On Petition for Rehearing. MUTUAL BENEFIT INSURANCE-COMMENCEMENT OF LIABILITY. A by-law of a mutual benefit association provided that its liability upon a certificate should not begin until the certificate had been delivered to the member who was then in sound health. Held, that it was a provision for the purpose of protecting the association from liability in consequence of a disease contracted by a member subsequent to his application, and before delivery of the certificate to him. (For other cases, see Insurance, Cent. Dig. § 1856; Dec. Dig. § 720.) QUICK ET AL. vs. MODERN WOODMEN OF AMERICA, INC. (No. 16,657.)* (Supreme Court of Nebraska.) MUTUAL BENEFIT INSURANCE-ASSOCIATIONS-BY-LAWS -EVIDENCE. Minutes of the proceedings of the legislative body of a fraternal beneficiary association, by merely reciting that a section of the by-laws has been amended and repealed, do not prove that the provisions of the original section have been eliminated from the by-laws, where neither the original nor the amended section is disclosed. (For other cases, see Insurance, Cent. Dig. § 1833; Dec. Dig. § 693.) MUTUAL BENEFIT INSURANCE-ASSOCIATIONS-BY-LAWS. The simultaneous repeal and re-enactment, in terms or in substance, of parts of a by-law of a fraternal beneficiary association, preserve without interruption the re-enacted provisions of the original by-law. (For other cases, see Insurance, Cent. Dig. § 1833; Dec. Dig. § 693.) MUTUAL BENEFIT INSURANCE-ACTIONS-INSTRUCTIONS. Where defendant's pleadings and proofs in a suit on a fraternal beneficiary certificate tend to show that assured changed his occupation from painter to locomotive fireman, that he was killed while engaged in the duties of his new employment, and that the change was made under conditions releasing defendant from liability under the terms of the insurance contract, it is error for the trial court to refuse an instruction that plaintiff is not entitled to recover, if the jury find the facts to be as stated. (For other cases, see Insurance, Cent. Dig. § 2010; Dec. Dig. § 826.) * Decision rendered, March 26, 1912. 135 N. W. Rep. 433. Syllabus by the Court. JONES vs. NEW YORK LIFE INS. CO.* (Supreme Court of Oklahoma.) FORFEITURE-WHAT LAW GOVERNS. Where an application for life insurance provided that the contract contained in the policy and the application "shall be construed according to the law of the state of New York, the place of said contract being agreed to be the home office of said company in the city of New "York," the provisions of the New York law, requiring a notice to be given as a condition precedent to forfeiting or lapsing the policy, apply to and govern the policy issued; and the policy remains in force until notice is given, or until it is canceled by agreement of the parties, notwithstanding a premium is not paid when due, and notwithstanding a provision in the policy to the effect that, if any premium is not paid when due, the policy shall become void, and all payments previously made shall remain the property of the company. (For other cases, see Insurance, Cent. Dig. § 894; Dec. Dig. § 351.) FORFEITURE-WHAT LAW GOVERNS. Where, by stipulation contained in the application, the law of the state of New York applies to and governs a life insurance policy, and where the policy provides that the company will make loans on it, and that interest shall be paid on the loan, and where the loan agreement provides that all the conditions, limitations, and requirements of the policy, except as expressly modified in the loan contract, remain in force, the policy cannot be forfeited for nonpayment of the interest on the loan, or nonpayment of a premium, or both, without notice, as required by the New York law, although the loan contract also provides "that in the event of default in payment of said interest, or of any premium on said policy, for one month after they shall respectively become due said party of the first part (company), which is hereby irrevocably appointed attorney for that purpose, is hereby authorized at its option to cancel said policy and its accumulations for the customary cash surrender value," and, retaining the loan and other indebtedness, to pay the balance of the cash surrender value to the insured. (For other cases, see Insurance, Cent. Dig. § 894; Dec. Dig. § 351.) ACTIONS ON POLICIES-BURDEN OF PROOF. The burden is upon the company, in a suit upon a life insurance policy, to show that it has given notice of forfeiture in accordance with the law of New York. (For other cases, see Insurance, Cent. Dig. §§ 1645-1668; Dec. Dig. § 646.) ACTIONS ON POLICIES-QUESTION FOR JURY. Evidence in this case held sufficient to require the submission to the jury of the question whether or not the insured was in such a mental condition as to be incapable of agreeing to a cancellation of a life insurance policy. (For other cases, see Insurance, Cent. Dig. §§ 1732-1770; Dec. Dig. § 668.) ACTIONS ON POLICIES-CONDITIONS PRECEDENT-TENDER. It is not necessary to tender money received from a life insurance company in settlement of the excess of the cash surrender value over a loan on the policy before bringing suit on the policy, where it is certain the tender will be refused. (For other cases, see Insurance, Cent. Dig. §§ 1520-1528; Dec. Dig. § 612.) * Decision rendered, March 19, 1912. 