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XI. ESTOPPEL, WAIVER, OR AGREE-
$378 (Tex.Civ.App.) An insurer, whose agent was fully informed of the interest of the party named in the policy as the insured, who in fact had an insurable interest, and that the party named as mortgagee and payee in fact the owner, could not be heard to say that it delivered what it then knew to be an invalid policy, so as to defeat recovery by the party designated as the insured.-Western Assur. Co. v. Hillyer-Deutsch-Jarratt Co., 167 S. W. 816.
§ 388 (Mo.) Where a life policy was issued through an agent and put into effect by payment of the first premium to him, a tender to him of the second premium was made to one having authority to receive it, and insurer could not, to defeat a recovery on the policy, deny his authority.-Halsey v. American Central Life Ins. Co., 167 S. W. 951.
$553 (Tex.Civ.App.) Where a policy provided that it should be void if insured concealed or misrepresented in writing any material fact or circumstance concerning the insurance, or
§ 379 (Ark.) Where an application for accident insurance was written by the agent with-in case of any fraud or false swearing, the "writout consulting the assured, the company is ing," "fraud," or "false swearing" were referchargeable with the knowledge of its own agent, able to misrepresentations and misstatements and is estopped from denying that which the in the proof of loss.-Fidelity-Phenix Fire Ins. Co. v. Sadau, 167 S. W. 334. agent has asserted to be true.-Maloney v. Maryland Casualty Co., 167 S. W. 845.
§ 379 (Mo.App.) An insurer was not released because a paster attached to the policy when the property was moved stated that it was located in a building used as a dwelling, whereas it was a mercantile building, where the insured stated the true facts to the agent from whom he procured the policy when the paster was attached, provided such agent was the agent of the insurer.-Lehmann v. Hartford Fire Ins. Co., 167 S. W. 1047.
XII. RISKS AND CAUSES OF LOSS. (E) Accident and Health Insurance.
§ 464 (Ark.) Where an injury occurs without the agency of the insured, it is accidental within the meaning of an accident insurance policy, even though it is brought about designedly by another person.-Maloney v. Maryland Casualty Co., 167 S. W. 845.
XIII. EXTENT OF LOSS AND LIA-
(B) Insurance of Property and Titles. § 499 (Tenn.) Where insurer refused to replace machinery destroyed by fire with another plant, which was then cheap, or to furnish the money to buy it, it could not insist that the loss by the fire should be measured by the value of the plant it refused to buy.-Gulf Compress Co. v. Insurance Co. of Pennsylvania, 167 S. W. 859.
Insured, in a fire policy covering a machine obtained at a sacrifice sale for $11,500 and insured at $15,000, held ent to recover on the basis of the actual cash value of the property at the time of the loss, in view of the failure of insurer to procure another machine equally good for $15,000.-Id.
§ 537 (Ark.) Where an accident insurance policy required notice of the disability or death to be given as soon as reasonably possible after the accident, a beneficiary, on giving the required notice can recover for the accidental death, although the insured was living and conscious for a long time after receiving the injury and gave no notice thereof to the company.- Maloney v. Maryland Casualty Co., 167 S. W. 845.
(C) Guaranty and Indemnity Insurance. § 514 (Tenn.) Assured, under an employer's liability policy, not having paid a judgment covered against it by an employé, held not entitled to recover on the policy.-Atlas Hardwood Lumber Co. v. Georgia Life Ins. Co., 167 S. W.
$555 (Mo.App.) The proviso in Rev. St. 1909, 8 6948, for extended insurance in case notice of claim and proof of death shall be submitted to insurer within 90 days after death of insured, is for the benefit of insurer and may be waived by it.-Chandler v. John Hancock Mut. Life Ins. Co., 167 S. W. 1162.
§ 558 (Mo.App.) Where the act relied on to constitute a waiver by insurer of the right to receive notice and proof of death of insured within 90 days to enable a recovery on the policy for extended insurance occurs after the 90 days, the act must possess some elements of estoppel.-Chandler v. John Hancock Mut. Life Ins. Co., 167 S. W. 1162.
