Chan vs. United Insurance Co., Inc., 277 SCRA 690

A non-life insurance policy such as the fire insurance policy taken by petitioner-spouses over their merchandise is primarily a contract of indemnity. Insurable interest in the property insured must exist at the time the insurance takes effect and at the time the loss occurs. The basis of such requirement of insurable interest in property insured is based on sound public policy: to prevent a person from taking out an insurance policy on property upon which he has no insurable interest and collecting the proceeds of said policy in case of loss of the property.

In the present case, it cannot be denied that CKS has no insurable interest in the goods and merchandise inside the leased premises under the provisions of Section 17 of the Insurance Code which provide: "Section 17. The measure of an insurable interest in property is the extent to which the insured might be damnified by loss of injury thereof."

Therefore, CKS cannot, under the Insurance Code — a special law — be validly a beneficiary of the fire insurance policy taken by the petitioner-spouses over their merchandise. This insurable interest over said merchandise remains with the insured, the Cha spouses. The automatic assignment of the policy to CKS under the provision of the lease contract previously quoted is void for being contrary to law and/or public policy. The proceeds of the fire insurance policy thus rightfully belong to the spouses Nilo Cha and Stella Uy-Cha (herein co-petitioners). The insurer (United) cannot be compelled to pay the proceeds of the fire insurance policy to a person (CKS) who has no insurable interest in the property insured.

Ang Ka Yu vs. Phoenix Assurance Corp

Facts:

Ang Ka Yu had a piece of property in his possession. He insured it with Phoenix. The property was lost, so Ang Ka Yu sought to claim the proceeds. Phoenix denied liability on the ground that Ang was not the owner but a mere possessor and as such, had no insurable interest over the property.

Issue:

Whether or not a mere possessor has insurable interest over the property.

Held:

Yes.

A person having a mere right or possession of property may insure it to its full value and in his own name, even when he is not responsible for its safekeeping. The reason is that even if a person is NOT interested in the safety and preservation of material in his possession because they belong to 3rd parties, said person still has insurable interest, because he stands either to benefit from their continued existence or to be prejudiced by their destruction.

Poe vs. Malayan Insurance Co., G.R. No. 156302, April 7, 2009

FACTS: Loreto Maramag designated as beneficiary his concubine Eva de Guzman Maramag Vicenta Maramag and Odessa, Karl Brian, and Trisha Angelie (heirs of Loreto Maramag) and his concubine Eva de

Guzman Maramag, also suspected in the killing of Loreto and his illegitimate children are claiming for his insurance.

Vicenta alleges that Eva is disqualified from claiming

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RTC: Granted - civil code does NOT apply CA: dismissed the case for lack of jurisdiction for filing beyond reglementary periodISSUE: W/N Eva can claim even though prohibited under the civil code against donation

HELD: YES. Petition is DENIED. Any person who is forbidden from receiving any donation under Article 739 cannot be named beneficiary of a

life insurance policy of the person who cannot make any donation to him If a concubine is made the beneficiary, it is believed that the insurance contract will still remain valid, but

the indemnity must go to the legal heirs and not to the concubine, for evidently, what is prohibited under Art. 2012 is the naming of the improper beneficiary.

SECTION 53. The insurance proceeds shall be applied exclusively to the proper interest of the person in whose name or for whose benefit it is made unless otherwise specified in the policy.

GR: only persons entitled to claim the insurance proceeds are either the insured, if still alive; or the beneficiary, if the insured is already deceased, upon the maturation of the policy.

EX: situation where the insurance contract was intended to benefit third persons who are not parties to the same in the form of favorable stipulations or indemnity. In such a case, third parties may directly sue and claim from the insurer

It is only in cases where the insured has not designated any beneficiary, or when the designated beneficiary is disqualified by law to receive the proceeds, that the insurance policy proceeds shall redound to the benefit of the estate of the insured

The Insular Life Assurance Co. vs. Ebrado, G.R. No. L-44059, Oct. 28, 1977

Facts: Buenaventura Ebrado was issued by Insular Life Assurance Co. a whole life plan for P5,882.00 with a rider for Accidental Death Benefits for the same amount. Ebrado designated Carponia Ebrado as the revocable beneficiary in his policy, referring to her as his wife. Ebrado died when he was accidentally hit by a falling branch of tree. Insurer by virtue of the contract was liable for 11,745.73, and Carponia filed her claim, although she admitted that she and the insured were merely living as husband and wife without the benefit of marriage. Pascuala Ebrado also filed her claim as the widow of the deceased insured. Insular life filed an interpleader case and the lower court found in favor of Pascuala.

Issue: Between Carponia and Pascuala, who is entitled to the proceeds?

Held: Pascuala.It is quite unfortunate that the Insurance Act or our own Insurance Code does not contain a specific

provision grossly resolutory of the prime question at hand. Rather, the general rules of civil law should be applied to resolve this void in the insurance law. Art. 2011 of the NCC states: The contract of insurance is governed by special laws. Matters not expressly provided for in such special laws shall be regulated by this Code. When not otherwise specifically provided for in the insurance law, the contract of life insurance is governed by the general rules of civil law regulating contracts.

Under Art. 2012, NCC: Any person who is forbidden from receiving any donation under Art. 739 cannot be named beneficiary of a life insurance policy by a person who cannot make any donation to him, according to said article. Under Art. 739, donations between persons who were guilty of adultery or concubinage at the time of the donation shall be void.

In essence, a life insurance policy is no different from civil donations insofar as the beneficiary is concerned. Both are founded on the same consideration of liberality. A beneficiary is like a donee because from the premiums of

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the policy which the insured pays, the beneficiary will receive the proceeds or profits of said insurance. As a consequence, the proscription in Art. 739 should equally operate in life insurance contracts.

Therefore, since common-law spouses are barred from receiving donations, they are likewise barred fromreceiving proceeds of a life insurance contract.

Vda. De Consuegra vs. GSIS, 37 SCRA 315

Facts:Jose Consuegra was employed as a shop foreman of the Office of the District Engineer in Surigao Del Norte.

When he was still alive, he contracted two marriages:First – Rosario Diaz; 2 children = Jose Consuegra Jr. and Pedro but both predeceased him2nd – Basilia Berdin; 7 children. (this was contracted in GF while the first marriage subsisted)

Being a GSIS member when he died, the proceeds of his life insurance were paid by the GSIS to Berdin and her children who were the beneficiaries named in the policy. Since he was in the gov’t service for 22.5028 years, he was entitled to retirement insurance benefits, for which no beneficiary was designated.

