873

MCMASTER v. NEW YORK LIFE INS. CO. 183 U. S. 25-42

102 N. W. 733, where first premium on policy paid on delivery, sixteen days after policy dated, expiration dates from delivery, not date of policy.

Acceptance of policies by insured does not estop his personal representative to deny that insured requested policies to go into effect December 12th.

Approved in Northwestern etc. Ins. Co. v. Farnsworth, 60 Colo. 339, 153 Pac. 704, insurance company is liable on policy procured by misrepresentations of its own medical examiner; Merchants' Mut. Fire Ins. Co. v. Harris, 51 Colo. 106, 115, 116 Pac. 147, 150, fire policy issued on contents of store, including property of manager, on application signed by manager, by agent of insurer knowing facts, without calling attention of manager that policy is charged to him personally, is enforceable by owner and manager; Pacific Mut. Life Ins. Co. v. Van Fleet, 47 Colo. 410, 107 Pac. 1091, where insurance agent filled in blanks of application and, knowing facts, falsely stated that insured had never received compensation for injuries or sickness, company is estopped to declare policy void; Cecil v. Kentucky Livestock Ins. Co., 165 Ky. 213, 176 S. W. 987, where it was agreed that policy insuring horse should not be in force. until delivered, and policy, not delivered until April 1st, was dated March 26th, delay for nearly a year in discovering mistake does not estop insured from correcting it; Floars v. Aetna Life Ins. Co., 144 N. C. 236, 11 L. R. A. (N. S.) 357, 56 S. E. 916, where person applied for accident policy, relying on representation of agent without authority to issue policy that policy would give indemnity for loss of eye equal to one-third its face value, and received policy giving weekly indemnity for loss of time, but failed to examine it for three months, he is not entitled to reformation of policy; Summers v. Alexander, 30 Okl. 203, 205, 38 L. R. A. (N. S.) 787, 120 Pac. 603, 604, where illiterate man relies on statements of insurance agent as to kind of policy he is to receive and does not discover fraud for five months, agent cannot recover in action on premium notes.

Retention of policy as waiver of mistake or fraud of insurer or agent. Note, 67 L. R. A. 708, 712, 713.

Evidence of unauthorized insertion of provision as to dating of policy is admissible.

Approved in Carrollton Furniture Mfg. Co. v. American Credit Indemnity Co., 115 Fed. 81, 52 C. C. A. 671, holding where incorrect answer to application was induced by agent's misunderstanding of question, company is estopped to forfeit; Gwaltney v. Provident Sav. Life Assur. Society, 132 N. C. 928, 44 S. E. 661, holding rule that oral agreements are merged into writing is inapplicable where written instrument by fraud executed differently from terms of agreement; Bostwick v. Mutual Life Ins. Co., 116 Wis. 437, 440, 92 N. W. 257, 259, holding insurer ac

cepting policy fraudulently differing from one represented by agent must reject same within reasonable time.

Distinguished in Glass v. Masons' Fraternal Acc. Assn. of America, 112 Fed. 499, holding provision in policy that insured would carry insurance one year and would pay assessments quarterly does not vary or contradict application.

Parol evidence rule as to carrying or contradicting written contracts, as affected by doctrine of waiver or estoppel of insurer. Note, 16 L. R. A. (N. S.) 1206, 1212, 1234.

Agent's statement showing intent is admissible.

Distinguished in Johnson v. Mutual etc. Life Ins. Co., 143 Fed. 953, 75 C. C. A. 22, where application made November 11th, policy issued January 15th, default in payment runs from November 11th, not January 15th; Connecticut Fire Ins. Co. v. Buchanan, 141 Fed. 893, 894, 4 L. R. A. (N. S.) 758, 73 C. C. A. 111, parol evidence inadmissible to show insurer's consent to breach of condition in policy requiring premises be occupied as dwelling; Young v. St. Paul etc. Ins. Co., 68 S. C. 390, 47 S. E. 682, condition against taking other insurance not waived by agent's retention of policy at request of insured until after loss; dissenting opinion in Gwaltney v. Provident Sav. Life Assur. Society, 134 N. C. 564, 565, 47 S. E. 126, 127, majority holding evidence admissible to show promise of general agent that premiums on insurance should not go up.

Insured's omission to read policy purporting to be as agreed does not bind him.

Approved in Carrollton Furniture Mfg. Co. v. American Credit Indemnity Co., 124 Fed. 31, 59 C. C. A. 545, holding company cannot forfeit policy for false answer in application, induced by representation of agent of insurer, as to question's meaning.

Construction sustaining rather than forfeiting policy of insurance should be adopted.

