also averred that appellee has performed all the conditions and terms of the policy and the contract on his part. The appellee asks damages in the sum of $750.

The premiums on the policy were paid for the years 1889, 1890, 1891, 1892, and 1893. The premiums for 1894 and following years were not paid. Appellee insists that the evidence shows that the policy was still in force in November, 1894, at which time he requested appellant's agent to procure for him a paid-up policy, which he promised to do. Appellant insists that the policy, by its terms, lapsed because of appellee's failure to pay the premium due in September, 1894, and that it was thereafter carried as a paidup term policy until July 21, 1899, when it expired. The evidence shows that C. E. Everett was appellant's agent. His name appears upon the application for insurance as general agent. He countersigned the receipt given for the first premium as agent. The policy in question was issued by the company through his agency. He had no authority to issue policies. The four premium notes payable September 15, 1890, 1891, 1892, and 1893 were signed by appellee and his wife, the beneficiary. The note payable September 15, 1890, was paid September 12, 1890, the one due September 15, 1891, was paid September 1, 1892, the one due September 15, 1892, was paid seven or eight months after due; and the one due September 15, 1893, was paid August 21, 1894. Mrs. Whetzel, wife of appellee, and beneficiary named in the policy, testified: That, after the second premium was paid, she called on Everett, at Ft. Wayne, in 1891, and "asked him if he would extend the time of each payment on the policy one year," which he agreed to do. On Saturday before the state election in 1894, she, acting for herself and husband, called on Mr. Everett; told him they had traded their farm, and demanded a paid-up policy, and he said he would get it. That they heard nothing from the company or Everett, and she went again in May, and while there he wrote to the company for a paid-up policy; wrote that he had written in November, and asked them to explain why they had not sent it; and about five or six days afterwards her husband got a letter, with a certificate of renewal inclosed, stating that Mr. Whetzel must be examined before he could have a paid-up policy. That Mr. Whetzel proceeded at once to have the renewal certificate made out. Then appellant wrote that the note for 1894 must be paid. That they wrote, and told the company to send the note, as they were ready to pay it,-had made arrangements to get the money to pay it; but the, note was not sent. In July she called again on Mr. Everett, and he told her there was no note for the 1894 premium, and that the company knew it; that, if she would get the money, he would send her a receipt, signed by the secretary and treasurer. That Everett told

her not to pay it unless a receipt was signed. That no receipt was signed. That she asked Everett what they should do with the old policy, and he said when he got the paid-up policy he would write them, and they could bring it down, and get the paidup policy,-make the change at his office. On cross-examination she testified that they wanted whatever kind of policy Everett would get; told him they "wanted a paidup policy, so as to draw our money in 1899.” All their correspondence was through Everett. The company said they must get a renewal in order to get a paid-up policy, and they were willing to do that. The company sent the amount they were to pay, which was $135.65, and interest on it for 10 months at 8 per cent. They refused to send that without a receipt. In September or October, 1894, before they saw Everett about a paid-up policy or renewal, they executed notes for the payments for 1895, 1896, 1897, and 1898, and expected them to carry the policy until the end of 10 years, but were so in debt they couldn't carry the insurance. Appellant's secretary testified that it was the secretary's duty to issue a paid-up policy, if demanded; that appellee never made a demand for a paid-up policy before it lapsed; that Everett was at one time general agent of the company in Indiana, but never had authority to issue policies; that witness was never advised by Everett that a paid-up policy was demanded by appellee; that on July 1, 1895, witness received from Everett an application for the renewal of the policy, which was approved by appellant, and appellee notified, through Everett, that his policy would be reinstated upon the payment of the overdue premiums, with interest; that appellee never paid the premium or interest. Appellant's treasurer testified that on September 24, 1894, he sent to appellee notes for the premiums due September 15, 1895, 1896, 1897, and 1898; that he had sent a receipt to the agent for the premium due September, 1894, which was returned unpaid in his next report to the company; that the premium notes were never received; neither appellee nor his wife ever demanded a paid-up policy. On September 24, 1894, appellant's treasurer wrote appellee, inclosing premium notes payable September 15, 1895, 1896, 1897, and 1898, and stating that he would be pleased to receive them at an early date, when signed by appellee and his wife. On October 11th, the treasurer again wrote concerning the mortgage loan, and requesting that the premium notes be signed, and returned by the next mail. On November 9th he again wrote concerning the loan, and stated that the notes had not yet been returned. On November 20th he again wrote concerning an extension of the mortgage loan, and stated: "I find that all that is now necessary to complete the extension is the return of premium notes number 63,713, issued upon your life, due September 15, 1895, 6, 7, 8, respectively, for

