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rest upon estoppel. The facts constituting estoppel, however, are the opposite of those which create it prior to the maturing of a policy. In such case the consideration for the estoppel is the payment by the insured of value, while the consideration subsequent to maturity is detriment suffered by him, in the performance of some requirement exacted by the insurer (upon the theory of the policy being a valid obligation), involving either labor or expense or both.

Thus in a recent case in Missouri Court of Appeals, it was ruled, that requiring insured, in an accident policy, to submit to a physical examination, when cause of forfeiture is known constitutes waiver of the forfeiture.14 Waiver being a mixed question of law and fact,15 generally is referable to a jury.

§ 1284. Waiver of Proofs of Loss-Appraisement, etc.—A policy may be conceded to be a valid matured obligation, if the contingency of its maturity has ensued, either as to a total or a partial loss. Conditions to its payment being demandable are generally found in policies and these are formal notice and proof of the happening of the loss, its nature and the manner or cause of the loss. These provisions are for the benefit of the insurer and may be waived. Where the facts are clear and undisputed and admit but one inference, the court decides whether an insurance company has waived compliance with such conditions." And so as to compliance within the time provided by the policy.18 And as to variance in form from that prescribed. 19 And the court may determine, under like circumstances, whether there has been a waiver, or estoppel amounting to waiver, as to appraisal made a necessary condition

14 Myers V. Maryland Cas. Co., 123 Mo. App. 682, 101 S. W. 124.

15 Keet-Rountree D. G. Co. v. Mercantile T. Mut. Ins. Co., 100 Mo. App. 504, 74 S. W. 469; McCalum v. N. F. Ins. Co., 61 Mo. App. 352; Cleaver v. Traders Ins. Co., 71 Mich. 414, 39 N. W. 571, 15 Am. St. Rep. 275; Agricultural Ins. Co. v. Potts, 55 N. J. L. 158, 26 Atl. 27, 39 Am. St. Rep. 637; Security Mut. L. Ins. Co. v. Calvert (Tex. Civ. App.), 105 S. W. 320.

17 Siegel v. Phonix Ins. Co., 107

Mo. App. 456, 81 S. W. 637; Cullen v. Insurance Co. of N. A., 126 Mo. App. 412, 104 S. W. 117; Yates v. Thomason (Ark.), 102 S. W. 1112; Kennedy v. Agricultural Ins. Co., 21 S. D. 145, 110 N. W. 116; W. F. Parker v. Continental Ins. Co., 143 N. C. 339, 55 S. E. 717; Thompson v. Germania F. Ins. Co., 45 Wash. 482, 88 Pac. 941.

18 Western Underwriters Assn. v. Hankins, 221 Ill. 304, 77 N. E. 447.

19 Spring Garden Ins. Co. Whayland, 103 Md. 699, 64 Atl. 925.


precedent to bringing an action on a policy.20 From the adjudged cases it is to be fairly deduced, that the insured is merely bound to a reasonable compliance with a condition or provision enabling insured to settle the matter without resort to litigation. If it is indicated by the insurer that such compliance is either not necessary as information to enable it to pay a recognized liability, or it denies all liability, non-compliance does not preclude the bringing of a suit upon the policy. But if insurer insists there has been no waiver, and the facts are in dispute or inference therefrom is not certain and clear, the question is for the jury 21 And so whether the acts of the agent of insurer having authority in the matter were fairly calculated to, and did, mislead insured as to the necessity of complying with such precedent conditions.22 And so whether defects in the form of proof have been waived.23 Whether delay was caused by insurer and if reasonable diligence has been used by insured in compliance have been held questions for the jury. 24

§ 1285. General Observations.—Getting away from the question of waiver, with its necessary concomitant of knowledge, and also the question of the existence of insurable interest, either not possessed at the beginning of the contract or parted with subsequently, there yet remains a very extensive field of inquiry into matters of fact. Diversity in this respect is perhaps more characteristic of insurance, than of almost any other kind of contracts. There is the same reason why misrepresentation and fraud should play their parts in entering into these contracts such as may be present in other contracts, looking at them in a general way. Considering them specially, however, the complicated provisions of policies, with their infinite detail of inquiry from applicants, multiply the ques

20 Providence Washington Ins. Witham (Ark.), 101 S. W. 721; Co. v. Wolf, 168 Ind. 690, 80 N. E. Thompson Traders Ins. Co., 26; O'Rourke V. German Ins. Co., 169 Mo. 12, 68 S. W. 889. 99 Minn. 293, 109 N. W. 401; Fire 22 Dwelling House Ins. Co. v. Assn. of Philadelphia v. Appel, 76 Dowdall, 159 Ill. 179, 42 N. E, 606; Ohio St. 1, 80 N. E. 952; Hartford Hanover F. Ins. Co. v. Gustin, 40 F. Ins. Co. v. Asher, 30 Ky. Law Neb. 828, 59 N. W. 375. Rep. 1053, 100 S. W. 1053.

