§ 2. Insurance agents and brokers. Acts of insurance agent held to be binding on the company, as within the apparent scope of his authority.-Insurance Co. of North America v. Bell (Tex. Civ. App.) 262.

§ 3. Insurable interest.

Under Rev. St. 1889, § 5853, a widow has an insurable interest in the life of her brother, and may recover on a policy on his life which he took for her benefit.-Sternberg v. Levy (Mo.) 1114.

$ 4. Avoidance of policy for misrepresentation, fraud, or breach of warranty or condition. Statements by insured in his application for a life certificate held to be warranties which, if false, would avoid the policy, though they were made through mistake and in good faith. -National Fraternity v. Karnes (Tex. Civ. App.) 576.

Where an applicant for a life certificate states that he has never used narcotics, the association cannot defeat liability thereon by showing a use of narcotics which did not amount to a custom or habit. National Fraternity v. Karnes (Tex. Civ. App.) 576.

§ 5. Forfeiture of policy for breach of promissory warranty, covenant, or condition subsequent. Where a policy provided that, if it should lapse for the nonpayment of any premium, the company would, upon the surrender within six months thereafter, issue a paid-up policy, the insured, after paying five annual premiums, was entitled to a paid-up policy, though he did not apply therefor for nearly five years after default in the sixth premium.-Manhattan Life Ins. Co. v. Patterson (Ky.) 383.

Where insured accidentally left his cash book in the insured storehouse on the night of the fire, and it was thus destroyed, there was no forfeiture of the policy, though it provided that insured should keep his books, including his cash book, in a place not exposed to a fire which would destroy the building; the information contained in the cash book being practically supplied from another source.-Niagara Fire Ins. Co. v. Heflin (Ky.) 393; Germania Fire Ins. Co. v. Same, Id.

Under a policy providing that insured should not keep a liquor saloon, and that, if he should die by reason of the violation of that condition, only the reserve value of the policy should be paid, the fact that insured owned a half interest in a saloon does not limit the recovery to the reserve value, as he did not "keep" the saloon at his death, though he had done so up to the time he became an invalid. Union Cent. Life Ins. Co. v. Hughes' Adm'r (Ky.) 850.

Where a policy of life insurance provided that, if insured should become intemperate, the company might cancel the policy, and that, if insured should die by reason of the violation of that condition, the reserve value only should be paid, the right of recovery was not limited to the reserve value, where insured was not intemperate at the time of his death, though he had been so up to six months before he died. -Union Cent. Life Ins. Co. v. Hughes' Adm'r (Ky.) 850.

The question whether there had been a substantial compliance with an iron-safe clause, requiring the preservation of an inventory of the stock insured, held properly taken from the jury.-Western Assur. Co. v. Kemendo (Tex. Sup.) 661.

A substantial compliance with an iron-safe clause held necessary to entitle the assured to the benefits of his policy.-Western Assur. Co. v. Kemendo (Tex. Sup.) 661.

The policy providing that "the entire policy shall be void," a forfeiture cannot be claimed Co. v. Walker (Tex. Civ. App.) 820. for a part of the policy.-Hartford Fire Ins.

False statement of incumbrance as to personalty held not to avoid a policy on personalty and realty; the right to forfeiture being based on the fact of all of the insured property being incumbered.-Hartford Fire Ins. Co. v. Walker (Tex. Civ. App.) 820.

Under a stipulation that the policy should become void if the subject of the insurance be personalty and be incumbered, forfeiture cannot be claimed for false statement as to incumbrances; the subject of insurance being Ins. Co. v. Walker (Tex. Civ. App.) 820. partly real and partly personal.-Hartford Fire

There being no cotton insured by a policy on a cotton gin, a warranty relating to keeping a "correct account of the cotton put into and taken out of the gin house" becomes immaterial.-Hartford Fire Ins. Co. v. Walker (Tex. Civ. App.) 820.

§ 6. Estoppel, waiver,

agreements affecting right to avoid or forfeit policy.

Course of dealings between an insurance company and the insured, under an open policy, held to be a waiver of a stipulation requiring the insured to advise the company of risks as soon as known.-Insurance Co. of North America v. Bell (Tex. Civ. App.) 262.

A life association which sends an organizer propely equipped with literature and blanks to organize a local lodge is estopped from resisting liability on the certificate by his accepting an application for insurance with a knowledge of false warranties contained therein.-National Fraternity v. Karnes (Tex. Civ. App.) 576.

Facts known by a physician who signs a medical examination certificate to enable another physician to get insurance held not to estop the association from relying on a breach of warranty.-National Fraternity v. Karnes (Tex. Civ. App.) 576.

Facts coming to the knowledge of an agent of a life association held not sufficient to estop the association from relying on a breach of warranty.-National Fraternity v. Karnes (Tex. Civ. App.) 576.