Where insurer admitted liability for a paid. up policy, but denied liability for extended insurance, demanded by the beneficiary, who had failed to furnish proof of loss within the statutory 90 days, the act of insurer in thereafter furnishing blank forms for proofs of death and receiving proofs of death was not a waiver of the statutory provision.-Id.
Furnishing blanks by insurer after the time allowed for making proof of death is no waiver of a forfeiture caused by failure to furnish proof of death within the required time.-Id.
§ 558 (Tex.Civ.App.) In an action on a fire policy, facts held not to show a waiver of the provision requiring proof of loss.-FidelityPhenix Fire Ins. Co. v. Sadau, 167 S. W. 334.
$560 (Mo.App.) Mere receipt of proofs of death after the time for furnishing them, and failure to object on that ground, is not waiver by insurer of the failure to furnish proofs within the time required.-Chandler v. John Hancock Mut. Life Ins. Co., 167 S. W. 1162.
XV. ADJUSTMENT OF LOSS.
§ 569 (Tenn.) An insurer, agreeing to arbitrate the amount of a loss, thereby confesses its liability, and it cannot escape from the admission by subsequently violating the arbitration agreement.-Gulf Compress Co. v. ance Co. of Pennsylvania, 167 S. W. 859.
glary policy was adjusted, and a release in full § 579 (Mo.App.) Where a claim upon a burpayment was executed, the settlement, in the absence of fraud, could not be reopened and the insurer held liable for other losses omitted by mistake, unless it was unavoidable; but, where re-insured' did not discover the other losses until more than a month later, there was a lack of diligence defeating a further claim under the policy.-Brady v. New Jersey Fidelity Ins. Co.,
167 S. W. 1171.
XIV. NOTICE AND PROOF OF LOSS.
§ 533 (Tex.Civ.App.) A provision in a fire policy requiring proof of loss and a signed and sworn statement by insured showing the property lost or damaged and his knowledge and belief as to the time and origin of the fire was reasonable and valid.-Fidelity-Phenix Fire Ins. Co. v. Sadau, 167 S. W. 334.
$ 602 (Mo.App.) Evidence in an action on an insurance policy held to warrant a finding of vexatious delay in the payment of the loss, for which damages of 10 per cent. of the loss and an attorney's fee of $100 was assessed, under
XVII. PAYMENT OR DISCHARGE,
A claim for damages for vexatious delay of the insurer in paying a loss, under Rev. St. 1909, § 7068, providing that in an action on a policy the court may in such case allow the plaintiff damages, could be assigned along with the insured's interest under the policy after the loss.-Id.
Rev. St. 1909, § 7068.-Lehmann v. Hartford, fact concerning the health, condition, or physiFire Ins. Co., 167 S. W. 1047. cal history of the applicant which would naturally have influenced the insurer in determining whether to issue the certificate.-Modern Brotherhood of America v. Jordan, 167 S. W. 794.
§ 723 (Tex.Civ.App.) "Material to the risk,"
8724 (Mo.App.) Where a state agent of a fraternal benefit association offered to refund the initiation fee paid by a person to whom a certificate had been issued but not delivered with a view to the formation of a new lodge, but the beneficiary refused to accept it, and brought suit 36 days after the death of the person dying before initiation, there was no waiver of the right to insist on an initiation.Porter v. Loyal Americans of the Republic, 167 S. W. 578.
8726 (Mo.App.) Forfeitures are not favored, and contracts of insurance by fraternal associations, providing for forfeiture, should be construed strictly against the insurer.-Brittenham v. Sovereign Camp Woodmen of the World, 167 S. W. 587.
Where the conditions and provisions in a certificate of life insurance are ambiguous, they should be construed most strongly against those for whom they are introduced.-Id.
In construing an insurance certificate issued by a fraternal association, all parts, both printed and written, should be given effect.-Id.
(C) Dues and Assessments. $741 (Tex.Civ.App.) That a mutual benefit certificate holder pays illegal assessments does not estop him or his beneficiary from questioning the legality of subsequent similar assessments.-Supreme Lodge K. P. v. Mims, 167 S. W. 835.
