THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A TREATISE ON THE LAW OF INSURANCE OF EVERY KIND By JOSEPH A. JOYCE Of the New York, California, and Connecticut Bars Second Edition In Five Volumes Vol. I THE LAWYERS CO-OPERATIVE PUBLISHING CO. ROCHESTER, N. Y. 1917 T Copyright 1897 by Joseph A. Joyce. Copyrisht 1917 by Joseph A. Joych. \ i To My Wife M. E. J. THIS TREATISE WAS DEDICATED IN THE FIRST EDITION "AS A TRIBUTE TO HER CONSTANT ENCOURAGEMENT" AND THIS SECOND EDITION IS REDEDICATED TO HER AS A PERPETUAL TRIBUTE PREFACE TO SECOND EDITION. In the following volnmes tlie author has adhered to the plan adopted in the first edition as stated in the preface thereto, which also appears herein, although it may be restated here that the writer has not treated the several kinds of insurance separately, but, on the contrary, he has grouped decisions together with refer- ence to the grounds on which the authorities have been based; where this has not been possible owing to some technical doctrine peculiar to a particular kind of insurance, as in case of abandon- ment and constructive total loss in marine insurance and some other instances, the subject has been treated separately under its proper heading. In other w^ords, the author has endeavored to make clear the unity of insurance law, which unity cannot be ignored in any authori- tative treatise on insurance for its recognition is necessary to any thorough understanding of this great subject or of any kind or form of true insurance. That this is realized by the courts is evi- denced b}' numerous learned and exhaustive opinions wherein the discussion is not limited to that of the particular kind of' insurance involved, but recourse is had to authorities covering other kinds of insurance in w^hich the same or like principles have controlled. And the writer has believed and still believes that it were futile to attempt to solve a question of insurance law without recourse to principles, and necessarily a recourse to principles means a recog- nition of the unity of insurance law. Therefore it has been the intention in this edition, as in the first, to bring out as clearly as possible and apply the underlying principles running through and governing this entire subject, to present whatever distinctions exist between the various kinds or forms of insurance, to follow up to a logical conclusion, to show generally and particularly this applica- tion of principles and these distinctions, to harmonize conflicting decisions as far as possible, and to formulate rules whenever it can be done. iii iv PREFACE The author has given the last five years and more of ardvious exdusive application to the writing of this second edition, exam- ining personally the adjudications since the publication of the first edition, and has added over one thousand new sections and also new material to nearly all the old sections, and he believes no point of value has been overlooked. Various new forms or kinds of insurance concerning which there were few if any decisions when the first edition was issued have been fully treated so far as there have been authorities covering the same. It has also been the writer's purpose to present as exhaustively as the decisions or rulings of courts and other authorities permit, all insurance questions involving war risks, including arrests, re- straints, capture, seizure, contraband of war, etc., prize law in so far as it has bearing upon questions involved, a consideration of the British Proclamations or Orders in Council, etc., etc. An appendix has been added containing certain matters which have been deemed of special importance to the profession in con- nection with the subjects of war risks in insurance; average; and marine insurance. In this, as in the former edition, every effort has been made to bring this treatise up to that standard which the profession requires 'and which is necessitated by the technical character of the subject, and it is sincerely hoped that the profession will find that it meets its approval and use, and that the work will accomplish something towards bringing about some degree of certainty or uniformity in the law in many instances where it is now wanting. It is believed that in this edition, as in the first, full credit has been given to all works and authorities consulted. The author also acknowledges with great pleasure the many courtesies extended to him in '"The Law Library in Brooklyn," County Court House, Brooklyn, ]^ew York, by the librarian, Mr. Otto Wetzel; the assistant librarians, Mr. William Burt Cooke, Jr., and Mr. Daniel Cubberly, and the clerk, Mr. William Rosmarin, JOSEPH A. JOYCE. New York City, K Y., 1917. PREFACE TO FIRST EDITION. In the following volumes the writer has endeavored to give the profession not only a treatise, but a working book, which will meet the needs, lessen the labors, and save the time of all lawyers inter- ested in questions relating to insurance, and to make it alike valuable to the practitioner who has access to large libraries and to the one who has not. The writer's experience in practice, coupled with what he has learned from judges and other members of the profes- sion, convinced him that a work covering the whole law of insur- ances and its practice before the courts would be favorably received. He has, therefore, attempted to prepare a work presenting, in a carefully and systematically arranged form, the principles under- lying adjudged cases, the facts to which such principles have been applied, and the opinions of courts and text-writers upon conilicting questions of law. Having this purpose in view, the writer in 1S80 commenced collecting the necessary material, since which time no labor has been spared in critically examining the authorities, syste- matically arranging them with reference to their underlying prin- ciples, and in noting as briefly and concisely as has been deemed advisable the facts of such important cases as will show the applica- tion of the governing principle therein, and the grounds of the decisions. If for other reasons than a conflict of authority it has been impossible to formulate any certain rule, the substance of the decision or decisions in point has been given. Where decisions have conflicted, the writer has endeavored to reconcile them and to state the weight of authority, and has called to his aid in numer- ous instances the opinions of other text-writers and of courts. It has not been the writer's plan to treat of the several kinds of insur- ances separately, but, on the contrary, to group decisions together with reference to the grounds on which the rulings have been based ; where this has not been possible, owing to some technical doctrine peculiar to a particular kind of insurance, as in case of abandon- vi PREFACE raeut and constructive total loss in marine assurance, the subject has been treated separately under that heading to which it belongs. This arrangement has made it possible to cover all kinds of insur- ances, including mutual benefit insurance. Much time and labor has been expended in arranging alphabetically the sections of some chapters, but in no instance has this been done where it has not seemed more systematic, in view of the subject matter of such chapters, and better calculated to aid the practitioner by facilitating speedy reference. It is believed that no errors exist as to the authorities relied on, for they have not only been carefully selected and fully and conscientiously examined before and during compila- tion, but the citations made have also been verified from the com- pleted manuscript. Every effort has been made to bring this work up to that standard which the technical character of the subject and the wants of the profession necessitate, and to make it one of value alike in the court room and the office. It is trusted that such effort has not been unsuccessful. A succinct account of the origin and sources of insurances has been incorporated in the form of a "Preliminary Chapter.'' The adjudications have been brought down to the time of going to press, and cover not onlv those in this countrv, but also numerous Enoiish and Canadian cases. The w^riter has freely consulted the works of Emerigon, Marshall, Arnould, Duer, and others, and has care- fully endeavored to give full credit to all from whom any informa- tion has been obtained. The writer also acknowledges his indebt- edness to his brother, Mr. Howard C. Joyce, for assistance rendered during a part of the time. Credit is also due Mr. Howard K. James for aid in helping verify some of the citations; and the unfailing courtesy of Mr. James H. Deering and Mr. Lloyd Conk- ling of the San Francisco Law Library extended to the writer is acknowledged by him with great pleasure. If the purpose of this treatise and the choice of the plan have been fortunate and the work is otherwise meritorious, the writer is content to leave it in the hands of the profession. JOSEPH A. JOYCE. San Francisco, Cal., August, 1897. CONTENTS. TITLE I. PRELIMINARY CHAPTER. THE SOURCES AND ORIGIN OF INSURANCES. I. Sources of insurance. II. Origin of insurance generally. III. Origin of marine insurance. IV. Adoption of marine insurance in modern times. I\'a. Marine insurance continued : origin of Lloyds. IVb. Marine insurance: summary. IVc. Lloyds associations in United States: American Lloyds. IVd. Inter-insurance: reciprocal insurance: inter-indemnity contracts. Origin of mutual insurance system. Origin of cattle insurance societies. Origin of fire insurance. Boards of fire or marine underwriters. Origin of life insurance. § Vila. History of industrial insurance. § Vllb. History of workmen's industrial insurance: state insurance: compulsory insurance: workmen's compensation. § VIIc. Savings bank insurance and annuity law of Massachusetts. § VIII. Origin of accident insurance. § Villa. History of casualty insurance. § Vlllb. History of employers' liability insurance. § IX. Origin of guaranty, fidelity guaranty, etc., insurances. § IXa. History of title guaranty insurance. § IXb. History of credit guaranty insurance. § V. § Va, § VI. § Via § VIL X. Origin of other insurances. vu viii CONTENTS TITLE IL GENERAL TERMS AND DEFINITIONS. CHAPTER I. TERMS AND DEFINITIONS. § 1. "Insured'' and "assured" synonymous. § 2. Definition of insurance. §§ 3, 4. (Transferred to §§ 338d, 339c herein.) § 5. Definition of marine insurance. § 6. Definition of fire insurance. § 7. Definition of life insurance. § 7a. Definition of assessment insurance. § 7b. Definition of industrial insurance. § 7c. Definition of burial insurance. § 7d. Definition of workmen's industrial insurance: state insurance : com- pulsory insurance: workmen's compensation. § 8. Definition of accident insurance. § 9. Definition of casualty insurance. § 9a. Definition of employers' liability or indemnity insurance. § 10. Definition of endowment insurance. § 11. Definition of tontine insurance. § 12. Definition of guaranty insurance. § 13. Definition of real estate and title insurance. § 13a. Definition of rent insurance: rent guaranty insurance. § 13b. Definition of strike insurance. CONTENTS ix TITLE III. CONTRACT AND POLICY. CHAPTER II. NATURE OF THE CONTRACT. § 16, Risk is an essential element. § 17. Division and distribution of loss are essential. § 18. Insurance is an aleatory contract. § 19. Insurance is a voluntary contract. § 19a. Standard fire, policy a voluntary contract. § 20. Insurance is an executory contract. § 21. The contract is synallag-matic. § 22. Insurance is a conditional contract. § 23. Insurance is a personal contract. » § 24. Insurance other than that of life and accident is a contract of in- demnity. § 24a. Standard fire policy is contract of indemnity: collateral contracts: mortgages. § 25. Indemnity : stipulation as to value in policy. § 26. Life insurance not a contract of indemnity. § 27. Accident insurance is not a contract of indemnity in all cases. § 27a. That employers' liability insurance is contract of indemnity. § 27b. Same subject : whether contract one of indemnity or liability or both. § 27c. Injury to property or to employees and others : to what extent con- tract one of indemnity. § 27d. English workmen's compensation act grants complete indemnity. § 27e. Insurance of carriers against losses from injuries to passengers is contract of indemnity. § 27f. Insurance against burglary and loss or damage to property are con- tracts of indemnity. § 27g. Insurance against accidents, death, and theft of animals is contract of indemnity. § 27h. Fidelity guaranty insurance is contract of indemnity. § 27i. Title guaranty insurance is contract of indemnity. § 27 j. Rent or rent guaranty insurance is contract of indemnity. § 27k. Insurance on ''use and occupancy" of an elevator: when not a con- tract of indemnity. X CONTENTS ^ 271. Credit guaranty insurance is contract of indemnity. § 27m. Whether contract to defend physician against suits for malprac- tice is one of insurance and indemnity. § 27n. Employees' benefit and relief association: contract not one of in- demnity. § 28. Reinsurance is a contract of indemnity. ^ 29. Other incidents of the doctrine of indemnit3% CHAPTER III. PAROL CONTRACTS. § 31. Contract need not be in writing: parol contract and rule in England. § 31a. Parol contracts: life insurance — industrial life insurance. § 31b. Parol contracts: accident insurance. § 31c. Parol contracts: "workman's collective policy:" custom. § 31d. Parol contract: where policy partly w-ritten at time of loss: contract binding. § 32. Parol contracts: the common-law rule. § 33. Parol contracts: statutory regulations: English stamp acts. § 33a. Parol contracts: standard policy. § 33b. Statutory regulations: contract partly in writing and partly by parol. § 34. Parol contracts: mutual benefit societies. § 35. Parol contracts: corporations: statutory or charter provisions. § 36. Parol contracts: corporations: statutory or charter provisions, con- tinued. § 37. Parol contract for insurance subject to usual provisions of policy. § 38. Parol agreement for insurance may be specifically enforced, or court may award damages. § 38a. Same subject: standard policy: rule in New York. § 38b. Same subject: life insurance: industrial life insurance. § 38c. Evidence: oral contract must be clearly established. § 39. Parol contracts: statute of frauds. § 40. How far parol contract merged in written agreement. § 41. Parol contract : renewal. § 41a. Same subject: standard policy: agent's authority. § 41b. Parol contract: renewal: contract must be complete: recovery: evi- dence to establish. § 41c. Parol contract: renewal: standard policy: equitable estoppel. § 41d. Parol contract: reinsurance: validity. § 41e. Parol agreement for reinsurance may be specifically enforced. CONTENTS xi CHAPTER IV. REQUISITES OF VALID CONTRACT— COMPLETION OP CONTRACT. SuBDiv. I. Requisites of Valid Contract. 11. Completion of Contract — Proposal and Acceptance. III. Completion of Contract — Prepayment of Premium. IV. Completion of Contract— Delivery of Policy — Knowl EDGE OF Loss. SuBDiv. I. Requisites of Valid Contract. § 43. Requisites of a valid contract of insurance. § 44. Requisites of a valid parol contract of insurance. § 44a. Same subject : identity of parties : designation of insurer. § 44b. Same subject : designation of insured. § 44c. Oral contract for reinsurance or for renewal must be complete. § 45. Minds of the parties must meet on all essentials of contract. § 45a. Same subject : where impossible to obtain definite particulars or im- portant facts. § 46. Essentials need not be expressly agreed upon : prior course of deal- ing, custom, etc. § 47. The usual rate of premium will be presumed to have been intended. § 48. Both the rate of premium and the duration of the risk may be under- stood. § 49. The rate of premium and amount may be understood. § 50. Whether contract exists may be governed by custom or usage of the parties or of the insurance business at a place. SuBDiv. II. Completion op Contract — Proposal and Acceptance. § 53. Completion of contract : mutual benefit societies or associations. § 53a. Same subject : acceptance : approval. § 53b. Same subject: signing. § 53c. Same subject r initiation : medical examination : signing. § 54. Completion of contract: prdposal or application. § 54a. Effect of absence of signed proposal : insurer may be estopped to set up want of proposal. § 54b. When contract of fidelity insurance Complete, and not a mere pro- posal. § 55. Completion of contract : acceptance generally. § 55a. Mere intention to accept, insufficient. xii CONTENTS § 55b. To what extent acceptance must accord with terms of application. § 55c. Proposal and acceptance: counter propositions. § 55d. Whether acceptance of offer should be communicated to proposer. § 55e. Protection by insurer pending approval : date when policy in force. § 56. Qualified acceptance: conditions precedent. § 57. Acceptance: delay in acting on application. § 58. (Transferred to §§ G6b-66j herein.) § 59. Agent's agi-eement: liability not to attach till approval. § 59a. Usage or custom that agents can bind insurer until notice of refusal. § 60. Approval may be implied from the circumstances. § 61. Oral agreement of agent may be controlled by application. § 61a. Agent's statement that application accepted: when insurer estopped. § 61b. Agent's statement that certificate or application binding: mutual benefit insurance. § 62. Completion of contract: negotiations through mail. § 62a. Employers' liability insurance: when contract incomplete: negotia- tions with insurance agent through mail. § 62b. Contracts of insurance: telegraphic agency. § 63. No contract where acceptance mailed differs in terms from proposal. § 64. Agents receipt pending approval or issuance of policy: "binding slip :" "binding receipt." § 65. Same subject: effect of memorandum: binding slip, indorsement, etc. § 6G. Completion of contract, marine and fire: binding slip. § 66a. Binding slips, etc., continued: new terms: rate of premium: parol evidence. § 66b. Delivery to and acceptance by applicant: generally. § 66c. Right of applicant to reject policy: generally. § 66d. Stipulation or agreement for return of policy by applicant : option to accept or reject. § 66e. Where applicant receives policy for examination: acceptance. § 66f. Applicant not bound to accept policy when it does not conform to proposal or agreement. § 66g. Where policy does not conform to proposal : neglect of applicant or assured to read policy: duty to notify company or rescind. § 66h. When applicant may reject policy not conforming to agent's repre- sentations. § 66i. Effect of retention of policy by applicant: unreasonable delay. § 66 j. Acceptance by insured father for infant beneficiaries. SUBDIV. III. COMPLKTIOK OF CONTRACT — PREPAYMENT OF PREMIUM. § 70. Prepayment of premium condition precedent. § 71. Actual prepayment of premium not in all cases essential to validity of contract. CONTENTS xiii § 72. Prepayment of premium: oral agi'eement. § 73. Prepayment of premium to agent or broker. § 74. Effect of part payment. § 74a. Same subject : rebate : agent's commission released or property taken on credit therefor. § 74b. Part payment: good health. § 75. Payment by third person. § 76. Prepayment of premium may be waived. § 77. Waiver of prepayment by agent. § 78. Renewal: waiver of prepayment of premium. § 79. Prepayment of premium: effect of delivery of policy. § 80. Prepayment: credit may be given. § 80a. Same subject: promissory notes, checks, and drafts. § 81. Prepayment: mutual credits: application on agent's debt. § 82. Where there are mutual credits. § 83. Crediting premium on agent's indebtedness to applicant. § 84. Prepayment: course of dealings: allowing credit. § 85. Prepayment of premium: evidence of waiver. § 86. Effect of receipt in policy for premium. SuBDiv. IV. Completion op Contract — Delivery of Policy — Knowledge OF Loss. § 90. Delivery of policy not necessary to complete contract. § 90a. Same subject: date. § 91. Actual or manual delivery of policy not necessary to complete contract. § 92. Agreement to deliver policy: demand is unnecessary. § 93. There may be a constructive delivery. § 94. Delivery: possession of policy by assured. § 95. Neglect of assurer to deliver policy. § 96. Conditional delivery. § 97. Parol evidence admissible to show conditional delivery. § 97a. Condition precedent: delivery or prepayment of premium during lifetime or good health, etc., of assured. § 97b. Same subject. § 97c. Change in health of assured: date of contract. § 98. Wlien actual delivery of the policy necessary. § 99. Delivery: misrepresentation or fraud. § 100. Delivery: notice to assured of execution of policy. § 101. Delivery to agent of insured or to third person. § 102. Delivery by and to agent: policy held by agent. §103. Delivery: agreement completed before loss, mortal illness or accident. xiv CONTENTS § 104. Delivery: agreement iucomplete at time of loss, mortal illness, or accident. § 104a. Same subject. § 105. Loss before date of contract : policy retroactive. § lOG. AVhere both parties know of loss when contract is made or exe- cuted. § 107. Knowledge of loss by assured before and after risk attaches. § 108. Assured not obligated to notify company of loss before de- livery of policy when risk has attached. § 108a. Mutual benotit societies or associations: issuance of certificate. § 108b. Mutual benefit societies or associations: actual delivery of cer- tificate unnecessary, unless. § 108c. Mutual benefit societies or associations: initiation as prerequisite to delivery. § 108d. Delivery of certificate to subordinate lodge, local camp, etc. § 108e. Mutual benefit societies or associations: delay in executing and delivering certificates : retention of certificate. § 108f. Where officer of society acts as custodian of certificate. § 108g. Mutual benefit societies or associations: delivery of certificate or prepayment of dues during life or good health. CHAPTER V. REINSURANCE. § 112. Reinsurance defined. § 112a. Evidence admissible to show "reinsurance" has technical mean- ing of agency reinsurance. § 112b. When transfer is not reinsurance, but an illegal transaction : assets a trust fund: deposit with state. § 113. Reinsurance: nature of contract. § 114. Reinsurance : validity of contract. § 115. Reinsurance: validity of company's acts: its powers. § 115a. Same subject. § 115b. Same subject: mutual benefit societies, associations, and co-oper- ative companies : Lloyds. § 116. Reinsurance not within statute of frauds. § 117. Relations between parties and between insured and reinsurer. § 117a. Same subject : Lloyds. § 118. Insurable interest of reinsurer. § 118a. Same subject : wagering contract. § 118b. Same subject : Lloyds. CONTENTS XV § 119. Reinsurance: the risk. § 119a. Same subject. § 119b. Same subject : mutual, etc., companies. § 120. Duration : term of risk may be controlled by ori^nal insurance. § 121. Custom of underwriters may affect risk. § 122. Limitation of risk of specified date: change of risk. § 122a. Reinsurance not retroactive: property destroyed when contract made. § 123. Limitation of risk to particular locality. § 121. Condition as to assignment. § 123. Condition as to other insurance. § 126. Conditions : time limit for suing : award. § 127. Amount of reinsurance. § 127a. Same subject: sej^arate risks: notice. § 128. Representations and warranties in reinsurance: concealment. § 129. Abandonment unnecessarj^ in reinsurance. § 130. Proofs of loss in reinsurance. § 131. Extent of reinsurer's liability. § 131a. Same subject. § 131b. Same subject: mutual benefit societies, etc. § 131c. Same subject : reinsurer not liable where risk materially altered. § 132. Agreements affecting reinsurer's liability. § 133. Reinsurer's liability: pi-o rata clause. § 133a. Same subject. § 134. Reinsurer's liability : compromise : insolvency of insurer. § 134a. Same subject : mutual benefit societies, etc. : trust fund. § 135. When suit may be brought against reinsurer: rights of original insured. § 135a. Same subject. § 135b. Same subject : mutual benefit societies, etc. § 135c. Same subject : Lloyds. § 136. Reinsurance: recovery: evidence. § 136a. Same subject: mutual benefit societies, etc.: fraud of directors. § 136b. Same subject : recovery of statutory deposits. § 136c. Reinsurance: recovery induced by fraud: subrogation: deduction of expenses of recovery. § 137. Reinsurer bound by judgment: notice to defend. § 138. Defenses available to reinsurer. CHAPTER VI. THE POLICY— ITS FORM AND REQUISITES— SUBSTANCE GENERALLY. § 145. Policy defined. § 146. § 147. § 148. § 149. § 150. § 151. § 152. § 153. § 154. § 155. § 156. xvi CONTENTS Certificates in mutual benefit societies or associations. Division and kinds of policies. Wager policies. Wager policies, valid at common law, now void. Wager policy : conflict of laws. Valued policy may be sbown to be a wager. Policy valid at inception cannot become wager. Wager policies : loss should be total. Wager policies: what are and are not. (Transferred to §§ 894a, 954a herein.) Interest policy defined. Open or unvalued policy defined. § 156a. Named policy defined. § 157. Kunning policies : blanket policies : floating policies. § 157a. Blanket or compound policies: floating policies: distinguished from specific policies. § 157b. "Drummer floater" policy defined: when risk suspended. § 158. Open or unvalued policies : what are : whether policy open or valued. § 158a. Same subject : standard policy. § 159. Valued policy defined. § 160. Valued policy: what the valuation includes. § 161. Valued policy: how far valuation conclusive. § 162. Valued policy: effect of overvaluation: fraudulent valuation. § 163. Valued policies: statutory regulations. § 163a. Same subject : conflicting clauses. § 163b. Valued policy laws : three-fourths value. § 163c. Valued policy laws: overvaluation: fraudulent valuation. § 163d. Valued policy law : property destroyed by more than one fire. § 163e. Valued policy law : real and personal property. § 163f . Valued policy law : improvements upon real property : loss of rents not covered. § 163g. Valued policy laws : mutual companies : mutual benefit societies. § 164. Valued policies : partial loss. § 165. Valued policy; pro rata recovery. § 166. Valued policies : "valued at" not conclusive. § 167. Valued policies; prior insurance. § 168. Valued policies: what are. § 168a. Rent insurance policy analogous to valued policy. § 169. Mixed policy defined. § 170. Time policy defined. § 171. Time policy: computation of time. § 172. Time policy: trading voyage: nature of contract. § 173. Time policy: continuance after expiration of time. § 174. Voyage policy defined. CONTENTS svii § 175. Voyage policy : voyage must conform to course fixed by usage. § 176. The form of the policy : statutory provisions : standard policy. § ITGa. Standard policy: constitutional law: power of legislature and of commission: review by court: injunction. § 176b. Standard policy: stipulations contra, additions, changes, etc. § 176c. Standard policy : waiver. § 17Gd. Standard policy law: effect as to valued policy law. § 176e. Statutory requirements as to size of type, written conditions, etc. § 176f. Standard policy: mutual companies or associations: "special reg- ulations" as part of policy. § 177. The policy: what it usually contains: policy to contain entire contract : statutes. § 178. Execution of the policy. § 178a. Fidelity bond: necessity of signing by employee: agency: waiver. § 179. Execution of policy : afifixing date. § 180. Execution of policy : affixing seal. § 180a. Life annuity: insurance contract: non-necessity of seal. § 180b. Printed signature is sutficient to satisfy the statute of frauds. § 181. Requisites of a valid policy. CHAPTER VII. CONSTRUCTION— WHAT IS PART OF THE POLICY. § 185. What is part of the policy: general rule: parol evidence. § 185a. Same subject. § 186. W^hen application is part of the policy. § 186a. Same subject. § 187. When application is not part of policy. § 187a. Same subject : subsequent application. § 188. When charter and by-laws are and are not part of contract. § 188a. Same subject. § 189. Effect of subsequent amendment of by-laws or enactment of new by-laws. § 189a. Same subject. § 190. Application and by-laws: when part of contract: statutory pro- visions. § 190a. Standard policy: what is part of contract: application, by-laws, etc., special provisions. § 190b, What is pa«rt of contract: contract to be plainly expressed in pol- icy: policy to contain entire contract: statutes. § 190c. State has power to enact : such statutes constitutional. § 190d. Purpose or intent of such statutes. xviii CONTENTS § 190e. Construction of such statutes, the policy and application or con- tract. § 190f. Such statutes govern only relative rights of parties. § 190g. Retroactive effect of such statutory requirements. § 190h. Necessity of true, correct, or entire copy of application. § 190i. Such statutes do not apply to oral contracts. § 190 j. Copy of application for renewal or reinstatement to be annexed, etc. § 190k. Mere reference to application insufficient under such statutes. § 1901. Right of insurer to provide forms of application under such stat- utes. § 190m. What is and is not part of contract: statutes. § 190n. Same subject : medical examination. § 190o. Foreign contracts: effect of statutes. § 190p. What companies or associations are within such .statutes. § 190q. Failure to comply with such statutes does not preclude defenses based upon policy alone. § 190r, Application as part of contract: statutes: fraud as defense: mis- rejaresentations. § 190s. Conspiracy a defense though application not attacked. § loot. Waiver of statutory rights by insurer or insured. § 190u. When question whether copy of application annexed to or in- dorsed on policy is for jury. § 191. When other papers are and are not part of policy. § 191a. Receipt books, manuals, and schedules as part of contract. § 191b. Riders or slips as part of contract: standard policy. § 192. Whether prospectus or pamphlet part of policy. § 193. Same subject : the cases. § 194. Whether common or statutory law part of contract: city ordi- nances or local laws. (a) City ordinances or local laws. (b) Statutes relating to foreign insurance companies. (e) As to prospective or retroactive statutes, or in case of re- peal or amendment, (d) As to mutual companies, benefit societies and the like, (o) Total loss: valued policy statutes. (f) As to representations and warranties. (g) As to stipulations in tlie policy contrary to statutory re- quirements, (h) Express statutory provisions making void policy stipula- tions contra. (i ) As to waiver. § 191a. Same subject: what statutes are and are not part of contract: