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THE

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INSURANCE

LAW JOURNAL.

VOLUME VII.

NEW YORK:
PUBLISHED BY C. C. HINE.

176 BROADWAY

1878

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IN INSURANCE CASES, RENDERED IN THE UNITED STATES SUPREME AND CIRCUIT COURTS, AND IN THE STATE

SUPREME COURTS.

AGENT.

8 1. FIRE.—Of the Insured by Stipulation.--Acts of Estoppel. -The insurance was procured by the local agent authorized to take applications, collect premiums, give binding receipts for ad interim insurance, and who was furnished with blank applications to be filled up under his supervision. He was also instructed by the company to carefully study the instructions and blanks in order that he might be able to fill out the blanks rapidly, etc. On the back of the policy was printed the following among other conditions: “It is part of this contract that any person, other than the assured, who has procured this insurance to be taken by the company, shall be deemed to be the agent of the assured * * and not of this company, under any circumstances whatever, in any transaction relating to this insurance."

Held, that the condition was obscure and misleading in its verbiage, and the company could not, while holding out the agent as their trusted representative, make him the agent of the insured for the purpose of avoiding responsibility for his acts, by such stipulation; the condition involves a legal contradiction and is invalid.

Ins. Co. vs. Mahone, 21 Wallace, 156 ; Case of Rohrback, 62 N. Y., excepted to.

The agent participated in the preparation of the application, dictated the most material answers, and consented to all of them as true statements of the facts. Held, that the acts of the agent were the acts of the company, which was estopped from alleging the omission or misstatement of any facts in the application, and parol evidence is admissible to show such participation by the agent.

Rowley vs. Ins. Co., 36 N. Y., 550 ; Peck's case, 22 Cowan, 575 ; Beld's case, 25 Cowan, 51 ; Franklin's case, 42 Mo., 457 ; Deal's case, 16 Wis., 241 ; Malleable Iron Works vs. Ins. Co., 25 Cowan, 460 ; Plummer's case, 18 N. Y., 392 ; Molure's case, 5 Rance, 342 ; Ayer's case, 21 Iowa ; Carpenter's case, Am. Lead Cases; May's case, 25 Wis., 306 ; Schallien's case, 38 III., 166; Wilkinson's case, 13 Wallace, 23 ; Ins. Co. vs. Mabone, 21 Wall.

The strictly more appropriate remedy is by action in chancery for reformation of the contract, but the same end may be accomplished at law through the doctrine of equitable estoppel. A company may properly limit the power of its local agents, provided the fact is brought to the knowledge of the assured by a stipulation in the application, that they will not be bound by any statements not contained therein.

Chase vs. Ins. Co., 20 N. Y., 54.
Planters Ins. Co. vs. Myers.
Rep'd Jour'l, p. 53.

Miss. 8. c.

EVIDENCE.

§ 2. ACCIDENT.— Of Medical Expert.-The opinion of a physician is not to be cast aside, because his only information in the diagnosis of the case is derived from books, but is to be weighed like that of any other man, taking all the circumstances into consideration.

Whitehouse vs. Travelers Ins. Co.
Rep'd Jour'l, p. 23.

U, S, C. C. N. H.

FRAUD.

$3. ACCIDENT.-Small Print Provisions.Autopsy.—The fact of certain portions of the policy being printed in small type where the conditions relied upon are in large type, cannot be adduced as evidence of fraud on the part of the company, nor can the making of an autopsy where the right to do so was provided in the policy.

Whitehouse os. Travelers Ins. Co.

-$2.

INSURABLE INTEREST.

$ 4. FIRE.Distiller's Bond for Tax.-Transfer of Partnership Interest.-Replevin Bond.--The policies agreed to "insure Messrs. Thompson & Co. against loss or damage by fire-upon whisky, their own, or held by them on a commission, including government tax thereon for which they may be liable, contained in the log bonded warehouse of G. H. Deaven,” The whisky was owned by Thompson & Co., Walston being the Co., who were also sureties on Deaven's distillery bond, and as such liable for the government tax if not paid by D. or made out of the whisky. The policy provided that it should be void, “if the property be sold, or transferred, or any change take place in title or possession, whether by legal process, or judicial decree, or voluntary transfer or conveyance.” The loss was settled except as to the tax, where the liability was undecided. · Judgment was subsequently obtained by the government, in Kentucky, on the bond, for the tax, the companies declining to defend as parties. Thompson & Co. replevined the judgment and brought suit against the companies for the amount. There was evidence tending to show that previous to the fire, Walston had sold all his interest to Thompson, and that another brother of T. had become interested in the firm. Held, that it was the intention of the insurers to insure another than the proprietary interest of T. & Co. in the

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