attitude of the agents themselves (Coryeon v. Providence Washington Ins. Co., 79 Mich. 187, 44 N. W. 431). The effect of clauses attempting to limit waiver to written indorsements by certain named officers is too broad a subject to be discussed with the few cases arising under this topic. It is, therefore, deemed sufficient to refer, for the principles involved, to the briefs dealing with waiver as related to forfeiture and avoidance, and failure to furnish the required proofs, and merely cite the few cases in which such clauses have been construed with reference to a waiver of the policy limitations. In the following cases the stipulation limiting waiver was held in- (1) Pleading and practice. The courts are by no means unanimous as to the proper method of raising the issue whether the action was brought within the policy limitations. In some jurisdictions it has been held that a complaint showing on its face that the action was commenced after the expiration of the limitations is demurrable unless it also contains further allegations excusing or waiving such failure. McElhone v. Massachusetts Ben. Ass'n, 2 App. D. C. 397; Oakland Home But in other jurisdictions the failure to bring the action within the stipulated time has been held a matter of defense, to be raised by the answer, and not taken advantage of by demurrer. Humboldt Ins. Co. v. Johnson, 1 Ill. App. 309; Fred Miller Brewing Co. v. Capital Ins. Co., 111 Iowa, 590, 82 N. W. 1023, 82 Am. St. Rep. 529; Boston Marine Ins. Co. v. Scales, 101 Tenn. 628, 49 S. W: 743; Barber v. Fire & Marine Ins. Co. of Wheeling, 16 W. Va. 658, 37 Am. A mere denial that the conditions of the policy have been complied with has been deemed a sufficient allegation of the defense (O'Laughlin v. Union Cent. Life Ins. Co. [C. C.] 11 Fed. 280). But where the limitations do not commence to run until after the acceptance of the proofs of loss or settlement by arbitration, the answer must allege when such proof was made or arbitration completed. Barnes v. McMurtry, 29 Neb. 178, 45 N. W. 285. See, also, Cox v. Farmers' Mut. Fire Ass'n, 48 N. J. Law, 53, 3 Atl. 122, where it was held necessary to allege that the by-law relied on was adopted prior to the issuance of the policy. Letters of the company containing promises of payment, which induced plaintiff not to bring his action before the expiration of the stipulated six months, have been held not proper exhibits to be attached to the complaint (Eggleston v. Council Bluffs Ins. Co.. 65 Iowa, 308, 21 N. W. 652). And the federal court in Illinois, following Gunton v. Hughes, 181 Ill. 132, 54 N. E. 895, which, however, was a case dealing with statutory limitations, has held that, under the rule making the limitations a matter of defense, the matter in avoidance of the limitation cannot be pleaded in the declaration, but is matter for replication after the limitation has been pleaded by defendant (Kettenring v. Northwestern Masonic Aid Ass'n [C. C.] 99 Fed. 532). The Gunton Case, in the opinion of the federal court, overruled the earlier case of Illinois Live Stock Ins. Co. v. Baker, 153 Ill. 240, 38 N. E. 627, affirming on the opinion of the lower court 49 Ill. App. 92, where it was asserted that while it was unnecessary to plead the matter of avoidance in the declaration, yet, if plaintiff did so, the general issue would put him on his proof and raise the issue as to the waiver. A replication alleging a waiver of the condition is bad if it does not set forth the acts and declarations which amounted to such waiver (Oakman v. City Ins. Co., 9 R. I. 356). The proof must, of course, correspond with the issues. Thus, under an answer which sets up as a defense that the policy sued on provided that no action should be brought thereon unless commenced within one year from the date of the accident, defendant cannot show that the policy provided that no recovery could be had unless action should be begun within six months from the date of the receipt of proofs of the injury (Keeffe v. National Acc. Soc., 4 App. Div. 392, 38 N. Y. Supp. 854). And where plaintiff pleaded waiver only of the clause regulating the filing of proof of loss and certain procedure thereon, and alleged performance on his part of all the other conditions of the policy, he may not prove a waiver of the limitation of the action (Allen v. Dutchess County. Mut. Ins. Co., 88 N. Y. Supp. 530, 95 App. Div. 86). But in South Carolina it has been held that, though the answer set up limitations, and the bringing of the action after the stipulated time was admitted, yet insured should have been permitted to show that defendant had waived the stipulations of the policy, or was estopped from urging the same (Sample v. London & L. Fire Ins. Co. of Liverpool, 42 S. C. 14, 19 S. E. 1020). Where an insurance company defends an action on a policy on the ground that the suit was not brought within the time required by the policy, it has the burden of proof to show that defense (Allibone v. Fidelity & Casualty Co. [Tex. Civ. App.] 32 S. W. 569). But the burden is on the plaintiff beginning an action on an insurance policy six months after the death of the insured to prove a waiver of a provision that no suit could then be brought, and that a failure to sue before should be conclusive evidence against any claim, notwithstanding the provisions of all statutes of limitations, since the failure is a complete defense unless waived (Carlson