miscellaneous cases. § 195. Indorsements: marginal references: when part of policy: when not. CONTENTS xix § 105a. Same subject. § 196. Indorsements continued: conditions annexed to policy, etc.: when and when not part of same, (a) Conditions and stipulations when indorsed upon the back of a policy. § 197. Whether premium note part of policy. § 197a. Same subject : statutory provisions : standard policy. § 198. Usage: how far a part of policy. CHAPTER VIII. CONSTRUCTION OF POLICY. § 205. Construction generally. § 205a, Recitals: when not conclusive. § 20G. Whether same rules govern marine, fire, and life policies. § 20Ga. Rule as to standard policy. § 20Gb. Where standard policy statute declares policy binding though not in form prescribed. § 20Cc. Rule as to guaranty or tidelity, contract, credit guaranty, title, and employers' liability insurance. § 207. Construction: mutual companies: benefit societies, § 208. Policies construed like other written contracts. § 209. Construction : intention of parties governs. § 209a. Same subject : cases generally, § 209b. Same subject: construction of warranties. § 209c. Same subject: application, proposal, policy, etc. § 209d, Contemporaneous agreements. § 210. Construction: reference must be had to nature of risk and sub- ject-matter. § 211. Construction must be reasonable. § 212. Contract should be given effect if possible. § 213. Construction : rejection of words and clauses, § 214. General and special clauses. § 214a. General provisions not rcfen-ed to in separate, independent para- graph nor limited by prior clause : accident policy. § 215. Construction will be given to uphold the law. § 216. Words are to be construed in ordinary and popular sense, § 217. Construction : technical, etc., words. § 218. Addition of words by construction. § 219. Courts cannot extend or enlarge by construction. § 220. Forfeitures and exceptions not favored by construction. § 220a. Same subject: benefit certificates. XX CONTENTS § 220b. Same subject: guaranty or fidelity insurance: employers' liability policy. § 221. Construction should be liberal in favor of assured and for benefit of trade. § 221a. Same subject. § 221b. Same subject : kinds of insurance to which rule applicable. § 222. Same subject: the rule contra proferentem. § 222a. Same subject. § 222b. Same subject: employers' liability policy. § 222e. Same subject : accident policy under workmen's compensation act. § 222d. Same subject : reinsurance. § 222e. Rule as to standard policy. § 223. The written controls the printed part of policy. § 224 § 225 § 226 § 227 § 228 § 229 § 230 § 231 Same subject : cases. Construction: lex loci contractus. Same subject : cases. Same subject : exceptions to the rule. Same subject: mutual benefit, etc., societies. When place where policy is countersigned is place of contract. "When pla^'e of delivery is place of contract. When place of acceptance and mailing is place of contract. § 231a. Lex loci: situation of insured property. § 231b. Lex loci : fidelity or guaranty insurance. § 231c. Lex loci : contracts by unauthorized companies or agents. § 231d. Lex loci : contract stipulations. § 231e. Lex loci: statutory provisions. § 231f . Lex loci : public policy : comity. § 231g. Lex loci: rights of beneficiaries or claimants. § 231h. Lex loci : adjustment of claim on forfeited policy. § 231i. Lex loci : reinstatement, extension or revival of policy. § 231j. Lex loci: policy pledged for loan: collateral note: capital-stock note. § 232. Lex loci : assignment. § 232a. Lex loci: substituted policy. CHAPTER IX. CONSTRUCTION— USAGE. § 237. LTsage generally. § 238. L'sage part of the common law. § 239. Presumption as to knowledge of usage.. § 240. Usage must be general. CONTENTS XXI § 241. Usage must be well established and notorious. § 242. Usage may be of recent origin. § 243. Usage must be reasonable. § 244. Usage must be uniform. § 245. Parties may by express contract include or waive usage. § 246. Usage admissible where contract ambiguous or obscure. § 247. Usage inadmissible to contradict or substantially vary the plain terms of policy. § 248. Same subject: cases and authorities. § 249. Whether usage controls the plain and legal import of words of the policy. § 250. Same subject: opinions and cases. § 251. Same subject: conclusion. § 252. Usage cannot legalize an illegal act. § 253. General usage may be controlled by evidence of a different usage. § 254. Usage controls implied limitations. § 255. Usage of another similar trade or place or of another company. § 256. Evidence of usage: liberal construction. § 257. What is sufficient evidence of usage. § 258. Evidence of usage, when admissible: cases. \ § 259. Evidence of usage, when inadmissible: cases. CHAPTER X. THE POLICY— ALTERATION AND MODIFICATION. § 265. Material alteration without consent avoids contract. § 266. Immaterial alteration does not avoid contract. § 267. Alteration when contract is inchoate. § 268. Alteration by a third party. § 269. Alteration by the insurer. § 269a. Substitution of corrected policy by insurer. § 270. Material alteration of policy may be made by consent. § 271. Same subject: decisions. § 271a. Alteration of certificate of membership: consent. § 272. Alteration of contract by parol. § 273. Same subject: decisions. § 274. Alteration with intent to obtain insurer's consent. § 275. Same subject: decisions. § 276. Alteration: substitution of parties. § 276a. Alteration or modification of standard policy. xxii CONTENTS CHAPTER XI. WAR— ALIEN ENEMIES. § 281. Effect of war generally. § 282. Insurances on enemies' property formerly upheld. § 283. Insurances on enemies' property now illegal. § 284. Same subject : early decisions. § 285. Trading with enemy : mistake or ignorance no excuse. § 286. Defense of alien enemy. § 287. Binding force here of laws of belligerent nations. § 288. Alien enemies: life insurance. ^ 289. Effect of war on pre-existing valid contract. § 290. Same subject : loss before war. § 291. Same subject : that war merely suspends the contract. § 292. Right of citizen to bring property from enemy's country. § 29;i. War : license to trade, j:; 294. Wlijo are alien enemies: domicil. § 295. Alien enemy: what constitutes domicil. § 296. Residence with intent to return. § 297. Change of domicil. § 298. Alien enemy : what is enemy's country. § 299. Alien enemy : commencement and cessation of hostilities. § 299a. Alien enemy: intention to subsequently wage war. § 299b. Alien enemies: status of: power of government over: acts of Congress: effect of war declaration. TITLE IV. PARTIES— AGENTS— BENEFICIARIES. CHAPTER XII. PARTIES TO THE CONTRACT— THE INSURED. § 305. Who may be parties to the contract. § 300. Who are not parties. CONTENTS xxiii § 306a. Parties: husband or wife. § 307. Parties: infants. § 307a. Same subject: statutes. § 307b. When infant bound. § 307c. Corporation or partnership as party insured. § 307d. Municipal corporation as party insured. § 307e. Parties: employees under employers' liability and fidelity or guar- anty insurance. § 308. When aliens may be insured, § 300. Relations of insurer and insured. § 309a. Same subject: title guaranty. § 309b. Relation of insured to each other. § 310. Name of assured need not be set out in policy. § 311. Names: evidence admissible to show actual party in interest. CHAPTER XIII. PARTIES— MEMBERS OF MUTUAL INSURANCE COMPANIES, MUTUAL BENEFIT, ETC., SOCIETIES. § 316. Parties: members of mutual insurance companies and mutual benefit societies. § 317. Membership exists when contract is completed. § 318. Obligations and rights of members generally. § 318a. Same subject: title to company's property. § 318b. Property rights of company and members: constitutional law. § 319. Relations of members of mutual companies: partnership. CHAPTER XIV. PARTIES— THE INSURER. § 325. Insurer defined. § 326. Stock insurance companies defined. § 327. Legislation concerning insurance companies. § 328. Same subject: foreign companies. § 328a. State regulation : insurance business as franchise. § 328b. State regulation : quasi public character of insurance business. xxiv CONTENTS § 329. Foreign company: retaliatory and anti-compact laws: combina- tions to control rates. § 329a. Anti-compact laws: combinations to control rates continued: con- spiracy. § 330. Foreign companies: what constitutes "doing business," etc. § 330a. Same subject. § 331. Foreign company estopped to avoid contract by setting up non- compliance with statutes. § 332. Wlien contracts valid although company has not complied with statutes. § 332a. Same subject. § 332b. Same subject: insurance in foreign state of property in another state. § 333. When contracts not valid where company has not complied with statutes. § 333a. Same subject. § 333b. Same subject. § 334. Charter: corporate powers: ultra vires. § 334a. Same subject: power of corporation to insure life of its president. § 335. Forfeiture of charter. CHAPTER XV. INDIVIDUALS, UNINCORPORATED ASSOCIATIONS, LLOYDS, PARTNERSHIPS. § 335a. English and American Lloyds systems compared. § 335b. Individuals, unincorporated associations) Lloyds: Alabama. § 335c. Same subject : Florida. § 335d. Same subject: Georgia. § 335e. Same subject: Illinois. § 335f . Same subject : Kentucky. § 335g. Same subject: Massachusetts. § 335h. Same subject : Minnesota. § 335i. Same subject : Mississippi. § 335j. Same, subject : Missouri. § 335k. Same subject : New Jersey. § 3351. Same subject : New York. § 335m. Same subject : Ohio. § 335n. Same subject : Pennsylvania. § 335o. Same subject : decisions inf erentially bearing thereon. § 335p. Partnerships as insurers. CONTENTS XXV CHAPTER XVI. DIFFERENT FORMS OF INSURANCE CLASSIFIED. § 33G. Policy against railroad .liability for fires is fire, not guaranty, in- surance. § 336a. Whether inter-insurance or inter-indemnity plans are insurance contracts. § 336b. Same subject: agreement between printing companies. § 336c. When copartnership agreement is life insurance. § 336d. Burial or funeral benefit insurance is life insurance. § 336e. Whether annuities are life insurance. § 336f. Endowment: pure endowment and annuity contracts. § 336g. To what extent tontine insurance is life insurance. § 337. Whether contract one of loan or of life insurance. § 337a. Other instances of what is and is not life insurance. § 337b. Whether policy, life or accident : generally. § 337c. Industrial insurance with provisions as to accidental death is not accident insurance. § 337d. Newspaper contract may constitute an accident policy: ultra vires. § 337e. Employers' liability or indemnity insurance. § 338. Insurance of and by carriers: agreement of, to procure insurance. § 338a. Burglary insurance. § 338b. What is not insurance on automobiles. § 338c. When bicycle association not insurance company. § 338d. Sanitary inspection of buildings, etc., is not insurance. § 338e. Contracts to compensate unemployed employees. § 339. When guarantee or surety company contracts constitute insurance. § 339a. Fidelity guaranty bonds or contracts constitute insurance. § 339b. Same subject. § 339c, Contract to indemnify "assured" for bank's default is contract of insurance: bond to secure deposits. § 339d. WHien contract guaranty, bond, mortgage, and securities guaranty, do and do not constitute insurance. § 339e. Guarantee to repay loan is contract of insurance. § 339f. When building contractors' bonds are insurance contracts. § 339g. Title guaranty contract constitutes insurance. § 339h. Credit guaranty contracts constitute insurance. § 339i. Loss of crops: guarantee of realty revenue constitutes insurance. xxvi CONTEXTS CHArXER XVII. PARTIES— MUTUAL COMPANIES, BENEFIT, ETC., SOCIETIES. § 340. Mutual insurance benefit, etc. companies or associations defined. § 341. Mutual and benefit, etc. companies or associations: capital stock: funds for payment of losses: guaranty or reserve funds. § 341a. Same subject. § 342. Kinds of mutual insurance companies or associations. § 343. Plans of mutual insurance. § 344. When mutual, etc. societies or associations are and are not insurance companies. § 344a. Same subject : pecuniary profit as a factor. § 344b. Same subject : pecuniary profit as a factor : lodge systems. § 344c. Same subject: lodge system continued. § 344d. Same subject : pecuniary profit as a factor : masonic benevolent or relief associations. § 344e. Same subject : rules of construction as a factor. S 344f . Same subject : attachment of copy of application or by-laws. >5 344g. Same subject: other insurance as a factor. § 344h. Same subject : liabilitj^ as a factor. § 344i. Same subject: applicability of insurance laws: statutory exemp- tions. § 344j. Applicability of insurance laws continued : right to do business as a factor. § 344k. Applicability of insurance laws: live stock association. CHAPTER XVIII. PARTIES— MUTUAL COMPANIES, BENEFIT, ETC., SOCIETIES, CONTINUED. § 345. What societies or associations are not insurance companies: cases. § 34G. What societies or associations are insurance companies : cases. § 346a. Same subject. § 346b. Whether co-operative or assessment plan or old line company: distinctions. § 346e. Whether comiiany fraternal beneficial association or mutual assess- ment company: distinctions. § 346d. Whether sick benefit, burial, and beneficial association an insur- ance company. CONTENTS .xxyii § 346e. Whether railroad relief associations are insiiranee companies. .. § 346f. Stock associations with beneficiary fund not an insurance com- pany. CHAPTER XIX. PARTIES— MUTUAL COMPANIES, BENEFIT, ETC., SOCIETIES, CONTINUED— POWER S. § 350. Power of mutual companies, societies, or associations affecting the contract : ultra vires. § 350a. Same subject : power as to membership. 8 350b. Same subject: power to classify members: discrimination as to. § 350c. Same subject: power to restrict or extend classes of beneficiaries. § 350d. Same subject: limitation of amount of risk. § 350e. Same subject: limiting liability as to premiums and assessments. § 350f. Same subject: contract to return dues. § 350g. Same subject : paid-up or extended insurance : non-f orf eitable and incontestable insurance. § 350h. Same subject: waiver by association, or mutual benefit company. § 350i. Same subject: estoppel: defense of ultra vires. § 350j. Same subject: reinsurance. § 350k. Same subject : power as to other business or risks. § 3501. Same subject : contract with amusement company valid. § 350m. Same subject : when company or society can change plan : im- pairment of obligation of contract. § 350n. Same subject: when company or society cannot change plan. § 350o. Same subject: when change from mutual, etc., to joint-stock or stock plan can be made. § 350p. Same subject: when change from mutual, etc., to joint-stock or stock plan cannot be made. § 350q. Right to convert friendly society into company: injunction. § 350r. Same subject : consolidation or merger. § 350s. Same subject : reincorporation or reorganiation of mutual com- pany on stock plan. § 350t. Same subject: reorganization or reincorporation: impairment of obligation of contract. § 351. Same subject : guaranty or reserve fund. § 351a. Same subject: guaranty or reserve, ''mortuary reserve," "death benefit," "reserve and emergency," funds: trust funds. § 352. Benevolent and fraternal organizations subject to laws of state and jurisdiction of courts: conditions precedent to resort to courts. .i xxviii CONTENTS § 352a. Same subject. § 352b. Same subject: strict construction of such conditions precedent. § 352c. Same subject: Kelly v. Trimont Lodge. § 353. Absolute right to become member under charter of mutual com- pany. § 354. Contributions by subordinate lodge to supreme lodge: specific purpose: power of disposal of funds. § 354a. Right of subordinate circles or lodges to funds: rights of member who has withdrawn. § 354b. Funds of subordinate circle or lodge: trust funds: cannot be di- verted. § 354c. Duty of association to protect subordinate circle's funds against diversion. § 355. Effect of decisionr by official body created by constitution of order. § 356. Delegation of jiower by supreme lodge: mutual benefit society. § 357. Subordinate association cannot be deprived of charter without hearing. § 358. Member or officer of benevolent association cannot be expelled without hearing. CHAPTER XX. MUTUAL COMPANIES, BENEFIT, ETC., SOCIETIES— BY-LAWS. § 364. Definition of by-laws. § 365. Power to enact by-laws inherent : how exercised. § 365a. Same subject. § 365b. When statutory power to adopt by-laws is exclusive. § 365c. Association may be estopped to assert by-law not properly adopted, § 366. Charter provisions concerning by-laws. § 367. Adoption of by-laws by custom or usage. § 368. Incorporated societies : unreasonable by-laws. § 369. Unincorporated societies : unreasonable by-laws. § 369a. When by-laws reasonable: continued. § 369b. Same sul)ject : police power. § 369c. When by-laws unreasonable: continued. § 369d. When member bound by unreasonable by-laws. § 370. By-laws must not be unequal: discrimination. § 371. By-laws, rules, and regulations : when valid. § 371a. By-law providing wedding gift valid : ultra vires. § 371b. When by-laws invalid. § 371c. By-laws valid in part and void in part. § 372. By-laws excluding resort to civil courts : constitutional provisions. CONTENTS xxix § 372a. Same subject: when courts will not intervene: decisions. § 372b. Same subject: when courts will intervene: decisions. § 373. By-laws must not be contrary to laws of state or United States. § 374. By-laws against public policy are void. § 375. By-laws must not contravene terms of charter, constitution, or articles of association. § 376. Enforcement of by-laws: penalty. CHAPTER XXI. MUTUAL COMPANIES, BENEFIT, ETC., SOCIETIES— CHANGE OF BY-LAWS, ETC.— CONSTRUCTION. § 377. Power to alter or change by-laws. § 378. By-laws, constitutions, etc.: changes, how made. § 378a. Same subject. § 378b. Same subject : requirements as to notice. § 378c. Same subject: delegation of power. § 378d. Same subject: adoption of committee's report: validating unau- thorized by-laws. § 378e. Same subject: right to exercise powers outside state of incor- poration. § 379. By-laws : ' statutory or charter power to repeal, change, etc. § 379a. By-laws, constitution, etc.: amendments, changes, or repeal under reserved power or agreement. § 379b. Same subject: decisions holding amendments, etc., binding. § 379c. Same subject: decisions holding amendments, etc., not binding. § 379d. Same subject: prohibiting extra-hazardous occupation. § 379e. Same subject: prohibiting engaging in liquor or saloon business. § 379f. Same subject: prohibiting use of intoxicating liquors or drugs. § 379g. Same subject: accidental injuries: total disability. § 379h. Same subject: deficiency or reserve assessments: delinquent as- sessments. § 379i. Same subject: time limitation for suing. § 379j. Same subject: as to remedies within association. § 379k. Amendments, changes, or repeal must be reasonable even under reserved power or agreement. i> 3791. Reasonable amendments, etc., Ijindiiig. § 379m. When amendments, etc., are reasonable. § 379n. When amendments, etc., are unreasonable. § 379o. Amendments or changes must not operate retroactively: reserved right or agreement to amend or change: vested rights. § 379p. Same subject. ■XXX CONTENTS § 379q. Same subject: instances. § 380. Change of by-laws, etc.: vested right. § 380a. Same subject. § 380b. Same subject : instances. § 380c. Same subject : changes in by-laws, etc. : increasing assessments or dues or reducing amount payable. § 380d. Same subject : changes in "by-laws, etc., to prevent financial disas- ter or dissolution. § 380e. Same subject: classification of risks: discrimination. § 380f. Right of member or beneficiary to object to amendmento : waiver or estoppel. § 380g. Same subject: when waiver or estoppel not applicable. § 380h. Waiver by or estoppel against association, society, etc., or ofTicers thereof: amendments. § 381. Construction of by-laws. CHAPTER XXII. AGENTS OF INSURER— APPOINTMENT, ETC.— POWERS. § 386. Corporations act through agents. § 387. Charter provisions concerning agents. § 388. Who are insurance agents. § 389. Classification of agents, § 390. Appointment of agents. § 391, Appointment of agents: statutes. § 391a. Statute confining business of agent or broker to certai class, un- constitutional. § 392. Appointment of agents: territory: contract wi.; principal. § 393. Relative power of agents of stock and mutual companies. § 394. Same subject: powers after completion of contract, § 395. Who is general agent. § 395a. Same subject. § 396. Power of agents to delegate authority. § 397. Officers of insurance corporations and associations and their pow- ers. § 398. Powers of officers of mutual benefit societies, § 399. Powers of president. § 400. Powers of vice-president. § 401. Powers of secretary. § 402. Powers of assistant secretary. § 403. Powers of treasurer. § 404. Powers of directors. CONTENTS xxxi § 405. Powers of superintendent. § 406. Powers of g-eneral managers. § 407. Agency of subordinate lodges. § 407a. Same subject. § 408. Agency arising from necessity or emergency. § 409. Agent delegated for special purpose. § 410. Agency: person referred to by company. § 411; Powers of clerk. § 412. Powers of medical examiner. § 413. Whether one is agent or broker. § 414. Whether broker is agent of insured or insurer. § 415. Partnership as agent: joint agents. § 416. Powers of adjuster. § 416a. Fidelity bond : when not obligor's agent. CHAPTER XXIII. AGENTS OF INSURER-POWERS, CONTINUED. § 424. Powers of agents: generally. § 425. Authority which the agent is held out to possess. § 426. Agent's authority is coextensive with his employment. § 427. Authority which the agent represents himself to possess. § 428. Private restrictions upon agent's authority. § 428a. Same subject: subagents. ^ § 429. Assured bound by knowledge of limitations upon agent's authority. § 430. Obligation to inquire as to agent's authority. § 431. What is not notice of agent's limited authority. § 432. Stipulation that only certain agents may waive. § 433. Limitation of agent's authority in policy is valid. § 433a. Statutory provisions: waiver: standard policy. § 434. Authorities holding that restrictions in policy on agent's authority bind insured. § 434a. Same subject. § 435. Restrictions in policy as to the manner of exercising authority by agent. § 436. That restrictions in policy on agent's powers only relates to acts after policy delivered. § 436a. Same subject. § 437. That restrictions in policy on agent's powers only relate to acts before loss. § 438. That restrictions in policy on agent's powers are only prima facie binding. xxxii CONTENTS § 439, Conclusion : agent may waive conditions notwithstanding inhibition in policy. § 440. Opinions of courts upon waiver and estoppel : agents. § 440a. Same subject. § 441. Restrictions in policy : oral waiver. § 442. Same subject : cases contra. § 442a. Waiver: officers or agents of subordinate lodges. § 443. Where agent promises to make proper indorsement on policy, but fails to do so. § 444. Restrictions in application on agent's authority. § 445. Agency : custom, etc. : course of business : similar acts. § 446. Agency : custom : signing for principal. § 447. Agency: custom, etc.: waiver of conditions. § 448. Agency : custom : alteration of contract. § 449. Agency : custom, etc. : submission to award. § 450. Agency : custom : proofs of loss. § 451. Agency : custom, etc. : surrender of policy. § 452. Agency : custom : transfer of insurance. § 453. Agency : custom, etc. : negotiation of drafts. § 454. Agency : custom, etc. : cancelation of policy. § 455. Ratification of agent's acts: generally. § 455a. Same subject. § 456. Ratification of agent's acts operates retroactively. § 457. Ratification of agent's acts must be entire. § 458. Ratification of agent's acts must be one which principal could have authorized. § 459. Ratification of agent's acts: signing for principal. § 460. Ratification of agent's acts : the premium. § 461. Ratification of agent's acts: retaining benefits. § 462. Ratification of agent's acts: neglect to disaffirm. § 463. Ratification : agent must have assumed to act for claimed principal. § 464. Ratification of agent's acts: other insurance. § 465. Power to bind insurance company by contracts other than those of insurance. CHAPTER XXIV. AGENTS OF INSURER— POWERS PRIOR TO ISSUE OF POLICY. § 472. Powers of agent concerning application : misrepresentations. § 473. Misrepresentations of agent : continued. § 474. Misrepresentations by agent in the application: statements made warranties. CONTENTS xxxiii § 474a. Same subject: medical examiner. § 474b. Same subject: effect of signature of applicant at beginning of examination papers. § 475. Wbere true answers are given but agent inserts different ones m application. § 47ja. Same subject. § 476. Same subject: cases. § 477. Where answers are unintentionally incorrect: agent's knowledge. § 477a. Where agent corrects old application or tills in new one therefrom or from other applications. § 478. False answers by clerk of agent. § 479. Misrepresentations: application signed by agent without applicant's authority. § 480. Where agent agrees to note fact in application. § 481. Omission or negligence of agent in filling out application. § 481a. Same subject. § 482. View that not question of waiver or estoppel, but whether condi- tion attached. § 483. Mistake of agent in filling out application. § 484. Misrepresentations by agent with full knowledge of facts. § 485. Misrepresentations by agent : applicant signs in blank. § 486. Misrepresentations by agent: application sent unsigned to com- pany. § 487. Where agent fills out application without inquiry or of his own knowledge. § 487a. Question not answered or imperfectly answered and policy issued without further inquiry. $5 488. Where applicant has no knowledge of facts and agent fills out application. § 489. Misrepresentations by agent: where applicant signs application without reading or knowing contents. § 489a. Same subject. ^ 490. Misrepresentations by agent: where applicant is illiterate, etc. § 491. Fraud of agent in preparing application. § 492. Agent's knowledge of falsity or incorrectness of applicant's state- ments. § 492a. Same subject. § 493. Where applicant is assured by agent that application is correct. § 494. Misrepresentations by agent: insured may rescind. § 495. Broker's misrepresentations: application. § 496. Oral application: agent's knowledge. § 497. Information obtained from others by agent: application. § 498. Where agent writes down such answers as he deems material: application. § 498a. Agent's construction of answers: application. xxxiv CONTENTS § 499. Where agent dictates or advises the answers : application. § 500. Where agent tells insured no answers are necessary : application. § 501. Policy issued on agent's representations or recommendations. § 502. Where application gives notice of agent's limited authority. § 503. ^lisrepresentations by agent : copy of application or by-laws an- nexed to policy. § 504. Misre^jresentations : agent's collusion with applicant. § 504a. Same subject. § 505. Misrepresentation by agent : parol evidence admissible. § 506. Same subject : the opposing view. § 507. Same subject : wliere agent's authority is limited. § 508. Agent of insured: when such provision in policy is inoperative, § 508a. Same subject : standard policy. § 508b. Same subject: medical examiner. § 509. Same subject : mutual companies and benefit societies. § 510. Authority of subordinate officers of benefit association or rail- road relief department to waive requirements as to application. § 511. Agents of insured : knowledge of insured. § 512. Statutes: soliciting agent is company's agent. § 512a. Same subject. § 512b. Same subject: stipulations conflicting with statute. § 512c. Who are insurer's agents : cases. § 513. Cases holding that agent is agent of insured. § 514. ^Misrepresentations of insurer's agent to induce insurance. § 515. Notice to and knowledge of agent : generally. § 515a. Same subject : rule applies to what agents. § 515b. Same subject : when certain agents not within rule, § 515c. Same subject : notice to one of firm of agents. § 515d. Same subject : brokers. § 515e. Same subject : manner, mode or place of notice, § 515f. Same subject : statutes. § 515g. Same subject : when insurer bound : instances. § 515h. Same subject : when insurer not bound : instances. § 515i. Same subject: mutual benefit, etc., societies or associations. § 516. Presumption as to agent's knowledge. § 517, Reformation of policy to 'conform with actual contract. CHAPTER XXV. AGENT OF INSURER— POWERS— THE POLICY. § 525. Agent : power to make oral contract. § 526. Power of agent to accept risks and make contracts. CONTENTS XXXV § 526a. Same subject: credit guarantee insurance. § 527. Where contract of agent is personal. § 528. Power of agent to subscribe policy. § 529. Power of agent to execute retroactive policy. § 530. Countersigning policy by agent. § 530a. Same subject: mutual benefit certificate: execution by subordinate officers. § 531. Where subagent signs for agent. § 532. Signature of assured: waiver by agent. § 533. Waiver and estoppel by acts of agents: generally. § 533a. Same subject. § 533b. Same subject: new agreement, consideration or estoppel. § 533c. Same subject : industrial insurance agent. § 533d. Same subject: mutual benefit, etc., companies or associations. § 534. Waiver and estoppel by agent: conditions precedent and subse- quent. § 535. What agents may waive conditions: knowledge before and after contract made. § 536. Waiver of forfeitures by agent: generally. § 537. Power of agent to bind company by construction of policy : agent's conclusions or advice. § 537a. Power of attorney-at-law as agent to estop insurer by advice to insured. § 538. Agent: power to renew. § 539. Revival of policy by agent. § 540. Power of agent to orally waive. § 541. Where agent fails to take advantage of forfeiture. § 542. Waiver by receiving premium: agent. § 543. Waiver by delivery of policy : agent. § 543a. Same subject : agent of local lodge of fraternal order. § 544. Knowledge not obtained in course of agent's employment. § 544a. Same subject: what evidence necessary to innd insuier. § 545. What agent might have learned by ordinary diUgence. § 546. Agent's knowledge obtained in individual capacity. § 547. Knowledge of company at whose instance another company issues policy. § 548. Agent's power to grant permits affecting risk. § 549. Agents: pov.er to alter policy. § 550. Agents: powers in relation to the premium. § 551. Agent's authority to fix rates for premium. § 552. Agent's agreement