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(631) Copy of, policy attached to the petition should be considered part thereof. Friend vs. Southern States Life Ins. Co. (Okla.). (634) Waiver should be pleaded by the one relying thereon. Hartford Fire Ins. Co. vs. Mathis (Okla.)..... Compliance with this stipulation requiring assured to render statement as to time and origin of fire was in absence of extension of time, a condition precedent to recovery. Bailey vs. First Nat. Fire Ins. Co. of Wash., D. C. (Ga.). There was no error in dismissing the petition, as it was subject to the demurrer interposed. McAfee vs. Dixie Fire Ins. Co. (Ga.). (635) Holder of liability policy under which insurer was bound to indemnify the policyholder against loss not exceeding $5,000 and to defend suit, he could not recover more than $5,000 because of insurer's failure to defend an action resulting in a default, judgment for $15,000 without alleging and proving a meritorious defense to the action against it. Maryland Casualty Co. vs. Price et al. (U. S.) Allegations relating to claim for attorney's fees and damages as provided in statute were sufficient to withstand general demurrer. Rogers vs. American Nat. Ins. Co. (Ga.).. Insured must plead visible marks of force in accordance with the terms of the policy in order to recover. Danerhirsch vs. Great Eastern Casualty Co. (N. Y.)..

(638) Plaintiff, desiring to recover, must by his petition show that he claims and is entitled thereto. Fay vs. Etna Life Ins. Co. (Mo.). (639) Complaint need not allege that fire did not result from causes from which insurer was not liable. St. Paul Fire & Marine Ins. Co. vs. Laster (Tex.)

627

109

217

218

143

556

669

441

426

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(640) Answer showing reasonable offer, etc, constitutes good defense. Metropolitan Life Ins. Co. vs. Solomito (Ind.). It is not enough for plea to allege that assured falsely warranted that he had not been attended by a physician for a serious disease. Metropolitan Life Ins. Co. vs. G odman (Ala.)....... Defense of premature suit is in nature of plea in abatement and not a plea in bar, and must be specifically pleaded. Young vs. Pennsylvania Fire Ins. Co. (Mo.).. 420 Defense of false answers constituting warranty is not admissible under general denial. National Live Stock Ins. Co. vs. Owens (Ind.).. 674 (641) The word "settlement" has at times broader significance than of payment and satisfaction. Young vs. Pennsylvania Fire Ins. Co. (Mo.) (642) Trustee for minor son of insured is proper party to maintain an action for unpaid insurance. Ward vs. Bankers' Life Co. (Neb.). (645) Evidence seeking to establish a waiver or estoppel was improperly received. Hartford Fire Ins. Co. vs. Mathis (Okla.). Where insurer admitted liability, paying into the court amounts of policies and withdrawing their answers, denying liability, so that the only thing left for trial was whether complainant was titled to statutory penalty for failure to pay within sixty days after demand, issues as to whether the fire was accidental are immaterial and are not to be submitted. De Rossett Hat Co. vs. London & Lancashire Fire Ins. Co. et al. (Tenn.)...

en

It is sufficient pleading of waiver in an action on an accident policy,
to authorize the showing of conversations with defendant's agents,
for plaintiff to plead that he was informed by defendant that
further proofs of loss were unnecessary. Commonwealth Bonding
& Casualty Ins. Co. vs. Bryant (Tex.)....
Where damages for vexatious refusal are appropriately alleged, they
may be proven by any competent evidence which tends to es-
tablish the main issue. Fay vs. Ætna Life Ins. Co. (Mo.)..
Estoppel or waiver of conditions in certificate in order to be available
must be specifically and distinctly pleaded. Wolff vs. German-
American Farmers' Mut. Ins. Co. (Okla.).

(646) Plaintiff had burden of showing that insured was in sound health on date of policy. Fondi vs. Boston Mut. Life Ins. Co. (Mass.).. Insurer seeking to avoid policy on ground of false warranty, has burden of proving that warranty increased the risk. Pack vs. Prudential Casualty Co. (Ky.)...

