of the insured.-Stout v. Missouri Fidelity & Casualty Co., 179 S. W. 993. IX. AVOIDANCE OF POLICY FOR MIS- (A) Grounds in General. for forfeiture in case of change of title_not consented to.-Germania Fire Ins. Co. v. Turley, 179 S. W. 1059. (E) Nonpayment of Premiums or Assess ments. 146 (Tenn.) Insurance policy, though construed, when ambiguous, favorably to insured, held to be construed so as to give effect to the intention and express language of the parties.Seay v. Georgia Life Ins. Co., 179 S. W. 312.349 (Mo.App.) Under accident policy taken out June 4, providing for monthly payments on the 1st day of each month in advance, held, that premium paid August 1st covered insured's accidental death September 4th, though no payment was made September 1st.-Stout v. Missouri Fidelity & Casualty Co., 179 S. W. 993. XI. ESTOPPEL, WAIVER, OR AGREEMENTS AFFECTING RIGHT TO AVOID OR FORFEIT POLICY. 388 (Mo.App.) Assurances by an insurance adjuster, that if the insured would obtain duplicate bills from the wholesale houses, the claim would be adjusted held to constitute a waiver of the iron-safe clause in the policy.-Travis v. 265 (Tex. Civ.App.) Under a policy provid-Continental Ins. Co., 179 S. W. 766. ing, as required by Rev. St. 1911, art. 4741, subd. 4, that statements in the application, in 389 (Ky.) The issuance of a policy to its the absence of fraud, should be representations, agent held waiver by the company of any disand not warranties, a statement as to a ma- advantage from the want of a local representaterial matter fraudulently made would be con- tive arising therefrom.-Massachusetts Bonding strued as a warranty.-American Nat. Ins. Co. & Insurance Co. v. Duncan, 179 S. W. 472. v. Anderson, 179 S. W. 66. 256 (Tex. Civ.App.) To avoid a policy for misrepresentation the false statement must have been made willfully and with the intent to deceive, and relied upon by the insurer; and a misrepresentation made innocently and in the belief of its truth will not avoid the policy. American Nat. Ins. Co. v. Anderson, 179 S. W. 66. a A "warranty" enters into and forms a part of the contract itself, defining the limits of the obligation beyond which no liability arises; "representation," made before or at the time of the contract, presents the elements on which the risk to be assumed is to be estimated.-Id. (B) Matters Relating to Property or Interest Insured. 278 (Ark.) A policy on a house insured as a dwelling house held, absent provision in the policy, not voided by insured keeping private boarders therein.-Milwaukee Mechanics' Ins. Co. v. Fuquay, 179 S. W. 497. (C) Matters Relating to Person Insured. 291 (Ky.) A representation of no constitutional disease, made by assured in an applica tion for a policy, held not a misrepresentation of fact, because of affliction with hemorrhagic diathesis.-Massachusetts Bonding & Insurance Co. v. Duncan, 179 S. W. 472. 291 (Tex.Civ.App.) That insured was not in sound health at time of delivery of a life insurance policy as required by its provisions held a good defense to suit thereon.-American Nat. Ins. Co. v. Anderson, 179 S. W. 66. Misstatement as to insured's health made in his application held material to the risk.-Id. Misstatement as to insured's health made in his application held, under Rev. St. 1911, art. 4751, subd. 4, and article 4947, not excused by his ignorance.-Id. X. FORFEITURE OF POLICY FOR (A) Grounds in General. 310 (Mo.App.) Where the by-laws of the company were expressly made part of the contract by a life policy, they providing that a proceeding must be had to forfeit the policy for the making of false statements in the application, such policy was not forfeited for such false statements, in the absence of any proceeding to that end.-Jennings v. National American, 179 S. W. 789. (B) Matters Relating to Property or Interest Insured. XII. RISKS AND CAUSES OF LOSS. (C) Guaranty and Indemnity Insurance. 430 (Tenn.) Policy insuring physician against liability for mistake of assistant "while acting under assured's instructions" held not to cover case treated by assistant without instructions other than previous general instructions.Seay v. Georgia Life Ins. Co., 179 S. W. 312. XIII. EXTENT OF LOSS AND LIA- (D) Life Insurance. 