$135.65 each, inclosed to you in my letter of the 11th ult., duly executed by yourself and wife. Please be good enough to see that the same are returned to this office upon receipt of this letter." On December 11th another letter from the treasurer requests that these premium notes be executed and returned at once. In none of these letters is anything said about the payment of the premium due September 15, 1894.

The policy seems to have contemplated the giving of a note for each premium, as it provides that after three years' premiums have been paid, "except in case of failure to pay at maturity a premium note," the company will, upon surrender of the policy while in force, issue a paid-up policy. Failure to pay any one of the first four notes given for the premiums gave the company the right, at its election, to avoid the policy. Also, upon the violation of the condition that all premiums or notes or interest upon notes given for premiums should be paid on or before they became due, the policy should be null and void without action on the part of the company. It has been held that the above conditions relating to the nonpayment of the notes are not consistent with each other, and that the condition most favorable to the insured must be adopted. Insurance Co. v. Jones, 17 Ind. App. 592, 47 N. E. 342. See Insurance Co. v. Hazelett, 105 Ind. 212, 4 N. E. 582, 55 Am. Rep. 192. And the payment of a premium note is in fact the payment of a premium. Each of the notes given stated that it was given for the premium on the policy, and that the policy should, at the option of the company, become null and void on failure to pay the note at maturity. The execution of the premium notes was not a payment of the premiums, but simply procured an extension of the time within which to pay them. A forfeiture clause set out in the policy is stipulated in the notes. The failure to pay a premium note at maturity had the same effect as the failure to pay a premium. So that the extension of the time for paying the notes beyond their maturity was nothing more than a further extension of the time for paying the premiums, which had already been extended through the execution of the notes. Strauss v. Insurance Co. (N. Y.) 63 N. E. 347. After appellee had paid five premiums, and before the sixth became due, he was entitled, upon surrender of the policy, to a paid-up policy for five-tenths of the amount insured. If the time for paying the premium due in September, 1894, had previously been extended for one year, the policy was in force in November, 1894, when a paid-up policy was demanded. The demand was made upon the general agent for a paid-up policy, which he promised to procure. True, this agent had no authority to issue a policy of any kind. But he represented the company as its general agent, and had so represented it in the negotiations between the parties. A demand on him for a paid-up pol65 N.E.-2

icy was a demand upon the company. The policy does not require that it shall be surrendered at any particular place, or to any particular person, when the holder desires a paid-up policy.