to give notice wlien premium due. § 553. Agent's authority in regard to first and subsequent premiums. § 554. Agent's powers in relation to premium.s : what agent may waive. § 555. Agent's powers in relation to premium: when no waiver: cases. § 555a. Same subject. xxxvi CONTENTS § 556. Agent's powers: other insurance: waiver, § 556a. Same subject. § 556b. Statutory policy: provisions as to agents and waiver by failure to cancel : other insurance. § 557. Broker : other insurance : waiver, § 558. Agent's powers : other insurance : when no waiver : instances. § 558a. Same subject, § 559. Agent's powers: change of risk: waiver, ^ 560. Agent's powers : alienation : assignment : waiver. § 561. Alienation : assignment : when company not bound by agent's acts. § 561a. Agent's powers : alienation : change of interest : "in trust or on commission, or sold but not removed :" chattel mortgage, § 562. Agent's powers : keeping prohibited articles : waiver. § 562a. Agent's authority: title and interest: waiver. § 563. Agent's authority: encumbrances: waiver: instances. § 563a. Same subject. § 564. Agent's authority : encumbrances : when no waiver. § 565. Agent's authority: vacant: unoccupied: waiver, § 565a. Same subject. § 566. Agent's authority : vacant : unoccupied : when no waiver. § 567. Agent's authority: cancelation. § 568. Agent's authority: location of property: removal of projDerty. CHAPTER XXVI. AGENTS OF INSURER— POWERS— THE LOSS, § 575, Agent's authority : notice of loss. § 576. Agent's authority: what is not sufficient notice of loss. § 577. Misstatements by agent in proofs of loss : estoppel. § 578. "Where agent aids in preparing proofs of loss : waiver. § 579. Agent : waiver of proofs of loss : condition conflicting with settled rule of law. § 580. Where formal proofs are waived : agent. § 581. Delivery of proofs of loss to agent. § 582. Proofs of loss : place of delivery : waiver by agent. § 583. What agent may waive proofs of loss, or death. § 584. Waiver by acts of adjuster: proofs of loss or death. § 584a. Same subject. § 585. Where no waiver by adjuster of proofs of loss. § 586. Acts of agent in adjusting loss: how far binding on company. § 586a. Same subject. CONTENTS xxxvii § 587. What agent may not waive proofs at loss. § 588. Proofs of loss : what is not a waiver : agent. § 589. Retention of proofs of loss by agent : failure to object. § 590. Proofs of loss : examination by agent : waiver. § 591. Proofs of loss : waiver : agent's denial of company's liability : other grounds. § 592. Proofs of loss : delay caused by agent. § 593. Custom of other agents: proofs of loss: waiver. § 594. Fraud of agent in inducing settlement : waiver : proofs of loss. § 595. Adjustment of loss: agent. § 596. Particular account : loss : waiver by agent. § 597. Marine protest: waiver: agent. § 598. Agent's powers after loss: generally. § 599. Fraud of agent : settlement: award: assignment. § 600. Agent's authority : arbitration : appraisement. § 601. Agent's ^authority: subrogation. § 602. Agent's authority: time limit for suing: waiver. § 603. Abandonment to insurer's agent. CHAPTER XXVII. AGENT OF INSURED. § 608. Agent of insured: authority, how conferred. § 608a. Power of attorney: power to hypothecate policy. § 609. Right of general or special agent to insure. § 610. Agency arising from situation with reference to the property. § 611. Agency may be created by possession of the policy. § 612. Agency: possession of written application. § 613. Agent with general power to insure: mutual company. § 614. Authority of partner. § 615. Authority of part owner. § 616. Authority of joint owner. § 617. Authority of tenant in common. § 618. Authority of ship's husband. § 619. Agent effecting insurance "for whom it may concern." § 620. Right of agent to insure in case of emergency. § 621. Agency arising from custom or course of dealing. § 622. Del credere agents. § 623. Insurance by factors. § 624. Supercargo: power to insure. § 625. Authority of commission merchants: consignees. § 626. Bailee mav effect insurance: warehouseman. xxxviii CONTENTS § 626a. Authority of bailee or agent in possession. § 627. Authority of trustees. Treasurer of local lodge may be trustee. Authority of prize agents to insure. Agent : insurance by carrier. Where husband acts as agent of wife. Insured's agent : adjustment of loss. Authority of insured's agent as to proofs of loss or death. Authority of agent to make abandonment: master. Broker not agent of insurer to receive notice of transfer of policy. Agent or broker procuring insurance cannot cancel. Notice of cancelation to agent or broker procuring insurance in- sufficient. Same subject. Cancelation : condition that notice be given party procuring insur- ance': provision that agent, etc., is insured's agent. § 639. Cancelation : when notice to insured's agent or broker is sufficient. § 639a. Same subject : where agency is general as to insured's business. § 639b. Notice of cancelation by or to agent or broker of insured : whether cjue^tion for jury. Cancelation : agent of both parties. Agents of insured : cancelation: custom. Ratification by insured of agent's acts: waiver. Concealment by assured: general rule. Concealment by principal from agent to effect insurance. Concealment by principal from general agent. Concealment by agent or broker to effect insurance. Concealment by agent other than one to effect a policy. Concealment where agency has ceased. Concealment by agent : false advices : loss by another peril. Degree of diligence required to communicate information : agent. § 028. § 629. § 630. § 631. § 632. § 633. § 634. § 635. § 636. § 637. § 637a § 638. § 640. § 641. § 642. § 643. § 644. § 645. § 646. § 647. § 648. § 649. § 650. ■"o"- CHAPTER XXVIII. AGENTS— DUTIES— LIABILITIES. § 655. Duties of agents: generally. § 656. Duties of insurer's agents: generally. § 657. Duty of agent of insured : generally. § 658. Duty of agent to inform principal. §'659. Effect on insured of agent's neglect of duty to insurer. § 660. Agent cannot issue policy to himself. § 661. Agent cannot act for both parties. CONTENTS xsxix § 662. Same subject: exception to rule. § 663. Agent should notify principal of refusal to accept order. § 664. Agent should notify principal of failure to effect insurance. § 665. Agent must follow instructions. § 665a. Same subject. § 666. Same subject : instructions to cancel. § 667. Where agent's orders vest him with a discretion. § 668. When agent is excused for noncompliance with instructions. § 669. Duty to insure. § 670. Agent's duty: more advantageous terms. § 671. Where agent departs from usage or usual form of the policy. § 672. Duty as to premium. § 673. Duty as to subagent. § 674. Degree of skill required from agents. § 675. Duty to effect other insurance in case of insurer's insolvency. § 676. Duty of agent to settle loss. § 677. Duty and liability as to payment of loss: agent. § 678. Liability of agent or brokers: generally. § 678a. Same subject : when agent not liable. § 678b. Liability of agent for subagent's acts or of broker for agent's acts. § 679. Neglect to effect a valid insurance policy: insolvent, unauthorized, nonadmitted companies. § 679a. Liability to insured of agent inducing insurance in insolvent, un- licensed nonadmitted company: statute of frauds: defenses. § 679b. Statutory liability to insured of agent procuring insurance in unauthorized company: defenses. § 680. Liability of voluntary or gratuitous agent. § 681. Liability of agent or broker for premium. § 682. Liability for concealment : agent. § 683. Liability of officers of company. § 683a. Same subject: mutual companies or fraternal associations. § 683b. Libel and slander of agent or insurer: privileged communications of president of association. § 684. Liability of company for agent's frauds, illegal acts, etc. § 684a. Same subject: CHAPTER XXIX. AGENTS— RIGHTS AND REMEDIES. § 690. Agent's and broker's lien: when it attaches and what it covers. § 691. Agent's lien : assignment of policy by assured. xl CONTENTS § 692. Lien of subagent or broker. § 693. How agent's lien may be lost or waived. § 694. Revival of agent's lien. § 694a. Advances to agent or subagent: lien. § 69.5. Agent's or broker's right to commissions : renewal commissions. § 69G. Subagent's right to commissions: renewal commissions. § 697. When agent not entitled to commissions or renewal commissions. § 697a. When subagent not entitled to commissions or renewal commis- sions. § 697b. Same subject: contract procured jointly with or through another agent. § 697e. Agent's right to commissions : cancelation : unearned premiums. § 697d. Stipulation not to engage in business with another company: for- feiture of renewal commission. § 697e. Stipulation that commissions shall not apply to new forms of policy. § 697f. Agent's right to contingent commissions : computation. § 697g. Agent's right to commissions where insurer puts it out of his power to pay them. § 697h. Agent's right to commissions : deductions : novation. § 697i. Statutory limitation of expenses not retroactive: commissions: reductions : police power : constitutional law. § 697j. Statute requiring license of agent or broker: when commissions not recoverable : when recoverable : unconstitutional statute. § 697k. When agent's right to renewal commissions assignable : trustee in bankruptcy. § 6971. Annuity in compromise of claim of manager for breach of employ- ment contract : priority over general creditors. § 697m. Insurer not liable on oral contract of precident to pay agent annu- ally for life. § 698. Rights of agents as to the premium. § 699. Set-off: agent. § 700. Same subject : English authorities. § 701. Same subject : English and American authorities. § 702. Agency: attorney of foreign company. § 703. Service of papers or process: agent of foreign company. § 704. Recovery back of loss paid by company's agent. CHAPTER XXX. AGENTS— RIGHTS AND REMEDIES— CONTINUED— TERMINA- TION OF AGENCY. § 705. Action against receiver by agent. CONTENTS xli § 705a. Agent's action for damages for anticipatory breach of contract. § 705b. Same subject: liability of purchasing insurer to agent of selling insurer. § 705c. Action bj- agent for damages : breach of contract. § 705d. Action bj' agent : overpayments : time limitation in contract. § 705e. Action by agent for compensation for insurer's use of new system of soliciting. § 706. Action against company by average adjusters. § 707. Indictment of agent for larceny. § 707a. Indictment of agent for unlawful conversion or embezzlement. § 708. Action on agent's bond. § 709. Same subject: laches of principal: notification of sureties. § 710. Action on agent's bond : prior defaults. § 711. Action on local agent's bond. § 712. Action on agent's bond : defenses. § 713. Actions against agents of foreign companies acting without license: statutes. § 713a. Same subject. § 714. When agent's right may not be abridged though acting for unli- censed companj'. § 715. Indictment of agent for paying rebate : statute. § 716. Reformation of policy for agent's mistakes, etc. § 717. Agent's defenses. § 718. Proof of agent's authority. § 719. Termination of agency : war, § 719a. Termination by destruction of subject matter: earthquake. § 719b. Termination of agency : death. § 720. Termination of agency as to assured. § 721. Termination of agency as to assurer : revocation. CHAPTER XXXI. BENEFICIARIES— GENERALLY. WHO MAY BE— INTEREST— DESIGNATION OF— CHANGE OF. § 727. ''Beneficiary" defined : same, industrial insurance. § 728. Beneficiaries, generally : designation of : specified classes : equities. § 728a. Same subject : whether statutes or charter controls : by-laws : same; foreign corporation. § 729. Insurable interest in beneficiary : necessity of. § 729a. Same subject. xlii CONTENTS § 730. Interest of benefieiary in regular life policy is vested: cannot be defeated without consent. § 730a. When beneficiary's vested interest under life policy dependent upon its nonforfeiture. § 730b. Vested interest or beneficiary: industrial or burial insurance: change of beneficiary : payment. § 731. Vested interest defeated by contract: right to change beneficiary. § 732. Statements as to beneficiary in application. § 733. When member may designate or change beneficiary by will. § 734. Disposition by residuarj' clause of widow's will : statute. § 735. When member may not desig-nate or change beneficiary by will: effect of designation by will. § 735a. Disposal of benefit certificate by will. § 736. Right of insured under regular life policy to dispose of same by will. § 737. Who may be benefieian.^ : order of Knights of Pythias : widow and children : creditors' interest : Knights of Honor. § 738. Designation of beneficiary: how construed: analogous to testa- mentary disposition. § 739. Where no beneficiary is designated: ineffectual designation: lapse to society. § 740. When insured in regular life policy may change beneficiar>\ § 740a. Provisions of life policy as to changing beneficiary .must be com- plied with. § 740b. Industrial insurance: compliance with conditions as to change of beneficiary. § 740c. Accident policy: reserved right and mode of changing beneficiary. § 740d. Change of beneficiary: statements as to age, etc., conditions as to assignment : changes : waiver, etc., not applicable. § 741. Right to change beneficiary under mutual or fraternal benefit cer- tificate: whether interest of beneficiarj' a vested interest. § 741a. Same subject: specified classes. § 742. Beneficiary may acquire vested interest under contract with mem- ber. § 742a. Mutual promises of parents not to change beneficiaries: children may not enforce contract. § 743. No vested right though beneficiary has possession of certificate. § 744. Provisions as to designation or change of beneficiary in charter, by-laws, etc., must be complied with if possible. § 744a. Same subject : what is and is not sufficient compliance. § 745. When mode prescribed by charter differs from general rule of law. § 746. Change of beneficiary: exceptions to the rule that by-laws must be followed. § 746a. Same subject: when formalities waived: estoppel. § 746b. Same subject : when no waiver or estoppel as to formalities. CONTENTS xliii § 746e. Same subject: waiver by payment of fund into court. § 746d. Same subject: equity. § 747. Mere regulation or matter of practice not binding as to change of beneficiary. § 748. Effect of subsequent change of by-laws or statutes. § 749. Amendment as to payee does not necessitate changing of benefi- ciary. § 750. Where provision as to mode of change of beneficiary cannot be complied with: loss or wrongful retention of certificate. § 751. Where member dies before change of beneficiary is complete. § 752. Where designation of beneficiary is invalid. § 753. Effect of an invalid or inoperative change of beneficiary. § 754. When society only can set up noncompliance with by-laws. § 754a. Eight of beneficiary to object to noncompliance with by-laws. § 755. Statutes relative to designation of beneficiary. § 756. Statutes relative to change of beneficiary. CHAPTER XXXII. BENEFICIAEIES-PARTICULAR DESIGNATIONS AND EFFECT OF SAME. § 763. "Absent brother" as beneficiary. § 764. "Affianced wife:" betrothed as beneficiary. § 765. "As he may direct:" "shall direct:" "may have directed:" "as directed by will." ' § 765a. Brother: brothers and sisters. § 765b. Brother-in-law. § 766. "Children:" where no children survive. § 767. "Children" does not generally include grandchildren. § 767a. Same subject : "children surviving." § 7CS. "Children" does not include children of wife by former marriage. § 769. "Children :" where children are born subsequent to the issuance of the certificate or policy. § 76Da. Same subject : children of first and second wife : or of second wife. § 769b. Posthumous child of second marriage. § 770. "Children," when includes adopted child : release of rights. § 771. "Children :" "his children :" who included generally : includes child by former wife.* § 772. Children : "their cliildren." § 772a. Children : their children : subsequent man-iage of insured. § 772b. Church. § 773. "Dependents:" "legal dependent." xUv CONTENTS § 773a. "Dependents:" who are: instances. § 773b. "Dependents:" who are not: instances. § 773c. "Dependents:" when relation terminated by marriage. § 774. "Devisees:" "devisees or heirs at law." § 775. "Devisees," or in case of their prior death, to "legal heirs or dev- isees of certifieate holder." § 776. "Estate:" "my estate:" creditors. § 777. "Executor." § 778. "Executors and administrators." § 779. "Family" as benefieiarj'. § 779a. "Family:" "immediate family." § 780. "Families, widows, orphans, or other dependents." § 780a. "Family of deceased:" "family or families" in connection with other class designations. § 781. "Friends." § 782. "Guardian." § 783. "Heirs:" "lawful heirs:" "legal heirs." § 784. "Heirs or assigns." § 785. Heir: husband as heir. § 786. "Heirs and legal representatives:" "heirs or representatives." § 787. "Himself, executors," etc. § 787a. Husband and children: sole and separate use. § 787b. Illegitimate child. § 788. Infant as beneticiary. § 788a. Legal heirs or representatives. § 789. "Natural heir." § 789a. Niece. § 790. "Orphans." § 790a. Parents. § 790b. Parents: putative father. § 791. Partnership as beneficiary. § 792. "Relatives :" "related to." § 793. "Representatives:" "legal representative." § 793a. Same subject: statutory' exemptions. § 794. "Resident brother" sCs beneficiary. § 795. Son as beneficiary. § 795a. Stepfather: stepson. § 796. "Survivor." § 796a. Trust created in equity for friend. §797. "Trustees:" "in trust." § 797a. Undertaker as beneficiary. § 798. "Widow and children:" proceeds paid to administrator: extent of his liability. § 799. "Widow and children :" proceeds paid to administrator of insured a trust for widow and children. CONTENTS xlv § 800, "Widow and children :" afterward in order named. § 801. "Widow, orphans, or heirs." § 802. "Widows, orphans, and heirs or devisees." § 803. "Widow or relatives," funeral benefit. § 804. "Wife and children:" "widow and children:" how they take. § 805. Wife and children : construction of contract by parties and bene- ficiaries. § 805a. Wife and children : contract rights in benefits. § 806. Wife and daughters : survivor : who entitled to fund. § 807. "Wife, if living" and "if not living, to children." § 808. Wife or any wife that may survive, and minor children. § 809. "Wife" or "widow" as beneficiary. § 809a. Wife as beneficiary : creation of separate estate in her. § 809b. Wife's interest : endowment policy. § 809c. Wife's right as beneficiary in mortuary fund dependent on hus- band's being member at death. § 809d. Widow : where insured compelled to marry. § 810. When wife entitled against husband to proceeds of surrender policy. § 811. Wife's rights: delivery of policy as security. § 812. When wife has only equitable lien. § 813. Wife's rights where husband's misrepresentations induce her to join assignment. § 814. "Wife:" effect of payment to woman designated as wife while law- ful wife living. § 815. "Wife" as beneficiary : no marriage ceremony performed. § 81."3a. Wife: agreement to become mistress. § 816. "Wife" or "widow" as beneficiary where insured has married when lawful wife living. § 817. "Wife" or "widow" as beneficiary: regular life policy: effect of divorce. § 817a. Same subject: statutes. § 818. "Wife" or "widow" a.s beneficiary : mutual benefit certificate : effect' of divorce. § 819. Wife : articles of separation. CHAPTER XXXIII. BENEFICIARIES, CONTINUED. § 825. Subsequent marriage of insured. § 826. Widow and surviving children : second marriage. § 827. AVliere beneficiary under mutual benefit certificate dies before assured. xlvi CONTENTS § 828. Where beneficiary under life policy dies before assured. § 829. Where beneficiary dies before insured : life policy : conclusion. § 830. Death of wife: subsequent marriage of insured or member: effect where wife is designated as beneficiary. § 830a. Where wife dies before husband: resulting trust in favor of husband's estate. § 831. Where death of beneficiary occurs after that of insured but before payment of fund. § 832. Death of beneficiary and insured: common disaster. § 833. Where beneficiary kills insured. § 834. Killing assured by insane beneficiary. § 835. Where killing is involuntary. § 836. Killing by sane assignee. § 837. Assignment by beneficiary. § 837a. Equitable assignment by beneficiary. § 838. Ratification by beneficiary of assignment. § 839. Assignment to creditor. § 840. Assignment of endowment policy : wife as beneficiary. § 841. Assignment by beneficiary of life policy to one having no insurable interest. § 842. Lien of assignee on paid-up policy. § 843. Where wife joins in assignment of policy on husband's life. § 844. Same: statute forbidding married woman becoming surety. § 845. Assignment by wife of policy on husband's life. § 846. Classes entitled to benefit fund: control in case of assignment: benefit certificate. § 847. Effect of permission permitting assignment. § 848. Beneficiary charged with notice of contents of policy. § 849. Possession by beneficiary of mutual benefit certificate. § 850. Beneficiary may be trustee of fund though not so designated. § 851. Where policy provides payment to insured if he lives to certain date : if not to beneficiary designated. § 852. Maturity of poliej^ when beneficiary certain age: debt of associa- tion. § 853. Polic}^ cannot be surrendered without consent of beneficiary in life policy. § 853a. Surrender of policy: trustee of proceeds. § 854. Surrender of policy avoided for mental incapacity. § 855. Minor children beneficiaries : consent to surrender policy by in- sured not binding. § 855a. Death of beneficiary before surrender of policy for reduction of amount. § 856. Policy to wife and children : death of wife : executor has no power to surrender policy. § 856a. Insured cannot delegate reserved power to surrender policy. CONTEXTS xlvii § 857. "Wife and children:" "wife" deceased at time of issuance: paid- up policy. § 858. Rights of creditors of insured: regular life polic\': exemptions: statutes. § 859. Rights of creditors of members: benefit societies: exemptions: statutes. § 860. Rights of creditors of wife when beneficiary. § 861. Creditor as payee in policy on debtor's life. § 862. Society not bound by secret agreements by member with children as beneficiaries. § 863. Where bequest bj' wife will not pass interest in policy on hus- band's life. § 864. Tontine policy: when beneficiary not bound by action of com- pany's officers. § 865. Suspension of member: right of beneficiary to recover. § 866. Funeral benefits : who entitled : funeral expenses : same, industrial insurance. § 867. Beneficiary : benefits payable in case of sickness or disability : in- sanity of member. § 868. Railroad relief association: provision as to release of company for damages : when beneficiary may not recover. § 868a. Same subject: rule modified by employers' liability acts. § 869. Beneficiary not liable for premiums paid by stranger. § 870. Whether payment of premiums or a.ssessments by beneficiary gratuitous. § 871. Amount of policy and premiums or assessments: advancements to beneficiary. § 872. Payment of benefit fund. § 872a. Same subject: general instances. § 872b. Same subject: presumption as to insured's death: compromise agreement. § 873. Beneficiary entitled to fund : fund cannot be garnished. § 874. Two or more beneficiaries: joint tenancy. § 874a. Where one of two or more beneficiaries ineligible: contract not invalid. § 875. Beneficiary may sue on policy. § 876. Where money due beneficiary has been paid administrator of assured. § 877. Right of beneficiary: premiums paid with misappropriated money or funds. § 878. Statutory provisions limiting beneficiaries of benefit certificates: certain classes. xlviii CONTENTS wife and children: exemptions. § 879. Statutes: beneficiaries; (a) Alabama. (b) California, (e) Colorado. (d) Florida. (e) Georgia. (f) Illinois. (g) Indiana, (h) Iowa. (i) Kentucky. (j) Louisiana. (k) Maryland. (I) Massachusetts. , (m) Michigan. (n) Minnesota. (o) Mississippi. (p) Missouri. (q) Nebraska. (r) New Jersey. (s) New York. (t) North Carolina. (u) Ohio. (v) Pennsylvania. (w) South Dakota. (x) Tennessee. (y) Texas. (z) Washington. (aa) Wisconsin. (bb) Ontario. § 879a. Same subject: whether exemption applies after proceeds or funds become payable: property purchased therewith. § 879b. Same subject : supplementary proceedings. § 880. Where amount exempted is unreasonable : unconstitutionality of law. § 881. Statute : insurance of husband's life : sole benefit of wife : mutual benefit society: vested interest in wife. § 882. Statute : rights of children : declaration of new trust. CONTENTS xlix TITLE V. INSURABLE INTEREST. CHAPTER XXXIV. INSURABLE INTEREST, GENERALLY. § 887. Insurable interest defined. § 888. Insurable interest : generally. § 889. Necessity of an insurable interest. § 890. Insurable interest distinguisbed from the property or life insured. § 891. Insurable interest at common law. § 892. No insurable interest under unenforceable contract. § 893. Interest must be neither illegal nor immoral. § 894. Wager policies. § 894a. (§ 154) Wager policies: what are. § 894b. Wager policies: what are not. § 894c. Wager policies: industrial insurance. § 894d. Wager policies: title guaranty insurance. § 894e. Profit-sharing bonds issued by insurer not speculative or invalid. § 894f. Wager policy: illegality not pleaded or relied upon in defense: deletion of vitiating clause. § 894g. Wager policies: incontestable clause. § 894h. Wager policies: foreign statute: extraterritorial effect. § 895. Insurable interest does not necessarily imply property. § 896. Legal or equitable title: qualified interest. § 897. Conditional or contingent interest: expectancy: inchoate rights. § 898. Liability to others: railroad companies, etc. § 899. Pecuniary interast: consanguinity or alfinity. § 900. Whether insurable interest need be stated. § 901. As to the time when the interest must exist. § 902. Same subject: life insurance. § 903. Continuity of interest. § 904. Where interest is devested : partial interest remaining. § 905. The interest need not be indefea.sible. § 906. Obligation of insurer to ascertain insurable interest in property. CONTENTS CHAPTER XXXV. PARTICULAR INSURABLE INTERESTS CLASSIFIED. § 912. Different parties: several interests. § 913. Interest of administrators and executors. § 914. Whether assignee of life policy must have an insurable interest: points involved generally. § 914a. Same subject: the Federal case of Grigsby v. Russell. § 914b. Same subject : assignment in furtherance of agreement. § 914c. Same subject : assignment as security or collateral : for advances, etc., or to creditor. § 915. Same subject : paj-ment of premium as a factor. § 916. Same subject : consent of insurer to the aissignment. § 917. Same subject : mutual benefit societies. § 918. Same subject: conclusion. § 919. Same subject : summary of the decisions. § 920. Insurable interest : policy payable "as his interest may appear." § 921. Interest of donor or contributor. § 922. Interest of bailor and bailee : generally. § 923. Pledgor and pledgee : pawnbroker. § 924. Innkeepers. § 925. Carriers. § 925a. Pipe lines company. § 926. Warehousemen : wharfingers. > § 927. Commission merchants: consignees. § 928. Merchant furnishing dealer with stock. § 929. Agents. § 930. Consignor. § 931. Consignees and factors : supercargo. § 932. Trustees. § 933. Cestui que trust. § 933a. A cotrustee: joint trustee. § 934. Assignee or trustee of insolvent. § 934a. Receivers. § 935. Stockholders. § 935a. Corporation in life of stockholder. § 935b. Corporation in life of its officer. § 936. Sureties. § 937. Receiptor for goods attached : surety on appeal. § 938. Indorser of note. § 939. Holder of note or bill of exchange: drawee. § 940. Indorser and indorsee of bill of lading. CONTENTS li Inter&st of insurer: reinsurer. Interest in solvency of insurer. Interest in royalties. Copartners: joint owners. Partner: life risk. Part owner. General creditors. Simple contract creditor in estate of deceased debtor. Creditors as assignees. Creditor attaching or levying execution. Attaching- creditor must insure his interest. Judgment creditor. Creditor in life of debtor. . Same subject: wager policy: amount recoverable. Owner of goods concealed from creditors. One whose goods are levied on. Insolvent : life risk. Insolvent debtor: property. Officer serving attachment or making levy. Lessor. Lessee : sublessee. Tenant, lessee or sublessee: improvements: right of removal. Sub-tenant: lessee: insurance against loss of rents: wager policy. Purchaser from lessee. Tenant at sufferance. Tenant at will. Life tenant. Life tenant; assignee of, in life of. Remainderman. Tenant for life and remainderman joining in insurance. Tenant per autre vie: life risk. Tenant in common. Tenant by curtesy. Vendee or one under contract for purchase or for deed of tenancy. CHAPTER XXXVI. PARTICULAR INSURABLE INTERESTS, CLASSIFIED, CONTINUED. § 977. Vendee or one under contract for purchase, or for deed. § 978. Same subject: one holding possession under contract of purchase from equitable owner. § 979. Same subject : parol agreement. § 980. Same subject: quahfications. § 981. Same subject: cases. § L/^ J.. 942. § 943. § 944. § 945. § 946. § 947. § 948. § 949. § 950. § 9yL § 952. § 953. § 954. § 955. § 956. § 957. § 958. § 959. § 960. § 961. § 9Gla. § 961b. § 962. § 963. § 963a. § 964. § 964a. § 965. § 966. § 967. § 968. § 969. § 970. lii CONTENTS § 981a. Vendee or one under contract for purcliase: conditional sale. § 981b. Purchaser of goods on credit: same, married woman. § 981e. Parties under agreement to exchange property. § 982. Vendor or one who has contracted to convey. § 983. Vendor. § 983a. Seller or purchaser of goods to arrive. § 984. Vendee. § 984a. Vendor and vendee : improvements. § 985. Purchaser under execution or judicial sale. § 986. Purchaser in possession of land, title not to pass till building com- pleted. § 987. One in possession under claim of right. § 988. One in possession with power of sale. § 988a. Government stamps : insurable interest in. § 989. One in possession to care for and rent property. § 990. One in possession or occupation : generally. § 991. Mere intruder or trespasser. § 992. Disseisor. § 993. Purchaser of legacy: life risk. § 994. Owner : absolute interest. § 994a. Easement of support in party wall. § 995. Owner of land : buildings constructing .under contract. § 996. Contractors : builders : materialmen : mechanics. § 997. Advances. § 998. Ship's general agent has no insurable interest in advances. § 