515 (Ky.) That death was caused by strain held not to limit recovery of beneficiary to amount provided for as disability indemnity to assured in case of strain.-Massachusetts Bonding & Insurance Co. v. Duncan, 179 S. W. 472. XIV. NOTICE AND PROOF OF LOSS. 533 (Tex. Civ.App.) Under Vernon's Sayles' Ann. Civ. St. 1914, art. 4874, where property insured is totally destroyed by fire, the liability of the insurance company accrues immediately after the occurrence of the fire, regardless of stipulations as to notice and proof of loss.Fire Ass'n of Philadelphia v. Richards, 179 S. W. 926. 539 (Tex. Civ.App.) Under Vernon's Sayles' Ann. Civ. St. 1914, art. 5714, a stipulation in a fire insurance policy that proof of loss must be made within 90 days after fire was void.W. 926. Fire Ass'n of Philadelphia v. Richards, 179 S. 549 (Ky.) Failure to delay interment indefinitely upon request of insurance company held not to avoid policy for breach of provision entitling company to hold autopsy. Massachusetts Bonding & Insurance Co. v. Duncan, 179 S. W. 472. A refusal to grant a motion for exhumation and autopsy in an action on an accident policy held not error, where defendant failed to show that an autopsy would determine the cause of death.-Id. Evidence in an action on insurance policy held insufficient to support motion for exhumation and autopsy on assured's body.-Id. Indirect refusal by beneficiary of request for autopsy as provided in policy, with suggestion of proofs in lieu, held not to avoid policy for breach of autopsy provision.-Id. 328 (Ky.) Transfer of insured property without the consent of the insurer and the subsequent retransfer to the original owner 556 (Ark.) An insurance company's adjustheld not to avoid the policy, under provisions er held authorized to waive proof of loss.-Mil waukee Mechanics' Ins. Co. v. Fuquay, 179 S. W. 497. 558 (Ark.) Filing proof of loss held waived, where insured, at the adjuster's direction, procured and furnished estimates of cost of rebuilding.-Milwaukee Mechanics' Ins. Co. v. Fuquay, 179 S. W. 497. XVIII. ACTIONS ON POLICIES. 622 (Tex.Civ.App.) A provision in a fire insurance policy that suit thereon should be brought before the expiration of 2 years from the accrual of the cause of action held invalid, under Vernon's Sayles' Ann. Civ. St. 1914, art. 5713.-Fire Ass'n of Philadelphia v. Richards, 179 S. W. 926. XX. MUTUAL BENEFIT INSURANCE. (A) Corporations and Associations. 687 (Mo.App.) Whether an insurance company did an old-line or fraternal insurance business was determined, not by what it called itself or its business, but by the character of the policy in suit and the manner in which the defendant conducted its business.-Jennings v. National American, 179 S. W. 789. (C) Dues and Assessments. 740 (Tex. Civ.App.) Deposit of total amount of assessments collected by officer of mutual benefit society without retention of commission held to be payment of assessments due on his own policies.-Knights of the Maccabees of the World v. Parsons, 179 S. W. 78. 645 (Mo.App.) In an action on a life policy, where the defense of forfeiture was not properly pleaded, the exclusion of evidence to substantiate it was proper. Jennings v. National Amer-744 (Tex. Civ.App.) Collecting officer in arican, 179 S. W. 789. In an action on a life policy providing the application should be taken as part of the contract, the plaintiff was not required to introduce the application in evidence with the policy. -Id. (D) Forfeiture or Suspension. held not to forfeit policy under his obligation rears to local lodge of mutual benefit society to not knowingly wrong or defraud the lodge.Knights of the Maccabees of the World v. Parsons, 179 S. W. 78. (E) Beneficiaries and Benefits. Under Rev. St. 1909, § 7024, in absence of pleading and evidence that alleged misrepresentations in application for life insurance were 788 (Ky.) Where assured was so insane as material to the risk, evidence tending to show to render him not mentally responsible for his their falsity could not defeat the beneficiary's suicide, policy held not avoided by suicide forfeiture' clause.-Sovereign Camp, Woodmen of recovery. Id. the World v. Ethridge, 179 S. W. 1022. (F) Actions for Benefits. on mutual benefit certificates, held to authorize a finding that assured was dead.