Refusal to give an instruction requested by excludes the issue of estoppel held not error defendant in an action on a life policy which under the issues. - National Fraternity v. Karnes (Tex. Civ. App.) 576.

to waive warranties, notwithstanding a stipu Under Rev. St. 1895, art. 3093, an agent held lation to the contrary in the policy.-Hartford Fire Ins. Co. v. Walker (Tex. Civ. App.) 820.

The agent, writing the answer, "No," with knowledge of its falsity, to a question in an application for insurance, waives the warranty on that point contained in the application.Hartford Fire Ins. Co. v. Walker (Tex. Cv. App.) 820.

An agent held to waive warranty against incumbrances; the applicant proposing to go to the creditor and get the exact amount of the incumbrance, which the agent waived.-Hartford Fire Ins. Co. v. Walker (Tex. Civ. App.) 820.

Evidence that answers of assured to agent
of fraternal insurance association were truth-
ful, though misstated in the application, held
admissible to show notice to the order of the
existing facts. Order of Columbus of Balti-
more City, Md., v. Fuqua (Tex. Civ. App.) 1020.
$ 7. Risks and causes of loss.

Construction of accident policy, excepting
"injuries fatal or otherwise received while, or
in consequence of having been," under the in-
fluence of intoxicants.-Campbell v. Fidelity &
Casualty Co. (Ky.) 492.

Where assured was killed by D., whom he as-
saulted, a provision of the policy excepting in-
juries resulting from "voluntary exposure to
unnecessary danger" did not preclude recovery,
unless insured realized the danger to which
he exposed himself in making the assault.
Campbell v. Fidelity & Casualty Co. (Ky.) 492.
An injury resulting in death, intentionally
inflicted upon assured by another, held sus-
tained by "accidental means,"
," within the mean-
ing of an accident policy.-Campbell v. Fideli-
ty & Casualty Co. (Ky.) 492.

§ 8. Extent of loss and liability of in-

surer.

In estimating the loss under a policy on a
stock of goods, nothing can be added to the
cash value on account of estimated profits.-
Niagara Fire Ins. Co. v. Heflin (Ky.) 393;
Germania Fire Ins. Co. v. Same, Id.

9. Notice and proof of loss.
Where there was immediate notice of loss,
followed by an arbitration and award as to the
amount of the loss, there was, under the cir-
cumstances attending the award, a waiver by
the company of the "satisfactory proof of loss"
required by the policy.-Smith v. Herd (Ky.)
841, 1121.

§ 10. Adjustment of loss.

§ 13. Actions on policies.

A provision in a policy of insurance limiting
the time within which an action may be
brought to a period less than that fixed by the
statute of limitations is valid. Smith v. Herd
(Ky.) 841, 1121.

Under the pleadings in an action on a life
policy, held error to refuse to instruct that the
falsity of such representations was a breach of
warranty which would defeat а recovery,
though they were made through mistake and
on good faith.-National Fraternity v. Karnes
(Tex. Civ. App.) 576.

Where one of the plaintiffs had no interest in
the insurance policy sued on, except as mort-
gagee, evidence of payments on the mortgage,
made after the loss and before the trial, was
admissible.-Alamo Fire Ins. Co. v. Davis (Tex.
Civ. App.) 802.

Where the owner of insured property trans-
ferred it contrary to the policy, and there was
evidence that the owner was also an agent of
the mortgagee, it was error to direct a verdict
for the mortgagee, instead of submitting issue
of notice of transfer to the jury.-Alamo Fire
Ins. Co. v. Davis (Tex. Civ. App.) 802.

The question whether there is any valid con-
policy for less than the face thereof held to
sideration to support a settlement of a life
be for the jury.-Franklin Ins. Co. v. Villeneuve
(Tex. Civ. App.) 1014.

§ 4. Mutual benefit insurance.

A fine entered against a member of a bene-
fense to an action on the certificate.-Screw-
ficial association by the secretary held no de-
men's Benev. Ass'n v. O'Donohoe (Tex. Civ.
App.) 683.

§ 11. Right to proceeds.

Where a man insured his life for the bene-
fit of his widowed sister, his creditors have no
claim to the insurance because he paid the
premiums, unless he paid more than his wages
and $300 each year for that purpose, and then
only for the excess.-Sternberg v. Levy (Mo.)
1114.

An unmarried man, living with and support
ing his widowed sister and her children, is
the head of the family, and his creditor ac-
quires no claim against the sister because the
brother paid from his earnings more for fami-
ly expenses than similar board and accommo-
dations for himself alone were worth.-Stern-
berg v. Levy (Mo.) 1114.

§ 12. Payment or discharge, contribu-
tion, and subrogation.
Where an insurance policy stipulated that the
company, on paying any loss to the mortgagee
on which it denied liability to the owner, should
be subrogated to the mortgagee's right, held a
judgment in a mortgagee's favor should decree
subrogation.-Alamo Fire Ins. Co. v. Davis
(Tex. Civ. App.) 802.

abled to perform any or all kinds of labor,
A beneficiary of a $3,000 certificate, dis-
could recover only the sum of the annual in-
stallments due at the time of the trial, and
not the entire amount of the certificate.-Su-
preme Tent of Knights of Maccabees of the
World v. Cox (Tex. Civ. App.) 971.