999. Voluntary advances on vessels. § 1000. One expending money for his own benefit on another's property. § 1001. Liens. § 1002. Mechanic's lien. § 1003. Meelianics and materialmen in ship. § 1004. Shipowner in ship and cargo. § 1005. Shipowner in special cargo: lien, § 1006. Charterer. § 1006a. United States in vessel hired with option to purchase: war risk. § 1007. Vendor and vendee in ship and freight. § 1008. What interest of shipowner in freight includes. § 1009. Requisites of an interest in freight. § 1010. Sliipowner in freight. § 1010a. Chartered owners in freight : vessel subchartered. § 1011. Charterer who is part owner. § 1012. Charterer in expected freight. § 1013. Cliarterer and shipowner: separate risks. § 1014. Charterer insuring against special peril. J5 1015. Advances by charterer on freight. § 1016. When charterer has no insurable interest in freight advanced. CONTENTS liii § 1017. Owner in case of bottomry or respondentia. § 1018. Lender in holtomry or respondentia. § 1019. Expected profits. § 1020. Profits made and earned. § 1021. Passage money. § 1021a. When interest insured is disbursements not passage money. § 1022. Mariners' wages. § 1023. Supercargo. § 1024. Fishing voyage: outfits. § 1025. Captors. § 1026. Mortgagor and mortgagee: generally. § 1027. Mortgagor. § 1028. Mortgagor of personal property. § 1029. Extent of mortgagor's insurable interest. § 1030. Mortgagor of ship. § 1030a. Owner of equity of redemption. § 1031. Mortgagee. § 1032. Mortgagee under mortgage only valid in equity. § 1033. Relation mortgagee's insurance sustains to the debt. § 1034. Mortgagee of ship. § 1035. Mortgagee of goods and freight. § 1035a. Mortgagee in possession of goods as security. § 1036. Extent of mortgagee's insurable interest. § 1037. Several mortgagees. § 1038. Mortgagor's interest after judgment or decree. § 1039. Mortgagor after foreclosure sale. § 1040. Effect of sale or conveyance on mortgagor's interest: devest- ment of interest. § 1041. Cessation of mortgagor's interest. § 1042. Effect on mortgagee's interest of sale and assignment. § 1042a. Same subject: purchaser from vendee of note and trust deed. § 1042b. Assignment by mortgagor to mortgagee. § 1043. Disclosure of interest by mortgagee. § 1044. Assignee of mortgagee. § 1045. Mortgagor for mortgagee. § 1046. Mortgagee after foreclosure sale. § 1047. Interest in homestead. § 1048. Husband in personal community property. § 1048a. Estate by entirety. § 1048b. Husband and wife: wife's personalty: household furniture. § 1049. Husband in property of wife. § 1049a. Same subject: when husband has insurable interest: instances. § 1040b. Same subject: when husband has no insurable interest: instances. § 1049c. Husband in property held jointly with wife under contract: in- surance authorized or ratified by wife. liv CONTENTS § 1049d. Where statute permits husband to insure wife's separate property. § 1050. Husband in property of wife: disclosure of interest. § 1051. Husband in life of wife. § 1051a. Same subject : joint insurance by husband and wife : married woman's property act. § 1052. Husband for benefit of wife or child. § 1053. Wife in her own property. § 1054. Wife in husband's life. § 1055. Wife without marriage ceremony in husband's life: mistress: common-law marriage. § 1055a. ^lan in woman's life when not lawfully married to her. § 1055b. Holder of purchase-money mortgage, in wife of mortgagor. § 1055e. Wife: effect of divorce. § 1056. Dower interest. § 1057. In life of betrothed. § 1057a. In employee's life: employer's liability insurance. § 1058. In servant's life : actor's life. § 1059. In master's life. § 1060. Earnings of another: life. § 1€61. Promise of support one not a relative: life. § 1062. Promise to support relative: life. § 1062a. Person in loco parentis. § 1063. Parent and child: life. § 1063a. Same subject : mourning or funeral expenses : industrial or col- lecting society : validating statute : fraud of agent : rescission. § 1064. Unborn child. § 1064a. Illegitimate children. § 1065. Son in father's property. § 1065a. Parent in child's separate property: .statute. § 1066. Son-in-law : mother-in-law : stepson : stepfather : life. § 1067. Grandparent and grandchild. § 1068. Brother and sister: brother-in-law: stepsister. § 1069. Uncle and nephew or niece : aunt and nejDhew or niece. § 1069a. Half-uncle. § 1070. Cousin. § 1071. Friend's insurable interest. § 1072. Religious societies in member's life. § 1072a. Building association in member's life. § 1072b. Undertaker in lives of members of burial association : statute. § 1073. Benefit societies: insurable interest. CONTENTS Iv TITLE VI. PREMIUMS AND ASSESSMENTS. CHAPTER XXXVII. PREMIUMS, GENERALLY. § 1083. Premium, "net premium," "gross premium," defined, § 1084. Premium or rate per cent mu.st be expressed in policy. § 1085. Premium and conditions as consideration. § 1086. Premium is of the essence of the contract. § 1087. Premium not due unless risk attaches. § 1088. The rate of premium. § 1088a. Same subject: employers' liability insurance. § 1088b. Same subject: premium based on "traffic earnings" parol evi- dence. § 1080. Premium as test of amount or character of risk. § 1090. Agreement as to rate must govern. § 1091. Discrimination as to rates of premium: rebate of premium.^ § 1092. Same subject: such statutes constitutional. § 1092a. Same subject : object or intent of sucli statutes. § 1092b. Same subject: construction. § 1092c. Same subject: what companies or associations, etc., included and excluded. § 1092d. Same subject : agreements for services. § 1092e. Same subject: agreements for services: advisory boards. § 1092f. Same subject: allowance by agent of commissions. § i092g. Same subject: what is not a discrimination or rebate: other in- surances. § 1092h. Same subject : effect as to recovery of premiums, notes, or com- missions. § 10921. Same subject: liability for penalty. § 1093. Premium to cover additional risks: augmentation or diminution of premium. Ivi CONTENTS CHAPTER XXXVTII. PKEMIUMS— PAYMENT, FORFEITURE AND TENDER— LIENS. § 1097. § 1098. § 1098a. § 1098b. § 1099. § 1100. § 1101. § 1102. § 1103. § 1103a. § 1104. § 1104a. § 1105. § 1106. § llOGa. § 1107. § 1108. § 1109. § 1109a. § 1109b. § 1110. § 1110a. § 1111. § 1112. § 111.3. § 1114. § 1115. § 1115a § 1116. § 1117. § 1118. § 1119. Payment of premium: generally. No forfeiture for nonpayment of annual premium unless so agreed : whether premium a debt. Mere agreement to pay premiums insufficient to prevent forfeiture. That policy lapses for nonpayment of premiums where no con- dition for forfeiture. Whether payment condition i^recedent. Conditions as to payment of premium valid. Whether contract entire when premium entire. Whether life contract entire or from year to year. Failure to pay premium on day stipulated, forfeits. Same subject : incontestable provision. Equity will not relieve from forfeiture so incurred. Payment of weekly premiums: industrial insurance: forfeiture. Subsecjuently enacted nonforfeiture statute : payment of premiums into court. No notice or formal declaration of forfeiture necessary. That stipulation as to forfeiture means voidable only. Premium payable on demand. Forfeiture for nonpayment of instalments of premium when due. Company may extend time of payment of premium. Paj-ment of premium : days of grace. Payment of premiums: days of grace: statutes. Extension of time of payment: computation of time: days of grace. Extension by agent of time for payment of premiums : days of grace. Acceptance of entire annual premium in advance. Prepayment of premiums. Offset : premium and rents due from agent. Part payment of premium will not prevent a forfeiture. Nonpayment of j^remium may only suspend risk. Conflicting dates: date from which computation as to forfeiturn based : death of insured. Death or loss after suspension : payment of premium. Payment of overdue premium after loss, death, injury or sickness. Death or loss within time extended for payment or days of grace. Review of cases generally relied on as holding such payment of no effect. CONTENTS Ivii § 1120. Cases , supporting opposite view. § 1121. Same subject : conclusion. § 1122. Tender of premium: tender to agent. § 1123. Frequency of tender. § 1124. Tender after delivery up of policy fraudulently induced by agent. § 1125. Actual production of money unnecessary after peremptory refusal to accept. § 1125a. Tender by bank cheek. § 112b'. Ratification of payment may relate back to time of tender. § 1127. Tender after payment of overdue premiums unconditionally re- Cjuested. § 1128. Tender as prerequisite to action: judgment. § 1129. Payment due Monday when premium matures Sunday: death of insured. § 1129a. Same subject: days of grace. § 1130. Holidays: Thanksgiving Day. § 1131. Lien for premium. § 1132. Maritime lien for premium. CHAPTER XXXIX. PREMIUMS— MANNER AND MODE OF PAYMENT— BY AND TO WHOM PAYABLE— MORTGAGOR AND MORTGAGEE— MIS- CELLANEOUS MATTERS. § 1137. In what the premium may be paid. § 1138. Cash premiums: mutual company. § 1139. Payment in depreciated funds, Confederate money. § 1140. Payment in foreign money: equivalent in United States money may be shown. § 1141. Payment of premium: credit may be given. § 1142. Payment by order on third party. § 1143. Effect of order on third party: demand: notice of nonpayment: forfeiture: order on employer. § 1144. Payment by check or draft. § 1144a. Premium paid out of income or rents: infant life tenant. § 1145. Payment with misappropriated funds. § 1146. By whom premium payable. § 1147. Premiums paid by debtor in fraud of creditors: husband and wife. § 1148. Payment by and liability of third party: beneficiary: lien on policy. § 1149. Same subject: rules stated in Leslie v. French. Iviii CONTENTS § 1150. Payment by and liability for premium of agent or broker. § 1150a. Payment to agent or broker. § 1151. Premiums paid out of partnership funds during solveney. § 1152. Payment of premium by mortgagee: liability of mortgagee for premium. § 1153. Payment of premium by mortgagor: right to proceeds. § 1154. When mortgagor may be charged for premiums paid by mort- gagee. § 1155. When premiums not chargeable to mortgagor. § 1156. Payment of premium as connected with subrogation: mortgagor: mortgagee. § 1157. Payment of premium by assignee of mortgage. § 1158. Forfeiture for nonpayment of premium by mortgagor: defense by mortgagee. § 1159. Amount of premium for which mortgagor is chargeable may be limitea. § 1160. Policy taken as collateral : right of mortgagee to charge pre- miums : right to deposit premium. § 1161. Right of mortgagee to recover premiums paid after decree. § 1162. Purchaser of mortgaged premises: previously advanced premiums. § 1163. Payment of premium : sending by mail. § 1164. Check mailed on last day for payment. § 1165. Payment of premium : delivery to express company. § 1166. Payment of premium by dividends or profits. § 1166a. Payment of premium on new policy by surrender value: agent's powers. § 1167. To whom premiums may be paid. § 1168. Place of payment. § 1169. Liability for premiums : liability after forfeiture. § 1170. Revival of policy. § 1171. Recovery of premiums by unauthorized company. CHAPTER XL. THE PREMIUM— PAID-UP AND NONFORFEITABLE POLICIES. § 1178. Paid-up and nonforfeitable policies: extended insurance: gen- erally. § 1178a. Paid-up, extended and temporary insurance distinguished. § 1178b. Invalid contracts: surrender value: paid-up policies: loans. § 1179. Nonforfeiture statutes. § 1179a. Such statutes constitutional. CONTENTS lix § 1179b. Whether policy becomes automatically paid up: extended in- surance. § 1179c. Forfeiture rule not applicable to policy stipulating for loan value charge: "automatically nonforfeitable clause." § 1180. Death as affecting right to paid-up policy. § llSOa. Insanity as affecting right to paid-up policy. § 1181. When only paid-up policy can be claimed, and when the full amount of insurance. § 1181a. Paid-up policy: surrender cannot defeat beneficiary's rights. § 1182. Right to claim paid-up policy: demand: surrender value. § 1183. Right of infants: paid-up policy. § 1183a. Paid-up policy: husband and wife. § 1184. When right to claim paid-up policy must be exercised. § 1185. Right to paid-up policy must be exercised within specified time. § 1186. Exceptions to last rule and cases contra. § 1187. Whether payment of note required to entitle to paid-up policy. § 1188. When paid-up policy forfeited: eases. § 1189. When paid-up policy not forfeited: cases. § 1190. Whether it is new contract or continuation of old one. § 1191. Amount of premium under statutes "deducting indebtedness." § 1192. Amount of paid-up policy. § 1193. Endowment policy: nonforfeiture statutes. § 1194. Refusal to issue paid-up policy. § 1195. Refusal to issue paid-up policy: measure of damages. CHAPTER XLI. NOTES FOR PREMIUMS, AND PREMIUM, ETC., NOTES. § 1202. Payment by note. § 1202a. Same subject : to what extent note constitutes payment. § 1202b. Same subject: when note does not constitute payment. § 1202c. Same subject: receipt for premium. § 1202d. Same subject : note as equivalent to or in lieu of cash. § 1202e. Same subject: effect as loan where agent advances premium and takes note. § 1202f. Same subject: stipulation that note not payment but extension only. § 1203. Premium note and policy one contract. § 1204. Condition as to forfeiture for nonpayment of note at maturity : generally. § 1204a. When such condition not applicable to note. § 1205. Validity of sucli provisions. Ix CONTEXTS § 1206. Payment by negotiable paper: demand or notice, etc.: forfeiture. § 1206a. Same subject : that policy not ipso facto void for nonpayment of note. § 1206b. Same subject: statutory notice. § 1206c. Same subject: place of payment, § 1207. Payment by negotiable paper: cases holding no demand or notice necessary: forfeiture. § 1208. Same subject: the rule. § 1208a. When insurer not bound to notify assignee of maturity of note of assignor. § 1209. When stipulation is that policy void or risk suspended for non- payment of note. § 1210. Note for entire premium: suspension risk. § 1211. When condition for forfeiture is in note only. § 1212. When there is no condition as to forfeiture for nonpayment of note. § 1213. Subsecjuent parol agreement: nonpayment of note: forfeiture. § 1213a. Right to loan after nonpayment of note. § 1214. Power of mutual company to take note. § 1215. Validity of notes for premium and premium notes. § 1216. Premium note given unauthorized company. § 1217. Premium, etc., notes: generally. § 1218. Negotiability of notes for the premium and premium, etc., notes. § 1219. When note is payable. § 1219a. Same subject: conflicting dates: erroneous date. § 1219b. Same subject: extension of time. § 1219c. Same subject: days of grace. § 1219d. Payment of note by mail. § 1220. Validity of provisions as to liability on premium, etc., notes. § 1221. Lien on premium notes and funds. § 1221a. When insured liable on note for premium. § 1221b. When insured not liable on note for premium. § 1222. Liability on premium, etc., notes : generally. § 1223. When liability absolute on premium, etc., notes: when not. § 1224. Liability for losses prior to membership. § 1225. When liability continues until policy surrendered and all assess- ments paid. § 1226. Liability after termination of contract or surrender of policy. § 1227. Liability after suspension on note for entire premium. § 1228. Extent of liability after part payment of note. § 1229. Liability after loss. § 1230. Liability incurred by default in payment of assessment. § 1231. Liability in case of insolvency of company. § 1232. Insolvency of maker of note. § 1233. Interest on premium notes: forfeiture. CONTENTS Ixi § 1234. Tender: premium notes. § 1235. Payment of premium notes or interest thereon by dividends or profits. § 1235a. Application to unpaid notes, of amounts due for claims for injuries : accident policy. § 1236. Effect of nonpayment of note upon beneficiary. § 1237. Deduction of note from loss. § 1238. Counterclaim on note of owner of vessel insured for benefit of mortgagee. § 1239. Amount of recovery on premium notes. CHAPTER XLII. ASSESSMENTS AND DUES. § 1245. Assessment defined: consideration. § 1245a. "Assessments upon surviving members," construed. § 1245b. When decree is assessment and not an order for an assessment. § 1245c. Whether or to what extent assessments are debts. § 1246. Assessments: generally. § 1247. Distinction between premiums and assessments. § 1248. Membership fees and dues: generally. § 1249. Validity of provisions as to assessments and dues. § 1250. Assessment premium, etc., notes: generally. § 1251. Who liable to asses.sments : what membera. § 1252. Who liable to assessment : mortgagee : assignee. § 1253. Liability of member: generally. § 1254. Nonpayment of assessment or dues after date of accident insured against. § 1255. Liability to assessments: agreement or provisions contrary to statute. § 1256. Liability: prior and subsequent losses: liability after loss, for- feiture or suspension. § 1256a. Same subject. § 1257. Members joining between loss and rendition of judgment against company. § 1258. When dues payable: dues in arrears: forfeiture. § 1259, Assessment falling due on Sunday. § 1260. Assessments : suspension of member. § 1261. When nonpayment of dues or assessments forfeits or suspends: self -executing provisions. § 1261a. Same subject. § 1262. Assessments paid in advance in excess of mortuary assessments. Ixii CONTENTS § 12G3. No forfeiture: assessments in advance of death losses. § 1264. Forfeiture or suspension : when affirmative act of society necessary., § 1265. When member is in good standing: when not. § 1266. Nonpayment of assessments : when no forfeitures. § 1267. Assessments by unauthorized company. § 1268. Liability to assessments : cancelation : surrender : withdrawal. § 1269. Right of member to withdraw and avoid liability for assessments. § 1270. Whether contract to pay assessments unilateral. § 1271. Right to deny liability for losses on policies to nonmembers. § 1272, Dues and assessments: effect of insolvency upon liability. § 1273. Assessments : receiver. § 127-4. What receiver may include in assessment : premium notes. § 1275. Assessments by trustee of unauthorized company. § 1276. Restoration to membership ; reinstatement : revival. § 1276a. Same subject : good health. § 1276b. Same subject : incontestable clause. § 1276e. Same subject : when reinstatement not effected. § 1276d. Same subject : when new contract, when not. § 1277, Reinstatement by way of waiver and not as new contract : cred- itor's rights. § 1278. To whom dues and assessments are payable. § 1279. Mode of remittance. § 1280. Tender of assessments: frequency of tender. § 1281. Assessments and dues: death before time specified for payment e:j(pires : loss after suspension. § 1281a. Days of grace: death within days of grace. § 1282. Death of member during suspension of lodge. § 1283. Death while ''dues in arrears." § 1284. Payment assessment after loss. § 1285. Right to have assessment- made. § 1286. No authority to receive less than the amount of assessment duo. § 1287. Assessments and dues : safety fund : reserve fund. § 1288. Refusal to pay assessments: right to have fund distributed. § 1289. Application or appropriation of funds by society or lodge. § 1290. Necessity for assessment must exist. § 1291. Prescribed mode must be followed in levj'ing assessment. § 1292. Who empowered to levy assessments. § 1293. Notice of intention to assess not necessary for directors' regular meeting. § 1294. Power of directors to assess cannot be delegated. § 1295. When power to assess may be delegated : exceptions to rule. § 1296. Assessment by illegally elected board. § 1297. Intentional omission of members. § 1298. Assessments where risks are classified. CONTENTS Ixiii § 12D9. Assessment invalid of certificate changed to life policy with regular premiums. § 1300. When assessment may be made. § 1301. Assessment to pay unearned premium. § 1302. Slight errors do not invalidate : material errors or omissions do. § 1303. Second assessment of note. § 1304. Assessment: new policy substituted for old one through fraud. § 1305. Levying assessments : amount : inequality. § 1303a. Right to increase assessments. § 1306. Examination and allowance of claims. § 1307. What may be included. § 1308. What need not and may not be included. § 1309. Anticipated losses. § 1310. Regularity of assessment must be affirmatively shown: allegation and proof : evidence. § 1311. Defenses to actions : assessments : premium notes. § 1312. Statute of limitations: assessments. CHAPTER • XLIII. NOTICE— PREMIUMS, ASSESSMENTS, AND DUES. § 1320. When notice must be given : generally. § 1321. When notice need not be given : generally. § 1321a. Notice necessary when insured entitled to profits or reduction of premiums. § 1322. Failure to give written notice : tender unnecessary. § 1323. Statutory notice. § 1321. Stipulation contrary to statute- requiring notice: waiver. § 1324a. Waiver of notice in other cases. § 1325. Constitutionality of statute requiring notice. § 1325a. Statutory notice: place of contract. § 1325b. Statutory notice: effect of repeal of statute. § 1326. To what class of policies New York and other statutes apply. § 1326a. Same subject: paid-up policy. § 1327. Stipulation in guaranty fund note as to notice. § 1328. Sufficiency of notice. § 1329. Sufficiency of statutory notice. • § 1330. Authorities holding notice sufficient. § 1330a. Right to notice: effect of subsequently enacted by-law. § 1331. To whom notice should be given. § 1331a. Notice to assignee who had contracted to pay assessments: lia- bility of assignee for failure to pay same. Ixiv CONTENTS § 1332. Ccoses holding that usage to send notice necessitates giving notice. § 1333. Authorities holding the contrary doctrine. § 1334. Same subject : conclusion. § 1335. Personal notice: whether notice must be actually received. § 1336. Service by mail. § 1336a. Same subject : validity of provisions as to. § 1336b. Same subject : last known address : change of address. § 1337. Notice wrongly addressed. § 1338. Notice by publication. § 1338a. Same subject : validity of provisions as to. § 1339. Computation of time. CHAPTER XLIV. PREMIUMS, ETC.— EXCUSES, WAIVER AND ESTOPPEL. § 1345. Whether war excuses nonpayment of premium. § 1346. What excuses nonpayment of premiums and assessments : gen- erally. § 1347. Excuses : omitting customary statement : amount unknown. § 1348. Excuses : change of agency without notice. § 1349. Excuses: insolvency: company ceasing to do business. § 1349a. Acts ultra vires corporation's powers no excuse. § 1350. Act of God : sickness : death : accident : insanity : no excuse : ex- ceptions. § 1351, Death of agent : failure to find agent : agent's neglect or misrep- resentations no excuse. § 1352. What is not an excuse : absence of assured : lapse of policy by accident: other instances. § 1353. Waiver of punctual payment of premiums, assessments, and dues: estoppel : generally. § 1354. Waiver and estoppel: prior parol agreements as to payment of premiums, etc. § 1355. Waiver and estoppel : subsequent parol agreements as to pay- ments and premiums, etc. § 1356. Payment of premiums : waiver and estoppel, custom, acts, etc. § 1357. Waiver: holding overdue premium notes and demanding payment. § 1357a. Holding overdue notes and requesting payment. § 1358. Custom not to treat nonpayment of premium notes as forfeiture. § 1359. Enforcing payment of note after forfeiture. § 1360. Assured must liave known of custom. § 1361. Payment of assessments: waiver and estoppel, custom, acts, etc. § 1362. Waiver of prepayment. CONTENTS Ixv § 1363. Where receipt of premiums and assessments is an act of favor. § 1364. Waiver and estoppel: acceptance and retention of overdue pre- miums and assessments : cases. § 1365. Right or obligation to accept and retain overdue premium or assessment : no waiver. § 1366. Unconditional offer to accept overdue premium: tender. § 1367. Conditional acceptance of overdue premiums, etc. § 1368. When custom to receive overdue payments may be availed of by insured : general custom : proof. i § 1369. Waiver of forfeiture generally by receipt of overdue premiums, assessments and dues. § 1369a. Demand or recjuest for payment. § 1369b. Express waiver: knowledge of assured. § 1370. Waiver by collecting assessments on notes or by collecting or suing on notes. § 1371. Whether levy and receipt of subsequent assessments and dues waive forfeiture. § 1372. Same subject : authorities holding a waiver. § 1373. Same subject : authorities contra. § 1374. Waiver: custom: acceptance of premium or assessment after loss or death. § 1375. W^aiver: payment of premium note: generally. § 1376. Waiver by failure to declare a forfeiture. § 1377. Failure to insist promptly on payment of premium note. § 1378. Waiver: collecting loss: adjustment and allowance of loss. § 1379. Waiver by recognition of the policy as in force. § 1380. Waiver by giving credit for the premium. § 1381. Defense that waiver induced by fals.e representations. § 1382. Waiver by agents : subordinate lodges. § 1383. Waiver by assured of exemption from assessment : illegality of assessment. § 1384. Waiver by assured of defective notice and service of same. CHAPTER XLV. RETURN OF PREMIUMS AND ASSESSMENTS. § 1390. Principles governing right to return of premiums where risk baa not attached. § 1391. Stipulation for return of premium: generally. § 1392. Stipulations: statutes governing the right to a return of the premium. Ixvi CONTENTS § 1393. Return of proportionate premium: surrender, rescission, cancela- tion, etc. § 1394. Stipulation may entitle to proportionate return of premium, al- though there be a partial or total loss of goods, etc.: sailing with convoy. § 1395. Where underwriter discharged before performance of condition on which return of proportionate premium based. § 139G. Where condition satisfied but underwriters discharged from loss: pi-emiums returnable although loss by excepted risk. § 1397. No return if risk has attached. § 1397a. Election to refund premium or pay insurance: waiver. § 1398. Premium returnable where policy ab initio void: generally. § 1399. Insurance contract with infant: return of premium. § 1400. Premium returnable where contract voidable or void for mis- representations or fraud of assurer. § 1400a. Premium returnable where contract voidable or void fur misrep- resentation or fraud of assurer's agent. § 1401. Premium returnable wlien paid by mistake of facts: policy based upon mistake: mistake of law. § 1401a. Return of premium where policy does not conform with agree- ment. § 1401b. Premium not returnable: voluntary payments under claim of right. § 1402. Whether premium returnable where foreign company has not complied with state laws. § 1403. Return of premium: breach of warranty. § 1404. Premium returnable for misrepresentation or concealment of assured without fraud. § 1404a. Same subject : knowledge of insurer's agent where both parties act in good faith. § 1403. Premium not returnable: policy illegal: parties in pari delicto. § 1405a. Return of premiums: ultra vires contracts. § 1406. Premium not returnable: policy void for fraud or material misrepresentations of assured or his agent. § 1407. Premium not returnable : material alteration of policy. § 1407a. Return of premiums: demand for additional medical examination. § 1408. Return of premium: breach of contract by assurer. § 1408a. Same subject : transfer of assets to another company : winding up : reorganization : change of insurance plan. § 1408b. Same subject : insolvency. § 1408e. Same subject: insolvency of foreign nuitual fire insurance com- panies. § 1408d. Same su!)jeet : insolvency of title insurance company: credit in- surance company. § 1408e. Same subject: discrimination as to rates: rebates. § 1408f. Same subject : reduction of amount of insurance. CONTENTS Ixvii § 1408g. Same subject: increase of assessments. § 1408h. Same subject: reinsurance. § 1409. Return where note is given. § 1409a. When no return where note is given. § 1410. Return for want of interest. § 1410a. Same subject: when no return. § 1410b. Return where insurance without consent of insured. § 1410c. Same subject: statutes, § 1410d. Payment by check of municipal corporation: misappropriated funds : recovery back. Proportionate return: overvaluation: short interest. Whether premium returnable for overinsurance by several in- surers: pro rata contribution. Same subject: opinions of the text-writers. Same subject: the case of Fisk v. Mastermaji. Same subject: Code provisions. Same subject: the rule as to double insurances. Same subject : summary and conclusion. Stipulations for return of premium: prior and subsequent in- surances : the American clause. When no return in case of several policies. Premium not returnable when risk entire. Premium returnable when risk divisible. Return of premium: effect of usage: review of authorities. Same subject: conclusion. Stipulation for return of premium: "sold or laid up." Return of premium: retention of a certain per centum by the insurer. Return of premium: insurance by voluntary agent. Recovery back of premium from agent. Who may recover back premium. § 1428a. Same subject: beneficiaries. § 1429. Return of premium: assignment: right of assignee. § 1429a. Tender or return of premium as prerequisite to defense or for- feiture. § 1429b. Return or tender of premiums as affecting waiver. § 1430. Return of premium : miscellaneous authorities. § 1411. § 1412. § 1413. § 1414. § 1415. § 1416. § 1417. § 1418. § 1419. § 1420. § 1421. § 1422. § 1423. § 1424. § 1425. § 1426. § 1427. § 1428. Ixviii CONTENTS TITLE VII. ATTACHMENT AND DURATION OF RISK. CHAPTER XLVI. ATTACHMENT AND DURATION OF RISK. § 1436. Attachment and duration of risk: generally. § 1437. ''Receipt' and acceptance" of application and fee. § 1438. Countersigning policy: death before. § 1439. Attachment and duration of risk : parol contract. § 1440. Necessity of fixing duration of the risk. § 1440a. Where duration of risk not specified. § 1440b. Attachment of risk by waiver of stipulation as to. § 1441. Attachment and duration of risk: date of contract. § 1441a. Date of policy : "issuance" of policy. § 1442. Attachment and duration of risk: the date: reinsurance. § 1443. Attachment and duration of risk: insurance retroactive. § 1443a. Attachment and duration of risk: fidelity guaranty insurance: credit guaranty insurance. § 1444. Attachment of risk: time policy may be retroactive. § 1445. Risk may attach although mistake in description of property. § 1446. Attachment and duration of risk: computation of time. § 1447. Attachment of risk: goods shipped "between" two dates. § 1448. Attachment and termination of risk: necessity of an insurable interest. § 1449. Termination by change of risk: breach of condition. § 1450. Policy may terminate by its own limitation or by actual loss or death. § 1451. Where attachment of risk not postponed by condition as to rejjair of vessel. § 1452. Attachment of risk: de facto and de jure existence of corporaliuii : compliance with statutory requirements as to organization, etc. § 1453. Duration of risk : expiration of charter during life of policy. § 1454. Attachment and determination of risk: insolvency: dissolution. § 1455. Dissolution : reserve fund. § 1456. Termination of contract by expulsion of member of mutual benefit society. § 1457. Termination by withdrawal of member of mutual benefit society. CONTENTS • Ixix § 1438. Reinstatement by waiver not by new contract. § 1439. Renewal of policy : amount must be fixed. § 1460. Presumption that renewal policy is like original. § 1461. Misrepresentations and warranties in application for revival. § 1462. Immaterial oral representations not inducing risk: renewal valid. § 1463. Where renewal is on same terms and conditions as old contract. § 1464. Renewal : cases. § 1465. New policy may be only a renewal. § 1466. Renewal or revival may be conditional. § 1467. Agreement or waiver necessary to renewal or revival after for- feiture. § 1468. Agreement to renew not within statute of frauds. § 1469. Renewal need not be under seal. § 1470. Agent's agreement to renew: delivering renewal receipt. § 1470a. Renewal: fidelity guaranty insurance: credit guaranty insurance. § 1471. Right to reinstatement may pass to beneficiary. § 1472. Reinstatement of member. § 1472a. When no reinstatement effected. § 1473. Suspension of risk. § 1474. Duration of risk: effect of war. CHAPTER XLVII. ATTACHMENT AND DURATION OF RISK— THE SHIP. § 1483. Attachment and duration of risk on ship: generally. § 1484. Detention by embargo after voyage commenced. § 1485. Attachment of risk: vessel building: "W^aterborne :" "safely launched," etc. § 1486. Attachment of risk "at and from" home port. § 1487. Prior parol agreement as to time of commencement of risk can- not change policy. § 1488. Attachment and duration of risk where voyage insured is changed or abandoned. § 1489. Attachment and duration of risk: time policy. § 1490t Attachment and duration of risk: mixed policy. § 1491. Intent to insure vessel on time irrespective of place where she may be. § 1492. Time specified for continuance of risk after arrival on voyage insured. § 1493. Attachment and duration of risk under time policies, the voyage being described. Ixx CONTENTS § 1494. Attachment of risk "at and from : " delay in port should not be unreasonable. § 1495. Attachment of risks: sailing on voyage: departure. § 1496. Attachment of risk "at and from" foreign port. § 1497. What is sufficient repair and seaworthiness for ship to lie in safety "at" outport. § 1498. Whether ri.