Page images

notice that such place would be changed, and reply by the company that its assent must be entered on the policy, is not sufficient. Phænix Fire Ins. Co. v. Vorhis, i C. C. 326.

Where condition of policy on dwelling house is that "if the building insured be vacated or left unoccupied” the policy shall be void, the removal of tenant before his lease expires, without the knowledge or consent of the landlord, avoids the policy. Farmer's Ins. Co. v. Wells, 42 Ohio St. 519.

Neglect of the agent to make examination and fix the insurable value can not defeat the operation of the statute upon the policy, and the liability of the company in case of loss is measured by the amount mentioned in the policy ; conditions in the policy, providing for a different rule or measure, are void, as for instance that the actual value of the property at the time of loss, or cost of restoring the same, should measure the liability; or that no action shall be commenced until award of arbitrators is obtained. In absence of intentional fraud by assured, a condition or situation of the property at the time of insurance, which the examination the agent is required by statute to make should have reasonably discovered, can not defeat a recorery, and statements in the application concerning such condition or value are immaterial, and can not be fraudulent. Ins. Co. v. Leslie, 47 Ohio St. 409.

When over valuation will avoid policy, see Ins. Co. v. McCluckin, 40 Ohio

St. 42.

When over insurance will avoid policy, see Ins. Co. v. Carson, 23 B. 224.

For numerous points upon liability for the acts of agent, see Ins. Co. v. Shoemaker, 22 B. 315, and Ins. Co. v. Burget, 17 C. C. 619; Ins. Co. v. Hook, 42 B. 285, and Ins. Co. v. Baldwin, 43 B. 381; Ins. Co. v. Myers, 43 B. 376.

Where policy provided that change in ownership of goods should avoid the policy-Held, that policy was not forfeited if stock was sold, but resold to original owner before loss by fire. Ins. Co. v. Lewis, i C. C. 79. affirmed, 19 B. 173.

A provision in a policy requiring suit to be brought within twelve months from time of loss means twelve months from time of the fire, and is valid. Corn City Mut. Ins. Co. v. Schwan, Assignee, i C. C. 192.

Where the use of “gasoline or any of the products of petroleum " for lighting was forbidden by the policy-Held, that the policy was not avoided by the use of a gas generated from gasoline in a tank thirty-five feet distant. Ins. Co. v. Sinclair, i C. C. 496, affirmed, 25 B. 153.

Where a person is induced by threats of a groundless prosecution to accept a less sum than is justly owing to him on a policy of fire insurance, in satisfaction of his claim, and to surrender the same, he may maintain an action on the policy for the balance due, without returning or tendering back the money so received.

Ins. Co. v. Hull, 51 Ohio St. 270. Agent may have power to waive proofs of loss notwithstanding conditions in policy. New mortgage in place of old, not increasing the incumbrance, will not avoid policy. Ohio Farmer's Ins. Co. v. Davison, 38 B. 163 (Sup. Ct.).

Where policy is issued to a mortgagee, in case of total loss, suit may be commenced on policy before primary security is enforced. German Ins. Co. v. Mirick, 38 B. 172 (Sup. Ct.).

A clause making a policy void for fraud before or after a loss is valid, and no recovery can be had if a fictitious, exaggerated and fraudulent schedule is presented in the proofs of loss, although loss equaled amount of insurance. Capital Fire Ins. Co. v. Beverly, 14 C. C. 468.

A stipulation in a policy against taking additional insurance, is not within the provisions of 2 3643, for the reason that additional insurance does, as a matter of law, increase the risk, and if taken without the consent of the insurer, invalidates the policy. The Sun Fire Office of London v. Clark, 53 Ohio St. 414.

The examination and "change" referred to in the statute relate to physical condition of the property, not to incumbrances. The interest of a husband in a homestead owned by the wife is sufficient to support a recovery by the two jointly on a policy of fire insurance issued to both. Webster v. Dwelling House Ins. Co., 53 Ohio St. 558.

Additional insurance without the consent of the company avoids the policy (it seems where such additional insurance is stipulated against). Ins. Co. v. Frame, 51 Ohio St. 604.

As to non-occupancy and increase of risk, see note to Moody v. Ins. Co., 52 Ohio St. 12, under % 3645.

