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©:265 (Tex.Civ.App.) Under a policy providing, as required by Rev. St. 1911, art. 4741, subd. 4, that statements in the application, in the absence of fraud, should be representations, and not Warranties, a statement as to a material matter fraudulently made would be construed as a warranty.—American Nat. Ins. Co. v. Anderson, 179 S. W. 66. A “warranty” enters into and forms a part of the contract itself, defining the limits of the obligation beyond, which no liability arises; a “representation,” made before or at the time of the contract, presents the elements on which the risk to be assumed is to be estimated.—Id.
(B) Matters Relating to Property or Interest Insured.
&:278 (Ark.) A policy on a house insured as a dwelling house held, absent provision in the policy, not voided by insured keeping private boarders therein.—Milwaukee Mechanics’ Ins. Co. v. Fuquay, 179 S. W. 497.
(C) Matters Relating to Person Insured.
G=291 (Ky.) A representation of no constitutional disease, made by assured in an application for a policy, held not a misrepresentation of fact, because of affliction with hemorrhagic diathesis.-Massachusetts Bonding & Insurance Co. v. Duncan, 179 S. W. 472.
C:291 (Tex.Civ.App.) That insured was not A
in sound health at time of delivery of a life insurance policy as required by its provisions held a good defense to suit thereon.—American Nat. Ins. Co. v. Anderson, 179 S. W. 66.
Misstatement as to insured’s health made in his application held material to the risk.—Id.
Misstatement as to insured's health made in his application held, under Rev. St. 1911, art. 4751, subd. 4, and article 4947, not excused by his ignorance.—Id.
X. FORFEITURE OF POLIC Y FOR BREACH OF PROMISSORY WARRANTY, COVENANT, OR CONDITION SUBSEQUENT.
(A) Grounds in General.
Q>310 (Mo..App.) Where the by-laws of the company were expressly made part of the contract by a life policy, they providing that a proceeding must be had to forfeit the policy for the making of false statements in the application, such policy was not forfeited for such false statements, in the absence of any proceeding to that end.—Jennings v. National American, 179 S. W. 789.
(B) Matters Relating to Property or Interest Insured.
Q:2328 (Ky.) Transfer of insured property without the consent of the insurer and the subsequent retransfer to the original owner held not to avoid the policy, under provisions
3:2533 (Tex.Civ.App.) Under Vernon’s Sayles’ nn. Civ. St. 1914, art. 4874, where property insured is totally destroyed by fire, the liability of the insurance company accrues immediately after the occurrence of the fire, regardless of stipulations as to notice and proof of loss.— £" of Philadelphia v. Richards, 179 S.
&=539 (Tex.Civ.App.) Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, a stipulation in a fire insurance policy that proof of loss must be made within 90 days after fire was void.— Fire Ass’n of Philadelphia v. Richards, 179 S. W. 926. &=549 (Ky.) Failure to delay interment indefinitely upon request of insurance company held not to avoid policy for breach of provision entitling company to hold autopsy.—Massachusetts Bonding & Insurance Co. v. Duncan, 179 S. W. 472. A refusal to grant a motion for exhumation and autopsy in an action on an accident policy held not error, where defendant failed to show that an autopsy would determine the cause of death.—Id. Evidence in an action on insurance policy held insufficient to support motion for exhumation and autopsy on assured’s body.—Id. Indirect refusal by beneficiary of request for autopsy as provided in policy, with suggestion of proofs in lieu, held not to avoid policy for breach of autopsy provision.—Id. &=556 (Ark.) An insurance company's adjuster held authorized to waive proof of loss.–MilW' Mechanics’ Ins. Co. v. Fuquay, 179 S. V. 497. 3:558 (Ark.) Filing proof of loss held waived, where insured, at the adjuster's direction, procured and furnished estimates of cost of rebuilding.—Milwaukee Mechanics' Ins. Co. v. Fuquay, 179 S. W. 497.
XVIII. ACTIONS ON POLICIES.
&=622 (Tex.Civ.App.) A provision in a fire insurance policy that suit thereon should be brought before the expiration of 2 years from the accrual of the cause of action held invalid, under Vernon's Sayles' Ann. Civ. St. 1914, art. 5713.—Fire Ass’n of Philadelphia v. Richards, 179 S. W. 926. &=645 (Mo..App.) In an action on a life policy, Where the defense of forfeiture Was not properly pleaded, the exclusion of evidence to substantiate it was proper.—Jennings v. National American, 179 S. W. 789. - - In an action on a life policy providing the application should be taken as part of the contract, the plaintiff was not required to introduce the application in evidence with the policy.