Both families filed their claims with the GSIS, which ruled that the legal heirs were Diaz who is entitled to one-half or 8/16 of the retirement benefits and Berdin and her children were entitled to the remaining half, each to receive an equal share of 1/16.

Berdin went to CFI on appeal. CFI affirmed GSIS decision.

Issue: To whom should the retirement insurance benefits be paid?

Held:

Both families are entitled to half of the retirement benefits.

The beneficiary named in the life insurance does NOT automatically become the beneficiary in the retirement insurance. When Consuegra, during the early part of 1943, or before 1943, designated his beneficiaries in his life insurance, he could NOT have intended those beneficiaries of his life insurance as also the beneficiaries of his retirement insurance because the provisions on retirement insurance under the GSIS came about only when CA 186 was amended by RA 660 on June 18, 1951.

Sec. 11(b) clearly indicates that there is need for the employee to file an application for retirement insurance benefits when he becomes a GSIS member and to state his beneficiary. The life insurance and the retirement insurance are two separate and distinct systems of benefits paid out from 2 separate and distinct funds.

In case of failure to name a beneficiary in an insurance policy, the proceeds will accrue to the estate of the insured. And when there exists two marriages, each family will be entitled to one-half of the estate.

SSS vs. Davao, 117 SCRA 863

Facts:Davac was an SSS member, and designated Candelaria Davac, his alleged wife, as his beneficiary. When he

died, both his first wife, Lourdes and his second wife, Candelaria filed claims for the death benefits.

Due to the conflicting claims, the SSS filed a petition praying that both of them be required to interplead and litigate the conflicting claims. The death benefits were awarded to Candelaria Davac.

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Issue: Who is entitled to the SSS benefits?

Held: Candelaria.

Under the SSS Act, the beneficiary as recorded by the employee’s employer is the one entitled to the death benefits, hence they should go to Candelaria. Lourdes contends that the designation made in the person of Candelaria who is party in a bigamous marriage is null and void for being against Art. 739 of the CC. SC held that the disqualification mentioned in Art. 739 is NOT applicable to Candelaria, because she was not guilty of concubinage , there bieing NO proof that she had actual knowledge of the previous marriage of her husband.

Filipinas Cia De Seguros vs. Christern, Huenefield & Co., 89 PHIL 54

Facts:

Christern, Huenefeld and Company, a German company, obtained a fire insurance policy from Filipinas Compañia for the merchandise contained in a building located in Binondo, Manila in the sum of P100,000. Filipinas Compañia is an American controlled company. The building and the insured merchandise were burned during the Japanese occupation. Christern filed its claim amounting to P92,650.00 but Filipinas Compañia refused to pay alleging that Christern is a corporation whose majority stockholders are Germans and that during the Japanese occupation, America declared war against Germany hence the insurance policy ceased to be effective because the insured has become an enemy. Filipinas Compañia was eventually ordered to pay Christern as ordered by the Japanese government.

ISSUE:

Whether or not Christern, Huenefeld and Co is entitled to receive the proceeds from the insurance claim.

HELD:

NO. There is no question that majority of the stockholders of Christern were German subjects. This being so, Christern became an enemy corporation upon the outbreak of the war between the United States and Germany. The Philippine Insurance Law (Act No. 2427, as amended,) in Section 8, provides that “anyone except a public enemy may be insured.” It stands to reason that an insurance policy ceases to be allowable as soon as an insured becomes a public enemy.

The respondent having become an enemy corporation on December 10, 1941, the insurance policy issued in its favor on October 1, 1941, by the petitioner had ceased to be valid and enforceable, and since the insured goods were burned after December 10, 1941, and during the war, the respondent was not entitled to any indemnity under said policy from the petitioner. However, elementary rules of justice (in the absence of specific provision in the Insurance Law) require that the premium paid by the respondent for the period covered by its policy from December 11, 1941, should be returned by the petitioner

Tongko vs. The Manufacturers Life Insurance, G.R. No. 167622, June 29, 2010

FACTS:

In 1983, Tongko was named as a Unit Manager in Manulife's Sales Agency Organization. In 1990, he became a Branch Manager. As the CA found, Tongko's gross earnings from his work at Manulife, consisting of commissions, persistency income, and management overrides. The problem started sometime in 2001, when Manulife instituted manpower development programs in the regional sales management level. Relative thereto, De Dios addressed a

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letter dated November 6, 2001 to Tongko regarding an October 18, 2001 Metro North Sales Managers Meeting. Stating that Tongko’s Region was the lowest performer (on a per Manager basis) in terms of recruiting in 2000 and, as of today, continues to remain one of the laggards in this area. Other issues were:"Some Managers are unhappy with their earnings and would want to revert to the position of agents." And "Sales Managers are doing what the company asks them to do but, in the process, they earn less." Tongko was then terminated.

ISSUES:Is there an employer-employee relationship between Tongko and Manulife?.

HELD:

NO. In the determination of whether an employer-employee relationship exists between 2 parties, this court applies the four-fold test todetermine the existence of the elements of such relationship. Jurisprudence is firmly settled that whenever the existence of an employment relationshipis in dispute, four elements constitute the reliable yardstick: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the powerof dismissal; and (d) the employer’s power to control the employee’s conduct. IT is the so-called “control test” which constitutes the most important indexof existence of the employer-employee relationship that is, whether the employer controls or has reserved the right to control the employee not only asto the result of the work to be done but also as to the means and methods by which the same is to be accomplished. Stated otherwise, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end to be achieved butalso the means to be used in reaching such end. In the case at bar, the absence of evidence showing Manulife’s control over Tongko’s contractualduties points to the absence of any employer-employee relationship between Tongko and Manulife. In the context of the established evidence, Tongkoremained an agent all along; although his subsequent duties made him a lead agent with leadership role, he was nevertheless only an agent whose basic contract yields no evidence of means-and-manner control. Claimant clearly failed to substantiate his claim of employment relationship by thequantum of evidence the Labor Code requires.

Tongko’s failure to comply with the guidelines of de Dios’ letter, as a ground for termination of Tongko’s agency, is a matter that the labortribunals cannot rule upon in the absence of an employer-employee relationship. Jurisdiction over the matter belongs to the courts applying the laws ofinsurance, agency and contracts.