420

49

109

110

139

441

544

115

On insurer rests burden of proving breach of condition.
Home Ins. Co. (W. Va.)

Houseman vs.

223

Burden of proving fraud is upon insurer. Greenberg vs. Firemen's
Ins. Co. (N. Y.)

305

Plaintiff has burden of proving value. Strawbridge vs. Standard Fire
Ins. Co. (Mo.).

320

330

Burden of proving that death of insured was caused by third person,
not beneficiary, this constituting an accident within the meaning
of the policy, is upon plaintiff. McAlpine vs. Fidelity & Casualty
Co. (Minn.)
"Felonious abstraction" could not be presumed or inferred from a
mere loss. Stich vs. Fidelity & Deposit Co. (N. Y.)..
On the facts stated in an action principally for damages for breach of
355
covenant to execute and deliver supplementary contract and it did
not appear that insured died by his own act, beneficiary was

entitled to recover and the measure of damages is the value of the installment payments as provided in the policy, reduced to their present value. Metropolitan Life Ins. Co. vs. Day (Ga.).... 381 Company seeking to avoid payment because of forfeiture must prove that assessment was levied in accordance with contract. Barber vs. Hartford Life Ins. Co. (Mo)...... Company is presumed to be familiar with the substances used in assured's business. Globe & Rutgers Fire Ins. Co. vs. Indiana Reduction Co. (Ind)

391

415

426

Where insured premises are a total loss, no showing or proof of amount,
etc., of loss is necessary, for, since the policy sum is by the statute
converted into a liquidated demand, suit may De commenced
on it as on any other demand where amount due has been
ascertained. Glens Falls Ins. Co. vs. Walker (Tex)..
Insurer has burden of proving that assured committed suicide Burden
of proving, upon entire evidence, that death was accidental rests
upon plaintiff, despite presumption that a violent death was
accidental. Postler vs. Travelers' Ins Co. (Cal).
There being no evidence the policy was given agent for unconditional
delivery, it cannot be presumed that in further questioning the
beneficiary in absence of insured, agent acted at variance
with instructions. Fitzgerald vs. Metropolitan Life Ins. Co (Vt). 507
Burden of proof of mutual cancellation is on insurer. Bragg vs Royal
Ins. Co (Me.)...
510

Burden of proof of waiver of additional insurance clause would rest on
the insured asserting it. Liverpool & London & Globe vs. Hughes
(Ga.)

Where insured after refusal by insurer to defend a claim against him
for $5,000 and after suit had been brought, but before trial,
settled claim by payment of $500 and paid his attorney $100,
which was conceded to be a reasonable fee, and in an action
against insurer for breach of contract to defend insured, in court,
on request of both parties for directed verdict, court directed a
verdict for insured for $600, though there was no proof of liability
of the insured, it was error to set aside the verdict rendered
pursuant to such direction. Lawrence VS. Mass. Bonding Ins
Co. (N. Y.)
beneficiary Seaback VS. Metro-

Burden of proving waiver is on politan Life Ins. Co. (Ill) (648) Evidence as to various charges in pleadings and in avoidance of the issue of settlement, were competent to show vexatious delay. Fay vs. Etna Life Ins. Co. (Mo.). (651) Evidence of previous dealings with deceased and others and general manner of doing business through agent was admissible. Hartwig vs. Etna Life Ins. Co. (Wis.). Where company claimed that policy had been canceled by mutual consent, assured's explanation that he understood policy was void only during certain foreclosure proceedings is admissible, where conversation was somewhat ambiguous. Glens Falls Ins Co. vs. Walker (Tex) Under issue where fire policy was intended to become effective before approval of general agents, undisclosed intention of insurer's general agent admissible. Fire Ass'n of Phila. VS. Powell (Tex.)

