As Affected by Validity. Jersey City Ins. Eq. 291. effected an insurance. Co. v. Nichol, 35 N. J. 89.- Where a first policy has been avoided by an alteration of the premises before a second is taken out, it does not amount to a double insurance within the terms of the second policy. Leibrandt v. Fireman's Ins. Co., 35 Fed. Rep. 30. 90.- Where plaintiff had taken a policy which contained the condition that it should be void in case of any other insurance, and, without notice to the insurance company, he procured a policy from another company, with the condition that if insured shall have other insurance the policy to be void, giving no notice to the latter company of the prior insurance, he cannot recover upon such second policy. Keyser v. Hartford F. Ins. Co., 10 West. Rep. 566; 33 N. W. Rep. 756; 66 Mich. 664. 91.- A policy stipulating that it shall be avoided by other insurance without the consent of the insurer is not avoided by a subsequent policy invalid on its face. American Ins. Co. v. Replogle, 13 West. Rep. 358; 15 N. East. Rep. 810; 114 Ind. 1. 92.- A policy valid on its face, to avoid which proof of extrinsic facts are necessary, if accepted by assured, constitutes other insurance. Id. 93.- Where a policy requires the assent of the company before a concurrent insurance can be taken out, the subsequent cancellation of a prior policy in force at the time of the issuance of the new policy by a different company for the same amount is not within the provision. New Orleans Ins. Asso. v. Holberg, 64 Miss. 51. 94.- A policy containing a condition that it shall be void in case of other insurance, although inoperative when first issued because of othersurance, attaches immediately on the expiration of the former policy. *Germania F. Ins. Co. v. Klewer, 129 Ill. 599; 19 Ins. L. J. 126; 22 N. East. Rep. 489. 95. There can be no existing insurance within the prohibition of a policy against other insurance, unless such insurance is valid and in full force, and capable of being legally enforced or collected in case of destruction of the property insured. Id. Aff'g on this point 27 Ill. App. 590. 96.- Other insurance, which is either inoperative or subsequently surrendered and the policy canceled, is no defense in favor of the insurer, under a policy which provides that it shall be void in case of other insurance. Id. 97.- Where a person has been required to surrender his policy of fire insurance by one company and takes out a policy in another company containing a condition that no other insurance exists, and afterwards the first policy is returned and accepted by him without notifying the company issuing the second, there can be no recovery upon the second policy. *Halliday v. St. Paul F. & M. Ins. Co., 31 Ill. App. 398. 98. A condition in a policy against other insurance is violated by the existence of a prior policy which, although void, appears valid on its face. *Phonix Ins. Co. v. Copeland, 90 Ala. 386; 19 Ins. L. J. 961; 8 So. Rep. 48. 99. As affected by validity. The words "whether valid or not " would seem to dispense with the necessity of the fine and subtle distinctions which have been made by various courts upon the subject of the existence of other insurance. See Royal Ins. Co. v. McCrea et al., 11 Ins. L. J. 508; 8 Lea, 531 (Tenn.); Funke v. Minnesota Farmers' Mutual Fire Ins. Asso., 11 Ins. L. J. 830; 29 Minn. 347; Emery v. Mutual City, etc., Ins. Co., 12 Ins. L. J. 929; 51 Mich. 469; Stevenson v. Phoenix Ins. Co., 14 Ins. L. J. 65; 83 Ky. 7; Behrens v. Germania Fire Ins. Co., 13 Ins. L. J. 653; 64 Iowa, 19. But see Gee v. Ins. Co., 55 N. H. 65, where the court expressed a doubt whether the words "valid or not " were not void for repugnancy. 100.- A defense of other insurance is not sustained by proof of a former policy which has become void by reason of vacancy of the premises. Germania Fire Ins. Co. v. Klewer, 27 Ill. App. 590; rev'd on another ground 129 IIl. 599. 101.- If validity of the policy claimed to be other insurance is material its validity must be determined as of the time of its issue and not at time of the loss. Equitable Ins. Co. v. McCrea, 8 Lea, 541 (Tenn.) 102.- Another policy upon which a loss has been paid constitutes other insur As Affected by Acts or Knowledge of Agent. ance, although the company which issued the former might have set up its invalidity. David v. Hartford Fire Ins. Co., 13 Iowa, 69. 103.- Where a policy contained a condition which provided that it should be void if other insurance should not be endorsed on it, held, that the existence of prior insurance did not make it absolutely void, but invalid, voidable and capable of being confirmed and made valid by acts of the company showing a waiver of the defect. Atlantic Ins. Co. v. Goodall, 35 N. H. 328. 104.- Assured is bound to give notice of a second policy obtained by him, whether valid or not. Campbell v. Ætna Ins. Co., 1 Cochran, 21 (N. S.) 105.- The existence of other insurance does not make a policy absolutely void, but voidable only at option of the company. Hubbard v. Hartford Fire Ins. Co., 33 Iowa, 325. 106.- Other insurance, to render policy void, must be legal insurance, and the true issue in such a case is whether the policy, not on its face, but on all the facts legally in evidence, is binding upon the insurer. Dahlberg v. St. Louis Mut. Ins. Co., 6 Mo. App. 121. 