FIRE INSURANCE.

Policy—Additional Insurance-Consent by Agent. The policy in suit provides that the insured must obtain the written consent of the company for all additional insurance on the property insured, or he shall not recover in case of loss, and further provides that "the use of general terms, or anything less than a distinct specific agreement, clearly expressed and endorsed on the policy, and signed by a duly authorized agent of the company, should not be construed as a waiver of any printed condition of the policy, and no notice to, and no consent or agreement by, any local agent, should affect any condition of the policy until such consent or agreement is endorsed thereon." The insured subsequently procured further insurance, of which the local agent was notified and orally consented thereto, but such agreement was not endorsed on the policy. The property was destroyed by fire. Held, that the notice to and the oral consent of the local agent did not bind the company, and that the additional insurance obtained without the written consent stipulated in the policy rendered the policy void.

Same Same-Pro Rata Liability-Instruction. In an action on a policy containing a provision that in case of other policies the insured shall recover no greater proportion of the loss than the sum insured by the policy bears to whole amount of the policies, it was admitted that there was other insurance on the property, amounting to $900, and there was before the jury testimony tending to show that the entire loss was less than the whole amount of insurance. Held, that it was error to instruct the jury that the measure of damages was the market value of the goods destroyed. The jury should have been instructed that if they found that the loss was less than the whole insurance, the plaintiffs were not entitled to recover a greater part of the loss than the sum covered by the policy in suit bears to the total amount of insurance.

German Ins. Co. v. Heiduk et al. (Neb. S. C.), 46 Northwestern Reporter (Oct. 11, 1890), p. 481; 42 Albany Law Journal, 360.

Application--Fraud-Evidence.--The application and policy both provided that the insured should keep his books, etc., in an iron safe, which was not done, and they were destroyed by the fire. The insured claimed that the agreement was inserted in the application by the fraud of defendant, and without his knowledge, and that he knew nothing of

the clause in the policy or application till after the fire. The jury found for the insured, after being fully instructed as to the law by the court. Held, that the verdict will not be disturbed.

Liverpool & L. & G. Ins. Co. v. Morris (Ga. S. C.), 11 Southeastern Reporter (Oct. 14, 1890), p. 895; 19 Insurance Law Journal, 1037.

Complaint-Action at Law.-Where the complaint states that certain property was insured by the defendant company, the amount of the insurance, its destruction by fire, the furnishing of proofs of loss, and demands judgment for the amount of the loss, the action is one at law, though the complaint after asking judgment for costs and disbursements, adds, "and for such other or further order, judgment or relief as may be equitable."

Death of Insured-Loss-Parties to Action.-Where the insured property was the homestead of the insured, and was destroyed after his death, and while occupied as a homestead by the widow and children, the heirs were properly joined as plaintiffs with the widow in an action for the insurance money, as the homestead descended to the heirs, on the widow's marriage or death.

Policy-Arbitration-Waiver.-A condition in an insurance policy providing for arbitration in case of difference as to the amount of the loss is waived by the company denying liability under the policy.

Bailey et al. v. Etna Ins. Co. et al. (Wis. S. C.), 46 Northwestern Reporter (Oct. 4, 1890), p. 440.

Encumbrances-Knowledge of Agent.-Where, before obtaining a policy of insurance containing a provision that it should be void if the property were mortgaged, without the written consent of the company, the assured exhibits to the agent papers showing the nature and extent of the incumbrances, the agent, and through him the company, are charged with notice thereof.

Policy-Other Insurance-"Valid or Not."-The presence of a prior policy of insurance which, though void, does not so appear on its face, is a breach of a condition that the policy shall be void "if the assured shall have or shall hereafter make any other insurance (whether valid or not) without the consent of the company written hereon."

Soliciting Agent-Power to Waive.-A soliciting agent of an insurance company has no power to waive a breach of the condition relative to additional insurance, or to estop the company by admissions after loss.