a

429

541

531

615

442

235

427

549

629

Provisions of insurer's constitution and by-laws not brought to insurer's knowledge could not be resorted in order to furnish authority for change without consent of beneficiary. Jones VS. North Carolina Mutual & Provident Ass'n (S. C.). (654) It was not error for court to confine representations to those concerning cancer of womb. Parrish vs. American Nat. Ins. Co. (N. C.).. 51 (654) The ruling out of testimony, the words "the expression as to prac tice" was not error. The company cancelled because of nonpayment of note and court did not err in directing verdict for company. Dunn vs. Columbian Nat. Life Ins Co. (Ga)... (655) Application admissible under clause providing for reduction of policy in case of misrepresentation of age. Edelson vs. Metropolitan Life Ins. Co. (N. Y.)..

Question whether applicant could read or write immaterial on ques-
tion of binding force of representation, but whether he applied
for policy in another company, question whether he could read
or write is material. American Temperance Life Ins. Ass'n vs.
Solomon et al. (U. S.)...
Where not permisible because of incontestability clause to show that
insured committed fraud in obtaining policy, it was also not per-
missible to show beneficiary participated in such fraud. Southern
Union Life Ins. Co. VS White (Tex)

(658) Exclusion of question concerning wiring of house was not error. Chunn
vs. London & Lancashire Fire Ins. Co. (Ark.)..
(660) Speculative, collateral, and immaterial offers to prove the value of
drawings and patterns were properly excluded. Doherty et al vs.
Phoenix Ins. Co. (Mass.).

330

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365

506

317

197

Evidence of depreciation cannot be shown by proof that because it had been used it would sell for a less sum than if not second-hand. Strawbridge vs. Standard Fire Ins. Co. (Mo.)...

320

Testimony as to price paid for household goods about one year before fire, amount of wear, etc., is competent evidence of value when burned. Popa vs. Northern Ins. Co. (Mich.).. (664) Admission of the evidence as to the conversations with the agents prior to and at time policy was issued, and subsequently respecting incumbrances, was not error. Gold Issue Min. & Mill. Co. vs. Pennsylvania Fire Ins. Co. of Philadelphia (Mo.).. (665) On the facts stated the evidence sustained a verdict for the beneficiary. Tromblee vs. North American Acc. Ins. Co. (N. Y.)..... Evidence showed that loss was substantially less than verdict. Niagara Fire Ins. Co. vs. Layne (Ky.).....

418

105

134

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Evidence held to show that after policy's issuance, insured had made
conditional sale of property on security of a chattel mortgage
and had received payments of part of buyer's notes before the
loss. Fire Ass'n of Philadelphia vs. Perry et al. (Tex.)
Testimony of persons who associated daily with insured cannot be
set aside as devoid wholly of evidentiary value. Bruck VS.
John Hancock Mut. Life Insurance Co. (Mo.)..
Evidence sufficient to warrant a finding that death of insured was
result of an accident. Standard Acc. Ins. Co. vs. Broom (Miss.). 137
Where condition of liability was proof of loss of jewelry, where the cir-

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cumstances did not show the method of loss or inhibit an inference of misplacement, etc., will not warrant a judgment against insurer. Polstein vs. General Acc. Fire & Life Assur. Corp. (N. Y.). 157 Where automobile policy conditioned to save owner harmless from injuries caused by car required motorist to, in good faith, cooperate with the insurer in defending actions, a finding by the jury that motorist failed to comply with such condition, was warranted by evidence. Collins's Ex'rs vs. Standard Acc. Ins. Co. (Ky.)

As the cattle were insured in a class, and only one of the cows was killed, the evidence did not justify recovery. McCrary et al. vs. Farmers' Mut. Ins. Co. (Mo.).