122 Pac. Rep. 702. Syllabus by the Court. IN RE MILMINE.* (Surrogate's Court of New York. Schenectady County.) MUTUAL BENEFIT INSURANCE—BENEFICIARY ENTITLED. A person holding a membership certificate in a mutual benefit association was advised by the company, upon communication of his desire to have a friend named as beneficiary, that he would have to have the certificate made payable to his "executors or administrators," and provide for the payment of the proceeds to the friend by will. This suggestion was adopted, and the will of insured specifically bequeathed the proceeds of the policy to the friend. Held, upon the death of the insured and the payment into court of the amount of the policy, the person designated in accordance with such advice was entitled to the proceeds as against the next of kin. (For other cases, see Insurance, Cent. Dig. § 1973; Dec. Dig. § 795.) *Decision rendered, March, 1912. 134 N. Y. Supp. 553. HANNA vs. MINNESOTA MUT. LIFE INS. CO.* (Supreme Court of Missouri, Division No. 2.) AGENTS-AUTHORITY TO SELL NOTES. Authority to a general insurance agent to sell premium notes is not permission to convert the proceeds to the agent's own use. (For other cases, see Insurance, Cent. Dig. §§ 117, 118; Dec. Dig. § 88.) *Decision rendered, March 21, 1912. 145 S. W. Rep. 412. GREEN vs. KNIGHTS AND LADIES OF SECURITY ET AL.* (Court of Appeals of Kentucky.) MUTUAL BENEFIT INSURANCE-BENEFICIARIES-DIVORCE. By divorcing her husband, a wife, named as the beneficiary of a mutual benefit insurance policy, loses her right to claim under it; such insurance being for the special benefit of the member's family. (For other cases, see Insurance, Cent. Dig. §§ 1936-1938; Dec. Dig. § 769.) * Decision rendered, March 16, 1912. 144 S. W. Rep. 1076. GREEN vs. GREEN.* (Court of Appeals of Kentucky.) MUTUAL BENEFIT INSURANCE-BENEFICIARY-CHANGE OF BENEFICIARY. Where a wife, the beneficiary of a mutual benefit insurance policy, divorced her husband, she lost her rights under it; for, while a beneficiary under an old line policy does not lose his interest because his insurable interest has ceased, persons not the members of the insured's family or dependent upon him are not entitled to benefits under a mutual benefit policy. (For other cases, see Insurance, Cent. Dig. §§ 1929-1931; Dec. Dig. § 767.) MUTUAL BENEFIT INSURANCE-BENEFICIARY-CHANGE OF BENEFICIARY. The by-laws of a mutual benefit insurance company provided that death benefits could be paid only the family, heirs, blood relatives, affianced husband or wife, or persons dependent upon the insured. A wife, who was a beneficiary under a policy, divorced her husband. Held, that some affirmative act by the insured was necessary to entitle the divorced wife to claim as his fiancee; for the divorce revoked the appointment as beneficiary, and a new appointment must be made. (For other cases, see Insurance, Cent. Dig. § 1939; Dec. Dig. § 773.) * Decision rendered, March 16, 1912. 144 S. W. Rep. 1073. FIRE. COURT OF CIVIL APPEALS OF TEXAS. AUSTIN. TEUTONIA INS. CO. US. TOBIAS.* FIRE INSURANCE-CONTRACTS-CONSTRUCTION. The purpose of the clause in a fire policy that insured shall keep a set of books showing a complete record of business transacted, and inIclude in the books a complete record of all the property which shall go into the premises and be added to the stock, and of the property taken from the stock, whether by insured or by others, is to enable insured and insurer to ascertain from insured's books at all times the amount of stock in his store, and where insured was in the produce business handling large quantities of eggs, which in part were kept in cold storage, he must keep his books so as to show what eggs were removed from his store and placed in cold storage. (For other cases, see Insurance, Cent. Dig. § 853; Dec. Dig. § 335.) Appeal from District Court, McLennan County; Marshall Surratt, Judge. Action by Abe Tobias against the Teutonia Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded. CRANE & CRANE, for Appellant. JENKINS, J. This suit was brought upon an insurance policy containing the "iron-safe" clause. Said policy contained, among other things, the following: "The assured will keep and preserve all inventories of stock taken during the current year, and also all those taken during the preceding calendar year which are on hand when this policy is issued, and will keep and preserve all books which are then on hand, showing a record of business transacted during the current calendar year and preceding calendar year." Appellant requested the court to peremptorily instruct the jury to return a verdict for the defendant, and assigns error upon the refusal of the court so to do. In this we think there was error, for the reason that the evidence clearly shows that at the time said policy was issued the appellee had a record of his purchases for the preceding year, and that the same was not kept in an iron safe, or other safe place, as required by said policy, but was destroyed in said fire. * Decision rendered, Jan. 10, 1912. On motion for rehearing, March 13, 1912. 145 S. W. Rep. 251. |