8743 (Mo.App.) Where a person to whom a beneficiary certificate had been issued but not delivered died before his initiation, and no administrator was appointed, a tender into court of the initiation fee by the association after the refusal of the beneficiary to accept is a sufficient offer to return the fee to relieve the association from liability.-Porter v. Loyal Americans of the Republic, 167 S. W. 578.
§ 743 (Tex.Civ.App.) Where the holder of certain certificates in a benefit society changed them for a single certificate in another class, and to do so agreed to surrender all his right. title, and interest therein, he was only entitled to recover, after he had become uninsurable, for defendant's breach of the contract assessments and interest paid subsequent to the change.-Supreme Lodge K. P. v. Mims, 167 S. W. 835.
(D) Forfeiture or Suspension.
9, a certificate issued by a fraternal insurer
ham v. Sovereign Camp Woodmen of the
$750 (Mo.App.) An agreement providing for a forfeiture in case assessments are not paid on an insurance certificate issued by a fraternal association will be enforced regardless whether the condition be considered precedent or subsequent.-Brittenham v. Sovereign Camp Woodmen of the World, 167 S. W. 587.
§ 753 (Tex.Civ.App.) Where a member at large of a fraternal order paid dues and as
to the supreme officers, who received them with-
$755 (Mo.App.) Under the direct provisions of Sess. Acts 1911, p. 292, § 22, no subordinate officer or subdivision of a fraternal insurer can waive provisions in the contract of insurance, when the constitution expressly prohibits such waiver.-Brittenham v. Sovereign Camp Woodmen of the World, 167 S. W. 587. Where the officers of a fraternal insurer did not know that a member had been engaged in a prohibited occupation, which worked a forfeiture, because neither notice was given nor ditional premiums paid as required, the refusal of payment on another ground does not estop the insurer from setting up the forfeiture. -Id.
$ 756 (Mo.App.) Where the by-laws of a fraternal insurer provided that if a member engaged in prohibited occupations, the certificate should be void unless he gave notice and paid an additional premium, the failure of a member, who engaged in a prohibited occupation, to give notice and pay premiums, invalidated the certificate without action by the insurer.Brittenham v. Sovereign Camp Woodmen of the World, 167 S. W. 587.
(F) Actions for Benefits.
§ 818 (Tex.Civ.App.) In an action upon benefit certificate, defended on the ground that the insured falsely stated in her application that she had never had malaria, evidence that insured completely recovered from the attack within a few days was admissible upon the issue whether the false statement was material to the risk.-Modern Brotherhood of America v. Jordan, 167 S. W. 794.
§ 138 (Tex.Cr.App.) Pen. Code 1911, art. 606, held to prohibit the shipment of liquor into local option territory as baggage, without being properly labeled.-Phillips v. State, 167 S. W. 353.
§ 146 (Tex.Cr.App.) A club alleged to have been maintained by defendant and another where liquor was sold held not a bona fide organization, but a mere pretense for the sale of
§ 819 (Tex.Civ.App.) Evidence held not to show that a false statement made by insured in her application that she had never had ma- liquor, and that defendant was properly conlaria was material to the risk.-Modern Broth-victed of selling liquor there without a license. erhood of America v. Jordan, 167 S. W. 794.-Baker v. State, 167 S. W. 340.
See Contracts, § 147; Homicide, § 9; Malicious Mischief, § 1; Partition, § 9; Partnership, 22; Specific Performance, § 28; Wills, 439.
See Appeal and Error, §§ 70-84.
See Carriers, § 92; Commerce, § 64; Criminal
III. LOCAL OPTION.
$30 (Mo.App.) Where a city, pursuant to Rev. St. 1909, §§ 7238, 7239, has caused a cenit has a population of 2,500 so as to be ensus to be regularly taken to determine whether titled to a local option election apart from the rest of the county, such census is conclusive upon the county court in a proceeding for a local option election.-State ex rel. City of Elvins v. Marshall, 167 S. W. 1050.
The result of a municipal census taken by a town under Rev. St. 1909, & 7239, authorizing the legislative body of a town to take a census to determine whether the town has 2,500 inhabitants or more so as to be entitled to vote apart from the remainder of the county to determine whether intoxicating liquors shall be sold within its limits, etc., is not subject to collateral attack.-Id.