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Evidence held to show notice and proofs of loss were given to insurer.
Gueringer vs. Fidelity & Deposit Co. of Md. (Mo.).
Evidence held to show that judgment in favor of employee against in-
sured
was not result of collusion and fraud. United States
Fidelity & Guaranty Co. vs. Pressler (Tex.)...
Testimony that witness sent two letters, return addressed, to insured,
and that they were not returned, is insufficient to show notice in
opposition to positive testimony that they were not received.
Evidence held to show that insured had no notice of an accident
covered by his indemnity policy until institution of suit therefor,
by one injured in his elevator, so as to excuse his failure to
notify the insurer prior to such sult. Shafer et al. vs. United
States Casualty Co. (Wash.)...
Unexplained delivery of a policy of insurance without payment of
premium is prima facie proof of an extension of credit. Hartwig
vs. Etna Life Ins. Co. (Wis.)
Evidence warranted finding that death resulted from injuries alone and
not proximately from disease. Hickey vs. Ministers' Casualty
Union (Minn.)
Where it appeared that part of goods were destroyed by fire, the fact
that they had been removed from dwelling which burned, evi-
dence warranted a finding that insured exercised reasonable care.
Campbell et al. vs. Germania Fire Ins. Co of N Y. (Wis)...... 224
Held not to show an agreement to extend payment of premium note.
Wichita Southern Life Ins. Co. vs. Roberts (Tex.)....
189
Evidence warranted finding that automobile at time of destruction
was worth sum fixed in policy. Strawbridge vs. Standard Fire Ins.
Co. (Mo.)

235

243

320

Where evidence of suicide is circumstantial, defendant fails, unless
circumstances exclude with reasonable certainty any hypothesis
of death by accident or by the act of another. Parrish vs.
Order of United Commercial Travelers of America (U. S.).... 324
Evidence sustained verdict that plaintiff's paralytic condition was caused

by being jolted against top of automobile and falling back onto
surgical case. Foster Vs. North American Accident Ins. Co.
(Iowa)
Burglary policy. Evidence that rings were placed in a box which only
two persons were authorized to open and that neither of these
took them, but they were missing, showed a probable abstraction
by an unauthorized person with felonious intent. Stich VS.
Fidelity & Deposit Co. (N. Y.)...
Jury may assess punitive damages upon concluding that its refusal to
pay was vexatious and no explicit proof is necessary. Barber
VS Hartford Life Ins. Co. (Mo.)..
Evidence sufficient to sustain finding that company through general
agent and broker, had actual knowledge of assured's use of
gasoline Globe & Rutgers Fire Ins. Co. vs. Indiana Reduction
Co. (Ind)
Evidence sufficient to sustain a verdict that fire insurance company's
adjuster denied liability and thereby waived presentation of
proofs of loss. Fisk vs. Fire Ass'n (Mich.)...

353

355

391

415

417

Evidence sufficient to warrant a finding that appraisement of loss was
fraudulent. Young vs. Pennsylvania Fire Ins. Co. (Mo.)...
Evidence sufficient to sustain verdict that policy was delivered to
assured. Glens Falls Ins. Co. vs. Walker (Tex.)..
Evidence sustained verdict that assured did not commit suicide. Post-
ler vs. Travelers' Ins. Co. (Cal.)...........

420

427

429

(665) In action by owner of building against company for indemnity for
amounts paid to persons injured when cornice fell, evidence held
sufficient to support a finding that injuries caused by negligence
of insured and that they were properly chargeable to it by law.
De Mun Estate Corp. vs. Frankfort General Ins. Co. (Mo.)...... 463
Evidence brought beneficiary within rule that misrepresentations made
as to party's own knowledge if false in fact, are inferred to
have been wilfully false if unexplained. Fitzgerald vs. Metro-
politan Life Ins. Co. (Vt.)..
507
Evidence sufficient to sustain finding the property was covered by a
parol contract. Ferrar vs. Western Assur. Co. (Cal.)..
539
Evidence sufficient to sustain verdict that policy was intended to take
effect without waiting for approval by company's general agents.
Fire Ass'n of Phila. vs. Powell (Tex.)...
Evidence failed to support allegations as to extension of time of
payment of premiums and a judgment of nonsuit was proper.
Rogers vs. American Nat. Ins. Co. (Ga.)...
On facts stated, the evidence was sufficient to justify submission to
jury and sufficient to support verdict. Griffith VS. Frankfort
General Ins. Co. (N. D.).