It clearly appears that the time for paying the premium notes due in 1891, 1892, and 1893 was extended by the company's agent, and that the notes were paid after they were due. The company, having accepted these overdue payments, cannot now be heard to say that the agent granting the extensions had no authority to do so. There is evidence also to show that the time for paying each annual premium was extended one year. The insured and the beneficiary could rightly conclude from the past conduct of the company that the policy would not be forfeited even though the premium due September 15, 1894, was not paid until after that date. The stipulation in the policy that none of its terms could be modified or changed except in a specified manner could itself be waived by the company either expressly or by the conduct of the company. Insurance Co. v. Dole, 20 Ind. App. 338, 50 N. E. 772; Insurance Co. v. Tomlinson, 125 Ind. 84, 25 N. E. 126, 9 L. R. A. 317, 21 Am. St. Rep. 203; Insurance Co. v. Hick, 125 Ill. 361, 17 N. E. 792, 8 Am. St. Rep. 384; Grubbs v. Insurance Co., 108 N. C. 472, 13 S. E. 236, 23 Am. St. Rep. 62; Viele v. Insurance Co., 26 Iowa, 9, 96 Am. Dec. 83; Bonnert v. Insurance Co., 129 Pa. 558, 18 Atl. 552, 15 Am. St. Rep. 739. Although a policy may provide that an agent shall have no power to waive a forfeiture, yet the company may estop itself by its conduct from denying the grant of such powers to him. See Insurance Co. v. Eggleston, 96 U. S. 572, 24 L. Ed. 841; Insurance Co. v. Norton, 96 U. S. 234, 24 L. Ed. 689; Insurance Co. v. Sanders, 17 Ind. App. 134, 46 N. E. 535; Supreme Court v. Sullivan, 26 Ind. App. 60, 59 N. E. 37; Sweetser v. Association, 117 Ind. 100, 19 N. E. 722; Insurance Co. v. Potts, 55 N. J. Law, 158, 26 Atl. 537, 39 Am. St. Rep. 637; Insurance Co. v. Hick, supra; Appleton v. Insurance Co., 59 N. H. 541, 47 Am. Rep. 220; Insurance Co. v. Doster, 106 U. S. 30, 27 L. Ed. 65; Insurance Co. v. Unsell, 144 U. S. 439, 12 Sup. Ct. 671, 36 L. Ed. 496; Weidert v. Insurance Co., 19 Or. 261, 24 Pac. 242, 20 Am. St. Rep. 809. Not only was nothing said in any of the letters above referred to about the policy having lapsed September 15, 1894, for nonpayment of the premium, but the letters very clearly indicate that the company, when the letters were written, considered the policy still in force. We must necessarily conclude from the statements made in these letters that, had the premium for 1894 been tendered at any time during the period covered by the letters, it would have been accepted; in which event appellee would have been entitled to a paidup policy for six-tenths of the amount insured.

Under the conditions of the policy the

* *

agent had no authority to waive the requirement that premiums and premium notes should be paid at maturity. But this condition might be waived by the company, and was waived by its ratification of the agent's acts in receiving the overdue premiums. The forfeiture clause in a policy is a condition in the company's favor, which it may at any time waive. It is to the interest of both the insured and the insurer that the policy be kept in force. The company elected to continue the policy in force, although it could have declared a forfeiture because of the failure to pay the last three premium notes when due. Acting upon the statement of the agent, which the company by its conduct had ratified, appellee could rightfully believe that his policy would not be forfeited because of his failure to pay the premiums at the appointed time. "It is abundantly settled," said the court in Sweetser v. Association, 117 Ind. 97, 19 N. E. 722, "that an insurance company will be estopped to insist upon a forfeiture, if, by any agreement, either express or implied by the course of its conduct, it leads the insured honestly to believe that the premium or assessments will be received after the appointed day. * Forfeitures are not favored in the law, and courts, in order to avoid the odious results of a forfeiture, are not slow in seizing hold of such circumstances as may have been acted on in good faith, and which indicate an agreement on the part of the company, or an election, to waive strict compliance with the conditions and stipulations in the policy. Continuing a policy in force, and accepting payment of premiums thereon, with full knowledge of the facts which, according to a condition of the contract, make it voidable, is a waiver of the condition." Whether the time for paying the premium for 1894 had been extended beyond the time when a demand was made for a paid-up policy was a question of fact to be determined from the evidence. If the time had been so extended, no premium was due and unpaid when the demand was made. There is evidence that this extension was made. Had there been a loss at the date the paid-up policy was demanded, there could have been a recovery on the policy under the ruling in Insurance Co. v. Custer, 128 Ind. 25, 27 N. E. 124. And, had there been a loss, a recovery could have been had only upon the theory that the policy was still in force. Judgment affirmed.

CITY OF ELWOOD v. LAUGHLIN. (Appellate Court of Indiana, Division No. 1.

