5. INSURANCE-FIRE INSURANCE-ACTIONS-COSTS AND ATTORNEY'S FEES. Under Acts 1905, p. 307, providing that where an insurance company, liable for a loss, fails to pay within the time specified in the policy, a reasonable attorney's fee, together with 12 per cent damages upon the amount of the loss, shall be taxed as a part of the costs in an action upon an alleged oral contract to renew a policy of fire insurance, which had not been consummated by delivering a policy to plaintiff, the allowance of an attorney's fee and the penalty provided by the statute was error. (For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. § 602.) Appeal from Circuit Court, Cleburne County; J. I. Worthington, Judge. Action by W. J. Short against the Etna Insurance Company and others. Judgment for plaintiff, and defendants appeal. Affirmed in part. Reversed and dismissed in part. Cockrill & Armistead, of Little Rock, for Appellants. M. E. Vinson, of Heber Springs, and Gus Seawel, of Yellville, for Appellee. SMITH ET AL. vs. WESTERN ASSUR. CO. OF CANADA. (No. 7294.)* (Court of Appeals of Georgia.) 1. INSURANCE-FIRE INSURANCE-FORFEITURE-WAIVERS. Forfeiture of insurance under a fire-insurance policy as a result of failure of the insured to furnish proof of loss according to the terms of the contract, is not waived by the insurance company by having the loss investigated by an adjuster a few days after the fire, when the policy provides for such investigation, and that the insurance company "shall not to be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for." See Phenix Insurance Co. vs. Searles, 100 Ga. 98, 27 S. E. 780; Everett-Ridley-Ragan Co. vs. Traders' Ins. Co., 121 Ga. 230, 48 S. E. 918, 104 Am. St. Rep. 99. (For other cases, See Insurance, Cent. Dig. §§ 1406, 1407, 1409; Dec. Dig. § 561.) Error from City Court of Floyd County; W. J. Nunnally, Judge. Action by J. M. Smith and others against the Western Assurance Company of Canada. There was a judgment of nonsuit, and plaintiffs bring error. Affirmed. C. I. Carey and M. B. Eubanks, both of Rome, for Plaintiffs in Error. * Decision rendered, July 19, 1916. 89 S. E. Rep. 533. Syllabus by the Court. GLOBE & RUTGERS FIRE INS. CO. vs. INDIANA REDUCTION CO. (No. 9059.)* (Appellate Court of Indiana, Division No. 1.) 3. INSURANCE—WAIVER-KNOWLEDGE OF GENERAL AGENT. An insurance company is charged with its general agent's knowledge of assured's use of gasoline contrary to a provision of the policy. (For other cases, see Insurance, Cent Dig. §§ 968, 975-997; Dec. Dig. § 378[1].) 4. INSURANCE WAIVER BROKER. KNOWLEDGE OF INSURANCE An insurance company is charged with the knowledge of an insurance broker, obtained while acting within the scope of his authority as agent for the company, as to assured's use of gasoline contrary to a provision of the policy. (For other cases, see Insurance, Cent. Dig. 968, 975-997; Dec. Dig. § 378[1].) 5. INSURANCE ACTIONS SUFFICIENCY OF EVIDENCE ACTUAL KNOWLEDGE OF INSURANCE COMPANY. Evidence held to sustain a finding that an insurance company, through its general agent and insurance broker, had actual knowledge of assured's use of gasoline contrary to a provision of the policy. (For other cases, see Insurance, Cent. Dig. § 1725; Dec. Dig. § 665[8].) 6. INSURANCE - WAIVER ISSUANCE OF POLICY-EXISTING BREACH. Where an insurance company issues a policy with actual or constructive knowledge that the assured is using an article prohibited by its terms, the issuance waives the prohibition. (For other cases, see Insurance, Cent. Dig. § 1028; Dec. Dig. § 389[1].) 7. INSURANCE-WAIVER-ISSUANCE OF RIDER. An insurance policy rider, which redistributed the insurance and included new property, held to constitute a new insurance contract, within the rule that the issuance of the policy with knowledge of assured's use of a substance prohibited by its terms waives such prohibition. (For other cases, see Insurance, Cent. Dig. §§ 1028, 1031; Dec. Dig. § 389[8].) 8. INSURANCE-ACTIONS-SUFFICIENCY OF EVIDENCE-CONSTRUCTIVE KNOWLEDGE OF INSURER. Evidence held to sustain a finding that an insurance company had constructive notice of assured's use of gasoline, especially where a rider mentioned the property as a degreasing plant and the testimony indicated that gasoline was used in such plants. (For other cases, see Insurance, Cent. Dig. § 1725; Dec. Dig. § 665[8].) 9. INSURANCE WAIVER TUTES. KNOWLEDGE WHAT CONSTI -- An insurance company is presumed to be familiar with the substances used in assured's business. (For other cases, see Insurance, Cent. Dig. § 1658; Dec. Dig. § 646[5].) * Decision rendered, June 27, 1916. 113 N. E. Rep. 425. Appeal from Circuit Court, Marion County; Charles Remster, Judge. Action by the Indiana Reduction Company against the Globe & Rutgers Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed. James Bingham and Elam, Fesler & Elam, all of Indianapolis, for Appellant. Monks, Robbins, Starr & Goodrich, of Indianapolis, for Appellee. E. H. EMERY & CO. vs. AMERICAN INS. CO. OF NEWARK, N. J. (No. 30663.)