) 181, 53 N. Y. 339; Salisbury V. Brisbane, 61 N. Y. 617; Rowe v. Rand, 111 Ind. 206. As to the effect upon agency of war between the country of the principal and that of the agent, see New York Life Ins. Co. v. Davis, 95 U. S. 425, and New York Life Ins. Co. v. Statham, 93 U. S. 24, holding that it dissolves the relation; and Robinson v. International Life Assur. Soc, 42 N. Y. 54; Sands v. New York Life Ins. Co., 50 N. Y. 626, and § 116 TERMINATION OF AGENCY. 259 firm, and providing that any cliange in tlie membcrsliip of tho firms, or either of them, should "not in any wise release either of said firais or any of the present members" therefrom, is not terminated by the retirement of one of the brokers from the firm.300 Secret Revocation. The presumption is that an existing agency will continue. After an insurance company has appointed an agent in a particular business, parties dealing with him in that business have a right to rely upon the continuance of his authority, until they are in some way informed of its revocation. It cannot secretly withdraw its agency from agents who have issued a policy, so as to relieve itself from their subsequent acts in connection with the policy. Unless revocation of the agent's authority be brought home to the party who deals with him in reliance upon a known pre-existing authority, the principal will be bound by the dealings of the agent within the scope of such authority to the same extent as if the rev- ocation had not been attempted. But a revocation is binding upon all to whom it is communicated. If known only to the principal and agent, it would only be effectual between, them.301 Statutory Agency. Where a statute requires each foreign insurance company doing business within the state to appoint a resident agent Manhattan Life Ins. Co. v. Warwick, 20 Grat. (Va.) 614, maintain- ing the opposite doctrine. '•^ Tannebaum v. Rosenthal, 44 App. Div. 431, GO N. Y. Supp. 1092. "" Southern Life Ins. Co. v. McCain, 96 U. S. 84 ; Montross v. Roger Williams Ins. Co., 49 Mich. 477; McNeilly v. Continental Life Ins. Co., 66 N. Y. 23; Springfield F. & M. Ins. Co. v. Davis (Ky.), 37 S. W. 582; ante, notes 31, 32. .260 AGENTS. §117 •witliin that state upon wliom process miglit be served, a com- pany having appointed such an agent pursuant to the statutory requirement can only revoke his authority upon the appoint- ment of another.^^^ And where the statute provides that "whoever solicits insurance on behalf of an insurance com- pany," etc, shall be deemed the agent of the insurer, and that service of the summons may be made upon any agent of the insurer, the agency thus created by the statute cannot be ter- minated by the insured, and does not cease to exist by lapse of time ; but is continuous, at least for the purpose of enabling the court to acquire jurisdiction over the insurer in a suit on a policy issued by such agent.^*^^ Termination of the Powers of Sub-agent. The termination of the authority of an agent brings to an end the powers of all sub-agents and clerks appointed by him and who derive their power through him, and this rule applies even though the agent was given the right of substitution.^^^ Where an agent has appointed a sub-agent or substitute with- out direct authority so to do, and for his own convenience merely, the death of the agent annuls the authority of the sub- agent or substitute.^*^^ Adjttstees. § 117. An adjuster is an agent of the insurer clothed with authority to represent it in investigating the origin, cause, and extent of a loss, and in all matters relating to the settlement and adjustment of a loss. ^■= Gibson v. Manufacturers' F. & M. Ins. Co., 144 Mass. 81; Michael V. Mutual Ins. Co.. 10 La. Ann. 737. 303 pj.g^ Miller Brewing Co. v. Council Bluffs Ins. Co., 95 Iowa, 31,. 63 N. W. 566. 2"^ Lehigh Coal & Navigation Co. v. Mohr, 83 Pa. St. 228. ""Jackson Ins. Co. v. Partee, 9 Heisk. (Tenn.) 296; 'Mechem, Agency, §§ 252, 262, 270; 2 Livermore, Agency, § 307; Martine v. International Life Assur. Soc, 62 Barb, (N. Y.) 181; Guthrie v^ Armstrong, 1 Dowl. & R. 248. § 117 ADJUSTERS. 2G1 He can by his acts or declarations waive the conditions of the policy requiring insured to furnish proofs of loss. He cannot delegate his authority. The business of an adjusting agent of an insurance com- pany is to ascertain the nature and amount and circumstances of a loss, and agree with the insured on a settlement when that can be done. It is the adjuster who determines the amount of a claim, as a claim against the company. Prima facie, his powers are co-extensive with the business intrusted to his care. lie has ordinarily the power to act in all mat- ters pertaining to the adjustment of the loss, and to deal with the loss, and make a settlement with the insured. And if, in so doing, he exceeds his authority, that is a matter ex- clusively within the knowledge of the insurers, and they must prove it.^°^ Instructions to a sub-agent by a general ad- juster to "see aliout a loss and look it over," give him authority to adjust a loss, and to waive breaches of the con- ditions of the policy.^"'^ But an agent who has authority to adjust a particular loss cannot, by virtue thereof, adjust a different loss, and whatever he may have asserted with reference to such different loss cannot bind his principal.^"^ Special authority to an agent to adjust a particular loss or damage does not confer authority to bind the company by a promise to pay such loss or damage, where the policy pro- vides that adjustment shall be made without reference to the *"' Anderson's Law Diet.; First Nat. Bank of Devil's Lake v. Man- chester Fire Assur. Co., 64 Minn. 100; First Nat. Bank of Devil's Lake v. Lancashire Ins. Co., 65 Minn. 462; Ramsey v. Philadelphia Underwriters' Ass'n, 71 Mo. App. 380; Aetna Ins. Co. v. Shryer, 85 Ind. 362; Aetna Ins. Co, v, Maguire, 51 111. 342; Enos v, St, Paul F, & M. Ins. Co., 4 S. D. 639, 57 N. W. 919. "" Swain v. Agricultural Ins. Co., 37 Minn. 390. '"'Hartford Fire Ins. Co. v. Smith, 3 Colo. 422; Monroe v. British & F. M. Ins Co. (C. C. A.), 52 Fed. 777. 262 AGENTS. §117 other terms and conditions of the contract.^"^ An authority to adjust a loss occurring on the British coast cannot be pre- sumed from the fact that the Boston agents of a British company were authorized to issue policies, receive the pre- miums, and represent the insurer in legal proceedings in Massachusetts.^ ^^ Statutory Regulation. The act of an adjuster in attending to his duties in connec- tion with a loss, is not "transacting insurance business" with- in the meaning of a statute regulating the transaction of insurance business.^ ^^ A professional adjuster, employed by different companies as they require his services, has a right to follow his calling in any state where his employment takes him. That is a right guaranteed him by the constitution of the United States, and the fact that he goes to a particular state to adjust a loss for an unlicensed foreign company does not make him its agent so as to subject him to a penalty within the terms of a statute regulating the business and agents of foreign insurance com- panies. Any law abridging the agent's rights in these partic- ulars would be void.^^^ Waiver of Proofs of Loss by Adjuster. The adjuster of an insurance company may by his acts or declarations waive the provisions of a policy requiring the ""^ Queen Ins. Co. v. Young, 86 Ala. 424. ^o Monroe v. British & F. M. Ins. Co., 5 U. S. App. 179, 52 Fed. 777, 3 C. C. A. 280. '"People V. Gilbert, 44 Hun (N. Y.), 522. "= French v. People, 6 Colo. App. 311, 40 Pac. 463, 24 Ins. Law J. 678. See, also. Weed v. London & L. Fire Ins. Co., 116 N. Y. 106: Union Mut. Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 222. § 117 ADJUSTERS. 263 service by the insured of notice and proofs of loss.^^'^ Power lo "adjust" a loss under a policy includes the power to waive formal proofs of loss.^'^ A limitation on the power of an agent to waive conditions in a policy of insurance, does not operate to limit the usual powers of an adjuster after the policy has become a demand ;^^^ and the provisions of a policy that only a specific agreement indorsed thereon shall be con- strued as a waiver of any condition, and that the agent of the insuring company has no authority to waive any condition, do not prevent the company's adjuster from waiving a con- dition requiring insured to furnish proof of loss;^^® e. g. by refusing to pay a loss to the assignee of the policy on the ground that a mortgage held by the assig-nee was unauthor- ized,^ ^^ or by taking written sworn examinations of the assured, requiring him to furnish duplicate bills of goods, re- ferring to the examinations and bills of goods as proofs of loss, stating to the assured that nothing more is required and offering to pay portions of the loss.-^^^ But an offer by an adjuster to compromise is not a waiver of any rights.^ ^* «^ Dibbrell v. Georgia Home Ins. Co., 110 N. C. 193 ; German Ins. Co. V. Gray, 43 Kan. 497; McCollum v. Liverpool, L. & G. Ins. Co., 67 Mo. App. 66; Brown v. State Ins. Co., 74 Iowa, 428, 38 N. W. 135; Rockford Ins. Co. v. Williams, 56 111. App. 338; Hanover Fire Ins. Co. V. Gustin, 40 Neb. 828, 59 N. W.''375; Faust v. American Fire Ins. Co.. 91 Wis. 158. 64 N. W. 883. '"Ruthven v. American Fire Ins. Co., 102 Iowa, 550, 71 N. W. 574. "'Indiana Ins. Co. v. Capehart, 108 Ind. 270; Roberts, Willis & Taylor Co. v. Sun Mut. Ins. Co., 13 Tex. Civ. App. 64, 35 S. W. 955. "" Huesinkveld v St. Paul F. & M. Ins. Co. (Iowa), 76 N. W. 696. "'Western Assur. Co. v. McCarty, 18 Ind. App. 449, 27 Ins. Law J. 187, 48 N. E. 265. "'Wright v. London Fire Ins. Co., 12 Mont. 474, 19 L. R. A. 211; Anthony v. German American Ins. Co., 48 Mo. App. 65; Aetna Ins. Co. V. Shyer. 85 Ind. 362; Searle v. Dwelling House Ins. Co., 153 Mass. 263. As to effect of service of process on adjuster, see Lesure Lumber Co. v. Mut. Fire Ins. Co., 101 Iowa, 514, 70 N. W. 761. "» Richards v. Continental Ins. Co., 83 Mich. 508. 2Gi AGENTS. §§ 118, 119 A.PPRAISERS. § 118. Appraisers are arbiters appointed by the insurer and the insured to settle disputes as to amount of loss. They must be disinterested. Most insurance policies contain a clause providing in effect that "in case of loss and a failure of the parties to agree as to the amount of the loss, the amount of such loss shall be deter- mined by disinterested appraisers" or arbitrators. Such pro- visions are valid. The evident object is to furnish a con- venient court of appraisal and arbitration to settle real dif- ferences of opinion, without the delay and cost of a suit for that purpose.^ ^^ Ratification" and Adoption of Act op Agent. § 119. If an insurance company ratifies or adopts an unau- thorized act of its agent, or of one assuming to act for it, the act is as bindig as though authorized when done. An insurer can only adopt and ratify acts which it could au- thorize others to do. Agents can only ratify what they can authorize. What one assumes to do for another without any authority, or in excess of his actual authority, does not primarily bind the latter. The mere assumption of authority by a spurious agent, or the assumption of false authority by an actual agent, does not alone give grounds for claims against a principal. But the doing of any act without previous authority may be ratified and adopted, if the act be of such a nature and kind that its commission could have been entrusted to an agent. And an adoption or ratification by an insurer of such unau- thorized act, with full knowledge of the facts, is equivalent to a precedent authority to perform the act, whether arising through contract or tort. The ratification or adoption relates ^" Post, c. 15, "Arbitration and Award." § 119 KATIFICATION AND ADOrXION OF ACT OF AGENT. 2G5 back to the time of inception of the transaction, and the act is as binding as though it was authorized when done/''^^ An act which is in excess of the charter of a corporation involves an unauthorized exercise of corporate power on the part of the company, and this objection cannot be obviated by any subsequent ratiiication, either by the agents, or the .shareholders of the corporation. Hence an insurer cannot ratify an act prohibited by law, or by its charter, or which is contrary to public policy.^^^ An agent can bind his principal by ratification of another's act, only when the act done is within the scope of the agent's authority. He cannot ratify his own unauthorized act, nor that of his co-agent, or superior. A ratification must be effected by the principal, or by some agent by whom the act might rightfully have been performed.^ ^^ Illustrations of Ratification. Upon being notified of an unauthorized act of its agent the principal has a right to elect whether he will affirm it, or not ; and so long as the rights of the parties are unchanged he cannot be prevented from exercising such right because the other party prefers to consider the contract invalid.^ ^^ If the prin- ^'"In re Insurance Co. of Pennsylvania, 22 Fed. 109; McArthur v. Home Life Ass'n, 73 Iowa, 33S, 35 N. W. 430; National Life Ins. Co. V. Minch, 53 N. Y. 144; Andrews v. Aetna Life Ins. Co., 92 N. Y. 596; Kansas Farmers' Fire Ins. Co. v. Saindon, 52 Kan. 486, 39 Am. St. Rep. 356; Southern Life Ins. Co. v. McCain, 96 U. S. 84; Morse v. St. Paul F. & M. Ins. Co., 21 Minn. 407; Abraham v. North German Ins. Co., 40 Fed. 717; Godfrey v. New York Life Ins. Co., 70 Minn. 224. ■ » '"Swett V. Citizens' Mut. Relief Soc, 78 Me. 541; Morawetz, Prlv. Corp. § 619. »-' Mound City Mut. Life Ins. Co. v. Huth, 49 Ala. 530; Union Mut. Life Ins. Co. v. Masten, 3 Fed. 881; Crim's Appeal, 66 Pa. St. 474; Huesinkveld v. St. Paul F. & M. Ins. Co. (Iowa), 76 N. W. 697. '-* Andrews v. Aetna Life Ins. Co., 92 N. Y. 596. 266 AGENTS. § 119 cipal does not promptly repudiate tlie unautliorlzed act lie will be held to have ratified it.^^^ Defendant's agent, authorized to make contracts, knew that plaintiff had paid the premium to a broker and accepted the responsibility of the latter. Subsequently plaintiff desired to make an addition to the premises which would increase the risk, and applied to the agent for an indorsement of his consent on the policy. The agent told him that the policy would have to be forwarded to the company ; but the consent would be given, he might rely upon it and go on with liis addition. The company knew that the policy had been issued, and had notified the agent that it declined to take the risk; of this, the agent did not inform plaintiff. Afterward the agent sent the policy to the com- pany for the indorsement plaintiff desired, and informed it of the transaction concerning the premium. The policy was kept without notifying the agent that consent would not be given, or that it would be deemed canceled. By its silence the company was held to have ratified the act of its agent in accepting the responsibility of the broker.^ ^^ Plaintiffs applied for insurance to one whom they thought to be defendant's agent. He assumed to act as such, wrote the application, and sent it to defendant with his name upon it as agent. It was received and a policy issued in pursuance of it, the name of the assumed agent being upon it ; it was sent to him, and he remitted the premium. These acts amounted to a recognition of the assumed agency, and defendant was bound by his knowledge concerning misdescriptions in the policy and by his waiver of conditions therein.^^'^ ='=' Southern Life Ins. Co. v. McCain. 96 U. S. 84; Benninghoff v. Agricultural Ins. Co., 93 N. Y, 495. ^=' Bennett v. Maryland Fire Ins. Co., 14 Blatchf. 422, Fed. Cas. No. 1,321. °" Packard v. Dorchester Mut. Fire Ins. Co., 77 Me. 144. 8 120 DUTIES AND LIABILITIES OF AGENTS. 267 B. had power of attorney from A. to sign his name to poli- cies of insurance. B. signed a slip for a policy, and his clerk, in his absence and for him, executed a policy conformably to the slip. After it was so executed it was shown to A. and he offered terms of settlement. Held, an adoption of the clerk's act.^^^ In defense to an action on a policy, a breach of warranty was alleged. It w\as replied that the statements relied on as wai-ranties w^ere inserted in the application by the agent of defendant, without fraud or collusion on plaintiff's part. It appeared that J. & W. were doing business to- gether as insurance agents, J. being general agent of the H. company ; they induced plaintiff and M. to sign a blank ap- plication for insurance upon the lattery's life, which was filled up by W., signed by him as agent, and delivered to J., who went wuth it to the office of the W. company, where he was presented by an officer of H. company as its general agent. The president of the W. company struck out of the application the printed word "Home" and inserted in lieu thereof "World Mutual," accepted the risk, allowed J. the usual agent's commission, and the transaction and his name as agent were entered in the company's books ; and the policy and premium receipt wTre delivered to J., who gave them to plaintiff. Held, that the W. company adopted the acts of J. & W. and was estopped from claiming a warranty. 329 Duties and Liabilities of Agents. § 120. The duties and liabilities of an insurance agent to his principal depend upon the terms and nature of his employ- ment, and the character of the work assigned to him. The agent must obey instructions and discharge his duties with absolute honesty, and with reasonable prudence and dili- gence. '=' Mason v. Joseph, 1 Smith, J. P. Eng. 406. »-^ Mowry v. Rosendale, 74 N. Y. 360. 268 AGENTS. § 120 He is liable to his principal for damages resulting from his failure so to do. An agent who is employed to insure, or who agrees to insure property, and wilfully neglects so to do, is liable to the same extent the insurer would have been if the property had been insured according to instructions or agreement. To Insurer. The absolute duty of an agent depends to some extent upon the character of his agency and the nature of his em- ployment. An agent must always obey his instructions and discharge his duties to his principal with good faith, and reasonable care, and diligence, and for failure so to do he can be compelled to respond in damages. If an agent disobeys instructions, he cannot shield himself by proof that he in- tended to benefit his principal. When he is invested with dis6retion in certain matters, he is only responsible for good faith and the honest exercise of his best judgment. If his instructions are vague, or indefinite, and susceptible of dif- ferent interpretations, the agent is warranted and protected in any reasonable construction which lie honestly and in good faith adopts.^^^ He is bound to have knowledge of the existing usages of the place where he does business, and must conform tbereto.^^^ And it is the duty of a sub-agent who is subject to the authority of a superior agent who acts for the insurer, to obey such orders as his superior may give him relative to the business of the company and risks taken by him. Thus, ^'^'^ Royal Ins. Co. v. Clark, 61 Minn. 476; Phoenix Ins. Co. v. Pratt. 36 Minn. 409; Shaw v. Aetna Ins. Co., 49 Mo. 578 (agent of assured) ; Hanover Fire Ins. Co. v. Ames, 39 Minn. 150; Washington F. & M. Ins. Co. V. Chesebro, 35 Fed. 477; Phoenix Ins. Co. v. Frissell, 142 Mass.' 513; Grace v. American Cent. Ins. Co., 109 U. S. 278; Green- leaf V. Moody, 13 Allen (Mass.), 363; Winne v. Niagara Fire Ins. Co., 91 N. Y. 185; Ewell'a Evans, Agency, §§ 234, 327 et seq.; Story, Agency, § 165 et seq. '■*'■ Mallough V. Barber, 4 Camp. 150. I 120 DUTIES AND LIxiBILITIES OF AGENTS. 2G{> if a state agent directs a local agent to cancel a risk taken by liim and the order is not obeyed, the insurer can re- cover from the latter the amount it is compelled to pay upon a loss by reason of the jjolicy not being cancelled.^^^ Where an agent issues a policy upon a forbidden risk, and later fails to obey the directions of his company txD cancel the policy, he is liable to the insurer for the amount the insurer has to pay upon a loss subsequently occurring.^^^ And it it? no defense to show that the agent had given directions to cancel the policy to the broker through whom the insurance had been obtained, notwithstanding an offer to prove that it was the universal custom of all insurance agents to give such orders to the broker who obtained the business.^^^ It is in- cumbent upon an agent to obey orders with all reasonable dispatch. Thus in a Massachusetts case, defendant, an agent for plaintiff, received orders to cancel a policy he had issued. The letter containing this instniction was received the day after it was written ; and the evidence tended to show that defendant could have notified insured within half an hour after it was received. Defendant was agent for another com- pany, and on the day the letter was received wrote a policy therein, which he designed to take the place of plaintiff"'.? policy, but did not inform insured of anything concerning the matter until after his property was burned, five days later, and the court held that this evidence warranted a finding that defendant did not exercise such diligence as was required, and that an action was maintainable against him to recover the amount which plaintiff paid.^^^ '"Phoenix Ins. Co. v. Pratt, 36 Minn. 409, 31 N. W. 454. ''' Hanover Fire Ins. Co. v. Ames, 39 Minn. 150; Sun Fire Office v. Ermentrout, 11 Pa. Co. Ct. R. 21, 21 Ins. Law J. 1055. =•'' Franltlin Ins. Co. v. Sears, 21 Fed. 290. '" Phoenix Ins. Co. v. Frissell. 142 Mass. 513. 270 * AGENTS. § 120 But the agent does not incur liability tlirough tlie failure to do his whole duty, where he acts in good faith and his act does not prejudice his principal. The following circum- stances were held to give the insurer only a right to recover nominal damages at most, viz. : Defendant, as agent for plaintiif, solicited and obtained an application for insurance upon a building which was being erected for a hotel. It was not quite completed and was not used for that purpose when the application, which described it as occupied as a hotel, was made. Defendant knew the facts but did not notify plaintiff. A loss occurred before the building was occupied, and insurer was held liable because of tlie knowledge of its agent. The agent acted in good faith, and the contract was not less valu- able to plaintiff than it would have been if the facts cor- responded with the statements in the application. ^^^ To Insured or Applicant. An agent who undertakes to procure insurance upon cer- tain property must place the insurance promptly with com- panies of reputed responsibility and good credit.^^'^ If he unjustifiably fails to procure the same, he thereby assumes the risk, and becomes liable in case of loss to pay as much thereof as would have been covered by the policy he agreed to procure, if the same had been issued. And if an agent representing several insurance companies orally insures property from a given time, and agrees to issue a policy thereon, but by reason of no particular company being agreed upon, the con- tract is not complete, and through omission of the agent no policy is issued before- a loss occurs upon such property, the agent is liable to the extent of the amount of the policy he "^^ State Ins. Co. v. Richmond, 71 Iowa, 519, 32 N. W. 496. ^'Hrirell v. Bullard, 3 Fost. & F. 445; 2 Phillips, Ins. (3d Ed.), p. 553, § 1895; 1 Joyce. Ins. p. 821. §120 DUTIES AND LIABILITIES OF AGENTS. 271 agreed to issue, not exceeding in any case tlie amount of tlie actual loss."^^ Notwithstanding a valid insurance may exist, an agent is liable for the amount received by him as premium on failure to keep his agreement to deliver a policy.^"^^ If an agent who has received the premium for insurance has not paid it to his principal, or assumed any liability on account of it before the latter becomes insolvent, and the per- son who has paid the money notifies the agent that he claims it and does not rely upon the policy, the agent is liable to him for the amount, though the policy was not surrendered until after suit was brought. ^^° An action of deceit was held to lie in favor of the insured against an insurance agent under the following circumstances : A., an agent for an insurance company, solicited B. to take insurance upon store premises. B. assented ; A. handed him a policy and received the premium. Observing a restrdction in the policy concerning keeping petroleum without written consent from the company, B. remarked that he was obliged to keep a little, and inquired whether the fact ought not to be noted on the policy. A. assured him that the policy was all right, and that so long as a single barrel of petroleum only Avas kept, it was never taken notice of ; that it was only when it was kept in large quantities that it should be noted on the policy. B. accepted the policy on the faith of these represen- "'Stadler v. Trever, 86 Wis. 42, 56 N. W. 187; Lindsay v. Petti- grew," 5 S. D. 500, 59 N. W. 726; 3 Sutherland, Damages, 9; Smith V. Price, 2 Fost. & F. 748; Perkins v. Washington Ins. Co., 4 Cow. (N. Y.) 645; Shoenfeld v. Fleisher, 73 111. 404; Beardsley v. Davis, 52 Barb. (N. Y.) 159. See, also, Sanches v. Davenport, 6 Mass. 258. As to what completes the contract, see Arrott v. Walker, 118 Pa. St. 249. "'Collier v. Bedell, 39 Hun (N. Y.). 238. "" Smith V. Binder, 75 111. 492. 272 ' AGENTS. § 120 tations. After a loss lie sued tlie company and was nnsuc- cessful because a barrel of petroleum had been kept, and A. had no authority to waive the condition. The court decided that A. was personally liable for the loss, having given a positive assurance in excess of his authority and that the fact that he might have been guilty of no intentional fraua. or moral turptitude did not exempt him from liability.^ ^^ *^ Kroeger v. Pitcairn, 101 Pa. St. 311. See note 13. CHAPTER IX. INSURABLE INTEREST. § 121-122. In Property — Necessity and Nature. 123-124. Duration and Continuance. 125-127. In Lives. In Propeety — Necessity and Nature. § 121. It is essential to the existence of a valid contract of insurance, in respect to property or a property interest, that the payee have an insurable interest in the subject matter in- sured. § 122. Any one has an insurable interest in property when he is so situated in respect to it, or has such relation to or con- cern in it, or liability in connection with it, that he is directly and pecuniarily interested in and benefited by its preserva- tion, and would be directly and pecuniarily prejudiced and damaged in respect to it by the happening or occurrence of the loss, damage, peril or event insured against. The insured must have some kind of pecuniary interest in the property or of accountability for its safety, and he can only recover to the extent of that interest. What constitutes an insurable interest has been the subject of much discussion in the cases and by authorities, and is often a question of great difficulty. What particular interests are insurable has fre- quently to be decided by a consideration of the special circum- stances wherein the question arises. It has well been said that "every interest in property, or any relation thereto or liability in respect thereof, of such a nature that a contemplated peril might directly damnify the insured, is an insurable interest."^ ' Civil Code Cal. § 2546; Civ. Code N. Y. 1366; Trustees of St. Clara Female Academy v. Northwestern Nat Ins. Co., 98 Wis. 257, 73 N. W. 769. KERR, INS.— 18 274r INSURABLE INTEREST. § 122 Contracts of incurance, where tlie insured liad no interest, ■were permitted at common law, but the manifest evils attend- ing such contracts and the temptation which they afforded for fraud and crime led to the enactment in England of Statute 18 Geo. II. c. 37, prohibiting wager policies, and this has been followed bj the enactment of some similar statutes in America.^ Though an insurable interest is necessary to support a policy and to take it outside of the rule prohibiting wagers, thi^ interest need not necessarily be a right which can legally be enforced against the property ; it need not be an interest which may be called ownership. A direct pecuniary interest in the property insured, of such a nature that the in- sured will be damaged and suffer pecuniary loss by the hap- pening of the event insured against, is sufficient. 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 expected to, impair the value of that interest, an insurance on such interest would not be a wager, whether the interest was an ownership in or right to the possession of the property, or simply, an advantage of a pe- cuniary character having a legal basis but dependent upon the continued existence of the subject. An insurable interest may be legal or equitable, vested or contingent, existing or inchoate, but it must be more than a mere hope or expectation, ^ Craufurd v. Hunter, 8 Term R. 13; Alsop v. Commercial Ins. Co., 1 Sumn. 467, Fed. Cas. No. 262; Williams v. Smith, 2 Caines Cas. (N. Y.) 13. The obtaining of Insurance on the property in which the insured has no interest, whether covered by an open or valued policy, comes under the head of a wagering contract, and is illegal and void. Waugh v. Beck, 114 Pa. St. 422. But the insured need not have the legal title. It is sufficient if he be the beneficial owner. Lebanon Mut. Ins. Co. V. Erb, 112 Pa. St. 149. §§ 123j 124 DUKATION AND CONTINUANCE. 275 wliicli may be frustrated by tbe happening of some event.' Different parties may have an insurable interest in tlie same subject matter.^ And the same party may have different insurable interests in the same subject mattsr because of his different relations thereto.^ Same — Dueation" and Continuance. § 123. This insurable interest must exist at some time dur- ing the life of the risk and at the time of the loss.« § 124. In the absence of a specific provision in the -policy- avoiding it for alienation, an interruption or temporary sus- pension of interest is not fatal to the right of the insured to re- cover to the extent of his interest at the time of loss.^ 'Rohrbach v. Germania Fire Ins. Co., 62 N. Y. 47; National Filter- ing Oil Co. V. Citizens' Ins, Co., 106 N. Y. 535; Strong v. Manufact- urers' Ins. Co., 10 Pick. (Mass.) 40; Horsch v. Dwelling House Ins. Co., 77 Wis. 4; Warnock v. Davis, 104 U. S. 775; Wainer v. Milford Mut. Fire Ins. Co., 153 Mass. 335; Reynolds ^. Iowa & N. Ins. Co., 80 Iowa, 563, 46 N. W. 659; Bayles v. Hillsborough Ins. Co., 27 N. J. Law, 163; Eastern R. Co. v. Relief Fire Ins. Co., 98 Mass. 420; Swift V. Vermont Mut. Fire Ins. Co., 18 Vt. 305; Illinois Mut. Fire Ins. Co. V. Andes Ins. Co., 67 111. 262; Fenn v. New Orleans Mut. Ins. Co., 53 Ga. 578; Riggs v. Commercial Mut. Ins. Co., 125 N. Y. 12; Helvetia Swiss Fire Ins. Co. v. B. P. Allis Co., 11 Colo. App. 264, 53 Pac. 242; Sawyer v. Dodge County Mut. Ins. Co., 37 Wis. 503; Coursin v. Penn- sylvania Ins. Co., 46 Pa. St. 323; United States v. American Tobacco Co., 166 U. S. 468. * Harris v. York Mut. Ins. Co., 50 Pa. St. 341; Fox v. Phoenix Fire Ins. Co., 52 Me. 333; Ely v. Ely, 80 111. 532; Insurance Co. v. Haven, 95 U. S. 242. ° Germania Fire Ins. Co. v. Thompson, 95 U. S. 547. 'Hooper v. Robinson, 98 U. S. 528; Lockhart v. Cooper, 87 N. C. 149, But it has sometimes been held that the insurer must have an insurable interest both at the time the insurance was effected and at the time of the loss. Chrisman v. State Ins. Co., 16 Or. 283; Sadlers' Co. v. Eadcock, 2 Atk. 554. See, also, Fowler v. New York Ind. Ins. Co., 26 N. Y. 422; Graham v. Firemens' Ins. Co., 2 Disn. (Ohio) 255; Folsom v. Merchants' Mut. Marine Ins. Co., 38 Me. 414. 'Worthington v. Bearse, 12 Allen (Mass.), 382; Lane v. Maine 276 INSURABLE INTEREST. § 124r Illustrations of Insurable Interests in Property. Each of the following has an insurable interest in the property designated: An "owTier" of property or of a di\dded or undivided por- tion thereof or interest therein, to the extent to which he would be damnified by its damage or destruction;^ a "mortgagor," so long as he retains an ownership in the whole or some part of the property he has mortgaged;^ a "mortgagee" in the property or premises to the extent of the unpaid debt or con- tingent claim secured by his mortgage ; ^^ and different mort- gagees of the same property may each insure his independent interest, ^^ which interest is destroyed by the payment of the debt or the discharge and satisfaction of the obligation or lia- bility secured,^ ^ but not by an executory contract to convey Mut. Fire Ins. Co., 3 Fairf. (Me.) 44; Peoria M. & F. Ins. Co. v. Anapow, 51 111. 283; Mills v. Farmers' Ins. Co., 37 Iowa, 400. See, also, Kempton v. State Ins. Co., 62 Iowa, 83; Planters' Mut. Ins, Co. V. Rowland, 66 Md. 236; Power v. Ocean Ins. Co., 19 La. 28. See post, "Alienation." ^Castner v. Farmers' Mut. Fire Ins. Co., 46 Mich. 15; David v.- Williamsburgh City Fire Ins. Co., 83 N. Y. 265; Stephens v. Illinois Mut. Fire Ins. Co., 43 111. 327; Norwich Fire Ins. Co. v. Boomer, 52 111. 442; Foley v. Manufacturers' & B. F. Ins. Co., 152 N. Y. 131; United States v. American Tobacco Co., 166 U. S. 468; Hooper v. Robinson, 98 U. S. 528. See ante, notes 3-5. * Lycoming Fire Ins. Co. v. Jackson, 83 111. 302. Even after fore- closure, but before the expiration of the time for redemption. Rich- land County Mut. Ins. Co. v. Sampson, 38 Ohio St. 672; Essex Sav. Bank v. Meriden Fire Ins. Co., 57 Conn. 335, 17 Atl. 930, 18 Atl. 324; Walsh V. Philadelphia Fire Ass'n, 127 Mass. 383, "Traders' Ins. Co. v. Robert, 9 Wend. (N. Y.) 404; Haley v. Man- ufacturers' F, & M, Ins. Co., 120 Mass. 292; Westchsster Fire Ins. Co. V. Foster. 90 111. 121. " Fox V. Phoenix Fire Ins. Co., 52 Me. 333. ^^ Sussex County Mut. Ins. Co. v. Woodruff, 26 N, J, Law, 541; Car- penter V. Providence W. Ins. Co., 16 Pet. (U. S.) 495, § 124 DURATION AND CONTINUANCE. 277 such interest ;^^ a "bailor" has an insurable interest so long as he remains an owner of the property bailed ; a "bailee" in the bailed property in his possession, to the extent of his i^pecial interest in such property, or his lien against it, or his liability as insurer of it;^^ a "pledgor" as an owner of the property bailed ;^^ an "inn-keeper" in the goods or property of his guests to the extent to which he is responsible for their safe-keeping and protection;^'' a "common carrier" in prop- erty in its care and possession, and in its own name may sue for and recover the value of the property damaged or de- stroyed, holding the excess over its own interest for the benefit of the owner j^'' a "warehouseman" in merchandise held by him as his own, or in trust or storage, to the extent of his lien upon the merchandise, or his liability for its safe keeping ;i^ a "commission merchant" who has the cus- tody of, or is responsible for, property consigned to him, in such property to its full value ;^^ a "consignor" so long as he "Haley v. Manufacturers' F. & M. Ins. Co., 120 Mass. 292; Smith v. Columbia Ins. Co., 17 Pa. St. 253. "Aetna Ins. Co. v. Jackson, 16 B. Mon. (Ky). 258; California Ins. Co. V. Union Compress Co., 133 U. S, 387.; Providence County Bank V. Benson. 24 Pick. (Mass.) 204. "Nussbaum v. Northern Ins. Co., 37 Fed. 524; Waring v. In- demnity Fire Ins. Co., 45 N. Y. 607; Home Ins. Co. v. Baltimore W. Co., 93 U. S. 527. " Eastern R. Co. v. Relief Fire Ins. Co., 98 Mass. 420. "Liverpool & L. & G. Ins. Co. v. McNeill (C. C. A.), 89 Fed. 131; Fire Ins. Ass'n v. Merchants' & Miners' Transp. Co.. 66 Md. 339; Home Ins. Co. v. Peoria & P. U. Ry. Co., 178 111. 64, 52 N. E. 862; Phoenix Ins. Co. v. Erie & W. Transp. Co., 117 U. S. 312. And may- insure itself against the carelessness of its own employees. Cali- fornia Ins. Co. v. Union Compress Co., 133 U. S. 387. ''Pittsburgh Storage Co. v. Scottish U. & N. Ins. Co., 168 Pa. St. 522. See, also, California Ins. Co. "v. Union Compress Co., 133 U S 387. "•Baxter v. Hartford Fire Ins. Co., 11 Biss. 306, 12 Fed. 481; St. Paul F. & M. Ins. Co. v. Kelly, 43 Kan. 741; Ferguson v. Pekin Plow Co., 141 Mo. 161, 42 S. W. 711. 278 INSURABLE INTEREST. § 124 retains an interest in tlie property consigned and to tlie extent of that interest;^'' a "consignee or factor ;"2^ an "agent," when in possession of property or responsible for its safety or protection ;^^ a "trustee" in the trust property held by him as such,^^ a cestui que trust}^ an "assignee,"^^ and a "receiver,"^^ in the property held by them in their respect- ive capacities; a "stockholder" in a corporation organized for pecuniary profit has an interest in the property of the corporation, even though that interest does not amount to an estate, either legal or equitable, in the property insured ;^'^ an "indorser or surety," e. g. the liability of a mortgagee as indorser of a mortgage note to the assignee of the mortgage gives him an insurable interest in the mortgaged property ;28 go a mortgagor who remains liable on the mort- gage note retains an insurable interest in the property mort- gaged, though he conveys his legal title to it;^'^ a "rein- =" See ante, note 6. "Gordon v. Wright, 29 La. Ann. 812; Milburn Wagon Co. v. Evans, 30 Minn. 89; Johnson v. Campbell, 120 Mass, 449; Shaw v. Aetna Ins. Co., 49 Mo. 578; Hough v. Peoples' Fire Ins. Co., 36 Md. 398. " See ante, "Consignee," "Warehouseman," "Bailee." "Young v. Union Ins. Co., 24 Fed. 279; Dick v. Franklin Fire Ins. Co., 81 Mo. 103; Carpenter v. Providence W. Ins. Co., 16 Pet.(U. S.) 495. "Gordon v. Massachusetts F. & M. Ins. Co., 2 Pick. (Mass.) 249. ^ Sibley v. Prescott Ins. Co., 57 Mich. 14. »« Thompson v. Phoenix Ins. Co.. 136 U. S. 287. =^Riggs v. Commercial Mut. Ins. Co., 125 N. Y. 7; Seaman v. En- terprise F. & M. Ins. Co., 18 Fed. 250, 21 Fed. 778; Warren v, Daven- port Fire Ins. Co., 31 Iowa, 464. See Creed v. Sun Fire OflBce of London, 101 Ala. 522. ^ Williams v. Roger Williams Ins. Co., 107 Mass. 377. ="> Hanover Fire Ins. Co. v. Bohn, 48 Neb. 743, 67 N. W. 774; Caley V. Hoopes, 86 Pa. St. 493; Germania Fire Ins. Co. v. Thompson, 95 U. S. 547. § 124 DURATION AND CONTINUANCE. 279 surer j"^" "one who lias an interest in royalties ;" one who has a contract with the owners of a factory entitling him to the payment of royalties on the output of the factory, has an insurable interest in it;^^ "co-partners," in the partnership property ;^^ a "creditor;" one who has bought goods on credit for the benefit of the seller, when the insurer agrees to tlie arrangement.^^ The creditor of a deceased debtor whose estate is insufficient to pay the debts, has an insurable interest in the property of the estate, which by law, may be subjected by proceedings in rem to the payment of the debts ; but the recovery cannot exceed the amount of the insurable interest ;^^ a "sheriff" or other officer who takes goods under a writ of attaclmient acquires a special property in the goods so taken, which constitutes an insurable interest ;^^ and the receiptor of goods attached may insure them in his own name,^® and also the attaching or levying creditor.^^ "Les- see and lessor;" a leasehold interest in real estate is an '° See post, c. 19, "Reinsurance." "' National Filtering Oil Co. v. Citizens' Ins. Co., 34 Hun, 556, 106 N. Y. 535. '= Converse v. Citizens' Mut. Ins. Co., 10 Cush. (Mass.) 37; Phoenix Ins. Co. V. Hamilton, 14 Wall. (U. S.) 504; Manhattan Ins. Co. v. Webster, 59 Pa. St. 227; Grabbs v. Farmers' Mut. Fire Ins. Ass'n, 125 N. C. 389, 34 S. E. 503; Harvey v. Cherry, 76 N. Y. 436. See ante, note 1. ^^Roos V, Merchants' Mut. Ins. Co., 27 La. Ann. 409; Bates v. Equitable Ins. Co., 10 Wall. (U. S.) 33; Guiterman v. German- American Ins. Co.. Ill Mich. 626. " Creed v. Sun Fire Office of London, 101 Ala. 522, 23 L. R. A. 177; Spare v. Home Mut. Ins. Co., 8 Sawy. 618, 15 Fed. 707. The attach- ing creditor has an insurable interest in the property attached. Rohrbach v. Germania Fire Ins. Co.. 62 N. Y. 47; Donnell v. Donnell, "•White V. Madison, 26 N. Y. 117; Franklin Fire Ins. Co. v. Find- lay, 6 Whart. (Pa.) 483. »» Fireman's Ins. Co. v. Powell, 13 B. Men. (Ky.) 312. "Wood, Fire Ins. §§ 298-309. 280 INSURABLE INTEREST. § 124 insurable interest ;^^ tlie landlord and tenant eacli lias an insurable interest in the premises demised, wliicli maj be protected bj a contract of insurance ;^^ the lessor also has an insurable interest in such goods of the lessee as are liable to seizure for rent;^*' a "tenant by curtesy" has an insurable interest in property to ^\'hich he holds such a title. ^^ "Pur- chaser;" a mere qualified or equitable interest in property is insurable. The purchaser of property under an agree- ment requiring pajmient within a certain time has an insur- able interest during the life of the contract, even although payments are not made when due;^^ so with one who has made a conditional agreement to purchase.*^ One in posses- sion" of a building under an agreement with the owner by which he is to occupy it and keep the building in repair;^* and a managing o\vner in possession ; '*^ and one in possession and entitled to the beneficial use of buildings with an oral ** Philadelphia Tool Co. v. British American Assur. Co., 132 Pa. St. 236. «»Ely V. Ely, 80 111. 532; Carey v. London P. F. Ins. Co., 33 Hun (N. Y.), 315; Insurance Co. v. Haven, 95 U. S. 242; Georgia Home Ins. Co. V. Jones, 49 Miss. 80. And a sublessee, Mitchell v. Home Ins. Co., 32 Iowa, 42. *° Columbia Ins. Co. v. Cooper, 50 Pa. St. 331. "Kyte V. Commercial Union Assur. Co., 144 Mass. 43; Harris v. New York Mut. Ins. Co., 50 Pa. St. 341. See ante, p. , "Lessee." And a life-tenant. Cross v. National Fire Ins. Co., 132 N. Y. 133; Home Ins. Co. v. Field, 42 111. App. 392. And a remainder-man, Redfield v. Holland Purchase Ins. Co., 56 N. Y. 354. -^Bohn Mfg. Co. V. Sawyer, 169 Mass. 477; Holbrook v. St. Paul F. & M. Ins. Co., 25 Minn. 229; Southern Insurance & T. Co. v. Lewis, 42 Ga. 587; Cumberland Bone Co. v. Andes Ins. Co., 64 Me. 466; Gilman v. Dwelling-House Ins. Co., 81 Me. 488. "International Trust Co. v. Norwich Union Fire Ins. Soc. (C. C. A.), 71 Fed. 81. "Berry v. American Cent. Ins. Co., 132 N. Y. 49; Cross v. National Fire Ins. Co., 132 N. Y. 133. **The Fern Holme, 46 Fed. 119; The Gulnare, 42 Fed. 861. § 121 DURATION AND CONTINUANCE. 2S1 contract for the convejance of tlie land on M-liich tliey stand ;^^ and a purchaser on conditional sale with right to nse;^'^ a "contractor, materialman or mechanic" in building upon Avhich they have or are entitled to a lien or on buildings Avhich they are erecting under contract ;^^ a "husband" in the homestead of his wife which he occupies with her;^® a husband and wife sometimes in each other's property f^ but a husband has not ordinarily any insurable interest in his wife's separate property.^ ^ «Horsch V. Dwelling House Ins. Co., 77 Wis. 4, 8 L. R. A. 806; Bicknell v. Lancaster City & County Fire Ins. Co., 58 N. Y. 677. "Holbrook v. St. Paul F. & M. Ins. Co., 25 Minn. 220; Franklin li'ire Ins. Co. v. Chicago Ice Co., 36 Md. 120; Grange Mill Co. v. Western Assur. Co., 118 111. 396. See, also, McLean v. Hess, 106 Ind. 555; Reed v. Williamsburg City Fire Ins. Co., 74 Me. 537; Little v. Phoenix Ins. Co., 123 Mass. 380; Acer v. Merchants' Ins. Co., 57 Barb. (N. Y.) 68. *^ Insurance Co. v. Stinson, 103 U. S. 25; Planters' & Merchants' Ins. Co. V. Thurston, 93 Ala. 255; Looney v. Looney, 116 Mass. 283. ^''Merrett v. Farmers' Ins. Co., 25 Iowa, 11; Reynolds v. Iowa & N. Ins. Co., 80 Iowa, 563, 46 N. W. 659. '"Clarke v. Firemens' Ins. Co., 18 La. 431; German American Ins. Co. V. Paul (Indian T.), 53 S. W. 442; Warren v. Springfield F. & M. Ins. Co., 13 Tex. Civ. App. 466, 35 S W. 810; Miotke v. Milwaukee Mechanics' Ins. Co., 113 Mich. 166, 71 N. W. 463; Field v. Insurance €o. of America, 6 Biss. 121, Fed. Cas. No. 4,767. "Agricultural Ins. Co. v. Montague, 38 Mich. 548; Traders' Ins. Co. V. Newman, 120 Ind. 554. Illustrations of Xo Insurable Interest, No insurable interest exists under a parol contract made by a mar- ried woman to convey land. Perry -v. Mechanics' Mut. Ins. Co., 11 Fed. 478; nor a prospective purchaser to whom the title of the property has not passed, Heald v. Builders' Mut. Fire Ins. Co., Ill Mass. 38. The right of reimbursement from property, for advances made for its protection, until ascertained and defined by decree, is so uncertain an interest that it is not insurable. Bishop v. Clay F. & M. Ins. Co., 49 Conn. 167. The mere holding of a judgment by a vendor of real estate, against a purchaser to secure part of the money, does not per se give the vendor an insurable interest in the property. Light v. Countrymens' Mut. Fire Ins. Co., 169 Pa. St. 310. 2s2 insurable interest. §§ 125-12t In Lives. §125. Public policy forbids the procuring of insurance upon a human life by one who has not an insurable interest in that life. § 126. To create an insurable interest which will support a life insurance contract there must be a reasonable ground, founded in the relations of the parties — either pecuniary, or of blood, or aflQ.nity — to expect some benefit or advantage from the continuance of the life of the assured. § 127. It is suiflcient if such insurable interest exists at the' time the insurance is eflTected. It is a rule founded in public policy, and is of general application, that the contract of life insurance must be based upon an interest in the subject insured. In the absence of an insurable interest the policy, having nothing upon which to operate, must be regarded as a mere wager upon human life. It is not easy to define mtli precision what will in all cases constitute an insurable interest, so as to take the contract out of the class of wager policies. An insurable interest is notv necessarily, a definite pecuniary interest, such as is recog- nized and protected at law. It may be contingent, restricted as to time, or indeterminate in amount, but it must be actual and appreciable, so that the purpose of the party effecting the insurance will be to secure an advantage to the beneficiary, and not merely to put a wager upon human life. It may be- stated generally to be such an interest, arising from the rela- tion of the party obtaining the insurance, either as creditor,, or surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage- or benefit from the continuance of his life. This expectation- of advantage or benefit need not be always capable of pecun- iary estimation, for a parent has an insurable interest in the life of his child, a husband in the life of his wife, and a wife in the life of her husband. The natural affection, in such § 127 IN LIVES. 283 cases, is considered as more powerful, as operating more efficaciously to protect the life of the insured, than any- other consideration. In all cases there must he a reasonable ground to expect some benefit or advantage to the beneficiary from the continuance of the life insured ; otherwise the bene- ficiary would be directly interested in the early death of the insured. A policy issued to one who is not directly inter- ested in the continuance of the life of the insured has a tend- ency to create a desire for his death. Such policies are, therefore, independently of any statute npon the subject, condemned as being contrary to public policy.^ ^ Every person has an insurable interest in his 0"\\ti life, and may effect an insurance thereon for the benefit of a relative or friend. The essential thing is that the policy be obtained in good faith,' and not for the purpose of speculating on the hazard of a life in which the insured has no interest.^^ "^^ Connecticut Mut. Life Ins. Co. v. Schaeffer, 94 U. S. 457; Key- stone Mut. Ben. Ass'n v. Norris, 115 Pa. St. 446; Lamont v. Grand Lodge, 31 Fed. 180; Amick v. Butler, 111 Ind. 578; Ruse v. Mutual Ben. Life Ins. Co., 23 N. Y. 516, 52 Cent. Law J. 381. " Bloomington Mut. Ben. Ass'n v. Blue, 120 III. 121; New York Mut. Ins. Co. V. Armstrong, 117 U. S. 591; Provident Life Ins. & Inv. Co. V. Baum, 29 Ind. 236. A policy is not void as a wager policy where it is not obtained for a speculative purpose, although the bene- ficiary is neither a creditor, wife, child, parent, brother, nor sister of the insured. Kentucky Life & Ace. Ins. Co. v. Hamilton (C. C. A.), 63 Fed. 93; Vivar v. Supreme Lodge, K. of P., 52 N. J. Law, 455; Schonfield v. Turner, 75 Tex. 324, 7 L. R. A. 189; Hill v. United Life Ins. Ass'n, 154 Pa. St. 29. A suit may be maintained upon the policy without proving an insurable interest. American E. L. Ins. Co. V. Barr, 68 Fed. 873, '16 C. C. A. 51; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381; Union Fraternal League v. Walton, 109 Ga. 1, 46 L. R. A. 424. Compare Vivar v. Supreme Lodge, K. of P., supra; Schonfield v. Turner, supra; Life Ins. Clearing Co. v. O'Neill (C. C. A.), 106 Fed. 800; and Ruse v. Mutual Ben. Life Ins. Co., 23 N. Y. 516. 2 Si INSURABLE INTEREST, § ^27 Continuity of Interest in Life. A life policy, valid when issued, docs not cease to "be so by the termination of the interest of the assured in the life insured unless such be the stipulation of the policy. The law seems to be well settled that it is wholly unnecessary to prove an insurable interest in the life of the assured at the maturity of the policy, if it was valid at its inception; and Illustrations of Wager Policies. A policy issued by a mutual life insurance company whereby, upon the lapse of any policy, a sum equal in amount to its reserve value becomes an absolute liability of the company, to be paid to existing policy holders at a certain period, is void as a wager policy. Fuller v. Metropolitan Life Ins. Co., 70 Conn. 647. And a policy obtained upon a person's life by others, who pay the premiums upon the understanding that they are to have the money collected upon the policy, is void. Cisna v. Sheibley, 88 111. App. 385; Roller v. Moore's Adm'r, 86 Va. 512, 6 L. R. A. 136; Ruth v. Katterman, 112 Pa. St. 251; Warnock v. Davis, 104 U. S. 779; Missouri Valley Life Ins. Co. V. McCrum, 36 Kan. 146. A daughter has not necessarily an insurable interest in the life of her mother. Continental Life Ins. Co. v. Volger, 89 Ind. 572; Life Ins. Clearing Co. v. O'Neill (C. C. A.), 106 Fed. 800. The relation of mother and son between a payee and a person whose life is in- sured does not per se always constitute an insurable interest. Pru- dential Ins. Co. V. Humm, 21 Ind. App. 525, 52 N. E. 772; Peoples' Mut. Ben. Soc. v. Templeton, 16 Ind. App. 126, 44 N. E. 809. A son- in-law has not an -insurable interest in the life of his mother-in-law, Rombach v. Piedmont & A. Life Ins. Co., 35 La. Ann. 233; Stam- haugh V. Blake (Pa.), 15 Atl. 705; nor a step-son in the life of his step-father. United Brethren Mut. Aid Soc. v. McDonald, 122 Pa. St. 324. An uncle cannot recover on a policy in his favor on the life of a nephew, unless he avers and proves a pecuniary interest therein. Prudential Ins. Co. v. Jenkins, 15 Ind. App. 297, 43 N. E. 1056; Singleton v. St. Louis Mut. Ins. Co., 66 Mo. 63. A nephew has not always an insurable interest in the life of an a,unt, Riner v. Riner, 166 Pa. St. 617; nor a building association In the life of a member, Tate v. Commercial Bldg. Ass'n, 97 Va. 74, 33 S. E. 382, 45 L. R. A. 243; nor a college supported by a church in the life of a member of that church, Trinity ^ College v. Travellers' Ins. Co., 113 N. C. 244, 22 L. R. A. 291; nor an assignee in bankruptcy in the life of the bankrupt. In re McKinney, 15 Fed. 535. § 127 IN LIVES. 285 in tlie alosence of an express stipnlatlon to the contrary tlie sum expressed on the face of the policy is the measure of recovery. ^^ Interest of Assignee. The assignment of a policy of life Insurance to one not having an insurable interest in the life insured, is as objec- tionable from the standpoint of public policy as is the taking out of a policy under similar circumstances. Nor is its char- acter changed because it is for a portion merely of the insur- ance money. The law might be easily evaded if the policy^ or interest in it, could, in consideration of paying the pre- miums and assessments upon it, and the promise to pay a portion of the proceeds to designated persons, be transferred so as to entitle the assignee to receive the whole insurance money. But a policy of life insurance which does not con- tain any prohibition against its assignment is assignable by the insured for a valuable consideration, equally with any other chose in action, provided the assignment is made in good faith, and not to evade the law against wager policies.^^ There are, however, cases opposed to this view, and holding that a valid policy of insurance, effected by a person upon his own life, is assignable like an ordinary chose in action, and that the assignee is entitled upon the death of the insured to the full sum payable without regard to the consideration paid for the assignment, or the existence of an insurable inter- est in the life of the insured.^® "Appeal of Corson, 113 Pa. St. 445; Connecticut Miit. Life Ins, Co. V. Schaefer, 94 U. S. 457; Mutual Life Ins. Co. v. Allen, 138 Mass. 24. "Franklin Life Ins. Co. v. Hazzard, 41 Ind. 116; Franklin Life Ins. Co. V. Sefton, 53 Ind. 380; Connecticut Mut. Life Ins. Co. v. Luchs, 108 U. S. 503; Roller v. Moore's Adm'r, 86 Va. 512. '"St. John V. American Mut. Life Ins. Co.. 13 N. Y. 31; Olmsted v. Keyes, 85 N. Y. 593; Martin v. Stubbings, 126 111. 387. In Valton v. 286 INSUEABLE INTEREST. § 127 Interest of Creditor in Life of Debtor. A creditor has, for tlie purpose of indemnifying himself against loss, an insurable interest in the life of his debtor. The amount of insurance taken out by a creditor upon the life of his debtor cannot be grossly disproportionate to the benefit Avhich might be reasonably supposed to accrue from the con- tinuance of the debtor's life, without leaving the transaction open to the criticism of being a speculation or wager upon the hazard of a life. The policy is valid in so far as it has been obtained and is carried in pursuance of a hona fide effort to secure payment of the debt. If the amount of the policy is so far in excess of the debt and the interest thereon and the expense of carrying the insurance, as to indicate an in- tent of the creditor to speculate upon the life of the debtor, the policy will be void.^"^ National Fund Life Assur. Co., 20 N. Y. 32, it was said that one has an insurable interest in his own life, and no use made by him of the policy issued on his own life can convert it into a wagering con- tract. ^'Rittler v. Smith, 70 Md. 261; Exchange Bank of Macon v. Loh, 104 Ga. 446; Ulrich v. Reinoehl, 143 Pa. St. 238, 13 L. R. A. 433; Helmetag's Adm'r v. Miller, 76 Ala. 183. A creditor of a firm has an insurable interest in the life of each member of the firm, and they in turn have a similar interest in the life of every other firm indebted to them. Mitchell v. Union Life Ins. Co., 45 Me. 104; Lewis v. PhcEnix Mut. Life Ins. Co., 39 Conn. 100; Rawls V. American Mut. Life Ins. Co., 27 N. Y. 282. One who advances money for premiums on policies on another's life, under the agreement by the insured to repay the loans, is a creditor, and has an insurable interest. Reed v. Provident Sav. Life Assur. Soc, 36 App. Div. 250, 55 N. Y. Supp. 292. The insurable interest of the creditor in the life of his debtor is not affected by the fact that the statute of limitations has run against it since the insurance was effected. Rawls v. American Life Ins. Co., 36 Barb. 357, 27 N. Y. 282. Although a debtor has been discharged in bankruptcy, a moral obligation to pay his debts remains, which constitutes a good con- § 127 IN LIVES. 287 Interest Founded on Eelationship. Mere relationsliip of itself is not sufficient to create an insurable interest. This relationship must be connected with .a pecuniary interest, or some element of dependency, so that the beneficiary would, in reasonable probability, suffer a pecuniary loss, or fail to make a pecuniary gain, by the deatli of the assured. Sentiment or affection is not sufficient, of itself, to constitute an insurable interest, but the expected benefit must consist in service, maintenance or the like. In one relation only — the relation of husband and wife — is the actual existence of such a pecuniary interest unimportant; the reason being that the real pecuniary interest is found in so great a majority of cases involving this relation that the courts conclusively presume it to exist in every case.^^ sideration for a new promise to pay, which will give the promisee an insurable interest in the debtor's life. Mutual Reserve Fund Life Ass'n v. Beatty (C. C. A.), 93 Fed. 747. A policy on the life of another for $3,000, to secure a debt of $70, is a mere wager policy. Cammack v. Lewis, 15 Wall. (U. S.) 643. And the taking out of a policy for a similar amount on the life of the debtor, by one who was a creditor to the extent of $302, and thd payment of premiums amounting to $293, has been held not dispro- portionate. Grant's Adm'rs v. Kline, 115 Pa. St. 61S. Compare Ulrich v. Reinoehl, 143 Pa. St. 238, 13 L. R. A. 433; Amick v. Butler, 111 Ind. 578; Exchange Bank of Macon v. Loh, 104 Ga. 446. '^Warnock v. Davis, 104 U. S. 775. The words "related to," in a statute permitting persons related to a member of a beneiit society to be named as beneficiaries, include relatives by affinity as well as by blood. Bennett v. Van Riper, 47 N. J. Eq. 563, 14 L. R. A. 342. Under some constructions a step-father is a relative. Simcoke v. Grand Lodge, A. 0. U. W., 84 Iowa, 383, 15 L. R. A. 114; Grand Lodge, A. O. U. W., v. McKinstry, 67 Mo App. 82; Hosmer v. Welch, 107 Mich. 470, 65 N. W. 280, 67 N. W. 504. Illustrations of Insurahle Interest Among Relations. A wife will have an insurable interest in the life of her husband. Central Bank of Washington v. Hume, 128 U. S. 195; and a husband in the life of his wife, Watson v. Centennial Mut. Life Ass'n, 21 Fed. 698; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381; Cur- 288 INSURABLE INTEREST. § 12T Other Insurable Interests. A partner lias an insurable interest in his co-partner's life;^^ and a master and servant in each other's lives ;^^ and an apprentice in a master's life;^^ and a master or employer in the servant's life;^^ a tenant in his landlord's life, where rier v. Continental Life Ins. Co., 57 Vt. 496; a father in the life of his minor son to whose earnings he is entitled, Loomis v. Eagle L. & H. Ins. Co., 6 Gray (Mass.), 396; Grattan v. National Life Ins. Co., 15 Hun (N. Y.), 74; Mitchell v. Union Life Ins. Co., 45 Me. 104; a son in the life of his father only when he has a pecuniary interest in the continuance of the father's life. Guardian Mut. Life Ins. Co. V. Hogan, 80 111. 35; Chicago Guaranty Fund Life Soc. v. Dyon, 79 111. App. 100. Compare Valley Mut. Life Ass'n v. Teewalt, 79 Va. 421; Crosswell v. Connecticut Ind. Ass'n, 51 S. C. 103, 28 S. E. 200; Reserve Mut. Ins. Co. v. Kane, 81 Pa. St. 154; Life Ins. Cleaning Co. V. O'Neill (C. C. A.), 106 Fed. 800, 30 Ins. Law J. 603. A grandchild has not an insurable interest in the life of a grand- parent, merely by virtue of the relationship. Burton v. Connecticut Mut. Life Ins. Co., 119 Ind. 207. Compare Corbett v. Metropolitan Life Ins. Co., 55 N. Y. Supp. 775. Otherwise if the grandparent himself procures the insurance in favor of the grandchild. Elkhart Mut. Aid B. & R. Ass'n v. Houghton, 103 Ind. 286. A brother has an Insurable interest in a sister's life, or a sister in a brother's life, where the element of dependency exists. Lord v. Dall, 12 Mass, 115; Hosmer v. Welch, 107 Mich. 470, 65 N. W. 280, 67 N. W. 504. An aunt has an insurable interest in the life of her niece who lives with her, and whom she has supported under circumstances creating a moral obligation on the latter's part to assist the former if neces- sary. Cronin v. Vermont Life Ins. Co., 20 R. I. 570, 40 Atl. 497. See, also, Morrell v. Trenton Mut. L. & F. Ins. Co., 10 Cush. (Mass.) 282, and notes in 57 Am, Dec. 92. "Connecticut Mut. Life Ins. Co. v. Luchs,. 108 U. S. 498; Valton v. National L. F. Life Assur. Soc, 22 Barb. (N, Y.) 9. *" Where a servant is hired at a certain salary, for a specified time, he has an insurable interest for that period in the master's life, Hebdon v. West, 3 Best & S. 579, 18 Cent. Law J. 347; Carpenter v. United States Life Ins. Co., 161 Pa. St. 9, 28 Atl. 943. •='12 West. Jur. 706. »^ Miller v. Eagle L. & H. Ins. Co., 2 E. D. Smith (N. Y.), 292; Sum- ners v. United States I. A, & T. Co., 13 La. Ann. 504; Trenton Mut. L, & F. Ins. Co. v Johnson, 24 N. J. Law, 576. § 127 IN LIVES. 289 the latter is liimsclf only a tenant for life, because the tenn depends on the continuance of the life;*'^ an insurance com- pany in the life insured by it;^'* a woman, sometimes, in the life of her betrothed;®^ a girl in the life of a man who has assumed parental relations towards her, although without any legal obligation ; ^^ any one dependent for support and main- tenance upon the continued life of the assured;®'^ and a, surety in the life of the principal, to the extent of the surety- ship.^^ •" Side V. Knickerbocker Life Ins. Co., 16 Fed. 650. " Dalby v. India & L. Life Assur. Co., 15 Com. B. 385. '' McCarthy v. New England Order of Protection, 153 Mass. 314, 11 L. R. A. 144; Kinney v. Dodd, 41 111. App. 49; Taylor v. Travellers' Ins. Co., 15 Tex. App. 254, 39 S. W. 185; Bogart v. Thompson, 24 Misc. Rep. 581, 53 N. Y. Supp. 622; Alexander v. Parker, 144 111. 355, 19 L. R. A. 187. •« Carpenter v. United States Life Ins. Co., 161 Pa. St. 9, 23 L. R. A. 571. •"Adamss Adm'r v. Reed (Ky.), 38 S. W. 420, 35 L. R. A. 692; Batdorf V. Fehler (Pa.), 9 All. 468; Fitzpatrick v. Hartford L. & A, Ins. Co., 56 Conn. 116. See, also. Grand Lodge, A. O. U. W., v. Mc- Kinstry, '37 Mo. App. 82; Hosmer v. Welch, 107 Mich. 470, 65 N. W. 280, 67 N. W. 504. »« Scott V. Dickson, 108 Pa. St. 6; Embry's Adm'r v. Harris (Ky.), 52 S. W. 958. KERR, INS. — 19 CHAPTER X. THE PREMIUM. § 128-130. Definition and Necessity. 131. Conditions of Policy Regulating Payment. 132. Manner of Payment. 133. Notice of Premium Falling Due. 134. Tender. 135. Waiver of Nonpayment Definition and Necessity. § 128. The premium is the consideration for which the in- surer assumes the risk. It is one of the essentials of a contract of insurance, and must be agreed upon between the insurer and the insured before the contract is complete. (§ 17.) § 129. Prepayment of the premium is not necessary to the consummation of a contract of insurance unless made so by agreement; but a risk will not attach until the premium has been paid or a liability to pay it to the insurer has been in- curred. (§§ 40, 109.) § 130. In the absence of a stipulation to the contrary, the presumption is that the delivery of the policy, the attaching of the risk and liability, and the payment of the premium are coincident. (g§ 40, 41.) Generally. Every legal and enforcible contract must be based upon a valuable consideration. This consideration, in an insurance contract, is called the premium. The contract is not com- plete until the amount of the premium has been agreed upon — until the minds of the parties have met upon the amount which the insurer is to receive for undertaking the risk. The agreement is not complete or enforcible until the § 130 DEFINITION AND NECESSITY. 291 obligation of botii parties is certain and definite, so that the agreement as made can be enforced by either party. Both must be bound — the one to insure, and the other to pay the premium. If any essentials of the contract are left open or undeter- mined, no contract has been made, and the insurer is not liable for a loss occurring, nor the insured to pay the premium. If the agreement and understanding concerning the essentials are not mutual, i. e. if one party understands the contract one way and the other party another, no contract has been made which can be enforced either in law or equity. The contract of the insurer is executory. On the part of the insured, so far as concerns the premium, the contract may be executed, as where the premium is paid, or executory, as where a promise has been made to pay it. If an insured pays a premium in anticipation of a contract to be made, which the insurer subsequently refuses to make,- the former is entitled to a return of his premium. The insurer is not al- lowed to receive or retain the premium where no risk has at- tached, for in such case it has furnished no equivalent for the premium ; and it is equally true that the payment of the premium, or a liability to pay the same, must always exist on the part of the insured, where the insurers are responsible for the risk.^ ^Hartshorn v. Shoe & Leather Dealers' Ins. Co., 15 Gray (Mass.), 244; Fish v. Cottenet, 44 N. Y. 538; Trustees of First Baptist Church V. Brooklyn Fire Ins. Co., 19 N. Y. 305, 28 N. Y. 153; Walker V. Metropolitan Ins. Co., 56 Me. 371; Orient Mut. Ins. Co. v. Wright, 23 How. (U. S.) 401. See ante, § 17, "Essentials of Contract;" §§ 40--46, "Making of Contract." If an insurer avoids a policy he- cause it has been obtained through misrepresentation or fraud, the contract becomes void ab initio, and the insurer cannot enforce the obligation of the insured to pay the premium, Schreiber v. German- American Hail Ins. Co., 43 Minn. 369; at least unless there be a 292 the premium. § 131 Conditions of Policy Regulating Payment. §131. Conditions in a policy regulating the time and manner of payment of the premium are valid and of the essence of the contract, and must be complied with unless waived. When a policy of insurance has been delivered and ac- cepted, it becomes, in the absence of fraud, conclusive evi- dence of the contract of the parties, and its stipulations regulating the time or manner, or place of payment of the premiums become binding on both parties. After accepting a policy the insured will not be heard to deny knowledge of its conditions. And so, when a policy contains a provision that it shall not be binding or effective until the premium has actually been paid, pre-payment of the premium becomes a condition precedent to the attaching of any liability on the part of the insurer. This condition, being imposed for the benefit of the insurer, may be waived by any of its authorized officers or agents. Whether an agent or officer has power to waive the conditions of the policy in this respect must be de- termined from the circumstances of a given case. The in- surer can, by its contract, limit the power of waiver to cer- tain specified officers.^ stipulation in the policy allowing the insurer to retain the premium even though it elects to avoid the policy, Id. The payment of the first premium, or the obligation to pay it, is necessary to the incep- tion of the risk, but an insured is not bound to renew the policy, or to pay future premiums to keep it alive, unless he has obligated himself so to do. Gibson v. Megrew, 154 Ind. 273, 56 N. E. 674, 48 L. R. A. 362. The contract of a member of a mutual benefit associa- tion is purely unilateral, and he may refuse to continue his pay- ments at any time, in which event the association can only declare- his interest forfeited, and cannot sue for unpaid assessments. Rockhold V. Canton M. Mut. Benev. Soc, 129 111. 440; Lehman v. Clark, 174 111. 279. =" Wilkins v. State Ins. Co., 43 Minn. 177. Where a policy expressly provides that a premium shall be paid on or before a certain day, and in default thereof the policy shall be void, nonpayment of the- § 131 CONDITIOX OF POLICY REGULATING PAYMENT. 293 The parties to an iusurance contract liave the right to in- sert such lawful conditions as they may agree upon concern- ing the obligations of each, and a contract when made must he ■construed and enforced according to the expressed intention of the parties. It is not unlawful to provide in the contract that upon certain conditions or contingencies it shall become void.^ An express pro^'ision in a policy that the company shall not be liable until the premium be actually paid, is waived by an unconditional delivery of the policy to the insured as a completed and executed contract, under an express or implied agreement that credit be given for the premium,^ provided the delivery and Avaiver be acts of one authorized to bind the insurer in those particulars. Provisions of the policy for the release of the insurer from liability on a failure of the insured to pay the premiums when due, are of the very es- sence and substance of the contract. To hold the company to its promise to pay the insurance, notwithstanding the de- fault of the insured in making payment of the premiums as premium upon the day named works a forfeiture. Fowler v. Metropolitan Life Ins. Co., 116 N. Y. 389. ^Holman v. Continental Life Ins, Co., 54 Conn. 195; Northwestern Mut. Life Ins. Co. v. Hazelett, 105 Ind. 212; Dwight v. Germania Life Ins. Co., 103 N. Y. 341; Bosworth v. Western Mut. Aid Soc, 75 Iowa, 582; ante, c. 8. *Farnum v. Phoenix Ins. Co., 83 Cal. 246; Brownfield v. Phoenix Ins. Co., 35 Mo. App. 54. But this waiver must be by some one authorized to bind the insurer in the premises. Wilkins v. State Ins. Co., 43 Minn. 177; Miller v. Union Cent. Life Ins. Co., 110 111. 102; Condon v. Mutual Reserve Life Fund Ass'n, 89 Md. 99, 42 Atl. 944, 44 L. R. A". 149; Trustees of First Baptist Church v. Brooklyn' Fire Ins. Co., 19 N. Y. 305; Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117; Howell v. Knickerbocker Life Ins. Co., 44 N. Y. 279; Babcock v. Baker, 37 App. Div. (N. Y.) 558. The waiver may take place after a loss has occurred. Schoneman v. Western Horse & Cattle Ins. Co., 16 Neb. 404; ante, c. 8. 294 THE PKEMIUM. § 132 stipulated, is to destroy tlie very essence of tlie contract, and this a court cannot do.^ Manner of Payment. § 132. A premium is ordinarily payable in cash only. Credit can usually be given by an agent for premiums on fire insur- ance policies. The premium is ordinarily payable in cash, and a local agent has no implied authority to accept or to agree to take anything less in payment for the premium due upon the policy.® It is an elementary principle of agency that whatever an agent does can be done only in the way usual in the line of business in which he is acting. The taking of a horse by an agent, as payment of a premium due the company, is beyond his powers, and a fraud as respects the company, and does not constitute a consideration necessary to create a valid con- tract,'^ but it may be otherwise where the agent is a general state agent, and the transaction takes place within his terri- tory and he has an interest in the premiums.^ So an agent may sometimes give the insured credit for the premiums, and substitute himself as debtor to the company.® The agree- ' Klein v. New York Life Ins. Co., 104 U. S. 88. ° Lycoming Fire Ins. Co. v. Ward, 90 111. 545; Raub v. New York Life Ins. Co., 14 N. Y. St. Rep. 573. But payment may be made by check, Kenyon v. Knights Templar & M. Mut. Aid Ass'n, 122 N. Y. 247, 25 N. E. 302; Maher v. Hibernia Ins. Co., 67 N. Y. 283; or by draft, Piedmont & A. liife Ins. Co. v. Ray, 50 Tex. 511; ante, c. 8. ' Hoffman v. John Hancock Mut. Life Ins. Co., 92 U. S. 161. « Van Warden v. Equitable Life Assur. Soc, 99 Iowa, 621, 68 N. W. 892. "Sheldon v. Connecticut Mut. Life Ins. Co., 25 Conn. 207; Chick- ering v. Globe Mut. Life Ins. Co., 116 Mass. 321; Slobodisky v. Phenix Ins. Co., 53 Neb. 816, 74 N. W. 271. See, also, Buffum v. Fayette Mut. Fire Ins. Co., 3 Allen (Mass.), 360; Kentucky Mut. Ins. Co. V. Jenks, 5 Ind. 96; Schwartz v. Germania Life Ins, Co., 18 § 132 MANNER OF paymp:nt. 295 ment of an agent to accept payment of tlie premium in pro- fessional services rendered by the insured, is void.-^^ So an agi'eement of the agent to set off debts due between him- self and the policy holder, and the issuance of a receipt in evidence of such an agreement, does not bind the company. ^^ Payment cannot be made by the delivery of commodities to the agent where the policy provides for a cash premium. ^^ An insurer has been held estopped to claim non-payment of a premium, when its agent has charged the broker who pro- cured the policy with the amount of the premium. ^^ Where a policy provides that it shall not be valid until the first pre- mium be paid, but specifies no special mode of payment, a de- livery of the policy with a receipt for the first year's pre- mium attached, in exchange for defendant's notes for the amount of the premium, will be deemed in law an agreement to accept, and an acceptance of the notes in payment of the premium.^* The agent may advance the premium to the company, and take the note of the assured for the amount to himself, and this will be a sufficient compliance with the con- dition requiring the premium to be paid before the company shall be liable. ^^ Where an insurer receives an order of an Minn. 448; Pendleton v. Knickerbocker Life Ins. Co., 5 Fed. 238; Pierce v. Charter Oak Life Ins. Co., 138 Mass. 151; Clark v. Metro- politan Life Ins. Co., 107 Mich. 160, 65 N. W. 1. "Anchor Life Ins. Co. v. Pease, 44 How. Pr. (N. Y.) 385; Texas Mut. Life Ins. Co. v. Davidge, 51 Tox. 244. " Barnes v. Piedmont & A. Life Ins. Co., 74 N. C. 22. "Cyrenius v. Mutual Life Ins. Co., 18 App, Div. 599, 46 N. Y. Supp. 549. See, also, §§ 109, 110, on power of agents to receive pre- mium. "Elkins V. Susquehanna Mut. Fire Ins. Co., 113 Pa. St. 386; Le- banon Mut. Ins. Co. V. Hoover, 113 Pa. St. 591. "Tayloe v. Merchants' Fire Ins. Co., 9 How. (U. S.) 390; Union Cent. Life Ins. Co. v. Taggart, 55 Minn. 95. ^'Home Ins. Co. v. Curtis, 32 Mich. 402; Krause v. Equitable Life Assur. Sec, 99 Mich. 461, 58 N. W. 496; Shields v. Equitable Life Assur. Soc. (Mich.), 80 N. W. 793. 296 THE PREMIUM. § 132 employe upon liis employer as payment for tlie premium, advantage cannot be taken of a condition forfeiting the policy for non-payment unless notice be given tlie insured of the failure of the drawee to make the payments mentioned in the order. ^® But an order is not) ordinarily, a payment until cashed. ^'^ When an order is accepted by an insurer, it must be presented within a reasonable time.^^ A check may be received as payment, but in the absence of previous dealings the presumption will be that its acceptance was conditioned upon its being paid when presented. ^^ Pay- ment must be made to some party authorized to receive the premium, and if payment be, by the policy, required to be made at a particular place, the payment must be made at the place designated. Where a policy fixes no place of payment of premium, and names no person to whom it must be paid, pa- rol evidence is admissible to show the agreement between the insured and the agent effecting the insurance, as to the place of payment. ^^ The agent who delivers the policy is presumptively entitled to receive payment of the initial premium.^^ The failure of a broker who delivers the policy and receives the premium, to pay it over to the insurer, does not affect the validity of the policy.^^ "Lyon V. Travelers' Ins. Co., 55 Mich. 141; National Ben. Ass'n V. Jackson, 114 111. 533. "McMahon v. Travelers' Ins. Co., 77 Iowa, 229. " Gotten V. Fidelity & Casualty Co., 41 Fed. 506. See, also, effect of orders of payment, Bane v. Travelers' Ins. Co., 85 Ky, 677; Forest City Ins. Co. v. School Directors of Dist. No. 1, 4 111, App. 145. "Greenwich Ins. Co. v. Oregon Imp. Co., 76 Hun, 194, 58 N. Y. St. Rep. 474. ''"Blackerby v. Continental Ins. Co., 83 Ky. 574. *^ Scott v. Home Ins. Co., 53 Wis. 238; Lycoming Fire Ins. Co. v. Ward, 90 111. 545; Whitley v. Piedmont & A. Life Ins. Co., 71 N. C. 480. See ante, c. 8, "Agents." " Gaysville Mfg. Co. v. Phoenix Mut. Fire Ins, Co., 67 N. H. 457, 36 Atl. 367. § 182 MANNER OF PAYMENT, 297 There is no presumption that an agent who accepts a note for an insurer has power to receive payment of the note at its maturity, unless the note be in his possession at the time of pavment.^^ Where no place of payment is specified in the policy, pajTinent made to any authorized agent is sufficient. But if payment be, by the policy, required at a specified place, as, for instance, the home office, the condition must be com- plied with unless waived by the insurer. ^^ The premium must be paid by the insured or by some one authorized to act for him, or on his behalf, except in cases where the contract recognizes such rights in third parties as gives them an interest in the continuance of the policy, and justifies their paying the premiums to keep it alive. Where a policy of life insurance provided that it should not take effect unless the premium were paid during the lifetime of the insured, a payment of the premium by a third person after death of the insured, as by his administrator or bene- ficiary, does not give life to the contract. As the contract cannot be created without the consent of the contracting par- ties, so it cannot be given effect or continued in existence by the act of an intermeddler.^^ The beneficiary of a certificate of insurance on the life of her father who is insane or incapable of attending to business, is entitled to notice of his default in paying assessments be- fore a forfeiture can be declared therefor, after she has given notice to the company of his condition, and requested a notice of default, so that she might pay the assessments if he did "Long Creek Bldg. Ass'n v. State Ins. Co., 29 Or. 569, 46 Pac. 366. ^*Thwing V. Great Western Ins. Co., Ill Mass. 93; Williams v. Washington Life Ins. Co., 31 Iowa, 541; O'Reilly v. Guardian Mut. Life Ins. Co., 60 N. Y. 169; Bulger v. Washington Life Ins. Co., 63 Ga. 328. "^ Whiting V. Massachusetts Mut, Life Ins. Co., 129 Mass. 240. 298 THE PREMIUM. § 132 not.^^ The beneficiary in a policy lias sucli relation to the contracting parties, and such an interest in the maintenance of the policy, as entitles him to pay the premium,^^ The widow and children of an insured are entitled to make pay- ment of a note given by the deceased husband and father, to- keep alive insurance on the homestead. ^^ Giving Credit for Premium. Except when prohibited by the terms of the contract an insurance agent who has power to receive applications, make contracts, and deliver the policies, is presumed to have au- thority to waive pre-payment of the premium, and to give credit therefor. And even when the policy contains a pro- vision that it shall not go into effect until the initial premium is paid, but contains no special limitation upon the power of the agent to waive pre-payment, it is held that the delivery of the policy without pre-payment of the premium, will give rise to a presumption of an intention to have the policy take- effect at once. The recital of the payment of the premium =•= Buchannan v. Supreme Conclave, I. 0. H., 178 Pa. St. 465, 34 L. R. A. 436. =■ Hamill v. Supreme Council of R. A., 152 Pa. St. 537. In Mat- thews V. American Cent. Ins. Co., 154 N. Y. 449, it was held that in a case of loss by fire after the death of the original insured, and before the appointment of a legal representative, those interested in the policy must make reasonable efforts, and see that the cove- nants as to notice and proofs of loss are kept, and use such agencies as the law provides to secure that result. ^^ Continental Ins. Co. v. Daly, 33 Kan. 601. See, also, as to pay- ments made by third parties. Miller v. Union Cent. Life Ins. Co., 11(? 111. 102; Union Mut. Life Ins. Co. v. McMillen, 24 Ohio St. 67; Gar- ner v. Germania Life Ins. Co., 110 N. Y. 266; Swift v. Railway Pas- senger & F. C. Mut. Aid & Ben. Ass'n, 96 111. 309; Hodge v. Ellis, 76 Ga. 272; Gould v. Emerson, 99 Mass. 154; National Mut. Aid Soc. V. Lupoid, 101 Pa. St. 111. A mortgagee, for whose benefit a mort- gagor has contracted to carry insurance on the mortgaged prop- erty, is entitled to pay the premiums necessary to keep the policy in § 132 MANNER OF PAYMENT. 29D in a policy is prima facie evidence that it has been paid. If the premiums have not been in fact paid, yet the policy has been delivered to the insured without pre-payment, and credit given, it will be held to be in force, subject to the right of the insurer to cancel after giving the necessary notice. ^^ But a j)ro vision in a policy that "no insurance shall be considered as binding until actual payment of the premium, and no part of this contract can be waived except in writing, signed by the secretary of the company," is notice to the insured that an agent has no authority to waive pre-payment of the premium. And a delivery of a policy containing such a condition will not bind the insurer unless the premium be actually paid, or the condition be waived by the secretary or some superior power.^*^ And w^here a policy is delivered with the under- standing that the premium is to be paid in cash and at once, the mere receipt of the policy, even though it contain acknowl- edgment of payment of the premium, does not estop the in- surer from asserting and proving non-pajanent, as against a mortgagee to whom loss if any is payable, although he received the policy which acknowledged receipt of the premium from the assured, without notice that the premium w^as unpaid.^ ^ Whether or not it was intended thai the policy should go into force, and can charge amounts paid therefor as a part of the mort- gage debt. St. Paul F. & M. Ins. Co. v. Upton, 2 N. D. 229, 50 N. W. 702; Overby v. Fayetteville B. & L. Ass'n, 81 N. C. 56. And in such case the mortgagee must account to the mortgagor for the benefit of any insurance collected. Pendleton v. Elliott, 67 Mich. 496; Johnson v. Horsford, 110 Ind. 572; Nordyke & M. Co. v. Gery, 112 Ind. 535, 13 N. E. 683. -" John R. Davis Lumber Co. v. Home Ins. Co., 95 Wis. 542, 70 N. W. 59; Mallory v. Ohio Farmers' Ins. Co., 90 Mich. 112, 51 N. W. 188; Stewart v. Union Mut. Life Ins. Co., 155 N. Y. 257, 42 L. R. A. 148. '" Wilkins v. State Ins. Co., 43 Minn. 178. " Union Bldg. Ass'n v. Rockford Ins. Co., 83 Iowa, 647. 300 THE PREMIUM. § 132 •effect witliout j)re-payment of the premium, and that credit should he given therefor, is often a question of fact to be de- termined by a jurj.^^ The Effect of Taking a Note for Premium. While it is true, as a general rule, that a promissory note is not payment of a debt which it represents, until the note is itself paid, yet it becomes a payment of the debt when the parties by express stipulation so agree. The acknowledg- ment of payment in the policy is always open to explanation by proof of the actual facts. Though such acknowledgment in the policy would tend to show that it was the intention of the parties that a promissory note, given for the premium, was intended to be taken as payment, it can always be shown, to defeat the inference, that such was not the intention of the parties. It only, in effect, changes the burden of proof in such cases.^^ The application and the note given for the policy, if executed as part of the same contract, are to be considered together in order to determine what the contract was.^^ When a note is accepted as payment of the premium, the non-pay- ment of the note at maturity does not affect the policy, or release the insurer, unless that effect be expressly stipulated ^Qj. 35 Where a policy is conditioned to be void on failure == Church V. La Fayette Fire Ins. Co., 66 N. Y. 222. Where a policy is prepared and forwarded to a general agent to be delivered by him, and he to receive payment of fees and premium, of which no part went to the insurer, the latter cannot complain of the giving of credit. Pythian Life Ass'n v. Preston, 47 Neb. 374, 66 N. W. 445. ^Pitt V. Berkshire Life Ins. Co., 100 Mass. 502; Massachusetts Ben. Life Ass'n v. Robinson, 104 Ga. 256. =* McAllister v. New FJngland Mut. Life Ins. Co., 101 Mass. 561; Beezley v. Des Moines Life Ass'n, 100 Iowa, 436, 69 N. W. 549. ^^ Union Cent. Life Ins. Co. v. Taggart, 55 Minn. 95; Trade Ins. €o. V. Barracliff, 45 N. J. Law, 543. § 132 PREMIUM NOTES. 301 to pav "any notes or otlier obligations given for premium," and recites a consideration of a certain snm in hand paid, and annual premiums for a like amount, and part of the payment was in cash, and a note had been given for the balance, the note providing that if not paid when due the policy should be void in accordance with the conditions of the policy, it is held that the policy is forfeited by failure to pay the note at maturity.^^ A provision in the note that upon its non- payment at maturity the insurer shall have the right to cancel the policy, does not release the insurer per sc, but merely gives the insurer a right which it can exercise or not at its option.^''^ But a provision in a premium note that if it is not paid at maturity the entire premium shall be con- sidered earned, and the policy shall be null and void so long as the note remains overdue and unpaid, is valid and bind- ing, and the policy is unenforcible if the note is not paid at maturity or prior to the loss.^^ The taking of notes, at the time of the issue of the policy, in lieu of quarterly instalments of annual premium, does not waive a provision of the policy rendering it void for failure to pay the subsequent instalments as they become due.^'' '"Pitt V. Berkshire Life Ins. Co., 100 Mass. 500; How v. Union Mut. Life Ins. Co., 80 N. Y. 32, " Western Horse & Cattle Ins. Co. v. Scheidle, 18 Neb. 495. ''New Zealand Ins. Co. v. Maaz, 13 Colo. App. 493, 59 Pac. 213; Garlick v. Mississippi Valley Ins. Co., 44 Iowa, 553; American Ins. Co. V. Stoy, 41 Mich. 385; Knickerbocker Life Ins. Co. v. Pendleton, 112 U. S. 696. '"Beezley v. Des Moines Life Ass'n, 100 Iowa, 436, 69 N. W. 549. A forfeiture of a policy, assented to by the insured, for nonpayment of a note for advance premiums, prevents the recovery of any part of the note, although the company might otherwise have enforced the note, and the insured might have paid the premium, and con- tinued the policy in force. Skillern v. Continental Ins. Co. (Tenn.^, 42 S. W. 180. 302 THE PREMIUM, § lo2 Where an Insurer avoids a policy for fraud or misrepre- sentation, the consideration for the premium note fails. A stipulation that in case the policy shall become void from the happening of a particular event, the whole premium, paid or unpaid, for the entire tenn shall be deemed earned, gives the insurer the right to retain the paid-up premium, and to collect the unpaid premium, for the benefit of the in- surance which the insured has had up to the time of the speci- fied event, is a sufficient equivalent for the premium, paid and impaid.^" An agreement that the premium note of the in- sured shall remain binding upon him although the insurer is relieved from liability, is not illegal or contrary to public policy.'^^ That a premium note has not been paid at the time a loss occurred, does not defeat a recovery, %Yhere a note has not matured at the time of the loss, and the policy merely provides that it shall be suspended, and of no force and effect during the time the premium note, or any pr.rt thereof, remains overdue and unpaid. ^^ Forfeitures of a policy which has once gone into effect are not favored, and will not be allowed to release the insurer *• Schreiber v. German-American Hail Ins. Co., 43 Minn. 368. *^ St. Paul F. & M. Ins. Co. v. Coleman, 6 Dak. 458, 6 L. R. A. 87: CauflReld v. Continental Ins. Co., 47 Mich. 447; Minnesota Farmers' Mut. Fire Ass'n v. Olson, 43 Minn. 21. Negotiable promissory notes, which purport on their face to be premiums, and stipulate that the policy becomes void if they are not paid at maturity, are not per se a payment of the premium, so as to avoid the policy, render- ing it void if premium notes are not paid when due. Forbes v. Union Cent. Life Ins. Co., 151 Ind. 89, 51 N. E. 84; German Ameri can Ins. Co. v. Divilbiss, 67 Mo. App. 500. Stipulations that the company shall not be liable while the premium note remains un paid will be recognized. Robinson v. Continental Ins. Co., 76 Mich 641, 6 L. R. A. 05; Fowler v. Metropolitan Life Ins. Co., 116 N. ^ 389. ■^Farmers' & Merchants' Ins. Co. v. Wiard (Neb.), 81 N. W. 31" § 132 PREMIUM NOTES. 303 from liability, unless such a result be clearly stipulated for."*' But a provision avoiding tbe policy for non-payment of pre- mium or assessments within a certain time, is certain and unambiguous, and cannot be construed to merely give the insurer the right to avoid the policy,"*^ and are binding upon the beneficiary.'*^ A policy which provides for one month ■of grace after the premium becomes due, cannot be forfeited for non-paj-Tuent of premium, unless the insured s\irvives the month. ^^ It has sometimes been held that the stipulation for forfeiture in the note is nugatory, and that a forfeiture oai) only be based upon an express provision of the policy itself.^^ Defenses to Premium Notes. It is no defense to an action on a premium note that during the continuance of a default of the insured the policy was temporarily suspended, and the insurer would not be liable for a loss happening during such default ;^^ nor that the in- surer, if a foreign corporation, has not strictly complied with the law authorizing it to do business within the state, if there has been a substantial compliance with the law;"*^ nor that the insured, who was able to read, did not read the note before signing it.^° " Massachusetts Ben. Life Ass'n v. Robinson, 104 Ga. 256, 30 S. E. 918; McMaster v. New York Life Ins. Co., 90 Fed. 40; Ohio Farm- ers' Ins. Co. V. Stowman, 16 Ind. App. 205, 44 N. E. 558, 940; Han- over Fire Ins. Co. v. Dole, 20 Ind. App. 333, 50 N. E. 772; Grand Lodge, A. O. U.'W., v. Bagley, 164 III. 340. "Bo^worth V. Western Mut. Aid Soc, 75 Iowa, 582. *= Forbes v. Union Cent. Life Ins. Co., 151 Ind. 89, 51 N. E. 84. *' McMaster v. New York Life Ins. Co., 90 Fed. 40. " Dwelling House Ins. Co. v. Hardie, 37 Kan. 674. "American Ins. Co. v. Henley, 60 Ind. 515; American Ins. Co. v. Charles, 62 Ind. 210. *» American Ins. Co. v. Butler, 70 Ind. 1; American Ins. Co. v. Pressell, 78 Ind. 442. ''° American Ins. Co. v. McWhorter, 78 Ind. 136. 3Ui THE PKEMIUM. § 132 It is no defense to a premium note, in the tand of an inno- cent purchaser for value, before maturity, that the company which issued the policy for which the note was given, has failed ;^^ nor that the insurer had failed to comply with a contemporaneous parol agreement ;^^ nor that by the terms of the policy it was provided that the insurer might cancel the policy and return the premium for the unexpired tenn p?*o rata, and Ijiat on failure to pay the note at maturity the policy should be void until revived by payment, but that the whole amount due should be considered earned ;^^ nor that the in- surer failed to show that it was empowered to do business in the state where the contract was made f^ nor that the act which gave the company power to insure was unconstitutional, nor that the contract was ultra vires, by reason of want of power to insure.^^ Payment of Premium after Loss. If the contract has been completed before a loss occurs, and credit has been expressly or impliedly given for the pre- mium, payment made after loss is sufficient. If the loss has occurred before the contract is made the insurer is not bound, for insurance is against anticipated perils and events, and not against those which have already happened.^ "^ If the loss occurs during a temporary suspension of the policy for non-payment of the premium, or before the policy by its terms has become effective because the initial premium "Union Ins. Co. v. Greenleaf, 64 Me. 123. " Life Ass'n of America v. Cravens, 60 Mo. 388. •"Cauffield v. Continental Ins. Co., 47 Mich. 447; American Ins. Co. V. Klink, 65 Mo. 78. "American lus. Co. v.' Smith, 73 Mo. 368; Cassaday v. American Ins. Co., 72 Ind. 95; Union Ins. Co. v. Smart, 60 N. H. 458; Fidelity & Casualty Co. v. Eickhoff, 63 Minn. 170. " Freeland v. Pennsylvania Cent. Ins. Co., 94 Pa. St. 504. "Wales V. New York Bowery Fire Ins. Co., 37 Minn. 106. § 133 NOTICE OF PKEiriUM FALLING DUE. 305 is not paid, the insurer will not be liable.^'^ If a policy pro- vides that it shall not be efFective imtil the advance premium is paid during the lifetime of the person insured, a payment of such premium by a third person, without the knowledge of the insured, is of no effect, although paid with his money, and his administrator cannot ratify the act.^^ The payment of a premium after a loss has occurred, without disclosing the loss, is not a fraud, as the insured owes the company no duty to disclose the loss before paying, provided the contract was in force at the time the loss occurred.^^ Notice of Premium Falling Due. § 133. Notice need not be given of the falling due of premi- ums unless required by the contract or by statute. An insurer is not bound to notify an insured of the time when the premiums or premium notes will become due, unless either by contract or by-law such notice is required to be given, or unless the insurer has specially agreed to give such notice before it mil claim a forfeiture. InstiTictions by an insurer that premiums must be paid at its home office, and that due notice will be aiven of the date when payment must be made, will prevent a forfeiture for non-payment of the premium, until such notice has been given. An insurer will not be allowed to take advantage of any non-payment caused by its own misrepresentations or conduct, which have induced the insured to delay payment.®^ Where the insurer "Cases supra; Wall v. Home Ins. Co., 36 N. Y. 157; Matthews v. American Ins. Co.. 40 Ohio St. 135. ''Whiting V. Massachusetts Mut. Life Ins. Co., 129 Mass. 240. '"Firemen's Ins. Co. v. Kuessner, 164 111. 275. See, also. Burner's Adm'r v. German-American Ins. Co. (Ky.), 27 Ins. Law J. 732, 45 S. W. 109; Milkman v. United Mut. Ins. Co., 20 R, I. 10, 36 Atl. 1121. '•' Heinlein v. Imperial Life Ins. Co., 101 Mich. 250, 25 L. R. A. G27; Colby v. Life Ind. & Inv. Co., 57 Minn. 510. KERR, INS.— 20 306 THE PREMIUM. § 133 has undertaken, or is obligated to give notice, it cannot claim a forfeiture without sho-\\ing that it has given the notice required, in the proper manner, and at the proper time.^^ Usage on the part of the insurance company, of the giving notice of the day of payment, and the reliance of the as- sured upon such notice, is no excuse for non-payment.^^ In some states the legislature has interfered on behalf of the insured, and has by statute prevented a literal enforcement of the policy forfeiting the rights of the insured for non- payment of premiums upon the due-day, and required that when a premium becomes due notice must be given, and a specified time allowed in which to pay, before the policy can be forfeited for non-payment of premium. The provisions of a statute, making the serving of the notice a condition precedent to the forfeiting of the policy, cannot be superseded by the contract of the parties.®^ But such law, while control- ling the rights of the insurer to forfeit the policy of insured, does not destroy the rights of the contracting parties to agree to abandon the contract.®* «^ Covenant Mut. Ben. Ass'n v. Spies, 114 111, 463; Wolf v. Michi- gan Masonic Mut. Ben. Ass'n, 108 Mich. 665, 66 N. W. 576; Goodwin V. Provident Sav. Life Assur. Ass'n, 97 Iowa, 226, 66 N. W. 157, 32 L. R. A. 473; Benedict v. Grand Lodge, A. O. U. W.. 48 Minn. 471; Shelden v. National Masonic Ace. Ass'n, 122 Mich. 403, 81 N. W. 266. "^Thompson v. Knickerbocker Life Ins. Co.. 104 U. S. 252; Man- dego V. Centennial Mut. Life Ass'n, 64 Iowa, 134. "^ Baxter v. Brooklyn Life Ins. Co., 119 N. Y. 450; Laws N. Y. 1877, c. 321; Laws N. Y. 1892, c. 690, § 92; Equitable Life Assur. Soc. v. Trimble (C. C. A.), 83 Fed. 85; Nail v. Provident Sav. Life Assur. Soc. (Tenn. Ch. App.), 54 S. W. 109. For construction of this New York statute, see Banholzer v. New York Life Ins. Co., 74 Minn. 387, 77 N. W. 295; Trimble v. New York Life Ins. Co., 20 Wash. 386, 55 Pac. 429; Rosenplanter v. Provident Sav. Life Assur. Soc. (C. C. A.), 96 Fed. 721. 46 L. R. A. 473. " Mutual Life Ins. Co. v. Hill, 178 U. S. 347. I 133 NONFORFEITABLE TOLICIES. 307 Nonforfeitable Policies. Some policies contain a provision that if, after they have heen kept ^live a designated time, or until after a certain number of premiums have been paid, they should lapse by reason of non-payment of premium, then the risk will be carried by the insurer for a given time, notwithstanding the failure to pay the premium stipulated for; or the insured may, at his option, upon surrender of the policy, obtain a new one for a sum proportioned to the amount of premiums which have been paid. Such policies are termed non-for- feitable. They are written upon the theory that the premium paid is more than sufficient to carry yearly or term insurance, and that there is in the hands of the insurer at the time of failure to pay the premiuifi a surplus to the benefit of which the insured is entitled. In effect it enables him to partici- pate in the profits of the business of the insurer. In many states this subject is regulated by statute.*'^ Upon familiar principles of laAV the statutes of a state enter into and become a part of every contract made within a state, or which is to be construed as a contract of that state. They are neither retroactive nor retrospective, nor can their repeal affect contracts made subject to them.^^ The pro- visions of such statute are intended for the benefit of the in- sured, and may be waived by him. Thus, a termination of a life insurance policy by mutual agreement after defaulting in payment of premiums, and the refusal of the insured to continue the policy, is conclusive against the insured, not- •"Deering's Ann. Civ. Code Cal. § 2766; 1 Mill's Stat. Colo. 1891, § 2223; Rev. St. Me. 1883. p. 460, § 91; Pub. Laws Me. 1887, c. 71; How. Ann. St. Mich. 1882, § 4232; St. Mass. 1880, c. 232, § 6; Id. 1882, c. 119, §§ 159-160; Id. 1887, c. 214, § 76; 3 Rev. St. N. Y. (8th Ed.) D. 1688. "^ McDonnell v. Alabama G. L. Ins. Co., 85 Ala. 401; Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483, 90 Am. Dec. 438; ante, §§ 55, 68. 308 THE PKEMIUM. § 13S withstanding tlie statutory provision precluding a forfeit- ure.^'^ Tlie precise nature of the rights of the insured, and the liability of the insurer, must vary according to the condi- tions of the contract, and statute under which it is made.^* The Return of the Premium. As we have seen, the consideration for the premium Is the attaching of the risk, and the insurance afforded. When for any reason the contract has not been consummated, or a risk never attaches^ or the policy is void, there is no consider- «^ Mutual Life Ins. Co. v. Phinney, 178 U. S. 327; Mutual Life Ins. Co. V. Sears, 178 U. S. 345; Mutual Life Ins. Co. v. Hill, 178 U. S. 347; Mutual Life Ins. Co. v. Allen, 178 U. S. 351. <^In Carter v. John Hancock Mut. Life Ins. Co., 127 Mass. 153, the court said: "The purpose of the statute is merely to establish a rule which shall enable the assured to reap the full benefit of pre- miums paid before default on his part, and, at the same time, to secure to the insurance company, in case it is obliged to pay, the full amount of the premiums which the terms of the policy call for. It is not the purpose of the statute to make a new contract between the parties, nor to make any change in the time when the amount of the policy becomes payable. * * * The premium provided for by the policy is fixed with reference to the endowment feature, and is, of course, much larger than is paid for a pure life policy, whea the age of the assured is such that his expectation of life is largely in excess of the period at the end of which the amount of the policy is made payable." The making of a default, and the conversion of the policy from an annual premium policy to a paid-up policy, is at the option of the insured. Lovell v. St. Louis Mut. Life Ins. Co., Ill U. S. 264. This right to exercise the option is lost by the surrender of the policy. Mover v. Manhattan Life Ins. Co., 144 Ind. 439, 43 N. E. 448; Mutual Life Ins. Co. v. Phinney, 178 U. S. 327. For construction of policies containing this feature, see, also, Lewis V. Penn Mut. Life Ins. Co., 3 Mo. App. 372; Chase v. Phoenix Mut. Life Ins. Co., 67 Me. 85; Hamilton v. Mutual Ben. Life Ins. Co., 109 Ga. 381, 34 S. E. 593; Matlack v. Mutual Life Ins. Co., 180 Pa. St. 360. 36 Atl. 1082; Sheerer v. Manhattan Life Ins. Co., 20 Fed. 886; Smith v. National Life Ins. Co., 103 Pa. St. 177; McConnell v. § 133 KETUKN OE PREMIUM. 309 ation to sustain tlie pa^Tnent of the premium, and if paid it must be returnc 1. If unpaid it cannot be coUected.*^^ Thus if a policy upon which premiums, have been paid is void because of misconduct on the part of the agent procur- ing it, without fault on the part of the applicant, the company is liable for the return of the premiums which have been paidJ" So if the risk did not attach because the sole 0"\\T.iei^ sliip of the insured property was not in the insured ;'^^ or if the insurer, by virtue of a condition of the policy, exercises the right given him to avoid it in toto, and from the begin- ning;'^^ or if the contract was conditional, and never became in force or effect.'^^ But an insured cannot recover back the premium when the policy is void because of fraudulent mis- representations or concealment on his part;"^"* nor if the con- tract be illegal in its inception, if the parties are in 'pari dc- licto.'^° An infant cannot recover premiums paid for insur- ance upon his Qwn life when the contract is fair and reason- able and free from fraud or bad faith on the part of the Provident Sav. Life Assur. Soc. (C. C. A.), 92 Fed. 769; Omalia Nat. Bank v. Mutual Ben. Life Ins. Co., 81 Fed. 935; McMaster v. New York Life Ins. Co., 78 Fed." 33. ""Schreiber v. German-American Hail Ins. Co., 43 Minn. 367; Wal- ler v. Northern Assur. Co., 64 Iowa, 101; McCutcheon v. Rivers, 68 Mo. 122; Prentice v, Knickerbocker Life Ins. Co., 77 N. Y. 483; United States Life Ins. Co. v. Wright, 33 Ohio St. 533; Abell v. Penn Mut. Life Ins. Co., 18 W. Va. 400. ™ New York Life Ins. Co. v. Fletcher, 117 U. S. 519. '' Waller v. Northern Assur. Co., 64 Iowa, 101. '- Schreiber v. German-American Hail Ins. Co., 43 Minn. 367, "'Harnickell v. New York Life Ins. Co., 40 Hun (N. Y.), 558. ''Aetna Life Ins. Co. v. Paul, 10 111. App. 431; Fisher v. Metro- politan Life Ins. Co., 162 Mass. 236. ''Howard v. Refuge Friendly Society, 54 Law T. (N. S.) 644; Russell V. De Grand, 15 Mass. 35; 1 Story, Eq. Jur. (6th Ed.) 69; Welsh V. Cutler, 44 N. H. 561. Nor can the insurer collect the pre- mium in such case. Eldred v. Malloy, 2 Colo. 320, 25 Am. Rep. 752; Comly V. Hillegass, i)4 Pa. St. 132. 39 Am. Rep. 774. 310 THE PREMIUM. § 133 insurer, and the insurance was liad in a solvent company, at ordinary and usual rates, for an amount reasonably commen- surate with the infant's estate. "^^ Excuses for Nonpayment. It is elementary that when the performance of a con- tract becomes impossible by the act of God, the obligor is excused, and his rights under the contract are not forfeited. This rule contemplates only cases of absolute impossibility to perform — contracts in which the conditions could not have been performed by the obligors, nor by others for them, and where neither the exercise of prudence or foresight could have provided against the effects of the act of God. Neither sickness nor insanity of the insured is an excuse for' failure to pay the premium, for the act required is not a personal act, and could have been performed by others than the insured.'^ ^ Otherwise where the contract contains a provision to the con- trary in case of sickness, or for valid reason, or provides for payment within a reasonable time after the premium be- comes due.'^^ The insured is not excused from paying his premiums because the insurer holds his policy as bailee ;'^'^ nor because the insurer has engaged in business which is nltra vires its powers, unless the insured is specially dam- aged thereby.^" A premium cannot be paid by an intermed- dler.^^ But the beneficiary of a certificate on the life of her '" Johnson v. Northwestern Mut. Life Ins. Co., 56 Minn. 365. ''Klein v. New York Life Ins. Co., 104 U. S. 88; Thompson v. Knickerbocker Life Ins. Co., 104 U. S. 252; Wheeler v. Connecticut Mut. Life Ins. Co., 82 N. Y. 543; Carpenter v. Centennial Mut. Life Ass'n, 68 Iowa, 453, 27 N, W. 456. "Dennis v. Massachusetts Ben. Ass'n, 47 Hun (N. Y.), 338; Van Houten v. Pine, 38 N. J. Eq. 72; Howell v. Knickerbocker Life Ins. Co., 44 N. Y. 276. " Howard v. Mutual Ben. Life Ins. Co., 6 Mo. App. 577. ^ Haydel v. Mutual Reserve Fund Life Ass'n, 98 Fed. 200. *^ Whiting V. Massachusetts Mut. Life Ins. Co., 129 Mass. 240. §m TENDER. 311 father who Is insane and incapable of attending to business, is entitled to notice of Lis default in paying assessments, and has the right to pay them herself after she has given notice to the company of his condition, and requested notice of default.®^ An insurer, however, is not bound to give notice of the day upon which the premium becomes due, unless the contract so provides, and its failure to give notice, though its usage has been to the contrary, will not excuse the non- payment^^ But misrepresentations of the insurer and its agents, which mislead the insured, and induce him to refrain from paying the premiums, furnish a good excuse for non- payment.^* Excuse for Default — Tender. § 134. After tlie insurer has declared a policy forfeited or ter- minated the insured need not tender subsequent premiums, A tender of a premium when due to one authorized to re- ceive payment is just as effective to preserve the rights of the insured as its payment Avould have been.^^ After an insurer has declared a policy forfeited the insured loses no rights by failure to tender subsequent premiums. One party cannot predicate a forfeiture upon an omission by the other which his own conduct has helped to bring about. The dec- '"Buchannan v. Supreme Conclave, I. 0. H., 178 Pa. St. 465, 34 L. R. A. 436. "'Smith V. National Life Ins. Co., 103 Pa. St. 177; Thompson v. Knickerbocker Life Ins. Co., 104 U. S. 252; Survick v. Valley Mut. Life Ass'n (Va.), 23 S. E. 223. As to effect of war as an excuse for nonpayment of premium, see Clemmitt v. New York Life Ins. Co., 76 Va. 355; New York Life Ins. Co. v. Statham, 93 U. S. 24; Con- necticut Mut. Life Ins. Co. v. Duerson's Ex'r. 28 Grat. (Va.) 630; Mutual Ben. Life Ins. Co. v. Hillyard, 37 N. J. Law, 444. ^* Colby V. Life Ind. & Inv. Co., 57 Minn. 510. "■'Hallock V. Commercial Ins. Co., 26 N. J. Law, 268; Manhattan Life Ins. Co. v. Le Pert, 52 Tex. 504; Beatty v. Mutual Reserve Fund Life Ass'n (C. C. A.), 75 Fed. 65. 312 THE PKEMIUM. § 134 laration tliat a policy of insurance is already forfeited will constitute a sufficient justification for the omission to tender subsequently accruing premiums, upon the ground that tho assured is justified in believing that no tender would be ac- cepted.^^ Renewal Premiums. A renewal premim is considered as in effect paid, or pre- payment waived, by the delivery of a renewal receipt properly signed, continuing the policy in force, even though the policy requires actual pre-payment of the premium.^'' Reinstatement of Policy Forfeited for Nonpayment of Pre- mium. Where by misrepresentations of the insurer the insured is misled and induced to refrain from paying premiums he otherwise would have paid at the proper time, and because of such non-payment the policy is forfeited, he is entitled to have his policy reinstated upon payment of the proper pre- miums, as soon as he learns of his mistake, if this be during his life. If the insured dies before discovering his mistake the beneficiary can recover on the policy, upon payment of the premiums. The insurer will never be allowed to profit by declaring a forfeiture through non-payment which it has wrongfully induced.^^ *° National Mut. Ins. Co. v. Home Ben. Soc, 181 Pa. St. 443, 37 Atl. 519; Supreme Lodge, K. of H., v. Davis, 26 Colo. 252, 58 Pac. 595; Shaw v. Republic Life Ins. Co., 69 N. Y. 286; Girard Life Ins. Co. V. Mutual Life Ins. Co., 86 Pa. St. 236. *'Tennant v. Travellers' Ins. Co., 31 Fed. 322; McCabe v. Aetna Ins. Co. (N. D.), 81 N. W. 427; Willey v. Fidelity & Casualty Co., 77 Fed. 961. »^ Colby V. Life Ind. & Inv. Co., 57 Minn. 510; Shelden v. National Masonic Ace. Ass'n, 122 Mich. 403, 81 N. W. 266; Leslie v. Knicker- bocker Life Ins. Co., 63 N. Y. 27; ante, notes 60, 86. § 134 . KEINSTATEMENT. 313 A policy holder may compel reinstatement upon tender of the proper premium, where his policy is sought to be forfeited for non-payment of an excessive assessments^ But such an action must he brought within the time specified in tlie- policy.^^ Where a contract provides for reinstatement the insured is entitled to be reinstated upon the exact terms stip- ulated for.^^ And the insurer cannoj:, after the issuing of the contract, attach new requirements as conditions prece- dent to reinstatement.^^ A policy suspended for non-pay- ment of premium, is revived by the subsequent payment flnd acceptance thereof during the term of the policy and be- fore loss has occurred.^ ^ The right of reinstatement within a certain period, upon payment of accrued assessments after the forfeiture of a policj" which takes place eo instanti by oj)eration of law, and without notice, according to the contract, is terminated by the death of the member without such payment during the time allowed for such reinstatement.^^ *'Bagley v. Mutual Reserve Fund Life Ass'n, 24 Misc. Rep. (N. Y.) 634, 54 N. Y. Supp. 189. ""Survick v. Valley Mut. Life Ass'n (Va.), 23 S. E. 223. Concern- ing rights of members of mutual societies to reinstatement, see Supreme Lodge Nat. Resei've Ass'n v. Turner, 19 Tex. Civ. App. 340, 47 S. W. 44; Sovereign Camp, W. of W., v. Rothschild, 15 Tex. Civ. App. 463, 40 S. W. 553. "^Manson v. Grand Lodge, A. O. U. W., 30 Minn. 509; Davidson v. Old People's Mut. Ben. Soc, 19 Minn. 303. "- Sieverts v. National Benev. Ass'n, 95 Iowa, 710, 64 N, W. 671. In this case it was held that the insurer could not, after the issuing of a policy, bind the insured by the adoption of a by-law requiring a health certificate to be furnished as a condition precedent to rein-' statement, in addition to the other requirements, unless the right to do so was expressly reserved in the contract. Hobbs v. Iowa Mut. Ben. Ass'n. 82 Iowa. 107. 47 N. W. 983. "^ Schreiber v. German-American Hail Ins. Co., 43 Minn. 367; American Ins. Co. v. Klink, 65 Mo. 78. "'Carlson v. Supreme Council. A. L. of H., 115 Cal. 466, 35 L. R. A. 643. 314 THE PREMIUM. § 135 An insured avIio, as a condition precedent to reinstatement,, signs a health certificate, certifying that on its date he is and has continuously been in good health, and free from disease and infirmity, certifies only to his condition during his de- linquency.^^ A reinstatement of a policy which has lapsed for non-payment of premiums, obtained through a fraudulent misrepresentation of material facts made by the insured, is ineffectual, and not binding upon the insurer.^^ The doc- trine of the revival of contracts suspended by war cannot be invoked to revive a contract of life insurance whose ternii? make prompt payments at stipulated times the essence of the contract.^'^ Waiver of Non-patment. § 135. Any agreement, declaration, or course of action on the part of an insurance company, which leads the party insured honestly and justifiably to believe that by comforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the company from insisting upon a forfeiture which might otherwise be claimed under the express wording of the contract. The fundamental general rule of the law is that the con- tract actually existing between the parties, and the perform- ance of the respective obligations to which they have agreed,, shall be enforced. But a contract once made may be modi- fied, and provisions favorable to either party may be relaxed or eliminated. Whether the minds of the parties have met on such modification or relaxation may be determined as- well from acts and conduct as from express words. When the exact performance of a condition is not important to the- obligee, and the requirement of strict performance results in "'Reilly v. Chicago Guaranty Fund Life Soc, 75 Minn. 377, 77 N. W. 982. "'' Massachusetts Ben. Life Ass'n v. Robinson, 104 Ga. 256, 42r L. R. A. 26L »" New York Life Ins. Co. v. Statham, 93 U. S. 24. § 135 WAIVER OF NON-rAYMENT. 315 serious injury or in forfeiture to the obligor, courts lean to such construction of the contract and the words and acts of the parties, as will be most likely to accomplish the tnie pur- pose and understanding of the parties, as well as to promote justice. In line with such general policy the rule has become established that where by failure of some exact performance a forfeiture is imposed on one party by the strict terms of an agreement, conduct of the other sufficient to induce a be- hef that such strict perfonnance is not insisted upon, but that a modified performance is satisfactory and will be ac- cepted as an equivalent, justifies a conclusion that the parties have assented to a modification of the original terms, and that their minds have met upon the new understanding that a different mode of performance shall have the same effect, or, as it is often expressed, that the obligee has waived strict performance.^^ Waiver or forfeiture for non-payment of the premium at the stipulated time will be treated as unconditional, unless a contrary understanding of the parties clearly appears.^* An agreement made after the issuance of the policy, whereby the insurer agrees to accept quarterly instead of annual pay- ments of premiums, and that the forfeitures stipulated for in case of non-payment shall not take effect if the premiums are paid within a reasonable time, is valid and binding. ^^^ An insurer cannot continue its right to insist upon forfeiting a contract unless payments are made, and at the same time '^ Hartford Life & Annuity Ins. Co. v. Unsell, 144 U. S. 439; Muel- ler V. Grand Grove, U. A. O. D., 69 Minn. 236, 72 N. W. 48; Roby v. American Cent. Ins. Co., 120 N. Y. 510; Griffin v. Prudential Ins. - Co., 43 App. Div. (N. Y.) 499; Mobile Life Ins. Co. v. Pruett, 74 Ala. 487; Alexander v. Continental Ins. Co., 67 Wis. 422, 30 N. W. 727; National Mut. Ben. Ass'n v. Jones, 84 Ky. 110; ante, note 88. '"' Murray v. Home Ben. Life Ass'n, 90 Cal. 402. "^ De Frece v. National Life Ins. Co.. 136 N. Y. 144. 316 THE PKEMIUM. § 135 accept overdue payments of premiums whenever tendered. ^"^ But an occasional acceptance of an overdue premium while the insured was in good health, does not of itself constitute a waiver of the right to enforce the stipulations of the contract concerning payment. ^'^^ And a benefit society does not waive a forfeiture for non-payment of assessments by making further assessments, and giving notice thereof within the period during which the insured has a right to reinstatement upon making pajTuent of all accrued assessments. -^"^ Nor does a collection of an assessment from one whose member- ship has been forfeited, restore such person to membership, where the contract provides that the collection of assessments shall not operate to relieve any one from a forfeiture. -^"^ An acceptance of premiums after they are due and reinstatement of the insured does not waive the prompt payment of future premiums where there is an express agreement that the rein- statement shall not waive forfeiture for future non-pay- ments. -^°^ A waiver that will preclude the insurer from relying on the terms of the policy must be in the nature of an estoppel. The insurer must, by some act of an agent having real or apparent authority, have done or said something that in- duced the plaintiff. to do or forbear to do something to his prejudice.^°^ An insurer is not required to do any affirm- ative act declaring forfeiture for violation of the conditions '"^ Sweetser v. Odd Fellows' Mat. Aid Ass'n. 117 Ind. 97. ^"^Lantz V. Vermont Life Ins. Co., 139 Pa. St. 546, 10 L. R. A. 577; Haydel v. Mutual Reserve Fund Life Ass'n. 98 Fed. 200. "^ Carlson v. Supreme Council, A. L. of H., 115 Cal. 466, 35 L. R. A. 643. ">* Ellerbe v. Faust. 119 Mo. 653, 25 L. R. A. 149. 1"^ French v. Hartford L. & A. Ins. Co., 169 Mass. 510, 48 N. E. 268. ^"^ Weidert v. State Ins. Co., 19 Or. 261. § 135 WAIVER OF NO\-PAYMENT. 317 of a policj; wHich causes the policy by its own terms to be- come void.^^''' Illustrations — No Waiver. Where a policy provides for forfeiture upon non-payment of the premium ad diem, the acceptance of a note waives pay- ment of the premium, but the conditions of the policy con- cerning forfeiture for non-payment of the note becomes op- erative. ^°^ There is no waiver of prompt payment of a pre- mium, unless the insurer does or omits some act whereby the insured has just ground to believe, and does believe, and "^Betcher v. Capital Fire Ins. Co., 78 Minn. 240, 80 N. W. 971. See, also, concerning waiver. New York Life Ins. Co. v. McGowan, 18 Kan. 300; Phoenix Mut. Life Ins. Co. v. Hinesley, 75 Ind. 1; Missouri Valley Life Ins. Co. v. Dunklee, 16 Kan. 158; Robinson v. Pacific Fire Ins. Co., 18 Hun (N. Y.), 395; Alabama G. L. Ins. Co. V. Garmany, 74 Ga. 51. For illustrations of waiver, see Mallory v. Ohio Farmers' Ins. Co., 90 Mich. 112, 51 N. W. 188; Phenix Ins. Co. v. Tomlinson, 125 Ind. 84, 9 L. R. A. 317; Southern Life Ins. Co. v. Kempton, 56 Ga. 339; Piedmont & A. Life Ins. Co. v. Lester, 59 Ga. 812; Hopkins v. Hawkeye Ins. Co., 57 Iowa. 203; Smith v. St. Paul F. & M. Ins. Co., 3 Dak. 80; Krumm v. Jefferson Fire Ins. Co., 40 Ohio St. 225. Effect of other defences: The receiving and retaining of a pre- mium after a forfeiture, waives any known previous cause of for- feiture. Smith V. St. Paul F. & M. Ins. Co., 3 Dak. 80; as misrepre- sentations, Seibel v. Northwestern Mut. Relief Ass'n, 94 Wis. 253, 68 N. "W. 1009; or alienation or change of title, Cornell v. Tiverton & L. C. Mut. Fire Ins. Co. (R. I.), 35 Atl. 579; or the erection of an adjoining building contrary to the provisions of the policy, Schmurr v. State Ins. Co., 30 Or. 29, 46 Pac. 363; or a breach of warranty, for which the insurer could avoid the policy, Selby v. Mutual Life Ins. Co., 67 Fed. 490; Phinney v. Mutual Life Ins. Co;, CT' Fed. 493; or a breach of condition avoiding the policy in case of foreclosure of a mortgage without the insurer's consent. Bloom v. State Ins. Co., 94 Iowa, 359, 62 N. W. 810. '"' Thompson v. Knickerbocker Life Ins. Co.. 104 U. S. 252. 318 THE PREMIUM. § 135 acts on tlie belief, tliat tlie insurer will mal^e, continue, or restore the contract. ^*^^ Sending the policy to the insured on his promise to remit the premium, does not estop the insurer from denjdng its validity for non-payment of a premium, as against a mort- gagee, to whom the loss, if any, is payable, although the latter received the x>oliey from the assured without notice of non- pa}^nent of the premium. ^^® '^°Home Ins. Co. v. Karn (Ky.), 39 S. W. 501; Baldwin v. Ger- man Ins. Co., 105 Iowa, 379, 75 N. W. 326; French v. Hartford L. & A. Ins. Co.. 169 Mass. 510; Mosser v. Knights Templars' & M. Life Ind. Co.. 115 Mich. 672, 74 N. W. 230; Equitable Life Assur. Soc. V. McElroy, 49 U. S. App. 548, 83 Fed. 631; Conway v. Phoenix Mut. Life Ins. Co., 140 N. Y. 79. "° Union Bldg. Ass'n v. Rockford Ins. Co., 83 Iowa, 647. See, also, Clark V. Insurance Co. of North America. 89 Me. 26, 35 Atl. 1008; How V, Union Mut. Life Ins. Co.. 80 N. Y. 32; Brown v. Massa- chusetts M. L. Ins. Co., 59 N. H. 298. Who can waive: See ante, c. 8, "Agents." CHAPTER XI. WARRANTIES AND REPRESENTATIONS. § 136-138. Nature and Definitions. 139. What are Warranties. 140. Representations and Misrepresentations. 141. Concealment. 142. Fraud. 143. Mistakes of Agents. 144. Waiver of Misrepresentation, Breach of Warranty, Fraud or Concealment. 145. Burden of Proof of Breach of Warranty or Misrepre- sentation. Natuke and Defiistitioxs. § 136. In the law of insurance a warranty is always a part of the contract. § 137. A warranty is a stipulation, assertion, or statement of, or related to, some fact connected with the subject matter of the insurance, upon the literal truth of which the validity of the contract depends, without regard to the materiality of such fact, or the motive which prompted such stipulation, assertion, or statement. ^ 138. A representation is a stipulation, assertion, or state- ment relative to the risk assumed, and is collateral to the con- tract. It is sufficent if a representation be substantially true, or substantially complied with. Only when made of and con- cerning a fact material to the risk can the falsity of a represen- tation be asserted to defeat recovery. The Difference between Warranties and Representations. The difference between a warranty and a representation is that a warranty must be literally true, mthout regard to its materiality to the risk; while a representation must be true only so far as the representation is material to the risk. They both speak as of the time of the consummation of the contract. 320 WARRANTIES AND REPRESENTATIONS. §§ 136-13S A -warranty in insurance enters into and forms a part of the contract itself. It defines, by way of particular stipulation, description, condition, or otherwise, the precise limits of the obligation which the insurer undertakes to assume. No liability can arise except within these limits. In order to charge the insurer, therefore, every one of the terms which defines its obligation must be satisfied by the facts which are proven in a case. From the very nature of the contract the party seeking indemnity or payment must bring his claim wdthin the provisions of the instrument he is undertaking to enforce. A statement which is a warranty is a part and parcel of the contract itself, and in the nature of a condition precedent, and whether material to the risk or not must be strictly complied with, or literally fulfilled, before the insured can recover. It must be not merely a substantial conformity, but exact and literal; not only in material particulars, but in those that are immaterial as well. A representation is, on the other hand, in its nature no part of the contract of insurance. Its relation to the contract is usually described by the word "collateral." It is not of the essence of the contract, but relates to something prelimi-" nary, Avliicli was an inducement to the making of the con- tract. Though false it does not avoid the contract, unless it relates to a fact actually material, or clearly intended by the parties to be made material. It may be proved although existing only in parol and preceding the written instrument. Unlike other verbal negotiations, it is not necessarily merged in, nor waived by, the subsequent writing. This principle is in some respects peculiar to insurance, and rests upon other considerations than the rule which admits proof of verbal representations to impeach written instruments upon the ground of fraud. Representations to insurers before or at the time of making a contract are a presentation of the §§ 136-138 NATURE AND DEFINITIONS. 321 elements upon ^vllicl^ to estimate tlie risk proposed to be as- sumed. Thej are the basis of tbe contract, the foundation, upon the faith of -which it is entered into. If wrongly pre- sented in any respect material to the risk, or by the parties understood and intended to be material thereto, the policy "that may be issued thereon will not be binding. To enforce it would be to apply it to a risk w^hich was never presented to the insurer, and to make it liable for a risk it never intended to assume.-^ Warranties — Materiality and Good Faith. By an express warranty the insured stipulates for the absolute truth of his statements. Good faith and honest ^ Cable V. United States Life Ins. Co. (C. C. A.), Ill Fed. 26; Weil V. New York Life Ins. Co., 47 La. Ann. 1405, 17 So. 853; Mutual Ben. Life Ins. Co. v. Robison (C. C. A.), 58 Fed. 723; Kimball v. Aetna Ins. Co., 9 Allen (Mass.), 540; Pboenix Life Ins. Co. V. Raddin, 120 U. S. 183; Continental Life Ins. Co. v. Rogers, 119' 111. 474; O'Niel v. Buffalo Fire Ins. Co., 3 N. Y. 122; Williams V. New England Mut. Fire Ins. Co., 31 Me. 219; American Credit Ind. Co. V. Carrollton Furniture Mfg. Co. (C. C. A.), 95 Fed. Ill; Continental Life Ins. Co. v. Young, 113 Ind. 159; Western Assur. Co. V. Redding (C. C. A.), 68 Fed. 714. " 'An express warranty, * * * in tbe law of insurance, is a stipulation inserted in writing, on the face of the policy, on the literal truth or fulfillment of which the validity of the entire con- tract depends. * * *> a representation, as distinguished from a warrantj^ * * * 'is a verbal or written statement, made by the assured to the underwriter [insurer] before the subscription of the policy, as to the existence of some fact or state of facts tending to induce the insurer more readily to assume the risk, by diminish- ing the estimate he would otherwise have formed of it.' * * * a warranty is always part of the contract, a condition precedent, upon the fulfillment of which its validity depends. A representa- tion, on the other hand, is not part of the contract, but is collateral to it. The essential difference between a warranty and a repre- sentation is that in the former it must be literally fulfilled or there is no contract, the parties having stipulated that the subject of the warranty is material, and closed all inquiry concerning it; while in the latter, if the representation prove to be untrue, still, if it is not KERR, INS.— 21 322 -WARRANTIES AND REPRESENTATIONS. §§ 13G-138 purpose will not excuse error. The statements must be en- tirely true, or the warranty is not fulfilled. Nor is it material that some of the facts stipulated, or statements or answers made and w^arranted to he true, may be unimportant. The j)arties have agreed to their materiality by making them war- ranties, and have set inquiry as to that question at rest. Where an insured makes the truth of the statements contained in his apj^lication the basis of his contract of insurance, the question whether or not a false statement is actually material to the risk is unimportant, as is also the question whether or not the falsehood was intentional. To avoid liability it is sufficient for the insurer to show that the statement was actually untrue. Where one asserts that certain statements are true, and that if they are not true this fact shall avoid the policy, whether they are actually material is not import- ant, as parties have the right to make their truth the basis of the contract.^ In some states there are statutes regulating this matter, and providing that no representations or untrue statement in an application for a policy shall effect a forfeiture, unless it pertains to matters material to the risk. Such statutes material to the risk, the contract is not avoided." Aetna Ins. Co. v. Grube, 6 Minn. 82 (Gil. 32); Angell, Ins. §§ 140-147; Burritt v. Saratoga County Mut. Fire Ins. Co., 5 Hill (N. Y.), 188. =* Aetna Life Ins. Co. v. France, 91 U. S. 510; Cuthbertson v. North Carolina Home Ins. Co., 96 N. C. 481; Cushman v. United States Life Ins. Co., 63 N. Y. 404; Cobb v. Covenant Mut. Ben. Ass'n, 153 Mass. 176; McGowan v. Supreme Court, I. O. of F., 104 Wis. 173, 80 N. W. 603; Voss v. Eagle L. & H. Ins. Co., 6 Cush. (Mass.) 42. The purpose in requiring a warranty is to dispense with inquiry, and cast entirely upon the assured the obligation that the facts shall be as represented. State Mut. Fire Ins. Co. v. Arthur, 30 Pa. St. 315. Materiality of warranty a question of law: Patten v. Farmers' Mut. Fire Ins. Co., 38 N. H. 338; Hutchins v. Cleveland Mut. Ins. Co., 11 Ohio St. 477; Shoemaker v. Glens Falls Ins. Co., 60 Barb. (N. Y.) 84. NATUKE AND DEFINITIONS. 323 control the rights of parties to make contracts within their respective states, and cannot be overthrown hj a provision in a policy that all representations shall be deemed warranties, and shall avoid the policy if untrue, irrespective of their materiality.^ Technical warranties, as well as representa- tions, although refei-red to in the policy as part of the contract, are included in the provisions of a statute which provides that misrepresentations in the negotiations of a contract shall not be deemed material unless made with actual intent to de- ceive, or unless the matter misrepresented increases the risk.^ Sam^e — Kinds. Warranties may be express, as where they appear upon the face of the contract ; or implied from the very nature of the contract itself, as, in marine insurance, concerning the sea- worthiness of the ship insured, or in fire insurance, concern- ing the existence of the subject matter of the risk, or in life insurance, concerning the life of the party insured ; or affirm- ative, as where the assured expressly affirms the existence of certain facts at the time of the making the application; or promissory, as where the assured undertakes to perform some executory stipulation, as that certain things shall be done, or certain conditions will continue to exist. If a warranty be express or affirmative it must be liter- ally and absolutely true ; if promissory it must be strictly per- formed. There may be several warranties, and of each class, in one policy.^ 'Fidelity Mut. Life Ass'n v. Ficklin. 74 Md. 185; Penn Mut. Life Ins. Co. V. Mechanics' Sav. Bank & Trust Co., 37 U. S. App. 692, 43 U. S. App. 75, 72 Fed. 413, 73 Fed. 653. 'White V. Provident Sav. Life Assur. Soc, 163 Mass. 108, 27 L. R. A. 398. 'Stout V. City Fire Ins. Co., 12 Iowa, 371, 79 Am. Dec. 539; Jen- nings V, Chenango County Mut. Ins. Co., 2 Denio (N. Y.), 75; Copp 324 warranties and kepresentations. § 13^ What are Warranties. § 139. Whether an assertion or stipulation is a warranty or representation is a question of law. Warranties will not be created nor extended by construction. They must arise from the fair interpretation and clear intendment of the language used. The application is in itself merely collateral to the con- tract of insurance, and its statements are to be classified as rep- resentations unless by force of a reference in the policy they are converted into warranties, and the purpose is clearly mani- fested from the papers thus connected that the whole shall form one entire contract. The general rule in insurance is that a warranty must ap- pear on the face of the policy, and no statements or declara- tions or representations are regarded as warranties unless clearly stipulated to he such. If a doubt exists as to whethej- a statement is a warranty or a representation, it will be held a representation. In construing the contract for the purpose of determining whether the statements were intended by the parties thereto to be warranties or representations, the court will take into consideration the situation of the parties, the subject matter of the contract, and the language employed, and will construe a statement made to be a warranty only when it clearly appears that such i& the expressed intention of the contracting parties. Among the settled rules for the construction of policies of insurance, are these: 1. That all the conditions and obliga- tions of the contract will be construed liberally in favor of the assured, and strictly against the insurer. 2. That the clearest and most unequivocal language is necessary to create a warranty, and all statements of doubtful meaning will be construed as representations merely. 3. That even though the warranty and any matter or fact be declared by the policy, its effect may be modified by other portions of the policy, or of the application, including questions and answers, so that the § 139 WHAT AKE WARRANTIES. 325 answers to questions not material to tlic risk may be con- strued as warranting only their honesty and good f aith.^ But technical words or forms of expression are not es- sential to the creation of a warranty. Words of affirmation, or statements on the part of the insured, contained in his application, and relating to the risk, or affecting its character and extent, upon the strength of which it must be inferred the insurer contracted, will ordinarily be construed as a Avarranty.'^ V. German American Ins. Co., 51 Wis. 637; Duncan v. Sun Fire Ins. Co., 6 Wend. (N. Y.) 48S; post, notes 36--44. ''Wilkinson v. Connecticut Mut. Life Ins, Co.. 30 Iowa, 119; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381; Ken- tucky & L. Mut. Ins. Co. V. Southard, 8 B. Mon. (Ky.) 634; Daniels V. Hudson River Fire Ins. Co., 12 Cush. (Mass.) 416; First Nat. Bank of Kansas City v. Hartford Fire Ins. Co., 95 U. S. 673; Ala- bama Gold Life Ins. Co. v. Johnston, 80 Ala. 467; Dwight v. Ger- mania Life Ins. Co., 103 N. Y. 341; Penn Mut. Life Ins. Co. v. Wiler, 100 Ind. 92. The words "no fire in and about the building, except one under kettle, securely imbedded (in masonry) and used for heat," are not a warranty, and only affirm the condition of the premises at the time the insurance was effected. Schmidt v. Peoria M. & F. Ins. Co., 41 111. 295. And a statement that wooden casks in the building will be kept filled constantly, is not a warranty against the negli- gence of the servants of the assured to obey his orders in that re- spect. DanielR v. Hudson River Fire Ins. Co., 12 Cush. (Mass.) 416. See, also, Gerhauser v. North British & M. Ins. Co., 7 Nev. 174. A breach of warranty does not occur upon the failure of the insured to drop other insurance according to the stipulations of his appli- cation. Commercial Mut. Ace. Co. v. Bates. 176 111. 194, 52 N. E. 49. A warranty that smoking is not allowed on the premises is not broken by the assured or others afterwards smoking there, if smok- ing on the premises was forbidden at the time of the making of the warranty. Hosford v. Germania Fire Ins. Co., 127 U. S. 399. See, also, Hale v. Life Ind. & Inv. Co., 65 Minn. 548; Aetna Ins. Co. v. Norman, 12 Ind App. 652, 40 N. E. 1116, 24 Ins. L. J. 611; Moulor V. American Life Ins. Co., Ill U. S. 335; First Nat. Bank of Kansas City V. Hartford Fire Ins. Co., 95 ' U. S. 673; Fitch v. American Popular Life Ins. Co., 59 N. Y. 557; Hoose v. Prescott Ins. Co., 84 Mich. 309, 47 N. W. 587. 'Texas Banking & Ins. Co, v. Stone, 49 Tex. 4; post, notes 36-44. 326 WARRANTIES AND KEPRESENTATIONS. § 130 When the Application and Other Papers are Part of the Con- tract. As we have "before seen, a warranty must be contained in the final contract of the parties. It is considered to be on the face of the policy although it may be written in the mar- gin, or transversely, or in a subjoined paper referred to in the policy. The contract may by proper words adopt and make a part of it any other writing or paper. But in order that they may form a part of the contract the policy must not only refer to, but must in express terms, or by necessary im- plication, adopt such other writing or paper as a part of itself, and a mere reference thereto, without special or neces- sary inclusion, does not make such writing or paper referred to a part of the policy or contract itself, nor the statements therein warranties. Statements contained in an application are of themselves mere representations, and in order that they may have the force and effect of warranties they must not only be made a part of the contract, but it must appear upon an examination of the entire contract that they were deemed conditions upon the literal truth or fulfillment of which the validity of the insurance was intended to rest. To give the effect of a war- ranty to an application referred to in the policy, it should be referred to in such a manner as to show that it was intended by the parties that it should have such effect.^ But if the policy provides that the application shall constitute a part of the contract, statements which otherwise would be mere rep- resentations may be converted into warranties.^ The at- « Equitable Life Ins. Co. v. Hazlewood. 75 Tex. 338, 7 L. H. A. 217; Vivar v. Supreme Lodge, K. of P., 52 N. J. Law, 455; Farmers' In- surance & Loan Co. v. Snyder, 16 Wend. (N. Y.) 481; Rogers v. Phenix Ins. Co., 121 Ind. 570; Kratzenstein v. Western Assur. Co.. 116 N. Y. 54, 5 L. R. A. 799; ante, § 52. "Smith V. Empire Ins. Co., 25 Barb. (N. Y.) 497; Kelsey v. Uni- § 139 WnAT A.EE WAKKANTIES. 327 tacLing of an application to the back of a policy with muci- lage, is an indorsement of the application upon the policy, within the provisions of the policy that the insured is ac- cepted in consideration of the warranties contained in the application indorsed on the policy. ^° Sometimes the application is by statute required to be an- nexed to or contained in the policy. -^-^ The mere statement in the application that it is to become a part of the policy, is not alone always held sufficient to make it a part of the contract.-'^ versal Life Ins. Co., 35 Conn. 225; Cerys v. State Ins. Co., 71 Iowa, 338, 72 N. W. 849. 27 Ins. Law J. 258. i " Reynolds v. Atlas Ace. Ins. Co., 69 Minn. 93, 71 N. W. 831. See, also, as to when an application is a part of the contract, Bartlett V. Fireman's Fund Ins. Co., 77 Iowa, 155, 41 N. W.'601; Cronin v. Fire Ass'n of Philadelphia, 123 Mich. 277, 82 N. W. 45; Boyle v. Northwestern Mut. Relief Ass'n, 95 Wis. 312, 70 N. W. 351; Aloe V. Mutual Reserve Life Ass'n, 147 Mo. 561, 49 S. W. 553; Brady V. United Life Ins. Ass'n (C. C. A.), 60 Fed. 727; American Ins. Co. V. Gilbert, 27 Mich. 429; Cox v. Aetna Ins. Co., 29 Ind. 586; King Brick Mfg. Co. v. Phcenix Ins. Co., 164 Mass. 291. 41 N. E. 277. Survey: A general reference to the description of the insured property on file in the office of the insurers does not make it a part of the contract. Stebhins v. Globe Ins. Co., 2 Hall (N. Y.), 675. It must appear that it was the intention and agreement of the parties to have other papers considered a part of the contract, be- fore they will be held to be such. Le Roy v. Park Fire Ins. Co., 39 N. Y. 56; Kentucky & L. Mut. Ins. Co. v. Southard. 8 B. Mon. (Ky.) 634; Jennings v. Chenango County Mut. Ins. Co., 2 Denio (N. Y.) 75, And a survey or diagram will only bind the applicant when it appears that it was prepared by him or under his direction, or that he assented to it prior to the consummation of the contract. Vilas V. New York Cent. Ins. Co., 72 N. Y. 590; Le Roy v. Park Fire Ins. Co., supra; Denny v. Conway S. & M. Fire Ins. Co., 13 Gray (Mass.), 492; Lycoming Fire Ins. Co. v. Jackson, 83 111. 