Sun Insurance Office, Ltd. Vs. CA, 195 SCRA 193

Facts:

Lim accidentally killed himself with his gun after removing the magazine, showing off, pointing the gun at his secretary, and pointing the gun at his temple. The widow, the beneficiary, sued the petitioner and won 200,000 as indemnity with additional amounts for other damages and attorney’s fees. This was sustained in the Court of Appeals then sent to the Supreme court by the insurance company.

Issue:

1. Was Lim’s widow eligible to receive the benefits?

2. Were the other damages valid?

Held:

1. Yes 2. No

Ratio: 1. There was an accident.

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De la Cruz v. Capital Insurance says that "there is no accident when a deliberate act is performed unless some additional, unexpected, independent and unforeseen happening occurs which produces or brings about their injury or death." This was true when he fired the gun.

Under the insurance contract, the company wasn’t liable for bodily injury caused by attempted suicide or by one needlessly exposing himself to danger except to save another’s life.

Lim wasn’t thought to needlessly expose himself to danger due to the witness testimony that he took steps to ensure that the gun wasn’t loaded. He even assured his secretary that the gun was loaded.

There is nothing in the policy that relieves the insurer of the responsibility to pay the indemnity agreed upon if the insured is shown to have contributed to his own accident.

2. “In order that a person may be made liable to the payment of moral damages, the law requires that his act be wrongful. The adverse result of an action does not per se make the act wrongful and subject the act or to the payment of moral damages. The law could not have meant to impose a penalty on the right to litigate; such right is so precious that moral damages may not be charged on those who may exercise it erroneously. For these the law taxes costs.”

If a party wins, he cannot, as a rule, recover attorney's fees and litigation expenses, since it is not the fact of winning alone that entitles him to recover such damages of the exceptional circumstances enumerated in Art. 2208. Otherwise, every time a defendant wins, automatically the plaintiff must pay attorney's fees thereby putting a premium on the right to litigate which should not be so. For those expenses, the law deems the award of costs as sufficient.”

Serrano vs. CA, 130 SCRA 327

Facts:

Issues:

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Villacorta vs. Insurance Commission, 100 SCRA 467

Facts:

Complainant [petitioner] was the owner of a Colt Lancer, Model 1976, insured with respondent company under Private Car Policy No. MBI/PC-0704 for P35,000.00 — Own Damage; P30,000.00 — Theft; and P30,000.00 — Third Party Liability, effective May 16, 1977 to May 16, 1978. On May 9, 1978, the vehicle was brought to the Sunday Machine Works, Inc., for general check-up and repairs. On May 11, 1978, while it was in the custody of the Sunday Machine Works, the car was allegedly taken by six (6) persons and driven out to Montalban, Rizal. While travelling along Mabini St., Sitio Palyasan, Barrio Burgos, going North at Montalban, Rizal, the car figured in an accident, hitting and bumping a gravel and sand truck parked at the right side of the road going south. As a consequence, the gravel and sand truck veered to the right side of the pavement going south and the car veered to the right side of the pavement going north. The driver, Benito Mabasa, and one of the passengers died and the other four sustained physical injuries. The car, as well, suffered extensive damage. Complainant, thereafter, filed a claim for total loss with the respondent company but claim was denied. Hence, complainant, was compelled to institute the present action.

Issue:WON the Insurance Company is liable.

Held:Yes. Assuming, despite the totally inadequate evidence, that the taking was "temporary" and for a "joy ride", the Court sustains as the better view that which holds that when a person, either with the object of going to a certain place, or learning how to drive, or enjoying a free ride, takes possession of a vehicle belonging to another, without the consent of its owner, he is guilty of theft because by taking possession of the personal property belonging to another and using it, his intent to gain is evident since he derives therefrom utility, satisfaction, enjoyment and pleasure.

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Fortune Insurance and Surety Co., Inc. vs. CA, 244 SCRA 308

Einman General Insurance Corp. vs. CA, 213 SCRA 493

FACTS:

On October 22, 1986, deceased, Carlie Surposa was insured with petitioner Finman General Assurance Corporation with his parents, spouses Julia and Carlos Surposa, and brothers Christopher, Charles, Chester and Clifton, all surnamed, Surposa, as beneficiaries. While said insurance policy was in full force and effect, the insured, Carlie Surposa, died on October 18, 1988 as a result of a stab wound inflicted by one of the three (3) unidentified men. Private respondent and the other beneficiaries of said insurance policy filed a written notice of claim with the petitioner insurance company which denied said claim contending that murder and assault are not within the scope of the coverage of the insurance policy. Private respondent filed a complaint with the Insurance Commission which rendered a favorable response for the respondent. The appellate court ruled likewise. Petitioner filed this petition alleging grave abuse of discretion on the part of the appellate court in applying the principle of "expresso unius exclusio alterius" in a personal accident insurance policy, since death resulting from murder and/or assault are impliedly excluded in said insurance policy considering that the cause of death of the insured was not accidental but rather a deliberate and intentional act of the assailant. Therefore, said death was committed with deliberate intent which, by the very nature of a personal accident insurance policy, cannot be indemnified.

ISSUE: Whether or not the insurer is liable for the payment of the insurance premiums

HELD:Yes, the insurer is still liable. Contracts of insurance are to be construed liberally in favor of the insured and strictly against the insurer. Thus ambiguity in the words of an insurance contract should be interpreted in favor of its

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beneficiary. The terms "accident" and "accidental" as used in insurance contracts have not acquired any technical meaning, and are construed by the courts in their ordinary and common acceptation. Thus, the terms have been taken to mean that which happen by chance or fortuitously, without intention and design, and which is unexpected, unusual, and unforeseen. Where the death or injury is not the natural or probable result of the insured's voluntary act, or if something unforeseen occurs in the doing of the act which produces the injury, the resulting death is within the protection of the policies insuring against death or injury from accident. In the case at bar, it cannot be pretended that Carlie Surposa died in the course of an assault or murder as a result of his voluntary act considering the very nature of these crimes. Neither can it be said that where was a capricious desire on the part of the accused to expose his life to danger considering that he was just going home after attending a festival. Furthermore, the personal accident insurance policy involved herein specifically enumerated only ten (10) circumstances wherein no liability attaches to petitioner insurance company for any injury, disability or loss suffered by the insured as a result of any of the stimulated causes. The principle of " expresso unius exclusio alterius" — the mention of one thing implies the exclusion of another thing — is therefore applicable in the instant case since murder and assault, not having been expressly included in the enumeration of the circumstances that would negate liability in said insurance policy cannot be considered by implication to discharge the petitioner insurance company from liability for, any injury, disability or loss suffered by the insured. Thus, the failure of the petitioner insurance company to include death resulting from murder or assault among the prohibited risks leads inevitably to the conclusion that it did not intend to limit or exempt itself from liability for such death.