^k attaches upon first arrival "at" or after vessel has been moored twenty-four hours, etc. § 1500. Same subject : cases and opinions of the courts. § 1501. Same subject : attachment and duration of risk "at and from" island, etc. § 1502. Usage may suspend attachmeiit of risk "at and from" bej'ond time of ship's first arrival. § 1503. Stipulation that risk commence "at and from" on termination of cruise and preparing for voyage. § 1504. Opinions of the courts as to attachment of the risk in the preceding cases. § 1505. Meaning of the word "port" generally: "port risk." § 1505a. "Port or ports," "place or places," construed. § 1506. Duration of risk: time policies "at sea:" "on a passage." § 1507. Attachment risk "at and from" vessel lying long in foreign port or stated to be there in safety: where she now is. § 1508. Homeward policy "at and from:" general designation of ports: case of island or district. § 1509. Homeward policy "at and from:" specific designation of port or place. § 1510. Attachment of risk "at and from" foreign port : ownership ac- cjuired while vessel lying in port. § 1511. "At and from" any one of several ports: voyage from one port to another before risk attaches. § 1512. Attachment of risk "from" a port. § 1513. Attachment and duration of risk: entirety of risk. § 1514. The words "thence" or "from" used in reference to intermediate ports. § 1515, "At and from" to a port named and "a market." § 1516. Commencement of voyage insured to specified port with liberty to call at, etc. CHAPTER XLVIII. CONTINUANCE AND TERMINATION OF RISK— THE SHIP. § 1523. Continuance of risk: liberty to "touch and stay" etc.: interme-^. diate voyage : usage of trade. CONTENTS Ixxi § 1524. Termination of risk on ship to island, with liberty of several ports or to port or ports of discharge. § 1525. Insurance to several successive ports of discharge : election of port. § 1526. Continuance of risk where completion of voyage insured is com- pelled to be temporarily delayed. § 1527. Risk continues although vessel be compelled to stop without the harbor by municipal or like regulations : quarantine. § 1528. Ship insured to designated port without provision as to duration of risk after arrival. § 1529. Insurance "at and from" a port: several ports within one clas- sification. § 1530. Termination of risk : time policy. § 1531. Risk terminates by abandonment or change of voyage insured. § 1532. Risk terminates in case of island or district at first port of dis- charge, etc. §^1533. Continuance of risk while loading at specified port. § 1534. Continuance of risk on fishing voyage : part of cargo arriving by another ship. § 1535, Continuance of risk on furniture, etc., of ship. § 1536. Putting into port other than that of original destination and dis- charging small part of cargo. § 1537. Moored twenty-four hours in good safety. § 1538. What constitutes being moored twenty-four hours in good safety. § 1539. Limiffltion of the rule. § 1540. When vessel has arrived. § 1541. Ves.«5pl may have arrived and yet never have been moored in saf*»ty. § 1542. Mere temporary mooring not sufficient. § 1543. Degree and kind of physical safety required. § 1544. Degree and kind of safety required : seizure, etc. § 1545. Ship moored at outer harbor or outside place of usual discharge and unable to enter. § 1546. Mere liability to damage does not of itself prevent the ship from being in safety. § 1547. Port of discharge : last port of discharge. § 1548. Until she shall arrive in safety in any port or harbor of a partic- ular place. § 1549. Risk may be terminated by substituting another port of delivery. § 1550. To port or ports of discharge : usage of trade to keep cargo on board for a time after arrival. § 1551. Ship insured to one or two ports in alternative. § 1552. Termination of risk by undertaking distinct voyage before com- mencing voyage insured. § 1553. Loss incurred before expiration of risk : expense incurred there- after to repair injury. Ixxii CONTENTS § 1554. Mutual insurance association : termination of risk : nonpayment of contribution. § 1555. Expiration by limitation of "binding" memorandum. CHAPTER XLIX. ATTACHMENT AND DURATION OF RISK ON GOODS. § 1562, Attachment and duration of risk on goods : generally. § 1563. Insurance on goods may be retrospective. § 1564. Risk will not attach until assured acquires an interest in the goods : excejDtion. § 1565. Goods on shore in warehouses: on the wharf awaiting shipment: for trading voyages: temporarily landed in government ware- houses : landed for transportation to port : quarantine. § 1566. "Safely landed" defined and construed. § 1567. "Safely landed:" risk of craft while waiting for transshipment. § 1568. Goods "to be shipped :" time policy. § 1569. Goods in transit in boats or lighters, etc. : usage : attachment and termination of risk. § 1570. Attachment of risk: substituted goods: goods laden at interme- diate port: trading voyages. § 1571. Where goods subsequently loaded at intermediate port are not substituted goods. § 1572. Outward goods and proceeds home : attachment risk. § 1573. "At and from :" undisposed of outward cargo may be protected by the words "wheresoever loaded." § 1574. "At and from :" outward cargo to be considered homeward interest, etc.: loading "at." § 1575. Laden or to be laden between designated points. § 1576. Shipments to be subsequently declared : risk attaches in order of shipment: usage to correct declaration. § 1577. The insurance applies to tlie first voyage or the one commenced. § 1578. "At and from" a specified port : commencement of the risk from loading, etc. : what is port of loading. § 1579. Cases relied on in support of the last rule. § 1580. Construction of jjolicy may warrant loading elsewhere than "at" designated place. § 1581. Attachment of risk on goods "at and from." § 1582. "At and from" on goods: several ports within one legal classifi- cation. § 1583. Goods on board ship or ships : certain ports named : attaches at port where loaded, etc. CONTENTS ' Ixxiii § 1584. Unloading and reloading goods to make vessel seaworthy or for other purposes. § 1585. Attachment and duration of risk on goods: abandonment and change of voyage insured. § 1580. Homeward policy "at and from:" case of island or district: from the loading aboard ship "at" port or ports. § 1587. Duration of risk: liberty to make port or ports: insurance to several ports, island or district. § 1588. Attachment of risk from a port from loading: duration of risk: usage. § 1589. To specified port : anchoring outside of harbor. § 1590. Till safely landed: final or last port of discharge. § 1591. Goods partly landed : whether the risk is entire. § 1592. Within what time goods must be landed. § 1593. Termination of risk: voyage stopped or delayed by ice: inland navigation. § 1594. Risk terminates where goods are transshipped without necessity or agreement. § 1595. Risk does not terminate where goods transhipped from necessity. § 159G. Risk does not terminate when transshipment is by agreement. § 1597. Termination of risk : outfits of whaling voyage. § 1598. Till arrival of goods to a market at final port of discharge. § 1599. Termination of risk by consignee or owner taking possession : consignees : lighters. CHAPTER L. ATTACHMENT AND DURATION OF RISK ON FREIGHT. Attachment and duration of risk on freight : generally. The case of Tonge v. Watts. Risk on freight will only attach from loading of the vessel where so stipulated. Risk on freight will attach only on goods laden where no contract for the goods exists. Risk on freight attaches under valued policy where part only of goods are laden. Risk on freight under valued policy may attach only proportion- ately to goods and freight actually at risk. Risk attaches on freight if cargo purchased or contracted for, and both ship and cargo are ready. Risk on freight will not attach where loss is incurred on voyage other than that insured. § 1G06. § 1607. § 1608. § 1609. § 1610. § 1611. § 1612. § 1613. Ixxiv CONTENTS § 1614. Risk on froight "at and from:" homeward voyage. § 1615. Valued policy on freight outward and homeward covers each voyage. § 1616. Freight where voyage insured consists of distinct or successive pas- sages: valued policy. § 1617. Risk terminates where freight is earned: freight partly earned. § 1618. Risk on freight terminated by assured accepting goods at inter- mediate port. § 1619. Risk on freight against total loss only not terminated by delivery of some goods at intermediate port. § 1620. Termination of risk on freight at port or ports of discharge. § 1621. General rule as to attachment of risk on freight : chartered freight. § 1622. Extension of the rule last stated. § 1623. Attachment of risk where vessel is being fitted at place of loading to receive contraeted-for cargo. § 1624. Risk on chartered freight attaches by inception of voyage even in ballast to port of loading. § 1625. Contract stipulation may supersede the abov* rule. § 1626. Where there is a second charter party at and from outport. § 1627. Outward and homeward freight where contract for freight is entire. CHAPTER LI. RESCISSION AND CANCELATION. § 1634. Rescission and cancelation generally. § 1634a. Construction of cancelation provision against insurer. § 1635. Statutory provisions relating to rescission or cancelation. § 1635a. Same subject: mortgagee included and consent of necessary. § 1636. Rescission or cancelation before contract delivered or finally com- pleted. § 1637. Rescission or cancelation by consent. § 1637a. Action for breach of agreement to surrender and cancel lost policy. § 1638. Agreement to cancel marine risk need not be in writing. § 1639. Option reserved by company to cancel. § 1640. Cancelation for nonpayment of premiums or assessments, or other breach of condition. § 1640a. Cancelation or rescission for misrepresentations, breach of war- ranty or fraud. § 1641. Cancelation where policy is assigned. § 1642. Effect as to cancelation of repeal of charter. CONTENTS Ixxv § 1643. Cancelation by mutual company: authority of directors or secre- tary. § 1644. Rescission and cancelation: insolvency: appointment of receiver: teraiination of business and transfer of assets. § 1644a. Cancelation: insolvency: appointment of temporary receiver. § 1645. Cancelation by receiver : statutory provision : certificates of in- debtedness. § 1646. What acts do not effect a cancelation : instances. § 1646a. Surrender and cancelation : guardian and ward : infant. § 1647. Rescission by assured and surrender of policy. § 1648. Cancelation by request of assured under terms of policy or statute. § 1648a. Surrender and cancelation by person insane or mentally incompe- tent. § 1649. Right to reject policy not of class ordered. § 1649a. Surrender and cancelation where policy does not conform to appli- cation. § 1650. Rescission and surrender: mutual company: withdrawal of mem- ber. § 1650a. Cancelation : unincorporated association : withdrawal of member. § 1650b. Surrender and cancelation : effect of death of assured. § 1651. Right of assured to surrender life policy dependent upon bene- ficiary's consent. § 1652. Proposition to cancel must be accepted or declined as a whole if indivisible. § 1653. Want of insurable interest as a ground of rescission or cancela- tion. § 1654. Rescission or avoidance of com}-)romise or release. § 1655. Right of agent to rescind or cancel : notice of cancelation to agent or broker. § 1655a. Cancelation: when other insurance or substituted policy does not attach. § 1655b. Cancelation : when other insurance or substituted policy attaches. § 1656. Cancelation by mistake of agent. § 1657. Partner's consent to cancelation or substitution binds firm. § 1658. Release by part of the insured parties. § 1659. Wrongful cancelation or termination of contract by assurer. § 1659a. Rescission or cancelation : increase of assessments or reduction of policy amount. § 1660. Strict compliance with stipulation as to rescission or cancelation required unless waived : wlien stipulation not binding. § 1661. Rights relating to rescission or cancelation must be exercised with- in a reasonable time. § 1()()2. Company cannot cancel when loss is imminent. § 1663. Cancelation and rescission after loss or forfeiture. § 1664. Cancelation in equity after iiolicy lias become void or inoperative. Ixxvi CONTENTS § 1665. May the policy be terminated eo instanti on notice: reasonable time. § 1665a. Same subject: specified time must intervene: computation of time. § 1665b. Entire or divisible contract : notice. § 1666. Cancelation of parol contract: notice. §1667. Cancelation: notice to insurer. § 1668. Cancelation: notice to the assured: to mortgagee: to one of several. § 1668a. Notice by publication: decree of foreign court. § 1669, Cancelation : notice by mail must be received. § 1669a. When mailing notice and unearned premium to foreign company sufficient. § 1669b. Notice of registered letter: when insured not put on inquiry. § 1670. Cancelation': company must give notice: sufficiency and service of same. § 1670a. Same subject : when notice sufficient. § 1670b. Same subject: when notice insufficient. § 1671. Cancelation: company must return or tender unearned premium. § 1672. Cancelation: what is not a sufficient payment or tender of the unearned premium. § 1673. Cancelation: when actual payment or tender of unearned premium unnecessary. § 1673a. Cancelation: waiver. § 1673b. Same subject : surrender of policy upon assurer's request. § 1674. When equity will rescind or cancel: generally. § 1675. When equity will rescind or cancel : cases. § 1676. When equity will not rescind or cancel : cases. § 1677. Equity may rescind cancelation made by mistake. § 1678. Where equity will refuse to cancel after loss or death. § 1679. When equity will cancel after loss or death. § 1680. Same subject: conclusion. § 1680a. Effect of cancelation upon liability. § 1681. Proof as to cancelation or rescission. § 1682. Whether question of rescission or cancelation is one of law or fact. CONTENTS Ixxvii TITLE VIII. SUBJECT OF INSURANCE. CHAPTER LIT. DESCRIPTION OF PARTIES AND SUBJECT MATTER. § 1689. Description of parties. § 1690. Description of the property : general rule. § 1691. Extent of interest need not be specifically described. § 1692. Same subject: carriers: shipowner: consignee: undivided inter- est : assignee. § 1692a. Same subject : bailees, or agents. § 1693. Same subject: joint owners: partners. § 1694. Same subject : trustee : tenant by curtesy : administrator : execu- tor : agent : charterer. § 1695. Same subject: mortgagor and mortgagee: reinsurer. § 1696. Goods shipped by carriers: owner's interest covered. § 1697. Specific description, how far exclusive: the terms "including" and "consisting of." § 1698. When specific designation of interest or property is required. § 1699. Same subject : particular words and phrases : instances. CHAPTER LIlI. DESCRIPTION OF PROPERTY. § 1705. Accounts : evidences and securities of property. § 1706. Advances: advancements by charterer and master: advances on freight. § 1707. "All or either :" "both or either." § 1708. Alterations and repairs of property. § 1709. Banknotes and bills of exchange. § 1710. Bottomry and respondentia. § 1711. Captor's interest : prize of war. § 1712. Cargo. § 1713. Contingent or special interest in property of others. § 1714. Contraband of war: belligerent and neutral property. § 1715. Curiosities: scientific cabinets and collections. Ixxviii CONTEXTS § 1716. Equitable interest may be covered by the term "property." § 1717. Freight must be insured eo nomine. § 1718. Freight : right reserved by owner and vendor : whether such interest covered by insurance on freight. § 1719. Freight: wiiether charterer may insure eo nomine: difficult to formulate a rule. § 1720. Same subject : eases. § 1721. Same subject : opinions of the text-writers. § 1722. Same subject : conclusion. § 1723. Freight : designation of shipowner's interest. § 1724. Fi'eight : other interests. § 1725. Goods, wares and merchandises: cargo. § 1726. Goods laden on deck. § 1727. Goods, wares and merchandise "in trust or on commission :" on consignment. § 1728. Clause "in trust or on commission" may be limited and controlled by other words in the policy. § 1729. Goods, etc.: "sold but not delivered:" "sold but not removed." § 1730. Goods, etc. : "in trust or on commission :" on storage : where policy requires specific declaration or separate insurance. § 1731. Where policy stipulates specific insurance of goods "in trust" and specifies what interests those words cover. § 1732. Goods and merchandise : shifting and successive cargoes. § 1733. Goods or merchandise : shifting and successive goods : after ac- quired property : fire risks. I 1734. What goods are covered maj- be determined by custom between the parties. § 1733. What goods are covered may be determined bj- known usage of a particular place. § 1736. Goods or merchandise to be described by indorsement : approval of risks: goods to be thereafter declared and valued: marine risks. § 1737. Gunpowder : marine risk. § 1738. House of building: dwelling house. § 1739. Houses and buildings: connected structures and additions. § 1740. Household furniture: hotel furniture. § 1741. Live stock : marine risks. § 1742. Locality important in fire risks. § 1743. Locality : property "contained in." § 1744. Locality : property "contained in" connected or adjoining build- ings : new buildings substituted for old. § 174o. Locality: "contained in:" goods in dift'erent parts of building. ' § 1746. Locality: "contained in:" removal of goods from a specified loca- tion : permanent removal. § 1747. Locality: temporary removal of property from specified location. § 1748. Locality: i^roperty on premises. CONTEXTS Ixxix Locality: premises owned and occupied: property on wharf. Locality: occupation, ownership, or use of premises acquired sub- sequently to issuing policy. Manufactories : factories : mills. Materials not included in "building:" unfinished vessel. Medals: models: specific description : standard policy. Money, specie, bullion, coin, treasure, jewels. Paintings : patterns : specific description : standard policy. Passage money. Personal effects : money, jewelry, etc. : master's effects. Personal property: wearing apparel: master's clothes: baggage. Plate : specific description : standard policy. Profits and commissions. "Property." Provisions and provender under marine risk. Scientific cabinets and collections: sculpture: specific descrij:)- tion : standard policy. Ship. Ship's stores and outfits: what ship includes. Ship's boat or launch. Ship: character or kind, of vessel: rating. Ship's name important: master's name. Change of ship or master or name of ship. Shiji's enrolment as affecting validity of policy. Ship as privateer or letter of marque. Ship or ships. Shij) or ships: right to apply policy in case of different shipments and losses. § 1774. Stock of goods, etc., in manufacturing: stock in trade of mechanic : fire risk. § 1775. Stock in trade : goods or merchandise for sale : fire risks. § 1776. Stock in trade: stock in building: owner and goods of others. § 1777. Stock in trade, etc., may cover property specifically excluded or the keeping of which is prohibited. § 1778. Whaling and fishing voyages : outfits : stores, catchings, etc. CHAPTER LIY, CONCEALMENT— MARINE RISKS. § 1786. Concealment in marine insurances: generally. § 1787. Concealment arising from negligence, accident, mistake, etc., avoids. § 1788. Concealment: voluntary ignorance will not excuse. § 1749. § 1750. § 1751. § 1752. § 1753. § 1754. § 1755. § 1756. §^ 1757. § 1758. § 1759. § 1760. § 1761. § 1762. § 1703. § 1764. § 1765. § 1766. § 1767. § 1768. § 1769. § 1770. § 1771. § 1772. § 1773. Ixxx CONTENTS § 1789. A specific and full disclosure is required, not an evasive one or one in general terms. § 1790. Concealment is referred to the time of making the contract. § 1791, What constitutes a "material fact :" must it be a fact material to the risk. § 1792. Same subject: opinions of the text-writers. § 1793. Same subject : conclusion. § 1794. Whatever affects the state and condition of the ship at the time is material. § 1795. Facts and information affecting the condition or safety of the ship on her voyage : subsequently occurring events. § 1796. Suspicions: rumors: reports: apprehensions: opinions: general intelligence. § 1797. Same subject: cases. § 1798. Facts implied from, or underwriter put on inquiry by informa- tion given : waiver. § 1799. Information, belief, or expectation of third person. § 1800. Failure to communicate a fact which would show known informa- tion is material. § 1801. Where intelligence or report proves untrue. § 1802. Intelligence, reports, or rumors of loss. § 1803. Whether time of sailing must be disclosed: opinions of text- writers. § 1804. Same subject : cases. § 1803. Same subject : the general rule. § 1806. Underwriter i^resumed to know causes which occasion natural perils. § 1807. Kestrictions on commerce: commercial foreign regulations. § 1808. UndeiTvriter presumed to know causes which occasion political peril. § 1809. Degree of publicity which will bind underwriter with knowledge of material fact. § 1810. Same subject : the English rule. § 1811. Same subject : the case of Bates v. Hewitt. § 1812. Same subject: opinions of Mr. Arnould and Mr. Maclachlan. § 1813. Usage need not be disclosed. § 1814. Exceptions to last rule. § 1815. Ownership of vessel need not be stated when not material and insurance is on cargo. § 1816. Nature and condition of cai'go. § 1817. Cases where entire contract is not vitiated, but only that part relating to risk concealed. § 1818. Whether it need be disclosed that goods are contraband: belliger- ent risks : neutral : national character. CONTENTS Ixxxi § 1819. Presumption concerning underwriter's knowledge of ports and places. Repairs consequent upon outward voyage. Disclosure of interest in ship or goods. Must an equitable title be disclosed. Facts not within assured's knowledge : degree of diligence re- quired of assured. Need not disclose matters of express or implied warranty. Whether information which falsifies a warranty must be disclosed. Mode of construction of vessels. Destination of vessel : port or ports. By-gone calamities : previous condition of ship : latest intelligence. That goods are to be stowed on deck need not be disclosed. Particular language of bill of lading. Excepted risks. Ship's papers: false clearance, etc. Whether the fact that letters of marque are on board need not be disclosed. Ship's true port of loading. Other matters not necessary to be disclosed. Other matters necessary to be disclosed. Where inquiries are made. CHAPTER LV. CONCEALMENT IN OTHER THAN MARINE RISKS. § 1844. Concealment in other than marine risks: absence of inquiries: fraud : materiality : other tests : generally. § 1845. English decisions. § 1846. Assured's knowledge : nondisclosure aifecting increase of risk or rate. § 1847. Assured's knowledge: concealment arising from negligence, acci- dent or mistake, etc. § 1848. Assured's knowledge : his belief as to materiality of facts. § 1849. Same subject : conclusion. § 1850. Insurer's knowledge. § 1851. Insurer's knowledge: constructive knowledge from examination by surveyor. § 1852. Insurer's knowledge : use of insurance map in fire risks. § 1853. Insurer's knowledge : public records of title. § 1854. Insurer's knowledge : political perils. § 1854a. Knowledge of insurer's agents. § 1820 § 1821, § 1822, § 1823 § 1824. § 1825. § 1826. § 1827, § 1828. § 1829. § 1830. § 1831, § 1832. § 1833. § 1834. § 1835. § 1836. § 1837. Ixxxii CONTENTS • § 1855. A specific and full disclosure is required, not an evasive one. § 1856. Concealment must l)e referred to I he time of making the contract and not to a subsequent event. § 1857. Disclosure of assured's interest. § 1858. Same subject : exception to rule. § 1859. Must an equitable title be disclosed. § 1860. Unusual or extraordinary circumstances of peril to which property is exposed. § 1801. Same subject : distinctions to be observed. § 1862. Apprehensions that property is exposed to danger: suspicions, rumors, opinions, and speculations. § 1863. Where insured's belief, apprehension, or fear of danger is the moving cause in effecting insurance. § 1804. When moral character of assured may become material : rein- surance : moral risk. § 1865. Belief that property has been destroyed. § 1806. Facts implied fi-om or assurer put on inquiry by information given : waiver. § 1867. Whatever affects the state or condition of the property at time: materiality: facts affecting risk or premium. § 1868. What constitutes a material fact: must it be material to the risk: facts affecting risk or premium as test of materiality. § 1869. Inquiries. • § 1870. Inquiries: no inquiries: limited inquiries: questions in application unanswered or incompletely answered: waiver. § 1871. Same subject continued. § 1872. Same subject : distinctions to be observed. § 1873. When subsequent reception of premium no waiver of concealment. § 1874. Concealment of same facts from other insurers. § 1875. Other matters: Code provisions, etc.: general statements. CHAPTER LVI. REPRESENTATIONS AND MISREPRESENTATIONS. § 1882. Representations: misrejiresentations: distinction between repre- sentations and warranties: generally. § 1883. Representations defined. § 1884. Misrepresentation defined. § 1885. Representation may be oral or written. § 1886. Representation precedes the contract. § 1887. Representation is collateral to but no part of the contract. CONTENTS Ixxxiii § 1888. Same subject : the view that representations are a part of the contract. § 1889. What weight should be given the theory that representations are a part of the contract. § 1890. Statements "Avhich are part of contract may sometimes be repre- sentations by express stipulation, or implied : construction. § 1891. When statements in application are representations: references to application : generally. § 1892. Test of materiality of representation: facts affecting risk or premium. § 1893. Re])resentation only relates to material facts except it be other- wise stii^ulated. § 1894. False representations in regard to material matters avoid contract. § 1894a. Same subject : presumptions. § 1895. Misrepresentations or false rep'resentations must be of material facts. § 1896. Same subject: where statement is intentionally false: effect of the fraud as to materiality of fact to risk : burden of proof. § 1896a. Material false representations vitiate binding slip. § 1897. Where positive representation is false and material fraud need not be proven. § 1898. Representation may be of facts actually material to the risk: question for jury. Representations may be of facts in no way material to the risk. Representation may be of facts intentionally false: when material. Positive statement of fact which assured does not know to be true. Representations through mistake, ignorance, or negligence. Cases qualifying the last rule. Representations : expectation, belief, or opinion, without fraud. False representations owing to fault, etc., of agent : knowledge of agent : waiver and estoppel. Statements founded on information from agent. Positive statements founded on information derived from others. Statements not positive based on information from others. Positive statement defining time of commencement of risk. Facts actually material but not relied on by insurer. Matters of description or facts relating to property. § 1912. Facts rendered material by stipulation: stipulation to be true and basis of contract: statement stipulated. § 1913. Statement limited as to its effect by assured. § 1914. Facts stated in answer to inquiries. § 1914a. Same