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until the actual payment of the premium, it is competent for the insurer to
disregard such condition, and upon a renewal of the policy to waive by parol
the payment in cash of the premium. And such waiver may be shown by direct
proof that credit was given, or could be inferred from circumstances. The
waiver may be by the insurance company, or by one of its authorised agents.
1872. Bodine v. ExeHangs Fire Ineuranee Co. (51 N. Y. 117), X, 666.

72. Haxardoos articles. An insurance policy, containing clauses which
forbid the keeping by the insured upon his premises of " hazardous " artidee,
but which has indorsed upon it by the company permission " to keep one barrel
of benzine or turpentine in tin cans" is not violated by the introduction of a
barrel of benzine in a wooden barrel upon the premises, for the purpose of
immediately emptying the same into a tin can. 1869. Ma/ryland Fire Ineur-
amce Co. v. Whxt^ord (81 Md. 219), 1, 45.

73. -p— A steamboat was insured against fire by a policy conditioned to be
void " |f gunpowder, camphene, spirit-gas, naphtha, benzine or benzole, chemi-
cal, crude, or refined coal oils are kept or used on the premises without con-
sent." Held, that the use of kerosene oil to light the boat did not forfeit the
policy. 1872. Moree v. Buffalo Fire and Marine Inaurance Go, (80 Wis. 534),
XI, 587.

74. Additional Insiiranoe. It seems that a clause in a policy of fire insurance
prohibiting a second insurance without the consent of the company is valid.
1870. lUinois Fire Insurance Co. v. FHx (53 111. 151), V. 38.

76. A policy of insurance against fire issued September, 1866, and

renewed September, 1867, contained the following clause : " If, without written
consent herein, there is any prior or subsequent insurance, this policy shall be
void." The policy did not declare by whom the consent must be signed. Both
policy and renewal contained clauses declaring them invalid, unless counter-
signed by the general agent of the company. In December, 1867, the same
property was again insured in another company. The first company had no
notice of this second insurance and gave no consent thereto until December,
1867, when another agent of the company indorsed on the first policy, " other
insurance to the amount of $4,000 is hereby permitted." This indorsement was
unsigned. In an action on the policy it waff Tield :

1. That the unsigned consent was invalid in the absence of the signature of
the general agent, without proof that it was given by some one authorized to



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mSURANOB. 197

bind the company in that way, or anleas the company had in some way ratified
the act.

2. That nppn the taking ont the second policy the first policy became void,
and was not revived by the written consent, nnless the same was given by
some one having anthority to waive a forfeiture, with full knowledge of the-
previous insurance, and with a design to include it In the permission.

8. That no act of the company or its agents could operate as a waiver of
written consent, and render valid a void policy, unless performed with full
knowledge of all the facts. 1871. Security Inmrams Oo, v. Fay (23 Mich.
467), VII. 670.

76. The charter of the defendant, a fire insurance company, provided

that every policy issued by the company covering property otherwise insured
should be void, " unless such double insurance should exist by consent of said
company, indorsed upon the policy under the hand of the secretary." EM,
that the company could not waive this provision, nor consent to double insur-
ance except by the indorsement specified. 1871. Oavuh v. The OUy Fi/re Imur-
ance Company of Hartford (88 Conn. 181), IX, 875.

77. A applied to defendant's agent for insurance on his property on the

18th of the month, and it was agreed that the agent should issue and send to
A the policy on that day. The policy was, in fact, issued on, and bore the date
of that day, but was not delivered to A, nor the premium paid until the 22d of
the month. The policy contained a condition that it should be void in case of
prior or subsequent insurance. On the 21st of the same month A applied to
the agent of the P. company for insurance on the same property, and the terma
were agreed on and the premium paid. The agent of the P. company, having
no blanks for policies, agreed to send a policy to A, and gave him a receipt
specifying the property to be insured. The usual policies of the P. company
contained a condition of avoidance in case of other insurance. Neither com-
pany was informed of the transaction with the other. On the 26th of the month
the insured property was burned. As soon as the P. company was informed
of the policy issued by defendant, it treated its contract with A as void. In an
action on the policy issued by defendant, hM^ (1) that the policy became oper-
ative and binding from the day it was issued, though not delivered, and was,
therefore, prior to the P. company's contract ; (2) that the effect of the receipt
given by the agent of the P. company was to bind the company the same as if
a policy, with the ordinary conditions, had been Issued ; (8) that the contract
with the P. company being void by reason of the prior insurance, and being so
treated by the company, did not amount to a breach of the condition in defend-
ant's policy against subsequent insurance. 1871. Hubbard v. The Hartford
FKre Inmrance'Co. (83 Iowa, 825), XI, 125.