Insurer must ascertain and fix the insurable interest and value thereof. Incumbrance by mortgage after policy issued is no defense unless risk was increased thereby, which is a question of fact. Henderson v. Ohio Farmer's Ins. Co., 2 N. P. 17 (C. P.).

If insured property is destroyed by fire through fault or negligence of another than the assured, the insurer on payment will be subrogated to rights of assured. Sun Oil Co. v. Ohio Farmer's Ins. Co., 15 C. C. 355.

See article on Subrogation in Insurance, 42 B. 285, 313, 334.

As to subrogation by the company on paying a loss caused by another's wrong, see Fire Ins. Co. v. Stang, 18 C. C. 464.

A policy upon building and contents may be severable, and breach of condition as to title to land will not avoid insurance on the goods. Coleman v. Ins. Co., 49 Ohio St. 310.

Sale of interest by partner to persisting partners does not avoid policy under prohibition of assignment of policy. West v. Citizen's Ins. Co., 27 Ohio St. 1; nor does transfer of interest by one tenant in common to remaining owners under prohibition of alienation and change in title or interest. Royal Ins. Co. v. Sockman, 15 C. C. 105; affirmed, 39 B. 362.

Where the policy covers the loss by lightning but not by loss by explosion unless fire ensues, and the house insured was destroyed by force of an explosion of gunpowder, stored near by, caused by lightning, the company is not liable. German Fire Ins. Co. v. Roost, 55 Ohio St. 581.

A policy of fire insurance regularly issued, not expired or canceled, is prima facie a valid and effective policy in a suit to recover for a loss. What conditions, and their performance or breach, are required to be pleaded by plaintiff and defendant, and what constitutes occupancy, discussed. Moody v. Ins. Co., 52 Ohio St. 12.

As to occupancy, see also Ins. Co. v. Baldwin, 43 B. 38 (Sup. Ct.).

Submitting the value of the property to arbitration is not a waiver of the statutory right to recover full insured value. Ins. Co. v. Drackett, 43 B. 413; Ins. Co. v. Luce, 11 C. C. 476; affirmed 40 B. 354; nor does adjustment of amount of loss give rise to implied agreement to pay; action must be on policy. Dwelling House Ins. Co. v. Garvey, 14 C. C. 657.

A policy of fire insurance is to be governed by ?? 3643 and 3644 and the fact that the premises were mortgaged will not defeat a recovery unless there was intentional fraud by the assured, nor will occupation different from that stated in the policy if the agent knew it. United Firemen's Ins. Co. v. Kukral, 7 C. C. 356; affirmed in 31 B. 223.

Where the policy reserves the right to require an appraisal, it must be demanded by the company within a reasonable time in unambiguous teris. Grand Rapids Fire Ins. Co. v. Finn, 60 Ohio St. 513. See also 19 C. C. 114.

No appraisement of actual loss where goods totally destroyed. Penna. Fire Ins. Co. v. Carnahan, 19 C. C. 114.

As to making appraisal when only part of goods destroyed. See Phoenix Ins. Co. v. Romeis, 15 C. C. 697.

Where the loss is total, if plaintiff is entitled to recover at all, he is entitled to recover the whole amount of the policy. Sun Mut. Ins. Co. v. Hock, 8 C. C. 341; affirmed in 56 Ohio St. 735. See also 6 N. P. 134, 249.

For numerous questions of practice in suing upon a policy, see Queen Ins. Co. v. Leonard, 9 C. C. 46.

A judgment rendered against the assured, on a cognovit note, does not constitute an incumbrance within the meaning of a condition in a policy that avoids it, if the assured suffers an incumbrance to be placed on the property insured. Ins. Co. v. Bauersox, Receiver, 51 Ohio St. 567, affirming 5 C. C. 444; nor does the making of a mortgage avoid a policy as working a prohibited change in the “title, interest or possession of the property insured.” The Sun Fire Office of London v. Clark, supra.

Amount of loss need not be submitted to appraisers in case of total loss of building or structure notwithstanding concurrent insurance loss may be total, although part of structure may not be consumed. Phoenix Ins. Co. v. Port Clinton Fish Co., 14 C. C. 160; affirmed 61 Ohio St. 643; Penna. Ins. Co. v. Drackett, 43 B. 413 (Sup. Ct.).