subject: presumptions: false answers. § 1914b. Same subject : where answer incomplete or inaccurate. § l!)14c. Where no inquiries made. § 1914d. Statements in other applications. § 1899. § 1900. § 1901. § 1902. § 1903. § 1904. § 1905. § 1906. § 1907. § 1908. § 1909. § 1910. § 1911. Ixxxiv CONTENTS § 1914e. Adoption of original insured's representations by assignees on renewal. § 1915. When the stipulated materiality of statements is qualified: war- ranties thereby construed as representations. § 1915a, Qualified statements continued: best of assured's knowledge and belief: other qualifications. § 1915b. Same subject : fidelity guaranty insurance. § 1916. Statements under statutory provisions. § 19i7. Promissory representations : ^statement of proposition. § 1918. Opinions of text-writers as to promissory representations. § 1919. Same subject : eases and opinions. § 1920. Same subject: conclusion. § 1921. To what time the representation refers. § 1922. Representation falsified in the future does not operate retro- actively. § 1923. Representations true when made, but untrue when contract com- pleted. § 1924. Representation must be substantially true. § 1925. Loss need not be connected with misrepresentation to avoid contract. § 1926. Misrepresentations to other insurers. § 1927. Representation must not be evasive. § 1928. Statements volunteered and irrelevant : iri'esponsive answers. § 1929. Ambiguous or doubtful representations. § 1929a. Answer illegible or ambiguous in original application but plain in attached copy. § 1930. Answers to ambiguous or doubtful questions. § 1931. Representations false as to part of property : entire or severable contract. § 1932. Representations of third parties: parties referred to. § 1933. Representations may be changed, modified, altered or withdrawn. § 1934. Construction of representation. § 1934a. Construction of questions. § 1935. Rules as to representations apply to modification of contract. CIJAPTER LVII. WARRANTIES. § 1942. Warranties: general statement. § 1943. Division of warranties. § 1944. Express warranty defined. § 1945. Implied warranty defined. § 1946. Affirmative warranty defined. CONTENTS Ixxxv § 1947. Promissory warranty defined. § 1948. Warranty of intention: the ease of Bilbrough v. Metropolitan Insurance Company. § 1949. Form of warranty : distinctions : construction. § 1950. In cases of doubt construction against warranty: intention of parties. § 1951. Warranty in effect condition precedent. § 1951a. Same subject : other views : special distinctions, etc. § 1952. Condition j^recedent continued: loss occurring prior to breach of promissory warranty : whether contract ab initio void. § 1953. Same subject: decisions on which proposition based. § 1954. Same subject: additional authorities. § 1955. Same subject: conclusion. § 1956. Express warranty must appear on face of policy or be made a part of contract. § 1956a. Material or immaterial statements made warranties by stipulation. § 1956b. Same subject: such stipulations reasonable. § 1957. Warranties : statements in application. § 1958. Applications and other papers: what constitutes a sufficient reference : marginal writings on policj^, etc. § 1959. Reference to application, plan, survey, etc., eoiitinued. § 1960. Same subject : cautionary suggestions. § 1961. Whether stipulation on face of policy as to preservation of property after loss is warranty. § 1962. Wan-anty not necessarily material : its materiality not subject of inquiry. § 1963. Materiality of fact to the risk may in certain cases be subject of inquiry. § 1964. Warranty : mistake : want of knowledge of untruth : fraud : good or bad faith. § 1965. Warranty may be qualified by other words in the contract. § 1966. When matters of description or facts relating to property are warranties. § 1966a. Time to which warranty refers. § 1966b. Warranties subsequent to completion of contract. § 1967. Where time to which affirmative warranty relates is specified. § 1968. Where time to which affirmative warranty in life risk relates is indefinite. § 1969. Partial answers. § 1970. Breach : warranty must be strictly true and exactly and liter- ally fulfilled. § 1971. Is there a tendency to relax the above rule? § 1972. Exceptions to above rule : what excuses compliance with warranty. § 1973. What excuses compliance : waiver and estoppel. § 1973a. Same subject : when no waiver or estoppel. Ixxxvi CONTENTS § 1974. Neglect to read or have ajiplication read no excuse. § 1975. Breach of warranty avoids though not cause of loss. § 1976. Policy avoided hy breach o£ warranty is not revived by subse- quent compliance. § 197Ga. Warranties by infant : recovery by beneficiary. § 1977. Burden of proof: express warranties. CHAPTER LVllI. PARTICULAR REPRESENTATIONS AND WARRANTIES. § 1987. General statement. § 1987a. "Abortions:" inquiry concerning. § 1988. Account of stock: not continuing warranty. § 1989. Merchandise accounts: inventory, § 1990. Accounts settled monthly : guaranty against embezzlement. § 1991. Age and character of building. § 1991a. Age and tonnage of ves.sel. § 1991b. Age of automobile: "year model:" "year of manufacture." § 1992. Age of insured: age of relatives: life risk. § 1992a. Same subject: good or bad faith, intention, mistake. § 1992b. Same subject : statements qualified : best of assured's jinowledgo . and belief. § 1992c. Same subject: statutes. § 1992d. Same subject : waiver and estoppel. § 1992e. Same subject: mistake or knowledge of assurer's agent. § 1992f. Same subject : when recovery may be based on amount premium would have purchased. § 1992g. Age of beneficiary: "double indemnity insurance." § 1993. Anchorage ground: marine risk. § 1994. Armament of ship : warranty. § 1995. Ashes. § 199oa. Automatic sprinkler system. § 1996. Bodily or mental infirmities: life and accident policy. § 1997. Books of account : keeping books in safe. § 1997a. Books and accounts : burglary insurance. § 1997b. Building: dimensions and material of. § 1998. Cargo of .ship : warranty. § 1998a. Carrier: warranty that insurance shall not inure to benefit of. § 1998b. Clear space clause : w-arranty. § 1998c. Same subject : waiver. § 1999. Convoy: warranty to sail or depart with. § 2000. "Depart," warranty to, in marine risk. CONTENTS Isxxvii § 2000a. Dividends, earned: misrepresentations as to. § 2001. Examination of property after work: representation. § 2001a. Explosives: warranty tliat none used: indemnity policy. § 2002. Fires: heating: stoves: continuing warranty, § 2002a. Guaranty insurance. § 2003. Health: disease: life risk. § 2004. Health: "good health:" "sound health:" "sound body:" "perfect health," etc. § 2005. Same subject : renewal of policy. § 2006. Same subject: refusal of assured to accept renewal receipt con- ditioned as to good health. § 2007. Health of assured need not be disclosed at time of renewal ex- • cept on inquiry. § 2008. Health: "spitting of blood:" consumption. § 2009. Health: previous sickness or disease. § 2010. Health: assured's knowledge: latent disease. § 2011. Health : parents : relations. § 2012. Health: rupture: hernia: wearing truss. § 2013. "In port," as relating to commencement of risk: marine policy: warranty. § 2014. Incendiarism : tire risk. § 2015. Encumbrances: disclosure of title not necessary unless asked or otherwise required : fire risk. § 2016. Encumbrances: generally. § 2017. Encumbrances on property by verbal agreement. § 2018. Encumbrances made after the policy. § 2019. Encumbrances: judgments: execution. § 2020. Encumbrances: lien: mechanic's lien: judgment lien, etc. § 2021. Encumbrance: lien for taxes: delinquent taxes. § 2022. Encumbrances: mortgage. § 2023. Encumbrance: mortgage: knowledge of insurer or his agent. § 2024. Encumbrance: mortgage obtained by fraud. § 2025. Encumbrance pending litigation. § 2026. Interest and title : no disclosure necessary where no inquiry. § 2027. Interest and title : generally. § 2028. Interest and title: title which will enable assured to transfer by abandonment: marine risk. ^ 2029. Interest and title: assignee's policy. § 2030. Interest and 'title: as interest may appear for account of. § 2031. Interest and title: bill of sale. § 2032. Interest and title: collateral. § 2033. Interest and title: contract of purchase. § 2034. Interest and title: conditional sale. § 2035. Interest and title: deed as related to title. § 2036. -Interest and title: devisee: charge created by will. § 2037. Interest and title: dower right. Ixxxviii CONTENTS § 2038. Interest and title: easement in property. § 2039. Interest and title : equitable interest. § 2040. Interest and title: fraudulent as against creditors. § 2041. Interest and title: homestead. § 2042. Interest and title: joint owners: undivided interest. § 2043. Interest and title: judgment creditor: execution sale: foreclosure sale: sheriff's sale. § 2044. Interest and title : leasehold interest : building on leased ground. § 2045. Interest and title: lien. § 204G. Interest and title: minor child's interest. § 2047. Interest and title: mortgage: mortgagor and mortgagee. § 2048. Interest and title: ownership: property. § 2040. Interest and title : partnership interest : exclusive ownership. § 2050. Interest and title: pending litigation. § 2051. Interest and title: possession. § 2052. Interest and title: trust deed: parol trust. § 2053. Interest and title: in trust or on commission. § 2054. Interest and title: stored property. § 2055. Interest and title: tenant by the curtesy: joint occupancy. § 2056. Interest and title: tenant for life: tenant in tail. § 2057. Interest and title: united interests of assured. § 2058. Interest and title: vendee under contract for purchase: bond for deed. § 2059. Interest and title: wife's property. § 2000. Intention to navigate: marine risk. § 2061. Insanity: life risk. § 2002. Insurance beyond specified amount contrary to agreement. CHAPTER LIX. PARTICULAR REPRESENTATIONS AND WARRANTIES, CON- TINUED—IRON-SAFE, INVENTORY, BOOKKEEPING CLAUSES. § 2063. Iron-safe clause reasonable, valid and enforceable. § 2063a. Object or purpose of iron-safe clause: to what applicable. § 2063b. Nature of iron-safe clause: whether representation, warranty, etc. § 2063c. Iron-safe clause: account of stock: not continuing warranty. § 206.3d. Construction of iron-safe clause. § 2063e. Iron-safe clause: whether contract divisible or entire: effect of breach. § 2063f. Whether strict or substantial compliance with clause required. § 2063g. Iron-safe clause: custom of place: customary business methods. CONTENTS Ixxxix § 2063h. Iron-safe clause: effect of assurecFs negligence or inadvertence as to compliance. § 2063i. Iron-safe clause: effect of statutes: generally. § 2063J. Iron-safe clause: inventory generally. § 2063k. Iron-safe clause: inventory defined. § 20631. Iron-safe clause: "last preceding inventory" defined. § 2063m. Iron-safe clause: "complete" "itemized" inventory defined. § 2063n. Iron-safe clause: "inventory" and "invoice" distinguished. § 2063o. Invoice not a substitute for inventory. § 2063p. Same subject: whether new store with new goods constitutes exception or qualification. § 2063q. Inventory: compliance with reference to location of property. § 2063r. Iron-safe clause: what constitutes substantial or sutFicient com- pliance as to inventory : instances. § 2063s, Iron-safe clause: what does not constitute substantial or suffi- cient compliance as to inventory: instances. § 2063t. Bookkeeping clause: ordinary intelligence as test of compliance. § 2063u. Bookkeeping clause : what constitutes substantial or sufficient com- pliance : instances. § 2063v. Bookkeeping clause: what does not constitute a substantial or sufficient compliance : instances. § 2063w. Computation of time : inventory and bookkeeping clauses. § 2063x. Iron safe: keeping of books, etc., in. § 2063y. What constitutes a fireproof safe. § 2063z. Keeping books, etc., in safe "or in some secure place:" "some place not exposed to a fire." § 2063aa. Removal of inventories, etc. : emergency created by threatened fire. § 2063bb. Demand by assurer for production of books, etc. § 2064. Iron safe : keeping books, etc., in : waiver and estoppel. § 2064a. Same subject : agent's knowledge, etc. § 2064b. Same subject : agent's knowledge, etc. : when no waiver. CHAPTER LX. PARTICULAR REPRESENTATIONS AND WARRANTIES CONTINUED. § 2065. Iron shutters: fire risk. § 2066. Lading: dunnage: registered tonnage: marine risk. § 2067. Lights: fire risk. § 2068. Location. § 2069. Master's certificate : warranty : marine risk. xc CONTENTS § 2070. Medical attendant : medical treatment : life risk. § 2071. Medical examiner: statements to. S 2072. Medical examiner: subject of inquiry. § 2073. Moored safely in certain harbor: warranty: marine risk. § 2074. Occupation : life and accident risks : representation and warranty : continuing warranty. § 2075. Other insurance : refusal of other insurers : prior applications, etc. § 2076. Opium habit: life risk. § 2077. Personal, accidental, or serious injury: wounds: hurts: prior losses: prior indemnity. § 2078. Pumps : water : tanks filled, etc. : fire risk : continuing warranty. § 2079. Residence : birthplace : life risk. § 2080. Relative situation and distance : other buildings : variance in de- scription no warranty that location of other buildings shall remain unchanged. § 2081. Relationship: life risk. § 2082. Sailing: warranty to sail: marine risk. § 2083. Sailing : representation as to time of. § 2C84. Sailing: representation as to time of may be merely of expecta- tion or belief. § 2085. Sailing: warranty to sail may not be engrafted on policy by parol evidence. § 2086. Sailing: what constitutes. § 2087. Sailing: what does not constitute. g 2088. Sheathing vessel. § 2089. Ship's safety: warranty: marine risk. § 2090. Smoking on premises: continuing warranty: fire risk. § 2091. Spirits on board ship : carrying prohibited articles : reasonable construction : marine risk. § 2092. Stay of vessel at certain place limited by warranty : marine risk. § 2093. Stock kept up to specified amount. § 2094. Stowage of cargo : warranty : marine risk. § 2095. Suicide: effect of warranty against. § 2096. Temperate habits : drunkenness : use of intoxicating liquors. § 2097. Tobacco: moderate use of. § 2098. Trade and employment of ship : marine risk. § 2099. "Uninsured:" policy on another subject matter: "honor policy." § 2100. Unmarried: married: widoAver: wife. § 2101. Use and occupation : whether continuing warranty : fire risk. § 2102. Use and occupation : constantly worked : unlawful act not im- plied. § 2103. Use and occupation : dwelling-house : boarding-house : hotel, etc. § 2104, Use and occupation : hazardous trade or business. § 2105. Use and occupation : house of ill-fame : disorderly or bawdy house. § 2106. Use and occupation : manufactory. CONTENTS xci § 2107. Use and occupation : manufactory' : incidental uses. § 2108. Use and occupation : running factory nights. § 2109. Use and occupation : stores : storehouse : storage. § 2110. Use and occupation : stores : when continuing warranty. § 2111. Use and occupation : tenants : continuing warranty. § 2112, Watchman on premises : watch-clock : sleeping in store : continu- ing warranty. CHAPTER LXI. NEUTEALITY AND NATIONAL CHARACTER. § 2122. Warranty of neutrality : generally. § 2123. Object and meaning of this warranty. § 2124. Neutral property defined : who is a neutral : domicil. § 2125. Warranty true when made not forfeited by subsequent hostili- ties. § 2126. Warranty of neutrality as affected by barratry. § 2127. Documents, papers, etc., required. § 2128. Character of documents and insignia of national character re- quired. § 2129. Description in policy or representation as to national character. § 2130. Goods shipped from, a neutral to a belligerent. § 2131. Goods shipped from a belligerent to a neutral: transfer after capture. § 2132. Agreement to claim property as neutral in ease of capture. § 2133. Neutral vessels employed in belligerent ser\dce. § 2134. May neutrals avail themselves in time of war of trade prohibited during peace? § 2135. Vendee of vessel. ^ 2136. Neutrality violated by breach of blockade. § 2137. Notice to neutral of blockade required. § 2138. AVhere existence of blockade is notorious or it has long continued. § 2139. What constitutes a blockade. § 2139a. Same subject : British orders in Council, etc. § 2140. Continuance of blockade. § 2141. Effect of sailing for blockaded port: intention to enter: breach of blockade: what is and is not. § 2142. Simulated or false papers: concealment, suppression, or spoli- ation of papers. § 2142a. Same subject: "liberty to run blockade:" seizure. § 2143. Carrying contraband goods: contraband of war: breach of neu- trality. § 2144. Breach of neutrality from resistance to lawful right of search. xcu CONTENTS CHAPTER LXII. SEAWORTHINESS. § 2151. Warranty of seaworthiness implied: voyage policy: general rule. § 2152. Whether warranty of seaworthiness implied in time policies: the English rule. § 2153. Whether warranty of seaworthiness in time policies in this country. § 2154. Same subject: conclusion. § 2155. Implied warranty of seaworthiness in time policies: code pro- visions : stipulation. § 2155a. Warranty of seaworthiness: policy on cargo or freight. § 2156. Innocence of assured: unknown defects. § 2157. Effect of exception of losses occasioned by unseaworthiness: knowledge. §, 2158. Effect of previous survey : certificate of seaworthiness : subsequent survey: condemnation. § 2159. Different degrees of seaworthiness. § 2160. What constitutes seaworthiness. § 2161. What constitutes seaworthiness and unseaworthiness: cases. § 2161a. Seaworthiness: refrigerating plant: insurance on insulation for. § 2161b. Loss of vessel while moored: duty of assured: negligence. §. 2162. Effect of noncompliance with statute. § 2162a. Injury in collision as evidence of unseaworthiness: statute. §. 2163. Effect of usage upon seaworthiness of foreign vessel in foreign port. § 2163a. Overloading: effect of practice or custom to understate measure- ments. § 2164. Manning vessel. § 2165. Whether inferior officers must be competent to fill master's posi- tion. § 2166. Whether vessel must .when she sails have a full complement of men engaged for whole voyage. § 2167. Negligence or misconduct of master or crew: continuing war- ranty. § 2168. Employment of pilot. § 2169. Warranty may be superseded by stipulation: waiver and estoppeh latent defects. § 2169a. Latent defects: Inchmaree clause. § 2169b. When warranty not superseded by stipulation. §. 2169c. Same subject : effect of Harter act. CONTENTS xciii § 2170, Seaworthiness: estoppel against insurer: certificate of board of underwriters. § 2170a. Assurer's knowledge of condition of vessel and nature of risk. § 2171. Successive voyages or stages of the voyage. § 2172. To what time the warranty of seaworthiness refers. § 2173. Continuing warranty as to seaworthiness: the English rule. § 2174. Continuing warranty as to seaworthiness: the rule in this country. § 2175. Continuing warranty as to seaworthiness : time policies. § 2176. Continuing warranty as to seaworthiness: repairs. § 2177. Whether cases as to necessity for repairs can be reconciled with other doctrines and cases apparently in conflict therewith. § 2177a. Moored in safety: breach of warranty: repairs. § 2178. Assurer's approval of ship at port of departure : subsequent re- pairs. § 2179. Subsequent noncompliance as to seaworthiness no retrospective effect. § 2180. Vessel seaworthy for port. § 2181. Whether original unseaworthiness may be cured before loss. § 2182. Policy at and from vessel sailing unseaworthy: may defect be remedied before loss ? § 2183. Vessel becoming unseaworthy after commencement of risk and defect cured before loss. TITLE IX. CONDITIONS VOIDING THE POUCY. CHAPTER LXIII. CONDITIONS VOIDING THE POLICY— GENERAL CONDITIONS. § 2190. Conditions in policy : generally. § 2191. Alterations and repairs: employing mechanics, etc.: generally. § 2192. Permission to make alterations or repairs. § 2193. Whether loss was occasioned by the alterations cannot be inquired into: materiality of alteration, § 2194. Materiality of alteration. § 2195. Alteration by act of proprietors. , xciv CONTENTS § 2196. Alteration conditioned to be at risk of insured. § 2197. Repairs upon the insured premises: builder's risk. § 2197a. Unauthorized additions to building-: proximity to other houses. § 2198. Specially prohibited articles under policy on stock of goods, etc. : generally. § 2199. "Stock in trade:" "goods usually kept." § 2200. Storing of prohibited articles. § 2201. Keeping of prohibited articles: hazardous and extrahazardous. § 2202. Specially prohibited articles : benzine : burning fluid : camj^ihene : dynamite : fireworks : gasolene. § 2203. Specially prohibited articles : gunpowder : hay : kerosene : lights : naptha. § 2204. Specially prohibited articles: petroleum: saltpeter: spirituous liquors : turpentine. § 2205. Erection of buildings adjacent to insured premises. , § 2206. Erection of adjacent buildings to which insured is not a party. § 2206a. Erection or occupation of adjacent buildings : change in exposure. § 2206b. Requirement to build chimneys. § 2207. Increase or change of risks. § 2207a. Same subject : conspiracy to burn property : fraud. § 2207b. Same subject : attempt to burn property. I § , 2208. Notice of increase of risk : waiver. § 2209. Prohibited use of premises. § 2210. Meaning of "premises" as used in condition. § 2211. Prohibited uses: hazardous and extrahazardous. § 2212. Where policy is only suspended during a temporary prohibited use. § 2213. Uses not violation of the conditions as to prohibited use. § 2214. Change in "situation or circumstances affecting the risk." § 2215. Condition as to smoking upon the premises, § 2216. Ceasing to operate factory, etc. : operating factory, etc., at night. § 2216a. Same subject : when condition violated : instances. § 2217. Use of stoves on premises : fires. • § 2218. Use of premises for unlawful purposes. § 2219. Prohibited uses which will avoid the policy. § 2220. Waiver of forfeiture on account of prohibited use. § 2221. Notice in case of change of use : waiver. § 2222. Effects of acts of tenant upon insured property. § 2223. Change of occupancy: tenancy. § 2224. Effect of nonoccupation of insured premises where policy only prohibits increase of risk. § 2224a. Increase of risk : material to risk : clauses as to vacancy, etc. § 2225. Vacant or unoccupied and similar clauses : validity, construction and meaning' thereof. CONTENTS xcv § 2225a. "Vacant, unoccupied and uninhabited:" "vacant, unoccupied or uninhabited," § 2225b. "Untenanted or vacant." § 2225c. Temporary vacancy or absence: owner, tenant, or occupant. § 2225d. Vacancy, etc.: several buildings or kinds of property: entirety or divisibility of risk. § 2225e. Premises untenantable or unfit for occupancy : vacancy enforced. § 2226. Provision as to notice in case premises become vacant or unoc- cupied: permit. § 2227. "Unoccupied premises." § 2228. "Vacant" premises. § 2228a. Vacant by removal: personally unoccupied. § 2229. Conditioned to be void if premises become "vacant and unoc- cupied." § 2230. Conditioned to be void if the premises become "vacant or un- occupied." § 2230a. Same subject : when premises "vacant or unoccupied :" instances. § 2230b. Same subject: when premises not "vacant or unoccupied:" in- stances. § 2230c. Same subject: watchman acting under legal process. § 2231. Waiver of condition as to premises being vacated. § 2232. Restrictions in life policy as to residence: travel, etc.: waiver. § 2233. Same subject: construction of phrase "settled limits of the United States." § 2234. Restriction as to travel: construction of permit to go beyond prescribed limits. § 2235. Where insured is prevented by sickness from returning within time limited by permit. § 2236. Prohibiting change of occupation: prohibited occupations: haz. - ai-dous, extra-hazardous: construction of clauses as to. § 2236a. Same subject. § 2236b. Engaging in liquor or saloon business. § 2236c. Prohibited occupations: waiver and estoppel. § 2237. Prohibition as to entering military or naval service. § 2237a. Same subject: subsequently enacted prohibitory law by successor society. § 2237b. Same subject: armed resistance or insurrection in territory of United States. § 2238. Change in possession, title, or interest. § 2239. Effect of temporary increase of risk: temporary violation of condition. § 2240. Same subject: authorities. XCVl CONTENTS CHAPTER LXIV. ALIENATION. § 2246. Alienation: generally. § 2246a. Conditions as to alienation change of title, etc., valid. § 2247. Conditions as to alienation : construction of. § 2248. Consent to transfer or sale and assignment : notice to company. § 2248a. Notice continued : sale, transfer or mortgage : mortgage clause. § 2248b. Alienation: encumbrance: statutes. § 2249, Void sale: deed of insured property. § 2250. Voidable and set-aside sale no alienation. § 2251. Sale of part of subject of insurance where policy contains no con- dition as to alienation, § 2252. Sale of part of proi3erty insured where policy stipulates against alienation or transfer of subject of insurance. § 2252a. Sale or deed with reservation of interest : reversion of title. § 2253. Alienation of part where contract severable. § 2254. Alienation of part: whether contract entire or severable. § 2255. Conclusion : alienation of part of subject of insurance. § 2255a. Alienation : where title or possession does not pass, or is not intended to pass. § 2256. Changes by encumbrances on property. § 2257. Meaning of clause "encumbrance in any way:" liens created by operation of law. § 2258. Lease of insured property. § 2259. Conveyance by deed of property as collateral. § 2260. Sale of insured property with mortgage back: change of interest or title. § 2261. Sale and mortgage back where policy prohibits alienation of in- terest. § 2261a. Conveyance and reconveyance. § 2262. Deed and reconveyance in trust to secure payment of purchase money. § 2263. Trustee, purchaser at his own sale under power of sale in mort- gage: no alienation. § 2263a. Conve3'ance from mortgager to mortgagee. § 2264. Mortgage not alienation, sale or transfer of title. § 2264a. Same subject: decisions contra. § 2264b. Same subject: effect of accumulated interest on mortgage. § 2265. When mortgage not encumbrance. § 2266. Mortgage under different conditions in different policies. CONTENTS xcvii § 2267. Mortgage an "alteration." § 2268. Chattel mortgage under alienation clause. § 2269. Chattel mortgage by partner: change of interest. § 2270. Commencement of foreclosure proceedings. § 2270a. Same subject: validity and construction of clause: "knowledge:" "be commenced." § 2270b. Same subject: advertisement for sale: "proceedings on sale:" notice of sale. § 2270c. Same subject: when policy avoided, when not: instances. § 2271. "Entry of a foreclosure of a mortgage:" advertisement and sale: construction. § 2272. Decree of foreclosure: sale thereunder. § 2273. Notice may operate as consent to mortgage. § 2274. Judgment generally: mechanic's lien: judgment lien. § 2275. Sale of equity of redemption : where policy assigned to mortgagee. § 2275a. Expiration of time limit for redemption not an alienation- § 2275b. Transfer of equitable title. § 2276. Writ of attachment: "process." § 2277, "Levied on:" "taken into possession or custody:" construction. § 2278. Levy of execution : sale on execution. § 2279. Waiver of forfeiture: sheriff:'?, sale. § 2280. Effect of dissolution of partnership: receiver. § 2281. Accident insurance on lives of partners: dissolution. § 2282. Sale between tenants in common: eotenants. § 2283. Partition of insured property: effect of. § 2284. Executory contract of sale: conditional sale. § 2284a. Option contract. § 2284b. Contract to exchange property. § 2284c, Unconsummated sale in satisfaction of mortgage. § 2284d. Bill of sale. § 2285. Acts of vendor where person holds under contract of purchase. § 2286. Where sale not confirmed as required. § 2286a. Judicial sale confirmed. § 2286b. Administrator's sale confirmed. § 2287. Where insurance on changing stock of goods. § 2288. Effect of bankruptcy or insolvency. § 2288a. Same subject: appointment of receiver. § 2289. Death of insured: descent of title to heirs. § 2290. What amounts to an alienation, sale, transfer, or change of title; instances. § 2291. What does not amount to an alienation, sale, transfer, or change of title: instances. § 2291a. Alienation, change of title, etc.: waiver, § 2292. Change in possession. § 2293. Sales by partner: alienation, assignment, and change of title or possession clauses. XCVlll CONTENTS § 2293a. Sale by one partner to another: introduction of new partner: Federal decisions. § 2293b. Sale by one partner to another: Alabama. § 2293c. Sale by partner to third party : California. § 2293d. Sale by one partner to another: Colorado. §^ 2293e. Introduction : new partner : Connecticut. § 2293f. Introduction of new partner: Florida. § 2293g. Sale with reservation of interest to partner: mortgage of entire interest : Georgia. § 2293h. Sale to partner or third person : Illinois. § 2293i. Sale by one partner to another: Indiana. § 2293J. Sale with reservation of interest to partner: sale by one partner to another : division of goods : Iowa. § 2293k. Sale by one partner to another: Louisiana. § 22D31. Sale by one partner to another and mortgage back: Massachusetts. § 2293m. Introduction of new partner: Michigan. § 2293n. Sale by one partner to another: Mississippi. § 2293o. Sale by one partner to another: mortgage back: Missouri. § 2293p. Sale by one partner to another: Nebraska. § 2293q. Sale by one partner to another: New Hampshire. § 2293r. Sale by one partner to another: introduction of new partner: New York. § 2293s. Introduction of new partner: North Carolina. § 2293t. Sale by one partner to another: introduction of new partner: Ohio. § 2293u. Sale by one partner to another: Pennsylvania. § 2293v. Sale by one partner to another: business sold but continued under trade name : Tennessee. § 2293w. Sale by one partner to another : sale with mortgage back : sale with vendor's lien : Texas. § 2293x. Sale by one partner to another: bequest by partner: Virginia. § 2293y. Agreement for partnership not consummated : Washington. § 2293z. Sale by one partner to another : Wisconsin. § 2294. Summary of decisions. § 2295. Conclusion. CHAPTER LXV. ASSIGNMENT AND TRANSFER OF POLICY. § 2304. Assignment of policies: fire insurance. § 2305. Assignment of fire policies : "loss if any payable to." § 2306. Assignment of fire policies : consent : generally. CONTENTS xcix § 2306a. Same subject : statutes. § 