that an ordinary soliciting agent has power to waive conditions.32 However, it has been held that courts will find a waiver upon slight evidence, especially when the equity of the claim is in favor of the insured. The waiver itself may be shown by proof of an express waiver, or by proof of such facts and circumstances from which it may be inferred.34 § 2300. Waiver by local agent. It is equally well settled that a local agent of an insurance company may waive a condition in the policy as to the payment of the premiums. But it must be made to appear by proper and sufficient proof that the authority of the local agent is such as to clothe him with power to make such waiver. This authority and power may be shown in different ways: (1) Where the proof shows that such local agent has the general authority to solicit applications, make contracts for insurance and receive the first premiums, it is sufficient evidence of his power to bind his principal by any acts or contracts within the general scope of such apparent authority, even if such are in actual excess of his authority;35 (2) where the proof shows that a local agent is authorized by the company, or the home office to deliver policies and receive premiums therefor with454, 21 N. W. 774; Barre v. Council Bluffs Ins. Co., 76 Iowa 609, 41 N. W. 373. 35 Wheaton v. North British &c. Ins. Co., 76 Cal. 415, 18 Pac. 758, 9 Am. St. 216, note; Farnum V. 32 Barre v. Council Bluffs Ins. Co., Phoenix Ins. Co., 83 Cal. 246, 23 Pac. 76 Iowa 609, 41 N. W. 373. 33 Bouton v. American &c. Ins. Co., 25 Conn. 542; Pulford v. Fire Dept. &c., 31 Mich. 458; Westchester &c. Ins. Co. v. Earle, 33 Mich. 143; Lyon v. Travelers' Ins. Co., 55 Mich. 141, 20 N. W. 829, 54 Am. R. 354; Bonenfant v. American &c. Ins. Co., 76 Mich. 653, 43 N. W. 682; Germania &c. Ins. Co. v. Klewer, 129 Ill. 599, 22 N. E. 489. 34 Goit v. National &c. Ins. Co., 25 Barb. (N. Y.) 189; Pino v. Merchants' &c. Ins. Co., 19 La. Ann. 214, 92 Am. Dec. 529; for full notes and collection of authorities of waiver and power of agents to waive, see, Wheaton v. North British Ins. Co., 76 Cal. 415, 9 Am. St. 217, 229; Farnum v. Phoenix Ins. Co., 83 Cal. 246, 17 Am. St. 233, 247. 869, 17 Am. St. 233; German Ins. Co. v. Orr, 56 Ill. App. 637; National &c. Ins. Co. v. Barnes, 41 Kans. 161, 21 Pac. 165; Western Ins. Co. v. Hogue, 41 Kans. 524, 21 Pac. 641; American &c. Ins. Co. v. McLanathan, 11 Kans. 533; Milwaukee &c. Ins. Co. v. Schallman, 188 Ill. 213, 59 N. E. 12; Mississippi Valley L. Ins. Co. v. Neyland, 9 Bush (Ky.) 436; Bonenfant v. American &c. Ins. Co., 76 Mich. 653, 43 N. W. 682; Rivara v. Queen's Ins. Co., 62 Miss. 721; Continental Ins. Co. v. Kasey, 25 Gratt. (Va.) 271; Hankins v. Rockford Ins. Co., 70 Wis. 4, 35 N. W. 34; Renier v. Dwelling House Ins. Co., 74 Wis. 89, 42 N. W. 208; Union &c. Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 234. in a certain territory, this is held sufficient to constitute him a general agent and empower him to waive the cash payment of premiums ;36 (3) where the evidence shows that the policy is not valid until counter-signed by the local agent, thus making it necessary for the insured to deal solely with such agent, this is held sufficient to bind the company to any person insured by such agent in the absence of notice of any limitation of his authority; and this is true even where the agent does exceed his authority;37 (4) where it is made to appear that the local agent was held responsible for the collection of all premiums on policies issued by him, and that it was the custom of the company to permit its agents to give credit on the premiums, it was held sufficient proof of authority of the agent to waive payment, as his liability was substituted by the company for the condition of prepayment;38 (5) the presumption of law is that an insurance agent has power co-extensive with the business entrusted to him, and that such power cannot be limited by instructions not communicated to the person with whom he deals.39 § 2301. Warranties-Proof of performance.