1902, was, as to that policy, the last "preceding inventory," and its production satisfied the requirements of the iron-safe clause as to that policy. [Judgment for plaintiff in trial court affirmed in C. C. A., 78 S. W. 378. Here reversed in favor of company and cause remanded.] Continental Ins. Co. v. Cummings et al. (Tex. S. C.): 81 Southwestern Reporter (July 20, 1904), 705. Proof of Loss-Overvaluation of Goods-Proof: The company pleaded in defense that the insured had fraudulently overvalued the goods destroyed; that in the proofs of loss the insured stated the value to be $3,646.75; that in the declaration in the case insured put the value of the goods at "about $3,400;" that the insured's privilege license covered only stock not in excess of $3,500. It was shown that at the time insured took out his privilege tax license, he had not commenced doing business, and that the fire occurred before he commenced business. Held, That this did not show a fraudulent overvaluation in the proofs of loss. [Judgment for plaintiff below. Here affirmed against company.] Home Ins. Co. v. Lowenthal (Miss. S. C.): 36 Southern Reporter (July 23, 1904), 1042. Policy Title of Insured-Knowledge of Agent-Burden of Proof: In an action upon a fire insurance policy, the burden of proof is upon the plaintiff to show that the agent knew the building was on leased ground at the time the policy was issued; and this burden is not sustained by showing that the agent, after the fire, stated that the policy in question was the first one he had put in this company, and that whenever he insured a building that stood upon leased ground now, he put it in the policy; that if he put it in this policy the company would have been responsible and a lawsuit saved. Same-Vacancy-Knowledge of Agent: The plaintiff testified that he told the agent about a year before the policy was issued; that the factory building insured was not running at that time, and that it only ran as he could make satisfactory arrangements with the patrons. Held, That this evidence was not sufficient to show that the agent knew of the vacancy at the time of the issuing of the policy or at the time of the fire. [Judgment for company below. Here reversed in favor of com- Sergent v. Liverpool and London and Globe Ins. Co. (N. Y. 89 New York Supplement (July 25, 1904), 35. Statute-Attorney's Fees-Constitutional Law: Chapter 4173, p. 101, Act Fla., approved June 3, 1893, which authorizes the recovery of attorney's fees in certain cases against insurance companies, is constitutional. Same-Same-Same: The attorney's fees provided for by ch. 4173, p. 101, act approved June 3, 1893, may, under the second section of the act, be recovered in the same suit and recovered in the same judgment as the amount due upon the policy of insurance. Same-Same-Repeal: Chapter 4173, p. 101, act approved June 3, 1893, which authorizes the recovery of attorney's fees in certain cases against insurance companies, was not repealed by ch. 4677, p. 33, act approved May 31, 1899. Same-Valued Policy Act-Defenses: Chapter 4677, p. 33, Act Fla., approved May 31, 1899, does not deprive the insurer of the right to plead that the fire was caused by the criminal conduct of the insured, or that the insurable value thereby required to be fixed and written in the policy was procured to be so fixed by fraud on the part of the assured. Same Same Constitutional Law: Chapter 4677, p. 33, Act Fla., approved May 31, 1899, is not repugnant to the Constitution of this State, nor to that of the United States. Policy Notice-Proofs of Loss-Conditions Precedent-Forfeiture: The requirements in the standard insurance policy that the insured shall give notice of loss, are conditions precedent to the right to sue, but a failure to give the notice or to make the proofs within the time stipulated will not invalidate the policy, or work a forfeiture of the rights of the insured, in the absence of a stipulation to that effect, but will merely postpone the day of payment, where such notice is given and proofs of loss made within such time as will enable the insured to bring his suit within the time limited by the policy. Same-Same-Same-What Sufficent: Where proofs of loss required to be made and served upon the company by the policy are sufficiently full to give the company notice of the loss required by another provision in the policy, the same document will be sufficient as a notice of loss, as well as proofs of loss. Proofs of loss served upon an insurance company, signed and sworn to by the insured, stating that the fire occurred at a stated hour on a day named; that it originated in the roof or attic of the building, but how it originated, or the cause thereof, was to the insured entirely unknown; that the fire did not originate by any act, design or procurement on the part of the insured, or in consequence of any fraud or evil practice done or suffered by the insured, and that any other information required by the company would be furnished on request, substantially comply with a provision in the policy requiring the proofs of loss to state the knowledge and belief of the insured as to the time and origin of the fire, particularly as the company requested no further information from the insured. Practice Agreed Case-Amendments: Trial courts have power to permit parties to withdraw from written stipulations waiving a jury and submitting the cause upon an agreed statement of facts to the court. The exercise of such power rests in discretion, and it is properly exercised where the application is made before the court has decided the cause under the written submission, and the party applying has discovered other pertinent facts since the submission was entered into, which the other party declines to embrace in the agreed statement. The fact that, by the exercise of due diligence, the omitted facts might have been discovered before the submission was entered into, does not deprive the court of the power to grant the application to withdraw. Policy Other Insurance-Waiver: Where, at the time a policy of insurance is written, other insurance exists upon the same property, and the fact is known to the agent, who communicates it to the company, and the company accepts the premium, and does not deny the validity of the policy on account of such other insurance until after a loss occurs, the company is liable, though its consent for such other insurance was not endorsed upon the policy as required by its terms. Such conduct on its part amounts to a waiver of the provision requiring written consent for other insurance, and the waiver will apply not only to the other insurance as it existed when its policy was written, but to any policy subsequently issued in lieu or renewal of such other insurance. [Judgment for plaintiffs below. Here affirmed against company.] Hartford Fire Ins. Co. v. Redding et al. (Fla. S. C.): 37 Southern Reporter (July 30, 1904), 62. Policy-Set of Books-Waiver: A provision in a fire insurance policy that a merchant will keep