Evidence made out a prima facie case of felonious abstraction, putting
the insurer to its proof with respect thereto. Haas vs. Fidelity
& Deposit Co of Maryland (N. Y.)..
There was sufficient evidence to warrant an inference that there had
been a waiver of the iron-safe clause. American Cent. Ins. Co.
of St. Louis Mo., vs. Sinclair (Okla.)...

(666) On the facts stated, attorney's fees could not be recovered.

549

556

591

670

656

Springfield

652

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Madsen

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Fire & Marine Ins. Co. vs. Fields (Vt.)... (668) Whether insured at time the policy was delivered was in such condition of health as met its express conditions was for the jury. National Life & Accident Ins. Co. vs. Langford (Ark.).. Whether company accepted premium after lapse was for jury. vs. Prudential Ins. Co. of America (Mo.). Evidence held to make plaintiff's injury or disability a question for the jury. Levy vs. Fidelity & Casualty Co. of N. Y. (N. Y.).... 137 Evidence insufficient to show any reasonable connection between a sunstroke July 6th and a death by pneumonia July 10th, and direction of verdict for defendant was proper. Pack vs. Prudential Casualty Co. (Ky.)... Question whether his warranty that he was in sound condition increased the risk within statute so as to avoid the policy held for the jury. Pack vs. Prudential Casualty Co. (Ky.).. Where notice was required to be given as soon as possible and notice was mailed to local agents nineteen days after death of insured, refusal to hold as a matter of law that the notice was not timely is not error. Tromblee vs. North American Acc. Ins. Co. (N. Y.). 184 Where evidence tended to show that other diseases caused paralysis, defendant was entitled to have the issue as to whether such diseases caused paralysis submitted to jury. Western Indemnity Co. et al. vs. MacKechnie (Tex.).... Evidence held to sustain allegations that safe was broken into with tools in specific manner required by policy. Goldman vs. New Jersey Fidelity & Plate Glass Ins. Co. (Mo.).

Question whether renewal premium having been paid and accepted,
insurance was extended, was for the jury. Pacific Mut. Life Ins.
Co. vs. Vogel (U. S)....

Whether the policy had been canceled prior to fire was for jury. Doherty
et al. vs. Phoenix Ins. Co. (Mass)
Question whether agent told deceased policy would not go into effect
until premium was paid, being subject to doubt because of cir-
cumstances bearing on his credibility, was for the jury. Hartwig
vs. Etna Life Ins. Co. (Wis.)...

Whether the plaintiff addressed and mailed to defendant a request for
vacancy permit was for the jury. Patterson vs. American Ins.
Co. of Newark, N. J. (Mo)....

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141

161

228

197

235

220

184

298

The facts indicating suicide raised an issue of fact for the jury. Brom-
berg vs. North American Life Ins. Co. (Mich.).
Whether there was material change in risk was for jury. King vs.
Hartford Fire Ins. Co.-King vs. Springfield Fire & Marine Ins.
Co. (Minn.)
Evidence sufficient to warrant court in refusing to direct a verdict
that insured did not commit suicide. Parrish VS. Order of
United Commercial Travelers of America (U. S.)...
Court properly decided that answers were material to risk, but left to
jury whether answers were false. American Temperance Life
Ins. Ass'n vs. Solomon et al. (U. S.)...