v. Metropolitan Life Ins. Co., 51 N. E. 525, 172 Mass. 142). Where the answer sets up the expiration of the period within which the policy provides that suit must be brought, as a bar to the action, letters written by officers of the company, and having a tendency to establish plaintiff's claim that he was induced by promises and representations to delay bringing suit, are admissible. in evidence to sustain such claim (Eggleston v. Council Bluffs Ins. Co., 65 Iowa, 308, 21 N. W. 652). Testimony of plaintiff's counsel that he delayed bringing the action by reason of the superintendent's assurances that the company would pay the claim, if just, is competent only to show that plaintiff acted on such assurances for the purpose of estopping defendant if it was responsible for them (Jennings v. Metropolitan Life Ins. Co., 148 Mass. 61, 18 N. E. 601). The sufficiency of the evidence to show a waiver of the limitation clause was considered in Sullivan v. Prudential Ins. Co., 71 N. Y. Supp. 525, 63 App. Div. 280; Bonnert v. Pennsylvania Ins. Co., 129 Pa. 558, 18 Atl. 552, 15 Am. St. Rep. 739; Everett v. London & L. Ins. Co., 142 Pa. 332, 21 Atl. 819, 24 Am. St. Rep. 499. A provision in a life insurance policy limiting the time within which suit may be brought thereon is an essential part of the contract, and the taking of a case from the jury because not begun within the period is not error, where there was no evidence introduced tending to show that the limitation had been waived (Meyer v. Metropolitan Life Ins. Co., 9 Ohio S. & C. P. Dec. 596, 7 Ohio N. P. 480). Whether the limitation clause has been waived is a question for the jury. Hartford Fire Ins. Co. v. Amos, 25 S. E. 575, 98 Ga. 533; Coursin v. And if the policy of insurance has been lost, it is for the jury to say, in an action against the insurer, whether defendant has proved that it contained the clause against actions after six months (Metropolitan Life Ins. Co. v. Dempsey, 72 Md. 288, 19 Atl. 642). Where the question of the stipulation contained in an insurance policy as to the time within which suit must be brought is not presented to the court by the pleadings, it is error to instruct the jury as to the legal effect of such a clause (Barber v. Fire & Marine Ins. Co., 16 W. Va. 658, 37 Am. Rep. 800). 3. PROCESS. (a) Place of service. (b) Persons on whom service may be made. (c) Solicitors of insurance. (d) Reception of premiums as affecting character of agency. (e) Service after cessation of agency. (f) Service on state auditor, insurance commissioner, etc. (g) What constitutes "doing business" in the state, so as to justify substituted service. (h) Effect of withdrawal from state. (i) Mode of service. (a) Place of service. A fire insurance company of one state insuring property in another state in which it is also authorized to do business is subject to service of process in such latter state according to its laws. Gude v. Dakota Fire & Marine Ins. Co., 7 S. D. 644, 65 N. W. 27, 58 So, a life insurance company may be sued on a policy in the state where insured was domiciled, by one having possession of the policy in such state, though the policy is payable in the state where the company was incorporated (Equitable Life Assur. Soc. v. Brown, 23 Sup. Ct. 123, 187 U. S. 308, 47 L. Ed. 190). But it is obvious that service of process may be had on the secretary of an insurance company at the general office of the company (Whalan v. Mutual Aid Soc., 2 Leg. Rec. Rep. [Pa.] 370). (b) Persons on whom service may be made. A statute providing that those who represent insurance companies within the limits of a state shall be considered agents upon whom service of process may be made violates no provision of the Constitution of the United States (Milwaukee Trust Co. v. Germania Ins. Co., 106 La. 669, 31 South. 298). But a law permitting service on an agent of a foreign company does not authorize service on such agent after its passage on a cause of action accruing prior to the enactment of the law (Warren Mfg. Co. v. Etna Ins. Co., 29 Fed. Cas. 294). Where it is so provided by statute, service of process may be made on any agent of a foreign company within the state (Niagara Ins. Co. v. Rodecker, 47 lowa, 162). And under such provisions it is not necessary to show, in a declaration and summons against a foreign company, that defendant is a foreign insurance company, and that named persons are the duly authorized agents of the company to receive service of summons (Georgia Home Ins. Co. v. Holmes, 75 Miss. 390, 23 South. 183, 65 Am. St. Rep. 611). Where it was shown that the person on whom process was served was an agent of the company, so as to make the service valid, testimony of such person that he was the agent of such company was immaterial. And where it is provided that any person receiving or transmitting money for a company's use or transacting any business on its account shall be deemed its agent, evidence that the company had not by vote appointed the person on whom process against it was served as its agent is immaterial (Reyer v. Odd Fellows' Fraternal Acc. Ass'n, 157 Mass. 367, 32 N. E. 469, 34 Am. St. Rep. 288). The president of a subordinate lodge having the power to decide all questions of law and order, subject to the approval of the president of the supreme lodge, and to approve every claim before payment is made, is a local agent of the association within a statute au B.B.INS.-251 |