Virginia Perez vs. CA, 323 SCRA 613

Facts:Primitivo Perez has been isured with the BF Lifeman Insurance Corporation since 1980 for P20,000. Sometime in 1987, Rodolfo Lalog, an agent of BF, convinced him to apply for additional insurance coverage of P50, 000. Perez accomplished the application form and passed the required medical exam. He also paid P2,075 to Lalog for premium. On Nov. 25, 1987, Perez died while riding a banca which capsized during a storm. During this time his application papers for the additional insurance coverage was still in the office of BF. Without knowing that Perez died, BF approved Perez’s application and issued the corresponding policy for P50,000.Virginia Perez, his wife, claimed the benefits of the insurance policy for her deceased husband but she was only able to obtain P40,000 under the first insurance policy. BF refused to pay the proceeds amounting to P150,000 under the additional policy coverage of P50,000 because they maintain that such policy had not been perfected. On Sept. 21, 1990, BF filed a complaint against Mrs. Perez seeking rescission and declaration of nullity of the insurance contract in question. Mrs. Perez file a counterclaim for the collection of P150,000 plus damages.

Issue:Whether or not there was a consummated contract of insurance between Perez and BF.

Held:No. An essential requisite of a valid contract is consent. Consent must be manifested by the meeting of the offer and acceptance upon the thing and the cause which are to constitute the contract. The offer must be certain and the acceptance absolute. When Perez filed the application, it was subject to the acceptance of BF. The perfection was also further conditioned upon 1) issuance of the policy; 2) payment of the premium and; 3) the delivery to and acceptance by the applicant in good health. The delivery and acceptance by the applicant was a suspensive condition which was not fulfilled in as much as the applicant was already dead at the time the policy was issued. The non-fulfillment of the condition resulted in the non-perfection of the contract. An application for insurance is merely an offer which requires the overt act of the insurer for it to ripen to a contract. Delay in acting on the application does not constitute acceptance even though the insured has forwarded his first premium with his application. Delay, in this case, does not constitute gross negligence because the application was granted within the normal processing time. WHEREFORE, the decision rendered by the Court of Appeals in CA-G.R. CV No. 35529 is AFFIRMED insofar as it declared Insurance Policy No. 056300 for P50,000.00 issued by BF Lifeman Insurance Corporation of no force and effect and hence null and void. No costs.

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Enriquez vs. Sunlife, 41 PHIL 269

Facts:On Sept. 24 1917, Herrer made an application to SunLife through its office in Manila for life annuity. 2 days

later, he paid the sum of 6T to the company’s anager in its Manila office and was given a receipt. On Nov. 26, 1917, the head office gave notice of acceptance by cable to Manila. On the same date, the Manila office prepared a letter notifying Herrer that his application has been accepted and this was placed in the ordinary channels of transmission, but as far as known was never actually mailed and never received by Herrer. Herrer died on Dec. 20, 1917. The plaintiff as administrator of Herrer’s estate brought this action to recover the 6T paid by the deceased.

Issue: WON the insurance contract was perfected.

Held: NO.The contract for life annuity was NOT perfected because it had NOT been proved satisfactorily that the

acceptance of the application ever came to the knowledge of the applicant. An acceptance of an offer of insurance NOT actually or constructively communicated to the proposer does NOT make a contract of insurane, as the locus poenitentiae is ended when an acceptance has passed beyond the control of the party.

NOTE: Life annuity is the opposite of a life insurance. In life annuity, a big amount is given to the insurance company, and if after a certain period of time the insured is stil living, he is entitled to regular smaller amounts for the rest of his life. Examples of Life annuity are pensions. Life Insurance on the other hand, the insured during the period of the coverage makes small regular payments and upon his death, the insurer pays a big amount to his beneficiaries.

Qua Chee Gan vs. Law Unin and Rock Ins. Co., 98 Phil 85

Facts:Before the last war, Qua Chee Gan owned 4 warehouses or bodegas (designated as Bodegas nos. 1 to 4) in

Tabaco, Albay, used for the storage of stocks of copra and of hemp, baled and loose, in which he dealt extensively. They had been, with their contents, insured with Law Union since 1937, and the loss made payable to the Philippine National Bank as mortgagee of the hemp and copra, to the extent of its interest. Fire broke out in, 1940, and lasted almost one week, gutted and completely destroyed Bodegas Nos. 1, 3 and 4, with the merchandise stored therein. Qua informed the insurer by telegram on the same date; and on the next day, the insurer sent fire adjusters to estimate the loss. The loss was estimated at 370T. Law Union refused to pay contending that Qua purposely set fire to his bodegas and violation of warranties and conditions as agreed.

Law Union then filed a criminal case for arson, but the same was dismissed by the trial court. Qua Chee thereafter instituted this civil case for the collection of the proceeds of insurance. As defense, Law Union Rock contends that Qua Chee violated the provisions agreed upon in a rider in the insurance policy where:

a fire hydrants should be placed every 150 feet of the external wall measurement, since there are only 2 and another 2 in a further area owned by the municipality.

Qua Chee failed to maintain the agreed water pressure and the 100 feet of fire hose He did maintain 20 fire brigade men within the premises

Insurer also averred that Qua Chee violated the provision of the Hemp Warranty which prohibits the storage of oils when he stored gasoline in bodega 2.

Issue: WON the company can rescind the contract on the basis of such alleged violation.

Held: NO.Law Union is barred by waiver (or rather estoppel) to claim violation of the so- called fire hydrants warranty,

for the reason that knowing fully all that the number of hydrants demanded therein never existed from the very beginning, the Law Union nevertheless issued the policies in question subject to such warranty, and received the corresponding premiums. It would be perilously close to conniving at fraud upon the insured to allow Law Union to

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claim now as void ab initio the policies that it had issued to the plaintiff without warning of their fatal defect, of which it was informed, and after it had misled the defendant into believing that the policies were effective.