* (Supreme Court of Iowa.) 3. INSURANCE-CONSTRUCTION OF POLICY “EJUSDEM GENERIS" "OTHER MERCHANDISE." Under the doctrine of ejusdem generis, that general words used in a contract after specific terms are limited to things of like kind and nature with those specified, in a policy of fire insurance on "stock of fruit and vegetables, * * and all other merchandise," "all other merchandise" had reference to the same kind of merchandise, and did not cover a loss of ice cream. * (For other cases, see Insurance, Cent. Dig. § 346; Dec. Dig. § 163[5].) 4. INSURANCE-CONSTRUCTION OF POLICY-CONSTRUCTION OF CONTRACT AS A WHOLE-"OTHER FURNITURE AND FIXTURES." In a policy of fire insurance on “furniture and fixtures to include shelving, partitions, furniture, iron safes, stationery, gas and electric light fixtures, stoves, scales, tools, and all other furniture and fixtures," the term "furniture and fixtures" would not include ice cream freezers and testers forming a distinctive department installed subsequent to the policy, although considered as fixtures, since the rule of ejusdem generis must yield to the rule that a contract must be construed as a whole. (For other cases, see Insurance, Cent. Dig. § 346; Dec. Dig. § 163[5].) 5. INSURANCE-CONSTRUCTION OF POLICY-CONSTRUCTION OF CONTRACT AS A WHOLE-"OTHER APPARATUS AND MERCHANDISE." In a policy of fire insurance on ice cream machines and carriers, the subsequent general words, "all other apparatus and merchandise herein not mentioned used in the manufacture of ice cream," not being limited to the previous specific terms, dealing with the same subject, cover ice cream freezers and testers. (For other cases, see Insurance, Cent. Dig. § 346; Dec. Dig. § 163[5].) 6. INSURANCE-CONSTRUCTION OF POLICY-CONCURRENT INSURANCE. Policies of fire insurance upon a general stock of fruits, vegetables, furniture, and fixtures, do not cover a subsequently acquired ice cream * Decision rendered, June 29, 1916. 158 N. W. Rep. 748. department, being property concededly not of a like kind or description, and are not concurrent insurance, and the doctrine of shifting risk, that a policy on constantly changing stock covers that which is in hand at the time of the loss, does not apply. (For other cases, see Insurance, Cent. Dig. § 346; Dec. Dig. § 163[5].) Appeal from District Court, Wapello County; Francis M. Hunter, Judge. McNett & McNett, of Ottumwa, for Appellant. Chester W. Whitmore, of Ottumwa, for Appellee. FISK vs. FIRE ASS'N OF PHILADELPHIA. (No. 229.)* (Supreme Court of Michigan.) 1. INSURANCE-PROOFS OF LOSS-WAIVER-POWERS OF AD JUSTER. A fire insurance adjuster is authorized to waive presentation of proofs of loss by denying the company's liability, especially where the company later advised plaintiff that the entire matter had been referred to the adjuster. (For other cases, see Insurance, Cent. Dig. §§ 1375, 1376; Dec. Dig. § 556[2].) -- 2. INSURANCE ACTIONS SUFFICIENCY OF EVIDENCE WAIVER-DENIAL OF LIABILITY. Evidence held to sustain a verdict that a fire insurance company's adjuster denied liability and thereby waived presentation of proofs of loss. (For other cases, see Insurance, Cent. Dig. § 1725; Dec. Dig. § 665[8].) Error to Circuit Court, Sanilac County; Watson Beach, Judge. Action by Charles Fisk against the Fire Association of Philadelphia. From judgment for plaintiff, defendant brings error. Affirmed. Argued before Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, J.J. Phillips & Jenks, of Port Huron, for Appellant. Fred A. Farr, of Sandusky (C. F. Gates, of Sandusky, of counsel), for Appellee. * Decision rendered, July 21, 1916. 158 N. W. Rep. 947. POPA vs. NORTHERN INS. CO. OF NEW YORK. (No. 253.)* (Supreme Court of Michigan.) 1. INSURANCE-PROOFS OF LOSS-WAIVER-POWER OF AD JUSTER. A fire insurance adjuster is presumably authorized to waive presentation of the proofs of loss by denying the company's liability. (For other cases, see Insurance, Cent. Dig. §§ 1375, 1376; Dec. Dig. 556[2].) 2. INSURANCE-PROOFS OF LOSS-WAIVER-DENIAL OF LIABILITY-FIRE INSURANCE. Rejection of a fire insurance claim waives presentation of the proofs of loss. (For other cases, see Insurance, Cent. Dig. §§ 1391, 1392; Dec. Dig. § 559[1].) 3. INSURANCE-ACTIONS-WAIVER OF LIMITATION-DENIAL OF LIABILITY. A fire insurance policy provision, that suit could not be brought within sixty days after presentation of the proofs of loss, is waived by the company's denial of liability. (For other cases, see Insurance, Cent. Dig. § 1551; Dec. Dig. § 623[4].) 4. INSURANCE-ACTIONS-ADMISSIBILITY OF EVIDENCE-VALUATION OF PROPERTY. Testimony as to the price paid for insured's household goods about one year before the fire, the amount of wear they received, and their condition at the date of the fire is competent evidence of their value when burned. (For other cases, see Insurance, Cent. Dig. § 1695; Dec. Dig. § 660.) Error to Circuit Court, Wayne County; Kelly S. Searl, Judge. Action by Andrew Popa_against the Northern Insurance Company of New York, a corporation. Judgment for plaintiff, and defendant brings error. Affirmed. Argued before Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ. Frederick J. Ward, of Detroit, for Appellant. James I. Ellmann, of Detroit (Walter Phillips, of Detroit, on the brief), for Appellee. * Decision rendered, July 21, 1916. 158 N. W. Rep. 945. |