Kerr v. Milwaukee Mechanics' Ins.

Citations

• 117 F. 442
• 54 C.C.A. 616
• 1902 U.S. App. LEXIS 4453

Syllabus

<p>1. Fire Insurance—Action on Policy—Estoppel.</p> <p>In an action on a fire insurance policy defendant is not estopped, by a notice given plaintiff denying liability on the ground that the property was not in existence when the policy was delivered, from proving that a prior policy of another company covering the same property, which was to be replaced by defendant’s policy, had not been canceled when the property was burned; the two defenses being entirely consistent.</p> <p>2. Same—Substitution of Policies by Agent—Delivery after Destruction of Property.</p> <p>An insurance agent wrote a policy in a company represented by him, which he intended to substitute for a subsisting policy in another company, which had demanded an increased premium, but had taken no steps to cancel its policy. The agent marked the first policy “Canceled” in his books, and transferred the credit for the premium paid, but the second policy was not delivered, nor was the intended substitution known to the insured (who still held the first policy), nor to either company, until after the property had been destroyed by fire. Held, that the first policy remained in force, and liability thereunder became fixed by the destruction of the property, and that the second policy did not become effective as a valid contract of insurance by its subsequent delivery by the agent.</p>