302. "Mullaney v. National F. & M. Ins. Co., 118 Mass. 393; Johnson V. Scottish U. & N. Ins. Co., 93 Wis. 223, 67 N. W. 416; Goodwin v. Provident Sav. Life Assur. Ass'n, 97 Iowa. 226, 66 N. W. 157, 32 L. R. A. 473. " Owens V. Holland Purchase Ins. Co., 56 N. Y. 565. Application not part of policy: A stipulation in an application that the statements made therein shall be the basis of a contract of 328 WARRANTIES AND KEPKE3ENTATI0NS. § 139 Construction of Application and "Warranties. A statement hj an aj)plicant that all the statements and answers made by him in his application are warranted by him to be tmie, is not a warranty that the answers given are full and complete, but only that the answers as given are true. The applicant is bound to answer correctly and truthfully only in so far as he undertakes to answer, and his warranty canuot be extended beyond the answers actually given. If a question is not answered there is no warranty, and if only partially answered the warranty cannot be extended beyond the answer, for it can only be predicated on the affirmation of something not true.*^ A question to which no answer is given raises no inference for or against the person signing the application. The situation is the same as if the question had not been asked. ^* The distinction between an answer apparently complete, but in fact incomplete, and therefore untrue, and an answer manifestly incomplete, and as such accepted by the insurer, may be illustrated by two cases of fire insurance, which are governed by the same rules in this respect as cases of life insurance. If one applying for insurance upon a building against fire, is asked whether the property is encumbered, and for what amount, and in his answer discloses only one mortgage when in fact there are two, the policy issued thereon insurance, and that the insured warrants the same to be true, doea not necessarily make the warranties a part of the policy. Boehni v. Commercial Alliance Life Ins. Co., 9 Misc. Rep. 529, 30 N. Y. Supp. 660; Northwestern Mut. Life Ins. Co. v. Woods, 54 Kan. 663; Missouri, K. & T. Trust Co. v. German Nat. Bank of Denver (C. C. A.), 77 Fed. 117; Conover v. Massachusetts Mut. 'Life Ins. Co., 3 Dill. 217, Fed. Cas. No. 3,121; Presbyterian Mut. Assur. Fund v. Allen, 106 Ind. 593. "Dilleber v. Home Life Ins. Co., 69 N. Y. 256; Hale v. Life Ind. & Inv. Co., 65 Minn. 557. See ante, note 6. " Briesenmeister v. Supreme Lodge, K. of P., 81 Mich. 525, 45 N. W. 977. § 139 WHAT AEE WARRANTIES. 329 is avoiclc(], if the answer is warranted. But if to the same (luestion he merely answers that the property is encumbered, without stating the amount of the encumbrances, the issuing of the policy without further inquiry is a waiver of the omis- sion to state the amount. ^^ Statements contained in an ap- plication made by the agent of the insurer from facts within ]]is own knowledge, are not binding upon the insured. ^° In Ecdman v. Hartford Fire Ins. Co.,^^ the application re- cited "that the applicant covenants and agrees with the com- pany Hhat the foregoing is a just, full and true exposition of all the facts and circumstances in regard to the condition, ■situation, value and risk of the property to be insured, so far as the same are known to the applicant and are material to the risk, and the same is hereby made a condition of the insurance, and a warranty on the part of the assured.' The l>olicy provides that the application 'shall be considered a part of this policy, and a warranty by the assured.' " Held, that this last stipulation means such a warranty as is stipu- lated in the application ; that the clause "so far as are known to the applicant" is not an additional stipulation that all the facts have been stated known to be material to the risk, though not called for by the question, but it qualifies the pre- ceding clause, changing it from an absolute covenant that the answers are true, to one that they are true so far ns known. "Nichols V. Fayette Mut. Fire Ins. Co., 1 Allen (Mass.), 63; Towne v. Fitchburg Mut. Fire Ins. Co., 7 Allen (Mass.), 51; Con- necticut Mut. Life Ills. Co. V. Luchs, 108 U. S. 498; Lebanon Mut.' Ins. Co. V. Kepler, 106 Pa. St. 28; Dolliver v. St. Joseph F & M Ins. Co.. 128 Mass. 315. '" Thomas v. Hartford Fire Ins. Co., 20 Mo. App. 150. "47 Wis. 89. See, further, as to incomplete or imperfect answers, Carson v. Jersey City Ins. Co., 43 N. J. Law, 300. 44 N. J. Law, 210; Merchants' & Mechanics' Ins. Co. v. Schroeder, 18 Bradw. '(111.) 216; Phoenix Life Ins. Co. v. Raddin, 120 U. S. 183; .Johnston v. 330 WARRANTIES AND REPRESENTATIONS. § 139 ILLUSTRATIONS OF WARRANTIES. I. Fire Insurance. Title. A warranty as to the condition and extent of tlie title of the insured to the subject matter of the risk must he strictly com- l>lied with. A warranty that the house containing the insured property belongs to the applicant in fee, and free from all liens, is broken if the house stands on leased ground. ^^ And a stipulation in the policy whereby the insured covenants that he is the sole owner of the-property insured, is a warranty;^'* and so where the statement is made that the insurance is on '^her two-story metal roof building," referring to the proj)erty covered, and the interest of the insured in it.^'^ But an agreement that the policy shall be void if the insured is not the sole and unconditional owner does not void the policy, if he has described his actual interest.^^ A covenant that title is held under warrarxty deed does not warrant a title in fee.^^ It has been held that one does in effect not warrant himself to be the sole and unconditional owner of property, by accepting a policy conditioned to be void if he is not such owner ;-^ but this would seem to be in direct violation of a w^ell established rule of law, wliich will not permit an insured to assert a right under those portions of the policy which are advantageous to him, and repudiate the portions which are disadvantageous. A warranty of sole and undisputed ownership is not broken Northwestern Live Stock Ins. Co., 94 Wis. 117, 68 N. W. 868; Com- mercial Mut. Ace. Co. V. Bates, 176 111. 194. "Cuthbertson v. North Carolina Home Ins. Co., 96 N. C. 480; East Texas Fire Ins. Co. v. Brown, 82 Tex. 631. '"Western Assiir. Co. v, Altheimer, 58 Ark. 565. -" Breedlove v. Norwich Union Fire Ins. Co., 124 Cal. 164. " Hoose V. Prescott Ins. Co., 84 Mich. 309, 11 L. R. A. 340. -'Rockford Ins. Co. v. Nelson, 65 111. 415; Merrill v. Agricultural Ins. Co., 73 N. Y. 452. =' Manchester Fire Assur. Co. v, Ahrams (C. C. A.), 89 Fed. 932. § 139 ILLUSTRATIONS OF WARRANTIES. 331 by tko i:)endency of an action bj a judgment creditor of a former owner to subject the property to the payment of his judgment. ^^ A warranty that the L^nd on which an insured building is situated is held in fee simple, is not broken Ix^cause of the existence of an agreement between the insured and the owaier of the adjoining premises, giving the latter the right to use one of the walls of the insured building as a party wall if this condition existed when the insurance was effected, and was known to the insurer. ^^ The existence of a mortgage upon the property insured is not a breach of a warranty that the mortgagor is the unconditional and sole o"wner.^^ A war- ranty that the applicant is the sole and undisputed owner of the property insured, and that the title thereto was in his name, is not broken by the fact that the insured held a con- tract with the owners of the legal title, for a conveyance of the property, and was in possession of the property under that contract, and had fully performed all of the conditions of the contract, up to the time of making the application;^''' nor by the fact that the insured had leased the property insured under a conditional contract of sale, reserving title in himself until full payment should be made.^^ A warranty of owner- ship in the insured relates to the time of the issuing of the policy, and is not continuing. ^^ A warranty of unconditional and sole O'wnership is not fulfilled if the insurer has only a bond for the title, and the vendor retains a lien for the pur- " Lang V. Hawkeye Ins. Co., 74 Iowa, 673, 39 N. W. 86. "Commercial Fire Ins. Co. v. Allen, 80 Ala. 571; Des Moines Ice Co. V. Niagara Fire Ins. Co., 99 Iowa, 193, 68 N. W. 600. ^''Morotock Ins. Co. v. Rodefer, 92 Va. 747; Vankirk v. Citizens' Ins. Co.. 79 Wis. 627, 48 N. W. 798. "Baker v. State Ins. Co., 31 Or. 41; Imperial Fire Ins. Co. v. Dunham, 117 Pa. St. 460. ='Burson v. Fire Ass'n of Philadelphia, 136 Pa. St. 267; Walter v. Sun Fire Office, 165 Pa. St. 381, 30 Atl. 945. '" Collins V. London Assur. Corp., 165 Pa. St. 298, 30 Atl. 924. 332 WARKANTIES AND EEPKESENTATI0N8. § 139 chase money f^ nor if the insured holds title dependent upon any conditions.^^ Iron-Safe Clause. A provision of a contract requiring the insured to keep a set of books, and an inventory of stock securely in an iron safe, is valid, and non-compliance with it will defeat the policy, unless, with knowledge of the forfeiture, the company waives it. An agreement and warranty of the insured to this effect, if pasted upon the policy, is a part of the contract, and must be fulfilled.^ ^ Such provisions are reasonably construed^ and only require the insured to keep in his books an intelligent record of his business transactions.^^ The policy is not voided by an accidental omission to place the daily cash sales book in the safe, where the book is not material in ascer- taining a satisfactory record of the business;"^ nor by an ^ Liberty Ins. Co. v. Bouklen. 96 Ala. 508. ^^ Dwelling House Ins. Co. v. Dowdall, 49 111. App. 33. See, also, for further illustrations of breach of warranty of title, Hamilton v. Dwelling House Ins. Co.. 98 Mich. 535; Collins v. St. Paul F. & M. Ins. Co., 44 Minn. 440; Mt. Leonard Milling Co. v. Liverpool & L. & O. Ins. Co., 25 Mo. App. 259; Holloway v. Dwelling House Ins. Co., 448 Mo. App. 1; Bennett v. Agiicultural Ins. Co., 50 Conn. 420; Mott V. Citizens' Ins. Co., 69 Hun (N. Y.), 501; Syndicate Ins. Co. v. Bohn (C. C. A.), 65 Fed. 165; McWilliams v. Cascade F. & M. Ins. Co., 7 Wash. 48, 34 Pac. 140; Ereedlove v. Norwich Union Fire Ins. Co., 124 Cal. 164; Kibbe v. Hamilton Mut. Ins. Co., 11 Gray (Mass.), 163; McCulloch v. Norwood. 58 N. Y. 562. ^- Kelley-Goodfellow Shoe Co. v. Liberty Ins. Co., 8 Tex. Civ. App. 227, 28 S. W. 1027; City Drug Store v. Scottish U. & N. Ins. Co. (Tex. Civ. App.), 44 S. W. 21. Compare Mechanics' & Traders' Ins. Co. v. Floyd (Ky.), 49 S. W. 543. ^'Spratt v. New Orleans Ins. Ass'n, 53 Ark. 215, 13 S. W. 799; Pelican Ins. Co. v. Wilkerson, 53 Ark. 353, 13 S. W. 1103; Ameri- can Cent. Ins. Co. v. Ware, 65 Ark. 336, 46 S. W. 129, 27 Ins. Law J. 785; Roberts, Willis & Taylor Co. v. Sun Mut. Ins. Co., 19 Tex. Civ. App. 338, 48 S. W. 559. "Western Assur. Co. v. Redding (C. C. A.), 68 Fed. 708. § 139 ILLCSTKATIONS OF WAKKANTIES. 33S insured removing the books from the safe when the building- is throated by fire, though in so doing he lost a portion of them.^^ Keeping Watchman. A wan'anty that a watchman will be employed in and about the premises day and night, is broken if there be but one watchman, who sleeps at night three hundred feet away from the insured premises f^ or if he only visits the premises.two or three times a night.^'^ An agreement to maintain a good watch, means a suitable and proper watch under all the cir- cumstances.^^ A warranty that a watchman shall be em- ployed about the premises day and night while the property remains idle is complied with, as to the day time, when the fireman of another mill, 450 feet distant, belonging to the insured, and the man under him, keep watch over it.^^ A temporary absence of a watchman on matters connected with his employment, is not a breach of the warranty, unless the loss occurs during his absence ;^*^ and his temporary absence does not relieve the company from liability if the fire was not due to his absence. ^^ *' Liverpool & L. & G. Ins. Co. v. Kearney (Indian T.), 46 S. W. 414, 27 Ins. Law J. 873. See, also, on construction of "iron safe" clause, Scottish U. & N. Ins. Co. v. Stubbs, 98 Ga. 754; Goldman v. North British Mercantile Ins. Co., 48 La. Ann. 223; Virginia F. & M. Ins. Co. V. Morgan, 90 Va. 290, 18 S. E. 191. ''Rankin v. Amazon Ins. Co., 89 Cal. 203. "McKenzie v. Scottish U. & N. Ins. Co., 112 Cal. 548; First Nat. Bank V. North America Ins. Co., 50 N. Y. 45. '' Parker v. Bridgeport Ins. Co., 10 Gray (Mass.), 302. "Spies V. Greenwich Ins. Co., 97 Mich. 310, 56 N. W. 560; McGan- non V. Michigan Millers' Mut. Fire Ins. Co., 87 N. W. 61. ^"Au Sable Lumber Co. v. Detroit Manufacturers' Fire Ins. Co., 89 Mich. 407. 50 N. W. 870. " Hart V. Niagara Fire Ins. Co., 9 Wash. 620, 27 L. R. A. 86. See, also, Hanover Fire Ins. Co. v. Gustin, 40 Neb. 828, 59 N. W. 375; Phoenix Assur. Co. v. Coffman, 10 Tex. Civ. App. 631, 32 S. W. 810; S3i WARKANTIES AND KEPliESENTATIONS. § 139 Clear Space. A warranty by tlie assured that a contimious clear space for a certain distance shall be maintained between the prop- erty insured, and any other property, creates a warranty in futwo, and it is of no consequence that the defendant's agent knew that it was not fulfilled, when he took the application.^- Such a covenant is of the very essence of the contract, and its breach, unless waived, relieves the insurer. ^^ A warranty to keep in the building insured, and within ten feet of a gin- stand, a barrel full of water, and two buckets, requires the in- sured to see that the water and buckets are at all times reason- ably accessible.^* Use and Occupation. Statements concerning the condition or description, or use of property insured, are frequently held to be representa- tions merely, and will be held warranties only when such an Bliimer v. Phcenix Ins. Co., 48 Wis. 535; Sheldon v. Hartford Fire Ins. Co., 22 Conn. 235, 58 Am. Dec. 420; American Fire Ins. Co. v. Brigton Cotton Mfg. Co., 125 111. 131, 17 N. E. 771; Sierra M., S. & M. Co. V. Hartford Fire Ins. Co., 76 Cal. 235; Virginia F. & M. Ins. Co. V. Buck, 88 Va. 517. *^ Michigan Shingle Co. v. London & L. Fire Ins. Co., 91 Mich. 441. 51 N. W. 1111. But in Michigan Shingle Co. v. State Inv. & Ins. Co., 94 Mich. 389, 53 N. W. 945, it was held that the insurer was estopped from avoiding the policy for deficiency of clear space, where its agent, when he wrote the policy, knew the condition of the insured property, and a clear space for the stipulated distance did not exist, and that the insured could not control a clear space for that distance, and the agent decided that the existing clear space was satisfactory, and fixed the rate of premium accordingly, and, after knowledge that the clear space was not maintained, took no steps to cancel the policy, — two judges dissenting. ^ Jones V. Insurance Co. of North America, 90 Tenn. 604. "Mechanics' Ins. Co. v. Thompson, 57 Ark. 279, 21 S. W. 468; Southern Ins. Co. v. White, 58 Ark. 277, 24 S. W. 425. Compare Masters v. Madison County Mut. Ins. Co., 11 Barb. (N. Y.) 624, Brrleigh v, Gebhard Fire Ins. Co., 90 N. Y. 220. § 139 ILLrSTKATIONS OF WAKKANTIES. 335 effect is clearly stipulated for. But if the descriptive state- ment be a substantive part of tke contract, or if it appears that in reliance upon the statement as to the future use of the property the insurance was effected. at special rates, the statements will sometimes be held warranties, though not ex- pressly made so.''^ Thus a statement that a building is oc- cupied as a "dwelling and boarding house" has been held to be a warranty as to the use to which it was then put.'*^ A warranty that premises are used as a boarding house is not broken if a part of them be subsequently used as a bar-room and billiard room, if such change is not forbidden,- and if the risk be not increased. ^^ A statement in a policy describ- ing the property insured as a building "while occupied by assured as a store and dwelling house," and providing that the policy shall be void if the property shall become vacant or unoccupied, is not a warranty as to the future use or oc- cupancy of the building. "^^ ^'Wood V. Hartford Fire Ins. Co., 13 Conn. 533, 35 Am. Dec. 92; Continental Ins. Co. v. Kasey, 25 Gratt. (Va.) 268, 18 Am. Rep. 681; Michigan Shingle Co. v. London & L. Fire Ins. Co., 91 Mich. 441, 51 N. W. 1111; Fowler v. Aetna Fire Ins. Co., 6 Cow. (N. Y.) 673; United States F. & M. Ins. Co. v. Kimberly, 34 Md. 224; Sarsfield V. Metropolitan Ins. Co., 61 Barb. (N. Y.) 479, 42 How. Prac. 97. ■^•Franklin Fire Ins. Co. v. Martin, 40 N. J. Law, 568; Hall v. People's Mut. Fire Co., 6 Gray (Mass.), 185. *' Martin v. State Ins. Co., 44 N. J. Law, 485. See, also, United States F. & M. Ins. Co. v. Kimberly, 34 Md. 224. 6 Am. Rep. 325; Wood V. Hartford J ire Ins. Co., 13 Conn. 533, 35 Am. Dec. 92; Joyce V. Maine Ins. Co., 45 Me. 168; Sillem v. Thornton, 3 El. & Bl. 868; Billings V. Tolland County Mut. Fire Ins. Co., 20 Conn. 139; Hall V. People's Mut. Fire Ins. Co., 6 Gray (Mass.), 187; Wall v. East River Mut. Ins. Co., 7 N. Y. 370. *' Burlington Ins. Co. v. Brockway, 138 111. 644, 28 N. E. 799. "Incumbrances, breach of warranty:" State Ins. Co. v. Jordan, 24 Neb. 358, 38 N. W. 839; Smith v. Agricultural Ins. Co., 118 N. Y. 522; Lang v. Hawkeye Ins. Co., 74 Iowa, 673, 39 N. W. 86; Leonard v. American Ins. Co., 97 Ind. 299; Bowman v. Franklin Ins. Co.^ 40 Md. 620; Bidwell v. Northwestern Ins. Co.. 19 N. Y. 179. 336 WAKKANTIES AND KEPEESEXTATIONS. § 139" 2. Life Insurance. Generally. Policies of life insurance are nsnallv issued upon written applications, which contain numerous questions to be an- swered by the applicants. If the policy provides that the application is a part of the contract and that the answers given are warranties the breach of any one of them vitiates the contract; as, a mis-statement of age;^^ or name;^^ or occu- pation.^^ A provision in a life insurance policy that the in- sured shall not be connected with the liquor business relates to the occupation of the insured subsequent to the consumma- tion of the contract, and an answer in an application (war- ranted to be tiiie) that the applicant was a grocer, without stating anything more in relation to his occupation, while it appeared that he then sold liquor at retail in a partition por- Otlier -warranties; Bilbrough v. Metropolis Ins. Co., 5 Duer (N. Y.), 587 (as to time factory ran) ; Glens Falls Portland Cement Co. V. Travellers' Ins. Co., 11 App. Div. 411, 42 N. Y. Supp. 285 (warranty that insured would maintain statutory safeguards on premises) ; Northrup v. Piza, 43 App. Div. 284, 60 N. Y. Supp. 36.5 (warranty of completion of party wall); Murdock v. Chenango County Mut. Ins. Co., 2 N. Y. 210 (warranty that chimney would be built); Grubbs v. Virginia F. & M.' Ins. Co., 110 N. C. 108 (a statement in an application for insurance that "the clerk sleeps in the store" is not a continuing warranty that the clerk will continue to sleep there) ; City of Worcester v. Worcester Mut. Fire Ins. Co., 9 Gray (Mass.), 27 (warranty concerning removal of ashes); Rose- bud M. & M. Co. V. Western Assur. Co. (U. S. Cir. Ct.), 25 Ins. Law J. 693 (breach of warranty concerning communication of fire, and situation of machinery); Waterbury v. Dakota F. & M. Ins. Co., 6 Dak. 468, 43 N. W. 697 (warranty concerning building of brick chimney). " Hartford Fire Ins. Co. v. Moore, 13 Tex. Civ. App. 644, 36 S. W. 146; Butler v. Supreme Council, C. B. L., 43 App. Div. 531, 60 N. Y. Supp. 70; McCarthy v. Catholic K. & L. of A., 102 Tenn. 345, 52 S. W. 142; United Brethren Mut. Aid Soc. v. White, 100 Pa. St. 12; Swett v. Citizens' Mut. Relief Soc, 78 Me. 543. 7 Atl. 394. "'' Quandt v. Grand Lodge, I. G. O., 13 Nat. Corp. Rep. 614. " Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281. § 139 ILLUSTRATIONS OF WARRANTIES. 337 tion of his store, will not, in the absence of proof of intent to deceive, avoid the policy.^ ^ The insurer is entitled to an honest and full answer to the questions asked concerning the occupation of the applicant. The information called for ia the occupation at the time the application is made, and the usual rather than the temporary occupation. If the answer given and warranted is not true, the policy is avoided.^^ Suicide. A warranty that the insured will not die by his own act, "whether sane or insane," is an affirmative and a continuing warranty and is not invalid as imposing an impossible condi- tion by attempting to control the act of the insured while in- sane.^* Temperate. The w'ord "temperate" as used in an application for insur- ance, means moderation in the use of intoxicating liquors, and does not imply total abstinence from their use. A warranty that the insured is temperate means that he refrains from ex- cessive indulgence in the use of intoxicants, and not that he never uses them. A warranty that the applicant has never been intemperate is not broken by occasional excessive in- " McGurk V. Metropolitan Life Ins. Co., 56 Conn. 528, 1 L. R. A. 563. "United Brethren Mut. Aid Soc. v. White, 100 Pa. St. 12; Dwight V. Germania Life Ins. Co., 103 N. Y. 341; Northwestern Mut. Life Ins. Co. V. Amerman, 119 III. 329, 10 N; E. 225; Hart v. National Masonic Ace. Ass'n, 105 Iowa, 717, 75 N. W. 508; Triple Link Mut. Ind. Ass'n v. Williams, 121 Ala. 138, 26 So. 19; Stone's Adm'rs v. United States Casualty Co., 34 N. J. Law, 371; Ford v. United States Mut. Ace. Relief Co., 148 Mass. 153, 19 N. E. 169; Kenyon v. Knights Templar & M. Mut. Aid Ass'n, 122 N. Y. 247, 25 N. E. 299. ■•*Kelley v. Mutual Life Ins. Co., 75 Fed. 638. Walking on roadbed: Traders' & Travellers' Ace. Co. v. Wagley (C. C. A.), ?4 Fed. 457. KERR, INS.— 23 338 WAEKANTIES AND KEPKESENTATIONS. § 139 diligences, but a continuous and daily use of intoxicating drinks is not necessary to constitute intemperate habits.^' Other Insurance. A question of great importance frequently arises in con- sidering the legal effect of a question as to whether the appli- cant has ever had his life insured in any insurance company, of if an ai)plication by him for insurance in a company has ever been rejected, or if he has applied for other insurance. The query is whether the term "insurance company" includes mutual and fraternal organizations, and whether certificates issued by them constitute insurance within the ordinary and legal acceptance of that term. The weight of authority on questions of construction of certificates as to beneficiaries, forfeitures and the like, treats fraternal and mutual bene- fit societies as life insurance companies, in the absence of statutes defijiing them not to be insurance companies, al- though the fact that the by-laws and constitution of the order usually become a part of the contract, may make the relation of the member to the order somewhat different from that of the ordinary relation of insurer to insured. In Penn Mut. Life Ins. Co. v. Mechanics' Savings Bank & Trust Co.,^*' the rule is laid down that certificates in mutual aid societies do not constitute insurance within the meaning of a question in an application blank of an insurance company as to existing "Union Mut. Life Ins. Co. v. Reif, 36 Ohio St. 596, 38 Am. Rep. 613; Meacham v. New York State Mut. Ben. Ass'n, 120 N. Y. 237; Chambers v. Northwestern Mut. Life Ins. Co., 64 Minn. 495, 58 Am. St. Rep. 549; Knecht v. Mutual Life Ins. Co., 90 Pa. St. 118; Mengel V. Northwestern Mut. Life Ins. Co., 176 Pa. St. 280, 35 Atl. 197. =«37 U. S. App. 692, 43 U. S. App. 75, 72 Fed. 413, 38 L. R. A. 33; Northwestern Masonic Aid Ass'n v. Jones, 154 Pa. St. 99; Theobald V. Supreme Lodge, K. of P., 59 Mo. App. 87; Sparks v. Knight Templars' & M. Life Ind. Co., 61 Mo. App. 115; Continental Life Ins. Co. V. Chamberlain, 132 U. S. 304. § 139 ILLUSTKATIONS OF WARRANTIES. 339 insurance in it or anotlier company. Judge Taft said: "Hav- ing in view the well-established rule that insurance contracts are to be construed against those who frame them, * * * and that any doubt or ambiguity in them is to be resolved in favor of the insured, we conclude that a certificate in a mutual benefit and social society, was not within the descrip- tion ^policy of life insurance in any other company.' We are fortified in the conclusion by the fact that this contract is a Pennsylvania contract, and the courts of that state have uni- fonnly held that mutual aid associations and insurance com- panies are so clearly to be distinguished that statutes applying to insurance companies and their policies do not have applica- tion to mutual aid associations and the certificates of life in- surance which they issue to their members." But in other states it has been held that such associations are within the description of insurance companies, and that the contracts they make are properly termed policies, as that term is ordi- narily used.^'^ Attending Physician. ». An applicant Avas attended by a physician within the mean- ing of the question in an application for life insurance, if ho went to the office of a physician, told the physician that he "State V. Nichols, 78 Iowa, 747; Co-operative Fire Ins. Order v. Lewis, 12 Lea (Tenn.), 136; Presbyterian Mut. Assur. Fund v. Allen, 106 Ind. 594; Com. v. Wetherbee, 105 Mass. 159; Sherman ■V. Com., 82 Ky. 102, See, also, Bruce v. Connecticut Mut. Life Ins. Co., 74 Minn. 314; Aloe v. Mutual Reserve Life Ass'n, 147 Mo. 561, 49 S. W. 553; Kelley v. Life Insurance Clearing Co., 113 Ala. 453. 21 So. 361; Silverman v. Empire Life Ins. Co., 24 Misc. Rep. 399, 53 N. Y. Supp. 407; Commercial Mut. Ace. Co. v. Bates, 74 111. App. 335; Finch v. Modern Woodmen of America, 113 Mich. 646, 71 N. W. 1104; United States Life Ins. Co. v. Smith (C. C. A.), 92 Fed. 503; Fidelity Mut. Life Ass'n v. Miller (C. C. A.), 92 Fed. 63; Tarpey v. Security Trust Co., 80 111. App. 378. 340 WARKANTIES AND REPRESENTATIONS. § 13^ liad a congli and spit blood, submitted to a physical examina- tion, obtained a prescription and paid a fee therefor, and after- wards consulted the physician, and again paid a fee.^^ A statement by an applicant that he had never called a doctor in liis life, made in answer to a question requiring him to state what physician last attended him, and for what com- plaint, is untrue if the applicant has previously called a physician, though only for a temporary ailment.^^ But a question as to the name of the physician who last attended the applicant, and the date of his last visit, has been held to refer to a physician who was in attendance npon the appli- cant for some disease or ailment of importance, and not for a trivial indisposition.®^ Sickness, Bodily Injury and Sound Health, etc. The words "hurt" and "wound" in a question contained in an application for life insurance, mean and refer to any in- jury of the body causing an impairment of health or strength, or rendering the applicant more liable to contract disease, or less liable to resist its effects.®^ "Sound health" means a state of health free from disease that affects the general soundness of the system seriously, and not a mere temporary indisposi- tion. The phrase "serious illness" is used to define trouble •^ White V. Provident Sav. Life Assiir. Soc, 163 Mass. 108, 27 L. R. A. 398; Wall v. Royal Soc. of Goodf allows, 179 Pa. St. 355, 36 Atl. 748. 09 Providence Life Assur. Soc. v. Reutlinger, 58 Ark. 528; Brady v. United Life Ins. Ass'n (C. C. A.), 60 Fed. 727. See, also, Cobb v. Covenant Mut. Ben. Ass'n, 153 Mass. 176, 10 L. R. A. 666; Roche V. Supreme Lodge, K. of H., 47 N. Y. Supp. 774; Mutual Life Ins. Co. V. Arhelger (Ariz.), 36 Pac. 895; Aloe v. Mutual Reserve Life Ass'n, 147 Mo. 561, 49 S. W. 553. "" Brown v. Metropolitan Life Ins. Co., 65 Mich. 306. Compare Cushman v. United States Life Ins. Co., 70 N. Y. 72; Higgins v. Phoenix Mut. Life Ins. Co., 74 N. Y. 6; Dentz v. O'Neill, 25 Hun (N. Y.), 442; Russell v. Canada Life Assur. Co., 8 Ont. App. 716. " Bancroft v. Home Ben. Ass'n, 120 N. Y. 14, 8 L. R. A. 68. § 140 EEPKESENTATION AND MISflEPKESENTATION. 341 of great importance, and one likelj to have an influence upon ilie duration of life, or to impair subsequent health. ^^ A warranty bj the insured that he is in sound health is broken if he is not in sound health at the time of making the warranty, whether he is aware of that fact or not.^^ And a warranty against local injury or infirmity is broken if the insured has a stricture.^* A warranty against bodily or mental in- firmity is not broken by the fact that the applicant was near- sighted, and had a defective vision.*"^ Representation and Misrepresentation. § 140. A false representation does not vitiate a policy of in- surance, unless it relates to a fact actually material to the risk, or clearly intended to be made material by the agreement of the parties. A representation need not, like a warranty, be strictly and literally complied with, but only substantially and in those particulars which are material to be disclosed to the in- " Brown v. Metropolitan Life Ins. Co., 65 Mich. 306, 32 N. W. 610; Billings v. Metropolitan Life Ins. Co., 70 Vt. 477, 41 Atl. 516; Meyers v. Woodmen of the World, 193 Pa. St. 470, 44 Atl. 563. "'Foot V. Aetna Life Ins. Co., 61 N. Y. 571; Breeze, v. Metro- politan Life Ins. Co., 24 App. Div. 377, 48 N. Y. Supp. 753; Supreme Lodge, K. of H., V. Dickison, 102 Tenn. 255, 52 S. W. 862; Powers v. Northeastern Mut. Life Ass'n, 50 Vt. 630. "*Hanna v. Mutual Life Ass'n, 11 App. Div. 245, 42 N. Y. Supp. 228. »'Cotten V. Fidelity & Casualty Co., 41 Fed. 506. See, also, tem- porary ailment, Pudritzky v. Supreme Lodge, K. of H., 76 Mich. 428, 43 N. W. ,373; headaches. Mutual Life Ins. Co. v. Simpson, 88 Tex. 333, 28 L. R. A. 765; bodily or mental infirmity, fainting spells. Manufacturers' Ace. Ind. Co. v. Dorgan (C. C. A.), 58 Fed. 945; family history, Jerrett v. John Hancock Mut. Life Ins. Co., 18 R. I. 754, 30 Atl. 793; Bloomington Mut. Life Ben. Ass'n v. Cummins, 53 111. App. 530; disease, World Mut. Life Ins. Co. v. Schultz, 73 111. 586; temporary ailment not disease, Northwestern Mut. Life Ins. Co. V. Heimann, 93 Ind. 24; Metropolitan Life Ins. Co. v. McTague, 49 N. J. Law, 587, 9 Atl. 766; Morrison v. Wisconsin Odd Fellows' 342 WARRANTIES AND REPRESENTATIONS. § 140 surors. "Where tlie question of the materiality of such par- ticulars depends upon circumstances, and not upon the con- struction of any writing, it is a question of fact to be deter- mined by a jury ; but where the representations are in writing, their interpretation, like that of other written instruments, belongs to the court The parties may, by the frame and contents of the contract, either by putting representations as to the quality or histoiy of the subject insured into the form of answers to specific questions, or by the mode of referring to them in the policy, settle for themselves that they shall be deemed material ; and w^hen they have done so the insured will not afterwards be permitted to show that a fact which the parties have declared material to be truly stated to the in- surers, was in fact immaterial, and thereby escape from the consequences of making a false answer to such a question. The untruth of a representation made by an applicant, and upon which a policy is issued, will not avoid the policy nor give an insurer the right to avoid it, unless the representation be material to the risk, or made so by the parties, or knowingly and fraudulently made.®^ Mut. Life. Ins. Co., 59 Wis. 162; physician, Dilleber v. Home Life Ins. Co., 69 N. Y. 256; Flynn v. Equitable Life Ins. Co., 78 N. Y. 568; affection of the liver, Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U. S. 250. «'Weil v. New York Life Ins. Co., 47 La. Ann. 1405; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381; Cronin v. Fire Ass'n of Philadelphia, 112 Mich. 106, 70 N. W. 449. See ante, note 1. Though the particular state of the assured's title in the property insured need not be stated unless inquired about by the insurers, yet a substantially untrue answer to a question put to him by an insurer, in relation to his title, will avoid the policy. Locke v. North American Ins. Co., 13 Mass. 61; Strong v. Manu- facturers' Ins. Co., 10 Pick. (Mass.) 45; Fletcher v. Commonwealth Ins. Co., 18 Pick. (Mass.) 421. This principle is equally applicable to cases of life insurance. Vose v. Eagle L. & H. Ins. Co., 6 Cush. (Mass.) 49. An answer given by an applicant, which is untrue in fact, and known by the applicant to be so, avoids the policy, irre- § 140 EEPEESENTATION AND MISKEPEESENTATION. 343 False representations of a material fact Avill avoid a policy taken on the faith thereof, whether the misrepresentation was innocently or fraudulently made.^'^ But a false answer and representation in an application for re-instatement, does not affect the liability of the insurer if the policy had not lapsed, and the application was not necessary.^^ Materiality of Representation. A misrepresentation as to an immaterial fact, does not, in the absence of moral fraud, avoid the policy, unless the con- tract contains a clear stipulation that any misrepresentation, no matter how immaterial, shall render it void.^^ But the parties often stipulate that all questions asked, and answers given, shall be material, and foreclose inquiry on that score, spective of the materiality of the answer given. Connecticut Mut. Life Ins. Co. v. Pyle, 44 Ohio St. 19; Sweat v. Piscataquis Mut. Ins. Co., 79 Me. 109. If the matter misrepresented increases the risk, it will defeat the policy although not made with intent to deceive. Ring V. Phoenix Assur. Co., 145 Mass. 426. Fraudulent representa- tions made by the assured to the insurer in an application for a policy, though not in fact material to the risk, yet material in the judgment of the insurer, and which induced him to take the risk, will avoid the policy. Valton v. National Fund Life Assur. Co., 20 N. Y. 32. See, also, Aetna Ins. Co. v. Simmons, 49 Neb. 811, 69 N. W. 125; Miotke v. Milwaukee Mechanics' Ins. Co., 113 Mich. 166. "'Continental Ins. Co. v.Kasey,25 Grat. (Va.) 268; Ryan v.Spring- field F. & M. Ins. Co., 46 Wis, 671; Cronin v. Fire Ass'n of Phila- delphia, 112 Mich. 106, 70 N. W. 448. A material misrepresenta- tion will avoid the policy if the insurer would not havfe assumed the risk if it had known the truth. Missouri, K. & T. Trust Co. v. German Nat. Bank of Denver (C. C. A.), 77 Fed. 117; Johns- ton v. Northwestern Live Stock- Ins. Co., 107 Wis. 344, 83 N. W. 644;' Alston V. Mechanics' Mut. Ins. Co., 4 Hill (N. Y.), 329; Taylor v. Aetna Ins. Co., 120 Mass. 254; Cerys v. State Ins. Co., 71 Minn. 338. "* Massachusetts Ben. Life Ass'n v. Robinson, 104 Ga. 256, 42 L. R. A. 261. "^ Manufacturers' & Merchants' Mut. Ins. Co. v. Zeitinger, 168 111. 286, 48 N. E. 179; Mosley v. Vermont Mut. Fire Ins. Co., 55 Vt. 142. 3-14 WARRANTIES AND REPRESENTATIONS. § 140 by providing that the imtnitli of any answer sliall aYoid tlie policy. '^^ Statements concerning tlie condition and value of the property insured are immaterial where the policy is issued under a statute requiring the insurer to personally examine the property, and that the parties agree upon its insurable value. '^^ Whether a representation be actually material to the risk, or is made so by the contract of the parties, is sometimes a question of fact, sometimes a question of law, and sometimes a mixed question of fact and law."^ Misrepresentations as to the age of the insured, and as to the age of his parents at their death, and the disease of which they died, and concerning the existence of his brothers and sisters, and their health, are material as matters of law.'^" But the effect and materiality of a misrepresentation as to the health and physical condition of the applicant,"^* and as to the value of the goods insured,''^' and as to their location/^ and the materiality of a misrepresentation concerning the " Stensgaard v. St. Paul Real Estate Title Ins. Co., 50 Minn. 429, 52 N. W. 910; O'Brien v. Home Ins. Co., 79 Wis. 399, 48 N. W. 714; Fromherz v. Yankton Fire Ins. Co., 7 S. D. 187, 63 N. W. 784. " Queen Ins. Co. v. Leslie, 47 Ohio St. 409, 9 L. R. A. 45. "Illustrations: Overvaluation, Boutelle v. Westchester Fire Ins. Co., 51 Vt. 4; misstatement as to current insurance. Armour r. Transatlantic Fire Ins. Co., 90 N. Y. 450; as to title, Graham v. Fireman's Ins. Co., 87 N. Y. 69; as to nature of building in which goods are kept, Prudhomme v. Salamander Fire Ins. Co., 27 La. Ann. 695. See, also, Lycoming Fire Ins. Co. v. Rubin, 79 111. 402; Schmidt v. Mutual C. & V. Fire Ins. Co., 55 Mich. 432; Cerys v. State Ins. Co., 71 Minn. 338. "Lowe v. Union Cent. Life Ins. Co., 41 Ohio St. 273; Hartford L. & A. Ins. Co. V. Gray, 91 111. 159. '* March v. Metropolitan Life Ins. Co., 186 Pa. St. 629, 40 Atl. 1100; John Hancock Life Ins. Co. v. Warren, 59 Ohio St. 45, 51 N. E. 546. See cases ante. "Lycoming Fire Ins. Co. v. Rubin, 79 111. 402. "Prudhomme v. Salamander Fire Ins. Co., 27 La. Ann. 695. § 14:0 EEPEESENTATION AND MISREPKESENTATIOX. 345 title/^ or value of property insured/^ liave sometimes been held to be questions for tlie jury. Tlie true test of the materiality of a representation is the probable effect it had upon the conduct of the insurer in relation to the assumption of the risk. "" Sweat V. Piscataquis Mut. Ins. Co., 79 Me. 109. " Thayer v. Providence W. Ins. Co., 70 Me. 531. Other questions for jury: Physical condition, McGowan v. Supreme Court, I. O. F., 104 Wis. 173, 80 N. W. 603; change in building, Gerhauser v. North British & M. Ins. Co., 7 Nev. 174; description of goods, Franklin Fire Ins. Co. v. Martin, 40 N. J. Law, 568; value of property insured. Farmers' Ins. Co. v. McCluckin, 40 Ohio St. 42; Franklin Fire Ins. Co. v. Vaughan, 92 U. S. 516; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381. Illustrations of fatal misrepresentations: Fire: Exposure and distance, Chaffee v. Cattaraugus County Mut. Ins. Co., 18 N. Y. 376; title, Collins v. St. Paul F. & M. Ins. Co., 44 Minn. 440; Reithmueller v. Philadelphia Fire Ass'n, 20 Mo. App. 246; O'Brien v. Home Ins. Co., 79 Wis. 399. 48 N. W. 714; protection of building with sprinklers, Fromherz v. Yankton Fire Ins. Co., 7 S. D. 187, 63 N. W. 784; mortgage foreclosure, Pinkham v. Morang & M. Mut. Fire Ins. Co., 40 Me. 587; danger from incendiaries, Jennings v. Chenango County Mut. Ins. Co., 2 Denio (N. Y.), 75. Life: Family history, Jerrett v. John Hancock Mut. Life Ins. Co., 18 R. I. 754, 30 Atl. 793; Bloomington Mut. Life Ben. Ass'n v. Cummins, 53 111. App. 530; married or single. United Brethren Mut. Aid Soc. v. White, 100 Pa. St. 12; other insurance, March v. Metro- politan Life Ins. Co., 186 Pa. St. 629; Bruce v. Connecticut Mut. Life Ins. Co., 74 Minn. 314, 77 N. W. 210; Penn Mut. Life Ins. Co. v. Me- chanics' Sav. Bank & Trust Co., 37 U. S. App. 692, 43 U. S. App. 75, and note thereto in 38 L. R. A. 33; examination by physician, March v. Metropolitan Life Ins. Co., supra; Finch v. Modern Woodmen of America, 113 Mich. 440, 71 N. W. 1104; Ferris v. Home Life Assur. Co., 118 Mich. 485, 76 N. W. 1041; temperate habits, Union Cent. Life Ins. Co. v. Lee (Ky.), 47 S. W. 614; Malicki v. Chicago Guar- anty Fund Life Soc, 119 Mich. 151, 77 N. W. 690; age, Swett v. Citizens' Mut. Relief Soc, 78 Me. 541; Lowe v. Union Cent. Life Ins. Co., 41 Ohio St. 273. See, also, Valton v. National Fund Life Ins. Co., 20 N. Y. 32 (misrepresentation as to identity of applicant) ; Siebel v. Northwestern Mut. Relief Ass'n, 08 N. W. 1009, 94 Wis. 846 "warranties anj) eepkesentations. § 141 Concealment. § 141. A concealment exists when either party withholds from the other facts which are unknown to that other, and are material to the risk, and in good faith ought to be disclosed. The rule of marine insurance, which required the insured to voluntarily disclose to the insurer all facts known to him, and material to the risk, and which the insurer had not the means 253; Insurance Co. v. Lampkin, 38 Pac. 335; Supreme Council v. Green, 71 Md. 263, 17 Atl. 1048 (identity of beneficiary material). Illustrations of representations not fatal: Fire: Value, or other matter stated by way of opinion. Standard Oil Co. V. Amazon Ins. Co., 79 N. Y. 506; Fisher v. Crescent Ins. Co., 33 Fed. 549; incumbrance. Mutual Mill Ins. Co. v. Gordon, 121 111. 366. Compare Cerys v. State Ins. Co. of Des Moines, 71 Minn. 338. A representation that an applicant is the owner of the prem- ises to be insured is not false, if he is the equitable owner, though he has no legal title. Wainer v. Milford Mut. Fire Ins. Co., 153' Mass. 335, 11 L. R. A. 598; Kenton Ins. Co. v. Wigginton, 89 Ky. 330, 7 L. R. A. 81; Franklin Fire Ins Co. v. Martin, 40 N. J. Law, 568; Rohrbach v. Germania Fire Ins. Co., 62 N. Y. 47; Buck v. Phoenix Ins. Co., 76 Me. 586; Fame Ins. Co. v. Mann, 4 Bradw. (111.) 485; Collins v. Charlestown Mut. Fire Ins. Co., 10 Gray (Mass.),. 155. A representation that the premises were used for a residence and stores is not fatally false if in fact they were used for the purposes of a bakery and restaurant. Richards v. Washington F. & M. Ins. Co., 60 Mich. 420, 27 N. W. 586. See, also, as to use, Liver- pool, L. & G. Ins. Co. V. Colgin (Tex. Civ. App.), 34 S. W. 291. Age of building, Eddy v. Hawkeye Ins. Co., 70 Iowa, 472, 30 N. W. 808. A representation that stovepipes were under a brick chimney, when in fact they passed through the roof, will not avoid the policy if it be shown that the actual condition entails no additional risk, Bankhead v. Des Moines Ins. Co., 70 Iowa, 387; Eddy v. Hawkeye Ins. Co., supra. Taking stock, Wynne v. Liverpool & L. & G. Ins. Co., 71 N. C. 121. An application for insurance on specified goods,, while they are contained in a given building, into which they are to be removed, does not amount to a representation that the in- sured owned the building. Omaha Fire Ins. Co. v. Crighton, 50 Neb. 314, 69 N. W. 766. A distillery is not represented as in opera- tion by describing it as "occupied by assured as a distillery," in a § 141 CONCEALME^'T. 347 of knowiiii^, or was not presumed to know, lias never obtained in life and fire insurance. In these latter classes of insur- ance the rule seems to be that an applicant need not volun- tarily disclose to the insurer even matters material to tho risk, except when those matters concern the very existence of the subject matter of the risk at the time the insurance is effected, and any material change in its condition between the time the application is made and the contract is consum- mated."^^ Any change in the health of the insured be- tween the time of making the application and the acceptance of the risk, should be communicated to the insurer.^^ And policy issued when it has long been idle. Louck v. Orient Ins. Co., 176 Pa. St. 638. Good faith and reasonable diligence to ascertain the truth on the part of the insured in making his representations are ordinarily all that can be required of him. Field v. Insirrance Co. of North America, 6 Biss. 121, Fed. Cas. No. 4,767; Harrington V. Fitchburg Mut. Fire Ins. Co., 124 Mass. 126; Redman v. Hart- ford Fire Ins. Co., 47 Wis. 89; Miller v. Alliance Ins. Co., 19 Blatchf. 308, 7 Fed. 649; Lynchburg Fire Ins. Co. v. West, 76 Va. 575; Planters' Ins. Co. v. Myers, 55 Miss. 479; Dupree v. Virginia Home Ins. Co., 92 N. C. 417; Citizens' F. & M. Ins. Co. v. Short, 62 Ind. 316; National Bank v. Hartford Fire Ins. Co., 95 U. S. 673. Compare Goddard v. Monitor Mut. Fire Ins. Co., 108 Mass. 56. Life: Physical condition, illness, etc.. Mutual Reserve Fund Life Ass'n V. Farmer, 65 Ark. 581, 47 S. W. 850; Sieverts v. National Benev. Ass'n, 95 Iowa, 710, 64 N. W. 671; consulting physician, Sieverts v. National Benev. Ass'n, supra; Supreme Lodge, K. of P., V. Taylor (Ala.), 24 So. 247; Billings v. Metropolitan Life Ins. Co., 70 Vt. 477, 41 Atl. 516. A misrepresentation concerning the amount of other life insurance carried by the applicant is not always fatal, Germania Ins. Co. v. Rudwig, 80 Ky. 223. See, also, as to nonfatal misrepresentations, Manhattan Life Ins. Co. v. Carder, 42 U. S. App. 659, 82 Fed. 986; New York Life Ins. Co. v. Baker, 49 U. S.' App. 690, 83 Fed. 647; Wiberg v. Minnesota S. R. Ass'n, 73 Minn. 297, age of applicant. "Washington Mills Emery Mfg. Co. v. Weymouth & B. Mut. Fire Ins. Co., 135 Mass. 503; Newman v. Springfield F. & M. Ins. Co., 17 Minn. 123 (Gil. 98). ""Ormond v. Fidelity Life Ass'n, 96 N. C. 158; Cable v. United States Life Ins. Co. (C. C. A.), Ill Fed. 26. SttS WARKANTIES AND KEPEESENTATIONS. § 141 if, between tlie time of making the application and tlie com- pletion of the contract the building upon which insurance is sought has been destroyed, it is the duty of the applicant to make known the facts to the insurer.^^ Good faith and fair dealing require that changes so material to the risk, and of such vital imi3ortance to the insurer, if unknown to it, and known by the applicant, be communicated by the latter to the former, and the failure to make such communication is a concealment, for wdiicli the insurer can avoid the contract.^^ The rule that an insured is required to state fairly and fully the facts in regard to the risk, and that any fraud, or fraudu- lent concealment of the facts in regard to such risk w^ill avoid the policy, only obtains when the insurer exacts such informa- tion from the insured. The latter is not bound to volunteer any information. If he answers correctly all the questions put to him, the mere omission to state matter not called for by any specific or general question, is not a concealment. If the applicant truly answers the questions put to him, ane fire. Whether the cause is proximate or remote do'es not depend alone upon its closeness in the order of time in which certain things occur. An efiicient, adequate cause being St. 353, 91 Am. Dec. 217; Manchester Fire Assur, Co. v. Feibelman, 118 Ala. 308, 23 So. 759, 27 Ins. Law J. 855. As to effect of offenses against law upon policy, see Mount v. Waite, 7 Johns. (N. Y.) 434; Springfield F. & M. Ins. Co. v. Cannon (Tex. Civ. App.), 46 S. W. 375; Cedar Rapids Ins. Co. v. Shimp, 16 111. App. 248; Indiana Ins. Co. V. Brehm, 88 Ind. 578. * Brady v. Northwestern las. Co., 11 Mich. 425; Case v. Hartford Fire Ins. Co., 13 111. 676; Wheeler v. Traders' Ins. Co., 62 N. H. 450. 13 Am. St. Rep. 585; Heffron v. Kittanning Ins. Co., 132 Pa. St. 580; Renshaw v. Fireman's Ins. Co., 33 Mo. App. 403. " Lynn Gas & Electric Co. v. Meriden Fire Ins. Co., 158 Mass. 570, 20 L. R. A. 297. ^California Ins. Co. v. Union Compress Co., 133 U. S. 387. "Gibbons v. German Ins. & Sav. Institution, 30 111. App. 263. ° Way V. Abbington Mut. Fire Ins. Co., 166 Mass. 67, 43 N. E. 1032, 32 L. R. A. 608. 358 THE CONTRACT AND ITS INCIDENTS. § 150 foimd, it must be deemed tlie true cause, unless some other cause, not incidental to it, but independent of it, is shown to have intei-^'cned between it and the result. When it is said that the cause to be sought is the direct and proximate cause, it is not meant that the cause or agency which is nearest in point of time or place to the result is necessarily to be shown. The active, efficient cause, that sets in motion a train of events which brings about a result, without the intervention of any force started and working actively from a new source, is the direct and proximate cause. The primary cause may be the proximate cause, though it may operate through successive instruments ; as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement. The question always is. Was there an unbroken connection ? Did the facts constitute a continuous succession of events, so linked together as to form a natural whole, or was there some new and independent cause intervening between the primary cause and the ultimate damage.'^ Where the negligent act of the insured, or of somebody else, causes a fire, and so causes damage, although the negligent act is the direct proximate cause of the damage through the fire, which is the visible agency, the insurer is held liable for a loss caused by the fire.^ The loss or damage by fire includes 'Waters v. Merchants' Louisville Ins. Co., 11 Pet. (U. S.) 213; Renshaw v. Missouri State Mut. F. & M. Ins. Co., 103 Mo. 595, 23 Am. St. Rep. 904; Scripture v. Lowell Mut. Fire Ins. Co., 10 Cush. (Mass.) 356, 57 Am. Dec. Ill; Hillier v. Allegheny County Mut. Ins. Co., 3 Pa. St. 470, 45 Am. Dec. 656; White v. Republic Fire Ins. Co., 57 Me. 91; Dyer v. Piscataqua F. & M. Ins. Co., 53 Me. 118; Miller v. Mutual Ben. Life Ins. Co., 31 Iowa, 235; Prader v. National Masonic Ace. Ass'n, 55 Iowa, 149, 63 N. W. 601; Wheeler v. Traders' Ins. Co., 62 N. H. 450, 13 Am. St. Rep. 582; Way v. Abington Mut. Fire Ins. Co., 166 Mass. 67, 32 L, R. A. 608. 'Johnson v. Berkshire Mut. Fire Ins. Co., 4 Allen (Mass.), 388; I § 150 THE EISK ASSUMED. 359 the wliole loss, and is (unless the policy otherwise provides) all covered by a fire policy, where part of a loss is due to an explosion, and part is caused by a fire resulting therefrom.® But damage to a building by concussion, caused by an ex- plosion of gunpowder in another building which resulted from a fire, is not within a policy of insurance against fire.^'^ The destruction of merchandise by blowing up a building by gunpowder, to prevent the spread of a conflagration, is a peril insured against if the building would otherwise have burned. -^^ The Description of the Risk Insured Against. Only that will be held to be insured which is fairly included within the description contained in the policy. When the terms of the policy are clear as to the property insured, and risk insured against, they cannot be varied by proof, but parol evidence is admissible to prove the identity of the property covered by the policy, if the description be ambiguous.^^ If the description of the property is definite, evidence will not be admitted in an action at law to show that a mistake was made, and that the policy was intended to cover other prop- erty. ^•'^ Eeference may sometimes be had to the application Lynn Gas & Electric Co. v. Meriden Fire Ins, Co., 158 Mass. 570, 20 L. R. A. 297. ° Scripture v. Lowell Mut. Fire Ins. Co., 10 Cush. (Mass.) 356, 57 Am. Dec. 111. " Caballero v. Home Mut. Ins. Co., 15 La. Ann. 217. ^^ Greenwald v. Insurance Co., 3 Phila. (Pa.) 323; City Fire Ins. Co. V. Corlies, 21 Wend. (N. Y.) 367. See, also, Beakes v. Phoenix Ins. Co., 143 N. Y. 402, 26 L. R. A. 267. ^= Graham v. Firemen's Ins. Co., 2 Disn. (Ohio) 255; Soli v. Farmers' Mut. Ins. Co., 51 Minn. 24, 52 N. W. 979; Roots v. Cin- cinnati Ins. Co., 1 Disn. (Ohio) 138; Lycoming Mut. Ins. Co. v.' Sailer, 67 Pa. St. 108; Weisenberger v. Harmony F. & M. Ins. Co., 56 Pa. St. 442. "Holmes v. Charlestown Mut. Fire Ins, Co., 10 Mete. (Mass.) 211. 360 THE OONTKACT AND ITS INCIDENTS. § 150 to prove the identity of the property covered ;^^ or to usage and custom.-'^ A policy upon property described only as "property in freight buildings" will not cover articles of the kind specified in the policy to be not insured, unless by special agreement. ^^ The policy may attach to and cover property acquired subsequently to its delivery. ^'^ Lumber sold, and piled on docks, and marked with the purchaser's name, and to be removed at once, is covered by a policy on property sold but not delivered. ^^ A hay press used on a farm is a "farming utensil," but if situated in a stock-yard, at a. distance from a building, is not covered by a policy on "farming utensils in buildings on premises." ^^ "Binding twine" is covered by a policy on implements and goods kept for sale in a general implement store. ^*^ Where insurance is effected on buildings occupied as stores and shoe factory, an exception from the policy of "store fixtures" does not except fixtures in the factory. ^^ Insurance on fixtures does not cover chairs.^^ Milk-cans are included in a policy on a creamery building and merchandise, materials, supplies and packages. ^^ The term "grain" includes broom corn in the " Menk v. Home Ins. Co., 76 Cal. 50, 14 Pac. 837. "Mason v. Skurray, 2 Bos. & P. (N. R.) 213, note; 1 Park, Ins. 245. " Com. V. Hide & Leather Ins. Co., 112 Mass. 136. " Davis V. New England Fire Ins. Co., 70 Vt. 217, 39 Atl. 1095. "Michigan Pipe Co. v. Michigan F. & M. Ins. Co., 92 Mich. 482, 20 L. R. A. 277. See Wunderlich v. Palatine Fire Ins. Co., 104 Wis. 382, 395, 80 N. W. 467, 471. '"Phoenix Ins. Co. v. Stewart, 53 111. App. 273; Benton v. Farmers' Mut. Fire Ins. Co., 102 Mich. 281. 2° Davis V. Anchor Mut. Fire Ins. Co., 96 Iowa, 70, 64 N. W. 687. "Thurston v. Union Ins. Co., 17 Fed. 127. '^Manchester Fire Assur. Co. v. Feibelman, 118 Ala. 308, 23 So. 759, 27 Ins. Law J. 855. "Cronin v. Fire Ass'n of Philadelphia, 112 Mich. 106, 70 N. W. 448. 'I 150 THE RISK ASSUMED. 361 bale, but not baled panicles from which the seed has been threshed. ^■^ Furniture stored in a hotel, for use in connection with it, is covered bj insurance upon the hotel and furniture, but excepting goods held on storage.^^ Grain in stacks does not include un threshed grain in a mow in a barn.^^ A policy covering property of the insured "providing the prop- erty hereby insured is on premises owned and occujjied by it" does not cover property on premises held by the insured Tinder a lease. ^^ Household Furniture. The term "household furniture" includes all articles usually found suitable, necessary and convenient for housekeeping.-'* Furniture belonging to a hotel, and stored for use in con- nection with it, is not within an exception of "goods held on storage." ^^ Dwelling and Buildings. A carriage house and stable is covered by a policy "on two- •story frame dwelling and addition thereto, with shingle roof, u5ed as a dwelling," etc., where they are under the same roof •and over the carriage house is a bed room occupied by a hired "Reavis v. Farmers' Miit. Fire Ins. Co., 78 Mo. App. 14. "Continental Ins. Co. v. Pruitt, 65 Tex. 125. '" Benton v. Farmers' Mut. Fire Ins. Co., 102 Mich. 281. '' Providence & W. R. Co. v. Yonkers Fire Ins. Co., 10 R. I. 74. See furttier, on this question, Soli v. Farmers' Mut. Ins. Co., 51 Minn. 24, 52 N. W. 979; Hood v. Manhattan Fire Ins. Co., 11 N. Y. 532; 'Hews v. Atlas Ins. Co., 126 Mass. 389; Hanover Fire Ins. Co. v. Mannasson, 29 Mich. 316; Boright v. Springfield F. & M. Ins. Co., 34 Minn. 352; Cargill v. Millers' & M. Mut. Ins. Co., 33 Minn. 90; Everett v. Continental Ins. Co., 21 Minn. 76; Com. v. Hide & Leather Ins. Co., 112 Mass. 136. ''Reynolds v. Iowa & N. Ins. Co., 80 Iowa, 563; Huston v. State Ins. Co., 100 Iowa, 402, 69 N. W. 674. '« Continental Ins. Co. v. Pruitt, 65 Tex. 125; Clarke v. Firemen's Ins. Co., 18 La. 431. 362 THE CONTRACT AND ITS INCIDENTS. § 150 man.^^ "Stock contained in a chair factory" covers stock contained in the various buildings that together constitute the factory.^ ^ A policy on "gin-house and contents," describing the property insured as "cotton, ginned and unginned, baled and unbaled, in cotton house adjacent to gin-building," covers cotton in the gin-house building, as well as that in the building adjacent to the gin-house.^^ A policy upon a house covers^ the cellar wall of the house.^^ A policy covering all furni- ture contained* in a "certain brick building, and additions attached," includes furniture in a frame building on the next lot, extending over and against the rear of the brick building and used in connection therewith as a store-house, where there is no other building attached or connected.^^ Whether counters and shelving in the insured building are covered by a policy, depends upon whether they are movable or immov- able fixtures.^^ Insurance for a period of years, effected upon a mill-building and machinery, while in process of con- struction, covers the property when completed as contemplated by the parties when the contract was made.^^ The descrip- tion "three-story granite building" may designate a building with a granite front only, and three stories high in front and rear, though only one story high in the middle.^'^ Insurance '"Hannan v. Williamsburgh City Fire Ins. Co., 81 Mich. 556; White V. Mutual Fire Assur. Co., 8 Gray (Mass.), 566. '^ Liebenstein v. Baltic Fire Ins. Co., 45 111. 301. 5- Boyd V. Mississippi Home Ins. Co., 75 Miss. 47, 21 So. 708, 2S Ins. Law J. 532; Missouri, K. & T, Ry. Co. -v. Union Ins. Co. (Tex, Civ. App.), 39 S. W, 975, ^^ Ervin v. New York Cent. Ins. Co., 3 N. Y. Sup. Ct. 213. '* Maisel v. Fire Ass'n of Philadelphia, 59 App. Div. 461, 69 N. Y. Supp. 181. ^' Capital City Ins. Co. v. Caldwell, 95 Ala. 77, 10 So. 355. ="■ Frost's D. L. & W. W. Works v. Millers' & M. Mut. Ins. Co., 37 Minn. 300. ^'^ Medina v. Builders' Mut. Fire Ins. Co., 120 Mass. 225; Carr v. Hibernia Ins. Co., 2 Mo. App. 466. § 150 THE KISK ASSUMED. 363 on a dwelling house covers a heater built and bricked in.^^ A "warehouse, used in connection with an elevator buihling from which grain is transferred through, spouts extending from one to the other, is within the description "steam-power elevator building, and additions."^^ "Buildings adjoining and communicating, * * ^ situated detached" means buildings detached from other buildings, and not from each.'*^ "Stock and tools contained in a five-story building" includes stock contained in the cellar of the building. ^^ A policy on a brick building attaches to the building as such, and not to the materials composing the building. Where a building, by reason of overloading, or defect in the construction, falls, and fire subsequently occurs in the ruins, the insurers are not liable.^2 Stock and Incidents. The term "stock in trade" when used as a matter of descrip- tion in an insurance policy, includes, besides the materials used in the business, everything necessary for carrying on that business ; ^^ and entitles the insured to carry articles properly belonging to his business, although these may be forbidden by special provisions of a policy.^* "Grain in stack and gran- ary" includes flax seed, and a stack of flax raised for the ^ Adams v. Greenwich Ins. Co., 9 Hun (N. Y.), 45. ^» Cargill V. Millers' & M. Mut. Ins. Co., 33 Minn. 90. *^ Broadwater v. Lion Fire Ins. Co., 34 Minn. 465. See, also, Allen V. Lafayette Ins. Co., 34 La. Ann. 763; Commercial Fire Ins. Co. V. Allen, 80 Ala. 571; German- American Ins. Co. v. Commercial Fire Ins. Co., 95 Ala. 469, 11 So. 117; Fair v. Manhattan Ins. Co., 112 Mass. 320. " Benedict v. Ocean Ins. Co., 31 N. Y, 389. ^ Nave V. Home Mut. Ins. Co., 37 Mo. 430. "Wall V. Howard Ins. Co., 14 Barb. (N. Y.) 383; Harper v. Albany Mut. Ins. Co., 17 N. Y. 194 ; Planters' Mut. Ins. Co. v. Engle, 52 Md. 468; Phoenix Ins. Co. v. Favorite, 49 111. 259. "Steinbach v. La Fayette Fire Ins. Co., 54 N. Y. 90; Hall v. In- 36J: THE CONTKACT AND ITS INCIDENTS. § 150 seed.^^ A policy covering mercliandise kept for sale covers the additions to it made from time to time, as well as the goods on hand at the time of its issue.^^ A policy on live stock situated on a certain farm, covers a horse obtained after issuance of the policy, in exchange for one then owned. '*^ The term "merchandise" covers property intended for use, as well as that intended for sale ; ^^ and all things which may reasonably be supposed within the contemplation of the par- ties at the time the policy was issued, and which are commonly used, found, or sold in connection with the business, or inci- dent to it.^^ A policy covering "fixed and movable machin- ery, engine lathes and tools" covers also patterns used in molding castings in connection with the business. The word "machinery" includes all the tools and implements used in connection with it.^^ Insurance on a manufactory will in- surance Co. of North America, 58 N. Y. 292; Pindart v. King's County Fire Ins. Co., 36 N. Y. 648. *' Hewitt V. Watertown Fire Ins. Co., 55 Iowa, 323. "Manchester Fire Assur. Co. v. Feibelman, 118 Ala. 308, 23 So. 759, 27 Ins. Law J. 855; American Cent. Ins. Co. v. Rothschild, 82 III. 166; AVhitwell v. Putnam Fire Ins. Co., 6 Lans. (N. Y.) 166. ^^ Mills V. Farmers' Ins. Co., 37 Iowa, 400. *^ Hartwell v. California Ins. Co., 84 Me. 524. ** Firemen's Fund Ins. Co. v. Western Refrigerating Co., 162 111. 322, 44 N. E. 746; Georgia Home Ins. Co. v. Allen, 119 Ala. 436, 28 Ins. Law J. 199, 24 So. 399; Western Assur. Co. v. Ray (Ky.), 49 S. W. 326; Spratley v. Hartford Ins. Co., 1 Dill. 392, Fed. Cas. No. 13,256; Franklin Fire Ins. Co. v. Hewitt, 3 B. Mon. (Ky.) 231. Compare Kent v. Liverpool & L. Ins. Co., 26 Ind. 294; Burgess v. Alli- ance Ins. Co., 10 Allen (Mass.), 221; Bassell v. American Fire Ins. Co., 2 Hughes, 531, Fed. Cas. No. 1,094; Getchell v. Aetna Ins. Co., 14 Allen (Mass.), 325; Citizens' Ins. Co. v. McLaughlin, 53 Pa. St. 485; Rafel v. Nashville M. & F. Ins. Co., 7 La. Ann. 244; North American Fire Ins. Co. v. Throop, 22 Mich. 146. ^"Lovewell v. Westchester Fire Ins. Co., 124 Mass. 418; Buchanan V, Exchange Fire Ins. Co., 61 N. Y. 26; Houghton v. Watertown Fire Ins. Co., 131 Mass. 300; Seavey v. Central Mut. Fire Ins. Co., Ill Mass. 540. § 150 THE KISK ASSUMED. ^ 365 elude fixtures and machinery, and the incidents thereto.^* Smoked meats taken from a smoke-house to a storage room^ as fast as they are cured, are contents of a smoke-house within the meaning of a policy, in separate sums, upon a butchei- shop and its contents, and the smoke-house and its contents, where the manner of conducting the business was under- stood by both parties when the insurance was effected.^ ^ Goods in Trust. A stock of goods in the hands of an agent, for sale on ac- count of the owner, is held in trust by the agent, within the meaning of a policy of insurance covering property owTied or held in trust by him.^^ "]\rerchandise held in trust" by ware- housemen, is goods entrusted to them for keeping, in the mercantile sense of the term.^^ It includes goods held by one as bailee,^^ and goods in pawn,^^ and goods left with the in- sured for sale or for rent.^"^ Location of Insured Property. The location of the property insured is important, and as a rule the insured must show that the property destroyed was, at the time of the fire in the locality or place designated in the "Sims V. State Ins. Co., 47 Mo. 54; Peoria M. & F. Ins. Ck>. v. Lewis, 18 111. 553. " Graybill v. Penn. Township Mut. Fire Ins. Ass'n, 170 Pa. St. 75. =^' Roberts v. Firemen's Ins. Co., 165 Pa. St. 55; Farmers' L. & T. Co. V. Harmony F. & M. Ins. Co., 51 Barb. (N. Y.) 33. - "Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527; John- son V. Campbell, 120 Mass. 449; Grandin v. Rochester German Ins. Co., 107 Pa. St. 26; Thomas v. Cummiskey, 108 Pa. St. 354. "Beidelman v. Powell, 10 Mo. App. 280. =«Rafel V. Nashville M. & F. Ins. Co., 7 La. Ann. 244. " Snow V. Carr, 61 Ala. 363. See, also, First Nat. Bank of Waxa- hachie v. Lancashire Ins. Co., 62 Tex. 461; Mitchell Furniture Co. V. Imperial Fire Ins. Co., 17 Mo. App. 627; Lucas v. Liverpool & L. & G. Ins. Co., 23 W. Va. 258; Strohn v. Hartford Fire Ins. Co., 35 Wis. 648; Waring v. Indemnity Fire Ins. Co., 45 N. Y. 606. 366 THE CONTKACT AND ITS IXCIDENT8. § 150 policy. But where a misdescription of the locality is the re- sult of the negligence or mistake of the insurer, without the knowledge or consent of the insured, this fact may be proved in an action on the policy, without having it re- formed.^^ Insurance on the "contents" of a building, de- scribing them in no other way, will hot cover the articles then contained in the building, after they are removed and stored elsewhere ;^^ and a policy on a "steam fire engine, hose-pipe, and hose-cart, wliile located and contained in the fire engine house, and not elsewhere," does not cover such property while being used in an attempt to extinguish a fire elsewhere. ^° If the contract limits the liability of the insured, by describing the property as contained in a particular location, the courts cannot extend the rights of the insured, nor the liability of the insurer.®^ AVords descriptive of location, may, as to one class of prop- erty, or as to one kind of insurance, be treated as a statement of a fact relating to the risk, and as amounting to a condition or stipulation that the property should remain there; while as to another class of property, or as to other kinds of insur- ance, they might be treated as merely descriptive for the purposes of identification. Kegard must always be had to ^Phenix Ins, Co. v. Allen, 109 Ind. 273, 10 N. E. 85; Germania Life Ins. Co. v. Lunkenheimer, 127 Ind. 536, 26 N. E. 1082; Baker V. State Ins. Co., 31 Or. 41, 48 Pac. 699, 27 Ins. Law J. 86; Allen v. Home Ins. Co. (Cal.), 30 Ins. Law J. 711. "' Benton v. Farmers' Mut. Fire Ins. Co., 102 Mich. 281, 26 L. R. A. 237; First Nat. Bank of Waxahachie v. Lancashire Ins, Co., 62 Tex. 461. ^''L'Anse v. Fire Ass'n of Philadelphia, 119 Mich. 427, 78 N. W. 465, 43 L. R. A. 838. "Bahr v. National Fire Ins. Co., 80 Hun (N. Y.), 309; Green v. Liverpool & L. & G. Ins. Co., 91 Iowa, 615; English v. Franklin Fire Ins, Co., 55 Mich. 273, 54 Am. Rep. 377. § 150 THE EISK ASSUMED. 3()7 the facts,^2 ^^^ ^q ^^i^^^ j^^^^gj. ^ deemed to have, been w'ithin the contemplation of the parties at the inception of the con- tract.^^ Insurance on a harvester "operating in the grain iiekls, and in transit from place to place in connection with the hai-vesting/' does not cover loss of machine while stand- ing near a blacksmith shop, to which it had been taken for repairs, from a place where it was stored, with intent to take it from the shop directly to the grain fields, as soon as it was repaired.^^ Horses insured as a part of the contents of a barn, are not covered bv the policy while outside of it.^^ A policy on stable and hacks contained therein does not cover a hack in a repair shop one-eighth of a mile away,*^^ Under a description of goods in the store part of a building, no re- covery can be had if the goods be removed to a distant part of the building, used for other purposes, by other persons.'^''' Insurance on property in transit, does not cover it after de^ livery upon the private track of the consignee.®^ The words "contained in," as used in a policy of insurance with refer- ence to property insured, constitute a restriction upon the risk.^^ But these Avords may also be construed to be merely •=' Niagara Fire Ins. Co. v. Elliott, 85 Va. 962; De Graff v. Queen Ins. Co., 38 Minn. 501. *^Haws V. Fire Ass'n of Philadelphia, 114 Pa. St. 431; Peterson v. Mississippi Valley Ins. Co., 24 Iowa, 494, 95 Am. Dec. 748. " Mawhinney v. Southern Ins. Co., 98 Cal. 184. *' Farmers' Mut. Fire Ins. Co. v. Kryder, 5 Ind. App. 430, 31 N. E. 851; British-America Assur. Co. v. Miller, 91 Tex. 414, 44 S. W. 60. °» Bradbury v. Fire Ins. Ass'n of England, 80 Me. 396. '^Boynton v. Clinton & E. Mut. Ins. Co., 16 Barb. (N. Y.) 254; Harris v. Royal Canadian Ins. Co., 53 Iowa, 236. " Crew-Levick Co. v. British & Foreign Marine Ins. Co., 77 Fed. 858. '° Maryland Fire Ins. Co. v. Gusdorf, 43 Md. 506; Lyons v. Provi- dence Wash. Ins. Co., 14 R. I. 109, 51 Am. Rep. 364; Hews v. Atlas Ins. Co., 126 Mass. 389; Sampson v. Security Ins. Co., 133 Mass. 49; Lycoming County Ins. Co. v. Updegraff, 40 Pa. St. 311; Liebenstein V. Aetna Ins. Co., 45 111. 303; North American Fire Ins. Co. v. 368 THE CONTRACT AND ITS INCIDENTS. § 150 descriptive of the risk, and not a promissory stipulation, or a condition tliat the location shall remain unchanged. The question often is not so much as to the binding effect of the description of the property, or the location, as it is what place or premises the description is intended to cover, and as to the interpretation which will best effectuate the evident intention of the parties to the contract at the time of making it.'^° In- surance on a horse against loss by lightning while in use on the owTier's farm, is not limited to a loss happening on the f ami owned by the insured when the insurance was effected ;'^^ and insurance on a phaeton, described as "contained in a barn," has been held to cover it while at a carriage shop for repairs."^ Explosion. Insurance against loss by fire includes all loss from ex- plosions which are the direct result of an antecedent fire, unless the provisions of the policy specifically exempt the in- Throop, 22 Mich. 146, 7 Am. Rep. 638; Towne v. Fire Ass'n of Phila- delphia, 27 111. App. 433. '"Sawyer v. Dodge County Mut. Ins. Co., 37 Wis. 503; Haws v. Fire Ass'n of Philadelphia, 114 Pa. St. 431; Minneapolis Threshing Mach. Co. V. Firemen's Ins. Co., 57 Minn. 35, 23 L. R. A. 576; Soli V. Farmers' Mut. Ins. Co., 51 Minn. 24; De Graff v. Queen Ins, Co., 38 Minn. 501. " Boright V. Springfield F. & M. Ins. Co., 34 Minn. 352; Peterson v. Mississippi Valley Ins. Co., 24 Iowa, 494. "McCluer v. Girard F. & M. Ins. Co., 43 Iowa, 349; Longue- ville V. Western Assur. Co., 51 Iowa, 553; Trade Ins. Co. v. Barra- cliff, 45 N. J. Law, 543. See, also, Noyes v. Northwestern Nat. Ins. Co., 64 Wis. 415, 54 Am. Rep. 631, where a company, which had as- sured a dolman as wearing apparel, and described by the policy as contained in a designated dwelling house, was held liable for its loss while at a store for repairs; and Niagara Fire Ins. Co. v. El- liott, 85 Va. 962, where carriages, described in a policy as contained in a certain building, used for livery stables, were held to be cov- ered while in the shop for repairs, Everett v. Continental Ins. Co.,. 21 Minn. 76. § 150 THE RISK ASSUMED. 369 surer from loss and damage caused by explosion.'^^ Where the policy provides that the insurer is not to be liable for any loss which occurs by explosion, it has been decided in several instances that the insurer is not liable for any loss by fire which occurs by reason of the explosion.'^ ^ But in Commer- cial Ins. Co. V. Robinson/^ it was held that the condition secured the exemption from loss caused by explosion, but not from liability for loss by fire caused by explosion. Under a stipulation that there should be no liability for loss by light- ning or explosion unless fire ensues, and then for loss or dam- age by fire only, the insurer is liable for loss resulting from an explosion caused by a- fire Avhich broke out in the insured premises. '^^ An exemption from liability for loss by explo- sions of any kind, does not include a loss of a property in- sured by fire resulting from the explosion of a lighted lamp.'^'^ Where a policy provides that the insurer shall not be liable for loss caused by explosion of any kind, unless fire ensues, and then for loss by fire only, and an explosion destroys the building, after which a fire occurs, the insurer is only liable for the loss caused by the fire.*^* Damage caused by the ex- plosion of a cloud of starch dust, arising from starch in a dextrine kiln, upon which a stream from an extinguisher is turned in an attempt to put out the fire, which is burning in some charged starch in the kiln, is a loss by fire, and is not "Renshaw v. Fireman's Ins. Co., 33 Mo. App. 394; Commercial Ins. Co. V. Robinson, 64 111. 265. '*Briggs V. North American & M. Ins. Co., 53 N. Y. 446; United L. F. & M. Ins. Co. v. Foote, 22 Ohio St. 340; Mutual Ins. Co. v. Tweed, 7 Wall. (U. S.) 44. " 64 111. 265. '» Washburn v. Miami Valley Ins. Co., 2 Fed. 633. " Heffron v. Kittanning Ins. Co., 132 Fa. St. 580. ''Briggs V. North American & M. Ins. Co., 53 N. Y. 446; Briggs v. North British Met-cantile Ins. Co., 66 Barb. (N. Y.) 325. KERR, INS.— 24 370 THE CONTRACT AND ITS IXCIDENTS. § 150 covered by a policy of insurance against explosion and acci- dent, which expressly excludes liability for loss or damage by fire, resulting from any cause whatever."^^ Damage to goods by an explosion of gas is not a loss by fire, within the meaning of an insurance policy, where the goods were not burned, but damaged by the falling of a floor caused by the explosion, although the explosion was produced by the light- ing of a match. ^*^ As to explosions caused by the progress of a precedent fire, the cases generally hold that where a fire, the effects of which are covered by a policy, has occurred, and is in progress, and an explosion takes place as a result of the fire, thereby in- creasing the loss, the whole damage is within the risk insured, although the policy exempts the insurer from liability caused by explosions. But it is otherwise if the explosion was not caused by a preceding fire.^^ The insurer is liable for the destruction of goods caused by the blowing up with gun- powder of the building in which they were situated, by order of the municipal authorities, for the purpose of preventing a - '"American Steam Boiler Ins. Co. v. Ctiicago Sugar Refining Co. (C. C. A.), 57 Fed. 294. «" Heuer v. Northwestern Nat. Ins. Co., 144 111. 393, 19 L. R. A. 594. **La Force v. "Williams City Fire Ins. Co., 43 Mo. App. 518; Trans- Atlantic Fire Ins. Co. v. Dorsey, 56 Md. 70, 40 Am. Rep. 403. See, also, as to loss by explosion, John Davis & Co. v. Insurance Co. of North America, 115 Mich. 382, 73 N. W. 393; Scripture v. Lowell Mut. Fire Ins. Co., 10 Cush. (Mass.) 356, 57 Am. Dec. Ill; Caballero V. Home Mut. Ins. Co., 15 La. Ann. 217; Waters v. Merchants' Louisville Ins. Co., 11 Pet. (U. S.) 213; Dows v. Faneuil Hall Ins. Co., 127 Mass. 346, 34 Am. Rep. 384; Boatman's F. & M. Ins. Co. v. Parker, 23 Ohio St. 85, 13 Am. Rep. 228; Imperial Fire Ins. Co. v. American M. U. Exp. Co., 95 U. S. 227; Renshaw v. Missouri State Mut. F. & M. Ins. Co., 103 Mo. 595, 23 Am. St. Rep. 904; Hillier v. Al- legheny County Mut. Ins. Co., 3 Pa. St. 470, 45 Am. Dec. 656; Lynn Gas & Electric Co. v. Meriden Fire Ins. Co., 158 Mass. 570, 20 L. R. A. 297. § 150 THE RISK ASSUMED. 371 spread of the conflagi'ation, unless specially exempted there- from.^^ Fallen Walls and Building. If, under a policy providing that if the building insured shall fall, except by fire, the insurance shall cease, a minor portion of the walls fall, the building has not fallen within the meaning of the policy, and if destroyed by fire while in that condition, the insurer is liable for the loss.^^ Other- wise if the greater portion of the walls fall before the fire begins.^^ The words "if a building shall fall except as a result of fire the insurance by this company shall immediately oease and determine" are to be given their ordinary meaning, and so long as the building stands, no matter how much it may be damaged, the liability of the insurer remains.^^ Where a building adjacent to the one insured (the wall be- tween them being a partition wall) caught fire and was par- tially consumed, and as the direct result of such fire fell, carrying with it the partition wall and a part of the insured building, the fall of the insured building was the result of, and a direct loss or damage by fire, although no part of it ignited or was consumed.^® '^'City Fire Ins. Co. v. Corlies, 21 Wend. (N, Y.) 367, 34 Am. Dec. 258; Gfeenwald v. Insurance Co., 3 Phila. (Pa.) 323; Phillips v. Protection Ins. Co., 14 Mo. 220. "Breuner v. Liverpool & L. & G. Ins. Co., 51 Cal. 101, 21 Am. Rep. 703. «*Huck V. Globe Ins. Co., 127 Mass. 306, 34 Am. Rep. 373. ^ Fireman's Fund Ins. Co. v. Congregation Rodeph Sholom, 80 111. 558. »» Ermentrout v. Girard F. & M. Ins. Co., 63 Minn. 305, 30 L. R. A. 346. See, also, Cuesta v. Royal Ins. Co., 98 Ga. 720, 27 S. E. 172; Teutonia Ins. Co. v. Beard, 74 111. App. 496; Lewis v. Springfield F. & M. Ins. Co., 10 Gray (Mass.), 159; Nave v.. Home Mut. Ins. Co., 37 Mo. 430. 372 THE COJSTTKACT AND ITS INCIDENTS. § 150 Bemoval of Goods. Wliere a ]3olicj requires the assured, in case of exposure of goods to loss or damage by fire, to use all possible diligence to preserve bis goods, and provides in case of bis failure to do so tbat tbe insurer sball not be liable for tbe consequences of bis neglect, if tbe assured removes tbe goods, tbe circum- stances at tbe time of tbe removal must determine tbe neces- sity tberefor, and if tbe removal was justifiable be is entitled to recover tbe expense of removal, and consequent loss or damage. ^'^ Tbe inquiry sbould be, "wbat was prudent, and seemingly required, on tbe part of tbe insured, from tbe im- pending peril at tbe time of tbe removal.^ ^ Loss by Lightning. Ligbtning, in its ordinary and popular meaning, includes any sudden and violent discbarge of electricity, occurring in tbe course of nature, between positively and negatively elec- trified bodies, usually developing in its course tbe pbenom- ena of ligbt, beat, and disruptive force.^^ In tbe absence of stipulations to tbe contrary, damage caused by ligbtning, wbicli produces ignition, is covered by an insurance against fire. Otberwise if no combustion ensues.^^ Damages on a building shattered by ligbtning, and tbe destruction of wbicb is completed by tbe wind, must be limited to tbe direct loss caused by ligbtning, excluding tbe additional damage, «'Case V. Hartford Fire Ins. Co., 13 111. 676, 3 Bennett Fire Ins. Cas. 349. ^'Lieber v. Liverpool, L. & G. Ins. Co., 6 Bush (Ky.), 639, 99 Am. Dec. 695. See, also, White v. Republic Fire Ins. Co., 57 Me. 91, 2 Am. Rep. 22; Cincinnati Mut. Ins. Co. v. May, 20 Ohio, 212; Bales- tracci v. Firemen's Ins. Co., 34 La. Ann. 844; Holtzman v. Franklin Ins. Co., 4 Cranch, C. C. 295, Fed. Cas. No. 6,649. *° Spensley v. Lancashire Ins. Co., 54 "Wis. 433. "" Kenniston v. Merrimack County Mut. Ins. Co., 14 N. H. 341, 40 Am. Dec. 193; Babcock v. Montgomery County Mut. Ins. Co., 4 N. Y. 326; Scripture v. Lowell Mut. Fire Ins. Co., 10 Cush. (Mass.) 360. § 150 THE JIISK ASSUMED. 373 where the policy covers damage by lightning, and expressly excludes damage by cyclone, tornado or wind storm.^^ Dam- age caused by lightning striking a powder house, which ex- jolodes and destroys the insured premises, is not covered by a policy against damage caused by lightning, and excluding , loss caused by explosion.^^ Damage by Water. The insurer is liable for damage caused by water thrown or used in an endeavor to save and protect the insured prop- erty,^^ but not for damage resulting from failure of the in- sured to properly care for the damaged property after it had been wet, wdiere the policy requires him to uSe his best endeavors to protect the pro2>erty from damage at and after the fire, and exempting the company from liability caused by his failure so to do.^'* Wind, Tornado and Hurricane. A policy insuring against damage by lightning, but ex- pressly excluding all damage by cyclone, tornado or wind storm, does not cover the additional damage done by wind after the building has been shattered by lightning.®^ It would seem within the rules above laid down, that an insurer will be liable for damage caused by the blowing down of walls which have been weakened by the peril insured against ; but the contrary has been held.®® »^ Beakes v. Phoenix Ins. Co., 143 N. Y. 402, 26 L. R. A. 267. »' German Fire Ins. Co. v. Roost, 55 Ohio St. 581, 45 N. E. 1097. °' Whitehurst v. Fayetteville Mut. Ins. Co., 6 Jones (N. C), 352; Geisek v. Crescent Mut. Ins. Co., 19 La. Ann. 297; New York & B. D. Express Co. v. Traders' & M. Ins. Co., 132 Mass. 381. But see Cannon v. Phoenix Ins. Co., 110 Ga. 563, 35 S. E. 775. "^Sisk V. Citizens' Ins. Co., 16 Ind. App. 565, 45 N. E. 804. ^' Beakes v. Phoenix Ins. Co., 143 N. Y. 402, 26 L. R. A. 267. "'' Gaskarth v. Law Union Fire Ins. Co. (Manchester), 6 Ins. Law 37i THE CONTEACT AND ITS INCIDENTS. § 150 Smoke. An insurance against "all direct loss or damage by fire" does not cover damage arising from smoke and soot escaping from a defective stove-pipe, and coming from a fire intention- ally bnilt in a stove, and kept confined therein; nor damage caused by water nsed in cooling the ceiling, heated by the pipe, if no actual ignition takes place, unless the vp^ater was necessary to prevent ignition.^ '^ An ordinary fire insurance policy does not cover a loss caused by steam escaping from a break in a steam heating apparatus. The word fire does not include heat of a degree too low to cause ignition.^^ But damage done by smoke resulting from actual ignition of the insured j)roperty, would be the direct and proximate result of fire. Loss by Theft. An ordinary fire policy covers loss by theft during the prog- ress of a fire in the insured building ;^^ and loss by theft, v/hich occurs during a necessary and prudent removal of goods to save them from impending destruction from a fire in the adjoining building. ^^*^ Sometimes the policy expressly excludes loss by theft during the fire.-'*'-^ A stipulation that the insurer will not "be liable for any loss or damage to goods contained in the show window when the loss or damage is caused by the light in the show window, nor shall- the com- pany be liable for loss by theft," applies to theft from the show J. 159. See, also, Pelican Ins. Co. v. Troy Co-operative Ass'n, 77 Tex. 225. "' Cannon v. Phoenix Ins. Co., 110 Ga. 563, 35 S. E. 775. »' Gibbons v. German Ins. & Sav. Institution, 30 111. App. 263. ""Tilton V. Hamilton Fire Ins. Co., 1 Bosw. (N. Y.) 367. '™ Newmark v. Liverpool & L. F. & L. Ins. Co., 30 Mo. 160, 77 Am. Dec. 608; Whitehurst v. Fayetteville Mut. Ins. Co., 6 Jones (N. C), 352; Talamon v. Home & Citizens' Mut. Ins. Co., 16 La. Ann. 426. "^Webb V. Protection & A. Ins. Co., 14 Mo. 3; Fernandez v. Mer- chants' Mut. Ins. Co., 17 La. Ann. 131. § 150 THE EISK ASSUMED. 375 ■windows, and not to theft committed in the necessary removal of the goods, to save them from an impending fire.^°^ Riot, Mobs, etc. An exemption from liability for loss by fire caused by mobs or riots, does not include th& destruction of a bridge by order of the military authorities to prevent the advance of an army;^°^ nor the burning of goods to prevent them from falling into the hands of rebels. ^°^ But an exemption from liability for fire which happened by means of invasion or military or usurped power, relieves the insurer where the property is seized and burned by rebels ;^^^ or by a mob during a riot.i°« Fraud and Negligence. The doctrine appears to be well settled by the authorities that a loss by fire occasioned by the mere fault and negligence of the insured party, his servants or agents, without fraud, is a loss protected by the policy, and as such recoverable from ^°=Leiber v. Liverpool, L. & G. Ins. Co., 6 Bush (Ky.), 639, 99 Am. Dec. 695. The value of insured goods, lost or stolen while being re- moved from a burning building, may be recovered in an action on the policy. Independent Mut. Ins. Co. v. Agnew, 34 Pa. St. 96, 75 Am. Dec. 638. "^ Harris v. York Mut. Ins. Co., 50 Pa. St. 341. ^°* Boon V. Aetna Ins. Co., 40 Conn. 575. "= Barton v. Home Ins. Co., 42 Mo. 156, 97 Am. Dec. 329. '""Langdale v. Mason, 2 Marshall, Ins. 792. See, also, on this question, Portsmouth Ins. Co. v. Reynolds* Adm'r, 32 Grat. (Va.) 613; Strauss v. Imperial Fire Ins. Co., 16 Mo. App. 555, 94 Mo. 182, 4 Am. St. Rep. 368; Aetna Fire Ins. Co. v. Boon, 95 U. S. 117; Lycom- ing Fire Ins. Co. v. Schwenk, 95 Pa. St. 89, 40 Am. Rep. 629; Dupin V. Mutual Ins. Co., 5 La. Ann. 482; Germania Fire Ins. Co. v. Deck- ard, 3 Ind. App. 361, 28 N. E. 868; City Fire Ins. Co. v. Corlies, 21 Wend. (N. Y.) 367, 34 Am. Dec. 258. In Field v. City of Des Moines, 39 Iowa, 575, 18 Am. Rep. 46, it was held that a city was not liable for buildings destroyed by its officers, to prevent the spread of a fire. 376 THE CONTRACT AND ITS INCIDENTS. § 150 the insurer. ^°^ Generally speaking, before negligence is available as a ground of defense, there must be evidence of such a degree of negligence as will evince a corrupt de- sign. ^*^® If, however, the negligence is so culpable as to amount to fraud or positive misconduct, the insurer is not liable. ^°®^ An insured who fails to put out a fire when he can, is guilty of corrupt negligence. Where he prevents others from putting it out he is guilty of such fraudulent misconduct as will prevent a recovery. ^^*^ The insurer cannot be held for damage caused by the negligence of the insured, where due care and reasonable effort to save and protect from damage are required of him.-'^^ ""' Waters v. Merchants' Louisville Ins. Co., 11 Pet. (U. S.) 213; General Mut. Ins. Co. v. Sherwood, 14 How. (U. S.) 351, 3 Kent, Comm. 376; Gove v. Farmers' Mut. Fire Ins. Co., 48 N. H. 41, 97 Am. Dec. 572. i°«Catlin V. Springfield Fire Ins. Co., 1 Sumn. 434, Fed. Cas. No. 2,522; Hynds v. Schenectady County Mut. Ins. Co., 16 Barb. (N. Y.) 119j Chandler v. Worcester Mut. Fire Ins. Co., 3 Cush. (Mass.) 328; Williams v. New England Mut. Fire Ins. Co., 31 Me. 219; Huckins V. People's Mut. Fire Ins. Co., 31 N. H. 238; Franklin Ins. Co. v. Humphrey, 65 Ind. 557; Gates v. Madison County Mut. Ins. Co., 5 N. Y. 469, 55 Am. Dec. 360; Mathews v. Howard Ins. Co., 11 N. Y. 9. 1°=' Citizens' Ins. Co. v. Marsh, 41 Pa. St. 386; Gove v. Farmers' Mut. Fire Ins. Co., 48 N. H. 41, 97 Am. Dec. 572; Western Horse & Cattle Co. V. O'Neill, 21 Neb. 548; Chandler v. Worcester Mut. Fire Ins. Co., 3 Cush. (Mass.) 328, and cases ante. See, also. Perry v. Mechanics' Mut. Ins. Co., 11 Fed. 478; Feibelman v. Manchester Fire Assur. Co., 108 Ala. 180, 19 So. 540; Ellsworth v. Aetna Ins. Co., 89 N. Y. 186; Adair v. Southern Mut. Ins. Co., 107 Ga. 297, 45 L. R. A. 204. ""Phoenix Ins. Co. v. Mills, 77 111. App. 546; Willis v. Germania & Hanover Fire Ins. Co., 79 N. C. 285. "^Sisk V. Citizens' Ins. Co., 16 Ind. App. 565, 45 N. E. 804; Ells- worth V. Aetna Ins. Co., 89 N. Y. 186; Campbell v. Monmouth Mut. Fire Ins. Co., 59 Me. 430; Wolters v. Western Assur. Co., 95 Wis. 265, 70 N. W. 62; Case v. Hartford Fire Ins. Co., 13 111. 676; 3 Ben- nett Fire Ins. Cas. 551; Devlin v. Queen Ins. Co., 46 Up. Can. Q. B. 611; Leiber v, Liverpool, L. & G. Ins. Co., 6 Bush (Ky.), 639, 99 Am. Dec. 695. 11 ^ 150 THE EISK ASSUMED. 377 Life and Accident Risks. The Risk — Proximate Cause. In policies of insurance against perils or events other than fire, the same rule concerning direct and immediate, or proxi- mate cause and result obtains. In life policies the liability of the insurer is usually fixed and certain. In accident poli- cies it is often necessary to investigate the law of cause and effect. When the damage in any particular case is a direct and inevitable consequence of the occurrence of the peril in- sured against, the insurers are liable, though the immediate agent was not such peril. All the consequences flowing from the peril insured against, or incident thereto, are properly attributable to the peril itself. Thus, if a physical condition is the result of an accident which makes necessary a surgical operation resulting in death, the accident, and not the opera- tion, is the proximate cause of death. ^^^ A pistol Avound ■causing tetanus, with great bodily pain, and delirium or fever, may be found to be- the proximate cause of death, Avhere a person insured against accidents, excluding suicide, sane or insane, cuts his throat in a period of delirium or state of frenzy which is uncontrollable.^^^ So death from apoplexy, result- '" Travelers' Ins. Co. v. Murray, 16 Colo. 296. "=• Travelers' Ins. Co. v. Mellck (C. C. A.), 65 Fed. 178. In tbe opinion, Judge Sanborn said: "In this case the sequence of events is neither unnatural nor improbable, and the chain of causation seems to us unbroken. It was not unnatural nor improbable that the shot-wound in the foot should produce great pain and fever. It was not unnatural nor improbable that it should produce tetanus, and that tetanus should produce uncontrollable pain, fever, and delirium. It was neither unnatural nor improbable that a man in the torture of uncontrollable agony, and in a delirium or fever, should be irresistibly impelled to do himself an injury in an at- tempt to abate his suffering, or that if he was a physician, and fa- miliar with the use of a scalpel, near at hand, he should seize and use that to relieve his pain. * * * -phe jury * * * might well 378 THE CONTRACT AND ITS INCIDENTS. § 150 ing from external, visible and bodily injury, occasioned by an accident, is the result of such accident. •^■^^ And death from blood poisoning, if the result of the inoculation of some substance into a wound at the time of an accident which causes the wound, is the result of the accident. -^^^ The as- sault on a woman by a drunken man who is killed by her hus- band in defending her, is the proximate cause of his death, Avithin a stipulation excepting liability for death in violation of law.^^^ And engaging in a horse race is the proximate cause of the death of one killed in a collision during the race;^-''^ and an accidental fall, causing peritonitis which results in death is the proximate cause of the death.^^^ Accidental death by drowning is caused indirectly by dis- ease, within the meaning of an exception against death caused directly or indirectly by disease, if the drowning is the re- sult of a fall into the water, and the fall is the result of the find that the shot-wound was the efficient cause 'which set in mo- tion the train of events that in their natural sequence produced the cutting and the death, the causa causans, without which neither would have been. * * * j^ the absence of the shot-wound, the cutting would never have been. That was dependent entirely for its existence and for its effect upon the original accident, and was a mere link in the chain of causation between that and the death. The intervening cause that will prevent a recovery for a death which resulted from an accidental bodily injury, indemnified against by contract, must be a new and independent cause, which interrupts the natural sequence of events, turns aside their course, prevents the natural and probable result of the original accidental injury, and produces a different result that could not reasonably be anticipated. It may not be a mere effect of that injury, produced by it, and de- pendent upon it for both its existence and its effect," — citing Mil- waukee & St. P. Ry. Co. V. Kellogg, 94 U. S. 469. '" National Ben. Ass'n v. Grauman, 107 Ind. 288, 7 N. E. 233. "'Martin v. Equitable Ace. Ass'n, 61 Hun (N. Y.), 467. "« Bloom V. Franklin Life Ins. Co., 97 Ind. 478, 49 Am. Rep. 469. "'Travellers' Ins. Co. v. Seaver, 19 Wall. (U. S.) 531. "' Freeman v. Mercantile Mut. Ace. Ass'n, 156 Mass. 351, 17 L. R. A. 753. § 150 THE RISK ASSUMED. 379 disease. ^^^ But intoxication is not necessarily the proximate cause of the death of one who is killed by being thrown from a wagon while intoxicated. ^^^ One killed after he has desisted from an . encounter, and while he was retreating, does not die in violation of law.^-^ Where one is trying to take a team of horses from another for debt, and is killed in so doing, the question of proximate cause is for the jury.^^^ An employe of a railway company, while going home im- mediately after quitting work, is still in the discharge of his duties, and in the ser\ice of the company, within the meaning of a contract insuring him while in the discharge of his duty.^^^ If t^\^ parties willingly engage in an encounter, death re- sulting therefrom is not covered by an accident policy whicli excepts from the risks death or injury caused by a fight. ^^* The words "total and permanent loss of sight of both eyes,'* mean the loss of eyesight which the insured had Avhen the policy was written. ^^^ The tearing off of three fingers, and part of another, and the cutting of the hand, destroying the joint of the thumb, may be found by a jury to constitute a loss of the hand within the meaning of an accident policy. ^^"^ Where the provisions of a policy have, prior to its issuance, ""Manufacturers' Ace. Ind. Co. v. Dorgan (C. C. A.), 58 Fed. 945. '■-" National Ben. Ass'n v. Bowman, 110 Ind. 355. '^' Harper's Adm'r v. Phoenix Ins. Co., 19 Mo. 506. ^-- Bradley v. Mutual Ben. Life Ins. Co., 45 N. Y. 422. '-'Kinney v. Baltimore & O. E. R. Ass'n, 35 W. Va. 385, 15 L. R. A. 142. '^* Gresham v. Equitable Ace. Ins. Co., 87 Ga. 497, 13 L. R. A. 83S. '"Humphreys v. National Ben. Ass'n, 139 Pa. St. 264, 11 L. R. A.- 564. Compare Maynard v. Locomotive E. Mut. Life & Ace. Ins. Ass'n, 16 Utah, 145, 51 Pac. 259, 27 Ins. Law J. 208. ''^Lord V. American Mut. Ace. Ass'n, 89 Wis. 19. As to loss of foot, see Stevers v. People's Mut. Ace. Ins. Ass'n, 150 Pa. St. 132, 16 L. R. A. 446; two entire feet, Sheanon v. Pacific Mut. Life Ins. Co., 77 Wis. 618, 9 L. R. A. 685; loss of sight of both eyes, Humphreys v. National Ben. Ass'n, 139 Pa. St. 264, 11 L. R. A. 564. 380 THE CONTRACT AND ITS INCIDENTS. § 150 "been given a uniform judicial construction by tlie courts of last resort of several states, it will be presumed that that interpretation of the contract was intended by the parties to it.^^^ An injury received by a workman in iron and steel works, though caused by the negligence of an independent crew engaged in erecting an addition to the works where ho was employed, is included within the liability under a policy ■covering injuries in "all operations connected with the busi- ness of iron and steel works." ^^^ The term "voluntary over- •exertion" means conscious or intentional over-exertion, or a reckless disregard of the probable consequences of the act.^^^ A certificate of membership in an organization guaranteeing payment of a given sum in case of death or total disability, will be construed as an ordinary contract of insurance against death and total disability from whatever cause. ^^^ Accident. The word "accident," when used to express a result pro- duced by human action, is generally understood to mean a thing done, or a condition caused or produced without de- sign, or unintentional. It includes any event w^hich takes place without the foresight or expectation of the person acted upon or affected thereby. It is an imexpected event, which happens as by chance, or which does not take place according to the usual course of things. "Accidental" sig- nifies happening by chance, or unexpectedly, taking place not according to the usual course of things, casual, fortui- tous; the opposite of "accident" is design, volition, intent. The term "accidental" is used in insurance in its ordinary, >" Fidelity & Casualty Co. v. Lowenstein (C. C. A.), 97 Fed. 17. "^ Hoven v. Employers' Liability Assur. Corp., 93 Wis. 201. "" Rustin V. Standard Life & Ace. Ins. Co., 58 Neb. 792, 79 N. W. 712, 46 L. R. A. 253. "» Murdy v. Skyles, 101 Iowa, 549, 70 N. W. 714. § 150 THE EISK ASSUMED. 381 popular sense. If a result is sucli as follows from ordinary means, voluntarily employed, in a not unusual way, it can- not be called a result effected by accidental means. But if^ in the act which precedes an injury, something unforeseen^, unexpected, unusual, occurs which produces injury, then the injury has resulted from accidental means. ^-"^^ It may in- clude an injury received in a common-law affray, without the fault of the person injured. ^^^ ^j^^ injury not antici- pated, and not naturally to be expected by the insured, though intentionally inflicted by another, is accidental ;^^^ and death by hanging at the hands of a mob;^^'* and an abrasion of the skin of a toe, unexpectedly caused by the wearing of a new shoe;^^^ and an involuntary death by drowning ;^^*' and the death of a person who is shot by one whom he is trying to eject by force from a hotel office, where the deceased made the attempt witliout knowledge that the aggressor was araied;^^'^ and death resulting from the excitement of a runaway ;^^^ and death from blood-poisoning superinduced by the sting of an insect. ^-^^ But the death of one caused "> United States Mut. Ace. Ass'n v. Barry, 131 U. S. 100; Bostwick V. Stiles, 35 Conn. 198; Schneider v. Provident Life Ins. Co., 24 Wis. 30; Paul v. Travelers' Ins. Co., 112 N. Y. 472, 20 N. E. 349; North American L. & A. Ins. Co. v. Burroughs, 69 Pa. St. 43; Railway- Officials' & Employees' Ace. Ass'n v. Drummond, 56 Neb. 235, 76 N. W. 562, 50 Cent. Law J. 5. "' Supreme Council, O. C. F., v. Garrigus, 104 Ind. 133. "= Accident Ins. Co. of North America v. Bennett, 90 Tenn. 256. "' Fidelity & Casualty Co. v. Johnson, 72 Miss. 333, 30 L. R. A. 206. ""Western Commercial Travelers' Ass'n v. Smith (C. C. A.), 85. Fed. 401. "" Peele v. Provident Fund Soc, 147 Ind. 543, 44 N. E. 661. "^ Lovelace v. Travelers' Protective Ass'n, 126 Mo. 104. "" McGlinchey v. Fidelity & Casualty Co., 80 Me. 251. "» Omberg v. United States Mut. Ace. Ass'n, 101 Ky. 303, 40 S. W. 909. 382 THE CONTRACT AND ITS INCIDENTS. § 150 bj a duel is not accidental ;^^° nor death resulting from a rup- ture of an artery caused by one attempting to close a win- dow, if he did not fall, slip, or lose liis balance. ^^^ The death of a horse was not caused by disease or accident, where it was suffering from an incurable disease, and was killed two hours before the expiration of the policy, but its death was not required as an act of mercy to relieve its suffer- ing. ^^^ The law will presume that an injury was not self- inflicted ;'^^^ but in an action on an accident policy the plain- tiff must prove by preponderance of the evidence that the injury was accidental, because the policy only insures against such injury, and he who affirms must prove. ■^'^^ ""Taliaferro v. Travelers' Protective Ass'n, 80 Fed. 368, 49 U. S. App. 27~5. "^ Feder v. Iowa State T. M. Ass'n, 107 Iowa, 538, 78 N. W. 252. ^^ Tripp V. Northwestern Live Stock Ins. Co., 91 Iowa, 278, 59 N. W. 1. See, also, Klopp v. Bernville Live Stock Ins. Co., 1 Woodw. (Pa.) 445. "^ Carnes v. Iowa State T. M. Ass'n, 106 Iowa, 281, 76 N. W. 683. "^Greenleaf, Ev. (13tli Ed.) 83; Travellers' Ins. Co. v. McConkey, 127 U. S. 661; Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45, 43' N. E. 405. "A person might voluntarily and knowingly expose himself to a contagious disease, or to excessive heat or cold, or to sudden' changes of temperature, or might adopt a strange diet or mode of living, but, if death resulted, it would not be due to an accidental cause, although wholly undesigned, unforeseen, and unexpected. So, if a person suffering from some weakness or disease should subject himself to conditions which would not injuriously aifect persons in ordinary health, but would be dangerous to him, and injury result, it would not be due to an accidental cause. For example, if a person having a diseased heart should take violent exercise voluntarily, and death should result, the cause would not be accidental. * * * Although a result may not be designed, foreseen, or expected, yet if it be the natural and direct effect of acts voluntarily done, or of conditions voluntarily assumed, it cannot be said to be accidental." Feder v. Iowa State T. M. Ass'n, 107 Iowa, 538, 78 N. W. 252; South- ard V. Railway Passengers' Ass'n Co., 34 Conn. 574; Bacon v. United States Mut. Ace. Ass'n, 123 N. Y. 304, 25 N. E. 399. I § 150 THE RISK ASSUMED. 383 External, Violent, and Accidental Means. Suicide by an insane person is -within the terms of a policy insuring against bodily injuries effected through external, violent, and a'.cidental means, even though death or disa- bility by suicide of self-inflicted injuries be excepted;^'*' and death from asphyxiation, caused by deadly gas in a shallow well into which the assured descends to fix a pump i^"*® and death by unconsciously and unintentionally inhaling gas while asleep ;^^'^ and the intentional killing of one by another without any fault or expectation of the former ;^'*^ and death at the hands of a mob;^^^ and death produced by the accidental drinking of poison ;^^*^ and death by choking on food, which, in an attempt to swallow it, accidentally passes into the wind-pipe. The means which caused the injury, and not the injury itself, are referred to. It must be sho%vn that the death was the result not only of external and violent, but of accidental means as well.^^^ Under a policy insuring against bodily injury caused by '« Accident Ins. Co. v. Crandal, 120 U. S. 527. Otherwise if the policy exempted death by his own hand, sane or insane: Streeter v. Western Union Mut. L. & A. Soc, 65 Mich. 199, 31 N. W. 779. "" Pickett V. Pacific Mut. Life Ins. Co., 144 Pa. St. 79, 13 L. R. A. 661. "'Fidelity & Casualty Co. v. Lowenstein (C. C. A.), 97 Fed. 17. "'American Ace. Co. v. Carson, 99 Ky. 441, 36 S. W. 169, 25 Ins. Law J. 786. ""Fidelity & Casualty Co. v. Johnson, 72 Miss. 333. ™ Healey v. Mutual Ace. Ass'n, 133 111. 556, 9 L. R. A. 371. •"American Ace. Co. v. Reigart, 94 Ky. 547. See, also, Meyer v. Fidelity & Casualty Co., 96 Iowa, 378, 65 N. W. 328, 25 Ins. Law J. 346 (injury from a fall due to a temporary and unexpected dis-' order) ; United States Mut. Ace. Ass'n v. Hubbell, 56 Ohio St. 516, 47 N. E. 544 (death by accidental drowning); Omberg v. United States Mut. Ace. Ass'n, 101 Ky. 303 (death from poison caused by sting of an insect) ; Standard Life & Ace. Ins. Co. v. Schmaltz, 66 Ark. 588, 53 S. W. 49 (the rupture of a blood vessel in the stomach, causing death, and resulting from a sudden wrench of the body). 3S-i TUB CONTKACT AND ITS INCIDENTS. § 150' external, violent, and accidental means, in case of death from such injuries independent of all other canses, and exempting tlie insurer from liability for injuries, fatal or otherwise, resulting wholly or in part from poison, or any- thing accidentally or otherwise taken, administered, or in- haled, it is held that death caused by blood-poisoning from the effects of the absorption into the system of septic poison,, evolved by the propagation of germs in cotton, inserted by a dentist in wounds caused by the removal of the teeth from the mouth of the deceased, to stop hemorrhage, comes within the exception.^^- Sunstroke or heat prostration is not a bodily injury sus- tained through external, violent or accidental means, where liability from disease or bodily infirmity is excepted ;^^^ nor death from a germinal disease resulting from contact of the insured with putrid animal matter ;^^^ nor death from an over-dose of morphine, intentionally taken ;'^^ nor rupture caused by jumping from a car, where the act is voluntary ;^^^ nor death resulting from an epileptic fit.^^^ Disease and Bodily Infirmity. Death from a malignant pustule caused by contact with diseased animal matter, is death from disease.^^^ Likewise death from sunstroke or heat prostration. ^^^ The words ^"Kasten v. Interstate Casualty Co., 99 Wis. 73, 74 N. W. 534; Early v. Standard Life & Ace. Ins. Co., 113 Mich. 58, 71 N. W. 500; Westmoreland v. Preferred Ace. Ins. Co., 75 Fed. 244. ^" Dozier v. Fidelity & Casualty Co., 46 Fed. 446, 13 L. R. A. 114. '^^ Bacon v. United States Mut. Ace. Ass'n, 123 N. Y. 304. "^Carnes v. Iowa State T. M. Ass'n, 106 Iowa, 281, 76 N. W. 683. ^'^^ Southard v. Railway Passengers' Assur. Co., 34 Conn. 574. '" Tennant v. Travellers' Ins. Co., 31 Fed. 322. Compare Larkin v. Interstate Casualty Co., 43 App. Div. 365, 60 N. Y. Supp. 205. ^'^ Bacon v. United States Mut. Ace. Ass'n, 123 N. Y, 304. 1^" Dozier v. Fidelity & Casualty Co., 46 Fed. 446. § 150 THE RISK ASSUMED. 385 "disease," or "bodily infirmity," as used in an accident pol- icy exempting the insurer from injuries caused thereby, mean practically the same thing. They refer to an ail- ment, or disorder, or an unhealthy condition resulting from some functional disturbance, which tends to undermine the constitution. ^^^ Outward and Visible Means of Injury. If the injury is visible soon after an accident, and is the result of the accident, it is not within the provision exempt- ing the insurer from injuries "of which there is no visible, external mark upon the body of the insured ;"^^^ as where there is a discoloration of the arm and shoulder. -^^^ Total Disability. Total disability must, from the necessity of the case, be a relative matter, and must depend largely upon the occupa- ""Cushman v. United States Life Ins. Co., 70 N. Y. 72; North Western Mut. Life Ins. Co. v. Heimann, 93 Ind. 24; Pudritzky v. Supreme Lodge, K. of H., ,76 Mich. 428, 43 N. W. 373; Meyer v. Fi- delity & Casualty Co., 96 Iowa. 378, 65 N. W. 328. For definition of "sickness" and "good health," see Barnes v. Fi- delity Mut. Life Ass'n, 191 Pa. St. 618, 43 Atl. 341 ; Mutual Life Ins. Co. V. Simpson, 88 Tex. 333, 28 L. R. A. 765; White v. Provident Sav. Life Assur. Soc, 163 Mass. 108, 27 L. R. A. 398. See, also, c. 11, "Warranties and Representations." 1"^ Pennington v. Pacific Mut. Life Ins. Co., 85 Iowa, 468, 52 N. W. 482, 45 Cent. Law J. 148, 39 Am. St. Rep. 306. ''- Thayer v. Standard L. & A. Ins. Co., 68 N. H. 577, 41 Atl. 182. See, also. National Ben. Ass'n v. Grauman, 107 Ind. 288; Railway Passenger Assur. Co. v. Burwell, 4 Bigelow, L. & A. Rep. 49; Ste- phens V. Railway Oflacials' & Employes' Ace. Ass'n, 75 Miss. 84, 21 So. 710, 26 Ins. Law J. 540; Bayless v. Travellers' Ins. Co., 14 Blatchf. 143, Fed. Cas. No. 1,138; Rodey v. Travelers' Ins. Co., 3 N. M. 316, 9 Pac. 348; Paul v. Travelers' Ins. Co., 112 N. Y. 472, 20 N. E. 347; United States Mut. Ace. Ass'n v. Newman, 84 Va. 52, 3 S. E. 805; Eggenberger v. Guarantee Mut. Ace. Ass'n, 41 Fed. 172. KERR, INS.— 25 38(5 THE CONTEACT AND ITS INCIDENTS. § 150 tion and employment in whicli the party insured is en- gaged. One who labors with his hands might be so dis- abled by a severe injury to one hand as not to be able to labor at all at his usual occupation, whereas a merchant or professional man might, by the same injury, be only disabled from prosecuting some kinds of business pertaining to his occupation. Total disability does not mean absolute phys- ical disability on the part of the insured to transact any kind of business pertaining to his occupation. Total dis- ability exists although the insured is able to perform a few occasional acts, if he is unable to do any substantial portion of the work connected with his occupation. It is sufficient to prove that the injury wholly disabled him from the doing of all the substantial and material acts necessary to be done in the prosecution of his business, or that his injuries were of such a character and degTee that common care and pru- dence required him to desist from his labors so long as was reasonably necessary to effect a speedy eure.-^^^ Insanity of the insured is a disability ;^^'* and blindness.^^^ ^" Young V. Travelers' Ins. Co., 80 Me. 244; Bean v. Travelers' Ins. Co., 94 Cal. 581; Ford v. United States Mut. Ace. Relief Co., 148 Mass. 153; Turner v. Fidelity & Casualty Co., 112 Mich. 425, 38 L. R. A. 529; Lobdill v. Laboring Men's Mut. Aid Ass'n, 69 Minn. 14, 38 L,. R. A. 537; Hohn v. Inter-State Casualty Co., 115 Mich. 79, 72 N. W. 1105; Ritter v. Preferred Masonic Mut. Ace. Ass'n, 185 Pa. St. 90, 39 Atl. 1117; Moge v. Societe De Bienfaisance St. Jean Bap- tiste, 167 Mass. 298, 35 L. R. A. 736 (blindness). See, also, McKinley V. Bankers' Ace. Ins. Co., 106 Iowa, 81, 75 N. W. 670, 27 Ins. Law J. 918; Standard L. & A. Ins. Co, v. Ward, 65 Ark. 295, 27 Ins. Law J. 719, 45 S. W. 1065; Hart v. National Masonic Ace. Ass'n, 105 Iowa, 717, 75 N, W. 508. "=' McCullough V. Expressman's Mut. Ben. Ass'n, 133 Pa. St 142, 7 L. R. A. 210. iM Moge V. Societe De Bienfaisance St, Jean Baptiste, 167 Mass. 298, 35 L. R. A. 736. § 150 THE KISK ASSUMED. 387 Inhaling Gas. "Inhalation of gas" witliin tlie meaning of a policy ex- empting an insurer from liability, does not include the in- voluntary inhaling of a deadly gas in a well where its presence is unsuspected. ^^^ Death caused by, unconsciously and unintentionally inhaling gas while asleep is within the terms of a policy insuring against injuries through external, violent, and accidental means, and is not within an ex- ception of injuries resulting from poison or anything acci- dentally or otherwise taken, administered, absorbed or in- haled. ^^'^ A provision exempting the insurer from liability for death or injury caused by inhalation of gas, contem- plates a voluntary act of the assured. ^^^ Death resulting in part from suffocation, consequent upon the taking of chloro- form, administered in a proper manner by a physician to relieve the insured from pain, is ^\ithin a stipulation that there should be no liability for injury resulting from any- thing "accidentally or otherwise taken, or resulting, either directly or indirectly, wholly or in part from * * * medical or surgical treatment." ^^^ Poison. Where a policy provides that its benefits shall not extend to any bodily injury happening directly or indirectly from the taking of poison, there can be no recovery where the '"» Pickett V. Pacific Mut. Life Ins. Co., 144 Pa. St. 79; Paul v. Travelers' Ins. Co., 112 N. Y. 472. But see Richardson v. Travelers' Ins. Co., 46 Fed. 843. '"Fidelity & Casualty Co. v. Lowenstein (CCA.), 97 Fed. 17, 46 L. R. A. 450; Fidelity & Casualty Co. v. Waterman, 161 111. 632, 44 N. E. 283. See, contra, McGlother v. Provident Mut. Ace. Co., 60 U. S. App. 705, 89 Fed. 085; Early v. Standard L. & A. Ins. Co., 113 Mich. 58, 71 N. W. 500. '•"Paul V. Travelers' Ins. Co., 112 N. Y. 472, 8 Am. St. Rep. 758. ^"* Westmoreland v. Preferred Ace. Ins. Co., 75 Fed. 244. 388 THE CONTRACT AND ITS INCIDENTS. § 150 insured died from the effects of poison, involuntarily taken bv mistake.^'''*' Violation of Law. An insurance company is not relieved from liability on a policy insuring against accidental death, except when caused by an injury received while violating the law, by the fact that when the injury was received the insured was vio- lating the law, unless such violation had an actual connection, with the injury, or contributed to it.^'^^ Death caused from an accident received by an insured on a Sunday, some hours after he had stopped hunting, and some distance from the place where he was hunting, was not sustained while the in- sured was in violation of a law making it an offense to hunt on Sunday, and within the meaning of a stipulation exempt- ing the insurer from liability if the accident or death re- "° Pollock V. United States Mut. Ace. Ass'n, 102 Pa. St. 230; Hill V. Hartford Ace. Ins. Co., 22 Hun (N. Y.), 187; Metropolitan Aec. Ass'n V. Froiland, 161 111. 30, 43 N. E. 766; Early v. Standard L. & A. Ins. Co., 113 Mich. 58, 71 N. W. 500, 26 Ins. Law J. 820; Mc- Glother v. Provident Mut. Ace. Co. (C. C. A.), 89 Fed. 685. Compare- Healey v. Mutual Ace. Ass'n, 133 111. 556, 9 L. R. A. 371; Bacon v. United States Mut. Ace. Ass'n, 44 Hun (N. Y.), 599. See, also, Cole v. Accident Ins. Co., 61 Law T. (N. S.) 227; Mutual Ace. Ass'n v. Tuggle, 39 111. App. 509; Paul v. Travelers' Ins. Co., 112 N. Y. 472; Menneiley v. Employers' Liability Assur. Corp., 148 N. Y. 596; Fi- delity & Casualty Co. v. Waterman, 161 111. 632, 44 N. E. 283; Trav- elers' Ins. Co. V. Dunlap, 160 111. 642; Pickett v. Pacific Mut. Life Ins. Co., 144 Pa. St. 79. '"Gross V. Miller, 93 Iowa, 72, 61 N. W. 385; Jones v. United States Mut. Ace. Ass'n, 92 Iowa, 652, 61 N. W. 485; Conboy v. Rail- way Officials' Employes' Ace. Ass'n (Ind. App.), 43 N. E. 1017. Violation of criminal law: The killing of a person by the dis- charge of a gun which he was carrying, while at a place to which he had gone to get his wife to return home, and while he was com- ing out of an outdoor closet, into which he had gone after makings some disturbance, does not constitute a case of death while violating or attempting to violate any criminal or penal law, although he may § 150 THE RISK ASSUMED. 389 suited directly or indirectly from violation of law.-^^^ But it has been held to the contrary. ^'^^ A death ensuing in the commission of a misdemeanor, as where horse racing is a misdemeanor, is caused by violation of law.^'^^ The suicide of an alleged fugitive from justice to avoid arrest, is not a death in violation of a criminal law.^'^^ The death, by suicide, of an insured, will not avoid the policy, under a provision that it shall be void if the in- sured die in violation of, or in an attempt to violate, any crim- inal law, although the attempt to commit suicide is made a crime, if the statute does not cover the case of crime actually accomplished. ^''^^ The death of a woman resulting from her voluntary submission to an operation intended to pro- duce an al3ortion is a violation of criminal law;^'^''^ and on grounds of public policy no recovery can be allowed.-^"^ And so if death come as the result of a dtiel;^'^^ or if the insured be killed while committing an unprovoked assault upon an- have intended to use violence against her if she refused; since his act in going into and coming out of the closet was in no manner con- nected with or part of an attempt to carry out any criminal pur- pose. Supreme Lodge, K. of P., v. Beck, 181 U. S. 49, 21 Sup. Ct. 532. "^ Prader v. National Masonic Ace. Ass'n, 95 Iowa, 149, 63 N. W. 601. "' Duran v. Standard L. & A. Ins. Co., 63 Vt. 437. 1"* Travellers' Ins. Co. v. Seaver, 19 Wall. (U. S.) 531. See, also, Bloom V. Franklin Life Ins. Co., 97 Ind. 478; Overton v. St. Louis Mut. Life Ins. Co., 39 Mo. 122, 90 Am. Dec. 455; Utter v. Travelers' Ins. Co., 65 Mich. 545, 32 N. W. 812; National Ben. Ass'n v. Bow- man, 110 Ind. 355, 11 N. E. 316; Accident Ins. Co. of North America V. Bennett, 90 Tenn. 256. "' Kerr v. Minnesota Mut. Ben. Ass'n, 39 Minn. 174. ^■'' Darrow v. Family Fund Soc, 116 N. Y. 537, 6 L. R. A. 495. "' Wells V. New England Mut. Life Ins. Co., 191 Pa. St. 207, 43 Atl. 126. "* Hatch V. Mutual Life Ins. Co., 120 Mass. 550; Ritter v. Mutual Life Ins. Co., 169 U. S. 139. "» Overton v. St. Louis Mut. Life Ins. Co., 39 Mo. 122. 390 THE CONTRACT AND ITS INCIDENTS. § 150 other under sucli circumstances as rendered tlie killing justifiable homicide. •^^'^ Intentional Injuries. An exception in an accident insurance policy from liability for intentional injury inflicted by any person, will relieve the insurer from liability for an intentional assault com- mitted by another upon the insured, without any expecta- tion thereof by the assured ;^^^ but not if the Avound be in- flicted by an insane person. ^^^ Whether the injury or assault be intentional must be found from the surrounding facts and circumstances. The word intentional, in such a connection, is given its ordinary meaning. An injury was intentional where the insured, while in the yard near a window, through which he made an unsuccessful attempt to enter, was shot by another man who fired out of the window ;^^^ or where the as- sured is waylaid, and assassinated for purposes of robbery.^^* Walking on Roadbed. A level beaten path of ten feet between railroad tracks is not part of the road bed within the terms of a policy barring recovery for injury or death while upon a railroad road bed.-^^^ ''"Wolff V. Connecticut Mut. Life Ins. Co., 5 Mo. App. 236. See, also, Murray v. New York Life Ins. Co., 96 N. Y. 614; Utter v. Travelers' Ins. Co., 65 Mich. 545, 32 N. W. 812; Griffin v. Western Mut. Benev. Ass'n, 20 Neb. 620; Bradley v. Mut. Ben. Life Ins. Co., 45 N. Y. 422; Bloom v. Franklin Life Ins. Co., 97 Ind. 478. "'Travellers' Ins. Co. v. McConkey, 127 U. S. 661; Ging v. Travel- ers' Ins. Co., 74 Minn. 505, 77 N. W. 291; Butero v. Travelers' Ace. Ins. Co., 96 Wis. 536, 7i N. W. 811; Brown v. United States Casualty Co., 88 Fed. 38. '«= Berger v. Pacific Mut. Life Ins. Co., 88 Fed. 241. 1S3 orr V. Travelers' Ins. Co., 120 Ala. 647, 24 So. 997. "* Hutchcraft's Ex'r v. Travelers' Ins. Co., 87 Ky. 300, 12 Am. St. Rep. 484. '^' Meadows v. Pacific Mut. Life Ins. Co., 129 Mo. 76, 31 S. W. 578. § 150 THE RISK ASSUMED. 391 Siicli a clause does not cover an injury received by a passenger tlirough stepping off a railway train, and falling into or through a concealed hole.-^^^ Where a policy provides that it does not cover injuries resulting from walking or being on a road bed and further provides for a commutation of indemnity in case the insured be injured in an exposure or occupation classed by the company as more hazardous than that in which the insured was engaged, when the insured is injured while on a road bed he cannot take advantage of the latter clause unless he was within the class of employes excepted from the terms of the proviso. ^^'^ Otherwise if he be classed as a railway employe. -^^^ Murder. Murder is classed as an intentional injury, if committed by a sane person.^^^ The killing of the insured, by an insane beneficiary, under such circumstances that it would be murder if the beneficiary was sane, does not forfeit the policy, nor bar a suit for recovery. ^^^ One cannot recover insurance money pa_yable to him upon the death of a party whose life he has feloniously taken, any more than he could recover insurance money upon a building which he has wilfully burned. The law will not allow one to reap a benefit from his own criminal act.^^^ The murder of a person whose life is insured, by an assignee of the policy, whose claim to it is valid only for the reimbursement of premiums paid, forfeits only the assignee's '^ Burkhard v. Travellers' Ins. Co., 102 Pa. St. 262. "' Yancey v. Aetna Life Ins. Co., 108 Ga. 349, 33 S. E. 979. "' Keene v. New England Mut. Ace. Ass'n, 164 Mass. 170. ''' See ante, notes 181, 182. ""> Holdom V. A. O. U. W., 159 111. 619. "" New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 599; Riggs V. Palmer, 115 N. Y. 506. See, also, Shellenberger v. Kansom, 41 Neb. 631. 392 THE CONTRACT AND ITS INCIDENTS. § 150 part of tlie insurance, and not the residue thereof. '^^^ Tho murder of an insured bj a beneficiary, forfeits the rights not only of the beneficiary, but of his assigTiee. But the insurer is not exempted from liability merely because the beneficiary's rights are thus forfeited. The policy may be enforced by the administrator of the assured, for the benefit of his estate, on the ground of a resulting trust created in favor of the estate by the forfeiture of the rights of the beneficiary named. ^^'^ Intemperance. The test between sobriety and inebriety is the effect pro- duced by the use of liquors.-'^* Under a policy conditioned to be void if the insured become so far intemperate as to seriously or permaaiently impair his health, no degree of intemperance , will defeat recovery unless it clearly has that effect ^^^ The term "intemperate" has reference to a customary or habitual use of liquors. Whether a person is habitually intemperate is a question of fact to be determined by a jury.^^® A condition forfeiting a policy if the assured shall become so far intemperate as to impair his health seriously or per- manently, or induce delirium tremens, contemplates more than an occasional excessive indulgence. It refers to his customary conduct, to pursue which he has acquired a tend- ency from frequent repetition of the same acts.-^^''^ A pro- "^New York Life Ins. Co. v. Davis, 96 Va. 737, 32 S. E. 475, 44 L. R. A. 305. "'Schmidt v. Northern Life Ass'n (Iowa), 83 N. W. 800, 51 L. R. A. 141. "* McGinley v. United States Life Ins. Co., 77 N. Y. 495. "= Odd Fellows Mut. Life Ins. Co. v. Rohkopp, 94 Pa. St. 59. ""Northwestern Life Ins. Co. v. Muskegon Bank, 122 U. S. 501; Van Valkenburgh v. American Popular Life Ins. Co., 70 N. Y. 605. "'Davey v. Aetna Life Ins. Co., 20 Fed. 482; Aetna Life Ins. Co. v. Deming, 123 Ind. 384; Union Mut. Life Ins. Co. v. Reif, 36 Ohio St. 596. § 150 THE RISK ASSUMED. 393 vision that a policy shall be void if the death of the insitred is caused by the use of intoxicating drink or oiiium, means that the things prohibited should be the direct cause of death. ^'^^ An occasional use of liquors or opium, is not to be deemed intemperance. The indulgence must be excessive and ha- bitual. ^^^ Death at the Hand of Justice. Even if this risk were not excepted, or were specially cov- ered, it would be against public policy to permit a recovery in such case-^^*^ Accidents on Public or Private Conveyance, Trains, etc. A policy conditioned that it should not cover injuries received while entering, trying to enter, or leaving a moving steam vehicle, does not insure against an accident received while attempting to get on a moving railway train. ^°^ An injury received by a traveler in the course of a journey, while walking between a steamboat and a railway station, is not caused or received "while traveling by public or private con- veyance."^^^ Injuries received "while actually riding upon a public conveyance in compliance with all the rules and reg- "» Mutual Life Ins. Co. v. Stibbe, 46 Md. 302. ""Mowry v. Home Life Ins. Co., 9 R. I. 346; Tatum v. State, 63 Ala. 147. See, also, as to construction of provisions concerning in- temperance, Knickerbocker Life Ins. Co. v. Foley, 105 U. S. 350; Brockway v. Mutual Ben. Life Ins. Co., 9 Fed. 249; Schultz v. Mut- ual Life Ins. Co., 6 Fed. 672; Knecht v. Mutual Life Ins. Co., 90 Pa. St. 118; Malicki v. Chicago Guaranty Fund Life Soc, 123 Mich. 148, 81 N. W. 1074; Aetna Life Ins. Co. v. Davey, 123 U. S. 739. ^'"'Spruin V. North Carolina Mut. Life Ins. Co., 1 Jones (N. C), 126; Ritter v. Mutual Life Ins. Co., 169 U. S. 139. '"^ Miller v. Travelers' Ins. Co., 39 Minn. 548. ■"^ Northup V. Railway Passenger Assur. Co., 2 Lans. 166, 43 N. Y. 516. See, also, Ripley v. Railway Passengers' Assur. Co., 2 Bigelow, L. & A. Rep. 738; Theobald v. Railway Passengers' Assur. Co., 10 Exch. 44, 2 Bigelow, L. & A. Rep. 393. 394 THE CONTKACT AND ITS INCIDENTS. § 150 ulations of tlie carriers, and not neglecting to use due diligence for self-protection," do not include an injury to a passenger on a railway car by being tliro^^Ti from its steps where he sat Avhile the train was approaching the station, in violation of a known rule.^"^ One is a passenger while entering or alight- ing from a conveyance.^"'* Eiding on the platform of a rail- way car is not necessarily voluntary exposure to unneces- sary danger. ^*^^ The risk of getting on and off a moving train is incident to- the business of a brakeman, and such as accident insurance obtained by him is intended to cover when his occupation is known to the insurer at the time of the making of the contract,, and a provision in such a policy against accidents in attempt- ing to enter or leave a moving conveyance cannot be insisted upon by the insurer.^"® Suicide. The rules covering the effect of suicide upon a life or ac- cident insurance policy may be briefly stated thus : (1) Intentional self-destruction is a complete defense where the insured or his estate is the beneficiary in the policy even in the absence of any special provision to that effect. ^^ Otherwise if the money is payable to a designated benefici- ary,208 ^^^\ ^j^g policy was taken out in good faith.^*^^ But ="' Bon V. Railway Passenger Assur. Co., 56 Iowa, 664. -"■' King V. Travelers' Ins. Co., 101 Ga. 64, 28 S. E. 661. '"' Travelers' Ins. Co. v. Randolph (C. C. A.), 78 Fed. 754. =»' Dailey v. Preferred Masonic Mut. Ace. Ass'n, 102 Mich. 289. See, also. Gotten v. Fidelity & Casualty Co., 41 Fed. 506; Anthony v. Mer- cantile Mut. Ace. Ass'n, 162 Mass. 354, 38 N. E. 973; Smith v. Pre- ferred Mut. Ace. Ass'n, 104 Mich. 634, 62 N. W. 990; Travelers' Ins, Co. V. Snowden, 45 Neb. 249. 2°' Ritter v. Mutual Life Ins. Co., 169 U. S. 139. 209 Morris v. State Mut. Life Assur. Co., 183 Pa. St. 563, 39 Atl. 52, ='" Seller v. Economic Life Ass'n, 105 Iowa, 87. T § 150 THE RISK ASSUMED. 395 a secret intent of the insured, at the time he toolc ont the policy, to commit suicide, would constitute fraud, which, if proven, would defeat recovery. Being void in its inception no rights would accrue under such a contract, to any per- son. 210 (2) A policy conditioned to he void in case the assured die by his own hand, is not avoided by self destruction in a fit of insanity.2^^ (3) No recovery can be had on a policy on the life of one Avho kills himself, whether sane or insane, where the policy stipulates that the insurer Avill not be liable in case the insured dies by suicide whether sane or insane.^^^ One test of insanity is the capacity to understand the moral character of the taking of the life. Thus the intentional kill- ing of himself by the insured, when his reasoning faculties are so far impaired by insanity that he is unable to under- stand the moral character of his act, is not suicide or self destruction, or dying by his o^\ti hands, within the meaning of such words in a clause excepting-sueh risk, even though ho understood the physical nature, consequences, and effect of his act. 2^^ The tenn "insanity," as used in this connection, ='*' Parker v. Des Moines Life Ass'n, 108 Iowa, 117, 78 N. W. 826; Patterson v. Natural Premium Mut. Life Ins. Co., 100 Wis. 118, 75 N. W. 980. ''' Eastabrook v. Union Mut. Life Ins. Co., 54 Me. 224; Grand Lodge, I. O. M. A., v. Wieting, 168 111. 408, 48 N. E. 59; Van Zandt V. Mutual Ben. Life Ins. Co., 55 N. Y. 169, 14 Am. Rep. 215; Con- necticut Mut. Life Ins. Co. v. Groom, 86 Pa. St. 92, 27 Am. Rep. 689; John Hancock Mut. Life Ins. Co. v. Moore, 34 Mich. 41; Black- stone V. Standard Life & Ace. Ins. Co., 74 Mich. 592. -'= Travellers' Ins. Co. v. McConkey, 127 U. S. 661; Billings v. Ac- cident Ins. Co., 64 Vt. 78, 17 L. R. A. 89; Bigelow v. Berkshire Life Ins. Co., 93 a. S. 284; Tritschler v. Keystone Mut. Ben. Ass'n, ISO Pa. St. 205. "= Connecticut Mut. Life Ins. Co. v. Akens, 150 U. S. 468; Mutual Life Ins. Co. v. Terry, 15 Wall. (U. SJ 580; Blackstone v. Standard 396 THE CONTKACT AND ITS INCIDENTS. § 150 means siicli a perverted and deranged condition of the mental and moral faculties, as to render the person incapable of distinguishing between right and wrong, or unconscious, at the time, of the nature of the act he is committing; or where, though conscious of it, and able tx) distinguish between right and wrong, and knowing that the act is wrong, yet his will, that is, the governing power of his mind, has been, otherwise than voluntarily, so completely destroyed that his actions are not subject to it, but are beyond his control.^^* Where the death may have been accidental or suicidal, the presumption is in favor of the former. What was really the cause of death is usually a question of fact for a jury. The burden of j)roof is on the insurer to prove, by a preponderance ■of evidence, that the deceased died through suicide ;^^^ but where the reasonable probabilities, from the evidence, all point to suicide as the cause of death, so as to establish it with such certainty as to leave no room for doubt, the question must be decided as one of law.^-^® Voluntary Exposure to Unnecessary Danger. The terms "voluntary exposure" and "unnecessary danger," and "hazardous adventure," within the meaning of an insur- ance policy, do not include such exposure' as is incident to the ordinary habits and customs of life, but refer to something Life & Ace. Ins. Co., 74 Mich. 592; Connecticut Mut. Life Ins. Co. v. Groom, 86 Pa. St. 96. '^* Davis V. United States, 165 U. S. 373. ='^ Beckett v. Northwestern Masonic Aid Ass'n, 67 Minn. 298, 69 N. "W. 923, and cases ante. "»Agen V. Metropolitan Life Ins. Co., 105 Wis. 217, 80 N. W. 1021; Travellers' Ins. Co. v. McConkey, 127 U: S. 661. In determining the question whether death was accidental or suicidal, the fact that de- ceased was an atheist or an infidel affords no presumption that he ■committed suicide. Gibson v. American Mut. Life Ins. Co., 37 N. Y. 580. § 150 THE RISK ASSUMED. 39T beyond the ordinary, such as wanton or gross carelessness. They import an exposure or risk by the assured to an unneces- sary danger, with a consciousness thereof, arid the intention or design to risk the consequences of the act. More than mere carelessness or negligence or inadvertence of the insured is meant.^^'^ The mere act of cleaning a gun, not known to be loaded, is not such exposure ;^^^ nor an attempt to drive a bull into a pasture ;^^^ nor an attempt to scale a bank with a loaded gun in hand j^^*' nor getting out upon th6 platform of a moving car;^^^ nor is an attempt to board a slowly moving car necessarily.^^^ But an attempt to pass through a trestle, known to be dangerous, upon a dark night, is voluntary ex- posure to unnecessary danger ;^^^ and running along the tracks in front of a moving train ;^"^ and jumping from a mov- ing train ;^^^ a condition requiring the insured to use duo '^^ Wilson V. Northwestern Mut. Ace. Ass'n, 53 Minn. 470; Manu- facturers' Ace. Ind. Co. V. Dorgan (C. C. A.), 58 Fed. 945; Keene v. New England Mut. Ace. Ass'n, 164 Mass. 170; Conboy v. Railway Officials' & Employes' Aec. Ass'n, 17 Ind. App. 62, 46 N. E. 363. "^Miller v. American Mut. Ace. Ins. Co., 92 Tenn. 167. "* Johnson v. London Guarantee & Aec. Co., 115 Mich. 86, 40 L. R. A. 440. "° Cornwell v. Fraternal Ace. Ass'n, 6 N. D. 201. "'Marx V. Travelers' Ins. Co., 39 Fed. 321; Burkhard v. Trav- ellers' Ins. Co., 102 Pa. St. 262. '-' Johanns v. National Ace. Soc., 16 App. Div. 104, 45 N. Y. Supp. 117; Fidelity & Casualty Co. v. Sittig, 181 111. 111. '-'Travelers' Ins. Co. v. Jones, 80 Ga. 541; Follis v. United States Mut. Aec. Ass'n, 94 Iowa, 435, 28 L. R. A. 78. =-*Tuttle v. Travellers' Ins. Co., 134 Mass. 175. -^'' Smith V. Preferred Mut. Ace. Ass'n, 104 Mich. 634, 62 N. W. 990. See, also, on this question. Standard Ins. Co. v. Langston, 60 Ark. 381; National Ben. Ass'n v. Jackson, 114 111. 553; Fidelity & Casualty Co. V. Chambers, 93 Va. 138; Scheiderer v. Travelers' Ins. Co., 68 Wis. 13; United States Mut. Ace. Ass'n v. Hubbell, 56 Ohio St. 516, 47 N. E. 544; Lovelace v. Travelers' Protective Ass'n, 126 Mo. 104, 30 L. R. A. 209; Ashenfelter v. Employers' Liability Assur. Corp. 398 THE CONTRACT AND ITS INCIDENTS. § 151 care and diligence imposes upon liim the duty to use such care and diligence as prudent persons ordinarily use,^-*^ The teinn "voluntary over-exertion" means conscious or intentional over-exertion, or a reckless disregard of consequences likely to ensue from the effort. ^^'^ Stipulation's of Policy. g 1 5 1 . Stipulations and conditions of an insurance contract restricting and limiting the liability of the insurer are (unless prohibited by statute) valid and must be recognized and en- forced by the courts. Title and Interest. A stipulation in the policy that it shall he void if the in- sured is not the sole, absolute and unconditional owner of the property, does not refer to encumbrances upon the property, but to the character and quality of the title. ^^^ It is reason- able, and will be enforced in the absence of waiver.--^ It relates to subsequent changes in the title, rather than to the estate or condition when the policy is issued.^^'^ Sole owners (C. C. A.), 87 Fed. 682; Matthes V. Imperial Ace. Ass'n, 110 Iowa, 222, 81 N. W. 484; Sawtelle v. Railway Passenger Assur. Co., 15 Elatchf. 216, Fed. Cas. No. 12,392; Shevlin v. American Mut Ace. Ass'n, 94 Wis. 180, 36 L. R. A. 52; Equitable Ace. Ins. Co. v. Osborn, 90 Ala. 201, 13 L. R. A. 267. "^ Kentucky L. & A. Ins. Co. v. Franldin, 102 Ky. 512, 43 S. W. 709. 2" Manufacturers' Ace. Ind. Co. v. Dorgan (C. C. A.), 58 Fed. 952; Rustin V. Standard L. & A. Ins. Co., 58 Neb. 792, 79 N. W. 712, 46 L. R. A. 253. ^-^ Ellis V. Insurance Co. of North America, 32 Fed. 646. "" Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S. W. 959; East Texas Fire Ins. Co. v. Brown, 82 Tex. 631. "°Hall V. Niagara Fire Ins. Co., 93 Mich. 184; Hoose v. Prescott Ins. Co., 84 Mich. 309, 11 L. R. A. 340. Compare National Fire Ins. Co. V. Orr, 56 111. App. 627; Collins v. London Assur. Corp., 165 Pa, St 298; Syndicate Ins. Co. v. Bohn (C. C. A.), 65 Fed. 165; Lingen- felter v. Phoenix Ins. Co., 19 Mo. App. 252. The statements in an application refer to the condition of the title at the time of making § 151 STIPULATIONS OF PaLICV. 399 of the capital stock £)£ a corpoxation have not the sole and unconditional ownership of the property. -•'^^ The o^^^ler of a life estate has not an absolute interest in the real estate. ^"^^ The owner of an undivided interest in land is not the owner in fee simple. ^^^ A devise of land with the reservation that the grantor shall have the right to re-enter on the happening of a condition subsequent does not convey absolute title.^^* A policy conditioned to be void if the insured is not the sole and unconditional owner of the property insured, is avoided if the property be- longs to a firm and is insured by one of the members of the firm in his o^vn name without the insurer having knowledge of the facts. ^^^ One holding an assignment of a land contract as collateral security for a loan, is not the sole and uncon- ditional o^vner.^^*^ . The terms "interest" and "title" are not synonymous, and the mortgagor in possession, and a purchaser the application. As to foreclosure of mortgage between making ap- plication and issuing policy, see Day v. Hawkeye Ins. Co., 72 Iowa, 597, 34 N. W. 435. But in Cable, v. United States Life Ins. Co. (C. C. A.), Ill Fed. 19, it was held that a statement in an application for life insurance speaks as of the time of the delivery of the policy, and that an absolute duty rests upon the applicant to make disclosure to the insurer of any material changes in his condition covered by a statement in the application occurring after the statement was made and before the consummation of the contract. "^Syndicate Ins. Co. v. Bohn (C. C. A.), 65 Fed. 165, 27 L. R. A. 614. =" Davis v. Iowa State Ins. Co., 67 Iowa, 494. '^'Scottish U. & N. Ins. Co. v. Petty, 21 Fla. 399; Carver v. Hawk- eye Ins. Co., 69 Iowa, 202. "* Dowd v. American Ins. Co., 41 Hun (N. Y.), 139. As to effect of party wall on title, see Commercial Fire Ins. Co. v. Allen, 80 Ala. 571. ="=> McFetridge v. Phenix Ins. Co., 84 Wis. 200, 54 N. W. 326; Ger- mania Fire Ins. Co. v. Home Ins. Co., 4 Misc. Rep. 443, 24 N. Y. Supp. 357. ""Gettleman v. Commercial Union Assur. Co., 97 Wis. 237, 72 N. W. 627. 400 . THE CONTKACT AND ITS INCIDENTS. § 151 holding under a deed defectively executed, liave both of them absolute as well as insurable interests in the property though neither has the legal title. "Absolute" is synony- mous with "vested/' and is used in contradistinction to "con- tingent," or "conditional."^^^ The vendor in an executory contract to sell, where the vendee is in possession, and has paid part of the purchase money, is not the sole and absolute 0'R^ler;^^^ but such a ven,dee has been held to be.^^^ One who has purchased personal property under a contract that the title shall not vest until the tenns of sale are complied with, is not, until fulfihnent of his contract, the unconditional owner of the property, ^^^ O^vners in severalty may be ab- solute 0"\vners.^^^ Proceedings to oust a tenant holding over without permission, is not a litigation that will defeat a policy providing that it shall be void if the title or possession be involved in litigation, when the proceedings to recover possession are predicated upon the provisions of the lease.^^^ The stipulations of the policy must all be construed together. Thus it has been held that a provision that a policy shall be void unless the land on which the insured building stands is owned by the insured, is controlled by a description in the policy showing that the building was used in the business of =" Franklin Fire Ins. Co. v. Martin, 40 N. J. Law, 568, 29 Am. Rep. 271; Hough v. City Fire Ins. Co., 29 Conn. 10, 76 Am. Dec. 581. "^Hamilton v. Dwelling House Ins. Co., 98 Mich. 535. "'Knop V. National Fire Ins. Co., 101 Mich. 359; Loventhal v. Home Ins. Co., 112 Ala. 108, 33 L. R. A. 258; Imperial Fire Ins. Co. V. Dunham, 117 Pa. St. 460, 2 Am. St. Rep. 686; Johannes v. Stand- ard Fire Office, 70 Wis. 196. =■"> Westchester Fire Ins. Co. v. Weaver, 70 Md. 536, 5 L. R. A. 478. "1 Beebe v. Ohio Farmers' Ins. Co., 93 Mich. 514, 18 L. R. A. 481. As to estate by entirety, see Clawson v. Citizens' Mut. Fire Ins. Co., 121 Mich. 591, 80 N. W. 573. =*= Hall V. Niagara Fire Ins. Co., 93 Mich. 184. § 151 STIPULATIONS OF POLICY. 401 a post-trader, and was situate on land belonging to tlie United States.2« Change of Title and Possession. A condition of a policy of insurance that if any change in the title or possession of the property takes place, whether by sale, transfer, conveyance, legal process or judicial decree,, then and in every such case the policy shall be void, includes an involuntary as well as a voluntary change of possession. A writ of attachment is process, and the fact that an officer levied upon property insured under a writ of attachment, and took possession thereunder, shows a change of possession avoiding the policy. ^^'* The making of a mortgage is not a change of possession ;^'*^ nor a change of receivers i^'*^ nor leaving the premises temporarily in charge of an agent.^^'^ Alienation or Change of Title or Interest In some cases it has been held that an inhibition against a change of title, interest or possession would invalidate a policy, although a clause prohibiting a sale or alienation might not have that effect.^^^ The making of a contract for ^" Broadwater v. Lion Fire Ins. Co., 34 Minn. 465. See, also, as to title, Southwick v. Atlantic P. & M. Ins. Co., 133 Mass. 457 (Quit- claim deed from second mortgagee does not convey full title); Franklin Fire Ins. Co. v. Vaughan, 92 U. S. 516; Chandler v. St. Paul F. & M. Ins. Co., 21 Minn. 85 (when title to personal property passes). "' Carey v. German American Ins. Co., 84 Wis. 80, 20 L. R, A. 267. See, also, ante, "Alienation." "'Nussbaum v. Northern Ins. Co., 37 -Fed. 524. '*^ Thompson v. Phenix Ins. Co., 136 U. S. 287. '" Shearman v. Niagara Fire Ins. Co., 46 N. Y. 526. "'Hathaway v. State Ins. Co., 64 Iowa, 229; Gibh v. Philadelphia Fire Ins. Co., 59 Minn. 267, 61 N. W. 137; Phenix Ins. Co. v. Hol- combe, 57 Neb. 622, 78 N. W. 301. But see Burnett v. Eufaula Home Ins. Co., 46 Ala. 11; New Orleans Ins. Ass'n v. Holberg, 64 Miss. 51, 8 So. 175. KERR, INS.