Approved in Hunt v. Springfield etc. Ins. Co., 196 U. S. 49, 49 L. Ed. 382, 25 Sup. Ct. 179, policy conditioned on nonexistence of chattel mortgage on property void where trust deed executed to secure payment of money; Tillamook Lumbering Co. v. Liverpool etc. Ins. Co., 175 Fed. 509, construing fire policy on sawmill and electric light plant requiring watchman day and night when mill was "idle and inoperative," and holding policy was not forfeited by failure to keep watchman while plant was temporarily shut down over Sunday; Gilchrist Transp. Co. v. Phenix Ins. Co., 170 Fed. 282, 95 C. C. A. 475, mortgage on vessel is chattel mortgage within provision of insurance policy making policy void in case of such encumbrance; Aetna Indemnity Co. v. J. R. Crowe Coal & Min. Co., 154 Fed. 555, 83 C. C. A. 431, construing contract renewing employer's liability bond and holding it did not include statement of employer that checks signed by insured employee should be

875

MCMASTER v. NEW YORK LIFE INS. CO. 183 U. S. 25-42

safeguarded by other signatures, and performance of such representation was not condition precedent to validity of bond; Mutual Reserve Life Ins. Co. v. Doblin, 137 Fed. 554, 70 C. C. A. 134, policy conditioned on insured having no other insurance, not forfeited by insured having accident insurance in absence of express condition; Taylor v. Provident Sav. Life Assur. Society, 134 Fed. 934, 936, 937, insurance policy allowing thirty days' grace in paying premium not forfeited where insured died within thirty days from time premium due if amount tendered in due time; Hope Spoke Co. v. Maryland Casualty Co., 102 Ark. 8, Ann. Cas. 1914A, 268, 38 L. R. A. (N. S.) 62, 143 S. W. 87, employer's liability policy providing that insurer would investigate accidents and defend suits and requiring immediate notice of accident was not avoided by delay in giving notice, where insurer received notice in time to make full investigation; Mays v. New Amsterdam Casualty Co., 40 App. D. C. 252, 46 L. R. A. (N. S.) 1108, construing clause in application for accident policy that no application for insurance has been declined not to include rejection of application for life insurance, where all other statements refer to accident, disease or illness insurance; L'Engle v. Scottish Union etc. Ins. Co., 48 Fla. 92, 111 Am. St. Rep. 74, 67 L. R. A. 581, 37 South. 466, concurrent insurance to amount of twenty-five hundred dollars does not avoid policy conditioned on there being no concurrent insurance if permitted by attached indorsement slip; Glenn Falls Ins. Co. v. Michael, 167 Ind. 666, 8 L. R. A. (N. S.) 708, 74 N. E. 965, provision of fire policy declaring it void, in case interest of insured is other than unconditional, and sole ownership renders policy voidable, not void, in contingency specified, and failure to promptly notify insured of intention to avoid policy waives condition; Northern Assur. Co. v. Carpenter, 52 Ind. App. 436, 94 N. E. 781, construing fire insurance policy and holding company waived condition requiring inventory of stock to be made and kept in iron safe or away from building by delivery of policy and acceptance of premium; German Ins. Co. v. Shader, 68 Neb. 9, 60 L. R. A. 918, 93 N. W. 975, acceptance of premium by general agent after loss waives provision conditioning liability on payment of premium; Stinchcombe v. New York Life Ins. Co., 46 Or. 322, 80 Pac. 215, where application states policy not to be in force until payment of premium, forfeiture dates from date of payment, not application; Kavanaugh v. Security Trust etc. Co., 117 Tenn. 56, 10 Ann. Cas. 680, 7 L. R. A. (N. S.) 253, 96 S. W. 505, where notice of premium note due was mailed but not received, and insured died after having promptly made tender of amount due on receipt of notice which company refused, policy was not forfeited; dissenting opinion in Atlas Reduction Co. v. New Zealand Ins. Co., 138 Fed. 512, 9 L. R. A. (N. S.) 433, 71 C. C. A. 21, majority holding that policy expressly stipulating against encumbrancing insured property, avoided by chattel mortgage without written consent of insurer.

Distinguished in Lefler v. New York Life Ins. Co., 143 Fed. 819, 74 C. C. A. 488, policy allowing thirty days' grace in paying premium for

feited by failure to pay note given for premium, stating that failure to pay forfeits all benefits; New York Life Ins. Co. v. Franklin, 118 Va. 423, 425, Ann. Cas. 1915A, 741, 87 S. E. 587, holding beneficiary bound by terms of life policy antedated, without fraud upon insured, for purpose of fixing maturity dates for premiums.

Policy not in force earlier than December 18, 1893, and upon which premium was paid, could not be forfeited within that year or month of grace secured by contract.

Approved in Mathews etc. Ins. Co. v. Moore, 58 Ind. App. 246, 108 N. E. 157, holding insurer liable on livestock policy requiring payment of assessments thirty days from notice, where insured receiving notice at 8 A. M. April 4th, made payment at 5 P. M. on May 4th, and horse covered by policy died at 10 P. M. on May 4th; Cilek v. New York Life Ins. Co., 97 Neb. 58, 59, 149 N. W. 50, 51, policy issued June 23, 1899, and containing stipulation for grace of one month in payment of premiums was in effect when insured died July 23, 1906, although premium due June 23, 1906, was not paid; Haas v. Mutual Life Ins. Co., 84 Neb. 694, 696, 19 Ann. Cas. 58, 26 L. R. A. (N. S.) 747, 121 N. W. 1001, 1002, allowing recovery on life insurance policies containing no provision for forfeiture or failure to pay premium upon day named, where premiums paid would extend insurance beyond date of insured's death.