2306b. Distinction between assignment and executory contract: covenant to keep property insured. § 2307. Sale of property does not transfer policy to purchaser. § 2307a. Adoption of policy by vendee: "for account of whom it may con- cern." § 2308. Assignment: legal effect of assent to in fire policy. i 2309. Manner of procuring assent to assignment of policy: same: mutual company. § 2309a. Consent by assurer's agent. § 2309b. Agreement of vendor to obtain insurer's consent to assignment. § 2310. Notice of assignment : fire : marine. § 2311. What constitutes equital)le assignment of fire policy. § 2312. Indorsements upon policy. § 2313. Fraud in ma-king assignment: in procuring assent thereto. § 2314. Assignment to mortgagee: rights of mortgagee. § 2314a. Same subject : instances. § 2314b. Assignment by mortgagee : form of : effect of. § 2315. Assignment of fire policy as collateral. § 2316. Assignment to partner. § 2317. By-laws of mutual company as affecting assignment of policy. § 2318. Rights of creditor of assignor attaching subsequently to assign- ment of fire policy. § 2319. Effect of acts of assignor upon rights of assignee : generally. § 2320. Effect of acts of assignor upon rights of assignee who is mort- gagee. § 2321. Effect of acts of mortgagor after loss upon rights of assignee. § 2322. Legal effect of assignment after loss. § 2323. Assignment of void policy. § 2324. Limitation clauses: assignment. § 2325. Clause as to assignment : waiver of breach thereof : forfeiture. § 2325a. Same subject : agent's acts or knowledge. § 2326. Assignment of life policies : generally : written assignment : parol assignment. § 2326a. Life policies: right to assign. § 2326b. Life policies : nature of assignment : construction. § 2326c. Life policies: consideration for assignment. § 2326d. Life policies : valid and invalid : assignments. § 2326e. Life policies: material alteration of assignment § 2326f . Life policies : executory contract to assign. § 2326g. Life policies: equitable assignment. § 2326h. Life policies : assignment by assignee : generally. § 23261. Assignment to undertaker, tradesmen, etc. § 2326J. Life jDolicies : rights of assignee: generally. § 2326k. Life policies: reassignment. e CONTENTS § 23261. Life policies: gift. § 2327. No assignment by insured where interest in policy has vested in beneficiary. § 2327a. Distinction between assignment and change of beneficiary. § 2328. No assignment if policy forbids. § 2329. Notice of assignment: life policy. § 2330. What is sufficient notice: life. § 2331. Assignment of life policy: consent. § 2331a. Same subject: manner or mode of assignment. § 2332. Delivery of assignment of life policy. § 2333. Possession of policy: life. § 2334. Assignment of mutual benefit certificate. § 2335. Fraud in procuring or making assignment of life policy. § 2335a. Assignment: mental capacity: undue influence. § 2336. Absolute assignment of life policy to creditor: agreement to re- tain only amount due. § 2336a. Assignment of life policy to creditor: amount recoverable: con- tinued. § 2337. Assignment of life policy as collateral. § 2337a. Power of attorney: pledge of policy: loan obtained by forgery: set-off. § 2338. Assignment of policy payable to executors, administrators, or assigns : estate. § 2339. Assignment of policy to trustees. § 2340. Assignment of policy pro tanto. § 2341. Effect of insolvency or bankruptcy upon policy: assignment for benefit of creditors: rights of assignee or trustee. § 2342. Rights of company where policy assigned. § 2343. Assignment by husband to wife of life policy. § 2344. Assignment of life policy to wife or dependents by insolvent bankrupt: creditors' rights. § 2345. Right of husband to assign policy issued for benefit of wife or children. § 2346. Right of guardian to assign policy issued for benefit of ward, § 2347. Right of wife to assign a policy on life of husband. § 2347a. Same subject : where wife has contingent interest only. § 2348. Assignment by wife of policy on husband's life: continued. § 2349. Assignment by husband and wife jointly of policy on husband's life: joint assignment by husband, wife and children. § 2349a. Assignment to husband and wnfe: joint ownership: survivor's rights. § 2349b. Assignment of employers' liability policy. § 2350. Assignment and transfer of marine policy: generally. § 2351. Assignment of marine policy where assignor has parted with entire interest in property insured. CONTENTS ci § 2352, Assignment of marine policy subsequent to absolute sale and transfer oC subject of insurance. § 2333. Assignment of marine policy: delivery to assignee. § 2354. Notice of assignment of marine policy. § 2355. Prohibition in marine policy as to assignment. § 2350. Rights of insurers to set-off against assignee. § 2357. What constitutes assignment : cases generally. § 2358. What is not an assignment: cases generally. CHAPTER LXVI. CHANGE OF VOYAGE— DEVIATION— LIBERTY CLAUSES Description of the voyage. Distinction between voyage of ship and voyage insured. Where course of voyage insured is not fixed by mercantile usage. Determination as to which of two routes is usual one: case of several routes. Deviation defined. Effect of deviation and basis of underwriter's discharge. Insurer liable for prior loss. Temporary deviation and return to course prior to loss. Same subject : certain class of cases distinguishable. Time policy: navigation limited. Intention to deviate: change of voyage. Abandonment of voyage: peril not insured against. Effect of intention fixed at or after sailing to change destination. Voyage shortened. Voyage "at and from" port or ports. Preliminary voyage: completing loading at different ports. Alternative ports of destination. The word "thence" from port or ports of discharge in two speci- ■ fied localities will cover either locality. § 2383. Election of ports: specified or geographical order of visiting ports of discharge. § 2384. Ports of discharge: revisiting or returning to port. § 2385. Returning to terminus a quo for clearance. § 2386. "Near open port" refers to geographical order. § 2387. To an island and a market. § 2388. To a port in an island or district, thence to a port of advico or discharge. § 2389. Vessel captured and carried out of her course: false papers. § 2390. Deviation to supply or repair defect in fitting for original voyage. § 2365. § 2366. § 2367. § 2368. § 2369. § 2370. § 2371. § 2372. § 2373. § 2374. § 2375. § 2376. § 2377. § 2378. § 2379. § 2380. § 2381. § 2382. cii CONTENTS. § 2390a. Placing vessel in drydock without maritime necessity. § 2391. Reshipment of goods on the voyage not of itself a deviation under liberty to reship. § 2392. Transshipment. § 2393. Liberty of port and places: purposes of voyage. § 2394. Distinction between purposes of voyage and acts done to insure success of adventure, §2395. When trading, etc., at port may be allowed, although not in fur- therance of adventure. § 2396. Liberty of ports: course of voyage: change of voyage. § 2397. Liberty of ports: trading, discharging, or taking in cargo. § 2398. Liberty of ports and to tow and assist vessels. § 2399. Liberty to touch and stay or of port or ports may be limited by other words in policy. § 2400. Prohibited ports or waters: restricted waters. § 2401, Liberty of ports where employmeht of ship is limited by the policy. § 2402. Not touching at privileged port. § 2403. River navigation : departure from river channel. § 2404. River navigation : vessel may make usual stops for landing and loading goods, etc, § 2404a, Vessel constructed for river navigation : trial trips : delay : usual course of voyage. § 2405. Masters and mariners : negligence or mismanagement : remote cause. § 2406. Departure from course through ignorance of master. § 2407. Master's judgment and discretion, § 2408. Instructions to master: generally. § 2409. Departure from route to avoid seizure in pursuance of instructions, § 2410. Liberty of ports for orders : revisiting port. § 2411. Visiting port for information or orders. § 2412. Delay or departure from route for political infoi'mation. § 2413. Delay to await orders as to port of discharge under permission in policy, § 2414. Instructions to deviate: whether must be disclosed. § 2415, "Whether an act be deviation, change of voyage, or barratry. § 2416. Vessel forced to deviate by barratrous acts. § 2417. What justifies deviation generally: statutory or code provisions. § 2417a. Agreement or clause permitting deviation : "due notice" of devia- tion, § 2418. Effect of usage and exigencies of trade. § 2419 § 2420 § 2421 § 2422 Necessity for repairs. Stress of weather: port of necessity. Stress of weather: vessel need not return to point whence driven. Compulsory delay or deviation by superior authority. CONTENTS ciii § 2423. Turned away: blockade. § 2424. Compulsory delay or deviation by acts of crew. § .2425. Departure from route or delay to save life or property. § 2426. Delay at port or place or in prosecuting voyage. § 2427. Delay for towing vessel. § 2428. Vessel turned away, and delay in port which she has entered. § 2429. Departure from route or delay to avoid da^ger, cruisers, or cap- ture. § 2430. Vessel delayed by ice. § 2431. Deviation to comply with warranty. § 2432. Departure from course or delay to seek protection of convoy. § 2433. Eight to convoy prize under liberty clauses to cruise, capture, etc. § 2434. Deviation to recapture vessel. § 2435. Letter of marque: cruising and making prizes. § 2436. Instructions as to cruising. § 2437. Understood purpose for which letters of marque taken is im- portant. § 2438. Liberty clauses to cruise, capture, etc.: construction. § 2439. Carrying letters of marque no deviation in itself. § 2440. Liberty clauses to cruise, capture, etc. for designated time. § 2441. Whether the peril which will justify a deviation must be one insured against. § 2442. Loss need not be connected with deviation. § 2443. Whether any exception exists to last rule. § 2444. Waiver of deviation. § 2445. Deviation: acts of third person. CHAPTER LXVII. OTHER OR DOUBLE AND OVER INSURANCE. § 2455. What is other or double insurance. § 2456. Overinsurance. § 2456a. "Existing insurance:" marine: mutual societies. § 2457. Conditions as to other insurance. § 2458. Construction of conditions as to other insurance. § 2459. Where other insurance is only temporary. § 2460. Subsequent marine policy susj .ended where property fully covered by other insurance at time of issuance. § 2461. Warranted "uninsured :" "honor policy :" marine risk. § 2462. Representations or concealment concerning other insurance. § 2462a. Effect of want of knowledge of other insurance. § 2462b. Same subject: mortgagor and mortgagee. § 2464. § 2465. § 2466. § 2467. § 2468. § 2469. § 2470. § 2471. § 2472. civ CONTENTS § 2463. Policy outstanding at time of application for insurance surren- dered befox'e issuance of subsequent policj'. Subsequent policy must cover same or part of same property. Insurance on ship and on advances. Insurance against ditt'erent perils. Where insurances are upon different interests or do not cover same subject. Policy to different joint owners of property: tenants in common. Insurance by owner of land and person holding- under contract for deed. Different interests : mortgagor and mortgagee. Insurance by stranger will not constitute other insurance. Subsequent insurance covering propert}' first insured and other property. § 2473. Where part of insured property covered by subsequent policy: entire or divisible contract. § 2473a. Other insurance : whether contract divisible or entire : statute. § 2474. Where insured goods are removed and joined with other goods also insured. § 2475. Where other insurance is void or voidable : prior or subsecjuent policies conditioned against other insurance. § 2476. Effect of interim receipts. § 2477. Where subsequent voidable policy is treated as valid after a loss. § 2478. Prohibition against other insurance, whether "valid or invalid." § 2479. Renewals of prior policies. § 2480. Where policies are simultaneous : concurrent insurance : fire risks. § 2480a. Distinction between concurrent insurance and coinsurance. § 2481. Rule where marine policies of same date are issued: jiriority in date may be shown. § 2482. Provisions in charter or by-law§ as to other insurance. § 2483. Notice of other, etc.. insurance : what is and is not sufficient. § 2484. Permission to obtain other insurance. § 2484a. Permission continued: concurrent insurance. § 2485. Consent to other insurance : indorsement on policy. § 2485a. Same subject : when indorsement effects new contract. § 2486. Return of premium in case of refusal to indorse consent to other insurance. § 2487. Waiver of provisions as to other insurance: estoppel: notice: consent : indorsement on policy. § 2487a. When no waiver of provisions as to other insurance. § 2487b. Waiver continued: agents. § 2488. Insurer is chargeable with knowledge of prior policies issued by it. § 2489. Recovery: prior policies: marine insurance: contribution: where iio pro rata clause. CONTENTS cv § 2490. To enforce contribution policies must cover same interest to same property. § 2491. Rules as to recovery and contribution in fire insurance where there are several policies constituting other insurance. § 2492. Rule where fire policy contains pro rata clause. § 2493. Specific insurance and general policy. § 2494. Agreement between insurers to share expenses of defense pro rat;i. § 2495. Effect under pro rata clause of payment by any company of more than its share. § 2496. "American clause:" "shall only be liable for deficiency." § 2496a. Other insurance as affected by coinsurance: "average" or "dis- tribution" clause. § 2496b. Effect of three-fourths value provisions : valued policy hiws : concurrent insurance : other or double insurance : coinsurance : prorating. '§ 2497. Where policies of different dates attach and property subsequently diminished. § 2498. Presumption as to basis of settlement where settlement made with one of two insurers. § 2499. Double insurance for "whom it may concern." TITLE X. VOID AND ILLEGAL INSURANCES AND EXCEPTED RISKS AND LOSSES. CHAPTER LXVIII. VOID AND ILLEGAL INSURANCES. § 2506. General principles as to void or illegal contracts. § 2507. Distinctions to be observed. § 2508. Sanitary inspection of buildings not within insurance law. § 2509. Life insurance a valid contract. § 2509a. Policy payable to "estate" valid. § 2509b. Policy on life of minor. § 2509c. Policy issued to person over age limit: statute. § 2509d. Insurance without insured's consent. cvi CONTENTS § 2510. Stipulation valid suspending policy while matured premium note' remains unpaid. § 2511. Waiver of condition rendering policy void from inception: title insurance. § 2512. Insurance contract based on fraud invalid. § 2513. Marriage insurance. § 2514. Constitutionality of statute regulating printing conditions in policies. § 2515. Statute requiring insurer to pay losses in full constitutional. § 2516. Illegality of contract insuring mercantile credits. § 2517. When insurance of growing grain ultra vires. § 2518. When endowment insurance by beneficiary association ultra vires. § 2519. Stipulations limiting place of bringing suits: ousting courts of jurisdiction. § 2520. Statute may effect right of recovery by enlarging rights of assured under its stipulations. § 2521. Where assured has no such interest as statute requires. § 2522. Navigation and convoy acts of England. § 2523. Effect upon valid contract of statute laying embargo. § 2524. Effect of subsequently enacted statutes upon void or illegal in- surances. § 2525. Whether policy void: stamp, when required by statute. § 2526. Engaging in trade in expectation of repeal of existing law in- terdicting it. § 2527. Effect of subsequently enacted prohibitory law. § 2528. Same subject: cases. § 2529. (Omitted). § 2530. Effect of arbitration clauses. § 2531. Insurances contrary to policy of the law : public policy. § 2531a. Insurance against capital conviction or execution for crime is void. § 2531b. Fidelity guaranty: validity of. § 2531c. Usury. § 2532. Condition upholding suicide is void. § 2533. Insurance by common can-ier against losses from negligence, etc., not against public policy. § 2534. Policy executed on Sunday. § 2535. Newspaper company cannot carry on accident insurance business. § 2536. Where traffic insured unlawful, or unlawful business can'ied on upon insured property : fire risk. § 2537. Illegal use of property when susceptible of legitimate use: public policy. § 2538. Illegal occupation of insured: life risk. § 2539. Goods the importation or exportation of which are prohibited. § 2540. Trade prohibited by foreign laws: effect of treaties. CONTENTS cvii § 2541. Exportation otherwise legal may become illegal by subsequent execution of agreement in evasion of revenue laws. § 2542. Effect of prohibitory statute imposing penalty : collateral acts. § 2543. Trade which would otherwise be invalid because interdicted may be valid through necessity. § 2544. Contract of indemnity against embargo valid. § 2545. Effect of violation of embargo. § 2546. Cargo procured with proceeds of former illegal cargo: prior separate voyage illegal. § 2547. Trade with enemy : prior valid character of cargo. § 2548. Where prior part of same voyage is illegal. § 2549. Illegality after risk attaches "at and from." § 2550. Where subsequent part of same voyage is illegal. § 2551. Effect of partial illegality upon contract. § 2552. Last rule qualified where illegality removed as to part of cargo by permission of government. § 2553. Partial illegality : shipowners under same policy. § 2554. Insurance by common agent covering goods of hostile and neutral owner. § 2555. Effect of illegal employment of ship where neutral goods trans- ported therein. § 2556. Goods of several owners under same policy effected by common agent. § 2557. Transportation by same vessel: lawful and unlawful goods. § 2558. Effect of intention to do illegal act. § 2559. Trade with enemy, absence of intent to violate law no excuse. § 2560. When possibility of executing illegal intention is removed. § 2561. Insurance upon a cartel ship while employed as such. § 2562. Insurance to ports some hostile some not. § 2563. Contract excepting interdicted port unlawful. § 2564. Subject of one or two or more allied powers may not trade with common enemy. § 2565. Trade with port occupied by enemy's forces: power of govern- ment to determine what are hostile relations. § 2566. Illegality to which insurer is in privity may affect his rights. § 2567. Goods shipped to neutral port. § 2568. Insurances on contraband of war. § 2569. Wliat articles contraband of war. § 2569a. Same subject : British Orders in Council, etc. § 2570. Definition of license and autlHuity conferred thereby. § 2571. By what authority license granted. § 2572. Misdescription of land on which building located does not avoid policy. § 2573. When failure to name destination does not avoid marine risk. § 2574. Policy to himself by agent of insurer and receiver void. CVIU CONTENTS CHAPTER LXIX. EXCEPTED RISKS AND LOSSES. § 2581. § 2582. § 2582a. § 2582b. § 2582c. § 2582d. § 2582e. § 2582f. § 2582g, § 2583. § 2583a. § 2583b. § 2584. § 2585. § 2586. § 2587. § 2588. § 2589. § 2590. § 2591. § 2592. § 2593. § 2594. § 2595. § 2595a § 2596. § 2596a. What constitutes invasion, insurrection, riot, civil commotion, or usurped power. Excepted risks: fire caused by invasion, insurrection, riot, or mobs, civil commotion, or by military or usurped power. Same subject: waiver. "Directly or indirectly" by "riot:" dynamite explosions: unless fire ensues. Loss directly or indirectly caused by order of any civil authority. Same subject: loss of rentals: "interruption of business." When policy excepting one of a number of like accidental causes of damage covers damage from other like causes : floods. Effect of specially excepted peril : immediate cause of loss : earth- quake : statute. Earthquake: fire started on other property and spread by con- flagTation. Falling of building except as result of fire. Same subject : earthquake. Falling of building : explosion : lightning clause. Explosion: no stipulation: insurers not liable. Insurers not exempt where building blown up to prevent spread of conflagration. Explosion occurring upon other premises : loss to insured property result of earthquake only. Explosion occurring upon other premises from which fire ensues communicating to insured premises. "Loss by explosion of any kind:" insurer's liability under such clause where fire ensues : New York rule. Same subject: rule in Ohio. Same subject: rule in Illinois. Same subject : rule in Pennsylvania. Same subject: conclusion. No liability for explosion "unless fire ensues." Construction of other provisions as to explosion. Conclusion as to excepted liability in case of explosion. Liability excepted where fires built within specified limits: es- toj^pel. Loss by theft excepted. Exception of liability: duty of assured to preserve or save prop- erty. CONTENTS eix § 2597. Exception of liability for "fire caused by hurricane." § 2598. Exception of liability for fire resulting from use of steam- engine. § 2598a. Excepted liability: fires from locomotives. § 2599. Credit insurance : insolvency of debtors : exception of liability : discontinuance of business: death of partner. CHAPTER LXX. EXCEPTED RISKS AND LOSSES— LIFE, ACCIDENT, CASUALTY AND TORNADO. § 2606. Death "in known violation of law." § 2607. "Death in known violation of law:" construction: refers to vol- untary criminal acts. § 2608. Same subject : refers to both civil and criminal law. § 2609. Same subject : conclusion. § 2610. Death or injury in violation of law. § 2610a. Same subject : carrying concealed weapons. § 2610b. Conviction of felony. § 2611. Excepted liability where death occurs "by the hands of justice." § 2611a. Same subject : killing adulterer by husband : wife's paramour. § 2612. Death : use of intoxicants. § 2613. Intemperance: "if the insured becomes so far intemperate as to impair his health." § 2613a. If insured becomes "so far intemperate or use drugs to such an extent as to impair his health." § 2613b. "Under the influence" of intoxicants or narcotics: limitation of liability. § 2613c. Intemperance: degree of intoxication. § 2614. Death : intemperance : waiver of provision. § 2615. Death : intemperance : use of drugs : by-laws of society. § 2616. Death caused by submission to illegal operation. § 2617. Accident policy: injuries where no visible mark. § 2617a. Visible marks of contusions or wound.s: "wounds" defined. § 2618. Excepted liability where death or injury "may be caused by in- tentional injuries inflicted by assured or any other person." § 2619. Dueling or fighting. § 2619a. Death in assault, quarrel, or fight. § 2619b. Assault: death or injury in self-defense: aggressor: offending party. § 2619c. Assault upon oflieer of the law : resisting arrest. § 2619d. Injuries while hunting. ex CONTENTS § 2620. Excepted liability: taking of poison: contact with poisonous substances : inhaling gas. § 2621. Poison or anything accidentally taken, administered or inhaled. § 2622. Entering or leaving moving train or car: riding as passenger: standing or riding on steps or platform. § 2623. Rules and regulations of common carriers and employer: vio- lation of "a rule of corporation." § 2624. Voluntai'y exposure to obvious or unnecessary danger. § 2624a. Same subject: negligence or contributory negligence. § 2624b. Voluntary exposure to unneciessary danger: death in attempt to save life : negligence. § 2624c. Voluntary exposure to unnecessary danger: waiver. § 2625. Walking or being on railway bridge, track, or "roadbed." § 2625a. Walking or being upon a railroad track or bridge: voluntary ex- posure to unnecessary danger. § 2626. Instances within the exception of voluntary exposure. § 2627. Instances not within the exception of voluntary exposure. § 2628. Death by disease excepted: fits, § 2629. Disease caused by accident : death superinduced by other causes not death by excepted disease. § 2629a. Pre-existing disease: disease and accidental injury concurring. § 2629b. Death from disease as primary, secondary or final cause. § 2630. Death from disease as a "secondary- cause" not death by accident. § 2630a. Death by drowning excepted : presumptions. § 2631. Death caused by "medical treatment for disease" or "surgical treatment," excepted. § 2631a. Unnecessary lifting and voluntary overexertion. § 2632. Occupation : exception of liability for "wrecking." § 2632a. Employers' liability policy: injuries while making extraordinary repairs. § 2632b. Employers' liability policy: violation of law. § 2632c. Same subject : waiver. § 2633. Accident to property : loss by fire excepted. § 2633a. Excepted risks : automobiles or motor vehicles : fires : violation of law. § 2634. Plate glass: fire: explosion: tornado insurance. § 2634a. Automatic fire extinguishers: exception of injury from leakage: earthquakes, cyclones, etc. CHAPTER LXXI. EXCEPTED RISKS AND LOSSES, CONTINUED— SUICIDE. § 2635. Effect of words "sane or insane" in suicide clause. CONTENTS cxi § 2635a. Same subject: validity and nature of stipulation. § 2635b. Same subject: effect of voluntary starvation. § 2636. "Sane or insane:" that suicide committed deliberately or hastily immaterial. § 2637. Suicide "felonious or otherwise, sane or insane." § 2638. Suicide while intoxicated. § 2G39. Suicide: accidental or unintentional self-killing. § 2640. Doubt as to "suicide" or accidental or unintentional self-killing. § 2641. Suicide under clause benefiting third parties acquiring interests prior thereto. § 2642. Suicide as defense in connection with statute. § 2642a. Same subject: validity of statute: stipulation contrary thereto: statute part of contract. § 2643. Suicide: option reserved to pay amount of insurance or refund premiums: recovery limited to amount of premiums. § 2644. Stipulation as to part payment or incontestability after specified time. § 2644a. Validity of stipulations limiting amount of recovery or time within which policy void for suicide: incontestability. § 2644b. Suicide: incontestability after specified time: substituted policy or new policy. § 2644c. Stipulation that liability suspended while insured insane: dis- tinction. § 2645. Suicide: by-law as part of contract. § 2646. Taking his own life by unlawful act : dies by his own hand, etc. : by-laws. § 2647. Amendment or changes in by-laws,' etc.: adoption of by-law against suicide after contract made. § 2648. Suicide: policy to be void in case of death by violation of law. § 2648a. Suicide: external, violent and accidental means. § 2649. Suicide: intentional injuries by assured or another. § 2650. Suicide in absence of stipulation : contra. § 2651. Suicide by insane person in absence of stipulation against suicide. § 2652. Suicide where policy obtained with that intent: fraud: creditor. § 2653. Suicide for benefit of assured's estate or third person. §2654. Suicide: temporary insanity. § 2655. Suicide: temporary insanity: "sane or insane, voluntary or in- voluntary." § 2656. Suicide: temporary insanity, "felonious or otherwise, sane or insane." § 2657. Suicide: "self-destruction," "in any form:" "disease:" "voluntary act of insured." § 2658. Stipulation as to "suicide:" death "by his own hand," and the like. § 2659. "Suicide" and like clauses: rule in United States Supreme Court. cxii CONTENTS § 2660. Same subject: English rule. § 2661. Same subject : rule in this country. (a) Same subject: rule and eases in United States courts. (b) Same subject: English rule and cases. (c) Same subject: rule in Alabama. (d) Same subject: rule in Georgia. (e) Same subject: rule in Illinois. (f) Same subject: rule in Indiana. (g) Same subject: rule in Iowa. (h) Same subject: rule in Kentucky. (i) Same subject: rule in Louisiana. (j) Same subject: rule in Maine. (k) Same subject: rule in Maryland. (1) Same subject: rule in Massachusetts. (m) Same subject: rule in Michigan. (n) Same subject: rule in Minnesota. (o) Same subject: rule in Missouri. (p) Same subject: rule in New York. (q) Same subject: rule in Ohio. (r) Same subject: rule in Pennsylvania. (s) Same subject: rule in Tennessee. (t) Same subject: rule in Texas. (u) Same subject: rule in Vermont. § 2661a. Whether suicide question for court or jury. § 2661b. Waiver of defense of suicide. CHAPTER LXXII. EXCEPTED RISKS AND LOSSES— MARINE. § 2670. Excepted risks and losses : marine risks generally. § 2671. Excepted risks and losses: repugnant stipulations. § 2672. Excepted liability for loss caused by negligence, want of ordi- nary care, etc. : gross negligence. § 2673. Excepted liability for damage unless caused by negligence of ship. § 2674. Warranted free from mortality. § 2675. Exception of loss from specified cause followed by qualifying clause, § 2676. Exception of loss or damage from ice. § 2677. Exception of loss by barratry. § 2678. Excepted liability in bill of lading from damages arising from sweating, heat, steam, etc. CONTENTS exiii § 2678a. "Warranted "free from any claim consequent upon loss of time:" freight. § 2679. Explosion : loss from bursting- of boilers or breaking or derange- ment of machinery : steamboat clause. § 2679a. Perils of the harbor: exclusion of loss from bursting or explosion of boilers, unless, etc. § 2680. Warranted free from insurrection. § 2681. Limited or prohibited trade : prohibited waters. § 2681a. Risk suspended while loading at specified island. § 2682. Warranty against illicit, prohibited, or contraband trade: against seizure therefor. § 2683. Exception of perils of the sea. § 2684. Warranted free from capture, etc. : capture by authority of de facto government. § 2685. A technical or actual capture or seizure not necessarily within the exception of these risks. § 2686. Capture and seizure may be synonymous. § 2687. Exception of loss by detention. § 2688. Other cases as to exception of capture, seizure, and detention. § 2689. Exception none the less binding because written on margin of policy. § 2690. Illegal seizure or attempt to seize within exception. § 2691. Warranted free from loss or damage arising out of collision of foreign powers or of our government with others. § 2692. Exception of loss from existing regulations does not include sub- sequently enacted decrees. § 2693. Warranted free from confiscation in ship's ports of discharge. § 2694. Exception of risk of blockaded port: turned away, etc.: free of loss if not permitted entry, etc. § 2695. Exception of loss or damage to goods or property on deck unless, etc. § 2696. The memorandum clause : generall}^ § 2697. What articles are within the clause. § 2697a. ''Free from particular average:" "average unless general:" when the ship has stranded : statutes. § 2697b. Loss from defective condition of frozen meat cargo: "free from particular average and loss," etc. § 2697c. Effect of rider: "free of particular average:" "absolute total loss of part" amounting to — per cent. § 2698. W^arranted free from average unless general. § 2699. Or the ship be stranded or burns : "unless the vessel be sunk^ burned, stranded." § 2699a. Where the words "on fire" instead of "burned," or "burnt" are used. cxiv CONTENTS § 2700. Warranted "free from average under — per cent unless general" and like clauses. § 2701. Unless it amounts to — per cent and happens by stranding. § 2702. Exception of "loss or average" under specified per cent: expense of repairs. § 2703. Percentage: aggregate of losses in case of collision. § 2704. Value only of cargo at risk and not of whole cargo forms basis of percentage. § 2705. "Each ]>ackage subject to its own average" and similar clauses: separately valued. § 2705a. Same subject: effect of rider. § 2706. '^Average recoverable on each package separately or on the whole." § 2707, Effect of separate valuation of each package, etc. : when there is and when not an insurance on each separate package, etc. § 2708. Where articles of different kinds are each separately valued. § 2709. Where percentage is fixed for each particular class or impliedly fixed upon each enumerated article. § 2710. Where insurance is upon cargo in bulk: general designation of "all other goods:" goods of distinct kinds under one general designation. § 2711. The cjuestion of addition of successive losses to reach the limita- tion : cases. § 2712. Same subject : conclusion. § 2713. Where liability is limited to invoice value. § 2714. Particular and general average losses cannot be aggregated, nor are general average charges included in partial loss. § 2715. Addition of loss by jettison and salvage expenses. § 2710. Percentage clause qualified by agreement as to salvage and ex- penses. § 2717. Whether certain other charges and expenses may be added. § 2718. Exception of loss under specified percentage : other insurers. § 2719. Exception as to leakage, breakage, dampness, etc. § 2720. Wfiether under exception of loss under specified percentage the premium should be deducted. § 2721. Exception of liability under specified percentage: deviation. § 2722. Exception of claim arising from canceling of charter. CONTENTS cxv TITLE XL RISKS AND LOSSES. CHAPTER LXXIII. RISKS AND LOSSES. 