— 26 402 - THE CONTRACT AND ITS IXCIDEXTS. § 151 the sale of property insured, Avitlioiit the consent of the in- surer, comes within a provision that the policy shall be void upon a sale without the insurer's consent, and the policy is not restored upon abandonment of the contract. ^^^ An un- conditional transfer operates as a forfeiture ;-^^ and a transfer of the equitable title, if the policy provides that it shall be void if any change takes place in the title, if, under the law of the state where the property is situated, the beneficial interest passes with the equitable title. ^^^ The g■i^^ng of a chattel mortgage by one partner on firm property, for his individual benefit, is a change of interest, title or possession ;^^^ and the formation of a co-partnership ;^^^ and a partition of prop- erty among the devisees of the insured ;^^^ and a conveyance by the assured and his wife to another, who reconveys to the ^jfg.255 g^jj(j g^ conveyance by the insured to her husband's trustee in insolvency ;^^*' and an executory agreement to convey the insured premises, where the vendee takes possession and pays part of the purchase price. ^^'^ The execution of a deed, absolute in form, though intended and given as security for a debt, is witliin a provision that a policy shall be void "if the property be sold or transferred, "'Davidson v. Hawkeye Ins. Co., 71 Iowa, 532, 32 N. W. 514; California State Bank v. Hamburg-Bremen Ins. Co., 71 Cal. 11. '" Griffey v. New York Cent. Ins. Co., 100 N. Y. 417. "' Cottingham v. Firemen's Fund Ins. Co., 90 Ky. 439, 9 L. R. A. 627. ^= Olney v. German Ins. Co., 88 Mich. 94, 13 L. R. A. 684. "' Germania Fire Ins. Co. v. Home Ins. Co., 4 Misc. Rep. 443, 24 N. Y. Supp. 357. ' »=♦ Trabue v. Dwelling House Ins. Co., 121 Mo. 75, 23 L. R. A. 719. =" I.angdon v. Minnesota Farmers' Mut. Fire Ins. Ass'n, 22 Minn. 193; Oakes v. Manufacturers' F. & M. Ins. Co., 131 Mass. 164. =■•» Brown v. Cotton & W. M. Mut. Ins. Co.. 156 Mass. 587. "' Gibb V. Philadelphia Fire Ins. Co., 59 Minn. 267, 61 N. W. 137. § 151 STIPULATIONS OF POLICY. 403 or any change take place in the title or possession, etc." ;-^^ and the making of a void, fraudulent, or imperfect deed.^^^ Whether or not an accepted offer to purchase insured prop- erty constitutes a breach of condition in the policy against a change of ownership is a question for the court. The accept- ance of a proposition to buy real property, which is definite in nothing more than the amount to be paid, does not prevent an interest in the insured of the "entire, unconditional, unen- cumbered, and sole ownership."^®^ A sale or transfer means a transfer of the entire interest of the assured. The taking in of a partner has been held not to be a sale or transfer "within the meaning of the condition of the policy j^*^^ nor the sale from one partner to another. "^^ The word "alienation" imports an actual transfer of title ;^^^ and of all the title of the insured. ^^'^ A void deed ^^' Barry v. Hamburg-Bremen Fire Ins. Co., 21 Jones & Sp. (N. Y.) 249; Dailey v. Westchester Fire Ins. Co., 131 Mass. 173. ""Baldwin v. Phoenix Ins. Co., 60 N. H. 164. See, also, Foote v. Hartford Fire Ins. Co., 119 Mass. 2-59; Mulville v. Adams, 19 Fed. 887;- Moulthrop v. Farmers' Mut. Fire Ins. Co., 52 Vt. 123; Farm, ers' Ins. Co. v. Archer, 36 Ohio St. 608; Buchanan v. Westchester County Mut.. Ins. Co., 61 N. Y. 611. /""Arkansas Fire Ins. Co. v. AVilson, 67 Ark. 553, 48 L. R. A. 510. .As to effect of executory agreement to sell, see, also, Erb v. German- American Ins. Co., 98 Iowa, 606; Forward v. Continental Ins. Co., 142 N. Y. 382. ==" Blackwell v. Miami Valley Ins. Co., 48 Ohio St. 553, 14 L. R. A. 431. But see, contra, Germania Fire Ins. Co. v. Home Ins. Co., 144 N. Y. 195; ante, notes 252, 253. ="Allemania Fire Ins. Co. v. Peck, 133 111. 220; Roby v. Ameri- can Cent. Ins. Co., 120 N. Y. 510; New Orleans Ins. Ass'n v. Holberg, 64 Miss. 51; Dresser v. United Firemen's Ins. Co., 45 Hun (N. Y.), 298. See, also, as to dealings between partners, West v. Citizens' Ins. Co., 27 Ohio St. 1; Cowan v. Iowa State Ins. Co., 40 Iowa, 551; Powers V. Guardian F. & L. Ins. Co., 136 Mass. 108. '" Marts V. Cumberland Mut. Fire Ins. Co., 44 N. J. Law, 478. -"* Cowan V. Iowa State Ins. Co., 40 Iowa, 551. See Commercial Ins. Co. V. Scammon, 123 111. 601. 404: THE CONTRACT AND ITS INCIDENTS. §151 does not effect a change of title.^^^ An agreement to sell property is not an alienation.^^® A stipulation that a policy shall be void upon the entering of a decree of foreclosure, refers to a decree of strict foreclosure. A void execution sale is not a "sale or levy under execution."^*^^ A change of title by the natural death of the insured, is not a change contemplated by the policy, where the insurer agrees "to make good to the assured, his executors, etc.," all loss.^^^ But it has been held otherwise. ^^^ The assignment by a debtor of his property for the benefit of his creditors operates as an assignment of, and renders void a fire insurance policy held by him which contains a provision that it shall be void if assigned without the assent of the company. ^'^^ =°^ German Ins. Co. v. York, 48 Kan. 488; Phoenix Ins. Co. v. As- bury, 102 Ga. 565, 27 S. E. 667; Forward v. Continental Ins. Co., 143 N. Y. 382; Gilbert v. North American Fire Ins. Co., 23 Wend. (N. Y.) 43. ^''oparcell v. Grosser, 109 Pa. St. 617. =" Pearman v. Gould, 42 N. J. Eq. 4. See, also, as to effect of giv- ing mortgage: Friezen v. AUemania Fire Ins. Co., 30 Fed. 352; Bryan v. Traders' Ins. Co., 145 Mass. 389; Walradt v. Phoenix Ins. Co., 136 N. Y. 375; Koshland v. Fire Ass'n, 31 Or. 362, 49 Pac. 866; deed which is in effect a mortgage: Barry v. Hamburg-Bremen Fire- Ins. Co., 110 N. Y. 1; Commercial Ins. Co. v. Scammon, 123 111. 601; New Orleans Ins. Co. v. Gordon, 68 Tex. 144; imperfect or illegal sale under mortgage: Niagara Fire Ins. Co. v. Scammon, 144 111. 490; Marts v. Cumberland Mut. Fire Ins. Co., 44 N. J. Law, 478; Haight V. Continental Ins. Co., 92 N. Y. 51; execution sale: Ham- mel V. Queen's Ins. Co., 54 Wis. 72; Hopkins Manufacturing Co. v. Aurora F. & M. Ins. Co., 48 Mich. 148; Loy v. Home Ins. Co., 24 Minn. 315; conveyance of tax title interest: Kyte v. Commercial Union Assur. Co., 144 Mass. 46; lease for term of years: Smith v. Phoenix Ins. Co., 91 Cal. 323. 13 L. R. A. 475. =«' Forest City Ins. Co. v. Hardesty, 182 111. 39, 55 N. E. 139; West- chester Fire Ins. Co. v. Dodge, 44 Mich. 420; Richardson's Adm'r v. German Ins. Co., 89 Ky. 571, 8 L. R. A. 800. "" Germania Fire Ins. Co. v. Home Ins. Co., 144 N. Y. 195. "0 Dube V. Masconia Mut. Fire Ins. Co., 64 N. H. 527, 1 L. R. A. 57; § 151 STIPULATIONS OF POLICY. • 405 Alterations and Repairs. It is competent for the insurer and insured to a^ee that this or that alteration or change shall work a forfeiture, in which case the only inquiry will be whether the one in ques- tion comes within the agreement. The violation of a condi- tion of the policy that it shall be void and of no effect if "me- chanics are employed in building, altering or repairing the premises" without notice to or permission of the insurer, ter- minates the contract in the absence of the waiver, and it is im- material whether or not the alteration and repairs increase the risk.^^-^ In construing clauses of a policy prohibiting changes in the situation or circumstances affecting the risk, there is an Implied exception as to ordinary repairs, made in a reason- able and proper way.^^^ A clause prohibiting alterations, additions or enlargement of insured buildings, without notice to and consent of an insurer, but allowing ordinary and necessary repairs, does not authorize the insured to make a material enlargement of the premises, without the consent of the insurer, although the risk be in no manner increased. ^^^ Such conditions are not to be extended by implication so as to include cases not clearly or reasonably within the words Perrj^ v. Lorillard Fire Ins. Co., 61 N. Y. 214. See, also, Thompson V. Phenix Ins. Co., 136 U. S. 287; Trabue v. Dwelling House Ins. Co., 121 Mo. 75, 23 L. R. A. 719; Georgia Home Ins. Co. v. Kinnier"s Adm'x, 28 Grat. (Va.) 88; Brown v. Cotton & W. M. Mut. Ins. Co., 156 Mass. 587; Roby v. American Cent. Ins. Co., 120 N. Y. 510; Keeney v. Home Ins. Co., 71 N. Y. 396; McNally v. Phoenix Ins. Co., 137 N. Y. 389; Carey v. German American Ins. Co., 84 Wis. 80; Orr V. Citizens' Fire Ins. Co., 159 III. 187, 43 N. E. 867. '" Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452. "= First Congregational Church v. Holyoke Mut. Fire Ins. Co., 158 Mass. 475, 35 Am. St. Rep. 508. "' Frost's Detroit L. & W. W. Works v. Millers' & M. Mut. Ins. Co., 37 Minn. 300. 406 THE CONTRACT AND ITS INCIDENTS. § 151 as ordinarily used and nnderstood, and do not include the making of ordinary and necessary repairs to tlie building to preserve it from decay, or the cutting of a stove pipe hole in a partition, or other similar acts which are reasonably' necessary and do not add to the risk, and are not directly or indirectly the cause of the fire.^^^ In Mack v. Rochester German Ins. Co.,^'^^ the policy pro- vided that the working of mechanics in the building altering or nepairing it without the consent of the company endorsed thereon, would cause the forfeiture of all claims under the policy. Mechanics were at work making changes in the building at the time of the fire, without the consent of the in- surer, and it was held that this avoided the policy. The court approved the rule last laid down, and said: "Certain con- ditions are very generally regarded by underwriters as largely increasing the hazards of insurance, and they, unless corre- sponding premiums are paid for the extra risks, are usuall}" intended to be excluded from the obligation of the policy. Such are the conditions in reference to unoccupied houses, changes in the occupation from one kind of business to another more hazardous, the use of inflammable substances in build- ings, and their occupation by carpenters, roofers, etc., for the purpose of making changes and alterations. These condi- tions, when plainly expressed in a policy, are binding upon the parties, and should be enforced by courts if the evidence brings the case clearly within their meaning and intent." Permission to make alterations and repairs to the insured property, incidental to the business for which it is used, means only that such may be made in relation to carrying on the business of the insured, as would not essentially and ma- ■'* James v. Lycoming Ins. Co., 4 Cliff. 272, Fed. Cas. No. 7.182. "=106 N. Y. 560, 13 N. E. 343; Lyman v. State Mut. Fire Ins. Co., 14 Allen (Mass.), 329. § 151 STIPULATIONS OF POLICY. 407 terially increase the danger of the property being destroyed by fire;^'^^ and does not authorize the erection of a building forty feet distant from that insured, although connected with the main building by a bridge and an underground passage for pipes. ^'^'^ Necessary repairs, made in good faith, during the time within which the insurer may exercise the option to rebuild or repair the premises, do not defeat a right to re- covery. ^^^ Repairs made without the knowledge or consent of the assured cannot affect his rights.^^^ If there be no prohibition against alteration or repairs, an alteration will only avoid the policy when it increases the risk.^^^ Other Insurance. The breach of a condition of a policy -against other insur- ance is available as a defense to an action on the policy al- though the additional insurance had ceased to be in force when the loss occurred f^'^ and though the second policy con- tains a like condition.^^^ A policy of insurance, conditioned to be void if other or prior insurance be or exist on the prop- erty, is voided by a prior and existing policy in favor of one of the joint owners of the property f^^ and will not be rein- stated by the expiration of the earlier policy before the loss.^^^ A provision that a policy shall be void in case of "•Crane v. City Ins. Co., 3 Fed. 558. "' Peoria Sugar Refining Co. v. People's Fire Ins. Co., 24 Fed. 773. "' Eliot Five Cents Sav. Bank v. Commercial Assur. Co., 142 Mass. 142, 7 N. E. 550. "° Breckinridge v. American Cent. Ins. Co., 87 Mo. 62. '*" Stetson V. Massachusetts Mut. Fire Ins. Co., 4 Mass. 330, 3 Am. Dec. 217; Washington Fire Ins. Co. v, Davison, 30 Md. 92; Rann v. Home Ins. Co., 59 N. Y. 387; Dorn v. Germania Ins. Co. (Ohio), 5 Ins. Law J. 183. "'^Replogle V. American Ins. Co., 132 Ind. 360. "^ Reed v. Equitable F. & M. Ins. Co., 17 R. I. 785, 18 L. R. A. 496. J83 Horridge v. Dwelling-House Ins. Co., 75 Iowa, 374, 39 N. W. 648. "* Georgia Home Ins. Co. v. Rosenfield (C. C. A.), 95 Fed. 358. 408 THE CONTRACT AND ITS INCIDENTS. § 1^1 otlier insurance, without notice and consent of tlie insurer, is ipso facto avoided bj the taking out of additional insurance, "without the consent of the insurer, or its waiver of the pro- vision. ^^^ Notice to the insurance company at the time of the issu- ance of the policy that there is prior insurance will estop it from asserting that the policy is void under a condition against other insurance. The tendency and weight of modem au- thority is in favor of the rule that the condition is not waived by the issuance of the policy, after notice only to a mere so- liciting agent of the existence of additional insurance. Much would seem to depend upon the relation of the agent to the company, and the stipulations of the policy itself. ^^^ A condition against other insurance is violated by the ex- istence of a prior policy, which, although void, appears valid upon its face; ^^'^ and cannot be defeated by saying that the prohibited insurance is invalid because of the existence of a like condition in the second policy. ^^^ A policy which is in and of itself void so that in fact it constitutes no contract of "^ Johnson v. American Ins. Co., 41 Minn. 396. ^^ German Ins. Co. v. Gray, 43 Kan. 497, 8 L. R. A. 70, 19 Am. St. Rep. 150; American Ins. Co. v. Gallatin, 48 Wis. 36; Reed v. Equi- table F. & M. Ins. Co., 17 R. I. 785; Berry v. American Cent. Ins. Co., 132 N. Y. 49; Minnock v. Eureka F. & M. Ins. Co., 90 Mich. 236. But see Key v. Des Moines Ins. Co., 77 Iowa, 174; Kister v. Lebanon Mut. Ins. Co., 128 Pa. St. 553, 5 L. R. A. 646; Farnum v. Phoenix Ins. Co., 83 Cal. 246; Eames v. Home Ins. Co., 94 U. S. 621; Russell v. Detroit Mut. Fire Ins. Co., 80 Mich. 407. =^" Phcenix Ins. Co. v. Copeland, 90 Ala. 386; London & L. Fire Ins. Co. V. Turnbull, 86 Ky. 230; Saville v. Aetna Ins. Co., 8 Mont. 419; Funke v. Minnesota Farmers' Mut. Fire Ins. Ass'n, 29 Minn. 347, 43 Am. Rep. 216; Carpenter v. Providence Wash. Ins. Co., 16 Pet. (U. S.) 495. '^ Stevenson v. Phoenix Ins. Co., 83 Ky. 7; Phenix Ins. Co. v. Lamar, 106 Ind. 513. But see Germania Fire Ins. Co. v. Klewer, 129 111. 599 (holding also that the existence of other insurance only sus- pends the policy) ; Hubbard v. Hartford Fire Ins. Co., 33 Iowa, 325. § 151 STIPULATIONS OF POLICY. 409 insurance docs not breach the condition. -'^^ Insurance taken out by the mortgagee for himself, without the mortgagor's knowledge or consent, or vice versa, is not within the condi- tion ;^^° nor insurance procured by a third party without the knowledge or consent of the insured. -^^ Where the o^^^ler of insured property has insurance in two companies, and there is a question as to his right to recover from either, the assertion of a claim against each is not a fraud, or attempt at fraud. ^^^ Incumbrances. A mortgage is an encumbrance upon property, but it is not a sale or alienation. ^^^ No recovery can be had upon a policy containing a stipulation that it shall be void if the property is or shall be encumbered by mortgage, when the property was at the time covered by a mortgage, unless the company has Avaived, or is estopped to rely upon the stipulation, even though no inquiry be made when the policy was issued. ^^"^ The stip- ='»Reed v. Equitable F. & M. Ins. Co., 17 R. I. 785; American Ins. Co. V. Replogle, 114 Ind. 1, 15 N. E. 810. -''"Cannon v. Home Ins. Co., 49 La. Ann. 1367; Guest v. New Hampshire Fire Ins. Co., 66 Mich. 98, 33 N. W. 31; Hardy v. Lan- cashire Ins. Co., 166 Mass. 210, 44 N. E. 209. -"^Niagara Fire Ins. Co. v. Scammon, 144 111. 490; but see Gillett V. Liverpool & L. & G. Ins. Co., 73 Wis. 203. ■'^ Bennett v. Council Bluffs Ins. Co., 70 Iowa, 600. As to notice and waiver of condition against other insurance, see Johnson v. American Ins. Co., 41 Minn. 396; Fairfield Packing Co. v. Southern Mut. Fire Ins. Co. (Pa.), 44 Atl. 317; Robinson v. Fire Ass'n of Philadelphia, 63 Mich. 90; Miller v. Hartford Fire Ins. Co., 70 Iowa, 704; Day v. Mechanics' & Traders' Ins. Co., 88 Mo. 325; New Orleans Ins. Ass'n v. Griffin, 66 Tex. 232; Washburn-Halligan Coffee Co. v. Merchants' :prick Mut. Fire Ins. Co., 110 Iowa, 423, 81 N. W. 707. 203 Friezen v. Allemania Fire Ins. Co., 30 Fed. 349. ^"Thorne v. Aetna Ins. Co., 102 Wis. 593, 78 N. W. 920; Harding V. Norwich Union Fire Ins. Soc, 10 S. D. 64, 71 N. W. 755; Fitch- burg Sav. Bank v. Amazon Ins. Co., 125 Mass. 431; Crikelair v. Citi- zens' Ins. Co., 168 111. 309. 410 THE CONTRACT AND ITS INCIDENTS. § 151 Illation is effective where one of the insured firm executes a mortgage upon his interest in the insured property. ^^^ The tenn "mortgage" includes an instrument securing the per- formance of a contract for support and maintenance. ^^^ Per- mission to sell chattels does not include permission to mort- gage them.^^^ The cancellation of old mortgages, and the substitution of new ones by way of renewals, is not the creation of a new encumbrance, but simply changing the form of the old.^^* And it has been held that the effect of additional encum- brances on the property insured is not a breach of condition against encumbrances, where the total amount of valid en- cumbrances at no time exceeds the amount mentioned by the assured in his application ; and it seems to be immaterial what the character of the encumbrances is, or to whom they are The term "property" as used in the phrase "if the property insured shall hereafter become mortgaged or encumbered" refers to all the property insured. And if the insured prop- erty be both real and personal, the mortgaging of a part of it will not work a forfeiture of the entire policy.^*^*^ A judgment is not an encumbrance.^^^ A clause in a lease, reserving to -'' Hicks V. Farmers' Ins. Co., 71 Iowa, 119, 32 N. W. 201. "" Continental Ins. Co. v. Vanlue, 126 Ind. 410. See, also, William- son V. Orient Ins. Co., 100 Ga. 791, 28 S. E. 914. =°' First Nat. Bank v. American Cent. Ins. Co., 58 Minn. 492, 60 N. W. 345. ="' Burns v. Thayer, 101 Mass. 426; Bowlus v. Phenix Ins. Co., 133 Ind. 106. ^''Kister v. Lebanon Mut. Ins. Co., 128 Pa. St. 553, 5 L. R. A. 646; Mowry v. Agricultural Ins. Co., 64 Hun (N. Y.), 137. But see Hank- ins V. Rockford Ins. Co., 70 Wis. 1, 35 N. W. 34; Russell v. Cedar Rapids Ins. Co., 71 Iowa, 69, 32 N. W. 95. ^'"' Born V. Home Ins. Co., 110 Iowa, 379, 81 N. W. 677. ^"^ Pickel V. Phenix Ins. Co., 119 Ind. 291, 18 Ins. Law J. 598. See, also, Phoenix Ins. Co. v. Swann (Tex.), 41 S. W. 519. § 151 8TIPULATI0^'S OF POLICY. 411 the lessor a first lien upon all buildings for unpaid rental or taxes, does not amount to, or create a chattel mortgage upon a building situate upon the leased ground, within the mean- ing of a stipulation in a policy avoiding it if the building be or become encumbered by a chattel mortgage.^*^^ Vacancy and Occupancy. In construing a condition of an insurance policy against vacancy and non-occupancy, the courts will look to the subject matter of the contract, and the ordinary incidents attending the use of the insured property.^*'^ The occupancy of a dwelling,^^'* of a mill,^**^ of a barn,^*^^ of a building used for manufacturing purposes,^"'^ is each essentially different in it& scope and character. The object of the stipulation against vacancy and non-occupancy is to guard against the increased risk arising from the absence of everybody whose duty or '"- Caplis V. American Fire Ins. Co., 60 Minn. 376. '"'Whitney v. Black River Ins. Co., 72 N. Y. 117; American Fire Ins. Co. V. Brighton Cotton Mfg. Co., 125 111. 131. "What constitutes vacancy or nonoccupancy of a building is a question of law; but whether a building is vacant or unoccupied or not, within the meaning of the law, is a question of fact for the jury. To constitute occupancy of a dwelling house, it is not essential that it be continuously used by a family; the family may be absent from it for health, pleasure, business or convenience for reasonable periods, and the house will not on that account be considered as vacant or unoccupied. * * * It is not essential that the build- ing should be put to all the uses ordinarily made of a dwelling, or to some of those uses all of the time, nor that the whole house' should be subjected to that use." Moody v. Amazon Ins. Co., 52 Ohio St. 12, 26 L. R. A. 313. "■* Continental Ins. Co. v. Kyle, 124 Ind. 132. ="■• Frost's Detroit L. & W. W. Works v. Millers' & M. Mut. Ins. Co,^ 37 Minn. 300. '"^Sonneborn v. Manufacturers' Ins. Co., 44 N. J. Law, 220; Kim- ball V. Monarch Ins. Co., 70 Iowa, 513. '"Halpin v. Phenix Ins. Co., 118 N. Y. 165; Brighton Mfg. Co. v. Reading Fire Ins. Co., 33 Fed. 232. 412 THE CONTKACT AND ITS INCIDENTS. § 151 interest miglit afford protection from fire.^°^ A fair and reasonable construction of tlie term "vacant and unoccupied," as applied to a house, is that it shall be without an occupant, without any person living in it.^°^ Speaking of a dwelling house and bam the supreme court of Massachusetts said: "Occupancy, as applied to such buildings, implies an actual use of the house as a dwelling place, and such use of the barn as is ordinarily incident to a barn belonging to an occupied house, or at least something more than a use of it for mere storage. The insurer has a right, by the terms of the policy, to the care and supervision which is involved in such oc- cupancy. "^^^^ A dwelling house in which no one lives, and in which a former occupant has left some furniture of small value, is vacant and unoccupied ;^^^ and a house from which the owner or tenant has removed with no definite intention of return- jj^g._3i2 J3^^ g^ temporary absence, or the occasional and necessary absence of the family and servants, will not be so ■construed.^ ^^ A building is not "vacant, unoccupied, or not in use" if being repaired and refitted, and some one sleeps in ^"^ Sleeper v. New Hampshire Fire Ins. Co., 56 N. H. 401, »"» Moore v. Phoenix Fire Ins. Co., 64 N. H. 140, 10 Am. St. Rep. 384; Herrman v. Adriatic Fire Ins. Co., 85 N. Y. 163. '^"Ashworth v. Builders' Mut. Fire Ins. Co., 112 Mass. 422. '" Sexton V. Hawkeye Ins. Co., 69 Iowa, 99. ^" Sleeper v. New Hampshire Fire Ins. Co., 56 N. H. 401. See, also, Bennett v. Agricultural Ins. Co., 50 Conn. 420; Moore v. Phoenix Fire Ins. Co., 64 N. H. 140, 10 Am. St. Rep. 384; Continental Ins. Co. v. Kyle, 124 Ind. 132, 9 L. R. A. 81; Doud v. Citizens' Ins. Co., 141 Pa. St. 47; Burlington Ins. Co. v. Brockway, 138 111. 644; Limburg v. German Fire Ins. Co., 90 Iowa, 709, 23 L. R. A. 99; American Ins. Co. V. Padfield,.78 111. 167. «" Phoenix Ins. Co. v. Tucker, 92 111. 64; Laselle v. Hoboken Fire Ins. Co., 43 N. J. Law, 468; Home Ins. Co, v. Wood, 47 Kan. 521. § 151 STIPULATIONS OF POLICY. 413 it;^-*^ or if a tenant has moved some of his furniture in, with the intention of using the house as a dwelling. '"^^^ A building used as a morocco factory, which was unused for about six months prior to the fire, was held to be unoccupied, even though all the machinery remained in the building, and it was closed and locked, and in the hands of an agent to rent.^^^ Otherwise, if it was only temporarily closed for re- pairs, and night and day watchmen were on duty, and em- ployes at and about it.^^'^ An agreement that the insured may leave his house unoccupied during the summer of each year, inserted in his original policy, covers all renewals of the policy.^ ^^ After a fire, and during the time within which the insurer can decide whether it will rebuild, a vacancy clause is suspended.^ ^^ Both conditions need not be shown, in order to avoid a policy of insurance under a clause making it void when vacant or unoccupied.^^*^ The fact that the owner of a house, who lived alone in it, left it for two months, does not, as a matter of law, make it vacant or unoccupied, within the condition avoiding the policy should the premises become vacant or un- occupied and so remain for ten days, if the absence was not intended to be permanent, and if the house was visited daily by a neighbor Avith whom the keys had been left.^^^ A pro- '" Stensgaard v. National Fire Ins. Co., 36 Minn. 181. '"Doud V. Citizens' Ins. Co., 141 Pa. St. 47; Eddy v. Hawkeye Ins. Co., 70 Iowa, 472; Traders' Ins. Co. v. Race, 142 111. 338, 29 N. E. 846, 31 N. E. 392. '"Halpin v. Insurance Co. of North America, 120 N. Y. 73, 8 L. R. A. 79. »" Brighton Mfg. Co. v. Reading Fire Ins. Co., 33 Fed. 232. . ''" Vanderhoef v. Agricultural Ins. Co., 46 Hun (N. Y.), 328. ''•Lancashire Ins. Co. v. Bush, 60 Neb. 116, 82 N. W. 313. '^"Limburg v. German Fire Ins. Co., 90 Iowa, 709. '=iHill V. Ohio Ins. Co., 99 Mich. 466, 58 N. W. 359; Stupetski v. Transatlantic Fire Ins. Co., 43 Mich. 373, 5 N. W. 401; Johnson v. 414 THE CONTKACT AND ITS INCIDENTS. § 151 vision in a policy that if tlie insured premises slioiild cease to be occuiDied, or should become vacant and unoccupied, the policy should be void, has no application to the vacancy of a house unoccupied at the time it was insured and not there- after used as a residence up to the time of the loss, or which is insured as "unoccupied." ^^^ Prohibited Use. When a policy contains no express prohibition of change in the use of the insured building, the fact that at the time of the loss it was used for a different purpose than that men- tioned in the policy, does not per se avoid the policy.^ ^^ Naph- tha is not "kept" but "used" on the premises, within the meaning of an insurance policy, where for nearly four weeks a naphtha torch is used in burning the paint on the insured building, preparatory to repainting. The word "kept" im- plies a use of the premises as a place of deposit for the pro- hibited articles, for a considerable time.^^^ Where a policy contains a provision that if the building shall be used as a storehouse the rate of insurance will be changed, and the in- Norwalk Fire Ins. Co., 175 Mass. 529, 56 N. E. 569; Cummins v. Agricultural Ins. Co., 67 N. Y. 260; Moody v. Amazon Ins. Co., 52 Ohio St. 12, 26 L. R. A. 313. '"Bennett v. Agricultural Ins. Co., 106 N. Y. 243; Hilton v. Phcenlx Assur. Co., 92 Me. 272, 42 Atl. 412. As to effect of a provision that the policy shall be void if the building be or become vacant or un- occupied, and so remain for ten days, when the vacancy exists at the time of effecting the insurance, see Clifton Coal Co. v. Scottish U. & N. Ins. Co., 102 Iowa, 300, 71 N. W. 433; Home Fire Ins. Co. v. Kuhlman, 58 Neb. 488, 78 N. W. 936. For construction of vacancy clause in Minnesota standard policy, see Doten v. Aetna Ins. Co., 77 Minn. 474, 80 N. W. 630. For Ohio standard policy, see Moody v. Amazon Ins. Co., 52 Ohio St. 12, 26 L. R. A. 313. ==' Martin v. Capital Ins. Co., 85 Iowa, 643, 52 N. W. 534. ''■* First Congregational Church v. Holyoke Mut. Fire Ins. Co., 158 Mass. 475; Williams v. New England Mut. Fire Ins. Co., 31 Me. 219. § 151 STIPULATIONS OF POLICY. 415 surer knew of the use of the buikling for storage, the policy will not be avoided.^ ^^ Where a contract of insurance by the written portion covers property to be used in conducting a par- ticular business, the keeping of an article ordinarily and necessarily used in such business will not avoid the policy, even though expressly prohibited in the printed conditions.^ ^® If in the descriptive clause of the policy the thing insured be mentioned in general terms (as, for instance, a stock of watchmaker's or photographer's materials), and there be nothing in the policy itself indicating with exactness what articles were embraced in, and intended to be covered by, such general terms, parol evidence is admissible to explain the ambiguity, and to apply the policy to the subject of t'he in- surance. If the written agreement is full, explicit, and un- ambiguous, it must be taken as conclusively representing the real contract of the parties, and neither will be permitted by parol to vary its terms. If for w^ant of fullness of state- ment the contract is indefinite or uncertain, parol evidence is admissible, not to vary, add to or take from the contract, but to explain and make apparent the real intention of the parties.^ ^^ But if a policy read "on general merchandise, consisting of dry goods, clothing, and groceries," and expressly prohibiting the keeping of gunpowder, it is not sufficient to show that gunpowder is included by usage and custom under the words "general merchandise," but it must be shown that it is in- cluded under the specific words "dry goods, clothing and • 5 9'' 9Q groceries. ^^'^^ '"' Steers v. Home Ins. Co., 38 La. Ann. 952. ==" Faust V. American Fire Ins. Co., 91 Wis. 158, 64 N. W. 883. '"Peoria M. & F. Ins. Co. v. Hall, 12 Mich. 202; Maril v. Connecti- cut Fire Ins. Co., 95 Ga. 604; Harper v. New York City Ins. Co., 22 N. Y. 441; Hall v. Insurance Co. of North America, 58 N. Y. 292, 17 Am. Rep. 255; Faust v. American Fire Ins. Co., 91 Wis. 158. »^» Liverpool & L. & G. Ins. Co. v. Van Os, 63 Miss. 431. 416 THE CONTKACT AND ITS INCIDENTS. § 151 The oondition in a policy, issued to a silver-plating com- pany, on the tools and machinery in its factory, "that this entire policy, unless otherwise indorsed hereon, or added hereto, shall be void if (any usage or custom of trade or manu- facture to the contrary notwithstanding) there be kept, used or allowed on the premises, gasoline, etc.," does not preclude the use of gasoline, it being so used at the date of the policy, and the use being necessary, and only a necessary amount be- ing brought into the factory at a given time.^^^ But it has been held that under a clause in a policy providing that fire- Avorks should not be covered by the insurance therein included, under the name of "fire-crackers," which were permitted to be kept, it cannot be sho^vn that they constitute an article in the line of business of the insured described in the policy.^^^ A policy allowing kerosene to be stored on the premises only for "lights," "lamps to be filled and trimmed by daylight, only," forbids drawing kerosene by lamplight for sale or loan, when this act results in an explosion which destroys the build- ing insured,^^^ A provision voiding a policy upon a stock of goods in a store if gasoline is kept on the premises, covers the taking it to the store to be used in a gasoline stove, in an up-stairs room, having no direct connection with the store, but reached by an outside stairway.^^^ A clause prohibiting the '-' Fraim v. National Fire Ins. Co., 170 Pa. St. 151, 32 All. 613. ^^"Steinbach v. Relief Fire Ins. Co., 13 Wall. (U. S.) 183. See, also, as to prohibited articles in connection with general description of property insured, Bentley v. Lumbermen's Ins. Co., 191 Pa. St. 276, 43 Atl. 209; Davis v. Pioneer Furniture Co., 102 Wis. 394, 78 N. W. 596; American Cent. Ins. Co. v. Green, 16 Tex. Civ. App. 531, 41 S. W. 74; Fischer v. London & L. Fire Ins. Co., 83 Fed. 807; Snyder v. Dwelling House Ins. Co., 59 N. J. Law, 544, 37 Atl. 1022; London & L. Fire Ins. Co. v. Fischer (C. C. A.), 92 Fed. 500; Me- chanics' & Traders' Ins. Co. v. Floyd (Ky.), 49 S. W. 543. ^^' Gunther v. Liverpool & L, & G. Ins. Co., 34 Fed. 501. »'=Boyer v. Grand Rapids Fire Ins. Co. (Mich.), 83 N. W. 12i. § 151 8TIPULATI0XS OF POLICY. 417 use of wood, except to start an engine, forbids tLe use of it as fuel for operating purposes, even for a short time.^^^ Increase of Risk or Hazard. Policies of insurance, unless the language excludes the presumption, must be presumed to be made with reference to the character and nature of the property insured, and to the for which such property is ordinarily held and used. The owner's use of it in the ordinary manner, and for the purpose* insurer assumes all the risk incident to such use, considering the nature of the property, and the purposes to which it is adapted, and liable to be put. A condition against increase of risk refers to an increase beyond that which the company assumes.^^^ A statement in a policy of fire insurance that the building is used for a specific purpose, amounts to a warranty that it was so used at the time the jwlicy was issued, but it does not warrant the continuance of such use during the existence of the insurance.^^^ A substantial compliance with a continuing covenant against increase of risk, whereby the risk is not increased, is sufficient.^^^ But a substantial breach will avoid a policy, even where the transaction constituting the breach in no way contributes to the loss.^^'^ Whether the haz- ard and risk is increased by a certain new use of a building, ^ Thurston v. Burnett & B. D. F. Mut. Fire Ins. Co., 98 Wis. 476, 74 N. W. 131. See, also, as to prohibited use, Greenwich Ins. Co. v. Dougherty (N. J.), 42 Atl. 485; Olson v. St. Paul F. & M. Ins. Co., 35 Minn. 432; Kelley v. Worcester Mut. Fire Ins. Co., 97 Mass. 284. ''* Holbrook v. St. Paul F. & M. Ins. Co., 25 Minn. 229. ^'^ Baker v. German Fire Ins. Co., 124 Ind. 490, 24 N. E. 1041; Herrick v. Union Mut. Fire Ins. Co., 48 Me. 558; Cumberland Valley Mut. Protection Co. v. Douglas, 58 Pa. St. 419; Wynne v. Liverpool & L. & G. Ins. Co., 71 N. C. 121; Germania Fire Ins. Co. v. Deckard, 3 Ind. App. 361, 28 N. E. 868. ""Bankhead v. Des Moines Ins. Co., 70 Iowa, 387. "' Kircher v. Milwaukee Mechanics' Mut. Ins. Co., 74 Wis. 470. KERR, INS.— 27 418 THE CONTKACT AND ITS IXCIDENTS. § TSl or a cliange in tlie siii'rounding circumstances, is a question of fact to be determined hj a jury, and the opinion of ex- perts is not conclusive upon the question.^^^ But it has heen held that men experienced in the insurance business may give their opinion as to whether or not a certain change in the use of the insured premises increases the risk.^^^ A provision avoiding a policy if the hazard is increased by the erection of a contiguous building does not include the erection of a building twenty-five feet away.^^" In order to charge the insured with the duty of giving notice of increase of risk, it must be shown that he had actual knowledge thereof.^ ^^ Conditions avoiding the, policy in case of increase of risk without the consent of the company, apply only to the premises insured, or to the property under the control of the insured.^'*^ Mere temporary change in the use and occupation of premises, Avhich does not in any way contribute to the loss, is not within an inhibition against an increase of risk.^^^ But a material change in the hazard, so great as to be apparent to one of ordinary intelligence, will relieve the insurer from liabil- ^'^ Joyce V. Maine Ins. Co., 45 Me. 168; Kircher v. Milwaukee Me- chanics' Mut. Ins. Co., 74 Wis. 470. ==" Russell V. Cedar Rapids Ins. Co., 78 Iowa, 216. See, also. Plant- ers' Mut. Ins. Co. V. Rowland, 66 Md. 236. =« Olson' V. St. Paul F, & M. Ins. Co., 35 Minn. 432; Crete Farmers' Mut. Township Ins. Co. v. Miller, 70 111. App. 599. ^^ Rife V. Lebanon Mut. Ins. Co., 115 Pa. St. 530. If an uninsured building is damaged during the life of the policy by other causes than those insured against, so as to increase the hazard of the risk, and the insurer, with the knowledge of these facts, does not cancel the policy, it will sometimes be held for a subsequent loss by fire. Fireman's Fund Ins. Co. v. Congregation Rodepfi Sholom, 80 111. 558. ^^ State Ins. Co. v. Taylor, 14 Colo. 499, 20 Am. St. Rep. 281. '« Adair v. Southern Mut. Ins. Co., 107 Ga. 297, 33 S. E. 78, 45 L. R. A. 207; Holbrook v. St. Paul F. & M. Ins. Co., 25 Minn. 229; Angler v. Western Assur. Co., 10 S. D. 82, 71 N. W, 761; First Con- gregational Church V. Holyoke Mut. Fire Ins. Co., 158 Mass. 475. § 151 STIPULATIONS OF rOLICY. 419 itj.^^^ The existence of a cliattel mortgage upon insured property is of itself an increase of risk, and a decrease of the security of the insurer, even though no right of action has accrued on the mortgage.^^^ If a policy stipulates that it shall be void in case the risk be increased, an increase of risk will relieve the insurer, although it may in no way have con- tributed to the loss,^^*^ The vacancy of an insured building has been held to increase the risk, as a matter of law;^'*'^ and the use of naphtha in burning paint off an insured build- ing ;^^'^ and the storing of loose unbaled hay;^^^ or fire- works.^^^ A policy providing that it shall become void in case the situation or circumstances affecting the risk shall be altered so as to increase the hazard, with the knowledge or consent of the insured, and without the assent of the insurer, is ren- dered absolutely void by a temporary increase of risk, caused by the manner of using the premises, and which is not a casual, inadvertent, or unavoidable use, and the policy will ^" Thurston v. Burnett & B. D. F. Mut. Fire Ins, Co., 98 Wis, 476, 41 L, R, A. 316, '«Lee V. Agricultural Ins. Co., 79 Iowa, 379, 44 N, W. 683. ^ Martin v. Capital Ins. Co,, 85 Iowa, 643, 52 N, W. 534, '" White V, Phoenix Ins, Co,, 83 Me. 279, 22 Atl, 167, 85 Me, 97, 26 Atl. 1049. Compare Jones v. Granite State Fire Ins. Co., 90 Me. 40, 37 Atl. 327. '** First Congregational Church v, Holyoke Mut. Fire Ins. Co., 158 Mass. 475, ^*^ Dittmer v, Germania Ins. Co,, 23 La. Ann. 458, "^^Betcher v. Capital Fire Ins, Co., 78 Minn, 241; Steinbach v. Re- lief Fire Ins, Co., 13 Wall, (U. S.) 183. As to what constitutes in- crease of risk, see Brighton Mfg. Co. v. Reading Fife Ins. Co.,. 33. Fed. 232; Bowlus v. Phenix Ins, Co., 133 Ind. 106, 20 L. R. A. 400; Kister v, Lebanon Mut. Ins. Co., 128 Pa. St. 553, 5 L. R, A, 646; Martin v. Capital Ins, Co., 85 Iowa, 643, 52 N, W. 534; Adair v. Southern Mut. Ins. Co., 107 Ga. 297, 33 S. E. 78, 45 L. R. A. 207; Luce V. Dorchester Mut. Fire Ins. Co., 110 Mass. 361. 420 THE CONTKACT AND ITS INCIDENTS. § 1^1 not revive upon tlie cessation of such increase of risk before tlie destruction of the property by iire.^^^ Operation of Factory or Business. Construing a condition against vacancy or non-operation In view of tlie subject matter of the contract and its ordinary incidents, it lias been held that a saw mill lying idle tem- porarily for lack of water or logs to manufacture, while the logs were expected daily, did not cease to be operated ;'^^^ nor a mill shut down for temporary repairs f^^ or for want of a supply of materials,^^^ or because of the prevalence of dis- ease.^^^ A condition in a fire insurance policy, forbidding the cessation of the operation of the insured establishment without the consent of the insurer, and providing for the care and supervision of the workmen, and also providing that a breach of such condition should avoid the policy, is broken and the insurance terminated when the business is discon- tinued, and the operation of the establishment has ceased without the consent of the insurer, although watchmen are '^^Kyte V. Commercial Union Assur. Co., 149 Mass. 116; Fabyan v. Union Mut. Fire Ins. Co., 33 N. H. 203; Cronin v. Fire Ass'n of Philadelphia, 123 Mich. 277, 82 N. W. 45; Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452; Carey v. German Am. Ins. Co., 84 Wis. 80; Betcher v Capital Fire Ins. Co., 78 Minn. 241. But see Mutual Fire Ins. Co. v. Coatesville Shoe Factory, 80 Pa. St. 412; Lane v. Maine Mut. Fire Ins. Co., 12 Me. 44; Insurance Co. of North America V. McDowell, 50 111. 120; American Fire Ins. Co. v. Brighton Cotton Mfg. Co., 125 111. 131; Moore v. Phoenix Ins. Co., 62 N. H. 240; Hop- kins V. Phoenix Ins. Co., 78 Iowa, 344. ='2 City P. & S. Mill Co. v. Merchants' M. & C. Mut. Fire Ins. Co., 72 Mich. 654. 40 N. W. 777; Whitney v. Black River Ins. Co., 72 N. Y. 117. *''Day V. Mill-Owners' Mut. Fire Ins. Co., 70 Iowa, 710; Brighton Mfg. Co. V. Redding Fire Ins. Co., 33, Fed. 232. ^ American Fire Ins. Co. v. Brighton Cotton Mfg. Co., 125 111. 131. '"Poss V. Western Assur. Co., 7 Lea (Tenn.), 704, 40 Am. Rep. 68. § 151 STIPULATIONS OF POLICY. 421 provided and kept continuously nntil the fire and loss oc- curs.^^^ To constitute occupancy of a building for manufacturing purposes there must be some practical use or employment of the property for those purposes.^^'^ Machinery and apparatus used in tie business of manufacturing leather and morocco, including a boiler and engine, etc., do not constitute a mill or manufactory.^^^ Kesidence and Travel. An insured has the right to reside in a foreign country without further permission or payment, where the policy and application described him as residing there, although he is specially permitted by the policy to travel in other places, and an indorsement in the policy gives him permission to travel there upon the payment of a certain sum.^^^ The expression ''settled limits of the United States" means the established boundary of the Union, and includes territory beyond the region of actual settlement, and within the geo- graphical limits of the country.=^^^ A policy conditioned to be void if the assured should pass the limits of the United States was indorsed with a permission to the insured to voyage »'' Dover Glass Works Co. v. American Fire Ins. Co., 1 Marvel (Del.), 32, 65 Am. St. Rep. 264. See, also, Halpin v. Phenix Ins. Co., 118 N. Y. 165; Halpin v. Aetna Fire Ins. Co., 120 N. Y. 70; Cronin v. Fire Ass'n of Philadelphia, 123 Mich. 277, 82 N. W. 45. »" Halpin v. Phenix Ins. Co., 118 N. Y. 165. Compare American Fire Ins. Co v. Brighton Cotton Mfg. Co., 125 111. 131; Moore v. Phoenix Fire Ins. Co., 64 N. H. 140. »=-» Halpin v. Aetna Fire Ins. Co., 120 N. Y. 70. See Phenix Ins. Co. V. Holcombe, 57 Neb. 622, 78 N. W. 300. As to waiver of provisions, see Improved Match Co. v. Michigan Mut. Fire Ins. Co., 22 Mich. 256, 80 N. W. 1088. '^"Forbes v. American Mut. Life Ins. Co., 15 Gray (Mass.), 249, 77 Am. Dec. 360. '«" easier v. Connecticut Mut. Life Ins. Co., 22 N. Y. 427. 422 THE CONTKACT AND ITS INCIDEXTS. § 151 to California and home, via Cape Horn or Vera Criiz, The insured returned by way of Panama, the safest and shortest route. The deviation avoided the ]X)licy.^^^ The policy fixes the terms upon which the promise of the assured would be binding, and upon which it should be annulled. By those terms the parties are bound. Where there is a breach of the condition the contract is rendered void.^^^ A license to pass by sea in first class vessels, allows traveling as a steerage passenger.^^^ A policy pennitting residence in certain pre- scribed localities during the entire year, prohibited residence elsewhere during certain portions of the year, and authorized the insured to tra^'el by regular routes to and from any place within the prescribed limits, but provided that if he should pass beyond or be without those limits the policy should be void. Assured thereafter obtained permission to reside be- yond those limits. On his way home he stopped within the prohibited limits to consult a physician, and on his advice went to the home of a friend, where he died. It was held that the insured was prohibited from passing beyond or being without the regions of permitted residence, except to go as a passenger by the usual routes between j)orts and places within those regions, and that whether the stopping at a prohibited place of residence to consult a physician and on his advice remaining over for treatment and rest was an interruption of the journey, made a mixed question of law and fact for a jury.^^* In an action upon a life policy, indorsed upon which was a permit to the insured to reside in "any part of the United States, to ""^Hathaway v, Trenton Mut. Life & Fire Ins. Co., 11 Cush. (Mass.) 448. =•== Nightingale v. State Mut. Life Ins. Co., 5 R. I. 38; Barrett v. Union Mut. Fire Ins. Co., 7 Cush. (Mass.) 175. '"^Taylor v. Aetna Life Ins. Co.. 13 Gray (Mass.), 434. '•^Converse v. Knights Templars & M. Life Ind. Co. (C. C. A.), 93 Fed. 148. § 151 STIPULATIONS OF POLICY. 423 be North of the South bounds of Virginia hj the 10th of July, 1854," it appeared that on the 11th day of June, 1854, the insured, then in Florida, was taken sick and became unable to start North, and died on July 20th, 1854 ; that his sickness was the sole cause of his not returning North, and that he was not guilty of any default or neglect. Held, that the sickness and death being the visitation of God, the license was not broken, and the insurers were liable.^^^ Limitations as to Time of Bringing Suit. Conditions of policies of insurance to the effect that no suit shall be brought within a certain time after the happening of the event insured against, and limiting the time within which suit must be brought, if at all, are valid and binding, even though they be in conflict with the statute of limitations of the state wherein the action is brought.^^^ A policy limiting the time for bringing an action for the recovery of any claim thereon, includes an action upon a special agreement of the company to pay the indemnity, after it had denied all lia- bility f^"^ and is not affected by a statute relative to the bring- ing of a second action within a year after the reversal of the first action.^^^ In order to determine the limitations of a policy upon bringing suit, all its provisions Avill be construed '"Baldwin v. New York Life Ins, & Trust Co., 3 Bosw, (N, Y.) 530. See, also, Rainsford v. Royal Ins. Co., 33 N. Y. Super. Ct. 453; Home Life Ins. Co. v. Pierce, 75 111. 426; Bevin v. Connecticut Mut. Life Ins. Co., 23 Conn. 244. '"« Virginia F. & M. Ins. Co. v. Wells, 83 Va. 736; Bish v. Hawkeye Ins. Co., 69 Iowa, 184, 28 N. W. 553; John Morrill & Co. v. New Eng- land Fire Ins. Co., 71 Vt. 281, 44 Atl. 358; Wilson v. Aetna Ins. Co., 27 Vt. 99. «" Grier v. Northern Assur. Co., 183 Pa. St. 334, 39 Atl. 10, "« Hocking v. Howard Ins. Co., 130 Pa. St, 170; Travelers' Ins, Co. V. California Ins. Co., 1 N. D. 151, 424: THE CONTKACT AND ITS INCIDENTS. § 151 togetlier, and will be strictly constnied against the insurer, and liberally construed in favor of the insured.^^^ The authorities are in irreconcilable conflict as to whether a stipulation that suit can be brought on a policy only within a given time after the "fire" or "loss," gives the insured the specified time after the happening of the fire, or the full time after the accmal of his right of action, where the policy pro- vides that the amount due shall not be payable until notice and proofs have been served, or some other condition required of the insured has been performed. In deciding upon this point much stress seems to have been laid upon the differ- ence between the word "fire" and the word "loss," and the difference between the phrase "fire occurs," and the phrase "loss occurs." In Hart v. Citizens' Ins. Co.,^'^*^ it was held, that a provision requiring suit upon a policy to be brought within "twelve months after the fire" requires the time to be computed from the date of the fire, and not from the time the loss is ascertained and established. The court said : "It is well settled that a clause in a contract, limiting ^"^ Kratzenstein v. "Western Assur. Co., 116 N. Y. 54. ""86 Wis. 77. The policy contained this provision: "Loss shall not become payable until sixty days after the notice. * ■ * * No suit or action * * * shall be sustained * * * until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire." In further support of this case, see Egan v. Oakland Home Ins. Co., 29 Or. 40.3, 42 Pac. 990, 42 Cent. Law J. 221, 25 Ins. Law J. 534; Mc- Farland v. Railway O. & E. Ace. Ass'n, 5 Wyo. 126, 27 L. R. A. 49; Sun Ins. Co. v. Jones, 54 Ark. 376; Garido v. American Cent. Ins. Co. (Cal.), 8 Pac. 512; Fullam v. New York Union Ins. Co., 7 Gray (Mass.), 61; Rottier v. German Ins. Co. (Minn.), 86 N. W. 888. Opposed to Wisconsin case, see Sun Ins. Co. v. Jones, 54 Ark. 376; Murdock v. Franklin Ins. Co., 33 W. Va. 407, 7 L. R. A. 572; Read v. State Ins. Co., 103 Iowa, 307, 72 N. W. 665. See, also, Rogers v. Home Ins. Co., 95 Fed. 109, 35 C. C. A. 402; Rogers v. Aetna Ins. Co., 95 Fed. 103. 35 C. C. A. 396, and note 404. § 151 STIPULATIONS OF POLICY. 425 the time within which an action may be commenced thereon, to a time shorter than that allowed by the statute of limita- tions is valid. The question here is whether the expression 'twelve months after the fire' means what it says or something else. It is to be noticed that the parties here have not used the expression 'after the loss occurs.' Had this been the language used, it might reasonably be claimed, uixtn authority, that the 'loss occurs' not at the date of the fire, but when the loss is ascertained and established, and the right to bring an action exists.^^^^ * * * There are, however, many de- cisions to the contrary.^^2 Other cases, bearing more or less directly on the question, might be cited upon either side of the proposition. It seems apparent that it can hardly be said that the great weight of authority is on either side. * * * Doubtless the tendency of so many courts to con- strue the term 'loss' as meaning the time when liability was fixed, induced many insurance companies to substitute the word 'fire' as in the policy before us. It would seem as if the phrase 'twelve months next after the fire' was susceptible of but one meaning, yet the courts have disagreed upon this question, also. In the following cases it has been held that the word 'fire' is to be construed as meaning not the date of the fire, but the time when liability is fixed, and an action ac- "^ Citing Steen V. Niagara Fire Ins. Co., 89 N. Y. 316; Spare v. Home Mut. Ins. Co., 17 Fed. 568; Cliandler v. St. Paul F. & M. Ins. Co., 21 Minn. 85; Ellis v. Council Bluffs Ins. Co., 64 Iowa, 507; Ger- man Ins. Co. V. Fairbank, 32 Neb. 750; Barber v. Fire & Marine Ins. Co. of Wheeling, 16 W. Va. 658, 37 Am. Rep. 800. =" Citing Chambers v. Atlas Ins. Co., 51 Conn. 17, 50 Am. Rep. 1; Johnson v. Humboldt Ins. Co., 91 111. 92, 33 Am. Rep. 47; Fullam v. New York Union Ins. Co., 7 Gray (Mass.), 61; Glass v. Walker, 66 Mo. 32; Bradley v. Phoenix Ins. Co., 28 Mo. App. 7; Virginia F. & M. Ins. Co. V. Wells, 83 Va. 736; Peoria Sugar Refining Co. v. Canada F. & M. Ins. Co., 12 Ont. App. 418; Travelers' Ins. Co. v. California Ins. Co., 1 N. D. 151, 8 L. R. A. 769. 426 THE CONTRACT AND ITS INCIDENTS. § 151 cnies to the iiisured.^^^ On the other hand the followino- cases hold that the limitation begins to rnn from the date of the gpg_37 4 * * * It is noticeable that all of the three cases above cited, which hold that ^fire' means the time when lia- bility is fixed, rely for authority upon the cases which con- strue the word 'loss' as having such meaning. No attention seems to have been given to the fact that the word 'fire' has been substituted for the word 'loss.' * * * Xhe argu- ment in support of this view is briefly that all clauses of the policy must be construed together ; that there are chaises which necessitate the making of proofs, the submission of the as- sured to examination, * * * aj^,^ furthermore, the loss not being payable until sixty days after the amount is fixed, it may happen that more than twelve months may elapse after the date of the fire before the company can be sued, and thus the plaintiff's action may be cut off entirely, if a literal mean- ing is to be given to the words. The deduction is that the parties cannot have meant what they said in the clause under consideration, but must have meant something else, which they did not say. We cannot assent to this line of reasoning. It does violence to plain words. It smacks too strongly of making a contract which the parties did not make. It con- strues where there is no room for construction. Plain, unam- biguous words, which can have but one meaning, are not sub- ject to construction." The time of death by accident, and not the time when the cause of action accrues on a policy of accident insurance, is ^"Friezen v. Allemania Fire Ins. Co., 30 Fed. 352; Hong Sling v. Royal Ins. Co., 8 Utah, 135, 21 Ins. Law J. 718; Case v. Sun Ins. Co., 83 Cal. 473, 8 L. R. A. 48. ^'^ Steel V. Phenix Ins. Co., 47 Fed. 863; State Ins. Co. v. Meesman, 2 Wash. 459; McElroy v. Continental Ins. Co., 49 Kan. 200; King v. Watertown Fire Ins. Co., 47 Hun (N. Y.), 1. § 151 STIPULATIONS OF POLICY. 427 the time from which is to be computed the period of one year from the date of the happening of the alleged injury within which suit must he brought by the terms of the policy, al- though the right of action on the policy did not accrue until the expiration of ninety days after proof of injury.^'^^ A garnishment proceeding to reach the proceeds of an insurance policy, must be brought ^^'ithin the time limited for bringing suit upon the policy.^'*' A limitation of time to bring suit on a policy w^ill not bar a claim upon funds in the hands of the assignee for creditors of the company, where the assignment is made within the limited period, though the claim is not filed until after its expiration.^ '''^ Such a stipulation does not affect the rights of an intervenor in a suit brought within the proper time.^^^ But delay in the bringing of an action, which has been caused or contributed to by the insurer or its duly authorized agents, cannot be taken advantage of by the insurer to defeat a cause of action on the policy ;^T^ as the absconding of the officers of the company, thus preventing service ;^^^ or fraud in obtaining a dismissal of an action brought in time;^^^ or, sometimes and upon doubtful author- ity, where the performance of the condition is, without fault or laches on the part of the insured, rendered impossible by the '"McFarland v. Railway O. & E. Ace. Ass'n, 5 Wyo. 126, 27 L. R. A. 49; Kettenring v. Northwestern Masonic Aid Ass'n, 96 Fed. 177. "" Ritter v. Boston Underwriters' Ins. Co., 28 Mo. App. 140. "' In re St. Paul German Ins. Co., 58 Minn. 163. ^' Stevens v. Citizens' Ins. Co., 69 Iowa, 658. ""Case V. Sun Ins. Co., 83 Cal. 473, 8 L. R. A. 48; Turner v. Fi- delity & Casualty Co., 112 Mich. 425, 70 N. W. 898, 38 L. R. A. 529; Mutual Reserve Fund Life Ass'n v. Tolbert (Tex. Civ. App.), 33 S. W. 295; Cochran v. London Assur. Corp., 93 Va. 553, 25 S. E. 597; Jackson v. Fidelity & Casualty Co., 21 C. C. A. 394, 75 Fed. 359; Matthews v. American Cent. Ins. Co., 154 N. Y. 449; Phenix Ins. Co. V. Belt Ry. Co., 82 111. App. 265. '^''Taber v. Royal Ins. Co., 124 Ala. 681, 26 So. 252. ^^ Phenix Ins. Co. v. Belt Ry. Co., 82 111. App. 265. 428 THE CONTRACT AND ITS INCIDENTS. § 151 acts of tlie insurer, or even by the act of God or of the govern- ment or of the courts.^^^ But the mere pendency of negotia- tions for settlement does not postpone the running of the limi- tation f^^ nor the refusal of an insurance company to pay a loss or recogTQze its liability ;^^'^ nor an adjustment of the loss f^^ nor an attempt to settle the claim f^^ nor the failure of the insurer, in an action on the policy, to plead that it was .prematurely brought, until after the time for bringing an action on the policy, as fixed by its tei-ms, had expired.^^^ After it has denied all liability upon a policy, an insurer cannot asseiH; the plea that an action thereafter commenced is prematurely brought f^^ but a denial of liability after action brought is not inconsistent with such a defense.^^^ A statute shortening the time of an insurance company's immunity from suit to forty instead of ninety days, and with- »'- Jackson v. Fidelity & Casualty Co., 21 C. C. A. 394, 75 Fed. 365; Thompson v. Phenix Ins. Co., 136 U. S. 287; Semmes v. Hart- ford Ins. Co., 13 Wall. (U. S.) 158. '"' McFarland v. Peabody Ins. Co., 6 W. Va. 425; Ritch v. Masons' Fraternal Ace. Ass'n, 99 Ga. 112, 25 S. E. 191. ^''^ Farmers' Mut. Fire Ins. Co. v. Barr, 94 Pa. St. 345. =»' Willoughby v. St. Paul German Ins. Co., 68 Minn, 373, 71 N. W. 272. ='«Law V. New England Mut. Ace. Ass'n, 94 Mich. 266, 53 N. W. 1104; Blanks v. Hibernia Ins. Co., 36 La. Ann. 599; Shackett v. Peo- ple's Mut. Ben. Soc, 107 Mich. 65, distinguishing Voorheis v. Peo- ple's Mut. Ben. Soc, 91 Mich. 469, 51 N. W. 1109. "^^Wilhelmi v. Des Moines Ins. Co., 103 Iowa, 532, 72 N. W. 685. Compare Phenix Ins. Co. v. Belt Ry. Co., 82 111. App. 265. ^'^ Standard Loan & Ace. Ins. Co. v. Thornton, 97 Tenn. 1; Hand V. National Live-Stock Ins. Co., 57 Minn. 519; Vore v. Hawkeye Ins. Co., 76 Iowa, 548, 41 N. W. 309. See, also, Hayes v. Milford Mut. Fire Ins. Co., 170 Mass. 492, 49 N. E. 754. =«» La Plant v. Firemen's Ins. Co., 68 Minn. 82, 70 N. W. 856. As to bringing suit within a given time after receipt of proofs, see Provident Fund Soc. v. Howell, 110 Ala. 508, 18 So. 311; after claim has been allowed by directors, Southern Mut. Ins. Co. v. Turnley, 100 Ga. 296, 27 S. E. 975. ^151 STIPULATIONS OF TOLICY. 42^ out extending the period of tlie statute of limitations, affects the remedy merely, and does not impair a right, or existing contract arising out of the issuance of the policy before tho statute was changed.^^^ Testimony of Physician — Proof of Death. Stipulations wai\ing the provisions of law preventing a physician from disclosing information acquired Avhile attend- ing the insured in a professional capacity,^^^ or providing that no time of absence or disappearance on the part of the in- sured, without proof of actull death, will entitle him to re- cover,^^^ are not repugnant to law, nor against public policy. Efibct of Breach of Condition on Rights of Mortgagee. As a general rule the breach of a condition of an insurance policy affects the insured only when the breach was caused by himself or his agents.^^^ The one named in the policy as owTier, and not the mortgagee to whom the loss is payable, is the insured within the purview of a condition of forfeiture.^^* The insertion in a policy of a provision commonly called the "union mortgage clause" to the effect that the loss, if any, shall be payable to the mortgagee as his interest may appear, and that the mortgagee's interest in and under the policy shall ^»« McDonald v. Jackson, 55 Iowa, 38, 7 N. W. 408; Jones v. Ger- man Ins. Co., 110 Iowa, 75, 46 L. R. A. 860. But see Kimball v. Ma- sons' Fraternal Ace. Ass'n, 90 Me. 183, 38 Atl. 102. »" Foley V. Royal Arcanum, 151 N. Y. 196, 45 N. E. 456. "= Kelly V. Supreme Council of Catholic Mut. Ben. Ass'n, 61 N. Y. Supp. 394. ''"^ State Ins. Co. v. Taylor, 14 Colo. 499; McKee v. Susquehanna Mut. Fire Ins. Co., 135 Pa. St. 544; Kircher v. Milwaukee Mechanics' Mut. Ins. Co., 74 Wis. 470. ''^Holbrook v. Baloise Fire Ins. Co., 117 Cal. 561, 49 Pac. 555; Williamson v. Michigan F. & M. Ins. Co., 86 Wis. 395; Moore v. Han- over Fire Ins. Co., 141 N. Y. 219. See American Cent. Ins. Co. v. Birds Bldg. & Loan Ass'n, 81 111. App. 258. 430 THE CONTRACT AND ITS INCIDENTS. 151 not be invalidated by any act or default of the owner, makes the mortgagee a party to the contract and gives him an interest therein ; and the insurer cannot, in a suit brought by the mort- gagee, take advantage of any act, default, or neglect of the insured whether prior or subsequent to the attaching of the mortgagee indemnity clause.^^® Terms and Conditions of the Policy, Generally. Contracts of insurance are contracts of indemnity in cases of fire insurance, or for tlie payment of specified sums in case of accident or life insurance, upon the terms and conditions specified in the policy or policies embodying the agreement of the parties. The insurer. undertakes to guaranty the insured against loss or damage, or to make certain payments upon the terms and conditions agreed upon and upon no other, and when called upon to pay in case of loss the insurer may justly insist upon the fulfilment of those terms. The terms of the policy constitute the measure of the insurer's liability, and if it appears that the contract has been terminated by the viola- tion, on the part of the assured, of its conditions, there can be no recovery. The parties to an insurance contract have the right to insert therein such conditions regulating the rights and liabilities and duties of each as they may agree upon, or which they may consider necessary and proper to protect their interests, and these conditions, when made, must be considered and enforced according to the expressed intent of the parties. It is not unlawful or against public policy for the contract to stipulate that upon certain conditions or contingencies, or if the insured shall do or shall not do certain things, or if '*^Eddy V. London Assur. Corp., 143 N. Y. 311; Humphry v. Hart- ford Fire Ins. Co., 15 Blatclif.,504, Fed. Cas. No. 6,875; Syndicate Ins. Co. V. Bolin (C. C. A.), 65 Fed. 165, 27 L. R. A. 614; National Bank v. Union Ins. Co., 88 Cal. 497; but see Whiting v, Burkhardt, 60 N. B. 1; Chandos v. American Fire Ins. Co., 84 Wis. 184, 19 L. R. A. 321. § 151 STIPULATIONS OF POLICY. 431 certain things sliall be done or happen, or sliall not l)e done or shall not happen in regard to the subject matter of the insur- ance, the policy shall be void. If the assured has violated or failed to perform the condi- tions of the contract, and such violation has not been waived by the insurer, then the assured cannot recover. The reason for the existence of certain conditions or provisions of the contract is immaterial. If the contract is so drawn as to be ambiguous, or to be fairly susceptible of two different constructions, that construction will bo adopted which is most favorable to the insured. But the rule is equally well settled that contracts of insurance, like other contracts, are to be construed according to the meaning of the terms which the parties have used, and if they are clear and un- ambiguous these teiTus are to be taken and understood in their plain, ordinary and popular sense. The courts may not make a contract for the parties. Their function and duty simply consist in enforcing and carrying out the one actually made.^''® And ajiy condition of the contract may be binding upon the parties, though it be only contained in the application, when that is made a part of the policy.^'^"''^ The insured must be held to a full knowledge of all the terms and conditions of his policy, and the fact that he has never signed it does not help him any more than the fact that he has not read it. His assent to all the conditions is conclusively presumed from his acceptance of the policy, and he cannot retain its benefits, and repudiate its burdens.^^^ An act violative of the terms and conditions of the policy affects the »'* Thompson v. Phenix Ins. Co., 136 U. S. 287; Dwight v. Ger- mania Life Ins. Co., 103 N. Y. 341; Hartford Fire Ins. Co. v. Web- ster, 69 111. 392. "" Mandego v. Centennial Mut. Life Ass'n, 64 Iowa, 134, 17 N. W. 656. ^»* Burlington Ins. Co. v. Gibbons, 43 Kan. 15; Wilkins v. State Ins. Co., 43 Minn. 177; Morrison v. Insurance Co. of North America. 432 THE CONTRACT AMD ITS INCIDENTS. §§ 152, 153 insured only when done l)y liim, or bj some one authorized to bind him in the premises.^^*^ It is a familiar rule that forfeitures are not favored; that contracts will be strictly construed to avoid forfeitures, and that the burden is upon him who claims a forfeiture to show that he is clearly entitled to it.'*'^*^ But if the words are plain courts must give effect to them accordingly, or contractual obligations will be subject to variations and violations to suit the exigencies of particular cases.^*^^ An insurer is not required to do an affirmative act declar- ing a forfeiture for a violation of the policy which causes the policy, by its 0"svn terms, to become void.^*^^ The conditions of voluntary contracts can be waived by the parties by any course of conduct inconsistent with an intention to insist upon the strict letter of the contract. The conditions of standard policies can only be waived in the manner prescribed by the policies themselves, ^^^ Liability of Insurer. ^ 152. In life and accident policies the measure of recovery is not usually open to question, the amount being fixed by contract. § 153. The fundamental purpose of contracts of fire insur- ance is to furnish indemnity to the insured against pecuniary damage or loss through the operation of fire upon the property insured. 69 Tex. 353; Cleaver v. Traders' Ins. Co., 71 Mich. 414; Allen v. Ger- man American Ins. Co., 123 N. Y. 6. ^'' Eliot Five Cents Sav. Bank v. Commercial Union Assur. Co., 142 Mass. 142; Insurance Co. of North America v. McDowell, 50 111. 120. See ante, note 393. *«> Aetna Life Ins. Co. v. Vandecar. 30 C. C. A. 48, 86 Fed. 289; Travellers' Ins. Co. v. McConkey, 127 U. S. 661; Bailey v. Home- stead Fire Ins. Co., 16 Hun (N. Y.), 503. *"^Kasten v. Interstate Casualty Co., 99 Wis. 73, 74 N. W. 534. *"= Betcher v. Capital Fire Ins. Co., 78 Minn. 240, 80 N. W. 971. *"0'Neil V. American Fire Ins. Co., 166 Pa. St. 72. §§ 152-157 LIABILITY OF IN'SUKEK. 433 §154. A stipulation that the insurer may rebuild or repair property damaged by fire gives him the privilege, at his option, either to pay the damages or to rebuild or repair within the specified time, or, if no time be fixed, within a reasonable time after notice of the fire. § 155. An insurer is liable for breach of its agreement to in- sure or to continue or renew existing insurance. The measure is the damages which naturally result from the breach. g 156. A settlement induced by fraud or misrepresentation may be set aside. § 157. A building is not a "total loss "or "wholly destroyed" when there is a remnant left standing which is fit and suitable for use in rebuilding, and has a substantial value for that pur- pose. Policies of life insurance and accident insurance usually fix the amount of liability and recovery so as to foreclose all dispute on that question. Fire insurance contracts are es- sentially contracts of indemnity, and the assured is entitled to recover from the underwriter the whole amount of a partial loss if it did not exceed the amount insured, although the amount insured be less than the value of the property at risk. In cases of personal property the measure of damages for loss of the insured property is its market value at the time and place where the loss occurred, within the amount named in the policy. In the case of damage to an insured building, tlie rule is indemnification to the owner, not exceeding the sum insured. The question is not what some one would have paid for the building, but what amount would indemnify the in- sured for the loss sustained. It is for the jury to determine in the one case the amount and extent of the loss, and in the other case the amount or extent of the damage.'*''* ♦"^ State Ins. Co. v, Taylor, 14 Colo. 499; Steward v. Phoenix Fire Ins. Co., 5 Hun (N. Y.), 261; Brinley v. National Ins. Co., 11 Mete. (Mass.) 195; Com, Ins. Co. v. Sennett, 37 Pa. St. 205, 78 Am. Dec. 418; Mississippi Mut. Ins. Co. v. Ingram, 34 Miss. 215. EERR, INS.— 28 43i THE CONTKACT AND ITS INCIDENTS. §§ 152-157 Where goods insured against fire are destroyed, tlie insurer is bound to pay their value at the time of the loss; where damaged only, he is bound to pay the difference between the value in the sound and damaged condition. Where the goods are so damaged as not to be salable by the ordinary method, a fire sale at auction may, after reasonable notice to the in- surers, be considered by the jury in estimating the damages, and ascertaining the proper amount of indemnity. ^^^ Market value, and not local or peculiar value, must control.^'^^ The right to recovery must always be founded upon an insurable interest, and ordinarily the maximum amount which one can recover on a policy is limited to the amount of his insurable interest in the subject matter of the risk.'*^'^ The amount of the policy is no evidence of the value of the property de-. stroyed, except when the policy be valued, and the loss total. The jury must find from the evidence the actual amount of the damage, and the extent of the loss of the insured.'*''^ In the case of the destruction of a building, where the policy was not valued, the damage would be the value of the building as it stood upon the ground on the day it was destroyed. If the building was old, and dilapidated by use and decay, its value in that condition should be the ground of recovery, not ex- ceeding the liability of the insurer as fixed by the policy. '*°^ If the policy stipulates that the cash value of the property *>= Hoffman v. "Western M. & F. Ins. Co., 1 La. Ann. 216. ■^ Fisher v. Crescent Ins. Co., 33 Fed. 544. *" See ante, c. 9, "Insurable Interest;" post, c. 16, "Proceeds of Policy." *"* Waynesboro Mut. Fire Ins. Co. v. Creaton, 98 Pa. St. 451; Standard Fire Ins. Co. v. Wren, 11 111. App. 242. *"' Underbill v. Agawam Mut. Fire Ins. Co., 6 Cush. (Mass.) 440; Washington Mills Emery Mfg. Co. v. Weymouth & B. Mut. Fire Ins. Co., 135 Mass. 503; Aetna Ins. Co. v. Johnson, 11 Bush (Ky.), 587; Hickerson v. German American Ins. Co., 96 Tenn. 193, 32 L. R. A. 172. §§ 152-157 LIABILITY OF INSURER. 435 destroyed or damaged sliall not exceed the cost of rebuilding it, and in case of damage from use or otherwise that a suitable deduction shall be made from the cost of repair, the measure of damages is the cost of repairs, if thereby the property is ren- dered as valuable as before. If less valuable than before, then the difference must be added to the cost. If more valuable, it must be deducted.^ ^^ Where the policy pro^ddes that the loss should be ascer» tained according to the actual cash value of the property at the time the loss occurred, not to exceed what it would then cost the insured to repair or replace the same with material of like kind and quantity, and the insured are manufacturers of the property covered and destroyed, the proi)er measure of damages is the actual cash value at th^ time the loss occurred, and not the cost to them of manufacturing the same.^^^ Where the property insured has no recognized market value, its fair value should be the measure of damages.^ ^^ If the policy separately describes different articles of property, insuring each for a specified sum, the recovery for damage to one article cannot exceed the sum for which it was insured. ^^^ The term "actual cash value" means the sum of money for which the insured property would have sold, at its market price, at the time and place of its destruction.^^* ""Commercial Fire Ins. Co. v. Allen, 80 Ala. 571; German Ins. Co. V. Everett (Tex. Civ. App.), 36 S. W. 125. *" Mitchell V. St. Paul German Fire Ins. Co., 92 Mich. 594, 52 N. W. 1017, distinguishing Chippewa Lumber Co. v. Phenix Ins. Co., 80 Mich. 117, 44 N. W. 1055. Compare Clover v. Greenwich Ins. Co., 101 N. Y. 277. '"^'Gere v. Council Bluffs Ins. Co., 67 Iowa, 272; Brinley v. Na- tional Ins. Co., 11 Mete. (Mass.) 195. "^Dacey v. Agricultural Ins. Co., 21 Hun (N. Y.), 83; Home Ins. Co. V. Adler, 71 Ala. 516. "*Mack V. Lancashire Ins, Co., 2 McCrary, 211, 4 Fed. 59; Russell V. Detroit Mut. Fire Ins. Co., 80 Mich. 407. For definition of "work- ing interest," see Imperial Fire Ins. Co. v, Murray, 73 Pa, St. 13. 436 THE CONTRACT AND ITS INCIDENTS. 152-157 If tlie owner of a life estate only, be insnred as liaA^ng an absolute title by an insurer who knows tbe true condition of the title, and demands and receives premium for insuring the entire ownership, it is liable to the same extent as if the as- sured owned the fee.^^^ The insurer is liable for all damage which is the direct and proximate result of the peril or event insured against, but no further.416 Eecovery for a building shattered by lightning, and the destruction of which is completed by a high wind, must be limited to the direct loss caused by lightning, where the policy expressly excludes all damage done by wind.^^'^ A policy on a building does not cover loss of profits during repair.^ ^^ Profits ordinarily cannot be recovered unless specially in- sured ;^^^ but they may be insured and recovered.^^'^ The insurer, in estimating the actual cash value of his goods at the time of the fire, is entitled to include in such value the profits, which, added to the cost of production, constitute the value.^^^ Rent constitutes a distinct insurable interest, *^' Western Assur. Co. v. Stoddard, 88 Ala. 606; Green v. Green, 50' S. C. 514, 46 L. R. A. 525; Harrison v. Pepper, 166 Mass. 288; Samp- son V. Grogan, 21 R. I. 174, 44 L. R. A. 711; post, c. 16. ^' See ante, "Proximate Cause." "^ Beakes v. Phoenix Ins. Co., 143 N. Y. 402, 26 L. R. A. 267. *i»In re Wright, 1 Adol. & E. 621; Niblo v. North American Fire Ins. Co., 1 Sandf. (N. Y.) 551. «» Niblo V. North American Fire Ins. Co., 1 Sandf. (N. Y.) 551; Stock V. Inglis, 9 Q. B. Div. 708. ""Carey v. London Provincial Fire Ins. Co., 33 Hun (N. Y.), 315; Employers' Liability Assur. Corp. v. Merrill, 155 Mass. 404, 21 N. B. 529; National Filtering Oil Co. v. Citizens'. Ins. Co., 106 N. Y. 535, 13 N. E. 337. "'■ Mitchell V. St. Paul German Fire Ins. Co., 92 Mich. 594, 52 N. W. 1017; Parrish v. Virginia F. & M. Ins. Co. (N. C), 20 Ins. Law J. 95; Canada Sugar Refining Co. v. Insurance Co. of North America, 175 U. S. 609; Hartford Fire Ins. Co. v. Cannon, 19 Tex. Civ. App. 305, 46 S. W. 85L §§ 152-157 LIABILITY OF IXSUEER. 437 wliich is not covered by a policy on a building/^^ The in- sured -v^ill be entitled to interest upon the amount he is en- titled to recover from the time fixed for payment, and not from the date of the fire.^^^ Proofs of loss are not conclusive upon the assured as to the extent of his damage.^^* An in- surer may be entitled to a deduction from the amount of its liability of a sum equal to the amount of its unpaid premium, although the statute of limitations would prevent its collec- tion. ^^^ The holder of a policy indemnifying him against liability from accidents occurring in connection with his busi- ness, is entitled to recover the expense of defending a suit for injuries covered'by the policy, where the insurer neglected to defend after notice.^^® The insurer is entitled to the benefit of any salvage. '^^'^ Rebuilding or Repairing. The right to rebuild cannot be exercised by an insurer, ex- cept it be given him by the contract.^^^ The effect of a pro- vision giving the insurer the right to rebuild, is to give him an option either to pay the money damage to the property destroyed, or replace it, or restore it to the condition in which it was before the fire. Giving the insurer the option to repair does not place upon him the obligation to repair, or to pay ^'Leonarda v. Phoenix Assur. Co., 2 Rob. (La.) 131; Farmers' Mut. Ins. Co. V. New Holland Turnpike Co., 122 Pa. St. 37, 15 Atl. 563. *=' Peoria M. & F. Ins. Co. v. Lewis, 18 111. 553; Webb v. Protec- tion Ins. Co., 6 Ohio, 456; Hastings v. Westchester Fire Ins. Co., 73 N. Y. 141. «^ Lebanon Mut. Ins. Co. v. Kepler, 106 Pa. St. 28; Sibley v. Pres- cott Ins. Co., 57 Mich. 14. See post, c. 13, "Proofs of Loss." "'Alexander v. Continental Ins. Co., 67 Wis. 422; Home Ins. Co. V. Adler, 71 Ala. 516. *-o Mandell v. Fidelity & Casualty Co., 170 Mass. 173, 49 N. E. 112. *-' Hough V. People's Fire Ins. Co., 36 Md. 398. *"-« Wallace v. Insurance Co., 4 La. 289. 438 THE CONTRACT AND ITS INXIDENTS. §g 152-157 the expenses of repairs made by tlie insure]. He may refuse to repair, and pay only the damage.^^^ Where parties eon- tract upon a subject surrounded by statutory limitations or requirements, or municipal ordinances which control the subject matter of the risk, they are presumed to have entered into their engagements with reference thereto, and these statutes and ordinances enl^r into and become a part of the contract, and the right to repair cannot be taken advantage of by an insurer, if the statute or ordinances governing the subject prevent repairing or rebuilding. *^*^ The right to re- pair or rebuild only becomes operative if taken advantage of by the insurer within the time stipulated in the policy. If no time is fixed by the policy the election must be made within a reasonable time.^'^^ When a policy binds the company, in case of loss, to either repair or pay, an election is established by any act manifesting a choice, and the election once made is irrevocable. ^^^ The effect of electing to rebuild, and notifying the insured thereof, is to convert the policy into a building contract, and the amount named in the policy ceases to be the rule of damages. If, after the insurer has undertaken to re- build, it desists from completing the structure, the measure of damages is the amount which will be necessary to complete the building, and restore it substantially to its former condi- tion.'*^^ The contract to rebuild is satisfied if the property *=°Brinley v. National Ins. Co., 11 Mete. (Mass.) 195. *2''Larldn v. Glens Falls Ins. Co., 80 Minn. 527, 83 N. W. 409; Fire Ass'n of Philadelphia v. Rosenthal, 108 Pa. St. 474; Brady v. North- western Ins. Co., 11 Mich. 425. "'Insurance Co. of North America v. Hope, 58 111. 75; Kelly v. Sun Fire Office, 141 Pa. St. 10; AVestchester Fire Ins. Co. v. Dodge, 44 Mich. 420; Maryland Home Fire Ins. Co. v. Kimmell, 89 Md. 43Y, 43 Atl. 764. *'" Fire Ass'n of Philadelphia v. Rosenthal, 108 Pa. St. 474. «^ Reals V. Home Ins. Co., 36 N. Y. 522; Zalesky v. Iowa Stale Ins. §§ 152-157 LIABILITY OF INSUKEE. 4:39 is made as good as it was before the fire.^^^ If tlie insured prevents the insurer from exercising his option to rebuild, he can recover nothing on his policy. ^^^ After an election to rebuild is made the insurer must proceed with the work with all reasonable despatch.^^*' An insurer in possession for the purpose of rebuilding, is under no obligation to pay rent, until after the lapse of a reasonable time for completion of re- pairs.^^^ An election to rebuild waives all known defenses available to the insurer ;^^^ and is a waiver of the right to arbitrate.^^^ The converse of this would seem to be true;^^^ unless the policy or stipulation for arbitration otherwise pro- vide.*^^ The denial of all liability under a policy, and re- fusal to pay the loss, is a waiver of the right to exercise the option to rebuild.^^2 An insurer is not liable for the falling of an uninsured party wall, during the reconstruction of the Co., 102 Iowa, 512, 70 N. W. 187; Morrell v. Irving Fire Ins. Co., 33 N. Y. 429, 88 Am. Dec. 396. *■'■* Franklin Fire Ins. Co. v. Hamill, 5 Md. 170. «' Beals V. Home Ins. Co., 36 N. Y. 522. "'Home District Mut. Ins. Co. v. Tliompson, 1 Up. Can. Err. & App. 247; American Cent. Ins. Co. v. McLanathan, 11 Kan. 553; Haskins v. Hamilton Mut. Ins. Co., 5 Gray (Mass.), 432. "' St. Paul F. & M. Ins. Co. v. Johnson, 77 111. 598. See Parker v. Eagle Fire Ins. Co., 9 Gray (Mass.), 152. Rebuilding; several insur- ers: Good V. Buckeye Mut. Fire Ins. Co., 43 Ohio St. 394; Morrell V. Irving Fire Ins. Co., 33 N, Y. 429. "'American Cent. Ins. Co. v. McLanathan, 11 Kan. 553; Bersche V. Globe Mut. Ins. Co., 31 Mo. 546; Bersche v. St. Louis Mut. F. & M. Ins. Co., 31 Mo. 555. «»Zalesky v. Iowa State Ins. Co., 102 Iowa, 512, 70 N. W. 187; Wynkoop v. Niagara Fire Ins. Co., 91 N. Y. 478. **» Elliott V. Merchants' & Bankers' Fire Ins. Co., 109 Iowa, 39, 79 N. W. 452; McAllaster v. Niagara Fire Ins. Co., 156 N. Y. 80, 50 N. E. 502. *" Piatt V. Aetna Ins. Co., 153 111. 113, 26 L. R. A. 853; Langan v. Aetna Ins. Co., 96 Fed. 705. ♦*■ Western Home Ins. Co. v. Richardson, 40 Neb. 1, 58 N. W. 597. 440 THE CONTRACT AND ITS INCIDENTS. §§ 152-157 insured premises.'*^" A clause in a policy giving the insurer the right to rebuild or repair, is solely for the benefit of the parties to the policy, and no one else can interpose to prevent its performance, or take advantage of the failure to give the notice within the prescribed time.^^^ Contribution and Pro-rating. A provision limiting the liability of the insurer to such pro- portion of the loss as the sum insured bears to the whole amount of the insurance, refers to such amount at the time of the loss, and does not make it obligatory upon the assured to continue insurance in force when the policy is^written.^*^ A pro\dsion that the loss shall be apportioned among all in- surers, applies only where there is other valid insurance. There is no theory of apportionment of contribution, which will relieve an insurer from its liability to the full amount, until the insured has received the indemnity stipulated for.^^^ The contribution only refers to policies insuring the same interest.^^'^ There can be no apportionment where the loss exceeds the total amount of insurance. ^^^ <« Alter V. Home Ins. Co., 50 La. Ann. 1316, 24 So. 180. *** Stamps V. Commercial Fire Ins. Co., 77 N. C. 209, 24 Am. Rep. 443. "'Lattan v. Royal Ins. Co., 45 N. J. Law, 453; Quarrier v. Pea- body Ins. Co., 10 W. Va. 507. See, also, on pro-rating. Sun Ins. Office V. Varble (Ky.), 46 S. W. 486, 27 Ins. Law J. 798; Breed v. Providence Wash. Ins. Co., 17 Blatchf. 287, Fed. Cas. No. 1,826; Sherman y. Madison Mut. Ins. Co., 39 Wis. 104. ""Jersey City Ins. Co. v. Nichol, 35 N. J. Eq. 291; Niagara Fire Ins. Co. V. Heenan & Co., 81 111. App. 678; Niagara Fire Ins. Co. v. Scammon, 144 111. 490. "'Traders' Ins. Co. v. Pacaud, 150 111. 245. 'For effect of Union Mortgage Clause, see Eddy v. London Assur, Corp., 143 N. Y. 311, 25 L. R. A. 686; Hartford Fire Ins. Co. v. Williams (C. C. A.), 63 Fed. 925; Page v. Sun Ins. Office, 64 Fed. 194. ""Ogden V. East River Ins. Co., 50 N. Y. ,388; Pencil v. Home Ins. §§ 152-157 LIABILITY OF INSCRER. 441 Successive Fires. The insurer is bound to indemnify the insured during the period covered by the policy against one and all of the perils insured against, not however to an amount in excess of the face of the policy. Thus, the insurers will be obliged to pay upon the second loss the difference between the amount in- sured, and what they had already paid on a previous loss.^^'' If, under a valued policy, the property is totally destroyed as the result of two or more fires, the measure of recovery for the final loss is the total amount of insurance written, less the amount paid in settlement of previous losses. '*^*^ Breach of Contract. The liability of an insurer for failure to issue a policy of insurance, or to insure property according to his agreement, has been dealt with elsewhere.''^ ^ An insurer must always respond in damages for its failure to carry out the contract made by it. The damages recoverable in any case for a breach of contract, are such as naturally result from the act com- plained of. It has been held that purely fraternal benefit as- sociations are not liable in damages for an unlawful cancella- tion of a membership, because such a corporation acts purely as a trustee to collect and distribute a sick or death fund, and Co., 3 Wash. 485; Pelzer Mfg. Co. v. Sun Fire Office, 36 S. C. 213, See, also, on contribution and pro-rating, Teague v. Germania Fire Ins. Co., 71 Ala. 473; Peoria M. & F. Ins. Co. v. Wilson, 5 Minn. 53 (Gil. 37); Gandy v. Orient Ins. Co., 52 S. C. 224, 29 S. E. 655, 27 Ins. Law J. 575; Chandler v. Insurance Co. of North America, 70 Vt. 562, 41 Atl. 502; Lesure Lumber Co. v. Mutual Fire Ins. Co., 101 Iowa, 514, 70 N. W. 761; Page v. Sun Ins. Office (C. C. A.), 74 Fed. 203; Erb v. Fidelity Ins. Co., 99 Iowa, 727, 69 N. W. 261. ""Curry v. Com. Ins. Co., 10 Pick. (Mass.) 535, 20 Am. Dec. 547. ^^^ Lancashire Ins. Co. v. Bush, 60 Neb. 116, 82 N. W. 313. See, also, Hamburg-Bremen Fire Ins. Co. v. Garlington, 66 Tex. 103; Trull V. Roxbury Mut. Fire Ins. Co., 3 Cush. (Mass.) 263; Batchelder V. Insurance Co. of North America, 30 Fed. 459. *" Ante, c. 3. •i-12 THE CONTRACT AKD ITS INX^IDEXTS. §§ 152-157 has no power to collect money except for tliat purpose. ^^^ But damages are recoverable against other insurance corporations, for an unlawful forfeiture of a contract of insurance, or for failure to receive premiums, or refusal to deliver any contract agTeed to be delivered. There are decisions to the effect that the measure of damages for a breach of a life insurance con- tract is the amount of premiums paid, with interest. But the sounder rule is that the damages are to be measured by the position occupied by the parties at the time the breach occurs. If at that time the health of the insured has become impaired to such an extent as to make it impossible for him to secure other insurance, the extent of his damages would be different than if new insurance could be had. If he could at that time take similar insurance in a responsible company, the measure of damages would be the difference between the cost of such new insurance for the temi of his natural life, according to the mortuary tables, and the cost of caiTving the canceled policy for the same period upon the terms previously made. But if his health had become impaired, so that new insurance could not be procured, the measure of damages would seem to be the present value of the policy, as of the date of death, less the estimated cost of carrying the same, from the date of cancellation.^^^ A re-classing of members in a mutual company, is not a repudiation of a policy or certificate. ^^^ The measure of re- covery in an action for rescission of a contract induced by «= Lavalle v. Societe St. Jean Baptiste, 17 R. I. 680, 24 All. 467. *''' Ebert v. Mutual Reserve Fund Life Ass'n, 81 Minn. 116, 83 N. W. 506; Speer v. Phcenix Mut. Life Ins. Co., 36 Hun (N. Y.), 322. See, also, Brooklyn Life Ins. Co. v. Week, 9 111. App. 358; Alabama Gold Life Ins. Co. v. Garmany, 74 Ga. 51; Clemmitt v. New York Life Ins. Co., 76 Va. 355; New York Life Ins. Co. v. Clemmitt, 77 Va. 366. *"■' Lee V. Mutual Reserve Fund Life Ass'n, 97 Va. 160, 33 S. E. 556. §§ 152-157 LIABILITY OF LNSUEER. 443 false representations, is tlie amount of premiums paid, Tvith interest. ^°^ The measure of damages for breach of an agree- ment to assign a policy of insurance, is the cost of the insur- ance for the unexpired term of the policy, not the damage caused by the subsequent destruction of the insured prop- erty.^^^ The measure of damages for the breach of a contract to deliver a paid-up policy, where there is an existing risk, is the value of such policy at the time of demand, with interest thereon.'*^^ Where one party to an executory con- tract prevents the performance of it, or puts it out of his o^^•n power to perform — as, in case of a re-insurance, a trans- fer of assets, or insolvency of an insurer — the other may regard the contract as terminated, and recover whatever dam- age he has sustained thereby. '^^^ Distribution of Surplus — Mutual Company. The equitable share of the surplus of a mutual insurance company, which a policy holder should be credited with, is such share as may, with due regard to the safety of all policy holders, and the security of the business of the company, in the exercise of a proper discretion, be thus credited. No title to any part of such surplus, which will enable a policy holder to maintain an action at law for its recovei-y until the dis- *" Rohrschneider v. Knickerbocker Life Ins. Co., 76 N. Y. 216. «' Dodd V. Jones, 137 Mass. 322. «' Phoenix Mut. Life Ins. Co. v. Baker, 85 IlL 410; Rumbold v. Penn Mut. Life Ins. Co., 7 Mo. App. 71. See, also, American Life Ins. & Trust Co. v. Shultz, 82 Pa. St. 46; Watts v. Pha?nix Mut. Life Ins. Co., 16 Blatchf. 228, Fed. Cas. No. 17,294. ^'Lovell V. St. Louis Mut. Life Ins. Co., Ill U. S. 264; People v. Empire Mut. Life Ins. Co., 92 N. Y. 106; Mason v. Cronk, 125 N. Y. 503; Insurance Com'r v. Provident Aid Soc, 89 Me. 413, 36 Atl. 627; Davenport Fire Ins. Co. v. Moore, 50 Iowa, 626; People v. Security Life Insurance & Annuity Co., 78 N. Y. 114; Universal Life Ins. Co. V. Binford. 76 Va. 103. 4ii THE CONTRACT AND ITS INCIDENTS. §§ 152-157 tribution is made by tbe officers of tbe company, is given by a policy providing that tlie members sliall be entitled to partici- pate in the distribution of the surplus according to such principles and methods as may from time to time be adopted, •which are expressly ratified and accepted by him.^^^ A court ^\ill not interfere in the apportionment or distribution, unless fraud or irregularity be shown 400 Avoidance of Settlement. An adjustment or a settlement of a loss cannot be opened or set aside except upon the ground either of fraud or mistake of facts not known. If there was fraud in the original con- tract, or any ground for its avoidance, not known when the loss was paid, or if the loss was paid in ignorance of some ■circumstances attending it wdiich if known would have enabled the insurers to resist the claim, the money may be recovered back. But if they knew when they paid the loss, or upon in- quiry might have informed themselves, of the grounds upon which they might have resisted the claim, they cannot after- wards recover it back, for this would open the door for infinite litigation.^*'^ ^^"Greeff v. Equitable Life Assur. Soc, 160 N. Y. 19, 46 L. R. A. 288. *">Gadd V. Equitable Life Assur. Soc, 97 Fed. 834. See, also, Hines v. Mutual Life Ins. Co. (Ky.), 33 S. W. 202, 25 Ins. Law J. 555; Greeff v. Equitable Life Assur. Soc, 160 N. Y. 19, 46 L. R. A. 288. *«'Dow v. Smith, 1 Caines (N. Y.), 32; Farmers' & Merchants' Ins. Co. V. Chesnut, 50 111. Ill; Mutual Life Ins. Co. v. Wager, 27 Barb. (N. Y.) 367; "Whipple v. North British & M. Fire Ins. Co., 11 R. I. 139; Milne v. Northwestern Life Assur. Co., 23 Misc. Rep. 553, 52 N. Y. Supp. 766; Belt v. American Cent. Ins. Co., 29 App. Div. 546, 53 N. Y. Supp. 316; Wood v. Massachusetts Mut. Ace Ass'n, 174 Mass. 217, 54 N. E. 541; Stache v. St. Paul F. & M. Ins. Co., 49 Wis. *9, 35 Am. Rep. 773; Nebraska & 1. Ins. Co. v. Segard, 29 Neb. 354, 45 N. W. 681; Northwestern Mut. Life Ins. Co. v. Elliott, 5 Fed. 225. See ante, c. 3. §§ 152-157 LIABILITY OF IN'SUKEB. 445 Total Loss. The term "total loss," or "wholly destroyed," as iised in a valued policy, does not imply an absolute extinction of the component parts of a building insured. It refers to a condi- tion of the building, after it has been damaged to such an extent that the remnant left standing is either unfit for use in rebuilding, or is so damaged that a prudent owner, uninsured, desiring just such a building as was damaged by fire, would not deem it practicable, or economical, to use the remnant in rebuilding. There can be no total loss of a building, so long as the remnant of the structure standing is reasonably adapted for and has a substantial value for use as a basis on which to restore the building to the condition in which it was before the injury. And Avhether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question was before the injury, would, in proceeding to replace the damaged building, utilize such remnant in so doing. Upon this issue evidence as to the cost of repairing and restoring the building is admissible. ^^^ The words "total loss" or "wholly de- stroyed," when applied to a building, mean totally destroyed as a building; that is, that the walls, although standing, are unsafe to use for the purpose of rebuilding, and must be torn down, and a new building erected throughout. '^^^ Keeping in view the fact that the contract of insurance is essentially a contract of indemnity, it is difficult to understand how a building can be said to be totally destroyed so long as any parts of it which are subject to the action of fire re- *«' Providence Wash. Ins. Co. v. Board of Education of Morgans- town School Dist. (W. Va.), 30 Ins. Law J. 601. 38 So. 679; Corbett v. Spring Garden Ins. Co.. 155 N. Y. 389; Ampleman v. Citizens' Ins. Co.. 35 Mo. App. 308, 320, 18 Ins. Law J. 393; Northwestern Mut. Life Ins. Co. V. Rochester German Ins. Co., 88 N. W. 265. «' German Ins. Co. v. Eddy, 36 Neb. 461, 19 L. R. A. 707. 446 THE CONTRACT AND ITS INCIDENTS. §§ 152-157 main standing, and can, without removal, be effectively, and with a substantial saving in cost, utilized in its reconstruction, so that the building, when rebuilt, shall be in as good condi- tion as it was before the fire.^^^ But there is a line of author- ities sustaining an opposite view, and holding that the test is whether the building has lost its identity and specific character as a building, and become so far disintegrated that it cannot be properly designated as a building. *^^ It would seem that the practical difficulties in the applica- tion of the rule last mentioned are almost insuperable. Tew of the cases following it have presented any question as to the substantial value of the remnant and its practical use for purposes of rebuilding such a structure as was damaged. Of this the supreme court of Texas has well said : "To push the idea of 'destruction in specie' to the extent of excluding all consideration of the adaptability of the remainder of the structure for use in restoring the building to its original con- dition, * * * would leave us with practically no guide, as it would be more difficult to determine the meaning of 'destruction in specie' as thus limited, than of 'total loss.' It would logically result in denying recovery for a total loss *" Ampleman v. Citizens'. Ins. Co., 35 Mo. App. 308, 320, 18 Ins. Law J. 393. See, also, Insurance Co. of North America v. Bachler, 44 Neb. 549, 62 N. W. 911; Ohage v. Union & Miner Ins. Co., 85 N. W. 212; Murphy v. American Cent. Ins. Co. (Tex. Civ. App.), 54 S. W. 407; Hamburg-Bremen Fire Ins. Co. v. Garlington, 66 Tex. 103. 33 Cent. Law J. 319; Larkin v. Glens Falls Ins. Co., 80 Minn. 527, 83 N. W. 409; Manchester Fire Assur. Co. v. Feibelman, 118 Ala. 308, 23 So. 759. «' Williams v. Hartford Ins. Co., 54 Cal. 442; O'Keefe v. Liver- pool, L. & G. Ins. Co., 140 Mo. 564, 41 S. W. 922; Oshkosh Packing & Provision Co. v. Mercantile Ins. Co., 31 Fed. 200. See, also, Seyk V. Millers' Nat. Ins. Co., 74 Wis. 67; Lindner v. St. Paul F. & M. Ins. Co., 93 Wis. 526, 67 N. W. 1125; Palatine Ins. Co. v. Weiss (Ky.), 59 S. W. 509. §§ 152-157 LIABILITY OF INSURER. 447 in a case where the exterior form of the building remains, though the interior be so damaged that the entire remnant of , the structure is valueless as a basis upon which to restore the building to its original condition, and would permit a recov- ery for a total loss in a case where an inexpensive portion of the building has been destroyed, though the most valuable and substantial portion remains uninjured, and capable of being utilized with great advantage in such restoration. To so hold would virtually be to abandon the principle -of indem- nity lying at the basis of all legitimate insurance, and to hold out to the owner, instead thereof, a fair chance, if not an inducement, to profit by the partial destmction of his prop- erty."^^^ Machinery placed in a mill building, and firmly attached to it, is real property subject to the provisions of a valued- policy law.^^'^ Total Disability. "Wholly disabled," "permanently disabled," and "total disability," as used in policies of accident and benefit insur- ance, are relative terms, and apply to the physical condition of the insured, in connection with the business in which he is engaged. They refer to incapacity of the insured to prosecute his business, and to his inability to perfomi sub- stantially the duties necessarily incident to his occupation.'*''^ '""Royal Ins. Co. v. Mclntyre, 90 Tex. 170, 35 L. R. A. 672. *" British American Assur. Co. v. Bradford, 60 Kan. 82, 55 Pac. 335, 28 Ins. Law J. 262. See Havens v. Germania Fire Ins. Co., 123 Mo. 403, 24 Ins. Law J. 321; Aetna Ins. Co. v. Glasgow Electric Light & Power Co. (Ky.), 28 Ins. Law J. 992. «»See ante, "Total Disability," notes 163, 165, 125, 126; Lobdill V. Laboring Men's Mut. Aid Ass'n, 69 Minn. 14; Turner v. Fidelity & Casualty Co., 112 Mich. 425, 38 L. R. A, 529, and notes thereto. 4-48 THE CONTRACT AND ITS INCIDENTS. §§ 152-157 Recovery by Insured from One Causing Fire. The rule is well settled tliat where, by the actionable negli- gence of any person, insured property is damaged or destroyed, the 0"^vner of the property can recover his entire loss from the tort-feasor, without regard to the amount of insurance there may be on the property. ^^^ The assured may have two rights of action, but he has only one damage. If he recovers against the tort-feasor, he thereby diminishes his claim against the insurer to the extent of the amount recovered. ^''^^ ^» Cunningham v. Evansville & T. H. R. Co., 102 Ind. 478, 1 N. E. 800; Lake Erie & W. R. Co. v. Griffin, 8 Ind. App. 47, 35 N. E. 396. ^™Hart V. Western R. Corp., 13 Mete. (Mass.) 99; Chickasaw County Farmers' Mut. Fire Ins. Co. v. Weller, 98 Iowa, 731, 68 N. W. 443; Anderson v. Miller, 96 Tenn. 35, 31 L. R. A. 604. See port, c. 17, "Subrogation." CHAPTER XIII. NOTICE AND PROOFS OF LOSS. § 158. Stipulations of Policy. 159. Construction. 160. Mutual Insurance Companies. 161. Statutory Regulation. 162. Distinction between Notice and Proofs. 163. Several Policies of Same Insurer. 164. No Policy Issued. 165. Total Loss under Valued Policy. 166. Computation of Time. 167. Conditions Requiring Strict Performance. 168. Liberal Construction of Conditions. 169. Excuses for Noncompliance. 170. Conditions Not Requiring Strict Compliance. 171. Time to Furnish Not Definite. 172. Form and Contents. 173. Certificate of Magistrate, Notary Public, etc. 174. Who Must Furnish. 175. Mortgagee. 176. Partnership. 177. Assignee. 178. Creditor. 179. To Whom Given. 180. Manner of Service. 181. Proofs, as Evidence. 182. Fraud, Misrepresentation and False Swearing. 183. Examination of Insured under Oath. 184. Books of Account, Invoices, etc. Stipulations of Policy. § 158. Conditions in insurance policies requiring the insurer to furnish notice and proofs of loss are valid, and must be complied with, unless waived by the insurer. Insurance policies usually contain some provisions requir- ing the insured to furnish to the insurer either within a KERR, INS.— 39 450 NOTICE AND TEOOFS OF LOSS. § 158 stated or a reasonable time after accident, loss or damage, for Avliicli claim under tlie policy is to be made, notice of loss, or proofs of loss, or both. The consequences attendant upon a failure to comj^lj with these conditions depend upon the Avording of the policy. All the rights of the insured will, in some cases, be forfeited; in others, his right to sue on the policy will only be postponed and delayed until full com- pliance. The provisions concerning notice of loss and proofs of loss are severable and distinct. The giving of proofs may be notice, but the giving of notice does not dispense with proofs, if the policy requires the giving of the latter. These provisions are inserted for the benefit of the insurer. The object is to give it information which it might otherwise be able to obtain only with great difficulty, if at all, and upon which its rights might depend. The conditions may be waived by the insurer, either expressly, or by acts or conduct from which an intent to waive is clearly inferable. If the policy is silent as to the kind of notice required, either verbal or wi'it- ten notice is sufficient ; but if written notice be stipulated for, it must be furnished. Such provisions are valid ; but as they savor of the nature of forfeitures, they are liberally construed in favor of the insured.-^ ^ McLaughlin v. Washington County Mut. Ins. Co., 23 Wend. (N. Y.) 525, 2 Bennett, Fire Ins. Cas. 17; Prendergast v. Dwelling House Ins. Co., 67 Mo. App. 426; Bartlett v. Union Mut. Fire Ins. Co., 46 Me. 500; American Cent. Ins. Co. v. Hathaway, 43 Kan. 399; Eiseman v. Hawkeye Ins. Co., 74 Iowa, 11, 36 N. W. 780; Niagara Fire Ins. Co. v. Scammon, 100 111. 644; Scammon v. Germania Ins. Co., 101 111. 621; Lane v. St. Paul F. & M. Ins. Co., 50 Minn. 227; Tripp V. Provident Fund Soc, 140 N. Y. 23, 22 L. R. A. 432; Peele V. Provident Fund Soc, 147 Ind. 543; Matthews v. American Cent. Ins. Co., 154 N. Y. 449, 3^ L. R. A. 433; Paltrovich v. Phoenix Ins. Co., 143 N. Y. 73, 25 L. R. A. 198; Riddlesbarger v. Hartford In?. Co., 7 Wall. (U. S.) 390; German Ins. Co. v. Davis, 40 Neb. 700. 59 N. W. 698; Weidert v. State Ins. Co., 19 Or. 261, 24 Pac. 242; Gamble § 159 construction of conditions of policy. 451 Same — Constructio^st. § 159. The stipulations of a policy which relate to the pro- cedure merely, after the occurrence of a loss, are to be reason- ably and not rigidly construed, when this can be done without violating the express terms of the contract. The contract of insurance being a voluntary one, the in- surers have a right to designate the terms upon which they will become liable for a loss. The insurer and insured can, in the absence of legislative interference, make a contract to their mutual liking, and can insert in it such conditions and agreements as they choose, regulating the rights, duties and obligations of each, both before and after loss ; providing al- ways they are not unreasonable or contrary to public policy or the law of the land. And when the parties have made their own contract, have agreed upon their own terms and assented to certain conditions, the courts cannot change them and must not permit them to be violated or disregarded. The conditions may seem, harsh and useless, but they are the re- sult of the meeting of the minds of parties capable in law of contracting, and if they have not been waived, or if one party has not been prevented from complying by the act of the other, all conditions must be respected and enforced. The province of a court is merely to construe and not to make contracts ; hence it follows that where the terms of a policy are explicit and unambiguous, a court can only enforce it as an ordinary contract, giving to the provisions their ordinary meaning and effect, and rejecting any portions which are obnoxious to the objections above mentioned. V. Accident Assur. Co., 4 Ir. R. C. L. 204; Northwestern Ins. Co. v. Atkins, 3 Bush (Ky.), 333. The insolvency of a credit guaranty in- surance company during the life of a policy issued by it is such a breach of the contract as will entitle the insured to recover on a quantum meruit without furnishing the proof stipulated for. Smith V. National Credit Ins. Co., 65 Minn. 283, 33 L. R. A. 511. 452 NOTICE AND PROOFS OF LOSS. § 159 But when tlie conditions and requirements of a policy are vague, indefinite, or uncertain, and when a literal construc- tion would lead to manifest injustice to the insured, and a liberal but still reasonable construction would prevent injus- tice, the latter should be adopted, because the parties are pre- sumed, when the language used by them permits, to have intended a reasonable and not an unreasonable result. What the insured absolutely must do in the way of giving notice of proofs of loss, is often difficult to determine. The conditions bearing on this question are frequently found scattered through different portions of the policy. These must all be read together in ascertaining what compliance on the part of insured is made essential to his right of recovery.^ Thus where a policy after prescribing that immediate notice must be given to the insurer and specifying the particulars to be stated in the notice, declares "that the failure to give such immediate notice, mailed within ten days from the happening of the accident, shall invalidate all claims under the cer- tificate," the forfeiture clause is properly construed as being intended to apply to the failure to give a prompt notice, and not to the omission from a notice promptly furnished of some particular enumerated in the former clause.^ * Aetna Ins. Co. v. People's Bank of Greenville (C. C. A.), 62 Fed. 224; Columbian Ins. Co. v. Lawrence, 2 Pet. (U. S.) 25, 10 Pet. 507; Rheims v. Standard Fire Ins. Co., 39 W. Va. 672; Carpenter y. Ger- man American Ins. Co., 52 Hun (N. Y.), 249; Heywood v. Maine Mut. Ace. Ass'n, 85 Me. 289; Phillips v. United States Benev. Soc, 120 Mich. 142, 79 N. W. 2; Trippe v. Provident Fund Soc, 140 N. Y. 23; Matthews v. American Cent. Ins. Co., 154 N. Y. 449, 39 L. R. A. 433; Peele v. Provident Fund Soc, 147 Ind. 543; Badger v. Glens Falls Ins. Co., 49 Wis. 389; cases ante. See post, § 168, "Liberal Construction of Conditions." * Martin v. Manufacturers' Ace. Ind. Co., 151 N. Y. 95. ■§§ igo, 161 statdtort regulation. 453 Same — Mutual Companies. § 160. The same rules govern both stock and mutual insur- ance companies. Provisions in By-laws of Mutual Companies. If the by-laws of a mutual insurance company are made part of the contract of insurance, any provisions they may ' contain regulating the time or manner of giving notice or proof and the contents thereof, are binding upon the insured equally as if incorporated in the contract itself.^ But where a by-law of a sick benefit association requires of the insured as a condition precedent to recovery, the fur- nishing of proofs certified to by a medical examiner who is the appointee and agent of the insurer, and the insured upon being taken sick promptly notified the insurer and thereafter in due time furnished proofs in proper form except that they were not certified to by the medical examiner, who without fault or neglect of the insured, had refused to sign them, it was held that the defendant could not escape liability because of such negligence, omission or default of its own agent.** Statutory Regulation. § 161. The giving of notice and proofs of loss is sometimes regulated by statute. In some states the legislature has limited the time within which proof or notice can be' required by the insurer. In * Smith V. Haverhill Mut. Fire Ins. Co., 1 Allen (Mass.), 297, 79 Am. Dec. 733; Troy Fire Ins. Co. v. Carpenter, 4 Wis. 20. ■' Young V. Grand Council, A. O. of A., 63 Minn. 506, distinguishing Lane v. St. Paul F. & M. Ins. Co., 50 Minn. 227. See, also. Supreme Council, C. B. L., v. Boyle, 10 Ind. App. 301; Anderson v. Supreme Council, 0. of C. F., 135 N. Y. 107; Lorscher v. Supreme Lodge, K. of H., 72 Mich. 316, 40 N. W. 545; Sheanon v. Pacific Mut. Life Ins. Co., 83 Wis. 507, 53 N. W. 878; Albert v. Order of Chosen Friends, 34 Fed. 721. 454 NOTICE AND PROOFS OF LOSS. § 162 Maine, an act was passed in 1893 to the effect tliat no stipula- tion in an accident insurance policy wliich limits the time within which notice shall be given to a period of less than sixty days (amended in 1895 to thirty days) after the acci- dent, shall be valid. This act does not apply however, to any contracts previously made. No legislative enactment can make invalid a provision in an executed policy otherwise valid.® And the Indiana statute (Burns' Eev. St. 1894, § 4923) declares invalid, as unreasonable, a condition requiring that the nctice of loss shall be furnished immediately or within five days, and requires of the insured only reasonable dili- gence in giving the notice. Under this statute notice given within fifteen days is given within a reasonable time.'^ Distinction Between Notice and Peoof Sometimes Required. § 162. If notice of loss and proof of loss are required by the policy they must both be furnished within the prescribed time. Where notice and proof are both required as conditions precedent to a right of action under the contract, they are dis- tinct and separate acts, and both must be furnished. Proof of loss, if seasonably made, might serve for both tlie proof and notice contemplated, as the more authentic and verified in- formation contained in the proofs would ordinarily convey all the particulars Avhich would be communicated by the in- ' Hey wood v. Maine Mut. Ace. Ass'n, 85 Me. 289; Kimball v. Ma- sons' Fraternal Ace. Ass'n, 90 Me. 183; Bailey v. Hope Ins. Co., 56 Me. 474. 'Gerraania Fire Ins. Co. v. Deckard, 3 Ind. App. 361, 28 N. B. 868; Insurance Co. of North America v. Brim, 111 Ind. 281; Trippe v. Provident Fund Soc, 140 N. Y. 23. See, also, Gen. St. Conn. § 2839; Rev. St. Me. 1883, p. 446, § 21; 2 Rev. St. Ind. 1888, § 3770; Rev. Laws Vt. 1880, § 3626; Gen. Laws Minn. 1895, c. 175, § 25. § 163 SEVERAL POLICIES OF SAME INSURER. 455 formal notice, but the converse is not true. A mere notice cannot supply the place of or dispense with, the more formal proof provided for in the policy.* And a statement of loss which complies with the statute and the requirements of the policy both as to notice and proof and is served in -time, will suffice for both, even though in- tended by the insured only as a notice.® But because both notice and proof are required by the policy it does not follow that they must be both given at the same time. The giving of a notice may be waived by the insurer without thereby waiving the service of the proof. ^*^ Several Policies of Same Iistsurer. § 163. A single notice or proof to an insurer carrying sev- eral policies may suflBlce. Where two policies upon the same life, issued by the same company, call for the same proof of death and proofs under one policy are accepted without objection, the representatives of the insured are not bound, in the absence of a special re- quirement to that effect, to furnish other proofs under the second policy. ^^ In New York it has been held that four policies, all similar 'O'Reilly v. Guardian Mut. Life Ins. Co., 60 N. Y. 173; Under- wood Veneer Co. v. London G. & A, Co., 100 Wis. 378, 75 N. W. 996; Foster v. Fidelity & Casualty Co., 99 Wis. 447, 75 N. W. 69; post, note 63. » Parks V. Anchor Mut. Fire Ins. Co., 106 Iowa, 402, 76 N. W. 743. "Central City Ins. Co. v. Gates, 86 Ala. 558; Niagara Fire Ins. Co. V. Scammon, 100 111. 644; Lane v. St. Paul F. & M. Ins. Co., 50 Minn. 227; O'Reilly v. Guardian Mut. Life Ins. Co., 60 N. Y. 173; Graves, v. Merchants' & Bankers' Ins. Co., 82 Iowa, 637; Badger v. Glens Falls Ins. Co., 49 Wis. 389, 5 N. W. 845; Rines v. German Ins. Co., 78 Minn. 46, 80 N. W. 839; Killips' v. Putnam Fire Ins. Co., 28 Wis. 472; Sum- merfield v. Phoenix Assur. Co., 65 Fed. 292. " Girard Life I., A. & T. Co. v. Mutual Life Ins. Co., 97 Pa. St. 15. 456 NOTICE AND PROOFS OF LOSS. § 164 except as to dates, amounts, and numbers, issued by tlie same insurer upon the same property, constitute essentially one policy; and proofs of loss on one, followed by a description of the- other three, are sufficient. -^^ No Policy Issued. § 164. The furnishing of notice or proof of loss is not a con- dition precedent to the maintenance of a suit for breach of an oral agreement to insure. The neglect of the insured to make a certificate and proofs of loss within the time required by the ordinary policies of the insurer, will not prevent a recovery in an action for breach of a parol contract to insure property destroyed and to issue a policy thereon, ^^ unless the form of policy contem- plated be fixed by law and requires proofs. ^^^ But in a suit upon a contract to issue a policy of insurance (though none was in fact issued) there can be no recovery for a loss, unless the conditions as to notice and statements of loss, contained in policies of the form usually issued by the in- surer, are complied with or waived. ^^ 1= Dakin v. Liverpool, L. & G. Ins. Co., 13 Hun, 122, 77 N. Y. 600'. ^^ Nebraska & I. Ins. Co. v. Seivers, 27 Neb. 541, 43 N. W. 351; Tayloe v. Merchants' Fire Ins. Co., 9 How. (U. S.) 390; Gold v. Sun Ins. Co., 73 Cal. 216; New England F. & M. Ins. Co. v. Robin- son, 25 Ind. 536; Campbell v. American Fire Ins. Co., 73 "Wis. 100. 40 N. W. 661; Sanford v. Orient Ins. Co., 174 Mass. 416, 49 Cent. Law J. 467. See, also, Wooddy v. Old Dominion Ins. Co., 31 Grat. (Va.) 362; Baile v. St. Joseph F. & M. Ins. Co., 73 Mo. 371-387; Eureka Ins. Co. v. Robinson, 56 Pa. St. 266. "' Hicks V. British American Assur. Co., 162 N. Y. 284. "Barre v. Council Bluffs Ins. Co., 76 Iowa, 609, 41 N. W. 373; American Cent. Ins. Co. v. Simpson, 43 111. App. 98. Quaere: Whether the difference in the forms of action is the basis of the different results arrived at. §§ 165, 166 computation of time. 457 Total Loss Under Valued Policy. § 165. Proofs must be furnished if required by the condi- tions of a valued policy even though the loss be total. The autliorities arc conflicting on tlie question as to whether proofs are necessary in case of total loss under a valued policy. The better reasoning would seem to be that they are, and that the insurer is entitled to the benefit of the inforaiation which is required in the proofs as distinguished from the meagre statements found in a notice. The federal courts hold that the provisions of a policy requiring the furnishing of proofs must be complied with, even though the loss be total and the value of the property destroyed exceeds the amount for which it is insured. ^^ But Pennsylvania and Texas have held that where the policy is a valued one and the loss total, and notice of loss has been properly given, proofs are unnecessary.^'' And Michigan has held that the provisions of a policy requir- ing the insured in case of fire to separate the damaged and undamaged property and make a complete inventory thereof, does not require an inventory of property totally destroyed. "^^ Computation" of Time. § 166. The time for furnishing notice and proofs is computed Ijy the rules that obtain in the construction of other contracts. The time for furnishing notice or proofs of loss usually begins to run from the date of the loss. The ordinary rules "Summerfield v. Phoenix Assur. Co., 65 Fed. 292; McCollum v. Hartford Fire Ins. Co., 67 Mo. App. 76. "Pennsylvania Fire Ins. Co. v. Dougherty, 102 Pa. St. 568; Roe v. Dwelling House Ins. Co., 149 Pa. St. 94; Wellcome v. People's Equi- table Mut. Fire Ins. Co., 2 Gray (Mass.), 480; Harkins v. Quincy Mut. Fire Ins. Co., 16 Gray (Mass.), 591; Georgia Home Ins. Co. v. Leaverton (Tex. Civ. App.), 33 S. W. 579; Weiss v. American Fire Ins. Co., 148 Pa. St. 350, 23 Atl. 991. See, also, Meyer v. Insurance Co. of North America, 73 Mo. App. 166. "Johnston v. Farmers' Fire Ins. Co., 106 Mich. 96, 64 N. W. 5. 45 S NOTICE AND PROOFS OF LOSS. § 167 governing tlie compntation of time control. ^^ In some cases the provisions of policies have been so construed that time does not begin to run till after the discovery of the loss or accident for which claim is to be made.^^ Condition's Requiring Strict Performance. §167. Furnishing notice of loss or proofs of loss, or both, within a specified time is often a condition precedent to a right of action by the insured. When a policy of insurance requires notice of loss, or proof of loss, or both, to "be furnished to the insurer within certain prescribed periods after the happening of the fire, damage, loss, death, or accident for w^hich claim under the policy is to be made, as a condition precedent to the right to maintain an action on the policy, such provisions must be strictly complied with to enable the insured to recover, and a failure so to do^ will, unless waived by the insurer, operate to defeat a recovery under the policy. ^^ But a policy requiring notice of loss to be "Ante, notes 1--6, 19; Badger v. Glens Falls Ins. Co., 49 Wis. 389, 5 N. W. 845. "Trippe v. Provident Fund Soc, 140 N. Y. 23, 22 L. R. A. 432; Peele v. Provident Fund Soc, 147 Ind. 543; Cooper v. United States Mut. Ben. Ass'n, 132 N. Y. 334, 16 L. R. A. 138; Kentzler v. Ameri- can Mut. Ace. Ass'n, 88 Wis. 589, 60 N. W. 1002; Hoffman v. Manu- facturers' Ace. Ind. Co., 56 Mo. App. 301; Wooddy v. Old Dominion Ins. Co., 31 Grat. (Va.) 362; Konrad v. Union Casualty & Surety Co., 49 La. Ann. 636; Mandell v. Fidelity & Casualty Co., 170 Mass. 173; Coventry Mut. Life Stock Ins. Ass'n v. Evans, 102 Pa. St. 281; American Surety Co. v. Pauly, 170 U. S. 133; Phil- lips V. United States Benev. Soc, 120 Mich. 142, 79 N. W. 1. But see Foster v. Fidelity & Casualty Co., 99 Wis. 447, 75 N. W. 69; Un- derwood Veneer Co. v. London G. & A. Co., 100 Wis. 378, 75 N. W. 996. =" Swain v. Security Live-Stock Ins. Co., 165 Mass. 322; Riddles- barger v. Hartford Ins. Co., 7 Wall. (U. S.) 390; Weidert v. Stale Ins. Co., 19 Or. 261, 24 Pac. 242; Gould v. Dwelling House Ins. Co., 90 Mich. 302, 51 N. W. 455; Scammon v. Germania Ins. Co., 101 111. § 167 CONDITIONS REQUIEING STRICT PERFORMANCE. 459 furnished within a given time will not he constmed as forfeit- ing the rights of the insured for failure so to do, unless such result he clearly stipulated for.^i Thus under an accident insurance policy providing that it does not cover disappear- ances, and requiring positive proof of death to be funiished within six months from the date of the accident, the time for furnishing proofs of death does not expire in six months from the disappearance of the insured, where his body is not found and his death not certainly ascertained until more than six months after his disappearance.^^ The knowledge of the insurer that a loss has occurred, does not relieve the insured from the duty of giving notice and making proofs of loss according to the terms of the policy.^"^ Otherwise if the insurer acts upon any information which 621; Heywood v. Maine Mut.'Acc. Ass'n, 85 Me. 289; Gamble v. Ac- cident Assur. Co., 4 Ir. R. C. L. 204; California Sav. Bank v. Ameri- can Surety Co., 87 Fed. 118; Underwood v. Farmers' Joint Stock Ins. Co., 57 N. Y. 500; Southern Home B. & L. Ass'n v. Home Ins. Co., 94 Ga. 167, 27 L. R. A. 844; Brock v. Des Moines Ins. Co., 96 Iowa, 39, 64 N. W. 685; Bowlin v. Hekla Fire Ins. Co., 36 Minn. 433; Shapiro v. Western Home Ins. Co., 51 Minn. 239; and cases infra. "' Rheims v. Standard Fire Ins. Co., 39 W. Va. 672, and cases supra; Carpenter v. German American Ins. Co., 52 Hun (N. Y.), 249; Trippe v. Provident Fund Soc, 140 N. Y. 23; Kentzler v. Amer- ican Mut. Ace. Ass'n, 88 Wis. 589, 60 N. W. 1002. " Kentzler v. American Mut. Ace. Ass'n, 88 Wis. 589, 60 N. W. 1002. The policy in this case read: "Notice in writing * * * shall 'oe given the secretary of the association, * * * with full particu- 'lars of the accident and injury, immediately after the accident occurs. Proofs of death, in like manner and time, shall be verified by the attending physician or some other person having personal knowledge of the fact; and unless positive proof of death or injury * * * shall be furnished to the association [insurer] within six months, * * * then all claims thereon shall be forfeited." •■^•'Nebraska & I. Ins. Co. v. Seivers, 27 Neb. 541, 43 N. W. 351; Smith v. Haverhill Mut. Fire Ins. Co., 1 Allen (Mass.), 297; Cali- fornia Sav. Bank of San Diego v. American Surety Co., 87 Fed. 119. 400 NOTICE AND PROOFS OF LOSS. § 107 lie may hare concerning tlie loss.^^ Tlie provisions of a policy that the written notice must be given to the insurer forthwith after the occurrence of a loss, and that preliminary proofs of loss must be furnished within sixty days from the date of the fire, and that the failure to comply with these terms and conditions of the policy shall cause a forfeiture of all claims under the policy, are valid and binding upon the in- sured ; and in a suit upon the policy it is necessary for the insured to plead and prove that such notice and proofs of loss were fully furnished to the company within the specified time, or were Avaived by the company.^'' So also where the policy contains a limitation upon the time within which suit can be brought, and a further pro- vision that proofs must be furnished within a certain time, and that no action shall be maintained unless the insured has fully complied with all the requirements of the policy. ^^ In "^ Omaha Fire Ins. Co. v. Dierks, 43 Neb. 473, 61 N. W. 740; Peele V. Provident Fund Soc, 147 Ind. 543; Roumage v. Mechanics' Fire Ins. Co., 13 N. J. Law, 110, 1 Bennett, Fire Ins. Cas. 389. =' German Ins. Co. v. Davis, 40 Neb. 700, 59 N. W. 698; Weidert v. State Ins. Co., 19 Or. 261, 24 Pac. 242; Bowlin v. Hekla Fire Ins. Co., 36 Minn. 433; Shapiro v. Western Home Ins. Co., 51 Minn. 239. In this case the policy provided that in case of loss, etc., the assured shall within sixty days render an account of the loss or damage, stating, etc. * * * The loss shall be due and payable after satis- factory proofs of the same, as required hereinbefore, shall have been made by the insured under the limitations of the policy, and received by the company. No suit or action on this policy for recovery 6f any claim shall be sustainable until after all conditions, stipulations, requirements, and provisions of this policy shall have been com- plied with, nor unless commenced within six months next ensuing after the fire. Sergent v. London & L. & G. Ins. Co., 85 Hun (N. Y.), 31. -'Gould V. Dwelling House Ins. Co., 90 Mich. 302, 51 N. W. 455; Blossom V. Lycoming Fire Ins. Co., 64 N. Y. 162; Johnson v. Dakota F. & M. Ins. Co., 1 N. D. 167, 45 N. W. 799; Scammon .v. Germania Ins. Co., 101 111. 62L S 1G7 CONDITIONS EEQUIRIXG STRICT PERFOKMANCE. 461 Gould V. Dwelling House Ins. Co.^*'^ tlie policy provided that "in case of loss the insured shall give immediate no- tice thereof in writing to this company, and within thirty days thereafter shall render a sworn statement to the com- pany. No suit or action on this policy shall be sustainable in any court unless the insured shall have fully complied with all the foregoing provisions, nor unless commenced with- in six months after the loss ;" and strict compliance was re- quired. In Steele v. German Ins. Co. of Freeport,^^ the policy differed only in the use of the word "until" in the place of the word "unless." Distinguishing between these two words the court held that strict compliance was not nec- essary in the latter case, and that proofs need not be furnished within the stipulated time. In Johnson v. Dakota F. & M. Ins. Co.,-""^ the loss was not payable "until requisite proofs duly certified and sworn to by assured * * * are received at the office of the company. * * ^ All loss and damage under this policy shall be due and payable between the SOth day of November and the first day of December of the year in which the loss occurs." Held, that this created a condition precedent that proofs must be furnished, and that a failure so to do avoided the policy, but that the time to furnish proofs did not expire before November 20th following the fire. And a mistake by the insured in misdirecting proofs of loss mailed by him. to the insurer, resulting in the latter not re- coiving the proofs until after the expiration of the period Avithin which they were required to be furnished, is fatal to the right to recover on the policy.-^ A provision in an employers' "» 90 Mich. 302, 51 N. W. 455, "93 Mich. 81, 53 N. W. 514, 18 L. R. A.' 85, citing Tubbs v. Dwelling House Ins. Co., 84 Mich. 646, 48 N. W. 296. And see Aurora F. & M. Ins. Co. v. Kranich, 36 Mich. 293, "" 1 N. D. 167, 45 N. W. 799. "Madciox V, Dwelling-House Ins. Co., 56 Mo. App. 343. 462 NOTICE AND PEOOFS OF LOSS. 167 liability policy that it is issued subject to tbe agreement and condition tbat, upon the occurrence of an accident and also on the receipt of a claim for damages resulting from such accident, the assured shall give immediate notice thereof to the insurer, makes the giving of such notices at the time specified a condition precedent to recovery, even though the policy contains no forfeiture clause. ^^ Under a bond conditioned to indemnify an employer against loss from the dishonesty of an employe, requiring notice of any claim thereunder to be given within three months after the dishonesty has been discovered and within three months after the expiration of the bond, recovery cannot be had for a loss resulting from such dishonesty during the original term of the bond unless such notice is .given within three months after the termination thereof; and the time is not extended by a renewal of the bond on the same terms for a further period.^*' An insured cannot maintain an action, unless, within sixty days after a fire, he gives notice and proofs of loss under a policy, providing loss or damage shall be "paid within sixty days after due notice and proof thereof made by the insured, in conformity to the conditions annexed to this policy," one of said conditions being "Persons sustaining loss or damage by fire shall forthwith give notice thereof in writing to the company, and within sixty days from the occurring of said fire they shall deliver as particular an account of their loss and damage as the nature of the case will admit."^^ .Under a policy requiring immediate notice of any accident and in- =» Underwood Veneer Co. v. London G. & A. Co., 100 Wis. 378, 75 N. W. 996; Eastern R. Co. v. Relief Fire Ins. Co., 98 Mass. 420. '"De Jernette v. Fidelity & Casualty Co., 17 Ky. Law Rep. 1088, 25 Ins. Law J. 315, 33 S. W. 828. ^ Eastern R. Co. v. Relief Fire Ins. Co., 98 Mass. 420. § 167 CONDITIONS KEQUIRING STRICT PERFORMANCE. 4.03 jury for wliicli claim is to be made, and affirmrtive proof of death within two months from the time of death, a faihire to give both immediate notice of an injury resulting in death and proof of death within two mouths, will defeat recovery."^ Under a policy of accident insurance stipulating that the failure to notify the company of an injury for ten days after it is received shall bar all claim, no suit can be maintained if notice of an accident is not given until twenty-six days- thereafter, notwithstanding the fact that a request was made of the insurer for blank proofs of loss and that it demanded further information as to the nature and circumstailces of the injury.^^ In a recent Massachusetts case involving the constnic- tion and validity of the provisions of an insurance policy covering live stock, it appeared that the horse insured died twenty hours after being taken sick, and that no notice had been given the insurer till after its death. The policy read, "If the animal becomes sick or disabled, the insured shall notify the company within fifteen hours, and the com- pany may send one of its surgeons to treat the case." It "^ Foster v. Fidelity & Casualty Co., 99 Wis. 447, 75 N. W. 69. '"Hey wood v. Maine Mut. Ace. Ass'n, 85 Me. 289; Kimball v. Ma- sons' Fraternal Ace. Ass'n, 90 Me. 183. Contra, Hoffman v. Manu- facturers' Ace. Ind. Co., 56 Mo. App. 301. In Heywood v. Maine Mut. Ace. Ass'n, supra, the policy stipulated that "in the event of * * * injury for which claim may be made under this certificate, * * * immediate notice shall be given [the insurer] in writing; * * * and failure to give such written no- tice within ten days of the occurrence of such accident shall invali- date all claims under this certificate." The court said: "It was com- petent for the parties to make the agreement, and they are bound' by it. The plaintiff neglected to notify the company of any accident or injury to himself until twenty-six days had elapsed. * * * The evidence shows no waiver on part of the company. * * * Plaintiff cannot recover." 404 KOTICE AND PEOOFS OF LOSS. §16T was lield that a failure to give notice within the specified time l)arred any right of recovery.^ ^ But time would not begin to run until the insured had knowledge of the facts upon which he based his claim.^^ The condition in a fidelity insurance bond that the in- surer shall bo notified in writing at its office of any act on the part of the employe which may involve a loss creating re- sponsibility against the insurer, as soon as practicable after the occurrence shall have come to the knowledge of the em- ployer, and that any claim thereunder shall be made as soon as possible after the discovery of the loss, is a material stipula- tion, and conformity to it is a condition precedent to the recovery on the bond.^^ In case of loss by fire after the death of the original insured, and before the appointment of a legal representative, those interested in the policy must make reasonable efforts to see that the covenants as to notice and proof of loss are kept, and within a reasonable time must use such agencies as the law provides to secure that result.^ '^ Union Mortgage Clause. It has been decided that the so-called "New York Standard mortgage clause" in a policy of insurance which declares in substance that no act or claim of the mortgagor shall defeat the insurance as to the interest of the mortgagee, does not dispense with the making of the proofs of loss stipulated for in the policy and within the time stipulated. If the mortga- «* Swain v. Security Live Stock Ins. Co., 165 Mass. 322. ''Mandell v. Fidelity & Casualty Co., 170 Mass. 173; Coventry Mut. Live Stock Ins. Ass'n v. Evans, 102 Pa. St. 281. ^' California Sav. Bank of San Diego v. American Surety Co., 87 Fed. 118. " Matthews v. American Cent. Ins. Co., 154 N. Y. 449, 39 L. R. A. 433; Germania Fire Ins. Co. v. Curran, 8 Kan. 9. § 168 LIIJEKAL CONSTRUCTION OF CONDITIONS. 465 gee would not have the right in all cases to furnish the proof, he certainly would have in a case where the mortgagor re- fuses to do so, but in all cases, unless waived by the insurer, it must be furnished by one or the other.^^ Liberal Construction' of Conditions. § 168. A very liberal construction of conditions is sometimes made to avoid a forfeiture of the rights of an insured. There are however cases, where exceptional circumstances and the impossibility of compliance with the liberal terms of the contract, have influenced the courts towards a more liberal construction of these clauses in the policy ; and this upon the principle that a liberal construction, if it be a reasonable one, and will prevent injustice, should be adopted when a literal construction would lead to manifest injustice. These cases make a distinction between conditions preceeding the loss or accident and upon which the question of liability primarily rests, and conditions which relate to matters following such loss or accident, interpreting the former, which are more usually of the essence of the contract, more strictly ; and the latter relating to the giving of notice, making proofs of loss, etc., that is, conditions subsequent to the capital fact of lia- bility, as requiring only what is reasonably possible of the claimant. This is especially true in the construction of life and accident insurance policies ; but I can see no good reason why, if the rule be sound — as it seems to be — it should not be applicable to all classes and kinds of insurance contracts, pro- viding the circumstances and conditions exist which allow of its use without violating the agreement between tlie insurer and the insured. Thus where an accident insurance policy requires ^ Southern Home B. & L. Ass'n v. Home Ins. Co., 94 Ga. 167, 27 L.. R. A. 844. See contra, Dwelling House Ins. Co. v. Kansas Loan & Trust Co., 5 Kan. App. 137, 26 Ins. Law J. 603, 48 Pac. 891. KERR, INS. — 30 466 NOTICE AND PROOFS OF LOSS. § 168 notice of deatli of the person insured and full particulars of the accident and injury to he given within ten days from the date of the injury or death, and provides that the failure so to do shall invalidate all claims under the policy, and where the policy further provides that the insurance does not cover dis- appearances nor injury of which there is no visible mark on the person of the insured, it has been held that failure to give the insurer notice of the death of a person killed in the falling of a building until eleven days after the accident, is not fatal to the recovery on a policy, even though the insured was miss- ing for eleven days, and it was supposed during all of that time that he was buried in the ruins, but the body was not dfscovered until ten days before the notice was given. In this case the time was held to begin to run upon the day of the discovery of the death. ^^ In the case of Peele v. Provident Fund Soc., it appeared that the plaintiff's intestate, who held a life and accident insurance policy in the defendant company, died while taking a bath on the 17th day of December, 1894 ; that the plaintiff, his wife, was prostrated by the occurrence; that the coroner made an examination of the body and an investigation into the facts, the result of which plaintiff did not learn until De- cember 28th; between these dates the condition of plaintiff was such that she was unable to transact any business ; that on the second day of January, 1895, plaintiff forwarded to the defendant a notice of the accident. The court says: "The ''Trippe v. Provident Fund Soc, 140 N. Y. 23, 22 L. R. A. 432; Peele v. Provident Fund Soc, 147 Ind. 543; McElroy v. John Han- cock Mut. Life Ins. Co., 88 Md. 137, 41 Atl. 112; Cooper v. United States Mut. Ben. Ass'n, 132 N. Y. 334, 16 L. R. A. 138; McNally v. Phoenix Ins. Co., 137 N. Y. 389; Germania Fire Ins. Co. v. Curran, 8 Kan. 9; Simons v. Iowa State T. M. Ass'n, 102 Iowa, 267, 71 N. W. 255; Kentzler v. American Mut. Ace Ass'n, 88 Wis. 589, 60 N, W. 1002. See post, "Excuses for Noncompliance." § 1G8 LIBERAL CONSTRUCTION OF CONDITIONS. 467 condition required that the notice should be given 'within ten days from the date of either injury or death' and also that it should contain 'full particulars of the accident and injury.' In the interpretation of conditions in j^olicies of insurance, courts have looked to the intention and the substantial rights of the parties. * * * This is particularly true in case of the death of the assured. In the case of any insurance policy the one who takes out and pays for the policy may well be expected to know its conditions and to comply with them. But in the event of his death, the party suffering the loss is often a.t a disadvantage, both as to knowing the conditions and as to being able to comply with them according to the strict letter of their terms.^*^ * * * In Trippe v. Provi- dent Fund Soc.,'*^^ * * * ^]^g foi-m of policy and notice being also identical, the court said: 'The condition upon which the defense is based was to operate upon the contract of insurance only subsequent to the fact of a loss. It must, therefore, receive a liberal and reasonable construction in favor of the beneficiaries under the contract. * * * The provision requires not only notice of the death, but 'full par- ticulars of the accident and injury.' It is quite conceivable that in many cases of death by accident the fact cannot be and is not kno^vn until days or even weeks after it has occurred. Such conditions in a policy of insurance must be considered as inserted for some reasonable and practical purpose, and not with a view of defeating a recovery in case of loss by requiring the parties interested to do something manifestly impossible. The object of the notice was to enable the de- fendant, within a reasonabl'e time after the death or injury, to inquire into all the facts and circumstances while they were fresh in the memory of witnesses, in order to determine *•! Am. & Eng. Enc. Law (2d Ed.), P- 323, and cases cited in notes. «• 140 N. Y. 23, 35 N. E. 316, 22 L. R. A. 432. 46S NOTICE a^:d proofs of loss. § 16S whether it was liable or not upon its contract. The full particulars of the death which the condition requires cannot ordinarily be furnished until the fact of death and the man- ner in which it occurred are ascertained. * * * The parties having contracted that the notice of death should be accompanied by full particulars of the manner in which it occurred, and the attendant circumstances, they evidently intended that it should be given only when the fact and manner of death became known to the parties who were re- quired to act. The fair and reasonable construction of this condition, therefore, is that the ten days within which the notice is to be given did not begin to run from the date of the accident or the disappearance of the insured, but from the time when the body was found, and the important fact of death, with the circumstances and particulars under which it occurred, ascertained. * * -^ The plaintiff * * * was the only party * * * -^ho could give the notice, and she could not give it within the meaning of the condition, until she had knowledge of the facts which she was bound to communicate. To hold that the plaintiff was bound to give notice of the death of her husband, with full particulars, be- fore she had any knowledge of the facts, would be to require her, by a technical and literal construction, to do an impossible thing, which was not within the intention of the parties when the contract was made."^^ And the provisions of a contract of insurance requiring notice of death within ten days after the occurrence of the accident, and making the same a condi- tion precedent to the right of recovery upon the policy, have been held unreasonable and invalid as applied to a case where *i Citing Insurance Cos. v. Boykin, 12 Wall. (U. S.) 433; Paltro- vitch V. Phoenix Ins. Co., 143 N. Y. 73, 25 L. R. A. 198; May, Ins. 217: Hinman v. Hartford Fire Ins. Co., 36 Wis. 164; Hoffman v. Aetna Fire Ins. Co., 32 N. Y. 405. § 169 EXCUSES FOR NON-COMPLIANCE. 469 death did not intervene until after ten days from the date of the accident.'*^ The requirement of an accident policy that notice of an accident must be given within five days after it happens is Time to Furnish Not Definite. § 171. A requirement that notice or proofs must be furnislied "immodiataly," or " forthwith," or " as soon as possible," etc., will be held to mean that they must be furnished with reason- able promptness and within a reasonable time, construing these terms in the light of all the facts and circumstances sur- rounding each ease. What is a reasonable time is sometimes a question of law, but usually a question of fact. General Construction of Such Terms. Many policies while making the furnishing of notice and proofs, or one of them, soon after loss or damage or accident It condition precedent to a right to recovery, have either failed to fix any time within which this must be done, or have desig- nated that time only -by using such vague and indefinite terras as "forthwith," "immediately," "as soon as possible," "early," "within a reasonable time," etc. Such terms are synonymous and incapable of absolute definition or limitation. They are elastic in their meaning and relative in their use and appli- cation. They all mean "within a reasonable time" under all the facts and circumstances of each case. What would be "a reasonable time" in one case might be unreasonable in an- other. But the giving of the notice or proof as required may nevertheless be a condition precedent, and if such it be, non- compliance by the insured, unless waived by the company, will defeat any recovery. °^ merfield v. Phoenix Assur. Co., 65 Fed. 292; Lane v. St. Paul F. & M. Ins. Co., 50 Minn. 227; Killips v. Putnam Fire Ins. Co., 28 Wis. 472. »•= Brown v. London Assur. Corp., 40 Hun (N. Y.), 101; Insurance Co. of North America v. Brim, 111 Ind. 281; Kingsley v. New Eng- land Mut. Fire Ins. Co., 8 Cush. (Mass.) 393; Edwards v. Baltimore Fire Ins. Co., 3 Gill (Md.), 176; St. Louis Ins. Co. v. Kyle, 11 Mo. 278; Rines v. German Ins. Co., 78 Minn. 46, 80 N. W. 839, and cases supra; Baker v. German Fire Ins. Co., 124 Ind. 490, 24 N. E. 1041; Carey v. Farmers' Ins. Co., 27 Or. 146, 40 Pac. 91. 