Sidebilder
PDF
ePub

Landman v. Hartford Ins. Co. (C. A. Par. of O. La.), 19 Insurance Law Journal (June, 1890), p. 572.

Policy-Waiver—Agent.—An insurance policy, not under seal, provided that it should become void if the building insured should become vacant without consent indorsed on the policy in writing. It also provided that the company should not be bound by any statement made to or by any agent, not contained in the policy; and also that no part of the express conditions could be waived except in writing signed by the secretary. The premises became vacant and the insured so informed the general agent in his town, and inquired how it would be in case of fire, to which the agent replied that it was all right so long as the plaintiff had informed him. Held, that this was a waiver of the conditions of the policy, and that the general agent had power to do this.

Same-Proofs of Loss-Fraud.--Where fraud in making an overestimate of the loss in the proofs is made ground for forfeiture, such fraud must be willful and intentional.

Same-Parol Assignment.-Where a policy did not declare that ar assignment of it without the company's assent would make it void, a parol assignment of it by the assured to plaintiff is sufficient.

O'Brien v. Prescott Ins. Co. (N. Y. S. C.), 32 New York State Reporter (August, 1890), p. 579.

Insurance by Life-Tenants.-Article in which the obligation of life-tenant to insure property is discussed, with the decided cases on the subject, and the determination reached that no such obligation rests on the life-tenant.

42 Albany Law Journal (August 30, 1890), p. 174.

Judgment-Injunction--Pleading.--In an action to enjoin a judgment, upon the ground that plaintiff has a valid defense to the same, and that it was rendered through a breach of the duty of his attorney, the facts constituting the alleged defense must be pleaded, so that it may appear that, on a re-examination of the case, the result would probably

be different.

Proofs of Loss-Objections.-Objections to proofs of loss on a policy of insurance must be specific and not general, as the proof, or any part thereof, may be waived.

Hartford Fire Ins. Co. v. Meyer et al. (Neb. S. C.), 46 Northwestern Reporter (August 30, 1890), p. 292.

Pleading--Complaint-Reply-Departure.--In a suit upon an insurance policy, the plea alleged misrepresentation in the application as to the value of the property. To this the replication alleged, by way of estoppel, that the defendant's agent had a full view of the property, concurred in the estimated value, and himself inserted the amount in the application. Held, that this was no departure from the declaration upo>> the policy.

Same--Reply--Double Pleading.-The replication was not double as being both by way of estoppel and in confession and avoidance. All the matters set out constitute the single point that the defendant is estopped by the acts of its agent.

Acts of Agent-Application--Estoppel.-Where an insurance agent has a full view of the property, concurs in the estimate of value made by the owner, and himself inserts the amount in the application, the company is estopped to plead misrepresentation as to value.

Virginia F. & M. Ins. Co. v. Saunders (Va. S. C. A.), 11 Southeastern Reporter (Sept. 2, 1890), p. 794.

Policy--Waiver.-Where the policy provides that the loss shall be paid "sixty days after due notice and proof of the same, made by the assured, are received at the home office of the company," and the company upon notice of the loss denied all liability, the insured may bring action at once, and need not wait the expiration of the sixty days.

Authority of Agent-Estoppel.-Where a special agent and adjuster of an insurance company, pending negotiations after loss, confers with the assured and her attorney concerning proofs thereof, and employs an attorney to assist in the investigation of the loss, and seeks to secure a cancellation of her claim on repayment of the premium, and, without informing her of the existence of any limitation on his authority to bind his principal, positively refuses to pay the claim, the company will be estopped to deny the authority of the agent to bind it.

Pleading-Amendment-Practice.-Where a complaint is defective in failing to allege a waiver of a condition in the policy that loss shall not be payable until sixty days after proof thereof, an amendment curing that defect does not state a new cause of action.

Verdict-Conflict of Evidence.-A verdict, so far as it amounts to a finding upon a fact in dispute, will not be disturbed, as unsupported by evidence, where it appears that four witnesses testified to the fact, and two only denied it.

California Ins. Co. v. Gracey (Col. S. C.), 24 Pacific Reporter (Sept. 4, 1890), p. 577.

Liability of Insured to Agent.-In an action by an insurance agent for the value of his services in writing a policy, it appeared that the insured applied to him for a policy in a company for which he was agent; that he wrote her a policy and delivered it; and that she returned it in a few days. Held, that insured dealt with the company through plaintiff as intervening agent, and that she was not liable.

Townsend v. Tompkins (N. Y. S. C.), 10 New York Supplement (September 11, 1890), p. 797.

FRATERNAL BENEFIT ORDERS.

Certificate-Trust as Beneficiary.-Money due on a beneficiary certificate, made payable to a third person for the purpose and with the understanding that it shall be applied to the payment of the debts and funeral expenses of the assured, is impressed with a trust to that effect, which equity will enforce.

Boasburg v. Cronan et al. (Buffalo Superior Ct.), 7 New York Supplement (Oct. 3, 1889), p. 5.

Fraud-Pleading-Negligence.-Plaintiff sued to cancel an assignment of an insurance policy executed by her to defendant, on the ground of fraud. She averred that the defendant represented to her that the instrument was a receipt for money paid by him to her, and that she signed and acknowledged it under that belief, and did not know that there was any insurance policy on her husband's life. She alleged that the defendant concealed the fact of such insurance but did not allege any affirmative acts of concealment, or that he knew she was unaware of the existence of the policy. No reason was given for her failure to read the assignment which was indorsed on the policy, nor did the complaint allege that she did not know that an acknowledgement to a receipt for money was unusual. Held, That the complaint showed no cause of action, as the deception was not the result of the defendant's artifice, but of plaintiff's own negligence.