The insurance company was aware, even before the policies were issued, that in the premises insured there were only two fire hydrants installed by Qua Chee Gan and two others nearby, owned by the municipality of Tabaco, contrary to the requirements of the warranty in question. Such fact appears from positive testimony for the insured that appellant's agents inspected the premises; and the simple denials of appellant's representative (Jamiczon) can not overcome that proof. That such inspection was made is moreover rendered probable by its being a prerequisite for the fixing of the discount on the premium to which the insured was entitled, since the discount depended on the number of hydrants, and the fire fighting equipment available

The alleged violation of the warranty of 100 feet of fire hose for every two hydrants, must be equally rejected, since the appellant's argument thereon is based on the assumption that the insured was bound to maintain no less than eleven hydrants (one per 150 feet of wall), which requirement appellant is estopped from enforcing. The supposed breach of the water pressure condition is made to rest on the testimony of witness Serra, that the water supply could fill a 5-gallon can in 3 seconds; appellant thereupon inferring that the maximum quantity obtainable from the hydrants was 100 gallons a minute, when the warranty called for 200 gallons a minute. The transcript shows, however, that Serra repeatedly refused and professed inability to estimate the rate of discharge of the water, and only gave the "5-gallon per 3-second" rate because the insistence of appellant's counsel forced the witness to hazard a guess. Obviously, the testimony is worthless and insufficient to establish the violation claimed, specially since the burden of its proof lay on appellant.

As to maintenance of a trained fire brigade of 20 men, the record is preponderant that the same was organized, and drilled, from time to give, although not maintained as a permanently separate unit, which the warranty did not require. Anyway, it would be unreasonable to expect the insured to maintain for his compound alone a fire fighting force that many municipalities in the Islands do not even possess. There is no merit in appellant's claim that subordinate membership of the business manager (Co Cuan) in the fire brigade, while its direction was entrusted to a minor employee, renders the testimony improbable. A business manager is not necessarily adept at fire fighting, the qualities required being different for both activities.

It is well to note that gasoline is not specifically mentioned among the prohibited articles listed in the so called "hemp warranty." The cause relied upon by the insurer speaks of "oils (animal and/or vegetable and/or mineral and/or their liquid products having a flash point below 300° Fahrenheit", and is decidedly ambiguous and uncertain; for in ordinary parlance, "Oils" mean "lubricants" and not gasoline or kerosene. And how many insured, it may well be wondered, are in a position to understand or determine "flash point below 003° Fahrenheit. Here, again, by reason of the exclusive control of the insurance company over the terms and phraseology of the contract, the ambiguity must be held strictly against the insurer and liberally in favor of the insured, specially to avoid a forfeiture

Fieldmen's Insurance Co., Inc. vs. Vda. De Songco, 25 SCRA 70

Facts:In 1960, Sambat, an agent of Fieldman’s Insurance, induced Songco, a man of scant education to enter into a

common carrier insurance contract with Fieldman. During the inducement, a son of Songco butted in and said that they could not accept the type of insurance offered because theirs was an owner-type jeepney and not a common carrier. Sambat answered that it did not matter because the insurance company was not owned by the government and therefore had nothing to do with rules and regulations of the latter (Fieldman). The insurance was executed and approved for a year from Sept. 1960-1961. It was renewed in 1961 for another year.

In Oct. 1961, the jeepney collided with a car in Bulacan and as a result, Sonco died. The remaining members of the family claimed the proceeds of the insurance with the company but it refused to pay on the ground that the vehicle was not a common carrier.

Issue: WON the Songcos’ can claim the insurance proceeds despite the fact that the vehicle concerned was an owner and not a common carrier.

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Held: Yes.

The company is estopped from asserting that the vehicle was not covered. After it had led FedericoSongco to believe that he could qualify under the common carrier liability insurance policy, and to enter intoa contract of insurance paying the premiums due, it could not thereafter be permitted to change its stand tothe detriment of the heirs of the insured. It knew all along that Frederico owned a private vehicle. Its agentSambat twice exerted the utmost pressure on the insured, a man of scant education, and the company didnot object to this.

Sunlife Assurance of Canada vs. CA, GR No. 105135, June 22, 1995

Facts:

Robert John B. Bacani procured a life insurance contract for himself from Sunlife. He was issued a Policy valued at P100,000.00, with double indemnity in case of accidental death. The designated beneficiary was his mother, Bernarda Bacani.

In his application for insurance Robert was asked if within 5 years he (a) consulted any doctor or other health practitioner (b) subjected to different test i.e. blood, x-rays etc. (c) attended or been admitted to any hospital or other medical facility. Robert answered yes in letter a. but limited his answer to a consultation with a certain Dr. Reinaldo D. Raymundo of the Chinese General Hospital on February 1986, for cough and flu complications.

Sunlife discovered that two weeks prior to Robert’s application for insurance, that Robert was examined and confined at the Lung Center of the Philippines, where he was diagnosed for renal failure. During his confinement, the deceased was subjected to urinalysis, ultra-sonography and hematology tests.

Robert died in a plane crash. Bernarda filed a claim with Sunlife, seeking the benefits of the insurance policy taken by her son. Sunlife conducted an investigation and its findings prompted it to reject the claim.

Sunlife informed Bernarda that Robert did not disclose material facts relevant to the issuance of the policy, thus rendering the contract of insurance voidable. A check representing the total premiums paid in the amount of P10,172.00 was attached to said letter.

Bernarda subsequently filed an action for specific performance against Sunlife. Sunlife filed a counter claim and a list of exhibits consisting of medical records furnished by the Lung Center of the Philippines. Bernarda filed a "Proposed Stipulation with Prayer for Summary Judgment" where they manifested that they "have no evidence to refute the documentary evidence of concealment/misrepresentation by the decedent of his health condition. Sunlife also filed a motion for summary judgement.

Trial court ruled in favor of Bernarda and concluded that although there was concealment and misrepresentation the facts concealed by the insured were made in good faith and under a belief that they need not be disclosed. Moreover, it held that the health history of the insured was immaterial since the insurance policy was "non-medical". Court of Appeals affirmed the decision and stated that the cause of death was unrelated to the facts concealed by the insured.

Issue: WON there was concealment and can good faith be used as a defense.

Ruling: Yes there was concealment and No the defense of goodfaith is not applicable

Section 26 of the Insurance Code is explicit in requiring a party to a contract of insurance to communicate to the other, in good faith, all facts within his knowledge which are material to the contract and as to which he makes no warranty, and which the other has no means of ascertaining. Said Section provides that "a neglect to communicate that which a party knows and ought to communicate, is called concealment."