476 NOTICE AND PROOFS OF LOSS. §171 In this connection tlie distinction between "notice" and "proof" of loss must not be overlooked. The functions of the two are different. "Notice" of a loss or death or accident should always be given with as little delay as the circum- stances of a case will permit, so as to enable the insurer to act promptly and investigate while the occurrence is fresh in the minds of people, and before evidence which it might desire has been lost or destroyed; and to further enable it to take prompt and proper measures to protect its interest, and, in case of fire, to preser^^e property saved from further damage or loss ; but the proof required for the purpose of facilitating an adjustment of a loss need not be presented so promptly. The clause concerning the furnishing of preliminary proofs is construed more liberally. In a case recently decided by the supreme court of Minne- sota the policy required that "a statement in writing signed and sworn to by the insured shall be forthwith rendered to the company setting forth the value of the property insured, the interest of the insured," etc. The proofs of loss were mailed to the defendant eighteen days, and received by it twenty-one days, after the fire. It was contended that the proofs were not furnished in time, that therefore plaintiff could not recover. The court said: "We cannot so hold. 'Forthwith' means *with due diligence under the circumstances of the case and without unnecessary or unreasonable delay.' 2 May, Ins. § 462. There are cases holding that notice of loss given within less time than eighteen days after the fire is not given 'forth- with.' Id. But a notice of loss is a simple matter, while such a proof of loss as is required by the above quoted provision of the policy is not. It may take considerable time to prepare such a proof of loss, and may require the services of an at- torney or some one skilled in the business. Under these cir- § 171 TIME TO FURNISH NOT DEFINITE. 477 ciimstances we cannot liold tliat eighteen days after the fire h an unreasonable time in which to render the same."^^ Whether or not a party has used due diligence in giving notice or proof of loss, is sometimes a question of law for the court, and sometimes a question of fact for a jury to pass, upon. Where the facts are not in dispute and the inferences are certain, and the sufficiency of an excuse for delay not in- volved, it is for the court to say whether or not the terms and conditions of the policy as to time have been complied with.''^ But upon a jury trial where such facts or circumstances are open for ascertainment of a jury, it should be left for them to determine as a question of fact. Extreme cases either way may be easily determined. Between them there is a wide stretch of debatable ground and cases falling within it are governed so much by the particular circumstances of each case, that it is much better to determine the matter as a question of fact.«5 «^Rines v. German Ins. Co., 78 Minn. 46, 80 N. W. 839; Central City Ins. Co. v. Gates, 86 Ala. 558; Wightman v. Western M. & F. Ins. Co., 8 Rob. (La.) 442, 2 Bennett, Fire Ins. Cas. 330; Ewards v. Baltimore Fire Ins. Co., 3 Gill (Md.), 176, 2 Bennett, Fire Ins. Cas. 405; Trippe v. Provident Fund Soc, 140 N. Y. 23, 22 L. R. A. 432; Peele v. Provident Fund Soc, 147 Ind. 543; McElroy v. John Han- cock Mut. Life Ins. Co., 88 Md. 137, 41 Atl. 112. in Wightman v. Western M. & F. Ins. Co., supra, the court said: "Although the policy stipulates that the notice shall be given 'forth- with,' we do not understand that to mean in an hour or in any other very brief space of time, but without unnecessary delay." "Dwelling House Ins. Co. v. Dowdall, 159 111. 179; Baker v. Ger- man Fire Ins. Co., 124 Ind. 490; Brown v. London Assur. Corp., 40 Hun (N. Y.), 101; Columbia Ins. Co. v. Lawrence, 10 Pet. (U. S.) 507; Kimball v. Howard Fire Ins. Co., 8 Gray (Mass.), 33; Bennett V. Lycoming County Mut. Ins. Co., 67 N. Y. 274. "'^Lockwood V. Middlesex Mut. Assur. Co., 47 Conn. 553; Donahue V. Windsor Co. Mut. Fire Ins. Co., 56 Vt. 374; Edwards v. Baltimore Fire Ins. Co., 3 Gill (Md.), 176; O'Brien v. Phoenix Ins. Co., 76 N. Y. 459- McFarland v. United States Mut. Ace. Ass'n, 124 Mo. 204. 478 NOTICE AND PROOFS OF LOSS. § 171 The supreme court of Indiana says of tliis question : "Tlie purpose of tlie notice is to enable the company to take proper precautions for its own protection. The notice must he reason- able under all the circumstances. Where the facts are not in dispute or where they have been ascertained by the proper tribunal for that purpose, it becomes a question of law for the court to determine whether, under the facts and circumstances of a given case, the notice was reasonable. Where the facts tending to show an excuse for the delay are in dispute or where it is a disputed question whether the delay was occasioned by certain facts, it is for the jury to ascertain the facts and the cause and effect of the delay, and, under proper instructions from the court as to the force and effect of the facts found, determine whether or not under all the circumstances reason- able notice of the loss was given."^*' The supreme court of Indiana says of this question: "The question of what is a reasonable time is a question of law for the court in two classes of cases, viz: (1) 'Commercial trans- actions which happen in the same way day by day, and pre- sent the question of reasonable time on the same data in con- tinually recurring instances, so that by a series of decisions of the courts the reasonable time has been rendered certain; * * * (2) where the time taken is so clearly reasonable or unreasonable that there can l>e no room for doubt as to the proper answer to the question. Where, however, the answer to the question is one dependent on many different circumstances, which do not constantly recur in other cases of like character, and Avith respect to which no certain rule of law has heretofore been laid doMH, or could be laid do-vvn, the question is one of fact for the jury."^"^ ^'Insurance Co. of North America v. Brim, 111 Ind. 281; Wood. Fire Ins. § 414. «^ Hamilton v. Phoenix Ins. Co. of Hartford (C. C. A.), 61 Fed. 379. § 171 TIME TO FURNISH NOT DEFINITE. 479 Proofs of loss are furnislied "in due time" if tliey arrive'at the postoffiee in the citj where the main office of the company it located in time for it to receive them within the time limited, although it did not call for nor receive them until the next day.®^ Proofs mailed by a receiver of a national bank on June 24, of a loss by fraud of the cashier discovered the latter part of May, are made "as soon as practicable" within the meaning of a cashier's bond where notice in writing was given to the surety company as soon as the loss was discovered with a re- quest for blanks to make proofs of loss upon and such blanks were mailed by the surety company on May 31.^^ If the policy does not specify any time within which the proofs must be furnished a reasonable time will be allowed^" Under the provisions of a policy requiring "early notice" of any damage to be given to the insurer, a notice of an injury to grain in transportation given on the Monday or Tuesday following the Saturday on which the damage was discovered while the grain was being unloaded is served in time, where the policy continues in force until the grain "shall be safely landed at point of destination."^^ Where a policy, required that notice of loss should be given within twenty-four hours after it occurred, but provided no penalty or forfeiture for non-compliance, it is sufficient to give notice within a reasonable time after insured knew of the ** Caldwell v. Dwelling House Ins. Co., 61 Mo. App. 4, "American Surety Co. v. Pauly, 170 U, S. 133, 42 L. Ed. 977; Kon- rad V. Union Casualty & Surety Co., 49 La. Ann. 686; California Sav. Bank of San Diego v. American Surety Co., 87 Fed. 119; American Credit Ind. Co. v. Wood, 38 U. S. App. 585, 19 C. C. A. 273. '* Miller v. Hartford Fire Ins. Co., 70 Iowa, 704; Springfield F. & M. Ins. Co. V. Brown, 128 Pa. St. 392, 18 Atl. 396. "Rodee v. Detroit F. & M. Ins. Co., 74 Hun (N. Y.), 146. 480 NOTICE AND PKOOFS OF LOSS. §1'^! loss.'^^ Where the insured immediately upon the happening of a fire applied to an agent of the insurer for blank proofs of loss and the latter sent to the company for the same and upon their receipt delivered them to the insured, who there- upon promptly prepared and sent proper proofs to the com- pany which received them without objection, it is a question for a jury whether there is a reasonable explanation of the de- lay beyond the thirty days specified in the policy. '^^ And where the insurer fails and refuses to issue a policy it waives its right to object to the lateness of a notice sent eleven months after a loss.'^* A benevolent society, whose constitution expressly reserves to the society the right to expend the money which it agrees to pay on the death of the wife of a member towards the burial, is not liable, -where it is not notified of the death of the wife until after the funeral. '^^ Reasonable Time. Notice of the death of one who carried life and accident in- surance is given within a reasonable, though not within the time limited in the policy, when it is given within sixteen days after the death and within five days after the beneficiary first learns that the death was accidental, even though the policy specifically requires the furnishing of notice within ten days from the date of death — especially when the general '- Coventry Mut. Live Stock Ins. Ass'n v. Evans, 102 Pa. St. 281. "American Cent. Ins. Co. v. Haws (Pa.), 11 Atl. 107. '*Tayloe v. Merchants' Fire Ins. Co., 9 How. (U. S.) 390; Baile v. St. Joseph F. & M. Ins. Co., 73 Mo. 387; Walker v. Continental Ins. Co., 2 Utah, 335. '=• Talbot V. Tipperary Men N., S. & B. Ass'n, 23 Misc. Rep. 486, 52 N. Y. Supp. 633. § 171 TIME TO FURNISH NOT DEFINITE. 481 agent of tlie insurer was immediately apprised of tlie death, by newspaper accounts.'^® The visit of an adjuster of the insurer to the scene of a fire the day after a loss and his assurance to the insured that no notice or proof of loss need be furnished is sufficient excuse for failure to give notice or proof of loss within fifty days after a fire, under a policy requiring notice to be given within a reasonable time.'^''^ The Indiana statute (Rev. St. 1881, § 3770) makes void any requirement of an insurance policy that notice of loss must be given forthwith or within less than five days, and requires of the insured only reasonable diligence in the giving of tho notice. Under this statute, notice given within fifteen days is given within a reasonable time.'^^ A delay of fifty-three days in giving notice of loss to the insurer cannot, as a matter of law, be held unreasonable, where the policy was in a safe in the destroyed building ; and owing to the confusion existing among the papers in the safe when it was opened, the policy was misplaced and the insured did not know and was unable to obtain information respecting the identity of the insurer, and gave notice as soon as he found the policy. "^^ An unex- plained delay of fifty days has been held unreasonable.^*^ And four months.^ ^ And eleven days.^^^ Under exceptional "Peele v. Provident Fund Soc, 147 Ind. 543, 44 N. E. 661; Trippe V. Provident Fund Soc, HO N. Y. 23, 22 L. R. A. 432. "Phenix Ins. Co. v. Pickel, 3 Ind. App. 332, 29 N. E. 432. " Germania Fire Ins. Co. v. Deckard, 3 Ind. App. 361, 28 N. E. 868. ■» 160 N. Y. 595, 46 L. R. A. 682, 28 App. Div. 213, 50 N. Y. Supp. 922. See Oakland Home Ins. Co. v. Davis (Tex. Civ. App.), 33 S. "W. 587; Konrad v. Union Casualty & Surety Co., 49 La. Ann. 636. •*" Pickel V. Phenix Ins. Co., 119 Ind. 291. "'McEvers v. Lawrence, 1 Hoff. Ch. (N. Y.) 171. "» Trask v. State F. & M. Ins. Co., 29 Pa. St. 198. KERR, INS.— 31 482 NOTICE AND PROOFS OF LOSS. § I'J'l circiimstances a delay of six months may not be unreason- able.82 Forthwith. A requirement in a policy that notice of loss m\ist be given forthwith is substantially equivalent to a requirement that it be given within a reasonable time.^^ It is construed liberally in favor of the insured.^ ^ The use of a phrase requiring the insured to "forthwith give notice of loss" imposes upon the insured nothing more than due diligence under all the circum- stances of the case. In ordinary cases, whether or not due diligence has been used by the insured or w^hether he has been guilty of procrastination or delay is usually considered a question of fact to be determined by the jury.^^ So where a fire occurred on Eriday, it was left for the jury to say whether a notice furnished the following Wednesday was served in proper time.^^ And under various circumstances twelve days has been held a reasonable time within which to furnish notice of loss under a policy requiring notice to be given »^ Swan V. Liverpool, L. & G. Ins. Co., 52 Miss. 704. Where proofs were forwarded within thirty days, it was held that the delay was not so unreasonable as to preclude the submission to the jury of the question whether the policy had been complied with. Ben Franklin Fire Ins. Co. v. Flynn, 98 Pa. St. 627. See, also, Brink V. Hanover Fire Ins. Co., 80 N. Y. 108; Provident Life Ins. & Inv. Co. V. Baumm, 29 Ind. 236. »' Pennypacker v. Capital Ins. Co., 80 Iowa, 56, 45 N. W. 408. " Central City Ins. Co. v. Dates, 86 Ala. 559. "' Edwards v. Baltimore Fire Ins. Co., 3 Gill (Md.), 176, 2 Ben- nett, Fire Ins. Cas. 405; Donahue v. Windsor Co. Mut. Fire Ins. Co., 56 Vt. 374; Phillips v. Protection Ins. Co., 14 Mo. 220, 3 Bennett, Fire Ins. Cas. 204; Springfield F. & M. Ins. Co. v. Brown, 128 Pa. St. 392; Roumage v. Mechanics' Fire Ins. Co., 13 N. J. Law, 110; Con- tinental Ins. Co. V. Lippold, 3 Neb. 391, 5 Bennett, Fire Ins. Cas. 562. «»Inman v. Western Fire Ins. Co.. 12 Wend. (N. Y.) 461; St. Louis Ins. Co. V. Kyle, 11 Mo. 278, 2 Bennett, Fire Ins. Cas. 641; Penny- packer V. Capital Ins. Co., 80 Iowa, 56, 45 N. W. 408. § 171 TIME TO FURNISH NOT DEFINITE. 483 forthwith ;^'^ and twenty-three days;^^ and twenty-six days;^^ and four days;^" and six days;''^ and eight days.®^ In Ben- nett V, Lycoming County Mut. Ins. Co.,^^^ a policy required that the insured should forthwith give notice to the secretary of the company. Soon after the policy issued, the insured delivered it to the agent of the company for an indorsement of its consent to some alterations in the policy. The com- pany kept and cancelled the policy without notifying the in- sured. A day after the loss notice was given to defendant's local agents and its general agent soon afterwards visited the location of the property and interviewed the insured about the loss. The policy being out of plaintiff's possession he was not aware of the notice required. Upon learning the condi- tion of the policy he furnished proper notice upon the 26th day after the loss. This was held to be in time. Proofs furnished two months after the fire have been, under excep- tional circumstances, held to be furnished forthwith j^^ and one hundred and fifteen days;^^ and ninety days.®** Not Forthwith. Where a policy required notice to be given forthwith, a notice served thirty-nine days after the loss occurred has been " Capitol Ins. Co. v. Wallace, 48 Kan. 400, 29 Pac. 755. ^ Donahue v, Windsor Co. Mut. Fire Ins. Co., 56 Vt. 374. «» Bennett v. Lycoming Co. Mut. Ins. Co., 67 N. Y. 274. "" Griffey v. New York Cent. Ins. Co., 100 N. Y. 417. "Peppit V. North British & M. Ins. Co., 1 Russ. & G. (N, Scotia) 219. ** New York Cent. Ins. Co. v. National Protection Ins. Co., 20 Barb. (N. Y.) 468. •'» 67 N. Y. 274. " Harden v. Milwaukee Mechanics' Ins. Co., 164 Mass. 382, 25 Ins. Law J. 124. " Carpenter v, German American Ins. Co., 135 N. Y. 298. ■^ Home Ins. Co. v. Davis, 98 Pa. St. 280. 4 Si NOTICE AND TROOFS OF LOSS. § 171 held to be too late;^^ and seventeen days has been held too late;^^ and eleven dajs;^^ and thirty-eight days;^^ and four months ;^°^ and three and one-half months ;^°^ and eighteen days J ^^^ and five months.^"* Immediate Notice. Where a policy requires immediate notice of loss and fixes no prescribed time within which they must be served, proofs may be furnished within a reasonable time. A statute provid- ing that proofs of loss furnished within twenty days shall be sufficient, is intended for the protection of the insured and does not compel the furnishing of proofs within that time. What is a reasonable time is to be ascertained from all the facts and circumstances of the case in the light of all the evidence as to the conduct of the insurer and the insured, of their negotiations and all that passed between them respecting the loss and the time and manner of proving it. Where the facts and circumstances are not clearly established and the evidence as to them is conflicting, the question is for the jury under proper instructions of the court. -^^^ "« McDermott v. Lycoming Fire Ins. Co., 12 Jones & S. (N. Y.) 221. "Brown v. London Assur. Corp., 40 Hun (N. Y.), 101. »' Trask v. State F. & M, Ins. Co., 29 Pa. St. 198. °^Inman v. Western Fire Ins. Co., 12 Wend. (N. Y.) 452, 1 Ben- nett, Fire Ins. Cas. 457. i°»McEvers v. Lawrence, 1 Hofl. Ch. (N. Y.) 172, 1 Bennett, Fire Ins. Cas. 467. "' Baker v. German Fire Ins. Co., 124 Ind. 490, 24 N. E. 1041. ^°' Edwards v. Lycoming Co. Mut. Ins. Co., 75 Pa. St. 378. "'Sherwood v. Agricultural Ins. Co., 10 Hun (N. Y.), 593. "* Springfield F. & M. Ins. Co. v. Brown, 128 Pa. St. 392; Conti- nental Ins. Co. V. Lippold, 3 Neb. 391, 5 Bennett, Fire Ins. Cas. 562; McFarland v. United States Mut. Ace. Ass'n, 124 Mo. 204, 27 S. W. 436; North Pennsylvania Fire Ins. Co. v. Susquehanna Mut. Fire Ins. Co., 2 Pears. (Pa.) 291; Lockwood v. Middlesex Mut. § 171 TIME TO FUBNISH NOT DEFINITE. 485 A notice mailed to the insurer October 1st of a claim of the loss of an eye from an accident occurring September 1st, is given within a reasonable time where it appears tliat at the time of the accident the insured did not re2:ard it as danfferous and was not convinced that he would lose his eve until some- time after sending the notice. ^°^ The conditions of an acci- dent policy insuring against total disability or death, and re- quiring immediate proof to be given the insurer of any injury as well as of death resulting therefrom, are complied with by a proof served within a reasonable time after the death of the insured where no claim is made for disability. ^^^ Where a policy of accident insurance provides that in case of death or injury, notice of claim should be given to the secre- tary of the company "with full particulars of the accident and injury immediately after the accident occurs," and that "positive proofs of death" must be furnished within six months of the date of the accident, and the insured disappeared November 9th, 1892, but the facts concerning his death which occurred on that date were not known, nor was his body dis- covered till April 19th, 1893, the furnishing of notice of death on May 26th and proofs July 12th following, show a reason- able compliance with the terms of the policy. ^"^ Assur. Co., 47 Conn. 553; Carey v. Farmers' Ins. Co., 27 Or. 147, 40 Pac. 91; Lyon v. Railway Passenger Assur. Co., 46 Iowa, 631. Service of notice of loss without unnecessary delay is a sufl^cient compliance with the requirement of a policy of insurance that the insured shall give "immediate" notice of loss. Solomon v. Conti- nental Fire Ins. Co., 160 N. Y. 595, 46 L. R. A. 682. '"' People's Ace. Ass'n v. Smith, 126 Pa. St. 317, 17 Atl. 605. "^McFarland v. United States Mut. Ace. Ass'n, 124 Mo. 204, 27. S. W. 436. But see. Foster v. Fidelity & Casualty Co., 99 Wis. 449, 75 N. W. 69; Underwood Veneer Co. v. London G. & A. Co., 100 Ws. 378, 75 N. W. 996. ""Kentzler v. American Mut. Ace. Ass'n, 88 Wis. 589, 60 N. W. 1002, 43 Am. St. Rep. 934; Konrad v. Union Casualty & Surety Co., 49 La. Ann. 636. 486 NOTICE AND PROOFS OF LOSS. § 171 No notice of an accident or injury causing deatli need be given hj the beneficiary until tbe death occurs where the policy provides for immediate notice in the event of any accident or injury for which claim shall be made, "or in case of death resulting therefrom/' as this provides for two notices of dif- ferent claims, one for injury not resulting in death and the other of death. ^°^ A provision in a policy of indemnity against liability of the insured for injuries resulting from accidents caused by horses and vehicles used in his business of transpoiling mer- chandise, that the insured shall "upon the occurrence of an accident, and also upon information of a claim on account of an accident give immediate notice in writing" of such ac- cident or claim, does not require the insured to give notice of an accident caused by one of his drivers, until he has actual notice thereof. He is not chargeable with the knowledge possessed by the driver at and after the accident, because the driver is in no sense his agent for the purpose of giving notice to the insurer. ^''^ Notice of the death of the insured in an accident policy providing for immediate notice of death is sufficient if given immediately after the beneficiary discovers the existence of the policy, though she does not make such discovery till nearly two months after the death of the insured.^^^ ^'" Western C. T. Ass'n v. Smith, 56 U. S. App. 393, 85 Fed. 401, 40 L. R. A. 653. "^Mandell v. Fidelity & Casualty Co., 170 Mass. 173, 49 N. E. 110; Anoka Lumber Co. v. Fidelity & Casualty Co., 63 Minn. 286, 30 L. R. . A. 689. See contra, Foster v. Fidelity & Casualty Co., 99 Wis. 449, 75 N. W. 69, and Underwood Veneer Co. v. London G. & A. Co., 100 W5s. 378, 75 N. W. 996. "" Konrad v. Union Casualty & Surety Co., 49 La. Ann. 636, 21 So. 721, 26 Ins. Law J. 536; American Ace. Co. v. Card, 13 Ohio C. C. 154; Kentzler v. American Mut. Ace. Ass'n, 88 Wis. 589, 60 N. W. g 171 TIME TO FURNISH NOT DEFINITE. 487 Under an employer's liability insurance policy providing tliat the assured on occurrence of an accident and on notice of claim on account tkereof should give an immediate notice of such accident or claim to the company, assured need give but one notice and that within a reasonable time after claim is made on account of an accident. ^^^ So under the vai-ying circumstances and evidence of each case, the provisions of a policy requiring immediate notice have been held complied with by giving notice in four days after a fire;^^^ and one day ;^^^ and ten days ;^^^ and thirty-four days ;^^^ and twenty- two days;^^® and eighteen daysj"^ and five days.^^^ Not Immediate. An unexcused and unexplained delay of fourteen days in furnishing proofs of loss is not a compliance with the terms of a policy requiring immediate notice of a loss ;"^ nor is sucli 1002; Peele v. Provident Fund Soc, 147 Ind. 543; Coventry Mut. Live Stock Ins. Ass'n v. Evans, 102 Pa. St. 281, and cases supra. "' Anoka Lumber Co. v. Fidelity & Casualty Co., 63 Minn. 286, 30 L. R. A. 689. See Mandell v. Fidelity & Casualty Co., 170 Mass. 173, 49 N. E. 110; Foster v. Fidelity & Casualty Co., 99 Wis. 449, 75 N. W. 69; and Underwood. Veneer Co. v. London G. & A. Co., 100 Wis. 378. 75 N. W. 996. "■ Hoffecker v. New Castle Co. Mut. Ins. Co., 5 Houst. (Del.) 101. "' Hartford Fire Ins. Co. v. Smith, 3 Colo. 422. '"McNally v. Phoenix Ins. Co., 137 N. Y. 389; McFarland v. United States Mut. Ace. Ass'n, 124 Mo. 204, 27 S. W. 436. "••Knickerbocker Ins. Co. v. Gould, 80 111. 388; Knickerbocker Ins. Co. V. McGinnis, 87 111. 70. "'Niagara Fire Ins, Co. v. Scammon, 100 111, 644; Killips v. Put- nam Fire Ins. Co., 28 Wis. 472. "' Wooddy V. Old Dominion Ins, Co,, 31 Grat, (Va.) 362, "' Schenck v, Mercer Co. Mut. Fire Ins. Co., 24 N. J. Law, 447, 3 Eennett, Fire Ins. Cas, 712; Hovey v. American Mut, Ins. Co,, 2 Duer (N. Y.), 554. "• La Force v. Williams City Fire Ins, Co., 43 Mo. App. 518. 488 - NOTICE AND PROOFS OF LOSS. § 171 delay for tliirtj-three dajs;^^° nor nineteen days;^"^ nor eleven days;^^^ nor sixty days;^^^ nor twenty-nine days;^^^ nor seventeen days ;^^^ nor six days where an injury for wliick claim was made happened in the city where the policy was issued and where the insurer had a resident agent and no excuse was shown for the delay. ^^® As Soon as Possible, Due Notice, etc. Under a policy providing that "all persons assured by this company and sustaining loss or damage by lire are forth- with to give notice thereof to the company and as soon as possible to deliver in a particular account of such loss or damage/' where notice of loss is given immediately, a delay of nineteen days in furnishing a particular account of loss is not unreasonable. ^^^ "■^ Quinlan v. Providence W. Ins. Co., 133 N. Y, 357. ^ Weed V. Hamburg-Bremen Fire Ins. Co., 133 N. Y. 394. ^ Trask v. State F. & M. Ins. Co., 29 Pa. St, 198. ^' Ermentrout v. Girard F. & M. Ins. Co., 63 Minn. 305, 30 L. R. A. 346. ^^ Foster v. Fidelity & Casualty Co., 99 Wis. 447, 40 L. R. A. 833, 75 N. W. 69. »'= Burnham v. Royal Ins. Co., 75 Mo. App. 394, 27 Ins. Law J. 928. ^-'^ Railway Passenger Assur. Co. v. Burwell, 44 Ind. 460. "'Wightman v. Western M. & F. Ins. Co., 8 Rob. (La.) 442; Home Ins. Co. V. Davis, 98 Pa. St. 280 (90 days); Carpenter v. German American Ins. Co., 135 N. Y. 298 (115 days); Hamden v. Milwaukee Mechanics' Ins. Co., 164 Mass. 382, 25 Ins. Law J. 124 (two months) ; Central City Ins. Co. v. Gates, 86 Ala. 558; Palmer v. St. Paul F. & M. Ins. Co., 44 Wis. 201 (four months held not unreasonable); Ed- wai-ds v. Baltimore Fire Ins. Co., 3 Gill (Md.), 176, 2 Bennett, Fire Ins. Cas. 405. In Home Ins. Co. v. Davis, supra, insured was required, as soon as possible after loss, to tender a particular account. The prelim- inary notice was given, and a month later a special agent inspected the ruins, and obtained from the insured a statement of his loss under oath. A month afterward, at the instance of the company, criminal proceedings were begun against him on the charge of hav- R 171 TIME TO FURNISH NOT DEFINITE. 489 In an action upon a life policy wliicli required notice of death to be given to the company or its agent "as soon there- after as possible," it was proved that the insured died at a place from which notice of the death could be sent to the company in one day. It was further proved that the policy was in the trunk of A. in the city where the company's office was located, and that the party to whom the insurance was to be paid never had possession of and never saw the policy until eight or ten days after the death of the insured, when he immediately notified the company of the death. The company then handed him a blank affidavit in regard to the death, and stated that it would be sufficient if he returned the same within three or four weeks, which he did. The court held, that the company received notice within a reason- able time, and said: "The agreement on the part of the assured, that in the event of his death, his legal representa- tives should, as soon as possible thereafter, give notice in writing to the company, must have a reasonable construction. Thus, the law in this state does not authorize letters of ing caused the fire. These resulted in favor of the insured. Three months after loss, proofs were forwarded. These were returned as unsatisfactory, and proper blanks were sent, which he was requested to fill out and transmit. He complied, and received notice of the re- ceipt of the corrected proofs. Held, that the proofs were made as soon as possible after the loss. Three judges dissented. And see McPike v. Western Assur. Co., 61 Miss. 37 (where two months was held an unreasonable time). See, also, for similar con- ditions. Brink v. Hanover Fire Ins. Co., 80 N. Y. 108; Scammon v. Germania Ins. Co., 101 111. 621; Provident Life Ins. & Inv. Co. v. Baum, 29 Ind. 236; Cornell v. Le Roy, 9 Wend. (N. Y.) 163; Trav- elers' Ins. Co. v. Sheppard, 85 Ga. 751; Jackson v. Southern M.ut. Life Ins. Co., 36 Ga. 429; Davis v. Davis, 49 Me. 282; American Surety Co. v. Pauly, 170 U. S. 133, 42 L. Ed. 977; Konrad v. Union Casualty & Surety Co., 49 La. Ann. 636; Rodee v. Detroit F. & M. Ins. Co., 74 Hun (N. Y.), 146; American Credit Ind. Co. v. Wood, 38 U. S. App. 585, 19 C. C. A. 273; California Sav. Bank of San Diego v. American Surety Co., 87 Fed. 119. 490 NOTICE AND PROOFS OF LOSS. § 172 administration to issue until fifteen days after tlie death of an intestate, and it can hardlv be insisted that a notice given in this state within that time is unreasonably delayed. The law as stated in Angell on Fire and Life Insurance, is that ^there must be no unnecessaiy delay, nothing which the law calls laches/ Section 230. * * * ^The terms "forth- with" * * * and "as soon as possible," are not to be taken literally, but mean with due diligence, or without un- necessary procrastination or delay, under all the circumstances of the case."^^* FoKM AND Contents. § 172. A substantial compliance with the requirements of a policy as to the form and contents of the notice and proofs ot loss is sufiacient, unless other and further information is de- manded. General Rule. ' No particular form or kind of notice or proof can be in- sisted upon by the insurer unless according to the stipulations of the policy. The form of the notice is usually immaterial if it states the facts required to be made known. If knowl- edge of the fire or accident or death be in fact communicated to the insurer, the courts will not be particular as to the form in which it is done nor by whom or how notice is given. A verbal notice is sufficient if no other be stipulated for. Neither notice nor proofs need contain more than is specifically re- quired. ^^^ But if the policy be clear and explicit in its j;3 Provident Life Ins. & Inv. Co. v. Baum, 29 Ind. 236. i-'Killips V. Putnam Fire Ins. Co., 28 Wis. f72; Erwin v. Spring- field F. & M. Ins. Co., 24 Mo. App. 145 ; State Ins. Co. v. Maackens, 3S N. J. Law, 564; Roumage v. Mechanics' Fire Ins. Co., 13 N. J. Law, 110; Walker v. Metropolitan Ins. Co., 56 Me. 371; Good v. Georgia Home Ins. Co., 92 Va. 392, 23 S. E. 744; Georgia Home Ins. Co. v. Goode, 95 Va. 751, 30 S. E. 366; McFarland v. United States Mut. I 172 FOKM AND CONTENTS. 491 requirements either as to foi-m, or contents, or nature of notice or proof, full and complete compliance with all the conditions is necessary unless waived by the insurer. ^^*^ Thus, under a Ace. Ass'n, 124 Mo. 204, 27 S. W. 436; Rix v. Mutual Ins. Co., 20 N. H. 198; Buffalo L., T. & S. Deposit Co. v. Knights Templar & M. Mut. Aid Ass'n, 126 N. Y. 450; Braker v. Connecticut Ind. Ass'n, 27 App. Div. 234, 50 N. Y. Supp. 547; Walsh v. Washington Marine Ins. Co., 32 N. Y. 427; O'Reilly v. Guardian Mut. Life Ins. Co., 60 N. Y. 169; Miller. V. Hartford Fire Ins. Co., 70 Iowa, 704, 29 N. W, 412; Kahn v. Traders' Ins. Co., 4 Wyo. 419, 34 Pac. 1059; Northwestern Ins. Co. V. Atkins, 3 Bush (Ky.), 333; Hibernia Mut. Fire Ins. Co. V. Meyer, 39 N. J. Law, 482. In Norton v. Rensselaer & S. Ins. Co., 7 Cow. (N. Y.) 645, 1 Ben- nett, Fire Ins. Cas. 204, the court said: "Undoubtedly, these [the notice and certificate] must be furnished, according to the policy, a certain number or days before an action can be brought; but it is another question what they should contain. The clause requiring proof of loss in marine policies has been construed with consider- able liberality. The court have looked to circumstances and re- quired no more information of the party than what appeared to be within his control. In Lawrence v. Ocean Ins. Co., 11 Johns. (N. Y.) 260, Thompson, J., in delivering the opinion of the court, says the clause 'requires only reasonable information to be given to the un- derwriters; so that they can be enabled to form some estimate of their rights and duties before they are obliged to pay. This clause has always been liberally expounded, and is construed to require only^the best evidence of the fact which the party possesses at the time.' * * * The clause itself in the policy before us expressly contemplates the latitude arising from circumstances." In Martin v. Manufacturers' Ace. Ind. Co., 151 N. Y. 95, th6 policy loquired immediate notice to be given, containing specific particu- lars, and provided that failure to give such immediate notice shall invalidate all claims. The court held that the forfeiture clause ap- plied only to the time, and not to the form of notice, and said: "It would be a very harsh and unreasonable construction to apply this [forfeiture] clause to every imperfection in a notice which, although promptly given, omitted to state some particular. * * * The com- pany could have demanded further particulars, but having omitted to do so, it waived any objection to the form or contents of the no- tice." ""Welsh V. Des Moines Ins. Co., 71 Iowa, 337, 32 N. W. 369; Brock V. Des Moines Ins. Co., 96 Iowa, 39, 64 N. W. 685; Heusingveld v. 492 NOTICE AND PEOOFS OF LOSS. § 172 policy providing that in case of loss insured should state under oath that the property was contained in the building or premises described in the policy, the neglect to make such statement has been held to defeat a recovery. ^^^ When no question of waiver is involved, the sufficiency of proofs must be determined as a matter of law by the court. ^^^ All the insurer can ask for in proofs is definite, unequivocal informa- tion, and a compliance vsdth the conditions designed to pro- tect it from fraud and imposition. The form in which they are made cannot be regarded as important. -^^^ Proofs need contain only what is specifically required by the terms of the policy. A statement of any other facts is surplusage and a misrecital concerning the same is immaterial. -^^^ They are St. Paul P. & M. Ins. Co., 96 Iowa, 224, 64 N. W. 769; Langan v. Royal Ins. Co., 162 Pa. St. 357; Jones v. Mechanics' Fire Ins. Co., 36 N. J. Law, 29; Nixon v. Queen Ins. Co., 23 Can. Sup. Ct. 26; Shaw- nut Sugar Refining Co. v. Peoples' Mut. Fire Ins. Co., 12 Gray (Mass.), 535; Simons v. Iowa State T. M. Ass'n, 102 Iowa, 267, 71 N. W. 254; O'Reilly v. Guardian Mut. Life Ins. Co., 60 N. Y. 173; Heywood v. Maine Mut. Ace. Ass'n, 85 Me. 289; Daniels v. Equitable Fire Ins. Co., 50 Conn. 551; Fink v. Lancashire Ins. Co., 60 Mo. App. G73; Hartford Fire Ins. Co. v. Smith, 3 Colo. 422; Summerfleld v. Phoenix Assur. Co., 65 Fed. 292; Connell v. Milwaukee Mut. Fire Ins. Co , 18 Wis. 387; Wellcome v. Peoples' Equitable Mut. Fire Ins. Co., 2 Gray (Mass.), 481; Stephenson v. Bankers' Life Ass'n, 108 Iowa, 637, 79 N. W. 461, "^ Harris v. Royal Canadian Ins. Co., 53 Iowa, 236. "= Gauche v. London & L. Ins. Co., 10 Fed. 347. "' Erwin v. Springfield F. & M. Ins. Co., 24 Mo. App. 145. In this ■cas6) it was held that a condition which provides for a statement as to other insurance, if any, and the giving of the written portions of the policy, does not require an affirmative averment that there was no other insurance, for such would be the presumption. See, also, Hinckley v. Germania Fire Ins. Co., 140 Mass. 38; Clement v. Brit- ish American Assur. Co., 141 Mass. 298; Taylor v. Aetna Ins. Co., 120 Mass. 254; Fowle v. Springfield F. & M. Ins. Co., 122 Mass. 191; Smith V. Commonwealth Ins. Co., 49 Wis. 322; Charter Oak Life Ins. €o. V. Rodel, 95 U. S. 232. "* Walker v. Metropolitan Ins. Co., 56 Me. 371; Rix v. Mutual Ins. § 172 FORM AND CONTENTS. 493 sufficient if tliey sliow on tlieir face an honest effort on the part of the insured to comply with the requirements of the policy.^^^ Where the insured furnishes two accounts of loss and two certificates of a magistrate, these are to be construed together in determining what proofs of loss are served. ^^^ The affidavit, whether of an insane man or not, is sufficient as to the information which it conveys of the time and nature of the amount of the loss covered by the policy.^^^ A verbal notice of loss given by the insured to the local agent of the insurer, and by the latter at the request of the former com- municated in writing to the company, is a sufficient compli- ance with the terms of the policy requiring notice to be given to the insurer in writing at its home office, without specifying the form or contents of the notice, where the insurer makes no - objection on account of the form of the notice thus given and makes no demand for other and further proof. ^^^ Co., 20 N. H. 198; Walsh v. Washington Marine Ins. Co., 32 N. Y. 427; O'Reilly v. Guardian Mut. Life Ins. Co., 60 N. Y. 169; Miller v. Hartford Fire Ins. Co., 70 Iowa, 704, 29 N. W. 412, "^ Home Fire Ins. Co. v. Hammang, 44 Neb. 566, 62 N. W, 883; Wy- n-'an v. Peoples' Equity Ins. Co., 1 Allen (Mass.), 301; Harkins v, Quincy Mut. Fire Ins. Co., 16 Gray (Mass.), 591; Boyle v. Hamburg- Bremen Fire Ins. Co., 169 Pa. St. 349. •=« Brown v. Hartford Fire Ins. Co., 52 Hun (N. Y.), 260; Parks v. Anchor Mut. Fire Ins. Co., 106 Iowa, 402, 76 N. W. 743. "^ Germania Fire Ins. Co. v. Boykin, 12 Wall. (U. S.) 433, 20 L. Ed. 442. "*Phenix Ins. Co. v. Rad Bila Hora Lodge, 41 Neb. 21, 59 N. W. 752; Coffman v. Niagara Fire Ins. Co., 57 Mo. App. 647; Roumage V. Mechanics' Fire Ins. Co., 13 N. J. Law, 110, 1 Bennett, Fire Ins. Cas. 389; Kahn v. Traders' Ins. Co., 4 Wyo. 419, 34 Pac. 1059; O'Con- nor V. Hartford Fire Ins. Co., 31 Wis. 160; Hibernia Mut. Fire Ins. Co. V. Meyer, 39 N. J. Law, 482; Travellers' Ins. Co. v. Edwards, 122 U. S. 466, 7 Sup. Ct. 1252; Edwards v. Travelers' Life Ins. Co., 20 Fed. 661; Watertown Fire Ins. Co. v. Grover & B. Sewing Machine Co., 41 Mich. 131, 1 N. W. 961. In Kahn v. Traders' Ins. Co., supra, the court said: "There is no 494: NOTICE AND PROOFS OF LOSS. § 172 The provisions of a policy requiring the insured to state in liis proofs of loss liis interest and title, mean his interest and title at the time of the loss. A statement in proofs that the oriffin and cause of the fire are unknown to the insured is sufficient, (unless the assured was the incendiaiy) ^^^ and it need not state that the loss did not occur by design, in- vasion, public enemy, etc.^^" But a provision that the in- surance shall not be payable until the insured shall have de- livered to the company a particular account in writing under oath stating the nature and value of his interest, makes the rendition of an account truly stating those matters and facts imperative. ^^^ The^ failure of an insured to state in his proofs of loss the name of the occupant of the building at the time of the fire, as required by the policy, is not fatal to his right to recover, where the loss w^as afterwards investigated by the company and no prejudice to the latter shown.^^^ A requirement that the insured shall in case of fire separate the damaged and undamaged personal property and make a complete inventory thereof, does not compel the making of an inventory of property which is totally destroyed. ^^^ If the insured has no definite knowledge or information force in the objection that the company did not have sufficient no- lice of the loss. They had such notice as induced them to send their general agent to the place to investigate the loss. Any notice that produces such a result is sufficient without reference to its form or particulars. There is no question that notice was promptly given to rhe local agents; and that, under the circumstances, must suffice." '^' Jones V. Howard Ins. Co., 117 N. Y. 103. ^^'Catlin v. Springfield Fire Ins. Co., 1 Sumn, 434, Fed. Cas. No. 2,522, 1 Bennett, Fire Ins. Cas. 436. '"Wellcome v. Peoples' Equitable Mut. Fire Ins. Co., 2 Gray (Mass.), 481. i<= Commercial Union Assur. Co. v. Meyer, 9 Tex. Civ. App. 7, 29 S. W. 93. '^ Johnston v. Farmers' Fire Ins. Co., 106 Mich. 96, 64 N. W. 5. § 172 FORM AND CONTENTS. 495 as to the origin or circumstances of tlie fire, tlie provisions of a policy requiring the insured to state in his proofs of loss such knowledge or information as he can obtain concerning the origin and circumstances of the fire are sufficiently com- plied ^^ith by a statement that the building was totally de- stroyed; that the fire occurred at a specified time and did not originate by any act or procurement on the part of the insured, or in consequence of his fraud; and that the in- sured had not done or consented to the doing of anything violative of the provisions of the policy or which would render it void.^^^ And the provisions of an accident in- surance policy requiring immediate notice of injury or death of the insured to be given in writing is complied vdth. by a letter, advising the company of the death of the insured, and requesting it to notify the writer if further proofs were re- quired. ^^^ A written notice to an insurance company of a loss under its policy, accompanied by an affidavit stating that the origin of the fire is unknown to the insured, and that the loss is total, entire, and complete, satisfies the provisions in the policy requiring "satisfactory proofs" of loss, as well as the requirement of Iowa Code, § 1742, that notice in writing must be given to the company of the loss, accompanied by an affidavit stating how the loss occurred, so far as kno\^^l, and "^ McNally v. Phoenix Ins. Co., 137 N. Y. 389. 1" McFarland v. United States Mut. Ace. Ass'n, 124 Mo. 204, 27 S. W. 436. In this case the court said: "Notice of an accidental injury is required to give the full name, occupation, and address of the mem- ber, with full particulars of the accident and Injury, but, in the case of death, immediate notice thereof 'in like manner' only is required. The words in 'like manner' refer, evidently, to the method of giv- ing the notice, and not to the information required to be given thereby. It was only necessary to give such notice as would advise the asociation that death had occurred from accidental injury." 496 NOTICE AND PKOOFS OF LOSS. § 172"' tlie extent of tlie loss.^'*^ And the notice and affidavit may be furnished separately witliin the prescribed time.^'*'^ The phrase "proof of death" of the insured does not mean, proof as to the cause of the death, nor does it contemplate the furnishing of a physician's certificate.^^^ The condi- tions of a policy requiring a statement in proofs of loss as to other insurance on the property destroyed do not neces- sitate the statement that there was no other insurance; a provision requiring a certificate from a magistrate not next of kin to the insured does not require a statement in the proofs to that effect, but such must be the fact. But a provision requiring a statement as to the ownership of the property and the interest of the insured therein must be spe- cifically comj^lied with, unless waived by the insurer. -^^^ Copies of Instruments. A pro^^sion of a policy that in case of loss the insured shall furnish a statement of other insurance and copies of all policies upon the property does not require the insured to furnish a coj)y of the policy sued on, nor does it require a literally exact copy of other policies, but is complied with by furnishing copies which are substantially correct. And an erroneous statement in the copy, if not prejudicial to the insurer, is immaterial, nor is a copy of the application for insurance necessary. ^^*^ A requirement in an insurance policy, that proofs of loss 1" Parks V. Anchor Mut. Fire Ins. Co., 106 Iowa, 402, 76 N. W. 743. "' Russell V. Fidelity Fire Ins. Co., 84 Iowa, 93, 50 N. W. 546. "' Buffalo L. T. & S. Deposit Co. v. Knights Templar & M. Mut. Aid Ass'n, 126 N. Y. 450; "Western C. T. Ass'n v. Smith, 56 U. S. App. 393, 85 Fed. 401. See Simons v. Iowa State T. M. Ass'n, 102 Iowa, 267,. 71 N. W. 254. ^^ Erwin v. Springfield F. & M. Ins. Co., 24 Mo. App. 145. ^"' Miller v. Hartford Fire Ins. Co., 70 Iowa, 704, 29 N. W. 411. § 172 FORM AND CONTENTS. 497 furnished thereunder shall contain a copy of the description and schedules in other policies on the property insured, is sufficiently complied with by giving a list of all such policies containing the names of the companies which respectively issued them, their respective amounts, and dates of expira- tion, and offering to furnish copies of all the written parts of such policies on demand. ^^^ Several Insurers. The provision in a policy requiring the insured to furnish a full and detailed statement of the loss and the amount claimed does not require that the insured shall attempt to compute or state the share of loss to be borne by each insurer where there are several insurers who are liable. ^^^ Two Fires and One Policy. When goods in two separate buildings are covered by one policy and made distinct subjects of insurance, the proofs of loss in case of fire should state the damage to the goods in each building separately. -^^^ Satisfactory Proof. Where the statute states what proofs of loss must contain, and a policy in terms requires "satisfactory proof," these words must refer to and be held to mean what the statute requires.^^^ The term "satisfactory proof," used as descrip- tive of the nature of the proof to be furnished, means such proof as establishes the fact of the loss and the right of the »»i Scottish U. & N. Ins. Co. v. Keene, 85 Md. 264, 37 Atl. 33. See,, also, Towne v. Springfield F. & M. Ins. Co., 145 Mass. 582; West Branch Lumberman's Exchange v. American Cent. Ins. Co., 183 Pa. St. 366. "' Fuller V. Detroit F. & M. Ins. Co., 36 Fed. 469, 1 L. R. A. 801. "' Towne v. Springfield F. & M. Ins. Co., 145 Mass. 582. '" Parks V. Anchor Mut Fire Ins. Co., 106 Iowa, 402, 76 N. W. 743. KERR, INS.— 32 498 NOTICE AND PROOFS ^0F LOSS. § 1T2 claimant to recover. The insurer cannot demand more than is reasonable and just;^^^ and if not satisfied it should call for and demand other and further proofs. ^^® A life insurance company whose policy provides for the payment of indemnity within ninety days after the receipt of satisfactory proofs of the death of the insured cannot, after the insured's death, impose additional requirements in re- spect to the proofs of loss, as, for instance, the requirement that the claimant shall make affidavit stating whether he makes the claim as beneficiary named in the policy, or as assignee. ^^^ A condition of a policy that proofs "satisfactory to the directors" of the insurer shall be furnished together with such other information as the "directors may think neces- sary to establish the claim" only necessitates the furnishing of reasonably full and accurate proofs, and the directors can not arbitrarily demand any proof they may desire. ^^® Partictilar Account — Inventory as Part of Proofs. The insured must, when required by the policy, furnish du];-)licate or certified copies of bills of articles contained in his statement of loss, and a failure so to do prevents recovery ^^ Walsh V. Washington Marine Ins. Co., 32 N. Y. 427; Buffalo L. T. & S. Deposit Co. v. Knights Templar & M. Mut. Aid Ass'n, 126 N. Y. 450; Flynn v. Massachusetts Ben. Ass'n, 152 Mass. 288; Taylor V. Aetna Life Ins. Co., 13 Gray (Mass.), 434. is'Fowle V. Springfield F. & M. Ins. Co., 122 Mass. 191. «■ Braker v. Connecticut Ind. Ass'n, 27 App. Div. 234, 50 N. Y. Supp. 547. i'» Braunstein v. Accidental Death Ins. Co., 1 Best & S. 782; Taylor V. Aetna Life Ins. Co., 13 Gray (Mass.), 438 (due proof). But "due notice of an accident" means a notice both of the accident and the cause of it. Simons v. Iowa State T. M. Ass'n, 102 Iowa, 267, 71 N. W. 254. But see Buffalo L. T. & S. Deposit Co. v. Knights Templar & M. Mut. Aid Ass'n, 126 N. Y. 450; Western C. T. Ass'n v. Smith, 56 U. S. App. 393, 85 Fed. 401. § 172 FORM AND CONTENTS. 499 on the policy unless it be shown that the insured has made proper efforts to obtain them and was unable to obtain the duplicate bills required by the insurer. ^^^ Failure to furnish plans and specifications of a building destroyed by fire will not prevent recovery for insurance, where the statutes make all the insurers liable for the face of the policy less the depreciation in the building between the time of issuing the policy and the fire, as to which the burden of proof is on the insurer. '^^ The term "joarticular account" does not mean anything more than a statement of the aggregate value of the property. A provision of a policy requiring the insured to furnish "as particular an account of the loss as the nature of the case will admit of" is sufficiently complied with by a correct statement of the amount of loss, where all the papers which could alone furnish the information and accurate details were totally destroyed by fire.^®^ A reasonable compliance with the terms of a policy requiring a description of the property destroyed is all that is necessary, and where the policy pro- vides for the furnishing of a complete inventoiy of the prop- erty damaged and the quantity and cost of each article and the amount claimed thereon, an inventory of the entire stock "•Langan v. Royal Ins. Co., 162 Pa. St. 357; Beatty v. Lycoming Co. Mut. Ins. Co., 66 Pa. St. 9; German Ins. Co. v. Pearlstone, 18 Tex. Civ, App. 706, 45 S. W. S32; Ward v. National Fire Ins. Co., iO Wash. 361; Jones v. Mechanics' Fire Ins. Co., 36 N. J. Law, 29; O'Brien v. Commercial Fire Ins. Co., 63 N. Y. 108; Farmers' Fire Ins. Co. v. Mispelhorn, 50 Md. 180, 53 Md. 473, 9 Ins. Law J. 411. 160 Meyer v. Insurance Co. of North America, 73 Mo. App. 166; Phoenix Ins. Co. v. Levy, 12 Tex. Civ. App. 45, 33 S. W. 992. '•^ Norton v. Rensselaer & S. Ins. Co., 7 Cow. (N. Y.) 645, 1 Ben- nett, Fire Ins. Cas. 204; Miller v. Hartford Fire Ins. Co., 70 Iowa, 704; Harkins v. Quincy Mut. Fire Ins. Co., 16 Gray (Mass.), 591; Erwin v. Springfield F. & M. Ins. Co., 24 Mo. App. 145. See post, "Books of Account, Vouchers," etc. 500 NOTICE AND PKOOFS OF LOSS. § 1^^ of goods insured, wliicli groups some of the articles collec- tively, is sufficient. ^^^ Examples of Insufficient Proofs. If the insured must within fourteen days after a loss fur- nish "as particular account of the property destroyed as the nature and circumstances will admit of," it is not enough to furnish an affidavit and a gross estimate of the loss and a statement of the general character of the property and a further statement that the invoice book of the insured had been burned and the insured had no adequate means of esti- mating the exact amount of the loss, where it was possible to have made a reasonably correct list and description of the goods furnished. Under such a policy an itemized account and statement of the goods destroyed is contemplated. ^^^' If the insured is required to furnish proof including a state- ment of his interest in the property and fails to insert such a statement in his proof of loss, he cannot maintain an action unless the omission is waived by the officers of the com- pany. ^^^ ^" Boyle V. Hamburg-Bremen Fire Ins. Co., 169 Pa. St. 349; Aetna Ins. Co. V. Peoples' Bank of Greenville (C. C. A.), 62 Fed. 222; Cat- lin V. Springfield Fire Ins. Co., 1 Sum. 434, Fed. Cas. 'No. 2.522, 1 Bennett, Fire Ins. Cas. 436; Towne v. Springfield F. & M. Ins. Co., 145 Mass. 582; Smith v. Commonwealth Ins. Co., 49 Wis. 322; Peet v. Dakota F. & M. Ins. Co., 1 S. D. 462, 47 N. W. 532. '^ Nixon V. Queen Ins. Co., 23 Can. Sup. Ct. 26. See, also, Daniels V. Equitable Fire Ins. Co., 50 Conn. 551; Peoples' Fire Ins. Co. v. Pulver, 127 111. 246; Fink v. Lancashire Ins. Co., 60 Mo. App. 673; Beatty v. Lycoming Co. Mut. Ins. Co., 66 Pa. St. 9; Summerfield v. Phoenix Assur. Co., 65 Fed. 292; Edgerly v. Farmers' Ins. Co., 43 Iowa, 587; Williams v. Queen's Ins. Co., 39 Fed. 167; Gauche v. London & L. Ins. Co., 4 Woods, 102, 10 Fed. 347; Aetna Ins. Co. v. Peoples' Bank of Greenville (C. C. A.)', 6^ Fed. 224. '■''* Shawmut Sugar Refining Co. v. Peoples' Mut. Fire Ins. Co., 1? Gray (Mass.), 535; Wellcome v. Peoples' Equitable Mut. Fire Ins. Co., 2 Gray (Mass.), 481. § 172 FORM AND CONTENTS. 601 Upon a claim made by Mrs. II. F. Welsh imder a fire and lightning policy for loss of a cow claimed to have been killed by lightning, a certificate of a veterinary surgeon to the fact of the cow being killed by lightning, naming Geo. H. Welsh as the OAvner, is not sufficient proof of loss under Laws Iowa 1880, c. 211, § 3, requiring an affidavit stating the facts.^^^ A letter by a member of an accident association stating that he had badly sprained his right foot from favoring his left foot which had been previously injured, does not constitute sufficient notice of an accident to the right foot in stepping from a street car, under a policy requiring "due notice of the accident" to be given within thirty days from the happening of the accident. The court held that the accident of which notice must be given is not the injury alone, but the cause of it as well.^*^^ Proofs of loss which do not state how the fire originated, or the actual cash value of the property, except by inference, are insufficient under McClain's Iowa Code, (section 1Y34), inquiring that the proofs shall set forth the facts as to how the loss occurred and the extent thereof. ^^'^ Nor is the estimate given by carpenters as to the probable cost of the destroyed building a sufllicient compliance. ^^^ "■ Welsh V. Des Moines Ins. Co., 71 Iowa, 337, 32 N. W. 369. In this case the court said in substance: The policy did not prescribe any specific mode of proof of loss. The Iowa statute requires it to be by "affidavit stating the facts as to how the loss occurred, so far as they were within the assured's knowledge, and the extent of the loss." In this case what is claimed to be proof of loss is not an affi- davit. It is a mere certificate of a veterinary surgeon that a cow was struck by lightning, and killed. It does not give the extent of the loss, nor name the plaintiff as the owner of the cow, but fixes the ownership in another. It was held insufficient. "' Simons v. Iowa State T. M. Ass'n, 102 Iowa, 267, 71 N. W. 254. '" Brock V. Des Moines Ins. Co., 96 Iowa, 39, 64 N. W. 685. '«" Heusinkveld v. St. Paul F. & M. Ins. Co., 96 Iowa, 224, 64 N. W. 769. 502 notice and pkoofs of loss. § 173 Certificates of Magistrate, Notary Public, etc. § 173. Provisions requiring the insured to furnish with the proofs, or " when required," the certificates of some designated official or individual, are valid and binding unless prohibited by statute. The great preponderance of judicial opinion is in favor of the rule that conditions in policies requiring the insured to serve either with and as a part of his proofs or within a given time thereafter or "if required," the certificate of some desig- nated magistrate, notary public, physician, or other party, to the effect that the fire, loss, death, or accident for which claim is to be made happened under given circumstances, are material and valid ; and if the furnishing of them is made a condition precedent to a right of recovery by insured, full compliance on his part is necessary unless waived by the insurer. When the stipulation is absolute, the rights of the parties are governed by what has been said as to proofs and their contents ;^^^ but the provisions of a policy compelling the insured to furnish a certificate "if required" are not operative until the certificate is formally required by the insurer. ^■^^ The certificate of the physician attending the insured prior to his death is not a necessary part of the proofs of loss unless made so either by separate provision of the pol- ""Turley v. North American Fire Ins. Co., 25 Wend. (N. Y.) 374, 2 Bennett, Fire Ins. Cas. 50; Columbia Ins. Co. v. Lawrence, 10 Pet. (U. S.) 507, 2 Pet. 25; Welsh v. Des Moines Ins. Co., 71 Iowa, 337; German-American Ins. Co. v. Etherton, 25 Neb. 505, 41 N. W. 406; Williams v. Queen's Ins. Co., 39 Fed. 167; Protection Ins. Co. v, Pherson, 5 Ind. 417; Leadbetter v. Aetna Ins. Co., 13 Me. 265; Van Poucke V. Netherland St. V. de P. Soc, 63 Mich. 378, 29 N. W. 803; Fink v. Lancashire Ins. Co., 60 Mo. App. 673; Summerfleld v. PhcBnix Assur. Co., 65 Fed. 292; Daniels v. Equitable Fire Ins. Co., 50 Conn. 551. As to time of furnishing, see Badger v. Glens Falls Ins. Co., 49 Wis. 389. ""McNally v. Phoenix Ins. Co., 137 N. Y. 389; Jones v. Howard Ins. Co., 117 N. Y. 103, ^nd cases infra. § 173 CEKTIFICATES OF MAGISTRATE, ETO. 503 icy or hj custom and usage to that effect knoTm to the as- sured. •^'^•^ Under the provisions of a standard fire insurance policy providing that the insured shall, if required, furnish a cer- tificate of the disinterested magistrate or notary living nearest to the place of the fire, stating that he has examined the cir- cumstances and believes the insured has honestly sustained a loss to the amount certified to, and that no action on the policy for the recovery of any claim can be sustained until after full compliance by insured with all of the requirements of the policy, the furnishing by the insured of a certificate in the manner and form aforesaid, if required so to do by the insurer, is a condition precedent to the right of the insured to recover, and his inability to furnish such certificate because of the arbitrary refusal of the magistrate or notary public for any cause whatever to give such certificate, does not ex- cuse the failure to furnish it, unless such failure is caused by the insurer. ^'^^ If such certificate be furnished voluntarily by the insured, it is mere surplusage and of no effect except that statements contained therein might afterwards be used as evidence against him.^'''^ It has been held that the requirement of a policy that the insured shall furnish a certificate by the nearest notaiy public or justice of the peace not interested in any way, as to the honesty of the loss, is excused where the nearest officer '" Buffalo L., T. & S. Deposit Co. v. Knights Templar & M. Mut. Aid Ass'n, 126 N. Y. 450; Taylor v. Aetna Life Ins. Co., 13 Gray (Mass.), 438. "'Lane v. St. Paul F. & M. Ins. Co., 50 Minn. 227; Roumage v. Me- chanics' Fire Ins. Co., 13 N. J. Law, 110; Williams v. Queen's Ins. Co., 39 Fed. 167; Aetna Ins. Co. v. Peoples' Bank of Greenville (C. C. A.), 62 Fed. 222; Lehigh v. Springfield F. & M. Ins. Co., 37 Mo. App. 542; Johnson v. Phoenix Ins. Co., 112 Mass. 49; Kelly v. Suu Fire Office, 141 Pa. St. 10, disapproving earlier decisions. "' Merchants' Ins. Co. v. Gibbs, 56 N. J. Law, 679, 29 Atl. 485. 504 NOTICE AND PROOFS OF LOSS. § 173 lias been retained as attorney bv tlie insurer, and the Insured after an attempt in good faith was unable to find any other notary or justice in the to^Ti who would act.^'^'* Contra — Such Provisions Held Invalid. But in New York it has been held that t\e refusal of an attending physician to certify to the proofs of loss on the ground that his bill had not been paid was good excuse for failure to furnish the certificate. The court said: "The claimants under a policy of insurance are not required to perform impossible conditions. They are bound to use dili- gent efforts to comply with the stipulated conditions, but if j^revented from doing so without fault or negligence on their l^art, they are not thereby precluded from recovering in a contested case."-^'^^ And the Kentucky court of appeals has held invalid a condition requiring a certificate of the near- est magistrate or notary public that he has examined the circumstances and believes that the insured has honestly sus- tained the loss to the amount certified, upon the ground that there was no law under which such ofiicer could be required to certify at all.^'^^ A provision requiring the insured to have his proofs certified to by an agent or oflScer of the insurer is unreasonable and vold.^'^''^ But it seems that a by-law of a mutual benefit insurance society which invests a committee with authority to determine whether a member, claiming to be sick, is entitled to benefits provided for sick and disabled "* De Land v. Aetna Ins. Co., 68 Mo. App. 277. '"O'Neill V. Massachusetts Benefit Ass'n, 63 Hun (N. Y,), 292; Aetna Ins. Co. v. Miers, 5 Sneed (Tenn.), 139. ""Hoke V. Richie, 100 Ky. 66, 37 S. W. 266, 38 S. W. 132; Home Fire Ins. Co. v. Hammang, 44 Neb. 566, 62 N. W. 883. "'Young V. Grand Council, A. O. of A., 63 Minn. 506; Campbell v. American Popular Life Ins. Co., 1 MacArthur, D. C. 471. § 173 CERTIFICATES OF MAGISTRATE, ETC. 505 members, is valid and reasonable, and tbe action of tbe com- mittee on the question is final. ^'^^ Statutory Regulation. In some states the apparent hardship resulting occasionally from the existence and enforcement of such provisions has moved the legislatures to declare them invalid. ^'''^ Under the Civil Code of California, (section 2637), pro- viding that it shall be sufficient to furnish reasonable evidence that the refusal of tlie nearest notary or magistrate to sub- scribe to the notice of loss was not induced by any just disbelief in the facts necessary to be certified, if the notary nearest to the scene of the fire refuses to furnish the cer- tificate because of the fact that he is in the employ of the insurer, the insured is not required to furnish absolute proof of such employment, nor need he inform the insurer in his proofs, nor at the time of furnishing them, of the reason for obtaining the certificate of another notary. ^^® *' If Required " — What is a Demand.] Where a policy does not call for a certificate unless "if required" and an insufiicient certificate has been voluntarily furnished by the insured with his proofs, an objection made by the insurer to the proofs because the certificate of the nearest notary has not been furnished as provided by the "«Van Poucke v. Netherland St. V. de P. Soc, 63 Mich. 378, 29 N. W. 863; Raymond v. Farmers' Mut. Fire Ins. Co., 114 Mich. 380, 72 N. W. 255; Campbell v. American Popular Life Ins. Co., 1 Mac- Arthur, D. C. 471. ""Laws Wis. 1891, c. 19.5, § 1; Laws Wis. 1893, c. 124; Gen. Laws Minn. 1895, c. 175, § 25; Civil Code Cal. § 2637; Gen, St. Conn. § 2839; 2 Rev. St. Ind. 1888, § 3770; Rev. St. Me. 1883, § 21, p. 446; Rev. Laws Vt. 1880, § 3626; Shannon v. Hastings Mut. Ins. Co., 2 Ont. App. 81; Aurora Fire Ins. Co. v. Johnson. 46 Ind. 315; Bailey V. Hope Ins. Co., 56 Me. 474; Rev. Codes N. Dak. § 4530. ^''"Noore v. Transatlantic Fire Ins. Co., 88 Cal. 152. 506 NOTICE AND PROOFS OF LOSS. § 173 policy is not a requirement of siicli certificate ;-'^-' but when the proofs given bj the insured contained a certificate not made by the proper officer, and the company replied that the proofs were incomplete and insufficient because they did not meet the requirements of the policy in respect to the magis- trate or notary, and said "for the above reasons we decline to accept the proofs you have offered as sufficient under the re- quirements of the policy," it has been held that the condition became operative, and that the insured must furnish a new and proper certificate before he can recover.^^^ When Demand Must be Made. The insurer should seasonably avail itself of the right to demand ar certificate if it is not satisfied with the mere pro- duction of the preliminary proofs. The mere delay of thirty- seven days after receipt of proofs and before demanding a certificate is no Avaiver of the right to demand it where the policy was not payable until sixty days after proof of loss and plaintiff does not claim that the delay prevented him from obtaining the certificate so that he could begin suit at the end of the sixty days or that it in any way prejudiced him.^^^ But a delay of five weeks has been held sufficient ground for find- '"^ Jones V. Howard Ins. Co., 117 N. Y. 103; Burnett v. American Cent. Ins. Co., 68 Mo. App. 343. "= Williams v. Queen's Ins. Co., 39 Fed. 167. And see Aetna Ins. Co. V. Peoples' Bank of Greenville (C. C. A.), 62 Fed. 224; Paltro- vitch V. Phoenix Ins. Co., 143 N. Y. 73, 25 L. R. A. 198; Merchants' Ins. Co. V. Gibbs, 56 N. J. Law, 679, 29 Atl. 485. Notice to the insured to comply strictly with the terms of the policy is not notice to furnish a certificate of a magistrate or notary public, which need be furnished only if required. Moyer v. Sun Ins. Office, 176 Pa. St. 579. ^*^ Williams v. Queen's Ins. Co., 39 Fed. 168. I 173 CERTIFICATES OF MAGISTRATE, ETC. o07 ing a waiver.'^^ Mere delay in demanding a certificate -will not extend the time fixed by the policy for bringing suit.^'''' Effect of Insurer Demanding Certificate. A demand by an insurer for a certificate of a magistrate or notary is a waiver of defects in the proofs already fur- nished by the insured and of the objection that the proofs were not furnished in proper time. It can not be construed as a demand for further or amended proofs, and does not extend the time for bringing suit, when, under the policy in question, liability accrues sixty days after proofs have been furnished and suit must be brought within twelve months after the fire.^^^ Nor will delay in furnishing the certificate ex- tend that time.^^"^ Nearest Magistrate or Notary. Under a provision that the insured "shall, if required, pro- duce a certificate of a magistrate or notary public nearest to the place of the fire," the certificate of the nearest officer of the classes named — whether magistrate or notary — is neces- sary. The certificate of the nearest magistrate is insufficient where there is a nearer notary. ^^^ "^Keeney v. Home Ins. Co., 71 N. Y. 396. For rule when certifi- cate must be furnished without demand, see Daniels v. Equitable Fire Ins. Co., 50 Conn. 551; Fink v. Lancashire Ins. Co., 60 Mo. App. 673; Summerfield v. Phoenix Assur. Co., 65 Fed, 292. On -waiver by insurer of its right to demand a certificate, see Daniels v. Equitable Fire Ins. Co., supra; Williams v. Queen's Ins. Co., 39 Fed. 168, and post, "Waiver." "=> Merchants' Ins. Co. v. Gibbs, 56 N. J. Law, 679. See, also, Mc- Nally V. Phoenix Ins. Co., 137 N. Y. 389. "^ Merchants' Ins. Co. v. Gibbs, 56 N. J. Law, 679, 29 Atl. 485. "■ McNally v. Phoenix Ins. Co., 137 N. Y. 389. "« Williams v. Queen's Ins. Co., 39 Fed. 168. And see Ben Frank- lin Fire Ins. Co. v. Flynn, 98 Pa, St. 628; Lounsbury v. Protection Ins. Co., 8 Conn. 459. 508 NOTICE AND PKOOFS OF LOSS. § 1^3 A notaiy public is not a magistrate within the meaning of the condition of a policy requiring the certificate of the nearest magistrate. ^^^ In determining the contiguity of a magistrate or notary to the place of fire, the place^of his busi- ness and not his residence will be regarded, and no nice cal- culations of distance will be gone into to ascertain the nearest person who might give the certificate. Where there are sev- eral such ofiicers in the immediate neighborhood, the certifi- cate of any one of them will be a sufficient compliance with the conditions of the policy, and a distance of a few yards more or less will not be regarded as a matter of any importance. The provision is liberally construed. Good faith on the part of the insured, an honest effort and intention to comply, and the proximity of the magistrate to the place of the fire are all that can be required. ^^"^ It was recently held in New York that tlie provision of a policy that proofs of loss shall be accompanied by the cer- tificate of the magistrate or notary public nearest the place of the fire, is sufficiently complied with by obtaining a certifi- cate of a notary residing four blocks from the place of the :fire, who keeps his office two or three blocks in the other di- rection and passes the scene of the fire several times daily in going to and from his office and his home ; although there were notaries living nearer the place of the fire but having no notarial seal at their residences, where the insured acts in good ''*» Cayou V. Dwelling House Ins. Co., 68 Wis. 510, 32 N. W. 540. '^ Smith V. Home Ins. Co., 47 Hun (N. Y.), 39; Agricultural Ins. Co. V. Bemiller, 70 Md. 401; Williams v. Niagara Fire Ins. Co., 50 Iowa, 561; Turley v. North American Fire Ins. Co., 25 Wend, (N. Y.) 374, 2 Bennett, Fire Ins. Cas. 50; American Cent. Ins. Co, v. Roth- child, 82 111. 166; Peoria M. & F. Ins. Co. v. Whitehill, 25 111. 466; German American Ins. Co. v. Etherton, 25 Neb. 505, 41 N. W. 406. Biit see Protection Ins. Co. v. Pherson, 5 Ind. 417; Leadbetter v. Etna Ins. Co., 13 Me. 265. § 173 CERTIFICATES OF MAGISTKATE, ETC. 50& faith and is informed and believes that the magistrate whose certificate be procured is in fact the nearest magistrate, and the proofs of loss thus certified are furnished to the insurer which retains them for twenty-three days ^xdthout objection and then demands a new certificate without furnishing any information as to whom it considers to be or who is the proper notary or magistrate to sign the certificate. ■^'^^ Disinterested — Not Concerned in Loss. The words "disinterested" or "not concerned in the loss" when used as descriptive of the magistrate or officer who must certify to the proofs, mean one of the enumerated classes who is not concerned in the loss by reason of having an interest in the property insured or in the policy or its proceeds as security for an obligation or otherwise — one who will neither make or lose directly or indirectly by the determination of the rights and obligations in respect to the loss. It does not dis- qualify a mere general creditor of the insurer. ^^^ An agent or employe of the insurer is disqualified. ^^^ A magistrate who owned a house (next to the plaintiff's) which was de- stroyed by the same fire which burned a building of the plain- tiff against whom the magistrate had entered a complaint for setting the fire is "concerned in the loss" because a certificate made by him to the effect that the fire was honest would be conclusive against him in his 0"wn right to recovery. ^^* ^" Paltrovitch v. Phoenix Ins. Co., 143 N. Y. 73, 25 L. R. A. 198. ^'"Dolliver v. St. Joseph F. & M. Ins. Co., 131 Mass. 39; Smith v. Home Ins. Co., 47 Hun (N. Y.), 39. But see Aetna Ins. Co. v. Miers, 5 Sneed (Tenn.), 139. "^Noone v. Transatlantic Fire Ins. Co., 88 Cal. 152; Young v. Grand Council, A. 0. of A., 63 Minn. 506; De Land v. Aetna Ins. Co., 68 Mo. App. 277; Campbell v. American Popular Life Ins. Co., 1 Mac- Arthur, D. C. 471. '"Wright V. Hartford Fire Ins. Co., 36 Wis. 522; Ganong v. Aetna Ins. Co., 6 Allen (N. B.), 75. 510 NOTICE AND PROOFS OF LOSS. § 173 A statement by a magistrate in his certificate that he is not concerned in the loss, is prima facie evidence of that fact.i^^ Not Related to Insured. A notary who has married the first cousin of the insured is "related" to him so as to be disqualified to give a certificate to accompany the proof of loss, within the meaning of a policy requiring a certificate from one "not related to the in- sured."i^6 Physician's Certificate. An "attending physician" is the family physician of the in- sured if he have one. Thus, where a retired physician, being a friend and neighbor of the deceased, was called in before the arrival of the regular family physician who took charge of the case, it has been held that the certificate of the latter only is required. ^^''' Under the provision of a policy requir- ing the sworn certificate of the attending physician, the in- sured is not bound to furnish a certificate from a physician who had not attended or treated him for some years before his death. ^^^ The certificate of a physician who, in a foreign city, attended a member of a benefit association, together with the certificate of the mayor of such city, and the evidence of the plaintiff that he saw them both sign the certificates, is a sufiicient compliance with the by-laws of the association re- quiring a medical certificate signed or authenticated by the legal authorities of the place where the member was sick.^^^ "'Cornell v. Le Roy, 9 Wend. (N. Y.) 163. ''° Peoples' Bank of Greenville v. Aetna Ins. Co. (C. C. A.), 74 Fed. 507. "' Gibson v. American Mut. Life Ins. Co., 37 N. Y. 580. i9» Fiynn V. Massachusetts Ben. Ass'n, 152 Mass. 288. •»» Mutual A. & I. Soc. v. Monti, 59 N. J. Law, 341, 36 Atl. 666. And see Welsh v. Des Moines Ins. Co., 71 Iowa, 337; Dreier v. Conti- § 173 CERTIFICATES OF MAGISTRATE, ETO. 611 When Certificate Must be Furnished. As we have already seen, a requirement of a policy that tlie certificate of some designated party be furnished with the proofs as a condition precedent to recovery, must be strictly complied with unless compliance be prevented or waived by the insurer ;^'^° but Avhen a certificate need only be furnished ^'if required," the failure of the insured to attach a certificate to his proofs of loss is immaterial unless one is demanded by the insurer. ^^^ When the policy stipulates that the insured shall furnish proofs of loss and the certificate if required so to do, the provisions are severable, as those relating to notice and proofs ; and the acceptance of proofs of loss as compli- ance with one condition, cannot be construed as amounting to a waiver of compliance with the other. ^^^ Under such a condition the company may call for the certificate or not as it deems necessaiy. It can call for it at any time before payment unless waived, and when called for the insured may comply with the demand in a reasonable time and before the commencement of the action. The certificate is some- nental Life Ins. Co., 24 Fed. 670; Spitz v. Mutual Life Ass'n, 54 N. Y. St. Rep. 818, 25 N. Y. Supp. 469; Redmond v. Industrial Ben. Ass'n, 78 Hun (N. Y.), 104; Clemans v. Supreme Assembly, R. S. of G. F., 131 N. Y. 485; Day v. Mutual Ben. Life Ins. Co., 1 MacArthur, D. C. 598; Connecticut Mut. Life Ins. Co. v. Siegel, 9 Bush (Ky.), 450. ^°°Fink V. Lancashire Ins. Co., 60 Mo. App. 673; Daniels v. Equi- table Fire Ins. Co., 50 Conn. 551; Summerfield v. Phoenix Assur. Co., 65 Fed. 292. '"^McNally v. Phoenix Ins. Co., 137 N. Y. 389; Merchants' Ins. Co. V. Gibbs, 56 N. J. Law, 679. =="' Lane v. St. Paul F. & M. Ins. Co., 50 Minn. 227. See ante, "No- tice and Proofs of Loss." For waiver of certificate, see post, "Waiver," and Turley v. North American Fire Ins. Co., 25 Wend. (N. Y.) 374; Daniels v. Equitable Fire Ins. Co., 50 Conn. 551; Keeney V. Home Ins. Co., 71 N. Y. 396; Williams v. Queen's Ins. Co., 39 Fed. 168. 512 NOTICE AND PROOFS OF LOSS. § 173 thing tlie company may require; but is not an absolute re- quirement of the policy to be complied with before the sixty days begin to run. In a New York case the policy became payable in event of fire sixty days after full compliance by the insured with all the conditions. Proofs had been duly fur- nished and a certificate had been demanded. The insured applied to a magistrate of the town to make a certificate. He declined. Then he applied to another magistrate who was an attorney; he, after keeping the papers three months, in- formed the insurer that he was unable to make the certificate as he had been retained as counsel for the defendant. Plain- tiff then applied to a third magistrate. At that time, how- ever, there had been some negotiations in regard to a settle- ment, and a promise had been made to settle and pay plaintiff's claim if he would bring his figures "down to hard pan," and in consequence of this the statement as to value was reduced. Soon thereafter the certificate was furnished. Under these circumstances it was held that the delay in furnishing the certificate did not, as a matter of law, defeat plaintiff's cause of action ; but it presented a question of fact for a jury whether or not the conduct of plaintiff with respect to the certificate was diligent and reasonable."^"^ Contents of Certificate. Clauses in policies governing or regulating the contents of certificates are construed with the same liberality as similar clauses concerning notice and proof of loss. A certificate need not be in the precise words specified in the policy. If it be so drawn as to evidently mean the same thing it is enough. Accordingly, when a condition required that the magistrate should state in his certificate that he was acquainted =<"McNally v. Phoenix Ins. Co., 137 N. Y. 389; Summerfield v. Phoenix Assur. Co., 65 Fed. 292, cases ante. I 173 CERTIFICATES OF MAGISTRATE, ETC. 513 with the character and circumstances of the person insured, and that having investigated the circumstances in relation to the loss, he knew or verily believed that the insured had sus- tained loss to the amount mentioned in the certificate, it was held that a certificate of a magistrate that he resided within two miles of the place where the fire occurred, and was ac- quainted with the assured, and that the assured had sustained loss to the amount of the value of the building mentioned in the account of loss of the insured, was a sufiicient compliance with the conditions mentioned.^^* The requirement of a policy of insurance, that the proofs of loss "shall be signed and sworn to by the insured," means that the oath or a certificate thereof shall be in writing, and a cer- tificate of the officer which does not state that the affiant made oath before him is fatally defective. ^"^^ And a condition that the magistrate must certify that the notice of loss was sworn to before him and that he believed it to be true, is complied with by a magistrate's certificate stating that it was sworn to before him, and that he believed the insured had really by mis- fortune, and without fraud or evil practice, sustained by th"e fire damage to the amount stated in the affidavit. ^"^ A pro- vision requiring a certificate from a magistrate not next of kin to the insured, does not require a statement in the proofs to that effect, but such must be the fact ; and if the magistrate be disqualified the burden is upon the insurer to establish that fact. 2°^ Bu.t it has been held that when the policy requires "o* Aetna Fire Ins. Co. v. Tyler, 16 Wend. (N. Y.) 385; Turley v. North American Fire Ins. Co., 25 Wend. (N. Y.) 374; Paltrovitch v. Phoenix Ins. Co., 143 N. Y. 73, 25 L. R. A. 198. ^''McManus v. Western Assur. Co., 22 Misc. Rep. 269, 48 N. Y. Supp. 820. ^•"Lockwood V. Middlesex Mut. Assur. Co., 47 Conn. 553. ='"Erwin v. Springfield F. & M. Ins. Co., 24 Mo. App. 145; Cornell V. Le Roy, 9 Wend. (N. Y.) 163, 1 Bennett, Fire Ins. Cas. 408; KERR, INS.— 33 514 NOTICE AND PROOFS OF LOSS. § 1T4: that there he furnished with the proofs of loss a certificate of the nearest notary that he has examined the circumstances and helieves that the insured has honestly sustained a loss to the amount certified, the certificate is insufficient unless it states that the notary is the one living nearest to the place of fire and that he examined into the circumstances of the case and believes that the insured has honestly sustained the loss claimed. ^"^^ And a certificate signed by a person disqualified by the policy is insufficient. ^^^ Who Must Fukxish Notice and Proof. § 174. Notice and proof must be given by the party desig- nated in the policy. Notice and proofs must, if possible, be given by the one upon ■whom the policy imposes that duty.^^° The court will not, for the purpose of enforcing a forfeiture against an in- sured, supply the omission of a provision in a policy to specify by whom the notice shall be given.^^^ In the absence of any Lounsbury v. Protection Ins. Co., 8 Conn. 459; Noone v. Transat- lantic Fire Ins. Co., 88 Cal. 152. ^'Fink V. Lancashire Ins. Co., 60 Mo. App. 673; Simmons v. "West Virginia Ins. Co., 8 W. Va. 474. See, also, Summerfield v. Phoenix Assur. Co., 65 Fed. 292. '»* Aetna Ins. Co. v. Peoples' Bank of Greenville (C. C. A.), 62 Fed. 222; Williams v. Queen's Ins. Co., 39 Fed. 167; Daniels v. Equitable Fire Ins. Co., 50 Conn. 551. See, also, Agricultural Ins. Co. v. Be- miller, 70 Md. 400; Mann v. Western Assur. Co., 17 Up. Can. Q. B. 190; Birmingham Fire Ins. Co. v. Pulver, 126 111. 329; Flynn v. Mas- sachusetts Ben. Ass'n, 152 Mass. 288. ^"Newman v. Springfield F. & M. Ins. Co., 17 Minn. 123 (Gil. 98) ; Mcgraw v. Germania Fire Ins. Co., 54 Mich. 145, 19 N. W. 931; Aetna Ins. Co. V. Peoples' Bank of Greenville (C. C. A.), 62 Fed. 222; Dan- iels V. Equitable Fire Ins. Co., 50 Conn. 551; Stephenson v. Bankers' Life Ass'n, 108 Iowa, 637, 79 N. W. 459. -" Prendergast v. Dwelling House Ins. Co., 67 Mo. App. 426. This policy provided that "* * * should give immediate notice in writ- ing of loss, and should within sixty days render * * * a verified § 174 WHO MUST FURNISH NOTICE AND PKOOF. 515 provision in the policy fixing the parties by whom and to whom the notice shall be given, a notice of loss given by the local agent to his company and acted upon by the latter is suf- ficient, and, generally speaking, any notice given by any per- son and upon which the insurer acts, is sufficient.^^- The provisions of a policy requiring notice to be given in writing to the home office are complied with when notice is given to the insurer by its local agent based upon information secured by him from the insured.^^^ Substantial compliance with the provisions of a policy is enough. ^^"^ But the state- ment and proofs of loss concerning the property destroyed must bo made and sworn to by the insured personally, when so required by the policy. ^^^ Thus, where a policy contained a provision requiring "all persons insured by this company to deliver a particular account of loss or damage signed by their ovna. hands and containing," etc., it was held that notice given for and on behalf of the insured by a third party who was in- terested in the policy, but was not an agent of the insured, was insufficient.^^^ Proofs of loss furnished by one not legally entitled to fur- statement, etc;" and the court held that this did not impose on any- one the duty of furnishing proofs. ''"Phoenix Ins. Co. v. Perry, 131 Ind. 572, 30 N. E. 637; Partridge V. Milwaukee Mechanics' Ins. Co., 13 App. Div. 519, 43 N. Y. Supp. 632; Brink v. Hanover Fire Ins. Co., 70 N. Y. 593; Travellers' Ins. Co. V. Edwards, 122 U. S. 457; Omaha Fire Ins. Co. v. Dierks, 43 Neb. 473, 61 N. W. 740; Peele v. Provident Fund Soc, 147 Ind. 543. ""American Ace. Ins. Co. v. Norment, 91 Tenn. 1, 18 S. W. 395; Bennett v. Maryland Fire Ins. Co., 14 Blatchf. 422, Fed. Cas. No. 3,221. "^Karelsen v. Sun Fire Office, 122 N. Y. 545; West Rockingham Mut. Fire Ins. Co. v. Sheets, 26 Grat. (Va.) 854. ""Spaulding v. Vermont Mut. Fire Ins. Co., 53 Vt. 156; State Ins. Co. v. Maackens, 38 N. J. Law, 564. *^*Ayres v. Hartford Fire Ins. Co., 17 Iowa, 179; Spaulding v. Ver- mont Mut. Fire Ins. Co., 53 Vt. 156. 516 KOTICE AND PEOOTS OF LOSS. § I'J''^ nisli tliem may be adopted by one wbo has legal riglit to furnish proofs of loss with the consent of the insurer. Thus, where an administrator, with the implied assent of an acci- dent indemnity association, adopts and relies upon the act of a third person who has filed with the association proof of a claim growing out of the accidental killing of such administrator's intestate who was a member of defendant, the association can- not defeat recovery under the policy upon the ground that it was incumbent upon the administrator to file the proofs him- self, and that he could not, with the implied consent of de- fendant, adopt as his own proofs filed and served by such third person. ^^''^ Proofs of death furnished to an insurer by an aunt of the deceased and retained without objection, are available to the mother in an action brought by her upon the policy which is payable to any relative by blood of the insured, and requires that the proofs shall contain answers to each question pro- pounded to the claimant jn blanks furnished by the in- surer. ^-^^ In case of loss or damage by fire after the death of the original insured and before the appointment of a legal repre- sentative, those interested in the estate and in securing in- demnity under a policy of insurance must make proper and reasonable efforts to see that the covenants and conditions of the policy concerning notice and proof of loss are complied with, and within a reasonable time must use such agencies as the law provides to secure that result.^^^ Proofs of loss are =^^ Wilson V. Northwestern Mut. Ace. Ass'n, 53 Minn. 470; Loeb v. American Cent. Ins. Co., 99 Mo. 50. ="' Kelly V. Metropolitan Life Ins. Co., 15 App. Div. 220, 44 N. Y. Supp. 179; Graham v. Phoenix Ins. Co., 17 Hun (N. Y.), 156. ^'^ Matthews v. American Cent. Ins. Co., 154 N. Y. 449, 39 L. R. A. 433; Farmers' Mut. Ins. Co. v. Graybill, 74 Pa. St. 17. § 174 WHO MUST FURNISH NOTICE AND PROOF. 517 properly furnished by the trustee, successor to the trustee and agent to whom the policy was payable in case of loss.^^^ One for whose indemnity a policy of insurance was issued under such circumstances as to entitle him to enforce the same if the conditions are complied with, is the proper person to make proofs of loss, although the policy was issued to another person.^^^ And proofs of loss required by a policy of insur- ance may be made by the agent of the insured, where the latter is not in a position to make them in person, and the objection that proofs of loss were made by an agent of the insured, rather than by the insured, is waived where the com- pany bases its refusal to pay the loss on the ground that the person named as the insured was dead Avhen the policy was issued. ^^^ The agent must have either express or implied power to act; a self -constituted agency is insufficient. ^^^ When a husband, who owns insured property, is perma- nently absent and ignorant of a loss, and the surroundings, cir- cumstances, and the kind and value of the property destroyed, and has told his wife to care for the property until he re- turned, she may make proofs of loss, even though the policy requires the assured to give notice and proof of loss and verify the same by his oath.^^'* Where a fire insurance policy is issued to a husband on a 220 wolcott V. Sprague, 55 Fed. 545. "1 Milwaukee Mechanics' Ins. Co. v. Brown, 3 Kan. App. 225, 44 Pac. 35. ^ Lumbermen's Mut. Ins. Co. v. Bell, 166 111. 400, 45 N. E. 130. "'Ayres v. Hartford Fire Ins. Co., 17 Iowa, 176; Spaulding v. Vermont Mut. Fire Ins. Co., 53 Vt. 156; State Ins. Co. v. Maackens, . 38 N. J. Law, 564; Wuesthoff v. Germania Life Ins. Co., 107 N. Y. 580; Cannon v. Northwestern Mut. Life Ins. Co., 29 Hun (N. Y.), 470; Sheanon v. Pacific Mut. Life Ins. Co., 83 Wis. 507, 53 N. W. 878. '"O'Conner v. Hartford Fire Ins. Co., 31 Wis. 160; Roberts v. Northwestern Nat. Ins. Co., 90 Wis. 210. Compare Spaulding v. Ver- mont Mut. Fire Ins. Co., 53 Vt. 156. 518 NOTICE AND PROOFS OF LOSS. § 175 building- wliicli is his homestead, and before any loss oecurs he abandons his wife, she, and one to whom the loss was by the terms of the policy made payable, may make proofs of loss, although the policy provides that if it is payable in case of loss to a third party or held as collateral security, proofs of loss shall be made by the party originally insured. ^^^ Proofs may be furnished by a guardian of infants whose property was insured and destroyed ;^^^ and when the insured is dead, by his heirs and legal representatives. ^^'^ Same — Mortgagee. § 175. A mortgagee entitled to the benefits of the insurance may sometimes furnish the notice and proof. A mortgagee of insured property to whom the loss is pay- able as his interest may appear, may furnish proofs of loss if the insured neglects and refuses so to do.^^^ The New York standard policy declares in substance that no act or neglect of a mortgagor shall defeat the insurance as to the interest of the mortgagee. This does not relieve the mortgagee to whom the loss is payable to the extent of his interest, from fur- nishing proofs of loss if the mortgagor neglects or refuses so ="' Warren v. Springfield F. & M. Ins. Co., 13 Tex. Civ. App. 466, 35 S. W. 810. "« Monaghan v. Agricultural Fire Ins. Co., 53 Mich. 238, 18 N. W. 801; O'Brien v. Phoenix Ins. Co., 76 N. Y. 459; Wuesthoff v. Ger- mania Life Ins. Co., 107 N. Y. 580. ^-' Farmers' Mut. Ins. Co. v. Graybill, 74 Pa. St. 17, 5 Bennett, Fire Ins. Cas. 527; Wilson v. Northwestern Mut. Ace. Ass'n, 53 Minn. 470. "'Moorf? V. Hanover Fire Ins. Co., 71 Hun (N. Y.), 199; Nlcker- son V. Nickerson, 80 Me. 100; Watertown Fire Ins. Co. v. Grover & B. Sewing Machine Co., 41 Mich. 131; Hibernia Mut. Fire Ins. Co. V. Meyer, 39 N. J. Law, 482; Armstrong v. Agricultural Ins. Co., 56 Hun (N. Y.), 399. See State Ins. Co. v. Maackens, 38 N. J. Law, 564; Ayres v. Hartford Fire Ins. Co., 17 Iowa, 79. § 176 PARTNERSHIP. 619 to do.^^^ Proofs furaislied by the mortgagor will inure to the benefit of the mortgagee. ^^^ It has been held that a mort- gagee to whom a policy is payable as his interest may appear is the insured, within the meaning of a condition of a policy requiring the insured to furnish preliminary proofs of loss.^^^ Same — Partnership. § 176. They may be furnished by any member of an insured firm. Where the insured is a partnership, the proofs of loss signed and sworn to by one of the partners sufficiently complies with the provisions of a policy that proofs of loss should be signed and sworn to by the insured, unless the company promptly makes specific objection thereto on that ground. -^^ And where the insurer has waived the forfeiture resulting from the con- veyance of one partner to another, the purchasing partner may make proofs of loss without setting forth therein the assignment to himself of the interest of his co-partner. ^^'^ The mere addition of the word "treasurer" to the signature of a partner verifying the proofs of loss will not affect their validity unless this was done with fraudulent intent, or unless the insurer has been misled to his damage thereby. ^^* ='='» Southern Home B. & L. Ass'n v. Home Ins. Co., 94 Ga. 167, 27 L. R. A. 844. But seo contra. Dwelling House Ins. Co. v. Kansas Loan & Trust Co., 5 Kan. App. 137, 48 Pac. 891, 26 Ins. Law J* 603. "» Watertown Fire Ins. Co. v. Grover & B. Sewing Machine Co., 41 Mich. 131. But see State Ins. Co. v. Maackens, 38 N. J. Law, 564. "* Armstrong v. Agricultural Ins. Co., 56 Hun, 399, 130 N. Y. 560; Moore v. Hanover Fire Ins. Co., 71 Hun (N. Y.), 199; Nickerson y. Nickerson, 80 Me. 100. -"Myers v. Council Bluffs Ins. Co., 72 Iowa, 176, 33 N. W. 453; Marthinson v. North British & M. Ins. Co., 64 Mich. 372. ■^^ Keeler v. Niagara Fire Ins. Co., 16 Wis. 550. "^ Karelsen v. Sun Fire Office. 122 N. Y. 545. 520 NOTICE AND PROOFS OF LOSS. §§ 177, 178 Same — Assignee. § 177. Andby one whose rights as assignee of the policy have been recognized by the insurer. A pureliaser of insured premises to wliom is assigned a policy payable to a specified mortgagee as Ms interest may appear, is tlie proper person to make proofs of loss, although, he has executed a deed to the premises which is void because the grantee is not named therein.^^*^ Notice of loss given by one to whom the policy has been assigned with the consent of the insurer, is a compliance with a condition that all persons insured shall forthwith give notice, etc.^^^ Mutual Societies. The provisions of the by-laws of mutual insurance com- panies concerning the giving of proofs of loss are so mani- fold and diverse that nearly every case is a law unto itself. ^^'^ Same — Creditoes. § 178. A creditor of the insured may furnish proofs if the in- sured neglects to do so. Though the insured does not, upon the happening o~f a loss, take the necessary steps to perfect his right of action against the insurer, his claim may nevertheless be a valuable asset "' Westchester Fire Ins. Co. v. Jennings, 70 111. App. 539. =" Cornell v. Le Roy, 9 Wend. (N. Y.) 163, 1 Bennett, Fire Ins. Cas. 408; Keeler v. Niagara Fire Ins. Co., 16 Wis. 550; Manhattan Ins. Co. V. Stein, 5 Bush (Ky.), 652; Watertown Fire Ins. Co. v. Grover & B. Sewing Machine Co., 41 Mich. 131; Cannon v. Northwestern Mut. Life Ins. Co., 29 Hun (N. Y.), 470; Smith y. Haverhill Mut. Fire Ins. Co., 1 Allen (Mass.), 297. "'Supreme Council, C. B. L., v. Boyle, 10 Ind. App. 301; Anderson V. Supreme Council, O. of C. F., 135 N. Y. 107; Young v. Grand Council, A. 0. of A., 63 Minn. 506; Albert v. Order of Chosen Friends, 34 Fed. 721; Lorscher v. Supreme Lodge, K. of H., 72 Mich. 316, 40 N. W. 545. § 178 CREDITORS. 621 subject to attacliinent or ganiisliment by bis creditors; and if be fails to furnisb notice or proofs as required by tbe policy, an attacliing or garnisbing creditor may in some cases supply tbe omission. Mucb depends upon tbe requirement of tbe policy and tbe interpretation of tbe statute under wbi(5b a creditor is proceeding. In Texas it bas been beld tbat wbere a policy contains a stipulation tbat proofs of loss must be made before tbe insurer can be beld bound to pay, no suit -can be maintained under tbe policy until tbe required proofs are furaisbed ; yet in sucb cases a writ of garnisbment may issue at tbe instance of a creditor of tbe insured, tbe same being not, strictly speaking, a suit, but process autborized by ■statute to discover wbetber some debt or obligation exists, thougb not yet matured ; and tbereafter tbe attacbing creditor may make tbe preliminary proofs and enforce wbatever claims may exist in favor of tbe debtor and against tbe insurer.^^^ But in Maine, tbe rule is tbat wbere tbe policy requires notice and proofs of loss to be given before tbe claim matures, tbe claim is contingent until sucb notice is given and sucb proofs are furnisbed, and tbe insurer cannot be cbarged as trustee of tbe insured in a suit begun after tbe loss but before notice and proofs are served.^^a ^^ insurer may waive tbe fur- nisbing of proofs of loss in favor of a garnisbing creditor of tbe insured witbout tbe insured taking any part in tbe waiver or baving any knowledge tbereof .^^^^ A federal court bas beld tbat a waiver of proofs in favor of a insured debtor inures to tbe benefit of a garnisbing creditor, and tbat if at tbe =^ Phoenix Ins. Co. v. Willis, 70 Tex. 12; Northwestern Ins. Co. v.. Atkins, 3 Bush (Ky.), 333. ""Davis V. Davis, 49 Me. 282. The Maine statute read: "No per- son shall he adjudged trustee unless, at the time of the service of the writ upon him, it [the money] is due absolutely and not upon any contingency. "'» Ritter v. Boston Underwriters' Ins. Co., 28 Mo. App. 140. 522 KOTICE AND PftOOFS OF LOSS. § IT^ time process of garnlslmient was served upon tlie insurer it had waived the furnishing of proofs of loss, then the garnish- ment action could be maintained, otherwise it could not be maintained. ^^^^ To Wnoir Given". § 179. Notice and proofs must be served on the insurer at its offlee, or upon some managing or general agent. Service on a local agent is insufficient. Notice and proofs are served upon the insurer only when they are delivered to it at its home office, or to some general or managing agent, or to some agent or officer expressly or impliedly authorized to receive them. Service according to the terms of the policy is always sufficient; likewise service upon any agent of limited powers provided they are forwarded to the insurer before the expiration of the time fixed for their service. Any service, however imperfect, which the insurer acquiesces in and acts upon, is sufficient.^'**' The provisions of a policy requiring notice of loss to be given to the secretary of the insurer in writing, is complied with by giving notice to the company itself.^'*^ Notice given to a director of an insurance company is not compliance with a provision requiring it to be given to the "secretary or some authorized officer." ^"^^ If the policy requires notice to be 23Bb Lovejoy v, Hartford Fire Ins. Co., 11 Fed. 63. See, also, Girard F. & M. Ins. Co. V. Field, 45 Pa. St. 129. Compare Martz v. Detroit F. & M. Ins. Co., 28 Mich. 201. =*» Minneapolis, St. Paul & S. S. M. Ry. Co. v. Home Ins. Co., 64 Minn. 69; Travellers' Ins. Co. v. Edwards, 122 U. S. 457; Rokes v. Amazon Ins. Co., 51 Md. 512, and cases infra; German Ins. Co. v. Ward, 90 111. 550; Badger v. Phoenix Ins. Co., 49 Wis. 396. '^^ Lewis V. Burlington Ins. Co., 80 Iowa, 259, 45 N. W. 749; Scheiderer v. Travelers' Ins. Co., 58 Wis. 13, 16 N. W. 47; Herron v. Peoria M. & F. Ins. Co., 28 111. 235; Excelsior Mut. Aid Ass'n v. Rid- dle, 91 Ind. 85. =*= Inland Insurance & Deposit Co. v. Stauffer, 33 Pa. St. 397. § 179 TO WHOM GIVEN. 523 given to the secretary of the company, notice given to another agent is insufficient. ^^^ A provision for notice to be sent "to the company at Hartford," and proofs "to be furnished," does not require that the proofs shall be sent to liartford.^^* Service made upon an adjusting agent who has had charge of the loss, is good if he forwards them to the company and no other or further proofs are demanded. ^^^ Service upon any agent who for^vards them to his principal is good.^^^^ Proofs of loss under a Lloyd's policy are properly served at the office of the association on persons openly allowed to hold themselves out as its authorized attorneys in fact, not- withstanding great irregularity in their appointment. ^^*^ Ser- vice on its general agent is seiwice on the insurer.^^^ Under the provisions of an application for insurance that any claim under the policy must be made at the company's home office or (at the option of the company) at the general agency through which the policy was issued, notice given "'Rokes V. Amazon Ins. Co., 51 Md. 512; Connell v. Milwaukee Mut. Fire Ins. 'Co., 18 Wis. 407. "^ Scheiderer v. Travelers' Ins. Co., 58 Wis. 13. ==« Brock V. Des Moines Ins. Co., lOG Iowa, 30, 75 N. W. 683. =«'' Argall V. Old North State Ins. Co., 84 N. C. 355; Milwaukee Me- chanics' Ins. Co. V. Winfield, 6 Kan. App. 527, 51 Pac. 567; Willis v. Germania Fire Ins. Co., 79 N. C. 285; Loeb v. American Cent. Ins. Co., 99 Mo. 50; Watertown Fire Ins. Co. v. Grover & B. Sewing Ma- chine Co., 41 Mich. 131, 1 N. W. 961; Brink v. Hanover Fire Ins. Co., 70 N. Y. 593; Hibernia Mut. Fire Ins. Co. v. Meyer, 39 N. J. Law, 482; Travellers' Ins. Co. v. Edwards, 122 U. S. 457. "" Ralli v. White, 21 Misc. Rep. 285, 47 N. Y. Supp. 197. ■■•'■" Insurance Co. of North America v. McLimans, 28 Neb. 653, 44 N. W. 991; North British & Mercantile Ins. Co. v. Crutchfield, 108 Ind, 518; Brink v. Hanover Fire Ins. Co., 70 N. Y. 593. Where the policy stipulates that proofs shall be given to ths com- pany at its office or to an agent in the state, proof made to a general adjuster of a foreign company who is engaged in adjusting that par- ticular loss is sufficient without also making it to the home office. Merchants' & Mechanics' Ins. Co. v. Vining, 67 Ga. 661. 52 i NOTICE AND PROOFS OF LOSS. § 1T9 to any general agent of the insurer is sufficient.^^^ A require- ment that "notice shall be given to the secretary of the company within twenty days after loss or damage," is not complied with by giving verbal notice to the local agent within that time, and after the expiration of the twenty- days giving written notice to the secretary.^^^ Both reason and the weight of authority deny the validity of service of either notice or ]>roofs of loss upon a merely local agent, when the policy re- quires service to be made upon the insurer. ^^*^ In 1883, Pennsylvania passed a law to the effect that notice und proofs of loss may be given to an insurer at its general office or to the agent who countersigns the policy. Prior to that time sendee on local agents was held not good in that "' Pennington v. Pacific Mut. Life Ins. Co., 85 Iowa, 468, 52 N. W. 482. "' Connell v. Milwaukee Mut. Fire Ins. Co., 18 Wis. 407. ^"' Ermentront v. Girard F. & M. Ins. Co., 63 Minn. 311; Lohnes v. Insurance Co. of North America, 121 Mass. 439; Smith v. Niagara Fire Ins. Co., 60 Vt. 682; Bush v. Westchester Fire Ins. Co., 63 N. Y. 531; Edwards v. Lycoming Co. Mut. Ins. Co., 75 Pa. St. 378; Enge- bretson v. Hekla Fire Ins. Co., 58 Wis. 301. See post, "Who Can Waive Proofs." See, also, on this question. Insurance Co. of North America v. McDowell, 50 111. 120; Rokes v. Amazon Ins. Co., 51 Md. 512; Excelsior Mut. Aid Ass'n v. Riddle, 91 Ind. 84; Young v. Trav- elers' Ins. Co., 80 Me. 244; Hartford Fire Ins. Co. v. Smith, 3 Colo. 422; Bennett v. Maryland Fire Ins. Co., 14 Blatchf. 422, Fed. Cas. No. 1,321; North British Ins. Co. v. Crutchfield, 108 Ind. 518; Green- lee V. Iowa State Ins. Co., 102 Iowa, 260; Fisher v. Crescent Ins. Co., 53 Fed. 544; McCullough v. Phcenix Ins. Co., 113 Mo. 607. But an insurance company cannot take advantage of the failure of insured to furnish proofs of loss, where such failure was due to the action of the agent of the company who issued the policy, in tak- ing advantage of the ignorance or the inability of the assured to read. McGuire v. Hartford Fire Ins. Co., 7 App. Div. 575, 40 N. Y. Supp. 300, even though the policy may contain express restrictions en the agent's powers, O'Brien v. Ohio Ins. Co., 52 Mich. 131; Fire Ass'n of Philadelphia v. Jones (Tex. Civ. App.), 40 S. W. 44. § 180 MANNER OF SERVICE. 525 state. ^^^ Where a policy is issued by two companies unrler a joint name, providing for several liability, and notice of los& to each, it is sufficient to furnish the notice to the secretary of the joint business. ^^^ Manner of Service. § 180. Notice or proofs of loss are hot served upon the in- surer until they are actually received by it. If the policy re- quires service upon the insurer at a particular place, that con- dition must be observed. The law presumes that letters prop- erly addressed, stamped and mailed will reach their destination in the due course of mail service. One of the purposes of the stipulations of a policy concern- ing notice and proofs is to provide the insurer with actual knowledge of the designated facts, and this the insured usually obligates himself absolutely to do. Thougli unrestricted in liis choice of means of doing it — save as particularly specified in the policy itself — the risk of a failure is wholly his and not that of the insurer. Nothing less than actual reception by the insurer, wdthin the time limited, of the prescribed in- formation will satisfy the ordinary requirements of the con- tract in this regard. As a matter of evidence, proof that a letter properly addressed to the insurer at its usual place of business, with postage prepaid, was duly mailed, will raise a presumption that it was carried by due course of mail and was delivered and received in the usual and regular time of postal communication between the place of sending and the place to which the letter was addressed. But tliis is a mere presumption of fact liable to be rebutted or overcome by evidence that the letter was never in fact received. And if the- "1 Welsh V. London Assiir. Corp., 151 Pa. St. 607; Trask v. State F. & M. Ins. Co., 29 Pa. St. 198. -■^Minnock v. Eureka F. & M. Ins. Co.. 90 Mich. 236, 51 N. W. 367; Bernero v South British & Nat. Ins. Co., 65 Cal. 386. 526 NOTICE AND PKOOFS OF LOSS. § 181 evidence be conflicting as to wliether the letter was received, or as to the date of its receipt, these questions must he deter- mined as any other questions of fact.^^^ So where a policy requires that the proofs of loss shall be given to the insurer in the citv of its residence or in which it has its principal place of business, the mailing to the insurer of proofs which are never received is not a compliance with the conditions. ^^"^ And a mistake of the insured in misdirecting proofs of loss mailed by him to the company, resulting in the company not receiving the proofs until after the expiration of the period within which they were required to be furnished, is fatal to his right to recover on the policy. ^^^ The mailing of proofs of loss within sixty days has been held a substantial compliance with a condition of a policy that the insured shall "render a statement to the company'' within such time.^^^ A registered letter duly sent and ten- dered to the addressee, who refuses to receive it, must be con- sidered to have reached him.^^^ Peoofs as Evidence. § 181. Statements contained in proofs of loss are not always conclusive upon the claimant. They are not evidence in his favor. They may be used by the insurer as evidence in the nature of admissions against the claimant. 2=' Pennypacker v. Capital Ins. Co., 80 Iowa, 56, 45 N. W. 408; Dade V. Aetna Ins. Co., 54 Minn. 337; British & American Tel. Co. v. Col- son, L. R. 6 Exch. 108; Susquehanna Mut. Fire Ins. Co. v. Tunkhan- nock Toy Co., 97 Pa. St. 424; Engebretson v. Hekla Fire Ins. Co., 58 Wis. 301; Hodgkins v. Montgomery Co. Mut. Ins. Co., 34 Barb. 213, 4J N. Y. 620; Badger v. Glens Falls Ins. Co., 49 Wis. 389, 5 N. W. 845. «" Central City Ins. Co. v. Gates, 86 Ala. 559. == ■ Maddox v. Dwelling House Ins. Co., 56 Mo. App. 343. See as to computation of time, Badger v. Glens Falls Ins. Co., 49 Wis. 389, 5 N. W. 845. "" Manufacturers' & M. Mut. Ins. Co. v. Zeitinger, 168 111. 286, 48 N. E. 179. "' American Cent. Ins. Co. v. Simpson, 43 111. App. 98. § 181 PROOFS AS EVIDENCE. 527 Tlie proofs of loss stipulated for in an insurance policy arc no part of the contract of insurance, nor do they of them- selves create any liability in favor of the insured nor against the insurer. They merely serve to fix the time or circum- stances under which a loss shall become payable and when an action may be maintained to enforce a liability. Proof of their service merely shows an actual or attempted compliance with the requirements of the policy. ^^^ But a statement in the certificate of a magistrate that he is not interested in the loss is prima facie evidence of the fact of his disinterested- ness.^^^ Secondary evidence of the contents of proof of loss is admissible, when the defendant, having possession of the original, fails to produce it after notice to produce is prop- erly given. ^^" Representations made in proofs of loss or death as to the manner and attending circumstances are in- tended for the information of the insurance company, which has a right to rely upon their truth ; and the party making them must be held to them, until it is shown that they were made under misapprehension of the facts or in ignorance of material matters subsequently ascertained. The true rule upon this subject is that statements contained in proofs of loss con- cerning material matters are binding and conclusive upon the party who makes them, until by pleading, or otherwise, he gives the insurance company reasonable notice that he was mistaken in his statements and that he will endeavor to show that the death or loss was the result of a different cause or that surroimding circumstances were different from those stated in the proofs. After the insurance company has had due notice of these facts and this intention, the proofs have the probative force of solemn admissions under oath against "'Rheims v. Standard Fire Ins. Co., 39 W. Va. 672. "'Cornell v. Le Roy, 9 Wend. (N. Y.) 163. ="" Union Ins. Co. v. Smith, 124 U. S. 405. 528 NOTICE AND PKOOFS OF LOSS. § 181 interest, but tliey are not conclusive. """^ Thus, an incorrect statement of facts inadvertently made by the insured in his proofs of loss may be corrected and explained by the parol testimony upon the trial of the case, where the same explana- tion has been given in substance by the insured to the insurer prior to the institution of the suit.-*^^ And v^here a policy re- quires the furnishing of proofs of death of the insured, but does not state what such proofs must contain, a claimant is not bound by the statements made in his proofs as to the cause and manner of death. Such statements are evidence in the '"' Travelers' Ins. Co. v. Melick (C. C. A.), 65 Fed. 178; Cochran v. Mutual Life Ins. Co., 79 Fed. 46; Insurance Co. v. Newton, 22 Wall. (U. S.) 32; Keels v. Mutual Reserve Fund Life Ass'n, 29 Fed. 198; McMaster v. Insurance Co. of North America, 55 N. Y. 222; Parmelee v. Hoffman Fire Ins. Co., 54 N. Y. 193; Campbell v. Charter Oak F. & M. Ins. Co., 10 Allen (Mass.), 213; Irving v. Excelsior Fire Ins. Co., 1 Bosw. (N. Y.) 507. In Campbell v. Charter Oak F. & M. Ins. Co., supra, there was a misstatement of fact in the proofs, which showed the policy forfeited. Tbe supreme court of Massachusetts said: "A true statement [of the conditions] was called for by the * * * policy. It was a condi- tion precedent to the liability to be called upon to pay the loss. If this be rejected as being a false statement, then no statement has been filed, and for that reason the plaintiff cannot recover. If al- lowed to stand as a part of the statement, the policy had been avoided. * * * The defendants might properly rely upon the statement of the insured formally made under the provisionsin the policy, at least until notice of such mistake; and an amendatory statement ought to be filed before instituting an action upon the policy. * * * -^g ^Q -QQi- mean to say that the party may not correct mistakes of fact in his original statement, but such corrections are not for the first time to be made known to the insurers at the trial of the action to recover for the loss by the introduction of evidence showing that the statements filed were not true in a material fact, v.'hich, if it existed as stated, was fatal to the right of the insured to recover." West v. British America Assur. Co. (U. S. Cir. Ct.), 25 Ins. Law J. 689. ^«' Hanover Fire Ins. Co. v. Lewis, 28 Fla. 209, 10 So. 297; Fisher V. Fidelity Mut. Life Ass'n, 188 Pa. St. 1; Waldock v. Springfield F. & M. Ins. Co., 53 Wis. 129. § 181 PROOFS AS .EVIDENCE. 529 nature of admissions against the claimant, but when made under an honest misapprehension of the facts may be ex- plained, and the true facts may be shown. When no evidence is offered to contradict the statements in the proofs, they are taken as conclusive against the claimant. They are not evi- dence in his favor. 2^^ An honest mistake of the insured in stating in his proofs of loss that the fire originated from the use of benzine, does not prevent him upon the trial from pro- ducing evidence of the actual facts and explaining the mistake and the reasons for it.^*^^ Proofs of loss stating suicide as the cause of death, although admissible to show the fact of their service, are not conclusive against the plaintiff in an action on a life insurance policy. ^^^ One may show that the loss was greater or less than stated in the proofs, and that it embraced articles not included therein, unless by his acts, conduct or declarations, it is against good conscience that he should be permitted to show the truth, or unless otherwise stipulated in the policy. In order to pre- =''" Beckett v. Northwestern Masonic Aid Ass'n, 67 Minn. 298; Na- tional Life Ass'n v. Sturtevant, 78 Hun (N. Y.), 572; Schmitt v. Na- tional Life Ass'n, 84 Hun (N. Y.), 128; Cole v. Manchester Fire Assur. Co., 188 Pa. St. 345; Travelers' Ins. Co. v. Melick (C. C. A.), 65 Fed. 178; Hanna v. Connecticut Mut. Life Ins. Co., 150 N. Y. 526; Hiles V. Hanover Fire Ins. Co., 65 Wis. 585. =« White V. Royal Ins. Co., 8 Misc. Rep. 613, 29 N. Y. Supp. 323; Enos V. St. Paul F. & M. Ins. Co., 4 S. D. 639, 57 N. W. 919; Republic Fire Ins. Co. v. Weides, 14 Wall. (U. S.) 375; Maher v. Hibernia Ins. Co., 67 N. Y. 283; Balestracci v. Firemens' Ins. Co., 34 La. Ann. 844; Farmers' Mut. Fire Ins. Co. v. Gargett, 42 Mich. 289; Jersey City Ins. Co. V. Nichol, 35 N. J. Eq. 291; Schuster v. Dutchess County Ins. Co., 102 N. Y. 260. =«'Leman v. Manhattan Life Ins. Co., 46 La. Ann. 1189, 24 L. R, A. 589; Travelers' Ins. Co. v. Melick, 27 U. S. App. 547, 65 Fed. 178, 27 L. R. A. 629; John Hancock Mut. Life Ins. Co. v. Dick, 117 Mich. 518. 76 N. W. 9, 44 L. R. A. 846. (The notes given by the editor of the Lawyers' Reports Annotated to this last case are very full and com- plete.) KERR. INS.— 34 530 NOTICE AND PROOFS OF LOSS. § 181 elude him, tlie opposite party must have done some act or changed his situation in reliance upon the statement or con- duct of the party to be estopped. ^^^ But if the insured, with intent to defraud the insurer, overstates the amount of the loss, he will be bound by his proofs, and under many policies will forfeit all his rights. ^^''^ The affidavits of the attending physicians as to the cause of death of one insured, made on blanks furnished by the insurer and forwarded with proofs of death, do not conclude the beneficiary as to the cause of death. ^^^ And it has even been held that the statements of the attending physician fur- nished with proofs of death according to the terms of the policy, are not evidence in favor of either party in an action upon the policy; and this upon the ground that the insured was compelled by the policy to furnish a certificate, and in complying with that requirement of the policy he did not vouch for the absolute truth of the opinions or ideas of the physician, and that statements made by the physician stoo (N. Y.) 507. See ante, "Proofs, as Evidence." § 182 FKAUD, MISREPRESENTATIONS, ETC. 533 false representation or statement knowing it to be false, tlie law infers that lie did it with the intention to deceive. ^'^'^ In the absence of any stipulation to the contrary, all rights of a mortgagee or other person holding a beneficial interest in the policy are governed by the same conditions as the rights of the insured. ^^^ There can be no recovery on a policy of in- surance issued to several persons jointly, where one of them, in violation of its conditions, made false statements in the proofs of loss upon which the right of recovery is based, ^'^'^ Where a policy provides that it shall be void in case of the fraud or false swearing of the insured touching any matter relating to the insurance or the subject thereof, whether be- fore or after the loss, the wilful false swearing by the insured to a material matter on his examination before a notary pub- lic or magistrate after a loss, forfeits the whole amount due and not merely the amount due on a particular item of dam- age or for the loss of a particular article to which the false statement relates. ^'''^ Fraud which does not come within the ''"Claflin V. Commonwealth Ins. Co., 110 U. S. 81; Lord v. God- dard, 13 How. (U. S.) 198; Dohmen Co. v. Niagara Fire Ins. Co., 96 Wis. 38, 71 N. W. 69; Hammatt v. Emerson, 27 Me. 308-326; Mack v, Lancashire Ins. Co., 2 McCrary, 211, 4 Fed. 59; Worachek v. New Denmark Mut. Home Fire Ins. Co., 102 Wis. 88, 78 N. W. 411; Knop V. National Fire Ins. Co., 107 Mich. 323, 65 N. W. 229; Mullin v. Vermont Mut. Fire Ins. Co., 58 Vt. 113; Watertown Fire Ins. Co. v. Grehan, 74 Ga. 642; Maher v. Hibernia Ins. Co., 67 N, Y. 283; Merrill V. Insurance Co. of North America, 23 Fed. 245; Leach v. Republic Fire Ins. Co., 58 N. H. 245, and cases infra. See, also, "Examination under Oath." "= Lewis V. Council Bluffs Ins. Co., 63 Iowa, 193, 18 N. W. 888. "» Monaghan v. Agricultural Fire Ins. Co., 53 Mich. 238, 18 N. W. 797. "' Hamberg v. St. Paul F. & M. Ins. Co., 68 Minn. 335, 71 N. W. 388; Worachek v. New Denmark Mut. Home Fire Ins. Co., 102 Wis. 88, 78 N. W. 411; Moore v. Virginia F. & M. Ins. Co., 28 Grat. (Va.) 508; Oshkosh Packing & Provision Co. v. Mercantile Ins. Co., 31 Fed. 200. 534: NOTICE AND PEOOFS OF LOSS. § 183 conditions of tlie policy cannot affect tlie insurer's liability — as an attempt to bribe its inspector and builder.^'^^ A policy requiring the insured to state in his proofs of loss all other insurance, whether valid or not, covering any of the property, and providing that it shall be void in case of any fraud or false swearing by the insured, is not avoided by the omission from the proofs of loss of a policy, where he had been informed a few days before the loss by the company issuing it that it had gone into liquidation and recalled all policies for cancellation, and the insured at once procured other in- surance and notified the other company of such fact, although the policies had not in fact been marked cancelled. ^''^^ If tlie insured knowingly and with intent to defraud makes a false and exaggerated statement in his proofs as to the quan- tity and value of the property destroyed or damaged, he for- feits his rights to recover. While arithmetical accuracy is not required, the truth, the whole truth and nothing but the truth mu5t be disclosed, as nearly as it can be ascertained by a "'Daul V. Firemens' Ins. Co., 35 La. Ann. 98; Bowen v. National Life Ass'n, 63 Conn. 460. A false statement which could not deceive the insurer to its injury will not always cause a forfeiture. Shaw v. Scottish Commercial Ins. Co., 1 Fed. 761; Maher v. Hibernia Ins. Co., 67 N. Y. 283; Mullin v. Vermont Mut. Fire Ins. Co., 58 Vt. 113; German Ins. Co. v. Luckett, 12 Tex. Civ. App. 139, 34 S. W. 173; Faulkner v. Manchester Fire Assur. Co., 171 Mass. 349; Hanscom v. Home Ins. Co., 90 Me. 333; Phoenix Ins. Co. v. Padgitt (Tex. Civ. App.), 42 S. W. 800; Springfield F. & M. Ins. Co. v. Winn, 27 Neb. 649, 5 L. R. A. 841. (In the Nebraska case, it was held that a will- ful misrepresentation by insured as to the amount of his loss, pro- vided the actual amount is in excess of the face of the policy, will not cause a forfeiture under a provision that "all fraud or attempts at fraud by false swearing or otherwise shall forfeit all claim on this company, and shall be a complete bar to any recovery for loss under this policy." This is contrary to the general trend of decis- ions.) But see Worachek v. New Denmark Mut. Home Fire Ins. Co., 102 Wis. 88, 78 N. W. 411; Home Ins. Co. v. Winn, 42 Neb. 331, 60 N. W. 575. "" Gough V. Davis, 24 Misc. Rep. 245, 52 N. Y. Supp. 947, § 182 FRAUD, MISREPKESENTATIOXSj ETC. 535 reasonable and honest effort.-^*' If there be a discrepancy between the amount of damage claimed in the proofs and that proved upon the trial, it is for a jury (in a juiy trial) under proper instructions, to find whether the misstatement was the result of accident, mistake or fraudulent intent. ^^^ Under a policy which provides in effect that any over-valuation of prop- erty or false swearing in any affidavit relating to the loss shall forfeit the rights of the insured against the insurer, the policy is avoided by the claiming in the verified proofs that the value of the property destroyed was $1,000 when the value as testi- fied to at the trial was only $450 and the jury found the property to be worth less than $100.^*^ So wdiere the amount claimed w^as more than double the value fixed by appraisers and the jury.^^^ And where plaintiff in his proofs of loss made affidavit that the value of the property at the time of its destruction was $1,000, understanding that the value was much less, although not less than $600, the sum for which ^8" Sibley v. St. Paul F. & M. Ins. Co., 9 Biss. 31, Fed. Cas. No. 12,830; Putnam v. Commonwealth Ins. Co., 18 Blatchf. 368, 4 Fed. 7.53; Dolloff v. Phoenix Ins. Co., 82 Me. 266; West v, British America Assur. Co. (Cir. Ct. D. Colo.), 25 Ins. Law J. 689; Home Ins. Co. v. Winn, 42 Neb. 331, 60 N. W. 575; Worachek v. New Denmark Mut. Home Fire Ins. Co., 102 Wis. 88, 78 N. W. 411. '"Dolan V. Aetna Ins. Co., 22 Hun (N. Y.), 396; Schulter v. Mer- chants' Mut. Ins. Co., 62 Mo. 236; Tiefenthal v. Citizens' Mut. Fire Ins. Co., 53 Mich. 306, and cases supra; Oshkosh Packing & Provis- ion Co. V. Mercantile Ins. Co., 31 Fed. 200; Furlong v. Agricultural Ins. Co., 28 Abb. N. C. 444, 18 N. Y. Supp. 844; Obersteller v. Com- mercial Assur. Co., 96 Cal. 645, 31 Pac. 587; Williams v. Phoenix Fire Ins. Co., 61 Me. 67; Wunderlich v. Palatine Fire Ins. Co., 104 Wis. 382, 80 N. W. 467. ^- Furlong v. Agricultural Ins. Co., 28 Abb. N. C. 444, 18 N. Y. Supp. 844; Sternfeld v. Park Fire Ins. Co., 50 Hun (N. Y.), 262; Wall V. Howard Ins. Co., 51 Me. 32. ^'^ Gaston gu ay v. Sovereign Fire Ins. Co., 3 Russ. & G. (Nova Scotia) 334; Larocque v. Royal Ins. Co., 23 Low. Can. Jur. 217; Har ris V. Waterloo Mut. Fire Ins. Co., 10 Ont. 718, 536 NOTICE AND PROOFS OF LOSS. 182 it was insured.^^'* And where plaintiff in his proofs states that a burned building had been used for dwelling house pur- poses and no other, when in fact it was occupied as a place for selling liquor and cigars, recovery cannot be had even though the agent of the insurer knew of the use to which the building was put.^®^ An innocent mistake or misstatement of fact, however material, or over-valuation, will not avoid a policy unless the insurer has been prejudiced. ^^^ An untrue statement in proof of loss as to the claimant's interest is immaterial unless the policy requires a statement of such interest.^^'^ The fail- ure of the insured to refer in his proofs of loss or otherwise "'* Sleeper v. N. H. F. Ins. Co., 56 N. H. 401; Mullin v. Vermont Mut. Fire Ins. Co., 58 Vt. 113; Knop v. National Fire Ins. Co., 107 Mich. 323, 65 N. W. 229. In Mullin v. Vtrmont Mut. Fire Ins. Co., supra, the insured, in making out his proofs, relied upon information given by others, but stated the facts as of his own knowledge. The statements were false. The court said: "If he made representations assuming to know the facts when he had no knowledge, and such statements turned out to be false, it was a fraud, within the meaning of the policy." This law was approved in Knop v. National Fire Ins. Co., supra. But see Phcenix Ins. Co. v. Swann (Tex. Civ. App.), 41 S. W. 519. ="*' Hansen v. American Ins. Co., 57 Iowa, 741; Smith v. Queen Ins. Co., 1 Hann. (N. B.) 311. =^« Commercial Ins, Co. v. Friedlander, 156 111. 595; Parker v. Amazon Ins. Co., 34 Wis. 363; Mosley v. Vermont Mut. Fire Ins. Co., 55 Vt. 142; Erb v. German American Ins. Co., 98 Iowa, 606, 40 L. R. A. 845; Waldeck v. Springfield F. & M. Ins. Co., 53 Wis. 129; Carson v. Jersey City Ins. Co., 43 N. J. Law, 300; Titus v. Glens Falls In?. .Co., 81 N. Y. 410; Behrens v. Germania Fire Ins. Co., 64 Iowa, 19; Smith v. Exchange Fire Ins. Co., 8 Jones & S. 492; Oshkosh Packing & Provision Co. v. Mercantile Ins. Co., 31 Fed. 200; Helbing v. Svea Ins. Co., 54 Cal. 156; Fitzgerald v. Union Ins. Co., 54 Cal. 599; Gere V. Council Bluffs Ins. Co., 67 Iowa, 272; Pelican Ins. Co. v. Schwartz (Tex.), 19 S. W. 374; Israel v. Teutonia Ins. Co., 28 La. Ann. 689; Dogge V. Northwestern Nat. Ins. Co., 49 Wis. 501; Parsons v. Citi- zens' Ins. Co., 43 Up. Can. Q. B. 261; Towne v. Springfield F. & M. Ins.. Co., 145 Mass. 582; Hanscom v. Home Ins. Co., 90 Me. 333. '" Bowen v. National Life Ass'n, 63 Conn. 460. § 182 FKAUD, MISEEPKESENTATIONS, ETC. 537 to the lien of his lessor for rent upon the building insured does not avoid the policy under the clause that it should be- come void "by fraud or attempt at fraud in the procurement of this policy or in the proofs of loss or by false swearing or by any other means," even though the policy further required the insured to furnish proofs of loss stating the title and in- terest of himself and ar Dthers in the property. There must be more than a mistake of fact or honest misstatement to amount to fraud or false swearing. ^^^ A statement made by the insured in his proofs of loss that the amount claimed of the insurer was $1,450, the whole amount of the loss, without giving information of an assignment, is not a false statement or fraudulent claim where the insured had on the day of the loss assigned an interest in the policy to another. Otherwise if the proofs contained a statement or claim that the whole amount was due to the insured. ^^^ Under Valued Policies. The f aq,t that the insured knowingly and intentionally stated in his proofs of loss that the amount of the loss was greater than it actually was, is no defense to an action on a valued policy on realty alone — even though it contain a provision that all claims should be forfeited by "fraud or attempt at fraud by false swearing or otherwise." But where the same policy covers both realty and personalty and the amount of damage to the latter is in dispute — any fraudulent over-valua- tion of either in proofs of loss may be considered by a jury ^"Dresser v. United Firemen's Ins. Co., 45 Hun (N. Y.), 298; Star Union Lumber Co. v. Finney, 35 Neb. 214; Huff v. Jewett, 20 Misc. Rep. 35, 44 N. Y. Supp. 311; Faulkner v. Manchester Fire Assur. Co., 171 Mass. 349; Little v. Phoenix Ins. Co., 123 Mass. 380; Andes Ins. Co. v. Fish, 71 111. 620; Rohrbach v. Aetna Ins. Co., 62 N. Y. 613; Wash v. Fire Ass'n of Philadelphia, 127 Mass. 383. ="' Lamb v. Council Bluffs Ins. Co., 70 Iowa, 238, 30 N. W. 497. 53S NOTICE AND PKOOFS OF LOSS. gm in determining whether the statements made concerning per- sonalty were fraudulent or not.^^^ Examination Under Oath. § 183. The insured need not submit to an examination under oath unless he has bound himself to do so, and then only to one examination, at a convenient place, and after a proper demand has been made upon him. Under a stipulation in a policy that the assured shall, i£ required, submit himself to an examination under oath, mere informal conversations or declarations by the officers of the company that they desired to have such an examination will not impose any duty upon the insured. He is not obliged to tender himself voluntarily for examination. A demand for such examination must l^e made with such clearness and dis- tinctness that the insured shall be fully informed that the in- surer means to insist upon it.^°^ Whether the conditions of a policy requiring an examination of the insured and his book accounts are waived by delay on the part of the insurer in de- manding the same and in taking part in an adjustment of the loss during which the books were examined and the amount of the damage practically agreed upon is often a question for a jury to determine. ^''^ And where a provision requires the insured to submit to an examination under oath by any person named by the company, the latter must designate someone authorized by law to administer oaths, before whom such examination can be had, and fix a time for the examination within a reasonable date after it has notice of the fire, and a '"' Oshkosh Packing & Provision Co. v. Mercantile Ins. Co., 31 Fed. 200; Cayon v. Dwelling House Ins. Co., 68 Wis. 510, 32 N. W. 540; Seyk V, Millers' Nat. Ins. Co., 74 Wis. 67, 3 L. R. A. 523; Bammessel V. Brewers' Fire Ins. Co., 43 Wis. 463. =" State Ins. Co. v. Maackens, 38 N. J. Law, 565. =»= Robertson v. New Hampshire Ins. Co. (Super. Ct), 16 N. Y. Supp. 842. § 183 EXAMINATION UNDER OATH. 539 place of examination reasonably convenient witliin tlie connty where the insured resides, before such provision becomes oper- ative. Where the insured submits to one examination and that is concluded, the insurer can demand no more unless bj the terms of the policy. ^'^^ An insurer cannot require the insured to leave the state where he resides and where the fire occurs, and appear at its office in another state, there to be examined concerning the loss.^^^ The insured has a right to the presence of counsel at his examination, and the denial of this right by the insurer justi- fies the insured in refusing to submit to an examination.^®^ The validity of any condition requiring the insured to submit to a secret examination, and denying him the right to the assistance of counsel, is doubtful. ^^^ Where a policy requires the insured to submit to an exam- ination under oath concerning the loss, and further provides that actual or attempted fraud or false swearing shall destroy all rights to recover on the policy, a false answer knowingly and wilfully made by the insured during such an examination as to a matter of fact material to the inquiry, is fraudulent^ and the intent to deceive the insurer is necessarily implied; and it is no palliation of the fraud that the insured did not mean thereby to prejudice the insurer, but meant merely to promote his own personal interests in other matters. Such false statements wilfully made during such an examination "'Aetna Ins. Co. v. Simmons, 49 Neb. 811, 69 N. W. 125; Moore v. Protection Ins. Co., 29 Me. 97; McKee v. Susquehanna Mut. Fire Ins. Co., 135 Pa. St. 544, 19 Atl. 1067; Woodfin v. Asheville Mut. Ins. Co., 6 Jones (N. C), 558; Germania Fire Ins. Co. v. Curran, 8 Kan. 9. ='" American Cent. Ins. Co. v. Simpson, 43 111. App. 98; Fleisch v. Insurance Co. of North America, 58 Mo. App. 596, 23 Ins. Law J. 634. =»=* Thomas v. Burlington Ins. Co., 47 Mo. App. 169; American Cent. Ins. Co. V. Simpson, 43 111. App. 98. '"^ McGraw v. German Fire Ins. Co., 54 Mich. 145, 19 N. W. 927. O-IO NOTICE AND PEOOFS OF LOSS. § 183 and intended to conceal tlie tiiith in regard to the pnrcliasc of the property insured, or price paid, or the manner of pay- ment, constitute an attempted fraud by false swearing, which is a breach of the condition and a bar to recoveiy on the policy. '^^ The wilful false swearing by the insured to a material Taatter under such provisions forfeits the whole amount due, and not merely the amount due on a particular item of dam- age, or for the loss of a particular article, to which the false statement relates. "^^ The insured is bound in such an exam- ination to answer only those questions which have a material bearing upon the insurance and the loss, and his refusal to answer questions having no such bearing cannot prejudice. ^^'^ He is not bound to answer questions resjx?cting the amount for which he had made a settlement with other insurance companies, nor on a demand to produce certified copies of in- voices of goods destroyed need he produce duplicates where the originals are destroyed or are out of his possession.^*^*' A condition that the insured, "if required, shall produce the books of account and other proper vouchers and permit copies of invoices to be taken therefrom," does not require him to produce any books or papers which are not under his personal control.^"^ Where a policy requires the insured to submit to an examination under oath by the agent of the insurer and to subscribe to the same, and the insured does submit to an examination but does not subscribe to the same because he claims it to be incorrect, and no further demand for his subscription is made by the insurer, this alone will not bar an action on the policy, but the burden is on the insured to ^•^ Claflin V. Commonwealth Ins. Co., 110 U. S. 81. »»= Hamberg v. St. Paul F. & M. Ins. Co., 68 Minn. 335. *^ Titus V. Glens Falls Ins. Co., 81 N. Y. 411. »°« Republic Fire Ins. Co. v. Weides, 14 Wall. (U. S.) 375. '"i Sagers v. Hawkeye Ins. Co., 94 Iowa, 519, 63 N. W. 194, § 184 BOOKS OF ACCOUNT, INVOICES, ETC. 541 show that he "was justified in not signing.^"^ Any objection which the insurer might make because of the failure to fur- nish or of delay in furnishing notice or proofs of loss, is waived by its insistence upon the right to examine the in- sured under oath concerning the loss.^*'^ The insurer waives its right to declare a policy forfeited for failure of the insured to comply with an "iron-safe" clause therein by requiring the insured to submit to a sworn ex- amination under a stipulation therefor in the policy.^"^ But a provision in a policy requiring the insured to exhibit to the company's adjuster all that remains of the property in- sured after a loss occurs, is not waived by an examination of the secretary and treasurer of the insured after furnishing of proofs of loss, where the policy specifically provides that no waiver shall arise in consequence of such examination.^"^ Books of Account, Invoices, etc. § 184. The insured must keep such books of account and in* voices as are prescribed by the policy. After a loss he must upon proper demand produce such data as is required by the policy or show a legal excuse for his fail- ure so to do. An insurance company has the right to require by its poli- cies that one whom it insures and who is carrying on a mer- cantile business, shall take inventories of stock at stated inter- vals and keep books of account showing purchases and sales^ and that he shall keep such inventories and books in a secure place, ready to be produced in case of damage by fire, so that ='^ Scottish U. & N. Ins. Co. v. Keene, 85 Md. 265. See, also, O'Brien v. Ohio Ins. Co., 52 Mich. 131, 17 N. W. 726. »°' Carpenter v. German American Ins. Co., 135 N. Y. 298; Badger V. Glens Falls Ins. Co., 49 Wis. 389. '"^Georgia Home Ins. Co. v. O'Neal, 14 Tex. Civ. App. 516, 38^ S. W. 62. ^'"Oshkosh Match Works v. Manchester Fire Assur, Co., 92 Wis. 510, 66 N. W. 525, 542 NOTICE AND PROOFS OF LOSS. § 184: the amount and extent of the loss can be accurately and readily ascertained. And when the policy requires the in- ply with such requirement if requested so to do or show a loss, if requested, under penalty of forfeiture, he must com- ply with such requirement if requested so to do or show a legal excuse for non-compliance. Otherwise he cannot re- cover except the insurer has waived or is estopped to insist upon its rights in that particular. The fact that he did not keep any books of account will not excuse his failure to com- ply with these conditions.*^^^ A provision that he shall, after loss, as often as required produce for examination by the insurer all books of account, bills and invoices or certified copies thereof if the originals are lost, at such reasonable place as may be designated by the company or its representatives, and shall permit extracts from and copies thereof to be made, is reasonable, and it is the duty of the insured to comply with a demand made pursuant thereto. If insured is, under this clause, called upon to produce duplicate bills of articles contained in his statement of loss, and is unable so to do, the burden is on him to show that he made reasonable efforts to comply and was unsuccess- f^j 307 r^-^Q insured can . ordinarily only be compelled to ""Niagara Fire Ins. Co. v. Forehand, 169 111. 626. See, also, ante, "Particular Account;" Norton v. Rensselaer & S. Ins. Co., 7 Cow. (N. Y.) 645, 1 Bennett, Fire Ins. Cas. 204; O'Brien v. Commercial Fire Ins. Co., 63 N. Y. 108--113; Ward v. National Fire Ins. Co., 10 Wash. 361. As to nature of the hooks required, see Pelican Ins. Co. V. Wilkerson, 53 Ark. 353, 13 S. W. 1103; Jones v. Mechanics' Fire Ins. Co., 36 N. J. Law, 35; Republic Fire Ins. Co. v. Weides, 14 Wall. (U. S.) 375. ""Langan v. Royal Ins. Co., 162 Pa. St. 357; Jones v. Mechanics' Fire Ins. Co., 36 N. J. Law, 29; Miller v. Hartford Fire Ins. Co., 70 Iowa, 704; Meyer v. Insurance Co. of North America, 73 Mo. App. 166. In this case it was held that, under a valued policy, the insured § 184: BOOKS OF ACCOUNT, INVOICES, ETC. 543 produce the books and papers under his personal control.""^ The insurer should be prompt and reasonable in its de- mands.^^*^ The fact that one of the conditions of a policy provides that proofs of loss shall be sustained, "if required, by books of account and other vouchers," creates no implied warranty on the part of the assured that he will keep books of account and other vouchers and be ready to exliibit them when called on.^^'^ The obligation imposed upon the insured by the terms of the policy to make a tnie inventory of the goods after a fire has occurred is excused if the goods are so damaged that it is not reasonably practical to make such an inventory.^ ^^ The production of books and inventories covenanted to be kept in a fireproof safe and produced in case of loss, is excused if they are dest.oyed by fire while in a safe which, though not absolutely fireproof, is composed of incombustible materials and fitted to protect its contents in the ordinary way and to the usual extent.-'* ^^ The proper place for the examination of the books of the insured, provided for in a policy of insur- could not be compelled to furnish plans and specifications of the building destroyed. To the same effect is Phoenix Ins. Co. v. Levy, 12 Tex. Civ. App. 45, 33 S. W. 992; but see Temple v. Niagara Fire Ins. Co., 85 N. W. 361. ""Sagers v. Hawkeye Ins. Co., 94 Iowa, 519, 63 N. W. 194; Repub- lic Fire Ins. Co. v. Weides, 14 Wall. (,U. S.) 375. ^o' Aetna Ins. Co. v. Simmons, 49 Neb. 811, 69 N. W. 125; Moore v. Protection Ins. Co., 29 Me. 97; McKee v. Susquehanna Mut. Fire Ins. Co., 135 Pa. St. 544; American E. L. Ins. Co. v. Barr. 16 C. C. A. 51, 68 Fed. 873; Union Cent. Life Ins. Co. v. Hollowell, 14 Ind. App. 611, 43 N. E. 277. '"Wightman v. "Western M. & F. Ins. Co., 8 Rob. (La.) 442, 2 Ben- nett, Fire Ins. Cas. 331. '" Powers Dry Goods Co. v. Imperial Fire Ins. Co., 48 Minn. 380, 51 N. W. 123; German Ins. Co. v. Pearlstone, 18 Tex. Civ. App. 706, 45 S. W. 832. »" Sneed v. British America Assur. Co., 73 Miss. 279, 18 So. 928. 54J: NOTICE AND PROOFS OF LOSS. §184 ance upon tlie mercliandise in a store, is the place of its loca- tion in the absence of any stipulation to the contrary.^ ^^ When the insured keeps his books and accounts and inventories re- quired by the policy and after a loss produces them to the adjuster of the company and thereafter the books and inven- tory are lost without the fault or negligence of the insured, the mere failure to produce them subsequently will not pre- clude a recovery on the policy.^ ^^ The defense that the in- sured did not on demand submit his books and accounts for examination as required by the policy is unavailing where the insurer actually had the books of the insured and ample opportunity to examine both them and the insured and made actual use thereof in collecting a claim for re-insurance against another company.^ ^^ ^" Fleisch v. Insurance Co. of North America, 58 Mo. App. 596, 23 Ins. Law J. 634. 5" Pelican Ins. Co. v. Wilkerson, 53 Ark. 353, 13 S. W. 1103. '" McKee v. Susquehanna Mut. Fire Ins. Co., 135 Pa. St. 544, 19 Atl. 1067. CHAPTER XIV. WAIVER OF NOTICE AND PROOFS OF LOSS. § 185. General Principles. 186. Waiver of Notice not Waiver of Proof. - 187. Stipulations of Policy. 188-190. What Agents can Waive. 191-192. Waiver of Delay. 193-194. Waiver of Insufficiency. 195. Amended or Additional Proofs. 196. Proofs not Furnished by Proper Person. 197-198. Silence of Insurer. 199-200. Denial of Liability. 201. After Time to Furnish Proofs has Expired. 202. In Answer. 203. Negotiations for Settlement. 204. Proceedings to Ascertain or Adjust Loss. 205. Furnishing or Refusal to Furnish Blanks. General Principles. § 185. Stipulations in insurance policies as to the time and manner of serving notice or proofs of loss may be waived by the insurer either expressly or by acts or conduct from which waiver may be reasonably inferred. The stipulations in insurance policies regulating the time and manner of furnishing notice and proofs of loss, as well as their contents, are intended for the benefit of the insurer, by whom they may be waived. Provisions that only certain offi- cers of the insurance company shall have power to waive speci- fied conditions of the policy are valid ; but a stipulation that the insurer itself cannot waive a provision at all, or only in a particular manner, as for instance, that "no officer, agent or representative of the insurer shall be held to have waived any KERR, INS.— 35 546 WAIVER OF NOTICE AND PROOFS OF LOSS. § 185 of the conditions of a policy unless such waiver shall be in writing and endorsed hereon/' is ineffectual to limit the legal capacity of the company to af ter^'ards bind itself contrary to the conditions of the policy by an agent acting within the scope of his authority, and the one who has power to waive a provi- sion can always waive compliance with that part of the same provision which relates to the manner of waiver.