IV. LICENSES AND TAXES.
§ 50 (Tex.Cr.App.) A bona fide club dispensing liquors to its membership is not within the law requiring a license to follow the business of selling liquors.-Baker v. State, 167 S. W. 340.
§ 148 (Ky.) Ky. St. §§ 2557 and 2557a, and Acts 1912, c. 146, held not violated by filling orders received from local option territory accompanied by the purchase price and delivering whisky to a carrier for shipment into local option territory.-Josselson Bros. v. Commonwealth, 167 S. W. 374.
§ 148 (Ky.) It was not an offense to sell whisky outside local option territory on orders received from persons residing in such territory, and to deliver the whisky to a carrier for transportation to the purchaser in such territory.-American Pure Food Co. v. Commonwealth, 167 S. W. 374.
§ 152 (Mo.) Two partners engaged in the drug business, neither of whom possessed a pharmacist's license, and who had no licensed pharmacist in their employ, were not druggists in contemplation of the statute, and had no right to sell whisky on a prescription or without it.-State v. O'Kelley, 167 S. W. 980.
§ 171 (Mo.) A member of a partnership which is engaged in the drug business, although neither of the partners nor any of their employés are licensed pharmacists, is liable for a sale of intoxicating liquor made by his copartner, although he was not present at the time.-State v. O'Kelley, 167 S. W. 980.
VIII. CRIMINAL PROSECUTIONS.
$233 (Tex.Cr.App.) On a trial for selling whisky, evidence that officers under a search warrant found in accused's trunk about 76 pint
See Discovery, § 70.
§ 236 (Mo.App.) Proof that between five and six years before a sale by a drug store clerk, $317 (Ky.) In a civil action by a wife, under and before adoption of the local option law, the Ky. St. § 1307, for damages against a saloonproprietor had pleaded guilty to selling liquor keeper for selling liquors to her inebriate huswithout a license, did not show that he author- band, an instruction as to damage held proper. ized or consented to the sale by the clerk.-State-Keyser v. Damron, 167 S. W. 381. v. Walls, 167 S. W. 1160.
§ 309 (Ky.) In a civil action by a wife against a saloon keeper for selling liquors to her inebriate husband after notice, prohibited by Ky. St. § 1307, evidence that the husband had been an inebriate for 15 years was competent.-Keyser v. Damron, 167 S. W. 381.
$236 (Tex.Cr.App.) Uncorroborated evidence
accused to make the sale to detect him in a
§ 310 (Ky.) In an action by a wife to recover damages from a licensed saloon keeper for selling liquor to her inebriate husband after notice served upon him not to do so, evidence held to sustain a finding that the notice was not, in fact, served on the saloon keeper.-Keyser v. Damron, 167 S. W. 381.
§ 264 (Tenn.) The rule that parties seeking to enjoin a nuisance must show special injury does not apply to a proceeding under Acts 2d Ex. Sess. 1913, c. 2, to enjoin the maintenance of a nuisance consisting of carrying on the sale of intoxicating liquors.-State v. Ragghianti, 167 S. W. 689.
§ 236 (Tex.Cr.App.) In a prosecution for selling intoxicating liquors in prohibition territory, testimony by the alleged buyer held not sufficient to sustain a conviction.-Barnhill v. State, See Execution, § 216. 167 S. W. 348.
§ 279 (Tenn.) Assuming that under Acts 2d Ex. Sess. 1913, c. 2, § 4, a temporary injunction against the sale of intoxicating liquors should not have been granted without notice, an injunction granted without notice was erroneous merely, and its violation was punishable as a contempt.-State v. Ragghianti, 167 S. W. 689. Petition for attachment for contempt held to allege a violation of a temporary injunction enjoining defendant from continuing sales of intoxicating liquors, disturbing his stock of liquors and bar fixtures, or entering his barroom and interfering therewith.-Id.
Shannon's Code, 5919, relative to punishment for contempt, does not apply to violations of injunctions under Acts 2d Ex. Sess. 1913, c. 2, relative to enjoining the business of selling intoxicating liquors; that act prescribing the punishment for such violations.-Id.