Under laws of a beneficial association, a
question as to whether or not plaintiff had be-
come totally disabled "to perform and direct"
held properly submitted.-Supreme Tent_of
Knights of Maccabees of the World v. Cox
(Tex. Civ. App.) 971.

A local council of a fraternal insurance as-
sociation held to have borne the relation of
agent to the supreme council, and to have
waived in its behalf a breach of warranty by
an assured and his subsequent failure to abide
by the rules of the order.-Order of Columbus
of Baltimore City, Md., v. Fuqua (Tex. Civ.
App.) 1020.

The minor son and heir of a member of a
fraternal insurance association, who failed to
name a new beneficiary after the death of his
wife, held entitled under its by-laws to recover
on a certificate without joining the adminis-
trator of the insured as a party.-Order of
Columbus of Baltimore City, Md., v. Fuqua
(Tex. Civ. App.) 1020.

INTENT.

GO S.W.-75

Whether or not a petition setting up the fact
that an execution has been levied on land and
praying a sale thereunder states a cause of ac-
tion, a judgment granting the relief sought,
however erroneous, is not void.-Kimbrough v.
Harbett (Ky.) 836.

The court held to have properly exercised its
discretion in setting aside a default.-Hulbert
v. Treadway (Mo.) 1035.

Circuit courts, in the absence of statutory in-
hibition, may set aside a default at any time
during the term at which it was rendered.-
Hulbert v. Treadway (Mo.) 1035.

A judgment by default for failure of attor-
neys to sign their answer should have been
set aside on defendant's motion, showing a rea-
sonable excuse and that he had meritorious
defense.-Fidelity & Casualty Co. of New York
v. Lopatka (Tex. Civ. App.) 268.

7. Equitable relief.
Defendant to a default in justice court held
not entitled to relief by injunction against the
judgment because of an alleged defective serv-
ice of the summons.-Sherman Steam-Laundry
Co. v. Carter (Tex. Civ. App.) 328.

Facts held to show failure of diligence in
discovering fraud in procuring a judgment, so
that plaintiffs were not relieved of the charge
of laches, and the running of the statute of
limitations was not stopped.-East Texas Land
& Improvement Co. v. Graham (Tex. Civ. App.)

472.

A complaint held not to show that due dili-
gence was used to discover fraud in procuring
a judgment, and hence properly dismissed.--
East Texas Land & Improvement Co. v. Gra-
ham (Tex. Civ. App.) 472.

It was proper to refuse defendant's applica-
tion for a new trial, made two years after
judgment, where it claimed the same defense
as set up and determined at the trial.-Luther
V. Western Union Tel. Co. (Tex. Civ. App.)
1026.

§ 8. Collateral attack.

As the service of summons on infant defend-

ants and their mother was sufficient, under
Myers' Code, § 81, if the infants had no guard-
ian, it will be presumed that such was the
fact, to sustain a judgment upon such service,
when collaterally attacked.-McNew v. Mar-
tin (Ky.) 412.

Judgment vesting title to a right of way in a
railroad on making a deposit for the owner's
benefit, pending condemnation proceedings,
prior to passage of Acts 1899, p. 105, may be
attacked collaterally in any proceeding where
it is relied on.-Missouri, K. & T. Ry. Co. of
Texas v. Chenault (Tex. Civ. App.) 55.

Where a judgment recited that both parties
announced, "Ready for trial," and there was no
served with citation, such judgment would not
evidence to show that defendant had not been
be set aside as to the defendant on the ground
that he had not been cited to appear.-East
Texas Land & Improvement Co. v. Graham
(Tex Civ. App.) 472.

89. Merger and bar of causes of action
and defenses.

Where plaintiff recovered a judgment against
defendant for breach of warranty, a defense
held unavailable in a collateral proceeding to set
aside a conveyance as fraudulent and to en-
force the judgment.-Swinford v. Teegarden
(Mo.) 1089.

Decree of appellate court setting aside a
fraudulent conveyance, and remanding cause
for further proceedings, held not res judicata.
-Rosenbaum v. Davis (Tenn. Sup.) 497.

under an execution precludes defendant from
thereafter setting up a homestead exemption;
the matter being res adjudicata.-Kimbrough v.
Harbett (Ky.) $36.

A forcible detainer proceeding, decided ad-
versely to plaintiff, was not a bar to an action
by him to recover the land.-Fain v. Miles
(Ky.) 939.

A judgment in ejectment against a father
held not to bar a suit by minor children owning
a remainder in such property.-Kirklin v. At-
las Savings & Loan Ass'n (Tenn. Ch. App.)
149.

A suit, prosecuted and defended in good faith
by a trustee for the beneficiaries, with their
'knowledge and consent, is conclusive in its re-