any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall become payable sixty days after the notice and proof of the loss herein required have been received by this company.

[See "Waiver", this section.]

Liability if other Insurance; Re-Insurance.---This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss, may be provided for by agreement or condition written hereon or attached or appended hereto. Liability for re-insurance shall be as specifically agreed hereon.

Subrogation.-If this company shall claim that the fire was caused by the act or neglect of any person or corporation private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving such payment.

The right of subrogation exists at common law. In fire and marine insurance, the insurer upon paying to the insured a loss under the policy, is subrogated in a corresponding amount to the insured's right of action against any other person responsible for the loss. The insurer takes the rights of the insured merely. A release by the insured of the party responsible for the loss, will bar a recovery on the policy.

Definitions.-Wherever in this policy the word "insured" occurs, it shall be held to include the legal representative of the insured, and wherever the word "loss" occurs, it shall be deemed the equivalent of "loss or damage.

Other Conditions.---If this policy be made by a mutual or other company having special regulations lawfully applicable to its organization, membership, policies or contracts of insurance, such regulations shall apply to and form a part of this policy as the same may be written or printed upon, attached, or appended hereto.

Waiver, Agents, Knowledge.-This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be endorsed hereon or added hereto, and no offic

er, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or rerpesentative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privelege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached. Up to the time of the delivery of this policy to assured, in all transactions relating to this policy or to the property herein insured, between the assured and any agent of the company, knowledge of the agent shall be knowledge of the company, and in all transactions relating to the subject of insurance, between the insured and any agent of the company after loss, knowledge of the agent shall be knowledge of the company. [See "Waiver", this section.]

MISCELLANEOUS PROVISIONS RELATING TO FIRE INSURANCE.

Policies, what to show. Every insurance corporation doing business on the mutual plan shall contain in its name, which shall be upon the first page in every policy or renewal receipt, the word mutual, and if doing business as a cash stock corporation it shall, upon the face of its policies, express that it is stock policy.

Statement as to value of realty.-Whenever any policy of insurance shall be written to insure real property and the property insured shall be wholly destroyed, without criminal fault on the part of the insured or his assigns, the amount of the insurance written in such policy shall be taken conclusively to be the true value of the property when insured and the true amount of loss and measure of damages when destroyed.

A policy on real property is a valued policy in this state, that is, the amount of indemnity to be paid in case of total loss is fixed by the terms of the contract. Except in cases of fraud, the amount of insurance is conclusively specified in the policy as the amount to be paid in case of a total loss, but the right to rebuild exists even in such cases. As to other property, the policy is an open one in this state, that is, the sum to be paid in case of loss is to be determined by the parties after the loss. A stipulation in a policy covering real property in this state, that the actual damage in case of a total loss shall be fixed by arbitration, is void. The measure of damage in cases of loss on policies on real estate is the aggregate

amount of the policies. A building is "wholly destroyed" under this section, when there is such a destruction of the building as that, though some part still remain standing, it cannot be longer designated as a building. The test is, whether the building has lost its identity and specific character, so that it can no longer be called a building. A loss is a total loss under this section although the stone foundation, the foundation sills and the first floor of the building are not destroyed.

Co-insurance clauses. --No fire insurance company doing business in this state shall issue any policy containing any provision limiting the amount to be paid in case of loss below the actual cash value of the property, if within the amount of the insurance for which premium is paid, and no such company shall require the use of any so-called co-insurance clause or rider to be attached or made a part of any policy except at the option of the insured, and every such company shall give to every applicant for insurance the rate of premium demanded with and without such clause or rider. The commissioner of insurance, upon evidence furnished to him that any such company has failed when requested to furnish any applicant for insurance such separate rates, shall forthwith revoke the license of said company and all its agents. If any company which violates any provision of this section is incorporated under the laws of this state such violation shall be cause for forfeiting its charter, and the attorney-general shall institute proceedings to have such forfeiture declared.