See Appeal and Error, §§ 169-175; Indictment and Information, § 180; Pleading, 88 378, 399.
X. ABATEMENT AND INJUNCTION.
8 259 (Tenn.) Act 2d Ex. Sess. 1913, c. 2, providing for the abatement of the business of selling intoxicating liquors as a nuisance, is constitutional.-State v. Ragghianti, 167 S. W. See Action, §§ 38-50; Dower, § 44.
§ 287 (Ky.) Under Ky. St. § 1307, giving a wife a right of action against a saloonkeeper for selling liquors to her inebriate husband, it is unimportant whether the saloon keeper knowingly sold to him; the action being predicated upon the notice.-Keyser v. Damron, 167 S. W.
See Criminal Law, §§ 169-200.
82 (Mo.) Where plaintiff and a publishing company contracted for the production of a certain publication, plaintiff to do the writing, etc., and the company the mechanical work, etc., "the cash profits to be divided, one-third to you (plaintiff), and two-thirds to us," and "your connection to be one of profit-sharing," etc., held, plaintiff's interest was that of a profitsharer and not a joint owner.-Bryan v. Thompson Pub. Co., 167 S. W. 440.
87 (Ark.) Where a contract for the purchase of land provided that the title should be taken in the name of J., but that the land should be disposed of under the joint direction of all the parties to the contract, B., one of the parties, owned an interest in the lands, as distinguished from their proceeds, and hence a purchaser with knowledge took subject to the trust, which would be administered in equity as though the title remained in J.-Bonner v. Cross County Rice Co., 167 S. W. 80.
87 (Tex.) Issuance of a certificate is not essential to constitute membership in a jointstock company.-Yeaman v. Galveston City Co., 167 S. W. 710.
XI. CIVIL DAMAGE LAWS.
§ 285 (Ky.) Under Ky. St. § 1307, prohibiting any saloon keeper from selling liquors, etc., to any inebriate, and making him liable to a civil action for damages by the wife, etc., provided written notice has been given, there are See Elections, § 126; Tenancy in Common. but three requisites for recovery, assuming there was damage: (1) That there was a selling or furnishing of the liquor; (2) that the person getting the liquor was an inebriate or habitual drunkard; (3) that it was sold or furnished in violation of a notice forbidding it.-Keyser v. Damron, 167 S. W. 381.
See Courts; Justices of the Peace.
III. RIGHTS, POWERS, DUTIES, AND
§ 22 (Tex.) An allowance to a county judge for ex officio services already performed, no salary having been previously provided, under Rev. St. 1911, art. 3852, authorizing the commissioners' court to allow him a salary for presiding over that court, etc., was not invalid un
of "any extra compensation," after service rendered.-Dallas County v. Lively, 167 S. W. 219.
IV. DISQUALIFICATION TO ACT. $ 44 (Tex.Civ.App.) Under Const. art. 5, § 11, taxpayers of the city of Dallas held disqualified to sit in the Court of Civil Appeals in review of a judgment holding that an ordinance for the issuance of bonds submitted to the electors under Dallas Charter, art. 8, had not been adopted.-Holland v. Cranfill, 167 S. W. 308.
Under Dallas Charter, art. 2, § 5, in suit to determine whether ordinance authorizing the issuance of bonds was legally adopted, taxpayers of Dallas held disqualified to sit as judges, in view of Const. art. 5, § 11, whether the ordinance was submitted to the electors under the initiative and referendum provisions of the charter (article 8) or not.-Id.
See Appeal and Error; Bail, 8 77; Carriers, § 76; Chattel Mortgages, § 287; Constitutional Law, § 309; Corporations, § 590; Courts, 88 89-107, 480; Criminal Law, §§ 951, 982, 1159; Divorce, § 172; Equity, 8 423; Execution; Judicial Sales; Justices of the Peace, §§ 126, 130, 135; Limitation of Actions, §§ 91, 99; Mortgages, § 587; New Trial, § 79; Quieting Title, § 52; Reformation of Instruments, § 45; Trial, § 296.