23 Davis Shoe Co. v. Kittanning 21 White v. Dwelling House Ins. Ins. Co., 138 Pa. 73, 20 Atl. 838, 21 Co., 12 Ky. Law Rep. 191; Carp v. Am. St. Rep. 904; Peoples F. Ins. Queens Insurance Co. (Mo. App.), Co. v. Pulver, 127 Ill. 246, 20 N. E. 92 S. W. 528; Western Under 18. writers Assn. V. Hankins, supra; 24 McNally v. Phenix Ins. Co., 137 Arkansas Mut. Ins. Co. N. Y. 389, 33 N. E. 475.

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tions of fact, which enter into such contracts. To this is added the eagerness of agents towards the earning of commissions or their desire to favor individuals at the expense of insurers. These agents, either upon an understanding with applicants, or independently of these participating in their fraud, often cause the truth in statements in applications to be suppressed or actually misrepresented. In addition there arise during the life of such a contract, terminable by forfeiture in a variety of ways, the occurrence of any one of which may present an inquiry of facts, countless opportunities for dispute. The remaining sections of this chapter and cases cited thereto relate to questions, where knowledge of facts tending to show non-liability was not imputable to the insurer prior to loss, unless waiver is specifically referred to.

$ 1286. Representations and Warranties.—Whether a statement in an application for insurance is a representation or a warranty is a question of law, arising out of the contract as its terms are controlled by the law of the place of contract, the general rule being that construction which preserves a policy against forfeiture is to be preferred to that which puts an end to its existence.25 Unless the law of the place of the contract prevents, the contract may make a representation a warranty and require exact compliance therewith, irrespective of its materiality and whether it amounts to a fraudulent misrepresentation or not.26 Statutes, however, have required that the materiality of a representation is the sole question to be considered and these have been held not to deprive an insurance company either of its liberty or property without due process of law or deny to it the equal protection of law.27 In jurisdictions where materiality is the test, that is a question ordinarily for the jury.28 In Massachusetts it has been steadily ruled that it is a

25 American Cred. Indem. Co. V. Wood, 73 Fed. 81, 19 C. C. A. 264; Aetna Indem. Co. v. Crowe C. & M. Co., 154 Fed. 545, 83 C. C. A. 431; Missouri State L. Ins. Co., 1 Ga. App. 446, 58 S. E. 93; .Kennedy v. Agricultural Ins. Co., 21 S. D. 145, 110 N. W 116; Court of Honor v. Clark, 125 Ill. App. 490.

26 Pennsylvania M. L. Ins. Co. v. Mechanics Sav. Bank & T. Co., 72 Fed. 413, 19 C. C. A. 286; Saterlee v.

Modern Brotherhood, 15 N. D. 92,
106 N. W. 561; Meyer v. Home Ins.
Co., 127 Wis. 293, 106 N. W. 1087;
Prudential Ins. Co. v. Hummer, 36
Colo. 208, 84 Pac. 61; Deming Inv.
Co. v. Fire Ins. Co., 16 Okl. 1, 83
Pac. 918.

27 Northwestern Nat. Life Ins. Co. v. Riggs, 203 U. S. 243, 51 L. Ed. 168.

28 Keller v. Home L. Ins. Co., 198 Mo. 440, 96 S. W. 903; Provident Sav. L. Assur. Co. v. Whayne's

question for the court.29 If forfeiture is dependent upon the intent, with which a misrepresentation is made, this is a question for the jury.30 And where the meaning of a question or answer is doubtful, the truth of the answer is for the jury.31 As to material. ity of concealment the rule is the same as in misrepresentation..