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Great Pacific Life Assurance Co. vs. CCA, GR No. L-31845, April 30, 1977

Facts:

On 14 March 1957, Ngo Hing filed an application with the Great Pacific Life Assurance Company for a 20-year endowment policy in the amount of P50,000.00 on the life of his one-year old daughter Helen Go. Ngo Hing supplied the essential data which Lapulapu D. Mondragon, Branch Manager of the Pacific Life in Cebu City wrote on the corresponding form in his own handwriting. Mondragon finally type-wrote the data on the application form which was signed by Ngo Hing. The latter paid the annual premium, the sum of P1,077.75 going over to the Company, but he retained the amount of P1,317.00 as his commission for being a duly authorized agent of Pacific Life. Upon the payment of the insurance premium, the binding deposit receipt was issued to Ngo Hing. Likewise, Mondragon handwrote at the bottom of the back page of the application form his strong recommendation for the approval of the insurance application. Then on 30 April 1957, Mondragon received a letter from Pacific Life disapproving the insurance application. The letter stated that the said life insurance application for 20-year endowment plan is not available for minors below 7 years old, but Pacific Life can consider the same under the Juvenile Triple Action Plan, and advised that if the offer is acceptable, the Juvenile Non-Medical Declaration be sent to the Company. The non-acceptance of the insurance plan by Pacific Life was allegedly not communicated by Mondragon to Ngo Hing. Instead, on 6 May 1957, Mondragon wrote back Pacific Life again strongly recommending the approval of the 20-year endowment life insurance on the ground that Pacific Life is the only insurance company not selling the 20- year endowment insurance plan to children, pointing out that since 1954 the customers, especially the Chinese, were asking for such coverage. It was when things were in such state that on 28 May 1957 Helen Go died of influenza with complication of broncho-pneumonia. Thereupon, Ngo Hing sought the payment of the proceeds of the insurance, but having failed in his effort, he filed the action for the recovery of the same before the Court of First Instance of Cebu, which rendered a decision against Pacific Life and Mondragon, orderig them to solidarily pay Ngo Hing the amount of P50,000.00 with interest at 6% from the date of the filing of the complaint, and the sum of P10,000.00 as attorney's fees plus costs of suits. On appeal, the Court of Appeals set aside the appealed decision of the Court of First Instance of Cebu, and absolved Pacific Life and Mondragon from liability on the insurance policy, but ordered the reimbursement to Ngo Hing the amount of P1,077.75, without interest. On reconsideration, however, the appellate court affirmed in toto the decision of the Court of First Instance of Cebu, ordering Pacific Life and Mondragon jointly and severally to pay Ngo Hing. Two petitions for certiorari by way of appeal were filed by Pacific Life and Mondragon. The petitons were consolidated by the Supreme Court in a resolution dated 29 April 1970.

Issue:

Whether the binding deposit receipt constituted a temporary contract of the life insurance in question, and thus negate the claim that the insurance contract was perfected.

Held:

YES. The provisions printed on the binding deposit receipt show that the binding deposit receipt is intended to be merely a provisional or temporary insurance contract and only upon compliance of the following conditions: (1) that the company shall be satisfied that the applicant was insurable on standard rates; (2) that if the company does not accept the application and offers to issue a policy for a different plan, the insurance contract shall not be binding until the applicant accepts the policy offered; otherwise, the deposit shall be refunded; and (3) that if the applicant is not insurable according to the standard rates, and the company disapproves the application, the insurance applied for shall not be in force at any time, and the premium paid shall be returned to the applicant. Clearly implied from the aforesaid conditions is that the binding deposit receipt in question is merely an acknowledgment, on behalf of the company, that the latter's branch office had received from the applicant the insurance premium and had accepted the application subject for processing by the insurance company; and that the latter will either approve or reject the same on the basis of whether or not the applicant is "insurable on standard rates." Since Pacific Life disapproved the insurance application of Ngo Hing, the binding deposit receipt in question had never become in force at any time. Upon this premise, the binding deposit receipt is, manifestly, merely conditional and does not insure outright. Where an agreement is made between the applicant and the agent, no liability shall attach until the principal approves the risk and a receipt is given by the agent. The acceptance is merely conditional, and is subordinated to the act of the company in approving or rejecting the application. Thus, in life insurance, a "binding slip" or "binding receipt" does not insure by itself. It bears repeating that through the intra-company communication of 30 April 1957, Pacific Life disapproved the insurance application in question on the ground that it is not offering

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the 20-year endowment insurance policy to children less than 7 years of age. What it offered instead is another plan known as the Juvenile Triple Action, which Ngo Hing failed to accept. In the absence of a meeting of the minds between Pacific Life and Ngo Hing over the 20-year endowment life insurance in the amount of P50,000.00 in favor of the latter's one-year old daughter, and with the non-compliance of the abovequoted conditions stated in the disputed binding deposit receipt, there could have been no insurance contract duly perfected between them. Accordingly, the deposit paid by Ngo Hing shall have to be refunded by Pacific Life.

Canilang vs. CA, GR No. 92492, June 17, 1993

FACTS: Jaime Canilang applied for a “non-medical” insurance policy with respondent Great Pacific Life Assurance Company naming his wife, Thelma Canilang as his beneficiary. But he did not disclose the fact that he was diagnosed as suffering from sinus tachycardia and that he has consulted a doctor twice. Jaime was issued an ordinary life insurance policy with the face value of P19,700.00. Jaime died of “congestive heart failure”, “anemia”, and “chronic anemia”. Petitioner widow and beneficiary of the insured, filed a claim with Great Pacific which the insurer denied upon the ground that the insured had concealed material information from it. Hence, Thelma filed a complaint against Great Pacific with the Insurance Commission for recovery of the insurance proceeds.

ISSUE: Whether or not the non-disclosure of certain facts about the insured’s previous health conditions is material to warrant the denial of the claims of Thelma Canilang

HELD: YES. The SC agreed with the Court of Appeals that the information which Jaime Canilang failed to disclose was material to the ability of Great Pacific to estimate the probable risk he presented as a subject of life insurance. Had Canilang disclosed his visits to his doctor, the diagnosis made and medicines prescribed by such doctor, in the insurance application, it may be reasonably assumed that Great Pacific would have made further inquiries and would have probably refused to issue a non-medical insurance policy or, at the very least, required a higher premium for the same coverage. The materiality of the information withheld by Great Pacific did not depend upon the state of mind of Jaime Canilang. A man’s state of mind or subjective belief is not capable of proof in our judicial process, except through proof of external acts or failure to act from which inferences as to his subjective belief may be reasonably drawn. Neither does materiality depend upon the actual or physical events which ensure. Materiality relates rather to the “probable and reasonable influence of the facts” upon the party to whom the communication should have been made, in assessing the risk involved in making or omitting to make further inquiries and in accepting the application for insurance; that “probable and reasonable influence of the facts” concealed must, of course, be determined objectively, by the judge ultimately. WHEREFORE, the Petition for Review is DENIED for lack of merit and the Decision of the Court of Appeals dated 16 October 1989 in C.A.-G.R. SP No. 08696 is hereby AFFIRMED. No pronouncement as to the costs.