Under Rev. St. 1909, § 7024, in absence of pleading and evidence that alleged misrepresentations in application for life insurance were material to the risk, evidence tending to show their falsity could not defeat the beneficiary’s recovery.—Id.
G:646 (Ky.) Categorical answers to questions in application are presumed to supply the insurer with all information necessary to acceptance or rejection of risk.—Massachusetts Bonding & Insurance Co. v. Duncan, 179 S. W. 472.
&=658 (Tex.Civ.App.) Testimony as to the condition of the insured property more than 81% months after the fire is inadmissible, in an action on a fire policy, without a showing that the condition was the same then as immediately after the fire.—Occident Fire Ins. Co. v. Linn, 179 S. W. 523. Where a piano was insured against fire, evidence in an action on the policy as to the cost of repolishing the piano which was damaged and repairing its internal mechanism was improperly received, where there was no showing of that sort of damage.—Id.
Q:665 (Ky.) Evidence in an action by a beneficiary under an accident policy to recover for the death of assured held to sustain a finding that assured’s answers to questions in the application were truthful.—Massachusetts Bonding & Insurance Co. v. Duncan, 179 S. W. 472.
&=665 (Tex.Civ.App.) In an action on a fire policy, wherein it was contended that a settlement was obtained by duress, evidence held sufficient to sustain the plea thereof.—Fire Ass’n of Philadelphia v. Richards, 179 S.W. 926.
C:668 (Ark.) Whether an insurance company’s adjuster received estimates of cost of rebuilding, which insured testified he mailed to him properly addressed, held a question for the jury. —Milwaukee Mechanics’ Ins. Co. v. Fuquay, 179 S. W. 497. Whether the adjuster waived forfeiture because of oil being kept on the premises in greater quantity than permitted held a question for the jury on evidence that he, having a list of the articles kept in the house, directed insured to send estimates of cost of rebuilding.—Id.
&=668 (Ky.) Whether answer that it was good, in application for insurance, to question as to mental and physical condition, was truthful, held for jury.—Massachusetts Bonding & Insurance Co. v. Duncan, 179 S. W. 472.
&=669 (Tex.Civ.App.) A requested charge that, the market value after the fire of the piano insured not having been shown, no recovery could be had, held properly refused, under the evidence.—Occident Fire Ins. Co. v. Linn, 179 S. W. 523.
I. POVVER TO CONTROL TRAFFIC.
<>6 (Mo..App.) The traffic in intoxictaing liquors derives its authority only from statute, and a shipper's right to an express company's performance of its contract to deliver intoxicating liquors C. O. D. is always subject to the police power of the state.—Danciger v. American Express Co., 179 S. W. 797. 3:10 (Ark.) Under Kirby's Dig. § 5438, a city may impose a license fee upon both wholesale and retail selling, although both are conducted by the same person in the same room, and though the state and county tax under sections 5109–5111 does not require a wholesale tax in such a case.—Gunther v. City of Hot Springs, 179 S. W. 505.
IV. LICENSES AND TAXES.
Q:46 (Ark.) Where the statute authorizing municipalities to license, tax, or suppress retailers and wholesalers of liquor fixes no maximum fee which may be charged, an ordinance fixing the license fee cannot be void because the amount is unreasonable.—Gunther v. City of Hot Springs, 179 S. W. 505.
G: I 12/2 [New, vol. 20 Key-No. Series] Ky.) The Webb-Kenyon Act prohibits the shipment of intoxicating liquor into states in which its sale is unlawful, only when the liquor is intended for an unlawful use.—Commonwealth v. White, 179 S. W. 469.
Q: 139 (Ky.) In spite of Ky. St. 1915, § 2569 et seq., one may lawfully have in his possession liquor purchased where its sale is lawful.—Commonwealth v. White, 179 S.W. 469. &: 141 (Tex.Cr.App.) That defendant may have been in some other business would not prevent him from pursuing the occupation of selling liquor to all who applied to him.—Bagley v. State, 179 S.W. 1167. Q=>150 (Tex.Cr.App.) Under Pen. Code, art. 611, the offense denounced is the sale of intoxicants without a license, and not engaging in the business of selling without a license.—Winterman v. State, 179 S. W. 704.