Oct. 28, 1902.)

MUNICIPAL CORPORATIONS DEFECTIVE STREETS - INJURIES NEGLIGENCE — INTERVENING CAUSE PLEADING WANT OF CONTRIBUTORY NEGLIGENCE-NOTICE OF DEFECT-APPEAL BILL OF EXCEPTIONS-REC

ORD.

1. A complaint alleged that defendant city had constructed a culvert with iron bars ex

tending from the curbstone across it, and that the plan of construction provided for covering the bars with two-inch boards, and that the city negligently allowed the same to be placed and remain loose over the bars and that while plaintiff and C. were walking over the culvert C. stepped on the board displacing it whereupon plaintiff tripped and was thrown down. Held, that the act of C. in displacing the board was an intervening cause of the accident, only, which might have been anticipated from the alleged negligence of the city, and hence it was unnecessary to allege that C. was also without fault.

2. Where a complaint in an action against a city for injuries by a defective street alleged that the injury was caused without any fault or negligence on plaintiff's part, such allegation sufficiently negatived plaintiff's knowledge of the defect.

3. Where a complaint in an action against a city for injuries caused by a defective street alleged that the defect was one in the construction of an improvement by the city itself, the complaint was not demurrable for failure to charge notice to the city of the defect.

4. Where a bill of exceptions was not presented at the term at which the motion for new trial was overruled, and it did not appear that it was presented within the time after the term which was then granted for that purpose, the bill cannot be regarded as a part of the record, so as to authorize a review of the sufficiency of the evidence.

Appeal from circuit court, Madison county; John F. McClure, Judge.

Action by Martha J. Laughlin against the city of Elwood. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Wilkie & Wilkie, for appellant. Greenlee & Call, for appellee.

BLACK, J. A demurrer to the complaint of the appellee, Martha J. Laughlin, against the appellant, for want of sufficient facts, was overruled. After introductory matter, it was alleged in the complaint that, long before the date of the injury complained of, the city, by due process of law, improved a portion of Sixteenth street, extending north and south in the city, by macadamizing and graveling, and by constructing on either side brick sidewalks; that North C street, extending east and west, intersects the portion of Sixteenth street so improved; that at the intersection, on the south side of North C street, where it crosses Sixteenth street, on the sidewalk on the east side thereof, was constructed a small culvert by the city at the time of the improvement; that the plan of constructing the culvert was the setting of curbstones, about 3 inches in thickness, in an upright position, about 15 inches apart, the depth of the space or drain over which the culvert was made being about 15 inches below the surface level of the sidewalk so constructed by the city, and placed upon said stone curbings were iron stringers, of length equal to the space between said curbings, and extending over the tops of the curbings, and being so crooked and curved as to leave space for a 2-inch board to be hung therein, the top surface of which was to be level with the surface of the sidewalk,-the

board to be sawed out and grooved in such manner at either side that the iron stringers would be buried in the wood thereof, and would hold the board in its proper position. It was further alleged that the city carelessly, negligently, and knowingly placed upon these stringers a thin board, about fiveeighths of an inch in thickness, and of less width than the space between the curbings, and negligently, carelessly, and knowingly failed to saw out or groove the board on either side so that it would be properly held in its place, but carelessly, negligently, and knowingly placed the board therein in a loose condition, without any means of its being held and retained in its proper position and place, and negligently, carelessly, and knowingly failed to place therein any timber or board of sufficient thickness or width to fit the space as so designated, and to be of such width and so attached and hung therein as to be safe for ordinary travel, and to be retained in its proper position. It was alleged that the culvert was constructed upon a sidewalk over which there was great travel; that the appellee at all times mentioned in the complaint was a resident of the city; that on the 7th of September, 1898, she was walking along Sixteenth street in a careful and prudent manner; that, as she approached and entered upon and was about to cross the culvert, one Annie Churchill, a resident of the city, was walking upon the street and sidewalk, and stepped upon said board; that the board was displaced by Annie Churchill's stepping upon it at the instant at which appellee was about to cross the culvert, and thereby tripped and threw the appellee violently to the ground, without her fault or negligence, and she was then and thereby seriously and permanently injured, the character of her injuries and consequent disability being stated at length, all of which, it was alleged, was without fault or negligence on the part of the appellee, and solely through the carelessness and negligence of the appellant. There were further allegations relating to her sufferings and disability and expenses, all of which, it was alleged, "was caused by the careless and negligent acts of the defendant as aforesaid, and without fault or negligence on her part, and by reason of which she was damaged in the sum of," etc., "wherefore," etc.