^ A waiver may be express, as where the insurer explicitly foregoes the furnishing of proofs ; or implied, that is, by any acts or statements on the part of the insurer or its duly author- ized agents which might fairly and reasonably induce the in- sured to conclude that the furnishing of notice or proofs is dispensed with or excused, and which influence him to rely thereon in good faith and to act accordingly.^ A waiver of a stipulation in an agreement must, to be effectual, not only be made intentionally, but also with know- ledge of the circumstances. This is the rule where there is a direct and precise agreement to waive a stipulation. A fortiori is this the rule when there is no agreement either verbal or in waiting to waive the stipulation, but where it is sought to deduce a waiver from the conduct of the party. Thus where a written agi'eement exists and one of the parties sets up an arrangement of a different nature, alleging conduct on the other side amounting to a substitution of this arrange- ment for the written agreement, he must show clearly not merely his own understanding, but that the other party had the same understanding, and each is conclusively presumed ^Lamberton v. Connecticut Mut. Fire Ins. Co., 39 Minn. 129; Knickerbocker Life Ins. Co. v. Norton, 96 U. S. 234. See notes on "Agency," §§ 252 et seq. == Peninsular Land T. & M. Co. v. Franklin Ins. Co., 35 W. Va. 666; Green v. Des Moines Fire Ins. Co., 84 Iowa, 135, 50 N. W. 558; Hans- com V. Home Ins. Co., 90 Me. 333; Inland Ins. & Deposit Co. v. Stauf- fer, 33 Fa. St. 397. § 185 GENERAL PRINCIPLES. 647 to have intended and anticipated tlie ordinary and natural consequence of his o-v\ti acts. If therefore after a loss has occun-ed, and after both insurer and insured knew of the loss, and before the time to furnish notice or proofs, or to amend those already furuxshed has expired, the conduct of the insurer has been such as to induce the insured, acting as a reasonably careful and prudent man, to believe that so much of the contract as provides for a forfeiture if the proofs or notice be not furnished in time, form, or manner, as re- quired by the policy, would be dispensed with and not insisted upon or enforced, the insurer ought not in common justice to be allowed, and will not be allowed, to allege such forfeiture against one who has so believed as a result of such conduct, and who so believing and acting on such belief, has neglected to do what he othei"wdse would have done to comply with the provisions of the policy.^ But this rule only applies to acts of the insurer done while yet there is time for the insured to comply with the provisions • of the policy. A waiver in this sense is in the nature of an estoppel. The company must by some agent having real or = Kenton Ins. Co. v. Wigginton, 89 Ky. 330, 7 L. R. A. 82; Arm- strong V. Agricultural Ins. Co., 130 N. Y. 566; Hartford Life An- nuity Ins. Co. V. Unsell, 144 U. S. 439; Globe Mut. Life Ins. Co. v. Wolff, 95 U. S. 326; Bennecke v. Connecticut Mut. Life Ins. Co., 105 U. S. 355; Helvetia Swiss Fire Ins. Co. v. EdwardJ'. Allis Co., 11 Colo. App. 264, 53 Pac. 242. A waiver is an intentional relinquishment of a known right. Thus, where an insurer's special agent sent to adjust a loss declared that the claim would not be paid because the plaintiff burned the prop- erty, but the referee found as a fact that the agent did not intend to waive the furnishing of proofs, and that the plaintiff did not under-' stand that proofs were waived, and was not deceived or misled, the court held that there was no waiver. Findeisen v. Metropole Fire Ins. Co., 57 Vt. 520; Eastern R. Co. v. Relief Fire Ins. Co., 105 Mass. 579; Brewer v. Chelsea Mut. Ins. Co., 14 Gray (Mass.), 209; Blake v. Exchange Mut. Ins. Co., 12 Gray (Mass.), 265; Underbill v, Agawam Mut. Fire Ins. Co., 6 Cush. (Mass.) 440. 548 WAIVER OF NOTICE AND PROOFS OF LOSS. § ISS' apparent authority, have done or said something that induced the insured to do or forhear from doing something whereby he was prejudiced. When there is a failure to perform,, which is due wholly to the fault of the insured, and if the policy declares that such failure shall forfeit all rights of the insured, the policy is ipso jure dead, and can only be revived by a new consideration or an express waiver made by the- insurer subsequent to the forfeiture. If, under such a policy, notice or proofs are not served within the prescribed time and the insurer has done nothing to induce the omission, the in- sured will have lost all his rights; and if proofs are there-, after sent, the insurer is not bound to recognize them nor to call attention to any defects, nor is it then bound to specify its defenses, nor does it waive those not specified.^ There is, however, this exception to the rule last mentioned viz. : — if after knowledge of any default for which it might terminate the contract, or if after all right to recover on the contract has to the knowledge of the insurer become barred by the very terms of the contract itself because of the failure of the insured to perform some condition precedent to his right of recovery, the insurer does any acts or enters into any negotiations with the insured, which recognize the continuing *Weidert v. State Ins. Co., 19 Or. 261; Killips v. Putnam Fire Ins. Co., 28 Wis. 472; Carlson v. Supreme Council, A. L. H., 115 Cal. 466, 35 L. R. A. 643; Ermentrout v. Girard F. & M. Ins. Co., 63 Minn. 305; Engebretson v. Hekla Fire Ins. Co., 58 Wis. 301; Edwards v. Balti- more Fire Ins. Co., 3 Gill (Md.), 176, 2 Bennett, Fire Ins. Cas. 405; Smith V. Haverhill Mut. Fire Ins. Co., 1 Allen (Mass.), 297; Insur- ance Co. of North America v. Brim, 111 Ind. 281; Trask v. State F. & M. Ins. Co., 29 Pa. St. 198; Blossom v. Lycoming Fire Ins. Co., 64 N. Y. 166; Smith v. State Ins. Co., 64 Iowa, 716, 21 N. W. 145; Bolan V. Fire Ass'n of Philadelphia, 58 Mo. App. 225; Cohn v. Orient Ins. Co., 62 Mo. App. 271; Albers v. Phoenix Ins. Co., 68 Mo. App. 543; Harrison v. German American Fire Ins. Co., 67 Fed. 577; Armstrong V. Agricultural Ins. Co., 130 N. Y. 566; More v. New York Bowerjr Fire Ins. Co., 130 N. Y. 537, 29 N. E. 757. § 185 GENERAL PRINCirLES. 549 validity of its obligation, or treats it as still in force and effect, the default or forfeiture is waived. Thus where the insurer with full knowledge of the existence of facts consti- tuting a forfeiture of the rights of the insured, receives and retains without objection .lU insufficient notice or proof of loss which was not serA^ed within the prescribed time, and thereafter calls for further information and furnishes blank proofs for giving the same in connection with its demand, or requires and induces the insured to do some act or incur some trouble or expense inconsistent with the claim that the policy has become inoperative, it will be held to have waived, and will be estopped to assert, the defense that the notice or proofs were not in proper form and ser\^ed in due time.^ These rules are applicable to statutory or standard policies as well as to the others.^ Forfeiture is not favored either in law or equity, and the provision for it in a contract will be strictly construed, and courts will find a waiver of it upon slight evidence when the justice and equity of the claim is, under the contract^ in favor of the insured.^ "Trippe v. Provident Fund Soc, 140 N. Y. 23, 22 L. R. A. 432; Ar- gall V. Old North State Ins. Co., 84 N. C. 355; Hanscom v. Home Ins. Co., 90 Me. 333; Welsh v. London Assur. Corp., 151 Pa. St. 607; Loeb V. American Cent. Ins. Co., 99 Mo. 50; Covenant Mut. Life Ass'n v. Eaughman, 73 111. App. 544; Crenshaw v. Pacific Mut. Life Ins. Co., 71 Mo. App. 42; Standard L. & A. Ins. Co. v. Davis, 59 Kan. 521, 53 I'ac. 856, 27 Ins. Law J. 898; Bennett v. Agricultural Ins. Co., 15 Abb. New Cas. (N. Y.) 234; Thierolf v. Universal Fire Ins. Co., 110 Pa. St. 37; Helvetia Swiss Fire Ins. Co. v. Edward P. Allis Co., 11 Colo. App. 264, 53 Pac. 242. "Harris v. Phoenix Ins. Co., 85 Iowa, 238, 52 N. W. 128; Hicks v. British America Assur. Co., 13 App. Div. (N. Y.) 444, 162 N. Y. 284, 48 L. R. A. 424. 'Bonenfant v. American Fire Ins. Co., 76 Mich. 653; German Fire Ins. Co. V. Carrow, 21 111. App. 631; Thompson v. Phenix Ins. Co., 136 U. S 287; Turner v. Fidelity & Casualty Co., 112 Mich. 425, 38 650 WAivEK OF noticp: and pkoofs of loss. § 1S5 The acts relied on to constitute a waiver of proofs of loss on the part of an insurer must he the acts of some one sho\\Ti to have had authority to bind it; and such as to properly induce the insured to believe that proofs were not desired and if furnished would be unavailing. Whether or not the agent had power and authority to make the waiver, and Avhether there was in fact a waiver, are usually questions of fact;** but if there be no conflict in the evidence and the inferences are certain it becomes a question of law.^ Illusi rat ions. Waiver. Waiver of proofs of loss may be made by parol i""" and at any time, by consent of both parties. Proofs are unnecessary where the company has expressly waived them or has pro- ceeded with the hearing of the claims as provided by the con- tract without them. ^2 The statement of an adjuster author- ized to adjust and settle a loss that the insured need not make out any proofs of loss is a waiver of proofs. ^^ So is a letter L. R. A. 529; Thierolf v. Universal Fire Ins. Co., 110 Pa. St. 37; Mar- tin V. Manufacturers' Ace. Ind. Co., 151 N. Y. 95-106. "East Texas Fire Ins. Co. v. Coffee, 61 Tex. 287; Knickerbocker Life Ins. Co. v. Norton, 96 U. S. 234; Argall v. Old North State Ins. Co., 84 K C. 355; Barre v. Council Bluffs Ins. Co., 76 Iowa, 609; Ger- man Ins. Co. V. Davis, 40 Neb. 700, 59 N. W. 698; Farmers' Mut. Fire Ins. Co. V. Moyer, 97 Pa. St. 441; Enterprise Ins. Co. v. Parisot, 35 Ohio St. 35; Lowry v. Lancashire Ins. Co., 32 Hun {N. Y.), 329; Daniels v. Equitable Fire Ins. Co., 50 Conn. 551; Blossom v. Lycom- ing Fire Ins. Co., 64 N. Y. 162; Gristock v. Royal Ins. Co., 87 Mich. 428. "Dwelling House Ins. Co. v. Dowdall, 159 111. 179; Gauche v. Lon- don & L. Ins. Co., 10 Fed. 347. 1" Citizens' Ins. Co. v. Bland (Ky.), 39 S. W. 825. " Baumgartel v. Providence Wash. Ins. Co., 61 Hun, 118, 15 N. Y. Supp. 573. '= Fillmore v. Great Camp K. of M., 109 Mich. 13, 66 N. W. 675. " Kahn v. Traders' Ins. Co., 4 Wyo. 419. § 185 GENERAL PRINCIPLES. 551 from tlie insurer to the insured stating that an adjuster would call and settle a loss, followed bj an investigation of the loss by such adjuster and his promise to settle.^^ Notice and proof are waived where the general agent of the insurer, be- fore the time for furnishing proofs has expired, informs the insured that the company's adjuster would attend to the loss, if the adjuster afterwards visits the premises and investigates the loss without demanding any notice or proof of loss;^^ and by the insurer sending an agent to investigate and adjust the loss and retaining the adjustment without objection ;^^ and by the insurer taking possession of the damaged property and books of account of the insured and investigating the ex- tent of the loss;^^ and by the insurer negotiating with the in- sured concerning an adjustment of the loss, and demanding a submission to arbitration free from amy of the provisions or conditions prescribed by the policy ;^^ and where the in- surer, after being notified of a loss, takes possession of, and retains the insured property for nineteen days, and offers to settle for the amount of an award, and denies liability on other grounds ;^^ and where the secretary of the insurer leads the "Fulton V. Phoenix Ins. Co., 51 Mo. App. 460; Landrum v. Ameri- can Cent. Ins. Co., 68 Mo. App. 339; Roberts v. Northwestern Nat. Ins. Co., 90 Wis. 210, 62 N. W. 1048; Lake v. Farmers' Ins. Co., 110 Iowa, 473, 81 N. W. 711. "Harris v. Phoenix Ins. Co., 85 Iowa, 238, 52 N. W. 128; Gristock V. Royal Ins. Co., 87 Mich. 428, 49 N. W. 634, 84 Mich. 161, 47 N. W. 549. ^' Fritz V. Lebanon Mut. Ins. Co., 154 Pa. St. 384, 26 Atl. 7. " St. Paul F. & M. Ins. Co. v. Gotthelf, 35 Neb. 351, 53 N. W. 137. "Connecticut Fire Ins. Co. v. Hamilton (C. C. A.), 59 Fed. 258; Hamilton v. Phoenix Ins. Co. (C. C. A.), 61 Fed. 379. "Caledonian Ins. Co. v. Traub, 80 Md. 214; Western Assur. Co. v. McCarty, 18 Ind. App. 449, 48 N. E. 265, 27 Ins. Law J. 187; Helvetia Swiss Fire Ins. Co. v. Edward P. Allis Co., 11 Colo. App. 264, 53 Pao. 242; Weber v. Germania Fire -Ins. Co., 16 App. Div. 596, 44 N. Y. Supp. 976; Murphy v. North British & M. Ins. Co., 70 Mo. App. 78; Hartford Fire Ins. Co. v. Keating, 86 Md. 130, 38 Atl. 29. 552 WAIVER OF NOTICE AND PKOOFS OF LOSS. §185 insured to believe that he need do nothing more, and promises an early pajTuent of the loss.^*' Proofs of loss are waived by the adjuster of the insurer taking a written sworn statement of the insured and requiring him to furnish duplicate bills of goods, and telling him that nothing more is required, and offering a partial settlement ;^^ and by any act of the insurer or its agents which interferes with full compliance on the part of the insured. ^^ The insolvency of a credit insurance company which makes an assignment nine days after the expiration of the year for which the policy was issued, is such a breach of the contract that the insured is relieved from the requirement of formal proofs of loss which he would otherwise have to make.^^ An insurer may waive the furnishing of proofs of loss in favor of a garnishing creditor of the insured, without the insured taking any part in the waiver or having any knowledge thereof.^* No Waiver. Proofs of loss are not waived by the insurer's adjuster vis- iting the premises and making a partial appraisal of the prop- erty destroyed, if the company thereafter insists upon the furnishing of proofs and an appraisement according to the ''" George Dee & Sons Co. v. Key City Fire Ins. Co., 104 Iowa, 167, 73 N. W. 594; Brock v. Des Moines Ins. Co., 106 Iowa, 30, 75 N. W. 683; Hitchcock v. State Ins. Co., 10 S. D. 271, 72 N. W. 898; Perry v. Dwelling House Ins. Co., 67 N. H. 291, 33 Atl. 731. =' Wright V. London Fire Ins. Ass'n, 12 Mont. 474, 19 L. R. A, 211: Gushing v. Williamsburg City Fire Ins. Co., 4 Wash. 538. =" American Cent. Ins. Co. v. Heaverin (Ky.), 35 S. W. 922, 25 Ins. Law J. 711; Young v. Grand Council, 0. A., 63 Minn. 506, 65 N. W. 933; George Dee & Sons Co. v. Key City Fire Ins. Co., 104 Iowa, 167, 73 N. W. 594; Perry v. Dwelling-House Ins. Co., 67 N. H. 291, 33 Atl. 731. " Smith V. National Credit Ins. Co., 65 Minn. 283, 33 L. R. A. 511. " Ritter v. Boston Underwriters' Ins, Co., 28 Mo. App. 140. § 185 - GENERAL PRINCIPLES. 553 terms of the policy, T\-liicli requires tlie appraisement to be in writing and attached to the proofs j^^ nor by the refusal of an adjuster to settle a loss and his denial of liability because of a change in the use of the bu'.ding contrary- to the conditions of the policy, if the insurer thereafter, and within the time when proofs can be furnished, demands proofs of the insured and furnishes blanks therefor ;2® nor by the promise of an adjuster to settle the loss if the insured would get bills and invoices of the goods destroyed, where the company immedi- ately thereafter, and while yet there is time to furnish them, insists upon further proofs ;^'^ nor by a general agent of an insurer stating, in reply to a notice claiming loss on the policy, that the notice had been received and the claim would have prompt attention ;^^ nor by the promise of the insurer to call the attention of its adjuster to a loss f-^ nor by the col- lection by an insurer, after a loss, of a note given for part of the premium- on a policy covering the loss"^*^ nor by the fur- nishing to the insured at his request a copy of the policy after the time for making proofs has expired ;-^^ nor by the failure pf the insurer to demand proofs of loss or to voluntarily fur- nish blanks therefor.^ ^ An omission to give notice and make proofs of loss in compliance with the requirements of the* policy of a mutual insurance company is not waived by a statement of the presi- " Scottish U. & N. Ins. Co. v. Clancy, 83 Tex. 113. 18 S. W. 439. =" Hahn v. Guardian Assiir. Co., 23 Or. 576, 32 Pac. 683. ''Allen V. Milwaukee Mechanics' Ins." Co., 106 Mich. 204, 64 N. W. 15. '"^ German Ins. Co. v. Davis, 40 Neb. 700, 59 N. W. 698; Kirkman v. Farmers' Ins. Co., 90 Iowa, 457, 57 N. W. 952; Welsh v. Des Moines Ins. Co., 71 Iowa, 337, 32 N. W. 369, 77 Iowa, 376, 42 N. W. 324, ^'^ Burlington Ins. Co. v. Kennerly, 60 Ark. 532. '" Shimp V. Cedar Rapids Ins. Co., 26 111. App. 254. "' Kirkman v. Farmers' Ins. Co.. 90 Iowa, 457, 57 N. W. 952. '' Continental Ins. Co. v. Dorman, 125 Ind. 189. 554 WAIVER OF NOTICE AND TEOOFS OF LOSS. § 185 dent of tlie company made seventeen months after the loss that the company would he disposed to do what was right, that they knew at the time of the fire that it was their loss and were surprised that they were not notified; nor by a subsequent direction from the officers of the company to one of the as- signees in insolvency of the insured, in reply to a verbal claim of Ibss made by him, to have a statement of the loss sent to them and they would take the subject into consideration ; nor by a subsequent vote of the directors to require the insured to make a statement of the loss to them. Nor does the know- ledge of the agent of the insurer that a loss has occurred relieve the insured from the duty of giving notice and making proofs of loss according to the stipulations of the policy.^^ The making of specific objections to proofs of loss which have been served, waives nothing more than the right to make objections on the grounds not specified.^"* The furnishing of proofs is not waived by a special agent of the insurer refusing to pay the loss, and stating that he neither admitted nor denied the company's liability, where it was subsequently agreed between insurer and insured that such agent should examine the facts concerning the loss without waiving any of the terms of the policy f^ nor by a general local agent of the insurance company notifying the insured that an adjuster would visit him on a certain day, and asking the insured to have his appraiser ready to participate in an appraisement at that time.^^ The provisions of a policy requiring the proofs of loss to be furnished within a given time, are not 'waived by any acts or conduct of the company after the lajjse of such time, unless =« Smith V. Haverhill Mut. Fire Ins. Co., 1 Allen (Mass.), 297. '■* Sheehan v. Southern Ins. Co., 53 Mo. App. 351. "Insurance Co. of North America v. Caruthers (Miss.), 16 So. 911. *" Harrison v. Hartford Fire Ins. Co., 59 Fed. 732. § 186 WAIVER OF NOTICE NOT WAIVER OF PROOF. 555 tlie doctrine of estoppel can be invoked in favor of the in- sured.^ ''^ An implied waiver of either notice or proofs of loss must be based upon the acts and conduct of the insurer after it had knowledge of the loss.^^ Waiver of Notice Not Waiver of Proof. § 186. The mere waiver of notice of loss is not of itself a waiver of proofs of loss. Though the principles of the law of waiver regulating the giving of proofs of loss are applicable to the waiver of notice of loss, it must be borne in mind that both notice and proofs are frequently required to be given. While the furnishing of proofs within the time for furnishing notice may sometimes dispense with the notice, the converse is not true. Thus Avhere a policy requires the insured to give both notice and proofs of loss, the mere giving of a preliminary notice in due time is not sufficient, even though "the insurer does not 1 hereafter demand proofs ; and the waiver of the giving of notice is not a waiver of the provision requiring a giving of proofs.^^ The giving of preliminary notice of loss is waived by the insurer if it receives and retains proofs of loss without objec- tion and thereafter requests the insured to furnish further and amended proofs of loss, or does any other act recognizing '•Bolan V. Fire Ass'n of Philadelphia, 58 Mo. App. 225; Cohn v. Orient Ins. Co., 62 Mo. App. 271; Edwards v. Baltimore Fire Ins. Co., 3 Gill (Md.), 176, 2 Bennett, Fire Ins. Cas. 405; Ermentrout v. Girard F. & M. Ins. Co., 63 Minn. 305, 30 L. R. A. 346; Albers v. Phoenix Ins. Co., 68 Mo. App. 543. See, also, ante, first sections this chapter. «' Alston V. Northwestern Live Stock Ins. Co., 7 Kan. App. 179, 53 Pac. 784; Glohe Mut. Life Ins. Co. v. Wolff, 95 U. S. 326; Bennecke V. Connecticut Mut. Life Ins. Co., 105 U. S. 355. »» O'Reilly v. Guardian Mut. Life Ins. Co., 60 N. Y. 169; Lane v. St. Paul F. & M. Ins. Co., 50 Minn. 227; De Silver v. State Mut. Ins. Co., 38 Pa. St. 130; Armstrong v. Agricultural Ins. Co., 130 N. Y. 566, 29 N. E. 994. 550 WAIVER OF NOTICE AND PKOOFS OF LOSS. § 187 its liability on tlie policy and from which a waiver of notice can be inferred, ^*^ Thus an accident insurance companj^ waives the provision in a policy requiring immediate notice of accident by furnishing the assured blanks upon which to make proofs of disability without objecting to the failure to give notice. ^^ Stipulations of Policy. § 187. Stipulations in insurance policies restricting the form and manner of waiver of proofs or notice of loss are binding upon local agents and agents of limited powers, but not upon general agents. Many cases hold that the stipulations in a policy to the effect that no officer, agent or representative of the insurer shall have power to waive any of the provisions or conditions of the policy unless in writing and endorsed upon the policy itself, are applicable only to the cpnduct and powers of agents as related to matters connected with the issuing of the policy and happening prior to the occurrence of a loss, and do not apply to matters and conditions arising after the happening of a loss and therefore not to a waiver of notice or proofs of loss ;^^ nor to such a waiver of proofs as arises by operation ^^Weed V. Hamburg-Bremen Fire Ins. Co., 133 N. Y. 394; Partridge V. Milwaukee Mechanics' Ins. Co., 13 App. Div. 519, 43 N. Y. Supp. 632; Travellers' Ins. Co. v. Edwards, 122 U. S. 457; Crenshaw v. Pa- cific Mut. Life Ins. Co., 71 Mo. App. 42; Standard Life & Ace. Ins. Co. V. Davis, 59 Kan. 521, 53 Pac. 856, 27 Ins. Law J. 898; Covenant Mut. Life Ass'n v. Baughman, 73 111. App. 544. " Crenshaw v. Pacific Mut. Life Ins. Co., 71 Mo. App. 42. ^American Fire Ins. Co. v. Sisk, 9 Ind. App. 305, 36 N. E. 659; Washburn-Halligan Coffee Co. v. Merchants' Brick Mut. Fire Ins. Co., 110 Iowa, 423, 81 N. W. 709; Concordia Fire Ins. Co. v. John- son, 4 Kan. App. 7, 45 Pac. 722; Loeb v. American Cent. Ins. Co., 99 Mo. 50; Lake v. Farmers' Ins. Co., 110 Iowa, 473, 81 N. W. 711; Har- rison V. German-American Fire Ins. Co., 67 Fed. 577; Rokes v. Amazon Ins. Co., 51 Md. 512; Flaherty v. Continental Ins. Co., 20 App. Div. (N. Y.) 275. § 187 STIPULATION'S OF POLICY. 557 of law from a denial of liability, but only to acts clone before the policy becomes a demand against the insurer,^^ Others hold that they are binding and valid and govern the rights of the parties to the contract in so far as the acts of agents of limited and restricted powers are concerned, and when a waiver is sought to be predicated upon their acts or conduct but not according to the provisions of the policy ;^^ but are not binding upon the officers or adjusters or general agents of the insurer in their dealings with the assured after a loss has occurred. ^^ The true rule would seem to be that any insurer has the right to limit the powers of its agent by suitable conditions in the ix)licy, and of these limitations the insured is bound to take notice after the policy has been delivered to him ; that an in- surer cannot by general stipulations against waiver, or by stip- ulations that waiver must be in writing and indorsed upon the policy, so limit its capacity to contract that it cannot by and through proper agents make an oral waiver not forbidden by statute. Insurers are usually corporations and as such can only act through their agents. Provisions in the policies are inserted by them and can be changed at any time by any . *^Fire Ass'n of Philadelphia v. Jones (Tex. Civ. App.), 40 S. W. 44; Bishop v. Agricultural Ins. Co., 9 N. Y. Supp. 350; Goodwin v. Massachusetts Mut. Life Ins. Co., 73 N. Y. 480; Franklin Fire Ins. Co. V. Chicago Ice Co., 36 Md. 102. ^•Kirkman v. Farmers' Ins. Co., 90 Iowa, 457, 57 N. W. 952; Knudson v. Hekla Fire Ins. Co., 75 Wis. 198; Gould v. Dwelling- House Ins. Co., 90 Mich. 302, 51 N. W. 455; Quinlan v. Providence Wash. Ins. Co., 133 N. Y. 364; Oshkosh Match Works v. Manchester Fire Assur. Co., 92 Wis. 510, 66 N. W. 525. ^^ Powers V. New England Fire Ins. Co., 68 Vt. 390; Brock v. Des Moines Ins. Co., 106 Iowa, 30, 75 N. W. 683; American Cent. Ins. Co. V. Heaverin (Ky.), 35 S. W. 922; Heusinkveld v. St. Paul F. & M. Ins. Co., 106 Iowa, 229, 76 N. W. 696; Concordia Fire Ins. Co. v. Johnson, 4 Kan. App. 7, 45 Pac. 722; Carroll v. Girard Fire Ins. Co., 72 Cal. 297; Phenix Ins. Co. v. Bowdre, 67 Miss. 620. 55S WAIVER OF NOTICE AND PEOOFS OF LOSS. §§ 188-190 duly authorized agent with the consent of the insured. Any agent, general or otherwise, who is authorized to represent the insurer in adjusting or settling a loss, has, as a necessaiy in- cident to the proper discharge of his duties, the power to dispense with those stipulations inserted for the benefit of the company and which have reference to the mode of ascertain- ing the liability or limiting the right of action. Whether or not any particular agent has the power to make an oral waiver of a condition, notwithstanding the provisions of the policy requiring such waiver to be in writing indorsed on the policy, must be determined as a question of fact according to the gen- eral rules of the law of agency ; and whether or not a waiver actually took place is ordinarily a simple question of f act.^^ What Agents can Waive. § 188. Whether or not a given insurance agent can waive notice or proofs of loss, death, or accident, depends not so much upon the classification of the agent, as upon the author- ity which his principal has given him or has allowed him to exercise, or has held him out as possessing. Power in an agent must be proved by the one asserting it. § 189. General agents and adjusters can waive notice and proofs of loss. § 190. The better rule is that merely local agents, 1. e. agents authorized only to fix rates, countersign and deliver policies, *° Farnum v. Phoenix Ins. Co., 83 Cal. 246; Ruthven v. American Fire Ins. Co., 102 Iowa, 550, 71 N. W. 577; Kirkman v. Farmers' Ins. Co., 90 Iowa, 457, 57 N. W. 952; Brock v. Des Moines Ins. Co., 106 Iowa, 30, 75 N. W. 683; Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Knick- erbocker Life Ins. Co. v. Norton, 96 U. S. 234; Berry v. American Cent. Ins. Co., 132 N. Y. 49; Phenix Ins. Co. v. Bowdre, 67 Miss. 620; Oshkosh Match Works v. Manchester Fire Assur. Co., 92 Wis. 516; Searle v. Dwelling-House Ins. Co., 152 Mass. 263; Dwelling-House Ins. Co. V. Dowdall, 159 111. 179; Hartford Life & Annuity Ins. Co. v. Hayden's Adm'r, 90 Ky. 46; Lowry v. Lancashire Ins. Co., 32 Hun (N. Y.), 331; Steen v. Niagara Fire Ins. Co., 89 N. Y. 3^6; Blake v. Exchange Mut. Ins. Co., 12 Gray (Mass.), 265; Lake v. Farmers' Ins. Co., 110 Iowa, 473, 81 N. W. 711. § 190 WHAT AGENTS CAN WAIVE. 559 and collect premiums, have no power to waive either notice or proofs. A contrary rule prevails in some jurisdictions. The General Rule. The power of any agent to waive proofs or notice of loss depends upon tlie real or apparent authority with which his principal has clothed him. Broadly speaking, general and adjusting agents have the power to waive notice or proofs; special or local agents have not that power. It is impossible to lay down an absolute rule, wdiich will specify definitely what agents and classes of agents have or have not the power to waive notice or proofs of loss, or to bind the insurer by other acts from which waiver might be presumed if the power to waive existed in the agent. The designation of an agent as a general agent or a local agent gives no clear or precise idea of his powers. There are local general agents and general local agents, and these terms are often used as merely de- scriptive of the territory within which an agent of any class operates. An agent of an insurance company possesses only such powders in any particular as have been conferred verbally 01* by instrument of authorization, or such as his principal has clothed him with or has held him out as possessing. Where. the act or representation of an agent is alleged to be that of an insurer and therefore binding upon the latter, the test of liability is the same as in other cases of agency. No maxim is better settled in the law than that a principal is not bound by the acts of an agent done outside of the known limitation of his authority ; and it is immaterial whether the agent be general or special, because the principal may limit the powers of one as well as of the other. But an agent can always bind his principal by acts performed within the scope of his real or apparent authority, and secret limitations upon his authority affect only those to whom they are published or 560 WAIVER OF NOTICE AND PROOFS OF LOSS, § 190 known. Whether, therefore, an agent in a given case has the power to waive notice or proofs of loss absolutely, or only in a particular manner, or at all, and whether waiver actually did take place, must be determined not so much from the classification of the agent as from the facts and circumstances of the case interpreted in the light of all the acts, conduct, and relations of the agent and principal between themselves and toward the public or the individual asserting the waiver.^'^ Waiver of notice or proofs of loss cannot be shbwn by the acts of an agent or adjuster without proof of his authority to act for the insurer in that connection ; and the one asserting waiver of j^roofs or notice by an agent, must prove that the •agent represented the insurer and possessed the power which is asserted to be in him.^^ And the mere assumption of authority by an agent and reliance thereon by the insured will not bind the insurer in the absence of evidence of au- thority conferred or recogTiition by it."*^ "Knickerbocker Life Ins. Co. v. Norton, 96 U. S. 234; Famum v. Phcenix Ins. Co., 83 Cal. 246; Qiiinlan v. Providence Wash. Ins. Co., 133 N. Y. 365; Weidert v. State Ins. Co., 19 Or. 261; Dwelling House Ins. Co. V. Dowdall, 159 111. 179; Lowry v. Lancashire Ins. Co., 32 Hun (N. Y.), 331. See, ante, c. 8, "Agents," and ante, "Stipulations of Policy." Where the contract in suit was issued by a foreign company em- powered to do business in Maryland on condition that its agent was required to have authority "from the parent office or offices to settle losses without the interference of the officer or officers of the said parent office or offices," it was held that such an agent could bind his principal by waiving proofs. Home Ins. Co. v. Baltimore Ware- house Co., 93 U. S. 527, 546. "Barre v. Council Bluffs Ins. Co., 76 Iowa, 609; German Ins. Co. V. Davis, 40 Neb. 700, 59 N. W. 698; Weidert v. State Ins. Co., 19 Or. 261; Albers v. Phcenix Ins. Co., 68 Mo. App. 543; East Texas Fire Ins. Co. V. Coffee, 61 Tex. 287. "Bowlin v. Hekla Fire Ins. Co., 36 Minn. 435; Bush v. Westchester Fire Ins. Co., 63 N. Y. 531. § 190 WHAT AGENTS CAN WAIVE. 561 General Agents. A general agent of an insurer, i. e., an agent who lias ex- clusive charge and control of h,' . principal's interests within a given territory, is within that territory a vice-principal and as such has the power to waive notice or proofs.^'' ■"'Bishop V. Agricultural Ins. Co., 9 N. Y. Supp. 350; Brock v. Des Moines Ins. Co., 106 Iowa, 30. 75 N. W. 684; Smith v. Niagara Fire Ins. Co., 60 Vt. 682; American Cent. Ins, Co, v. Heaverin (Ky.), 35 S. W. 922; Minneapolis, St. P. & S. S. M. Ry. Co. v. Home Ins. Co., 64 Minn. 63; Lamherton v. Connecticut Fire Ins. Co., 39 Minn. 129, 1 L. R. A. 222; German Ins. Co. v. Gray, 43 Kan. 497, 8 L. R. A. 70. See cases supra. Agents who have authority to settle losses may dispense with stipulations for the benefit of their principal which refer to the mode of ascertaining its liability and limiting the right of action, against it. Little v. Phoenix Ins. Co., 123 Mass. 380, citing Eastera R. Co. V. Relief Fire Ins. Co., 105 Mass. 570; Kennebec Co. v. Au- gusta Insurance & Banking Co., 6 Gray (Mass.), 204; Gloucester Mfg. Co. V. Howard Fire Ins. Co., 5 Gray (Mass.), 497. An agent intrusted with policies, and given power to insure, may waive the notice and proof of loss required by the policy, not- withstanding a provision that no agent shall have power to waive any of the conditions of the policy. Fire Ass'n of Philadelphia v. Jones (Tex. Civ. App.), 40 S. W. 44; Smaldone v. Insurance Co. of North America, 15 App. Div. 232, 44 N. Y. Supp. 201; O'Brien v. Ohio Ins. Co., 52 Mich. 131; Springfield F. & M. Ins. Co. v. Da\is (Ky.), 37 S. W. 582; Fisher v. Crescent Ins. Co., 33 Fed. 544; Snyder V. Dwelling-House Ins. Co., 59 N. J. Law, 544, 37 Atl. 1022, 26 Ins. Law J. 905. The general manager of a department of an insurance company has power, in connection with policies issued within his department, to orally waive the conditions of the policy requiring proofs of loss, although the policy itself requires all waivers to be in writing and attached thereto. Ruthven v. American Fire Ins. Co., 102 Iowa, 550, 71 N. W. 574, citing Dwelling House Ins. Co. v. Dowdall, 159 111. 179; Berry v. American Cent. Ins. Co., 132 N. Y. 49; Hartford Life & An- nuity Ins. Co. V. Hayden's Adm'r, 90 Ky. 46; Rokes v. Amazon Ins. Co., 51 Md. 512, 34 Am. Rep. 323; Lamberton v. Connecticut Fire Ins. Co., 39 Minn. 129, 1 L, R. A. 222; Farnum v. Phoenix Ins. Co., 83 Cal. 246; Phenix Ins. Co. v. Bowdre, 67 Miss. 620; Westchester Fire Ins. Co. V. Earle, 33 Mich. 143; Dick v. Equitable F. & M. Ins. Co., KERR, INS.— 86 562 WAIVER OF NOTICE AND PEOOFS OF LOSS. § 190 Local Agent. A local agent, that is, one wlio is authorized merely to fix rates of insurance and countersign and deliver policies and collect premiums, cannot after a loss waive the provisions of a policy requiring notice and proofs of loss. In the matter of the original contract, and while the property which is the subject of it continues as it was when insured, the local agent 92 Wis. 46; Renier v. Dwelling House Ins. Co., 74 Wis. 89; Knicker- bocker Life Ins. Co. v. Norton, 96 U. S. 234, 24 L. ed. 689; Searle v. Dwelling House Ins. Co., 152 Mass. 263. Distinguishing Kirkman v. Farmers' Ins. Co., 90 Iowa, 457; Zimmerman v. Home Ins. Co., 77 Iowa, 686. Service upon the agent who issues- the policy is suflRcient, Green- lee V. Hanover Ins. Co., 104 Iowa, 481, 73 N. W. 1050. The statement of the agent who issued the policy and collected the premium, made within the time for furnishing proofs, that the company refused to pay the loss, waives the furnishing of proofs. But proofs are not waived by such a statement made after the expiration of the time for furnishing them. Phenix Ins. Co. v. Searles, 100 Ga. 97, 27 S. E. 779. Waiving the condition as to formal proofs of loss is at least within the scope of the apparent authority of a special agent of an - insurer, sent by it to view the ruins, investigate the loss, and find out as much about it as he could, who, being consulted with by the local agent as to when the policy would be paid, replied author- itatively, and to whom the proofs of loss when made, were finally turned over, together with the whole matter, for such steps as he should deem proper. Hartford Fire Ins. Co. v. Keating, 86 Md. 130, 38 Atl. 29; Travellers' Ins. Co. v. Edwards, 122 U. S. 457, 7 Sup. Ct. ' 1249. An agent with authority to waive proofs of loss may also waive a provision of the policy requiring such waiver to be indorsed on the policy. O'Leary v. German American Ins. Co., 100 Iowa, 390, 69 N. W. 686. Standard policy: A provision in a standard policy that no agent shall have power to waive any of its conditions, except by a writing indorsed on or attached to the policy, is valid, and a verbal waiver of proofs of loss by him is not binding on the company. Wadhams V. Western Assur. Co., 117 Mich. 514, 76 N. W. 6; Straker v. Phenix Ins. Co., 101 Wis. 413, 77 N. W. 753; Anderson v. Manchester Fire Assur. Co., 59 Minn. 189. § 190 . WHAT AGENTS CAN WAIVE. 563 who issued the policy must be deemed to be possessed of cer- tain incidental powers by virtue of which he may waive cer- tain conditions in the policy; but when a loss occurs, which gives rise to the assertion of a claim against the insurer, the proceedings to establish and enforce such a claim are not impliedly embraced within the scope of such an agency. It is not to be presumed in the absence of express authority, or conduct on the part of the company from which it may be implied, that such an agent, commonly termed a local agent, is empowered to suggest or agree to a different mode of settle- ment or to bind the company by any different line of pro- cedure than that designated in the policy.^ ^ In What States Local Agents can Waive. The authorities on both sides of this question are very thoroughly discussed and fully cited in a recent Missouri case.^^ The court said: "The legal proposition to be decided is whether an agent of an insurance company, who has power to effect insurance, countersign policies, and collect premiums, has prima facie power to waive proof of loss. * * * Wood on Insur- ance (2d Ed., p. 915, § 429) lays down the doctrine that an " Lohnes v. Insurance Co. of North America, 121 Mass. 439; Bowlin V. Hekla Fire Ins. Co., 36 Minn. 435; Bush v. Westchester Fire Ins. Co., 63 N. Y. 531; Shapiro v. Western Home Ins. Co., 51 Minn. 239; Shapiro v. St. Paul F. & M. Ins. Co., 61 Minn. 136; Knudson v. Hekla Fire Ins. Co., 75 Wis. 198, 43 N. W. 954; Gould v. Dwelling- House Ins. Co., 90 Mich. 302; Harrison v. Hartford Fire Ins. Co., 59 Fed. 732; Burlington Ins. Co. v. Kennerly, 60 Ark. 532; Smith v. Niagara Fire Ins. Co., 60 Vt. 682, 1 L. R. A. 217; McCollum v. North British & Mercantile Ins. Co., 65 Mo. App. 304; Van Allen v. Farmers' Joint Stock Ins. Co., 64 N. Y. 469; Ermentrout v. Girard F. & M. Ins. Co., 63 Minn. 305, 30 L. R. A. 347; Engebretson v. Hekla Fire Ins. Co., 58 Wis. 301. " Nickell V. Phoenix Ins. Co., 144 Mo. 420, 46 S. W. 435, 27 Ins. Law J. 880. 564: WAIVER OF NOTICE AND PROOFS OF LOSS. § 190 agent "who has authority to issue and countersign policies has no authority to adjust and settle losses, or to waive the per- formance of conditions in the policy ; that ratification by the company of the acts of such agent must be shown. Ostrander on Insurance (2d Ed., p. 19Y, § 27) says the local agent's power to waive proof of loss depends upon his authority to settle claims, and that as the duties of a local agent and of an adjuster are different, the local agent cannot waive proof of loss, unless it is shown that he had authority to settle claims, or had apparent authority, as shown by previous dealings of the company. This view of the law is also laid down in the following cases.^^ * * * These cases proceed upon the assumption that an agent who has power to effect a contract of insurance, to coim.tersign policies in order to give them vital- ity and binding force, and to collect premiums, is a special, limited agent, and not a general agent, and that the duties and powers of such a special and hmited agent do not authorize him to waive proof of loss. On the other hand, a contrary view of the law is adopted by the following text writers, and in the following cases : May on Insurance (3d Ed., §§ 461, 463) says that the notice and proof of loss is intended for the bene- fit of the insurer, and notwithstanding the policy requires it to be in writing, nevertheless, if the company receives it, although it comes from a local agent of the company, upon information communicated to him by the assured, it is sufficient ; and that even in cases where the policy provides that it must be given to the manager, 'or to some known agent of the company,^ and the policy had been negotiated through a local agent, and the business of the insurer, before the loss, was, without notice to the assured, transferred to another company, notice to the local agent is sufficient. Joyce on Insurance (sec- tion 537) says that where a foreign insurance company has " Citing some of cases in note 51, ante. § 190 WHAT AGENTS CAN WAIVE. 565 no general agent in tlie state, but employs a local agent to represent it, such agent has power to bind the company by waiving a forfeiture, or by construing doubtful language in the policy when called on by the insured for information, and cites Hotchkiss v. Phoenix Ins. Co.^^^ as authority. The same author, in section 583, lays down the rule that 'an agent intrusted with policies signed in blank, and authorized to iill out and deliver them, may waive proof of loss,' and cites in support of the text:^^ * * * Biddle on Insurance (sec. 1136) says proof of loss may be waived, as where the in- surer or his authorized representative tells the insured not to present such proof. It has been held that an agent who effects insurance, has policies signed in blank, which provide they shall not be valid until countersigned by him, and who issues and countersigns such policies, is a general agent, and has power to waive proof of loss.^^ * * * jj^ some of the cases that deny the authority of the local agent to waive proof of loss, it is held that, where the policy prescribes that "» 76 Wis. 269, 44 N. W. 1106. "Franklin Fire Ins. Co. v. Coates, 14 Md. 285; Imperial Fire Ins. Co. V. Murray, 73 Pa. St. 13; Hibernia Ins. Co. v. O'Connor, 29 Mich. 241; Ide v. Phoenix Ins. Co., 2 Biss. 333, Fed. Cas. No. 7,001; Norwich & N, Y. Transp. Co. v. Western Massachusetts Ins. Co., 34 Conn. 561; McBride v. Republic Fire Ins. Co., 30 Wis. 562. See, also, O'Leary v. German Amer. Ins. Co., 100 Iowa, 390, 69 N. W. 686; Von Genetchtia V. Citizens' Ins. Co., 75 Iowa, 544, 39 N. W. 881; Ruthven v. American Fire Ins. Co., 92 Iowa, 316, 60 N. W. 663; Edwards v. Lycoming County Mut. Ins. Co., 75 Pa. St. 378. "Eastern R. Co. v. Relief Fire Ins. Co., 105 Mass. 570; West Branch Ins. Co. v. Helfenstein, 40 Pa. St. 289; Marsden v. City & County Assur. Co., L. R. 1 C. P. 232; Kendall v. Holland Purchase Ins. Co., 2 Thomp. & C. (N. Y.) 375; Bernero v. South British & Nat. Ins. Co., 65 Cal. 386; Phoenix Ins. Co. v. Perry, 131 Ind. 572; Pennell v. Lamar Ins. Co., 73 111. 303; Lycoming Fire Ins. Co. v. Dunmore, 75 111. 14; American Cent. Ins. Co. v. McLanathan, 11 Kan. 538; Phenix Ins. Co. v. Munger, 49 Kan. 178; Hartford Fire Ins. Co. V. Xahn, 4 Wyo. 364. 566 WAIVER OF NOTICE AND PROOFS OF LOSS. § 190 proof of loss can only be waived in writing by indorsement on the poKcy, a parol waiver is insufficient f^ while the con- trary doctrine is announced in Hartford Fire Ins. Co. v, Kahn,^'^ and by all the text writers, and by nearly all of the other cases cited on both sides of the proposition, and is sup- ported by the almost universally recognized doctrine that a written contract may be varied or rescinded by a subsequent parol agreement. In Barre v. Council Bluffs Ins. Co.,^^ and in Hollis v. State Ins. Co.,^^ the rule is announced that neither the local agent nor the adjuster has power, without affirmative authority or ratification shown, to waive proof of loss, such power being said to be not necessaiy to the proper discharge of the duties ordinarily incident to their respective functions. Sojne of the cases draw a distinction between the power of a local agent of a foreign insurance company and that of such an agent of a home insurance company. But this distinction is not persuasive, much less convincing. The conflict among these precedents cannot be harmonized. The courts having simply announced conclusions, drawn, without any attempt, in most instances, at analysis or logical deduction, from the same premises, they must be accepted as the opinions of the several courts, and not as establishing a scientific legal prin- ciple. The undoubted weight of authority sustains the power of the local agent to waive the proof of loss. The cases which deny it generally concede that power to the adjuster, while the Iowa cases referred to deny the power to both the local agent and the adjuster." ^'Burlington Ins. Co. v. Kennerly, 60 Ark. 532; Smith v. Niagara Fire Ins. Co., 60 Vt. 682, 1 L. R. A. 217. " 4 Wyo. 364. ^76 Iowa, 609. "65 Iowa, 454. § 190 TVHAT AGENTS CAN WAIVE. 667 Adjuster. An adjuster is an agent of an insurer, whose duties gen- erally consist in investigating losses, and negotiating for and making settlements thereof. Waiver of proofs of loss by an agent sent by an insurer to investigate and adjust a loss, is binding upon the company in the absence of notice to the in- sured of any limitation upon the authority of the agent. It is presumed that an adjuster has the power to waive either or both notice and proofs.^*^ The agreement by an adjuster of an insurer to settle a loss waives the necessity of proofs ;^^ and a denial by an adjuster of any liability of his company under the policy is a waiver of proofs. ^^ But notice and proof is not waived by any act or declaration of an adjuster, who does not claim to and has no authority to represent the insurer even though the company afterwards adopts some of his acts.^^ While an adjuster can waive the furnishing of proofs of loss within the stipulated time, he cannot delegate his au- thority in that particular to another agent in the absence of a showing that such a practice was previously authorized or afterwards ratified by the principal ; and the conduct of an adjusting agent after the expiration of the time limited for the furnishing of proofs of loss, cannot be relied on as a '" Enos V. St. Paul F. & M. Ins. Co., 4 S. D. 639, 57 N. W. 919; East Texas Fire Ins. Co. v. Brown, 82 Tex. 631; Wright v. London Fire Ins. Co., 12 Mont. 474, 19 L. R. A. 211; Lake v. Farmers' Ins. Co.. 110 Iowa, 473. 81 N. W. 711; Slater v. Capital Ins. Co., 89 Iowa, 628, 23 L. R. A. 181; Dibbrell v. Georgia Home Ins. Co., 110 N. C. 193; Hartford Fire Ins. Co. v. Keating, 86 Md. 130, 38 Atl. 29; Faust v, American Fire Ins. Co., 91 Wis. 158. 30 L. R. A. 783; German Ins. Co. V. Gray, 43 Kan. 497, 8 L. R. A. 70. "Smith V. Home Ins. Co., 47 Hun (N. Y.). 30. ""Trundle v. Providence Wash. Ins. Co., 54 Mo. App. 188; Flaherty V. Continental Ins. Co., 20 App. Div. (N. Y.) 275, 46 N. Y. Supp. 934. "' Mitchell V. Minnesota Fire Ass'n, 48 Minn. 284, 51 N. W. 608. - 568 WAIVER OF NOTICE AND PEOOFS OF LOSS. §§ 191, 192 ■waiver of failure to furnish proofs within the prescribed time, unless the whole matter of the adjustment and settlement of a loss has been entrusted to the adjuster. The authority to investigate and report on a loss is different from the authority to make absolute disposition of a loss.^^ The adjuster of one insurance company who goes at the request of an adjuster of another company to examine a loss, has no authority to waive proofs of loss for the latter company unless it be shown that its adjuster had the power to delegate such authority.*' Waiver of Delay. § 191. Any delay in the furnishing of notice of loss is waived by the insurer if, after the expiration of the time within which according to the terms of the pol- icy notice may be served, (a) It receives and retains proofs without objection, or (b) Demands and receives an original or supplemental notice. § 192. Any delay in the furnishing of proofs is waived by the insurer — (a) Receiving and retaining overdue proofs without objection, (b) Or treating the service of overdue proofs as being a sufllcient compliance with requirements of the policy, (c) Or by conduct which operates to create an estoppel. An insurer cannot take advantage of any delay which it has itself caused. Waiver of Delay in Serving Notice. If an insurer after having received notice of loss from its agent puts itself in communication with the insured, who in due time furnishes proofs of loss which are retained without objection, it cannot thereafter object to the failure of the in- sured to give immediate notice of loss as required by the pol- "Albers v. Phoenix Ins. Co., 68 Mo. App. 543. "Ruthven v. American Fire Ins. Co., 92 Iowa, 316, 60 N. W. 663; Atlantic Ins. Co. v. Carlin, 58 Md. 336. § 192 WAIVER OF DELAY. 569 icy.^^ A forfeiture caused by the delay in giving notice within the prescribed time is Avaived by the insurer sending the insured blanks for proofs of loss and thereafter making ii bodily examination of the insured, even though the blanks are accompanied with the statement that their furnishing shall not be held a waiver of the notice.^'^ Waiver of Delay in Serving Proofs. An insurer waives absence of notice and the sei*vice of proofs in proper form within the prescribed time by demand- ing further proofs, and when these are furnished by retaining fhem without objection and thereafter making an offer of settlement and denying all liability under the policy without •objecting to the failure to serve notice or proofs properly.^* Any delay in furnishing proofs of loss is waived by the in- surer thereafter sending its adjuster to examine into the cir- cumstances in connection with the fire and to estimate the <;ost of rebuilding ;^^ and by calling for and receiving ad- ditional information and proof respecting the injury and death of the insured.'^" A demand for an amended notarial certificate is a waiver of the objection that the proofs to which the defective certificate was attached were not furnished in time;'^^ and the retention without objection of a second no- *' Partridge v. Milwaukee Mechanics' Ins. Co., 13 App. Div. 519, 43 N. Y. Supp. 632; Trippe v. Provident Fund Soc, 140 N. Y. 23, 22 L. R. A. 432; Rheims v. Standard Fire Ins. Co., 39 W. Va. 672. "' Peabody v. Fraternal Ace. Ass'n, 89 Me. 96, 35 Atl. 1020. »« McElroy v. John Hancock Mut. Life Ins. Co., 88 Md. 137, 41 Atl. 112; Hohn v. Inter-State Casualty Co., 115 Mich. 79, 72 N. W. 1105. «» Capital City Ins. Co. v. Caldwell, 95 Ala. 77, 10 So. 355; Loeb v. American Cent. Ins. Co., 99 Mo. 50. '» Standard L. & A. Ins. Co. v. Davis, 59 Kan. 521, 53 Pac. 856, 27 Ins. Law J. 898; McElroy v. John Hancock Mut. Life Ins. Co., 88 Md. 137, 41 Atl. 112. "Merchants' Ins. Co. v. Gibbs, 56 N. J. Law, 679; Badger v. Glens Falls Ins. Co., 49 Wis. 389, 5 N. W. 845. 570 WAIVER OF NOTICE AND PKOOFS OF LOSS. § 192 tarial certificate fiiriiislied after objection made to a former one waives any delay in the service. 72 Estoppel. The insurer waives its rights to object to any delay in the furnishing of proofs of death, Avhich were promptly served by the assignee of the policy after he learned of the death of the insured, by retaining premiums paid on the policy by the assignee after the death of the insured but before the- fact of the death was known to either insurer or assignee. A new consideration is not always necessary to support a binding^ waiver of the stipulations of a life insurance policy respecting: the time of serving proofs of death. A waiver may be estab- lished by proof of acts or conduct of the insurer subsequent to- the breach indicating an intention to waive such stipulations, though there be no new consideration therefor and no tech- nical estoppel. In the case of Prentice v. Knickerbocker Life Ins. Co., the defendant in August, 1867, issued a policy of life insurance- upon the life of one M. The conditions of the policy re- quired that the defendant should be notified forthwith of the death of the insured and that full proofs of the death "be served within twelve months after the time of death or all claims under this policy will be forfeited." In December^ 1867, M. with the knowledge and assent of the defendant as- signed the policy to the plaintiff, who thereafter paid the pre- miums. In July, 1872, the plaintiff, being about .to go to Europe, paid to the defendant's general agent in advance the premiums for that year which would not be due until August, The question being raised as to the position of the parties in case the insured should die before such premium became due, the general agent stated that defendant had agents, who "Smith V. Home Ins. Co., 47 Hun (N. Y.), 30. § 192 WAIVER OF DELAY. 571 would know of the death before plaintiff could, and if he advanced the money, it would bo returned if not earned by the insurer. The insured died in July, 1873, but his death did not become known to the parties until July, 1875. Plain- tiff paid the premiums for 1873 and 1874 upon receiving from defendant the usual notice that they were due, and de- fendant executed and delivered its usual renewal receipts for such premiums. Immediately upon being advised of the death of the insured, the plaintiff notified the company of that fact and ujwn application was furnished by the defendant with blank proofs of loss, which proofs stating the time of death he prepared and delivered to the defendant in July, 1875. Defendant received and retained such proofs until October^ 1875, without objection; and then it took the ground that the claim was forfeited because the proofs were not furnished within the proper time, but making no offer until after the commencement of this action to return the premiums paid it by plaintiff after the death of the insured. The court held that the circumstances justified the finding of waiver of the forfeiture by which defendant was precluded from insisting upon plaintiff's failure to furnish proofs within the twelve months.''^^ Delay Induced by the Insurer. A delay caused by the insurer itself cannot prejudice the in- sured.'^'* An insurer will never be permitted to complain of any delay to wliich it has contributed, or which has been caused by its negotiations or dealings with the insured looking towards an adjustment or settlement of the loss, and from which it i*. properly inferable that a strict compliance with the require- " 77 N. Y. 483. See notes 1-7. "Cornell v. Le Roy, 9 Wend. (N. Y.) 163, 1 Bennett, Fire Ins. Cas. 408; Turner v. Fidelity & Casualty Co.. 112 Mich. 425, 38 L. R. A. 529; Kenton Ins. Co. v. Wigginton, 89 Ky. 330, 7 L. R. A. 81. 572 WAIVER OF NOTICE AND PKOOFS OF LOSS. §19J ments of a policy will not be insisted npon.'^^ So wliere the delay was caused by acts of the insurer which justified the insured in believing that the loss would be settled and ad- justed without furnishing proofs. '^^ A letter from the insurer to a claimant under a policy of insurance asking that the matter be allowed to rest until the adjuster of the company can see the claimant or his attorney constitutes a waiver of the clause limiting the time for furnishing proofs.'^'^ Where a policy provides that within sixty days after a loss the in- sured should furnish proofs of loss, and, if required, informa- tion as to other matters and an official certificate of the same, and an insufficient proof of the loss was furnished and re- tained by the insurer until within two or three days prior to the expiration of the sixty days, when it objected thereto and demanded that the insured furnish the paiticulars required by the policy and also the information and certificate which the insured is required to furnish upon demand, the action of the insurer in confusing its demands and failing to warn the insured that he had less time in which to furnish the particu- lars required by the policy absolutely than to furnish those not required until demanded, is a waiver of the sixty-day limit.'^^ Waiver of Insufficiency. § 193. The retention by the insurer, without objection, of notice or proofs furnished in proper time, is a waiver of any objection to their suflQcienoy; and the insistence of the insurer upon specified objections to their suflBciency is a waiver of all other objections which might be made. " Argall V. Old North State Ins. Co., 84 N. C. 355. "Kenton Ins. Co. v. Wigginton, 89 Ky. 330, 7 L. R. A. 81; Phoenix Ins. Co. V. Levy, 12 Tex. Civ. App. 45, 33 S. W. 992. " Turner v. Fidelity & Casualty Co., 112 Mich. 425, 38 L. R. A. 529. " McCarvel v. Phenix Ins. Co., 64 Minn. 193. § 104 AVAIVER OF INSUFFICIENCY. 573 § 194. Objections to the suflaciency of notice or proofs must (a) Be made promptly. (b) Be stated clearly and distinctly. The law governing the waiver of the sufficiency or insuf- ficiency of notice or proofs is mainly based upon the doctrine of estoppel. There is this difference between the failure to furnish proofs or notice within the prescribed tihae, and the failure to furnish them in the prescribed form, though within the prescribed time, to-wit: in the latter case the insured has not absolutely defaulted, and it may be that the errors or omissions can be corrected and the necessary information ob- tained and furnished to the insurer within the proper time ; while in the former case, the insured will have lost all his rights unless the insurer has prevented or waived compliance. The law requires of the insurer entire good faith and fair dealing in its transactions with the insured, and hence the insurer is bound to promptly advise the insured of any defects of a formal character in the proofs or notice furnished in season, to the end that the assured may have an opportunity to correct them. If the insurer accepts those served within the time mentioned in the policy, without objection, it will be deemed to have waived the defects therein, and to have re- - ceived them in performance of the conditions of the con- tract.'^^ An insured has the right to assume, until advised to the contrary, that the proofs of loss served by him were suf- ficient.^^ The real motive inducing the insurer to act or to remain silent when proofs are furnished, is immaterial on- the question of waiver. The insurer must be held to have in- " Welsh V. London Assur. Corp., 151 Pa. St. 607; Armstrong v. Agricultural Ins. Co., 130 N. Y. 566; Wicking v. Citizens' Mut. Fire Ins. Co., 118 Miph. 640, 77 N. W. 278; Gristock v. Royal Ins. Co., 84 Mich. 161, 47 N. W. 549, 87 Mich. 428, 49 N. W. 634. '"American Cent. Ins. Co. v. Sweetser, 116 Ind. 370. 574 "WAIVER OF NOTICE AND PROOFS OF LOSS. 194 tended the natural and ordinan^ consequences of his o^vn act and to have anticipated that the insured would rely thereon.®^ The conditions of insurance policies requiring proofs of loss are liberally construed in favor of the insured, and if he in good faith, and within the stipulated time, does what he plainly intends as a compliance with the requirements of his policy respecting proofs of loss, good faith requires that the insurer shall promptly notify him of any objections thereto so as to give him an opportunity to obviate them ; and mere silence may so mislead him to his disadvantage as to be in it- self sufficient evidence of waiver by estoppel. ^^ And the same rule applies in ease of failure of the insured to attach to his proofs the certificate of a designated magistrate or notary public, where the policy requires this to be done, and to any defects in the certificate furnished. ^^ The rules governing waiver of proofs or of defects in proofs are applicable to mutual benefit societies as well as to ordinary insurance com- panies.^* Waiver of SuflB.ciency — Cases. Defects in proofs of loss are waived by the failure of the in- surer to object thereto, although it does not "admit any lia- bility f^ where an insurer in response to a notice of loss, sent " Gray v. Blum, 55 N. J. Eq. 553, 38 Atl. 646, and ante, note 3. ''Welsh V. London Assur. Corp., 151 Pa. St. 607; Bartlett v. Union Mut. Fire Ins. Co., 46 Me. 500; Green v. Des Moines Fire Ins. Co., 84 Iowa, 135, 50 N. W. 558; Gould v. Dwelling-House Ins. Co., 134 Pa. St. 588; Harrison v. German American Fire Ins. Co., 67 Fed. 577. '^Turley v. North American Fire Ins. Co., 25 Wend. (N. Y.) 374. 2 Bennett, Fire Ins. Cas. 50; Cayon v. Dwelling-House Ins. Co., 68 Wis. 510, 32 N. W. 540; Paltrovitch v. Phopnix Ins. Co., 143 N. Y. 73. 25 L. R. A. 198; Mercantile Ins. Co. v. Holthaus, 43 Mich. 423. »* Stambler v. Order of Pente, 159 Pa. St. 492. ^National Ace. Soc. v. Taylor, 42 111. App. 97; Welsh v. London Assur. Corp., 151 Pa. St. 607. I 194 WAIVER OF INSUFFICIENCY. 575 to the insured a blank apparently designed to be nsed in pre- paring proofs of loss, and the insured filled out such blank and returned it to the insurer, who retained it \Adthout ob- jecting to its sufficiency, the latter will be estopped to claim that the proofs were not itemized in detail as required by the policy ;^^ and the retaining of an insurance policy by the in- surer without notifying the insured of its teiTas, estops the in- surer from claiming non-compliance with the provisions of the policy regulating the fonn and contents of such proofs of loss f and an informal statement concerning the loss given by the insured to an adjusting agent of the insurer, who delivers it to his principal, which fails to demand further or formal proofs, is sufficient.^* Imperfect proofs of loss received and retained by the insurer without objection, will be held suffi- cient, even though the conditions in the policy are explicit as to the form and contents of proofs, and though the policy pro- vides that no condition or clause in the policy shall be altered or waived except by writing indorsed on or annexed to the policy and signed l)y the president or secretary.^^ Eeten- tion by the insurer of defective proofs of loss without objection is a waiver of defects in the description of other insurance upon the property ;^^ the acknowledgment by the insurer of notice of the death of an insured and its refusal to furnish blanks for the making of proper proofs upon the ground that the policy is forfeited, waives the making of any further "Bromberg v. Minnesota Fire Ass'n, 45 Minn. 318. "American Cent. Ins. Co. v. Simpson, 43 111. App. 98; Bennett v. Maryland Fire Ins. Co., 14 Blatchf. 422, Fed. Cas. No. 1,321. *' Brock V. Des Moines Ins. Co., 106 Iowa, 30, 75 N. W. 863. *» Blake v. Exchange Mut. Ins. Co., 12 Gray (Mass.), 265, 4 Ben- nett, Fire Ins. Cas. 306; Gerard F. & M. Ins. Co. v. Frymier (Tex. Civ. App.), 32 S. W. 55; Karelsen v. Sun Fire Office, 45 Hun (N. Y.), 144. •"Jones V. Howard Ins. Co., 117 N. Y. 103. 576 WAIVER OF NOTICE AND PEOOFS OF LOSS. § 19-^ proofs.^ ^ Defects in proofs of loss fiiniished by the insured are waived bj the insurer without objection acting thereon and investigating the loss;^^ and by the insurer negotiating thereafter with the insured concerning an adjustment and demanding a submission to arbitration free from any of the conditions of the policy ;°^ and by the agent of the insurer thereafter examining the insured and procuring bills and in- voices of the goods destroyed.^* Denial of Liability. Acts or conduct of the insurer which will operate as a waiver of all notice or proofs will also operate as a waiver of defects in those furnished. For example, the refusal by an insurance company within the time for furnishing proofs to pay the full amount stated in the policy upon the sole ground that the insured was injured in an occupation more hazardous than that in which he w^as insured, is a waiver of the right to object to the sufficiency of the proofs served.®^ Objections Must be Made Promptly. Defects in form or particulars of proofs of loss furnished by the insured are waived unless seasonably objected to.^^ " Evarts v. United States Mut. Ace. Ass'n, 16 N. Y. Supp, 27. "= Biddef ord Sav. Bank v.-Dwelling-House Ins. Co., 81 Me. 566; German Ins. Co. v. Gray, 43 Kan. 497, 8 L. R. A. 70. '3 Connecticut Fire Ins. Co. v. Hamilton (C. C. A.), 59 Fed. 258; Hamilton v. Phoenix Ins. Co. (C. C. A.), 61 Fed. 379. =■' xMerclaants' Ins. Co. v. Reichman" (Tex. Civ. App.), 40 S. W. 831; Roberts v. Northwestern Nat. Ins. Co., 90 Wis. 210, 62 N. W. 1048. '' Standard L. & A. Ins. Co. v. Koen, 11 Tex. Civ. App. 273, 33 S. W. 133; Lampkin v. Travelers' Ins. Co., 11 Colo. App. 249, 52 Pac. 1040; Commercial Union Assur. Co. v. State, 113 Ind. 331; Phoenix Ins. Co. v. Taylor, 5 Minn. 492 (Gil. 393); National Masonic Ace. Ass'n v. Day, 55 Neb.' 127, 75 N. W. 576; Heidenreich v. Aetna Ins. Co., 2S Or. 70. °* Hamilton v. Connecticut Fire Ins. Co., 46 Fed. 42. I 194: WAIVER OF INSUFFICIENCY. 577 Thus, a retention of proofs for fifty days without objection, and then returning them as insufficient, Avithout assigning any specific objection, has been held sufficient upon which to base a finding of waiver of any defects.^'^ The provision of a policy that the loss is to be payable sixty days after notice and proof thereof has been received by the insurer does not give the company sixty days in which to object to proofs of loss. Objection must be made within a reasonable time. The question of what is a reasonable time is a question of law for the court in two classes of cases, to-wit: (1) "Transactions which happen in the same way, day after day, and present the question of reasonable time on the same data in continually recurring instances, so that by a series of decisions of the (2) "Where the time taken is so clearly reasonable or un- reasonable that there can be no room for doubt as to the proper answer to the question. Where, however, the answer to the question is one dependent on many different circumstances which do not constantly recur in other cases of like character, and with respect to which no certain rule of law has heretofore been laid down, or could be laid down, the question is one of fact for the jury."^^ A delay by the insurer of thirty-seven days in demanding a certificate of the magistrate nearest the fire, is not necessarily a waiver of such certificate;^^ and a retention of a notarial certificate accompanying proofs of loss for twenty-three days without objection is a waiver of the objection that the notary certifying was not the nearest notaiy and is a Avaiver of the right to demand another or further certificate;^"" and a delay "' Davis Shoe Co. v. Kittanning Ins. Co., 138 Pa. St. 73. '» Hamilton v. Phoenix Ins. Co. (C. C. A.), 61 Fed. 379; Dwelling- House Ins. Co. v. Dowdall, 159 111. 179. '^ Williams v. Queen's Ins. Co., 39 Fed. 167. "'" Paltrovitch v. Phoenix Ins. Co., 143 N. Y. 73, 25 L. R. A. 198. KERR, INS.— 37 578 WAIVER OF NOTICE AND PEOOFS OF LOSS. § 194 of five weeks lias been held good ground upon which to base a finding of a waiver ;^°^ and retaining them without objection until the trial of an action upon the policy ;^^^ and for eighty- six days;^*'^ and for forty-eight days;^°^ and for thi-ee months. ■^'^^ Where an insurer retains proofs of loss for ten days without objection, and afterwards gives them to its agent with instruc- tions to investigate and adjust the loss, it waives any objections to the sufficiency of the proofs served, and it is immaterial if ' the agent afterwards returns such proofs to the insured with the objection that they are insufficient in form and were not served in time, if amended proofs are afterwards and within a reasonable time tendered by the insured. ^"^^ The fact that when the proofs were received there remained but three days of the period specified in the policy, which time might not prove sufficient to enable the insured to obviate the defects, will not relieve the insurer from the obligation to promptly object to any defects and to give him any opportunity.^"'^ The making of specific objections to proofs of loss served by the insured does not waive the furnishing of proofs. ^"^ The retention by the insurer of proofs furnished in compliance with one con- dition of the policy is not a waiver of the condition of the policy requiring the furnishing of a certificate of the magis- trate or notary living nearest the fire.^"^ "^ Keeney v. Home Ins. Co., 71 N. Y. 396. See, also, Jefferson v. German-American Mut. Life Ass'n, 69 Mo. App. 126; McCarvel v. Phenix Ins. Co., 64 Minn. 193. ^°= Vangindertaelen v. Phenix Ins. Co., 82 Wis. 112, 51 N. W. 1122; Grand Lodge v. Besterfield, 37 111. App. 522. "^ Weiss V. American Fire Ins. Co., 148 Pa. St. 349, 23 Atl. 991. "^ Capitol Ins. Co. v. Wallace, 48 Kan. 400, 29 Pac. 755. "'Lockwood V. Middlesex Mut. Assur. Co., 47 Conn. 553. "' Haggard v. German Ins. Co., 53 Mo. App. 98. "^ Gould V. Dwelling-House Ins. Co., 134 Pa. St. 570. ^»* Sheehan v. Southern Ins. Co., 53 Mo. App. 351. *~ Lane v. St. Paul F. & M. Ins. Co., 50 Minn. 227. § 194 WAIVER OF INSUFFICIENCY. 579 Objections Must be Clear and Specific. If the insurer deems the proofs funiished insufficient, and desires further or amended proofs, it should point out in its objections, the defects which it desires to have overcome and the omissions w^hich ought to be suj)plied. An objection made bj an insurer that the proofs furnished were deficient both in form and substance, without pointing out the specific defects relied on, is too general to impose upon the insured the duty of furnishing other proofs. ^^° So is the general objection that they are not in conformity with the policy, without speci- fying particular defects. ^^^ But an objection to the sufficiency of the proofs, together with a reference to the specific condi- tions of the policy which set forth what the proofs must con- tain, is sufficient.^^^ The making of a specific objection to proofs of loss is an effectual waiver of all other objections which might have been made. Thus where the only objection made by the insurer upon receipt of proofs was that they did not include a certain certificate which the insured had the right to furnish later, the objection that they were not fur- nished in time was waived. ^^^ And an objection to proofs "» Myers v. Council Bluffs Ins. Co., 72 Iowa, 176, 33 N. W. 453. "1 Virginia F. & M. Ins. Co. v. Goode, 95 Va. 762; Pratt v. New York Cent. Ins. Co., 55 N. Y. 505; Gould v. Dwelling-House Ins. Co., 134 Pa. St. 570; Smith v. Home Ins. Co., 47 Hun (N. Y.), 30; Schmurr v. State Ins, Co., 30 Or. 29, 46 Pac. 363; Gnau v. Masons' Fraternal Ace. Ass'n, 109 Mich. 527, 67 N. W. 546. Notice to the insured to comply strictly with the terms of the policy is not notice to furnish a certificate of a magistrate or notary public which need be furnished only if required. Morgan v. Sun Ins. Office, 176 Pa. St. 579. ^"Gauche v. London & L. Ins. Co., 4 Woods (U. S.), 102, 10 Fed. 347. "« Badger v. Glens Falls Ins. Co., 49 Wis. 389, 5 N. W. 845; West- err. Home Ins. Co. v. Richardson, 40 Neb. 1, 58 N. W. 597; Moore v. Hanover Fire Ins. Co., 71 Hun (N. Y.), 199. 580 WAIVER OF NOTICE AND PROOFS OF LOSS. §19^ solely upon the ground that the amount claimed therein is in excess of an award made under the provisions of the policy, is a waiver of any other defects in the proofs. ^^^ Amended or Additional Proofs. § 195. If the original proofs are furnished after the expira- tion of the time fixed by the policy, and the insurer objects to their suflaciency and requires further proofs, these latter may be furnished within a reasonable time thereafter. This being done, the insurer will be estopped to assert the primary delay. But if the original proofs furnished within the prescribed time are fatally defective, and the insurer promptly objects to their suflBciency and points out the particulars in which they are insufficient, the insured must then serve corrected or supple- mental proofs overcoming all valid objections made, and he must do this within the time fixed by the policy for the fur- nishing of proofs. The contract of insurance embodies the full measure of the rights and obligations of both the insurer and insured, and,, except in particulars wherein non-compliance is waived or ex- cused by law, each is entitled to insist upon full performance- by the other. N*either party can by his own act diminish his own liability or deprive the other of any contractual right. Unless the insurer has expressly or impliedly waived its right to insist upon the full and complete performance by the in- sured of the conditions regulating the contents of proofs and the time of their service, the latter must render full com- pliance therewith. The insured may by delay in furnishing his proofs lose all his rights under the policy, but this delay is waived by the insurer when it objects to the sufficiency of overlate proofs, and requires the insured to supply further or additional proofs. Or if the insured in good faith and in attempted compliance with the requirements of the policy "*Levine v. Lancashire Ins. Co., 66 Minn. 138; First Nat. Bank v. American Cent. Ins. Co., 58 Minn. 492. § 195 AMENDED OR ADDITIONAL PROOFS. 581 seasonably furnishes proofs wliicli are insTiffieicnt and incom- plete, the insurer will be held to have waived all defects to which it does not promptly and properly object. This much the law requires the insurer to do as an evidence of its good faith and fair dealing. But nothing more is required of the insurer in this regard ; and, this duty discharged by it, the in- sured must then do what the policy requires him to do, and within the prescribed time. Nor is the insured excused from discharging this duty by reason of the impossibility of furthei- performance within the stipulated time. He is conclusively presumed to know the conditions of his policy and Avhat, if anything, is unconditionally required to be furnished with and stated in the -proofs, and what the insurer could insist upon his doing, and within what time he must do it. He cannot extend the time for furnishing proper proofs by delay in the furnishing of defective proofs. Proiapt action on his part and an honest attempt at compliance by him would have shifted the responsibility of taking the next step upon the insurer. The fact that when the defective proofs were re- ceived there might not remain time to obviate and remedy the defects, would not relieve the insurer from its obligation to give him the opportunity so to do. Valid objections, promptly and properly made by the insurer, to defective proofs furnished in proper time, can only be overcome by new or ad- defects complaii.^d of, and these latter must be furnished within the time limited in the policy. -^^^ ditional proofs which supply the omissions and remedy the The insurer must make its objections to the defective proofs clearly and explicitly and in a manner not calculated to con- fuse or mislead the insured. Thus by mixing up indiscrim- inately in an objection to proofs furnished and a demand for •"Gould V. Dwelling-House Ins. Co., 134 Pa. St. 570; McCarvel v. Phenix Ins. Co., 64 Minn. 198; ante, Waiver of Delay and Defects. 582 WAIVER OF NOTICE AND PROOFS OF LOSS. § 190 fiirtlier proofs, matters and information wliicli the insured was unconditionally required to furnish and those which he was not required to furnish unless they were demanded, and bv f ailino" to warn the insured that he had less time to furnish the former than the latter, or that a failure to furnish the former within a certain time would cause a forfeiture, the insurer waives the limitation contained in the policy and gives to the insured a reasonable time in which to comply with all the demands. ^-^^ Proofs Not Furnished by Proper Person". § 196. The right of an insurer to insist upon proofs being furnished by a particular person may be waived by its retain- ing proofs furnished by some one else without questioning the right of the latter to furnish them. If a person other than the one designated in the policy in good faith and with reasonable right or claim of right to act in the premises, attempts to comply with the provisions requir- ing the furnishing of proofs of loss, and pursuant thereto ac- tually furnishes proofs to the insurer within proper time, the latter by retaining without objection proofs so furnished by one not entitled to furnish them, will be held to have waived all defects in the proofs and any rights it may have gained by reason of the failure of the proper party to furnish them.^^^ The refusal of the insurer to receive proofs offered and seiwed by one not entitled to furnish them, does not operate as a waiver of any other defenses to an action on the policy, e. g. the defense that the policy had been avoided by the com- "« McCarvel v. Phenix Ins. Co., 64 Minn. 198. "'Morotock Ins. Co. v. Cheek, 93 Va, 8, 24 S. E. 464; Weed v. Hamburg-Bremen Fire Ins. Co., 133 N. Y. 394; Armstrong v. Agri- cultural Ins. Co., 130 N. Y. 566; State Ins. Co. v. Maackens, 38 N. J. Law, 564; Wilson v. Northwestern Mut. Ace. Ass'n, 53 Minn. 470; Brock V. Des Moines Ins. Co., 106 Iowa, 30, 75 N. W. 683. See ante, "Who Can Furnish Proofs." §§ 197, 198 SILENCE OF INSUKER. o83 mencement of mortgage foreclosure proceedings against the property insured without the written consent of the in- surer.^^^ Where a policy made payable to another than the insured as collateral seeurity, provides that in case of loss proofs shall he made by the original assured, who after a loss refuses to make proofs, whereupon the mortgagee furnishes proofs to the insurer, who retains them with the objection, that they are not in accordance with the conditions of the policy, the mortgagee is not bound to furnish additional proofs.^^^ Silence of Insurer. § 197. An insurer is under no obligation to do or say any- thing to make a forfeiture effectual. '§ 198. Silence operates as an assent and creates an estoppel only where it violates a duty to speak and at the same time has the effect to mislead and prejudice the one to whom this duty was owed. The insurer is under no obligation to furnish blank proofs of loss or to demand proofs. The conditions requiring service of proofs of loss are found in the policy, and the insured is con- clusively presumed to know what obligations in this respect the policy imposes upon him. When a loss occurs the in- sured is bound to know what he must do; and the insurer is under no obligation to notify him that proofs must be given or that he has omitted to give proofs within the proper time. The performance of the conditions is not a thing to be done at the request of the insurer. The company may remain silent, and until proofs are furnished it cannot be called upon to pay the loss. In discussing the question of the waiver "» Armstrong v. Agricultural Ins. Co., ISO N. Y. 566. ""Pratt V. New York Cent. Ins. Co., 55 N. Y. 505; Findeisen v. Metropole Fire Ins. Co., 57 Vt. 520; Rumsey v. Plicenix Ins. Co., 17 Blatchf. (U. S.) 527, 1 Fed. 396; Eliot Five Cents Sav. Bank v. Com- mercial Union Assur. Co., 142 Mass. 142; Keeney v. Home Ins. Co^ 71 N. Y. 396. 584 WAIVER OF NOTICE AND PROOFS OF LOSS. § 198 of the insufficiencj of proofs, we have seen that the law re- quires of the insurer entire good faith and fair dealing in its transactions with the insured in reference to notice and proofs, and that it is the duty of the insurer to call the attention of the insured to any defects in notice or proofs served in proper time, so as to give the insured an opportunity to correct any formal defects. The reasons for that rule are good and founded on principles of justice ; but where the insured has neglected to furnish notice or proofs within the time fixed by the policy and in consequence thereof his right to recovery is gone, the reasons for the rule do not exist. Cessante ratione legis cessat ipsa lex. If notice or proofs are not served within the prescribed time, and the insurer has done nothing to influence the omission, so the insured has lost all his rights under the policy, the insurer is not bound to object to the sufficiency of notice or proofs served thereafter, nor to point out any defects therein. Its silence then does not constitute a waiver ; and does not estop it from insisting, in the defense of an action upon the policy, upon all the defenses it may have. An insurer is not re- quired to do or say anything to make a forfeiture effectual. Silence operates as an assent and creates an estoppel only where it violates the duty to speak and at the same time has the effect to mislead and prejudice the party who was entitled to have that duty discharged. ^^° '=" Brown v. London Assur. Corp., 40 Hun (N. Y.), 107; Brink v. Hanover Fire Ins. Co., 80 N. Y. 108, 70 N. Y. 593; Bennett v. Lycom- ing County Mut. Ins. Co., 67 N. Y. 274; Armstrong v. Agricultural Ins. Co., 130 N. Y. 566; Johnson v. American Ins. Co., 41 Minn. 399; Daniels v. Equitable Fire Ins. Co., 50 Conn. 551; Continental Ins. Co. V. Dorman, 125 Ind. 189. See ante, Waiver of Sufficiency of Proofs. If no word or act has been said or done by insurer to mislead in- sured or throw him off his guard, mere silence is not enough to sus- ■§§ 199, 200 DENIAL OF LIABILITY. 585 A failure to give notice of loss wbicli defeats the right of action for the insurance, is not waived by the retention of proofs of loss sent after the policy is dead, where the insurer gives notice of a denial of any liability under the policy. ^-^ If the policy requires notice to be given within a reasonable time, or immediately, upon penalty of forfeiture, and if notice is unreasonably delayed without sufficient excuse, a fail- ure by the insurer to object to a notice given after the rights of the insured have expired does not revive the rights of the insured. -^^^ An insurer does not confess the full amount of loss as set forth in the proofs by failure to object to the proofs upon the ground of the amount of the loss set forth therein. ^^^' Denial of Liability. § 199. The extent to which a denial of liability by an insurer •operates as a waiver of notice or proofs of loss, or both, depends upon the time and manner of the denial and the circumstances under which it is made. A waiver by denial of liability is not always irrevocable. § 200. A denial by an insurer of all liability under a policy, made within the time during which proofs might be furnished, and under such circumstances as to warrant the presumption that proofs will be useless, is a waiver of any proofs, and a 'waiver of defects in those already furnished. The reason of this rule is that the law does not require any man to do a useless act, and that the insurer, by denying liabil- tain the inference of waiver. Mueller v. South Side Fire Ins. Co., 87 Pa. St. 399; Rademacher v. Greenwich Ins. Co., 75 Hun (N. Y.), 83. 1-1 Ermentrout v. Girard F. & M. Ins. Co., 63 Minn. 305, 30 L. R. A. 346; Edwards v. Baltimore Fire Ins. Co., 3 Gill (Md.), 176, 2 Ben- nett, Fire Ins. Cas. 405. "-Trask v. State F. & M. Ins. Co., 29 Pa. St. 198; Insurance Co. of North America v. Brim, 111 Ind. 281; Donahue v. Windsor County Mut. Fire Ins. Co., 56 Vt. 374; Ayres v. Hartford Fire Ins. Co., 17 Iowa, 179. "' Kuznik v. Orient Ins. Co., 73 111. App. 201. See post, §§ 199, 200, "Denial of Liability." 586 WAIVER OF NOTICE AND PKOOFS OF LOSS. § 200 ity while yet the insured has time to comply with the re' qiiirement of the policy, says in effect to the insured that it is fully acquainted with all the circumstances concoming the loss and has made up its mind that under no circumstances can the insured recover, and that the furnishing of proofs of loss will not avail him anything ; hence the insured is justified in believing and acting upon the belief that further attempt to comply with the requirement of the policy concerning proofs is not desired by the insurer and would be unavailing. The provisions of a policy of insurance requiring proofs of loss to be furnished within a specified time as a condition pre- cedent to the right of the insured to maintain an action on the policy, is waived by the refusal of the insurer to pay the loss and its denial of any liability to the insured made before the expiration of the time for furnishing proofs of loss.-'^* An unqualified refusal by an insurer to pay a loss based upon acts within its own knowledge and made under such circumstances as to justify the insured in believing that service of proofs w^ould be useless, is equivalent to an express agreement of waiver, even though the obligation to make such proofs is im- posed by statute as well as by contract. And the fact that the- insured sends the proofs after such a waiver is not ma- terial. ^^^ "♦German Ins. Co, v. Frederick (C, C. A.), 58 Fed. 144. "= Wilson V. Commercial Union Assur. Co., 51 S. C. 540, 29 S. ET, 245; Boyd v. Cedar Rapids Ins. Co., 70 Iowa, 325, 30 N, W. 585; Marthinson v. North British & M. Ins. Co., 64 Mich. 372, 31 N. W, 291; Hicks v. British America Assur. Co., 13 App. Div. 444, 43 N. Y. Supp. 623; Harris v. Phoenix Ins. Co., 85 Iowa, 238, 52 N. W. 128,' Roberts v. Northwestern Nat. Ins. Co., 90 Wis. 210, 62 N. W. 1048,' Gerling v. Agricultural Ins. Co., 39 W. Va. 689; Home Ins. Co. v.. Boyd, 19 Ind. App. 173, 49 N. E. 285; Milwaukee Mechanics' Ins. Co. V. Winfield, 6 Kan. App. 527, 51 Pac. 567; Searle v. Dwelling House- Ins. Co., 152 Mass. 263; Farnum v. Phoenix Ins. Co., 83 Cal. 246; Ger- man Fire Ins. Co. v. Gueck, 130 111. 345, 6 L. R. A. 835; Hermann v. Ni- agara Fire Ins. Co., 100 N. Y. 411. § 200 DENIAL OF LIABILITY. 587 An accident insurance company, wliicli, before tlie expira- tion of the time for furnishing proofs, refuses absolutely to pay any amount and denies all liability upon the ground that proper notice of disability was not given, cannot thereafter deny the right of the insured to recover for the full period of disability on the ground that in the proofs furnished a shorter period of disability was stated.^^*^ An insurer, who upon be- ing notified of a loss, offers to pay a specified sum in full settlement therefor, and denies all liability for some of the articles upon the claim that they -were not covered by the policy, waives the necessity of proofs of loss and authorizes the insured to sue at once.^^^ Denial of Liability Because of Garnishment Pending. A refusal by an insurer to settle with the insured or to fix the amount of liability, if any, during the pendency of garnish- ment proceedings will waive the furnishing of proofs only until such proceedings are terminated. ^^^ What Denial is a Waiver. A refusal to pay a loss, or a denial of all liability, does not constitute a waiver of proofs, unless it is of such kind and made under such circumstances as to justify the inference that proofs would be imavailing.^^^ If the general agent of the insurer after investigating the circumstances of the fire. If the company has, prior to the death of the insured, declared the policy forfeited for the nonpayment of premium, his representatives are not required to show that proofs have been furnished. Girard Life Ins., A. & T. Co. v. Mutual Life Ins. Co., 97 Pa. St. 15. ^^'Hohn V. Inter-State Casualty Co., 115 Mich. 79, 72 N. W. 1105. •" Commercial Fire Ins. Co. v. Allen, 80 Ala. 571. But see Milwau- kee Mechanics' Ins. Co. v, Winfield, 6 Kan. App. 527, 51 Pac. 567. -'•-' Merchants' & Mechanics' Ins. Co. v. Vining, 68 Ga. 197. '=»Cornett v. Phenix Ins. Co., 67 Iowa, 388, 25 N. W. 673; Patrick V. Farmers' Ins. Co., 43 N. H. 621; Phenix Ins. Co. v. Searles, 100 Ga. 97. 588 WAIVER OF NOTICE AND PROOFS OF LOSS. § 200 notifies tlie insured that lie cannot recommend payment of the loss and gives his reasons therefor, this is a sufficient denial ■of liability and a waiver of the right to insist upon the fui*nish- ing of proofs. -^^^ An insurer waives the furnishing of proofs of loss and defects in those already furnished, by notifying the beneficiary of its refusal to pay because of a breach of war- ranty or of misrepresentations avoiding the policy ;^^^ or be- cause the insured was engaged in a different occupation from that insured against ;^^^ and by a denial of liability because the insured had not title to the property destroyed ;^^^ and by •a denial of liability on the ground that the company had no risk on the property ;^^^ and by denying all liability under the policy Avithout giving any reasons therefor. ^^^ Failure to furnish proofs of death, or the furnishing of defective proofs, is waived by the refusal of the company to pay on other grounds ;^"^ and by a denial of liability on the ground that the policy was void.^^^ The withholding of an insurance policy after an oral preliminary contract to insure and the denial of the right of the insured to its issuance, is a waiver of the con- ditions in the policy requiring proofs of loss.^^^ Proof of the "» McBride v. Republic Fire Ins. Co., 30 Wis. 562. "^Lampkin v. Travelers' Ins. Co., 11 Colo. App. 249, 52 Pac. 1040. "'' Standard L. & A. Ins. Co. v. Koen, 11 Tex. Civ. App. 273, 33 S. W. 133. ''^German Fire Ins. Co. v. Gueck, 130 111. 345, 6 L. R. A. 835; Grange Mill Co. v. Western Assur. Co., 118 111. 396. "*King V. Hekla Fire Ins. Co., 58 Wis. 508; Brown v. London Assur. Corp., 40 Hun (N. Y.), 101; Helvetia Swiss Fire Ins. Co. v. Edward P. Allis Co., 11 Colo. App. 264, 53 Pac. 242. 135 Virginia F. & M. Ins. Co. v. Goode, 95 Va. 762, 30 S. E. 370. ""Standard L. & A. Ins. Co. v. Thornton, 97 Tenn. 1, 40 S. W. 136; Jefferson v. German-American Mut. Life Ass'n, 69 Mo. App. 126; Dooly V. Hanover Fire Ins. Co., 16 Wash. 155, 47 Pac. 507. "'Lancashire Ins. Co. v. Monroe, 101 Ky. 12, 39 S. W, 434; Aetna Ins. Co. V. Simmons, 49 Neb. 811, 69 N. W. 125; Robinson v. Pennsyl- Tania Fire Ins. Co., 90 Me. 385. "'Sproul V. Western Assur. Co., 33 Or. 98, 54 Pac. 180. § 200 DENIAL OF LIABILITY. 589 death of a member of a fraternal order, is waived by a denial of all liability on the part of the insurer and its refusal to pay the policy upon the ground that the deceased was not in- sured at the time of his death.^^^ If the contract for insur- ance has been completed, but no policy has been issued prior to the fire, the subsequent refusal of the insurer to issue the policy and its denial of the contract, waives the furnishing of proofs. ^■^'^ In an action for breach of contract to insure property where no policy has been issued, the failure to make proofs of loss as required by the policy such as the one agreed upon would have been if issued, is no defense.^^^ But if the insured claims that the contract is in force, and brings his action upon the theory that he is insured under the policy usually issued by the insurer, he is bound by the conditions usually found in such policies ; and the denial by the insurer after suit brought of any contract to insure, or the existence of any insurance, does not waive non-compliance by the insured. -^^^ What Denial Does Not Waive. The rule that an insurer waives the furnishing of further proofs of loss, or of any proofs of loss thereafter, by a denial of lialtilit}^, proceeds upon the doctrine of estoppel ; and, while it is not always necessary that the insured should have relied and acted upon the denial of liability before the expiration of the time for furnishing proofs,^'*^ yet a denial of liability "= Daniher v. Grand Lodge, A. 0. U. W., 10 Utah, 110, 37 Pac. 245. "'"Tayloe v. Merchants' Fire Ins. Co., 9 How. (U. S.) 390. '*^ Campbell v. American Fire Ins. Co., 73 Wis. 100, 40 N. W. 661; Gold V. Sun Ins. Co., 73 Cal. 216; American Cent. Ins. Co. v. Simp- son, 43 111. App. 98; Sanford v. Orient Ins. Co.. 174 Mass. 416, 49 Cent. Law J. 467; Unsell v. Hartford Life & Annuity Ins. Co., 32 Fed. 443; Sproul v. Western Assur. Co., 33 Or. 98, 54 Pac. 180. '*- Barre v. Council Bluffs Ins. Co., 76 Iowa, 609, 41 N. W. 373. ^"Wilson V. Commercial Union Assur. Co., 51 S. C. 540, 29 S. E. 245. 590 WAIVER OF NOTICE AND PROOFS OF LOSS. §200 or a refusal of the insurer to pay docs not constitute a waiver of either notice or proofs of loss or defects in those already furnished, unless made under such circumstances, and at such a time, and in such a manner, as to warrant and justify the insured in believing that proofs of loss are not desired and will not be required and if furnished would be unavailing. ^^^ The furnishing of proofs is not waived by the refusal of an ad- juster to pay the full amount of a policy upon the ground that the insured had made false representations in his application for insurance and that he had burned the property, coupled with the assertion that the insured must furnish the proofs according to the terms of the policy. ^'*^ An insurer does not waive its right to demand proofs of loss, or the production of invoices, or an inspection of books and papers, by denying liability for a portion of the articles contained in the inven- tory of destroyed property furnished by the insured. ^^^ And proofs are not waived under a Michigan standard policy by a statement of the adjuster to the insured that his company would not settle upon basis of settlement and arbitration agreed to by other companies having insurance on the same property. ^'^'^ The refusal by the adjuster of an insurer to pay the full amount of a policy upon the ground that the as- i« Peoples' Bank v. Aetna Ins. Co. (C. C. A.), 74 Fed. 507; Equi- table Life Assur. Soc. v. Winning (C. C. A.), 58 Fed. 541; Phoenix Ins. Co. V. Minner, 64 Ark. 590, 44 S. W. 75; Cornett v. Phenix Ins. Co., 67 Iowa, 388, 25 N. W. 673; Titus v. Glens Falls Ins. Co., 81 N. Y. 419; Armstrong v. Agricultural Ins. Co., 130 N. Y. 563; Ermen- trout V. Girard F. & M. Ins. Co., 63 Minn. 305, 65 N. Y. 635, 30 L. R. A. 346; Weidert v. State Ins. Co., 19 Or. 261; Engebretson v. Hekla Fire Ins. Co., 58 Wis. 301; Blossom v. Lycoming Fire Ins. Co., 64 N. Y. 166. "' Phoenix Ins. Co. v. Minner, 64 Ark. 590, 44 S. W. 75. iw Milwaukee Mechanics' Ins. Co. v. Winfield, 6 Kan. App. 527, 51 Pac. 567. "' Wadhams v. Western Assur. Co., 117 Mich. 514, 76 N. W. 6. § 200 DENIAL OF LIABILITY. 591 sured made false statements in Ms application for insurance and that he was guilty of incendiarism, does not waive the furnishing of proofs according to the terms of the policy. ^^^ Hetraction of Waiver by Denial. The doing by the insurer of an act which in law amounts to a Avaiver of proofs will not estop it from subsequently de- manding and requiring the insured to furnish proofs, pro- vided the latter has not acted upon the waiver, so that its withdrawal will leave him in a worse position than he would otherwise have occupied, and provided also there still remains a reasonable opportunity to furnish proofs before the expira- tion of the time fixed by the policy. ^^^ Otherwise if the in- sured had acted upon the waiver so that he will be prejudiced by its retraction. ^^"^ Thus the furnishing of preliminary proofs of loss is not waived by the refusal of the adjuster to settle a loss and his statement that the loss would not be paid because of a change in the use of the building insured contraiy to the terms of the policy, where the general agent of the in- surer within the time limited for the furnishing of proofs, and while the insured yet had time to comply with the require- '*^ Phoenix Ins. Co. v. Minner, 64 Ark. 590, 44 S. W. 75; Citizens' Fire Ins., S. & L. Co. v. Doll, 35 Md. 89. See, also, Robinson v. Penn- sylvania Fire Ins. Co., 90 Me. 385; Welsh v. London Assur. Corp., 151 Pa. St. 607; New York Life Ins. Co. v. Eggleston, 96 U. S. 572; Agricultural Ins. Co. v. Potts, 55 N. J. Law, 158; Wheatoij. v. North British & M. Ins. Co., 76 Cal. 415; Devens v. Mechanics' & Traders' Ins. Co., 83 N. Y. 168. "" Hahn v. Guardian Assur. Co., 23 Or. 576, 32 Pac. 683 ; Scottish U. & N. Ins. Co. V. Clancy, 71 Tex. 5; Joyce, Ins. § 3371; Gauche v. London & L. Ins. Co., 4 Woods (U. S.), 102, 10 Fed. 347; Farmers' Fire Ins. Co. v. Mispelhorn, 50 Md. 180; Williams v. Queen's Ins. Co., 39 Fed. 167; Shaw v. Republic Life Ins. Co., 69 N. Y. 286; Phenix Ina. Co. V, Searles, 100 Ga. 97; Findeisen v. Metropole Fire Ins. Co., 57 Vt. 520; Phcenix Ins. Co. v. Minner, 64 Ark. 590, 44 S. W. 75. "" German Ins. Co. v. Gibson, 53 Ark. 494. 592 WAIVER OF NOTICE AND PROOFS OF LOSS. § 201 ments of tlie j)olicy, demanded proofs of loss and with liis de- mand inclosed suitable blanks therefor. ^^^ And a letter bv the secretary of the insurer to a policy- holder wlio claimed to have suffered a loss under the temis of the i^olicy, in which letter the secretaiy stated that, after in- vestigation, he considered the claim invalid, but that the in- sured could reopen the case and make proofs of loss, and speci- fying what the proofs must contain, does not constitute a waiver where such letter was ^^Titten and received while yet there was time to furnish proofs of loss.^^^ Proofs of loss are not waived by the special agent of an insurer refusing to pay the loss and stating to the insured that he neither admitted nor denied the company's liability, where a stipulation was subsequently made between the insured and the insurer that such agent should examine the facts concerning the loss without waiving any of the terms of the policy. -^^^ Same — After Time to Furnish Proofs Has Expired. § 201. The denial of liability by an insurer and its refusal to pay (a loss under a policy) which will amount to a waiver of notice or proof, must be made within the time in which no- tice or proof can under the policy be furnished. There is no waiver of proofs of loss by a denial of liability made by the insurer after the time for furnishing proofs has exiDired. This is true whether the policy requires proofs to be furnished within a stated time, or immediately, or within a reasonable time.^^* The clear reason for this rule is that while, within the time limited, the insurer's conduct may be "1 Hahn v.^Guardian Assur. Co., 23 Or. 576, 32 Pac. 683. ^^•^ Welsh V. Des Moines Ins. Co., 77 Iowa, 376, 42 N. W. 324; Ben- nett V. Lycoming County Mut. Ins. Co., 67 N. Y. 274. "^ Insurance Co. of North America v. Caruthers (Miss.), 16 So. 911. 1^^ Edwards v. Baltimore Fire Ins. Co., 3 Gill (Md.), 176, 2 Ben- nett, Fire Ins. Cas. 405; Smith v. Haverhill Mut. Fire Ins. Co., 1 Allen (Mass.), 297; Trask v. State F. & M. Ins. Co., 29 Pa. St. 198; § 202 DENIAL OF LIABILITY IN ANSWEK. 593 such as to lead the insured to believe that no compliance would be required or be deemed material, and but for such conduct the insured might have rendered full compliance; yet if the specified time has elapsed, and the insured has failed to com- ply with the requirements of the policy, and has thereby lost all his rights without the fault of the insurer, its subsequent conduct, short of an express agreement to waive, or a distinct recognition of liability acted upon by the insured to his in- jury, would be of no effect; for they could work no possible harm to the insured who has already lost all his rights.^^^ The conduct of an adjusting agent for an insurer after the expiration of the time limited for furnishing proofs of loss cannot be relied on as a waiver of the failure to furnish proofs within the required time.^^® Same — In Answek. , § 202. Defendant insurance company waives notliing by as- serting all possible defenses when sued. An insurance company is entitled, when sued upon the policy, to assert as many defenses as it has under the law, provided they are not inconsistent with each other; and the Insurance Co. of TTorth America v. Brim, 111 Ind. 281; Killips v. Put- nam Fire Ins. Co., 28 Wis. 472; Employers' Liability Assur. Corp. v. Rochelle, 13 Ttx. Civ. App. 232, 35 S. W. 869. See, also, ante, §§ 197, 198, "Silence." Compare Johnson v. Dakota F. & M. Ins. Co., 1 N. D. 167, 45 N. W. 799; Fink v. Lancashire Ins. Co., 60 Mo. App. 673. "•'Leigh V. Springfield F. & M. Ins. Co., 37 Mo. App. 542; Beatty v. Lycoming County Mut. Ins. Co., 66 Pa. St. 9; Erwin v. Springfield F. & M. Ins. Co., 24 Mo. App. 152; Engebretson v. Hekla Fire Ins. Co., 58 "Wis. 301; Ermentrout v. Girard F. & M. Ips. Co., 63 Minn. 305, 30 L. R. A. 346; Blossom v. Lycoming Fire Ins. Co., 64 N. Y. 166; Dwel- ling House Ins. Co. v. Jones, 47 111. App. 261. See, also, cases cited to §§ 197, 198. '^'Albers v. Phoenix Ins. Co., 68 Mo. App. 543; Smith v. State Ins, Co., 64 Iowa, 716, 21 N. W. 145; Brown v. London Assur. Corp., 40 Hun (N. Y.), 101. KERR, INS. — 38 594 WAIVER OF NOTICE AND PEOOFS OF LOSS. § 202 pleading in its answer that the insured lias no right to re- cover, or that the insured has failed to comply with any of the conditions of a policy, or that the insured has violated any of the conditions of a policy, cannot be construed as a waiver of the failure of the insured to perform fully what the policy required him to do. The setting up of one defense cannot be construed as a waiver of another. In a federal case it was- contended that the insurer having by its answer denied all liability under the policy, and having also alleged the failure of the insured to comply with certain conditions precedent to a right of action, had by its formal plea waived the right to insist upon this non-compliance. The court said in substance : this denial of liability was not made until after the plaintiff had instituted this action, which under defendant's contention cannot be maintained. That the com- pany has set up in one count of its answer a denial of any lia- bility does not affect the case. It might waive any objection to the cause of the fire and offer to settle to avoid litigation, but this does not affect its right when sued to set up in its answer any and all legal defenses it has to the action. •'^'^ "'Kahnweiler v. Phoenix Ins. Co., 57 Fed. 562; Murphy v. North- ern British & M. Co.. 61 Mo. App. 333; Lane v. St. Paul F. & M. Ins. Co., 50 Minn. 227; La Plant v. Firemen's Ins. Co., 68 Minn. 82; Balmford v. Grand Lodge, A. O. U. W., 19 Misc. Rep. (N. Y.) 1; Yendel v. Western Assur. Co., 21 Misc.Rep. (N. Y.) 351; Armstrong V. Agricultural Ins. Co., 130 N. Y. 566; Trask v. State F. & M. Ins. Co., 29 Pa. St. 198. See, also, cases cited under section next preced- ing, and cases cited to section on "Silence." The contrary doctrine has been asserted in Omaha Fire Ins. Co. v. Hildebrand, 54 Neb. 306, 74 N. W. 589, 27 Ins. Law J. 730; Western Home Ins. Co. v. Richard- son, 40 Neb. 1, 58 N. W. 597; Helvetia Swiss Fire Ins. Co. v, Edward P. Allis Co., 11 Colo. App. 264, 53 Pac. 242. And see Johnson v. Da- kota F. & M. Ins. Co., 1 N. D. 167, 45 N. W. 799; Crenshaw v. Pa- cific Mut. Life Ins. Co., 71 Mo. App. 431. § 203 negotiatioxs for settlement. 695 Negotiations fob Settlement. § 203. The offer of an insurer to pay an amount less than that claimed by the insured by way of compromise and settle- ment of a loss, will not alone constitute a waiver. But a waiver may be found when the acts and negotiations between insurer and insured are of such a nature (a) As to indicate the intention of the former to forego its right to require proofs, (b) And to induce the latter to neglect to furnish them. Waiver by Negotiations. Tlie negotiations between the insurer and tlie insured after a loss looking towards a compromise or settlement are fre- quently of such a nature as to dispense with the furnishing of notice or proofs. We have already seen that if after a loss has occurred, the insured has furnished proofs of loss in at- tempted compliance with the policy, or if the insurer has pre- pared such proofs as it deems essential, the insured is entitled to assume until notified to the contrary that additional notice and proofs are not required. It often happens that following the loss, the insurer investi- gates it, has communications and negotiations with the in- sured looking towards a settlement or adjustment of his claims, from which it might be inferable that the insurer did not desire or intend to require any notice or proofs to be fur- nished. The acts and negotiations which will constitute a waiver of notice or proofs must be of such a character and made under such circumstances as to reasonably indicate an intention on the part of the insurer to waive its rights to have notice or proofs or both furnished, and such as to reasonably induce the belief upon the part of the insured that the notice or proofs will be an unnecessaiy formality. -^^^ Any delay "•Robinson v. Pennsylvania Fire Ins. Co., 90 Me. 385; Eastern R. Co. V. Relief Fire Ins. Co., 105 Mass. 579; Brewer v. Chelsea Mut. Fire Ins. Co., 14 Gray (Mass.), 209; Blake v. Exchange Mut. Ins. 596 WAIVER OF NOTICE AXD PROOFS OF LOSS. § 203- in tlie fumishing of notice or proofs reasonably induced by the conduct of the insurer in its negotiations for compromise or settlement cannot be taken advantage of by it.^^^ Preliminary proofs of loss are waived by tbe insurer's sending its adjuster to tbe scene of tbe fire immediately there- after with full power to adjust and settle the loss when the company had thereto been fully informed of the circumstances attending the fire and the adjuster attempts to obtain a settle- ment, the only question in dispute being the amount of the loss, and where the insurer takes possession of the damaged property and examines it for the purpose of ascertaining the amount and extent of damage, and by an adjuster's offering to pay a less amount than the face of the policy and making no other objection to a settlement and not intimating that the company would require any proofs ;^^° and by the insurer, after it has knowledge of the loss, taking possession of the damaged property and the books of the insured and investi- gating the extent of the loss;^^^ and by the insurer referring the matter of a loss to its adjuster, who, having full power to investigate and settle, examines into the facts, negotiates with the insured for a compromise and leads the latter to believe that there is nothing in the way of a settlement except a dif- ference of opinion as to the value of the property destroyed. ^^^ Co., 12 Gray (Mass.), 265; Underbill v. Agawam Mut. Fire Ins. Co., 6 Cush. (Mass.) 440; Fulton v. Phoenix Ins. Co., 51 Mo. App. 460; Roberts v. Northwestern Nat. Ins. Co., 90 Wis. 210, 62 N, W. 1048; Lake v. Farmers' Ins. Co., 110 Iowa, 473, 81 N. W. 711; Gris- tock V. Royal Ins. Co., 87 Micb. 428, 49 N. W. 634, 84 Micb. 161, 47 N. W. 549; Wrigbt v. London Fire Ins. Ass'n, 12 Mont. 474, 19 L, R. A. 211. ^'» Argall V. Old Nortb State Ins. Co., 84 N. C. 355. ""Phoenix Ins. Co. v. Levy, 12 Tex. Civ. App. 45, 33 S. W. 992; Mitchell V. Orient Ins. Co., 40 111. App. Ill; German Ins. Co. v. Gray, 43 Kan. 497, 8 L. R. A. 70. "^ St. Paul F. & M. Ins. Co. v. Gotthelf, 35 Neb. 351, 53 N. W. 137. "'Hitchcock v. State las. Co., 10 S. D. 271, 72 N. W. 898; George § 203 NEGOTIATIONS FOR SETTLEMENT. 597 Contra — No Waiver. But an offer of compromise made by tlie insurer after tlio expiration of the time for furnishing proofs of loss is no waiver of proofs of loss.^^^ And a mere offer to pay less than the amount of the claim, cannot be regarded as a waiver of proofs or of any other legal right which the insurer might have.^^^ Where a policy provides that no action taken pre- liminary to the adjustment of a claim to ascertain the amount and validity thereof shall be constmed as a waiver of any of the rights of the company, the making of a statement of the property lost at the request of an adjuster who is investigat- ing the loss does not dispense with the furnishing of proper proofs. ^*^^ Nor does the offer of an agent and adjuster of the insurer to advise the payment of a certain sum in settle- ment of a loss when the offer is rejected by the instired, who is then told he must look to the policy for his remedy. ^^^ The fur- nishing of notice and proofs in accordance with the terms of a policy is not waived by the payment of a loss to the- mort- gagee of the insured property under an agTeement between him and the insurer providing for a continuation of the policy, and for subrogation of the company to the mortgagee's rights Dee & Sons Co. v. Key City Fire Ins. Co., 104 Iowa, 167, 73 N. W. 594; Brock V. Des Moines Ins. Co., 106 Iowa, 30, 75 N. W. 683; Perry v. Dwelling-House Ins. Co., 67 N. H. 291, 33 Atl. 731. And any conduct of insurer in negotiating for settlement which justifies the insured in an expenditure of time and money, under the honest belief that there is an admission of liability and a desire and willingness of the insurer to make an equitable adjustment, is a waiver. Wicking v. Citizens' Mut. Fire Ins. Co., -118 Mich. 640, 77 N. W. 278. ^^ Leigh v. Springfield F. & M. Ins. Co., 37 Mo. App. 542. '"* Beatty v. Lycoming County Mut. Ins. Co., 66 Pa. St. 9. "= Knudson v. Hekla Fire Ins. Co., 75 Wis. 198, 43 N. W. 954. ''^« Flanaghan v. Phenix Ins. Co., 42 W. Va. 426; Knudson v. Hekla Fire Ins. Co., 75 Wis. 198, 43 N. W. 954; Engebretson v. Hekla Fire Ins. Co., 58 Wis. 301. 598 WAIVER OF NOTICE AND PROOFS OF LOSS. § 203 to the extent of tlie sum paid.^^''^ Thus where a policy re- quired proofs of loss to be furnished within thirty days, and the evidence disclosed that the secretary of the insurer, after an informal notice of the total destruction of the building in- sured, went to the scene of the fire, viewed the ruins, obtained a carpenter's estimate for rebuilding, offered the insured a specified sum of money in settlement, marked certain items in the inventory furnished by the insured as articles for which the company was willing to pay, and entered into an agreement with the agent of another insurance company as to their respective pro rata shares of the loss, it is a question for a jury whether or not there was a waiver of proofs. ^"^^ An adjuster's investigation into the circumstances of a fire, and his attempt to agree with the insured as to the amount of the loss, and his offer to pay a certain sum in full settlement, will not excuse the insured from furnishing proofs; but where the adjuster frequently visits the scene of the fire after the loss and makes repeated offers for compro- mise, and the only question ever raised is as to the amount for which the insurer was liable, it may be a question of fact for a jury to deteraiine whether or not there was a waiver. "The company is not io be prejudiced in its defense because its agent promptly went to the scene of the fire, and pursued every allowable method of investigation of the loss, and tried ineffectually to come to an understanding with the insured. This would be to punish for an effort to perform duty. * * i" Hare v. Headley, 54 N. J. Eq. 545, 35 Atl. 445. Before proofs were made, the company's adjuster went to the scene of the loss, made an investigation, and offered to settle it on terms which were rejected. Defective proofs were subsequently sent,- and insured was promptly notified of the defects in them. He did nothing further towards perfecting them. Held, that there was no waiver. Liverpool, L. & G. Ins. Co. v. Sorsby, 60 Miss. 302. ^^ Susquehanna Mut. Fire Ins. Co. v. Staats, 102 Pa. St. 529. See note 68. § 204 PKOCEEDINGS TO ASCERTAIN OR ADJUST LOSSES. 599 And an offer to pay a sum less than tlie amount claimed will not [alone] constitute a waiver. There must be more than this. * * * Waiver which rests upon the idea of estoppel cannot be predicated of mere perfonnance of duty, or exercise of right, or offer of compromise by the insurer. * * * But where there were frequent negotiations and letters between the parties, and the only matter of difference was as to the value of the property damaged and how much the insurer should pay, it may be that the protracted negotiations and discussion between the parties during which the liability of the insured was assumed and recognized, and the only dif- ference was as to the sum to be paid, was well calculated to mislead the average man into tlie belief that he need not make any further proof of loss than was known to the in- sured."i^9 Proceedings to Ascertain" or Adjust Loss. § 204. The general rule is that notice and proofs of loss are unnecessary if the insurer examines the insured under oath, or demands an arbitration, or makes an adjustment of the loss. Many policies contain express stipulations which avoid the application of this rule. Examination of the Insured — General Rule. In the absence of a contrary stipulation in the policy, the failure of the insured to furnish notice or proofs as required by the policy, and all objections to the sufficiency of proofs or notice which have been seiwed, are waived by the insurer requiring an examination of the insured under oath according to the conditions of the policy.^'^^ "•New Orleans Ins. Ass'n v. Matthews, 65 Miss. 301; Phenix Ins. Co. V. Searles, 100 Ga. 97, 27 S. E. 779; Scottish U. & N. Ins. Co. v. Clancy, 71 Tex. 5; Hanna v. American Cent. Ins. Co., 36 Mo. App. 538. ""Enos y. St. Paul F. & M. Ins. Co., 4 S. D. 639, 57 N. W. 919; Car- penter V. German American Ins. Co., 135 N. Y. 298; Vergeront v. Ger- man Ins. Co., 86 Wis, 425, 56 N. W. 1096; O'Brien v. Ohio Ins. Co., 52 600 -SVAIVER OF NOTICE AND PROOFS OF LOSS. § 204 Wlien Regulated by Stipulations in Policy. But where a policy expressly provides that the Insured shall, whenever required, submit to an examination under oath and shall, if required, produce a certificate of the nearest magistrate as to the nature and amount of the loss, the mere examination of the insured by the insurer under the fomier provision is no waiver of the right of the insurer to there- after require a compliance with the latter provision ;^^^ nor where the policy provides that such act shall not constitute a waiver of any of the rights of the insurer to insist on compli- ance by the insured with all the terms of the policy, when the insurer expressly stated to the insured that in exercising its right to such examination, it did not intend to waive any rights under the policy. ^"^^ And an insurer does not waive a provision requiring the insured to exhibit to its adjuster the remnants of the property destroyed, by requiring an examina- tion of the insured after the receipt of proofs of loss, where the policy provides in terms that no waiver shall arise because Mich. 131, 17 N. W. 726; Zielke v. London Assur. Corp., 64 Wis. 442; Moore v. Protection Ins. Co., 29 Me. 97. In Winnesheik Ins. Co. v. Schueller, 60 111. 465, the policy provided that the assured should, if required, submit to a personal examination. The company did not ask for any examination till after the lapse of the thirty days in which the assured must prove his loss. Held: (1) that the examina- tion was not a part of the proof of loss; (2) that, if it might at any time constitute a part of the proof of loss, it could not be insisted upon after the lapse of the thirty days; (3) that the company could not postpone such examination for the purpose of involving the as- sured in difficulties, and entrapping her into violation of the condi- tion of the policy. Compare Gauche v. London & L. Ins. Co., 4 Woods (U. S.), 102, 10 Fed. 347; Lycoming County Ins. Co. v, Upde- graff, 40 Pa. St. 311; Columbian Ins. Co. v. Lawrence, 2 Pet. (U. S.) 53. "'Williams v. Queen's Ins. Co., 39 Fed. 167; Lane v. St, Paul F. & M. Ins. Co., 50 Minn. 227. "* Phenix Ins. Co. v. Searles, 100 Ga. 97, 27 S. E. 779. § 204 INVESTIGATION OF LOSS. 601 of sucli examination. ^'^^ In a Maryland case the conditions of the policy were that insured should forthwith give notice of loss in writing and as soon thereafter as possible deliver a particular account, exliibit his hooks, bills of purchase or duplicates thereof and other vouclicrs, submit to an examina- tion under oath, etc. "And until such proofs, examinations, declarations, certificates and exhibits are produced, and per- mitted by the claimant, when required as above, the loss shall not be payable," Notice and preliminary proofs were fur- nished. The latter not being satisfactory, an agent demanded that insured should produce his bills of purchase, and upon being informed that these had been burned, demanded dupli- cates thereof, which were not produced. The company re- fused to pay the amount claimed, in the following letter, written in reply to one from the attorney of insured : "I ain instructed to say that the F. F. I. C. will contest the payment of A. M.'s claim (in its present exaggerated form), under the terms and conditions of his policy, though we should have pre- ferred an amicable compromise. The company is more im- pelled to this course as we cannot learn that the C Co. on the same risk have or intend paying the claim as made. When they pay, this Co. will probably not delay longer. If, liowever, jou prefer litigation with this Co., we shall contest the claim as above." Held, that this was not a waiver of the right to demand further preliminary proof. ^'^^ Demand for Arbitration or Arbitrating. Any notice or proof is waived by the insurer's demand for arbitration within the time for furnishing proofs of loss,^'^^ and by its entering into a submission to arbitration '" Oshkosh Match Works v. Manchester Fire Assur. Co., 92 Wis. 510, 66 N. W. 525. "* Farmers' Fire Ins. Co. v. Mispelhorn, 50 Md. 180. '" Pretzfelder v. Merchants' Ins. Co., 123 N. C. 164, 44 L. R. A. 424. 602 WAIVER OF NOTICE AND PROOFS OF LOSS. § 204- for the purpose of ascertaining tlie amount of the loss in ac- cordance with another stipulation of the policy, without hav- ing received the proofs required ;^'^^ and hy the insurer enter- ing into an agreement to pay what appraisers shall determine to he the amount of the loss.^'^'^ The effect of these acts as a waiver is not lessened by the failure of the arbitration because of the inability of the arbitrators to agree without the fault of the insured. ^''^^ Any defects in proofs furnished in proper time, are waived by the insurer thereafter negotiating with the insured concerning an adjustment of the loss and demanding a submission to arbitration free from any of the provisions or conditions not prescribed by the policy. ^"^^ When Appraisal Must Accompany Proofs. Where a policy provides for both an appraisal and proofs of loss and that appraisal shall accompany the proofs, the demanding of an appraisal by the insurer before the time to furnish proofs has expired, does not waive the furnishing of proofs.^®** Stipulations in Policy Regulating Effect of Arbitration. Any notice or proof is waived by the insurer without objec- tion joining in a submission to arbitration which is provided "•Caledonian Ins. Co. v. Cooke, 101 Ky. 412, 41 S. W. 279; Rade- macher v. Greenwich Ins. Co., 75 Hun (N. Y.), 83; Southern Mut. Ins. Co. V. Turnley, 100 Ga. 296, 27 S. E. 975; Home Fire Ins. Co. v. Bean, 42 Neb. 537; London & L. Fire Ins. Co. v. Storrs, 36 U. S. App. 327, 71 Fed. 127; Carroll v. Girard Fire Ins. Co., 72 Cal. 297; Bam- messel v. Brewers' Fire Ins. Co., 43 Wis. 463; Walker v. German Ins. Co., 51 Kan. 725. ^" Snowden v. Kittanning Ins. Co., 122 Pa, St. 502. "' Pretzfelder v. Merchants' Ins. Co., 123 N. C. 164, 44 L. R. A. 424; Rademacher v. Greenwich Ins. Co., 75 Hun (N. Y.), 83. ^•'Connecticut Fire Ins. Co. v, Hamilton (C. C. A.), 59 Fed. 258; Hamilton v. Phoenix Ins. Co. (C. C. A.), 61 Fed. 379; Home Fire Ins. Co. V. Bean, 42 Neb. 537. ""Hanna v. American Cent. Ins. Co., 36 Mo. App. 538; Scottish U. & N. Ins. Co. V. Clancy, 71 Tex. 5. § 204 ARBITRATION AND ADJUSTMENT. 603 for in the policy only after proofs of loss have been served and received, although the policy contains a provision that none of its conditions shall be waived except by the written en- dorsement of the president or secretary, and although the submission to arbitration provides that "this appointment is without reference to any question or matters of difference within the terms and conditions of the insurance and is not to be taken as any waiver upon the part of said companies of the said conditions in their policies in case they elect to avail themselves of them."^^^ This is uix)n the theory that such a stipulation did not clearly evidence the mutual intent of the parties that there should be no waiver of the right of the insurer to require notice and proofs according to the conditions of the policy. But there is no reason why the parties have not the right to stipulate that any step taken by them shall be no waiver of any rights of either, and they have the right to enter into a written stipulation for arbitration with an express reserva- tion of all the rights of both parties including the right to re- quire notice and proofs of loss ; and under such a stipulation, the insured will not be relieved from performing the duties imposed upon him by the policy. ^^^ Adjustment. The payment by an insurer of part of a claim asserted against it for loss covered by the policy of insurance is a '"Carroll v. Glrard Fire Ins. Co., 72 Cal. 297; Bishop v. Agricult- ural Ins. Co., 130 N. Y. 4S8; Gale v. State Ins. Co., 33 Mo. App. 664. '^■Oshkosh Match Works v. Manchester Fire Assur. Co., 92 Wis. 510, 66 N. W. 525; Williams v. Queen's Ins. Co., 39 Fed. 167; Phenix Ins. Co. V. Searles, 100 Ga. 97, 27 S, E. 779; Knudson v. Hekla Fire Ins. Co., 75 Wis. 198, 43 N. W. 954; Wi eking v. Citizens' Mut. Fire Ins. Co., 118 Mich. 640, 77 N. W. 275; Scottish U. & N. Ins. Co. v. Clancy, 71 Tex. 5; Lane v. St. Paul F. & M. Ins. Co., 50 Minn. 227; Briggs V. Fireman's Fund Ins. Co., 65 Mich. 52, 31 N. W. 616. ■601 WAIVER OF NOTICE AND PROOFS OF LOSS. § 205 waiver of both notice and proofs ;^'^^ and tlie payment of a part of the amount claimed into court ;^^^ and a completed ad- justment of the loss.-^^^ But a partial adjustment of a loss and an offer of settlement by the insurer and its acceptance of an inventory of the property destroyed is not a waiver of proofs if the insured is at the same time notified that proofs will be expected and required, where the policy provides that there shall be an appraisal on demand of either party, and that such appraisement shall be a part of the proofs of loss, and that losses shall not be payable until such proofs are fur- nished. ^^^ Furnishing or Refusing to Furnish Blanks. § 205. An insurer need not furnish blanks for either notice or proofs unless it is either expressly or impliedly required to do so by the policy. The furnishing of blanks for proofs before notice has been given may operate as a waiver of notice. The failure of an insurer to furnish blanks when it is its duty so to do, estops it from asserting the failure of the insured to furnish notice or proofs on other blanks. Demand for blanks can usually be made upon either the sub- ordinate or supreme council of a mutual benefit society. The insurer is under no obligation to notify the insured that either notice or proofs are required and need not furnish blanks upon which to make the same until they are demanded by the insured. ^^^ An accident insurance company waives. "'Westlake v. St. Lawrence County Mut. Ins. Co., 14 Barb. (N. Y.) 206. '-* Johnston v. Columbian Ins. Co., 7 Johns. (N. Y.) 315. ^'=^ Brock V. Des Moines Ins. Co., 106 Iowa, 30, 75 N. W. 683; Fisher V. Crescent Ins. Co., 33 Fed. 544. The right to demand the certificate of a notary, or claim any ben- efit because of failure to furnish it, is waived by making an adjust- ment of the loss. Levy v. Peabody Ins. Co., 10 W. Va. 560. 1^" Scottish U. & N. Ins. Co. v._ Clancy, 71 Tex. 5. "' Continental Ins. Co. v. Dorman, 125 Ind. 189. § 205 FUKNISHING OR REFUSING TO FURXISH BLANKS. 605- the provisions of a policy requiriug notice of accident by fur- nishing to the insured blanks on which to make proofs of dis- ability without objecting to his failure to give the notice stipulated for,^^^ But a waiver of notice or proofs always implies a knowledge on the part of the insurer of the occur- rence and date of the event or peril or loss insured against. It is a general rule that if after knowledge of the occurrence of a loss, the insurer, with knowledge that the insured has failed to give either notice or proofs within the time fixed by the policy, after the expiration of such time furnishes to the insured blanks upon which to make proofs or notice, or does any act from which it can reasonably be inferred that it desires either notice or proofs, and the insured thereafter and within a reasonable time fills up and returns such Idanks or accedes to the requirement of the company, the latter will be held estopped to assert the original forfeiture. ^^^ Otherwise if the insurer acted without knowledge of the true facts in the case, for then the essential element of intent would be lacking. Thus where an accident insurance policy required that the eomilany should be notified of an injury within ten days after it had been received and that failure to give such notice should bar all claims under the policy, no suit can be maintained if notice be not given uutil twenty-six days after the accident, notwithstanding the fact that thereafter and before it knew of the date of the accident, the insurer furnished blank proofs of loss to the insured at his request and demanded from him further information as to the nature and circumstances of the injury. ^^° And the failure of an insured to comply with the requirements of a policy regarding notice of the sickness of a horse is not waived by the insurer furnishing blanks to the "'Crenshaw v. Pacific Mut. Life Ins. Co., 71 Mo. App. 42; Peabody V. Fraternal Ace. Ass'n, 89 Me. 9G. "'•' See ante, notes 66-76. "" Heywood v. Maine Mut. Ace. Ass'n, 85 Me. 289. 606 WAIVER OF KOTICE AND PROOFS OF LOSS. § 205 insured "vvliere it had at the time no knowledge of the facts and circumstances surrounding the death of the horse. -^^-^ It has been asserted that the furnishing of notice and proofs is waived by the failure of the insurer to furnish blanks there- for to the insured upon his demand. The cases supporting this rule almost without exception deal with the rights of i)ar- ties under policies requiring notice or proofs to be on blanks furnished by the insurer or on forms prescribed by it. There is no obligation of the insurer to the insured except it be im- posed by the terms of the contract or by statute or by the conduct of the insurer itself. ^'''^ Such obligation, and none other, must the insurer discharge. There is no doubt but that when the proofs are made upon blanks to be furnished by the insurer, its failure to furnish blanks upon demand relieves the insured from the necessity of supplying proofs. ^^^ So where the duty is imposed by statute. ^^^^ And when an in- surer's by-laws provide "that proof of death shall be made on blanks furnished by the society, with the seal of the lodge to which the member belongs, or of the nearest lodge to the deceased," and blanks are not furnished upon proper applica- tion, proof of death may be made without such blanks, and in such case the proofs need not bear the seal of any lodge. ^^^ In a New York case, where it appeared by the evidence of defendant's officers, that the company was provided with blanks for proofs and that it was the custom upon the death of an insured to send blanks to his representatives or to the local agent, that notice of death was given and afterwards applica- "1 Alston V. Northwestern Live Stock Ins. Co., 7 Kan. App. 179, 53 Pac. 784. '»^ Continental Ins. Co. v. Dorman, 125 Ind. 189. "'Covenant Mut. Ben. Ass'n v. Spies, 114 111. 463; Dial v. Valley Mut. Life Ass'n, 29 S. C. 561; Pray v. Life Indemnity & Security Co., 104 Iowa, 114, 73 N. W. 485. i»3a Meyer v. Insurance Co. of North America, 73 Mo. App. 166. "* Gellatly v. Minnesota Odd Fellows' Mut. Ben. Soc, 27 Minn. 215. § 205 FCKNISHING OR KEFUSING TO FURNISH BLANKS.' 607 tion was made to tlie insurer for blank proofs which were re- fused, it was held that ''the proofs of death called for by the terms of the policy must, in view of the custom of the defend- ant, * * * be held to relate to proofs according to its in- structions and upon blanks to be by it furnished. " ^^^ xVu insurer's refusal to furnish blanks upon the ground that it is not liable under the policy operates as a waiver of proofs. ^^^ Mutual Benefit Societies. It would seem that in the absence of any stipulation to the contrary, a demand for blanks can properly be made upon either the. subordinate or supreme council of a mutual insur- ance association. The failure of the subordinate council or any agent of the order to properly discharge its duty in any detail connected with the making or furnishing of notices or proofs or blanks for the same, cannot prejudice the claim- ant. ^^'^ And if a supreme lodge of an association declines to recognize a demand upon it for blanks upon the ground that the matter should properly be taken up with a subordinate lodge, it thereby casts the burden of supplying the proofs upon the subordinate lodge and cannot take advantage of the fail- ure of the latter to act.^^^ "'Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281; Hoffman v. Manufacturers' Ace. Ind. Co., 56 Mo. App. 301. ""Evarts v. United States Mut. Ace. Ass'n, 16 N. Y. Supp. 27; American Ace. Ins. Co. v. Norment, 91 Tenn. 1; ante, "Denial." "^ Order of Chosen Friends v. Austerlitz, 75 111. App. 74; Young v. Grand Council, A. O. A., 63 Minn. 506; Supreme Council, C. B. L., v. Boyle, 10 Ind. App. 301. "« Supreme Lodge v. Goldberger, 72 111. App. 320. CHAPTER XV. ARBITRATION AND AWARD. § 206. Validity of Stipulations for Arbitration. 207-210. The Effect of such Stipulations. 211. When Stipulations for Arbitration Become Operative. 212. Submission. 213. Selection of Arbitrators and Umpire. 214. Conducting Appraisal. 215. Failure of Arbitrators to Agree. 216. Who Bound by Award. 217. Validity and Effect of Award. 218. Setting Aside Award. 219-220. Effect of Demanding or Participating in an Award. 221-222. Waiver of Right to Arbitration. 223. Denying Liability in Pleading. Validity of Stipulations for Arbitration". § 206. A provision in an insurance policy requiring an arbi- tration and award on the general question of the liability of the insurer is invalid because it is an attempt to oust the courts of their proper jurisdiction. A provision for a fair and impartial arbitration and award on special matters such as the amount of damage in case of fire or loss is valid and binding. Provisions in the constitution and by-laws of mutual benefit societies requiring all questions concerning the liability of the society to its members to be decided and determined by the tribunals of the order are sustained in some jurisdictions. Very many fire insurance policies contain provisions to the effect that if in case of damage or loss to the property insured, the insurer and insured are unable to agree as to the amount of damage or loss, the same shall either absolutely or condi- tionally be referred to three disinterested persons selected, § 206 VALIDITY OF STIPULATIONS FOR ARBITRATION. 609 one by the insurer, one by the insured and the other by the two so chosen, and that the award of these three or any two of them shall be conclusive as to the amount of loss or damage. Such stipulations are, in the absence of statutory provisions to the contrary, reasonable and valid ; but so far they consti- tute only an agreement to refer. This is merely a collateral and independent agreement, a breach of which, while it will support a separate action, does not constitute a bar to an action on the policy. When, however, the contract makes the sub- mission to arbitration a condition precedent to the right of the insured to bring a suit, a different question is presented. It has been argued with much force and ingenuity that such stipulations are void, as an attempt to oust the courts of their proper jurisdiction and powers. But the great weight of ju- dicial authority supports the validity of such prc^visions ; and this upon the ground that they do not oust tlie jurisdiction of the courts, but leave the general question of liability to be judicially determined, and simply provide a plain and reason- able method of estimating and ascertaining the amount of loss.^ ' Hamilton v. Livei-pool & L. & G. Ins. Co., 136 U. S. 242, 10 Sup. Ct. 945; Reed v. Washington F. & M. Ins. Co., 138 Mass. 572; Kahnweiler V. Phoenix Ins. Co., 57 Fed. 562; Adams v. South British & Nat. F. & M. Ins. Co., 70 Cal. 198; Caledonian Ins. Co. v. Traub, 83 Md. 524. 35 Atl. 13; Gasser v. Sun Fire Office, 42 Minn. 315; Mosness v. German American Ins. Co., 50 Minn. 341; Lesure Lumber Co. v. Mutual Fire Ins. Co., 101 Iowa, 514, 70 N. W. 761; Zalesky v. Home Ins. Co., 102 Iowa, 613, 71 N. W. 566; Van Poucke v. Netherland St. V. de P. Soc, 63 Mich. 378, 29 N. W. 863; Russell v. North American Ben. Ass'n, 116 Mich. 699, 75 N. W. 137; Campbell v. American Popular Life Ins. Co., 2 Bigelow, Life & Ace. Cas. 16; Chippewa Lumber Co. v. Phenix Ins. Co., 80 Mich. 116; Raymond v. Farmers' Mut. Fire Ins. Co., 114 Mich. 386, 72 N. W. 254; Canfield v. Greater Camp, K. of M., 87 Mich. 626, 13 L. R. A. 625; Hutchinson v. Liverpool & L. & G. Ins. Co.. 153 Mass. 143, 10 L. R. A. 558; Kinney v. Baltimore & Ohio Employes' Ass'n, 35 W. Va. 385, 15 L. R. A. 142. In Pennsylvania, provisions KERR, INS.— 39 610 ARBITRATION AND AWARD. § 206 An agreement that a right of action should not be enforced through the ordinary judicial tribunals cannot be sustained, and therefore a general covenant in a policy that all claims for damages shall be settled by arbitration would not be a bar to a suit for damages. While parties may impose as a condi- tion precedent to application to the courts that they shall first have settled the amount to be recovered by an agreed mode, they cannot entirely close the access to the courts of law. A provision in a contract to refer any specific matter of differ- ence which might arise under it, is no defense if it is merely collateral to the principal obligation. These provisions are en- tirely distinct from covenants providing for the adjustment of certain differences, or the estimate and determination of amounts or values, as preliminary to the right of recovery. In such case, the parties, by the same agreement which creates the liability and gives the right, qualify it by providing that before a right of action shall accrue, certain facts shall be determined or amounts and values be ascertained, and thus create valid conditions precedent' either in terms or by neces- sary implication. AFr. Leake states the results of the English cases as follows: "A reference to arbitration of differences arising upon a contract * * * may be agreed upon in the contract as a condition precedent to the existence of any claim or liability;" and the American courts uphold this doc- trine.^ are held to be merely executory and not enforceable, though valid if executed. Mutual Fire Ins. Co. v. Rupp, 29 Pa. St. 528; Penn Plate Glass Co. V. Spring Garden Ins. Co., 189 Pa. St. 255. ^ Leake, Contracts, 953-955; Delaware & H. Canal Co. v. Pennsyl- vania Coal Co., 50 N. Y. 266'; Chippewa Lumber Co. v. Phenix Ins. Co., 80 Mich. 116; Stephenson v. Piscataqua F. & M. Ins. Co., 54 Me. 55; Prader v. National Masonic Ace. Ass'n, 95 Iowa, 149, 63 N. W. 601; Randall v. American Fire Ins. Co., 10 Mont. 340, 24 Am. St. Rep. 50; Niagara Fire Ins. Co. v. Bishop, 154 111, 9, 45 Am. St. § 2l)6 VALIDITY OF STIPULATIO^'S FOE AKBITBATION. 611 Mutual Societies. There has been much dispute over the right of mutual or- ganizations to provide in their constitution aiid by-laws for arbitration tribunals which should decide all questions in dis- pute between the members and the societies. In Yan Poucko V. Netherland St. Vincent De Paul Soc.,^ the bv-laws in ques- tion provided for the appointment of a committee of six mem- bers called the "sick committee/' Avhose duty it should be to investigate and determine whether a member was entitled to the benefits on account of sickness, and that the decision of this committee should be final and conclusive. The court said: "This was a mutual benefit co-operative insurance so- ciety. The members stood upon an equal footing and this by-law operates upon all alike. It is reasonable that the sick committee should be invested with authority to determine ^vhether a member claiming to be sick is entitled to the benefit provided for in the by-law, and also when such benefit should mission to arbitration in such a case does not operate to limit the recovery on the policy to the v. Steiger, 109 111. 254; Niirney v. Fireman's Fund Ins. Co., 63 Mich. 633. 30 N. W. 350. =' Brock V. Dwelling House Ins. Co., 102 Mich. 583, 61 N. W. 67; Lesure Lumber Co. v. Mutual Fire Ins. Co., 101 Iowa, 514, 70 N. W. 761. ^* Whitney v. National Masonic Ace. Ass'n. 52 Minn. 378. '"Gasser v. Sun Fire Office, 42 Minn. 315; Chippewa Lumber Co. v. -^§ 207-210 EFFECT OF SLXII STIPULATIONS. 621 amount awarded by the arbitrators.^^ An agreement for ar- bitration as to the amount of loss has no effect when the policy containing it was issued after the enactment of a law making the amount stated in the policy conclusive as to the amount of liability of the insurer in case of total loss.^^ j^ Missouri, in case of total loss of the property insured, the statute makes the insurer liable for the face of the policy less any deprecia- tion of value after the issuance of the policy, and appraisers can determine only the amount of depreciation.^^ A pro- vision for arbitration in a policy covering both house and personal property is not applicable when the house is totally destroyed where the statute of the forum makes the claim for insurance on the house a liquidated demand.'^^ Loss arising from a total destniction of property insured is not included within a provision in a policy providing for arbitration only in case the property is "damaged by fire."'"^^ But arbitra- tion is sometimes necessary even in case of total loss under Phenix Ins. Co., 80 Mich. 116, 44 N. W. 1055. See, also, Rosenwald V. Phcenix Ins. Co., 50 Hun (N. Y.), 172. '"■ Oshkosh Gas Light Co. v. Germania Fire Ins. Co., 71 Wis. 454, 37 N. W. 819; Queen Ins. Co. v. Leslie, 47 Ohio St. 409, 9 L. R. A. 45; German Fire Ins. Co. v. Eddy, 36 Neb. 461, 54 N. W. 856, 19 L. R. A. 707; Seyk v. Millers' Nat. Ins. Co., 74 Wis. 67, 41 N. W. 443, 3 L. R. A. 523. '=Ampleman v. Citizens' Ins. Co., 35 Mo. App. 308; Thompson v. St. Louis Ins. Co., 43 Wis. 459. As to what destruction of property amounts to a total loss, see O'Keefe v. Liverpool & L. & G. Ins. Co.. 140 Mo. 558, 39 L. R. A. 819, 45 Cent. Law J. 373; Trustees of St. Clara Female Academy v. Northwestern Nat. Ins. Co., 98 Wis. 257, 73 N. W. 767; Royal Ins. Co. v. Mclntyre, 90 Tex. 170. 35 L. R. A. 676; Corbett V. Spring Garden Ins. Co., 155 N. Y. 389, 41 L. R. A. 318; Insurance Co. of North America v. Canada Sugar-Refining Co. (C. C. A.), 87 Fed. 491; and ante, note 31. '' Baker v. Phoenix Assur. Co., 57 Mo. App. 559. =" Phoenix Ins. Co. v. Moore (Tex. Civ. App.), 46 S. W. 1131. "Liverpool, L. & G. Ins. Co. v. Colgin (Tex. Civ. App.), 34 S. W. 291. €22 ARBITRATION AND AWARD. § 211 a valued policy where the provisions of the policy with reference to arbitration cover a case where there is a dispute as to whether or not the loss or destruction was total and leav- ing that question to be deteiinined by arbitration.