1. NATURE AND ESSENTIALS IN GENERAL.
§ 15 (Ark.) Where the amount for which a defendant in the circuit court was sued was not within the jurisdiction of the court, a judgment against her was void.-Harbison v. Hammon, 167 S. W. 849.
In determining the sufficiency of the allegations of a cross-action to support a default judgment against a third party, evidence on the trial of the action against defendant could not aid the pleadings in the cross-action.-Id.
§ 17 (Mo.) The Georgia statutes authorizing judgments against nonresidents by attachment without service of any notice or writ of attachment, either personally, by publication, or otherwise, are not in violation of the United States Constitution, as the legal seizure of the property is constructive notice.-Kwilecki v. Holman, 167 S. W. 989.
§18 (Ky.) A petition sufficiently alleging the publication of an article which was libelous per se and its application to plaintiff will sustain a judgment in plaintiff's favor.-United Mine Workers of America v. Cromer, 167 S. W. 891.
III. ON CONSENT, OFFER, OR AD
§ 251 (Ky.) Under a petition charging negligence in general terms, a servant could recover for the gross negligence of the master's servants, superior in authority to himself, in op
$16 (Tex.Civ.App.) A party, against whom a defendant by a cross-action sought to recov-erating the car by which he was injured, but not er judgment, who did not enter an appearance, for the master's failure to use ordinary care to was not entitled to a judgment in his favor, if furnish him a reasonably safe place to work, the cause of action alleged against him was not or reasonably safe appliances.-Ohio Valley subject to general demurrer.-Reserve Loan Coal & Mining Co. v. Heine, 167 S. W. 873. Life Ins. Co. v. Benson, 167 S. W. 266.
VI. ON TRIAL OF ISSUES. (C) Conformity to Process, Pleadings, Proofs, and Verdict or Findings.
§ 252 (Tex.Civ.App.) Where plaintiffs, having title to 160 acres by adverse possession, received from the record owner a deed to 200 acres, sold 100 acres, and sued to cancel the deed and vendor's lien, court held not to have erred in rendering judgment in determining the shares of the parties in the purchase price for the 100 acres, though such relief was not asked.Stewart v. Williams, 167 S. W. 761.
§ 256 (Tex.Civ.App.) In an action in the nature of trespass to try title, where the jury found for the plaintiff for the quieting of her title and for a sum of money, judgment based upon findings of the court as to incumbrances, not included in the verdict, held improper.Lester v. Hutson, 167 S. W. 321.
§ 85 (Mo.App.) Where a petition in an action on a life policy was sufficient to support a judgment for whatever amount was due and insurer conceded its liability for paid-up insurance, while the beneficiary demanded a judgment for
the extended insurance to which he was not en
titled, the court should render judgment for the amount due for paid-up insurance.-Chandler John Hancock Mut. Life Ins. Co., 167 S. W. 1162.
IV. BY DEFAULT.
(A) Requisites and Validity.
§ 101 (Tex.Civ.App.) In an action on a note given for premium on insurance policy, application for which was rejected, in which recovery over against the company was sought, allegations of company's cross-action against R., to whom its agent paid a part of the proceeds of the note as a commission, held insufficient to support a default judgment.-Reserve Loan Life Ins. Co. v. Benson, 167 S. W. 266.
§ 408 (Tex.Civ.App.) Where one who had secured judgment in forcible entry and detainer was not able to respond in damages for the rental value of the premises during the pendency of a suit in trespass to try title, a temporary injunction to restrain the enforcement of the forcible entry and detainer judgment will be granted in a suit in trespass to try title.-Gibbons v. Ross, 167 S. W. 17.
X. EQUITABLE RELIEF.
(A) Nature of Remedy and Grounds. $405 (Tex.Civ.App.) Plaintiff, in trespass to try title, is not entitled to restrain the defendants from enforcing a judgment secured against plaintiff's tenant in forcible entry and detainer, in which plaintiff could not rely upon his supeVrior title, without showing irreparable injury or at least greater injury than defendants would suffer from the restraining of the enforcement of their judgment.-Gibbons v. Ross, 167 S. W. 17.