107.- When policy contains condition against other insurance it is not avoided by an alleged contract for other insurance shown to be invalid. Knight v. Eureka Fire Ins. Co., 26 Ohio, 664. ་་ 109.- Under the words "valid or not the stipulation as to other insurance is not avoided by showing prohibited insurance to be invalid. Phoenix Fire Ins. Co. v. Lamar, 15 Ins. L. J. 686; 4 West. Rep. 246; 106 Ind. 513. 110.- A policy which has ceased to be a binding contract of insurance by removal of the property insured from the building in which it was situated when issued is not "other insurance," as it has no existence when a subsequent policy is obtained. The words "valid or not" do not prevent this result. Stevens v. Citizens' Ins. Co., 16 Ins. L. J. 112; 69 Iowa, 658. 111.- A policy containing a condition against other insurance is not rendered void, but voidable only, by a breach of the condition. Stevenson v. Phonix Ins. Co., 83 Ky. 7. 112.- Stipulation in a contract that other insurance, whether valid or not, shall avoid policy, cannot be defeated by showing that prohibited insurance was invalid. Id. 113.- As to effect of the words "valid or not." See also No. 99, 108. 114.- A provision in a policy that it shall be void if insured shall hereafter obtain any other policy, whether valid or not, is not violated by the existence, at the time it was issued, of another policy which had become void by its terms. Stevens v. Citizens' Ins. Co., 69 Iowa, 658; 16 Ins. L. J. 112. See No. 110. 115.- A policy of insurance providing that it shall be forfeited if there is any other insurance on the property, whether valid or otherwise, at any time during its continuance, without the consent of the insurer, is forfeited where the insured procures other risks on the same property in good faith, without consent, forgetting that the policy has been issued. The fact that the other policies may be void is immaterial. Sugg v. Hartford F. Ins. Co., 98 N. C. 143; 3 S. E. Rep. 732. 116. As affected by acts or knowledge of agent. Mere knowledge of other insurance upon the part of agent of the company is of no avail to insured, if not indorsed on the policy, a clause in the policy requiring such indorsement. Such knowledge is not a waiver of notice of such insurance. Forbes v. Agawam Mut. Ins. Co., 9 Cush. 470 (Mass.) 117.- Agent indorsed consent of company to additional insurance, when charter required that consent of directors must be obtained. Held, that company was not confined by their charter to a single secretary; that, whenever they directed any agent or officer to perform the appropriate duties of a secretary, they made such agent or officer secretary for that purpose; and evidence showing the exercise of such authority on the agent's part was admissible. Peck v. New London County Mut. Ins. Co., 22 Conn. 575. 118. A condition in the policy re -- As Affected by Acts or Knowledge of Agent. 122.- Where a party applying to the agent of an insurance company for insurance mentions that he has other insurance, specifying it, he ought not to be prejudiced by the neglect of the agent to note such insurance on the policy. New England Fire & Marine Ins. Co. v. Schettler, 38 Ill. 166. quired notice of other insurance to be company did not work a forfeiture of the indorsed on the policy or otherwise policy. Warner v. Peoria Marine & Fire acknowledged in writing. The assured Ins. Co., 14 Wis. 318. took other insurance and gave a memorandum of it to the agent to be entered on the records of the company, the policy not being at hand, and the agent saying that such entry would answer every purpose. The agent afterwards returned the memorandum, saying that he had made such entry; but he had not in fact done so. Held, a violation of the condition. Worcester Bank v. Hartford Fire Ins. Co., 11 Cush. 265 (Mass.) 119.- When policy required notice of any subsequent insurance, and an indorsement of it on the policy, or a written acknowledgment thereof from the company, held, that evidence of a notice given to the agent of the company of an "intention" to procure such subsequent insurance would not prove a compliance with the condition, which required actual notice of the subsequent insurance after it was obtained. Kimball v. Howard Fire Ins. Co., 8 Gray, 33 (Mass.) 120.- Notice of other insurance to a broker does not bind the company. McLachlan v. Etna Ins. Co., 4 Allen, 173 (N. B.) 123.- The policy sued on contained a clause providing that if the insured should procure any other insurance, and should not with all reasonable diligence give notice to the company, and have the same indorsed on the policy, or otherwise acknowledged in writing, that the policy should cease and be of no further effect. The application upon which the policy was issued was for insurance to the amount of $10,000. The agent of the defendant stated to the plaintiff that by its rules the company could take but $5,000 on any one risk, and offered to procure the insurance for the remaining $5,000, which he did the next day, and notified the defendant, who did not object. The premium was subsequently paid and the policy delivered. Held, that it was the duty of the company, upon being notified by its own agent of the additional insurance, to indorse the same upon the plaintiff's policy, or to notify him of the refusal of the risk, and that, having failed so to do, it was estopped from setting up as a defense the failure to have such additional insurance indorsed upon the policy. Horwitz v. Equitable Mut. Ins. Co., 40 Mo. 557. 