Fishbeck v. Phenix Ins. Co.

Citations

• 54 Cal. 422

Syllabus

<p>Insurance — Evidence — Res Gest/e. — An insurance was effected by the plaintiff with the defendant, through the medium of T., an insurance solicitor—the plaintiff, and the defendant’s agent, S., who issued the policy, not meeting in the transaction. Held, in an action upon the policy, that conversations of tlie. plaintiff with T., occurring in the course of the transaction, were admissible in evidence, not only because they were parts of the res gestee, but also because there was other evidence in the case, from which it might be inferred that T. had given to S. the information derived from those conversations.</p> <p>Id.—Agency—Clause of Forfeiture.—The policy sued upon contained the provision, “ that if any other insurance had been or shall hereafter be made upon the said property, and not consented to by this company, in writing hereon, * * * this policy shall be null and void.” At the time of the insurance, there were other insurances upon the property, which were not noted upon the policy; but S., the defendant's agent, knew of these insurances. Held, that the knowledge of S. was the knowledge of the company, and that the policy was valid.</p> <p>Id. — Estoppel in pais. — S., the defendant’s agent, joined with the other companies in adjusting the loss, and upon the adjustment promised to pay his companies’ proportion ; and, thereupon, the plaintiff settled with the other companies upon the basis of the adjustment. Held, that the defendant was estopped from denying its liability.</p> <p>Id.—Rescission.—After the adjustment, S. paid back to the plaintiff the unearned part of the premium, but retained the portion thereof corresponding with the period from the issuance of the policy to the date of the loss. Held, that to avoid the policy on the ground of deception, it would have been necessary to return the whole premium.</p>