ceased was a passenger, within the meaning of the policy at the time of his death. There was, therefore, a judgment for double the principal sum insured, with interest from the date of the refusal of the company to pay. The application upon which the policy issued was made upon a printed form. All the written parts, except the signature, were filled in by the local agent of the company at Shelbyville, Tenn. The insured, Robert P. Frierson, was a lawyer living at Shelbyville.

The facts found by the court below in relation to the application for and issuance of this policy, as found by the court below, are as follows:

“(1) Robert P. Frierson, the insured, was a lawyer. On September 29, 1897, he applied to a soliciting agent of defendant at Shelbyville, Tennessee, for a policy of accident insurance, stating that he intended going in a few days to Seattle, Washington, where he would remain about six months, preparing and arranging for a speculative and prospecting trip into Alaska or the Klondike, prospecting for gold. He inquired of the agent whether defendant company would issue a policy to cover such a trip as he expected to take at the end of about six months. The agent, who had no authority to issue policies, replied that he did not know, but suggested that the way to ascertain was to send to the defendant company two applications, one for a six-months policy and the other for a twelve-months policy, and that he (the agent) would accompany them by a letter fully explaining the facts as to the proposed trip, and that the company could then determine for itself whether it would take the proposed risk, and, if not, could issue the policy for six months to cover the time assured would be in Seattle. Insured assented to this plan. The two applications were accordingly prepared and inclosed by the agent in a letter to Myron L. Long, manager of defendant company, at Cincinnati, to whom he forwarded all applications taken by him, fully explaining all the facts with respect to the stay in Seattle, and the proposed speculative and prospecting trip to Alaska or the Klondike, and that a policy for twelve months was wanted only in the event it would cover the risk of the latter trip.

"(2) Upon receipt of this letter, and with a full knowledge of the facts that, unless the insurance would cover the risk of a speculative or pros pecting trip to the Klondike, a policy for only six months was desired, the manager of defendant company, at Cincinnati, Ohio, dating it September 29, 1897, mailed the policy to the agent at Shelbyville, and about October 13, 1897, forwarded the application to the home office of defendant company at Hartford, Connecticut. Upon receipt of the policy the agent mailed it to the insured, who had then gone to Seattle, and collected the premium of twenty-five dollars ($25.00), which had been left by the insured at Shelbyville for that purpose.

“(3) On October 9, 1897, the manager at Cincinnati wrote the agent at Shelbyville, as follows: 'I regret the ordering up of the policy of Robert P. Frierson. We have written him a policy for $5,000, dated September 29th, for five months. You can advise him that policy is in full force and effect, and will be mailed you immediately upon receipt of return of the other policy. I tried my best to favor you in this matter, and regret my inability to do so.' Insured was then in Seattle, and the agent did not in any way communicate with him, the beneficiary, or any one connected with either of them, the fact that the policy had been ordered up. Subsequently, and in due course of business, the agent remitted the full premium for twelve months to the manager at Cincinnati, who received it without objection, and remitted it to the chief office at Hartford, where it was received and retained. No further effort was made to cancel the policy."

In respect to the questions as to whether the assured was engaged in "adventures into wild and uninhabited or uncivilized regions," or was a "passenger in any passenger conveyance using steam, etc.," at the time of his injury, there was no specific finding of fact. The facts bearing upon both these questions, as found by the court below, constitute the sixth finding of fact, and is as follows: "Insured remained in Seattle until May 31, 1898, preparing for the proposed trip. He and a number of other young men organized a party for the purpose of ascending the Kuskokwim river in Alaska,