121.- A fire policy by an insurance company, through its agent, contained a provision, that if the assured should thereafter make any insurance on the property described therein, and should not give notice thereof to the company, and have the same indorsed on the policy or otherwise acknowledged by the company in writing, the policy should be of no further effect. The assured afterwards handed the policy to an agent of the company, who was authorized to receive applications, issue policies and receive premiums, and applied to him for additional insurance on the property in other companies, for which he was also agent, and the agent before receiving the premiums for the additional insurance, or delivering the policies therefor, inserted in the first-mentioned policy the words "other insurance permitted without 125.- Renewal by agent, with knowlnotice until required. J. C. M." Held, edge of existence of other insurance, that the insertion of such clause was waives indorsement upon the policy. Id. within the scope of the agent's authority; 126.- Policy with a clause of forfeiture and that the procuring of further insur- in case of any other insurance, prior or ance without any other notice to the subsequent, not consented to in writing 124. The receipt by a general agent of defendant of renewal premiums, after he had full knowledge of other insurance on the premises, waives the condition requiring notice thereof, although the policy provides that no condition can be waived, except in writing by the secretary. Carroll v. Charter Oak Ins. Co., 10 Abb. 166 (N. S.); 1 Abb. Ct. App. Dec. 316 (N. Y.) As Affected by Acts or Knowledge of Agent. by the company. The agent consented The defendant and the K. Ins. Co. had to the assured getting further insurance, the same general agent; the assured the which he did. Held, the policy is not day after obtaining the policy from him, void, though the consent is not in writing, obtained further insurance in the K. Ins. the assured having acted on it, and Co. from the same agent, which was not though, on the renewal of the original notified to the defendants, nor endorsed policy, the assured has not told the agent on its policy. Held, the defendant had of the additional insurance, if there is no notice from the very moment its general fraud. Carrugi v. Atlantic F. Ins. Co., agent issued the other policy, upon which 40 Ga. 135. it had the election of canceling the policy by returning the premium, or of retaining the premium and keeping it in force. Von Bories v. United L. F. & M. Ins. Co., 8 Bush, 133 (Ky.) 127.- An agent, authorized to make and revoke insurances, is the proper person to give consent to further insurance. Id. 131.- If an agent, notified of prior insurance, issues the policies without the required indorsement 128.- An agent to receive the application, make the survey and remit it to the general agent, receive the policy and col-making lect the premium, whatever his authority thereof, the indorsement is waived. before the application is closed, has no City F. Ins. Co. of Hartford v. Carrugi, power, after the arrival of the policy, to 41 Ga. 660. waive any of its conditions; to wit, that requiring notice of other insurance. Healey v. Imperial Fire Ins. Co., 5 Nev. 268. 132.- Verbal notice to agent who issued the policy of the obtaining of subsequent insurance is insufficient to make the company liable, consent not being indorsed on the policy as required. Hendrickson v. Queen Ins. Co., 31 Up. Can. Q. B. 547. sured was induced to apply for the policy by the fraudulent misstatements and omissions of the agent, and that he was kept in ignorance of the existence of the stipulation in the policy by fraudulent conduct and statements of the agent which induced him not to open and read it. McKenzie v. Fire Ins. Co., 9 Heiskell, 261 (Tenn.) 129.- The policy required written consent thereon for any prior or subsequent insurance. Some months after other insurance had been obtained, an agent of 133.- Company is estopped from inthis company, other than the one through sisting on a defense in regard to other whom the policy was obtained, and resid-insurance when it is shown that the asing in another place, indorsed on it, "Other insurance to the amount of $4,000 is hereby permitted," but there was no signature. Held, the consent should have been signed by the general agent, whose countersign was required on the policy itself, or evidence of facts dispensing with his signature should be given. That the local agent in a different place not having been held out as having powers to act elsewhere, the assured dealt with him at his peril, and is bound to learn the extent of his authority. That though material facts made known to the proper local agent are supposed to be known to his principals, yet the knowledge of the proper local agent of such indorsement, he not having done anything to ratify it, or to induce a reliance on it, is no estoppel or waiver, as to the company, of such unauthorized indorsement. Security Ins. Co. v. Fay, 22 Mich. 467. 