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DES MOINES, DECEMBER TERM, A. D. 1868.

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iff, in a case where, under the statute, no replication is allowable,

files, under section 2917 of the Revision, a written admission of mat-

ters alleged in the defendant's answer, such writing may, and the

better practice would dictate that it should, also contain an averment

Vol. XXVI. - 2

Viele v. Germania Insurance Co.

2.

or notice that the plaintiff relies upon and expects to show on the trial matter in avoidance of the allegations thus admitted.

TRIAL: WHO HAS THE AFFIRMATIVE OF THE ISSUE. If, under the state of the pleadings and admissions, the plaintiff is not entitled to recover without the introduction of evidence, the burden of proof is deemed to be on him, and he will be entitled to open and close the trial.

3. CONSOLIDATION OF CAUSES. A policy of insurance executed by

four companies, stipulated that each acted for itself and would only be liable for one-fourth of the whole amount insured, in case of loss. A loss occurring under the policy, separate actions were commenced against each of the companies for its proportion of the loss as stipulated in the policy. These actions being by the same plaintiff, depending upon the same evidence, defended by the same attorneys, and involving the same defense, a motion was made to so consolidate them as that all should abide the result in one to be tried. This motion was sustained by the District Court; and, this court being equally divided in opinion, this ruling of the District

Court was affirmed by operation of law. 4. Insurance : WAIVER OF CONDITIONS : ESTOPPEL. A condition in a

policy of fire insurance, that, if the risk be increased by a change of occupation or other means within the control of the assured, without the written consent of the insurers, “the policy shall be void,” being inserted for the benefit of the insurers, they may dispens with a compliance therewith or waive a forfeiture of the policy incurred by a breach thereof, and thereby become estopped from setting up such condition or breach in an action for a loss subse

quently occurring. 5. WAIVER NEED NOT BE IN WRITING. And such waiver of the

forfeiture arising from the breach of the condition need not be in writing, but may be by parol, at loast in a case where the policy is not attested by the corporate seal of the company, and is, hence, not

a specialty. 6. - WHAT WILL AMOUNT TO WAIVER. Any acts, declarations, or

course of dealing by the insurers, with knowledge of the facts constituting a breach of a condition in the policy, recognizing and treating the policy as still in force, and leading the assured to regard himself as still protected thereby, will amount to a waiver of the forfeiture by [reason of such breach, and estop the company from setting up the same as a defense when sued for a subsequent loss.

Viele v. Germania Insurance Co.

10.

7. NEED NOT BE FOUNDED ON NEW CONSIDERATION. A waiver of

conditions, or forfeiture arising from a breach thereof, need not be

founded on any new consideration. 8. - POWER OF AGENT TO WAIVE FORFEITURE. A local agent of a

foreign insurance company, clothed with authority to effect contracts of insurance, to fix rates of premium, to give consent to the increase of risks and change of occupation of buildings insured, to cancel policies on account of increase of risk, and exercise supervision over the property covered by policies issued at his agency, has power to dispense with conditions and waive forfeitures arising from a breach thereof, in the absence of any limitation upon his

authority known to the assured. 9. IMPLIED AND INCIDENTAL POWERS. The foregoing powers are

necessary incidents of the general authority of the agent to effect contracts of insurance, conduct the business at his agency, and do all things necessary and proper in the prosecution thereof.

WAIVER ARISING FROM FAILURE TO CANCEL. Semble, that where, by the terms of the policy, the underwriters reserve the right to cancel it upon the risk being increased, by paying to the assured the unearned premium, and the risk be increased, of which the underwriters have notice, but fail to exercise the right to cancel, this amounts to a waiver of the forfeiture resulting from the breach

of the condition against the increase of the risk. 11. EXTENT OF WAIVER. A waiver of a forfeiture resulting from

a breach occasioned by a change in the occupancy of the building, increasing the risk, extends, not only to breaches occasioned by the occupancy before such waiver, but to those resulting from a con

tinuation of such occupancy. 12. CONSENT TO CERTAIN OCCUPANCY CARRIES INCIDENTS. A con

sent by the insurers to the occupation of the insured building for a certain manufactory, carries with it a consent to the keeping and use on the premises of any article necessary to the manufacture, or commonly used therein, although the keeping of such article is expressly prohibited in the policy. The consent to the manufacture in such case necessarily operates to waive or dispense with the pro hibition.

CONDITIONS

CONNECTED

WITH

CHANGE

OF

OCCUPANCY.

13.

Where the agent of the underwriters, after a change in the occupancy, involving an increase of the risk, consents to the continuance of the policy, on condition that an iron door shall be put into the building, but without limiting any specific time within which this

Viele v. Germania Insurance Co.

shall be done, the assured is entitled to a reasonable time. And if, after the exercise of reasonable diligence to get the door put in, the building is destroyed by fire, the company cannot resist the payment of the loss on the ground that the door was not in.

Appeal from Scott District Court.

SATURDAY, OCTOBER 10.

ACTION upon a policy of insurance, which, so far as it is material to an understanding of the case, and is not set out in the opinion of the court, is in the following words:

“The Germania Fire Insurance company, the Hanover Fire Insurance company, the Niagara Fire Insurance company and the Republic Fire Insurance company, all of the city of New York, each acting and contracting for itself, and not one for the other or others, in consideration of one-fourth part of the sum of eight hundred and twenty-five dollars, to each of them paid by the assured hereinafter named, do each insure Charles Viele, of Evansville, Indiana, against loss or damage by fire, to the amount of

one-fourth part of the sum of fifty-five thousand dollars, for the term of one year, upon the ‘Le Claire row' and Post-Office block.'

Each of said companies agrees to make good to the assured, his executors, administrators and assigns, all such immediate loss or damage, not exceeding in amount the sum insured by such company as aforesaid, as shall happen by fire to the property above specified, from the first day of January, 1865, at noon, to the first day of January, 1866, at noon. * * In witness whereof, the said companies have respectively caused these presents to be signed by their respective presidents and attested by their respective secretaries, in the city of New York.

*

*

Viele v. Germania Insurance Co.

“Countersigned by the agent of the above named companies, at Davenport, Iowa, this first day of January, 1865. “R. SIMPSON & CO., Agents.

“M. HILGER, President,
“JOHN EDW. PAHL, Secretary,

The Germania Fire Insurance Co.
“DORAS L. STONE, President,
“R. S. WALCOTT, Secretary,

The Hanover Fire Insurance Co.
“ JONATHAN D. STEELE, President,
“PETER NOTMAN, Secretary,

The Niagara Fire Insurance Co.
“ROBT. S. HOWE, President,
“D. F. CURRY, Secretary,

The Republic Fire Insurance Co."

The answer of the defendant admits the issuing of the policy, the loss by fire, notice of loss to defendant, ownership of property in plaintiff, and that there was no further insurance, but sets up the following special defense: That, at the time the policy was issued, the building lost by the fire was used for mercantile purposes, and for "manufacture of materials which were not of an extra combustible nature;” that, after the contract of insurance was entered into, and before the fire, the plaintiff leased portions of the building, to be used for the manufacturing therein of “rustic window shades,” without having obtained the written consent of defendant, and contrary to the terms of the policy; that, in the manufacturing of said rustic window shades, pine slats and splinters of wood, benzole, benzine or naptha, varnish, paints, etc., are used, and large quantities of shavings were constantly being made, and other combustible substances created, greatly increasing the risk and hazard of the building insured in said

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