-Knights of the Maccabees of the World v. Parsons, 179 S. W. 78. 646 (Ky.) Categorical answers to questions in application are presumed to supply the insurer with all information necessary to accept-819 (Tex.Civ.App.) Evidence, in an action ance or rejection of risk.-Massachusetts Bonding & Insurance Co. v. Duncan, 179 S. W. 472. 658 (Tex.Civ.App.) Testimony as to the condition of the insured property more than 8 months after the fire is inadmissible, in an action on a fire policy, without a showing that the condition was the same then as immediately after the fire.-Occident Fire Ins. Co. v. Linn, 179 S. W. 523. Where a piano was insured against fire, evidence in an action on the policy as to the cost of repolishing the piano which was damaged and repairing its internal mechanism was improperly received, where there was no showing of that sort of damage.-Id. 665 (Ky.) Evidence in an action by a beneficiary under an accident policy to recover for the death of assured held to sustain a finding that assured's answers to questions in the application were truthful.-Massachusetts Bonding & Insurance Co. v. Duncan, 179 S. W. 472. 665 (Tex. Civ.App.) In an action on a fire policy, wherein it was contended that a settlement was obtained by duress, evidence held sufficient to sustain the plea thereof.-Fire Ass'n of Philadelphia v. Richards, 179 S. W. 926. It is not necessary that the evidence conclusively show the death of assured.-Id. 825 (Ky.) In an action on a life policy defended for suicide, evidence held sufficient to go to the jury on the question of assured's irresponsible insanity.-Sovereign Camp, Woodmen of the World v. Ethridge, 179 S. W. 1022. INTERPLEADER. See Action, -57. II. PROCEEDINGS AND RELIEF. 668 (Ark.) Whether an insurance company's adjuster received estimates of cost of rebuilding, which insured testified he mailed to him properly addressed, held a question for the jury. -Milwaukee Mechanics' Ins. Co. v. Fuquay, 23 (Tex. Civ.App.) That defendants pleaded 179 S. W. 497. Whether the adjuster waived forfeiture be- on information and belief that money was due cause of oil being kept on the premises in great-H. and not plaintiff held not to show such parer quantity than permitted held a question for tiality as prevented them from interpleading H. the jury on evidence that he, having a list of Pulkrabeck v. Griffith & Griffith, 179 S. W. the articles kept in the house, directed insured. to send estimates of cost of rebuilding.-Id. 282. INTERSTATE COMMERCE. 668 (Ky.) Whether answer that it was good, in application for insurance, to question See Carriers, 32; Commerce. as to mental and physical condition, was truthful, held for jury.-Massachusetts Bonding & Insurance Co. v. Duncan, 179 S. W. 472. 669 (Tex.Civ.App.) A requested charge that, the market value after the fire of the piano insured not having been shown, no recovery could be had, held properly refused, under the evidence. Occident Fire Ins. Co. v. Linn, 179 S. INTERVENTION. See Parties, 40. INTOXICATING LIQUORS. See Carriers, 45, 90-92; Commerce, 8; I. POWER TO CONTROL TRAFFIC. dence held to warrant conviction.-Winterman 6 (Mo.App.) The traffic in intoxictaing liq-v. State, 179 S. W. 704. uors derives its authority only from statute, and 236 (Tex.Cr.App.) To warrant a shipper's right to an express company's performance of its contract to deliver intoxicating liquors C. O. D. is always subject to the police power of the state.-Danciger v. American Express Co., 179 S. W. 797. convic tion of pursuing the business of selling intox- 10 (Ark.) Under Kirby's Dig. § 5438, a city may impose a license fee upon both wholesale238 (Tex.Cr.App.) In a prosecution for unand retail selling, although both are conducted lawfully selling intoxicating liquor in a prohiby the same person in the same room, and bition county, the positive testimony of the though the state and county tax under sections state's witness that defendant sold him intoxi5109-5111 does not require a wholesale tax in cating liquor as charged, denied by defendant, such a case.