and prospecting the interior of Alaska or the Klondike for gold. They arranged with the Columbia Navigation Company, a common carrier, engaged in the carriage of passengers by water from Seattle to Alaska, for transportation. The relation of the party to the company is found to be as stated by Richard Chilcott, president of that company, and R. P. Camdon, stockholder and officer in the company, which the court here restates and adopts in the language of the witness. Chilcott says: 'Q. What compensation was the Columbia Navigation Company to receive for transporting the party from Seattle to Kuskokwim Bay and thence up the Kuskokwim river? A. It was to receive one-half of what the party realized in two years.' Crossexamination: Q. Who furnished the general stores for this party? A. I did, or the Columbia Navigation Company. When I use the personal pronoun, I am merely speaking of my company. Q. The twelve or more men you sent up there were to operate the boat and do all the other work? A. Yes. Q. They were crew and everything else? A. Yes.' Recross-examination: Q. Captain, were the members of the Jessie party at expense themselves in making this expedition? A. They contributed one thousand dollars each towards their supplies, but they paid no passage money. They were to pay from the proceeds of the expedition. Q. You testified, I believe, that the proceeds were to be divided half and half between your company and the individuals? A. Yes, sir. Q. Did any person on the Jessie pay fare? A. Yes, a man named Anrud. Q. Was he the only passenger from Seattle? A. Yes, with the exception of the party named. Q. This party also manned the boat? A. No. Q. You mean she was manned by others outside of the party? A. No, they were inside the party, but they were men on pay. Q. State, if you can, the names of the party on pay who manned the boat. A. Kinsler, Hare, Knudsen, and the Jap cook. Q. Who furnished the steamer Jessie for the purpose of transporting the party up the Kuskokwim river? A. The Columbia Navigation Company. Q. State fully, if you know, what instructions were given to this party with respect to communicating with the Columbia Navigation Company after they should reach Alaska. A. Each member was given a pass over all the boats of the company, and, in case any of them at any time crossed over to the Yukon river, they had the right to take the river boats up or down, and it was through these river boats that they were expected to communicate. Q. What compensation was the Columbia Navigation Company to receive for transporting the party from Seattle to Kuskokwim Bay, and thence up the Kuskokwim river? A. The Columbia Navigation Company was to get half the profits of the expedition. Q. State whether the members of this party were all, or most of them, and particularly if Robert P. Frierson was a stockholder in the Columbia Navigation Company. A. Nearly all of the party were stockholders of the Columbia Navigation Company.' Cross-examination: 'Q. You have stated that the Columbia Navigation Company was to share profits with this party. Did this party charter the steamer Jessie, giving as a price one-half of the profits of the expedition? A. No, sir; there was nothing in the way of a charter. Q. Did these fourteen names you gave us constitute the entire party which was to go on the Jessie? A. Yes, sir, with the exception that they knew that they would have to put on a pilot. Q. Then, if I understand you, the party of fourteen which left Seattle were to go up Kuskokwim river on the steamer Jessie, and the consideration moving to the navigation company was half of the profits of the expedition? A. Yes, sir; half to the navigation company and half to them. Q. At what time was the Columbia Navigation Company entitled to call for their half of the profits of the expedition? A. At any time. Q. Within the two years or later? A. Well, there was no agreement made as to that, but the understanding was they were to have our half interest in any profits. Q. That is to say, the Columbia Navigation Company assisted this party of fourteen to ascend the river a thousand miles or more to look after gold, and they were to give the Columbia Navigation Company one-half the gold which they found in consideration of the supplying the boat and provisions for the period of two years, and the other half of the gold found was to be divided equally between the party? A. That is right so far as it applies to the gold; but the party expected to find a town site, and, of course, they would simply be

deeded their one-half interest.' For the purpose of this expedition the company built a river steamer known as the Jessie. She was stocked with provisions sufficient to last two years, and was to remain with the party, and be used as the base of supplies while they were prospecting. The Jessie and the party who were to ascend the Kuskokwim river were transported on the Lackme, an ocean steamer belonging to the Columbia Navigation Company, from Seattle to a point near Kuskokwim Bay. On June 27 or 28, 1898, the Jessie was launched off Kuskokwim Bay, and started on her journey, manned by the crew, who were in the pay of the company; that is, the Columbia Navigation Company. In addition to assured and his party, whose passage was to be paid for by a share in the profits of the expedition, she carried one passenger, who paid a regular fare, and another, who paid the fare for himself and wife and child by his services as guide and pilot. The Kuskokwim river had not been previously navigated by steamboats. The region traversed by it is sparsely inhabited by Indians of a low degree of civilization, together with a few white missionaries at one point about two miles from its mouth, and traders."

Further facts essential to the determination of the questions arising upon the errors assigned will appear in the opinion.

W. B. Stephens and W. D. Carswell (Lewis Sperry, of counsel), for plaintiff in error.

hepherd & Frierson, for defendant in error.

Before LURTON and DAY, Circuit Judges, and WANTY, District Judge.

LURTON, Circuit Judge, after making the foregoing statement of the case, delivered the opinion of the court.

For the company it is said: (1) That the consideration upon which the policy issued was the premium paid and "the warranties made in the application." (2) That the statement in the application that "I have not in contemplation any special journey or hazardous undertaking, except as herein stated," constituted a warranty, the breach of which was not waived as a consequence of the facts communicated by the assured to either the soliciting agent at Shelbyville or the company's "manager" at Cincinnati. (3) That the conceded fact that the insured lost his life while upon a "special journey” and “hazardous undertaking," which he had in contemplation when he made his application, constitutes a breach of the warranty, and defeats the policy. Among the conditions made a part of the policy is this:

"No agent has authority to waive any condition of this policy; and no waiver will be recognized unless in writing, signed by either the president, vice president, secretary, or assistant secretary of the company."