Phenix Ins. Co. v. Copeland (Ala. S. C.), 8 Southern Reporter (Sept. 24, 1890), p. 48; 42 Albany Law Journal, 336.

Subrogation-Action-Parties Plaintiff.-In an action against a carrier for loss of insured goods it was alleged that the insurance company had paid the loss, and that the action was brought in the name of the plaintiff (insured) for the benefit of the insurance company. The defendant claims that the suit should be prosecuted in the name of the

company. Held, that where a party insures goods and they are lost, the insurance company having paid the loss is entitled to be subrogated to the rights of the insured against the carrier; and in the absence of any contract on the subject, if the insured owner accepts payment from the insurers, they may use the name of the insured to obtain redress from the carrier, whose failure of duty caused the loss; and such suit can not be in the name of the insurers.

L. & N. Ry. Co. v. Manchester Mills (Tenn. S. C.), 14 Southwestern Reporter (Sept. 22, 1890), p. 314.

Evidence-Agency.-C., claiming to represent an insurance company at Lawrenceburg, applied to appellant to take insurance; the contract was agreed upon, the policy was to be issued and the premium to be paid on the 1st of January thereafter, the arrangement having been made in December. C. applied to J. & Bros., agents of the B., F. & M. Co., living at Lawrenceburg, and they caused the policy to be issued December 15, 1884, and delivered the same to C. The policy acknowledged the receipt of the premium; C. saying to J. & Bros. that he would pay it at the end of the month. They reported the premium at the home office as paid, but having failed to collect it they afterwards deducted it from other collections they had made for the company. After C. procured the policy he went with it to the appellant and had him to accept an order drawn on him in favor of B. for the premium to be paid January 1st, and then delivered the order and policy to B. who paid him the premium, and afterwards the appellant paid B. the premium and took up the policy. Held, that these facts were sufficient to show that C. was solicitor for the company under J. & Bros., and that they trusted C. to collect the premium and authorized him to do so, and that the premium was actually paid to the company upon the faith of C.'s promise that he would pay J. & Bros. on the 1st of January. Bowden, J., in separate opinion, holds that C. was not the agent of the company.

Arbitration and Award-Different Companies.-In adjusting the amount which an insurance company should pay, neither the insured or the company is bound by an award between the insured and another company in which the property was insured, fixing the value of the property and adjusting the amount which that company should pay.

Concurrent Insurance-Liability of Company.--In concurrent insurance the sum to be paid by each company is to be ascertained by the proportion which the whole insurance bears to the loss, and the sum insured by each company to its share of the loss. The amount of the entire loss can not be fixed except by agreement with each company, or by legal proceeding to which those to be affected are made parties.

Arbitration aud Award--Misconduct of Arbitrators.--By written agreement of the parties the amount of loss was submitted to two arbitrators and an umpire. The insured by his attorneys notified the arbitrators that in case there was a disagreement between them, the parties

were to be notified so that they might introduce evidence and be heard, and the arbitrators agreed that they would do so. The arbitrators did disagree as to an important fact—the size of the building which had been destroyed. After this disagreement the arbitrator selected by the insured requested that notice of the disagreement be given, but the other arbitrator and umpire refused, and proceeded with the arbitration and made an award, the arbitrator selected by the insured refusing to take part in the arbitration after the disagreement and refusal to give notice thereof. Held, that the request that notice of a disagreement should be given was a reasonable one, and the refusal to give the notice vitiated the award.

Chenowith v. Phenix Ins. Co. (Ky. S. C.), 12 Kentucky Law Reporter (Sept. 1, 1890), p. 232. (Not reported in full.)