Distinguished in Rose v. Mutual Life Ins. Co., 240 Ill. 52, 88 N. E. 206, denying recovery on life policy applied for on May 12th, and issued on May 23, 1904, on averment that policy was issued July 17, 1904, stating no fact showing issuance on that date, where insured died August 3, 1905, and premium for that year was unpaid; Tigg v. Register Life etc. Ins. Co., 152 Iowa, 723, 133 N. W. 323, policy issued September 23, 1907, providing for payment of annual premiums on August 7th, with thirty days of grace, was not in effect after September 7, 1908, second premium not having been paid then or before insured's death on October 22, 1908; Wilkie v. New York Life Ins. Co., 146 N. C. 523, 60 S. E. 431, under life policy dated, issued and first premium paid December 2d, stating that premiums are due on November 22d and allowing thirty days' grace, premiums are paid to next due date, and not to end of thirty days of grace as affecting extension of insurance on failure to pay premium.

183 U. S. 42-53, 46 L. Ed. 74, 22 Sup. Ct. 22, MITCHELL v. POTOMAC INS. CO.

Lighted match causing explosion is not fire within meaning of fire insurance policy excluding loss by explosion.

Approved in German American Ins. Co. v. Hyman, 42 Colo. 174, 16 L. R. A. (N. S.) 77, 94 Pac. 33, denying recovery in action on insurance policy, excluding risk by explosion, where evidence was insufficient to show fire preceded explosion and was cause of explosion; Metropolitan Casualty Ins. Co. v. Bergheim, 21 Colo. App. 531, 122 Pac. 813, holding damage to plate glass from explosion caused by heat from

877

MISSOURI ETC. RY. CO. v. HICKMAN. 183 U. S. 53-61

fire, both at distance from building containing glass, is not within excepted risk of damage resulting directly or indirectly by fire; Ross v. Liverpool etc. Ins. Co., 83 N. J. L. 342, 344, 84 Atl. 1050, 1051, where fire insurance policy excludes risk of explosion, attachment of rider and payment of additional premium for privilege of keeping gasoline for three automobiles did not supersede exemption, and company is not liable for loss for explosion resulting from striking of match; Wheeler v. Phoenix Ins. Co., 203 N. Y. 289, Ann. Cas. 1913A, 1297, 38 L. R. A. (N. S.) 474, 96 N. E. 454, fire policy excluding risk of explosion unless fre ensues, and in that event allowing recovery for damage by fire only, does not exempt company from liability for loss by explosion caused by fire; Hall v. National Fire Ins. Co., 115 Tenn. 517, 92 S. W. 402, where insurer excepted from liability for loss due to explosion, he is not liable for loss due to explosion in adjoining building caused by fire.

Distinguished in Furbush v. Consolidated Patrons' etc. Mut. Ins. Co., 140 Iowa, 246, 118 N. W. 373, explosion caused by ignition of acetylene gas was fire within meaning of fire insurance policy not excluding loss by explosion.

What are losses or damages by fire within the meaning of insurance. Note, 133 Am. St. Rep. 1092, 1093.

Liability of fire insurance company for losses by explosions under policy excepting explosions from risks covered. Notes, 5 Ann. Cas. 781, 782; Ann. Cas. 1913A, 1300.

Liability of insurer for loss caused by explosion. Note, 38 L. R. A. (N. S.) 475, 477.

183 U. S. 53–61, 46 L. Ed. 78, 22 Sup. Ct. 224, MISSOURI K. & T. RY. CO. V. HICKMAN.

State is not real party so as to preclude removal of suit by railroad commissioners to restrain railroad from violating law.

Approved in Title Guaranty etc. Co. v. Idaho, 240 U. S. 140, 60 L. Ed. 568, 36 Sup. Ct. 346, holding State suing for benefit of depositors in State Bank is actual party, and cause is not removable; Ex parte Young, 209 U. S. 152, 155, 14 Ann. Cas. 764, 13 L. R. A. (N. S.) 932, 52 L. Ed. 726, 727, 28 Sup. Ct. 441, holding suit against attorney general and railroad commission of Minnesota to enjoin enforcement of void rate statute is not suit against State, and refusing habeas corpus to discharge attorney general committed for contempt in refusing to comply with order; Ex parte Nebraska, 209 U. S. 446, 52 L. Ed. 880, 28 Sup. Ct. 581, refusing on petition for mandamus to review decision of Circuit Court that State was not necessary party to suit brought by attorney general to enjoin nonresident railroad from charging more than statutory rates and refusing to remand case; St. Louis etc. Ry. Co. v. Bellamy, 211 Fed. 179, suit by railroad against commission to restrain enforcement of Arkansas rate statute is not suit against State, but against commissioners as trustees for shippers, and Federal court has jurisdiction ancillary to