IN INSURANCE CASES, RENDERED IN THE UNITED STATES SUPREME ACTION. $1. LIFE.-Non-suit does not bar.-Removal of Suit. - A judgment of non-suit is no bar to a new action, and of no weight as evidence at the trial of that action. Homer vs. Brown, 16 How., 354. Pending an action in a court of the State of New York against a corporation established in that State, by a widow, a citizen of New Jersey, upon a policy of insurance on the life of her husband, the plaintiff assigned the policy to a citizen of New York in trust for her benefit, and was afterwards non-suited by order of the court. Upon a subsequent petition by the trustee to another court of the State to be relieved of his trust, a citizen of New Jersey was at her request appointed trustee in his stead. One object of this appointment was to enable a suit on the policy to be brought in the Circuit Court of the United States, which was afterwards brought accordingly. Held, That the suit should not be dismissed under the act of 3d March, 1875, c. 137, secs. 1, 5. 22764 Ins. Co. vs. Rodel, 95 U. S., 232; Life Ins. Co. vs. Terry, 15 Wall., 580; Breasted vs. Farmers' Loan & Trust Co., 4 Hill, 73; Van Zandt vs. Mutual Benefit Ins. Co., 55 N. Y., 169, and Weed vs. Same, 70 N. Y., 561, 18 Stat., 470, 472; Williams vs. Nottawa, 104 U. S., 209; Railroad Co. vs. Lockwood, 17 Wall., 357, 368; Myrick vs. Michigan Central Railroad, 107 U. S., 102; Burgess vs. Seligman, 107 U. S., 20. Manhattan Life Ins. Co. vs. Broughton. Rep'd Jour'l, p. 29. U. S. S. C. § 2. FIRE. AGENT. Evidence as to Powers of.-Evidence of Incumbrance in Case of Verbal Application.-Authority to Consent to Transfer of Title and Assignment of Policy.-The mere opinion of a witness as to the powers of an agent without showing the source of his knowledge, is inadmissible as evidence. Where the insured had never authorized a written application and it did not appear but that full disclosures as to incumbrance had been. made to the agent who made out the written application, and the policy provided that it should be void if incumbrances were not disclosed in the application, it was not error to exclude evidence of such incumbrances. The acceptance of the policy did not bind the insured by the representations of the agent in the application. Ames vs. N. Y. Union Ins. Co., 14 N. Y., 253; Sprague vs. Holland Purchase Insurance Co., 69 N. Y., 128; Vilas vs. N. Y. C. Ins. Co., 72 N. Y., 590; Clinton vs. Hope Ins. Co., 45 N. Y., 454. A transfer of title without the required consent, does not render the policy void ipso facto, but simply voidable at the election of the company. Titus vs. Glens Falls Ins. Co., 81 N. Y., 419; Hooper vs. Hudson R. F. Ins. Co., 17 N. Y., 426 ; Howard vs. Albany Ins. Co., 3 Denio, 301; Sherwood vs. Agric. Ins. Co., 73 N. Y., 447. Where the agent consents to a transfer of the policy, and the company on being notified makes no objection until more than a year and after a loss, the act of the agent will be deemed the act of the company. Buchanan vs. Exchange Fire Ins. Co., 61 N. Y., 26; Sherman vs. Niagara Ins. Co., 46 N. Y., 526. A naked transfer of the policy to one having no interest in the property even if consented to, will convey no rights. Where the policy prohibited the transfer of title to the property without written consent of the company, but authorized the agent to consent to assignment of the policy, the agent had implied authority to consent to the transfer of title to the property. Wolf vs. Security Fire Ins. Co., 3) N. Y., 49. The fact that there had been an intermediate conveyance of the property without assignment of the policy was immaterial when the company had consented to both in the case of a subsequent owner. Benninghoff vs. Agricultural Ins. Co. Rep'd Jour'l, p. 45. ASSESSMENT. N. Y. C. A. $3. FIRE.-In Mutual Company. In Case of Insolvency.— Statutory Liability Cannot be Limited by Articles of Association, ur Agreements Among the Members.-The statute under which a mutual corporation was organized, set forth among other things that the articles of association "May prescribe the liabilities of the members to be assessed towards defraying the losses and expenses of the company and manner of collecting such assessments;" also that in case of insolvency the receiver should assess upon all members and persons insured, such sums as in the ag gregate should be sufficient to pay all losses, liabilities and expenses of receivership, and power is given to enforce such payments. Held, That the statutory liability of a member could not be limited by the articles of association to the amount of undertaking given for premium on his risk, nor by like undertakings entered into by the member limiting his assessments. Held, That the members were liable for their proportion of such assessments as were sufficient to meet all losses, liabilities and expenses of receivership regardless of any limitations in the articles of association on their contracts with the company. Russell vs. Berry. Rep'i Jour'i, p. 64. MICH. S. C. |