78. Over-lnsorance — ^estinuited cash value." A policy of fire insurance
upon buildings contained a stipulation, '' that the aggregate amount insured
in this and other companies * * « shall not exceed two-thirds of the esti-
mated cash value/' The insurance was for $1,800, and the estimated cash
value, according to the. policy, was $1,950 ; subsequently improvements were
made and an additional insurance of $1,000 was eflldcted in another company.



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198 INSURANCE.

The buildings were destroyed by fire ; and tbeir value at the time of the fire
was $4,200. In an action on the first policy, held, that the " estimated cash
yalae " was that at the time of the first insarance ; and that the first policy was
void for over-insnrance. 1870. ElUoU v. Lycoming County Mut. Im. Co. (66
Penn. 23), V, 828.

79. waiTSir. Where an insarance company, after notice or knowledq^e

of over-insurance, makes and collects assessments under the policy upon the
assured, a forfeiture for over-insurance is thereby waived ; but where an assess-
ment is made by the agent of the company, by mistake, but is not collected and
is never paid, this does not constitute a waiver of the forfeiture. lb.

80. Where a policy of fire insurance is issued upon a house and stable,

and an over-insurance is made upon the house, a tender of the amount insured
on the stable, in case of loss by fire, is not an aflArmance of the insurance as to
the house so as to preclude the company from setting up a forfeiture, lb,

81. Bzplosions. A fire policy excepted from the risk '* any loss or damages
occasioned by or resulting from any explosion whatever." The fire, by which
the insured property was consumed, was occasioned by an explosion of vapor
arising from the process of rectifying whisky. Held, that the insurers were
not liable. 1872. United Life, Fire, et(f., Ins. Co. v. Fbote (22 Ohio St. 840),
X,785.

82. Builder's risk. A policy of insurance against fire on an ice-house con
tained a condition entitled " Builder's risk," that " the working of carpenters,
roofers, etc., in building, altering or repairing the premises named in the pol
icy, without permission indorsed in writing on the policy, should vitiate it"

' The assured, in an action on the policy, testified that the ** ice-house was nearly
as good as new, for the reason that he always kept a crew of men and a car-
penter or two about the building the year round, and was constantly making
repairs and keeping the building in thorough condition." Heid^ that the facts
did not vitiate the policy. 1872. Franklin Fire Ine, Co, v. Chicago lee Co
(86 Md. 102), XI, 469.

83. Increasing risk. The provision in a policy of insurance against ao
increase of risk by abts of the insured is an independent condition of itself
and is not to be controlled or limited by the previous provisions or specifica-
tions of the hazards. Therefore, an act done by the assured, although not
included in the class of specified hazards, nevertheless avoids the policy if it
increases the risk. 1871. IHttmer <t PeUe v. Oermama Insurance Company of
New Orieane (28 La. An. 458), VIII, 600.

84i In this case the assured allowed a lot of loose and unbaled hay to

be stored in the upper part of the building insured, without giving notice to the
insurers. Held, that, although unbaled hay was not specially excepted from
the hazards, yet, from its very nature, the risk was increased, and, therefore,
it avoided the policy on that ground. lb.

86. Increase of risk — leaving dwelling-house tmoooiipied — arldenoe. A
policy of fire insurance on a dwelling-house provided that any increase of the
risk, by the act or with the knowledge or consent of the assured, avoided the
policy. The assured allowed the dwelling-house to remain unoccupied for



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INSUEANCE. 199

some time, when a loss by fire occurred. HM, that the opinions of experts as
to whether leaving a dwelling-honse nnoccnpied for a considerable length of
time, was an increase of risk was inadmissible ; also, that the testimony of the
company's agent that it was their custom to charge extra premiums upon such
unoccupied dwelling-houses was inadmissible, although the testimony of wit-
nesses having the requisite knowledge and experience, that it was the custom
of insurance companies generally to charge extra premiums upon unoccupied
dwelling-houses, was admissible. 1870. LvM v. Dorcheater Mut, Ins, Co,
(105 Mass. 297), VII. 522.

86. Animation — a mortgage upon property insured is not a violation of a
clause in the x>olicy against the sale, conveyance, alienation, transfer or change
of title of the property. 1869. Commercial Ina. Co, v. dpanknebU (52 111. 58),
IV, 582.