VIII. CRIMINAL PROSECUTIONS.
6:223 (Tex.Cr.App.) On a trial for selling whisky in prohibition territory, the time and place where the prosecuting witness claimed to have bought the whisky from accused were directly in issue and properly shown.—Engman v. State, 179 S. W. 569. Q:224 (Ky.) The commerce clause of the United States Constitution attaches to lawful shipments of liquor, and courts will not presume, in the absence of proof, that a record of interstate liquor shipments kept as required by Ky. St. 1915, § 2569b, subsec. 3, contains a record of unlawful shipments.-Commonwealth v. White, 179 S. W. 469. &=226 (Tex: Cr.App.). On trial for selling whisky, state held properly, permitted to show location of building in which accused had a room, and the furniture in such room when a witness was in it.-Engman v. State, 179 S. W. 569. &=236 (Tex.Cr.App.) In a prosecution for violating the prohibition law, evidence held sufficient to sustain a conviction.—Sloan v. State, 179 S. W. 111. &=236 (Tex.Cr.App.) Evidence, on a prosecution for pursuing the business of selling intoxicating liquor in prohibition territory, held to support a conviction, especially when aided by plea of guilty.—Luttrell v. State, 179 S.W. 566. <>236 (Tex Cr.App.) In a prosecution for selling intoxicating liquor without a license in a county where prohibition was not in force, evi
dence held to warrant conviction.—Winterman v. State, 179 S. W. 704. &=236 (Tex.Cr.App.). To warrant a conviction of pursuing the business of selling intoxicating liquor in local option territory, the state must prove at least two sales.—Brice v. State, 179 S. W. 1178. Evidence held insufficient to warrant a conViction.—Id. &=238 (Tex.Cr.App.) In a prosecution for unlawfully selling intoxicating liquor in a prohibition county, the positive testimony of the state's witness that defendant sold him intoxicating liquor as charged, denied by defendant, made the offense a_question for the jury.Grisham V. State, 179 S. W. 1186.
Q->256 (Tex.Civ.App.) Under Rev. St. arts. 1986, 1990, 1994, the court must conform the judgment to the special findings of the jury.McLemore v. Bickerstaff, 179 S. W. 536. <=256 (Tex.Civ.App.) The issues found by the jury should respond to the pleadings, and if they do not the issues so found should be regarded as immaterial, and not be considered in rendering the judgment.—Morris v. McSpadden, 179 S. W. 554. - In a suit for partnership accounting, finding as to funds not divided by agreement held immaterial, no division by agreement having been pleaded, and not to render judgment on the other findings erroneous.-Id.
VIII. AMENDMENT, CORRECTION, AND REVIEW IN SAME COURT.
3=297 (Tex.Civ.App.) Court held to have authority to correct its minutes to make judgment dispose of the rights of all parties, as was done by the judgment as actually rendered.--Moore v. Toyah Valley Irr. Co., 179 S. W. 550.
Q=299 (Tex.Civ.App.) Under , Rev. St. 1911, arts. 2015, 2016, held that, where judgment as entered did not dispose of rights of certain parties, correction to conform to judgment render
ed could not be made in vacation.—Moore v. Toyah Valley Irr. Co., 179 S. W. 550.
IX. OPENING OR VACATING.
C=391 (Ark.) In order to vacate a judgment for fraud practiced by the successful party, it is necessary that the defense of the action be sufficiently alleged and that such defense be ad#ed a valid one.—Smith v. Minter, 179 S. W.
X. EQUITABLE RELIEF. (A) Nature of Remedy and Grounds.
c3:416 (Ky.) That a note was not assigned in writing by the payee does not render void the default judgment obtained thereon by another, so as to authorize enjoining its collection.Ross v. Ross, 179 S. W. 454.
(B) Jurisdiction and Proceedings.
C:461 (I&y.) Evidence in a suit to have a judgment for sale by way of partition set aside for fraud in procuring it held to show no fraud, but abandonment of an agreement for division through disinterested persons.—Jordan v. Cromwell, 179 S. W. 407.
XIII. MERGER AND BAR, OF CAUSES OF ACTION AND DEFENSES.
(A) Judgments Operative as Bar.
C:540 (Mo..App.) Where two actions present the same parties or their privies, the same subject-matter, and the same claim or demand, a judgment in the first action, if rendered on the merits, constitutes an absolute bar to a second action.—Danciger v. American Express Co., 179 S. W. 806. C:2559 (Ky.) That plaintiff, in a suit on a fire policy, has been convicted of arson in setting fire to the insured building, is not a bar to his recovery.—Liverpool & London & Globe Ins. Co. v. Wright, 179 S. W. 49. <>570 (Mo..App.) Where demurrer to the evidence was sustained and an involuntary nonsuit taken which the court refused to set aside, judgment held not to bar a new action under Rev. St. 1909, § 1900.—Woods v. Missouri Pac. Ry. Co., 179 S. W. 727.