It is contended on behalf of the appellant that the complaint is defective because (1) it does not contain an allegation that Annie Churchill was without fault; also (2) because it is not alleged that the appellee had no notice of the defect in the street; and (3) for the reason that it is not alleged that the city knew of the defect in the street.

The allegation that the appellee's injury was without any fault or negligence on her part, and solely through the negligence and carelessness of the appellant, in the absence of any statement directly or indirectly imputing any fault or negligence to Annie

Churchill, seems to import, by inference, that there was no culpability and no negligence on the part of Annie Churchill contributing to the injury. If we assume, however, that such language is not equivalent to a direct averment that she did not by her fault or negligence contribute to the injury, we could not for such reason condemn the pleading. It appears from the complaint that the board was displaced by Annie Churchill's stepping upon it, and thereby the appellee was tripped and thrown down. Therefore the act of Annie Churchill in stepping upon the board was a cause which, with the negligence attributed by the pleading to the appellant, brought about the injury which is alleged to have been caused by the specified negligence of the appellant; the act of Annie Churchill being an incident without which the appellant's negligence would not have occasioned the particular injury. The municipal corporation should have foreseen that persons walking on the sidewalk at the much-frequented place where the culvert was constructed probably would displace the insecured board by stepping on the culvert, either with ordinary care or negligently, at a time when another person lawfully using the public way and walking with ordinary carefulness would be tripped by the suddenly displaced board. If the person who stepped on the board, and thereby displaced it, did so negligently, the displacement of the board thereby was such a consequence of the negligent construction as ought to have been anticipated, because it might reasonably have been foreseen or expected under all the circumstances stated. If there was negligence on the part of Annie Churchill, it was not only not sufficient of itself, without appellant's alleged negligence, to produce the injurious result, but it was such negligence as might reasonably have been anticipated, and was a probable occurrence, against which it was the duty of the city to guard in constructing the culvert. The displacement of the board by Annie Churchill's stepping upon it was itself caused by the negligent construction of the culvert. It was a consequence of the original negligence charged, such as might, with reasonable care and diligence in the construction of the culvert, have been anticipated as a result of the alleged negligence therein. Wright v. Railway Co., 27 Ill. App. 200. It might with reasonable prudence have been expected that, as a result of such negligence, an injury would probably occur in the very manner in which the particular injury complained of did occur. The original negligence of the appellant was the proximate cause of the intervening occurrence the displacement of the board-which resulted in the injury, and therefore was the cause of the injury. intervening occurrence was, indeed, merely one mode through which it might reasonably have been expected that the original negligence would probably operate injuriously as

The

it did operate. The defective condition of the culvert resulting from the alleged negligence of the appellant was the efficient and adequate cause for the appellee's injury alleged to have, been thereby caused. This should be treated as the true and proximate cause, within the meaning of the rule, unless another self-operating cause, not incident to the cause produced by or resulting from the appellant's negligence, but independent thereof and disconnected therewith, appears to have intervened between the appellant's negligence and the injury. In Lane v. Atlantic Works, 111 Mass. 136, 139, is the following language, commended in Thomp. Neg. (2d Ed.) § 49: "The act of a third person intervening, and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury.