87. A mortgaga does not com* within the provisions of a policy of fire

insurance, prohibiting, without consent, any change *' in the title or possession
of the property, whether by sale, voluntary transfer or conveyance." 1870.
ITariford Fire In$, Co, v. Waiih (54 HI. 164), V, 115.

88. sale and mortgaged back. A policy of insurance contained a provision

that if the property insured should be sold or transferred, or any change should
take place in title or possession, without the consent of the insurers, the policy
should be void. EM, that a sale or conveyance of the property, without con-
sent, avoided the policy, although simultaneously therewith a mortgage was
executed back by the purchaser for a part of the purchase-money. 1878. Sav-
age v. Houard Tne, Co, (52 N. Y. 502), XI, 741.

89. Ibreclosmre of mortgage. A policy of fire insurance on personal prop-
erty contained a proviso that " if the title of the property is transferred or
changed," *' this policy shall be void ; and the entry of a foreclosure of a mort-
gage," " shall be deemed an alienation of the property, and this coqipany shall
not be holden for loss or damage thereafter." The insured property was mort-
gaged at the time the insurance was effected, and notice of foreclosure had
been duly served, certified and recorded when the fire occurred. Held, that the
poUcy was avoided. 1869. Melntire v, Norwichlne, Co, (l(XiUBaa,2iiO), III, 4S8.

90. An executory contract for the sale of the insured premises is not a

violation of a condition against alienation. 1870. Woihingftan Fire In*, Co, v.
ir^y(82Md.421),III, 149.

91. Renewal after tranafsr — waiTer. A policy of fire insurance contained
a clause, to the effect that if any transfer of the title or possession of the prop,
erty was made without consent of the company, the policy should be void.
The title of the property was transferred to plaintiff March 4 ; a renewal was
effected March 21, by the insured ; on the 15th of April, the policy was assigned
to plaintiff, who, on the same day, informed the company's agent that the
property and policy had been transferred to him, and received the company »
written consent, signed by the agent. Held, that the renewal after the transfer
did not avoid the policy, and that the consent of defendants to the transfer
waived the forfeiture and revived the policy. 1871. Shearman t. The Niag-
ara Fire Ineuranee Co, (46 N. Y. 526), VII, 880.



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200 msuRAUCK

92i Defendantfl, throagh an agent aathoriaed to iame and lenew pdli-

des and to reoeire premionui therefor, inBared R. bf * policy containing a con-
dition of forfeitore in case of an j transfer, or change of title or poeee oai on, of
the ioBored property. iC's title to the prc^rty Tested in plaintiff, who notified
the agent of the fact, and paid to him the premiom and took a renewal receipt.
Loes having occorred, A^, that the condition was waived and that plaintiff
ooold recover. 1871. Miner v. The Phemim Insurance Compan§f (27 Wis.
eeS), IX, 47».

93. Transte by one partner to anothe r . A policy of fire insurance on
partnership goods contained a provision that if the goods shoald be " sold or
conveyed, or the interest of the parties therein changed," it shoald be void.
Held, that a transfer by one partner of his interest in the goods to his cc^rt-
ners was not a sale, conveyance or change of interest within the meaning of
the policy. 1871. DumeU v. Bufaula Home Insurance Co, (46 Ala. 11), VU,
581. 1870. Pi^ttjv. ifoMua in*. Cb. (50 N.H. 297), IX, 285.

94. Change of possession — temporary absenoe. Under a daose, in a
policy of fire insarance upon a dwelling-house, prohibiting change of possession,
it is not contemplated that the'insured shall remain constantly on the premises ;
temporary absence, leaving the house in charge of an agent or servant, does
not violate the prohibition. Ih. 1871. Shearman v. Niagara Fire Ins. Go. (46
N. Y. 526), VII, 880.

95. Assignment of polioy — xi|^ of auignee. Where a policy of fire
insurance is assigned as collateral to a mortgage, with the consent of the com-
pany, the assignee takes it subject to the conditions thereof, and no recovery
can be had merely in consequence of the equities of the assignee, if the assignor
has lost the right to recover by violating the terms of the contract. 1870.
lUinois Mut. Fire Ins, Co. v. Fix (53 III. 151), V, 38.

96. effeot d Where a policy was void in the hands of the assured by rea-
son of misrepresentations, it will be equally void in the hands of an assignee,
although the company assent to the assignment. 1871. Citizen^ Fire Ins, Co,
V. DoU (85 Md. 89), VI, 860.