books showing the purchase and sale of goods for cash, credit and exchange, and produce the same, with the last inventory, in case of a loss, may be waived; and when an agent who issued a policy was informed, after the contract was made, as to the system of bookkeeping used by the insured, which did not include a cashbook, and then stated that the system was all right and would be satisfactory, the insurance company can not, after a loss, defend on the ground that a cashbook was not kept, but the requirement will be deemed to have been waived. Same-Same-Same: Where the adjuster of a fire insurance company, after a loss, learns of a non-compliance by the insured with a provision of the policy with regard to keeping books, and, instead of declaring a forfeiture therefor, negotiates with the insured for the making of other and better proofs, extends the time to make proofs, and requires the insured, at some trouble and expense, to submit to an examination under oath as to the fire and the property destroyed, the company will be deemed to have waived the right of forfeiture. [Judgment for plaintiff below. Here affirmed against company.] German Ins. Co. of Freeport v. Allen (Kans. S. C.): 77 Pacific Reporter (August 8, 1904), 529. Policy-Proofs of Loss-Condition Precedent: Unless an insurance policy in express terms provides for a forfeiture in case proof of loss shall not be made within sixty days after the destruction of the insured property, a forfeiture will not be declared by courts. Negligence of Assured-Forfeiture: The negligence of the assured, resulting in the loss of his property by fire, which will defeat a recovery on an insurance policy, must be willful and of such a degree as to amount to fraud. [Judgment for plaintiff below. Here affirmed against company.] St. Paul Fire and Marine Ins. Co. v. Owens (Kans. S. C.): 77 Pacific Reporter (August 8, 1904), 544. Policy-Over-Insurance-Knowledge of Agent-Estoppel: The policy provides that "the total insurance permitted not to exceed at any time three-fourths of the cash value of the property insured, and to be concurrent herewith," and that insurance in excess of three-fourths of the value should avoid the policy, unless permission was endorsed on the policy by the secretary. Held, That the knowledge of the soliciting agent at the time he solicited the application that the insurance, together with that already on the property, would exceed three-fourths of the value of the property, estops the company to claim a forfeiture by reason of overinsurance. Same-Same-Invalid Insurance-Forfeiture: The policy provides that in case other insurance was not valid and collectable, then "it shall be held to be an election upon the part of the insured to cancel said policy, and the same shall be void and shall stand canceled." Held, That this provision relates to insurance procured subsequent to the issuance of the policy. Same Pro Rating Loss-Invalid Insurance-Statute: The policy provided for pro rating the amount of the loss among all the companies, whether the insurance in such other companies was valid or not. Sec. 1746, Code Ia., provides that no provisions for pro rating loss shall be valid, "except as to valid and collectable insurance, any agreement to the contrary notwithstanding." Held, That the statute is to be read into the contract, and the rights of the parties thereunder became fixed at the time of the loss; and that an invalid policy of insurance on the property could not be included in fixing the pro rata liability of the defendant company. [Judgment for plaintiff below. Here affirmed against company.] Gurnett v. Atlas Mut. Ins. Co. (Ia. S. C.): 100 Northwestern Reporter (August 9, 1904), 542. Fraud of Agent-Wrongful Issuance of Policy-Liability of Agent: The company, on being informed by its agents of the writing of a policy, instructed the agent to obtain a rate of three and onehalf per cent. or cancel the policy. In response thereto, the company received the policy from the agents, marked canceled, August 21, 1900. On August 24, 1901, the agents issued another policy, without any notice to the company, to the same insured for the same rate, and on August 29, 1901, the property was burned. The company paid the loss to the insured and brought this action against the agents to recover the amount so paid. The company charged fraud and bad faith on the part of the agents, and further charged that the agents disobeyed instructions in the matter of daily reports, and fraudulently concealed from it the fact that they had issued the policy; that had it been notified of the issuance of the policy, as required by its instructions, it would not have canceled the same, and thus have escaped liability. There was no evidence to sustain all these allegations. Held, That the court below erred in directing a verdict in favor of agents. Same-Same-Same-Policy Condition: The condition in the policy requiring five days' notice as condition precedent to the cancellation of the policy being inserted for the benefit of the insured, the agents could not rely thereon to show that the company could not have canceled the policy before the loss, even if it had been informed of its issuance. Same-Same-Same-Measure of Recovery: Where the risk is not a prohibited one, the rule for damages ordinarily is the difference between the rate received and the one that should have been collected, or, if the premium has not been paid, the full amount which should have been collected. But where the gist of the action is the failure of the agent to comply with his instructions to report the risk, and the evidence is sufficient to show that the principal would have canceled the policy, had it known thereof, then the true measure of recovery is the loss suffered by the principal. [Judgment for agents below. Here reversed in favor of company.] Continental Ins. Co. v. Clark et al. (Ia. S. C.): 100 Northwestern Reporter (August 9, 1904), 524. Policy-Other Insurance-Waiver: The policy provided that it should be void in case of other insurance without the consent of the company endorsed on the policy. After the issuance of the policy, the insured, on August 8, notified the company that he had procured other insurance. On August 10, the company wrote insured, acknowledging receipt of the notice and stating, "Please state the present value of your building and give us the policy number, and we will give the matter further attention." This letter was not received by insured, and on the 10th of September the insured property was destroyed by fire. Several letters passed after the the fire, in none of which did the company claim that its policy was forfeited by reason of the other insurance. Held, That the correspondence shows that the company had not definitely determined to treat the breach of the contract as absolutely avoiding it, and the insured were justified in so understanding. Same-Same-Same: More than three months after the fire the company wrote insured, demanding payment of the note given for premium on |