-Gunther v. City of Hot Springs, made the offense a question for the jury.179 S. W. 505. Grisham v. State, 179 S. W. 1186. IV. LICENSES AND TAXES. INTOXICATION. INVESTMENT. 46 (Ark.) Where the statute authorizing See Carriers, 284. municipalities to license, tax, or suppress retailers and wholesalers of liquor fixes no maximum fee which may be charged, an ordinance fixing the license fee cannot be void because the See Remainders, 16. amount is unreasonable.-Gunther v. City of Hot Springs, 179 S. W. 505. V. REGULATIONS. 1122 [New, vol. 20 Key-No. Series] the shipment of intoxicating liquor into states INVITEES. in which its sale is unlawful, only when the See Appeal and Error, 171-179. VI. OFFENSES. See Negligence, 32. ISSUES. JEOPARDY. JITNEYS. See Criminal Law, 170-200. 139 (Ky.) In spite of Ky. St. 1915, § 2569 et seq., one may lawfully have in his possession liquor purchased where its sale is lawful.-Com- See Carriers, 2, 4; Constitutional Law, monwealth v. White, 179 S. W. 469. 141 (Tex.Cr.App.) That defendant may have been in some other business would not prevent him from pursuing the occupation of selling liquor to all who applied to him.-Bagley v. State, 179 S. W. 1167. 207, 208; Injunction, 65; Licenses, 7; Municipal Corporations, 121, 697, 703. JOHNSON GRASS. See Agriculture, 8. JOINDER. 150 (Tex.Cr.App.) Under Pen. Code, art. 611, the offense denounced is the sale of intoxicants without a license, and not engaging in the business of selling without a license.-Winter- See Indictment and Information, 128. man v. State, 179 S. W. 704. VIII. CRIMINAL PROSECUTIONS. 223 (Tex.Cr.App.) On a trial for selling whisky in prohibition territory, the time and place where the prosecuting witness claimed to have bought the whisky from accused were directly in issue and properly shown.-Engman v. State, 179 S. W. 569. JOINT ADVENTURES. 5 (Ky.) In an action on a contract for the purchase and sale of timber whereby plaintiff was to have half the profits less purchase money advanced by defendants, the charge to the jury held good.-Daniel v. Daniel, 179 S. W. 5. JOINT CONTRACTS. 224 (Ky.) The commerce clause of the United States Constitution attaches to lawful shipments of liquor, and courts will not presume, See Insurance, 74. JOINT TENANCY. in the absence of proof, that a record of inter- 226 (Tex.Cr.App.) On trial for selling whis- 236 (Tex.Cr.App.) In a prosecution for violating the prohibition law, evidence held sufficient to sustain a conviction.-Sloan v. State, 179 S. W. 111. 236 (Tex. Cr.App.) Evidence, on a prosecution for pursuing the business of selling intoxicating liquor in prohibition territory, held to support a conviction, especially when aided by plea of guilty.-Luttrell v. State, 179 S. W. 566. 236 (Tex.Cr.App.) In a prosecution for selling intoxicating liquor without a license in a county where prohibition was not in force, evi Counties, 22 (Ky.) One is disqualified by interest to vote as a member of a county's fiscal court on a motion to fix salaries, including his own county judge.-Hurt v. Morgan County, 179 S. W. 255. 22 (Tenn.) Judge of juvenile court pointed under Priv. Laws 1913, c. 277, which provided no salary, held entitled to salary created by Act of 1915, under Const. art. 6, § 7.State v. Brown, 179 S. W. 321. JUDGMENT. See Appeal and Error, 493, 907; Courts, ed could not be made in vacation.-Moore v. Toyah Valley Irr. Co., 179 S. W. 550. IX. OPENING OR VACATING. 391 (Ark.) In order to vacate a judgment for fraud practiced by the successful party, it is necessary that the defense of the action be sufficiently alleged and that such defense be adjudged a valid one.-Smith v. Minter, 179 S. W. 341. X. EQUITABLE RELIEF. (A) Nature of Remedy and Grounds. ગ (Tex. Civ.App.) The "judgment" of a court is what the court pronounces; its "rendition" is the judicial act by which the court settles and declares the decision of the law upon the mat-416 (Ky.) That a note was not assigned in ters at issue; and its "entry" is the ministerial act by which the enduring evidence of the judicial act is afforded.-Moore v. Toyah Valley Irr. Co., 179 S. W. 550. 17 (Ky.) Under Civ. Code Prac. § 135, plaintiff, whose petition in an action to enforce a vendor's lien note alleged a cause of action on other notes not then due, was entitled to a judgment on the notes maturing after the petition was filed, without other process.