97. eyidenoe. In an action by the assignor of a policy pf fire insurance

for the use of an assignee, evidence to show that plaintiff set the building on
fire is admissible. 1870. lUinoU Mutual Fire Ins. Co. v. Fix (53 III. 161), V, 38.

98. redeeming by assured after assignment. A policy of fire insurance

contained the following condition : " Policies of insurance, subscribed by this
company, shall not be assignable without the consent of the company ex-
pressed thereon. In case of assignment without such consent, whether of the
whole policy or of any interest in it, the liability of the company in virtue of
said policy shall thenceforth cease." The policy was assigned, without con-
sent of the company, as collateral security for a debt. A loss by fire occurred,
and the insured redeemed the policy. Held, that he could not recover there-
on. Thompson, Ch. J., dissented. 1871. Ferree v. Oxford Fire and Life Ins.
Co. (67 Penn. St. 373), V, 436.

99. refiisal of company to ratify. A policy of fire insurance was issued

on buildings by a company whose charter declared that, whenever any build-



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mSUEANCE. 201

ings inflored shoald be alienated, the policy should thereupon be void, *' pro-
videdy however, that the grantee or alienee haying the policy assigned may have
the same ratified and confirmed « « • upon application to the
directors, and with their consent, within thirty days next after such aliena-
tion." The buildings covered by this policy were conveyed, and the policy
was assigned by the assured. A loss by fire occurred on the eighth day after
the alienation, whereupon the company were immediately informed of the
loss, and an application was made by the assignee for a ratification. The com-
I)any refused, arbitrarily and without cause ; and, on a bill brought in chan*
<;ery praying for relief, — Held, that the assignee was entitled to recover of the
company for the loss, the same as if they had ratified the assignment. 1870.
Bayaton v. Farmerit Mut Fire Ins. Co. (43 Vt. 266), V, 276.

100. Oanceling policy. Plaintiff was insured by defendant, but afterward,
upon the representations of defendant's agent that the policy had been can-
celed and one in another company substituted, assented to the substitution, and
gave a receipt for the unearned premium. He never received the latter, how-
ever, nor was another policy substituted. A loss having occurred, in an action
on the policy, —Held, that the defendants were liable. 1871. Holden v. Put-
nam Fire Ine, Co. (46 N. Y. 1), VII, 287.

101. Defendants, in their policy, reserved the right to cancel them,

** on giving notice to that effect, and refunding a ratable proportion of the
premium for the unexpired term." Before a loss occurred the policy was
returned for cancellation to the company's agent, who notified plaintiff's
agent that he was ready to pay the unearned premium, but he did not in
fact pay it until a month subsequent ; in the meantime the loss occurred.
Held, that these facts did not relieve the company of their liability, and that
plaintiff could recover. 1872. SoUingeworth v. Oermania Ins. Co, (45 Ga. 294)»
XII, 579.

102% Limitation of action. A policy of fire insurance provided that no suit
or action should be sustainable unless commenced within twelve months after
a loss shall have occurred. Held, that if the assured was induced by the acta
of the ofllcers or agents of the insurance company to suspend for a certain
time the performance of acts required on his part after loss, such time should
be added to the time limited for bringing action. 1871. Killips v. Putnam
Ins. Co. (28 Wis. 472), IX, 606.

103. Repairs by company — proof of loss. A policy of fire insurance pro-
vided that in case of loss, the company might restore or repair the property,
within a reasonable time, by giving notice of its intention so to do, within
thirty days after the receipt of proof of loss. Held, that to authorise the com-
pany to repair, notice of their intention so to do must be served within the
thirty days specified, and that, in the absence of any provision in the policy to
the contrary, delivery of proof of loss to the local agent was delivery to the
company for all the purposes of the policy. 1871. J*he Insurance Company of
yorth America v. Hope (58 HI. 75), XI, 48, and note, 51.
26



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202 INSURANCE.

7. Notice and proof of lo$i,

104. 01:deotion to, waiTer. A policj of insarance against fire contained
this clause : " Nothing bat a distinct specific agreement, clearly expressed
and indorsed on the policy, shall operate as a waiver of any printed or written
condition therein." Held, not to refer to stipulations in the policy as to notice
and proofs of loss, and that the failure on the part of the insurer to promptly
object to the form and sufficiency of such notice and proofs of loss amounted
to a waiver of such stipulation. 1872. Franklin Fire In$. Co» v. Chicago Ice
Co. (36 Md. 103), XI, 469.