Pleading― Statute of Limitations-Construction.-Rev. St. Ind. 1881,300, providing that if a person liable to an action shall conceal the fact from the adverse party, the statute of limitations shall run only from its discovery, refers only to a concealment by affirmative acts, and not to mere silence; and hence a reply to an answer setting up such statute as a defense to the complaint mentioned, averring only that the defendant concealed from the plaintiff the fact that she had assigned the policy to him, is bad.

Miller v. Powers (Ind. S. C.), 21 Northeastern Reporter (June 21, 1889), p. 455; 18 Insurance Law Journal (Sept. 1889), p. 657.

Statutes-Application Attached to Policy-Construction-Acts 18 Gen. Assem. Iowa, c. 211, ? 2, which provides that an omission to attach to insurance policies the applications and representations upon which they are issued shall not invalidate the policies, but merely preclude the company from pleading or proving the falsity of such representations, does not conflict with and is not superseded by, Acts 21 Gen. Assem. Iowa, c. 65, regulating mutual benefit associations, although the

latter contains neither the same, nor any similiar, provision. Such act is applicable to mutual benefit associations.

Same-Same-Pleading-Breach of Warranty.-Under that act an answer in an action on a policy of insurance, charging that insured, in his application, falsely represented himself as in good health, and that such application or representation became a part of the policy, without showing that it was indorsed on or attached to the policy, is bad on demurrer.

Policy-Limitation - Construction.- Where the policy requires proofs to be filed within sixty days, and the action to be commenced within six months, after the death of the assured, payment to be made by the association within forty-five days after the filing of such proofs, defendants' denial of liability immediately after the death, even if it is a waiver of such proofs, does not give a right of action before forty-five days after such death; and an action brought within six months from that time is not barred.

McConnell v. Iowa Mutual Aid Ass'n et al. (Iowa S. C.), 43 Northwestern Reporter (October 19, 1889), p. 188.

Error.

Practice-Pleading—Amendment After Submission—Harmless The allowance of an amendment to a demurrer after it has been argued and submitted, if error, is not prejudicial, where the amendment presents no new objection.

Constitution of Association-Change of Beneficiary.-A provision in the constitution of a beneficiary society that members may change beneficiaries by a direction in writing on the back of the certificate, in a prescribed form, and attested by the recording secretary, and by him reported to the grand secretary, is a substantial part of the contract of insurance, and a change of beneficiaries by will is not such a compliance therewith as will entitle the persons named in the will to recover.

Same-Same-Estoppel of Original Beneficiary.—But where the original beneficiary induced the insured to rely upon her acquiescence in the provisions of such will, and accepted benefits under it after his decease, she is estopped from afterwards claiming such beneficiary fund under the certificate.

Hainer et al. v. Iowa Legion of Honor (Gabel, Intervenor) (Iowa S. C.), 43 Northwestern Reporter (October 19, 1889), p. 185.

Rules and By-Laws Assessments-Waiver-Estoppel.-One of the rules of the defendant was as follows: "The form of notice to, and the process of collection from, each of the members of the assessments above named shall be as follows: A notice shall be sent announcing the assessment, and the number thereof, to the last post office given by the member; and if the assessment is not received within thirty days from the mailing of such notice it shall be accepted and taken as sufficient evidence that the party has decided to terminate his connection with the society, which connection shall thereupon terminate, and the

party's contract with the society shall lapse and be void; but *** for valid reasons to the officers of the society *** he may be re-instated by paying assessment arrearages." Such notice was sent to one of the members on June 1, and the assessment not being paid within thirty days, a second notice was sent on July 5, and the assessment was paid July 21, but after the death of the insured; and the officers of the society, knowing of the death, gave a receipt in due form for the payment. Held, that the sending of the second notice was a waiver of the forfeiture occurring upon failure to pay the assessment within the required time after the first notice, and having received such payment unquestioned, the society can not repudiate its liability on the policies.

Shay v. National Benefit Society (N. Y. S. C.), 7 New York Supplement (Nov. 21, 1889), p. 287.

Certificate Measure of Recovery.-The defendant was an association for the business of life and casualty insurance upon the mutual plan. The certificate in suit insured the plaintiff against accidents; and provided that "All claims for indemnity under this certificate shall be payable from the accident fund only of the association, or from any moneys that shall be realized to said fund from the assessment to be made as hereinafter provided." The plaintiff claimed the full amount of the certificate. Held, that the claim of plaintiff was payable only out of the accident fund of the association, and gave him no right of recourse to any other fund or to the assets generally of the association; and that his right of recovery was limited to the amount in that fund, and which could be brought into it by proper assessments, according to the plan of the association.

Hesinger v. Home Benefit Ass'n (Minn. S. C.), 43 Northwestern Reporter (Nov. 16, 1889), p. 481.

Application-Misrepresentation-Estoppel-Examining Physician.--The defense below was that the certificate was void by reason of the false statements made by the insured as to his health. The evidence showed that the insured correctly stated the answers to the examining physician, who was also the family physician of the insured, but that the examiner, relying on his own knowledge of the condition of the insured, put down answers different from those made by the insured. Held, that if the examiner took it upon himself to write down answers other than those given by the insured, the insured could not be charged with making false statements in those particulars.

Former Rejection--Evidence.-The court below admitted in evidence an application, and pretended rejection indorsed thereon, of the application of the deceased in the Knights of Pythias. There was no proof in the case that the medical examiner of that Order ever rejected the deceased, except his indorsement appearing upon the application. Held, that this indorsement was not competent evidence to prove the fact of such rejection.

« ForrigeFortsett »