(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 3 36 (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, (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. Houseman vs. 223 Burden of proving fraud is upon insurer. Greenberg vs. Firemen's 305 Plaintiff has burden of proving value. Strawbridge vs. Standard Fire 320 330 Burden of proving that death of insured was caused by third person, 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, Burden of proof of waiver of additional insurance clause would rest on Where insured after refusal by insurer to defend a claim against him 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- (658) Exclusion of question concerning wiring of house was not error. Chunn 330 26 365 506 317 197 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 63 85 Evidence held to show that after policy's issuance, insured had made 48 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.). ... 152 159 160 164 165 Evidence held to show notice and proofs of loss were given to insurer. 235 243 320 Where evidence of suicide is circumstantial, defendant fails, unless by being jolted against top of automobile and falling back onto 353 355 391 415 417 Evidence sufficient to warrant a finding that appraisement of loss was 420 427 429 (665) In action by owner of building against company for indemnity for Evidence made out a prima facie case of felonious abstraction, putting (666) On the facts stated, attorney's fees could not be recovered. 549 556 591 670 656 Springfield 652 40 Madsen .... 48 116 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, Whether the policy had been canceled prior to fire was for jury. Doherty Whether the plaintiff addressed and mailed to defendant a request for 115 141 161 228 197 235 220 184 298 The facts indicating suicide raised an issue of fact for the jury. Brom- 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) ..... Instructions as to knowledge of insured of false statements were not 664 40 160 317 488 507 664 8 (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.). ..... (692) Fraternal order is entitled to establish branches outside of state even in the absence of express or explicit authority. National 165 506 |