It may be conceded that a contract of insurance in writing, if in unambiguous terms, must speak for itself, and cannot be altered or contradicted by parol evidence, in the absence of fraud or mistake. This ancient rule has been lately applied in respect of a fire insurance policy which was held void in consequence of the existence of other insurance at inception of contract, because consent to same was not indorsed thereon, although the fact of its existence was communicated by the assured to the company's agent before the policy was delivered. Northern Assur. Co. v. Grand View Bldg. Ass'n, 22 Sup. Ct. 133, 46 L. Ed. —. In that case the policy provided that it should be "void if the assured now has or shall hereafter make or procure any other contract of insurance," etc., unless otherwise provided by agreement

"indorsed hereon or added hereto." The policy also provided that no officer or agent of the company "shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added. hereto, and as to such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or remission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached." We have underscored certain parts of the policy there involved for the purpose of calling attention to the specific character of the agreement sought in that case to be avoided by evidence tending to show knowledge of other existing insurance by the agent who issued the policy. If the defendant in error had rested her case upon an estoppel arising from the mere fact that the soliciting agent who received and forwarded these applications knew the truth as to the purposes of the applicant, the case, in that aspect of it, would, perhaps, be controlled by the case last cited. But we think the facts of the case are such as to distinguish it from Northern Assur. Co. v. Grand View Bldg. Ass'n. The statement relied upon as constituting an untruthful representation of the purposes of the applicant indicates upon its face that it was accompanied by some other statement upon the same subject. It reads thus: "I have not in contemplation any special journey or undertaking, except as herein stated." To what do the words "as herein stated" refer? No journey or undertaking was "herein stated" unless the statement which the parties agreed should accompany Frierson's applications is to be regarded as constituting a part of the application upon which the policy issued. The facts found by the court below were that two applications were made at the same time, one for a six-months policy and the other for an annual policy. The latter was desired only in case the policy would cover a trip such as he expected to make. The soliciting agent agreed to accompany these applications with "a letter fully explaining the facts as to the proposed trip." This the agent did. Upon this accompanying part of the application the general agent acted. Clearly, this statement accompanying the applications must be regarded, as both parties then intended, as a part of the application itself. The letter and the formal application should be regarded as together constituting one document. Greenl. Ev. § 283; Lee v. Dick, 10 Pet. 482, 493, 9 L. Ed. 503; Bell v. Bruen, I How. 169, 183, 11 L. Ed. 89.

The question is not, therefore, one of waiver; for, if the letter of the soliciting agent constituted a part of the written application for the policy upon which the policy was issued, there has been no breach of the warranty to be waived, the application truly stating the purpose of the applicant to take the very journey in course of which he met his death. But if we assume that the communication which accompanied the two applications is not to be regarded as a part of the application upon which the policy in suit issued, it is, nevertheless, operative as notice to all of the agents and officers of the company who saw it or learned of it that the applicant did contemplate the journey and enterprise in course of which he met his death, and that he had not applied for two policies of insurance, but for the annual policy if the company should consent to issue it in view of his purposes, and for

the shorter one only if it declined the risk of his contemplated journey. If the Cincinnati agent who received this communication and issued the annual policy, with all the light which that document gave him, had been himself the insurer, there could be no possible doubt or his authority to bind himself, and to waive any and every condition of the policy made for his benefit. So, too, it is not to be doubted that an incorporated insurer may waive any condition intended for its protection, even though it has prescribed that such waiver must be in writing; for it may as well waive such a condition as any other. This power of an insurance company to waive any provision or condition solely for its own benefit was affirmed in Insurance Co. v. Wolff, 95 U. S. 326, 24 L. Ed. 387, and Insurance Co. v. Norton, 96 U. S. 234, 24 L. Ed. 689. However much those decisions may be regarded as doubted by Northern Assur. Co. v. Grand View Bldg. Ass'n, the doubt does not extend to the question of the power of an insurance company to waive any provision or condition of the policy intended for its protection. "As to this proposition," said Justice Shiras, in the case last cited, "there was, and could have been, no disagreement among the judges, but the difference arose over the sufficiency of the evidence to show the waiver." The question we must, then, meet in this aspect of the case is one of the evidence relied upon to establish that the company issued this policy with knowledge that the statement in the formal application relied upon as a warranty had been inserted by its own agent under an agreement with the applicant that he would forward therewith a full statement as to the journey and enterprise which the applicant had in view. For the purposes of this case we shall assume that the manager at Cincinnati, who received the two applications and the soliciting agent's accompanying communication, did not and could not waive the condition of the policy in respect to any breach resulting from any misrepresentation in the application. The court found that on October 2, 1897, this managing agent issued the policy now in suit, dating it September 27, 1897. On October 9, 1897, he wrote this Shelbyville agent, to whom the policy had been sent, and by whom it had been delivered to the assured, as follows:

"I regret the ordering up of the policy of Robert P. Frierson. We have written him a policy for $5.000, dated September 29th, for five months. You can advise him that that policy is in full force and effect, and will be mailed you immediately upon receipt or return of the other policy. I tried my best to favor you in this matter, and regret my inability to do so."

This act was the act of the company, and the plain inference, in the absence of explanation, is that the company had disapproved the issuance of this policy in view of the knowledge communicated to its home office through the letter of the local agent which had accompanied the application. It is true that at another point in the finding of facts it is stated that this manager had, “about October 13, 1897," forwarded the application to the home office of defendant company at Hartford, Connecticut. The date, "about October 13th," is probably a mistake, as every inference is that the home office received the application and accompanying communication prior to the direction to cancel the policy, which undoubtedly emanated from the "home office." The company could have made plain just when the home office received