(B) Causes of Action and Defenses Merged., Barred, Or Concluded.
C=592 (Mo..App.) Where a demand arises out of separate and distinct causes of action, the rule against splitting causes of action obviously does not apply; and, where the respective demands grow out of independent acts, contracts, or transactions, they cannot be treated as parts of a single cause.-Danciger v. American Express Co., 179 S.W. 806.
C:597 (Mo...App.) Shipper's recovery against express company for conversion of number of shipments of intoxicating liquors held not a bar to a subsequent action for the conversion of other shipments made under separate contracts. s:* v. American Express Co., 179 S.W.
C=>769 (Tex.Civ.App.) Indexing of an abstract of a judgment duly recorded is, under Vernon's Sayles Ann. Civ. St. 1914, arts. 5614-5616, indispensable to the creation of a lien.—Whitake v. Hill, 179 S. W. 539. Q=>788 (Tex.Civ.App.) Judgment creditor may, notwithstanding unrecorded deed, acquire a lien by complying with Vernon's Sayles' Ann. Civ. St. 1914. arts. 5614–5616, or by levy of execution without notice under articles 6827, 6828, of a third person's ownership, and under article 6824, subject the land to his judgment.Whitaker v. Hill, 179 S. W. 539.
XVII. FOREIGN JUDGMENTS.
<=822 (Ark.). Former judgment in another state, dismissing suit to set aside deed on
&=>13 (Ky.) Where a distinct legal issue is made in an equitable action, either party may have such issue decided by a jury.—Procter V. Tubb, 179 S. W. 620.
<= 13 (Ky.) In owner's action against a contractor to remodel a house, to cancel a lien, such owner claiming damages by defective reconstruction, the contractor had the right to a jury trial as to whether there was anything due him.–Scott v. Kirtley, 179 S. W. 825.
<=14 (Mo..App.) Petition, seeking a disaffirmance of contract entered into during minority and the return of the consideration paid, held to show a case of equitable jurisdiction, not interfered with by Rev. St. 1909, § 2786, relating to the ratification of minors' contracts.Moser v. Renner, 179 S. W. 970.
<>25 (Ky.) The right to a jury trial as to legal issues in an equitable action depends upon whether application is seasonably made.-Procter v. Tubb, 179 S.W. 620.
The application for the submission of legal issues to a jury in an equitable action must be made when the answer is filed, or within a reasonable time.-Id.
What is a reasonable time for a party to an equitable action to apply for a jury trial as to legal issues is a matter within the sound discretion of the trial court.-Id.
Where defendant in equity suit waited several months, after filing answer and until after the case had been referred on his motion, application for a £y trial as to the legal issues was too late.—Id.
IV. SUMMONING. ATTENDANCE, DISCHARGE, AND COMPENSATION.
©75 (Ky.) Under Ky. St. § 2261, trial courts are without authority to discharge a second jury impaneled after the discharge of the regular first panel after a week's service, to impanel a third jury for the succeeding week, and to continue the practice for the term.—Imperial Jellico Coal Co. v. Fox, 179 S. W. 1032.
V. COMPETENCY OF JURORS, CHALLENGES, AND OBJECTIONS.
G->97 (Mo..App.) In suit for death of two year old girl, overruling defendant’s challenge for cause to a juror who stated that if the evidence were evenly balanced his sympathies would probably influence him in favor of plaintiff, unless otherwise instructed, held proper.— Albert v. St. Louis Electric Terminal Ry. Co., 179 S. W. 955.
C:99 (Ark.) Opinion formed and expressed as to guilt of defendant held not to disqualify juror to sit in subsequent trial of defendant's sanity at the time of trial for the crime.— Dewein v. State, 179 S. W. 346.
&= 103 (Ark.) A juror is not disqualified because persons had detailed to him the facts as testified to in the justice court, and thought he had formed an opinion therefrom, where he says he can and will disregard all this and fairly try defendant on the evidence.—Tisdale V. State, 179 S. W. 650.
VI. IMPANELING FOR TRIAL AND OATHI.
C: 146 (Tex.Cr.App.) Where veniremen failed to appear and answer as their names were called in impaneling the jury, but were later called and examined, and the defendant exhausted only 12 of his 15 peremptory challenges, there is no error in proceeding with the trial.—Thompson v. State, 179 S. W. 561.