Ng Gan Zee vs. Asian Crusader Life Assn Corp., GR No. L-30685, May 30, 1983

Facts:In 1962, Kwon Nam applied for a 20yr endowment insurance on his life with his wife, Ng Gan Zee as the beneficiary.He stated in his application that he was operated on for tumor of the stomach associated with ulcer. In 1963, Kwong died of cancer of the liver with metastasis. Asian refused to pay on the ground of false information. It was found that prior to his application, Kwong was diagnosed to have peptic ulcers, and that during the operation what was removed from Kwong’s body was actually a portion of the stomach and not tumor.

Issue: WON the contract may be rescinded on the ground of the imperfection in the application form.

Held: NO.Kwong did not have sufficient knowledge as to distinguish between a tumor and a peptic ulcer. His statement therefore was made in good faith. Asian should have made an inquiry as to the illness and operation of Kwong when it appeared on the face of the application that a question appeared to be imperfectly answered. Asian’s failure to inquire constituted a waiver of the imperfection in the answer.

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Insular Life Insurance Corp. vs. Feliciano, 73 Phil 201

Facts:Evaristo Feliciano filed an application with Insular Life upon the solicitation of one of its agents. It appears

that during that time, Evaristo was already suffering from tuberculosis. Such fact appeared during the medical exam, but the examiner and the company’s agent ignored it.

After that, Evaristo was made to sign an application form and thereafter the blank spaces were filled by the medical examiner and the agent making it appear that Evaristo was a fit subject of insurance. (Evaristo could not read and understand English)

When Evaristo died, Insular life refused to pay the proceeds because of concealment.

Issue: WON Insular Life was bound by their agent’s acts.

Held: Yes.The insurance business has grown so vast and lucrative within the past century. Nowadays, even people of

modest means enter into insurance contracts. Agents who solicit contracts are paid large commissions on the policies secured by them. They act as general representatives of insurance companies.

IN the case at bar, the true state of health of the insured was concealed by the agents of the insurer. The insurer’s medical examiner approved the application knowing fully well that the applicant was sick. The situation is one in which of two innocent parties must bear a loss for his reliance upon a third person. In this case, it is the one who drafted and accepted the policy and consummated the contract. It seems reasonable that as between the two of them, the one who employed and gave character to the third person as its agent should be the one to bear the loss. Hence, Insular is liable to the beneficiaries.

Tan vs. CA, GR No. 48049, June 29, 1989

Facts:Tan Lee Siong was issued a policy by Philamlife on Nov. 6, 1973. On Aprl 26, 1975, Tan died of hepatoma. His

beneficiaries then filed a claim with Philamlife for the proceeds of the insurance. Philamlife wrote the beneficiaries in Sep. 1975 denying their claim and rescinding the contract on the ground of misrepresentation. The beneficiaries contend that Philamlife can no longer rescind the contract on the ground of misrepresentation as rescission must allegedly be done “during the lifetime of the insured” within two years and prior to the commencement of the action following the wording of Sec. 48, par. 2.

Issue: WON Philamlife can rescind the contract.

Held: YES.

The phrase “during the lifetime” found in Sec. 48 simply means that the policy is no longer in force after the insured has died. The key phrase in the second paragraph is “for a period of two years”.

The period to consider in a life insurance poiicy is “two years” from the date of issue or of the last reinstatement. So if for example the policy was issued/reinstated on Jan 1, 2000, the insurer can still exercise his right to rescind up to Jan. 1, 2003 or two years from the date of issue/reinstatement, REGARDLESS of whether the insured died before or after Jan. 1, 2003.

Young vs. Midland Textile Ins., 30 Phil 617

The purpose of the present action is to recover the sum of P3,000 upon an insurance policy. The lower court rendered a judgment in favor of the plaintiff and against the defendant for the sum of P2,708.78, and costs. From that judgment the defendant appealed to this court.

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The undisputed facts upon which said action is based are as follows: a

1. The plaintiff conducted a candy and fruit store on the Escolta, in the city of Manila, and occupied a building at ’321 Calle Claveria, as a residence and bodega (storehouse).

2. On the 29th of May, 1912, the defendant, in consideration of the payment of a premium of P60, entered into a contract of insurance with the plaintiff (policy No. 509105) by the terms of which the defendant company, upon certain conditions, promised to pay to the plaintiff the sum of P3,000, in case said residence and bodega and contents should be destroyed by fire. 

3. One of the conditions of said contract of insurance is found in "warranty B" and is as follows: "Warranty B. It is hereby declared and agreed that during the pendency of this policy no hazardous goods be stored or kept for sale, and no hazardous trade or process be carried on, in the building to which this insurance applies, or in any building connected therewith."cralaw virtua1aw library

4. On the 4th or 5th of February, 1913, the plaintiff placed in said residence and bodega three boxes, 18 by 18 by 20 inches measurement, which belonged to him and which were filled with fireworks. 

5. On the 18th day of March, 1913, said residence and bodega and the contents thereof were partially destroyed.

6. Said fireworks had been given to the plaintiff by the former owner of the Luneta Candy Store; that the plaintiff intended to use the same in the celebration of the Chinese new year; that the authorities of the city of Manila had prohibited the use of fireworks on said occasion, and that the plaintiff then placed the same in said bodega, where they remained from the 4th or 5th of February, 1913, until after the fire of the 18th of March, 1913. 

7. Both of the parties agree that said fireworks come within the phrase "hazardous goods," mentioned in said "warranty B" of the policy. 

8. That said fireworks were found in a part of the building not destroyed by the fire; that they in no way contributed to the fire, or to the loss occasioned thereby.