Policy Premium Note-Suspension of Risk-Revival.-An insurance policy contained this clause: "In case the assured shall fail to pay the premium note, this policy shall cease, and remain void during the time such note remains unpaid after its maturity, and no legal action on the part of this company to enforce payment shall be construed as reviving the policy. The payment of the premium, however, revives the policy, and makes it good for the balance of the term." The premium note not being paid at maturity, the company brought suit on it and obtained judgment, which judgment was paid and satisfied after the property had been destroyed by fire. Held, that the company was liable for the loss, since the company could not accept the whole of the premium, and retain it, and at the same time escape all liability.

Phenix Ins. Co. v. Tomlinson et al. (Ind. S. C.), 25 Northeastern Reporter (Oct. 10, 1890), p. 126; 23 Chicago Legal News, 59; 42 Albany Law Journal, 381; 19 Insurance Law Journal, 1004; 31 Central Law Journal, 439 (Annotated); 9 Lawyers' Reports, Annotated, 317.

Policy-Builders' Risk--Construction.--A contractor agreed to furnish the material and build a house for $2,065, payable in installments as the work advanced. The building being in progress he took out a policy insuring him “against loss or damage by fire, to the amount of $2,000, builders' risk." He had received $1,900 on his contract, and the building was nearing completion, but was still in his possession, when it was destroyed by fire. Held, that, as he was bound to rebuild or refund the money paid, he had an insurable interest.

Pleading-Insurable Interest-Code.--An averment that a policy was issued by a fire insurance company must be treated as an averment of insurable interest in the plaintiff, under Code Ala. 1876, ? 2979, providing that any pleading is sufficient which conforms to any of the schedule of forms attached (form 16, page 704) for a suit on an insurance policy containing no averment of insurable interest.

Commercial Fire Ins. Co. v. Capital City Ins. Co. (Ala. S. C.), 8 Southern Reporter (Nov. 5, 1890), p. 222.

Policy--Sale--Construction.--The policy provided that "if the

property be sold or transferred, or any change take place in the title or possession," it should be void. The insured entered into a written agreement with another person to exchange the insured property for other property owned by such other person, the agreement reciting that the insured "have this day swapped or exchanged property," etc. "Deeds to be made soon." The possession of the insured property was passed, but the deeds had not been made at the time of the fire. Held, that the policy was voided by the contract of sale and transfer of possession.

Cottingham v. Firemens Fund Ins. Co. (Ky. C. A.), 14 Southwestern Reporter (Oct. 27, 1890), p. 417.

Overvaluation--Instruction.-In an action on an insurance policy, the court having instructed the jury that defendant can not defeat recovery of the actual loss by reason of overvaluation, unless they believe from all the evidence that the overvaluation was made knowingly and wilfully for the purpose of defrauding the defendant, a judgment for defendant will not be disturbed for refusal to instruct that it is incumbent on defendant to show false swearing and overvaluation by a preponderance of all the evidence on that issue, as the first instruction covers this.

Moyers v. Columbus B. and I. Ins. Co. (Miss. S. C.), 8 Southern Reporter (Oct. 29, 1890), p. 205.

Policy-Unpaid Premium Note-Forfeiture.-An insurance policy provided that the note taken for a premium should be accepted as payment only to its maturity, and that if it was not paid at maturity then the policy should cease, and the company should not be liable thereon while the note remained unpaid, and that on payment of the note the policy should revive and be in force from the time of such payment. After maturity of the note, and while it was unpaid, the property burned. The insured then sent the amount to the company, and it was refused. Held, that the tender of payment after the fire would not revive the company's liability.

Same Pleading-Practice.-Where the policy provides that the note shall be accepted as payment of premium until maturity of the note only, an allegation that the note was accepted as absolute payment of premium, is demurrable, since it is an attempt to contradict the written contract by a parol agreement.

Premium Note--Notice of Maturity.-In the absence of any express agreement to do so, an insurance company need not give the insured notice of maturity of a premium note in order to forfeit a policy for its non-payment.

Proof of Loss-Waiver.-Where it does not appear that the insurance company denied its liability on the policy, its failure to demand proof of loss and to furnish blanks therefor does not waive the requirement for such proofs.