-Stone v. Daniels, 179 S. W. 831. IV. BY DEFAULT. (B) Opening or Setting Aside Default. 138 (Ky.) In action to enforce vendor's lien notes, answer, tendered after judgment, filed with motion to set aside judgment, setting up deficiency and claim of set-off, without showing why the deficiency could not have been sooner discovered, held to show on its face lack of diligence.-Stone v. Daniels, 179 S. W. 831. VI. ON TRIAL OF ISSUES. (A) Rendition, Form, and Requisites in General. 199 (Tex. Civ.App.) The court had no power to render judgment in disregard of the jury's findings; its power being limited to setting aside the verdict and granting new trial.-Postal Telegraph Cable Co. of Texas v. De Krekko, 179 S. W. 525. (B) Parties. 240 (Tex.Civ.App.) Where the verdict found a joint liability against defendants, there was no error in a judgment decreeing a joint and several liability.-San Antonio U. & G. Ry. Co. v. Yarbrough, 179 S. W. 523. writing by the payee does not render void the default judgment obtained thereon by another, so as to authorize enjoining its collection.Ross v. Ross, 179 S. W. 454. (B) Jurisdiction and Proceedings. 461 (Ky.) Evidence in a suit to have a judgment for sale by way of partition set aside for fraud in procuring it held to show no fraud, but abandonment of an agreement for division through disinterested persons.-Jordan v. Cromwell, 179 S. W. 407. XIII. MERGER AND BAR OF CAUSES (A) Judgments Operative as Bar. 559 (Ky.) That plaintiff, in a suit on a fire policy, has been convicted of arson in setting fire to the insured building, is not a bar to his recovery.-Liverpool & London & Globe Ins. Co. v. Wright, 179 S. W. 49. 570 (Mo.App.) Where demurrer to the evidence was sustained and an involuntary nonsuit taken which the court refused to set aside, judgment held not to bar a new action under Rev. St. 1909, § 1900.-Woods v. Missouri Pac. Ry. Co., 179 S. W. 727. (B) Causes of Action and Defenses Merged, Barred, or Concluded. 592 (Mo.App.) Where a demand arises out of separate and distinct causes of action, the rule against splitting causes of action obviously does not apply; and, where the respective demands grow out of independent acts, contracts, or transactions, they cannot be treated as parts of a single cause.-Danciger v. American Ex (C) Conformity to Process, Pleadings, Proofs, and Verdict or Findings. 256 (Tex. Civ.App.) Under Rev. St. Rev. St. arts. 1986, 1990, 1994, the court must conform the judgment to the special findings of the jury.-press Co., 179 S. W. 806. McLemore v. Bickerstaff, 179 S. W. 535. 256 (Tex.Civ.App.) The issues found by the jury should respond to the pleadings, and if they do not the issues so found should be regarded as immaterial, and not be considered in rendering the judgment.-Morris v. McSpadden, 179 S. W. 554. 597 (Mo.App.) Shipper's recovery against express company for conversion of number of shipments of intoxicating liquors held not a bar to a subsequent action for the conversion of other shipments made under separate contracts. Danciger v. American Express Co., 179 S. W. 806. XV. LIEN. In a suit for partnership accounting, finding as to funds not divided by agreement held im-769 (Tex. Civ.App.) Indexing of an abstract material, no division by agreement having been of a judgment duly recorded is, under Vernon's pleaded, and not to render judgment on the oth- Sayles' Ann. Civ. St. 1914, arts. 5614-5616, iner findings erroneous.-Id. dispensable to the creation of a lien.-Whitaker v. Hill, 179 S. W. 539. VIII. AMENDMENT, CORRECTION, 297 (Tex.Civ.App.) Court held to have authority to correct its minutes to make judgment dispose of the rights of all parties, as was done by the judgment as actually rendered.-- Moore v. Toyah Valley Irr. Co., 179 S. W. 550. 788 (Tex.Civ.App.) Judgment creditor may, notwithstanding unrecorded deed, acquire a lien by complying with Vernon's Sayles' Ann. Civ. St. 1914. arts. 5614-5616, or by levy of execution without notice under articles 6827, 6828, of a third person's ownership, and under article 6824, subject the land to his judgment.Whitaker v. Hill, 179 S. W. 539. 