^^ When Stipulations for Arbitration Become Operative. § 211. The stipulations of a policy may be absolute and self- executing, or conditional and dependent upon the right to take advantage of them being claimed by either insurer or insured. Stipulations requiring a reference or appraisal absolutely as a condition precedent to any right of action by the insured are self executing, and become operative upon the happening of the event or loss insured against.^^ The parties may waive the absence of a disagreement or other exigency which makes a reference necessary ; and they may voluntarily enter into a submission which will form a basis of a valid award. Each party must discharge the duty required of him before he can take advantage of a provision imposing a duty upon the other. Where arbitration and award are only necessary in case the parties differ or disagree as to the amount of the loss, a dif- ference or disagreement must occur before a submission can properly be demanded. If the right to an arbitration and award is given conditionally, as "when demanded," a demand must be made by the one seeking the benefit of the right. Such demand must be made according to the requirement of the policy and without unnecessary delay. Appraisal Without Disagreement. Though neither insurer nor insured can ordinarily take ad- vantage of the arbitration clause in a policy until there has been an honest and unsuccessful effort tx> agree on the amount of damage, there does not seem to be any good reason why they '"Yendel v. Western Assur. Co., 21 Misc. Rep. (N. Y.) 349. "See preceding section. § 211 WHEN STIPULATIONS BECOME OPERATIVE. 623 may not immediately after the happening of a loss waive any or all of the requirements of the policy respecting demand for submission and the form thereof, and forthwith enter into any agreement they choose looking towards a certain and immediate determination of the extent of the loss or damage. And after an insurer has joined in a submission to appraisers, it will not be heard to claim that such submission was pre- mature because made before the parties had attempted to agree. ^® An otherwise valid award is binding upon the insured as well as upon the insurer although a submission to appraisers was not a condition precedent to the commencement of an action because neither party made a Avritten demand there- for.^^ An appraisal of the value of property made by builders selected by the insured and the adjuster of the com- pany is an appraisal within the policy, and binding upon both both parties, notwithstanding there was no conference be- tween them as to the amount of the loss and no effort made to agree thereon.'"^ What Constitutes a Difference or Disagreement. The provisions of policies concerning the appointment of appraisers in case of failure of the parties to agree as to the amount of loss or damage are "per se inoperative, unless there is a real difference between the parties as to the amount of the loss and a failure to agree thereon. There is no occasion for an appraisal until the insurer and insured have met »« Bangor Sav. Bank v. Niagara Fire Iris. Co., 85 Me. 68, 20 L. R. A. 650; London. & L. Fire Ins. Co. v. Stdrrs (C. C. A.), 71 Fed. 120; Brock V. Dwelling House Ins. Co., 102 Mich. 583; Broadway Ins. Co. V. Doying, 55 N. J. Law, 569. '» Harrison v. German-American Fire Ins. Co., 67 Fed. 577; Spring- field F. & M. Ins. Co. V. Payne, 57 Kan. 291, 46 Pac. 315, 26 Ins. Law J. 46. «• London & L. Fire Ins. Co. v. Storrs (C. C. A.), 71 Fed. 120. 624r ARBITRATION AND AWARD. § 211 and made an honest, reasonable, and ineffectual attempt to agree upon and settle the extent of the damage between themselves. Until this has been done, or has been waived, or is manifestly useless from the conduct and attitude of the parties, no rights can be gained by demanding, or loss by failing to demand, an appraisal.^^ A mere general objection by the insurer to the amount claimed by the insured in his statement oi loss is not such a failure to agree as makes a case for arbitration ;^^ nor the denial of liability by the insurer because of the forfeiture *^ Hickerson v. German American Ins. Co., 96 Tenn. 193, 32 L. R. A. 172; American Fire Ins. Co. v. Stuart (Tex. Civ. App.), 38 S. W. 395; Vangindertaelen v. Phenix Ins. Co., 82 Wis. 112; Boyle v. Ham- burg-Bremen Fire Ins. Co., 169 Pa. St. 349; Moyer v. Sun Ins. Office, 176 Pa. St. 579, 35 Atl. 221; Brock v. Dwelling House Ins. Co., 102 Mich. 583, 26 L. R. A. 623. The Minnesota standard policy provides that, "in case of loss * * * and a failure of the parties to agree as to the amount of loss, it is mutually agreed that the amount of such loss shall be referred," etc. Construing this, the supreme court of Minnesota, in Fletcher v. German-American Ins. Co., 79 Minn. 337, 82 N. W. 648, said: "Giving the policy a broad and liberal construction, we in- terpret it to mean that, when the parties are unable to agree upon the amount of the loss, the question of such amount shall be sub- mitted to arbitration. Until there is some disagreement as to the amount of the loss, there is no occasion for any arbitration; there is nothing to arbitrate. In this case the proof of loss furnished de- fendant specified the amount claimed by plaintiff. Defendant made no objection thereto, and, after the lapse of sixty days, plaintiff brought this action. Defendant, having made no objection to the amount claimed by plaintiff, must be taken to have acquiesced therein; at least, it must be held that, inasmuch as no objection was made to the amount claimed, there was nothing to found an arbitra- tion upon, and none was necessary. This construction is in harmony with the objects and purposes of the law and the terms of the policy, and w^e adopt it as the most reasonable and consistent." And see Schrepfer v. Rockford Ins. Co., 77 Minn. 291, 79 N. W. 1005. " Hickerson v. German American Ins. Co., 96 Tenn. 193, 32 L. R. A. 172; Fletcher v. German American Ins. Co., 79 Minn. 337, 82 N. W. C47. § 211 WHEN STIPULATIONS BECOME OPERATIVE. 625 of the policy. ^^ But a difference and disagreement arise where the insured refuses to accept an offer made by the in- surer in full settlement of the amount of damages.^^ "WTio Must Demand the Arbitration. Where arbitration and award are in case of disagreement conditions precedent to recovery, the insured must, if a disa- gi'eement occur, demand an arbitration unless the necessity therefor is waived by the insurer. '^^ Generally speaking, un- less by the terms of the policy arbitration is a condition pre- cedent to the right to bring suit, an insurer which neglects to or refuses to take adj-antage of the provision in the policy look- ing towards arbitration as to the amount of the loss, cannot complain if the insured brings suit to compel payment without arbitration.^*^ Neither a demand for an apraisement made by a plaintiff after the bringing of a suit, nor his acquiescence after he has brought suit in a demand for an appraisement made by the defendant long before suit was brought, is a suf- ficient compliance with the conditions of the policy requiring an appraisal ''if demanded" prior to the bringing of an ac- tion.^^ In Mosness v. German-American Ins. Co.,^^ the supreme court of Minnesota held that under a policy providing that the ^^ Nelson v. Atlanta Home Ins. Co., 120 N. C. 302, 27 S. E. 38. "Pioneer Mfg. Co. v. Phoenix Assur. Co., 106 N. C. 28; Murphy v. Northern British & Mercantile Co., 61 Mo. App. 323. ** Hutchinson v. Liverpool & L. & G. Ins. Co., 153 Mass. 143, 10 L. R. A. 558; Mosness v. German-American Ins. Co., 50 Minn. 347; Ham- ilton V. Liverpool & L. & G. Ins. Co., 136 U. S. 242, 10 Sup. Ct. 945; McNees v. Southern Ins. Co., 69 Mo. App. 232. ^Gnau V. Masons' Fraternal Ace. Ass'n, 109 Mich. 527, 67 N. W. 546; Germania Fire Ins. Co. v. Frazier, 22 111. App. 327; Commer- cial Ins. Co. V. Robinson, 64 111. 265; Citizens' Ins. Co. v. Bland (Ky.), 39 S. W. 825. See ante, "Condition Precedent." " Zaleslcy v. Home Ins. Co., 102 Iowa, 613, 71 N. W. 566. *«50 Minn. 341; McNees v. Southern Ins. Co., 69 Mo. App. 232. KERR, INS.— 40 626 ARBITRATION AND AWARD. § 211 loss sliall not be payable until sixty days after notice including an award by appraisers "wben the appraisal has been re- quired," an appraisal was "required" not upon demand, but whenever the insurer and insured disagreed over the amount of loss. The supreme court of Michigan arrived at a dif- ferent conclusion in construing the standard policy of that state containing provisions almost identical with the policy involved in the Mosness case.^^ In Washington it is held that such a condition does not require the assured to demand an appraisal, but that his refusal to submit to an appraisal upon demand of the company therefor will bar his right to recovery.^^ If an appraisal is only necessary when demanded, a demand must be made before the provision for appraisal becomes operative.^ ^ When the Demand Must be Made. The right to demand an appraisal, if an appraisal be neces- sary only when "required," must be exercised within a reason- able time after the disagreement of the parties. A demand by the insurer fifty-seven days after proofs of loss have been received and retained without objection to the amount of damage claimed, is too late, where, by the terms of the policy, the amount becomes payable sixty days after the proofs of loss have been served. When a policy gives the insurer an option to take the damaged property at its appraised value or replace it within a reasonable time on giving notice " National Home B. & L. Ass'n v. Dwelling House Ins. Co., 106 Mich. 236, 64 N. "W. 21; Brock v. Dwelling House Ins. Co., 102 Mich. 583, 61 N. W. 67; Lesure Lumber Co. v. Mutual Fire Ins. Co., 101 Iowa, 514, 70 N. W. 76L; Grand Rapids Fire Ins. Co. v. Finn, 60 Ohio St 513, 54 N. E. 545. »» Davis V. Atlas Assur. Co., 16 Wash. 232, 47 Pac. 436, 885. See, also, Schrepfer v. Rockford Ins. Co., 77 Minn. 291, 79 N. W. 1005. " Zalesky v. Home Ins. Co., 102 Iowa, 613, 71 N. W. 566. § 211 WHEN STIPULATIONS BECOME OPERATIVE. 627 \\dthin thirty days after proofs of loss are sei'ved, the ap- praisal must be demanded within thirty days.^^ An action may be brought at the expiration of sixty days after the presentation of proofs of loss, when there is no dis- pute as to the amount of damage before that time and the provision is for an arbitration within sixty days after proofs are fumished.^^ A demand nearly a year after a loss occurs is too late.^^ Delay by the insured in the demanding of an arbitration, where one is necessary to his right of action, does not defeat his right afterwards to make an offer of arbitra- tion and maintain his action upon the refusal of the insurer to arbitrate, unless the insurer has been prejudiced by the delay or an arbitration has become impracticable or impossible where the insurer might itself have demanded an arbitra- tion.^^ The Form of the Demand. Any notice which fully advises the party notified of the in- tention of his adversary to insist upon a reference or appraisal according to the terms of the policy is sufficient unless the form and manner of giving notice be designated in the policy ; but when the policy specifies the form of giving a demand, and provides for an appraisal upon "the written request of either party," an arbitration is only necessary when requested in writing, and an oral request is insufficient ; and an insurer failing to avail itself of this right given by the policy in the manner stipulated therein cannot maintain the defense of no '^Zimeriski v. Ohio Farmers' Ins, Co., 91 Mich. 600, 52 N. W. 55: Brock V. Dwelling House Ins. Co., 102 Mich. 583, 61 N. W. 67; Numey V. Fireman's Fund Ins. Co., 63 Mich. 633, 30 N. W. 350. °» Hayes v. Milford Mut. Fire Ins. Co., 170 Mass. 492, 27 Ins. Law J. 459. "Davis V. Atlas Assur. Co., 16 Wash. 232, 47 Pac. 436, 885. "Schrepfer v. Rockford Ins. Co., 77 Minn, 291, 79 N. W. 1005; Mc-- Nees V. Southern Ins. Co., 69 Mo, App. 232. 628 AEBITKATION AND AWARD. § 211 award.^^ A letter to the assured from tlie adjuster of the in- surer referring to a paper including an agreement for arbitra- tion executed bj the company, and requesting the insured to sign it, and a proposal dra-^Ti in strict conformity with the provisions of the policy, constitute "a written request" for ar- bitration within the meaning of that term in a policy.^''' "Where several insurers of the same property desire an ap- praisal they must make their demands separately.^^ If two fires follow one another closely, a single demand and appraisal may be sufEcient.^^ Where, by the teitns of the policy, upon a disagreement, the insured is to deposit with the insurer money to pay for an appraisement and the insurer is to appoint the appraisers, an appraisal had Avithout notice to the insurer of the appointment of the appraisers and of the time when they are to act, is void.^° On Whom the Demand Should be Made. A demand can be served or made upon either of the parties or a duly authorized agent of either, who is empowered to act in the premises. Thus a demand may be served upon any agent of the insurer who has authority to issue policies and =' Davis V. Anchor Mut. Fire Ins. Co., 96 Iowa, 70, 64 N. W. 687; Wright V. Susquehanna Mut. Fire Ins. Co., 110 Pa. St. 29; Phoenix Ins. Co. V. Badger, 53 Wis. 283; Wallace v. German-American Ins. Co., 2 Fed. 658; Numey v. Firemans' Fund Ins. Co., 63 Mich. 633; German-American Ins. Co. v. Steiger, 109 111. 254. Compare Hutch- inson V. Liverpool & L. & G. Ins. Co., 153 Mass. 143, 10 L. R. A. 558. "Pioneer Mfg. Co. v. Phoenix Assur. Co., 106 N. C. 28; Chippewa Lumber Co. v. Phenix Ins. Co., 80 Mich. 116; Zalesky v. Home Ins. Co., 102 Iowa, 613, 71 N. W. 566. =' Connecticut Fire Ins. Co. v. Hamilton (C. C. A.), 59 Fed. 258; George Dee & Sons Co. v. Key City Fire Ins. Co., 104 Iowa, 167, 73 N. W. 595; Harrison v. German-American Fire Ins. Co., 67 Fed. 587. But see Wicking v. Citizens' Mut. Fire Ins. Co., 118 Mich. 640, IT N. W. 277. "' Mechanics' Ins. Co. v. Hodge, 149 111. 305, 46 111. App. 479. *° Schreiber v. German-American Hail Ins. Co., 43 Minn. 368. § 212 SUBMISSION. 629 collect premiums for it.^^ But the insurer is not affected by service on one who is not commissioned by it where the policy provides that no person shall be considered as an agent of the company except one holding a commission from it.^^ And a notice served upon a treasurer, who has at the time prac- tically entire management of the business, and knowledge of the meeting and proceedings of the appraisers, is binding iipon the corporation which he represents.^^ Submission. ' § 212. Neither party is under any obligation to make any agreement for submission except the one provided for in the policy. The parties may waive or modify the stipulations of the pol- icy and can agree upon a different form of submission, which when executed will support a valid award. An executed submission according to the terms of the con- tract is irrevocable. A voluntary submission or common-law submission is revocable at least until after the award has been raade. The submission of a disputed matter to arbitrators is usually evidenced by a written agi'eement describing the matters involved in the arbitration, the names or means of ascertaining the arbitrators, the powers and duties of the arbitrators, and in a general way the methods to be adopted for the conduct of the proceedings and the time and manner of rendering an award. If the submission is in- voluntary, it must be according to the tenns of the policy ; but an appraisement of the amount of a loss made by per- sons appointed informally by the insurer and insured is binding although the proceedings leading up to the ap- pointment and appraisal are not in strict accordance with " Phenix Ins. Co. v. Stocks, 149 111. 319. "■ Mechanics' Ins. Co. v. Hodge, 46 111. App. 479. "'Remington Paper Co. v. London Assur. Corp., 12 App. Div. 218, 43 N, Y. Supp. 431. 630 AKBITKATION AND AWARD. § 212 the requirements of the policy, since the parties are at liberty to waive such requirements, and make any la-wful submission which is satisfactory to themselves.®* The in- sured has the right to demand that if an appraisement of dam- ages provided for by the policy is made, it shall embrace all property claimed by him to be covered by the policy, even though there be a dispute as to what property is actually in- sured.*^^ Where the policy contains a provision for the sub- mission of all differences as to the amount of loss, the insured can abandon all claims for insurance on specific articles and demand an arbitration as to the amount of damage on other insured property.®^ A submission to arbitration and an award pursuant thereto according to the conditions of a policy of insurance are not covered by nor subject to the statutory regulations for arbitration unless specially included therein.®^ A voluntary submission by a member of a mutual benefit society of his claim for sick benefits to appellate tribunals appointed by the constitution and by-laws of the organization for that purpose, is in the nature of a submission to an arbitration, and a de- cision pursuant thereto is in the nature of an award and 'binding upon him in the absence of proof of mistake, fraud or misconduct on the part of the tribunal. In such case there is an implied agreement on the part of the member to be bound by the judgment or award rendered, and it is not neces- sary that there should be any express agreement to abide by the award made, for the law implies such an agreement from the very fact of submission.®^ ** London & L. Fire Ins. Co. v. Storrs (C. C. A.), 71 Fed. 120. See notes 38-42. •"•" George Dee & Sons Co. v. Key City Fire Ins. Co., 104 Iowa, 167, 73 N. W. 594. •^ Pioneer Mfg. Co. v. Phoenix Assur. Co., 110 N. C. 176. "Enright v. Montauk Fire Ins. Co., 15 N. Y. Supp. 893. •» Robinson v. Templar Lodge, 97 Cal. 62, 31 Pac. 609. § 212 SUBMISSION. 631 Revocability, . A compulsory submission to arbitration according to tbe terms of the policy is irrevocable after it is made, but a volun- tary or common-law submission is ordinarily revocable, at least until after the rendition of the award.®^ Joint Submission. A submission to arbitration may be made jointly by the insured and several insurance companies where the contro- versy of each is the same and where the policies are all alike except in the names of the companies and the submission is such as provided for in the policy. '^° Otherwise where the policies differ and there are separate and distinct contro- versies.'''^ Two Fires, One Loss. Where a loss results by reason of successive fires happening within a short time of each other, the recovery to be had on a policy by reason of such fires is a single sum, there being but one loss. Where successive fires have occurred within a short space of time and the loss has not been in any maimer adjusted, the provisions of the policy requiring differences to be submitted to arbitration do not contemplate a submission of the different items to different arbitrators; the loss to be detei-mined is the loss sustained by the assured under the terms of the policy. Whether tliis rule would apply where a ™ Citizens' Ins. Co. v. Coit, 12 Ind. App. 161, 39 N. E. 766; Commer- cial Union Assur. Co. v. Hocking, 115 Pa. St. 407; Soars v. Home Ins. Co., 140 Mass. 343; post, note 133; Chippewa Lumber Co. v. Phenix Ins. Co., 80 Mich. 116. "Wicking v. Citizens' Mut. Fire Ins, Co., 118 Mich. 640, 77 N. W. 275. " Connecticut Fire Ins. Co. v. Hamilton, 8 C. C. A. 114, 59 Fed. 262; Hamilton v. Phoenix Ins. Co., 9 C. C. A. 530. 61 Fed. 385; Harrison v. German-American Fire Ins. Co., 67 Fed. 585. 632 ARBITRATION AND AWARD. § 213 disagreement had occuiTed and an arbitration had been de- manded after the first but prior to the second fire, quaere."^^ Selection of Abitrators and Umpire. § 213. The referees or arbitrators are sometimes designated in the contract, but the more common practice is simply to pro- vide suitable machinery to secure their selection. The appraisers and the umpire must be competent and dis- interested. They act in a quasi-judicial capacity, and must be so situated with relation to the parties and the matters in dispute as to be able to deal fairly and impartially without bias or prejudice. There is no objection to parties agreeing on the referee or arbitrators in the pplicy ; but the conditions more usually provide for the selection only when the occasion arises for referees. In Pennsylvania provisions in policies requiring arbitration are merely executory, and are not enforceable or binding unless the arbitrators are mentioned in the policy it- self. '^^ A provision that the amount of compensation to be paid in a given case should be referred to the decision of one named by the secretary of the Master of the Rolls for the time being and that his award shall be final, has been sustained.'^^ And a condition that a life insurance policy will be paid only if in the opinion of the surgeon-in-chief of the company the party assured should not die of intemperance, nor by any disease aggTavated or caused thereby, is valid and binding on the parties ; and its performance must be pleaded and proved or non-performance properly accounted for. But if such surgeon be a stockholder of the company and his dividends are to be affected by the payment of the claims, and these « Mechanics' Ins. Co. v. Hodge, 46 111. App. 479, 149 III. 305. "Commercial Union Assur. Co. v. Hocking, 115 Pa. St. 407; Mut- ual Fire Ins. Co. v. Rupp, 29 Pa. St. 528; Penn Plate Glass Co. v. Spring Garden Ins. Co., 189 Pa. St. 255. '* Braunstein v. Accidental Death Ins. Co., 1 Best & S. 783. § 213 SELECTION OF AKBITKATOKS AND UMPIRE. 633 facts were concealed from the insured at the time the policy was made and accepted, this may constitute a sufficient excuse for the non-performance.'''^ Provisions are in common use requiring the certificate of «ome magistrate or notary public to be appended to the state- ment of facts contained in the proofs of loss.'^'^ They have been held invalid where they attempt to make the rights of the ''Read v. State Ins, Co., 103 Iowa, 307, 72 N. W. 665; Westfield Cigar Co. v. Insurance Co. of North America, 169 Mass. 382, 47 N. E. 1026; George Dee & Sons Co. v. Key City Fire Ins. Co., 104 Iowa, 167, 73 N. W. 594. '"» Yost V. McKee, 179 Pa. St. 381 ; Hickerson v. German American Ins. Co., 96 Tenn. 193, 32 L. R. A. 172; Hamberg v. St. Paul F. & M. Ins. Co., 68 Minn. 335, 71 N. W. 388; Wainer v. Milford Mut. Fire Ins. Co., 153 Mass. 335, 11 L. R. A. 598; Stephens v. Union Assur. Soc, 16 Utah, 22, 50 Pac. 626. The rejection by an insurer of a claim for loss waives a clause in the policy providing that, if the assured does not within a given time demand an arbitration of his claim, he will be bound by the award of the auditors of the company, and leaves the assured at liberty to sue. Denton v. Farmers' Mut. Fire Ins. Co., 120 Mich. 690, 19 N. W. 929. "^ Douville v. Farmers' Mut. Fire Ins. Co., 113 Mich. 158. •"' Hickerson v. German American Ins. Co., 96 Tenn. 193, 32 L. R. A. 172. '"^Gnau V. Masons' Fraternal Ace. Ass'n, 109 Mich. 527, 67 N. W. 546; Hamberg v. St. Paul F. & M. Ins. Co., 68 Minn. 335, 71 N. W. 388. 670 ARBITEATION AND AWARD. § 223 submit to an appraisal according to the conditions of the policy nnless certain additional duties were imposed v.]X)n the arbi- trators.-'^^ But to constitute a waiver, a denial of liability must be made before the rights of the insured to demand an arbitra- tion cease to exist; and a denial of all liability after the in- sured has refused to sigTi a submission to arbitration is no Avaiver.'^^ Neither the failure of the insurer to admit liability, nor its demand for arbitration, amounts to a denial of liability which waives arbitration.^^^ And a denial of lia- bility after the amount of the loss has been ascertained by ap- praisement, does not waive the right of the insurer to insist that the appraisement is conclusive as to the amount of loss where there is an express stipulation that the appraisal shall not waive any of the conditions of the policy. -'^^ Same — Denting Liability in Pleadingt. § 223. An insurer does not waive any rights by denying lia- bility in its answer when sued. An insurer is and ought to be permitted to plead and prove all the defenses it may have to any action brought against it without w^aiving any rights by so doing ; and a defendant in- surer does not, by denying in its answer all liability under the policy because of fraud of the insured or because of his failure to comply with the terms of the policy or by denying liability on any other gTound, waive any other rights secured to it by the policy, or the defense of no arbitration. Speaking of "* Hamilton v. Liverpool & L. & G. Ins. Co., 136 U. S. 242, 10 Sup. Ct 945; Summerfield v. North British & M. Ins.* Co., 62 Fed. 249. "= Pioneer Mfg. Co. v. Phoenix Assur. Co., 106 N. C. 28. See §§ 199- 200, "Denial of Liability." "« Western Assur. Co. v. Hall, 120 Ala. 547, 24 So. 936. '" American Cent. Ins. Co, v. Bass, 90 Tex. 380, 38 S, W. 1119. \ ■§ 223 DENYING LIABILITY IN PLEADING. 671 this matter a federal court has said: "This denial of liability in toto appears for the first time in the answer of the defend- ant in this suit. Up to that time the company had offered to pay its proportion of what it claimed was the actual loss of the insured. * -5^ * Jt [the company] might waive any objec- tion to the cause of the fire and offer to settle to avojd litiga- tion, but this would not affect its right when sued to set up in its answer any legal defense it had to the action."^^^ In Nebraska and Louisiana a contrary doctrine prevails, but the ■courts of these states seem to have overlooked the difference between the voluntary denial of liability by an insurer when an appraisal is demanded and an involuntary announcement of its legal position after suit has been brought. ^^^ Illustrations — No Waiver. The pendency of negotiations for a compromise does not excuse a party from compliance with a demand that arbitra- tion proceedings go on.-^'' The mere silence of .the insurance company is not a waiver of the arbitration clause, where, after recei'V'ing proofs of loss from plaintiff, the company wrote the latter that it disputed the amount, and demanded an estima- tion under the contract ;^'^^ nor is the action of an adjuster of the company in examining the scene of a fire and the extent "'Kahnweiler v. Phoenix Ins. Co., 57 Fed. 562; Yendel v. Western Assur. Co., 21 Misc. Rep. (N. Y.) 349; Balmford v. Grand Lodge, A. O. U. W., 19 Misc. Rep. (N. Y.) 1; Murphy v. Northern British & Mercantile Co., 61 Mo. App. 323; La Plant v. Firemens' Ins. Co.. 68 Minn. 82; Employers' Liability Assur. Corp. v. Rochelle, 13 Tex. Civ. App. 232, 35 S. W. 869. "'Lewis Baillie & Co. v. Western Assur. Co., 49 La. Ann. 658; Omaha Fire Ins. Co. v. Dierks, 43 Neb. 473, 61 N. W. 743. '™ Powers Dry Good« Co. v. Imperial Fire Ins. Co., 48 Minn. 380. ='"' Chippewa Lumber Co, v. Phenix Ins. Co., 80 Mich, 116, 44 N. W. 1055. 672 ARBITRATION AND AWARD. § 225 of the loss.^°^ Tlie presentation of a builder's affidavit as to the amount of loss and the waiver by the insurer of formal proofs of loss do not, either separately or together, constitute a demand for an appraisal ; nor does the failure of the insurer to act thereon give a right of action on a policy which pro- vides for an award or for appointment of arbitrators at the written request of either party before bringing action thereon. ^*^^ ^'" Scottish U. & N, Ins. Co. v. Clancy, 83 Tex. 113. ""^ Hutchinson v. Liverpool & L. & G. Ins. Co., 153 Mass. 143, 10 L. R. A. 558. CHAPTER XVI. PROCEEDS OF POLICY. § 224-226. Payment. 227-230. Assignment. 231. Right to Change Beneficiary. 232. Rights of Creditors, Payment. § 224. The proceeds of a policy of insurance are primarily payable (upon a proper showing) to the designated obligee. § 225. The effect of a "loss payable" clause in a policy of fire insurance is to make an appointment (either conditional or absolute) of the one named as payable of the whole or a part of the proceeds. § 226. The insurable interests of an owner and mortgagee are separate and distinct. A mortgagee has not, by mere virtue of his holding a lien upon insured property, any right in or to the proceeds of the policy of insurance taken out by an owner of that property for his own protection. Fire. A contract of fire insurance is essentially a contract for the indemnity of the insured. Its only legitimate purpose is to ' protect him against the damage which may be done to his property through or by fire. The extent and liability of the insurer, and the conditions and limitations of the risk, are fixed by the contract When a loss or damage occurs to the insured property through, by, or on account of fire, and under the circumstances, and within the time and location described in the contract, which is in full force and effect; and when the insured, or one substituted in his place, and to his rights KERR, INS.— 43 674: PROCEEDS OF POLICY. g§ 224-226 under tlie contract witli the consent of the insurer, thereby suffers a damage from which the insurer has undertaken to save him, the insured is entitled to recover of the insurer the amount of his actual loss or damage, without distinction be- tween a partial and a total loss, not exceeding, however, the limit of liability fixed by the contract. The actual loss sus- tained by the insured is the full measure of the indemnity to which he is entitled. As a condition precedent to any re- covery, therefore, the insured must show, first, that he had at some time during the running of the risk, and at the time of the loss, an insurable interest in the property insured ; second, that the insurer has contracted to indemnify him in whole or in part, against the loss and damage ; and third, that damage has occurred to the property insured, whereby he suffered pecuniary loss.-^ An insurable interest does not imply absolute ownership. It may be equitable or legal, vested or contingent.^ A bailee, or commission merchant, or person holding goods in trust, may insure them in his own name, and recover for their entire value, holding in trust for the owners, the excess over his own interest,^ The amount of recovery is not limited to the amount of loss sustained by the individual interest of the assured, but includes damage to all interests covered by the ^Post V. Hampshire Mut. Fire Ins. Co., 12 Mete. (Mass.) 555; Illinois Mut. Fire Ins. Co. v. Andes Ins. Co., 67 111. 362; Glendale Woolen Co. v. Protection Ins. Co., 21 Conn. 19, 54 Am. Dec. 311; Morrison's Adm'r v. Tennessee M. & F. Ins. Co., 18 Mo. 262, 59 Am. Dec. 299; Allen v. Home Ins. Co. (Cal.), 65 Pac. 138, 30 Ins. Law J. 711. ^ See ante, c. 9, "Insurable Interest." 'California Ins. Co. v. Union Compress Co., 133 U. S. 387; Pitts- burgh Storage Co. v. Scottish U. & N. Ins. Co., 168 Pa. St. 522, 32 Atl. 58; Hope Oil M. C. & M. Co. v. Phoenix Assur. Co., 74 Miss. 320, 21 So. 132; Ferguson v. Pekin Plow Co., 141 Mo. 161, 42 S. W. 711; Home Ins. Co. v. Peoria & P. U. Ry. Co., 178 111. 64, 52 N. E. 862. §§ 224-226 PAYMENT. 675 policy, so far as tliey are represented by liim, "whether as his own or by the precedent authority or subsequent ratification of others,^ A policy in favor of a supposed corporation, Avhicli was not legally organized, is enforceable.'^ Where the policy agrees to maJ^e good to the insured, his executors, ad- ministrators, or assigns, all loss or damage, after the death of the assured, the administrator or executor, as the case may be, is the proper party to bring suit.^ The phrase "estate of A. B. deceased," has been held sufficient designation of an insured so as to extend the protection of the insurance to those beneficially interested in the estate,'' but this is doubtful law. The contract must be mutually binding upon parties capable in law of contracting. This an "estate" is unable to do.^^ It has been held that, in the absence of fraud or mistake, imless otherwise provided by the contract of insurance, if the insured has some insurable interest in the property covered by the contract, the whole amount of damages to the property, not exceeding that named in the policy, is recoverable by him, if the damages reached that sum, or if, by the contract itself, and the law governing the subject, the face value of the con- tract must be taken as liquidated damages.^ During the year of redemption the mortgagoi: is entitled to recover the whole * Trade Ins. Co. v. Barracliff, 45 N. J. Law, 543; Clement v. Brit- ish American Assur. Co., 141 Mass. 298. ^ Holbrook v. St. Paul F. & M. Ins. Co., 25 Minn. 229. «Germania Fire Ins. Co. v. Curran, 8 Kan. 9; Appeal of Nichols, 128 Pa. St. 428, 5 L. R. A. 597; Savage v. Howard Ins. Co., 52 N. Y. 502. ' Phoenix Ins. Co. v. Hancock, 123 Cal. 222, 55 Pac. 905. »» Kenaston v. Lorig, 81 Minn. 454, 84 N. W. 323. « Andes Ins. Co. v. Fish, 71 111. 620; Trade Ins. Co. v. Barracliff, 45 N. J. Law, 543; Trustees of St. Clara Female Academy v. North- western Nat. Ins. Co., 98 Wis. 257, 73 N. W. 770; Clement v. British American Assur. Co., 141 Mass. 29&, 670 PROCEEDS OF POLICY. §§ 224-22& amount of damage, up to tlie amount insured, irrespective of the value of his redeemable interest.^ A tenant for life of insured premises may recover their full value to the extent of the sum for vrhich they were insured by him, and is not accountable to the remaindennan for any portion thereof. ^^ A policy in the name of A, on account of whom it may con- cern, or with other equivalent terms, will enure to the benefit of the party for whom it was intended by A, provided he, at the time of effecting the insurance, had the requisite authority so to do from such party, or the latter subsequently ratified the act; and extrinsic evidence is admissible to show who is the real party concerned. ^^ Loss Payable Clause. A policy of insurance, issued to the owner of goods, with the- provision, "loss, if any, payable to Jones, as his interest may appear," does not constitute a contract between the company and Jones, by which the separate interest of the latter in the property is insured. The legal effect of such a clause is to- entitle him to receive, to the extent of his interest, the amoimt due from the insurer on account of the loss. The right of the appointee is not an independent right. He can only re-, cover when the insured himself is entitled to recover, and is bound by any acts of forfeiture of the insured. ^^ »Buck V. Phoenix Ins. Co., 76 Me. 586; Kane v. Hibernia Mut. Fire- Ins. Co., 38 N. J. Law, 441, As to rights of purchaser of equity or sheriff's certificate, see Carlson v. Presbyterian Board of Relief, 67 Minn. 437; Cushing v. Thompson, 34 Me. 496. "Harrison v. Pepper, 166 Mass. 288. See, also, "Welsh v. London^ Assur. Corp., 151 Pa. St. 607, 31 Am. St. Rep. 786; Western Assur. Co. V. Stoddard, 88 Ala. 606; Andes Ins. Co. v. Fish, 71 111. 620; Green v. Green, 50 S. C. 514, 46 L. R. A. 525, 27 S. E. 952. "Fire Ins. Ass'n v. Merchants' & Miners' Transp. Co., 66 Md. 339; Hooper v. Robinson. 98 U. S. 528; Sturm v. Boker, 150 U. S. 312. "Wunderlich v. Palatine Fire Ins. Co., 104 Wis. 395, 80 N. W. 471: §§ 22i-226 PAYMENT. 67T Rights of Mortgagor and Mortgagee. A moiigagor and a mortgagee may each separately insure his own distinct interest in mortgaged property. If the mort- gagee insures on his own account it is an insurance of his debt, and upon payment of his debt his insurance ceases. If insurance is effected by the mortgagor on his o^^ti account, he will, in case of loss, be entitled to recover the full amount, not exceeding the insurance, since the whole loss is his own.^'^ The mortgagee is not entitled to the proceeds of a policy taken out by the mortgagor or owner of the equity of redemp- tion, in his o^\ai name, in the absence of any contract that the property shall be kept insured for the benefit of the mort- gagee. But a mortgagee is entitled to an equitable lien on the proceeds of a policy obtained by the mortgagor, v/here the mortgage contains a covenant that the mortgagor will insure for the benefit of the mortgagee, or where the mortgagor con- tracted to insure for the benefit of the mortgagee, or where the policy is payable to the mortgagee as his interest may ap- pear.^'* The mortgagor is not entitled to the benefit of any insurance taken out by the mortgagee for himself. ^^ Ermentrout v. American Fire Ins. Co., 60 Minn. 418 (this case dis- tinguishes between "loss payable to" and "loss payable to — as inter- est may appear"). Bates v. Equitable Ins. Co., 10 Wall. (U. S.) 33; Hathaway v. Orient Ins. Co., 134 N. Y. 409, 17 L. R. A. 514; Hock- ing V. Virginia F. & M. Ins. Co., 99 Tenn, 729, 39 L. R. A. 148, 42 S. W. 451; Scania Ins. Co. v. Johnson, 22 Colo. 476, 25 Ins. Law J. 525, 45 Pac. 431; Chandos v. American Fire Ins. Co., 84 Wis. 184, 54 N. W. 392. "Carpenter v. Providence W. Ins. Co., 16 Pet. (U. S.) 495. ''Chipman v. Carroll, 53 Kan. 163; Carpenter v. Providence W. Ins. Co., 16 Pet. (U. S.) 495; Hall v. Philadelphia Fire Ass'n, 64 N. H. 405; Reid v. McCrum, 91 N. Y. 412; Wheeler v. Factors' & Traders' Ins. Co., 101 U. S. 439; Cromwell v. Brooklyn Fire Ins. Co., 44 N. Y. 42. '=*Ely V. Ely, 80 111. 532. See, also, Grange Mill Co. v. Western Assur. Co., 118 111. 396; Ames v. Richardson, 29 Minn. 330; Ridley 678 PROCEEDS OF TOLICY. §§ 22-l-22(> ITnion Mortgage Clause — Standard Policies. The insertion in a standard l)olicj, issued to an owner o£ property and insuring his interest, of the clause known as the "union mortgage clause," whereby loss, if any, is payable to a mortgagee named "as his interest may appear," with a proviso that the mortgagee's interest shall not be invalidated by any act or neglect of the OAvner, is sometimes held to have the effect of making the designated mortgagee a party to the contract, at least to the extent of his insurable interest. -^^ But this is not the law. In such cases the contract is with the mortgagor and for the insurance of his interest. The owner is still the insured and the insurance is upon his property and not on the interest of the mortgagee. The latter is only con-, ditionally designated to receive, to the extent of his interest if any is made to appear, the proceeds of the insurance, if any, due under the contract between the OAvner and the insurer ; and the only proper function of this clause is to estop the in- surer from asserting as against such mortgagee certain causes of forfeiture which might be available in defense of an action brought by the owner. A contract made in statutory fonn ought not to be interpreted in favor of either party. ^^^ V. Ennis, 70 Ala. 463; Billings v. German Ins. Co., 34 Neb. 502, 52 N. W. 397; Heins v. Wicke, 102 Iowa, 396, 71 N. W. 345; Phenix Ins. Co. V. Omaha Loan & Trust Co., 41 Neb. 834, 25 L. R. A. 679; Wilcox V. Allen, 36 Mich. 160. And the mortgagee may maintain action in his own name: Hartford Fire Ins. Co. v. Olcott, 97 111. 449; Hast- ings V. Westchester Fire Ins. Co., 73 N. Y, 141. '^Eddy V. London Assur. Corp., 143 N. Y. 311, 25 L. R. A. 686; Syndicate Ins. Co. v. Bohn (C. C. A.), 27 L. R. A. 614, 65 Fed. 165: Phenix Ins. Co. v. Omaha Loan & Trust Co., 41 Neb. 834; McKee v. Susquehanna Mut. Fire Ins. Co., 135 Pa. St. 544; National Bank of D. O. Mills & Co. V. Union Ins. Co., 88 Cal. 497. "» Ermentrout v. American Fire Ins, Co., 60 Minn. 420; Maxcy v. New Hampshire Fire Ins. Co., 54 Minn. 275; Chandos v. American Fire Ins. Co., 84 Wis. 184, 19 L. R. A. 321; Whitney v. Burkhardt, 60 N. E. 1; cases in note 12, ante. §§ 22J:-226 PAYMENT. 679 Life, A life insTirance policy will be construed as far as possible in the nature of a will, and the courts will, as far as possible, construe it so as to give the proceeds of the policy to the party or class evidently intended by the parties to be designated as the payees or beneficiaries.^"^ The beneficiary of a policy has, upon its issuance, in the absence of any reservation to the con- trary, an absolute and vested right in it, and to its proceeds, and of this right he cannot be divested without his assent. ^^ A joint tenancy is created in the beneficiaries, and where the proceeds, without any direction for division, are made pay- able to two persons named, on the death of one of them during the life of the insured, the other takes the whole amount of the benefit. ^^ One who has received the proceeds of a life insurance policy made payable to her, on her express agreement to hold it as trustee, cannot refuse to pay the money to the beneficiaries agreed upon, on the ground that they have no insurable interest in the life insured. 2<^ Where an association, in the absence of fraud, voluntarily issues a certificate, in which a beneficiary is designated by name, the beneficiary not being expressly prohibited from l>eing so named, and there being no question of public policy involved, and thereafter, for a term of years, collects and receives as- sessments from the member, it will not be allowed to defeat a recovery on the certificate on the ground that the beneficiary could not be named as such, and that the certificate was ultra vires.^^ When a person effects insurance on his own life, " Chartrand v. Brace, 16 Colo. 19, 12 L. R. A. 209. "Allis V. Ware, 28 Minn. 166. See post, "Right to Change Bene- ficiary;" Gould V. Emerson, 99 Mass. 154. ^^ Farr v. Grand Lodge, A. 0. U. W., 83 Wis. 446. =° Hurd V. Doty, 86 Wis. 1. "Bloomington Mut. Ben. Ass'n v. Blue, 120 111. 121, 11 N. E. 331; 680 PROCEEDS OF roLicY. §§ 224—226 and designates another as payee in the policy, -witliout any fraud being practiced upon the insurer, the person named may maintain an action upon the policy without showing an insur- able interest in the life of the insured. ^^ No one except the insurer can tai:e advantage of the fact that the payee named in the policy is not within the class which, by the constitution of the insurer, is entitled to take the benefit. ^^ A creditor has an insurable interest in the life of his debtor, and may in- sure it in an amount proportionate to the amount of the debt, and the expense of keeping the policy alive. But the amount of the policy must not be so great as to make the transaction a speculative or wagering one.^* A recovery may be had although the statute of limitation has run against the debt since the insurance was effected. ^^ A life policy, originally valid, does not cease to be so by the cessation of the payee's interest in the life insured. Thus a wife may recover upon a policy on the life of one who was her husband when it was issued, though she be afterwards divorced from him;^^ unless the contract provides to the contrary. ^^ A policy of insurance procured by a man in favor of a woman Gruber v. Grand Lodge, A. O. U. W., 79 Minn. 59, 81 N. W. 743; Gib- son V. Imperial Council, O. of U. F., 168 Mass. 391, 47 N. E. 101. "Pacific Mut. Life Ins. Co. v. Williams, 79 Tex. 633; Vivar v. Su- preme Lodge, K. of P., 52 N. J. Law, 455; Kentucky L. & A. Ins. Co. V. Hamilton (C. C. A.), 63 Fed. 93; Hill v. United Life Ins. Ass'n, 154 Pa. St. 29; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 38L » Johnson v. Knights of Honor, 53 Ark. 255, 8 L. R. A. 732. "Ulrich V. Reinoehl, 143 Pa. St. 238, 13 L. R. A. 433; Rittler v. Smith, 70 Md. 261, 2 L. R. A. 844; Grant's Adm'rs v. Kline, 115 Pa. St. 618. "Rawls V. American Life Ins. Co., 36 Barb. (N. Y.) 357. See ante, c. 9, "Insurable Interest." =° Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457. " Tyler v. Odd Fellows Mut. Relief Ass'n, 145 Mass. 134, 13 N. B. 360. f§ 224-226 PAYMENT. 681 living with him as his wife, and described in the policy as such, is payable to her instead of to his legal. wife. ^^ All the beneficiaries share equally in a policy of insurance payable to the widow and children of the insured. ^^ A gi-andchild by a deceased child does not share in- the proceeds of a policy for the benefit of the widow and the surviving children.^" A posthumous child has no share in a policy payable to desig- nated children of the insured.^ ^ One whose life is insured for the benefit of his wife and children by a tontine policy which agi-ees to pay to them as "the assured," has neither the legal title to the policy, nor any right as trustee entitling him to its benefits at maturity, although he has always had pos- session and control of the policy, and paid the premiums, and the beneficiaries did not know of the existence of the insur- ance.^2 A policy payable to the wife of the insured, with a proviso that in case of her death before that of her husband It should be payable to her children, vests an interest in the ■children, which cannot be destroyed by the assignment of the policy by the husband and wife.'^^ A policy payable to a designated person, or her children or their guardian in case -of her death before that of the assured, belongs to her gi-and- <3hildren if her children die before the policy becomes pay- able.^^ If payable to the wife of the insured upon his death, and in case of her death to his children, the right to the policy vests in her if she survives him, and the proceeds bo- ^ Overbeck v. Overbeck, 155 Pa. St. 5. See, also, Watson v. Cen- tennial Mut. Life Ass'n, 21 Fed. 698; Story v. Williamsburgh Mut. Ben. Ass'n, 95 N. Y. 476; Bolton v. Bolton, 73 Me. 299. '» Taylor v. Hill, 86 Wis. 99, 56 N. W. 738. '" Small V. Jose, 86 Me. 120. "" Spry V. Williams, 82 Iowa, 61, 10 L. R. A. 863. »^New York Life Ins. Co. v. Ireland (Tex.), 14 L. R. A. 278. 5^ Brown's Appeal, 125 Pa. St. 303. "In re Conrad's Estate, 89 Iowa, 396, 56 N. W. 535; Walsb v, Mut- tial Life Ins. Co., 133 N. Y. 408. 682 PROCEEDS OF POLICY. §§ 224-226' come a part of lier estate, thougli slie died before collecting the same.^^ The term "children of the insured" includes offspring hy different wives.^^ The word "heirs," used in a life insur- ance policy as descriptive of those entitled to the proceedsy where there is no context to modify or limit the ordinar)'' signification of the word, means the parties who are by law entitled to the undevised property of the deceased.^"^ The proceeds of a policy of insurance belong to the beneficiaries, and not to the estate of the deceased, when the policy is pay- able to the heirs at law of the insured.^^ A policy payable to the "legal representatives" of the insured, belongs to his- heirs or next of kin, rather than to his executors or admin- istrators.^^ The proceeds of a policy payable to one's exec- "Chartrand v. Brace, 16 Colo. 19, 12 L. R. A. 209. See, also, on construction of rights of wife and children, Hooker v. Sugg, 102 N. C. 115, 3 L. R. A. 217; Garner v. Germania Life Ins. Co., 110 N. Y. 266, 1 L. R. A. 256; Hoffman v. Hoke. 122 Pa. St. 377, 1 L. R. A. 229; Ricker v. Charter Oak Life Ins. Co., 27 Minn. 193. ^« Koehler v. Centennial Mut. Life Ins. Co., 66 Iowa, 325. But only children common to both the assured and his designated wife are re- ferred to in a policy payable to the wife and their children. Evans V. Opperman, 76 Tex. 293. See, also, as to "children," Connecticut Mut. Life Ins. Co. v. Baldwin, 15 R. I. 106; Stowe v. Phinney, 78 Me. 244; McDermott v. Centennial Mut. Life Ass'n, 24 Mo. App. 73; Felix V. Grand Lodge, A. 0. U. W., 31 Kan. 81; Covenant Mut. Ben. Ass'n V. Hoffman, 110 111. 603; Conigland v. Smith, 79 N. C. 303; Lockwood V. Bishop, 51 How. Prac. (N. Y.) 223; Stigler's Ex'r v. Stigler, 77 Va. 163. ^■Gauch v. St. Louis Mut. Life Ins. Co., 88 111. 251; Hubbard v. Turner, 93 Ga. 752; Johnson v. Knights of Honor, 53 Ark. 255, 8 L- R. A. 732; Mullen v. Reed, 64 Conn. 240, 24 L. R, A. 664; Lyons v. Yerex, 100 Mich. 214, 58 N. W. 1112. ''Northwestern Masonic Aid Ass'n v. Jones, 154 Pa. St. 99; Mullen V. Reed, 64 Conn. 240, 24 L. R. A. 664; Cutchin v. Johnston, 120 N. C. 51, 26 S. E. 698. As to "legal heirs," see Brown v. Iowa Legion of Honor, 107 Iowa, 439, 78 N. W. 73. "Schultz V. Citizens' Mut. Life Ins. Co., 59 Minn. 308, 61 N. W. §§ 224-226 PAYMENT. 683 iitors, administrators, or assigns, may be disposed of by -will, as they fomi a part of bis estate.^" Where tbe express pur- pose of a beneficial association is to secure moneys to tbe family or heirs of tbe insured, upon his death, and a policy is issued payable to the wife of the insured, and her heirs, ad- ministrators, or assigns, and she dies before the insured, leaving no children, the heirs of the husband become entitled to the benefits, and not the heirs of the wife.^^ Where a policy on a father's life is payable to a trustee, in trust for a minor child, the proceeds belong to the tnistee, and not to the estate of the assured.^^ ^ person has an insurable interest in his o^^-n life, and can insure it for the benefit of his heirs, or even for a stranger, and his executor cannot recover the proceeds of a policy procured by the insured himself, and payable to designated parties who did not hav€ an insurable interest.'*^ No Valid Designation of a Beneficiary Who Can Receive the Proceeds. , It sometimes happens, especially in the case of the issuance of certificates in fraternal or benevolent organizations, that there is no sufficient designation of a payee or beneficiary in the contract, or that the one designated is for some reason prohibited from collecting the moneys due on the certificate at maturity. The desigiiation of the beneficiary in the certifi- cate of a mutual benefit society is not always essential. It is a formality which neither goes to the substance of the contract 331. See, also, Sulz v. Mutual Reserve Fund Life Ass'n, 145 N. Y. 563, 28 L. R. A. 379; Griswold v. Sawyer, 125 N. Y. 411. ^McCauley's Appeal, 93 Pa. St. 102; Kerman v. Howard, 23 Wis.' 108; Williams v. Corson (Tenn.), 5 Bigelow, Life & Ace. Rep. 524. " Michigan Mut. Ben. Ass'n v. Rolfe, 76 Mich. 146, 42 N. W. 1094. « Cables v. Prescott, 67 Me. 582. " Northwestern Masonic Aid Ass'n v. Jones, 154 Pa. St. 99, 26 Atl. 253. 68-1 PKOCEEDS OF POLICY. §§ 224-226 of membersliip, nor affects its express object. It maj be waived, and if this is done those who might prove to be the heirs or legatees of the member at his death, cannot be heard to object because they have- no vested right whatever in the benefit during the lifetime of the member. ' A verbal designation of the beneficiary, made by the mem- ber after issuance of a certificate without any desigTiation, may be accepted by the society as sufficient, and will be con- sidered as an original designation, and not as a change of bene- ficiaries.^'* Unless the policy points out to whom the insur- ance money shall be paid in case the beneficiary die before the insured, the appointment of the beneficiary is revoked by his death. ■^^ It has been held that the proceeds of a policy, pay- able to the devisees of a member of a benevolent society, did not, upon the death of the member, form any part of his estate, nor are they recoverable by his executor or administrator ;'*^ and that where a policy, issued upon the life of a woman, is made payable to her children, and she dies before any chil- dren are bom, her executor cannot maintain an action at law for the amount of the insurance, ^'^ But in the case of New- man V. Covenant Mut. Ins. Ass'n,^^ it is held that where a certificate was made payable to "the devisees of (the member), as designated in his last will and testament," and the member made no will, that the right to the insurance money descended to his heirs, the same as any other property or chose in action. " Hanson v. Minnesota S. R. Ass'n, 59 Minn. 123, « Given v. Wisconsin Odd Fellows' Mut. Life Ins. Co., 71 Wis. 547, 37 N. W. 817; Ryan v. Rothweiler, 50 Ohio St. 595. **Worley v. Northwestern Masonic Aid Ass'n, 10 Fed. 227; Hellen- berg V. District No. 1, I. O. of B. B., 94 N. Y. 580. *' McElwee v. New York Life Ins. Co., 47 Fed. 798. *«76 Iowa, 61, 40 N. W. 89, citing Smith v. Covenant Mut. Ben. Ass'n, 24 Fed. 685: Covenant Mut. Ben. Ass'n v. Sears, 114 111. 113. See, also, Fenn v. Lewis, 10 Mo. App. 478, 81 Mo. 259; In re Negus, 27 Misc. Rep. 165, 58 N. Y. Supp. 377. §§ 227, 228 ASSIGNMENT. 685 "Where a member of a benefit society designates a creditor as the beneficiary in a certificate issued to him, in violation of the statute, the whole contract is not void, and the executor of the member's estate is entitled to the money due on the certificate, to be held by him in trust for the benefit of those who, at the time the contract was made, were entitled to be named as beneficiaries.'*^ An invalid or inoperative attempt to change a beneficiary will not destroy the rights of the bene- ficiary.^*^- A beneficiary in an insurance policy, who murders the insured, forfeits all rights under the policy,^ ^ but the liability of the company is not thereby terminated. The benefits revert to, and become a part of the estate of the as- sured, and his administrator can recover them, for the benefit of those who would have been entitled to the insurance, had no beneficiary been designated.^ ^ ASSIGN"MENT. § 227. A fire insurance policy is not, before loss, assignable without the consent of the insurer. § 228. A life insurance policy is usually considered to be as- signable, unless an assignment is expressly prohibited by the terms of the policy. *" Supreme Council, A. L. of H., v. Perry, 140 Mass. 580, 5 N. E. 634; Clarke v. Schwarzenberg, 162 Mass. 98, 38 N. E. 17. "■" Elsey V. Odd Fellows' Mut. Relief Ass'n, 142 Mass. 224, 7 N. E. 844; Grace v. Northwestern Mut. Relief Ass'n, 87 Wis. 562, 58 N. W. 1041. "New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 591; Schreiner v. High Court, C. O. of F., 35 111. App. 576. "Shea V. Massachusetts Ben. Ass'n, 160 Mass. 289; Palmer v. Welch, 132 111. 141; Schmidt v. Northern Life Ass'n (Iowa), 83 N. W.- 803; Schonfield v. Turner, 75 Tex. 324, 7 L. R. A. 189. As to desig- nation of beneficiary not entitled to proceeds, see, also. Beard v. Sharp, 100 Ky. 606; Love v. Clune, 24 Colo. 237, 50 Pac. 34; North- western Masonic Aid Ass'n v. Jones, 154 Pa. St. 99; Hurd v. Doty, 86 Wis. ]; Peek's Ex'r v. Peek's Ex'r, 101 Ky. 423; Mayher v. Man- hattan Life Ins. Co., 87 Tex. 169. 686 PKOCEEDS OF POLICY. §§ 227-230 § 229. The effect of an assignment of a policy, with the con- sent of the insured, is to create a new contract between the insurer and the assignee. ^ 230. The rights of a payee after maturity of a policy are assignable. Assignment of Fire Insurance Policy. Policies of fire insurance are not, in their nature, assign- able, nor is tlie interest in them ever intended to be transfer- able from one to another, without the consent of the insurer. They are not insurances of the specific thing mentioned to be insured, and do not attach to the property, or in any manner follow the same as incident thereto, by any conveyance or assignment. They are only special agreements to indemnify the assured mentioned therein, against such loss or damage as he may sustain from the peril specified.^^ "When insured property is transferred, and a policy thereon assigned to the purchaser, with the assent of the insurer, the purchaser be- comes the insured, and his rights are unaffected by any acts of forfeiture, or default of the assignor, occurring before the assignment. A new relation is created between the insurer and the assignee, just as if the original policy was surrendered, and a new one issued.^'* By consenting to the transfer and assignment of the policy, the insurer waives all defenses to the validity of the policy, at the time the consent is given, and validates the policy, even if it had before been void.^^ "New V. German Ins. Co., 5 Ind. App. 82, 31 N. E. 475; Williams V. Lilley, 67 Conn. 50, 37 L. R. A. 150; White v. Robbins, 21 Minn. 370; Carpenter v. Providence W. Ins. Co., 16 Pet. (U. S.) 495; Fogg V. Middlesex Mut. Fire Ins. Co., 10 Cush. (Mass.) 345. '•^ Continental Ins. Co. v. Munns, 120 Ind. 30, 22 N. E. 78; Bullman V. North British & M. Ins. Co., 159 Mass. 122, 34 N. E. 169; Hall v. Niagara Fire Ins. Co., 93 Mich. 184. " Rines v. German Ins. Co., 78 Minn. 46, 80 N. W. 839. ^§ 227-230 ASSIGNMENT. 687 Assignment of Life Insurance Policy. , It is well settled that a policy of life insurance, where the policy contains no provision to the contrary, is assignable as any other chose in action, at least pro\'ided the assignee has an insurable interest in the life of the insured.^® And it is often held that if the policy be taken out in good faith, and not as a cover for a wager, it may be assigned to one w^ho has no insurable interest in the life of the insured.^' The weight of authority cannot be said to bo in favor of this rule, unless the insurer expressly consents to the assignment.^^ A con- dition of a policy that no assignment shall be valid unless made in writing, indorsed thereon, and unless a copy of the assignment be given to the company, is for the benefit of the insurer alone.^^ What is an Assignment. A pledge of a policy as collateral security, is not an assign- ment within the terms of a prohibition of the policy against an assignment. ^*^ A parol assignment of the policy, accom- "Rittler v. Smith, 70 Md. 261, 2 L. R. A. 844; Milner v. Bowman, 119 Ind. 448; Hogue v. Minnesota Packing & Provision Co., 59 Minn. 39; Robinson v. Hurst, 78 Md. 59, 20 L. R. A. 761; Prudential Ins. Co. V. Liersch, 122 Mich. 436, 81 N. W. 258; Connecticut Mut. Life Ins. Co. V. Schaefer, 94 U. S. 457. "Valton V. National Fund Life Assur. Co., 20 N. Y. 32; Dixon v. National Life Ins. Qo., 168 Mass. 48, 46 N. E. 430; Eckel v. Renner, 41 Ohio St. 232; Clark v. Allen, 11 R, I. 439; Bursinger v. Bank of Watertown, 67 Wis. 75; Smith v. National Ben. Soc, 123 N. Y. 85. '»Warnock v. Davis, 104 U. S. 775; Missouri Valley Life Ins. Co. V. McCrum, 36 Kan. 146; Stevens v. Warren, 101 Mass. 564; Downey V. Hoffer, 110 Pa. St. 109; Alabama Gold Life Ins. Co. v. Mobile Mut. Ins. Co., 81 Ala. 329; Schlamp v. Berner's Adm'r (Ky.), 51 S. W. 312. See ante, c. 9, "Insurable Interest," notes 52-56. " Hogue V. Minnesota Packing & Provision Co., 59 Minn. 39. •"Griffey v. New York Cent. Ins. Co., 100 N. Y. 417; Mahr v. Bart- lett, 53 Hun (N. Y.), 388. G88 PROCEEDS OF POLICY. §§ 227-230 panied by delivery, is sufficient.^ ^ The validity of the as- signment must be determined by tbe law of tbe place where it is made.^^ Assignment of Policy After Maturity. An assignment of a policy, and the right to recover upon ity aft^r maturity, is valid, regardless of the conditions of the policy. The assignee succeeds to the right of the assignor, and his claim is subject to any defenses which might have been asserted against the assignor.^^ An order on the insurer for the amount of the loss, will constitute an equitable assignment "Chapman v. Mcllwrath, 77 Mo. 38; Hogue v. Minnesota Packing & Provision Co., 59 Minn. 39. "Mutual Life Ins. Co. v. Allen, 138 Mass. 24; Connecticut Mut. Life Ins. Co. v. Westervelt, 52 Conn. 586. See, also, as to assign- ment, Briggs V. Earl, 139 Mass. 473; Brick v. Campbell, 122 N. Y. 337; Brown v. Equitable Life Assur. Soc. 75 Minn. 412. 78 N. W. 103, 671, 79 N. W. 968; Thompson v. Phenix Ins. Co., 136 U. S. 287 (change of receivers) ; Forest City Ins. Co. v. Hardesty, 182 111. 39. 55 N. E. 139; Germania Fire Ins. Co. v. Home Ins. Co., 144 N. Y. 195 (taking in a partner); Trabue v. Dwelling House Ins. Co., 121 Mo. 75, 23 L. R. A. 719; Perry v. Lorillard Fire Ins. Co., 6 Lans. 201, 61 N. Y. 214; Dube v. Mascoma Mut. Fire Ins. Co., 64 N. H. 527 (as- signment in bankruptcy); Westchester Fire Ins. Co. v. Dodge, 44 Mich. 420 (death of insured); Georgia Home Ins. Co. v. Kinnier's Adm'x, 28 Grat. (Va.) 88; Brown v. Cotton & Woolen Manuf'rs Mut. Ins. Co., 156 Mass. 587 (descent of property to heirs); Richardson's Adm'r v. German Ins. Co., 89 Ky. 571, 8 L. R. A. 800 (death of in- sured) ; Roby v. American Cent. Ins. Co., 120 N. Y. 510 (dissolution of firm); McNally v. Phoenix Ins. Co., 137 N. Y. 389 (appointment of receiver). See, also, Keeney v. Home Ins. Co., 71 N. Y. 396; Carey v. German American Ins. Co., 84 Wis. 80; Orr v. Citizens' Fire Ins. Co., 159 111. 187, 43 N. E. 867. •"Nease v. Aetna Ins. Co., 32 W. Va. 283; Bennett v. Maryland Fire Ins. Co., 14 Blatchf. 422, Fed. Cas. No. 1,321; West Branch Ins. Co. V. Helfenstein, 40 Pa. St. 289; Bonefaut v. American Fire Ins. Co., 76 Mich. 654; Hall v. Dorchester Mut. Fire Ins. Co., Ill Mass. 53; Fenton v. Fidelity & Casualty Co., 36 Or. 283, 56 Pac. 1096, 48 L. R. A. 770; Spare v. Home Mut. Ins. Co., 17 Fed. 568; Imperial Fire Ins, Co. V. Dunham, 117 Pa. St. 460. § 231 EIGHT TO CHANGE BENEFICIARY. 689 to the extent of tlie amount mentioned in the order ;^^ and a claim for damages against an insurer, because of its failure to deliver a paid-up policy, is assignable.®^ Courts will recognize an equitable assig-nment of a claim to the proceeds of a policy, and enforce the rights of the assignee.^® Pledge of Policy. A pledge of a policy is not an assignment of i^.^'^ It may be effected by mere manual delivery of the policy, %vithout any wi'iting,®^ but delivery of the policy to the pledgee is es- sential.®^ The deposit of a policy of insurance with a cred- itor of the assured as security for a debt, gives the creditor a lien on the proceeds of the policy, which lien is binding upon the insured, the insurer, and all persons who, without notice of the lien, take an interest in the policy from the insured.'^^ A pledgee may recover the full amount due al- though a portion of his debt is not matured, and the amount due on the policy exceeds the entire debt.'^^ Right to Change Beneficiaey. § 231. In the absence of a provision reserving the right to designate a new beneficiary, the rule is that a beneficiary in a life insurance policy acquires, upon the execution and deliv- ery of the policy, a vested right and interest, of which he cannot be deprived without his consent. "Union Ins. Co. v. Glover, 9 Fed. 529; Aultman v. McConnell, 31 Fed. 724. •"Missouri Valley Life Ins. Co. v. Kelso, 16 Kan. 481. " In re Wittenberg Veneer & Panel Co., 108 Fed. 597. "Griffey v. New York Cent. Ins. Co., 100 N. Y. 417; Mahr v. Bart- lett, 53 Hun (N. Y.), 388. " Hogue V. Minnesota Packing & Provision Co., 59 Minn. 39. "» In re Wittenberg Veneer & Panel Co., 108 Fed. 597. '" Ellis v. Kreutzinger, 27 Mo. 311, 72 Am. Dec. 270. '^Hale v. Life Ind. & Inv. Co., 65 Minn. 548, 68 N. W. 182. See, also, Brown v. Equitable Life Assur. Soc, 75 Minn. 412, 78 N. W. 103, 671, 79 N. W. 968. KERR, INS.— 44 690 PKOCEEDS OF POLICY. § 231 Whether a beneficiary acquires a vested interest in tlie moneys to be paid npon tke death of the insured, must be detenuined by the terms and conditions of the contract of insurance. The rule is that in an ordinary life insurance policy, made payable to a person named, the rights of the beneficiary are vested when the policy is issued, and that these rights cannot be divested without the assent of the ben- eficiaiy himself. ''^^ But policies may, and often do, reserve such a control to the insured himself as to leave in the bene- ficiaiT, until the death of the insured, nothing but a contingent interest. It is often said that the certificates of beneficial and fra- ternal associations differ from the ordinary life policies in this, that the beneficiaries in the former have only a contin- gent interest until the death of the insured, and that their in- terests do not become vested until the death has occurred ■without a change of beneficiaries being made. But this dis- tinction would seem to rest more upon the terms of the con- tract, than upon any essential difference in the nature of the contracts of insurance. '^^ Where the contract gives the in- ^^Ricker v. Charter Oak Life Ins. Co., 27 Minn. 195; In re Kugler, 23 La. Ann. 455; Pingrey v. National Life Ins. Co., 144 Mass. 374; Matlack v. Mutual Life Ins. Co., 180 Pa. St. 360, 36 Atl. 1082; Wil- maser v. Continental Life Ins. Co., 66 Iowa, 417; Ferdon v. Canfield, 104 N. Y. 143. "Marsh v. Supreme Council, A. L. of H., 149 Mass. 515; Supreme Council, C. K. of A., v. Franke, 137 111. 118; Jory v. Supreme Coun- cil. A. L. of H., 105 Cal. 20, 45 Am. St. Rep. 17, 26 L. R. A. 733; Kline v. National Ben. Ass'n, 111 Ind. 462; Chartrand v. Brace, 16 Colo. 19, 12 L. R. A. 209; Knights of Honor v. Watson, 64 N. H. 517; Gutterson v. Gutterson, 50 Minn. 278, 52 N. W. 530; Simcoke v. Grand Lodge, A. O. U. W., 84 Iowa, 383, 15 L. R. A. 114. See, also. Manning v. Ancient Order of U. W., 86 Ky. 139, 9 Am. St. Rep. 270; Block V. Valley Mut. Ins. Ass'n, 52 Ark. 201, 20 Am. St. Rep. 166; Metropolitan Life Ins. Co. v. O'Brien, 92 Mich. 584, 52 N. W. 1012; Johnson v. Van Epps, 14 Bradw. (111.) 2C1, 110 111. 551 § 232 EIGHTS OF CREDITOKS. 691 sured the right to change beneficiaries, and points out the method which must be pursued, this method is fixed and bind- ing upon the insured, and he has no right to effect a change of beneficiaries in any other manner.'^'* But it has been held in the absence of any provisions in the contract providing ex- pressly for a change of beneficiaries, or prohibiting such change, that, by reason of the character and purjwses of fra- ternal and beneficial associations, it should l>e held that the power to change the beneficiary is vested in the member during his lifetime.^^ Where an attempt to change a beneficiary fails, a previous designation of the beneficiary remains in force if valid."*^ A change of beneficiary, procured by fraud and undue influence, is ineffectual to deprive the beneficiary of his rights. ^^ Rights of Creditors. § 232. Whether or not, in a given case, creditors of an in- sured are entitled to recover the proceeds of a life insurance policy, paid for by moneys invested in fraud of creditors, de- pends upon the law of the forum. The creditors of an insured can reach the proceeds of a policy after they become a claim in favor of the debtor against the company. '* Holland v. Taylor, 111 Ind. 121; Stephenson v. Stephenson, 64 Iowa, 534, 21 N. W. 19; Supreme Council, A. L. of H., v. Smith, 45 N. J. Bq. 466, 17 Atl. 770; Supreme Lodge, K. of H., v. Nairn, 60 Mich. 44, 26 N. W. 826; Sanborn v. Black, 67 N. H. 537, 35 Atl. 942. "Woodruff V. Tilman, 112 Mich. 188, 70 N. W. 420; Carpenter v. Knapp, 101 Iowa, 712, 70 N. W. 764; Fischer v. American Legion of Honor, 168 Pa. St. 279, 31 Atl. 1089; Voigt v. Kersten, 164 111. 314, 45 N. E. 545. '" Elsey V. Odd Fellows' Mut. Relief Ass'n, 142 Mass. 224, 7 N. E. 844; Smith v. Boston & Maine, R. R. Ass'n, 168 Mass. 213, 46 N. E. 626; Quinn v. Supreme Council, C. K., 99 Tenn. 80, 41 S. W. 343. As to validity of change, see Heasley v. Heasley, 191 Pa. St. 539, 43 Atl. 364; Sanborn v. Black, 67 N. H. 537, 35 Atl. 942; 45 Cent. Law J. 491. " Cason V. Owens, 100 Ga. 142, 28 S. E. 75. 692 PKOCEEDS OF rOLICY. § 232 It follows, from wliat has already been said eoncernmg the rights to assign the proceeds of a policy after maturity, that the creditors of the party to whom the proceeds belong are en- titled to appropriate the same in satisfaction of their debts^ unless such proceeds are exempt from the claims of credit- ors.*^^ Where an insured has violated the conditions of a policy his creditors have no better right to compel payment of the policy under a process of garnishment against the insured, than the insured himself has.^^ The proceeds of a policy^ covering the interest of a mortgagee during the year of re- demption, where the policy is procured and paid for by the mortgagor, belong to the mortgagee personally, and do not enure to the benefit of the owner of the equity, where no rt^ demption is made.^° Where a policy on the life of an insured is payable to a desigTiated creditor if living, if not, then to the rej)r6sentatives of the assured, the creditor must prove the existence and amount of his debt, in order to recover upon the policy.^^ Creditors cannot claim the proceeds of a policy issued on the life of a debtor for the benefit of his family, without showing that the premiums were paid in fraud of their riglits.^^ The proceeds of a policy payable to the as- sured or his order,^^ or to his heirs, executors, administrators " See ante, "Assignment of Policy after Maturity." '^Plienix Ins. Co. v. Willis, 70 Tex. 12; Bernheim v. Beer, 56 Miss. 149; McLean v. Hess, 106 Ind. 555. *° Carlson v. Presbyterian Board of Relief, 67 Minn. 436. "Crotty V. Union Mut. Life Ins. Co., 144 U, S. 621. See, also,. Shaffer v. Spangler, 144 Pa. St. 223, 22 Atl. 865; Ulrich v. Reinoehl, 143 Pa. St. 238, 22 Atl. 862. *^ Pence v. Makepeace, 65 Ind. 345; Weber v. Paxton, 48 Ohio St. 266; Mutual Life Ins. Co. v. Sandfelder, 9 Mo. App. 285; Holmes v. Oilman, 138 N. Y. 369, 20 L. R. A. 566; Central Bank of Washingtott V. Hume, 128 U. S. 195. "White V. Smith, 2 Willson, Civ. Cas. Ct. App. (Tex.) 349. I § 232 - EIGHTS OF CREDITORS. G93 or assigns,^ ^ or to tlie legal representatives of tlie assured,^*'' form a part of the estate of the insured, and are for the benefit of his creditors. Otherwise if the policy is payable to his heirs.^^ Where an assured takes out a policy payable to his wife, and pays all the premiums from trust moneys, the cestui que trust is entitled to the whole insurance fund. Where, how- ever, only a part of the premiums has been paid with tiiist moneys, the cestui que trust is entitled to such a proportionate share of the proceeds as the amount of his money, used in pay- ment of premiums, bears to the money paid from other sources.^"^ A man must be just before he is generous. A husband cannot settle insurance, or money, or property in any form, upon his wife or friends, in fraud of creditors. If he attempts to do so the creditors are entitled to the aid of the courts to reach property so settled, in whatever form it is found.^^ In Central Bank of Washington v. Hume,^^ it was held by the supreme court of the United States, that there was an ob- vious distinction between the transfer of a policy taken out by a debtor upon his own life, and payable to himself and his "Rawson v. Jones, 52 Ga. 458; Burton v. Farinholt, 86 N. C. 260. »=> People V. Phelps, 78 111. 147. «» Mullins V. Thompson, 51 Tex. 7; Northwestern Masonic Aid Ass'n V. Jones, 154 Pa. St. 99, 26 Atl. 253. ''Dayton v. H. B. Claflin Co., 19 App. Div. (N. Y.) 121. See, also, Pullis V. Robison, 73 Mo. 201. «» Merchants' & Miners' Transp. Co. v. Borland, 53 N. J. Eq. 282, 31 Atl. 275. «»128 U. S. 195. See, also, Elliott's Ex'rs Appeal, 50 Pa. St. 75;- McCutcheon's Appeal, 99 Pa. St. 137; Aetna Nat. Bank v. United States Life Ins. Co., 24 Fed. 770; Pence v. Makepeace, 65 Ind. 345; Succession of Hearing, 26 La. Ann. 326; Thompson v. Cundiff, 11 Bush (Ky.), 567; Thompson v. American Tontine L. & S. Ins. Co., 46 N. Y. 675; Emerson v. Bemis, 69 111. 541. 694 PROCEEDS OF POLICY. § 232 legal representatives, and the obtaining of a policy by a per- son upon the insurable interest of his wife and children in his life, the policy being payable to them ; and that the creditors of a debtor husband are not entitled to recover the premiums paid by him on policies issued on his own life for the benefit of and payable to his wife and eliildren, where there is no evi- dence from which a fraudulent intent on the part of the latter or the insurance companies to put the property beyond tho reach of the creditors can be inferred. The case of Stokes v. Amerman ^^ presents the difficult and »«121 N. Y. 337, 24 N. E. 819. See, also, Tompkins v. Levy, 87 Ala. 263; Leonard v. Clinton, 26 Hun (N. Y.), 288; Cotton v. Vansittart, 20 Grant Ch. (Up. Can.) 244; Holmes v. Oilman, 138 N. Y. 369; Rob- erts V. Winton, 100 Tenn. 484, 41 L. R. A. 275 ; Bartlett v. Goodrich, 153 N. Y. 421, 47 N. E. 794; Hendrie & B. Mfg. Co. v. Piatt, 13 Colo. App. 15, 56 Pac. 209; Andrews v. Union Cent. Life Ins. Co., 92 Tex. 584, 50 S. W. 572; Lehman v. Gunn, 124 Ala. 213, 51 L. R. A. 112; Sternberg v. Levy, 159 Mo. 617, 60 S. W. 1114, 30 Ins. Law J. 506; Northwestern Masonic Aid Ass'n v. Jones, 154 Pa. St. 99, 26 Atl. 253. In Hendrie & B. Mfg. Co. v. Piatt, 13 Colo. App. 15, 56 Pac. 209, it was held that a creditor has no legal right to enforce a claim to the payment of his debt against the proceeds of insurance upon the life of the deceased debtor for the benefit of his wife and children, in the absence of fraudulent intent, unless it be to the extent of the premiums paid by the debtor subsequent to the incurring of the debt sued on and during his insolvency, if he was insolvent. And the court said: "By the authorities which have adjudicated the question independent of statute, we find three distinct positions announced: First. That, in the absence of actual fraud, the fund de- rived from insurance upon his own life by an insolvent debtor in favor of his wife or child or children, dependent upon him, cannot be reached by his creditors, and made subject to the payment of his debts, except, possibly, in certain contingencies, which we will here- after discuss, the amount of the premiums paid by the insolvent debtor during insolvency. In support of this doctrine, either in whole or in part, are Central Nat. Bank v. Hume, 128 U. S. 195, 9 Sup. Ct. 41; Appeal of Elliott's Ex'rs, 50 Pa. St. 75; Aetna Nat. Bank V. United States Life Ins. Co., 24 Fed. 770; Central Nat. Bank v. Hume, 3 Mackey, D. C. 360; In re Anderson's Estate, 85 Pa. St. 202; § 232 BIGHTS OF CREDITORS. C95 novel question of the right of a judgment creditor to maintain an action to subject a policy to his claims, before the policy Pence v. Makepeace, 65 Ind. 345; Pinneo v. Goodspeed, 120 111. 536, 12 N. E. 196; State v. Tomlinson, 16 Ind. App. 672-675, 45 N. E. 1120; Holmes v. Gilman, 138 N. Y. 369, 34 N. E. 205; Stigler's Ex'r V. Stigler, 77 Va. 163, 2 Bigelow, Frauds, p. 129. To this effect in principle are, also, Forrester v. Gill, 11 Colo. App. 410, 53 Pac. 230; McLean v. Hess, 106 Ind. 555, 7 N. E. 567. Another doctrine, sup- ported by some authority, is that the procurement of such insur- ance by an insolvent is a voluntary conveyance or gift, which is void a.« to existing creditors, though no fraud may have been in- tended, and that the whole of the insurance would be subject to the debts of the insured. The principal authorities in support of this doctrine to which we have been cited seem to be Feam v. Ward, 80 Ala. 555, 2 So. 114; Merchants' & Miners' Transp. Co. v. Borland, 53 N. J. Eq. 282, 31 Atl. 272; and Stokes v. Coffey, 8 Bush (Ky.), 553. Another line of authorities holds that in such cases the amount of the premiums paid by the insolvent, and that alone, of the proceeds, can be reached by his creditors. We think that the weight of au- thority is in favor of the doctrine announced by the first line of au- thorities, and that it is better sustained upon reason and upon prin- ciple. The reasoning by which the courts holding to this view support their conclusions commends itself most highly to our judg- ment. In the first place, it is undoubtedly the law, as held almost if not quite universally, that the policy is the contract of insurance, and that, the moment it is issued, its ownership vests in the bene- ficiary. The applicant for it, and he who paid the premium which secured it, cannot thereafter change, assign, alienate, or incumber it, or any rights to be secured under it upon compliance with its pro- visions. He cannot even defeat it by a refusal to pay the subse- quent premiums required, if the beneficiary or any person for her pays them. The contract is between the insurance company and the beneficiary. To this effect are the authorities above cited, and also numerous others to which reference might be made, including the following: Wilburn v. Wilburn, 83 Ind. 55; Yore v. Booth, 110 Cal. 238, 42 Pac. 808; Ricker v. Charter Oak Life Ins. Co., 27 Minn. 193, 6 N. W. 771; Bliss, Ins. § 318. The payments of subsequent pre- miums do not create new contracts, nor, strictly speaking, do they constitute renewals of the insurance contract. They are simply the fulfillment of conditions required by the original contract, a failure to comply with which would work a forfeiture. Besides, the con- tract is based upon and its fruits finally realized, if at all, because of the insurable interest of the beneficiary in the life of the assured." 696 PKOCEEDS OF TOLICY. § 232 becomes due. The court says : "Contracts for the future pay- ment of money, depending upon conditions to be performed, are not, for any reason growing out of their uncertain char- acter, exempt from the claims of creditors. Unmatured life insurance policies have been treated by the courts as possessing a present value in the distribution of the assets of insolvent insurance companies, * * * and we perceive no reason why the interest of a judgment creditor in such a contract, arising under the statute permitting a wife to insure her hus- band's life, may not be declared and protected by the courts. The wife cannot be compelleti to assign the policy, nor can her interest therein, represented by premiums to the extent of $500, be affected by any proceedings on the part of such creditor. [The New York statute allows an exempted ap- propriation by a creditor of $500, for the purchase of life in- surance.] But the interest of a creditor, which attaches to a contract of life insurance, in virtue of the statute, and by reason of the fact of payment by the judgment debtor of pre- miums in excess of $500, may be declared by a court of equity, and impressed upon the contract, in an action where the com- pany issuing the policy, and all persons interested therein are parties, though the money secured thereby is not due." From the authorities cited a fair inference would seem to be that a man is entitled to make any provision he chooses for the securing of insurance on his own life payable upon his death to his wife and children, provided he does not thereby commit a fraud upon his creditors; that whether the payment of a given amount for the procurement of such insurance payable to his wife and children constitutes a fraud upon the rights of his creditors, and what if any right the creditors have to reach the proceeds of a policy so bought, must depend upon the circumstances of a given case, and the law of the state where the transactions were had. ■§ 232 EIGHTS OF CREDITORS. ^ 697 night of Assignee in Insolvency. An assignee in bankruptcy has no Insurable interest in tlio life of the bankrupt, at least after his discharge. Upon a policy on the life of a bankrupt, payable at his death to his executors, administrators, or assigns, and requiring the pay- ment of an annual premium during the life of the bankrupt, the only beneficial interest which passes to the assignee in l)ankruptcy is its surrender value, or net reserve at the time of the bankruptcy. If the policy has no cash surrender value, and no value for any purpose except the contingency of its TD'Ocoming valuable at the death of the bankrupt if the pre- miums are kept up, it does not pass to the trustee as an asset of the estate of the bankrupt.^ ^ If the policy provides that if the assured should survive until a stated time, then a stipu- lated sum should be paid to him, the rights of the insured in the policy pass to his assignee in insolvency, under an assign- ment made about the date of the maturity of the policy.*' - The rights of the bankrupt in an endowment policy upon his own life, pass to his assignee f^ and the proceeds of a policy maturing during the term of office of the assignee, belong to him rather than to the creditors.®^ An assignment by a debtor " In re Steele, 98 Fed. 78; Morris v. Dodd, 110 Ga. 606, 50 L. R. A. 33; In re Buelow, 98 Fed. 86; In re McKinney, 15 Fed. 535. See, also, Larue's Assignee v. Larue, 96 Ky. 326; Barbour v. Connecticut Mut. Life Ins. Co., 61 Conn. 240, 23 Atl. 154; Burton v. Farinholt, 86 N. C. 260; Anthracite Ins. Co. v. Sears, 109 Mass. 383; Day v. New England Life Ins. Co., Ill Pa. St. 507, 56 Am. Rep. 297, 4 Atl. 748; Hurlbut V. Hurlbut, 49 Hun, 189, 1 N. Y. Supp. 854; Pace v. Pace, 13 Fla. 438. •^'Bassett v. Parsons, 140 Mass. 169, 3 N. E. 547; Pierce v. Charter Oak Life Ins. Co., 138 Mass. 151. »» Brigham v. Home Life Ins. Co., 131 Mass. 319. "Rhode Island Nat. Bank v. Chase, 16 R. I. 37. No question seems to have been raised as to whether the deceased's interest in the policy passed by deed of assignment. 698 PKOCEEDS OF POLICY. § 232 of all his property, under the statute, for the benefit of his creditors, operates as an assignment of, and renders void a fire insurance policy held by him, which contains a pro- vision that it shall he void if assigned without the consent of the company.®^ "^Dube V. Mascoma Mut. Fire Ins. Co., 64 N. H. 527; Adams v. Rockingham Mut. Fire Ins. Co., 29 Me. 292. CHAPTER XVII. SUBROGATION. § 233. Definition and Explanation. • 234. Right of Insurer. Definition and Explanation". § 233. Subrogation is the substitution of one person in place of another, whether as a creditor or as the possessor of any other rightful claim, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and all his rights, remedies, or securities connected therewith. Subrogation, as the term is used in the law of insurance, con- sists in the substitution of the insurer in the place of the in- sured, in relation to the rights of the latter to recover against another on account of the subject matter of the insurance. In fire insurance, as in marine insuranex:', the insurer, upon paying to the assured the amount of a loss on the property insured, is subrogated, in a corresponding amount, to tlie assured's right of action against any other person responsible for the loss. . But the right of the insurer against such other person does not rest upon any relation of contract, or privity between them. It arises out of the nature of the contract of insurance, as a contract of indemnity, and is derived from the assured alone, and can be enforced in his right only. By the strict rules of the conmion law it must be asserted in the name of the insured. In a court of equity, or under some state codes, it may be asserted by the insurer in his own name. But in any form of remedy, the insurer can take nothing by subrogation but the rights which accrued to the insured, and 700 SUBKOGATION. § 233 if no i-iglit of action against another accrued to the insured, none passes to the insurer.^ If the assured first applies to the tort-feasor, whose negli- gence caused his loss, and receives damages from him, that diminishes his loss pro tanto. The liability of the tort-feasor is, in legal effect, first and principal, and that of the insurer secondary, not only in order of time but in order of ultimate liability. The assured may first apply to whichever h^e pleases. If he first applies to the tort-feasor, Avho pays him, he thereby diminishes his loss, and his claim against the in- surer is only for the balance. If he first applies to the in- surer, and receives his whole loss, he holds the claim against the tort-feasor in trust for the insurer.^ "Where a policy pro- vides that the insured shall, on receiving payment, assign to the insurer his claim against one causing the loss, the covenant of the insurer to pay, and of the insured to assign, are de- pendent, and performance by one cannot be compelled without performance or an offer to perform by the other. A release, given by the insured to the one whose negligence caused the loss, is a defense to an action on the policy.^ And if the in- sured settles with the one responsible for the loss, and after- wards, concealing that fact from the insurer, receives from it payment under its policy, the latter may recover from the former the pa^onents so made. It is a payment made in ignorance of circumstances with which the receiver is ac- » Piatt V. Richmond Y. R. & C. R. Co., 108 N. Y. 358; Jackson Co. v. Boylston Mut. Ins. Co.. 139 Mass. 508, 52 Am. Rep. 728; Phoenix Ins. Co. V. Erie & W. Transportation Co., 117 U. S. 312; Kernochan v. New York Bowery Fire Ins. Co., 17 N. Y. 428; Anderson v. Miller, 96 Tenn. 35, 31 L. R. A. 604; 54 Cent. L. J. 51. = Hart V. Western R. Corp., 13 Mete. (Mass.) 99. 'Niagara Fire Ins. Co. v. fidelity T. & T. Co., 123 Pa. St. 516, 16 Atl. 790; Chickasaw County Farmers' Mut. Fire Ins. Co. v-. Weller, 98 Iowa, 731, 68 N. W. 443. § 234 KIGUT OF IXSUKEK. TOl quainted, but docs not disclose, and which, if disclosed, would prevent the payment, and the suppression of facts is there- fore fraudulent.^ Right of Insurer. § 234. The right of the insurer to subrogation exists inde- pendent of contract. An insurer who has paid the loss for which another, because of his negligence, was primarily liable, stands in the position of a surety, and becomes subrogated to the rights of the in- sured as against such other to the extent of the amount paid. An ii^surer which has been compelled to pay the owner for property destroyed by fire, has a right of action against the one who wrongfully caused the loss, without any express as- signment of such right by the assured, and under most codes may sue in its own name.^ If the insurer pays to the o^^n^ier the money due him on the contract of insurance, the owmer can- not properly thereafter sue the tort-feasor for the loss of the property without making the insurer a party plaintiff, or, in case it refuses, a party defendant.^ And a release or discharge by the owner, of the one whose negligence caused the loss, is a release of the insurer. The assured cannot recover from both for the entire loss, and if, after recovery from the insurer, the * Chickasaw County Farmers' Mut. Fire Ins. Co. v. "Weller, 9S Iowa, 731, 68 N. W. 443. See. also, Mathews v. St. Louis & S. F. Ry. Co., 121 Mo. 298, 25 L. R. A. 161; Cliicago & A. R. Co. v. Glenny. 115 111. 238, 51 N. E. 896; Fidelity & Casualty Co. v. Eickhoff, 63 Minn. 170, 65 N. W. 351, 30 L. R. A. 586; Leavitt v. Canadian Pacific Ry. Co.. 90 Me. 153, 38 L. R. A. 152; Hare v. Headley, 52 N. J. Eq. 496, 35 Atl. 445. ''Connecticut Fire Ins. Co. v. Erie Ry. Co., 73 N. Y. 399; Hustisford Farmers' Mut. Ins. Co. v. Chicago, M. & St. P. Ry. Co., 66 Wis. 58; Sims V. Mutual Fire Ins. Co., 101 Wis. 586, 77 N. W. 908. 'Wunderlich v. Chicago & >.. W. Ry. Co., 93 Wis. 132, 66 N. W. 1144; Home Mut. Ins. Co. v. Oregon Ry. & Nav. Co., 20 Or. 569, 26 Pac. 857; Phenix Ins. Co. v. Pennsylvania R. Co., 134 Ind. 215, sa N. E. 970. 702 SUBROGATION. § 234 insured receives damages from the otlier, lie liolds tlie dam- ages so received in trust for the insurer, who may recover them from him by a suit in equity.'^ Bights of Carriers to Subrogation. Since the right by way of subrogation of an insurer, on pay- ment of a loss, is only that right which the insured has, it follows that when a bill of lading provides that the carrier, when liable for loss, shall h'ave the full benefit of any in- surance that may have l>een effected upon the goods, this pro- vision is valid between the carrier and the shipper, and there- fore limits the right of subrogation of the insurer. A com- mon carrier, warehouseman, or bailee, whether liable by law or custom, to the same extent as an insurer, or only for his owti negligence, may, in order to protect himself against his owai responsibility, cause the goods in his custody to be insured to their full value, and may recover for any loss from the perils insured against, though occasioned by the negligence of his own servants. And as such an one might lawfully obtain insurance against the loss of the goods, though occasioned by his own negligence, he may lawfully stipulate with the owner to be allowed the benefit of insurance voluntarily obtained by the latter. Such a stipulation, between the owner and the carrier, does not impair any lawful rights of the insurer. In the absence of any fraud or intentional concealment, the un- disclosed existence of such a stipulation subrogating the car- ' Monmouth County Mut. Fire Ins. Co. v. Hutchinson, 21 N. J. Eq. 107; Connecticut Fire Ins. Co. v. Erie Ry. Co.. 73 N. Y. 399; Chicago, St. L. & N. O. R. Co. V. Pullman Southern Car Co., 139 IT. S. 88; Chickasaw County Farmers' Mut. Fire Ins. Co. v. Weller, 98 Iowa, 731, 68 N. W. 443; Sims v. Mutual Fire Ins. Co., 101 Wis. 586, 77 N. W. 908. See, also, Niagara Fire Ins. Co. v. Fidelity T. & T. Co., 123 Pa. St. 516, 16 Atl. 790; Insurance Co. of North America v. Martin, 151 Ind. 209, 51 N. E. 361; Fidelity T. & T. Co. v. Peoples' Nat. Gas Co., 150 Pa. St. 8. ^ 234 EIGHT OF INSURER. 703 rier to the riglits of the insured, does not constitute a defense to- an action on the policy. It is now the settled law that a stipulation in the bill of lading allowing the carrier the bene- fit of insurance procured by the owTier, is valid as between the parties, though the loss be occasioned by the negligence of the carrier or his agents, and, in the absence of fraudulent concealment or misrepresentation the insurer can maintain no action against the carrier upon terms inconsistent with the stipulation.* But a shipper who contracts to give the carrier the benefit of any insurance on freight cannot, in case of loss through the carrier's negligence, recover upon a policy cover- ing the freight which stipulates that in case of loss the insurer shall be subrogated to all rights of the shipper against the carrier, and that if any right of the carrier to recover against any person is lost by any act of the insured, or if the insurance is made for the benefit of the carrier, the insurer shall not be liable.^ Subrogation of Insurer to Rights of Mortgagee or Creditor. Where a mortgagee insures solely on his o^vn account, it is but an insurance on his debt, and an extinguishment of the debt extingiiishes his rights under the policy. But if the fire occurs before the payment or extinguishment of the debt and mortgage, the insurers are bound to pay the amount of the debt, not exceeding the stipulated amount of insurance, and upon such payment are often entitled by contract to an assign- ment of the debt from the mortgagee, and may recover the same from the mortgagor, either at law or in equity, accord- » Jackson Co. v. Boylston Mut. Ins. Co., 139 Mass. 508; Phoenix Ins. Co. V. Erie & W. Transportation Co., 117 U. S. 312; Wager v. Provi- dence Ins. Co., 150 U. S. 99; Piatt v. Richmond Y. R. & C. R. Co., 108 N. Y. 358. » Fayerweather v. Phenix Ins. Co., 118 N. Y. 324. 704 SDBKOGATION. . § 234r ing to circumstances.^*^ But an insurer wlien paying insur- ance covering only part of a mortgage debt, is not subrogated to the rights of the mortgagee until the mortgage debt is paid in fulL^^ Where a policy provides that the loss, if any, shall be payable to the mortgagee, that as to the mortgagee the pol- icy should not be invalidated by any act or neglect of the mort- gagor, that if the insurance company paid the mortgage, claiming that as to the mortgagor no liability existed, it should, to the extent of payment, become entitled to an assign- ment of the mortgage debt and all securities, the insurer does not become subrogated to the rights of the mortgagee unless it was not in fact liable to the mortgagor.^- Where the mort- gagor assigns a policy to the mortgagee as part security for a mortgage debt, and afterwards satisfies the mortgage, he be- comes entitled to subrogation to the rights of the mortgagee in the policy. -^^ "Ch. XVI; Royal Ins. Co. v. Stinson, 103 U. S. 25. See cases in note 11, " Phenix Ins. Co. v. First Nat. Bank, 85 Va. 765, 2 L. R. A. 667. See, also, as to subrogation of insurer to mortgagee's rights, Sussex County Mut. Ins. Co. v. Woodruff, 26 N. J. Law, 541; Concord Union Mut. Fire Ins. Co. v. Woodbury, 45 Me. 447; Grange Mill Co. v. West- ern Assur. Co., 118 111. 396; Bound Brook Mut. Fire Ins. Ass'n v. Nelson, 41 N. J. Eq. 485; Attleborough Sav. Bank v. Security Ins. Co., 1G8 Mass. 147, 46 N. E. 390; Hare v. Headley, 52 N. J. Eq. 496, 35 Atl. 445: Ordway v. Chace, 57 N. J. Eq. 478, 42 Atl. 149; Heins v. Wicke, 102 Iowa, 396, 71 N. W. 345; Merchants' Ins. Co. v. Story, 13 Tex. Civ, App. 124, 35 S. W. 68. " Traders' Ins. Co. v. Race, 142 111. 338, 31 N. E. 392. " Billings V. German Ins. Co., 34 Neb. 502, 52 N. W. 397, 18 Am. Law Reg. 737. See, also, as to insurance obtained by mortgagor for protection of mortgage debt, Pearman v. Gould, 42 N. J. Eq. 4; Pen- dleton V. Elliott, 67 Mich. 496, 35 N. W. 97; Traders' Ins. Co. v. Race, 142 111. 338, 31 N. E. 392; Wood v. Northwestern Ins. Co., 46 N. Y. 421. As to right of agent to be subrogated to extent of premiums paid by him, see Boston Safe D. & T. Co. v. Thomas, 59 Kan. 470, 53 Pac. 472. CHAPTER XVIIL WAIVER AND ESTOPPEL. § 235. Definition. 236. Division. 237. By Whom. 238. Estoppel. § 235. Definition — A waiver is a voluntary and intentional relinquishment of a known right — an election by one to dis- pense with something of value or to forego some advantage he might have taken or insisted upon. § 236. Division — A waiver may be either express, as where one explicitly relinquishes a right; or implied, that is by any acts or statements on the part of one having the right to en- force a forfeiture which might fairly and reasonably induce the opposite party to believe that the forfeiture is dispensed with or excused, and which influence him to rely thereon in good faith and act accordingly. Proof of an implied waiver must show (a) Knowledge on the part of the one waiving of the facts giving him the right to insist upon the for- feiture, and (b) Acts, words or circumstances from which it is fairly inferable that he did not intend to insist upon or assert the forfeiture. § 237. By Whom — Either party to an insurance contract can waive the benefit and enforcement of provisions inserted for his advantage. § 238. Estoppel — An estoppel in pais arises when one by his acts or representations, or silence when he should speak, in- tentionally, or by culpable negligence, induces another to be. lieve that certain facts exist, or that the former will do certain things, and such other rightfully acts on the belief so induced and will be prejudiced by permitting the one to act contrary to the belief he has induced. Waiver is a voluntary act, and implies an election by one in possession of a rioht, and with full knowledge of the facts KERR, INS.— 45 706 WAIVER AND ESTOPPEL. §§ 235-238 concerning it, to do or forbear from doing something incon- sistent with the existence of the right and his intention to as- sert it. The foundation of the doctrine of estoppel lies in the desire of the courts to promote and enforce good faith and fair dealing, and to that end the rule has been formulated that if a party to a contract, knowing of the forfeiture of the rights of the other party thereimder, so bears himself there- after in relation to the contract, as fairly to lead the other to believe and act on the belief that he still recognizes the con- tract to be in force and binding upon him, he will thereafter be estopped from asserting that forfeiture. The conditions of any contract may be waived by the mu- tual consent of the parties to it, or by the party for whose bene- fit the conditions were intended. A waiver of a stipulation, in an agreement, must, to be effectual, not only be made in- tentionally, but with knowledge of the circumstances. This is the rule whether there be a direct and precise agreement to waive, or whether it be sought to deduce a waiver from the acts, conduct or declarations of the party. The doctrine of waiver, as asserted against insurance com- panies, in connection with insurance contracts, to avoid the strict enforcement of conditions contained in their contracts, is only another name for the doctrine of estoppel. It can only be invoked where the conduct of the companies has been such as to induce action in reliance upon it, and where it would operate as a fraud upon the assured if they were after- Avards allowed to disavow their conduct and enforce the condi- tions. To a just application of this doctrine it is essential that the party sought to be estopped from denying the waiver claimed, should be shoAvn to have been apprised of all the facts, prior to or at the time of the alleged waiver. To oper- ate by way of estoppel in pais, or equitable estoppel, it is nec- essary that the act, declaration, or silence, as the case may §§ 235-238 WAIVER AXD ESTOPrEL. 707 be, of the insurer, should be of such a nature, and brought to the knowledge and notice of the insured under such circum- stances, as to justifiably influence him, while acting honestly, fairly, and reasonably, in such a way, and to such an extent, that the repudiation of such inference, drawm by the insured, and acted on by him, would work to his prejudice. In the case of an express waiver of a forfeiture, the old con- tract is modified, or a new contract is made, according to cir- cumstances. In the case of an implied waiver, or an estoppel, the law simply operates to prevent the party who might have claimed the forfeiture, from asserting it. Thus an insurer may waive the payment of the premium when it is due, or any act forbidden by the policy, or which pe7' se avoids the policy, but the basis of the waiver, if it be implied, is estoppel. Un- less with knowledge of a forfeiture actually existing the in- surer does or omits some act whereby the assured has just ground to believe, does believe, and acts on the belief that the insurer wdll continue, or restore the contract, and will not in- sist upon the forfeiture, there is no estoppel, and there can be no waiver.^ Where there has been a breach of a condition contained in an insurance policy, the insurer may or may not take advan- tage of the breach or claim the forfeiture. It may consult its own interests, and choose to waive the forfeiture, and this it may do by express language to that effect, or by acts from which an intention to waive may be infeiTed, or from which a waiver follows as a legal resulf. A waiver cannot be in- ^Unsell V. Hartford L. & A. Ins. Co., 32 Fed. 443; Thompson v. Knickerbocker Life Ins. Co., 104 U. S. 252; Equitable Life Assur. Soc. V. McElroy (C. C. A.), 83 Ped. 638: Kenton Ins. Co. v. Wiggin- ton, 89 Ky. 330, 7 L. R. A. 81; Northwestern Mut. Life Ins. Co. v, Amerman, 119 111. 329; Hartford L. A. Ins. Co. v. Unsell, 144 U. S. 439; Carlsor v. Supreme Council, A. L. H., 115 Cal. 466, 35 L. R. A. 643; Trippe v. Provident Fund Soc, 140 N. Y. 23. 708 WAIVEK AND ESTOPPEL. §§ 235-238- f erred from mere silence, unless there be a duty to speak, and 'silence be likely to mislead, so that in effect a fraud is per- petrated. An insurer is not obliged to say or do anything^ to make a self-executing forfeiture effectual. It may wait until a claim is made under the policy, and then, in denial thereof, or in defense of a suit commenced therefor, allege tlie forfeiture. But if, in any negotiations or transactions with the insured, after a forfeiture has taken place, and has come to the knowledge of the insurer, it recognizes the con- tinued validity of the policy, or does acts based thereon, or requires the insured, by virtue thereof, to do some act, or in- cur some trouble or expense, the fo'rfeiture is, as a matter of law, waived.^ Forfeitures are not favored, either in law or in equity .. Stipulations providing for forfeiture will be strictly construed, and courts are often prone to recognize and give effect to any circumstances that indicate an election to waive a forfeiture, or any agreement to do so on which the other party has relied and acted. Any agreement, declaration, or course of action, on the part of an insurance company, which leads the insured honestly to believe, and warrants him in believing, that by conforming thereto a forfeiture of his policy will not be in- curred, followed by due conformity on his part, will estop the company from thereafter insisting upon a forfeiture, although it might be claimed under the express language of the con- tract. But while courts do not favor forfeitures, they cannot avoid enforcing them w^hen the party by whose default they are incurred cannot show some good and suitable ground in » Allen V. Vermont Mut. Fire Ins. Co., 12 Vt. 366; Cans v. St. Paul F. & M. Ins. Co., 43 Wis. 109, 28 Am. Rep. 535; Knickerbocker Life Ins. Co. V. Norton, 96 U. S. 234; Weidert v. State Ins. Co., 19 Or. 261. 20 Am. St. Rep. 809. §§ 235-238 WAIVER and estoppel. 709 the conduct of the other party on which to base a reasonable excuse for the default. On the question of a waiver of an express condition of a written contract, or consent that such condition need not be complied with after its breach, there must be evidence that the subject matter of the waiver and consent was in the minds of the parties at the time, and that the acts constituting the al- leged waiver were consciously and purposely done and recog- nized by the minds of the parties coming together upon the identical proposition. There is no estoppel where both par- ties, with equal opportunities of knowledge, or with the same knowledge, are each honestly mistaken concerning the facts.'' A waiver must be subsequent to the written contract, and to be operative must be made not only with knowledge of the forfeiture, and with intent to waive the provisions of the ex- isting contract, but must be supported by a valuable considera- tion, or become operative by way of estoppel. An intent to waive cannot be entertained from the mere fact of knowledge, in the face of ai^ express teiin of the contract made and deliv- ered subsequent to that knowledge. Thus the mere fact of knowledge, by the insurer, prior to the issuance of the policy, of the intention of insured to take out other insurance, is not of itself a waiver of the condition in the policy subsequently delivered.^ Knowledge that a house was vacant at the time of the assignment of a policy, is no consent that it shall remain so 'Brant v. Virginia Coal & Iron Co., 93 U. S. 326; Johnson v. Con- necticut Fire Ins. Co., 84 Ky. 470; Lyon v. Travelers' Ins. Co., .5-5 Mich. 141; Couch v. City Fire Ins. Co., 37 Conn. 248; Weidert v. State Ins. Co., 19 Or. 261. 20 Am. St. Rep. 809; Hartford L. A. Ins. Co. v. Unsell, 144 U. S. 450; Hartford Fire Ins. Co. v. Small (C. C. A.), 66 Fed. 493. * United Firemen's Ins. Co. v. Thomas (C. C. A.), 82 Fed. 409, 47 L. R. A. 454. 710 WAIVER AND ESTOPPEL. §§ 235-238 for a prohibited period.^ A specific waiver of a condition, for a limited time, ends upon the expiration of the time fixed.'* A waiver presupposes actual knowledge on the part of some- one having real or apparent authority to represent and bind the insurer, of the breach of condition which is to be waived/ Constructive notice, as by the filing of an instrument, is not sufficient;^ nor notice of an intention on the part of an in- sured to violate a condition.^ An agent will not be held to have due knowledge of out- standing insurance, Avhere by mistake lie supposes it to have expired. ^° Mere knowledge of a breach, and silence on the part of the- insurer, does not constitute a waiver by it.^^ If it be sought to prove a waiver by knowledge or an act of an agent, it must be shown that the agent had authority to act for the company in the premises, and either that he was so acting when the knowledge came to him, or, if the knowledge came to him while not acting as agent, that it was present in his mind when the policy was issued, or when he did some act in the course of his duty as agent, in recognition of the validity of the policy. -^^ " Sutherland v. Eureka F. & M. Ins. Co., 110 Mich. 668, 68 N. W. 985; Ranspach v. Teutonia Fire Ins. Co., 109 Mich. 699, 67 N. W. 967. « Betcher v. Capital Fire Ins. Co., 78 Minn. 240. ' Slobodisky v. Phenix Ins. Co., 52 Neb. 395, 72 N. W. 483, 53 Neb. 816, 74 N. W. 270; Finch v. Modern Woodmen, 113 Mich. 646, 71 N. W. 1104; Ellis v. Insurance Co. of North America, 32 Fed. 646. » Shaffer v. Milwaukee Mechanics' Ins. Co., 17 Ind. App. 204, 46 N. E. 557. » Home Fire Ins. Co. v. Wood, 50 Neb. 381, 69 N. W. 941. 1° Sanders v. Cooper, 115 N. Y. 279. "Betcher v. Capital Fire Ins. Co., 78 Minn. 240. "Goldin V. Northern Assur. Co., 46 Minn. 471; Phoenix Ins. Co. r. Flemming, 65 Ark. 54; Bell v. Lycoming Fire Ins. Co., 19 Hun (N. Y.), 238. §§ 235-238 WAIVER and EsxorrEL. 711 Conclusiveness of Waiver. A complete waiver is usually held to be complete, final and in-evocable, especially if it has been acted upon.^^ But where no prejudice results, or the waiver be without consid- eration, it can sometimes be withdrawn. ^^ Waiver a Question of Pact. Whether a given state of admitted or uncontroverted facts works a forfeiture or lapse of a policy of insurance, is a ques- tion of law. When the evidence is conflicting the truth must be deteraiined as a question of fact.^^ When the Forfeiture is Effectual. Provisions of insurance policies providing for forfeitures, are generally self -executing. An insurance company is not bound to do or say anything to give effect to a forfeiture pre- scribed by the policy, and is not bound to elect to declare void, or continue a policy, which stipulates that it shall be void upon the happening of specific occurrences, without the con- sent of the insurer.^® Waiver of Conditions of Standard Policies. In speaking of the provisions of the standard policy, the New York court of appeals has said : "Now, as heretofore, it is competent for the parties to a contract of insurance, by agreement in writing, or by parol, to modify the contract after the policy has been issued, or to waive conditions or forfeit- " Illinois Live Stock Ins. Co. v. Baker, 153 111. 240, 38 N. B. 627; Piatt V. Aetna Ins. Co., 153 111. 113, 26 L. R. A. 853. 1* See ante, "Waiver of Proofs of Loss," notes 149-153. ^'^ Pool V. Milwaukee Mechanics' Ins. Co., 91 Wis. 530, 51 Am. St. Rep. 919; Cleaver v. Iraders' Ins. Co., 71 Mich. 421, 39 N. W. 571, i-'Kyte V. Commercial Union Assur. Co., 149 Mass. 116; Carey v. German American Ins. Co.. 84 Wis. 80; Betcher v. Capital Fire Ins. Co., 78 Minn. 240. Y12 WAIVER AND ESTOPPEL. §§ 235-238 ures. Tlie power of agents, as expressed in the policy, may be enlarged by usage of the company, its course of business, or by its consent, express or implied. The principle that courts lean against forfeitures is unimpaired, and in weighing evidence tending to show a waiver of conditions or forfeitures the court may take into consideration the nature of the partic- ular condition in question, whether a condition precedent to any liability, or one relating to the remedy merely, after a loss has been incurred. But where the restrictions upon an agent's authority appear in the policy, and there is no evidence tend- ing to show that his powers have been enlarged, there seems to be no good reason why the authority expressed should not be regarded as the measure of his power, nor is there any reason why courts should refuse to enforce forfeitures plainly in- curred, which have not been expressly or impliedly waived by the company."^'^ But the better rule is that the requirements of a statute, — and the conditions of a standard policy are cer- tainly required by statute, — can only be waived in the manner, and according to the terms prescribed thereby. ^^ 1^ Quinian v. Providence Wash. Ins. Co., 133 N. Y. 365, 31 N. E. 31. See, also, Harris v. Plioenix Ins. Co., 85 Iowa, 238, 52 N. W. 128; Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146, 36 L. R. A. 271; Hicks V. British America Assur. Co., 162 N. Y, 284; Hobkirk v. Phoenix Ins. Co., 102 Wis. 13, 78 N. W, 160. See ante, c. 3, note 77. ^'Straker v. Phenix Ins. Co., 101 Wis. 413, 77 N. W. 752; O'Neil V. American Fire Ins. Co., 166 Pa. St. 72; Anderson v. Manchester Fire Assur. Co., 59 Minn. 182 (original opinion holding standard policy legal and valid). In Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146, the supreme court of Virginia said (page 153), speaking of the law regulating the making of a contract of insurance in that state: "It is a statutory rule for the regulation of contracts of insurance, which prescribes their scope and effect, and determines the duties and obligations of contracting parties. It is therefore as much a part of every contract * * * made after that statute was passed as if incorporated in it, the general rule being that laws in existence are necessarily referred to in all contracts made under §§ 235-238 WAIVER axd estoppel. 713 On tlie assumption that acts formulating and prescribing the tei-ms and conditions of standard policies are valid, it has been held that the provisions of such policies are binding upon the parties, and can only be changed or waived in the manner indicated by the acts.^^ A statutory provision that no action shall be begun on an insurance policy within ninety days after notice of loss, has been given, prevents the insured from bring- ing suit within that time, although the insurer, prior thereto, has absolutely denied liability.^'^ This is at variance with the general rule governing voluntary contracts of insurance, which holds that a denial of liability waives the performance by the insured and deprives the insurer of the beneiit of con- ditions subsequent to the loss, and precedent to the mainte- nance of an action. ^^ Collusion Between Agent and Insured. An insured cannot take advantage of a waiver resulting from any fraudulent and collusive agreement between him- self and an agent of the insurer. No man can take advantage of his own wrong-ful act.^^ Waiver Must be Pleaded. A general denial does not tender an issue of waiver. ^^ such laws, and that no waiver of the parties, nor stipulations in the contract, can change the law,"— citing Hermany v. Fidelity Mut. Life Ass'n. 151 Pa. St. 17; Fidelity Mut. Life Ass'n v. Ficklin, 74 Md. 172, 185; Queen Ins. Co. v. Leslie, 47 Ohio St. 409, 9 L. R. A. 45; White V. Provident S. Life Assur. Soc, 163 Mass. 108, 27 L. R. A. 398. "Hobkirk v. Phoenix Ins. Co., 102 Wis. 13, 78 N. W. 161; Anderson. V. Manchester Fire Assur. Co., 59 Minn. 182. '" Finster v. Merchants' & B. Ins. Co., 97 Iowa, 9, 65 N. W. 1004. " Finster v. Merchants' & B. Ins. Co., 97 Iowa, 9, 65 N. W. 1004. =^Rockford Ins. Co. v. Nelson, 75 111. 548; ante, c. 8, "Agents." ■-'^Guerin v. St. Paul F. & M. Ins. Co., 44 Minn. 20; Continental Ins. Co. V. Vaniue, 126 Ind. 410, 26 N. E. 119. 714 WAIVER AND ESTOPPEL. §§ 235-238 Illustrations. Waiver — At Time of Issuing Policy. An insurance company, whose authorized agent, with full knowledge of the facts, issues a policy which, on account of the existence of such facts would be void in its incipiency, and receives premiums therefor, cannot, in the event of a loss, set up such facts to defeat a recovery on the policy. ^^ Same — During the Running of the Risk. Any known breach of the condition of the jwlicy, or cause •of forfeiture, is waived by a recognition of the validity of the policy thereafter. ^^ Same— After the Loss. If, after a loss has occurred, and the fact becomes known to the insurer that a defense to the policy exists, or that a for- feiture has been incurred, the insurer takes affirmative action amounting to a confession of its liability, which induces the insured to believe that the loss will be paid, and to do acts "McElroy v. British America Assur. Co. (C. C. A.), 94 Fed. 990 (existing insurance); Germania Fire Ins. Co. v. Klewer, 129 111. 599, 22 N. E. 489 (vacancy) ; Hobkirk v. Phoenix Ins. Co., 102 Wis. 13, 78 N. W. 161 (existence of chattel mortgage); Miller v. Hartford Fire Ins. Co., 70 Iowa, 704 (other insurance) ; Breckinridge v. American Cent. Ins. Co., 87 Mo. 62; Phenix Ins. Co. v. La Pointe, 118 111. 384 (incumbrances); Rife v. Lebanon Mut. Ins. Co., 115 Pa. St. 530 (in- creased risk) ; Liverpool & L. & G. Ins. Co. v. Ende, 65 Tex. 118 (condition of title); Michigan Shingle Co. v. State Inv. & Ins. Co., 94 Mich. 389, 53 N. W. 945 (waiver of clear space clause). See, also, ante, c. 8, "Agents." =° Webster v. Phoenix Ins. Co., 36 Wis. 67; Powell v. Factors' & Traders" Ins. Co., 28 La. Ann. 19; Seibel v. Northwestern Mut. Relief Ass'n, 94 Wis. 253, 68 N. W. 1009; Williams v. Niagara Fire Ins. Co., 50 Iowa, 561; Insurance Co. of North America v. Garland, 108 111. 220; Mitchell v. Lycoming Mut. Ins. Co., 51 Pa. St. 402; Landers v. Watertown Fire Ins. Co., 86 N. Y. 414; Carpenter v. Providence Wash. Ins. Co., 16 Pet. (U. S.) 495. §§ 235-238 WAIVER and estoppel. 715- based on sucli belief whieb are attended witb some trouble or expense, sucb conduct will amount to a waiver. Tbe rule is tbat wlien an insurance company becomes aware tbat all rigbts under a policy bave been lost, it cannot, for an indefinite period, disguise its purpose to resist payment of tbe loss by affirmative action wbicb would lead tbe insured to believe tbat it admits its liability, and intends to discbarge it.-*' Tbus an adjustment of a loss, witb full knowledge by tbe insurer, of tbe violations of a condition of tbe policy, and witbout notifying tbe insured of an intention to insist upon tbe for- feiture, is a waiver of its rigbts to assert tbe forfeiture \'^'^ and tbe collection of a premium for tbe insurance covering tbe loss ;^^ and tbe requirement of original proofs of loss, or tbe amendment of defective proofs p^ and a demand for arbitra- tion.3» An insurer cannot take advantage of a neglect to bring a suit witliin tbe time limited by tbe policy, wbcre it bas con- tributed to tbe delay by bolding out bopes of an amicable ad- justment.^^ But mere negotiations for settlement do not == Knickerbocker Life Ins. Co. v. Norton, 96 U. S. 234; Equitable Life Assur. Soc. v. Hiett's Adm'r, 19 U. S. App. 173, 185, 7 C. C. A. 3{)9, 58 Fed. 541; Roby v. American Cent. Ins. Co., 120 N. Y. 510, 24 N. E. 808; Hollis v. State Ins. Co., 65 Iowa, 454, 21 N. W. 774. =' Cleaver v. Traders' Ins. Co., 71 Mich. 414, 15 Am. St. Rep. 275; Godchaux v. Merchants' Mut. Ins. Co., 34 La. Ann. 235; Levy v. Pea- body Ins. Co., 10 W. Va. 560; Fishbeck v. Phenix Ins. Co., 54 C'al. 422. " Phenix Ins. Co. v. Tomlinson, 125 Ind. 84, 21 Am. St. Rep. 203. See, also, Schreiber v. German-American Hail Ins. Co., 43 Minn. 367: Smith V. Continental Ins. Co., 6 Dak. 433, 43 N. W. 810. =»Hanscom v. Home Ins. Co., 90 Me. 333; Jerdee v. Cottage Grove Fire Ins. Co., 75 Wis. 345, 44 N. W. 636. Any objection to the suffi- ciency of the proofs of loss is waived by denial of liability on the ground that the policy was not issued. Campbell v. American Fire Ins. Co., 73 Wis. 100, 40 N. W\ 661. ="' See ante, c. 15, "Arbitration and Award." '^ Allemania Ins. Co. v. Peck, 133 111. 220; Thompson v. Phenix Ins, Co., 136 U. S. 287. 716 WAIVER AND ESTOPPEL. §§ 235-238 waive the conditioai requiring suit to be brought within a :specified tirae;^^ and it has been held that an insurer, by putting its refusal to pay a loss upon a specified ground, and prior to the commencement of an action, cannot, after suit brought, defend on any other grounds.^^ But this holding •can hardly be said to be supported by reason or logic. No Waiver. In answer to a suit brought on a policy, an insurer is en- titled to assert all possible defenses which are not inconsistent with each other.^'' An estoppel cannot be based upon intima- tions of legal conclusions f^ nor upon acts performed after the time when the other party claims to have been misled by tliem.^*' There can be no estoppel against pleading the ille- gality of a policy.^^ A party is not compelled to assert, upon the first trial of an action, all issues available upon the Tecord.^^ A waiver of a violation of one condition of a »== Allemania Ins. Co. v. Little, 20 111. App. 431. ^' Castner v. Farmers' Mut. Fire Ins. Co., 50 Mich. 273; Douville v. Farmers' Mut. Fire Ins. Co., 113 Mich. 158, 71 N. W. 517. But see contra, Hubbard v. Mutual Reserve Fund Life Ass'n, 80 Fed. 681. See, also, on waiver of forfeiture after loss, Titus v. Glens Falls Ins. Co., 81 N. Y. 419; Prentice v. Knickerbocker Life Ins. Co., 77 N. Y. 483; McGurk v. Metropolitan Life Ins. Co., 56 Conn. 528, 1 L. R. A. 563; Kiernan v. Dutchess County Mut. Ins. Co., 150 N. Y. 190, 44 N. E. 698; Dohlantry v. Blue Mounds F. & I>. Ins. Co., 83 Wis. 181, 53 N. W. 448; New York Life Ins. Co. v. Baker, 49 U. S. App. 690, 83 Ted. 647*. ^^Kahnweiler v. Phcenix Ins. Co., 57 Fed. 562; La Plant v. Fire- men's Ins. Co., 68 Minn. 82. See, also, ante c. 13, "Notice and Proofs •of Loss," notes 124--147, 154--157. ^^ Packard v. Connecticut Mut. Life Ins. Co., 9 Mo. App. 469. =" Behrens v. Germania Fire Ins. Co., 64 Iowa, 19. " Spare v. Home Mut. Ins. Co., 8 Sawy. (U. S.) 618, 15 Fed, 707. ^Moulor V. American Life Ins. Co., Ill U. S. 335. §§ 235-238 WAIVER and estoppel. 71T policy is not a waiver of any other condition. ^^ An examina- tion of the insured under oath, or an appraisement, does not prevent the insurer from thereafter claiming a forfeiture, where the contract provides that such acts shall not constitute a waiver. ^° A waiver and estoppel must be predicated upon acts of the insurer which have misled the insured to his. prejudice.^ ^ A waiver cannot be predicated upon mere si- lence and inaction of an insurer after the loss ;^^ nor at any time unless silence would be misleading and deceptive.^^ Where a policy provides that no action for recovery thereon can be maintained unless commenced within a specified time after the fire, and that no provision or condition, or any for- feiture, shall be waived by any act or proceeding relating ta the appraisal, the adjustment of a loss does not excuse a fail- ure to bring a suit within the required time.^^ Submission to arbitration is not, of itself, a waiver by the insurer of an election to rebuild, nor does it exclude the possibility of a previous waiver, nor does it affect the status of the parties in any other particular, where the policy expressly provides that the appraisement is without reference to any other question. ^^ The mere offer of an insurer to pay an amount less than that ^'''Trott V. Woolwich Mut. Fire Ins. Co., 83 Me. 362; St. Onge v. AVestchester Fire Ins. Co., 80 Fed. 703. «City Drug Store v. Scottish U. & N. Ins. Co. (Tex. Civ. App.), 44 S. W. 21. ^'Ante, notes 1 to 9; Georgia Home Ins. Co. v. Rosenfield (C. C. A.), 95 Fed. 358; Alabama State Mut. Assur. Co. v. Long Clothing & Shoe Co. (Ala.), 26 So. 655; Globe Mut. Life Ins. Co. v. Wolff, 95 U. S. 326; McCormick v. Springfield F. & M. Ins. Co., 66 Cal. 361. « Gibson Electric Co. v. Liverpool & L. & G. Ins. Co., 159 N. Y. 418, 54 N. E. 23. "Ante, notes 1 to 9; East Texas Fire Ins. Co. v. Ferkey, 89 Tex. 604, 35 S. W. 1050. "Willoughby v. St. Paul German Ins. Co., 68 Minn. 373. *"• Piatt V. Aetna Ins. Co., 153 111. 113, 26 L. R. A. 853. V18 WAIVER AND ESTOPPEL. §§ 235-238 claimed by tlie insured, by way of compromise and settlement of a loss, will not alone constitute a waiver of its rights to as- sert forfeitures of the policy, or a failure to comply with its conditions, when there is no statement or admission of fact, in recognition of the validity of the policy, which can be di- vorced from the offer of settlement, and the insured is not in any way prejudiced thereby. A man may, without prejudice to his rights, offer to buy his peace.^^ « Richards v. Continental Ins. Co., 83 Mich. 508, 21 Am. St. Rep. 611; Houdeck v. Merchants' & B. Ins. Co., 102 Iowa, 303, 71 N. W. 354; Hubbard v. Mutual Reserve Fund Life Ass'n, 80 Fed. 681: Cook V. Continental Ins. Co., 70 Mo. 610; Eastern R. Co. v. Relief Fire Ins. Co., 105 Mass. 579; Roberts v. Northwestern Nat. Ins. Co., 90 Wis. 210, 62 N. W. 1048; Lake v. Farmers' Ins. Co., 110 Iowa, 473, 81 N. W. 711. See, ante, c. 14, notes 158-168, "Waiver of Notice and Proofs of Loss." CHAPTER XIX. REINSURANCE. S 239. Definition and Nature. 240. Who may Sue. 241. Right to Reinsure. 242. Insurable Interest. 243. Form and Essentials of Contract. 244. Agents' Powers. 245-248. The Contract. 249-251. Amalgamation or Consolidation of Companies. Definition and Nature. § 239. A simple contract of reinsurance is an agreement whereby an insurer is promised indemnity to a specified amount against a risk assumed by him under a contract of in- surance in favor of a third party. The party indemnified is called the reinsured: the one in- demnifying is called the reinsurer. A contract of reinsurance has the qualities and incidents of a contract of simple insurance. Contracts of reinsurance, by which one insurer causes the sum which he has insured to be reassured to him by a distinct contract with another insurer with the object on the part of the first named of indemnifying himself against his ovni re- sponsibility (though prohibited for a time in England by statute), were vahd by the common law, and have always been lawful in this country. Mr. Kent thus states the law : "After an insurance has been made the insurer may have the entire sum he hath insured, reassured to him by some other insurer. The object of this is indemnity against his own act j and, if he 720 KEINSUKANCE. § 23& gives a less premium for the reassurance, all his gain is the difference between what he receives as a premium for the orig- inal insurance and what he gives for the indemnity against his own policy. * * * These reassurances are prohib- ited in England except in special cases. * * * The con- tract of reassurance is totally distinct from and unconnected with the primitive insurance, and tJie reassured is obliged to prove the loading and value of the goods, and the existence and extent of the loss, in the same manner as if he were the original insured. * * * If he proves the original claim against him to bo valid when he resorts over to the reinsurer, he makes out a case for indemnity." Thus it will be seen that a contract of reinsurance is but a modification of the ordinary contract of insurance. The reinsurer assumes altogether, or in part, the risk of the orig- inal insurer. The thing insured is the same as in the original contract; but the subject of indemnity is the risk assumed by the first insurer. It is very similar to the common case of simple insurance in favor of a mortgagee who becomes in- sured against loss of the property mortgaged, which in such case is the subject of the risk; while the subject of indemnity is the mortgage debt. The purpose and effect of reinsurance is to throw the risk of the primitive insurer, who is in this connection called the reinsured, upon another insurer, Avho is called the reinsurer. Indemnity to the reinsured is the un- derlying principle. To indemnify means to secure and pro- tect from, or to compensate for, damage or liability that may happen from a given act or event. If the reinsured is not liable upon his own contract of insurance he cannot recover against the reinsurer. But the proof of liahilify is sufficient. It is not necessary that the reinsured pay the loss or discharge his liability before proceeding against the reinsurer.^ >3 Kent, Comm. § 279; Eagle Ins. Co. v. Lafayette Ins. Co., 9 Ind. § 240 WHO MAY SUE. 721 Who Mat Sue. § 240. Beinsurance frequently inures to the benefit of the original insured. A simple contract of reinsurance is a contract of indemnity "whereby the insurer reinsures one or more of its risks in an- other company, and is solely for the benefit of the primitive insurer. In such a contract its policy-holders have no con- cern, are not the parties for whose benefit the contract of reinsurance is made, and they cannot, therefore, sue thereon.^ But the contract frequently goes further than this and looks, toward the protection of the original insured and embraces also an express agreement of the reinsurer to assume and pay the losses of the policy-holder; and it is therefore an agree- ment upon which the latter is entitled to maintain an action directly against the reinsurer. Whether the original policy- holders have any right of action against the reinsurer de- pends upon whether the contract of reinsurance provides for indemnity to them or merely to the first insurer, e. g. where one insurance company sold to another its entire business, good will and property in consideration whereof the latter 443; Home v. Mutual Safety Ins. Co., 1 Sandf. (N. Y.) 137, 2 Bennett, Fire Ins. Cas. 580; Merchants' Mut. Ins. Co. v. New Orleans Mut. Ins. Co., 24 La. Ann. 305; Barnes v. Hekla Fire Ins. Co., 56 Minn. 38; Fame Ins. Co.'s Appeal, 83 Pa. St. 396; New York Bowery Fire Ins. Co. V. New York Fire Ins. Co., 17 Wend. (N. Y.) 359; Bartlett v. Fire- man's Fund Ins. Co., 77 Iowa, 158. 41 N. W. 601; Faneuil Hall Ins. Co. V. Liverpool & L. & G. Ins. Co., 153 Mass. 67, 10 L. R. A. 423; Phoenix Ins. Co. v. Erie & W. Transportation Co., 117 U. S. 312; Smith V. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 727; Philadelphia Ins. Co. V. Washington Ins. Co., 23 Pa. St. 250. =" Cases in note 1, ante; Price v. St. Louis Mut. Life Ins. Co., 3 Mo. App. 262; Herckenrath v. American Mut. Ins. Co., 3 Barb. Ch. (N. Y.) 63; Strong v. Phoenix Ins. Co., 62 Mo. 289; Delaware Ins. Co. V. Quaker City Ins. Co., 3 Grant Cas. (Pa.) 71. See post, notes 6, 7 and 8. KERR, INS.— 46 722 KEINSUEANCE. § 240 "reinsured the risks of the former and a2:reed that all losses arising under the policies of the original insurer shall he home, paid and satisfied hy the insurer," the original insured is entitled to maintain an action against the reinsurer for a loss covered by his policy.^ And a contract whereby one insurer reinsures another on all risks of the latter for which it has policies outstanding and "agrees to assure such policies and to pay to the policy- holders all such sums as the 'reinsured' may by force of such policies become liable to pay," is for the benefit of the policy holders. It may be enforced by them without getting judg- ment against the first insurer, and includes liability of the first insurer for damages for failure to continue its contract."* In such case a poliej^-holder may sue either company. The remedies are not inconsistent and he is not put to an election. He may have an action against each, though he can have but one satisfaction.^ An agreement by one insurance company with the agent of another company to take a risk and issue a policy to certain policy-holders in lieu of one which the latter company has ordered cancelled, is not a reinsurance of such company cancelling its own risk, so as to enable it to sue in its OA\Ti name for payment of a loss occurring before the first policy was cancelled and the latter delivered. But property o^vners can maintain an action on such an agreement." And upon the principle that a creditor, for the purpose of satisfying his debt, may, in equity, avail himself of any subsisting pro- vision made by his insolvent debtor for its payment, a rein- .surer may be compelled to pay the amount of the loss for "Johannes v. Phenix Ins. Co., 66 Wis. 56, 27 N. W. 414. ♦Fischer v. Hope Mut. Life Ins. Co., 69 N. Y. 161; Glen v. Hope Mut. Life Ins. Co., 56 N. Y. 379, 4 Bigelow, Life & Ace. Ins. Cas. 339. \Barnes v. Hekla Fire Ins. Co. 56 Minn. 38. "Merchants' Ins. Co. v. Union Ins. Co., 162 111. 173. § 241 lUGHT TO REINSURE. 723 wliich it is liable directly to the insured or the party ulti- 'mately entitled to the money, when the prior insurer whom it has indemnified has become insolvent.''^ But where by the terms of the contract in controversy, the defendants "reinsure the American Insurance Co., upon the following policies issued by them" (describing them), "loss, if any, payable to the assured upon the same terms and condi- tions as contained in the original policies," it was held that the word "assured" meant the party reinsured, and not a property o'\\Tier to whom a policy had been issued ; that the latter could not maintain an action upon the contract ; and that oral evidence was inadmissible to show the meaning attached to that word by the parties at the time of making the con- tract.^ When the reinsurance is available to the insured, he may take advantage of it or not at his option. He may sue either the insurer or the reinsurer or both ; but can collect only from one.^^ Right to Reinsure, § 241. In the absence of any statutory prohibition and of any specific stipulation in the policy to the contrary, there can be no doubt of the right of an insurer to effect reinsurance. Under the general powers conferred upon an insurance company to make contracts of insurance, it is authorized, (a) to seek indemnity by reinsuring its risks either in whole or in part, or (b) to give the same protection and indemnity to an- other insurer by assuming the risks of the latter.^ An iiisur- 'Hunt V. New Hampshire F. U. Ass'n, 68 N. H. 305, 38 Atl. 145, 38 L. R. A. 514. See ante, notes 1, 2. * Carrington v. Commercial F. & M. Ins. Co., 1 Bosw. (N. Y.) 152. And see Jackson v. St. Paul F. & M. Ins. Co., 99 N. Y. 124. * Barnes v. Hekla Fire Ins. Co., 56 Minn. 41. "Cases ante; Sun Ins. Office v. Merz. 63 N. J. Law, 365, 43 Atl. 693; Insurance Co. of North America v. Hibernia Ins. Co., 140 tf. S. 565; 724 EEINSD RANGE. § 241 ance company autliorized to do "business npon either tlie stock or mutual plan may reinsure its risks, and may transfer its property including premium notes as a consideration therefor,, at least where the new contract inures to the benefit of the policy-holders ; and a failure of the original company to com- ply with the law forbidding it to do business without having a given number of members, or a given amount of assets and premium notes, does not prevent it from indemnifying itself against loss on risks already assumed. ^^ In Ohio the right of a mutual company to reinsure the risks of a similar company is denied. ^^ In Iowa a contrary rule obtains with this limitation, viz. : that the reinsurer cannot divert the mortuaiy or trust funds collected from its o\^ai members to any other purposes than those specified in its articles of incorporation or by-laws, and that therefore an undertaking to pay all the liabilities of the reinsured for ac- crued death losses from such funds is ultra vires and void.^^ A fire insurance company w^hich has authority to take risks on all kinds of property, may contract to reinsure the risks of another company notwithstanding the grant of a special power to "reinsure themselves. "^^ New York Bowery Fire ms. Co. v. New York Fire Ins. Co., 17 Wend. (N. Y.) 359; Chalaron v. Insurance Co. of North America, 48 La. Ann. 1582, 36 L. R. A. 742. "Davenport Fire Ins. Co. v. Moore, 50 Iowa, 626; Brum v. Mer- chants' Mut. Ins. Co., 4 Woods (U. S.), 156, 16 Fed. 140; post, note 21; Temperance Mut. Ben. Ass'n v. Home Friendly Soc, 187 Pa. St. 38, " State V. Monitor Fire Ass'n, 42 Ohio St. 555. See, also. People v. Empire Mut. Life Ins. Co., 92 N. Y, 105. " Twiss V. Guaranty Life Ass'n, 87 Iowa, 733, 55 N. W. 8, 43 Am. St. Rep. 418; Cathcart v. Equitable Mut. Life Ass'n, 111 Iowa, 471, 82 N. W. 964; Davenport Fire Ins. Co. v. Moore, 50 Iowa, 626; Bent V. Hart, 73 Mo. 641; Alexander v. Williams, 14 Mo. App. 13. " Fame Ins. Co.'s Appeal, 83 Pa. St. 396. Compare Cannon v. Home Ins. Co., 53 Wis. 585; Alexander v. Williams, 14 Mo. App. 13; Mason §§ 242, 243 fokm and essentials of contract. 725 Insurable Interest. 242. The one procuring reinsurance must have an insurable interest in the risk reinsured. It is well settled that an insurer of property or lives acquires by his contract of insurance an insurable interest in the prop- erty or life insured ; and this interest he may protect by rein- suring either the whole or part of the risk. But a contract of reinsurance which by its terms makes the reinsurer liable for losses on property or lives in which at the date of rein- suring the reinsured had no insurable interest, is invalid. As regards the necessity for the existence of an insurable interest in the insured, the contract of reinsurance has all the qualities and incidents of a contract of simple insurance.^* Form and Essentials of Contract. § 243. The contract of reinsurance (a) Is not within the Statute of Frauds, i. e. it may be established by parol; 'b) Must contain all the elements of a contract of simple insurance. (a) An agreement to reinsure is not an undertaking to answer for the debt or default of the first insurer; but is an original undertaking entered into -with, him to indemnify either him, or the o^\iier of the insured property, or the payee or beneficiary under the first policy, to the specified amiount, in case a loss or death occurs, or the event insured against happens. It is in no sense a contract of giiaranty or surety- ship ; but under it the reinsurer, as between the immediate V. Cronk, 125 N. Y. 496; Casserly v. Manners, 48 How. Pr. (N. Y.) 219. See post, notes 19-22, 66-76. " Manufacturers' F. & M. Ins. Co. v. Western Assur. Co., 145 Mass. 419; Phoenix Ins. Co. v. Erie & W. Transportation Co., 117 U. S. 312; Sun Ins. Office v. Merz, 03 N. J. Law, 365, 43 Atl. 693; Chalaron v. Insurance Co. of North America, 48 La. Ann. 1582, 36 L. R. A. 742. i26 KEINSUKANCE. §24i parties, assumes the risk absolutely. He takes the place of the first insurer, assuming all or part of the liability ; and is bound in any event to answer either to him, or to the payee in the original policy, when the liability matures. The statute of frauds has no application to a contract of that nature. ^^ (b) The contract must be complete, definite, and certain in all its terms, i. e. as to parties, the risk insured against, the commencement, duration, and extent of liability, and the con- sideration.^^ Agent's Power. § 244. It is incumlDent upon the party alleging the existence of a contract of reinsurance to produce competent and suflB- cient evidence of the authority of the agent executing the con- tract to bind the reinsurer in the premises. Neither the procuring of a contract of reinsurance in favor of his company, nor the issuing of such a contract in favor of another insurer, can be said to be within the scope of the authority of an ordinary insurance agent. The principal will be bound only when either actual or apparent power to bind it by effecting reinsurance is shown to exist in the one exercising such power, except in cases where an unauthorized act is adopted or ratified by the principal himself. ^^ A general power given to an agent to reinsure risks taken by another association does not authorize him, in the absence of any act "Bartlett v. Fireman's Fund Ins. Co., 77 Iowa, 155, 41 N. W. 601; Commercial Mut. Marine Ins. Co. v. Union Mut. Ins. Co., 19 How. (U. S.) 318. "Ante, c. 5; post, notes 17-20; Home Marine Ins. Co. v. Smith (1898), 2 Q. B. 351, 67 Law J. Q. B. 777; Union Ins. Co. v. American Fire Ins. Co., 107 Cal. 327, 28 L. R. A. 692; Commercial Mut. Marine Ins. Co. V. Union Mut. Ins. Co.. 19 How. (U. S.) 318. "Ante, c. 4; Commercial Mut. Marine Ins. Co. v. Union Mut. Ins. Co., 19 How. (U. S.) 318; Phoenix Ins. Co. v. Anchor Ins. Co., 4 Ont. 524. g 24i agent's POWER. 727 of acquiescence or ratification by liis company, to reinsure himself of otliers for whom he is acting as agent. One who is the agent of two companies, having placed a risk in one, cannot reinsure it in the other. ^^ The reason for this is that the same person cannot, without the consent of his principals, act as agents of both in their mutual transactions where the interests of the different principals would be opposed. Yet. a transaction is not necessarily void merely because it is had or made between two corporations which have the same execu- tive officers, provided the corporations have the right within the scope of their corporate powers to deal with each other in that particular. The power of each to contract with the other is not lost or destroyed by the fact that some or all of the directors of each are common to both. But the directors in sucli case must act in good faith and with fidelity to the interests of both corporations ; and a showing of actual fraud or of any appreciable advantage received by either corporation to the disadvantage of the other, will be sufficient to justify the courts in refusing their sanction. ^^ Thus the reinsurance of the policies and the transfer of the whole reserve of a solvent life insurance company to an insolvent company, without se- curity, by directors who have bought the stock of the former is a fraud on the policy-holders and consequently void. 2*^ A provision in a charter that "this company shall have power to make reinsurance upon any or all risks taken by them" does not give the directors power to close out the business of the company; but when the best interests of the company demand "Timberlake v. Beardsley, 22 App. Div. (N. Y.) 439; Mercantile Mut. Ins. Co. V. Hope Ins. Co., 8 Mo. App. 408. ''Alexander v. Williams, 14 Mo. App. 13; Leavenworth County Com'rs V. Chicago, R. I. & P. Ry. Co., 134 U. S. 688; San Diego, O. T. & P. B. R. Co. V. Pacific Beach Co., 112 Cal. 53, 33 L. R. A. 788. ='• Mason v. Cronk, 125 N. Y. 500; Casserly v. Manners, 48 How. Pr. (N. Y.) 219. T2y KEINSUKANCE. §§ 245-247 it, it is Avithin their power and it is their duty to reinsure ; and they can do this in contemplation of proceedings for dissolu- tion; and as a consideration therefor thej can transfer the personal property of the company, provided that the reinsur- ance be properly and reasonably effected.^^ Such an arrange- ment, if made injudiciously or in bad faith, might be of a nature and tenor to bind the contracting parties, and yet not be effectual to place the property transferred beyond the reach of the creditors of the transferror.^^ The Contkact. § 245. A contract of reinsurance will receive such a construc- tion as is ordinarily and naturally inferable from its terms and conditions. The general rule is that a policy takes efffect from its date, unless it be otherwise agreed, or unless there is evidence of a contrary intent. The failure of the reinsured to disclose all facts material to the risk is ground for rescission. The rights of an original insured under a contract of rein- surance executed for his benefit are determined as in a case of simple insurance. § 246. An insurer who has reinsured the whole or part of his risk is entitled only to indemnity within the amount of the reinsurance. He will not be allowed to profit by the transac- tion. § 247. Judgments obtained by the original insured against the original insurer on account of the risk reinsured are bind- ing upon the reinsurer only when the latter was given prompt notice of the litigation, and had opportunity to assume the de- fense. " Jameson v. Hartford Fire Ins. Co., 14 App. Div. 880, 44 N. Y. Supp. 15; Temperance Mut. Ben. Ass'n v. Home Friendly Soc, .187 Pa. St. 38; Davenport Fire Ins. Co. v. Moore, 50 Iowa, 619; McKean V. Bidrlle, 181 Pa. St. 361; Insurance Com'r v. Provident Aid Soc, 89 Me. 413, 36 Atl. 627; post, note 86. " Bent V. Hart, 73 Mo. 641. §§ 245-248 THE CONTKAOT. 