130.- Policy to be of no binding force if there shall be made "any further insurance without being notified to the company, and its consent written hereon." 134.- Local agents authorized to transact all the companies' business in their locality, are general agents. And general agents have authority to waive the condition that a policy is to be void in case of other insurance not consented to in writing thereon. And when the agent examines the policy issued by his company, in connection with other policies on the same property, on the request of the assured that he would see if they were all right, and he pronounces them all right, this is a waiver of such condition, especially when, with such knowledge, the agent subsequently renewed the policy, consented to a removal of the property, and an assignment of the policy. As Affected by Acts or Knowledge of Agent. An assent to such other insurances is an assent also to the maintenance of that amount of other insurance, and therefore extends to new policies in other companies, obtained at the expiration of the other insurance assented to in lieu thereof. Pechner v. Phoenix Ins. Co., 6 Lansing, 411; affi'd, 65 N. Y. 195; which was affi'd as Ins. Co. v. Pechner, 95 U. S. 183. 135.- A general agent has power to waive any express condition in the policy, and his statement to the assured that a condition in the policy in relation to other insurance has been sufficiently complied with estops the company from controverting that fact. Mentz v. Lancaster Fire Ins. Co., 79 Pa. 475. 136.— Agent authorized only to receive and forward applications has no power or authority to receive notice of the existence of other insurance. Billington v. Canadian Mutual Fire Ins. Co., 39 Up. Can. Q. B. 433. 137. Upon an issue as to whether agent who issued policy had notice of the existence of other insurance it is proper to ask, such agent being sworn as a witness on the trial, whether there was any rule that he followed, when he insured a piece of property, with reference to the amount of insurance, assuming the value of the property to have been to your knowledge $1,800, and no more, with $600 insurance already upon it, would you have put $1,200 more upon it?" Roberts v. Continental Ins. Co., 41 Wis. 321. 66 138.- Assured stated in his application for insurance upon a mill, that there was no other insurance, when, in fact, there was another policy on the machinery therein. Held, that the insurance was thereby rendered void, and that company was not estopped by knowledge of its agent; that assured's remedy was in equity by reformation of the policy. Shannon v. Gore District Mut. Fire Ins. Co., 2 Tupper, 396 (Can.); rev'g, 40 Up. Can. Q. B. 188. upon its policy, such substitution being made with knowledge of defendant's agent, and no objection being made upon an attempted adjustment or before action was brought, held, a waiver of the objection that consent was not indorsed upon the policy. Collins v. Ins. Co., 79 N. C. 280. 140.- When assured holds a certificate of insurance subject to all the terms and conditions of a policy as usually issued assured is bound by such terms and conditions, and if the policy contains a clause against other insurance, the fact that agent knew that there was other insurance, without knowing its amount, will not estop company from insisting upon the fact as a defense, and policy will not be reformed on assured's application by making the proper indorsement of consent. Billington v. Provincial Ins. Co., 3 Duval, 182 (Can. Sup.) 141. It seems that to estop company from insisting upon forfeiture on the ground of agent's knowledge at the time of the issue of the policy, it must appear not only that the agent knew generally the fact of the existence of other insurance, but that he knew its amount. Id. 142. Notice to a soliciting agent of the existence of other insurance is notice to the company, which is estopped from defending upon that ground. Brandup v. St. Paul Fire Ins. Co., 11 Rep. 434; 27 Minn. 393. See No. 248. 143.- Issue by agent of company of a policy with knowledge of existence of other insurance, operates as a waiver of condition requiring written consent. Putnam v. Commonwealth Ins. Co., 18 Blatch. 368 (U. S. Cir.) 144.- A soliciting agent has no authority by virtue of such employment to consent to other insurance, and notice to him of such other insurance is not notice to the company. Heath v. Springfield Fire Ins. Co., 12 Rep. 213; 58 N. H. 414. 145.- When policy provides that notice of other insurance shall be given in 139. When defendant had consented writing, and shall be consented to in to other insurance in a certain company, writing by the secretary, and that no both policies being issued by the same other notice shall be binding or have any agent, and subsequently another policy force against the company, knowledge of is substituted in the place of the second an agent cannot be considered as an and no consent of defendant is indorsed equivalent of what is required. Com |