Application attached to Policy. -All fire insurance corporations except town insurance corporations, millers' and manufacturers' mutual companies in cities and villages, druggists' mutual companies, church insurance corporations and retail lumber dealers' insurance associations shall, upon the issue or renewal of any policy, attach to such policy or indorse thereon a true copy of any application or representations of the assured which by the terms of such policy are made a part thereof or of the contract of insurance or referred to therein, or which may in any manner effect the validity of such policy. The omission so to do shall not render the policy invalid, but if any corporation neglect to comply with the requirements of this section it shall forever be precluded from pleading, alleging or proving such application or representations or any part thereof, or the falsity thereof or any part thereof in any action upon such policy; and the plaintiff in any such action shall not be required in order to recover either to plead or prove such application or representations, but may do so at his option.

Regarding this section our supreme court has said: "The fact that a copy of the application was not attached to the

policy when delivered to the plaintiff does not necessarily exclude the application from the case, if such application be necessary to the case of the insured. The only effect of not attaching a copy is that the insurance company is deprived of all right to introduce the same as evidence to make out its defense, or to disprove the statements made in such application if introduced by the plaintiff to sustain his action." In the case from which the above is quoted the court held that where a written application stated that the property was unincumbered, the insurance company having failed to attach a copy of the application to the policy when delivered to the insured it could not deny such statement made in the application, being estopped from showing that such statement was false. As against the insurer, the statement in the application, if same is not attached to the policy, will be conclusively presumed to be true. A copy of the application attached to the policy not having the copy of the name of the applicant thereon is not a copy of the application within the meaning of this section. The copy of the signature of the applicant is necessary.

Magistrate's Certificate of Loss. -Whenever any policy insuring property against damage or loss from any cause shall require the insured, in case of loss or damage to the insured property, to furnish the insurer a certificate or statement of a magistrate or notary public concerning the property insured or the loss or damage thereto, it shall be a compliance with any such provision to furnish a certificate or statement, conforming to the requirements of the policy in other respects, of any magistrate or notary public residing in the county where the loss or damage occurred, who shall not be interested in the claim or related to the insured.

SECTION II.

LIFE INSURANCE.

In general. -By a great weight of authority, life insurance differs from fire insurance in that the former is not a contract of indemnity, but is a mere contract to pay a certain sum of money upon the death of a person, or when he reaches a certain age in consideration of the due payment of certain premiums for a certain time. There is no "Standard" life insurance policy, as in the case of fire insurance, in this state, and the provisions in the policies are as varied as the

parties are inclined to make them. There are, however, certain clauses which are common to all life insurance policies, and these will be discussed.

Insurable interest.-In order that one may recover on a policy on the life of another, the person to whom the insurance is payable must have an interest in the life insured, otherwise it is nothing more than a wagering or gambling contract, and hence is against public policy and therefore void. Another reason given for the rule that an insurable interest in the life of the person insured must exist in order to create a valid contract of life insurance is, that a person should not have an expectation of gain to be derived from the death of another, that such a condition would create a temptation to destroy life in order to obtain such benefit, and this temptation must be counteracted by an insurable interest in the life insured. Our supreme court has cited the following, as to what constitutes an insurable interest, from a United States Supreme Court case, with approval: "It is not very easy to define with precision what will in all cases constitute an insurable interest, so as to take the contract out of the class of wager policies. It may be generally stated, however, to be such an interest, arising from the relations of the party obtaining the insurance, either as creditor of or surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life. It is not necessary that the expectation of advantage or benefit should be always capable of pecuniary estimation. But in all cases there must be a reasonable ground, founded upon the relations of the parties to each other, either pecuniary, or of blood or affinity, to expect some benefit or advantage from the continuance of the life of the assured." The mere relationship of parties has been held not in itself to constitute an insurable interest, there must be some hope of material or pecuniary gain in the continuance of the life. The interest must be in existence at the time the insurance is effected. The following have been held to have an insurable interest: Parent in life of child; sister in life of brother and vice versa; partner in life of copartner; creditor in life of debtor, at least to the amount of the indebtedness; husband in life of wife and vice versa. Married women. --Our statutes provide:

Insurance by married women of husband, son, etc.-Any