729 § 248. Except in cases of estoppel (a) By judgment, or (b) By his having consented to a settlement with the original insured, a reinsurer may, when sued, avail himself of all defenses which the original insurer could have made against its liability. Construction of Contract of Reinsurance. A court will not enlarge the liability under a contract of re- insurance beyond the limits clearly and expressly fixed by the policy, nor speculate as to the intention of the parties in pro- curing the reinsurance. It may be for the whole or part of the risk taken by the original insurer. In fire insurance the general rule is that the original insurer retains part of the risk; and, in event of total loss, to the extent of the amount retained, shares the loss with the reinsurers. Reinsurance not to take effect except above a stated amount of loss, is of a ■special character; and cannot be inferred from the mere •statement of the original insurer made w^hile effecting the contract that "we carry our line," especially where the policy^ is in the ordinary form and covers loss to a specified amount.^^ A reinsurer who assumes the "contingent liabil- ity" of another insurer is not liable for a loss which had oc- curred before the assumption.^* But a loss which had al- ready happened, and of which both parties were ignorant, is ^ Chalaron v. Insurance Co. of North America, 48 La. Ann. 1582, 36 L. R. A. 742; London Assur. Corp. v. Thompson, 22 App. Div. 64, 47 N. Y. Supp. 830; Insurance Co. of State of Pennsylvania v. Tel- fair, 61 N. Y. Supp. 322; Sun Mut. Ins. Co. v. Ocean Ins. Co., 107 U. S. 485, 1 Sup. Ct. 583; Royal Ins. Co. v. Home Ins. Co. (C. C. A.), 68 Fed. 698; Philadelphia Life Ins. Co. v. American L. & H. Ins. Co., 23 Pa. St. 65; Fame Ins. Co.'s Appeal, 83 Pa. St. 396; Com. Ins. Co. v. Globe Mut. Ins. Co., 35 Pa. St. 475; London & L. Fire Ins. Co. v. Lycoming Fire Ins. Co., 105 Pa. St. 424; St. Nicholas Ins. Co. v. Mer- •chants' Mut. F. & M. Ins. Co., 11 Hun (N. Y.), 108; post, note 38 £t seq. ^* Olsen V. California Ins. Co., 11 Tex. Civ. App. 371, 32 S. W. 446. 730 EEINSUKANCE. §§ 245-248 covered "vvben the reinsurance relates back to the date of the primitive insurance."^ Where there are no circumstances in- dicating the intent of the parties^ and no time is specified in the contract, the risk will be deemed to have commenced at the date of the contract, e. g. — an agreement to issue a policy of reinsurance in the usual form and for the usual premium, made after the property v^'as destroyed, of which fact both parties were ignorant, will not become operative by relating to the beginning of the original- insurance, but will be deemed to commence at the date of the contract. ^^ Where a contract to reinsure stipulates that the policy is to be subject to the same conditions and provisions as are or may be adopted by the company reinsured, the company rein- suring binds itself by what may be adopted by the reinsured properly pertaining to the risk.^'^ A clause in a contract for reinsurance that "this policy is subject to the same risks, conditions, mode of settlement, and in case of loss payable at same time and in same manner as the policies reinsured," does not mean that the various terms of the reinsured policies as to risks, conditions, mode of settle- ment, time and manner of payment in ease of loss and limita- tion period, are incorporated with and form a part of the con- -^ Philadelphia Life Ins. Co. v. American L. & H. Ins. Co., 23 Pa. St. 65. In this case A. insured the life of B. on the 24th of February, 1851, with the privilege of insurance for another year. On the 31st of May, 1851, the insurer. A., obtained a reinsurance of the said risk from C. for the term of one year; but the time when the year was to begin or end was not stated. B., the insured, had died in a distant state several weeks before the second insurance was effected, but his death was unknown at the time to both parties. Held, that the rein- surance must be considered as taking effect on the 24th of February, and not on the 31st of May. -' Union Ins. Co. v. American Fire Ins. Co., 107 Cal. 327, 28 L. R. A. 692. -' Manufacturers' F. & M. Ins. Co. v. Western Assur. Co., 145 Mass. 419. §§ 245-248 THE CONTRACT. 731 tract of reinsurance; but that tlie original policies fumisli in themselves particulars of the basis upon which the contract of reinsurance stands, and that in all dealings with the original insured, the provisions of the policy issued to him are to he obsen^ed.^^ Life Insurance. A condition of reinsurance imposed by an agreement be- tween life insurance eomiDanies that each member desiring to be reinsured shall present a satisfactory transfer applica- tion, does not justify a refusal to reinsure a member on the ground that his application for transfer is not satisfactory on account of physical conditions and age, where the agreement provides for the reinsurance of members on the basis of their original applications and the rating of them at the same amount with premiums payable at the same dates. ^^ When a reinsurer agrees to assume all the outstanding risks of another company, it cannot discriminate between the risks; nor will it be heard to object that at the time its policy was issued the risk covered thereby was* not a safe or proper one for it to take. If policies are transferred en bloc it is held, unless an agreement appears to the contrary, that the conditions of each original policy remain unchanged. And where a transferee issues to a policy-holder of the transferror, a policy which recites the surrender of his original policy, and makes the application and representations previously given a part of the new contract and a warranty, these will be held to relate to the date of the application for the first policy and not to the date of the issue of the latter one.^^ A prohibition in a gen- " Faneuil Hall Ins. Co. v. Liverpool & L. & G. Ins. Co., 153 Mass. 63, 10 L. R. A. 423; ante, note 27. "National Mut. Ins. Co. v Home Ben. Soc, 181 Pa. St. 443. '"Cohen v. Continental Life Ins. Co., 69 N. Y. 300; Shaw v. Repub- lic Life Ins. Co., 69 N. Y. 286. ■732 EEINSUKANCE. §§ 245-218 c-ral insurance statute, or in a by-law, against insuring per- sons over sixty years of age, does not affect a member of an insurance company which has under authority of statute transferred its risks to, or reinsured them in, another com- pany, though such member is at the date of the transfer or reinsurance beyond that age ; nor is the transferee thereby pro- liibited from reinsuring him.^^ Heseission. In respect to the duty of disclosing all material facts perti- nent to the subject of the risk, the case of reinsurance does not differ from that of an original insurance. The obligation in each case is one of uberrimae fidei. The one effecting the -contract must act in good faith, and when asked, must give such information as he possesses affecting the character of the risk or the nature of the peril insured against. If repre- sentations are made as an inducement towards the procuring of the contract, they must be full and true. The duty of communication is independent of the intention, and is vio- lated by the fact of misstatement oy concealment even where there is no design to deceive. The exaction of information in some instances may be greater in the case of reinsurance than -as between the parties to an original insurance. In the former, the party seeking to shift the risk he has already assumed, is bound to communicate all infonnation which would be likely to influence the judgment and action of the reinsurer ; while in the latter a party is "not bound, nor could it be expected that he would speak evil of himself." If the reinsured omits to perfonn this duty, whether from misapprehension of the probable effect of the communication, or from design, and the "^Rand v. Massachusetts Ben. Life Ass'n, 18 Misc. Rep. 336, 42 N.Y. SuEp. 26; Cathcart v. Equitable Mut. Life Ass'n, 111 Iowa, 471, 82 N. W. 964; Wiberg v. Minnesota S. R. Ass'n, 73 Minn. 297; Sey- mour V. Chicago Guaranty Fund Life Soc, 54 Minn. 147. §§ 24:5-248 THE CONTRACT. 733 information would be material to the risk or to tlie amount of the premium to be charged, the policy of reinsurance will be voidable. This obligation of a faithful disclosure of all material facts is, however, to be understood in a reasonable sense. The mle exacts the information of facts, not con- tingencies. If the infoitnation is stated as opinion, expecta- tion, or belief, it does not affect the policy if given in good faith. In such case the insurer takes the risk of the state- ment. If made in bad faith it will avoid the policy. Thus the representations that the primitive insured was a man of integrity and good business and financial standing, when he was not; that other reinsurance had been obtained, which would tend to show that otlier insurers approved the risk, when there was no otlier insurance ; that the insurer carried and intended to retain a part of the risk, when in fact it did not retain any but reinsured the whole — are all instances of false representations which will warrant the reinsurer in cancelling any policy he may be induced to issue in reliance thereon.-^^ But the representation of an insurer that it would carry part of the risk, made in good faith and witli the full expectation that this would be done, does not avoid a policy of reinsurance made in reliance on such statement whieli was rendered impossible of fulfilment by the unforeseen failure of the first insurer to put on board a cargo to the amount of the risk it had sought and accepted. ^^ In this connection we must not overlook the distinction between a false representation of s^ Traill v. Baring, 10 Jur. (N. S.) 87, 3 Bigelow, Life & Ace. Cas. 233; Foster v. Mentor Life Assur. Co., 3 El. & Bl. 48, 3 Bigelow, Life & Ace. Cas. 113; New York Bowery Fire Ins. Co. v. New York Fire Ins. Co., 17 Wend. (N. Y.) 359; Sun Mut. Ins. Co. v. Ocean Ins. Co., 107 U. S. 485, 1 Sup. Ct. 598; Cohen v. Continental Life Ins. Co., 69 N. Y. 300. '^ Chalaron v. Insurance Co. of North America, 48 La. Ann. 1582, 36 L. R. A. 742. ^34. KEINSURANCE. §§ 245-248 a- material fact which makes the contract a nullity, and an oral promissory representation or warranty, made in good faith before the execution of the written contract, in regard to the intention, purpose, or future conduct of the promisor.^* Conditions and Stipulations of Policy. Where the blank form of policy used for reinsurance is that of the ordinary policy of insurance, and contains the condi- tions that no action can be maintained thereon until after an award made as specified fixing the amount of the claim, nor unless commenced within twelve months after the loss, these conditions are inapplicable to the contract of reinsurance and the right to recover is not affected thereby.^^ A clause to the effect that the reinsurer is made the agent of the original waiver for the purpose of doing in regard to all outstanding policies covered by the contract of reinsurance, all acts nec- essary to transfer said policies according to their t^rms and conditions, does not make the reinsurer the sole agent for that purpose, nor prevent the original insurer from consenting to a transfer. Unless a contrary intention clearly appears, the original insurer can assent to any reasonable and proper waiver of the conditions of its own policy which does not in- fluence a loss or increase the burdens of the reinsurer. A stip- ulation that the policy of reinsurance is subject to the same conditions and terms as the original policy, is construed to mean only that these provisions regulate the basis on which the original contract stands and dealings with the original in- sured. ^"^ But the reinsurer is discharged from liability to the "Prudential Assur. Co. v. Aetna Life Ins. Co., 23 Fed. 438; Union Mut Life Ins. Co. v. Mowry, 96 U. S. 544. ='•'■ Jackson v. St. Paul F. & M. Ins. Co., 99 N. Y. 124; Eagle Ins. Co. V. La Fayette Ins. Co., 9 Ind. 443. '" Fire Ins. Ass'n v. Canada F. & M. Ins. Co., 2 Ont. 481, 495; Cashau V. Northwestern Nat. Ins. Co., 5 Biss. 476, Fed Cas. No. 2499; Manu- §§ 24:0-24:8 ' THE CONTRACT. 735 original insurer if the latter, without consent of the former, subsequent to the making of a contract of reinsurance which by its temis becomes void in case of the use of the property insured for the storage of articles denominated as extra hazardous, for an additional premium grants its assured the privilege of canning extra hazardous goods.^'^ A condi- tion that in case of loss the reinsurer shall pay pro rata at and in the time and manner of the reinsured, means that the rein- surer shall have all the advantages of the time and manner of payment specified in the original policy. It has no refer- ence to the insolvency of the reinsured.^ '^^ Extent of Liability of Reinsurer. The liability of a reinsurer is to be determined by the word- ing of its agreement interpreted in accordance with the ordi- nary rules governing the construction of contracts, giving effect as far as possible to the expressed intention of the par- ties. The courts will not enlarge this liability beyond the limits clearly and expressly fixed by the agi*eemcnt itself. The contract is primarily one of indemnity. To indemnify . means to secure one against, or to compensate one for, dam- age or loss that may happen from a given act or event. The rights of an original insured for whose benefit reinsurance facturers' F. & M. Ins. Co. v. Western Assiir. Co., 145 Mass. 419; Faneuil Hall Ins. Co. v. Liverpool & L. & G. Ins. Co., 153 Mass. 63, 10 L. R. A. 423. But see North Pennsylvania Fire Ins. Co. v. Sus- quehanna Mut. Fire Ins. Co., 2 Pears. (Pa.) 291. " St. Nicholas Ins. Co. v. Merchants' Mutual F. & M. Ins. Co., 83 N. Y. 604. As to proofs of loss, see ch. XIII. And see Cashau v. Northwestern Nat. Ins. Co., 5 Diss. 476, Fed. Cas. No. 2499; Yonkers & N. Y. Fire Ins. Co. v. Hoffman Fire Ins. Co., 6 Rob. (N. Y.) 316; New York Bowery Fire Ins. Co. v. New York Fire Ins. Co., 17 Wend. (N. Y.) 359; Consolidated R. E. & F. Ins. Co. v. Cashow, 41 Md. 59. " Cashau v. Northwestern Nat. Ins. Co., 5 Biss. 476, Fed. Cas. No. 2499, and cases cited in note 44a, post. 736 EEINSUKAXCE. §§ 245-248' has been effected, are determined by bis'contracts, as in a cas& of simple insurance. When an original insurer seeks to en- force a contract bj which it has sought to shift part of its lia- bility to another, a different question is presented. In sucli case he must show (1) the existence and extent of a loss cov- ered by the original policy ; (2) his owti liability for that loss, and (3) that the reinsurer has assumed this liability in whole- or in part. The reinsurer is only liable for the amount for which the original insurer is legally liable ; in no case beyond the amount of the reinsurance. The former may make any defense against the latter which the latter might make against the original insured.^^ A policy providing that it is "subject to the same causes and conditions as the original policy, and to pay as may be paid thereon" does not bind the reinsurer to pay such sum as the insurer may choose to pay the insured, whether liable or not. It means the amount of the actual liability of the original in- sured. ^^ And in an obligation to pay a loss in such amounts, at such times, and in such manner as the original insured may pay, the words "may pay" signify "may be liable to pay."^* The assumption of the contingent liability of an insurer, doe& nt>t include its obligations on account of losses which have al- ready occurred. ^^ From the very fact that the underlying principle of a con- tract of reinsurance is that of indemnity to the original in- ''Ante, notes 1-3; notes 23-31; Commercial Mut. Ins. Co. v. De- troit F. & M. Ins. Co., 38 Ohio St. 11; London & L. Fire Ins. Co. v. Lycoming Fire Ins. Co., 105 Pa. St. 424; Union Marine Ins. Co. v. Martin, 35 Law J. C. P. 181; Delaware Ins. Co. v. Quaker City Ins. Co., 3 Grant Cas. (Pa.) 71; Illinois Mut. Fire Ins. Co. v. Andes Ins.^ Co., 67 111. 363. ^Chippendale v. Holt, 65 Law J. Q. B. 104, 73 Law T. (N. S.) 472; ante, note 4. ^ Fame Ins. Co.;s Appeal, 83 Pa. St. 396. " Olsen V. California Ins. Co., 11 Tex. Civ. App. 371, 32 S. W. 446, §§ 245-248 LIABILITY OF REINSURER. T37 surer, it follows that the extrerae limit of the liability of the reinsurer is the amount for which the reinsured is legally liable, or, where the latter has settled with the original insured for less than the whole of his legal claim, the amount for which the settlement was made. The reinsured will not be allowed to profit by the transaction. When an insurance company, after having taken a risk and reinsured it in another company to indemnify itself against loss under its own policy, dis- charges its liability by payment of a sum less than the amount of its debt to the insured and within the amount of the reinsurance, the sum so paid will be taken and regarded as the amount of daanage sustained and as the measure of indemnity to be recovered. It is not necessary for the rein- sured to pay the loss to the first insured before proceeding against the reinsurer. So long as his liability to pay con- tinues he is entitled to recover to the full extent of such liability. If he has paid the amount for which he was holdeu in law he is to the extent of the reinsurance entitled to re- cover the same from his reinsurer.^^ Nor is the liability of the latter affected by the insolvency of the reinsui'ed, or his inability to fulfill his owti 'contract with the first insured ;^^ but in such case a court of equity may compel the reinsurer to pay the amount of its liability directly to the original insured or the one ultimately entitled to the money. ^'^ "Illinois Mut. Fire Ins. Co. v. Andes Ins. Co., 67 111. 363; Mer- chants' Mut. Ins. Co. V. New Orleans Mut. Ins. Co., 24 La. Ann. 305; Bainbridge v. Neilson, 10 East, 346; Fame Ins. Co.'s Appeal, 83 Pa. St. 396; ante, notes 38, 39. Contra, Gantt v. American Cent. Ins. Co., 68 Mo. 503. "Consolidated R. E. & F. Ins. Co. v. Cashow, 41 Md. 61; Strong v. American Cent. Life Ins. Co., 4 Mo. App. 7; Hone v. Mutual Safety Ins. Co., 1 Sandf. (N. Y.) 137, 2 Bennett, Fire Ins. Cas. 580; Eagle Ins. Co. V. Lafayette Ins. Co., 9 Ind. 443; ante, note 42. " Hunt V. New Hampshire F. U. Ass'n, 68 N. H. 305, 38 Atl. 145, 38 L. R. A. 514. KERR, INS. — 47 738 EEINSUKANCE. §§ 245-248 Pro rata Clause. Wliere the policy of reinsTirance contains tins clanse: "loss, if any, payable pro rata, at tlie same time and in the same manner as by the reinsured," in case of a loss the reinsurer will be bound to pay at the same rate the reinsured shall pay ; so that if the reinsured pays only ten cents on the dollar of its insurance, the reinsurer will pay the same rate on the amount of its policy. '^^^ Evidence of Liability of Reinsurer. The reinsured, on the happening of a loss, may pay the insured at once, at the peril of having to prove his own lia- bility in an action against the reinsurer; or he may await a suit against himself and give prompt notice of it to the rein- surer. In that event the reinsurer has a fair opportunity to exercise an election whether he will contest or admit the claim. It is his duty to act upon such notice, and either pay the loss and avoid the litigation, or assume the defense of it. If he does neither and does not authorize the reinsured to settle, he will be held to require that the suit will be carried on by the reinsured, Avho then becomes, by operation of law, his agent for that purpose. And if the reinsured then defends in good faith, the judgment will, as to all matters which are or could be litigated therein, be binding upon the reinsurer ; and the latter will also become liable for all the necessary costs and expenses of the litigation, provided the former be held liable on the claim.^^ Tlie reinsurer is not bound by a judg- "» Illinois Mut. Fire Ins. Co. v. Andes Ins. Co., 67 111. 363; Cashau v. Northwestern Nat. Ins. Co., 5 Biss. 476, Fed Cas. No. 2,499; Ex parte Norwood, 3 Biss. 504, Fed. Cas. No. 10,364; Norwood v. Resolute Fire Ins. Co., 36 N. Y. Super. Ct. 552; Blackstone v. Alemannia Fire Ins. Co., 56 N. Y.'l04, 4 Daly, 299. « Jackson v. St. Paul F. & M. Ins. Co., 99 N. Y. 124; Gantt v. Amer- ican Cent. Ins. Co., 68 Mo. 503; Insurance Co. of State of Pennsyl- §§ 245-2i8 DEFENSES OF REINSURER. 739 ment which he was not called upon to defend ;^^ nor by an arbitration to which he is not a party ;^''^ nor by a compromise and settlement made without his consent and approval,^* Defenses of Reinsurer. A contract of reinsurance in favor of an insurer is, in one sense, wholly distinct from and disconnected with the original insurance. The reinsured, when he seeks to enforce such a that the reinsuring company has collected assessments for or- dinary death losses from the holders of such policies, after the reinsurance was effected, does not estop it from denying liabil- ity under the prohibited clause in the policies.^^ But the general rule first mentioned is intended to promote justice; and the exceptions are not engTafted upon it to aid injustice, but rather to preserve the integrity of the body of substantive law. And the courts will, when possible, enforce the con- tracts of j)arti3s; especially when the contracts have been executed and are not merely executory. Thus where the directors of a company, acting in excess of their authority,, reinsure the rislvs of the company and pay a consideration therefor, after which the reinsurer executes and performs its agreement by paying all losses on risks reinsured by it, the consideration cannot be recovered back because the obligation might have been, but was not in fact, repudiated as unlawful. Where the agreement made has been fully performed on both sides, it cannot bo rescinded as unauthorized or in excess of corporate power, or because made by parties incapable of binding the corporations. The law would not enforce such an agreement as long as it remained executory; neither will the law annul it after, it has been performed,^ ^ nor will one be heard to retain the benefits and repudiate the obligations of his contracts. Thus where two insurance companies con- solidate without legal authority, and one transfers all its- assets to the other whose name and entity is preserved for the conduct of the joint business, this latter is bound for the '"Dishong v. Iowa L. & E. Ass'n, 92 Iowa, 163, 60 N. W. 505; Rock- hold V. Canton Masonic Mut. Benev. Soc, 129 111. 440, 21 N. E. 795. "Casseiiy v. Manners, 9 Hun (N. Y.), 695, 48 How. Pr. 219; Cath- cart V. Equitable Mut. Life Ass'n, 111 Iowa, 471, 82 N. W. 964; Alex- ander V. Williams, 14 Mo. App. 13; Jameson v. Hartford Fire Ins. Co., 14 App. Div. 380, 44 N. Y. Supp. 15. 750 EEINSUKAXCE. §§ 249-251 obligations of the other so far as the assets transferred will liquidate them.^^ Who is Bound by a Reinsurance. When reinsurance is effected by an insurer for the benefit of its policy-holders, these latter have the option of accepting or rejecting the new contract.^^ This is true whether the primitive insurer be a stock or a mutual company; and whether the insured be a mere policy-holder in the fonner, or an insured member in the latter. And even if a mutual company bo authorized by law to reinsure upon a vote of a majority of its members, and to transfer its property to the i^einsuring company as consideration for the reinsurance, still the rights of dissenting pohcy-holders are not necessarily affected by virtue of the reinsurance effected by their own company. The corporation would indeed have the authority to execute the power conferred upon it by proceeding in ac- cordance with the terms of the grant. Every person Avho be- comes a member of a corporation agrees, by necessary impli- cation, that he mil be bound by all acts and proceedings of the majority, duly done and had according to law, and within the scope of the corporate power and authority. But the majority of the stockholders of a corporation have no power to involve the minority in a reorganization without its consent, in such manner as to compel the minority to accept a new con- 8^ Brum V. Merchants' Mut. Ins. Co., 4 Woods (U. S.), 156, 16 Fed. 140; Anglo-Australian Life Assur. Co. v. British Provident L. & F. Soc, 3 Giff. 521; Cocker's Case, 3 Ch. Div. 1; Relfe v. Columbia Life Ins. Co., 10 Mo. App. 150; People v. Empire Mut. Life Ins. Co., 92 N. Y. 105; Reese v. Smyth, 95 N. Y. 645; Heman v. Britton, 88 Mo. 549; Lovell v. St. Louis Mut, Life Ins. Co., Ill U. S. 264, 4 Sup. Ct. 394. ^ Note 8a, ante. §§ 249-251 AMALGAMATION OK CONSOLIDATION. T51 tractual relation with a new company.^* An agreement to reinsure all the members of a mutual society may be binding on the reinsurer or the transferee of the assets of the reinsured company f^ but this agreement becomes a contract only w^ith such members of the latter company as consent to the change, and accept the liability of the new, in lieu of the old, com- pany.^^ And if, after an ultra vires contract of reinsurance has been consummated, a policy-holder in the reinsured com- pany has paid premiums to the reinsurer, and has not re- ceived from it a policy, he may recover from the latter the premiums paid with interest.^^ Katiflcation of Reinsurance Agreement. We have already seen that an agreement for reinsurance may be binding as between two insurers and not binding upon the policy-holders. Any lawful contract which is intended for the benefit of policy-holders may be adopted or ratified by them; and from the time of its adoption, or ratification, becomes binding on them. Whether or not certain acts con- stitute adoption or ratification is a question of law. If the "Post V. Beacon V. P. & E. Co. (C. C. A.), 84 Fed. 371; Hamilton Mut. Ins. Co. V. Hobart, 2 Gray (Mass.), 543; Kittel v. Augusta, T. & G. R. Co., 78 Fed. 855; Benesh v. Mill Owners' Mut. Fire Ins. Co., 103 Iowa, 46;"), 72 N. W. 674; Price v. St. Louis Mut. Life Ins. Co., 3 Mo, App. 263-273; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 727. But see McKean v. Biddle, 181 Pa. St. 361. The English rule would seem to be that, when amalgamation is provided for by the com- pany's charter, the act of the majority binds all. Harman's Case, 1 Ch. Div. 326; Horfs Case, 1 Ch. Div. 307; Cocker's Case, 3 Ch. Div. 1; In re Manchester & L. Life Assur. & Loan Ass'n, 5 Ch. App. 640. « Notes 9-13, 29-31. «» Insurance Com'r v. Provident Aid Soc, 89 Me. 413, 36 Atl. 627; Bent V. Hart, 73 Mo. 641; Grayson v. Willoughby, 78 Iowa, 83, 4 L. R. A. 365; People v. Empire Mut. Life Ins. Co., 92 N. Y. 105; Mason V. Cronk, 125 N. Y. 496; Casserly v. Manners, 48 How. Pr. (N. Y.) 219; Smith v. Hunterdon County Mut. Fire Ins. Co., 41 N. J. Eq. 473. " Smith V, St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 727. 752 EEINSUKANCE. §§ 249-251 acts are of sucli a nature as to evidence the intent of the policy- holder to take advantage of the benefit which he could accept or reject, and to consent to the substitution of the new contract in the place of the old, and to accept the responsibiliy of the reinsurer in place of the primitive insurer, then adoption^ or ratification, or novation takes place. The mere payment of premiums to and taking receipts of the new company, even when amalo-amation is lawful does not alone constitute a novation. It must appear that the new company had the corporate power to assume the contracts of the old company,, that the fact of transfer was communicated to the insured^ and his acceptance must be proved by acts which unequiv- ocally denote his understanding and acceptance of the pro- posal and substitution.^^ The making of an application for insurance in the new company is not a ratification of a con- solidation which will bar a claimant from procuring his remedy against the old company.^^ An act of legislature by which the members of several mutual fire insurance com- panies are made a new corporation, and which "shall not affect the legal right of any person," and is to take effect "when accepted by the members of said companies," does not constitute a member of one of the old companies, who does not expressly assent to it, a member of the new corporation, even though the act be duly accepted by a majority of the members of each of the old companies.°*^ "Notes 85, 87; Relfe v. Columbia Life Ins. Co., 10 Mo. App. 169. »» Grayson v. Willoughby, 78 Iowa, 83, 4 L. R. A. 365. '"Hamilton Mut. Ins. Co. v. Hobart, 2 Gray (Mass.), 543. See, also, Lovell V. St. Louis Mut. Life Ins. Co., Ill U. S. 265; People v. Empire Mut. Life Ins. Co., 92 N. Y. 105; In re Family Endowment Soc, 5 Ch. App. 118; Conquest's Case, 1 Ch. Div. 334; Hort's Case, 1 Ch. Div. 307; Cocker's Case, 3 Ch. Div. 1; Dowse's Case, 3 Ch. Div. 384; In re Manchester & L. Life Assur. & Loan Ass'n, 5 Ch. App. 640; In re Anchor Assur. Co., 5 Ch. App. 632; Shaw v. Republic Life Ins. Co., 67 Barb. (N. Y.) 586; Wynne's Case, 28 Law T. (N. S.) 805; Upton I §§ 249-251 AMALG A.M ATION OK CONSOLIDATION. i53 The Rights of Policy-holders Who Do Not Accept the New Contract. The contract of an insurance company with its policy- holders implies that it will retain its assets in its OAvn posses- sion and continue its business. If it reinsures its risks and parts with its reserve the contract is at once broken at the op- tion of the assured ; the policy-holders are not obliged to- pay premiums to another company unless they wish to, and are not bound to pay premiums to the company which has, by the' transfer of its property, incapacitated itself from dis- charging its obligations when they mature ; so they may treat the contract as broken and recover for its breach. Where one party to an executory contract prevents the performance of it, or puts it out of his own power to perform it, the other party may regard it as tenninated, and demand whatever damage he has sustained thereby. The question remains as to what is justly due in such a case. If the insurer be a stock or old-line company, the measure of damages is the amount which it vdll cost to obtain a similar policy in a reliable company ; if for any reason, other insurance of equal value cannot be obtained, the measure of damages will prob- ably be the amount of premiums paid with interest.^ ^ In the case of a mutual insurance company violating its con- tract, the supreme court of the United States has held that the V. Jackson (Mich.), 4 Ins. Law J. 189; Bennett v. City Ins. Co., 115 Mass. 241, 4 Ins. Law J. 109; Reese v. Smyth, 95 N. Y. 645; Barnes v. Hekia Fire Ins. Co., 56 Minn. 41; Johannes v. Phenix Ins. Co., 66 Wis. 50, 27 N. W. 4] 4. M. insured his life in the B. Company, which amalgamated with the E. Company, and ceased to do business. Subsequently a memoran- dum under the seal of the E. Company was indorsed on the policy, by which it agreed that it would be liable for the payment of the policy if future premiums were paid to it. They were so paid. Held, a complete novation. Miller's Case, 3 Ch. Div. 391. '' May, Ins. (3d Ed.) §§ 358. 363b, 429. KERR, INS.— 48 751 KE1N8URANCE. §§ 249-251 insurod is not entitled to recover the full amount of the preminms paid with interest, but that the value of the insur- ance wliile it has run should be deducted, leaving as the amount due what is called and known in insurance business as the "value of the policy" at the time of its surrender accord- ing to actuarial tables, less any premiums due the insurer.^" But in a mutual assessment company this "value of the policy" is largely conjectural. Speaking of an attempt to fix such damages the supreme court of lowa^^ said this "-would involve an estimate of what the value of a policy in an assessment life insurance company will be several years in the future, or, rather, what is the present value of a policy payable in the future. It is apparent that no estimate of its value can he made. It may be worth something or nothing, depending entirely on whether there shall be any assessable members when the policy shall mature." The Minnesota rule fixes the measure of damages as the difference between the cost of new insurance in a similar company for the term of the nat- ural life of the insured according to the mortuary tables, and the cost of carrying the breached policy for the same term ; or, if new insurance cannot be obtained, then the damage is the present value of the policy as of the date of estimated death, less the cost of carrying it from the date of the breach.^ ^ The Reserve or Trust Fund of Mutual Societies. Monies collected from all or any of the classes into which the membership of a mutual company may be divided, for the "'Lovell V. St. Louis Mut. Life Ins. Co., Ill U. S. 264, 4 Sup. Ct. 395; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 727. »= Grayson v. Willoughby, 78 Iowa, 83, 4 L. R. A. 365. "* Ebert v. Mutual Reserve Fund Life Ass'n, 81 Minn. 116, 83 N. W. 510. See, also. People v. Empire Mut. Life Ins. Co., 92 N. Y. 105; ■§§ 249-251 AMALGAMATION OK CONSOLIDATION. 755 purpose of creating a special fund, — e. g. a mortuary, benefit, or resen-e fund — are impressed with a trust in favor of the purpose for which they have been paid, and cannot, without the consent of the contributors, be diverted to any other use. And the general funds of such a company in excess of the amount necessary to liquidate the debts of the company belong to the membership whence they came. Thus a statute authorizing the formation of a corporation to insure its members against loss by fire, and authorizing the making and enforcing of contracts of indemnity amongst its members, and the levying and collecting of assessments to pay losses, does not authorize the insuring of members for a fixed annual premium. The funds derived from assessments to pay losses are in their nature trust funds to be applied to the i)ayment of such losses; hence the use of such funds, or any part thereof, for the purchasing of assets of another corporation, or for the payment of losses to members of such other corporat^ion whose risks have been assumed, is a misap- plication of funds.^^ Nor does the fact that a company is authorized to reinsure its risks, or is by statute permitted to discontinue its business and wind up its affairs, release it from its existing obligations to its members and policy- holders. It has no right to turn them over to another com- pany without their consent; and policy-holders need not in order to protect their legal rights protest against the effort so to do.^^ If the result of such an unauthorized act is to in- duce the vendor company to cease to use its franchises, and to produce practical insolvency, the policy-holders may treat the Mason v. Cronk, 125 N. Y. 503; Insurance Com'r v. Provident Aid Soc, 89 Me. 413, 36 Atl. 627; Alexander v. Williams, 14 Mo. App. 13; Casserly v. Manners, 48 How. Pr. (N. Y.) 219, 9 Hun, 695. "'State V. Monitor Fire Ass'n. 42 Ohio St. 555; ante, notes 76, 77. ••People '^ Empire Mut. Life Ins. Co., 92 N. Y. 105; note 86. 756 KEINSUKANCE. §§ 249-251 contract as broken and proceed to subject tlie transferred tmst funds and other corporate property to the satisfaction of their claims. Securities deposited Avith a state insurance depart- ment, by an insurance company, or a bond given in lieu of such securities, constitute a special trust fund for the benefit of the policy-holders of that company. A transfer of its assets does not transfer this fund discharged of its trust, so that the reinsuring company may apply it in payment of its general creditors. If the reinsuring company withdraw such fund and replace it with its own, the latter will be affected with the trust attached to the withdrawn deposit.^''^ When a trust fund reaches such proportions as to make it safe and prudent to divide the net income amongst its members, such division may be made, even though against the wish and pro- test of the minority.^^ Each member of a mutual company has an undivided in- terest in accumulated trust funds to which he has contributed,, in proportion to the amount of his contributions, and subject to the laws of the organization. The majority of the member- ship can no more deprive a dissenting member of his share in such fund, small and undivided though the portion be, by an agreement to consolidate with, or reinsure with, and transfer the corporate assets to another company, than they can-eompel him to assume membership in the new company. ' "^Lovell V. St. Louis Mut. Life Ins. Co., Ill U. S. 264; People v. Empire Mut. Life Ins. Co., 92 N. Y. 105; Reese v. Smyth, 95 N. Y. 645; Relfe v. Columbia Life, Ins. Co., 10 Mo. App. 151; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 727; In re Family Endowment Soc, 5 Ch. App. 118; Brum v. Merchants' Mut. Ins. Co., 4 Woods (U. S.), 156, 16 Fed. 140; Hughes v. Hunner, 91 Wis. 116, 64 N. W. S87; ante, notes 82, 86, 94. •' McKean v. Biddle, 181 Pa. St. 361 ; Fry v. Provident Sav. Life Assur. Soc. (Tenn. Ch. App.), 38 S. W. 116; Greeff v. Equitable Life Assur. Soc, 160 N. Y. 19, 46 L. R. A. 288; Jameson v. Hartford Fire Ins. Co., 14 App. Div. 380, 44 N. Y. Supp. 15. §§ 249-251 AMALGAMATION OR CONSOLIDATION. 757 Wlien the new contract is made it binds only those who con- sent. When a comj^any reinsures all its risks and has a large sum of money in the treasury, being the proceeds of assessments paid by their present and past policy-holders, it is held that all the }X)1 icy-holders who contributed to such sui'plus, are entitled to a proportion thereof according to the amount of their respective payments, whether they continued to be policy-holders to the date of the distribution or not.^^ A mortuaiy fund, being a special trust fund, will be distrib- uted so as to secure protection to all. And where the memberr ship of a company divides into two classes, a reinsuring, and a non-reinsuring, the fund will be divided between the two in proj)ortion to the amount of their policies held by each class. •'*'*^ ^Vhere a mutual endowment association, whose policies are paid from assessments, is dissolved, the holders of immature policies can only share in the assets after the pajmient of other lial)ilities.^°^ A new company organized to carry on an insurance business of the same general nature as an illegally incorporated association of the same name, and com]X)sed of some of the old membership, is not liable upon a policy issued by the old company even though the reseiwe fund of the latter has been transferred to the other in con- sideration of certain advantages offered to the old member- ship.^*^^ But a mutual benefit association, that has created ''Smith V. Hunterdon County Mut. Fire Ins. Co., 41 N. J. Eq. 473; Bird V. Mutual Union Ass'n, 30 App. Div. 346, 52 N. Y. Supp. 1044; In re Youtlas' Temple of Honor, 73 Minn. 319, 76 N. W. 59. i°« Insurance Com'r v. Provident Aid Soc, 89 Me. 413, 36 Atl. 627. "^ In re Educational Endowment Ass'n, 56 Minn. 171. Otherwise if the certificates have matured. Failey v. Fee, 83 Md. 83, 34 Atl. 839, 32 L. R. A. 311. See Corey v. Sherman, 96 Iowa, 114, 64 N. W. 828, 32 L. R. A. 490; People v. Life & Reserve Ass'n, 150 N. Y. 94; Farmers' L. & T. Co. v. Aberle, 18 Misc. Rep. 257, 41 N. Y. Supp. 638; Temperance Mut. Ben. Ass'n v. Home Friendly Soc, 187 Pa. St. 38. "^Adam.s v. Northwestern E. & L. Ass'n, 63 Minn. 184. See, also, Reese v. Smyth, 95 N. Y. 645; Heman v. Britton, 88 Mo. 549. 758 KEINSUEANCE. §§ 249-251 an endowment fund, cannot, on being refused a license in the state in which it was incorporated and thus compelled to cease business, organize a new company, and, against the pro- test of members of the old company use such endowment fund to obtain reinsurance of the old members in the new company ; and an action may be maintained to wind up the affairs of the old company and compel the distribution of the fund among- those for whose benefit it was created. ^°''' "* Stamin v. Northwestern Mut. Ben. Ass'n, 65 Mich. 317, 32 N. W. 710; People v. Empire Mut. Life Ins. Co., 92 N. Y. 108; Cahen v. Con- tinental Life Ins. Co., 69 N. Y. 300; Insurance Com'r v. Provident Aid Soc., 89 Me. 413, 36 Atl. 627; Smith v. Hunterdon County Mutt. Ins. Co., 41 N. J, Eq. 473. See, also, as to management and disposition of funds, Greff v. Equitable Life Assur. Soc, 160 N. Y. 19, 46 L. R. A. 288; McKean v. Biddle, 181 Pa. St. 361; Fry v. Provident Sav. Life Assur. Soc. (Tenn. Ch. App.), 38 S. W. 116, and cases supra. CHAPTER XX. PRACTICE AND PROCEDURE. § 252. Practice and procedure in litigation involving insur- ance contracts is subject to the law and practice of the foriim in which the action is pending. The practice, pleadings, forms, and modes of procedure in actions upon contracts of insurance, must conform to that existing in the courts of record of the state within whicli such actions are brought. A contract will, in the absence of any stipulations to the contrary, be construed with reference to its validity and meaning by the law of the place where it is made ; but the remedy for its enforcement must conform to the law, practice and procedure of the court enforcing it.^ Jurisdiction of Courts. The general rule is that stipulations providing for the de- termination of the rights of the parties to a contract by non- judicial tribunals are void, as being an attempt to oust the courts of their proper jurisdiction. But agreements for arbi- tration concerning collateral matters, as the amount of a lia- bility, are valid. ^ The right to full resort to the courts will not be deemed to be taken away by inference, but only by un- equivocal agreements, stated in the clearest and most explicit terms.^ An agreement not to sue except in the courts of the ^Nederland Life Ins. Co. v. Hall (C. C. A.), 84 Fed. 278. "Ante, c. 15, Arbitration and Award. " Supreme Lodge, O. S. F., v. Raymond, 57 Kan. 647, 49 L. R. A. 373; Grimbley v. Harrold, 125 Cal. 24, 57 Pac. 558. See. also, Loeffler V. Modern Woodmen of America, 100 Wis. 79, 75 N. W. 1012. 760 PRACTICE AND PROCEDURE. § 252 state in Avliicli the insurer is located, is void.^ Tlie appoint- ment of an agent, upon whom service of summons can be made within the state, subjects a non-resident principal to the jur- isdiction of the courts of the state, the same as if he were a resident.^ Statutes providing that, in suits or proceedings in wdiich a foreign corporation shall be a party, if such corpora- tion shall make application to remove any such suit into a fed- eral court it shall be liable to certain penalties, and statutes which attempt to restrict the right of corporations to transfer cases from state to federal courts, where they would other- wise be entitled to do so, are void.^ Limitations on Time to Sue. The time within which suits upon a eontract must be brought may be limited by agreement between the parties." But such a limitation does not govern the time to bring suit upon an agreement to pay a loss.^ That an action was begun within the stipulated time need not be set forth in the com- plaint. The stipulation is for the benefit of the insurer, by whom it may be asserted or waived.^ A defendant is not es- ^Reichard v. Manhattan Life Ins. Co., 31 Mo. 518. Compare Rodgers v. Mutual Endowment Assessment Life Ass'n, 17 S. C. 40G. 'Lafayette Ins. Co. v. French, 18 How. (U. S.) 404; Runkle v. La- mar Ins. Co., 2 Fed. 9; Ex parte Schollenberger, 96 U. S. 369. But the appointment of an agent to acknowledge service does not prevent the corporation from pleading want of jurisdiction of the court, on the ground that the subject-matter of the suit or the remedy sought is beyond the reach of the court. Taylor v. Mutual Reserve Fund Life Ass'n, 97 Va. 60, 45 L. R. A. 621. "Home Ins. Co. v. Morse, 20 Wall. (U. S.) 445; Doyle v. Conti- nental Ins. Co., 94 U. S. 535; Chicago, M. & St. P. Ry. Co. v. Becker, 32 Fed. 849. • Riddlesbarger v. Hartford Ins. Co., 7 Wall. (U. S.) 386. See, ante, p. 423, Terms and Conditions of Contract. * Smith v. Glens Falls Ins. Co., 62 N. Y. 85. 'Fred Miller Brewing Co. v. Capital Ins. Co., Ill Iowa, 590, 82 N. W. 1023. ^ 252 LIMITATIONS ON TIME TO SUE. 761 topped from claiming tlie benefit of the statute by the fact that the time for bringing the action, as limited by the policy, has expired, so that a new action cannot be brought ;^° nor by the fact of the absence from the state of the officers and agents upon whom ser^dce can be made." In Pennsylvania it is held tliat an action on a policy of insurance, requiring suit to be brought within a year, is brought in time if the ■original summons is issued within a year, though it is after- wards set aside and an alias summons issued after the expira- tion of the year.^^ A¥here an action is instituted within the time limited, an amendment of the pleading, substituting .a new party to represent the same right of recovery as per- mitted by statute, does not operate as a discontinuance of the suit, and the bringing of a new action. But a new cause of action cannot be substituted by amendment. The line is drawn between the amendment to the cause of action which is already the subject of the suit, and the substitution of a new cause of action by amendment. -^^ In Texas it is held that even where the making of proof of loss is a condition preced- ■ent to the right of action, a process of garnishment is not pre- mature when seiwed on an insurer before proofs of loss are iurnished it.^'* But this is doubtful law. The creditor can have no greater rights than his debtor, and cannot properly Teach the debt as long as it is contingent, nor until it has "Vore V. Hawkeye Ins. Co., 76 Iowa, 548. " Guthrie v. Connecticut Ind. Ass'n, 101 Tenn. 643, 49 S. W. 829. ^= Everett v. Niagara Ins. Co., 142 Pa. St. 322, 21 Atl. 817. "Fidelity & Casualty Co. v. Freeman (C. C. A.) 109 Fed. 847, Randolph v. Barrett, 16 Pet. (U. S.) 138 An amendement by which- the cause is changed from the law to the equity jurisdiction of the ■court continues the original cause of action. Newman v. Covenant Mut. Ins. Ass'n, 76 Iowa. 56, 1 L. R. A. 659. "Phenix Ins. Co. v. Willis, 70 Tex. 12. 762 PRACTICE AND PKOCEDUKE. § 252: become a monejed demand, enforceable by the debtor him- self. ^^ Form and Nature of Action. A court of equity may reform a contract of insurance, and at the same time enforce it as reformed and administer full relief by decree of payment of loss when the evidence of the extent is satisfactory.^*^ And a cause of action in equity for specific performance of a contract to issue a policy may be joined with suit on the agreement for insurance, where a loss occurs before the policy is issued. ^'^ A party to a con- tract which does not correctly represent the oral agTeement made, cannot abandon it, and sue on the oral agreement, but recourse must be had to equity to rescind or reform it on the- ground of fraud or mistake. -^^ In an action upon a policy without allegation of fraud or mistake, evidence cannot be- received that a clause was inserted in the policy different from that agreed upon.^^ But in Indiana it is held that if a misdescription of the location 'of the property insured be written in the policy, without the knowledge or consent of tho applicant, this may be alleged and proved in an ordinary ac- tion at law.^° A contrary rule obtains in New York.^^ And in Wisconsin it is held that where the insurer waives a con- dition against encumbrances by issuing a policy with knowl- " Hurst V. Home Protection Fire Ins. Co., 81 Ala. 174; German American Ins. Co. v. Hocking, 115 Pa. St. 398. "Maryland Home Fire Ins. Co. v. Kimmel. 89 Md. 437, 43 Atl. 764. See c. 3. "Preferred Ace. Ins. Co. v. Stone, 61 Kan. 48, 58 Pac. 986. Com- pare Fidelity & Casualty Co. v. Ballard & Ballard Co., 20 Ky. Law Rep. 1169, 48 S. W. 1074. See ante, c. 3. '^Kleis V. Niagara Fire Ins. Co., 117 Mich. 469, 76 N. W. 155. "O'Donnell v. Connecticut Fire Ins. Co., 73 Mich. 1, 41 N. W. 95.. =» Phenix Ins. Co. v. Allen, 109 Ind. 273, 10 N. E. 85. " Sanders v. Cooper, 115 N, Y. 279, 22 N. E. 212. I 252 FOKM AND NATURE OF ACTION. 763 edge of the facts, the insured may recover on the policy with- out having it reformed so as to express the consent to encum- brances which the company agreed to endorse upon the policy. ^^ There has been much question as to whether a suit upon a mutual benefit certificate should be at law or in equity. The distinction is clear between an agreement to pay a specific sum, and an agi-eement to pay the proceeds of an assessment. Upon principle is would seem that much depends upon the wording of the contract, and the provision made for payment of the benefit. If the right of the payee is solely to receive the proceeds of an assessment, and the validity of the claim is in question, it is but just to all that the right of recovery should be primarily determined. Until that is done an assess- ment cannot properly be made to pay the claim, and until the assessment is levied and paid it is impossible to know how much will be realized therefrom. ^^ There are decisions to the effect that a bill in equity should be maintained to enforce payment of such certificates by compelling a specific perform- ance of similar contracts, through assessments as stipulated.^'* But the authorities are numerous, and of high character, that the association is liable to suit for a breach of contract when it refuses to make the required assassment, the measure of damages being the amount assessable upon all insured, unless the defendant alleges in its answer and by proofs estal^lishes the fact that it should be less.^^ It has also been held that " Hobkirk v. Phoenix Ins. Co., 102 Wis. 13, 78 N. W. 160. =^' Rainsbarger v. Union Mut. Aid Ass'n, 72 Iowa, 191, 33 N. W. 626;. Bailey v. Mutual Ben. Ass'n, 71 Iowa, 689, 27 N. W. 770; Neskern V. Northwestern E. & L. Ass'n, 30 Minn. 406. =* Covenant Mut. Ben. Ass'n v. Sears, 114 111. 108; Smith v. Cove- nant Mut. Ben. Ass'n, 24 Fed. 685 ; Tobin v. Western Mut. Aid Soc, 72 Iowa, 261; Van Houten v. Pine, 36 N. J. Eq. 133 "Bentz V. Northwestern Aid Ass'n, 40 Minn. 202; Elkhart Mut. 76-± PKACTICE AND PROCEDURE. § 252 maudaniiis is not a proj)er remedy to compel such assess- ment. ^^ Parties to Action. The determination of the proper parties to an action upon an insurance policy must be largely governed by the law and practice of the forum regulating suits upon ordinary con- tracts. The policy itself designates the party to whom the proceeds are primarily payable, and a suit upon a policy must, as a general rule, except where otherwise provided by statute, be brought by the one designated in the contract as thd payee, or his privies. In fraternal and mutual benefit or- ganizations, a right of action is sometimes given by the arti- cles of incor|X)ration or by-laws of the society to those who would not otherwise be parties to the contract.-'^ The right to the proceeds of the policy has been dealt with elsewhere.^^ Aid, Benev. & Relief Ass'n v. Houghton, 103 Ind. 286; Earnshaw v. Sun Mut. Aid See, 68 Md. 465. '" Burland v. Northwestern Mut. Ben. Ass'n, 47 Mich. 424; Ex- celsior Mut. Aid Ass'n v. Riddle, 91 Ind. 84. But see Van Houten v. Pine, 36 N. J. Eq. 133; Bailey v. Mutual Ben. Ass'n, 71 Iowa, 689; Tobin V. Western Mut. Aid Soc, 72 Iowa, 261; Newman v. Covenant Mut. Ins. Ass'n, 76 Iowa, 56, 40 N. W. 87; Hart v. National Masonic Ace. Ass'n, 105 Iowa, 717, 75 N. W. 508; Theunen v. Iowa Mut. Ben. Ass'n, 101 Iowa, 558, 70 N. W. 712. Compare Follis v. United States Mut. Ace. Ass'n, 94 Iowa, 435, 28 L. R. A. 78. -'Ward V. Wood, 13 Mass. 539; United States Life Ins. Co. v. Ludwig, 103 111. 305; Bates v. Equitable Ins. Co., 10 Wall. (U. S.) S3; Fairchild v. Northwestern Mut. Life Ass'n, 51 Vt. 613; Rosen- berger v. Washington Mut. Fire Ins. Co., 87 Pa. St. 207. A firm composed of several cannot recover upon a policy issued to one of them. Burgher v. Columbian Ins. Co., 17 Barb. ( N. Y.) 274. Where a policy provides for the payment of different sums to dif- ferent parties, the beneficiaries should maintain separate actions to recover the several sums due. Keary v. Mutual Reserve Fund Life Ass'n, 30 Fed. 359. The remedy of one entitled to the pro- ceeds of a policy of insurance is not against the party to whom the insurer has paid it, but against the insurer directly. Shultz v. Boyd, 152 Ind. 166, 52 N. E. 750. ^' See ante, c. 4, Payment of the Proceeds. g 252 PARTIES TO ACTION. 765 A creditor, to wliom a policy has been assigned as collateral security for a debt, may maintain an action in bis own name, and recover the full face value of the policy, though a portion of the debt is not due at the time of bringing suit.^^ But an assignee who has no insurable interest in the life of the de- ceased, and who could not have taken out a policy in his own name, cannot maintain an action.^*' Where the policy is is- sued to the mortgagor to cover his interest alone, the action must be brought in his name.^^ And so if the loss be payable to a mortgagee whose debt has been paid.^^ The mortgagee may sue alone, and in his own name, where the loss, if any, is payable to him as his interest may appear, when his interest equals or exceeds the full amount due under the policy. When his interest is less, both insured and mortgagee should be joined as parties.^^ A mortgagee may maintain an action in his own name, on a Massachusetts Standard policy, pro- cured by the mortgagor pursuant to a covenant to keep the premises insured for the benefit of the mortgagee, payable to- the mortgagee as his interest might appear, and providing that no act or default of any person other than such mortgage, or those claiming under him, shall affect the mortgagee's right to recover in case of loss.^^ ^"Hale V. Life Ind. & Inv. Co., 65 Minn. 548. "'Warnock v. Davis, 104 U. S. 775. See, also, ante, c. 9, Insur- able Interest. ^'Flanagan v. Camden Miit. Ins. Co., 25 N. J. Law, 506; Columbia Ins. Co. V. Lawrence, 10 Pet. (U. S.) 507. '-Coates V Pennsylvania Fire Ins. Co., 58 Md. 172, 42 Am. Rep. 327. ^^Maxcy v. New Hampshire Fire Ins. Co.. 54 Minn. 272; Lowry v. Insurance Co. of North America, 75 Miss. 43, 21 So. 664, 37 L. R. A. 779; Bartlett v. Iowa State Ins. Co., 77 Iowa, 86, 41 N. W. 579. " Palmer Sav. Bank v. Insurance Co. of North America, 166 Mass. 189, 44 N. E. 211. See Whiting v. Burkhardt (Mass.), 60 N. E. 1. '7GG rKACTICE AND PKOCEDUKE. ^ 252 The Complaint. In declaring upon a contract of insurance tlie pleader must bring himself within its terms, and show a loss from a cause and under circumstances which by the terms of the contract create a liability in favor of the plaintiff, and against the de- fendant. He must allege every fact which he is required to prove, and will be precluded from proving any fact not al- leged. He must show the making of the contract by the insurer, and that thereby the insurer obligated itself to pro- tect him or his privies against specified perils in respect to certain property to a given amount, or to pay a certain sum upon the happening of a specified event, and that the event has happened, or the loss has occurred, while the policy was in force, and within its terms and conditions. ^^ A complaint on a fire insurance policy must show that the property de- stroyed was at the time of the loss Avithin the location de- scribed in the policy ;^^ and that the insured was at the time of the loss the owner of the property, or had an insurable in- terest in it;^' and that the property was at the time of the loss used for the purposes designated in the policy ;^^ that the peril which the policy was issued to protect against was the proximate, and not the remote cause of the loss f^ that dam- age was thereby done in respect to the interest insured ;^^ and that the assured has performed all the conditions pre- cedent required by the policy to be performed. ^^ »» Green v. Palmer, 15 Cal. 412; Allen v. Home Ins. Co. (Cal.), 30 Ins. Law J. 711, 65 Pac. 138. '"Todd V. Germania Fire Ins. Co., 1 Mo. App. 472; Phenix Ins. Co. V. Allen, 109 Ind. 273, 10 N. E. 85. "" Farmers' Ins. Co. v. Burris, 23 Ind. App. 507, 55 N. E. 773; Gus- tin V. Concordia Fire Ins. Co. (Mo.), 64 S. W. 178. ^ Allen V. Home Ins. Co. (Cal.), 30 Ins. Law J. 711, 65 Pac. 138. '"Mutual Life Ins. Co. v. Stibbe, 46 Md. 302; Aetna Fire Ins. Co. V. Boon, 95 U. S. 117. ^ Standard Fire Ins. Co. v. Wren, 11 111. App. 242. *i Phenix Ins. Co. v. Pickel, 119 Ind. 155, 21 N. E. 546. •§ 252 THE COMPLAINT. - 767 Thus, if the furnishing of proofs of loss by the insured, is a condition precedent to the bringing'of action, performance, or waiver of performance must be shown. "^^ Value in the prop- erty destroyed, and damage with respect to the insurable in- terest of the insured, must always be alleged.^^ Where, by the terms of the policy, which is set forth, an -arbitration and award, in case of difference in regard to the amount of loss, is a condition precedent to the right of action, and it affirmatively appears from the complaint that a dispute has arisen which calls for an appraisal and award, a general allegation that the plaintiff has complied with all the teiins and performed all the conditions precedent in the policy re- quired of him, is insufficient. There should be a statement that appraisers had been selected, and an award made, or an allegation of facts which would relieve the insured from sub- mitting to an appraisal and award, or excuse him from being bound by the provisions of the policy in that respect.'*^ In a complaint upon an accident policy the complaint must show that the injury was of the nature insured against. ^^ A policy need not be tendered to the insurer before commenc- ing an action thereon.'*^ A complaint based upon a life in- surance policy, must bring the case within its limits and con- ditions. But where the circumstances are specifically set forth, an averment that plaintiff liad performed all the terms and conditions upon his part required, is sufficient.'*'^ Where « State Ins. Co. v. Belford, 2 Kan. App. 280, 42 Pac. 409, 25 Ins. Law J. 127; Excelsior Mut. Aid Ass'n v. Riddle, 91 Ind. 84; Home Ins. Co. V. Duke, 43 Ind. 418. "German-American Ins. Co. v. Paul (Ind. T.), 53 S. W. 442. ** Mosness v. German-American Ins. Co., 50 Minn. 341. ^^ Taylor v. Pacific Mut. Life Ins. Co., 110 Iowa, 621, 82 N. W. 326; Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45, 43 N. E. 405. *^ Stephenson v. Bankers' Life Ass'n, 108 Iowa, 637, 79 N. W. 459. ^'National Ben. Ass'n v. Bowman, 110 Ind. 355. 768 PKACTICE AND PROCEDURE. § 252 a life policy is conditioned to be pa^-able to an assignee, only on proof of an insurable interest, the fact and nature of such interest must be averred.'*^ And it would seem that an aver- ment of insurable interest upon the life, in favor of the party procuring the insurance, is always necessary.*** Neither matters of defense, nor the jDerfonnance or non- performance of conditions subsequent, need be pleaded by plaintiff. Where a policy contains conditions and warranties, it> is sufficient for the plaintiff to show fulfillment of the con- ditions of recovery which are made such by the policy itself. He need not aver the truth of statements contained in the ap- plication, nor negative prohibited acts ; ^^ nor that the action was brought within the stipulated time; ^^ nor the authority of the insurer to do business in the state ; "" nor negative losses from excepted causes.^^ Where a company agrees to make and deliver a policy within a reasonable time, and nothing as to the terms of insur- ance is left open, and it refuses to issue the policy after a loss, it has been held that the com]>laint need not show compli- ance with the conditions precedent of the policy.^'* But in New York the rights of one whose property is destroyed after an oral contract to insure it, but before a policy is issued, are subject to the provisions of the standard policy prescribed by law, and he can only recover by compliance with the condi- « Alabama Gold Life Ins. Co. v. Mobile Mut. Ins. Co., 81 Ala. 329. ^"Guardian Mut. Life Ins. Co. v. Hogan, 80 111. 35; Franklin Life Ins. Co. V. Sefton, 53 Ind. 380; Burton v. Connecticut Mut. Life Ins. Co., 119 Ind. 207, 12 Am. St. Rep. 405. See, also, ante, c. 9, Insurable Interest. "■" Phenix Ins. Co. v. Pickel, 119 Ind. 155, 21 N. E. 546. "Fred Miller Brewing Co. v. Capital Ins. Co., Ill Iowa, 590, 82 N. W. 1023. == Fidelity & Casualty Co. v. Eickhoff, 63 Minn. 170. ^^ Schrepfer v. Rockford Ins. Co., 77 Minn. 291, 79 N. W. 1005. "Western Assur. Co. v. MacAlpin, 23 Ind. App. 220, 55 N. E. 119. § 252 AMENDMENT — THE ANSWER. 769 tions required by the policy, and what must he proved must be alleged.^^ Amendment. A complaint may be amended so as to continue or reassert the cause of action originally set forth, but not so as to substi- tute a new cause of action.^^ The Answer. The burden is upon the insurer to plead and prove breaches of warranty or misrepresentations, and he must, in his plead- ing, single out the answers whose truth he proposes to con- test, and show the facts upon which his contention is founded.^ '^ Where the defense of violation of law is in- sisted upon, it must be pleaded by defendant, who must also set forth in what the violation consisted.^^ The insurer must plead any violation of conditions of the policy upon which it relies in its defense; ^^ and any failure to comply with con- ditions subsequent or precedent ; ^^ and the existence of other insurance, contrary to the terms of the policy, or which lessens liability;®-^ or forfeitures;^^ and a want of insur- " Hicks v, British America Assur. Co., 162 N. Y. 284, 48 L. R. A. 424. =» Fidelity & Casualty Co. v. Freeman (C. C. A.), 109 Fed. 847, See, ante, notes 12-15. "Chambers v. Northwestern Mut. Life Ins. Co., 64 Minn. 495; Phenix Ins. Co. v. Pickel, 119 Ind. 155, 21 N. E. 546. See, as to an- swers in insui*ance suits, 44 Cent. Law J. 407. '^^ Conboy v. Railway Officials' and Employees' Ace. Ass'n (Ind. App.), 43 N. E. 1017. "" Moody V. Amazon Ins. Co., 52 Ohio St. 12, 26 L. R. A. 313. '"Moody V. Amazon Ins. Co., 52 Ohio St. 12, 26 L. R. A. 313. "i Aetna Ins. Co. v. McLead, 57 Kan. 95, 45 Pac. 73, 25 Ins. Law J. 669. "Guerin v. St. Paul F. & M. Ins. Co., 44 Minn. 20; Ft. Wayne Ins. Co. V. Irwin, 23 Ind. App. 53, 54 N. E. 818. KERR, INS.— 49 770 PEACTICE AND PKOCEDURE. § 252 able interest in tlie plaintiff ; ^^ and that tlie plaintiff could have saved destroyed property by the exercise of reasonable care;^^ and that the action was not commenced within the time stipulated in the policy ; ^^ and that the loss was oc- casioned through the excepted causes.®^ It must specify the violation, or non-performance of conditions, and plainly state the conditions and breaches relied on ; ^"^ and upon trial con- fine itself to those specified. If fraud is relied on, the facts constituting fraud should be stated.^^ Or if the defense is that the property was destroyed by the insured, that must be pleaded.^^ A plea that the conditions of the policy had been violated by the property becoming encumbered, should show that thiF- was done without the assent of the insurer J^ Reply. The reply can assist, but must not quit or depart from the case made in the complaint. ''^^ But it has been held where defendant denies the execution of a policy sued upon, and the authority of the agent to issue it, that the reply may set up the custom of the agent to accept similar risks, without tb'e knowledge of the insurer, and a subsequent ratification of the agent's act.'''^ «' Supreme Lodge, K. of H., t. Metcalf, 15 Ind. App. 135, 43 N. E. 893. ^* Davis V. Anchor Mut. Fire Ins. Co., 96 Iowa, 70, 64 N. W. 687. "^Fred Miller Brewing Co. v. Capital Ins. Co., Ill Iowa, 590, 82 N. W. 1023; Moore v. Phoenix Fire Ins.^Co., 64 N. H. 140. "" Schrepfer v. Rockford Ins. Co., 77 Minn. 291, 79 N. W. 1005. "^Chambers v. Northwestern Mut. Life Ins. Co., 64 Minn. 495; Evarts v. United States Mut. Ace. Ass'n, 61 Hun, 624, 16 N. Y. Supp. 27. " Sterling v. Mercantile Mut. Ins. Co., 32 Pa. St. 75. »" Kahnweiler v. Phenix Ins. Co. (C. C. A.), 67 Fed. 483. '" Peoria M. & F. Ins. Co. v. Lewis, 18 111. 553. " Mosness v. German-American Ins. Co., 50 Minn. 341. See, also. Sun Fire Office v. Fraser, 5 Kan. App. 63, 47 Pac. 327. ^^ German Fire Ins. Co. v. Columbia Encaustic Tile Co., 15 Ind. App. 623, 43 N. E. 41. § 252 WAIVER — EVIDENCE. 771 Waiver. Waiver must be specially pleaded. It cannot be shown under a plea of performance.'^^ But both waiver and com- pliance may be pleaded and shown. '^* Evidence. It is a well settled rule of law that he who must affirm must prove, and that the burden of proving a loss from a cause, and under circumstances, and to an amount which creates a liability assumed by the insurer is upon the in- sured,'^ and the proof must come within the scope of, and cor- respond to the averment. "^^ No rule of law is more firmly es- tablished than the one which declares that a parol agree- ment is merged into and superseded by a subsequent written agreement embracing the same subject matter. It is equally well settled and a general rule that parol evidence is inad- missible either to vary or contradict a written instniment.^" The subject of the insurance is to be ascertained from the description in the policy, and such extrinsic evidence as may be necessary to identify the property described. But extrinsic evidence which goes beyond the pui-pose of aiding in the in- terpretation of the written contract, and tends to show that the subject, or any condition thereof, was other and different from that described in the written instrument, — as, for ex- " Mosness v. German American Ins. Co., 50 Minn. 341; Ft. Wayne Ins. Co. V. Irwin, 23 Ind. App. 53, 54 N. E. 818; Continental Ins. Co. V. Vanlue, 126 Ind. 410, 26 N. B. 119; Guerin v. St. Paul F. & M. Ins. Co., 44 Minn. 20. '* Stephenson v. Bankers' Life Ass'n, 108 Iowa, 637, 79 N. W. 459. "Cory V. Boylston F. & M. Ins. Co., 107 Mass. 140, 9 Am. Rep. 20; Allen V. Home Ins. Co. (Cal.), 30 Ins. Law J. 711, 65 Pac. 138; Taylor V. Pacific Milt. Life Ins. Co., 110 Iowa, 621, 82 N. W. 326. ^O'Donnell v. Connecticut Fire Ins. Co., 73 Mich. 1, 41 N. W. 95; Coryeon v. Providence-Wash. Ins. Co., 79 Mich. 187. " Phenix Ins. Co. v. Allen, 109 Ind. 273, 10 N. E. 85, 772 PRACTICE AND PEOCEDURE. § 252 ample, tliat the building intended to be insured was not tbe building actually covered by the policy, — while it might tend to establish a case for the reformation of the contract, would be inadmissible to sustain an action to enforce the written contract, as though it applied to the building intended to bo covered, but not described in the policy. "^^ Parol evidence can only be received when an ambiguity exists, and never when the terms of the contract are plain and imambiguous. The writing itself is the best evidence of the intent and meaning. If the meaning be ambiguous, evi- dence may be received to place the court in the position of the parties, and enable it to appreciate the force of the words they used in reducing the contract to writing. It then becomes the duty of the court, sitting without a jury, to decide what the parties, thus situated, meant by the language used. But one party to a written contract cannot state how he under- stood it when he signed it, nor testify as to its meaning or his intent. What the parties intend must be gathered from the contract, read in the light of the circumstances surrounding them when they used the doubtful words.'^^ The usage of a particular business, when it is reasonable, uniform, well-settled, not in opposition to the fixed rules of law, nor in contradiction of the express terms of the con- tract, is deemed to form a part of the contract, and to enter into the intention of the parties. The custom, however, must be shown to have been known to the parties when the contract was made, or to have been so generally known as to raise a presumption that they had it in mind at that time. Usage " Sanders v. Cooper, 115 N. Y. 279, 22 N. E. 212; Cummins v. Ger- man-American Ins. Co., 197 Pa. St. 61, 46 Atl. 902; Baker v. State Ins. Co., 31 Or. 41, 27 Ins. Law J. 86, 48 Pac. 699. "Indemnity Mut. Marine Assur. Co. v. United Oil Co., 88 Fed. 315; Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307, 43 N. E. 856. I 252 EVIDENCE. 773 is a matter of fact, not of opinion, and mnst be sIio^ati by those wbo have observed the method of transacting the par- ticular land of business, as conducted by others and them- selves. ^° Where a policy designates a beneficiary by name, and states that she is the daughter of the insured, and it appears that he had a daughter of that name, parol evidence is inadmissible to show that the wife of the insured had the same name, and was intended to be the beneficiaiy.^^ And the statement of a soliciting agent that a policy would take effect at once, can- not vary the effect of a written application, conditioned that the insurer would only become bound when it was received and accepted by the insured.'^^ j^^^t oral evidence is admis- sible to show that a misdescription of the property insured Avas written into the application, without the knowledge ov consent of the insured ; ^^ or that untrue statements in the ap- plication were made by the agent of the insurer, without the knowledge or consent of the applicant ; ^'* or to show that the agent who drew the application, and wrote down the answer at the same time, knew that the answer was incorrect, where fraud or collusion between the agent and the applicant does not appear.^^ *> Howard v. Great Western Ins. Co., 109 Mass. 384; Barnard v. Kellogg, 10 Wall. (U. S.) 383; Chesapeake Bank v. Swain, 29 Md. 483; Harris v. Tumbridge, S3 N. Y. 92. «i Standard Life & Ace. Ins. Co. v. Taylor, 12 Tex. Civ. App. 38G, 34 S. W. 781. *' United States Mut. Ace. Ass'n v. Kitturing. 22 Colo. 257, 44 Pac. 595; Chamberlain v. Prudential Ins. Co. (Wis.), 85 N. W. 128. *' American Cent. Ins. Co. v. McLanathan, 11 Kan. 533; Phoenix Ins. Co. V. Allen, 109 Ind. 273, 10 N. E. 85. "Marston v. Kennebec Mut. Life Ins. Co., 89 Me. 266, 36 Atl. 389; North American Fire Ins. Co. v. Throop, 22 Mich. 146. *' Patten v. Merchants' & Farmers' Mut. Fire Ins. Co., 40 N. H. 375; Sanders v. Cooper, 115 N. Y. 279, 22 N. E. 212. 774 PRACTICE AND PROCEDURE. § 252 If there is a written contract wliicli does not contain the agreement of the parties as actually made, the insured can- not sue on the oral contract, but must resort to equity to re- scind or reform the written one.^^ In an action upon a policy, the declaration being in the ordinary form, without allegation of fraud or mistake, evidence cannot be received to show that the contract is different from what it appears to be.^''^ Where a company waives a condition against encumbrances, by issu- ing a policy with knowledge of the facts, the insured may re- cover on the policy, without having it reformed so as to ex- press the assent to encumbrances, which was agreed to be en- dorsed upon the policy. ^^ Parol evidence is admissible to show the meaning of tech- nical words or phrases or trade terms, ^^ where the meaning of the words is doubtful, and cannot be determined without the aid of extrinsic evidence.^*^ Evidence is always admis- sible, in a proper action, to show fraud or mistake, entitling one party or the other to rescind or reform the contract. But the evidence must be clear and satisfactory.^^ Tables showing the expectancy of human life are admis- sible, though not conclusive, upon the question of the dura- ^'Kleis V. Niagara Fire Ins. Co., 117 Mich. 469, 76 N. W. 155. "CDonnell v. Connecticut Fire Ins. Co., 73 Mich. 1, 41 N. W. 95; Sanders v. Cooper, 115 N. Y. 279, 22 N. E. 212. ^'Hobkirk v. Phoenix Ins. Co., 102 Wis. 13, 78 N. W. 160; Phenix Ins. Co. V. Allen. 109 Ind. 273, 10 N. E. 85. '^Astor V. Union Ins. Co., 7 Cow. (N. Y.) 202; Daniels v. Hudson River Fire Ins. Co., 12 Cush. (Mass.) 416; Mooney v. Howard Ins. Co., 138 Mass. 375. °° Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 23 How. Pr. CN. Y.) 448; Reid v. Lancaster Fire Ins. Co., 90 N. Y. 382. "Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307, 43 N. E. 856; Harrison v. Hartford Fire Ins. Co., 30 Fed. 862; Harris v. Co- lumbiana County Mut. Ins. Co., 18 Ohio, 116, 51 Am. Dec. 448. § 252 EVIDENCE. 775 tion of life; ^- and an entry in the family bible to prove tho date of birth.^^ The verdict of a coroner's jury, except when made so by the parties to the contract, is not, per se^ evidence of the cause of death; ^"^ unless furnished to the insurer in connection with proofs of loss, in which case it becomes an admission in favor of the insurer, and against the claimant.^-"^ The books of an insured are admissible to show the amount of his business.^^ Offers of compromise cannot be shown.^''' When the question is whether a person did a certain act, his declarations, oral or written, made prior to, and about the time he is alleged to have done the act, to the effect that he intended to do it, are admissible as original evidence, if made under circumstances precluding any suspicion of misrepre- sentation.^^ So where in an action on a life insurance policy, the defense is fraudulent representations as to health, the in- surer may prove statements and declarations of the insured, about the time of, and before and after the issuing of the policy.^^ Where the policy makes the application a part thereof, the policy is inadmissible without the application. ^^^ Where »^Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545; Trott v. Chi- cago, R. I. & P. Ry. Co. (Iowa), 86 N. W. 33. '' Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146, 36 L. R. A. 271. "'Wasey v. Travelers' Ins. Co. (Mich.), 85 N. W. 459. But see United States Life Ins. Co. v. Vocke, 129 111. 557. »' Mutual Life Ins. Co. v. Newton, 22 Wall. (U. S.) 32; Sharland v. Washington Life Ins. Co. (C. C. A.), 101 Fed. 206; Walther v. Mutual Life Ins. Co., 65 Cal. 417, See ante, Proof of Loss. "'Levine v. Lancashire Ins. Co., 66 Minn. 138; Coleman v. Retail Lumberman's Ins. Ass'n, 77 Minn. 31, 79 N. W. 588. °' Strome v. London Assur. Corp., 20 App. Div. 571, 47 N. Y. Supp; 481. «* Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285; Hale v. Life Ind. & Inv. Co., 65 Minn. 548. •'Welch V. Union Cent. Life Ins. Co., 108 Iowa, 224. 78 N. W. 853. "" Lycoming Mut. Ins. Co. v. Sailer, 67 Pa. St. lOa 776 PKACTICE AND PROCEDUKE. § 252 the defense is that the insured purposely burned his property, a preponderance of evidence establishing the defense is suffi- cient. -^^^ Evidence of the character of the insured is not ad- missible in a suit on a fire insurance policy where the defense is that the plaintiff set fire to the building. ^^^ But evidence is admissible to show that the house burned was in bad repute, and had the reputation of being a bawdy house. ^°^ Privileged Communication. The insured may, in his application for insurance, waive the privilege of the law prohibiting physicians from disclos- ing information obtained by them while attending him in a professional capacity ; and the waiver is not in contravention of any principle of public policy. ^°'' The waiver must be clearly expressed, and vdll not be extended by implication.^"^ Death. A living man is presumed to continue to live until the con- trary is shown or is presumed from the circumstances of the case. Death may be shown, either by direct evidence, or in- ferentially, and from circumstances compelling that conclu- sion. The established presumption of fact from the disap- pearance of an individual under ordinary circumstances from whom his relatives and acquaintances have never afterwards heard, is that he continues to live for seven years after his dis- appearance. This, however, is only a presumption of fact, 1" Continental Ins. Co. v. Jachnichen, 110 Ind. 59, 10 N. E. 63G; Somerset Co. Mut. Fire Ins. Co. v. Usaw, 112 Pa. St. 80, 4 Atl. 355. But see Germania Fire Ins. Co. v. Klewer, 129 111. 599, 22 N. E. 489. 1"= American Fire Ins. Co. v. Hazen, 110 Pa. St. 530; Stone v. Hawkeye Ins. Co., 68 Iowa, 737. "^ Breckinridge v. American Cent. Ins. Co., 87 Mo. 62. "' Foley V. Royal Arcanum, 151 N. Y. 196, 45 N. E. 456; Adreveno V. Mutual Reserve Fund Life Ass'n, 34 Fed. 870. "= Geare v. United State? Life Ins. Co., 66 Minn. 91, 68 N. W. 731. .§ 252 , SUICIDE — ACCIDENTAL INJURY. . 777 and when the facts from which it is drawn are modified the presumption and inference must, and ought to change, ^^^ The parties can agree as to, and make rules of evidence for them- selves, as, e. g., that disappearance or absence is not proof of death. i<^7 Suicide. The presumption of law is against suicide.*"® But this is a rebuttable presumption, and easily yields to physical facts clearly inconsistent with it. It is the exclusive province of the court to determine whether evidence is susceptible of a reasonable inference that death was caused by some other means than that of suicide, and that being determined in the affirmative it is the exclusive province of the jury to say wherein the truth lies.^'^^ The presumption against suicide does not obtain where the deceased is shown to have been "affected T\ith insanity of a nature usually attended with suicidal tendencies. ^^" Evidence of the statements of the de- ceased made prior to, and about the time of his death to the effect that he intended to commit suicide, are admissible.*** Accidental Injury. The law will presume that an injury was not self-inflicted, and to defeat a recovery the insurer must negative this pre- i»« 2 Greenleaf Ev., § 278a; Mutual Life Ins. Co. v. Newton, 22 Wall. Bulger V. Washington Life Ins. Co., 297. Bullman v. North British & M. Ins. Co., 686. Bumstead v. Dividend Mut. Ins. Co., 469. Burchell v. Marsh, 649, 652, 654. Burger v. Columbian Ins. Co., 764. Burgess v. Alliance Ins. Co., 364. Burkard v. Travelers' Ins. Co., 132. Burkhard v. Travelers' Ins. Co., 135, 391, 397. Burkheiser v. Mutual Ace. Ass'n, 135. Burland v. Northwestern Mut. Ben. Ass'n, 764. Burleigh v. Gebhard Fire Ins. Co., 334. Burlington Ins. Co. v. Brockway, 335, 412. v. Gibbons, 236, 240, 431. V. Kennerly, 553, 563, 566. Burlington V. R. D. v. White, 82. Burner's Adm'r v. German-American Ins. Co., 305. Burnett v. American Cent. Ins. Co., 506, V. Eufaula Home Ins. Co., 135, 401. Burnham v. Royal Ins. Co., 488. Burns v. Thayer, 410. Burritt v. Saratoga County Mut. Fire Ins. Co., 322. Bursinger v. Bank of Watertown. 687. Burson v. Fire Ass'n of Philadelphia, 331. Burton v. Connecticut Mut. Life Ins. Co., 288, 768. V. Farinholt, 693, 697. Buse v. Mutual Ben. Life Ins. Co., 101. Bush V. Westchester Fire Ins. Co., 524, 560, 563. Business Men's League v. Waddill, 71. Butero v. Travelers' Ace. Ins. Co., 390. Butler V. Supreme Council C. B. L., 336. Caballero v. Home Mut. Ins. Co., 359, 370. Cable V. United States Lite Ins. Co., 321, 399. Cables v. Prescott, 683. Cahen v. Continental Life Ins. Co., 758. Caldwell v. Dwelling-House Ins. Co., 479. V. Fire Ass'n of Philadelphia, 219. TABLE OF CASES. 791 References are to pages. Caledonian Ins. Co. v. Cooke, 602. V. Traub, 551, 609, 638, 642, 643, 650, 667. Caledonian Ry. Co. v. Lockhart, 640. Caley v. Hoopes, 278. California Ins. Co. v. Union Compress Co., 277, 357, 674. California Sav. Bank of San Diego v. American Surety Co., 459, 464, 479, 489. California State Bank v. Hamburg-Bremen Ins. Co., 402. Calverley v. Williams, 83. Cammack v. Lewis, 287. Campbell v. American Fire Ins. Co., 57, 60, 61, 62, 115, 456, 589, 715. V. American Popular Life Ins. Co., 504, 505, 509, 609, 616, 633, 635, 652. V. Charter Oak P. & M. Ins. Co., 356, 528, 532. V. International Life Assur. Soc, 158, 245. i V. Monmouth Mut. Fire Ins. Co., 376. V. National Life Ins. Co., 184, V. New England Mut. Life Ins. Co., 120, 283, 287, 325, 342, 345, 680. V. Supreme Lodge, K. of P.. 167, 192, 206. Canada Sugar Refining Co. v. Insurance Co. of North America, 436. Candy v. Orient Ins. Co., 220. Canfield v. Greater Camp, K. of M., 609, 612. V. Watertown Fire Ins. Co., 614, 618, 640, 652. Cannon v. Home Ins. Co., 409, 724, 747. V. Northwestern Mut. Life Ins. Co., 517, 520. V. Phoenix Ins. Co., 373, 374. Canton Ins. Office v. Woodside, 136. Capital City Ins. Co. v. Caldwell, 362, 569. Capitol Ins. Co. v. Wallace, 483, 578, 619. Caplis V. American Fire Ins. Co., 411. Carey v. Farmers' Ins. Co., 475, 485. V, German American Ins. Co., 243, 401, 405, 420, 688, 711, 783. V. London Provincial Fire Ins. Co., 280, 436. Cargill V. Millers' & M. Mut. Ins. Co., 361, 363. Carlson v. Presbyterian Board, 9, 676, 692. V. Supreme Council, A. L. of H., 313. 316, 548, 707. Carnes v. Iowa State Traveling Men's Ass'n, 122, 382, 384, 778. Carnochan v. Christie, 650. Carpenter v. Centennial Mut. Life Ass'n, 310. v. German American Ins. Co., 452, 459, 471, 483, 488, 541, 599, v. Knapp, 691. V. Providence Wash. Ins. Co., 8, 9, 276, 278, 408, 677, 686, 714. 798 TABLE OF casp:s. References are to pages. Carpenter v. Snelling, 49. V. United Slates Life Ins. Co., 288. 289. Carr v. Hibemia Ins. Co., 362. Carr's Case, 747. Carrigan v. Lycoming Fire Ins. Co., 185, 237, 355, 356. Carrington v. Commercial F. & M. Ins. Co., 18, 723. Carroll v. Boston Marine Ins. Co., 9. V. Charter Oak Ins. Co., 159, 178, 182. V. Girard Fire Ins. Co., 557, 602, 603, 616, 617, 645. Carruge v. Atlantic Fire Ins. Co., 239. Carson v. Jersey City Ins. Co., 69, 329, 536. Carter v. Cotton States Life Ins. Co., 245, 251. V. John Hancock Mut. Life Ins. Co., 308. Case V. Hartford Fire Ins. Co., 357, 372, 376. V. Manufacturers' F. & M. Ins. Co., 614, 618, 619. V. Sun Ins. Co., 426, 427. Cashau v. Northwestern Nat. Ins. Co., 734, 735, 738. easier v. Connecticut Mut. Life Ins. Co., 421. Cason V. Owens, 691. Cassady v. American Ins. Co., 304. Casserly v. Manners, 725, 727, 745, 747, 749, 751, 755, Castner v. Farmers' Mut. Fire Ins. Co., 276, 716. Cathcart v. Equitable Mut. Life Ass'n, 724, 732, 746, 749. Catlin V. Springfield Fire Ins. Co., 376, 494, 500. Catoir v. American Life Insurance & Trust Co., 236, 249. CaufReld v. Continental Ins. Co., 302, 304. Cayon v. Dwelling House Ins. Co., 65, 508, 538, 574. Cedar Rapids Ins. Co. v. Shimp, 357. Central Bank of Washington v. Hume, 117, 287, 692, 693. Central City Ins. Co. v. Oates, 455, 477, 482, 488, 526. Central Nat. Bank v. Hume, 694. Central Transport. .tion Co. v. Pullman's Palace Car Co., 42, Cerys v. State Ins. Co., 327, 343, 344, 346. Chaffee v. Cattaraugus Coimty Mut, Ins. Co., 345. Chalaron v. Insurance Co. of North America, 724, 725, 729, 733. Chamberlain v. Prudential Ins. Co., 79, 88, 95, 110, 133, 159, 211, 773. Chambers v. Atlas Ins. Co., 425. V. Northwestern Mut. Life Ins. Co., 338, 353, 769, 770, 778. Chandler v. Ins. Co. of North America, 441. V. St. Paul F. & M. Ins. Co., 401, 425. V. Worcester Mut. Fire Ins. Co., 376. Chandos v. American Fire Ins. Co., 430, 635, 638, 648, 650, 651, 653, 677, 678. TABLE OF CASES. 799 References are to pages. Chapman v. Mcllwrath, 688, V. Rockford Ins. Co., 614, 615, 633, 641, 657, 667. Charter Oak Life Ins. Co. v. Rodel, 492, 778. V. Sawyer, 33, 37. Chartrand v. Brace, 132, 144, 679, 682, 690. Chase v. People's Fire Ins. Co., 255, V. Phoenix Mut. Life Ins. Co., 308. Chauncey v. German American Ins. Co., 232, 255. Cheever v. Union Cent. Life Ins. Co., 150. Chesapeake Bank v. Swain, 773. Chicago Guaranty Fund Life Soc. v. Dyon, 288. Chicago Life Ins. Co. v. Warner, 52. Chicago Mut. Life Ind. Ass'n v. Hunt, 20. Chicago, M. & St. P. Ry. Co. v. Becker, 760. Chicago, St. L. & N. O. R. Co. v. Pullman Southern Car Co., 702. Chicago & A. R. Co. v. Glenny, 701. Chickasaw County Farmers' Mut. Fire Ins. Co. v, Weller, 448, 700- 702, Chickering v. Globe Mut. Life Ins. Co., 245, 294, Childs V. Firemen's Ins. Co., 25. Chipman v. Carroll, 10, 677. Chippendale v. Holt, 736. Chippewa Lumber Co. v. Phenix Ins. Co., 435, 609, 610, 615, 618, 620, 628, 631, 671. Chisholm v. National Capitol Life Ins. Co., 69. Chrisman v. State Ins. Co., 275. Church V. La Fayette Fire Ins. Co., 300. Cincinnati Mut. Health Assur. Co. v. Rosenthal, 33. Cincinnati Mut. Ins. Co. v. May, 372. Cisna v. Sheibley, 284. Citizens' Fire Ins. Co. v. Swartz, 201, 234, Citizens' Fire Ins., S. & L. Co. v. Doll, 591. Citizens' F. & M. Ins. Co. v. Short, 347. Citizens' Ins. Co. v. Bland, 550, 625. V. Coit, 631, 652. V. Hamilton, 641. V. McLaughlin, 364, V. Marsh, 376. City Drug Store v. Scottish U. & N. Ins. Co., 332, 717. City Fire Ins. Co. v. Corlies, 359, 371, 375, City Ins. Co. v. Bricker, 119. City of Columbus v. Hartford Ins. Co., 25. City of Davenport v. Peoria M. & F. Ins. Co., 49, 101. 800 TABLE OF CASES. References are to pages. City of New Orleans v. Virginia F. & M. Ins. Co., 38. City of Worcester v. Worcester Mut. Fire Ins. Co., 336. City P. & S. Mill Co. v. Merchants' M. & C. Mut. Fire Ins. Co., 420. Claflin V. Commonwealth Ins. Co., 533, 540. V. United States Credit System Co., 14, 355. Clark V. Allen, 687. V. Brand, 49. V. Insurance Co. of North America, 318. V. Metropolitan Life Ins. Co., 295. V. Mutual Reserve Fund Life Ass'n, 191. V. Port of Mobile, 36. Clarke v. Firemen's Ins. Co., 281, 361. V. Schwarzenberg, 108, 685. Clawson v. Citizens' Mut. Fire Ins. Co., 400. Clay V. Phoenix Ins. Co., 233. Clay Fire & Marine Ins. Co. v. Huron Salt & Lumber Mfg. Co., 28, 29. Clearwater v. Meredith, 742. Cleaver v. Traders' Ins. Co., 66, 230, 236, 240, 432, 711, 715. Clemans v. Supreme Assembly R. S. of G. F., 511. Clement v. British American Assur. Co., 492, 675. Clemmitt v. New York Life Ins. Co., 311, 442. Cleveland Ins. Co., In re, 741. Cleveland Oil & Paint Mfg. Co. v. Norwich Union Fire Ins. Co.^ 16, 47, 780. Clevenger v. Mutual Life Ins. Co., 41, 161, 211, 240. Clifton Coal Co. v. Scottish U. & N. Ins. Co., 414. Clover v. Greenwich Ins. Co., 435. Cluff V. Mutual Ben. Life Ins. Co., 143. Coates V. Pennsylvania Fire Ins. Co., 765. Cobb v. Covenant Mut. Ben. Ass'n, 322, 340. V. New England Mut. Marine Ins. Co., 99, 141, 665. Cochran v. London Assur. Corp., 427. V. Mutual Life Ins. Co., 528. Cocker's Case, 750, 752. Coffman v. Niagara Fire Ins. Co., 493. Cohen v. Continental Fire Ins. Co., 52, 107. V. Continental Life Ins. Co., 731, 733. V. New York Mut. Life Ins. Co., 11, 470. Cohn V. Orient Ins. Co., 548, 555. Colby V. Light Ins. & Inv. Co., 305, 311, 312. Cole v. Accident Ins. Co., 388. V. Manchester Fire Assur. Co., 529. V.Union Cent. Life Ins. Co., 63, 182, 184. TABLE OF CASES. 801 References are to pages. Coleman v. New Orleans Ins. Co., 783. V. Retail Lumberman's Ins. Ass'n, 775. Coles V. Bowne, 83, 146. V.Iowa State Mut. Ins. Co., 209. V. Jefferson Ins. Co., 168, 185, 208, 211, 212, 221. Collier v. Bedell, 271. Collins V. Charlestown Mut. Fire Ins. Co., 346. V.London Assur. Corp., 331, 398. V. Phoenix Ins. Co., 99, 101. V. St. Paul F. & M. Ins. Co., 332, 345. Columbia Ins. Co. v. Cooper, 280. i V. Lawrence, 477, 502, 765. Columbia Mill Co. v. National Bank of Commerce, 155. Columbian Ins. Co. v. Lawrence, 452, 600. Columbus Ins. Co. v. Walsh, 29. Comly v. Hillegass, 309. Commercial Assur. Co. v. Rector, 162. Commercial Fire Ins. Co. v. Allen, 167, 331, 363, 399, 435, 587. V. Morris, 52.. Commercial Ins. Co. v. Friedlander, 536. V. Globe Mut. Ins. Co., 729. V. Hallock, 101. V. Robinson, 135, 369, 625. V. Scammon, 403, 404. V. Sennett, 355, 433. V. Spankneble, 219. Commercial League Ass'n v. People, 24. Commercial Mut. Ace. Co. v. Bates, 325, 330, 339. Commercial Mut. Ins. Co. v. Detroit F. & M. Ins. Co., 736, V. Union Mut. Ins. Co., 47, 48, 50, 51, 57, 726. Commercial Union Assur. Co. v. American Cent. Ins. Co., 739. V. Hocking, 631, 632. V. Meyer, 494. V. State, 576. Com. V. Hide & Leather Ins. Co., 353, 360, 361. V. Mechanics' Mut. Fire Ins. Co., 162. V. National Mut. Aid Ass'n, 24. V. Nutting, 25. V. Reinoehl, 23. V. Vrooman, 26. V. Wetherbee, 4, 144, 339. Conboy v. Railway Officials' Employes' Ace. Ass'n, 388, 397, 769. Concord Union Mut. Fire Ins. Co. v. Woodbury, 704. KERR, INS.— 51 802 TABLE OF CASES. References are to pages. Concordia Fire Ins. Co. v. Johnson, 235, 556, 557. Condon v. Mutual R. F. L. Ass'n, 114, 293. Cone Export & Commission Co. v. Poole, Hi, 36. Confederation Life Ass'n v. O'Donnell, 86. Conigland v. Smith, 682. Connecticut Fire Ins. Co. v. Erie Ry. Co., 701, 702. V. Hamilton, 551, 576, 602, 628, 631, 647. V. O'Fallon, 652, 653. Connecticut Ind. Ass'n t. Grogan's Adm'r, 95, 250. Connecticut Mut. Life Ins. Co. v. Akens, 395. V. Baldwin, 682. V. Bulte, 176. V. Cushman, 117. V. Duerson's Ex'r, 311. V. Groom, 395, 396. V. Lathrop, 778. V. Luchs, 18, 285, 288, 329, 349. V. Pyle, 343. V. Rudolph, 80, 82. V. Schaefer, 67, G©, 283, 285, 680, 687. V. Siegel, 511, 531. V. Union Trust Co., 342, 349. V. Westervelt, 138, 688. Connecticut River Mut. Fire Ins. Co. v. Way, 37. Connell v. Milwaukee Mut. Fire Ins. Co., 492, 523, 524. Connelly v. Masonic Mut. Ben. Ass'n, 124, 126. Conover v. Massachusetts Mut. Life Ins. Co., 328. V. Mutual Ins. Co., 177. Conquest's Case, 752. Conrad's Estate, In re, 681. Consolidated R. E. & F. Ins. Co. v. Cashow, 735, 737. Constant v. Allegheny Ins. Co., 48. Continental Ins. Co. v. Chamberlain, 352. V. Daly, 298. V. Dorman, 553, 584, 604, 606. V, Jachnichen, 776. V. Kasey, 159, 335, 343. V. Kyle, 411, 412. V. Lippold, 482. V. Munns, 686. V. Pearce, 206. V. Pruitt, 361. V. Ruckman, 182, 185. TABLE OF CASES. 803 References are to pages. Continental Ins. Co. v. Vanlue, 410, 713, 771. V. Ward, 783. Continental Life Ins. Co. v. Chamberlain, 159, 167, 171, 173, 213, 221, 231, 338. V. Rogers, 321, V. Volger, 284. V. Webb, 138, V, Young, 321. Converse v. Citizens' Mut. Ins. Co., 279. V. Knights Templars & M. Life Ind. Co., 422. Conway v. Phoenix Mut. Life Ins. Co., 318. Cook V. Continental Ins. Co., 718. V. Federal Life Ass'n, 171. V. Standard Life & Ace. Ins. Co., 226, 230. Cooke V. Aetna Ins. Co., 47, 78, 97. Cooker's Case, 743. Cooper V. Pacific Mut. Life Ins. Co., 99. V. United States Mut. Ben. Ass'n, 458, 466. Co-operative Fire Ins. Co. v. Lewis, 24, 339. Cooper Mfg. Co. v. Ferguson, 37, 174. Copeland v. Mercantile Ins. Co., 258. Copp v. German American Ins. Co., 325. Corbett v. Metropolitan Life Ins. Co., 288. v. Spring Garden Ins. Co., 445, 621. Corey v. Sherman, 41, 44, 757. Corkery v. Security Fire Ins. Co., 530. Cornell v. LeRoy, 489, 510, 513, 520, 527, 571. V. Tiverton & L. C. Mut. Fire Ins. Co., 317. Cornett v. Phenix Ins. Co., 587, 590. Cornwell v. Fraternal Ace. Ass'n, 397. Corson, Appeal of, 285. Cory V. Boylston F. & M. Ins. Co., 771. Coryeon v. Providence Wash. Ins. Co., 771. Gotten V. Fidelity & Casualty Co., 296, 341, 39"4. Cotter v. Grand Lodge, A. O. U. W., 121. Cottingham v. Firemen's Fund Ins. Co., 402. Cotton v. Vansittart, 694. Cotton States Life Ins. Co. v. Edwards, 179, 188. Couch V. City Fire Ins. Co., 709. V. Rochester German Fire Ins. Co., 214. Coursin v. Pennsylvania Ins. Co., 275. Covenant Mut. Ben. Ass'n v. Conway, 79, 80. V. Hoffman, 682. 804 TABLE OF CASES. References are to pages. Covenant Mut. Ben. Ass'n v. Sears, 684, 763. V. Spies, 30b, 606. Covenant Mut. Life Ass'n v. Baughman, 549, 556. Coventry Mut. Live Stock Ass'n v. Evans, 458, 464, 473, 474, 480, 487. Cowan V. Iowa State Ins. Co., 403. Cowles V. Continental Life Ins. Co., 118. Cox V. Aetna Ins. Co., 327. Craft V. Hanover Fire Ins. Co., 56. Cranberry Mut. Fire Ins. Co. v. Hawk, 82. Crane v. City Ins. Co., 407. V. Partland, 83. Craufurd v. Hunter, 274. Cravens v. New York Life Ins. Co., 138. Crawford County Mut. Ins. Co. v. Cochran, 195, 251. Creed v. Sun Fire Office of London. 278, 279. Crenshaw v. Pacific Mut. Life Ins. Co., 549, 556, 594, 605. Crescent Ins. Co. v. Camp, 220. Crete Farmers' Mut. Township Ins. Co. v. Miller, 418. Crew-Levick Co. v. British & Foreign Marine Ins. Co., 367. Crigler v. Standard Fire Ins. Co., 119. Crikelair v. Citizens' Ins. Co., 409. Crittenden v. Springfield F. & M. Ins. Co., 530. Croghan v. New York Underwriters' Agdncy, 107, 159. Cromwell v. Brooklyn Fire Ins. Co., 677. V. Royal Canadian Ins. Co., 138. Cronin v. Fire Ass'n of Philadelphia, 327, 342, 343, 360, 420, 42L V.Vermont Life Ins. Co., 288. Cross V. DeValle, 20. V. National Fire Ins. Co., 280. Crossley v. Connecticut Fire Ins. Co., 613, 619. Crossman v. Massachusetts Ben. Ass'n, 126,* Crosswell v. Connecticut Ind. Ass'n, 288. Crotty V. Union Mut. Life Ins. Co., 692. Crouse v. Hartford Fire Ins. Co., 202, 237. Crown Point Iron Co. v. Aetna Ins. Co., 109. Cuesta V. Royal Ins. Co., 371. Cumberland Bone Co. v. Andes Co., 280. Cumberland Valley Mut. Protection Co. v. Douglas, 417. Cummings v. Cheshire County M. F. Ins. Co., 9. Cummins v. Agricultural Ins. Co., 414. V. German-American Ins. Co., 772. Cunningham v. Evansville & T. H. R. Co., 448. Currier v. Continental Life Ins. Co., 288. TABLE OF CASES. 805 References are to pages. Currie's Adm'rs v. Mutual Assur. Co., 124, Curry v. Commonwealth Ins. Co., 350, 441. Curtis V. Leavitt, 745. Cushing V. Williamsburg City Fire Ins. Co., 552. Cushman v. New England Fire Ins. Co., 147, 150. V. Northwestern Ins. Co., 69, 70. V. United States Life Ins. Co., 322, 340, 385. Cutchin V. Johnston, 682. Cuthbertson v. North Carolina Home Ins. Co., 322, 330. Cyrenius v. Mut. Life Ins. Co., 18, 245, 249, 251, 295. Dacey v. Agricultural Ins. Co., 435. Dade v. Aetna Ins. Co., 526. Daggs V. Orient Ins. Co., 23. Dahlberg v. St. Louis Mut. F. & M. Ins. Co., 213. Dailey v. Preferred Masonic Mut. Ace. Ass'n, 84, 89, 94, 95, 99, 394, 403. Dakin v. Liverpool, L. & G. Ins. Co., 456. Dalby v. India & London Life Assur. Co., 8, 289. Daniels v. Equitable Fire Ins. Co., 492, 500, 502, 507, 511, 514, 550, 584. V. Hudson River Fire Ins. Co., 325, 774, 779. Daniher v. Grand Lodge, A. O. U. W., 589, 612, 613. Darrow v. Family Fund Soc, 389. Daughtry v. Knights of Pythias, 124. Daul v. Firemen's Ins. Co., 534. Davenport v. Long Island Ins. Co., 643, 645. Davenport Fire Ins. Co. v. Moore, 443, 724, 728, 744, 746, 747. Davey v. Aetna Life Ins. Co., 392, 531. David v. Williamsburgh City Fire Ins. Co., 276. Davidson v. Hawkeye Ins. Co., 402. V. Old People's Mut. Ben. Soc., 47, 81, 121, 144, 313. V. Supreme Lodge, K. of P., 144. Davis V. Aetna Mut. Fire Ins. Co., 207. V. Anchor Mut. Fire Ins. Co., 360, 628, 770. V. Atlas Assur. Co., 626, 627, 664. V. Davis, 489, 521. V. German American Itis. Co., 108. V. Iowa State Ins. Co., 399. V. Lamar Ins. Co., 255. V. Massachusetts Mut. Life Ins. Co., 91. V. New England Fire Ins. Co., 360. v. Old Colony R. Co., 39. V. Pioneer Furniture Co., 416. V. United States, 396. 806 TABLE OF CASES. References are to i>age3. Davis Lumber Co. v. Home Ins. Co., 299, Davis Shoe Co. v. Kittanning Ins. Co., 577. Day V. Charter Oak F. & M. Ins. Co., 782, V. Hawkeye Ins. Co., 399. V. Mechanics' & Traders' Ins. Co., 176, 409. V. Mill-Ovrners' Mut. Fire Ins. Co., 420. V. Mutual Ben. Life Ins. Co., 107, 511, 531. V. New England Life Ins. Co., 697, Dayo V. Hawkeye Ins. Co., 103. Dayton v. H. B. Claflin Co., 693, Dayton Ins. Co. v. Kelly, 4S. Dean v. Equitable Fire Ins. Co., 149. Dee & Sons Co. v. Key City Fire Ins. Co., 597. De Frece v. National Life Ins. Co., 315. De Grafi v. Queen Ins. Co., 132, 367, 368. De Grove v. Metropolitan Ins, Co., 53, 115. Deitz V. Providence Wash. Ins. Co., 167, 202, 208, 254, 255. De Jernette v. Fidelity & Casualty Co., 462. De Land v. Aetna Ins. Co., 504, 509. Delaware Farmers' Mut. Fire Ins. Co. v. "U'agner, 41. Delaware Ins. Co. v. Quaker City Ins. Co., 721, 736, 740, Delaware State F. & M. Ins. Co. v. Shaw, 53. Delaware & H. Canal Co. v. Pennsylvania Coal Co., 610. Dennis v. Massachusetts Ben. Ass'n. 109, 310. Denny v. Conway S. & M. Fire Ins. Co.. 327. Denton v. Farmers' Mut. Fire Ins. Co., 663, 669. Dentz V. O'Neill, 34A. Denver Fire Ins. Co. v. McClelland. 44. Deshong v. Iowa Life & Endowment Ass'n, 41. De Silver v. State Mut. Ins. Co., 555. Desmazes v. Mutual Ben. Life Ins. Co., 138. Des Moines lee Co. v. Niagara Fire Ins. Co.. 331. Devens v. Mechanics' & Traders' Ins. Co., 204, 591. Devereaux v. Sun Fire Office of London, 147. Devlin v. Queen Ins. Co., 376. De Witt V. Home Forum Ben. Order, 221. Dey V. Mechanics' & Traders' Ins. Co., 233. Dial V. Valley Mut. Life Ass'n, 606. Dibble v. Northern Assur. Co., 94. Dibbrell v. Georgia Home Ins. Co., 263, 567. Diboll V. Aetna Life Ins. Co., 76, 83, 109, 246. Dick V. Equitable F. & M. Ins. Co., 561. V. Franklin Fire Ins. Co., 278. TABLE OF CASES. 807 References are to pages. Digby V. American Cent. Ins. Co., 350. Dillard v. Manhattan Life Ins. Co., 20, 470. Dilleber v. Home Life Ins. Co., 328, 342. V. Knickerbocker Life Ins. Co., 189. Dinning v. Phoenix Ins. Co., 52, 57, 159, Dishong v. Iowa L. & E. Ass'n, 746, 748, 749. District Grand Lodge No. 4 v. Cohn, 144. Dittmer v. Germania Ins. Co., 419. Dixon V. National Life Ins. Co., 687. Doane v. Millville Mut. M. & F. Ins. Co., 121. Dodd V. Gloucester Mut. Fishing Ins. Co., 82. V. Jones, 443. Dogge V. Northwestern Nat. Ins. Co., 536. Dohlantry v. Blue Mounds F. & L. Ins. Co., 716. Dohmen Co. v. Niagara Fire Ins. Co., 533. Dolan V. Aetna Ins. Co., 535. V. Mutual Reserve Fund Life Ass'n, 351. Dolliver v. St. Joseph F. & M. Ins. Co., 329, 349, 509. Dolloff V. Phoenix Ins. Co., 535. Donahue v. Windsor Co. Mut. Fire Ins. Co., 477, 482, 483, 585. Donald v. Chicago, B. & Q. Ry. Co., 114, 120. Doniol V. Commercial Fire Ins. Co., 147, 149. Donnell v. Donnell, 279. Dooly V, Hanover Fire Ins. Co., 588. Dorn V. Germania Ins. Co., 407. Doten V. Aetna Ins. Co., 414. Doud V. Citizens' Ins. Co., 412, 413. Dougherty v. Greenwich Ins. Co., 149. Douville V. Farmers' Mut. Fire Ins. Co., 669, 716. Dover Glass Works Co. v. American Fire Ins. Co., 421, Dow V. Smith, 444. Dowd V. American Ins. Co., 399. Dowling V. Lancashire Ins. Co., 71, 143. Downey v. Hoffer, 687. Dows V. Faneuil Hall Ins. Co., 370. Dows' Case, 752. Doyle V. Continental Ins. Co., 760. Dozier v. Fidelity & Casualty Co., 384. Drake v. Marryat, 163. Dreier v. Continental Life Ins. Co., 510, 531. Dresser v. United Firemen's Ins. Co., 403, 537. Dryer v. Security Fire Ins. Co., 80, 156, 158, 161, 164, 203. D. S. Morgan & Co. v. White, 37. 808 TABLE OF CASES. References are to pages. Dube V. Masconia Mut. Fire Ins. Co., 404, 688, 698. Duer V. Supreme Council, O. of C. F., 124. Duluth Nat. Bank v. Knoxville Fire Ins. Co., 201, 234. Duncan v. Sun Fire Ins. Co., 325. Dupin V. Mutual Ins. Co., 375. Dupree v. Virginia Home Ins. Co., 347. Duran v. Standard L. & A. Ins. Co., 389. Durham v. Fire & Marine Ins. Co., 146. Dwelling House Ins. Oo. v. Dowdall, 155, 332, 477, 550, 558, 560, 561, 577. V, Hardie, 303. V. Jones, 593. V. Kansas Loan & Trust Co., 465, 519. V. Snyder, 256. Dwight V. Germania Life Ins. Co., 130, 293, 325, 337, 431. Dyer v. Piscataqua F. & M. Ins. Co., 358. Eads V. "Williams, 640. Eagle Ins. Co. v. Lafayette Ins. Co., 720, 734, 737, 740. Fames v. Home Ins. Co., 48, 55, 77, 84, 105, 408. Early v. Standard Life & Ace. Ins. Co., 384, 387, 388. Eamshaw v. Sun Mut. Aid Sec, 764. Easley v. New Zealand Ins. Co., 54, 80. Easly V. New Zealand Ins. Co., 80. Eastabrook v. Union Mut. Life Ins. Co., 395. Eastern R. Co. v. Relief Fire Ins. Co., 135, 183, 275, 277, 462, 547, 561, 565, 595, 718. East Texas Fire Ins. Co. v. Brown, 196, 330, 398, 567. V. Coffee, 550, 560. V. Kempner, 233, 234, 243. V. Perkey, 717. Ebert v. Mutual Reserve Fund Life Ass'n, 173, 211, 214, 224, 442, 754. Eckel V. Renner, 687. Eclectic Life Ins. Co. v. Fahrenkrug, 183, 193. Eddy V. Hawkeye Ins. Co., 346, 413. V. London Assur. Corp., 430, 440, 642, 678. Edgerly v. Farmers' Ins. Co., 500. Edie V. East India Co., 141. Edington v. Aetna Life Ins. Go., 779. Edison Gen. Electric Co. v. Canadian Pacific Nav. Co., 32. Educational Endowment Ass'n, In re, 757. Edwards v. Baltimore Fire Ins. Co., 475, 477, 482, 488, 548, 555, 585. 592. TABLE OF CASES. 809 References are to pages. Edwards v. Lycoming Co. Mut. Ins. Co., 484, 524, 565. V. Mississippi Valley Ins. Co., 115. V. Travelers' Life Ins. Co., 496. Egan V. Oakland Home Ins. Co., 424. V. Westchester Ins. Co., 233, 234, 243. Eggenberger v. Guarantee Mut. Ace. Ass'n, 385. Eggleston v. Council Bluffs Ins. Co., 469. Ehrman v. Teutonia Ins. Co., 29. Eilenberger v. Protective Mut. Fire Ins. Co., 82, 192. Eiseman v. Hawkeye Ins. Co., 450. Elder v. Grand Lodge, A. O. U. W., 191. Eldred v. Malloy, 309. Eliason v. Henshaw, 82. Eliot Five Cents Sav. Bank v. Commercial Union Assur. Co., 407, 432, 583. Elkhart Mut. Aid B. & R. Ass'n v. Houghton, 143, 288, 764, 780. Elkins V. Susquehanna Mut. Fire Ins. Co., 295. Ellerbe v. Faust, 316. Elliott v. Merchants' & Bankers' Fire Ins. Co., 439, 662. Elliott's Ex'rs' Appeal, 693, 694. Ellis V. Albany Ciiy Fire Ins. Co., 59, 75. V. Council Bluffs Ins. Co., 425. V. Insurance Co. of North America, 398, 710. V. Kreutzinger, 689. V. State Ins. Co., 108, 109. Ellsworth V. Aetna Ins. Co., 376. Elsey V. Odd Fellows' Mut. Relief Ass'n, 144, 685, 691. Ely V. Ely, 275, 280, 677. Embler v. Hartford Steam Boiler I. & Ins. Co., 6. Embry's Adm'r v. Harris, 289. Emerson v. Bemis, 693. Emery v. Boston Marine Ins. Co., 46-48, 180. V. Piscataqua F. & M. Ins. Co., 65. Employers' Liability Assur. Co. v. Commissioner of Ins., 24. Employers' Liability Assur. Corp. v. Merrill, 5, 6, 436. V. Rochelle, 593, 671. Endowment Rank K. P. v. Cogbill, 211. Endowment & Benevolent Ass'n v. State, 5, 12. Engebretson v. Hekla Fire Ins. Co., 524, 526, 548, 563, 590, 593, 597. English V. Franklin Fire Ins. Co., 366. Enos V. St. Paul F. & M. Ins. Co., 261, 529, 567, 599. V. Sun Ins. Co., 215, 238, 240. Enright v. Montauk Fire Ins. Co., 630, 638, 641, 642, 649. 810 TABLE OF CASES. References are to pages. Enterprise Ins. Co. v. Parisot, 550. Equitable Ace. Ins. Co. v. Osborn, 398. Equitable Life Assur. Co. v. Brobst, 160, 185. V. Clements, 116, 138. V. Hiett's Adm'r, 715. V. McElroy, 47, 53, 83, 318, 348, 707. V. Trimble, 306. V. Winning, 590. Equitable Life Ins. Co. v. Hazelwood, 212, 221, 231, 326. Erb V. Fidelity Ins. Co., 220, 441. V. German-American Ins. Co., 355, 403, 536. Ermentrout v. American Fire Ins. Co., 677, 678. V. Girard F. & M. Ins. Co., 194, 371, 488, 524, 548, 555, 563, 585, 590, 593. Ernest v. Nicholls, 747. Ervin v. New York Cent. Ins. Co., 362. Erwin v. Springfield F. & M. Ins. Co., 490, 492, 496, 499, 513, 593. Essex Sav. Bank v. Meriden Fire Ins. Co., 276. Estes V. Aetna Mut. Fire Ins. Co., 168, 207. Eureka Ins. Co. v. Robinson, 61, 77, 456. Evans v. Opperman, 682. V. Trimountain Mut. Fire Ins. Co., 121, 238. Evarts v. United States Mut. Ace. Ass'n, 576, 607, 770. Everett v. Continental Ins. Co., 361, 368. V. Niagara Ins. Co., 761. Ewards v. Baltimore Fire Ins. Co., 477. Ewell V. Daggs, 117. Ewing's Lessee v. Burnet, 133. Excelsior Mut. Aid Ass'n v. Riddle, 522, 524, 764, 767. Exchange Bank of Macon v. Loh, 286, 287. Fabyan v. Union Mut. Fire Ins. Co., 420. Failey v. Fee, 126, 144, 757. Fair v. Manhattan Ins. Co., 363. Fairchild v. Northwestern Mut. Life Ass'n, 764. Fairfield Packing Co. v. Southern Mut. Fire Ins. Co., 409. Falconer v. Montgomery, 641. Fame Ins. Co. v. Mann, 167, 346. V. Thomas, 200. Fame Ins. Go's. Appeal, 721, 724, 729, 736, 737, 746. Family Endowment Soc., In re, 752, 756. Faneuil Hall Ins. Co. v. Liverpool & L. & G. Ins. Co., 721, 731, 735. Farmers' Fire Ins. Co. v. Mispelhorn, 499, 591, 601. i TABLE or CASES. References are to pages. 811 Farmers' Ins. Co. v. Archer, 403. V. Burris, 766. V. Butler, 68. V. McCluckin, 345. V.Williams, 221. Farmers' Insurance & Loan Co. v. Snyder, 326. Farmers' Lxjan & Trust Co. v. Aberle, 188, 257, 757. V. Harmony F. & M. Ins. Co., 365. Farmers' Mut. Fire Ins. Co. v. Barr, 428. V. Chase, 256. V. Ensminger, 189. V. Gargett, 529. V. Kryder, 367. V. Moyer, 550. Farmers' Mut. Ins. Co. v. Graybill, 516, 518. V. Meese, 42. V. New Holland Turnpike Co., 437. V. Taylor, 155, 163. Farmers' & Merchants' Ins. Co. v. Chesnut, 444. V. Graham, 204. V. Wiard, 302, 779. Farnum v. Phoenix Ins. Co., 155, 249, 293, 408, 558, 560, 561, 586. Farr v. Grand Lodge, A. O. U. W., 679. Farragut Fire Ins. Co. v. Shepley, 245. Faulkner v. Manchester Fire Assur. Co., 534, 537. Faunce v. State Mut. Life Assur. Co., 96. Faust V. American Fire Ins. Co., 263, 349, 415, 567. Fay V. Richmond, 176. Fayerweather v. Phenix Ins. Co., 703. Fayles v. National Ins. Co., 177, 180. P^earn v. Ward, 132,, 695. Feder v. Iowa State T. M. Ass'n, 382. Feibelman v. Manchester Fire Assur. Co., 376. Felix V. Grand Lodge, A. O. U. W., 682. Fenn v. Lewis, 684. V. New Orleans Mut. Ins. Co., 275. Fenton v. Fidelity & Casualty Co., 688. Ferdon v. Canfield, 690. Ferguson v. Massachusetts Life Ins. Co., 8. V. Pekin Plow Co., 277, 674. Fernandez v. Merchants' Mut. Ins. Co., 374. Fern Holme, The, 280. Ferrer v. Home Mut. Ins. Co., 118. 812 TABLE OF CASES. References are to pages. Ferris v. Home Life Assur. Co., 345. Fidelity Mut. Life Ass'n v. Ficlilin, 323, 351, 713. V. Miller, 339. Fidelity T. & T. Co. v. People's Nat. Gas Co., 702. Fidelity & Casualty Co. v. Ballard & Ballard Co., 47, 52, 60, 762. V. Chambers, 132, 397. V. Eickhoff, 28, 304, 355, 701, 768, 78L V. Freeman, 761, 769. V. Johnson, 381, 383. V. Loewenstein, 117, 132, 140, 380, 383, 387. V. Sittig, 397. V. Waterman, 387, 388. Field V. City of Des Moines, 375. V. Insurance Co. of North America, 281, 347. Fillmore v. Great Camp, K. of M., 550. Finch V. Modern Woodmen of America, 339, 345, 952, 710. Findeisen v. Metropole Fire Ins. Co., 547, 583, 591. Fink V. Lancashire Ins. Co., 492, 500, 502. 507, 511, 514, 593. Finlay v. Mexican Inv. Corp., 7. Finster v. Merchants' & B. Ins. Co., 713. Fire Ass'n of Philadelphia v. Colgin, 640. V. Jones, 524, 557, 561. V. Rosenthal, 117, 139, 438. Fire Ins. Ass'n v. Canada F. & M. Ins. Co., 734. Y. Merchants' & Miners' Transp. Co., 277, 676. Fire Ins. Ass'n of England v. Merchants' & Miners' Transp. Co., 136. Fireman's Fund Ins. Co. v. Congregation Rodeph Sholom, 371, 418. V. Norwood, 150, 184. Fireman's Ins. Co. v. Powell, 279. Firemen's Fund Ins. Co. v. Western Refrigerating Co., 364. Firemen's Ins. Co. v. Floss, 106. V. Horton, 219, 220. V. Kuessner, 47, 48, 305. First Baptist Church v. Brooklyn Fire Ins. Co., 188, 190. First Congregational Church v. Holyoke Mut. Fire Ins. Co., 405, 414, 418, 419. First Nat. Bank v. American Cent. Ins. Co., 410, 580. V. North America Ins. Co., 333. First Nat. Bank of Devil's Lake v. Lancashire Ins. Co., 261. V. Manchester Fire Assur. Co., 164, 261. First Nat. Bank of Dubuque v. G^tz, 223, 252. First Nat. Bank of Kansas City v. Hartford Fire Ins. Co., 69, 325. First Nat. Bank of Waxahachie v. Lancashire Ins. Co., 236, 365, 366. TABLE OF CASES. 813 Keferences are to pages. Fischer v. American Legion of Honor, 691. V. Hope Mut. Life Ins. Co., 722. V. London & L. Fire Ins. Co., 221. Fish V. Cottenet, 60, 80, 291. Fishbeck v. Phenix Ins. Co., 715. Fisher v. Crescent Ins. Co., 346, 434, 524, 561, 604. V. Fidelity Mut. Life Ass'n, 528. V. London & L. Fire Ins. Co., 416. V. Metropolitan Life Ins. Co., 309. Fitch V. American Popular Life Ins. Co., 325. Fitchburg Sav. Banlv v. Amazon Ins. Co., 409. Fitchner v. Fidelity Mut. Fire Ass'n, 146, 147, 203. Fitzgerald v. Metropolitan Ace. Ass'n, 209. V. Union Ins. Co., 536. Fitzpatrick v. Hartford Life & Annuity Ins. Co., 254, 289. Flaherty v. Continental Ins. Co., 556, 567. Flanagan v. Camden Mut. Ins. Co., 765. Flanaghan v. Phenix Ins. Co., 597. Fleisch v. Insurance Co. of North America, 539, 544. Fleming v. Hartford Fire Ins. Co., 79, 80, 177. Fletcher v. Commonwealth Ins. Co., 342. V. German-American Ins. Co., 624. V. New York Life Ins. Co., 111. Flynn v. Equitable Life Assur. Soc, 211, 221, 230. V. Equitable Life Ins. Co., 176, 342, 349. V. Massachusetts Ben. Ass'n, 498, 510, 514. Fogg V. Middlesex Mut. Fire Ins. Co., 686. Foley V. Manufacturers' & B. F. Ins. Co., 276. V. Royal Arcanum, 111, 429, 776. Follis V. United States Mut. Ace. Ass'n, 397, 764. Folsom V. Merchants' Mut. Marine Ins. Co., 275. Foot V. Aetna Life Ins. Co., 130, 132, 134, 135, 230, 341, 403. Forbes v. American Mut. Life Ins. Co., 421. V. Union Cent. Life Ins. Co., 302, 303. Ford V. Buckeye State Ins. Co., 33. V. United States Mut. Ace. Relief Co., 147, 150, 337, 386. Forest City Ins. Co. v. Hardesty, 404. V. School Directors of Dist. No. 1, 296. • Forrester v. Gill, 695. Ft. Wayne Ins. Co. v. Irwin, 695, 769, 771. Forward v. Continental Ins. Co., 214, 219, 403, 404. Foster v. Fidelity & Casualty Co., 455, 458, 463, 485-488. V. Mentor Life Assur. Co., 733. 8U TABLE OF CASES. References are to pages. Fowle V. Springfield F. & M. Ins. Co., 492, 498, Fowler v. Aetna Fire Ins. Co., 335. V. Metropolitan Life Ins. Co., 56, 113, 119, 120, 275, 293, 302. V. Preferred Ace. Ins. Co., 54, 80, 207, 236. Fox V. Phoenix Fire Ins. Co., 275, 276. Fraim v. National Fire Ins. Co., 416. Frane v. Burlington Ins. Co., 232. Franklin Beneficial Ass'n v. Com., 5. Franklin Fire Ins. Co. v. Chicago Ice Co., 281, 557. V. Coates, 565. V. Colt, 45, 48, 50, 166. V. Findlay, 279. V. Gruver, 779, V. Hamill, 439. V. Hewitt, 364. V. Martin, 335, 345, 346, 400. V. Taylor, 48. V. Vaughan, 345, 401. Franklin Ins. Co. v. Colt, 88, 93, 100, 244. V. Humphrey, 376. V. Sears, 269. Franklin Life Ins. Co. v. Hazzard, 285. V. Sefton, 248, 285, 768. Fred Miller Brewing Co. v. Capital Ins. Co., 760, 768, 770. V. Council Bluffs Ins. Co., 24, 260. Freedman v. Providence Wash. Ins. Co., 200. Freeland v. Pennsylvania Cent. Ins. Co., 304. Freeman v. Mercantile Mut. Ace. Ass'n, 378. V. Travelers' Ins. Co., 778. French v. Hartford L. & A. Ins. Co., 316, 318. V. People, 37, 171, 173, 262. Fried v. Royal Ins. Co., 92, 99. , Friesmuth v. Agawan Mut. Fire Ins. Co., 782. Friezen v. Allemania Fire Ins. Co., 404, 409, 426, 660. Fritz V. Lebanon Mut. Ins. Co., 551. Fromherz v. Yankton Fire Ins. Co., 168, 196, 199, 201, 344, 345. Frost's Detroit L. & W. W. Works v. Millers' & M. Mut. Ins. Co., 362, 405, 411. Fry V. Charter Oak Life Ins. Co., 121. V. Provident Sav. Life Assur. Soc, 756, 758. Fudickar v. Guardian Mut. Life Ins. Co., 639. Fugure v. Mutual Soc. of St. Joseph, 209. Fullam v New York Union Ins. Co., 424, 425. TABLE OF CASES. 815 References are to page^. Fullenwider v. Supreme Council, R. L., 124. Fuller V. Detroit F. & M. Ins. Co., 497. V. Metropolitan Life Ins. Co., 120, 284. Fulton V. Phoenix Ins. Co., 551, 596. Funke V. Minnesota Farmers' Mut. Fire Ins. Ass'n, 408. Furlong v. Agricultural Ins. Co., 535. Gadd V. Equitable Life Assur. Soc, 444. Galbraith's Adm'r v. Arlington Mut. Life Ins. Co., 226. Gale V. State Ins. Co., 603. Gamble v. Accident Assur. Co., 451, 459, 470. Gandy v. Orient Ins. Co., 215, 441. Ganong v. Aetna Ins. Co., 509. Gans V. St. Paul F. & M. Ins. Co., 219, 220, 708. Ganser v. Fireman's Fund Ins. Cb., 28, 55, 134, 158, 180. Gantt V. American Cent. Ins. Co., 737. Garido v. American Cent. Ins. Co., 424. Garlick v. Mississippi Valley Ins. Co., 301. Garner v. Germania Life Ins. Co., 298, 682. Garrison v. Farmers' Mut. Fire Ins. Co., 132. Garver v. Hawkeye Ins. Co., 399, 783. Gaskarth v. Law Union Fire Ins. Co., 373. Gasser v. Sun Fire Office, 609, 614, 615, 620. Gastonguay v. Sovereign Fire Ins. Co., 535. Gates V. Madison County Mut. Ins. Co., 376. Gauch V. St. Louis Mut. Life Ins. Co., 682. Gauche v. London & L. Ins. Co., 492, 500, 550, 579, 591, 600, 617. Gauthier v. Canadian Mut. Ins. Co., 118. Gay V. Farmers' Mut. Ins. Co., 82. Gaysvllle Mfg Co. v. Phoenix Mut. Fire Ins. Co., 168, 199, 296. Geare v. United States Life Ins. Co., 776. Geisek v. Crescent Mut. Ins. Co., 373. Geiss V. Franklin Ins. Co., 783, 784. Gellatly v. Minnesota Odd Fellows' Mut. Ben. Soc, 606. General Mut. Ins. Co. v. Sherwood, 376. Gent V. Manufacturers' & Merchants' Mutual Ins. Co., 39. George v. Goldsmiths' & G. B. Ins. Ass'n, 7. George Dee & Sons Co. v. Key City Fire Ins. Co., 552, 597, 615, 628, 630, 659, 664, 669. Georges v. Niess, 663. Georgia Home Ins. Co. v. Allen, 364. V. Goode, 490. V. Jacobs, 189. 816 TABLE OF CASES. References are to pages. Georgia Home Ins. Co. v. Jones, 280. V. Kinnier's Adm'x, 182, 184, 405, 688. V. Leaverton, 457. V, O'Neal, 541. V. Rosenfield, 407, 717. V. Stein, 648. Gerard F. & M. Ins. Co. v. Frymier, 575. Gere v. Council Bluffs Ins. Co., 435, 536, 618. Gerhauser v. North British & M. Ins. Co., 69, 325, 345. Gerling v. Agricultural Ins. Co., 586. German-American Ins. Co. v. Commercial Fire Ins. Co., 363, 783. V. Davis, 149.- V. Divilbiss, 302. V. Etherton, 502, 508. V. Hocking, 762. V. Humphrey, 256. V. Paul, 281, 767. V. Stelger, 619, 628, 665. German Fire Ins. Co. v. Carrow, 549. V. Columbia Encaustic Tile Co., 162, 254, 770. V. Eddy, 621. V. Gueck, 146, 147, 586, 588. V. Laggart, 86. V. Roost, 373. Germania Fire Ins. Co. v. Boykin, 493.^ V. Curran, 28, 464, 466, 539, 675. V. Deckard, 375, 417, 454, 481. V. Frazier, 619, 625, 636. V. Hick, 219. V. Home Ins. Co., 399, 402-404, 688. V. Klewer, 408, 714, 776. V. Thompson, 275, 278. Germania Ins. Co. v. Rudwig, 347. V. Swigert, 36. Germania Life Ins. Co. v. Koehler, 219, 221, 231, 232. V. Lunkenheimer, 148, 351, 366. V. Peetz, 117, 139. German Ins. Co. v. Davis, 156, 164, 450, 460, 550, 553, 560. V. Eddy, 72, 445. V. Everett, 171, 172, 435. V. Fairbank, 425. V. PYederick, 586. V. Gibson, 591. TABLE OF CASES. 817 References are to pages. German Ins. Co. v. Gray, 182, 184, 212, 214, 219, 221, 230, 263, 352, 408, 561, 567, 576, 596. V. Independent School District, 165. V. Luckett, 534. V. Pearlstone, 499, 543. V. Penrod, 232. V. Ward, 522. V. York, 404. Gerrish v. German Ins. Co., 57, 65, 148. Getchell v. Aetna Ins. Co., 364. Gettleman v. Commercial Union Assur. Co., 399. Getz V. Equitable Life Assur. Soc, 162. Gibb V. Philadelphia Fire Ins. Co., 401, 402. Gibbons v. German Ins. & Sav. Institution, 357, 374. Gibson v. American Mut. Life Ins. Co., 396, 510. V. Imperial Council, O. of U. F., 680. V. Manufacturers' F. & M. Ins. Co., 260. V. McGrew, 292. Gibson Electric Co. v. Liverpool & L. & G. Ins. Co., 717. Giddings v. Northwestern Mut. Life Ins. Co., 137. V. Phoenix Ins. Co., 107, 114. Gilbert v. North American Fire Ins. Co., 404. V. State Ins. Co., 32. Gillett V. Liverpool & L. & G. Ins. Co., 409. Gilman v. Dwelling House Ins. Co., 280. Ging V. Cox, 52. V. Travelers' Ins. Co., 390. Girard F. & M. Ins. Co. v. Field, 522. Girard Life Ins. Annuity & Trust Co. v. Mutual Life Ins. Co., 118, 455, 587. Girard Life Ins. Co. v. Mutual Life Ins. Co., 312, Given v. Wisconsin Odd Fellows' Mut. Life Ins. Co., 86, 226, 684. Glass V. Walker, 425. Glen V. Hope Mut. Life Ins. Co., 722, 739. Glendale Woolen Co. v. Protection Ins. Co., 674. Glens Falls Ins. Co. v. Hopkins, 165. Glens Falls Portland Cement Co. v. Travellers' Ins. Co., 336. Globe Ace. Ins. Co. v. Gerisch, 470. Globe Ins. Co. v. Boyle, 146, 147. Globe Mut. Ben. Ass'n, In re, 19. Globe Mut. Life Ins. Co. v. Reals, 150, 350, 351. V. Snell, 82. KERR, INS.— 53 818 TABLE OF CASES. References are to pages. Glolse Mut Life Ins. Co. v. Wolff, 161, 207, 211, 230, 245, 547, 555, 717. Gloucester Mfg. Co. v. Howard Fire Ins. Co., 182, 561. Glover v. Rochester German Ins. Co., 656. Gnatt V. American Cent. Ins. Co., 738. Gnau V. Masons' Fraternal Ace. Ass'n, 579, 625, 669. Godchaux v. Merchants' Mut. Ins. Co., 715. Goddard v. East Texas Fire Ins. Co., 119. V. King, 640. V. Monitor Mut. Fire Ins. Co., 76, 83. 347. Godfrey v. New York Life Ins. Co., 150, 223, 237, 246, 252, 265, 350. Gold V. Sun Ins. Co., 115, 456, 589. Golden Rule v. People, 12, 24. Goldin V. Northern Assur. Co., 196, 202, 234, 710. Goldman v. North British Mercantile Ins. Co., 333. Goldsmith v. Home Ins. Co., 36. Goldwater v. Liverpool & L. & G. Ins. Co., 185. Good V. Buckeye Mut. Fire Ins. Co., 439. Goode V. Georgia Home Ins. Co., 182, 254, 490. Goodman v. Jedidjah Lodge No. 7, 144, 747. Goodrich v. Treat, 130. Goodwillie v. McCarthy, 180. Goodwin v. Massachusetts Mut. Life Ins. Co., 557. v. Provident Sav. L. Assur. Soc, 132, 306, 327. Gordon v. Massachusetts F. & M. Ins. Co., 278. V. United States Casualty Co., 102. v. Wright, 278. Gore V. Canada Life Assur. Co., 164, 184. Gottsman v. Pennsylvania Ins. Co., 782, Gough V. Davis, 534. Gould v. Dwelling House Ins. Co., 230, 240, 243, 458, 460, 557, 563, 574, 578, 579. 581. V. Emerson, 298, 679. V. York County Mut. Fire Ins. Co., 782. Gove V. Farmers' Mut. Fire Ins. Co., 376. Grabbs v. Farmers' Mut. Fire Ins. Ass'n, 279. Grace v. American Cent. Ins. Co., 141, 206, 208, 268. V. Northwestern Mut. Relief Ass'n, 685. Grady v. American Cent. Ins. Co., 86, 156. Graham v. American Fire Ins. Co., 219, 220. v. Firemen's Ins. Co., 108, 275, 344, 359. v. Phoenix Ins. Co., 516. V. Stevens, 118. TABLE OF CASES. 819 References are tc» pages. Grandin v. Rochester German Ins. Co., 118, 132, 365. Grand Lodge v. Besterfield, 578. Grand Lodge, A. O. U. W. v. Bagley, 303. V. McKlnstry, 287, 289. Grand Lodge, I. O. M. A. v. Wieting, 395. Grand Rapids Fire Ins. Co. v. Finn, 626. Grange Mill Co. v. Western Assur. Co., 281, 588, 677, 704. Grangers' Life Ins. Co. v. Brown, 138. Grant's Adm'rs v. Kline, 287, 680. Grattan v. Metropolitan Life Ins. Co., 221, 230, 336, 607. V. National Life Ins. Co., 288. Graves v. Horton, 177. V. Merchants' & Bankers' Ins. Co., 455. Gray v. Blum, 574. V. National Ben. Ass'n, 44, 221. Graybill v. Penn. Township Mut. Fire Ins. Ass'n, 158, 365. Grayson v. Willoughby, 745, 746, 748, 751, 752, 754. Great Falls Mut. Fire Ins. Co. v. Harvey, 122, 124. Greeff v. Equitable Life Assur. Soc, 444, 747, 756. Green v. Des Moines Fire Ins. Co., 546, 574. V. Green, 436, 676. v. Holway, 49. V. Liverpool & L. & G. Ins. Co., 366. V. Palmer, 766. Greenlee v. Hanover Ins. Co., 562. V. Iowa State Ins. Co., 524. Greenleaf v. Moody, 155, 180, 183, 268. Greenville C. & W. Co. v. Planters' C. & W. Co., 43. Greenwald v. Insurance Co., 359, 371. Greenwich Ins. Co. v. Dougherty, 417. V. Oregon Imp. Co., 296. Greff V. Equitable Life Assur. Soc, 758. Greiss v. State Inv. & Ins. Co., 618. Gresham v. Equitable Ace. Ins. Co., 379. Grier v. Northern Assur. Co., 423. Griesa v. Massachusetts Ben. Ass'n, 36. Griffey v. New York Cent. Ins. Co., 136, 402, 483, 687, 689. Griffin v. Prudential Ins. Co., 315. V. Western Mut. Benev. Ass'n, 390. Griffith v. New York Life Ins. Co., 72. Grimbley v. Harrold, 759. Gristock v. Royal Ins. Co., 550, 551, 573, 596. Griswold v. Sawyer, 683. 820 TABLE OF CASES. References are te pages. Griswold v. Waddington, 20. Grobe v. Erie County Mut. ins. Co., 747. Gross V. Miller, 388. Grousset v. Sea Ins. Co., 101. Grubbs v. North Carolina Home Ins. Co., 231, 255. V. Virginia F. & M. Ins. Co., 336. Gruber v. Grand Lodge, A. O. U. W., 680. Guarantee Co. v. Mechanics' Sav. Bank & T. Co., 7. Guardian Mut. Life Ins^ Co. v. Hogan, 162, 226, 288, 768. Gude V. Exchange Fire""lns. Co., 164, 167, 196, 199, 200-202» Guerin v. St. Paul F. & M. Ins. Co., 713, 769, 771. Guerlain v. Columbian Ins. Co., 118. Guernsey v. American Ins. Co., 176. Guest V. New Hampshire Fire Ins. Co., 409. Guiterman v. German American Ins. Co., 279. Gulf City Ins. Co. v. Stephens, 779. Gulf, C. & S. F. Ry. Co. v. Ellis, 782. Gulnare, The, 280. Gundlach v. Fischer, 258. Gunther v. Liverpool & L. & G. Ins. Co., 119, 416. Gushing v. Thompson, 676. Gustin V. Concordia Fire Ins. Co., 766. Guthrie v. Armstrong, 260. V. Connecticut Ind. Ass'n, 761. Gutterson v. Gutterson, 690. Hacheny v. Leary, 38. Haden v. Farmers' & Mechanics' Fire Ass'n, 77. Haggard v. German Ins. Co., 578. Hahn v. Guardian Assur. Co., 553, 591, 592. Haight V. Continental Ins. Co., 404. Hale V. Life Ind. & Inv. Co., 325, 328, 689, 765, 775, 777. V. Mechanics' Mut. Fire Ins. Co., 121, 236. Haley v. Manufacturers' F. & M. Ins. Co., 276, 277. Hall V. Concordia Fire Ins. Co., 473. V. Dorchester Mut. Fire Ins. Co., 688. V. Fire Ass'n of Philadelphia, 648. V. Insurance Co. of North America, 363, 415. V. Niagara Fire Ins. Co., 398, 400, 686. Y. Norwalk Fire Ins. Co., 654. T. People's Mut. Fire Ins. Co., 335. V. Philadelphia Fire Ass'n, 677. Hallock V. Commercial Ins, Co., 84, 98, 99, 101, 311. TABLE OF CASES. 821 References are to pages. Halpin v. Aetna Fire Ins. Co., 421. V. Insurance Co. of North America, 413. V. Phenix Ins. Co., 411, 421. Hamberg v. St. Paul F. & M. Ins. Co., 533, 540, 669. Hamblet v. City Ins. Co., 76. Hambleton v. Home Ins. Co., 77, 195, 245. Hamburg-Bremen Fire Ins. Co. v. Garlington, 139, 441, 446. Hamill v. Supreme Council of R. A., 298. Hamilton v. Connecticut Fire Ins. Co., 576. V. Dwelling House Ins. Co., 332, 400. V. Home Ins. Co., 176, 241, 614, 618. V. Liverpool & L. & G. Ins. Co., 609, 614, 615, 625, 643, 670. V. Lycoming Mut. Ins. Co., 82, 85. V. Mutual Ben. Life Ins. Co., 308. V. Mutual Life Ins. Co., 20. V. Phoenix Ins. Co., 143, 478, 551, 576, 577, 602, 631. Hamilton Mut. Ins. Co. v. Hobart, 746, 751, 752. Hammatt v. Emerson, 533. Hammel v. Queen's Ins. Co., 404. Hamm Realty Co. v. New Hampshire Fire Ins. Co., 93, 94, 151. Hancock Mut. Life Ins. Co. v. Dick, 529. V. Moore, 395. Hand v. National Live-Stock Ins. Co., 428. Hankins v. Rockford Ins. Co., 238, 240, 410. Hanna v. American Cent. Ins. Co., 599, 602. V. Connecticut Mut. Life Ins. Co., 529. V. Mutual Life Ass'n, 341. Hannan v. Williamsburgh City Fire Ins. Co., 362. Hanover Fire Ins. Co. v. Ames, 268, 269. V. Bohn, 278. V. Dole, 303. v. Gustin, 263, 333.. V. Lewis, 528, 649. V. Mannasson, 361. V. National Exchange Bank, 108. Hanscom v. Home Ins. Co., 534, 536, 546, 549, 715. Hansen v. American Ins. Co., 536. Hanson v. Minnesota S. R. Ass'n, 684. Harden v. Milwaukee Mechanics' Ins. Co., 483. Hardesty v. Forest City Ins. Co., 135. Hardie v. St. Louis Mut. Life Ins. Co., 86. Harding v. Norwich Union F. Ins. Co., 182, 183, 220, 409. Hardwick v. State Ins. Co., 55. 822 TABLE OF CASES. References are to pages. Hardy v. Lancashire Ins. Co., 409. Hare v. Headley, 598, 701, 704. Harkins v. Quincy Mut. Fire Ins. Co., 457, 493, 499. Harle v. Council Bluffs Ins. Co., 165, 167, 20S. Harman's Case, 743, 751. Harnden v. Milwaukee Mechanics' Ins. Co., 162, 488. Harnickel v. New York Life Ins. Co., 82, 90, 96, 309. Harp V. Grangers' Mut. Fire Ins. Co., 80. Harper v. Albany Mut. Ins. Co., 130, 363, 415. Harper's Adm'r v. Phoenix Ins. Co., 379. Harrington v. Fitchburg Mut. Fire Ins. Co., 347. Harris v. Columbian County Mut. Ins. Co., 774. V. Eagle Fire Ins. Co., 70. V. Equitable Life Assur. Soc, 150, 350. V. New York Mut. Ins. Co., 280. V. Phoenix Ins. Co., 72, 150, 549, 551, 586, 712. V. Royal Canadian Ins. Co., 367, 492. V. Tumbridge, 773. V. Waterloo Mut. Fire Ins. Co., 535. V. York Mut. Ins. Co., 275, 375. Harrison v. German-American Fire Ins. Co., 548, 556, 574, 623, 628, 631, 647, 662, 664. -v. Hartford Fire Ins. Co., 554, 563, 660, 665, 774. V. Pepper, 10, 436, 676. Hart V. National Masonic Ace. Ass'n, 337, 386, 764. V. Niagara Fire Ins. Co., 176, 333. V. Western R. Corp., 448, 700. Hartford Fire Ins. Co. v. Bonner Mercantile Co., 639, 656. V. Cannon, 436. V. Davenport, 114. V. Farrish, 163. V. Kahn, 565, 566. V. Keating, 219, 551, 562, 567. V. King, 99. V. McKenzie, 100, 165, 166. V. Moore, 336. V. Olcott, 678. V. Orr, 182. V. Raymond, 24, 34. V. Reynolds, 109, 161, 197. V. Small, 709. V. Smith, 261, 487, 492, 524. V. Walsh, 105, 106. TABLE OF CASES. 823 References are to pages. Hartford Fire Ins. Co. v. Webster, 431. V. Wilcox, 44, 258, V. Williams, 440. Hartford Ins. Co. v. Haas, 149. Hartford Life & Annuity Ins. Co. v. Eastman, 189. V. Gray, 111, 344. V. Hayden's Adm'r, 182, 558, 561. V. Unsell, 315, 547, 707, 709. Hartford Live Stock Ins. Co. v. Matthews, 29. Hartford Protection Ins. Co. v. Harmer, 779. Hartford S. B. I. & Ins. Co. v. Lasher Stocking Co., 83. Hartman v. Keystone Ins. Co., 779. Hartshorn v. Shoe & Leather Dealers' Ins. Co., 291. Hartwell v. California Ins. Co., 364. V. Penn Fire Ins. Co., 649. Harvey v. Cherry, 279. Haskin v. Agricultural Fire Ins. Co.. 47, 53, 80, 99, 161. Haskins v. Hamilton Mut. Ins. Co., 439. Hass v. Mutual Relief Ass'n, 121, 124. Hastings v. Westchester Fire Ins. Co., 119, 437, 678. Hatch V. Mutual Life Ins. Co., 389. Hathaway v. Orient Ins. Co., 648, 677. V. State Ins. Co., 401. V. Trenton Mut. Life & Fire Ins. Co., 422. Haughton v. Ewbank, 156. Hausen v. Citizens' Ins. Co., 203. Havens v. Germania Fire Ins Co., 447. V. Home Ins. Co., 783, 784. Haverhill Ins. Co. v. Prescott, 32, 36. Hawley v. Michigan Mut. Life Ins. Co., 90. Haws V. Fire Ass'n of Philadelphia, 131, 367, 368. Haydel v. Mutual Reserve Fund Life Ass'n, 310, 316. Hayes v. Milford Mut. Fire Ins. Co., 428, 627. Hayne v. Metropolitan Trust Co., 355. Haynie v. Knights Templars & M. Life Ind. Co.. 116. Hazard's Adm'r v. The New England Marine Ins. Co., 141. Heald v. Builders' Mut. Fire Ins. Co., 281. Healey v. Mutual Ace. Ass'n, 5, 383, 388. Hearing, Succession of, 693. Hearn v. Equitable Safety Ins. Co., 114. Hearne v. Marine Ins. Co., 350. v. New England Mut. Marine Ins. Co., 146, 151. 824: TABLE OF CASES. References are to pages. Heasley v. Heasley, 691. Heath v. Springfield Fire Ins. Co., 203, 204. Hebdon v. West, 288. Hebert v. Mutual Life Ins. Co., 57, 76, 77. Hedden v. Griffin, 350. Heebner v. Eagle Ins. Co., 138. Heffron v. Kittanning Ins. Co., 357, 369. Heidenreich v. Aetna Ins. Co., 576. Heiman v. Phoenix Mut. Life Ins. Co., 53, 76, 79, 80, 89, 90, 92, 96. Heinlein v. Imperial Life Ins. Co., 109, 305. Heins v. Wicke, 678, 704. Helbing v. Svea Ins. Co., 536. Hellenberg v. District No. 1, O. of B. B., 684. Helme v. Philadelphia Life Ins. Co., 52, 141. Helmetag's Adm'r v. Miller, 286, Helvetia Swiss Fire Ins. Co. v. Edward P. AUis Co., 275, 547, 549, 551, 588, 594. Helwig V. Mutual Life Ins, Co., 530. Heman v. Britton, 750, 757, Henbeau v. Great Camp, K, of M., 612. Henderson v. Travelers' Ins. Ca, 146. Hendrie & B. Mfg. Co. v. Piatt, 694, Henning v. United States Ins. Co., 48-50. Hepburn v. Dunlop, 20. Herekenrath v. American Mut. Ins. Co., 721. Herman v. Phenix Mut. Life Ins. Co., 164, Hermann v. Niagara Fire Ins. Co., 586. Hermany v. Fidelity Mut. Life Ass'n, 713. Herndon v. Imperial Fire Ins. Co., 651. Herrick V. Union Mut. Fire Ins. Co., 417. Herrman v. Adriatic Fire Ins. Co., 412. Herron v. Peoria M. & F. Ins. Co., 85, 522, Hersey v. Merrimac Co, Mut. Fire Ins. Co., 69. Heuer v. Northwestern Nat. Ins. Co., 370. Heusinkveld v. St. Paul F, & M. Ins. Co., 491, 501, 557. Hewitt V. Watertown Fire Ins. Co., 364. Hews V. Atlas Ins. Co., 361, 367. Hey V. Guarantor's Liability Ind. Co., 131, 140, 349. Heywood v. Maine Mut. Ace. Ass'n, 452, 454, 459, 463, 492, 605. Hibernia Ins. Co. v. O'Connor, 86, 565. Hibernia Mut. Fire Ins. Co. v. Meyer, 491, 493, 518, 523. Hickerson v. German-American Ins. Co., 434, 624, 635, 637, 641, 665- 667, 669. TABLE OF CASES. 825 References are to pages. Hicks V. British America Assiir. Co., 46, 50, 56, 58, 61, 63, 71, 72, 77, 115, 117, 140, 143, 150, 163, 231, 244, 456, 549, 586, 712, 769, 780. V. Farmers' Ins. Co., 410. Higgbee v. Guardian Mut. Life Ins. Co., 120. Higgins V. Phoenix Mut. Life Ins. Co., 340. High Court, I. 0. F. v. Schweitzer, 191. High Court of W. I. O. F. v. Commissioner of Ins., 25. Highlands v. Lurgan Mut. Fire Ins. Co., 233. • Hiles V. Hanover Fire Ins. Co., 529. Hill V. Hartford Ace. Ins. Co., 388. V. Ohio Ins. Co., 413. V. United States Life Ins. Ass'n, 283, 680. Hillier v. Allegheny County Mut. Ins. Co., 358, 370. Hills V. Home Ins. Co., 642, 650. Hillyard v. Mutual Ben. Life Ins. Co., 20. Hilt V. Metropolitan Life Ins. Co., 232, 241, Hilton V. Phoenix Assur. Co., 414. ' Hinckley v. Germania Fire Ins. Co., 356, 492. Hines v. Mutual Life Ins. Co., 444. Hingston v, Aetna Ins. Co., 213. Hinman v. Hartford Fire Ins. Co., 468. Hiscock V. Harris, 657. Hitchcock V. State Ins. Co., 552, 596. Hoadley v. Purifoy, 23, 26. Hobbs V. Iowa Mut. Ben. Ass'n, 125, 313. Hobkirk v. Phoenix Ins. Co., 148, 712-714, 763, 774. Hocking v. Howard Ins. Co., 423. V. Virginia F. & M. Ins. Co., 677. Hocking Valley Coal Co. v. Rosser, 782. Hodge V. Ellis, 298. V. Security Ins. Co., 90. Hodgkins v. Montgomery County Mut. Ins. Co., 526. Hodsdon v. Guardian Life Ins. Co., 779. Hoffecker v. New Castle Co. Mut. Ins. Co., 487. Hoffman v. Aetna Fire Ins. Co., 68, 70, 468. V. Hoke, 682. V. John Hancock Mut. Life Ins. Co., 251, 294. V. Manufacturers' Ace. lad. Co., 458, 463, 469, 607. V. Western M. & F. Ins. Co., 434. Hogben v. Metropolitan Life Ins. Co., 83. Hogue V. Minnesota Packing & Provision Co., 687-689. Hohn V. Inter-State Casualty Co., 386, 569, 587. 826 TABLE OF CASES. References are to pages. Hoke V. Richie, 349, 504. Holbrook v. Baloise Fire Ins. Co., 429. V. St. Paul F. & M. Ins. Co., 18, 131, 140, 280, 281, 417, 418, 675, Holdom V. A. O. U. W., 391. Holland v. Supreme Council of C. F., 120, 144. V. Taylor, 191, 691. Hollis V. State Ins. Co., 566, 715. Holloway v. Dwelling House Ins. Co., 332. Holman v. Continental Life Ins. Co., 293. Holmes v. Charleston Mut. Fire Ins. Co., 69, 359. V. Charter Oak Ins. Co., 138. V. Oilman, 692, 694, 695. V. Phenix Ins. Co., 6, 14, 133, 135. Holtzman v. Franklin Ins. Co., 372. Home V. Mutual Safety Ins. Co., 721. Home District Mut. Ins. Co. v. Thompson, 439, Home Fire Ins. Co. v. Bean, 602, 659. V. Fallon, 212. V. Garbacz, 256. V. Ourney, 212, 220, 233. V. Hammang, 493, 504. V. Kuhlman, 414. V. Wood, 220, 710. Home Forum Ben. Order v. Jones, 80, 82, 88, 120, 191. Home Ins. Co. v. Adler, 47, 55, 58, 103, 140, 435, 437. V. Baltimore W. Co., 67, 68, 70, 277, 365, 560. V. Boyd, 586. V. Curtis, 245, 295. V. Davis, 483, 488. V. Duke, 219, 767. V. Favorite, 141. V. Field, 280. V. Oilman, 236. V. Karn, 318. V. Lindsey, 470. V. Mendenhall, 219, V. Morse, 760. V. Peoria & P. U. Ry. Co., 277, 674. V. Swigert, 36. V. Winn, 534, 535. V.Wood, 235, 412. Home Ins. & Banking Co. v. Lewis, 164, 188. Home Life Ins. Co. v. Pierce, 163, 423. TABLE OF CASES. 827 References are to pages. Home Marine Ins. Co. v. Smith, 726. Home Mut. Ins. Co. v. Oregon Ry. & Nav. Co., 701. V. Roe, 130. Hone V. Mutual Safety Ins. Co., 141, 737. Hong Sling v. Royal Ins. Co., 426. V. Scottish U. & N. Ins. Co., 651. Hood V. Hartshorn, 645. V. Manhattan Fire Ins. Co., 361. Hooker v. Phoenix Ins. Co., 665. V. Sugg, 682. Hooper v. California, 23, 25, 171, 173. V. People, 197. V. Robinson, 275, 276, 676. Hoose V. Prescott Ins. Co., 202, 325, 330, 398. Hope Mut. Ins. Co. v. Flynn, 307. Hope Oil M. C. & M. Co. v. Phoenix Assur. Co., 674. Hopkins v. Hawkeye Ins. Co., 223, 317. V. Phoenix Ins. Co., 420. Hopkins Mfg. Co. v. Aurora F. & M. Ins. Co., 404. ' Hopkinson v. Marquis of Exeter, 126. Horridge v. Dwelling House Ins. Co., 407. Horsch V. Dwelling House Ins. Co., 275, 281. Hort's Case, 743, 751, 752. Hosford V. Germania Fire Ins. Co., 325. Hosmer v. Welch, 287-289. Hotchkiss V. Phoenix Ins. Co., 158. Houdeck v. Merchants' & B. Ins. Co., 718. Hough V. City Fire Ins. Co., 169, 400. V. People's Fire Ins. Co., 278, 437. Houghton V. Watertown Fire Ins. Co., 364. Hoven v. Employers' Liability Assur. Corp., 380. Hovey v. American Mut. Ins. Co., 487. V. Home Ins. Co., 741. How V. Union Mut. Life Ins. Co., 167, 197, 200, 301, 318. Howard v. Great Western Ins. Co., 117, 773. V. Metropolitan Life Ins. Co., 531. V. Mutual Ben. Life Ins. Co., 310. V. Refuge Friendly Soc, 309. Howard Fire Ins. Co. v. Bruner, 351. Howard Ins. Co. v. Owen's Adm'rs, 178, 182. Howard's Case, 103. Howell V. Knickerbocker Life Ins. Co., 293, 310. Hoyt V. Mutual Ben. Life Ins. Co., 90. 828 TABLE OF CASES. References are to pages. Hubbard v. Hartford Fire Ins. Co., 63, 75, 88, 103, 408. V. Mutual Reserve Fund Life Ass'n, 158, 161, 211, 716, 718. V. North British & Mercantile Ins. Co., 70. V. Turner, 682. Huchberger v. Home Fire Ins. Co., 530. Huck T. Globe Ins. Co., 371. Huckins v. People's Mut. Fire Ins. Co., 376. Huesinkveld v. St. Paul F. & M. Ins. Co., 177, 263, 265. Huff V. Jewett, 537. Hughes V. Hunner, 756. V. Mercantile Mut. Ins. Co., 76, 149. Humphrey v. Hartford Fire Ins. Co., 430. Humphreys v. National Ben. Ass'n, 379. Hunt V. New Hampshire F. U. Ass'n, 723, 737. Hurd V. Doty, 679, 685. Hurlbut V. Hurlbut, 697. Hurrell v. Bullard, 270. Hurst V. Home Protection Fire Ins. Co., 762. Hustisford Farmers' Mut. Ins. Co. v. Chicago, M. & St. P. Ry. Co., 701. Huston V. State Ins. Co., 361. Hutchcraft's Ex'r v. Travelers' Ins. Co., 390. Hutchins v. Cleveland Mut. Ins. Co., 322. Hutchinson v. Liverpool & L. & G. Ins. Co., 609, 611, 625, 628, 663, 672. Hutchison v. Hartford Life & Annuity Ins. Co., 214. Hyatt V. McMahon, 124. Hyde v. Goodnow, 38. Hynds v. Schenectady County Mut. Ins. Co., 376. Idaho Forwarding Co. v. Firemen's Fund Ins. Co., 57, 59, 107, 165, 166. Tde V. Phoenix Ins. Co., 565. Illinois Live Stock Ins. Co. v. Baker, 711. Illinois Masons' Benev. Soc. v. Baldwin, 144. Illinois Mut. Fire Ins. Co. v. Andes Ins. Co., 275, 674, 736-738. Imperial Fire Ins. Co. v. American M. U. Exp. Co., 370. v. Coos County, 405, 420. V. Dunham, 185, 331, 400, 688. V. Murray, 435, 565. V. Shimer, 217. Imperial Shale Brick Co. v. Jewett, 26. Improved Match Co. v. Michigan Mut. Fire Ins. Co., 421. TABLE OF CASES. 829 References are to pages. Indemnity Mut. Marine Assur. Co. v. United Oil Co., 772. Independent Mut. Ins. Co. v. Agnew, 180, 375. Indiana, B. & W. Ry. Co. v. Adamson, 176, 177. Indiana Ins. Co. v. Brehm, 357, 653. V. Capehart, 263. V. Hartwell, 192, 198, 206. Indiana Millers' Mut Fire Ins. Co. v. People, 173, 189. Inland Insurance & Deposit Co. v. Stauffer, 522, 546. Inman v. Western Fire Ins. Co., 482, 484. Insurance Com'r v. Provideat Aid Soc, 443, 728, 746, 751, 755, 757, 758. Insurance Co. v. Connor, 124. V. Haven, 275, 280, V. Lamkin, 346. V. Newton, 528. V. Stinson, 281. Insurance Co. of North America v. Bachler, 446. V. Bird, 16, 46. V. Brim, 454, 475, 478, 548, 585, 593. V. Canada Sugar-Refining Co., 621. V. Caruthers, 554, 592. V. Garland, 714. V. Hibernia Ins. Co., 723, 747. V. Hope, 438. V. McDowell, 420, 432, 524. V. McLimans, 523. V. Martin, 702. Insurance Co. of Pennsylvania, In re, 138, 265. Insurance Co. of State of Pennsylvania v. Telfair, 729, 738. Insurance Cos. v. Boykin, 468, 469. Insurance & Banking Co. v. Butler, 149. International Trust Co. v. Norwich Union Fire Ins. Soc, 107, 223, 254, 255, 280. Irish Catholic Ben. Ass'n v. O'Shaughnessey, 14. Irving V. Excelsior Fire Ins. Co., 528, 532. Isaacs V. Royal Ins. Co., 101, 103. Israel v. Teutonia Ins. Co., 536. Jackson v. British American Assur. Co., 119. V. Fidelity & Casualty Co., 427, 428. V. Mutual Ben. Life Ins. Co., 155, 234, 246, 252. V. Northwestern Mut. Relief Ass'n, 109. V. St. Paul F. & M. Ins. Co., 723, 734, 738, 741. 830 TABLE OF CASES. References are to pages. Jackson v. Southern Mut. Life Ins. Co., 489. V. State, 38. Jackson County v. Boylston Mut. Ins. Co., 700, 703. Jackson Ins. Co v. Partee, 260. Jaeckel v. American Credit Ind. Co., 6. James v. Lycoming Ins. Co., 406. Jameson v. Hartford Fire Ins. Co., 728, 744, 747, 749, 756. Jarman v. Knights Templars & M. Life Ind. Co., 116, 127, 128. Jefferson v. German-American M'ut. Life Ass'n, 578, 588. Jefferson Ins. Co. v. Cotheal, 779. Jeffries v. Economical Mut. Life Ins. Co., 66. Jennings v. Chenango County Mut. Ins. Co., 323, 327, 345. Jerdee v. Cottage Grove Fire Ins. Co., 715. Jerrett v. John Hancock Mut. Life Ins. Co., 341, 345. Jersey City Ins. Co. v. Nichol, 440, 529. Jervis v. Hoyt, 183. Johannas v. National Ace. Soc, 397. Johannes v. Phenix Ins. Co., 4, 722, 743, 753, V. Standard Fire Office, 400. John Davis & Co. v. Insurance Co. of North America, 370. John Hancock Life Ins. Co. v. Warren, 344. John Hancock Mut. Life Ins. Co. v. Dick, 529. V. Moore, 395, 778. V. Schlink, 219, 248, 251, 252. John Morrill & Co. v. New England Fire Ins. Co., 423. John R. Davis Lumber Co. v. Hartford Fire Ins. Co., 168, 172, 173, 200, 201. V. Home Ins. Co., 299. V. Scottish U. & N. Ins. Co., 53, 59. Johnson v. American Ins. Co., 408, 409, 584, 659. v. Berkshire Mut. Fire Ins. Co., 358. V. Campbell. 278, 365. V. Connecticut Fire Ins. Co., 76, 159, 709. V. Dakota F. & M. Ins. Co., 114, 460, 474, 593, 594. V. Goodyear Min. Co., 782. V. Horsford, 299. V. Humboldt Ins. Co., 425, 660. V. Knights of Honor, 680, 682. V. London Guarantee & Ace. Co., 397. V. New York Life Ins. Co., 140. V. Northwestern Mut. Life Ins. Co., 19, 310. V. Northwestern Nat. Ins. Co., 130, 132, 134. V. Norwalk Fire Ins. Co., 413. TABLE OF CASES. References are to pages. 831 Johnson v. Pennsylvania R. Co., 777. V. Phoenix Ins. Co., 503, 663. V. Scottish Union & Nat. Ins. Co., 19, 42, 327, 349. V. Van Epps, 690. Johnston v. Cheape, 640. V. Columbian Ins. Co., 604. V. Farmers' Fire Ins. Co., 457, 494. V. Northwestern Live Stock Ins. Co., 329, 343. Jones V. German Ins. Co., 23, 35, 102, 141, 429. V. Granite State Fire Ins. Co., 419, 781. V. Howard Ins. Co., 494, 502, 506, 575. V. Insurance Co. of North America, 334. V. Mechanics' Fire Ins. Co., 492, 499, 542. V. New York Life Ins. Co., 244. V. United States Mut. Ace. Ass'n, 388, 778. Jordan v. State Ins. Co., 220. Jory v. Supreme Council, A. L. of H., 690. Joyce V. Maine Ins. Co., 335, 418. Kahn v. Traders' Ins. Co., 491, 493, 550. Kahnweiler v. Phoenix Ins. Co. of Brooklyn, 471, 594, 609, 616, 671, 716, 770. Kane v. Hibernia Mut. Fire Ins. Co., 676. Kansas City M. & B. R. Co. v. Southern News Co., 6. Kansas Farmers' Fire Ins. Co. v. Saindon, 148, 265. Karelsen v. Sun Fire Office, 55, 63, 115, 515, 519, 575. Karow v. Continental Ins. Co., 778. Karthaus v. Ferrer, 640. Kasten v. Interstate Casualty Co., 384, 432. Kauffman v. Robey, 214. Kausal v. Minnesota Farmers' Mut. Fire Ins. Ass'n, 167, 169, 206, 209, 212, 219. Kautreuer v. Penn Mut. Life Ins. Co., 86. Keary v. Miitual Reserve Fund Life Ass'n, 764. Keeler v. Niagara Fire Ins. Co., 519, 520. Keeley-Goodfellow Shoe Co. v. Liberty Ins. Co., 119. Keels v. Mutual Reserve Fund Life Ass'n, 528. Keene v. New England Mut. Ace. Ass'n, 391, 397. Keeney v. Home Ins. Co., 405, 511, 578, 593. Keim v. Home Mut. F. & M. Ins. Co., 83, 98. Keith V. Globe Ins. Co., 147, 155. Kelley v. Life Insurance Clearing Co., 339. V. Mutual Life Ins. Co., Ill, 337. 