The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise." In that case it was held to be immaterial whether the act of the intervening third person was mere negligence or a voluntary intermeddling, if it was an act which the defendant ought to have apprehended and provided against. In Shear. & R. Neg. 29, is the following statement: "The practical solution of this question appears to us to be that a person guilty of negligence should be held responsible for the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed (whether they could have been ascertained by reasonable diligence or not), would at the time of the negligent act have thought reasonably possible to follow, if they had occurred to his mind." In section 34 of the same work is the following: "If the negligent acts of two or more persons, all being culpable and responsible in law for their acts, do not occur in point of time, and the negligence of the one only exposes the injured person to the risk of injury in case the other should also be negligent, the liability of the person first in fault will depend upon the question whether the negligent act of the other was one which a man of ordinary experience and sagacity, acquainted with all the circumstances, could reasonably anticipate, or not. If such a person could have anticipated that the intervening act of negligence might, in a natural and ordinary sequence, follow the original act of negligence, the person first in fault is not released from liability by reason of the intervening negligence of another." See, also, Clark v. Chambers, 7 Cent. Law J. 11. To render a defendant liable for the proximate and natural result of his wrong, it is not necessary that the particular damage which accrued as a natural and probable consequence should have been ac

tually foreseen and expected. Bohrer v. Harness Co., 19 Ind. App. 489, 49 N. E. 296; Billman v. Railroad Co., 76 Ind. 166, 174, 40 Am. Rep. 230; Railroad Co. v. Trowbridge, 126 Ind. 391, 26 N. E. 64; 1 Thomp. Neg. (2d Ed.) § 59. If Annie Churchill was negligent, her negligence could not be attributed to the appellee, and it would not relieve the appellant for the consequences of its negligence in relation to the condition of the sidewalk. Board v. Mutchler, 137 Ind. 140, 36 N. E. 534; Town of Knightstown v. Musgrove, 116 Ind. 121, 18 N. E. 452, 9 Am. St. Rep. 827; Abbitt v. Railway Co., 150 Ind. 498, 513, 50 N. E. 729. Town of Nappanee v. Ruckman, 7 Ind. App. 361, 34 N. E. 609, was an action for an injury sustained by reason of a worn board of a sidewalk when the plaintiff was walking on the sidewalk with another person. It was held that it was not necessary to aver in the complaint that the person who was with the plaintiff on the sidewalk when she was injured, and who caused the board to tilt when they stepped on it, was free from fault. It was said: "As a general rule, if the injured party is himself free from fault, the negligent defendant shall be liable, although the negligence of some third party may have contributed to the injury. The only exception to this rule is where the person whose fault has contributed to the negligence was subject to the control or direction of the person injured, or was so identified with him in a common enterprise as to become responsible for his acts." See, also, Town of Fowler v. Linquist, 138 Ind. 566, 37 N. E. 133; City of Columbia City v. Langchr, 20 Ind. App. 395, 50 N. E. 831; Knouff v. City of Logansport, 26 Ind. App. 202, 59 N. E. 347. Knowledge of the defect, and even knowledge of the danger, would affect the determination of the question as to the appellee's contributory negligence, which was expressly negatived. No relation existed between the parties which made it incumbent on the appellee to deny knowledge. The allegation of freedom from fault or negligence was a denial of any contributory negligence on her part, and therefore negatived such knowledge as would have rendered her conduct negligent, and was sufficient without any averment as to her knowledge. Railroad Co. v. Sutton, 148 Ind. 169, 46 N. E. 462, 47 N. E. 462; Railway Co. v. Trowbridge, 126 Ind. 391, 26 N. E. 64; City of Huntingburgh v. First, 22 Ind. App. 66, 53 N. E. 246; City of Huntington v. Folk, 154 Ind. 91, 54 N. E. 759; Board v. Mutchler, 137 Ind. 140, 148, 36 N. E. 534; City of Lafayette v. Weaver, 92 Ind. 477.

It is finally objected that it is not alleged in the complaint that the appellant knew of the alleged defect in the sidewalk. Where the defect in a sidewalk which occasioned the injury to the plaintiff was caused, not by the municipal corporation, but by the act of a third person, or where the defect existed at the time of the injury by reason of the negli