299 (Tex.Civ.App.) Under Rev. St. 1911, XVII. FOREIGN JUDGMENTS. arts. 2015, 2016, held that, where judgment as entered did not dispose of rights of certain par-822 (Ark.) Former judgment in another ties, correction to conform to judgment render-state, dismissing suit to set aside deed on See Appeal and Error, 708; Guardian and Ward, 77-107; Remainders. 31 (Ky.) Though written exceptions to judicial sale were not traversed in writing, they are not admitted, and the exceptor is not entitled to have them sustained for that reason. -Graves' Committee v. Lyons, 179 S. W. 413. 35 (Ky.) A judicial sale should not be set aside except for cause interfering with bringing the reasonable value of the property sold, the court taking into consideration the rights of all. -Bethurum v. Baker, 179 S. W. 436. JURISDICTION. See Courts; Justices of the Peace, 58. JURY. See Appeal and Error, 685, 922; Criminal Law, 185, 854, 866, 925, 928, 1148; Equity, 377-385; New Trial, 49; Trial, 370-374. II. RIGHT TO TRIAL BY JURY. 10 (Ky.) The constitutional right of jury trial exists only where by the common law a jury trial was customarily had, and the right to trial by jury means a trial according to the course of the common law.-Stearns Coal & Lumber Co. v. Commonwealth, 179 S. W. 1080. 13 (Ky.) Where a distinct legal issue is made in an equitable action, either party may have such issue decided by a jury.-Procter v. Tubb, 179 S. W. 620. 13 (Ky.) In owner's action against a contractor to remodel a house, to cancel a lien, such owner claiming damages by defective reconstruction, the contractor had the right to a jury trial as to whether there was anything due him.-Scott v. Kirtley, 179 S. W. 825. 14 (Mo.App.) Petition, seeking a disaffirmand the return of the consideration paid, held ance of contract entered into during minority to show a case of equitable jurisdiction, not interfered with by Rev. St. 1909, § 2786, relating to the ratification of minors' contracts.Moser v. Renner, 179 S. W. 970. 25 (Ky.) The right to a jury trial as to legal issues in an equitable action depends upon whether application is seasonably made.-Procter v. Tubb, 179 S. W. 620. The application for the submission of legal issues to a jury in an equitable action must be made when the answer is filed, or within a reasonable time.-Id. What is a reasonable time for a party to an equitable action to apply for a jury trial as to legal issues is a matter within the sound discretion of the trial court.-Id. Where defendant in equity suit waited several months, after filing answer and until after the case had been referred on his motion, application for a jury trial as to the legal issues was too late.-Id. IV. SUMMONING, ATTENDANCE, DISCHARGE, AND COMPENSATION. 75 (Ky.) Under Ky. St. § 2261, trial courts are without authority to discharge a second jury impaneled after the discharge of the regular first panel after a week's service, to impanel a third jury for the succeeding week, and to continue the practice for the term.-Imperial Jellico Coal Co. v. Fox, 179 S. W. 1032. V. COMPETENCY OF JURORS, CHALLENGES, AND OBJECTIONS. 97 (Mo.App.) In suit for death of two year old girl, overruling defendant's challenge for cause to a juror who stated that if the evidence were evenly balanced his sympathies would probably influence him in favor of plaintiff, unless otherwise instructed, held proper.Albert v. St. Louis Electric Terminal Ry. Co., 179 S. W. 955. 99 (Ark.) Opinion formed and expressed as to guilt of defendant held not to disqualify juror to sit in subsequent trial of defendant's sanity at the time of trial for the crime.Dewein v. State, 179 S. W. 346. 103 (Ark.) A juror is not disqualified because persons had detailed to him the facts as testified to in the justice court, and thought he had formed an opinion therefrom, where he says he can and will disregard all this and fairly try defendant on the evidence.-Tisdale v. State, 179 S. W. 650. VI. IMPANELING FOR TRIAL AND OATH. 146 (Tex.Cr.App.) Where veniremen failed to appear and answer as their names were called in impaneling the jury, but were later called and examined, and the defendant exhausted only 12 of his 15 peremptory challenges, there is no error in proceeding with the trial.-Thompson v. State, 179 S. W. 561. |