-"The rule requiring the performance of warranties to be averred and proved was engrafted into the law of insurance before it was customary for underwriters to require from the insured the full and detailed applications which are a feature of so much prominence in the modern contract, especially in the contract of life insurance. The policy is the evidence delivered to the insured of the contract of the insurer, and ordinarily, of itself, constitutes complete evidence of the contract, while the application, although it may modify the contract, is in the nature of defensive evidence intrusted to the insurer for his protection. As a matter of pleading, if the policy is set forth, and compliance with all the conditions precedent recited in it is averred, there is no necessity for re 36 Farnum v. Phoenix Ins. Co., 83 Cal. 246, 23 Pac. 869, 17 Am. St. 233; Southern L. Ins. Co. v. Booker, 9 Heisk. (Tenn.) 606, 24 Am. R. 344. "Farnum v. Phoenix Ins. Co., 83 Cal. 246, 17 Am. St. 233, 23 Pac. 869; Viele v. Germania Ins. Co., 26 Iowa 58; Westchester F. Ins. Co. v. Earle, 33 Mich. 151; Whited v. Germania Ins. Co., 76 N. Y. 415, 32 Am. R. 330; Murphy v. Southern L. Ins. Co., 3 Baxt. (Tenn.) 440. 38 Farnum v. Phoenix Ins. Co., 83 Cal. 246, 23 Pac. 869; Elkins v. Susquehanna &c. Ins. Co., 113 Pa. St. 386, 6 Atl. 224; Lebanon &c. Ins. Co. v. Hoover, 118 Pa. St. 591, 599, 8 Atl. 163; Susquehanna &c. Ins. Co. v. Elkins, 124 Pa. St. 484, 17 Atl. 24, 10 Am. St. 608. 39 Farnum v. Phoenix Ins. Co., 83 Cal. 246, 23 Pac. 869, 17 Am. St. 233; Baubie v. Etna Ins. Co., 2 Dill. (U. S.) 156. 41 ferring to the application, and the complaint or declaration is sufficient upon its face. Nothing is required to be proved which does not go to support some necessary allegation in the complaint, and there seems to be no good reason which requires a plaintiff to assume the burden of proving affirmatively the truth of statements in an application not challenged by the defendant." But the more recent decisions, and certainly the great weight of authority, adhere to the rule that the burden of proof as to all such matters is upon the company, for the reason that it would impose upon the insured an excessive burden to prove compliance with the conditions and stipulations in a modern insurance policy. In commenting on this rule the Supreme Court of the United States say: "The number of the questions now asked of the assured in every application for a policy, and the variety of the subjects, and length of time which they cover, are such, that it may be safely said that no sane man would ever take a policy if proof to the satisfaction of a jury of the truth of every answer were made known to him to be an indispensable prerequisite to payment of the sum secured, that proof to be made only after he was dead, and could render no assistance in furnishing it. On the other hand, it is no hardship, that if the insurer knows or believes any of these statements to be false, he shall furnish the evidence on which that knowledge or belief rests." 9942 40 American Credit &c. Co. V. necticut &c. Asso., 44 La. Ann. 1017, Wood, 73 Fed. 81. "Piedmont &c. Ins. Co. v. Ewing, 92 U. S. 377; Swick v. Home L. Ins. Co., 2 Dill. (U. S.) 160; Holabird v. Atlantic &c. Ins. Co., 2 Dill. (U. S.) 166; Supreme Lodge &c. v. Wollschlager, 22 Colo. 213, 44 Pac. 598; Continental L. Ins. Co. v. Rogers, 119 Ill. 474, 10 N. E. 242, 59 Am. R. 810, note; Northwestern &c. Ins. Co. v. Hazelett, 105 Ind. 212, 4 N. E. 582, 55 Am. R. 192; Baker v. German F. Ins. Co., 124 Ind. 490, 24 N. E. 1041; Kennedy v. New York L. Ins. Co., 10 La. Ann. 809; Kathman v. General Ins. Co., 12 La. Ann. 35; Flynn v. Merchants' &c. Ins. Co., 17 La. Ann. 135; Theodore v. New Orleans &c. Asso., 28 La. Ann. 917; Boisblanc v. Louisiana &c. Ins. Co., 34 La. Ann. 1167; Benjamin v. Con 11 So. 628, 32 Am. St. 362; Pino v. § 2302. Performance of warranties-Burden of proof.-The rule as stated by some courts is that the burden is on the insured in an action on the policy to show compliance with a warranty, for the reason that the warranty is regarded as a condition precedent to the contract of insurance.43 The rule as stated by the Massachusetts Supreme Court is as follows: "An express warranty in a policy of insurance is a condition precedent, the burden of proving performance of which rests upon the assured. The nature and form of the warranty may effect the amount of evidence to be required of the plaintiff in the first instance; but whether the terms used are affirmative or negative, the warranty is equally a condition precedent the performance of which must be proved by the plaintiff in order to maintain an action on the policy." But it was held otherwise