106. Notice of loss. It is a sufficient compliance with a condition in a
policy of fire insurance requiring that, in cane of loss, "the insured shaU
forthwith give notice thereof to the secretary," where a sworn statement of
the fact and circumstances of the fire, signed by the assured the morning
after the fire, was forwarded, on the following day, by the agent, to the secre-
tary of the company. 1870. BeaUy v. Lycoming County MutiuU Inawanee
Ob. (66Penn.9),V,818.

106. •— ^ A policy of fire insurance provided that " in case of loss, the
assured shall give immediate notice thereof, and shall render to the company
a particular account of said loss," etc. Held^ that immediate notice of loss only
wag required. 1871. Kiilipe v. The Putnam Fire Insurance Company (S8
Wis. 472), IX, 606.

107. Statement of loss. A policy of fire insurance required that the state-
ment of loss, if any, should be signed and sworn to by the assured ; but, a
loss having occurred, the statement was presented ^ signed and sworn to " by
the agent of the assured, who had the entire control and management of the
insured property and who obtained the policy. Held, that the statement was
sufficient. 1870. dime v. State Ins, Co. of Hannibal (47 Mo. 54), IV, 811.

108. It is not a sufficient compliance with a condition in a policy

of fire insurance, on " household furniture $867 " and " groceries (283," requir-
ing that, in case of loss, " the insured shall » * « within thirty
days deliver to the secretary a particular account " of the loss, where the
statement sent by the insured is a mere reiteration of the description in the
policy: *' household furniture $867," and "groceries $288 ;" and the fact that
the company received such a statement at the end of twenty days, but gave no
notice of insufficiency, is not a waiver of the condition demanding a " particu-
lar " statement. 1870. Beatty v. Lycoming Insurance Co, (66 Penn. 9), V, 818.

109. Proof of loss — waiTer. The secretary of a fire insurance company
sent the following letter to an assured, in response to a statement and prelimi-
nary proof of loss : " The proofs of loss furnished by you to this company are
wholly unsatisfactory as to the amount of the claim, even if the company be
responsible at all. The company, however, denies any responsibility by reason
of material representations as to the title and property being untrue and for
other reasons. With a reservation of all objections to your recovering in any
form, and without waiving any of the rights of the company under the policy,
we leave you to pursue such a course as you may deem expedient." In an



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mSUEANOB. 203

action on the policy, ?iM, that the letter did not constitnte a waiver of the
defects in the preliminary proof of loss. 1871. OiiU&M^ Fire Imurancs
Seewriiy and Loan Co, t. DoU (85 Md. 89), VI, 890.

110. Proof of loM — efvidenoe. In an action on a policy of insurance, the
■tatement and «9 p<irte affidavit of the plaintiff as to loss and valne of the prop-
erty famished to the defendant as ** preliminary proof " of loss shonld not be
read to the jnry as evidence in the cause, lb.

8. Payment ofloBi-^Who entitled to it$ beneflte.

111. Subrogmtion. Where the assured has an executory contract for sale of
the mortgaged premises at the time of the loss, held, that the insurance com-
pany, on payment of the loss, could not be subrogated to the rights of the
insured, pro ianto^ under the o<mtract of sale. 1870. Washington Fire Ineur-
anee Oo, v. Keily (82 Md. 421), III, 140.

112. Mortgagor and mortgagee — subrogatioii. One of the defendants pro-
cared insurance with the plaintiffs upon certain buildings owned by him. By
the terms of the policies the loss was payable to the owner of a mortgage on
the insured premises. The owner of the mortgage was protected against for-
feiture of insurance by reason of the acts of the owner of the property, and the
insurers were, in case of payment of insurance to mortgagee, to be subrogated
to his rights. Tha policies also provided that, in case of any change of title in
the property insured, they should be void. Subsequently to effecting insur-
ance, the defendant sold and conveyed the premises insured, soon after which
they were destroyed by fire. Held, that the owners of the premises could not
have recoveiM upon the policies, and that they were not entitled to have the
payment of the amount insured by the insurers to the owner of the mortgage
applied in satisfaction of the mortgage. 1870. Springfield Fire Insurance Co,
V. Allen (48 N. Y. 889), UI, 711.

113. Vendor and v#ndee — rl^t of assignee of Tendor. The assignee of
the interest of a vendor in a contract of sale of real estate, by which the
vendee agrees to keep the premises insured for the benefit of the vendor, is



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 26 of 51)