324

365

400

429

441

507

542

548

546

Whether insurer was notified of agent's interest was for jury, and whether agent in attaching rider allowing other insurance without permission of insurer, acted fraudulently, was for the jury. Spring Garden Ins. Co. vs. Wood (U. S.).. Construction of written provision of policy as to extent of insurer's liability was a question for court, and not for the jury. Fireman's Ins Co. vs. Jesse French Piano & Organ Co. et al. (Tex.). 125 Instruction stating the rule for interpreting exceptions in policy, is improper, for such interpretation is for court, not for jury. Postler vs. Travelers' Ins. Co. (Cal.).. Where issue as to vexatious delay is not made out by proof, court should take such issue from jury by appropriate instruction. Fay vs. Etna Life Ins. Co. (Mo.).. Materiality of representations as to residence, occupation and financial condition is ordinarily for jury. Fitzgerald vs. Metropolitan Life Ins. Co. (Vt.)...... Question of acceptance of oral application was for jury. Leonard vs. Farmers' Mutual Fire Ins Co. (Mich).. Evidence sufficient to require submission to jury issue whether there was a mutual cancellation. Westchester Fire Ins. Co. vs. McMinn (Tex.) Authority of insured's attorneys to accept notice of cancellation and substitution was for jury. Glasscock vs. Liverpool & London & Globe Ins Co. (Tex ). Whether hernia was of such nature as to render insured unsound is question of fact for jury. Hines vs. New England Casualty Co. (N. C.) (669) Instructions submitting question whether member was guilty of fraud should have been given. Mutual Aid Union et al. vs. Blacknall (Ark.) Instruction that if jury found money belonging to plaintiff was stolen from safe and if further found that same was lost to the plaintiff, referring thereafter to "such loss" was not erroneous as misleading the jury. Gueringer vs. Fidelity & Deposit Co. of Md. (Mo.) Where insurer set up falsity of warranty contained in the policy, a charge that while persons are presumed to know the contents of contract which they sign or accept, presumption is not conclusive, was warranted. Pack vs. Prudential Casualty Co. (Ky.). 115 Instruction relating to amount of loss which recalled to jury that many articles of personalty were totally destroyed or damaged is not objectionable as suggesting that none of the personal property was saved. Campbell et al. vs. Germania Fire Ins. Co. of N. Y. (Wis.). 224 Instructions that if beneficiary induced insurer's agent to deliver policy by false representations, policy never took effect, correct and applicable Fitzgerald vs. Metropolitan Life Ins. Co. (Vt.).. 508 Defense being incendiarism, refusal of plaintiff's instruction, that she had right to remove goods from her house without notice to company is not error since jury could well regard removal as highly important. Chunn vs London & Lancashire Fire Ins. Co. (Ark)

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Instructions as to knowledge of insured of false statements were not
erroneous. Oplinger vs. New York Life Ins. Co. (Pa).....
Instruction that transmission of policy to agent was delivery to insured
was erroneous, in view of evidence tending to show fraud. Fitz-
gerald vs Metropolitan Life Ins. Co. (Vt.)..
Instructions held to properly state when one is "confined." Hines vs.
New England Casualty Co. (N. C.).....

664

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488

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(670) Verdict not inconsistent with finding that beneficiary indorsed check, but money was never received by her. Shea vs. Manhattan Life Ins. Co. (Mass.) Statute allowing reasonable attorney's fee is applicable to contracts executed before its enactment. Ward vs. Bankers' Life Co. (Neb.) 49 Under an indemnity policy, requiring insurer to defend actions, allowance of costs, attorney's fees, and witness and reporting fees to insured, who sued on a breach of the policy, is proper. Shafer et al. vs. United States Casualty Co. (Wash.). (675) Where demand for payment of loss was not made thirty days before filing of original petition, but an amended petition, alleging such demand was filed more than thirty days after demand, plaintiff was entitled to recover 12 per cent penalty and attorney's fees. Southern Union Life Ins. Co. vs. White (Tex.).

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(692) Fraternal order is entitled to establish branches outside of state even in the absence of express or explicit authority.

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