where the warranty was not absolute; and a distinction has been made between warranties contained in the application and those stated in the policy, and it was held that the burden was on the insured to show compliance with warranties contained in the policy and that the burden was on the insurer to show non-compliance with warranties in the application." It has been conceded that this rule probably does not apply to what are called promissory warranties; such as where the party warrants 92 U. S. 377; Grangers' &c. Ins. Co. v. Brown, 57 Miss. 308, 34 Am. R. 446, note. 43 Williamson v. New Orleans Ins. Co., (Ala.) 4 So. 36; Gilmore v. Lycoming F. Ins. Co., 55 Cal. 123; Miller v. Mutual &c. Ins. Co., 31 Iowa 216, 7 Am. R. 122; Wilkins v. Germania F. Ins. Co., 57 Iowa 529, 10 N. W. 916; Campbell v. New England &c. Ins. Co., 98 Mass. 381, 389; McLoon v. Com'l &c. Ins. Co., 100 Mass. 472, 97 Am. Dec. 116; Whiton v. Albany &c. Ins. Co., 109 Mass. 24; Price v. Phoenix &c. Ins. Co., 17 Minn. 497, 10 Am. R. 166; Healey v. Imperial F. Ins. Co., 5 Nev. 268; Bobbitt v. Liverpool &c. Ins. Co., 66 N. Car. 70, 8 Am. R. 494; Wilson v. Hampden F. Ins. Co., 4 R. I. 159; Sweeney v. Metropolitan L. Ins. Co., 19 R. I. 171, 61 Am. St. 751; Craig v. United States Ins. 46 Co., Pet. (U. S.) 410; Bidwell v. "McLoon v. Commercial &c. Ins. Co., 100 Mass. 472, 97 Am. Dec. 116; American Credit &c. Co. v. Wood, 73 Fed. (U. S.) 81. 45 O'Connell v. Supreme Conclave &c., 102 Ga. 143, 28 S. E. 282, 66 Am. St. 159; Clapp v. Massachusetts &c. Asso., 146 Mass. 519, 16 N. E. 433. 46 American Credit &c. Co. V. Wood, 73 Fed. (U. S.) 81; Swick v. Home L. Ins. Co., 2 Dill. (U. S.) 160; Geib v. International Ins. Co., 1 Dill. (U. S.) 443; Murray v. New York L. Ins. Co., 85 N. Y. 236; Dwight v. Germania L. Ins. Co., 103 N. Y. 341, 8 N. E. 654, 57 Am. R. 729. that he will not thereafter do certain things, or that he will refrain from doing some things stipulated in the policy as to the future.** § 2303. Policy as evidence.-As a general rule the policy when delivered constitutes the complete contract of insurance, and when the action is based on such written policy the policy itself must be introduced in evidence and no other evidence is required to prove or sustain the contract of insurance. In such an action its execution need not be proved unless denied under oath. And the introduction of the policy in evidence on the trial of the case raises a presumption that its terms have been complied with; but this presumption is subject to rebuttal. The policy is subject to the rule that it cannot be varied by parol proof, but ambiguities or trade terms may be explained by parol. For this purpose the general usage of trade at the place where the insurance is effected may be shown for the purpose of explaining such ambiguities; but proof can only be made of such usage or custom as is presumed to have been known and referred to by the parties as the basis of the contract. The principle stated in a recent case is that in the absence of a verified plea denying the execution of the policy, its introduction in evidence is sufficient proof.50 § 2304. Application as evidence.-In most classes of insurance the application is no part of the contract of insurance. Separate from the application the policy is usually the whole of the obligation assumed by the defendant. Hence, the general rule that in action on the policy the application need not be alleged or proved. This is the 47 "Swick v. Home Ins. Co., 2 Dill. (U. S.) 160; O'Niel v. Buffalo &c. Ins. Co., 3 N. Y. 122; Berliner v. Travelers' Ins. Co., 121 Cal. 451, 53 Pac. 922. Ins. Co., 131 Mass. 239; Mooney v. 48 Stepp v. National &c. Asso., 37 256, 59 N. E. 806; Coit v. Com❜l Ins. S. Car. 417, 16 S. E. 134. 49 Fulton Ins. Co. v. Milner, 23 Ala. 420; Eager v. Atlas Ins. Co., 14 Pick. (Mass.) 141; Macy v. Whaling Ins. Co., 9 Metc. (Mass.) 354; Parsons v. Manufacturers' Ins. Co., 16 Gray (Mass.) 463; Howard v. Great Western Ins. Co., 109 Mass. 384; Thwing v. Great Western Ins. Co., 111 Mass. 93; Taber v. China &c. Co., 7 Johns. (N. Y.) 385, 5 Am. Dec. 282; Astor v. Union Ins. Co., 7 Cow. (N. Y.) 202; Wadsworth v. Pacific Ins. Co., 4 Wend. (N. Y.) 33; Allen v.. Merchants' Bank, 15 Wend. (N. Y.) 482; May Insurance, §§ 173, 179, 180; 1 Joyce Insurance, §§ 256, 259. 50 Firemen's Ins. Co. v. Barnsch, 161 III. 629, 4 N. E. 285. |