Daily Los Angeles herald., 1881-04-16

~ Wouu hob oNoiu Guo poIlcy un-
less made with q fraudulent inten-
| tiOn.
Helbing vs Leave, Jr., 81 CAL,
1856.
Dodge vs N. w. Nat. Ins. Co.
Wisconsin Sup. Ct, May 27,
1880, and with intention to
deceive.
National Bank VS. Ins. Co, 95th
U. S. 673.
The proof in this case shows that
the representations as to the value of
the agent of the assured were made
In good faith and without any in
tsnti0n to deceive and on the inquiry
OF the parties most likely to be cor.
rectly informed.
The valuation is generally mere
estimate and over valuation made
In good faith does not affect the va
lidity of the policy.
Otto.
AS to the alleged concealme nts by
the insured:
The application in the American
Central for the policy contains this
question:: "Have you any reason to
ffear incendiarismW To which the
answer returned is "No."
It is shown by the testimony for
the plaintiff and the defendant that
when this question was read to the
agent of the assured, he objected
and asked that it be changed. He
testifies that when he read that
question and answer he objected to
it and said: "I do fear incendiar.
ism," and requested the answer to
be changed; that Mr.. Philip, the
agent, said that was all right; every
body feared lncendiarlsm and it did
not make any difference, and
laughed it of, and declined to make
the required change.
Mr.. Philip testifies that at the
question, "Have you any reason to
fear incendiarism?" Gilmore asked
"What is that question:" said,
'That means do you fear fire?u to
which he replied, "Of course fear
fire;" to which Philip answered,
"Oh, everybody fears fire and every
body takes policies just for that
fear" That was his testimony on
the first trial.
During the present trial the fol.
lowing questions and answers were
put aud glvena
Mr.. Gardiner, counsel for defend
ant-Q.-It seems. Mr.. Philip, that
you swore on the former trial that
you told Gilmore, ipcendiarism
means, do you fear fire?
A.-No, sir.
Q.-Did you 50 tell him?
Al think 1 did. Yes, sir. Aud
after he had signed the policies he
told Inc, "What means this?"
"Well, that means if you fear in.
cendiarism-if you have reasons for
believing that somebody Is going
to fire the premises" He says,"O,
Ialways fear tire?"
AS the question of incendinrism
was under discussion between the
insurer and the insured, the answer
could have no other reference but
to fire by.incendiarism. Gilmore
swears positively that this CONVEX
sstiOn was before the policy was
signed or delivered.
1t can admit Of no doubt that the
question of incendiarism was dis
cussed between the parties in refer
ence to the risk.
| Under the authority of Clark vs..
The Insurance Company, 8 How
ard, 1t was the duty of the insurer,
when Gilmore declared he did fear
incendiarism, to ask for what rea-
son he feared and who. There is no
direct denial by Mr.. Philip Of the
testimony Of Gilmore that he re-
quested the former to change the
answer as to incendiarIsm from no
to yes, which he declined to do.
As the insurer failed to ask, un.
der the circumstances, the grounds
for the fear Of inoendlarism, he
must be held according to the de-
cisi0ns to have taken that risk
upon himself.
As the insurer was aware that
there had been one fire In the
building before the policy issued
within the knowledge Of the agent,
1t was incumbent on him to insti-
tute special inquiry.
Gilmore awears positively he
had no knowledge OF anything but
THAT fire In relation to incendiar-
ism, and 1t appears the agent of
the company had the same knowl-
ledge. And as to that fire it was
merely conjecture whether 1t was
the work Of an incendiary or mere
negligence.
Inoendiarism is a risk in gem
eral way to which every building
In town Is exposed. If Gilmore
stated that he feared it, he was not
bound to say that there was any
one with u particular antipathy to
the insured, or with any special
motive to fire the building, unl less
inquired of in relation to It.
| Keith va. Globe Ins. Co., 50
Illinois 527.
i II the answers in the application
to the American Central were re.
ported IN the application for the Ly-
coming, so as to constitute war
ranty, "only a designediy untrue
statement will avoid the policy"
May sec. l6S. Sand il any doubt
arises as to the construction, that
doubt must be construed against
the insurer who prepared the pol.
10y" ID.
The knowledge of the company
through its agent of a fact declared
In the policy to avoid it, does hot
affect the validity of the policy.
Fishbech vs. Penn. Ins. Co., 81
| CAL, 422, 426.
| The knowledge of the agent is
impaired to the principal and Is a
waiver of the conditions of the poll
10y.
| May on Insurance,SS 131, 1872.
Under the proof the case should
be treated as though the assured
had answered that he did fear in
cendiarism. Where the applicant
correctly stated the facts to the
agent, who made out the applica
ti0n, and who inserted other and
incorrect statements, held thAt the