832 TABLE OF CASES. References are to pages. Kelley v. Worcester Mut. Fire Ins. Co., 417. Kelley-Goodfellow Shoe Co. v. Liberty Ins. Co., 332. Kelly V. Home Ins. Co., 356. V. Metropolitan Life Ins. Co., 516. V. St. Louis Mut. Life Ins. Co., 92. V. Sun Fire Office, 438, 503. V. Supreme Council of Catholic Mut. Ben. Ass'n, 429, 777. Kelsey v. Universal Life Ins. Co., 326. Kempton v. State Ins. Co., 276. Kenaston v. Lorig, 675. Kencht v. Mutual Life Ins. Co., 393. Kendall v. Holland Purchase Ins. Co., 565. V. Pacific Mut. Life Ins. Co., 191. Kendrick v. Mutual Ben. Life Ins. Co., 781. V. Ray, 121. Kennan v. Rundle, 41, 746, 748. Kennebec Co. v. Augusta Insurance & Banking Co., 561. Kennedy v. New York Life Ins. Co., 63. Kenney v. Home Ins. Co., 507, 688. Kenniston v. Merrimac County Mut. Ins. Co., 372. Kensington Nat. Bank v. Yerkes, 118. Kent V. Liverpool & L. Ins. Co., 364. Kenton Ins. Co. v. Downs, 473. V. Wigginton, 346, 351, 547, 571, 572, 707, Kentucky Life & x\ccident Ins. Co. v. Franklin, 398. V. Hamilton, 283, 680. Kentucky Mut. Ins. Co. v. Jenks, 92, 94, 95, 101, 294. Kentucky & L. Mut. Ins. Co. v. Southard, 325, 327. Kentzler v. American Mut. Ace. Ass'n, 458, 459, 466, 485, 486. Kenyon v. Knights Templar & M. Mut. Aid Ass'n, 131, 294, 337. Ketcham v. American Mut. Ace. Ass'n, 211, 226, 230, 352. Kettenring v. Northwestern Masonic Aid Ass'n, 427. Kerman v. Howard, 683. Kernochan v. New York Bowery Fire Ins. Co., 700. Kerr v. Minnesota Mut. Ben. Ass'n, 389, Kershaw v. Kelsey, 20. Key V. Des Moines Ins. Co., 408. Keystone Mut. Ben. Ass'n v. Norris, 283. Kibbe v. Hamilton Mut. Ins. Co., 332. Kiernan v. Dutchess County Mut. Ins. Co., 656, 716, Killips V. Putnam Fire Ins. Co., 455, 472, 473, 475, 487, 490, 548, 593, Kimball v. Aetna Ins. Co., 321. V. Howard Fire Ins. Co., 477, 782. TABLE OF CASES. References are to pages. 833 Kimball v. Lion Ins. Co., 77. V. Masons' Fraternal Ace. Ass'n, 429, 454, 463, 469. V. Monarch Ins. Co., 411. King V. Council Bluffs Ins. Co., 182. V. Cox, 46, 232. V. Gleason, 42. V. Hekla Fire Ins. Co., 52, 105, 588. V. Travelers' Ins. Co., 394. V. Watertown Fire Ins. Co., 426. King Brick Mfg. Co. v. Phoenix Ins. Co., 327. Kings County Fire Ins. Co. v. Swigert, 200. Kingsley v. New England Mut. Fire Ins. Co., 118, 475. Kinney v. Baltimore & O. B. R. Ass'n, 379, 609. V. Dodd, 289. Kirby v. Thames & Mersey Ins. Co., 157. Kircher v. Milv/aukee Mechanics' Mut. Ins. Co., 417, 418, 429. Kirkman v. Farmers' Ins. Co., 240, 553, 557, 558, 562. Kister v. Lebanon Mut. Ins. Co., 202, 206, 207, 208, 222, 408, 410, 419. Kittel V. Augusta T. & G. R. Co., 751. Klein v. New York Life Ins. Co., 294, 310. Kleis V. Niagara Fire Ins. Co., 53, 56, 98, 146, 148, 762, 774. Kline v. National Ben. Ass'n, 690. Klopp V. Bernville Live Stock Ins. Co., 382. Knauer v. Globe Mut. Life Ins. Co., 177, 188. Knecht v. Mutual Life Ins. Co., 338. Knickerbocker Ins. Co. v. Gould, 487. V. McGinnis, 487. V. Norton, 233. Knickerbocker Life Ins. Co. v. Foley, 393. V. Heidel, 114, 119. V. Norton, 52, 155, 211, 230, 237, 239, 245, 546, 550, 558, 560, 562. 708, 715. V. Pendleton, 301. Knights of Honor v. Watson, 690. Knights of Pythias of the World v. Bridges, 192. Knights Templar & Masons' Life Indemnity Co. v. Berry, 28. Knopp V. National Fire Ins. Co., 400, 533, 536. Knowlton v. Homer, 638. Knox V. Lycoming Fire Ins. Co., 172. V. Rossi, 49. Knudson v. Hekla Fire Ins. Co., 557, 563, 597, 603. Koehler v. Centennial Mut. Life Ins. Co., 682. Koelges v. Guardian Life Ins. Co., 248. KERR, INS.— 53 834 TABLE OF CASES, Beferences are to pages. Kohen v. Mutual Reserve Fund Life Ass'n, 80, 90, 191. M Konrad v. Union Casualty & Surety Co., 458, 479, 481, 485, 486, 489. ^ Koshland v. Fire Ass'n, 404. Kratzenstein v. Western Assur. Co., 326, 424. Krause v. Equitable Life Assur. Soe., 295. Kroeger v. Pitcairn, 158, 272. Kruger v. Western F. & M. Ins. Co., 159, 185. Krumm v. Jefferson Fire Ins. Co., 101, 163, 182, 254, 317. Kugler, In re, 690. Kuney v. Amazon Ins. Co., 254. Kuznik V. Orient Ins. Co., 585. Kyte V. Commercial Union Assur. Co., 238, 240, 280, 404, 420, 711. Lafayette Ins. Co. v. French, 760. La Force v. Williams City Fire Ins. Co., 370, 487. Ilake V. Farmers' Ins. Co., 551, 556, 558, 567, 596, 718. Lake Erie & W. R. Co. v. Griffin, 448. La Marche v. New York Life Ins. Co., 147. Lamb v. Bowser, 26, 39. v! Council Bluffs Ins. Co., 537. Lambert v. Addison, 126. Lamberton v. Connecticut Fire Ins. Co., 150, 239, 546, 561. Lamont v. Grand Lodge, 283. Lamkin v. Travelers' Ins. Co., 576, 588. Lamson C. Store-Service Co. v. Prudential Fire Ins. Co., 614, 663. Lancashire Ins. Co. v. Bush, 413, 441, 782. V. Monroe, 588. Lancey v. Phoenix Fire Ins. Co., 106. Landers v. Watertown Fire Ins. Co., 714. Landrum v. American Cent. Ins. Co., 551. < Lane v. Maine Mut. Fire Ins. Co., 275, 420. V. St. Paul F. & M. Ins. Co., 450, 453, 455, 475, 503, 511, 555, 578. 594, 600, 603. Lang V. Eagle Fire Co., 651. V. Hawkeye Ins. Co., 331, 335. Langan v. Aetna Ins. Co., 439, 616. V. Royal Ins. Co., 470, 492, 499, 542. Langdale v. Mason, 375. Langdon v. Minnesota Farmers' Mut. Fire Ins. Ass'n, 402. Lange v. Lycoming Fire Ins. Co., 201. Langworthy v. Garding, 33. L'Anse v. Fire Ass'n of Philadelphia, 366. Lantz V. Vermont Life Ins. Co., 108, 316. TABLE OF CASES. 835 References are to pages. La Plant v. Firemen's Ins. Co., 428, 594, 671, 716. Larkin v. Glens Falls Ins. Co., 117, 139, 438, 44P v. Interstate Casualty Co., 384. Larocque v. Royal Ins. Co., 535. Larson v. Fidelity Mut. Life Ass'n, 186. Larue's Assignee v. Larue, 697. Laselle v. Hoboken Fire Ins. Co., 412. Lattan v. Royal Ins. Co., 440. Lauman v. Lebanon Valley R. Co., 742. Lavalle v. Societe St. Jean Baptiste, 442. Law V. New England Mut. Ace. Ass'n, 428L Lawler v. Murphy, 120. Lawrence v. National Fire Ins. Co., 356. V. Ocean Ins. Co., 491. Leach v. Republic Fire Ins. Co., 533. Leadbetter v. Aetna Ins. Co., 502, 508. Leavenworth County Com'rs v. Chicago, R. I. & P. Ry. Co., 727. Leavitt v. Canadian Pacific Ry. Co., 701. Lebanon Mut. Ins. Co. v. Erb, 274. V. Hoover, 295. V. Kepler, 329, 437. Lee V. Agricultural Ins. Co., 419. V. Guardian Life Ins. Co.. 161, 211. V. Howard Fire Ins. Co., 782. V. Massachusetts F. & M. Ins. Co., 67. V. Mutual- Reserve Fund Life Ass'n, 442. Lee Mut. Fire Ins. Co. v. State, 24. Lefavour v. Insurance Co., 100. Lehigh v. Springfield F. & M. Ins. Co., 503. Lehigh Coal & Navigation Co. v. Mohr, 260. Lehman v. Clark, 292. v. Gunn, 694. Leiber v. Liverpool, L. & G. Ins. Co., 180, 375, 376. Leigh v. Springfield F. & M. Ins. Co., 593, 597. Leitch V. Atlantic Mut. Ins. Co., 779. Leman v. Manhattan Life Ins. Co., 529. Leonard v. American Ins. Co., 209, 238, 335. V. Clinton, 694. Leonarda v. Phoenix Assur. Co., 437. Le Roy v. Park Fire Ins. Co., 327. Leslie v. Knickerbocker Life Ins. Co., 312. Lester v. Howard Bank, 30. Lesure Lumber Co. v. Mut. Fire Ins. Co., 263, 441, 609, 614, 620, 626, 836 TABLE OF CASES. References are to pap:es. Levine v. Lancashire Ins. Co., 580, 617, 635, 645, 653, 655-658, 666, 775. Levy V. Peabody Ins. Co., 604, 715. Lewis V. Burlington Ins. Co., 522. V. Council Bluffs Ins. Co., 533. V. Penn Mut. Life Ins. Co., 308. V. Phoenix Mut. Life Ins. Co., 226, 230, 248, 286. V. Rucker, 69. V. Springfield F. & M. Ins. Co., 371. Lewis Baillie & Co. v. Western Assur. Co., 671. Liberty Hall Ass'n v. Housatonic Mut. Fire Ins. Co., 104. Liberty Ins. Co. v. Boulden, 332. Liebenstein v. Aetna Ins. Co., 367. V. Baltic Fire Ins. Co., 362. Lieber v. Liverpool, L. & G. Ins. Co., 372. Life Ass'n of America v. Cravens, 304. Life Ins. Clearing Co. v. O'Neill, 283, 284, 288. Light V. Countrymen's Mut. Fire Ins. Co., 281. Lightbody v. North American Ins. Co., 97, 101, 176, 182, 184. Limburg v. German Fire Ins. Co., 412, 413. Lindauer v. Delaware Mut. S. Ins. Co., 48. Linde v. Republic Fire Ins. Co., 642. Linder v. Fidelity & Casualty Co., 196. Lindley v. Orr, 9. Lindner v. St. Paul F. & M, Ins. Co., 446. Lindsay v. Pettigrew, 62, 271. V. Western Mut. Aid Soc, 110. Lindsey v. Western Mut. Aid Soc, 117. Lingenfelter v. Phoenix Ins. Co., 75, 255, 398. Linscott v. Orient Ins. Co., 350. Lipman v. Niagara Fire Ins. Co., 55, 63, 115. List V. Com., 25, 171. Little V. Phoenix Ins. Co., 184, 281, 537, 561. Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 140. Liverpool & L. & G. Ins. Co. v. Clunie, 23, 25. V. Colgin, 346, 621. V. Creighton, 618. V. Ende, 186, 714. V. Goehring, 653, 655, 657, 667. V. Kearney, 333. V. McNeill, 277. V. Sorsby, 598. V. Van Os, 215, 219, 415. TABLE OF CASES. 837 References are to pages. Livingston v. Maryland Ins. Co., 141. Lobdill V. Laboring Men's Mut. Aid Ass'n, 386, 447. Locke V. North American Ins. Co., 342. Lockhart v. Cooper, 275. Lockwood V. Bishop, 18, 682. V. Middlesex Mut. Assur. Co., 105, 477, 484, 51^, 578. Loeb V. American Cent. Ins. Co., 516, 523, 549, 556, 569. Loeffler v. Modern Woodmen, 124, 759. Loehner v. Home Mut. Ins. Co., 230. Lohnes v. Insurance Co. of North America, 524, 563. London Assurance v. Companhia De Moagens Do Barreiro, 135, 137. London Assur. Corp. v. Thompson, 729. London Life Ins. Co. v. Wright, 48. London & L. Fire Ins. Co. v. Fischer, 416, V. Gerteson, 196. V. Lycoming Fire Ins. Co., 729, 736. V. Storrs, 150, 602, 623, 630. V. Turnbull, 408. Long Creek Bldg. Ass'n v. State Ins. Co., 246, 297. Longueville v. Western Assur. Co., 368. Loomis V. Eagle L. & H. Ins. Co., 288. V. Rockford Ins. Co., 783, Looney v. Looney, 281. Lord V. American Mut. Ace. Ass'n, 379. V. Ball, 288. V. Godard, 533, Lorscher v. Supreme Lodge K. of H., 82, 88, 89, 92, 191, 453, 520. Louck V. Orient Ins. Co., 347. Lounsbury v. Protection Ins. Co., 507, 514. Love V. Clune, 44, 685. Lovejoy v. Augusta Mut. Fire Ins. Co., 782. V. Hartford Fire Ins. Co., 522. Lovelace v. Travelers' Protective Ass'n, 381, 397. v Lovell v. St. Louis Mut. Life Ins. Co., 308, 443, 747, 750, 752, 754, 756. Loventhal v. Home Ins. Co., 400. Lovewell v. Westchester Fire Ins. Co., 364. Lovick V. Providence Life Ass'n, 110. Lowe V. Union Cent. Life Ins. Co., 344, 345. Lowell V. Middlesex Mut. Fire Ins. Co., 226. Lowry v. Insurance Co. of North America, 765. V. Lancashire Ins. Co., 550, 558, 560. Loy V. Home Ins. Co., 404. Lubrano v. Imperial Council 0. U. F., 13, 24. S38 TABLE OF CASES. References are to pages. Lucas V. Liverpool & L. & G. Ins. Co., 365. Luce V. Dorchester Mut. Fire Ins. Co., 69, 419. Lucena v. Craufurd, 3. Lumbermen's Mut. Ins. Co. v. Bell, 148, 517. Lungstrass v. German Ins. Co., 176, 183. Luthe V. Farmers' Mut. Fire Ins. Co., 39, 42, 121. Lutz V. Linthicum, 640. Lycoming County Ins. Co. v. Updegraff, 367, 600. Lycoming Fire Ins. Co. v. Dunmore, 565. V. Jaclison, 276, 327. V. Langley, 133, 225, 230. V. Rubin, 70, 344. V. Schwenk, 375. V. Ward, 192, 206, 294, 296. V. Woodworth, 160. V.Wright, 33. Lycoming Ins. Co. v. Mitchell, 69, 70. Lycoming Mut. Ins. Co. v. Sailer, 359, 775. Lyman v. State Mut. Fire Ins. Co., 406. Lynchburg Fire Ins. Co. v. West, 347. Lyndsay v. Niagara Dist. Mut. Fire Ins. Co., 237. Lynn v. Burgoyne, 86. Lynn Gas & Electric Co. v. Meriden Fire Ins. Co., 357, 359, 370. Lyon V. Railway Passenger Assur. Co., 485. T. Stadacona Ins. Co., 223. V. Travelers' Ins. Co., 296, 709. Lyons v. Providence Wash. Ins. Co., 367. V. Yerex, 682. McAllaster v. Niagara Fire Ins. Co., 439, 661. McAllister v. New England Mut. Life Ins. Co., 300. McArthur v. Home Life Ass'n, 176, 265. McBride v. Republic Fire Ins. Co., 565, 588. McCabe v. Aetna Ins. Co., 45, 51, 52, 60, 105, 107, 159, 223, 242, 312. McCanna v. Citizens' Trust & Surety Co., 32. McCanna & Eraser Co. v. Citizens' T. & S. Co., 180. McCarthy v. Catholic K. & L. of A., 336. v. New England Order of Protection, 289. McCarty v. New York Life Ins. Co., 159, 223. McCarvel v. Phenix Ins. Co., 572, 578, 581, 582. McCauley's Appeal, 683. McClave v. Mutual Reserve Fund Life Ass'n, 90. McCleary v. Orient Ins. Co., 234. 1 TABLE OF CASES. Referonces are to pages. 839 McCluer v. Girard F. & M. Ins. Co., 368. McClure v. Mississippi Valley Ins. Co., 256. McCollum V. Hartford Fire Ins. Co., 457, V. Liverpool, L. & G. Ins. Co., 263. V. North British & Mercantile Ins. Co., 563. McConnell v. Provident Sav. Life Assur. Soc, 309. McCormick v. Orient Ins. Co., 146. V. Springfield F. & M. Ins. Co., 717. McCoy V. Metropolitan Life Ins. Co., 211, 230. V. Northwestern Mut. Relief Ass'n, 44, 144. McCracken v. Hayward, 116. McCulloch V. Norwood, 332. McCullouch V. Eagle Ins. Co., 65. McCullough V. Expressman's Mut. Ben. Ass'n, 386. V. Phoenix Ins. Co., 524, 633, 635, 641, 667. McCully's Adm'r v. Phoenix Mut. Life Ins. Co., 79, 86, 95. McCutcheon v. Rivers, 309. McCutcheon's Appeal, 693. McDermott v. Centennial Mut. Life Ass'n, 682. V. Lycoming Fire Ins. Co., 484. McDonald v. Jackson, 429. V. Metropolitan Life Ins. Co., 222. V. Royal Ins. Co., 157. McDonnell v. Alabama G. L. Ins. Co., 307. McElroy v. British American Assur. Co., 168, 206, 714. V. Continental Ins. Co., 426. V. John Hancock Mut. Life Ins. Co., 466, 470, 477, 569. McElwee v. New York Life Ins. Co., 684. McEvers v. Lawrence, 481, 484. McEwen v. Montgomery County Mut. Ins. Co., 182. McFarland v. Peabody Ins. Co., 428. V. Railway O. & B. Ace. Ass'n, 424, 427. V. United States Mut. Ace. Ass'n, 477, 484, 485, 487, 490, 495. McFetridge v. Phoenix Ins. Co., 399. McGannon v. Michigan Millers' Mut. Fire Ins. Co., 333. McGinley v. United States Life Ins. Co., 392. McGlinchey v. Fidelity & Casualty Co., 381. McGlother v. Providence Mut. Ace. Co., 387, 388. McGowan v. People's Mut. Fire Ins. Co., 783. v. Supreme Court, I. O. of F., 322, 345. McGraw v. Germania Fire Ins. Co., 514, 539. McGregor v. Insurance Co. of Pennsylvania, 140. McGuire v: Hartford Fire Ins. Co., 242, 524. S-iiO TABLE OF CASES. References are to pages. McGurk V. Metropolitan Life Ins. Co., 183, 214, 219, 337, 716. Mclntyre v. Michigan State Ins. Co., 238. Mack V. Lancashire Ins. Co., 435, 533. McKean v. Biddle, 124, 728, 747, 751, 756, 758. McKee v. Susquehanna Mut. Fire Ins. Co., 429, 539, 543, 544, 678. McKenty v. Universal Life Ins. Co., 8. McKenzie v. Scottish U. & N. Ins. Co., 333. McKim V. Phoenix Ins. Co., 69. McKinley v. Bankers' Ace. Ins. Co., 386. McKinney, In re, 284, 697. McKinnon v. Vollmar, 151. McLanahan v. Universal Ins. Co., 779. McLaughlin v. Washington County Mut. Ins. Co., 450. McLean v. Hess, 281, 692, 695. McMahon v. Travelers' Ins. Co., 296. McManus v. Western Assur. Co., 513, 668. McMaster v. Insurance Co. of North America, 528. V. New York Life Ins. Co., 158, 303, 309. McNally v. Phoenix Ins. Co., 405, 466, 487, 495, 502, 507, 511, 512, 688. McNamara v. Dakota P. & M. Ins. Co., 136. McNees v. Southern Ins. Co., 615, 625, 627, 665. McNeil V. Southern T. M. Relief Ass'n, 124. McNeilly v. Continental Life Ins. Co., 259. McPike V. Western Assur. Co., 489. McQueeny v. Phoenix Ins. Co., 782, 783. Mc Williams v. Cascade F. & M. Ins. Co., 332. Macy V. Whaling Ins. Co., 141. Maddox v. Dwelling House Ins. Co., 461, 526. Maher v. Hibernia Ins. Co., 146, 294, 529, 533, 534. Mahr v. Bartlett, 687, 689. Maier v. Fidelity Mut. Ins. Ass'n, 211, 230. Maine Guarantee Co. v. Cox, 33. Maisel v. Fire Ass'n of Philadelphia, 362, Malicki v. Chicago Guaranty Fund Life Soc, 345, 393. Malleable Iron Works v. Phoenix Ins. Co., 169. Mallette v. British American Assur. Co., 105, 107, Mallory v. Ohio Farmers' Ins. Co., 299, 317. T. Travelers' Ins. Co., 777. Mallough V. Barber, 268. Manchester v. Guardian Assur. Co., 60, 232. Manchester Fire Assur. Co. v. Abrams, 330. V. Feibelman, 357, 360, 364, 446. Manchester Fire Ins. Co. v. Herriott, 24. TABLE OF CASES. 841 References are to pages. Manchester Fire Ins. Co., v. Simmons, 665. Manchester & L. Life Assur. & Loan Ass'n, In re, 743, 752. Mandego v. Centennial Mut. Life Ass'n, 306, 431. Mandell v. Fidelity & Casualty Co., 437, 458, 464, 486, 487. Manhattan Fire Ins. Co. v. Weill Ullman, 183. Manhattan Ins. Co. v. Stein, 520. V. Webster, 148, 279. Manhattan Life Ins. Co. v. Carder, 347. V. Le Pert, 311. V. Warwick, 259. Mann v. Western Assur. Co., 514. Manning v. Ancient Order of U. W., 690. Manson v. Grand Lodge A. O. U. W., 109, 141, 144, 313. Manufacturers' Ace. Ind. Co. v. Dorgan, 341, 379, 397, 398. Manufacturers' F. & M. Ins. Co. v. Western Assur. Co., 725, 730, 735. Manufacturers' & B. Fire Ins. Co. v. Mullen, 642, 650. Manufacturers' & Merchants' Mut. Ins. Co. v. Gent, 209. V. Zeitinger, 343, 526. March v. Metropolitan Life Ins. Co., 344, 345, 349. Marcus v. St. Louis Mut. Life Ins. Co., 190. Marden v. Hotel Owners' Ins. Co., 138. Maril v. Connecticut Fire Ins. Co., 415. Marine Ins. Co. v. St. Louis, I. M. & S. Ry. Co., 38. Mark v. National Fire Ins. Co., 619. Markey v. Mutual Ben. Life Ins. Co., 54, 89, 96, 155, 160, 193. Marks v. Hope Mut. Life Ins. Co., 63. Marsden v. City & County Assur, Co., 565. Marsh v. Supreme Council, A. L. of H., 690. Marston v. Kennebec Mut. Life Ins. Co., Ill, 172, 212, 773. Marten v. Mutual Fire Ins. Co., 125. Marthinson v. North British & M. Ins. Co., 519, 586. Martin v. Capital Ins. Co., 414, 419. V. Equitable Ace. Ass'n, 378. V. Manufacturers' Ace. Ind. Co., 136, 452, 491, 550. V. State Ins. Co., 335. V. Stubbings, 285. Martine v. International Life Assur. Soc, 164, 258, 260. Marts V. Cumberland Mut. Fire Ins. Co., 403, 404. Mi.rtz V. Detroit F. & M. Ins. Co., 522. Marvin v. Universal Life Ins. Co., 236, 238, 243. V. Wilber, 177. Marx V. Travelers' Ins. Co., 397. Maryland Fire Ins. Co. v. Gusdorf, 162, 239, 367. 842 TABLE OP^ CASES. References are to pages. Maryland Home Fire Ins. Co. v. Kimmell, 438, 762. Mascott V. Granite State Fire Ins. Co., 136. Mason v, Cronk, 443, 724, 727, 747, 751, 755. V. Franklin Fire Ins. Co., 141. V. Joseph, 256, 267, V. Skurray, 360. Massachusetts Ben. Life Ass'n v. Robinson, 211, 300, 303, 314, 343. V. Sibley, 781. Massachusetts Life Ins. Co. v. Eshelman, 214. Massasoit Steam Mills Co. v. Western Assur. Co., 75. Masters v. Madison County Mut. Ins. Co., 334. Masterson v. Howard, 20. Mathers v. Union Mut. Ace. Ass'n, 46, 51, 52, 76, 158, 173. Mathews v. Howard Ins. Co., 376. V. St. Louis & S. F. Ry. Co., 701. Matlack v. Mutual Life Ins. Co., 308, 690. Matt V. Roman Catholic Mut. Protective Soc, 44. Matthes v. Imperial Ace. Ass'n, 398. Matthews v. American Cent. Ins. Co., 131, 135, 142, 298, 427, 450, 452, 464, 469, 516. V. American Ins. Co., 305. Mattoon Mfg. Co. v. Oshkosh Mut. Fire Ins. Co., 15, 75, 76. Mauger v. Holyoke Mut. Fire Ins. Co., 131. Mawhinney v. Southern Ins. Co., 367. Maxcy v. New Hampshire Fire Ins. Co., 678, 765. May V. Western Assur. Co., 167, 170. Mayher v. Manhattan Life Ins. Co., 685. Maynard v. Locomotive Engineers' Mut. L. & A. Ins. Ass'n, 144, 379. Meacham v. New York State Mut. Ben. Ass'n, 338, 778. Mead v. Northwestern Ins. Co., 118. V. Stirling, 126. V. Westchester Fire Ins. Co., 146, 149. Meadows v. Pacific Mut. Life Ins. Co., 390. Mechanics' Ins. Co. v. Hodge, 628, 632. V. Thompson, 334. Mechanics' Sav. Bank & Trust Co. v. Guarantee Co., 13. Mechanics' & Traders' Ins. Co. v. Floyd, 332, 416. V. Mutual Real Estate & Building Ass'n, 245. Mecke v. Life Ins. Co., 114. Medearis v. Anchor Mut. Fire Ins. Co., 98. Medina v. Builders' Mut. Fire Ins. Co., 362. Mehlin v. Mutual Reserve Fund Life Ass'n, 196. TABLE OF CASES. 843 References are to pages. Mengel v. Northwestern Mut. Life Ins. Co., 338. Menk v. Home Ins. Co., 220, 360. Menneiley v. Employers' Liability Assur. Corp., 388. Mercantile Ins. Co. v. Holthaus, 574. Mercantile Mut. Ins. Co. v. Folsom, 99. V. Hope Ins. Co., 165, 727. Merchants' Bank v. State Bank, 177. Merchants' Ins. Co. v. Gibhs, 503, 506, 507, 511, 569. V. New Mexico Lumber Co., 156, 161, 216. V. Prince, 141. V. Reichman, 576. V. Story, 704. V. Union Ins. Co., 89, 94, 169, 722. ^ Merchants' Mut. Ins. Co. v. Lyman, 53, 56, 134. V. New Orleans Mut. Ins. Co., 721, 737, 739, 740.' Merchants' & Mechanics' Ins. Co. v. Linchey, 138. V. Schroeder, 329. V. Vining, 523, 587. Merchants' & Miners Transp. Co. v. Borland, 693, 695. Merchants' & Tradesman's Assur. Soc, In re, 747, 751. Merrett v. Farmers' Ins. Co., 281. Merrill v. Agricultural Ins. Co., 330. V. Insurance Co. of North America, 533. Merritt v. Merritt, 639. Merserau v. Phoenix Mut. Life Ins. Co., 209, 236, 238. Messelback v. Norman, 161, 211. Mesterman v. Home Mut. Ins. Co., 170. Metropolitan Ace. Ass'n v. Clifton, 212. V. Froiland, 388. Metropolitan Life Ins. Co. v. McNall, 22. V. O'Brien, 690. V. McTague, 341. V. McTeague, 109. Meyer v. Fidelity & Casualty Co., 383, 385. V. Insurance Co. of North America, 457, 499, 542, 606. V. Manhattan Life Ins. Co., 308. Meyers v. Woodmen of the World, 341. Meyerson v. Hartford Fire Ins. Co., 635. Michael v. Mutual Ins. Co., 260. Michel V. American Cent. Ins. Co., 642, 647. Michigan F. & M. Ins. Co. v. Wich, 254. Michigan Mut. Ben. Ass'n v. Rolfe, 683. Michigan Mut. Life Ins. Co. v. Reed, 150, 350, 351. 844: TABLE 0¥ CASES. References are to pages. Michigan Pipe Co. v. Michigan F. & M. Ins. Co., 46, 53, 76, 78, 98, 168, 170, 360. V. North British & M. Ins. Co., 78. Michigan Shingle Co. v. London & L. Fire Ins. Co., 334, 335. V. Pennsylvania Fire Ins. Co., 158. V. State, Inv. & Ins. Co., 158, 334, 352, 714. Milburn Wagon Co. v. Evans, 278. Milkman v. United Mut. Ins. Co., 305. Miller v. Alliance Ins. Co., 347. V. American Mut. Ace. Ins. Co., 40, 397. v. Brooklyn Life Ins. Co., 244. V. Eagle L. & H. Ins. Co., 288. V. Hartford Fire Ins. Co., 409, 471, 479, 491, 493, 496, 499, 542, 714. V. Hillsborough Mut. Fire Assur. Ass'n, 209. V. Insurance Co., 131. V. Mutual Ben. Life Ins. Co., 186, 358, 779. V. Travelers' Ins. Co., 393. V. Union Cent. Life Ins. Co., 293, 298. Miller's Case, 753. Mills V. Farmers' Ins. Co., 276, 364. Millville Mut. F. & M. Ins. Co. v. Collerd, 90. Millville Mut. M. & F. Ins. Co. v. Mechanics' & W. B. & L. Ass'n, 182, 186. Milne v. Northwestern Life Assur. Co., 444. Milner v. Bowman, 687. Milwaukee Mechanics' Ins. Co. v. Brown, 159, 517. V. Graham, 16, 47, 78. V. Winfield, 523, 586, 587, 590. Milwaukee & St. P. Ry. Co. v. Kellogg, 378. Miner v. Phoenix Ins. Co., 169. Minneapolis, St. Paul & S. S. M. Ry. Co. v. Home Ins. Co., 355, 522, 561. Minneapolis Threshing Machine Co. v. Darnall, 62. V. Firemen's Ins. Co., 368. Minnesota Farmers' Mut. Fire Ass'n v. Olson, 302, Minnesota Title Ins. & T. Co. v. Drexel, 7. Minnock v. Eureka F. & M. Ins. Co., 408, 525. Miotke V. Milwaukee Mechanics' Ins. Co., 114, 281, 343. Misselhorn v. Mutual Reserve Fund Life Ass'n, 80, 90, 100, 191. Mississippi Mut. Ins. Co. v. Ingram, 130, 433. Mississippi Valley Ins. Co. v. Neyland. 250. Missouri, K. & T. Ry. Co. v. Union Ins. Co., 362. Missouri, K. & T. Trust Co. v. German Nat. Bank, 111, 328, 343. TABLE OF CASES. 845 References are to pages. Missouri, K. & T. Trust Co. v. McLachlan, 13. Missouri Valley Life Ins. Co. v. Dunklee, 317. • V. Kelso, 689. V. McCrum, 284, 687. Mitchell V. Home Ins. Co., 280, 779, V. Lycoming Mut. Ins. Co., 209, 714. V. Minnesota Fire Ass'n, 567. V. Orient Ins. Co., 596. V. St. Paul German Fire Ins. Co., 435, 436. V. Union Life Ins. Co., 85, 286, 288. Mitchell Furniture Co. v. Imperial Fire Ins. Co., 132, 365. Mobile Life Ins. Co. v. Pruett, 150. 315. V. Walker, 110. Moeller v. America Fire Ins. Co., 146, 149. Moge V. Societe De Bienfaisance St. Jean Baptiste, 386. Mohr & Mohr Distilling Co. v. O'hio Ins. Co., 162, 197. Monaghan v. Agricultural Fire Ins. Co., 19, 518, 533. Monitor Mut. Fire Ins. Co. v. Buffum, 236. Monitor Mut. Ins. Co. v. Young, 197. Monmouth County Mut. Fire Ins. Co. v. Hutchinson, 702. Monroe v. British & F. M. Ins. Co., 256, 261, 262. Monroe B. & L. Ass'n v. Liverpool & L. & G. Ins. Co., 131. Monteleone v. Royal Ins. Co., 139. Montgomery v. Firemen's Ins. Co., 134. Montross v. Roger Williams Ins. Co., 258, 259. Moody V. Amazon Ins. Co., 411, 414, 769. Mooney v. Howard Ins. Co., 774. Moore v. Barnett, 639. V. Hanover Fire Ins. Co., 429, 518, 519, 579. V. Phoenix Fire Ins. Co., 412, 420, 421, 770. V. Protection Ins. Co., 539, 543, 600. V. Virginia F. & M. Ins. Co., 350, 533. More V. N. Y. Bowery F. Ins. Co., 52, 80, 158, 178, 548 Morgan v. Sun Ins. Office, 579. Morgan & Co. v. White, 37. Morley v. Liverpool & L. & G. Ins. Co., 668. Morotock Ins. Co. v. Cheek, 582. V. Rodefer, 331. Morrell v. Irving Fire Ins. Co., 439. V. Trenton Mut. L. & F. Ins. Co., 288. Morrill & Co. v. New England Fire Ins. Co., 423. Morris v. Dodd, 697. v. Farmers' Mut. Fire Ins. Co., 125. S46 TABLE OF CASES. References are to pages. Morris v. German-American Ins. Co., 638. V. Penn Mut Life Ins. Co., 138. V. State Mut. Life Assur. Co., 394. Morrison v. Insurance Co. of North America, 65, 90, 239, 241, 431. V. North America Ins. Co., 66, 89. V. Wisconsin Odd Fellows' Mut. L. Ins. Co., 44, 121, 122, 341. Morrison's Adm'r v. Tennessee M. & P. Ins. Co., 674. Morse v. St. Paul F. & M. Ins. Co., 52, 77, 79, 157, 177, 265. Moseley v. Vermont Mut. Fire Ins. Co., 343, 536. Mosness v. German American Ins. ^o., 609, 615, 625, 640, 652, 653, 654, 767, 770, 771. Mose V. City of St. Paul, 25. Mosser v. Knights Templars' & M, Life Ind. Co., 318. Mott V. Citizens' Ins. Co., 332. Moulor V. American Life Ins. Co., 325, 716. Moulthrop V. Farmers' Mut. Fire Ins. Co., 403. Mound City Mut. Life Ins. Co. v. Huth, 180, 265. Mount V. Waite, 357. Mt. Leonard Milling Co. v. Liverpool & L, & G. Ins. Co., 332. Mowry v. Agricultural Ins. Co., 410. V. Home Life Ins. Co., 393. V. Rosendale, 267. Moyer v. Sun Ins. Office, 506, 624. Mueller v. Grand Grove U. A. O. D., 315. V. South Side Fire Ins. Co., 585. Muhleman v. National Ins. Co., 188. Mullaney v. National F. & M. Ins. Co., 118, 327. Mullen V. Reed, 137, 682. Mullin v. Vermont Mut. Fire Ins. Co., 214, 352, 533, 534, 536. Mullins V. Thompson, 693. Mulville V. Adams, 403. Murdock v. Chenango County Mut. Ins. Co., 336. V. Franklin Ins. Co., 424. Murdy v. Skyles, 380. Murphy v. American Cent. Ins. Co., 446. v. North British & M. Ins. Co., 551. V. Northern British & M. Co., 594, 625, 671. Murray v. Home Ben. Life Ass'n, 315. V. New York Life Ins. Co., 390. Mutual Ace. Ass'n v. Tuggle, 388. Mutual Aid & Instruction Soc. v. Monti, 122, 510. • Mutual Assur. Soc. v. Korn, 121. Mutual Ben. Co.'s Petition, In re, 777. TABLE OF CASES. 847 References are to pap;ps. Mutual Ben. Life Ins. Co. v. Daviess' Ex'r, 777. V. Hillyard, 311. V. Robison. 321. Mutual Fire Ins. Co. v. Alvord, 614, 639, 659. V. Coatesville Shoe Factory, 420. V. Rupp, 610, 632. Mutual Ins. Co. v. Tweed, 369. Mutual Life Ins. Co. v. Allen, 8, 138, 285, 308, 688. V. Arhelger, 340. V. Dingley, 140, 150. V. Gorman, 160. V. Hill, 137, 139, 151, 306, 308. V. Hillmon, 775, 777. V. Newton, 775, 777. V. Phinney, 151, 159, 308, 781. V. Sandfelder, 692. V. Sears, 151, 308. V. Simpson, 341, 385. V. Stibbe, 393, 766. V. Terry, 395. V. Thompson, 92. V. Wager, 444. V. Young's Adm'r, 16, 82, 83, 88, 96, 100, 191, 348. Mutual Mill Ins. Co. v. Gordon, 112, 446. Mutual Reserve Fund Life Ass'n v. Beatty, 287. V. Farmer, 95, 99, 347. V. Tolbert, 427. Myers v. Council Bluffs Ins. Co., 519, 579. V. Keystone Mut. Life Ins. Co., 83, 84, 86, 96. V. Liverpool & L. & G. Ins. Co., 53, 60, 76, 88, 90, 98. Nail V. Provident Sav. Life Assur. Soc, 306. Nassauer v. Susquehanna Mut. Fire Ins. Co., 69, 192, 206, Nassl V. Metropolitan Life Ins. Co., 352. National Ace. Soc. v. Taylor, 574. National Bank v. Hartford Fire Ins. Co., 347. V. Matthews, 29. v. Union Ins. Co., 430. National Bank of D. 0. Mills & Co. v. Union Ins. Co., 678. National Ben. Ass'n v. Bowman, 379, 389, 767. V. Grauman, 378, 385. V. Jackson, 296, 397. National Filtering Oil Co. .v. Citizens' Ins. Co., 275, 279, 436. National Fire Ins. Co. v. Orr. 398. 848 TABLE OF CASES. References are to pa^es. National Home, B. & L. Ass'n v. Dwelling House Ins. Co., 626. National Life Ass'n v. Sturtevant, 529. National Life Ins. Co. v. Minch, 265. National Masonic Ace. Ass'n v. Day, 576. National Mut. Aid Soc. v. Lupoid, 298. National Mut. Ben. Ass'n v. Jones, 315. National Mut. Ins. Co. v. Home Ben. Soc, 312, 731, 746. National Union v. Marlow, 32. Nave V. Home Mut. Ins. Co., 363, 371. Nease v. Aetna Ins. Co., 688. Nebraska & I. Ins. Co. v. S6gard, 444. V. Seivers, 56, 61, 456, 459. Nederland Life Ins. Co. v. Hall, 759. Negus, In re, 684. Nelson v. Atlanta Home Ins. Co., 625. Neskern v. Northwestern E. & L. Ass'n, 763. Neuendorff v. World Mut. Life Ins. Co., 165. Neville v. Merchants' & M. Mut. Ins. Co., 63. New V. German Ins. Co., 686. Newark Fire Ins. Co. v. Sammons, 196, 208. Newark Machine Co. v. Kenton Ins. Co., 16, 45, 55, 60, 88, 92, 182. New England F. & M. Ins. Co. v. Robinson, 48, 456. v. Schettler, 232. Newhall v. Union Mut. Fire Ins. Co., 778. New Hampshire Mut. Fire Ins. Co. v. Noyes, 19. Newman v. Covenant Mut. Ins. Ass'n, 761, 764. V. Home Ins. Co., 149. V. Springfield F. & M. Ins. Co., 176, 347, 514. Newmark v. Liverpool & L. F. & L. Ins. Co., 180, 374, New Orleans Ins. Ass'n v. Griffin, 409. v. Holberg, 401, 403. V. Matthews, 599. New Orleans Ins. Co. v. Gordon, 404. Newton v. Mutual Ben. Life Ins. Co., 778. New York Bowery Fire Ins. Co. v. New York Fire Ins. Co., 721, 724, 733, 735, 747. New York Cent. Ins. Co. v. National Protection Ins. Co., 245, 483. v. Watson, 108, 159. New York Life Ins. Co. v. Babcock, 76, 79, 88, 90, 92. V.Baker, 347, 353, 716. v. Clemmitt, 442. v. Clopton, 20, 470. v. Davis, 258, 392. TABLE OF CASES. 819 References are to pages. New York Life Ins. Co. v. Eggleston, 591. V. Fletcher, 158, 161, 207, 211, 221, 226, 230, 309, 351. V. Ireland, 681. V. McGowan, 160, 223, 317. V. McMaster's Adm'r, 113, 114, 149. V. Rohrbough, 252. - V.Russell, 140, 172. V. Statham, 11, 20, 258, 311, 314. New York L. & W. W. Co. v. People's Fire Ins. Co., 98. New York Mut. Ins. Co. v. Johnson, 80. New York Mut. Life Ins. Co. v. Armstrong, 5, 283, 350, 391, 685. New York & B. D. Express Co. v. Traders' & M. Ins. Co., 373. New Zealand Ins. Co. v. Maaz, 301. Niagara Fire Ins. Co. v. Bishop, 610, 635, 637, 641, 656, 667. V. Brown, 231. V. DeGraff, 355. V. Elliott, 367, 368, V. Fidelity T. & T. Co., 700, 702. V. Forehand, 542. V. Heenan & Co., 440. V. Scammon, 404, 409, 440, 450, 455, 472, 487. Niagara Ins. Co. v. Lee, 167, 202. Niblo V. North American Fire Ins. Co., 436. Nichols, Appeal of, 675. V. Fayette Mut. Fire Ins. Co., 329. V. Rensselaer County Mut. Ins. Co.. 650. Nickell V. Phcenix Ins. Co., 563. 650. Nickerson v. Nickerson, 518, 519. Nightingale v. State Mut. Life Ins. Co., 422. Nixon V. Queen Ins. Co., 492, 500. Noble V. Mitchell, 23, 167, 171, 173, 174, 474. Noone v. Transatlantic Fire Ins. Co, 505, 509, 514. Nordyke & M. Co. v. Gery, 299. Norman v. Insurance Co. of North America, 186. North America Fire Ins. Co. v. Throop, 364, 367, 773. North American Life Ins. Co. v. Wilson, 18. North American L. & A. Ins. Co. v. Burroughs, 5, 381. Northampton Mut. L. S. Ins. Co. v. Tuttle, 94, 138. North British & Mercantile Ins. Co. v. Crutchfield, 167, 192, 206, 523, 524. North Carolina State Life Ins. Co. v. Williams, 258 Northern Assur. Co. v. Hamilton, 162. V. Samuels, 185, 666, 667. KERR, INS.— 54 850 TABLE OF CASES. References are to pages. Northern R. Co. v. Miller, 124. North Pennsylvania Fire Ins. Co. v. Susquehanna Mut. Fire Ins. Co., 484, 735, 740, 741. * Northrup v. Germania Fire Ins. Co., 166. V. Piza, 169, 202, 336. V. Railway Passenger Assur. Co., 393. Northwestern Ins. Co. v. Atkins, 451, 491, 521. Northwestern Life Ins. Co. v. Muskegon Bank, 392. Northwestern Masonic Aid Ass'n v. Jones, 338, 682, 683, 685, 693, 694. Northwestern Mut. Life Ins. Co. v. Amerman, 337, 707. V. Elliott, 351, 444. V. Hazelett, 135, 293. V. Heimann, 341, 385. V. Rochester German Ins. Co. 445. V. Stevens, 777, 780, 781. V.Woods, 328. Northwestern Nat. Ins. Co. v. Mize, 236, 243. Norton v. Phoenix Mut. Life Ins. Co., 86. V. Rensselaer & S. Ins. Co., 491, 499, 542. Norwich Fire Ins. Co. v. Boomer, 276. Norwich & N. Y. Transp. Co. v. Western Massachusetts Ins. Co., 565. Norwood, Ex parte, 738. Y. Guerdon, 107. V. Resolute Fire Ins. Co., 738. Noyes v. Northwestern Nat. Ins. Co., 368. V. Phoenix Mut. Life Ins. Co., 79, 86. Nugent v. Supervisors of Putnam County, 742. Ni*mey v. Fireman's Fund Ins. Co., 620, 627, 628, 665. Nussbaum v. Northern Ins. Co., 277, 401. Nutting v. Minnesota Fire Ins. Co., 96. Oakes v. Manufacturers' F. & M. Ins. Co., 219, 402. Oakland Home Ins. Co. v. Davis, 481. Obersteller v. Commercial Assur. Co., 535. O'Brien v. Commercial Fire Ins. Co., 469, 499, 542. v. Home Ins. Co., 344, 345. v. Ohio Ins. Co., 524, 541, 561, 599. v. Phoenix Ins. Co., 477, 518. O'Conner v. Hartford Fire Ins. Co., 493, 517. Odd Fellows Mut. Life Ins. Co. v. Rohkopp, 392. O'Donnell v. Connecticut Fire Ins. Co., 762, 771, 774. O'Farrell v. Metropolitan Life Ins. Co., 212, 221. Ogden T. East River Ins. Co.. 440. i TABLE OF CASES. , 851 References are to pages. Oglesby v. Attrill, 745. Ohage V. Union & Miner Ins. Co., 446. Ohio V. Moore, 36. Ohio Farmers' Ins. Co. v. Stowman, 303. O'Keefe v. Liverpool, L. & G. Ins. Co., 446, 621. Old Saucelito L. & D. Dock Co. v. Commercial Union Assur. Co., 617. O'Leary v. German American Ins. Co., 241, 562. V. Merchants' & Bankers' Mut. Ins. Co., 240, 243. Olmstead v. Farmers' Mutual Fire Ins. Co., 190, V. Keyes, 285. Olney v. German Ins. Co., 402. Olsen V. California Ins. Co., 729, 736. Olson V. Brady, 14. V. St. Paul F. & M. Ins. Co., 417, 418. Omaha Fire Ins. Co. v. Crighton, 346. V. Dierks, 460, 515, 671. V. Dufek, 148. V. Hildebrand, 594. Omaha Nat. Bank v. Mutual Ben. Life Ins. Co., 309. Omberg v. United States Mut. Ace. Ass'n, 381. 383. O'Neil V. American Fire Ins. Co., 70, 71, 143, 432, 712. V. Buffalo Fire Ins. Co., 321. V. Pleasant Prairie Mut. Fire Ins. Co., 40, 130. O'Neill V. Massachusetts Benefit Ass'n, 504. Order of Chosen Friends v. Austerlitz, 607. Ordway v. Chace, 704. Oregon & W. Mortg. Sav. Bank Co. v. American Mortg. Co., 258. O'Reilly v. Corporation of London Assur. Co., 107, 159, 238. V. Guardian Mut. Life Ins. Co., 297, 455, 491, 493, 555, V. London Assur. Corp., 60. Orient Ins. Co. v. Daggs, 23, 70, 72. Orient Mut. Ins. Co. v. Wright, 291, Ormond v. Fidelity Life Ass'n, 95, 347. Orr V. Citizens' Fire Ins. Co., 405, 688. V. Travelers' Ins. Co., 390. Oshkosh Gaslight Co. v. Germania Fire Ins. Co., 66, 116, 621. Oshkosh Match Works v. Manchester Fire Assur. Co., 234, 243, 541, 557, 558, 601, 603. Oshkosh Packing & Provision Co. v. Mercantile Ins. Co., 446, 533, 535, 536, 538. Otterbein v. Iowa State Ins. Co., 80, 187. Overbeck v. Overbeck, 681. Overby v. Fayetteville B. & L. Ass'n, 299. 852 TABLE OF CASES. References are to pages, Overby v. Thrasher, 653. Overton v. St. Louis Mut. Life Ins. Co., 389. Owens V. Holland Purchase Ins. Co., 327. Pace V. Pace, 697. Pacific Mut. Ins. Co. v. Frank, 180. Pacific Mut. Life Ins. Co. v. Williams, 680. Packard v. Connecticut Mut. Life Ins. Co., 716. V. Dorchester Mut. Fire Ins. Co., 231, 266. Page V. Sun Ins. Office, 440, 441. Pain V. Societe St. Jean Baptiste, 122, 124, 127. Painter v. Industrial Life Ass'n, 182. Palatine Ins. Co. v. Weiss, 446. Palmer v. Hartford Fire Ins. Co., 146, 147. V. St. Paul F. & M. Ins. Co., 488. V. AVelch, 685. Palmer Sav. Bank v. Insurance Co. of North America, 765. Paltrovitch v. Phoenix Ins. Co., 133, 450, 468, 506, 509, 513, 574, 577. Parcell v. Grosser, 404. Parker v. Amazon Ins. Co., 536. V. Bridgeport Ins. Co., 333. V. Des Moines Life Ass'n, 395. V. Eagle Fire Ins. Co., 439. V. Lamb, 23, 24, 173. Parker & Young Mfg. Co. v. Exchange Fire Ins. Co., 168. Parks V. Anchor Mut. Fire Ins. Co., 455, 493, 496, 497. Parmelee v. Hoffman Fire Ins. Co., 528. Parrish v. Virginia F. & M. Ins. Co., 436. Parsons v. Citizens' Ins. Co., 536. V. Queen Ins. Co., 51. Partridge v. Milwaukee Mechanics' Ins. Co., 515, 556, 569. Patch V. Phoenix Mut. Life Ins. Co., 118. Patrick v. Farmers' Ins. Co., 587. Patridge v. Commercial Fire Ins. Co., 206, 219. Patten v. Farmers' Mut. Fire Ins. Co., 322. V. Merchants' & Farmers' Mut. Fire Ins. Co., 773. Patterson v. Benjamin Franklin Ins. Co., 51. V. National Premium Mut. Life Ins. Co., 395. V. Royal Ins. Co., 63. Paul V. Travelers' Ins. Co., 132. 381, 385, 387, 388. V. Virginia, 22, 25, 171, 173. Peabody v. Fraternal Ace. Ass'n, 569, 605. Peacock v. New York Life Ins. Co., 106, 107. TABLE OF CASES. 853 References are to pages. Pearce v. Madison & I. R. Co., 742. Pearman v. Gould, 404, 704. Peek's Ex'r v. Peek's Ex'r, 685. Peele v. Provident Fund Soc, 381, 450, 452, 458, 460, 466, 477, 481, 487, 515. Peet V. Dakota F. & M. Ins. Co., 500. Pelican Ins. Co. v. Schwartz, 536. V. Troy Co-operative Ass'n, 374. V. Wilkerson, 332, 542, 544. Pelzer Mfg. Co. v. Sun Fire Office, 441. Pence v. Makepeace, 692, 693, 695. Pencil V. Home Ins. Co., 440. Pendleton v. Elliott, 299, 704. V. Knickerbocker Life Ins. Co., 295. Peninsular Land T. & M. Co. v. Franklin Ins. Co., 546. Pennell v. Lamar Ins. Co., 565. Pennington v. Pacific Mut. Life Ins. Co., 385, 524. Penn Mut. Life Ins. Co. v. Mechanics' Sav. Bank & Trust Co., 12, 323, 345. V. Wiler, 325, 349. Penn Plate Glass Co. v. Spring Garden Ins. Co., 610, 632, 634, 668. Pennsylvania Fire Ins. Co. v. Dougherty, 457. V. Moore, 26. Pennypacker v. Capital Ins. Co., 28, 137, 482, 526. People V. Dimick, 100, 166, 348. V. Empire Mut. Life Ins. Co., 443, 724, 746, 747, 751, 752, 754-756, 758. V. Fidelity & Casualty Co., 6, 23, 36. V. Gilbert, 37, 171, 173, 262. V. Howard, 173. V. Life & Reserve Ass'n, 757. V. Liverpool, L. & G. Ins. Co., 18. V. Mut. Life Ins. Co., 750. v. People's Ins. Exchange, 38, 174, 202. V.Phelps, 693. v. Philadelphia Fire Ass'n, 36. V. Pullman's Palace Car Co., 745. v. Rose, 6, 13. V. Security Life Insurance & Annuity Co., 443. V. Stale Ins. Co., 25. V. Van Cleave, 23, 25. People's Ace. Ass'n v. Smith, 485. People's Bank v. Aetna Ins. Co., 510, 590. \ 85i: TABLE OF CASES. References are to pages. People's Fire Ins. Co. v. Pulver, 500. People's Ins. Co. v. Paddon, 76. V. Spencer, 356. People's Mut. Ben. Soc. v. Templeton, 284. Peoria M. & F. Ins. Co. v. Anapow, 276. V. Hall, 415. V. Lewis, 365, 437, 770. V. Walser, 86, V. Whitehill, 508. V. Wilson, 441. Peoria Sugar Refining Co. v. Canada F. & M. Ins. Co., 425. V. People's Fire Ins. Co., 407. Peppit V. North British & M. Ins. Co., 483. Perkins v. Washington Ins. Co., 176, 179, 271. Perry v. Dwelling-House Ins. Co., 552, 597. V. Lorillard Fire Ins. Co., 405, 688. V. Mechanics' Mut. Ins. Co., 213, 281, 37& V. Provident Life Ins. & Inv. Co., 101. Peterson v. Mississippi Valley Ins. Co., 367, 368. Pettengill v. Hinks, 659. Phenix Ins. Co. v. Allen, 366, 762, 766, 771, 774. V. Belt Ry. Co., 427, 428. V. Bowdre, 557, 558, 561. V. Clay, 355, 782. V. Covey, 241. V. First Nat. Bank, 704. V. Gebhart, 148. V. Golden, 221, 230. , | y. Holcombe, 401, 421. ^ V. Lamar, 408. ' i\ y. La Pointe, 714. V. Munger, 182, 565. V. Omaha Loan & Trust Co., 678. V. Pennsylvania R. Co., 28, 701, V. Pickel, 481, 766, 768, 769. v. Rad Bila Hora Lodge, 493. - V. Searles, 214, 219, 562, 591, 599. 600, 603, 629. v. Tomlinson, 317, 715. V.Willis, 692, 761. Philadelphia Fire Ass'n v. New York, 35, 36. Philadelphia Ins. Co. v. Washington Ins. Co., 721, Philadelphia Life Ins. Co. v. American Life & Health Ins. Co., 67, 102, 729, 730. TABLE OF CASES. 855 References are t« pages. Philadelphia Tool Co. v. British American Assur. Co., 280. Phillips V. Protection Ins. Co., 371, 482. V. United States Benev. Soc, 452, 458, 469. Phinney v. Mutual Life Ins. Co., 317. Phoenix Assur. Co. v. Coffman, 333. V. McArthur, 89, 93. Phcenix Fire Ins. Co. v. Hoffheimer, 147. Phoenix Ins. Co. v. Allen, 773. V. Anchor Ins. Co., 726. V. Asbury, 404. V. Badger, 628, 665. V. Copeland, 242, 408. V. Erie & W. Transportation Co., 277, 700, 703, 721, 725. V. Favorite, 363. V. Flemming, 215, 710. V. Frissell, 268, 269. V. Hamilton, 279. V. Hancock, 675. V. Levy, 499, 543, 572, 596. V. McLoon, 70. V. Meier, 93. V. Mills, 376, V. Minner, 590, 591. V. Moog, 532. V. Moore, 621, 641, 643. V. Omaha Loan & Trust Co., 119. V. Padgitt, 534. V. Perry, 515, 565. V.Pratt, 268, 269. V. Public Parks Amusement Co., 241, 398. V. Ryland, 57. V. Searles, 587. V. Spiere, 53. V. Stark, 202. V. Stewart, 360. V. Stocks, 351. V. Swann, 410, 536. T. Taylor, 136, 576. V. Tomlinson, 108. V. Tucker, 412. V.Ward, 254. V. Warttemberg, 158, 220-222, 230, 351. V. Welch, 36. 856 TABLE OF CASES. References are to pages. Phoenix Ins. Co. v. Wilcox & G. Guano Co., 119. V.Willis, 521. Phoenix Life Ins. Co. v. Raddin, 321, 329. Phoenix Mut. Life Ins. Co. v. Bailey, 8. V. Baker, 443. V. Hinesley, 186, 317. Pickel V. Phenix Ins. Co., 410, 481, 784. Pickett V. German Fire Ins. Co., 79. V. Pacific Mut. Life Ins. Co., 383, 387, 388. Piedmont & A. Life Ins. Co. v. Ewing, 16, 88, 97, 100, 348, 350, 353. V. Lester, 317. V.Ray, 294. V. Young, 136. Pierce v. Charter Oak Life Ins. Co., 118, 295, 697. V. People, 38, 167, 174. Pindart v. Kings County Fire Ins. Co., 364. Pingrey v. National Life Ins. Co., 690. Pinkham v. Morang & M. Mut. Fire Ins. Co., 345. Pinneo v. Goodspeed, 695. Pioneer Mfg. Co. v. Phoenix Assur. Co., 625, 628, 630, 670. Pitney v. Glen's Falls Ins. Co., 182, 183. Pitt V. Berkshire Life Ins. Co., 300, 301. Pittsburgh, C. & St. L. Ry. Co. v. Keokuk & H. Bridge Co., 39. Pittsburgh Storage Co. v. Scottish U. & N. Ins. Co., 277, 674. Planters' Ins. Co. v. Myers, 206, 208, 347. V. Rowland, 238. Planters' Mut. Ins. Co. v. Deford, 131. V. Engle, 363. V. Rowland, 148, 184, 186, 276, 418. Planters' & Merchants' Ins. Co. v. Thurston, 281. Piatt V. Aetna Ins. Co., 439, 661, 711, 717. V.Richmond Y. R.-& C. R. Co., 700, 703, 782. Polish Roman Catholic Union v. Warczak, 121. Pollock V. United States Mut. Ace. Ass'n, 388. Pomeroy v. Manhattan Life Ins. Co., 137. Pool V. Milwaukee Mechanics' Ins. Co., 711. Porter v. Mutual Life Ins. Co., 93, 94. V. United States Life Ins. Co., 237. Portsmouth Ins. Co. v. Reynolds' Adm'r, 375. Poss V. Western Assur. Co., 420. Post V. Aetna Ins. Co., 44, 182, 183. V. Beacon V. P. & E. Co., 751. V. Hampshire Mut. Fire Ins. Co., 70, 674. TABLE OF CASES. 857 References are to pages. Potter V. Monmouth Mut. Fire Ins. Co., 351. V. Phenix Ins. Co., 55, 67. Pottsville Mut. Fire Ins. Co. v. Fromm, 219. V. Minnequa Springs Imp. Co., 238, 245. Poughkeepsie Sav. Bank v. Manhattan Fire Ins. Co., 222. Powell V. Factors' & Traders' Ins. Co., 714. Power V. Ocean Ins. Co., 276. Powers V. Guardian F. & L. Ins. Co., 403. V. New England Fire Ins. Co., 166,. 189, 557. V. Northwestern Mut. Life Ass'n, 341. Powers Dry Goods Co. v. Imperial Fire Ins. Co., 543, 641, G43, 658, 667, 671. Prader v. National Masonic Ace. Ass'n, 358, 389, 610. Prall V. Mutual Life Protection Assur. Soc, 86, 91. Pratt V. Burdon, 174. V. New York Cent. Ins. Co., 579, 583. Pray v. Life Indemnity & Security Co., 606. Preferred Ace. Ins. Co. v. Stone, 57, 81, 762. Preferred Masonic Mut. Life Ins. Co. v. Giddings, 41. Prendergast v. Dwelling House Ins. Co., 220, 450, 514. Prentice v. Knickerbocker Life Ins. Co., 309, 570, 716. Presbyterian Mut. Assur. Fund v. Allen, 328, 339. Pretzfelder v. Merchants' Ins. Co., 601, 602, 647. Prevost V. Scottish U. & N. Ins. Co., 470. Price V. St. Louis Mut. Life Ins. Co., 37, 721, 747, 751. Prince v. City of St. Paul, 25. Proppe V. Metropolitan Life Ins. Co., 531. Protection Ins. Co. v. Pherson, 502, 508. Protection Life Ins. Co. v. Foote, 191. V. Palmer, 104. Providence County Bank v. Benson, 277. Providence Life Assur. Soc. v. Reutlinger, 340. Providence Wash. Ins. Co. v. Board of Education of Morganstown School District, 445. Providence & W. R. Co. v. Yonkers Fire Ins. Co., 361. Provident Fund Soc. v. Howell, 428. Provident Life Ins. & Inv. Co. v. Baum, 283, 482, 489, 490. Provident Sav. Life Assur. Soc. v. Hadley, 138. Prudential Assur. Co. v. Aetna Life Ins. Co., 734. Prudential Ins. Co. v. Cummins' Adm'r, 213. v. Humm, 284. v. Jenkins, 284. V. Liersch, 687. Prudhomme v. Salamander Fire Ins. Co., 344. 858 TABLE OF CASES. References are to pages. Pudritzky v. Supreme Lodge, K. of H., 341, 385. Pullis V. Robison, 693. Pullman v. North Brilish Mercantile Ins. Co., 633. Pullman's Palace Car Co. v. Central Transportation Co., 42. Putnam v. Commonwealth Ins. Co., 535. V. Home Ins. Co., 44, 46, 60, 63. Pythian Life Ass'n v. Preston, 249, 300. Quandt v. Grand Lodge, I. G. 0., 336. Quarrier v. Peahody Ins. Co., 440. Queen Ins. Co. v. Leslie, 66, 143, 344, 621, 713. V. May, 220. V. Young, 234, 262, 660. Quigley v. St. Paul Title Insurance & Trust Co., 352. Quinlan v. Providence W. Ins. Co., 72, 133, 134, 150, 155, 224, 233, 236, 240, 243, 244, 488, 557, 560, 712. Quinn v. Metropolitan Life Ins. Co., 212, 221. V. Supreme Council, C. K., 691. • Rademacher v. Greenwich Ins. Co., 585, 602, 657, 668. Radiker v. Queen Ins. Co., 241. Rafel V. Nashville M. & F. Ins. Co., 364, 365, 530. Rahr v. Manchester Fire Assur. Co., 156, 177, 199. Railway Officials' & Employees' Ace. Ass'n v. Drummond, 381. Railway Passenger Assur. Co. v. Burwell, 385, 488. Railway P. & F. C. Mut. Aid & Ben. Ass'n v. Robinson, 120. Rainsbarger v. Union Mut. Aid Ass'n, 763. Rainsford v. Royal Ins. Co., 423. Ralli v. White, 523. Ramsey v. Philadelphia Underwriters' Ass'n, 261. Ramspeck v. Patillo, 62, 165. Rand v. Massachusetts Ben. Life Ass'n, 732, 746. Randall v. American Fire Ins. Co., 610. V. Tuell, 28, 32, 180. Randolph v. Barrett, 761. Rankin v. Amazon Ins. Co., 333. Rann v. Home Ins. Co., 407. Ranspach v. Teutonia Fire Ins. Co., 710. Raub V. New York Life Ins. Co., 294. Rawls V. American Life Ins. Co.," 286, 680. V. American Mut. Life Ins. Co., 286, 349. Rawson v. Jones, 693. Raymond v. Farmers' Mut. Fire Ins. Co., 505, 609, 612, 616, 633, 639, 654. TAI3LE OF CASES. 859 References are to pages. Read v. State Ins. Co., 424, 615, 617, 633, 634, 638, 641, 643, 645, 666, 667, 669. Reavis v. Farmers' Mut. Fire Ins. Co., 361. Redfield v. Holland Purchase Ins. Co., 280. Redford v. Mutual Fire Ins. Co., 189. Reditcer v. Queen Ins. Co., 232. Redman y. Aetna Ins. Co., 353. V. Hartford Fire Ins. Co., 347. Redmond v. Industrial Ben. Ass'n, 511, 531. Redpath v. Sun Mut. Ins. Co., 39. Redstrake v. Cumberland Mut. Fire Ins. Co., 241, 242. Reed y. Equitable F. & M. Ins. Co., 407-409. V. Provident Sav. Life Assur. Soc, 286. V. Washington F. & M. Ins. Co., 609, 618. V.Williamsburg City Fire Ins. Co., 281. Reese v. Smyth, 750, 753, 756, 757. Reichard v. Manhattan Life Ins. Co., 760. Reid V. Lancaster Fire Ins. Co., 774. V. McCrum, 677. Reilly v. Chicago Guaranty Fund Life Soc, 314. Reithmueller v. Philadelphia Fire Ass'n, 345. Relfe y. Columbia Life Ins. Co., 747, 750, 752, 756. V. Commercial Ins. Co., 37. V. Rundle, 39. Reliance Mut. Ins. Co. v. Sawyer, 32. Relief Fire Ins. Co. v. Shaw, 46, 48, 50. Remelee v. Hall, 639, 654. Remington Paper Co. v. London Assur. Corp., 629, 636, 652, 655. Renier v. Dwelling-House Ins. Co., 562. Rensenhouse v. Seeley, 4. Renshaw v. Fireman's Ins. Co., 357, 369. V. Missouri State Mut. F. & M. Ins. Co., 358, 370. Replogle V. American Ins. Co., 407. Republic Fire Ins. Co. y. Weides, 529, 540, 542, 543. Reserve Mut. Ins. Co. v. Kane, 288. Reynolds v. Atlas Ace. Ins. Co., Ill, 114, 147. 149. 230, 327. V. Continental Ins. Co., 156, 162, 177, 194. V. Iowa & N. Ins. Co., 275, 281, 301. Rheims v. Standard Fire Ins. Co., 452, 459, 474, 527, 569. Rhode Island Nat. Bank v. Chase, 697. ■Richards v. Continental Ins. Co., 263, 718. V. Washington F. & M. Ins. Co., 346. Richardson v. Maine Ins. Co., 230, 782. 860 TABLE OF CASES. Eeferences are to pages. Richardson v. Travelers' Ins. Co., 387. Richardson's Adm'r v. German Ins. Co., 404, 688. Richland Countj^ Mut. Ins. Co. v. Sampson, 276. Richmond v. Niagara Falls Ins. Co., 219. V. Niagara Fire Ins. Co., 214, 241. Ricker v. Charter Oak Life Ins. Co., 682, 690, 695. Rickerson v. Hartford Fire Ins. Co., 772, 774. Riddlesbarger v. Hartford Ins. Co., 450, 458, 760. Ridley v. Bnnis, 677, Rife V. Lebanon Mut. Ins. Co., 418, 714. Riggs V. Commercial Mut. Ins. Co., 275, 278. V. Palmer, 391. Riley v. Hartford Ins. Co., 70. Riner v. Riner, 284. Rines v. German Ins. Co., 455, 471, 475,' 477, 686. Ring V. Phoenix Assur. Co., 343. Ripley v. Railway Passengers' Assur. Co., 393. Rissler v. American Cent. Ins. Co., 111. Ritch V. Masons' Fraternal Ace. Ass'n, 428. Ritter v. Boston Underwriters' Ins. Co., 427, 521, 552. V. Mutual Life Ins. Co., 355, 389, 393, 394, 778. V. Preferred Masonic Mut. Ace. Ass'n, 386. Rittler v. Smith, 286, 680, 687. Rix V. Mutual Ins. Co., 491, 492. Roberts v. Firemen's Ins. Co., 365. V. Germania Fire Ins. Co., 49. V. Northwestern Nat. Ins. Co., 517, 551, 576, 586, 596, 718. V. Sun Mut. Ins. Co., 233. V. Willis & Taylor Ins. Co., 234. V. Winton, 117, 694, Robertson v. New Hampshire Ins. Co., 538. V. United States Credit System Co., 13, Roberts, Willis & Taylor Co. v. Sun Mut. Ins. Co., 220, 232, 236, 263. Robinson v. Continental Ins. Co., 302. V. Fire Ass'n of Philadelphia, 409. V. Hurst, 687. V. International Life Assur. Soc, 258. V. Pacific Fire Ins. Co., 317, V, Pennsylvania Fire Ins. Co., 588, 591, 595. V, Templar Lodge, 612, 630. Roby V. American Cent. Ins. Co., 315, 403, 405, 688, 715. Roche V. Supreme Lodge, K. of H., 340. Rochester Ins. Co. v. Martin, 40. TABLK OF CASES. 861 References are to pages. Rockford Ins. Co. v. Nelson, 330, 713. V. Williams, 263, V. Winfield, 165. Rockhold V. Canton Masonic Mut. Benev. Soc, 292, 746, 749. Rodee v. Detroit F. & M. Ins. Co., 479, 489. Rodey v. Travelers' Ins. Co., 385. Rodgers v. Mutual Endowment Assessment Life Ass'n, 160, Roe V. Dwelling House Ins. Co., 457. Rogers v. Aetna Ins. Co., 424. V. Charter Oak Life Ins. Co., 83. V. Home Ins. Co., 424. V. Mechanics' Ins. Co., 141. V. Phenix Ins. Co., Ill, 202, 326, Roger Williams Ins. Co. v. Carrington, 48. Rohrhach v. Aetna Ins. Co., 230, 537. V. Germania Fire Ins. Co., 206, 275, 279, 346, Rohrschneider v. Knickerbocker Life Ins. Co., 443. Rokes V. Amazon Ins. Co., 522-524, 556, 561. Roller V. Moore's Adm'r, 284, 285. Rombach v. Piedmont & A. Life Ins. Co., 284. Roos V. Merchants' Mut. Ins. Co., 279. Roots V. Cincinnati Ins. Co., 359, Rose V. Kimberly & Clark Co., 34. Rosebud M. & M. Co. v. Western Assur. Co., 336. Rosenberger v. Washington Mut. Fire Ins, Co., 122, 764. Rosenplaenter v. Provident Sav. Life Assur. Soc, 102, 117, 306. Rosenwald v. Phoenix Ins. Co., 621. Rottier v. German Ins. Co., 142. 424. Roumage v. Mechanics' Fire Ins. Co., 460, 482, 490, 493, 503. Rowe V. Rand, 258. Rowland v. Springfield F. & M. Ins. Co., 79. Rowley v. Empire Ins. Co., 169, Royal Canadian Ins. Co. v. Smith, 338. Royal Ins. Co. v, Beatty, 80, 107. V. Clark, 268. V. Home Ins. Co., 729. v. Mclntyre. 447, 621. V. Parlin & 0. Co., 655, 656. V. Roodhouse, 649. V. Stinson, 704. Ruggles V. American Cent. Ins. Co., 155, 158, 162, 184. Rumbold v. Penn Mut. Life Ins. Co., 443. Rumford Falls Paper Co. v. Fidelity & Casualty Co., 6. S62 TABLE OF CASES. References are to pages. Rumsey v. Phoenix Ins. Co., 583. Runkle v. Citizens' Ins. Co., 231, 254, 256. V. Lamar Ins. Co., 760. Ruse V. Mutual Ben. Life Ins. Co., 119, 283. Russell V. Canada Life Assur. Co., 340. V. Cedar Rapids Ins. Co., 410, 418. V. De Grand, 309. V. Detroit Mut. Fire Ins. Co., 208, 219, 220, 408, 435. V, Fidelity Fire Ins. Co., 496. V. North American Ben. Ass'n^609, 648. Rustin V. Standard Life & Ace. Ins. Co., 380, 398. Ruth V. Katterman, 284. Ruthven v. American Fire Ins. Co., 240, 256, 263, 558, 561, 565, 568. Ryan v. Rothweiler, 684. V. Springfield F. & M. Ins. Co., 343. V. World Mut. Life Ins. Co., 230, 249. Rynalski v. Insurance Co. of Pennsylvania, 473. Sadlers' Co. v. Badcock, 275. Sagers v. Hawkeye Ins. Co., 540, 543. St. 'Clair County Benev. Soc. v. Fietsam, 131. St. Clara Female Academy v. Delaware Ins. Co., 149. St. John V. American Mut. Life Ins. Co., 285. St. Louis Ins. Co. v. Kyle, 475, 482. St. Louis Mut. Life Ins. Co. v. Kennedy, 76. St. Nicholas Ins. Co. v. Merchants' Mut. F. & M. Ins. Co., 134, 729, 735, 740. St. Onge V. Westchester Fire Ins. Co., 717. St. Paul F. & M. Ins. Co. v. Coleman, 302. V. Gotthelf, 551, 596, 650. V. Johnson, 439. V. Kelly, 277. V. Parsons, 156. V. Shaver, 149, 171, 172. V. Upton, 299. St. Paul German Ins. Co., In re, 427. Salisbury v. Brisbane, 258. V. Hekla Fire Ins. Co., 55, 115. Sampson v. Bagley, 10. V. Grogan, 436. V. Security Ins. Co., 367. Sanborn v. Black, 691. V. Fireman's Ins. Co., 46-48. TABLE OF CASES. 8G3 References are to pages. Sanches v. Davenport, 271. Sanders v. Cooper, 71^, 762, 772-774. Sandford v. Orient Ins. Co., 60. V. Trust Fire Ins. Co., 53, 84. San Diego, O. T. & P. B. R. Co. v. Pacific Beach Co., 727. Sands v. New York Life Ins. Co., 258. Sanford v. Mechanics' Mut. Fire Ins. Co., 18. V. Orient Ins. Co., 46, 158, 456, 589. Sargent v. National Fire Ins. Co., 60. V. Supreme Lodge, K. of H., 124. Sarsfield v. Metropolitan Ins. Co., 335. Sater v. Henry County Farmers' Ins. Co., 4.7, 105. • Savage v. Howard Ins. Co., 675. Saville v. Aetna Ins. Co., 408. Sawtelle v. Railway Passenger Assur. Co., 398. Sawyer v. Dodge County Mut. Ins. Co., 68, 275, 368. Scammell v. China Mut. Ins. Co., 63. Scammon v. Germania Ins. Co., 450, 458, 460, 489. Scania Ins. Co. v. Johnson, 649, 677. Schaffer v. Mutual Fire Ins. Co., 76, 95. Scheiderer v. Travelers' Ins. Co., 397, 522, 523. Schenck v. Mercer Co. Mut. Fire Ins. Co., 487, 779. Scheufler v. Grand Lodge, A. O. U. W., 779. Schlamp v. Berner's Adm'r, 687. Schlater v. Winpenny, 258. Schlutz V. Boyd, 764. Schmid v. Virginia F. & M. Ins. Co., 149. Schmidt v. City & Village Fire Ins. Co., 530. V. Mutual C. & V. Fire Ins. Co., 344. V. Northern Life Ass'n, 392, 685. V. Peoria M. & F. Ins. Co., 325. Schmitt V. National Life Ass'n, 529. Schmurr v. State Ins. Co., 317, 579. Schneider v. Provident Life Ins. Co., 381. Schoep V. Bankers' Alliance Ins. Co., 203. Scholefield v. Eichelberger, 20. Schollenberger, Ex parte, 760. Schomer v. Hekla Fire Ins. Co., 232. Schoneman v. Western Horse & Cattle Ins. Co., 293. Schonfield v. Turner, 283, 685. Schoolcraft's Adm'r v. Louisville & N. R. Co., 23, 26. School Dist. No. 4 v. State Ins. Co., 69, 70. Schouweiler v. Merchants' Mut. Ins. Ass'n, 633, 664, 665. 8G4 TABLE OF CASES. References are to pages. Schreiber v. German-American Hail Ins. Co., 134, 179, 188, 291, 302, 309, 313, 628, 633, 715. Schreiner v. High Court, C. O. of F., 685. Schrepfer v. Rockford Ins. Co., 616, 624, 626, 627, 663, 668, 768, 770. Schrick v. St. Louis Mut. House Bldg. Co., 124. Scliroeder v. Springfield F. & M. Ins. Co., 220. V. Trade Ins. Co., 101, 135. Schulter v. Merchants' Mut. Ins. Co., 535. Schultz V. Citizens' Mut. Life Ins. Co., 682. V. Hawkeye Ins. Co., 118. V. Mutual Life Ins. Co., 393. V. Phenix Ins. Co., 84. Schunck v. Gegenseitiger Wittwen & Waisen Fond, 206. Schuster v. Dutchess County Ins. Co., 529. Schwartz v. Germania Life Ins. Co., 83, 90, 92, 93, 294. Scott V. Dickson, 289. V. German Ins. Co., 219. V. Home Ins. Co., 105, 179, 296. V. Phoenix Assur. Co., 618. Scottish U. & N. Ins. Co. v. Clancy, 553, 591, 599, 602, 604, 662, 672. V. Keene, 470, 497, 541. V. Petty, 399. V. Stubbs, 333. Scripture v. Lowell Mut. Fire Ins. Co., 358, 370, 372. Scurry v. Cotton States Life Ins. Co., 63. Seal V. Farmers' & Merchants' Ins. Co., 349. Seamap v. Enterprise F. & M. Ins. Co., 278. Seamans v. Christian Bros. Mill Co., 28, 32, 180. V. Knapp-Stout & Co. Company, 28, 34, 137-139, 173, 200. V. Temple Co., 34, 139, V. Zimmerman, 34. Searle v. Dwelling--House Ins. Co., 263, 558, 562, 586. Seavey v. Central Mut. Fire Ins. Co., 364. Security F. Ins. Co. v. Kentucky M. & F. Ins. Co., 48. Security Ins. Co. v. Ft.y, 86, 108. V. Mette, 196. Seibel v. Northwestern Mut. Relief Ass'n, 317, 714. Seiders v. Merchants' Life Ass'n, 139. Seller v. Economic Life Ass'n, 394. Selby V. Mutual Life Ins. Co., 317. Semmes v. Hartford Ins. Co., 428. Sergent v. Liverpool & L. & G. Ins. Co., 135. ^ V. London & L. & G. Ins. Co., 460, TABLE OF CASES. 865 References are to pages. Seward v. City of Rochester, 618. Sexton V. Hawkeye Ins. Co., 412. Seyk V. Millers' Nat. Ins. Co., 139, 446, 538, 621. Seymour v. Chicago Guaranty Fund Life Soc, 44, 732, 746. Shackett v. People's Mut. Ben. Soc, 428. Shaffer v. Milwaukee Mechanics' Ins. Co., 216, 710. V. Spangler, 692. Shakman v. United States Credit System Co., 6, 13. Shannon v. Gore District Mut. Fire Ins. Co., 230. V. Hastings Mut. Ins. Co., 505. Shapiro v. Western Home Ins. Co., 459, 460, 563. Sharland v. Washington Life Ins. Co., 775. Shattuck V. Mutual Life Ins. Co., 89, 138. Shaw V. Aetna Ins. Co., 268, 278. V. Republic Life Ins. Co., 63, 312, 591, 731, 752. V. Scottish Commercial Ins. Co., 534. Shawmut Sugar Refining Co. v. People's Mut. Fire Ins. Co., 492, 500. Shea V. Massachusetts Ben. Ass'n, 685. Sheanon v. Pacific Mut. Life Ins. Co., 379, 453, 517. Shearman v. Niagara Fire Ins. Co., 401. Sheehan v. Southern Ins. Co., 554, 578. Sheerer v. Manhattan Life Ins. Co., 308. Shelden v. National Masonic Ace. Ass'n, 312. Sheldon v. Atlantic F. & M. Ins. Co., 83. V. Connecticut Mut. Life Ins. Co., 89, 92, 121, 245, 250, 294. V. Hartford Fire Ins. Co., 334. V. Hekla Fire Ins. Co., 83. V. National Masonic Ace. Ass'n, 306. Shellenberger v. Ransom, 391. Sheppard v. Peabody Ins. Co., 108. Sherman v. Com., 24, 339. V. Madison Mut. Ins. Co., 440, Sherwood v. Agricultural Ins. Co., 101, 484. Shevlin v. American Mut. Ace. Ass'n, 398. Shields v. Equitable Life Assur. Soc, 96, 295. Shimp V. Cedar Rapids Ins. Co., 555. Shoemaker v. Glens Falls Ins. Co., 322. Shoenfeld v. Fleisher, 271. Shugart v. Lycoming Fire Ins. Co., 238. Sibley v. Prescott Ins. Co., 278, 437. V. St. Paul F. & M. Ins. Co., 535. Side V. Knickerbocker Life Ins. Co., 289. Siebel v. Northwestern Mut. Relief Ass'n, 345. KERR, INS.— 55. S66 TABLE OF CASES. References are to pages. Sierra M., S. & M. Co. v. Hartford Fire Ins. Co., 334. Sieverts v. National Benev. Ass'n, 110, 122, 124, 313, 347. Sillem V. Thornton, 335. Silver v. "Western Assur. Co., 665. Silverberg v. Phenix Ins. Co., 232. Silverman v. Empire Life Ins. Co., 339. Simcoke v. Grand Lodge, A. O. U. W., 287, 690. Simeral v. Dubuque Mut. Fire Ins. Co., 9. Simmons v. West Virginia Ins. Co., 514. Simms v. State Ins. Co., 365. Simons v. Iowa State T. M. Ass'n, 466, 492, 496, 498, 501. V. New York Life Ins. Co., 224, 230. Simonton v. Liverpool, L. & G. Ins. Co., 49. Sims v. Mutual Fire Ins. Co., 701, 702. Singleton v. Prudential Ins. Co., 230. V. St. Louis Mut. Ins. Co., 284. Sisk V. Citizens' Ins. Co., 373, 376. Skillern v. Continental Ins. Co., 301. Slater v. Capital Ins. Co., 178, 567. Sleeper v. N. H. F. Ins. Co., 412, 530, 536. Slobodisky v. Phenix Ins. Co., 7, 146, 244, 294, 710. Smaldone v. Insurance Co. of North America, 561. Small V. Jose, 681. Smith V. Agricultural Ins. Co., 335, 783. V. Binder, 271. V. Boston & Maine R. R. Ass'n, 691. V. Cash Mut. Fire Ins. Co., 226. V. Columbia Ins. Co., 277. V. Commonwealth Ins. Co., 219, 492, 500. V. Continental Ins. Co., 715. V. Covenant Mut. Ben. Ass'n, 684, 763. V. Empire Ins. Co., 326. v. Exchange Fire Ins. Co., 536. r. Farmers' & Mechanics' Mut. Fire Ins. Co., 221, 231. V. German Ins. Co., 241. V. Glens Falls Ins. Co., 760. V. Haverhill Mut. Fire Ins. Co., 453, 459, 520, 548, 554, 592. V. Home Ins. Co., 167, 508, 509, 567, 570, 579. V. Hunterdon County Mut. Fire Ins. Co., 746, 751, 757, 758. V. International Life Assur. Co., 37. V. Mutual Life Ins. Co., 138. V. National Ben. Soc, 687. T. National Credit Ins. Co., 6, 104, 451, 552. TABLE OF CASES. 867 References are to pages. Smith V. National Life Ins. Co., 56, 308, 311. V. Niagara Fire Ins. Co., 214, 240, 524, 561, 563, 566. V. Phoenix Ins. Co., 404. V. Preferred Mut. Ace. Ass'n, 394, 397. V.Price, 271. V. Queen Ins. Co., 536. V. St. Louis Mut. Life Ins. Co., 119, 721, 747, 751, 754, 756. V. St. Paul F. & M. Ins. Co., 317. V. State Ins. Co., 115, 548, 593. Sneed v. British America Assur. Co.. 543. Snell V. Atlantic F. & M. Ins. Co., 146. V. Delaware Ins. Co., 68. Snow V. Carr, 365. V. Mercantile Mut. Ins. Co., 348. Snowden v. Kittanning Ins. Co., 602. Snowdon v. Guion, 68-70. Snyder v. Dwelling House Ins. Co., 416, 561. Soars V. Home Ins. Co., 631. Soli V. Farmers' Mut. Ins. Co., 359, 361, 368. Solomon v. Continental Fire Ins. Co., 485. Somers v. Kansas Protective Union, 82. Somerset Co. Mut. Fire Ins. Co. v. Usaw, 776. Sonneborn v. Manufacturers' Ins. Co., 411. Southard v. Railway Passengers' Assur. Co., 5, 382, 384. Southern Home B. & L. Ass'n v. Home Ins. Co., 459, 465, 519. Southern Ins. Co. v. Hastings, 213. V. White, 334. > Southern Insurance & T. Co. v. Lewis, 280. Southern Life Ins. Co. v. Booker, 182, 184, 193, 244, 249. V. Kempton, 93, 317. V. McCain, 162, 202, 259, 265, 266. Southern Mut. Ins. Co. v. Turnley, 428, 602. Southern Mut. Life Ins. Co. v. Montague, 119. Southwick V. Atlantic F. & M. Ins. Co., 401. Sovereign Camp, W. of W. v. Rothschild, 191, 209, 313. Sowden v. Standard Ins. Co., 207. Spare v. Home Mut. Ins. Co., 150, 279, 425, 688, 716. Sparks v. Knight Templars' & M. Life Ind. Co., 338. Spaulding v. Vermont Mut. Fire Ins. Co., 515, 517. Speer v. Phoenix Mut. Life Ins. Co., 442. Spensley v. Lancashire Ins. Co., 372. Speery v. Springfield F. & M. Ins. Co., 65. Spies v. Greenwich Ins. Co., 333. 8G8 TABLE OF CASES. References are to pages. Spitz V. Mutual Ben. Life Ass'n, 176, 511. Sprague v. Holland Purchase Ins. Co., 206. Spratley v. Hartford Ins. Co., 364. Spratt V. New Orleans Ins. Ass'n, 332. Springfield F. & M. Ins. Co. v. Brown, 479, 482, 484. V. Cannon, 357. V. Davis, 232, 259, 561. V. Payne, 623, 635, 640, 649, 650, 656. V. Winn, 534. Sproul V. Western Assur. Co., 47, 588, 589. Spruill V. North Carolina Mut. Life Ins. Co., 393. Spry V. Williams, 681. Spurr V. Home Ins. Co., 146, 148, 149. Squier v. Hanover Fire Ins. Co., 105, 245. Stache v. St. Paul F. & M. Ins. Co., 444. Stadler v. Trever, 62, 271. Stambaugh v. Blake, 284. Stambler v. Order of Pente, 574. Stamm v. Northwestern Mut. Ben. Ass'n, 746, 758. Stamps V. Commercial Fire Ins. Co., 440. Standard Fire Ins. Co. v. Wren, 434, 766. Standard Ins. Co. v. Langston, 397. Standard Life & Ace. Ins. Co. v. Davis, 549, 556, 569. v. Fraser, 158. V. Koen, 576, 588. , V. Schmaltz, 383. V. Taylor, 773. V. Thornton, 428, 588. V. Ward, 386. Standard Oil Co. v. Amazon Ins. Co., 346. V. Triumph Ins. Co., 201. Stark County Mut. Ins. Co. v. Hurd, 238. Startling v. Supreme Council, R. T. of T., 122. Star Union Lumber Co. v. Finney, 537. State V. Ackerman, 23, 36. v. Bankers' & Merchants' Mut. Ben. Ass'n, 143. V. Beazley, 38. v. Board of Insurance Comm'rs, 23. V. Brawner, 24. V. Citizens' Ben. Ass'n, 24. V. Farmer, 173. v. Farmers' & M. Mut. Ben. Ass'n, 12, 24. V. Federal Inv. Co., 4-6, 14. TABLE OF CASES. 869 References are to pages. State V. Fidelity & Casualty Ins. Co., 25, 26, 36. V. Fireman's Fund Ins. Co., 23, 35. V. Fricke, 511. V. Hancock, 745. V. Hogan, 6, 12. V. Insurance Co. of North America, 36, V. Iowa Mut. Aid Ass'n, 24. V. Johnson, 23, 25, 167, 173, 174, 201. V. Lancashire Fire Ins. Co., 23, 35. V. Manufacturers' Mut. Fire Ass'n, 41, 44, V. Mathews, 25. V. Miller, 24. V. Monitor Fire Ass'n, 43, 724, 747, 748, 755. V. Moore, 23, 24. V. Mutual Protective Ass'n, 24, V. National Ace. Soc. of N. Y., 24. V. National Ass'n, 24. V. New England Mut. Ins. Co., 25. V. Nichols, 24, 339. V. Northwestern Mut. L. Stock Ass'n, 24. V. Phipps, 23. V. Reimund, 36. V. Scougal, 26. V. Stone, 23, 26, 173. V. Tomlinson, 695. V. Towle, 351. V. United States Mut. Ace. Ass'n, 88. V. Vigilant Ins. Co., 12, 24. V. Western Union Mut. Life Ins. Co., 36. V. Williams, 38. State Ins. Co. v. Belford, 767. V. Hughes, 131. V. Jordan, 335. V. Maackens, 135, 136, 490, 515, 517-519, 538, 582. V. Meesman, 426. V. Richmond, 270. V. Taylor, 418, 429, 433. State Mut. Fire Ins. Ass'n v. Brinkley Stave & Heading Co., 34, 37, 84, 137, 139. State Mut. Fire Ins. Co. v. Arthur, 322. Stebbins v. Globe Ins. Co., 327. V. Lancashire Ins. Co., 90, 94, 100, 166. Steel V. Phoenix Ins. Co., 67, 426. 870 TABLE OF CASES. References are to pages. Steele, In re, 697. V. German Ins. Co., 215, 254, 473. Steen v. Niagara Fire Ins. Co., 158, 185, 425, 558. Steers v. Home Ins. Co., 415. Stehlich V. Milwaukee Mechanics' Ins. Co., 55. Steinbach v. Relief Fire Ins. Co., 148, 363, 416, 419. Stelick V. Milwaukee Mechanics' Ins. Co., 158. Stemmer v. Scottish U. & N. Ins. Co., 636, 640, 652, 654. Stensgaard v. National Fire Ins. Co., 413. V. St. Paul Real Estate Tile Ins. Co., 7, 344. Stephens v. Illinois Mut. Fire Ins. Co., 276. V. Railway OflBcials' & Employes' Ace. Ass'n, 385. V. Union Assur. Soc, 669. Stephenson v. Bankers' Life Ass'n, 492, 514, 767, 771. V. Piscataqua F. & M. Ins. Co., 610. V. Stephenson, 691. Sterling v. Mercantile Mut. Ins. Co., 770. Sternberg v. Levy, 694. Sternfield v. Park Fire Ins. Co., 535. Stetson V. Massachusetts Mut. Fire Ins. Co., 407. Stevens v. Citizens' Ins. Co., 427. V. Warren, 687. Stevenson v. Phoenix Ins. Co., 408. Stevers v. People's Mut. Ace. Ins. Ass'n, 379. Steward v. Phoenix Fire Ins. Co., 118, 433. Stewart v. Helvetia S. F. Ins. Co., 60. V. Union Mut. Life Ins. Co., 249, 299. Stigler's Ex'r v. Stigler, 682, 695. Stock V. Inglis, 436. Stockton V, Firemen's Ins. Co., 77, 82, 203. Stockton Combined H. & A. Works v. Glens Falls Ins. Co., 643, 657, 667. Stohr v. San Francisco M. F. Soc, 124. Stokes V. Amerman, 694. v. Coffey, 695. Stolle V. Aetna F. & M. Ins. Co., 239. Stoltenberg v. Continental Ins. Co., 780. Stone v. Hawkeye Ins. Co., 214, 221, 231, 852, 776. Stone's Adm'rs v. United States Casualty Co., 118, 337. Story V. Williamsburgh Mut. Ben. Ass'n, 681. Stout V. City Fire Ins. Co., 323. Stowe V. Phinney, 682. Straker v. Phenix Ins. Co., 143, 231, 235, 244, 562, 712. TABLE OF CASES. 871 References are to pages. Straub v. Grand Lodge, A. 0. U. W., 777. Strauss v. Imperial Fire Ins. Co., 375. V. Phenix Ins. Co., 220. Straw V. Truesdale, 640. Streeter v. Western Union Miit. L. & A. Soc, 383. Strickland v. Council Bluffs Ins. Co., 203. Strohn v. Hartford Fire Ins. Co., 16, 68, 365. Strome v. London Assur. Corp., 775. Strong V. American Cent. Life Ins. Co., 737. V. Manufacturers' Ins. Co., 275, 342. V. Phoenix Ins. Co., 721. Stupetski V. Transatlantic Fire Ins. Co., 413. Sturm V. Boker, 676. V. Great Western Ins. Co., 69. Sullivan v. Phenix Ins. Co., 167, 208. Sulz V. Mutual Reserve Fund Life Ass'n, 683. Summerfield v. North British & M. Ins. Co., 643, 670, V. Phoenix Assur. Co., 455, 457, 473, 474, 492, 500, 502, 507, 511, 512, 514. Summers v. Commercial Union Assur. Co., 203. V. United States I. A. & T. Co., 288. Sun Fire Office v. Ermentrout, 269. V. Fraser, 770. V. Wich, 69, 70, 156, 164. Sun Ins. Co. v. Jones, 424. Sun Ins. Office v. Merz, 723, 725. V. Varble, 440. Sun Mut. Ins. Co. v. Mattingly, 473. V. Ocean Ins. Co., 729, 733. Supreme Commandery K. of G. R. v. Ainsworth, 123, 124. Supreme Council v. Garrigus, 5. V. Green, 346. Supreme Council, A. L. of H. v. Adams, 124. V. Green, 189. V. Perry, 685. V. Smith, 691. Supreme Council, C, B. L, v. Boyle, 453, 520, 607. Supreme Council, C. K. of A. v. Franke, 690. Supreme Council, L. of H. v. Adams, 127. Supreme Council. 0. C. F. v. Fairman, 24. v. Forsinger, 611, 613. V. Garrigus, 381. 872 TABLE OF CASES. References are to pages. Supreme Council of R. A. v. Brashears, 121. Supreme Council, R. T. of T. v. Curd, 130, 134. Supreme Lodge v. Goldberger, 607. Supreme Lodge, K. H. W. v. Johnson, 779. Supreme Lodge, K. of H. t. Davis, 312. V. Dickison, 341. V. Metcalf, 770. V. Nairn, 691. Supreme Lodge, K. of P. v. Beck, 389. V. Knight, 126. V. Kutscher, 124. 125. V. La Malta, 124, 125. V. Stein, 122, 125. V. Taylor, 347, V. Trebbe, 124, 125. V. Withers, 192, 206. Supreme Lodge Nat. Reserve Ass'n y. Turner, 31$, Supreme Lodge of Protection v. Grace, 76, 81. Supreme Lodge, O. S. F. v. Dey, 612, 614, 619. V. Raymond, 759. Supreme Tent, K. of M. v. Hammers, 127. Survick v. Valley Mut. Life Ass'n, 311, 313. Susquehanna Mut. Fire Ins. Co. v. Cusick, 167. V. Leavy, 120. V. Staats, 598. V. Swank, 149, 203. V. Tunkhannock Toy Co., 526. Sussex County Mut. Iris. Co. v. Woodruff, 276, 704. Sutherland v. Eureka F. & M. Ins. Co., 158, 233-235, 710. V. Pratt, 99. Swain v. Agricultural Ins. Co., 184, 261. V. Security Live-Stock Ins. Co., 458, 464. Swan V. Liverpool L. & G. Ins. Co., 482. V. Watertown Fire Ins. Co., 28, 221. Sweat V. Piscataquis Mut. Ins. Co., 343, 345. Sweet V. Morrison, 655. Sweetser v. Odd Fellows' Mut. Aid Ass'n, 245, 316. Swett V. Citizens' Mut. Relief Soc, 265, 336, 345. Swift V. Railway Passenger & F. C. Mut. Aid & Ben. Ass'n, 298. V. Vermont Mut. Fire Ins. Co., 275. Sydney, The, 134. * Syndicate Ins. Co. v. Bohn, 332, 398, 399, 430, 678. TABLE OF CASES. References are to pages. 873 Taber v. Royal Ins. Co., 427. Talamon v. Home & Citizens' Mut, Ins. Co., 374. Talbot V. Tlpperary Men N., S. & B. Ass'n, 480. Talbott V. Fidelity & Casualty Co., 36. Talcott V. National Credit Ins. Co., 7. Taliaferro v. Travelers' Protective Ass'n, 382. Tanenbaum v. Rosenthal, 15, 259. Tarpey v. Security Trust Co., 339. Tate V. Commercial Bldg. Ass'n, 284. V. Hyslop, 204. Tatum V. State, 393. Tayloe v. Merchants' Fire Ins. Co., 61, 75, 84, 89, 244, 295, 456, 480, 589. Taylor v. Aetna Life Ins. Co., 343, 422, 492, 498, 503. V. Grand Lodge, A. O. U. W., 81. v. Hill, 681. V. Mutual Reserve Fund Life Ass'n, 760. V. Pacific Mut. Life Ins. Co., 767, 771, 781. V. Phoenix Ins. Co., 47, 107, 159. V. State Ins. Co., 75, 232. V. Travellers' Ins. Co., 289. Teague v. Germania Fire Ins. Co., 441. Tebbets v. Mercantile Credit Guarantee Co., 7, 13. Teerpenning v. Corn Exchange Ins. Co., 779. Temperance Mut. Ben. Ass'n v. Home Friendly Soc, 724, 728, 757. Temple v. Niagara Fire Ins. Co., 543. Tennant v. Travellers' Ins. Co., 89, 90, 93, 245, 312, 384. Teutonia Fire Ins. Co. v. Mund, 131. Teutonia Ins. Co. v. Beard, 371. Texas Banking & Insurance Co. v. Hutchins, 216. v. Stone, 325. Texas Mut. Life Ins. Co. v. Davidge, 295. Thayer v. Middlesex Mut. Fire Ins. Co., 84. V. Providence W. Ins. Co., 345. v. Standard L. & A. Ins. Co., 385. Theobald v. Railway Passengers' Assur. Co., 393. v. Supreme Lodge, K. of P., 338. Theunen v. Iowa Mut. Ben. Ass'n, 764. Thibeault v. St. Jean Baptist Ass'n, 103. Thibert v. Supreme Lodge, K. of H., 125, 128. Thierolf v. Universal Fire Ins. Co., 549, 550. Thomas v. Burlington Ins. Co., 539. v. Cummiskey, 365. V. Hartford Fire Ins. Co., 329. 874 TABLE OF CASES. References are to pages. Thompson v. American Tontine L, & S. Ins. Co., 693. V, Blanchard, 650. V. Cundiff, 693. V. Knickerbocker Life Ins. Co., 56, 306, 310, 311, 317, 707, V. Phoenix Ins, Co., 66, 67, 150, 223, 278, 401, 405, 428, 431, 54&, 688, 715. V. St. Louis Ins, Co., 621. Thorne v. Aetna Ins. Co., 409. Thurston v. Burnett & B, D, F, Mut. Fire Ins. Co., 130, 135, 417, 419, V. Union Ins. Co., 360. Thwing V. Great Western Ins, Co., 297. Tiefenthal v. Citizens' Mut. Fire Ins. Co., 535. Tilton V. Hamilton Fire Ins. Co., 374. V. United States Life Ins. Co., 653. Timberlake v. Beardsley, 187, 727. Titus V. Glens Falls Ins. Co., 536, 540, 590, 716. Tobin V. Western Mut. Aid Soc, 763, 764, 779. Todd V. Germania Fire Ins. Co., 766. V. Piedmont & A, Life Ins. Co., 76. Toledo Tie & Lumber Co. v. Thomas, 29. Tompkins v. Levy, 694. Tood V. Piedmont & A. Life Ins. Co., 203. Tooker v. Security Trust Co., 212. Torrop v. Imperial Fire Ins. Co., 203. Town V. Springfield F. & M. Ins. Co., 530. Towne v. Fire Ass'n of Philadelphia, 368. ' V. Fitchburg Mut. Fire Ins. Co., o28. V. Springfield F. & M. Ins. Co., 473, 497, 500, 536. Traband v. Connecticut Mut. Life Ins. Co., 350. Trabandt v. Connecticut Mut. Life Ins. Co., 150. Trabue v. Dwelling House Ins. Co., 402, 405, 688. Trade Ins. Co. v. Barracliff, 300, 368, 675. Traders' Ins. Co. v. Cassell, 215. V, Newman, 281. V. Pacaud, 440, V, Race, 413, 704. V.Robert, 276. Traders' & Travellers' Ace. Co. v. Wlagley, 337. Traill v. Baring, 733. Train v. Holland Purchase Ins. Co., 78, 162, 178. Trans-Atlantic Fire Ins. Co. v. Dorsey, 370. Trask v. State F. & M. Ins. Co., 481, 484, 488, 525, 548, 585, 592, 594, Travelers' Ins. Co. v. California Ins. Co,, 423, 425. V. Dunlap, 388. TABLE OF CASES. 875 References are to pages. Travelers' Ins. Co. v. Edwards, 183, 493, 515, 522, 523, 556, 562. V, Harvey, 182, 184. V. Henderson, 149. V. Jones, 397. V. McConkey, 382, 390, 395, 396, 432, 778, 781. V. Melick, 377, 528, 529. V. Murray, 377. V. Randolph, 394. V. Seaver, 378, 389. V. Sheppard, 489. V. Snowden, 394. Travis v. Peabody Ins. Co., 76, 149. Trenton Mut. L. & F. Ins. Co. v. Johnson, 288. Trenton Passenger Ry. Co. v. Guarantors' Liability Ind. Co., 6, 13. Trimble v. New York Life Ins. Co.. 306. Trinity College v. Travellers' Ins. Co., 284. Triple Link Mut. Ind. Ass'n v. Williams, 337. Tripp V. Northwestern Live-Stock Ins. Co., 164, 188, 382. v. Provident Fund Soc, 450, 452, 454, 458, 459, 466, 477, 481, 549, 569, 707. Tritschler v. Keystone Mut. Ben. Ass'n, 395. Trott V. Chicago, R. I. & P. Ry. Co., 775. V. Woolwich Mut. Fire Ins. Co., 717. Troy Fire Ins. Co. v. Carpenter, 453. Trull V. Roxbury Mut. Fire Ins. Co., 441. Trundle v. Providence Wash. Ins. Co., 567. Trustees v. Rome, 25. Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 52, 250, 291, 293, 774. Trusteesvof St. Clara Female Academy v. Northwestern Ins. Co., 219, 273, 621, 675. Tubbs V. Dwelling House Ins. Co., 461, 473. Turley v. North American Fire Ins. Co., 502, 508, 511, 513, 574. Turner v. Fidelity & Casualty Co., 386, 427, 447, 549, 571, 572. v. Phoenix Ins. Co., 186. Tuttle V. Travellers' Ins. Co., 397. Twiss V. Guaranty Life Ass'n, 41, 42, 724, 746, 748. Tyler v. New Amsterdam Fire Ins. Co., 16, 47. V. Odd Fellows' Mut. Relief Ass'n, 680. Uhrig V. Williamsburgh City Fire Ins. Co., 637, 657, 667. Ulrich V. Reinoehl, 286, 287, 680, 692. Underbill v. Agawam Mut. Fire Ins. Co., 434, 547, 596. 876 TABLE OF CASES. References are to pages. Underwriters' Agency v. Sutherlin, 233. Underwood v. Farmers' Joint Stoclc Ins. Co., 459. Underwood Veneer Co. v. London Guarantee & Ace. Co., 6, 455, 458, 462, 485, 486, 487. Union Bldg. Ass'n v. Rockford Ins. Co., 299, 318. Union Cent. Life Ins. Co. v. Hollowell, 543. V. Lee, 345. V. Pauly, 92. V. Pollard, 23, 137, 140, 143, 712, 775. V. Pottker, 141. V. Taggart, 295, 300. Union Fraternal League v. Walton, 283. Union Ins. Co. v. American Fire Ins. Co., 67, 102, 726, 730. V. Chipp, 196, 201. V. Glover, 689. V. Greenleaf, 304. V. McGookey, 178. V. Smart, 86, 304. V. Smith, 527. Union Marine Ins. Co. v. Martin, 736. Union Mut. Ass'n v. Montgomery, 144. Union Mut. Fire Ins. Co. v. Keyser, 144. Union Mut. Ins. Co. v. Wilkinson, 82, 151, 156, 159, 162, 169, 183, 186, 231, 262. Union Mut. Life Ins. Co. v. McMillen, 29, 298. V. Masten, 156, 265, V. Mowry, 56, 65, 113, 134, 224, 734. V. Reif, 338, 392. V. Wilkinson, 349. Union R. Co. v. Dull, 635, 636, 656. United Brethren Mut. Aid Soc. v. McDonald, 284. V. White, 336, 337, 345. United Firemen's Ins. Co. v. Thomas, 168, 172, 235, 709. United L. F. & M. Ins. Co. v. Foote, 369. United Security Life Ins. & Trust Co. v. Ritchey, 13. United States v. American Tobacco Co., 275, 276. V. Robeson, 645. United States F. & M. Ins. Co. v. Kimberly, 335. United States Life Ins. Co. v. Advance Co., 162, 187. V. Ludwig, 764. V. Smith, 339. \ V. Vocke, 775. V. Wright, 309. TABLE OF CASES. 877 References are to pages. United States Mut. Ace. Ass'n v. Barry, 5, 381. V. Hubbell, 383, 397. V. Kitturing, 773. V. Newman, 385. Universal Life Ins. Co. v. Binford, 443. Universal Mut. Fire Ins. Co. v. Weiss, 69, 238. Unsell V. Hartford Life & Annuity Ins. Co., 589, 707. Upton V. Jackson, 747, 752. Utter V. Travelers' Ins. Co., 389, 390. "Van Allen v. Farmers' Joint Stock Ins. Co., 563. Valley Mut. Life Ass'n v. Teewalt, 288. Valton V. National Fund Life Ins. Co., 286, 343, 345, 687. V. National L. F. Life Assur. Soc, 288. Vanderhoef v. Agricultural Ins. Co., 413. Vangindertaelen v. Phenix Ins. Co., 473, 578, 624. Van Houten v. Pine, 310, 763, 764. Vankirk v. Citizens' Ins. Co., 331. Van Loan v. Farmers' Mut. F. Ins. Ass'n, 47, 51, 55. Van Natta v. Mutual Security Ins. Co., 67. Van Poucke v. Netherland St. V. de P. Soc, 502, 505, 609. Van Schoick v. Niagara Fire Ins. Co., 165, 255. Van Slyke v. Trempealeau County Farmers' Mut. Fire Ins. Co., 82. Van Tuyl v. Westchester Fire Ins. Co., 147. Van Valkenburgh v. American Popular Life Ins. Co., 392. Van Werden v. Equitable Life Assur. Soc, 251, 252, 294. Van Zandt v. Mutual Ben. Life Ins. Co., 395. Vergerout v. German Ins. Co., 599. Vermont Loan & Trust Co. v. Hoffman, 30. Vette V. Clinton Fire Ins. Co., 660. Vezina v. Canada F. & M. Ins. Co., 222. Vicksburg & M. R. Co. v. Putnam, 775. Viele V. Germania Ins. Co., 182. Vilas V. New York Cent. Ins. Co., Ill, 327. Virginia F. & M. Ins. Co. v. Buck, 334. V. Goode, 579, 588. V. Morgan, 333. V. Wells, 423, 425. Virginia Home Ins. Co. v. Gray, 653. Vivar v. Supreme Lodge, K. of P.. 283, 326, 680. Voigt V. Kersten, 691. Von Bories v. United Life F. & M. Ins. Co.. 239. Von Genetchtin v. Citizens' Ins. Co., 565. Voorheis v. People's Mut. Ben. Soc, 137, 140, 428. 878 TABLE OF CASES. References are to pages. Vore V. Hawkeye Ins. Co., 428, 761. Vose V. Eagle L. & H. Ins. Co., 342, Voss V. Connecticut Mut. Life Ins. Co., 131. V. Eagle L. & H. Ins. Co., 322. Wadhams v. Western Assur. Co., 244, 562, 590. Wager v. Providence Ins. Co., 703. Wainer v. Milford Mut. Fire Ins. Co., 53, 76, 88, 98, 275, 346, 667, 669. Wakefield v. Orient Ins. Co., 239. Waldeck v. Springfield P. & M. Ins. Co., 536. Waldman v. North British & Mercantile Ins. Co., 254, 255. Waldock V. Springfield F. & M. Ins. Co., 528. Wales V. New York Bowery Fire Ins. Co., 97, 99, 304, 348. Walker v. Continental Ins. Co., 480. V. Farmers' Ins. Co., 60, 80. V. German Ins. Co., 602, 659. V. Metropolitan Ins. Co., 44, 48, 291, 490, 492. V. Protection Ins. Co., 101. Wall V. East River Mut. Ins. Co., 335. V. Home Ins. Co., 259, 305. V. Howard Ins. Co., 363, 535. V. Royal Soc. of Goodfellows, 340. Wallace v. Insurance Co., 437, 628, 665. Waller v. Northern Assur. Co., 309. Wallingford v. Home Mut. F. & M. Ins. Co., 84. Walls v. Bailey, 117. Wally's Heirs v. Kennedy, 782. Walradt v. Phoenix Ins. Co., 404. Walsh V. Hartford Fire Ins. Co., 156, 161. 211, 240, 243. V. Hill, 130. v. Mutual Life Ins. Co., 681. v. Philadelphia Fire Ass'n, 276. V. Washington Marine Ins. Co., 491, 493, 498. Walter v. Sun Fire Office, 331. Walter A. Wood M. & R. Machine Co. v. Caldwell, 30. Walther v. Mutual Life Ins. Co., 775. Ward V. Metropolitan Life Ins. Co., 211, 230. V. National Fire Ins. Co., 499, 542. V. Wood, 764. Ware v. Allen, 96. AVaring v. Indemnity Fire Ins. Co., 277, 365. Warner v. Peoria M. & F. Ins. Co., 193, 232. Warnock v. Davis, 275, 284, 287, 687, 765. Warren v. Davenport Fire Ins. Co., 278. TABLE OF CASES. 879 References are to pages. Warren v. Springfield F. & M. Ins. Co., 281, 518. Wasey v. Travelers' Ins. Co., 775, 777. Wash V. Fire Ass'n of Philadelphia, 537. Washburn v. Great Western Ins. Co., 148. V. Miami Valley Ins. Co., 369. Washburn-Halligan Coffee Co. v. Merchants' Brick Mut. Fire Ins. Co., 409, 556. Washington Fire Ins. Co. v. Davison, 407. Washington F. & M. Ins. Co. v. Chesebro, 268, Washington Life Ins. Co. v. Menefee's Ex'r, 250. Washington Mills Emery Mfg. Co. v. Weymouth & B. Mut. Fire Ins. Co., 347, 434. Waterbury v. Dakota F. & M. Ins. Co., 336. Waters v. Merchants" Louisville Ins. Co., 358, 370, 376. Waters-Pierce Oil Co. v. Texas, 23, 35. Watertown Fire Ins. Co. v. Grehan, 533. v. Grover & B. Sewing Machine Co., 493, 518, 519, 520, 523. V. Rust, 28. Watson v. Centennial Mut. Life Ass'n, 287, 681. V. Swann, 68. Watts V. Phoenix Mut. Life Ins. Co., 443. Waugh V. Beck, 274. Way V. Abbington Mut. Fire Ins. Co., 357, 358. Wayman v. Douthard, 140. Waynesboro Mut. Fire Ins. Co. v. Creaton, 434. Webb V. Protection Ins. Co., 437. V. Protection & A. Ins. Co., 374. Weber v. Germania Fire Ins. Co., 216, 551. V. Paxton, 692. Webster v. Buffalo Ins. Co., 44. V. Phoenix Ins. Co., 714. Weed V. Hamburg-Bremen Fire Ins. Co., 488, 556, 582. V. London & L. Fire Ins. Co., 67, 262. V. Mutual Ben. Life Ins. Co., 778. Weidert v. State Ins. Co., 155, 181, 236, 240, 316, 450, 458, 460, 548, 560, 590, 708, 709. Weil V. New York Life Ins. Co., 321, 342. Weisenberger v. Harmony F. & M. Ins. Co., 359. Weiss v. American Fire Ins. Co., 457, 578. Welch v. Union Cent. Life Ins. Co., 775. Wellcome v. Peoples' Equitable Mut. Fire Ins. Co., 457, 492, 494, 500. Wells V. New England Mut. Life Ins. Co., 355, 389. Wells, Fargo & Co. v. Pacific Ins. Co., 134. 880 TABLE OF CASES. References are to pages. Welsh V. Cutler, 309. V. Des Moines Ins. Co., 491, 501, 502, 510, 553, 592. V. London Assur. Corp., 525, 549, 573, 574, 591, 676. West V. British America Assur. Co., 528, 535. V. Citizens' Ins. Co., 132, 403. V. Norwich Union F. Ins. Co., 1^2. West Branch Ins. Co. v. Helfenstein, 565, 688. West Branch Lumberman's Exchange v. American Cent. Ins. Co., 136, 497. Westchester Fire Ins. Co. v. Coverdale, 119. V. Dodge, 404, 438, 688. V. Earle, 52, 150, 162, 239, 558, 561. V. Foster, 276. V. Jennings, 520. V. Wagner, 149. V. Weaver, 400. Western Assur. Co. v. Altheimer, 330. V. Decker, 646, 647. V. Hall, 647, 667, 670. V. MacAlpin, 47, 768. V. McCarty, 263, 551. V. Ray, 364. V. Redding, 321, 332. V. Stoddard, 436, 676. Western Commercial Travelers' Ass'n v. Smith, 381, 486, 496, 498. Western Home Ins. Co. v. Richardson, 439, 579, 594 Western Horse & Cattle Co. v. O'Neill, 376. Western Horse & Cattle Ins. Co. v. Scheidle. 301. Westfield Cigar Co. v. Insurance Co. of North America, 669. Westlake v. St. Lawrence County Mut. Ins. Co., 604. Westmoreland v. Preferred Ace. Ins. Co., 384, 387. West Rockingham Mut. Fire Ins. Co. v. Sheets, 515. Wheaton v. North British & M. Ins. Co., 591. Wheeler v. Connecticut Mut. Life Ins. Co., 20, 310. V. Factors' & Traders' Ins. Co., 10, 677. V. Odd Fellows' Mut. Aid & Ace. Ass'n, 114, 151. V. Supreme Sitting, O. of I. H., 122. V. Traders' Ins. Co., 357, 358. ' ' V. Watertown Fire Ins. Co., 653. Whipple V. North British & M. Fire Ins. Co., 444. Whitcomb v. Phoenix Mut. Life Ins. Co., 138. White V. Madison, 279. V. Mutual Fire Assur. Co., 362. TABLE OF CASES. 881 References are to pages. White V. Phoenix Ins. Co., 419. V. Provident Sav. Life Assur. Soc, 323, 339, 350, 385, 713. V. Republic Fire Ins. Co., 358, 372. V. Robbins, 686. V. Royal Ins. Co., 529. V. Smith, 692. V. Germania Fire Ins. Co., 206, 219, 239, 242. Whitehurst v. Fayetteville Mut. Ins. Co., 373, 374. Whiteside v. Supreme Conclave, I. 0. H., 190-192, 206. Whiting V. Burkhart, 430, 765. V. Massachusetts Mut. Life Ins. Co., 297, 305, 310. Whitlatch v. Fidelity & Casualty Co., 382, 767. Whitley v. Piedmont & A. Life Ins. Co., 296. Whitmarsh v. Conway Fire Ins. Co., 130. Whitney v. Black River Ins. Co., 411, 420, V. Burkhardt, 678. V. National Masonic Ace. Ass'n, 202, 221, 351, 613, 620. Whittaker v. Farmers' Union Ins. Co., 101. Whittle V. Farmville Ins. Co., 69. Whitwell v. Putnam Fire Ins. Co., 364. Whitworth v. Ballard, 258. Wholley v. Western Assur. Co., 664. Wiberg v. Minnesota Scandinavian Relief Ass'n, 44, 121, 347, 732, 744. Wiberly v. Matthews, 640. Wicking v. Citizens' Mut. Fire Ins. Co., 573, 597, 603, 628, 631. Wiebler v. Milwaukee Mechanics' Mut. Ins. Co., 53. Wiggins V. Knights of Pythias, 144. Wightman v. Western M. & F. Ins. Co., 477, 488, 543. Wilber v. Williamsburgh City Fire Ins. Co., 196, 199, 206, 207, 211. Wilburn v. Wilburn, 695. Wilcox v. Allen, 678. Wildberger v. Hartford Fire Ins. Co.. 165. Wilder v. Chicago & W. M. Ry. Co., 782. Wilhelmi v. Des Moines Ins. Co., 428. Wilkins v. State Ins. Co., 66, 86, 114, 133, 158, 202, 220, 224, 236, 237, 245, 292, 293, 299, 431. Wilkinson v. Connecticut Mut. Life Ins. Co., 325. Willcuts V. Northwestern Mut. Life Ins. Co., 252. Willey V. Fidelity & Casualty Co., 312. Williams v. Continental Ins. Co., 37, 68. v. Corson, 683. V. Hartford Ins. Co., 446, 619. V. LiUey, 686. KERR, INS.— 56 882 TABLE OF CASES. References are to pages. Williams v. New England Mut. Fire Ins. Co., 321, 376, 414. V. Niagara Fire Ins. Co., 508, 714. V. Paschall, 640. V. Phoenix Fire Ins. Co., 535. V. Queen's Ins. Co., 500, 502, 503, 506, 507, 511, 514, 577, 591, 600, 603. V. Roger Williams Ins. Co., 278. V. Smith, 68, 274. V. Washington Cife Ins. Co., 297. Williamson v. Liverpool, L. & G. Ins. Co., 782. V. Michigan F. & M. Ins. Co., 429. V. Orient Ins. Co., 410. Willis V. Germania & Hanover Fire Ins. Co., 376, 523. Willoughby v. St. Paul German Ins. Co., 428, 658, 660, 717. Wilmaser v. Continental Life Ins. Co., 690, Wilson V. Aetna Ins. Co., 423. V. Commercial Union Assur. Co., 241, 586, 589. V. Conway Fire Ins. Co., 148. V. Hill. 8. T. Minnesota Farmers' Mut. Fire Ins. Ass'n, 215. V. New Hampshire Fire Ins. Co., 82. V. Northwestern Mut. Ace. Ass'n, 397, 516, 518, 582. Winans v. Allemania Fire Ins. Co., 169. Winchell v. Iowa State Ins. Co., 16, 80, 81, 158, 203, 251. Wingert v. Zeigler, 49. Winne v. Niagara Fire Ins. Co., 78, 156, 160, 268. Winnesheik Ins. Co. v. Holzgrafe, 80, 163, 238. v. Schueller, 600. Witherell v. Marine Ins. Co., 106, 180. Wittenberg Veneer & Panel Co., In re, 689l Wolcott V. Sprague, 517. Wolf V. Michigan Masonic Mut. Ben. Ass'n, 306. Wolff V. Connecticut Mut. Life Ins. Co., 390, 778. V. Liverpool & L. & G. Ins. Co., 645. Wolters V. Western Assur. Co., 376. Wood V. Dwarris, 120. V. Firemen's Fire Ins. Co., 172, 173. 196. V. Grose, 13. V. Hartford Fire Ins. Co., 335. V. Massachusetts Mut. Ace. Ass'n, 103, 444. V. Northwestern Ins. Co., 704. Woodbury Savings Bank & Building Ass'n v. Charter Oak F. & M, Ins. Co., 169, 176. TABLE OF CASES, 8S3 References are to ps^es. Wooddy V. Old Dominion Ins. Co., 456, 458, 469, 487. Woodfin V. Ashville Mut. Ins. Co., 539. "Woodruff V. Tilman, 691. Worachek v. New Denmark Mut. Home Fire Ins. Co., 72, 533-535, 783. World Mut. Life Ins. Co. v. Schultz, 341. Worley v. Northwestern Masonic Aid Ass'n, 684. "Worthington v. Bearse, 275. Wright, In re, 436. V. Hartford Fire Ins. Co., 509. ' V. London Fire Ins. Ass'n, 263, 552, 567, 596, 783. V. Mutual Ben. Life Ass'n, 118. V. Susquehanna Mut. Fire Ins. Co., 628. Wuesthoff V. Germania Life Ins. Co., 517, 518. Wunderlich v. Chicago & N. W. Ry. Co., 701. V. Palatine Fire Ins. Co., 3G0, 535, 648, 676. Wyman v. People's Equity Ins. Co., 493. V. Phoenix Mut. Life Ins. Co., 109, 245. Wynkoop v. Niagara Fire Ins. Co., 439, 661, 665. Wynne v. Liverpool & L. & G. Ins. Co., 346, 417. Wynne's Case, 752. Yancey v. Aetna Life Ins. Co., 391. Yendel v. Western Assur. Co., 594, 622, 642, 645, 671. Yonge V. Equitable Life Assur. Soc, 85, 88, 90, 93, 94. Yonkers & N. Y. Fire Ins. Co, v. Hoffman Fire Ins. Co., 735, 740. Yore V. Booth, 353, 695. York & C. R. Co. v. Myers, 650. Yost V. McKee, 669. Young V. Grand Council, A.O. of A., 191, 453, 504, 509, 520, 552, 607, 633, 635. V. Hartford Fire Ins. Co., 241, 250. V. Travelers' Ins. Co., 386, 524, 530. V. Union Ins. Co., 278. Youth's Temple of Honor, In re, 757. Zaleski v. Home Ins. Co., 609, 617, 625, 626, 628, 665, 667. V. Iowa State Ins. Co., 438, 439, 661. Zallee v. Laclede Mut. F. & M. Ins. Co., 654. Zell V. Herman Farmers' Mut. Ins. Co., 237, 245. Zielke v. London Assur. Corp., 600. Zimeriski v. Ohio Farmers' Ins. Co., 627, 665. Zimmerman v. Home Ins. Co., 562. Zimmermann v. Dwelling-House Ins. Co., 165. INDEX. Beferences are to pages. A. ACCEPTANCE, what constitutes acceptance of application, 80, 82. what constitutes acceptance of policy, 82. ACCIDENT, meaning in policy of accident insurance, 380. presumption as to cause of injury to insured, 777, 781, ACCIDENT INSURANCE, definition of contract, 5. proximate cause of loss, 377. ACT OF GOD, excuse for non-payment of premium, 310. ACTION, practice and procedure in actions of policies, 759. persons who may sue on contract of reinsurance, 721. power of general agent to institute civil or criminal proceedings, 186. right of action against mutual company to compel distribution of surplus, 443. special limitations in policy as to time of bringing suit, 423. ADDITIONAL INSURANCE, breach of warranty as to other insurance, 338. forfeiture or avoidance of policy for other insurance, 407. power of general agent to waive condition against additional in- surance, 185. power of solicitor to consent to additional insurance, 203. stipulation limiting amount of liability in case of other insur- ance, 440. waiver of right to forfeit policy on taking out of other insur- ance, 709. ADJUSTMENT OF LOSS, conclusiveness of adjustment, 444. conclusiveness of award in arbitration proceedings, 648. 886 INDEX. References are to pages. ADJUSTMENT OF LOSS (con.), effect of demanding or participating in award, 658. effect of failure of arbitrators to agree, 642. effect of stipulations for submission to arbitration, 613. election to rebuild as waiver of right to demand arbitration, 439. negotiations for settlement as waiver of proof of loss, 595. proceedings for submission of claim to arbitration, 629. power of adjusters to settle and adjust losses, 260. power of agent to adjust and settle losses, 163, 184. proceedings of arbitrators, 639. right of unauthorized foreign company to adjust loss within state, 37. selection of arbitrators and umpire, 632. setting aside award in arbitration proceedings, 652. validity of stipulations for arbitration, 264, 608. waiver of breach of conditions by proceedings for adjustment of loss, 715. waiver of proofs of loss by proceedings for adjustment, 550. waiver of right to arbitration, 661. ADJUSTERS, power of insurance adjuster to waive proof of loss, 567. ADMISSIONS, conclusiveness of recitals in proofs of loss. 526. of oflBcer of insurance company as binding on company, 188. AGENTS, acts of agents before issuance of policy, as binding on company, 212. admissions of agent to prove agency, 178. appointment of agent on whom summons may be served, 760. brokers and solicitors as agents for both parties, 195. classification of agents of insurance companies, 180. collusive waiver of forfeiture by agent of insurer, 713. delay caused by agent, as affecting special limitation in policy, 427. effect of delivery of policy to insurer's agent, 92. insertion of false answer in application by agent barring right to avoid policy, 220. knowledge of agent binding on insurer, 214. liability of insurance agent to his principal, 267. liability of agent of insured for failure to procure insurance, 270. liability of agent of insurer for failure to procure policy, 51. mistakes of agent in making out application. 111, 213. INDEX. 8b7 References are to pages. AGENTS (con.), officers of insurance companies as agents, 187. possession of blank policies as evidence of agency for insurer 178. power to agree to renewal of policy, 51. power to bind company by renewing policy, 106. power to extend credit for premium, 294. power to issue policy after loss, 166= power to make contracts of insurance, 79. power to make contract of reinsurance, 726. power to make oral contract of insurance, 50. power to revive forfeited policy, 108. power to waive conditions in policy, 213. power to waive condition requiring countersigning of policy, 86. power to waive notice and proof of loss, 545. power to waive right of company to forfeit or avoid policy, 710. power to waive right to arbitration, 661. power of local agent to receive notice and proof of loss, 522. powers of agents of insurance companies in general, 152. powers of special or local agents, 192. ratification of unauthorized acts, 264. right of agent of insured to furnish notice and proof of loss, 517. right of state to prescribe qualifications of insurance agents, 25. right of insurance agent to insure himself, 17. right of insurance agent to insure his own property, 165. right of unauthorized foreign company to appoint agents within state, 37. right to act as agent for both parties to insurance contract, 17, 61, 153, 165. right to avoid policy for mistakes of insurer's agent, 351. stipulations in application making solicitor the agent of appli- cant, 209. stipulations in policy regulating agency, 204. subordinate lodge of benefit association as agent of grand lodge, 190. sufficiency of notice of loss given by agent of insurer, 515. waiver of conditions in policy by officers of company, 188. AGE OF INSURED, effect of misrepresentations as to age of insured, 344. forfeiture of life policy for breach of warranty as to age of in- sured, 336. 888 INDEX. References are to pages. AGREEMENT TO INSURE, effect of loss before delivery of policy, 97. executory contract to insure, 58. measure of damages for breach of contract to insure, 441. necessity of notice and proof of loss under agreement to insure. 456. validity of parol agreement to insure, 45. what constitutes performance of parol contract to issue policy, 114. ALEATORY CONTRACT, nature of insurance contract, 11. ALIENS, right of alien to take insurance, 20. ALTERATIONS AND REPAIRS, forfeiture of policy for alterations or repairs on Insured prop- erty, 405. AMALGAIVIATION, of insurance companies, 741. AMBIGUITIES, construction of ambiguous language in policy, 134. AMENDMENT, effect of amendments to charter and by-laws of mutual benefit association, 121. of complaint in action on policy, 769. time within which amended proof of loss must be served, 580. AMOUNT OF INDEMNITY, necessity of recitals in policy, 15. ANNUITY, contract to pay annuities or monthly instalments as insurance contract, 13. ANSWER, requisites and suflBciency of answer in action on policy, 769. APPLICATION, construction of application as part of contract, 110, 117. construction of application as part of parol contract of insur- ance, 50. effect of concealment of facts, 111. effect of making application for insurance, 78. necessity of application for insurance, 78. necessity of application for membership in mutual company, 81. INDEX. 889 References are to pages. APPLICATION (con.), necessity of application for parol contract to insure, 46. power of general agent to waive written application, 185. , right to avoid policy for mistake of agent in filling in applica- tion, 351. stipulations in application making solicitor the agent of appli- cant, 209. warranties and representations in application, 319. APPOINTMENT, of agents of insurance companies, 179. APPORTIONMENT OF LOSS, stipulation for apportionment of loss among insurers, 440. APPRAISEMENT, validity of provisions requiring appraisal and arbitration, 264. ARBITRATION, conclusiveness of award, 648. demand for arbitration as waiver of proof of loss, 601. demand for arbitration as waiver of right to avoid or forfeit policy, 715. effect of demanding or participating in award, G58. effect of failure of arbitrators to agree, 642. effect of stipulations for submission to arbitration, 613. necessity of pleading submission to arbitration, 767. proceedings for submission of claim to arbitration, 629. proceedings of arbitrators, 639. selection of ai'bitrators and umpire, 632. setting aside award, 652. validity of stipulations for arbitration, 264, 608, 759. waiver of right to arbitration, G61. ASSIGNMENT FOR BENEFIT OF CREDITORS, insurable interest of assignee, 278. right of assignee to proceeds of insurance policies, 697. termination of policy by assignment, 104. ASSIGNMENT OF INSURED PROPERTY, effect on insurance policy, 8. ASSIGNMENT OF POLICY, assignability of policy of fire insurance, 685. assignability of policy of life insurance, 687. consent to assignment as waiver of forfeiture, 108. insurable interest of assignee of policy of life insurance, 285. 890 INDEX. References are to pages. ASSIGNMENT OF POLICY (con.), law governing Fight to assign policy, 138. measure of damages for breach of agreement to assign policy^ 443. power of agent to consent to assignment, 160, 231. power of subagent to consent to assignment of policy, 255. right to assign, 9. right of assignee to maintain action on policy, 765. right of assignee to furnish notice and proof of loss, 520. sufficiency and validity of assignment, 687. ATTACHMENT, insurable interest of officer in attached property, 279. right of attaching creditor to furnish proof of loss, 520. ATTENDING PHYSICIAN, conclusiveness of statements of attending physician in proofs of loss, 530. misrepresentations in application as to attending physician, 339. necessity and sufficiency of physician's certificate to proof of death, 510. ATTORNEYS' FEES, validity of statute providing for attorneys' fees in actions ott policies, 781. AVOIDANCE OF POLICY, duty to return premium paid, 308. effect of breach of condition on rights of mortgagee, 429. effect of misstatements in application inserted by agent of com- pany, 213, 220. for concealment of facts in application. 111. for incumbrance on insured property, 409. for misrepresentations and breach of warranties, 319. for other insurance, 407. insertion of false answer in application by agent barring right to forfeit policy, ,213, 220. knowledge of agent preventing company from avoiding policy.. 214. knowledge of officer of company estopping it to avoid policy, 18?.^ necessity and sufficiency of pleading breach of conditions, 769. right to avoid policy for mistakes of insurer's agent, 351. validity of stipulations avoiding policy for defect in title or in- terest,. 398. INDEX, 891 References are tx) pages. B. BAILMENT, insurable interest in property held by bailee, 276. BINDING SLIP, definition, 62. requisites and sufficiency, 62. BLANKET POLICY, definition, 70. BOOKS OF ACCOUNT, duty of insured to keep and furnish books of account, 541. BROKERS, powers of insurance brokers, 195. power of broker after delivery of policy, 233. BURDEN OP PROOF, as to making and payment of assessments, 7S0. as to payment of premium, 779. of authority of agent to bind company, 163. of authority of subagent of insurance agent, 2o7. of breach of warranty avoiding policy, 353. to enforce performance of oral agreement to issue policy, 56. to establish parol contract of insurance, 52. to excuse failure to furnish notice and proof of loss, 470. to show forfeiture of insurance policy, 432. BURGLARY, contract to make good loss by burglary an insurance contract, 13. BY-LAWS, effect of amendment of by-laws of mutual benefit association, 121. of mutual benefit association as part of contract, 1"20. c. CANCELLATION OP POLICY, liability of agent for failure to cancel policy, 268. liability of benefit association for unlawful cancellation of cer- tificate, 441. necessity to return unearned premium, 222. power of agent to cancel policy, 231. power of agent to revive canceled policy, 161. CAPITAL STOCK, right of state to prescribe amount of capital required of foreign companies, 24. 892 INDEX. References are to pagea. CARRIERS, common carriers as insurers, 2. insurable interest of carrier in goods being transported, 277. railroad company as insurer of cars received from other com- panies, 2. subrogation of insurer to claim of insured against carrier, 702. CERTIFICATE OF MEMBERSHIP, construction of contract with members of mutual benefit associa- tions, 143. necessity of certificate in mutual company, 81. CERTIFICATES, necessity and suflScency of certificates to proof of loss, 502. CHARTER, effect of amendments of charter of mutual benefit association, 121. effect on right to make parol contract of insurance, 47. of mutual benefit association as part of contract, 120. CHANGE OF BENEFICIARY, right to change beneficiary in life insurance policy, 679. CHANGE OF RESIDENCE, forfeiture of life policy by change of residence, 421. CHANGE OF TITLE AND POSSESSION, forfeiture of policy for change of title of insured property, 401. CLASSIFICATION, divisions of insurance contracts, 4. of agents of insurance companies, 180. of insurance, 2. CLERKS, powers of clerks and subagents of insurance agents, 253. termination of powers of clerks of insurance agents, 260. COLLUSION, between agent and insured avoiding policy, 225. COMMISSIONER OF INSURANCE, mandamus to compel issuance of license, 25. ministerial capacity, 25. right to revoke license, 25. COMPROMISE, liability of company on note given in compromise of invalid risk, 42. negotiations for compromise as waiver of proofs of loss, 595. INDEX. 895 References are to pages. CONCEALMENT OP FACTS, avoidance of policy for concealment of facts, 346. CONDITIONAL CONTRACT, nature of insurance contract, 10. CONDITIONAL DELIVERY, of insurance policy, 95. CONFLICT OF LAWS, laws governing contracts of insurance, 759. law governing in construction of policy, 136. CONNECTING CARRIERS, railroad company as insurer of cars received from other com- panies, 2. CONSIDERATION, necessity of consideration for insurance contract, 15. CONSOLIDATION, of insurance companies, 741. CONSTITUTIONAL LAW, impairing obligation of contract of insurance policy, 116. CONSTRUCTIVE DELIVERY, of insurance policy, 92. CONTENTS, essential contents of insurance policy, 66. CONTRACT, constituents of contract, 113. construction of custom as part of insurance contract. 117. construction of laws and ordinances as part of insurance con- tract, 116. definitions of insurance contracts, 3. divisions of insurance contracts, 4. essentials of insurance contract, 15, 66. form of insurance contract, 45.' interpretation of contract of insurance, 129. law of place of contract as part of policy, 115. nature of insurance contract, 10. subject-matter of insurance contract, 353. ultra vires contract of insurance, 38. warranties as part of contract, 319. what constitutes insurance contract, 11. CONTRIBUTION, stipulation for contribution among insurers, 440. 89J: INDEX. References are to pages. CORPORATIONS, insurable interest of stockholder in corporate property, 278. right of corporation to be insured, 18. CROPS, right of insurance company to insure standing crops, 41. CUSTOM AND USAGE, construction of custom as part of insurance policy, 117. construction of policy with reference to custom and usage, 140. D. DAMAGE BY WATER, liability of insurer for damage by water, 373. DAMAGES, for failure to execute agreement to insure, 58. measure of damages for breach of agreement to assign policy, 443. measure of damages for breach of contract to deliver paid-up policy, 443. measure of damages for breach of contract to insure, 441. measure of damages for unlawful forfeiture of policy, 442. measure of damages in action on policy, 432. DEATH, presumption as to death of insured, 776, 780. DEATH AT THE HAND OF JUSTICE, liability for death of insured at the hand of justice, 393. DEBTOR AND CREDITOR, designation of creditor as beneficiary in certificate of member- ship in mutual benefit association, 689. insurable interest of creditor in life of debtor, 286, 680. insurable interest of creditor in property of debtor, 279. right of creditor of insured to furnish notice and proof of loss, 520. rights of creditor to proceeds of policy, 691. DECLARATIONS, of officer of insurance company as binding on company, 188. DEFINITION, of contract of accident insurance, 5. of contract of fire insurance, 4. of contract of life insurance, 5. of contract of marine insurance, 5, of guaranty insurance contract, 6. of insurance contracts, 3. INDEX. 895 References are to pages. DELEGATION OF POWER, of insurance agent, 256. DELIVERY, effect of loss before delivery of policy, 97. necessity and sufficiency of delivery of policy, 49, 87. power of brokers and solicitors after delivery, 233. presumption as to delivery of policy, 781. DEMAND, necessity and sufficiency of demand for arbitration, 625. necessity and sufficiency of demand for proof of loss, 505. sufficiency of demand for examination of insured under oath, 538. DENIAL OF LIABILITY, as waiver of arbitration, 668. as waiver of notice and proofs of loss, 576, 585. DEPOSIT, right of state to require deposit of security by foreign com- pany, 24. DISEASE, what constitutes death from disease, within meaning of pol- icy, 384. DISTRIBUTION OF SURPLUS, in mutual insurance companies, 443. DIVORCE, effect on insurable interest of wife in husband's life, 680. DOING BUSINESS, within meaning of insurance statutes, 36. DURATION OF CONTRACT, term of insurance, 100. E. ELECTION, of insurer to repair premises or pay loss, 438. • SELECTION TO REBUILD, effect of submission of loss to arbitration, 660. submission to arbitration as waiver of election to rebuild, 717. EMPLOYER'S LIABILITY INSURANCE, sufficiency of notice of loss, 461. ENDOWMENT INSURANCE, right of mutual benefit association to give endowment insur- ance, 42. 89G INDEX. References are to pages. ESTOPPEL, insertion of false answer in application by agent barring right to forfeit policy, 220. knowledge of agent estopping company from forfeiting pol- icy, 217. knowledge of agent estopping company to avoid policy, 214. of insurer to allege invalidity of policy for its failure to comply with statutes. 31. of insurer to avoid or forfeit policy, 705. of insurer to avoid policy for acts of its agent, 213. of insurer to object to delay in furnishing proof of loss, 570. of insurer to deny agency of solicitor, 196. of insurer to deny validity of renewal policy, 106. of insurer to plead limitation of action, 760. of insurer to plead special limitation in policy, 427. of insurer to refuse payment on ultra vires policy, 679. of insurer to require notice and proof of loss, 545. waiver of right to forfeit policy for non-payment of premium, 314. EVIDENCE, admissibility of evidence as to cost of restoring insured build- ing, 445. burden of proof of authority of agent to bind company, 163. burden of proof of misrepresentation avoiding policy, 353. effect of erroneous admission of evidence in arbitration pro- ceedings. 652. expert evidence as to increase of risk, 418. in action on policy, 771. of authority of agent of insurance company, 175. of authority of sub-agent of insurance agent, 257. of existence of agency for insurance company, 175. parol evidence to explain policy, 131, 148. presumption of fidelity of agents of company, 164. proof of parol contract to insure, 52. proofs of loss as evidence, 526. stipulation in policy waiving privilege of communication to physician, 429. EXAMINATION OF INSURED, duty of insured to submit to examination under oath, 538. waiver of proofs of loss by requiring examination of Insured under oath, 599. EXECUTION, insurable interest of officer in attached property, 279. of policy, 85. , IKDEX. 897 References are to pages. EXECUTORS AND ADMINISTRATORS. right to proceeds of policy on life of decedent, 682. EXPERT EVIDENCE, as to increase of risk, 418. in action on insurance policy, 779. EXPLOSION, liability of insurer for loss caused by explosion, 359, 368. EXPOSURE, warranty to keep clear space around insured building, 334. EXTENT OF LOSS, effect of recitals in policy, 432. effect of recovery by insured from person causing loss, 448. extent of liability of reinsurer, 735. for breach of contract to insure, 441. liability of insurers on successive losses, 441, what constitutes total loss, 445. EXTERNAL, VIOLENT, AND ACCIDENTAL MEANS, what constitutes death from such causes, 383. P. FACTORS, insurable interest of factor, 277. FALLEN WALLS, liability of insurer for loss from fallen walls, 371. FIDELITY BONDS, guaranty of fidelity of ofiicers and employes as insurance con- tract, 13. FIREMEN'S RELIEF FUND, right of state to compel foreign companies to contribute, 25. FLOATING POLICY, definition, 70. FOREIGN COMPANIES, presumption as to compliance with statutes by foreign com- panies, 781. state regulation of foreign insurance companies, 22. validity of policy issued by company failing to comply with statutes, 26. validity of retaliatory statutes, 35. vested right to do business in state. 34. what constitutes doing business, within meaning of statutes, 36. KERR, INS.— 57 89S INDEX. References are to pages. FORFEITURE OF POLICY, additional insurance, 407. alienation or change of title of insured property, 401. alterations or repairs on insured property, 405. assignment of insured property, 8. breach of warranties, 319. change of location of insured property, 365. change of residence of insured, 421. construction of provisions for forfeiture most strongly against insurer, 135, 432. effect of breach of condition on rights of mortgagee, 429. effect of forfeiture by assured on rights of assignee of policy, 686. effect of forfeiture by assured on rights of creditors, 692. effects of misstatements in proofs of loss, 531, failure to operate insured factory, 420. increase of risk, 417. incumbrance on insured property, 409. knowledge of agent barring company from forfeiting policy, 217. liability of insurer for wrongful forfeiture, 442. necessity and sufficiency of pleading forfeiture, 769. necessity of establishing defense of forfeiture, 778. necessity of notice before forfeiture for nonpayment of pre- mium, 305. nonforfeitable policies, 307. nonpayment of premium, 302. pledge of policy as assignment within prohibition in policy, 687. power of general agent to consent to additional insurance, 185. power of solicitor to waive forfeiture of policy, 203. prohibited use of premises, 413. reinstatement of policy forfeited for nonpayment of pre- mium, 312. necessity of notice of default in payment of premium, 297. self-executing provisions for forfeiture of policy, 711. vacancy of insured premises, 411. waiver by subordinate lodge of forfeiture of certificate of mem- bership, 191. waiver of delay in furnishing notice and proof of loss, 568. waiver of forfeiture for failure to furnish notice and proof of loss, 545. waiver of forfeiture for nonpayment of premium, 314, waiver of right to forfeit policy, 705. FORM, of insurance contract, 16, 45. INDEX. 899 References are to pages. FORM OF ACTION. on insurance policy, 762. FORTHWITH, construction of condition requiring notice of loss forthwith, 476, 482. FRAUD, avoidance of policy procured by fraud, 347. • delivery of policy obtained by fraud, 96. effect of misstatements by insured during examination under oath, 539. effect of misstatements in proofs of loss, 531. in procuring reinstatement of forfeited policy, 314. in procuring submission of claim to arbitration, 652. insertion of false answer in application by agent barring right to avoid policy, 220. liability of insurer for loss caused by fraud of insured, 375. misrepresentations of insurance agent binding on company, 222. rescission of policy for fraud, 150. FRAUDULENT CONVEYANCES, right of creditors to proceeds of policy procured by insolvent debtor, 692. G. GARNISHMENT, right of garnishing creditor to furnish proof of loss, 520. special limitation in policy as applied to garnishment proceed- ings to reach proceeds, 427. GENERAL AGENTS. power of general agents of insurance companies, 181. power of general agents to waive notice and proof of loss, 561, GUARANTY, agreement to guaranty fixed revenue from lands as insurance contract, 12. reinsurance as contract of guaranty, 725. GUARANTY INSURANCE, definition of contract, 6. sufficiency of notice of loss, 462. H. HEALTH OF INSURED, avoidance of policy for misrepresentations as to health of in- sured, 340. 900 INDEX. References are to pages. HEALTH OF INSURED (con.), effect of concealment of facts as to health of insured, 347. effect of misrepresentations as to health and family history of insured, 344. HISTORY, origin of insurance, 1. HOUSEHOLD FURNITURE, construction of policy on household furniture, 361. HUSBAND AND WIFE, insurable interest of husband or wife in the life of the other, 287, 680. insurable interest of husband in property of wife, 281. right of wife of insured to furnish proof of loss of husband's property, 517. right to proceeds of policy on husband's life, 681. I. IMPLIED INSURANCE, insurance resulting from operation of law, 2. INCREASE OF RISK, forfeiture of policy for increase of risk, 417. INCUMBRANCE, as defect in title avoiding or forfeiting policy, 398. forfeiture or avoidance of policy for incumbrance on insured property, 409. increase of risk by incumbrance of insured property, 419. knowledge of agent barring right to avoid policy for incum- brance on property, 215. INDORSEMENTS, oonstruction of indorsement as part of policy, 131. effect of indorsements on policy, 118. INFANTS. capacity of infant to become member of assessment insurance company, 19. liability of infant on premium note, 19. validity of policy on infant's life, 18. validity of policy on property of infant, 19, 42. INHALING GAS, what constitutes inhaling gas, within meaning of policy, 387. INDEX. 901 References are to pages. INSANITY, liability for death of insured by suicide while insane, 395. presumption as to sanity of insured, 777, 780. INSURABLE INTEREST, basis of contract of insurance, 7. effect of termination of beneficiary's interest in life of in- sured, 680. in leased premises, 279. in mortgaged property, 276. In pledged property, 277. in property held by bailee, 276. necessity and nature of insurable interest, 273. necessity of insurable interest in beneficiary in life policy taken out by insured, 680. necessity of insurable interest of assignee of life insurance policy, 687. necessity of insurable interest of one procuring reinsurance, 725. necessity of pleading insurable interest, 766, 768. necessity of pleading want of insurable interest, 769. of child in life of parent, 681. of creditors in life of debtor, 680. of creditor in property of debtor, 279. of husband or wife in life of the other, 287, 680. of husband in property of wife, 281. of master in life of servant, 288. of receiver, 278. of servant in life of master, 288. of surety in life of principal, 289. of tenant in life of landlord, 288. right of trustee to refuse payment to beneficiary for lack of in- surable interest, 679. right to proceeds of policy as affected by insurable interest, 673. INSURABLE PARTIES, who may be insured, 18, INTEMPERANCE, what constitutes intemperance, within meaning of policy, 392. INTENT OF PARTIES, construction of policy, 133. INTENTIONAL INJURIES, liability on accident policy for intentional injuries, 390. INTEREST, law governing computation of interest on policy, 138. 902 INDEX. References are to pages. INTEREST POLICY, • definition, 68. INTERSTATE COMMERCE, state regulation of insurance, 21. INTERVENTION, effect of special limitations in policy on right of intervenor, 427. INTOXICATION, breach of warranty as to temperate habits of insured, 337. proximate cause of injury or death of insured, 379. what constitutes intemperance relieving from liability on pol- icy, 392. INVOICES, duty of insured to keep and furnish invoices, 541. IRON SAFE CLAUSE, in policy of fire insurance, 332. J. JOINDER OF CAUSES OF ACTION, enforcement of contract to issue policy in action to recover loss, 57. reformation and enforcement of policy in same suit, 762. JURISDICTION, of actions on policies, 759. L. LANDLORD AND TENANT, insurable interest in leased premises, 279. insurable interest of tenant in landlord's life, 288. LEX LOCI, law of place of contract as part of policy, 115. LICENSE, criminal liability of insurance agents doing business for un- licensed companies, 170. mandamus to compel issuance of license, 25. penalty against adjuster for settling loss for unlicensed com- panies, 262. right of insurance commissioner to revoke license, 25. right of state to require license tax from foreign companies, 25. LIGHTNING, liability of insurer for loss caused by lightning, 372. INDEX. 9^3 References are to pages. LIMITATION OF ACTIONS, denial of liability as affecting provisions forbidding suit for certain time, 713. effect of arbitration proceedings on stipulations regulating time to sue, 660. effect of bar of debt on insurable interest of creditor, 680. on insurance policies, 760. proceedings for adjustment as waiver of special limitation in policy, 717. special limitation in policy of insurance, 423. statute shortening time of insurer's immunity as impairment of vested right, 35. * LIVE-STOCK INSURANCE, right of fire insurance company to insure live-stock against death, 40. LLOYD'S INSURANCE, persons on Avhom proof of loss under Lloyd's policy may be served, 523. power of general agent of Lloyd's Association, 187. right of individuals to be insurers, 21. validity of statutes prohibiting individuals from doing insurance business, 26. LOCATION OF INSURED PROPERTY, description in policy, 365. M. MAGISTRATES, necessity and sufficiency of magistrate's certificate to proofs of loss, 502. MARINE INSURANCE, definition of contract of marine insurance, 5. MASTER AND SERVANT, contract with employer to retain relief fund from wages, 14. insurable interest of master in life of servant, 288. insurable interest of servant in life of master, 288. MEASURE OF DAMAGES, effect of recovery by insured from person causing loss, 448. ' extent of liability of insurer in action on policy, 432. for breach of agreement to assign poli-y, 443. for breach of contract to deliver paid-up policy, 443. for breach of contract to insure, 441. for unlawful forfeiture of policy, 442. to policy holder not accepting contract of reinsurance, 753. 904 INDEX. References are to pages. MEDICAL EXAMINERS, . stipulation making medical examiner the agent of insured, 211. MERGER, of oral in written contract of insurance, 64. preliminary agreement merged iu policy, 113. MISREPRESENTATIONS, avoidance of policy for misrepresentations in application, 319. effect of misstatements in proofs of loss, 531. ' in procuring, contract of reinsurance, 732. MISTAKE, reforqiation of policy for mistake, 145. MODIFICATION OF CONTRACTS, effect of subsequent parol agreements on policy, 114. of policy of insurance, 150. MORTGAGES, effect of breach of conditions on rights of mortgagee, 429. effect on mortgagee of failure of insured to give proofs of loss, 464. insurable interest in mortgaged property, 276. right of mortgagee to furnish proof of loss, 518. right of mortgagee to maintain action on policy, 765. rights of mortgagor and mortgagee to proceeds of insurance policy, 677. subrogation of insurer to rights of mortgagee, 703. MURDER, effect of murder of insured by beneficiary, 685. liability of insurer for death of insured by murder, 391. MUNICIPAL ORDINANCES, as part of insurance policy, 117. MUTUAL BENEFIT ASSOCIATIONS, agreement for sick benefits as insurance contract, 14. construction of contract with members, 143. contract to pay benefits from assessments as insurance con- tract, 12. effect of amendment of charter and by-laws, 121. effect of invalid designation of beneficiary, 683. form of action on certificate of membership, 762. necessity and suflficiency of designation of beneficiaries, 683. necessity and sufficiency of notice and proof of loss, 453. levy of assessment as waiver of forfeiture for nonpayment of prior assessment, 316. INDEX. 905 References are to pages. MUNICIPAL BENEFIT ASSOCIATIONS (con.), parties to actions on certificates of membership, 764. persons who may furnish notice and proof of loss, 520. refusal to furnish blanks as waiver of proof of loss, 607. right of married women to form society for payment of benefits on death of husbands, 40. right to change designated beneficiaries, 685. subordinate lodges as agents of grand lodge, 190. use of reserve fund for reinsuring risks in other companies, 754. validity of requirement that claims on certificate be referred to tribunals of society, 608. MUTUAL COMPANIES, charter and by-laws as part of contract of insurance, 120. consolidation of companies, 741. contract for membership in mutual company, 81. distribution of surplus, 443. necessity and sufficiency of proofs of loss, 453. stipulations in policies making solicitors the agents of insured, 208. use of reserve fund to reinsure risks in other companies, 754. N. NECESSARIES, premium for insurance on infant's property as necessary, 19. NEGLIGENCE, liability of insurance agent to his principal, 268. liability of insurer for loss caused by negligence of insured, 358, 375. NOTARY PUBLIC, necessity and sufficiency of notary's certificate to proof of loss, 502. NOTICE, necessity of notice that premium is due, 305, 311. presumption as to giving of notice of premiums, 781. NOTICE OF LOSS, persons who must furnish notice of loss, 514. stipulations in policy requiring notice and proof of loss, 449. waiver of notice of loss, 545. NOVATION, ratification of reinsurance agreement, 751. 906 . INDEX. References are to pages. o. OBJECTIONS, necessity and sufficiency of objections to notice and proof of loss, 573. OBLIOATION OP CONTRACT, validity of statutes affecting insurance policies, 116. OCCUPATION, forfeiture of life policy for breach of warranty as to occupation, • 336. OCCUPATION OF PREMISES, forfeiture of policy for failure to operate insured factory, 420. forfeiture of policy for vacancy of insured premises, 411. OPEN POLICY, definition, 68. ORAL CONTRACT, validity of oral contract of insurance, 16. ORDINANCES, municipal ordinances as part of insurance policy, 117. ORIGIN, history of the origin of insurance contracts, 1. OUTWARD AND VISIBLE MEANS, what constitutes death or injury by such means, 385. OVER VALUATION, of property covered by valued policy, 69. P. PAID-UP POLICIES, assignability of claim against insurer for refusal to deliver paid-up policies, 689. measure of damages for breach of contract to deliver paid-up policy, 443. PARENT AND CHILD, insurable interest of child in life of parent, 681. right to proceeds of policy on, life of parent, 681. PAROL CONTRACTS, application as part of parol contract of insurance, 50. conditions of parol contracts, 54. necessity of notice and proof of loss under parol contract, 456. power of agent to make parol contract of insurance, 50. validity of parol contract to insure, 45. INDEX. 907 References are to pages. PAROL CONTRACTS (con.), validity of preliminary parol contract, 76. what constitutes performance of parol contract to issue policy, 114. PAROL EVIDENCE, admissibility to vary written policy, 148. PAROL WAIVER, power of agent to make parol waiver of conditions in policy, 240. PARTIES, necessary parties to insurance contract, 15, 17. persons bound by award in arbitration proceedings, 648. persons who must furnish notice and proof of loss, 514. persons who may sue on contract of reinsurance, 721. to action on insurance policy, 764. waiver of objections to proof of loss not furnished by proper per- son, 582. who may be insured, 18. who may insure, 20. PARTNERSHIP, insurable interest of partner in life of copartner, 288. right of partner in insured firm to furnish proof of loss, 519. right of partnership to be insured, 18. PAYMENT, manner of payment of premium, 294. right of third person to pay premium, 297. PENALTIES, liability of adjuster for settling losses for unlicensed companies, 262. statutes imposing penalties on agents of unlicensed companies. 173. validity of statute fixing penalties for removal of action to fed- eral court, 760. PLEADING, amendment of complaint in action on policy, 769. denial of liability in answer as waiver of failure to submit to arbitration, 670. denial of liability in answer as waiver of proof of loss, 593. necessity of negativing defense of limitations. 760. necessity of pleading waiver or forfeiture, 713. necessity to plead failure to furnish proof of loss, 460. requisites and sufficiency of answer in action on policy, 769. requisites and sufficiency of complaint in action on policy, 766 requisites and sufficiency of reply in action on policy, 770 908 INDEX. References are to pages. PLEDGES, insurable interest in pledged property, 277. pledge of policy as assignment within prohibition in policy, 687. validity and effect of pledge of policy, 689. POISON, effect of provisions in policy exempting from liability for death from taking poison, 387. PREMIUM, burden of proof as to payment of premium, 779. collection of premiums as waiver of right to avoid or forfeit policy, 715. conditions in policy regulating payment of premiums, 292. defenses to premium notes, 303. definition of insurance premium, 290. duty to return premium on failure of policy, 308. effect of payment of premium after loss has occurred, 304. effect of payment of premium by third person. 305. excuses for nonpayment of premium, 310. forfeiture of policy for nonpayment of premium, 30. manner of payment of premium, 294. necessity of agreement as to rate in oral contract, 57. necessity of agreement for fixed premium, 86. necessity of notice that premium is due, 305. necessity to return unearned premium on cancellation of policy, 222. power of agent to change terms for payment of premium, 250. power of agent to collect premium, 161, 244. power of agent to extend credit for payment of premiums, 246. power of agent to waive forfeiture for nonpayment of premiums, 246. power of general agent to reduce premiums, 185. power of general agent to waive prepayment of premium, 184. power of special agent to waive prepayment of premium, 195. premium one of the essentials of insurance contract, 15, 290. prepayment of premium as condition precedent to parol contract to insure, 46. prepayment of premium as condition precedent to validity of policy, 73, 86, 290. prepayment as condition to validity of renewal of policy, 105. receipt of premium after forfeiture as waiver, 108. receipt of premium estopping company from avoiding policy. 213. reinstatement of policy forfeited for nonpayment of premium, 312. INDEX. 909 References are to pages. PREMIUM (con.), right of third person to pay premium, 297, 310. right of unauthorized foreign company to collect premium, 37. waiver of nonpayment of premium, 314. PRESUMPTION, as to cause of injury to insured, 777. as to death of insured, 776, 780. as to delivery of policy, 781. as to giving of notice of premiums, 781. as to sanity of insured, 777, 780. as to suicide of insured, 777. as to vacancy of insured premises, 780. of fidelity of agents of company, 164. ' that injury to insured was not self-inflicted, 382. PRINCIPAL AND SURETY, insurable interest of surety in life of principal, 289. reinsurance as contract of suretyship, 725. PRIOR INSURANCE, knowledge of agent barring right to avoid policy for prior in- . surance, 214. PRIVILEGED COMMUNICATION, waiver of privilege of communication to physician, 776. PROCEEDS OF POLICY, persons entitled to proceeds, 673. right of creditors to proceeds of policy, 691. right to change beneficiary, 689. right to proceeds of policy of reinsurance, 721. PROCESS, agent of foreign company on whom process may be served, 24. appointment of agent on whom summons may be served, 760. revocation of appointment of agent to receive service, 159. PROMISSORY NOTE, acceptance of note as payment of premium, 317. defenses to premium notes, 303. payment of premium by note, 300. PROOF OF DEATH, validity of stipulation requiring actual proof of death, 429. PROOFS OF LOSS, demand for arbitration as waiver of proofs of loss, 659. demand of proofs of loss as waiver of right to avoid or forfeit policy, 715. 910 INDEX. References are to pages. PROOFS OF LOSS (con.), manner of service of notice and proofs of loss, 525. necessity and sufficiency of certificates to proofs of loss, 502. necessity and sufficiency of notice and proof of loss, 449, 453. necessity of alleging the furnishing of proofs of loss, 767. necessity of proof in action on contract to insure, 61. persons who must furnish proof of loss, 514, 520. power of adjuster to waive proofs of loss, 262. power of agent to waive proofs of loss, 184, 252. waiver of proofs by officer of company, 189. waiver of proofs of loss in general, 545, 607. PRO RATA CLAUSE, in reinsurance policy, 738. PROXIMATE CAUSE, of loss under life insurance policy, 377. risk assumed by insurance contract, 357. PUBLIC CONVEYANCE, liability for injuries received on public conveyance, 393. R. RAILROADS, as insurers against loss by fire from engines, 2. RATIFICATION, of acts of insurance agents, 264. of reinsurance agreement, 751. of unauthorized act of insurance agent, 177. right to ratify ultra vires contract of insurance, 39. REASONABLE TIME, construction of provision requiring notice of loss within reason- able time, 480. REBUILDING, right of insurer to rebuild or repair damaged premises, 437. RECEIVERS, insurable interest of receiver, 278. REFORMATION OF POLICY, in general, 145. joinder of actions to reform and enforce policy, 762. suit to reform defective policy, 85. REINSTATEMENT, of policy forfeited for nonpayment of premium, 312. INDEX. 911 Eeterences are to pages. REINSURANCE, construction of contract of reinsurance, 728. extent of liability of reinsurer, 735. form and essentials of contract, 725. nature and validity of contract, 719. necessity of insurable interest in reinsured, 725. power of agent to make contract of reinsurance, 726. ratification of reinsurance agreement, 751. right of company to reinsure its risks, 723. right of mutual assessment company to reinsure, 41. rights of policy holders who do not accept new contract, 753. term of contract, 102. RELEASE, effect of insured's release of person causing loss, 700. RELIEF FUND, contract with employer to retain relief fund from wages as insur- ance contract, 14. RENEWAL, construction of renewal policy of fire insurance in respect to condition of property, 132. effect of renewal of policy, 106. necessity for prepayment of renewal premium, 312. power of agent to agree to renewal of policy, 51. power of agent to collect renewals, 244. power of special agent to waive payment of premium on renewal, 195. validity of parol contract of renewal, 105. REPLY, requisites and sufficiency of reply in action on policy, 770. RESCISSION, of contract of reinsurance, 732. of policy of insurance, 150. RESERVE FUND, use of reserve fund to reinsure risks in other companies, 754. RETALIATORY STATUTES, right to exclude companies of other states by retaliatory statutes, 25. validity and effect as against foreign companies, 35. RETROACTIVE POLICIES, validity, 99. 912 INDEX. References are to pages. REVIVAL OF POLICY, by waiver of forfeiture, 108. power of agent to revive forfeited policy, 108. what constitutes revival, 108. REVOCATION, right to revoke submission of claim to arbitration, 631. termination of authority of insurance agent, 257. RIDERS, construction of rider as part of policy, 118. RIGHT TO PROCEEDS, persons to whom policy is payable, 673. RIOTS, liability of insurer for loss caused by riot or mob, 375. RISKS AND CAUSES OF LOSS, construction of insurance contract, 356. RUNNING POLICY, definition, 70. s. SERVICE, manner of service of notice and proof of loss, 525. SET-OFF*AND COUNTERCLAIM, right of reinsurer to purchase offsets against reinsured, 741. SETTLEMENT OF LOSS, avoidance of settlement, 444. effect of special limitation in policy on right of action on agree- ment to pay loss, 760. negotiations for settlement as waiver of proof of loss, 595. SIGNATURE, necessity and sufficiency of countersigning of policy, 85. SMOKE. liability of insurer for loss caused by smoke, 374. SOLICITORS, powers of solicitors for insurance, 195, 233. SOLVENCY, right of assignee in insolvency to proceeds of policy on insolv ent's life, 697. SPECIAL AGENTS, powers of special or local agents of insurance companies. 192. power of special agent to receive notice and proof of loss, 522. INDEX. Eeferences are to pages. 913 SPECIFIC PERFORMANCE, enforcement of agreement to renew policy, 106. enforcement of parol agreement to insure, 45. enforcement of oral contract to issue policy, 51, 56, 762. enforcement of parol contract of insurance, 48. enforcement of proper execution of policy, 85. STANDARD POLICIES, construction of standard policies, 141. definition, 70. power of agent to waive conditions in standard policy, 244. rights to proceeds of policy under Union Mortgage Clause, 678. validity of state statutes prescribing standard policy, 70. waiver of conditions in standard policies, 711. STATUTE OF FRAUDS, agreement to reinsure as undertaking to answer for the debt or default of another, 725. validity of parol contracts to insure, 52. STATUTES, effect of provision forbidding parol contract of insurance, 49. regulation of agents of insurance companies, 170. regulation of requirement of certificate to proof of loss, 505. regulation of right of individual to act as insurer, 21. regulations as to notice and proofs of loss, 453. validity of policy by company not complying with statutes, 26. validity of statute prescribing standard policy, 70. STEAM, liability of insurer for loss caused by steam, 374. STOCK IN TRADE. construction of policy on stock, and incidents thereto, 363. SUB-AGENT, termination of powers of sub-agent, 260. SUBJECT-MATTER, of insurance contract, 354. SUBROGATION, of insurer to claim of person receiving payment of loss, 699. SUCCESSIVE LOSSES, liability of insurer for successive losses on insured property, 441. submission to arbitration in case of successive losses, 631. KERR, INS.— 58 914 INDEX. References are to pages. SUICIDE, as death from violation of law within meaning of policy, 389. liability of company on death of insured by suicide, 337, 394. presumption as to suicide of insured, 777. SURPLUS, distribution of surplus in mutual companies, 443. T. TAXATION, of foreign company settling up business in state, 37. right of state to require license tax from foreign companies, 25. TENDER, necessity and sufficiency of tender of payment of premium, 311. TERMINATION OP AGENCY, revocation of authority of insurance agent, 257. TERMINATION OF POLICY, effect of assignment for benefit of creditors, 104. TERM OF INSURANCE, duration of contract, 100. TERMS, of insurance policy, 65. TIME, computation of timfe for furnishing notice and proof of loss, 457. for choosing umpire in arbitration proceedings, 638. of taking effect of parol contract of fire insurance, 55. when demand for arbitration must be made, 626. within which amended proof of loss must be served, 580. within which certificate of magistrate must be furnished, 511. within which proof of loss must be made, 506. TITLE, stipulation avoiding policy for defect in title, 398. warranties as to title, 330. TOTAL DISABILITY, what constitutes total disability within meaning of policy, 379. 385, 447. TOTAL LOSS, necessity of proofs of loss where loss is total, 457. necessity of submission to arbitration in case of total loss, 620. what constitutes total loss, 445. TRANSFER OF INSURED PROPERTY. forfeiture of policy for change of title, 401. INDEX. 915 Eeferences are to pages. TRUSTS, construction of policy on property held in trust, 365. insurable interest in trust property, 278. right of cestui que trust to proceeds of policy procured with trust funds, 693. ULTRA VIRES CONTRACT, contract of reinsurance, 748. estoppel of insurer to plead ultra vires, 42, 679. of insurance companies, 38. UMPIRE, selection of umpire in arbitration proceedings, 636. UNION MORTGAGE CLAUSE, rights of mortgagor and mortgagee to proceeds of standard pol- icy, 678. USE OF PREMISES, forfeiture of policy for prohibited use of premises, 413. warranty as to use and occupation of insured building, 334. 1 V. VACANCY, forfeiture of policy for vacancy of insured premises, 411. increase of risk by vacancy of premises, 419. presumption as to vacancy of insured premises, 780. waiver of right to forfeit policy for vacancy of premises, 709. VALUED POLICY, definition, 68. effect of misstatements in proofs of loss under valued policies, 537. necessity of proofs of total loss under valued policy, 457. VALUE OF INSURED PROPERTY, effect of misrepresentations as to value, 344. VESTED RIGPT, of beneficiary in policy of life insurance, 679, 689. of foreign insurance company to do business in state, 34. , VIOLATION OF LAW, liability of insurer for death resulting from violation of law, 388. VOLUNTARY EXPOSURE TO DANGER, what constitutes voluntary exposure relieving insurer from lia- bility, 396. 916 INDEX. References are to pages. w. WAGER POLICY, definition, 67. necessity of insurable interest, 273. WAIVER, authority of insurance agent to waive conditions in policy, 156. consent to assignment of policy as waiver of defense to its validity, 686. demand for arbitration as waiver of proofs of loss, 659. demand for certificate of magistrate as waiver of defects in proofs of loss, 507. ' effect on contract of reinsurance of waiver of conditions in origi- nal policy, 734. election to rebuild as waiver of defense, 439. limitation in policy on right of agent to waive conditions therein, 235. necessity of pleading waiver, 771. of conditions in policy, 432. of conditions requiring prepayment of premium, 293, of delay in notice and proof of loss, 568. of forfeiture by receipt of premium, 108, 213. of forfeiture for nonpayment of premium, 314. of misrepresentation or breach of warranty giving right to for- feit or avoid policy, 352. of notice and proofs of loss, 545. of proof of loss by failure to make demand therefor, 506. of right to arbitration, 661. of right to avoid or forfeit policy in general, 705. power of adjuster to waive proofs of loss, 262. power of agent to waive conditions after issuance of policy, 231. power of agent to waive conditions in policy, 217. power of agent to waive forfeiture of policy, 108. power of agent to waive forfeiture for nonpayment of premiums, 246. power of agent to waive proofs of loss, 252. power of agent to waive terms of payment of premium, 294. power of general agent to waive condition against additional in- surance, 185. power of general agent to waive prepayment of premium, 184. power of general agent to waive proofs of loss, 184. power of general agent to waive written application, 185. power of solicitor to waive forfeiture of policy, 203. power of special agents to waive conditions in policy, 195. INDEX. 917 References are to pages. WAIVER (con.), power to waive condition requiring countersigning of policy, 86. receipt of premium as waiver of right to avoid policy, 108, 213. retention of consideration as waiver of riglit to cancel policy, 44. right of insurer to waive notice and proof of loss, 450. what constitutes waiver of conditions by agent, 235. WALKING ON RAILROAD, liability of insurer for injuries received while walking on road bed, 390. Warehousemen, as insurers, 2. insurable interest of warehousemen in stored property, 276. WARRANTIES, insertion of false answers in application by agent barring right to avoid policy, 220. knowledge of agent as to falsity of warranties barring right to avoid policy, 226. nature and effect of warranties in applications apd policies, 310. WATCHMEN, agreement in policy to keep watchman on insured premises, 333. WATER, liability of insurer for damage by water, 373. WILLS, right to dispose of proceeds of life insurance policy by will, 683. WIND, liability of insurer for damage caused by wind, 373, 436. indemnity against windstorms as insurance contract, 14. y AA 000 760 104