S 3643a. Insertion of co-insurance clause in policy un

lawful-Penalty for violation-Railroad or

marine insuranceIt shall be unlawful for any insurance company doing business in this state to insert, or cause to be inserted, any condition in any policy of insurance issued in this state, upon property therein, any clause prescribing that the insured shall carry any given per cent of insurance upon insured property, or in case the assured failed to do so, he shall be held to be a co-insurer to the amount of the difference between the insurance carried and the amount required to be carried by any per cent clause set out in any policy of insurance; and any insurance company violating this section the superintendent of insurance shall forthwith revoke and recall the license or authority of it to do or transact business within this state, and no renewal of authority shall be granted to it for three years after such revocation; and it shall thereafter be prohibited from transacting any business in this state until again duly licensed and authorized. Provided, that the provisions of this section shall not apply to railroad or marine insurance. 92 0. L. 107.

§ 3643b. Arbitrators and umpires must be residents of

the county-How longIn case where arbitrators and umpires are selected to ascertain a loss under any insurance policy issued on property in this state, said arbitrators and umpires shall be residents of the county in which such loss has occurred, at least one year prior to the said loss.

91 V. 357

§ 3644. When solicitor held to be agent of insurer

A person who solicits insurance and procures the application therefor shall be held to be the agent of the party hereafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding. 76 v. 26, $ 2.

Where an insurance agent applies to another insurance agent to procure a certain insurance in his company, both agents are to be considered the agents of the insurance company. Central Ohio Ins. Co. v. Lake Erie Provision Co., 13 C. C. 661.

The company is bound by the mistakes of a soliciting agent who does not fill up an application as directed by the applicant. Ins. Co. v. Williams, 39 Ohio St. 584. See note to Ins. Co. v. Leslie, under section 3643.

§ 3645. How contracts to be evidenced

All policies or contracts of insurance made or entered into by the company may be made either with or without the seal of the company; and they shall be subscribed by the president or such other officer as may be designated by the directors for that purpose, and shall be attested by the secretary, and, when so subscribed and attested, they shall be obligatory on the company. 69 v. 140, § 11.

When the charter of an insurance company confers upon it power “generally to do and perform all things relative to the object of the association,"


and provides in a subsequent section that “all policies or contracts of in

" shall be subscribed by the president, or some other officer designated by the board of directors for that purpose, the latter provision does not disable the company from binding itself by contract for policies and immediate insurance executed in other modes and by other agents, but merely prescribes the manner in which the final contract or policy shall be executed. Insurance Co. v. Kelly, 24 Ohio St. 345.

A valid contract of insurance may be made by parol when not forbidden by statute or a provision of the company's charter known to the other party. Machine Co. v. Ins. Co., 50 Ohio St. 549, 555, virtually overruling Caskerill v. Ins. Co., 16 Ohio, 148. See also Conn. Fire Ins. Co. v. Bennett, 1 N. P. 71 (Sup'r Ct., Cin.), and 31 Ohio St. 628.

In absence of different negotiations, it will be presumed usual and customary rates and conditions in policy were intended; policy will be regarded as delivered if it has been treated by parties as in force, although it remains in hands of insurer's agent; agent authorized to make contracts and issue policies may waive cash payment of premiums unless there are restrictions upon his authority of which assured has notice; and such waiver may be express or implied. 16., 50 Ohio St. 549.

The execution and delivery of the policy may be subsequent to the oral contract and will relate back if done as of the date of the principal act. Bennett v. Fire Ins. Co., 27 B. 15 (Cin. Sup'r Ct.).

$3646. Transfers of stock

Transfers of stock may be made on the books of the company by any shareholder, or his legal representative, subject to such reasonable restrictions as the directors may, from time to time, make in their by-laws, and subject, also, to any provisions of the laws of this state relating to such transfers. 69 v. 140, § 12.

§ 3647. How stock increased

When a company, organized under this chapter, requires, in the opinion of the directors thereof, an increased amount of capital, they shall, if authorized by the holders of two-thirds of the stock, file with the secretary of state a certificate setting forth the amount of such desired increase, and thereafter such company shall be entitled to have the increased amount of capital fixed by such certificate; and the examination of securities, composing the capital stock thus increased, shall be made in the same manner as is provided in section thirty-six hundred and forty for capital stock originally paid in. 69 v. 140, $ 13.

« PreviousContinue »