The only question presented by the parties is whether or not the placing of said fireworks in the building insured, under the conditions above enumerated, they being "hazardous goods," is a violation of the terms of the contract of insurance and especially of "warranty B." "Warranty B" provides that "no hazardous goods be stored" in the building insured. It is admitted by both parties that the fireworks are "hazardous goods." The defendant alleged that they were "stored." The plaintiff contends that under all the facts and circumstances of the case, they were not "stored" in said building, and that the placing of them in the building was not a violation of the terms of the contract. Both the plaintiff and defendant agree that if they were "hazardous goods," and if they were "stored," then the act of the plaintiff was a violation of the terms of the contract of insurance and the defendant was justified in repudiating its liability thereunder. 

This leads us to a consideration of the meaning of the word "stored" as used in said "warranty B." While the word "stored" has been variously defined by authors, as well as by courts, we have found no case exactly analogous to the present. The plaintiff says that he placed said fire- works in the bodega after he had been notified that he could not use them on the Chinese new year, in order that he might later send them to a friend in the provinces. Whether a particular article is "stored" or not must, in some degree depend upon the intention of the parties. The interpretation of the word "stored" is quite difficult, in view of the many decisions upon the various conditions presented. Nearly all of the cases cited by the lower court are cases where the article was being put to some reasonable and actual use, which might easily have been permitted by the terms of the policy, and within the intention of the parties and excepted from the operation of the warranty, like the present. Said decisions are upon cases like: chanrob1es virtual 1aw library

1. Where merchants have had or kept the "hazardous" articles in small quantities, and for actual daily use, for sale, .such as gasoline, gunpowder, etc.;

2. Where such articles have been brought on the premises for actual use thereon, and in small quantities, such as oil, paints, etc; and

3. Where such articles or goods were used for lighting purposes, and in small quantities. 

The author of the Century Dictionary defines the word "store" to be a deposit in a store or warehouse for preservation or safe keeping; to put away for future use, especially for future consumption; to place in a warehouse or other place of deposit for safe keeping. See also the definitions given by the Standard Dictionary, to the same effect.  

Said definitions, of course, do not include a deposit in a store, in small quantities, for daily use. "Daily use" precludes the idea of a deposit for preservation or safe keeping, as well as a deposit for future consumption, or safe keeping. 

In the present case no claim is made that the "hazardous goods" were placed in the bodega for present or daily use. It is admitted that they were placed in the bodega "for future use," or for future consumption, or for safe keeping. The plaintiff makes no claim that he deposited them there with any other idea than "for future use" — for future consumption. It seems clear to us that the "hazardous goods" in question were "stored" in the bodega, as that word is generally defined. That being true, suppose the defendant had made an examination of the premises, even in the absence of a fire, and had found the "hazardous goods" there, under the conditions above described, would it not have been justified, then and there, in declaring the policy null and of no effect by reason of a violation of its terms on the part of the plaintiff? If it might, then may it not repudiate its liability, even after the fire? If the "warranty" is a term of the contract, will not its violation cause a breach and justify noncompliance or a repudiation?

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Contracts of insurance are contracts of indemnity upon the terms and conditions specified in the policy. The parties have a right to impose such reasonable conditions at the time of the making of the contract as they may deem wise and necessary. The rate of premium is measured by the character of the risk assumed. The insurance company, for a comparatively small consideration, undertakes to guarantee the insured against loss or damage, upon the terms and conditions agreed upon, and upon no other, and when called upon to pay, in case of loss, the insurer, therefore, may justly insist upon a fulfillment of these terms. If the insured cannot bring himself within the conditions of the policy, he is not entitled to recover for the loss. The terms of the policy constitute the measure of the insurer’s liability, and in order to recover the insured must show himself within those terms; and if it appears that the contract has been terminated by a violation, on the part of the insured, of its conditions, then there can be no right of recovery. The compliance of the insured with the terms of the contract is a condition precedent to the right of recovery. If the insured has violated or failed to perform the conditions of the contract, and such a violation or want of performance has not been waived by the insurer, then the insured cannot recover. Courts are not permitted to make contracts for the parties. The function and duty of the courts consist simply in enforcing and carrying out the contracts actually made. While it is true, as a general rule, that contracts of insurance are construed most favorably to the insured, yet contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties themselves have used. If such terms are clear and unambiguous they must be taken and understood in their plain, ordinary and popular sense. (Imperial Fire Ins. Co. v. County of Coos, 151 U. S., 452; Kyte v. Commercial Union Assurance Co., 149 Mass., 116, 122.) The conditions of contracts of insurance, when plainly expressed in a policy, are binding upon the parties and should be enforced by the courts, if the evidence brings the case clearly within their meaning and intent. It tends to bring the law itself into disrepute when, by astute and subtle distinctions, a plain case is attempted to be taken without the operation of a clear, reasonable, and material obligation of the contract. (Mack v. Rochester German Ins. Co., 106 N. Y., 560, 564.) 

The appellant argues, however, that in view of the fact that the "storing" of the fireworks on the premises of the insured did not contribute in any way to the damage occasioned by the fire, he should be permitted to recover — that the "storing" of the "hazardous goods" in no way caused injury to the defendant company. That argument, however, is beside the question, if the "storing" was a violation of the terms of the contract. The violation of the terms of the contract, by virtue of the provisions of the policy itself, terminated, at the election of either party, the contractual relations. (Kyte v. Commercial Union Assurance Co., 149 Mass., 116, 122.) The plaintiff paid a premium based upon the risk at the time the policy was issued. Certainly it cannot be denied that the placing of the firecrackers in the building insured increased the risk. The plaintiff had not paid a premium based upon the increased risk, neither had the defendant issued a policy upon the theory of a different risk. The plaintiff was enjoying, if his contention may be allowed, the benefits of an insurance policy upon one risk, whereas, as a matter of fact, it was issued upon an entirely different risk. The defendant had neither been paid nor had issued a policy to cover the increased risk. An increase of risk which is substantial and which is continued for a considerable period of time, is a direct and certain injury to the insurer, and changes the basis upon which the contract of insurance rests. (Kyte v. Commercial Union Assurance Co. (supra); Frost’s Detroit Lumber Works v. Millers’ Mutual Ins. Co., 37 Minn., 300, 302; Moore v. Phoenix Ins. Co., 62 N. H., 240; Ferree v. Oxford Fire & Life Ins. Co., 67 Pa. State, 373.) 

Therefore and for the foregoing reasons, the judgment of the lower court is hereby revoked and the defendant is hereby relieved from any responsibility under said complaint, and, without any finding as to costs, it is so ordered.

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