§ 1287. Authority of Agents.- In the absence of ratification, express or implied, the question may be sometimes in dispute as to the authority of an agent to effect insurance. Where this was made to depend on whether the property claimed to be insured was within, the jurisdiction, wherein an agent was authorized to solicit insurance, and the evidence as to this was conflicting, it was held a question for the jury.33 A course of dealing between an agent and a customer, such as notification prior to expiration, that a policy would be renewed unless customer directed to the contrary, it was held a question for the jury whether policy was to be considered renewed, where loss occurred in the interval of the usual credit given on premiums.34 Where one other than a regular agent solicited and secured the insurance, his authority is a question of fact. And so, where company sent renewal receipt to a broker who procured original insurance, but did not collect the premium on it, it was held a question for the jury whether he was authorized to collect the renewal premium, where company wrote to him reminding him he had not remitted the premium.36 Where an agent presented a policy, but there was a disagreement about payment of premium, and insurer testifies it was agreed he should call again and fix the matter up and agent remits the premium, reporting it paid, but a fire occurring he then stamped the policy cancelled, it was

Admr., 29 Ky. Law Rep. 160, 93
S. W. 1049; Fidelity & G. Co. v.
Western Bank, 29 Ky. Law Rep.
639, 94 S. W. 3; Monahan v. Mut. L.
Ins. Co., 103 Md. 145, 63 Atl. 211;
State Ins. Co. v. Du Bois, 7 Colo.
App. 214, 44 Pac. 756.

20 Langdeau v. Life Ins. Co., 194 Mass. 56, 80 N. E. 452.

30 Levie v. Metropolitan L. Ins. Co., 163 Mass. 117, 39 N. E. 792; Modern Woodmen v. Wilson, 76 Neb. 344, 107 N. W. 568.

31 Mut. L. Ins. Co. v, Baker, 10 Tex. Civ. App. 515, 31 S. W. 1072.

32 Dulany v. Fidelity & Cas. Co.. 106 Md. 17, 66 Atl. 614.

33 Ruggles v. Am. Cent. Ins. Co.. 114 N. Y. 415, 21 N. E. 1000.

34 Long v. North British & M. Ins. Co., 137 Pa. 335, 20 Atl. 1014, 21 Am. St. Rep. 879.

35 Com'l Union Assur. Co. v. Elliott (Pa.), 13 Atl. 970 (not reported in state reports).

36 Am. Fire Ins. Co. v. Brooks, 83 Md. 22, 34 Atl. 373.

for the jury to say if the policy was in force. It has been held, that, where it was shown insurer had no knowledge of any limitations on an agent's authority, it was not error to leave it to the jury to determine whether an agent had authority to make an oral contract that the insurance should run from the time of the application.38

§ 1288. Conditions Subsequent as to keeping Policy in Force.Insurance policies contain various clauses in regard to things to be performed or forbidden during the existence of the risk assumed, as to change in condition of the property, the keeping of inventories in a safe place, the guarding against fire from explosion and keeping the premises occupied. In defending an action upon a policy upon any such executory condition being violated the burden is upon the insurer to establish such fact. This often involves a mixed question of law and fact. Thus where a policy contained a bookkeeping clause requiring assured to keep a complete set of books and there is expert testimony as to the system used by the insurer, the question of compliance was left to the jury.39 And whether vacancy continued for the length of time forbidden by the policy, may, under circumstances, be a question for the jury.40 It has been also held that vacancy is more often a question for the court. 41 Where an application for insurance stated that the premises are "unoccupied but to be occupied by a tenant," this was held to leave it to the jury as a question of fact, whether the occurrence of the fire was beyond the reasonable time within which they were to be occupied.42 Generally it may be said that compliance or non-compliance with a prospective warranty presents upon conflicting evidence a question for the jury, or where the undisputed facts are capable of different inferences.


§ 1289. Exercise of Diligence or Negligence.—Where a policy provides for insured making diligent effort to save his property, it

37 Dore v. Royal Ins. Co., 98 Mich. 135, 56 N. W. 695; Rockford Ins. Co. 122, 57 N. W. 30.

v. Storig, 137 ill. 646, 24 N. E. 674. 38 Hardwick v. St. Ins. Co., 20 Ore. 41 Hartshorne v. Agricultural Ins. 547, 26 Pac. 840.

Co., 50 N. J. L. 427, 14 Atl. 615. 30 Western Assur. Co. Al 42 Hough v. City Fire Ins. Co., 29 theimer Bros., 58 Ark. 565, 25 S. W. Conn. 11, 24. 1067.

43 Allen v. Milwaukee M. Ins. Co., 40 Maas V. Anchor F. Ins. Co., 148 106 Mich. 204, 64 N. W. 15; Hastings Mich. 432, 111 N. W. 1044; German v. Brooklyn Life Ins. Co., 138 N. Y. Am. Ins. Co. V. Buckstaff, 38 Neb. 473, 34 N. E. 289.


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