5 2730. What risks and losses may be insured against : liability: generally. § 2731. Abortion: public policy. § 2732. Accident disabling ship: chartered freight. § 2733. Advances: bottomry draft: entire contract: freight earned at intermediate port: salvage: owner's liability. § 273-1. "All risks:" general policy: war risks. § 2734a. "All risks" mortality: policy on dog. § 273.5. "All other perils," etc. : "all unavoidable perils :" "all such perils." § 2736. Same subject : instances. § 2737. "Arrests, restraints, and detainments," etc.: marine risk. § 2738. "Arriving in port" does not cover arrival in cove. § 2739. "Unlawful" arrests, restraints, detainments, etc. § 2739a. Automatic sprinkler system: location: leakage: notice of defects. § 2739b. Automobile or motorcycle: "collision." § 2739c. Automobile or motorcycle: rented or used for passenger service or for hire: temporary use. § 2740. Bank's default: money deposited in bank: vested rights upon default. § 2740a. Bankers' policy: Lloyd's: loss through forged bills: fraud. § 2741. Barratry defined: marine risk. § 2742. Barratry covers what : instances. § 2743. Barratry, what losses are not covered : general rules. § 2744. Barratry, what losses are not covered: instances. § 274."). Bilging: marine risks: "all other perils," etc. § 2746. Birth of issue. § 2747. Breach of promise of third party does not render insurer liable. § 2748. Capture or seizure: marine risk. § 2749. Cargo : taking on board additional cargo : marine risk. §2750. Carriers: liability of warehousemen : conflict of laws. § 2730a. Carriers: insurance against derailment during transportation of goods : auto truck. § 2751. Collision: marine risk: generally. cxvi CONTEXTS § 2 § 2 § 2' 8 o § 2 § 2 § 2 § 2 § 2' § 2' § 2' § 2' § 2' § 2' § 2' § 2' § 2 § 2' 8 5» § 2 8 o § 2 § 2 § 2 § 2' § 2' § 2 '^'^52. What does and does not constitute collision : generally : instances. 53. Collision with "piers or stages or other structures," when not stranding. 54. Collision as loss by perils of the sea :- proximate cause : damage to other vessel. 55. Collision : running down clause. ■55a. Collision : sums paid for removal of obstructions : statutory com- missioners. 2756. Confounding of goods by breaking open o£ packages, etc.: marine risk. 57. Contingent liability of insurer: carrier: construction of policy. 58. Conversion: recovery and disposal of property by underwriter. 59. Decayed, rotten, etc.: marine risks. 60. Delay in voyage. 61. Electrical machinery and fixtures: electric lighting: fire risk: knowledge of insurers. 62. Embargo, w^hat constitutes. 63. Embargo : effect upon charter party. 64. Embargo: domestic and foreign. 65. Embargo : acts of foreign assured's own government. 66. Employee's fidelity: fidelity guaranty. 67. Expenditures necessitated by the loss: marine risk. 68. Explosion defined. 68a. "One explosion:? boilers in battery form: "explosion" defined in policy: Pabst Brewing Co. Case. 69. Explosion under fire risks: steam boiler. 70. Same subject : spontaneous combustion. 71. Same subject : where combustion and explosion inseparably con- nected. 72. Same subject: where fire precedes or causes the explosion. ■72a. Boiler explosion "caused by unavoidable external violence:" ma- rine risk. 73. Fallen building: what constitutes. 74. Falling walls, buildings, and structures. 75. Fallen building, etc.: wall weakened by previous fire. 76. Fear of danger: blockade: apprehension of embargo, etc.: mar- ine risk. 77. Same subject : cases. 78. Same subject : conclusion. 79. Fire. '80. Fire: marine risk. 81. Freight. 82. Hail. 83. Hire: chartered freight: delay: derangement of machinery or engines : want of repairs : "free from any claim consecjuent on loss of time." CONTENTS exvii § 2784. "Hull and machinery" does not cover "disbursements." § 2784a. Hull and machinery: "latent defects:" perils of "trial trips." § 2785. Improper navigation of ship. § 2786. Insolvency of purcha-sers: returns from trade: credit insurance. § 2787. Insolvency of debtors: meaning of "loss:" credit insurance. § 2788. Land dangers: marine risks. § 2789. Leakage and breakage: marine risks. § 2789a. Ordinary leakage and "extraordinary leakage" distinguished. § 2790. Lightning. § 2791. Live stock: same slaves classed as animals. § 2792. Loss after termination of risk consequent upon injury during life of policy. § 2793. Same subject : conclusion. § 2794. Mortgage: unmarketableness by reason of liens, defects of title, etc. § 2794a. Mortgage clause: distinctions, validity and construction: gener- ally. § 2794b. Mortgagor's and mortgagee's rights: generally. § 2795. When mortgagee's interest not affected by mortgagor's acts. § 2795a. Same subject: instances. § 2795b. When mortgagee's interest affected by mortgagor's acts: when mortgagee not insured party, but appointee. § 2796. Overheating without combustion. § 2797. Perils of the seas and rivers: dangers of navigation. § 2798, Same subject: what losses are covered. § 2799. Same subject: what losses are not covered. § 2800. Personal injuries to employees: against liability or for losses paid. § 2801. "Personal injury and loss of human life" caused by explosion: recovery back of money paid therefor by insured. § 2802. Personal injuries to several by one cause constitutes separate acci- dents and not one accident. § 2803. Personal injuries to persons not employees: against liability or for losses paid. § 2804. Pirates, rovers, assailing thieves : marine risks. § 2805. Passage money: loss of. § 2805a. Plate glass insurance. § 2805b. Plate glass insurance: window bioaking by suffragists: "civil commotion" or "rioting." § 2806. Profits. § 2807. Profits of lessee. § 2808. Promise of insurer to pay although loss not covered by policy. § 2809. Promissory note. § 2810. Railroad, right to recover from, although insurance paid. § 2811. Removal of goods in case of threatened fire: damages and expenses incurred. exviii CONTENTS § 2812. Same subject: duty of assured : stipulation. § 2813. Same subject : how far assured must exert himself to save property. § 2814. Rents. § 2814a. Repairs of building by assurer : assured's liability to third persons. § 2815. Ship-owner's liability. § 2815a. Smallpox: assumption by assured of ri.sk of: warranty. § 2816. Stranding defined: marine risk. § 2817. Stranding: cases. § 2818. Sue and labor clause : rescue clause : marine risk. § 2819. Telegi-aph cable. § 2820. Tenant's liability to pay rent: release of insurer. § 2821. Theft : fire risk, burglary or automobile risks. § 2822. Title insurance: same mortgagee: defects in mortgagor's title. § 2823. Warehouseman : storage of goods in which assured has no inter- est : limited liability. § 2824. Water used to extinguish fire and save property. § 2824a. Water supply system useless. § 2825. Wind : tornado : hurricane. § 2825a. W^orkmeu's compensation : insurance risk. CHAPTER LXXIV. PROXIMATE AND REMOTE CAUSE— NEGLIGENCE, ETC. § 2832. Proximate and remote cause of loss : generally. § 2832a. Same subject : opinions of courts. § 2832b. Same subject : statutes. § 2833. Same subject : cases. § 2833a. Same subject : earthquake-caused fire : explosion. § 2834. Same subject : rules. § 2835. Same subject : consequential losses. § 2836. Same subject : pro rata freiglit : increase of freight. § 2837. Proximate, etc., cause : effect of qualifying or enlarging words. § 2837a. Proximate cause: accidental death: "not the result of assured's own vicious conduct :" assault. § 2838. Negligence: proximate and remote cause: marine risks. § 2838a. Same subject : opinions of courts. § 2839. Same subject : cases. § 2840. Negligence: proximate and remote cause: fire risks. § 2840a. Same subject : opinions of courts. § 2841. Same subject : cases. § 2842. Negligence : acts of insane person : fire risks. CONTENTS cxix § 2843. Negligence: habitual carelessness of servants. § 2844. Negligence partly ascribable or aseribable to insurer. § 2845. Negligence: accident insurance. § 2846. Same subject : where policy stipulates for due care. § 2846a. Negligence : accident to property : automatic sprinkler. § 2846b. Negligence: duty to save and preserve property: accident to property. § 2847. Negligence : fidelity guaranty. § 2848. May gross negligence evince a fraudulent design. § 2849. Shipowners' protective associations: indemnity for losses by neg- ligence, etc. § 2850. Loss directly caused by negligence of assured or his agents: ma- rine risks. § 2850a. Negligence insured against : exception of "want of due diligence by owners" etc. : marine risk. § 2851. Wrongful, fraudulent and criminal acts of assured: attempts to defraud : burning vessel. § 2852. Malicious acts of insurance officers in refusing to insure. CHAPTER LXXV. SPECIAL RISKS AND LOSSES— ACCIDENT INSURANCE. § 2862, Risk and loss in accident insurance: generally. § 2863. "Accident" defined: distinction between accidental death and accidental means. § 2803a. "Accident" and "accidental" defined by the courts, etc. § 2864. What constitutes an accident : cases. § 2805. When presumption against suicide. § 2866. What does not constitute an accident : cases. § 2867. Locomotive engineer may be protected by general ticket covering accidents to travelers : construction : intent of parties. § 2868. Against accidental injuries which shall not be fatal : computation of time : construction. § 2869. Accident to employee in performance of services or while doing acts incident to employment. § 2870. Occupation of insured : loss of time : change of occupation. § 2870a. Same subject : limitation of liability. § 2871. Accident while boarding moving conveyance : commencing or con- tinuing travel: traveling: "passenger." § 2871a. "In" "in or on" a "public conveyance:" "passenger convej'anee" etc. § 2871b. "Passenger car:" train "used for passenger service." exx CONTEXTS § 2872. Walking as part of a continuous journey to make necessary con- nections while traveling by i^ublic or private conveyance. § 2873. Traveler not bound to remain inside cars stopping several minutes at intermediate station. § 287-4. Accident while doing necessary act as passenger at time of com- pletion of journey. § 2875. Accident after completion of travel as passenger on a public con- veyance. § 2876. Walking not for purpose of making traveling connections, but to terminate journey after leaving public conveyance. § 2876a. "Walking on a public highway:" when includes platform of rail- way station. § 2S76b. Accident: riding in automobile, taxicab or carriage as "public conveyance" for passenger service : common carrier. § 2876c. "Passenger" in elevator. § 2877. Taking poison or an overdose of medicine. § 2878. Character of death, whether accident or disease caused from con- tact with "bacilli," putrid matter, etc., malignant pustule: in- oculation of virus : blood poisoning. § 2879. Disease causing death "directly or jointly with such accidental injury." § 2879a. Where death is not by disease but from accident. § 2880. Where death is not from accident but by disease. § 2881. Asphyxiation caused by the action of water or inhaling gases. § 2882. Injury or death inflicted through felonious act of another or in- flicted by wrongdoer. § 2883. Internal injury: voluntary act for convenience, pleasure, or in daily routine duties unaccompanied by extraneous accidental cause : rupture : strains, etc. § 2884. Same subject : conclusion. § 2885. Other cases of external, violent, and accidental means. § 2885a. Burning building: injury to assured. § 2885b. Miscellaneous cases of special risks and losses in accident insur- ance. CHAPTER LXXVI. ABANDONMENT AND TOTAL LOSS— MARINE RISKS. § 2892. Abandonment and constructive total loss : generally. § 2892a. Loss and abandonment : marine insurance act of 1906 of England. § 2893. Abandonment and total loss in case of freight : generally. § 2894. Distinction between absolute and constructive total loss : absolute total loss: srenerallv. CONTENTS • cxxi § 2895. Election to abandon: recovery for total or partial loss. § 2896. Election to abandon necessary to recovery of constructive total loss. § 2897. Election to al)andon necessary, notwithstanding fifty per cent and actual or technical total loss clause. § 2898. When abandonment may be made: generally, § 2899. How far right to abandon favored by courts. § 2900. Invalid abandonment of no effect. § 2901. Abandonment unnecessary in ease of absolute total loss: same, goods, commission, and profits : freight. § 2902. Abandonment by owner of part interest: joint owner: eotenant: mortgagor : mortgagee : lienor. § 2903. Successive perils. § 2904. Effect of clause requiring assignment and transfer of interest: extent of interest transferred. § 2905. Abandonment extends to assured's interest or amount of risk. § 2906. Part of cargo discharged, balance on board: freight at risk. § 2907. Actual freight pending less than valuation: freight on board or not on board. § 2908. Freight earned or due: successive passages: freight valued: freight out or home. § 2909. Freight valued: loss of vessel and specie on board to purchase cargo. § 2910. Freight valued in excess of value of carriage of goods. § 2911. Assured must have some interest to abandon : consignee. § 2912. Abandonment of profits: total and partial loss: commissions. § 2913. Several kinds of merchandise insured for one sum, parts cannot be abandoned. § 2914. Several kinds of merchandise insured distinctly and separately: separate valuation. Separate interest in ship, cargo, and freight. Constructive total loss : outfits of whaling ship. Abandonment and constructive total loss of ship and freight: apportionment : English doctrine. Abandonment and constructive total loss : ship and freight : ap- portionment : doctrine in this country. Assignment to assured by underwriters on vessel on compromise: recovery of freight loss pro rata. Insurer as assignee of owner of cargo may be liable for freight money to owner who has settled with insurer on vessel. How far freight upon cargo a charge upon underwriter on cargo as between insured and insurer. Surrender of cargo or voluntary abandonment of voyage where freight due or might have been earned : master's right to earn freight and dutv to forward goods. § 2915. § 2916. § 2917. § 2918. § 2919. § 2920. § 2921. § 2922. cxxii CONTENTS § 2923. Freight earned. § 2924, Claim for pro rata freight. § 2925. Freight earned: goods transshipped: new or substituted voyage. § 2926. Freight earned: part of cargo reaching abandonee on cargo equivalent to reaching owner. § 2927. Freight for forwarding less than original freight. § 2928. Freight for forwarding same as original freight. § 2929. Freight for forwarding same as original freight: river risk. § 2930. Freight for forwarding in excess of original freight. § 2931. Clause not to abandon vessel except loss exceeds one-half value not applicable to freight claim based on loss of cargo: same, cargo. § 2932. Vessel arriving: obligation of consignee to obtain permission to land cargo : freight earned. § 2933. Freight {)aid in advance: specie and returns thereof: "cash on account of freight." § 2934. Freight valued: carried or not carried: laden or to be laden: part of cargo laden. § 2935. Affreightment: freight which might have been earned: cargo partly loaded : contract for freight : cargo ready, etc.- § 2936. Policy against "absolute" or "actual" total loss only. § 2937. "Absolute and total loss only" and jettison. § 2937a. "Disbursement"' policy : actual or constructive total loss paid by insurers: clause construed. § 2938. Whether abandonment excluded by clauses "free from partial loss," "free of average," etc.: same perishable goods. § 2939. Same subject: cases favoring a constructive total loss and aban- donment. § 2940. Same subject: opinions of textwriters. § 2941. Same subject: conclusion. § 2942. Total loss of value. § 2942a. Freight: abandonment: constructive total loss: "free from par- tial loss and particular average:" expenses of transshipment. § 2943. Shall not abandon until "ascertained that the recovery and re- pairs of said vessel are impracticable." § 2944. Peril removed before loss takes place. § 2945. Ultimate state of facts when action brought control in England as to abandonment. § 2946. State of facts existing at time of abandonment controls here. § 2947. Total cannot be changed into a partial loss by acts of insurer or agent after justifiable abandonment. § 2948. Recovery or restoration of property or indemnity received before abandonment. CONTENTS cxxiii CHAPTER LXXVII. ABANDONMENT AND TOTAL LOSS— MARINE RISKS, CONTINUED. § 2955. Abandonment has reference to property at risk at time. § 2956. Effect of parting with interest. § 2957. Abandonment to second or different assurers: salvage apportion- ment. § 2958. Cargo and profits insured separately: double abandonment. § 2959. Voyage defeated or loss caused by a peril not insured against. § 2960. Notice and proof of abandonment necessary: object and pur- pose of notice: how far claim for total loss implies aban- donment. § 2960a. Abandonment and constructive total loss: reinsurance: notice: "pay as may be paid :" compromise. § 2961. Assured must not await results: must abandon in reasonable time.. § 2962. Where property would perish before notice could be received.. § 2963. What constitutes reasonable time. § 2964. What is not reasonable time. § 2965. How far notice in reasonable time affected by available means of speedy communication. § 2966. Abandonment by mortgagee: reasonable time. § 2967. Effect of stipulation as to time of abandonment or agreement keeping right in abeyance. § 2968. How far delay affected by fact that insurer not prejudiced thereby. § 2969. Loss total at date of abandonment : revival of right to abandon. § 2970. Advice of loss necessary : source and means of information au- thorizing notice. § 2971. Character of the information: actual state of facts. § 2972. Abandonment not validated by subsequent events: new aban- donment. § 2973. Sufficient grounds and true causes must be assigned: bound by cause assigned. § 2974. Though wrong cause assigned may recover actual loss. § 2975. Noncommunication of additional causes or of all causes when suffi- cient cause stated. ' § 2976. Sufficiency of abandonment and cases. § 2977. Sufficiency of abandonment : subject matter clearly indicated though not expressly named : "advances on board." § 2978. Abandonment must be positive, absolute, and unconditional : as- sured's acts of ownership: form immaterial and writing unnec- essary. cxxiv CONTENTS § 2979. How far abandonment transfers title, § 2980. Liens, encumbrances, contracts with third persons: charges, ex- penses, and liabilities arising from abandonment. § 2981. Freight valued: accounting for freight as salvage: goods of as- sured and other shippers on board. § 2982. Abandonment where assured's possession has never been parted with : salvors as agents of assured. § 2983. Abandonment: English registry acts: vesting of title to ship. § 2984. Sails, etc., saved not a fund in assured's hands to defray expenses of getting off stranded vessel. § 2985. Acceptance binds both parties. § 2986. Acceptance under circumstances of doubt as to right to abandon. § 2987. Implied acceptance: taking possession of vessel. § 2987a. Stipulation to recover and repair vessel : duty of assured and as- surer: abandonment: implied acceptance. § 2988. Constructive acceptance regardless of fifty per cent total loss rule. § 2989. Acquiring and holding title under distinct right not an acceptance. § 2990. What acts of assurer by his agents do and do not constitute ac- ceptance. § 2991. Merely taking possession of vessel and deficiency of repairs as affecting acceptance. § 2992. Assured not bound to refuse acceptance: silence: cases of non- acceptance. § 2993. Abandonment validly made continuing though acceptance refused. § 2991. Retroactive effect of abandonment and acceptance. § 2995. Effect upon assured's rights and assurer's liabihty of nonaccept- ance: disclaimer of interest in salvage. § 2996. Arrests, restraints and detainments: embargo, etc. § 2996a. Declaration of war as "restraints" of princes, etc. : abandonment : loss of "adventure:" goods remaining in assured's possession. § 2997. Blockade. § 2998. Freight: stipulation not to abandon: case of blockade. § 2999. Abandonment, how far justified by fear of danger: capture, detention, etc.: imminent danger. § 3000. Same subject : acceptance of cargo at another port by consignee. § 3001. Right to abandon may be taken away by capture after right accrues. >§ 3002. Abandonment for capture: how far restrained by stipulations. § 3003. Capture and seizure. § 3001. Recapture. § 3005. Vessel and cargo held as security, captured and recaptured, and expensive and doubtful litigation necessary to recover her. § 3000. Abandonment: jettison: contribution need not be first demanded. § 3007. Stranding: submersion. CONTENTS cxxv § 3008. Fifty jDer cent rule: repairs. § 3009. Extreme and imminent danger of destruction. § 3010. Fraudulent and designed exposure to peril distinguished from mere negligence of master and mariners. § 3011. Vessel deserted by mariners because of inability to extricate her from peril, or in ease of mutiny or to save tlieir lives, etc. § 3012. Place of peril may enhance probability of total loss. § 3013. Arrival of ship: continuation of risk: completion of voyage: ship on arrival not worth repairing or repairs exceeding fifty per cent : freight. § 3014. Arrival of part of goods: fifty per cent rule in .'^ucli case. § 3015. Loss or retardation of voyage: ship, cargo, and freight. § 3016. Total, subsequent to partial loss: successive losses. § 3017. Waiver of abandonment : purchase by assured, etc. § 3017a. Abandonment : non-waiver clause. § 3018. Waivei", revocation, and estoppel : insured and insurer generally : miscellaneous cases. CHAPTER LXXVIII. TOTAL LOSS AND TOTAL DISABILITY— FIRE AND ACCIDENT. § 3025. Total loss, building: fire risk. § 302G. "Wholly destroyed:" "totally destroyed:" fire risk: how far marine cases analogous. § 3027. "Wholly destroyed:" "totally destroyed," continued: how far valued policy cases analogous. § 3028. "Wholly destroyed:" "totally destroyed:" cases. § 3029. "Wholly destroyed :" "totally destroyed :" conclusion. § 3030. Total loss under policj' issued after loss by fire, and before build- . ing repaired. § 3031. "Total disability:" "permanently disabled:" "wholly disabled, etc. ; accident and benefit insui'ances. § 3032. Construction of the words, "total and permanent disability." § 3033. "Wholly disabled," insured under two occupations. § 3034. "Total" and "partial total" disability : loss of a foot or feet, eye or eyes. § 3035. "Permanent" disability excludes that which is merely temporary. cxxvi CONTENTS CHAPTER LXXIX. REPAIRS— FIFTY PER CENT RULE— SALE— TRANSSHIPMENT- MARINE. § 3040/ Repairs of sliip: generally. § 3041. Ship not worth repairing: cost of repairs exceeding repaired value. •§ 3042. Abandonment after repairs by assured. § 3043. Repairs by mortgagor in possession of vessel. § 3044. Repairs and retaining control by owner. § 3045. Insurer's right to repair. ^ 3046. Same subject continued. § 3047. Same subject: conclusion. § 3048. Repairs, etc., by insurer under nonwaiver, etc., clause giving right to interfere. § 3049. Same subject: deficiency in repairs. § 3050. Shipowners obligation to repair to send on cargo. § 3051. Assurer's agreement with wreckers or salvors to save vessel: assured on ship or cargo. § 3052. Salvors: sale of part of jettisoned cargo saved: total loss: dili- gence to avoid sale. § 3053. Underwriter's objections to repairs. i§ 3054. "Not to be liable for repairs made" at specified place. i§ 3055, Liability of several underwriters for repairs separate and not as partners. § 3056. Character of repairs. § 3057. Want of materials, etc., at place: impossibility of repairs there. § 3058. Failure to make complete repairs at intermediate port. § 3059. Repairs: liability of insurers where funds raised therefore on bottomry. § 3060. Liens for repairs, etc., bottomry. § 3061. Where loss exceeds fifty per cent. § 3062. Where loss is less than fifty per cent. § 3063. Whether loss must merely equal or must exceed fifty per cent. § 3064. Stipulation affecting fifty per cent rule. § 3064a. ''Disbursement" policy: conflicting stipulations: rider: fifty per cent rule. § 3065. Code provisions as to abandonment for half value. § 3066. Exceptions to fifty per cent rule. § 3067. Fifty per cent rule: cargo: memorandum and other articles. § 3068. Fifty per cent rule: free of partial loss. § 3069. Fifty per cent rule: arrival of vessel or cargo. CONTENTS cxxvii § 3070. Fifty per cent rule: value at time and place of loss or repairs: same freight. § 3071. Stipulation that valuation in policy the test under tifty per cent rule. § 3072. Rule in England as to valuation in policy and repairs. § 3073. Rule in this country as to valuation in policy: fifty per cent rule and repairs. § 3074. Opinions of text-writers as to valuation or value of vessel being test. § 3075. Conclusion: repaired value and not valuation in policy the test. § 3076. Fifty per cent rule : expense of raising vessel and taking to port of repairs. § 3076a. Test of constructive total loss: whether value of wreck may be included: cost of repair: effect of English statute. § 3076b. Where stipulated that cost of repairs shall exceed seventy-five per cent exclusive of raising vessel, etc. § 3077. Stipulation: liability exceeding half amount insured "under ad- justment as of a partial loss:" one third new. § 3078. Repairs: particular average adjustment: one-third new. § 3079. One-third new: interior and steamboat navigation: iron ships. § 3080. One-third new: labor and materials included: steamboat towage, and like incidental expenses excluded. § 3081. One-third new : Code provisions. § 3082. One-third new: anchors, remetaling, dockage, calking, ironwork, etc. § 3083. Recalking and recoppering exceeding vessel's repaired value. § 3084. One-third new : five per cent stipulation. § 3085. One-third new: new ship: rule here. § 3086. Same subject : English rule. § 3087. One-third new: shij) worth more repaired than before disaster. § 3088. One-third new : proceeds of old materials : rule here. § 3089. Same subject: English rule. § 3090. One-third new: temporary and permanent repairs. § 3091. Decisions that one, third must be deducted from cost: repairs: three-fourths value: fifty per cent rule. § 3092. Same subject: deci-sions that one-third need not be deducted. § 3093. Same subject: opinions of text-writers. § 3094. Same subject: conclusion. § 3095. One-third new: marine interest: bottomry or respondentia money for repairs: repairs defrayed by sale of goods. § 3096. Addition of salvage charges due salvors: estimation of repairs: half value. § 3097. When expenses of temporary repairs enter into general and when into particular average. § 3098. Repairs: general average: jettison and fifty per cent rule. cxxviii CONTENTS § 3099. Cargo: transshipping, etc.: aggregation of losses, etc. § 3100. Expenses for insuring cargo from wreck to destination: fifty per cent rule. § 3101. Loss of goods by jettison : fifty per cent rule : contribution. § 3102. Allowance for custody of vessel during repairs. § 3103. Depreciation in value when added to expense of repairs. § 3101. Repairs: averages: age, unsoundness, decay of vessel: one-third new : fifty per cent rule. § 3105. Where repairing injurj' will place vessel though unsound in same condition. § 3106. Expense of survey to ascertain extent of repairs. § 3107. Expenses consequent upon peril necessarily incurred preparatory to repairs : averages : constructive total loss. § 3108. Expense of raising submerged vessel: averages: contribution by cargo. § 3109. Commissions and disbursements: repairs. § 3110. Premium and fifty per cent rule : repairs. § 3111. Increased expense of repairs abroad over what they might have cost at home. § 3112. Vessel disabled at sea and expenses consequent upon seeking port of distress. § 3113. Obligation to employ master of skill and judgment. § 3114. Obligation of master to inform owner of vessel's loss. § 3115. Master's agency prior to abandonment. § 3116. Master's agencj^ after abandonment. § 3117. Abandonment not accepted: agency or trusteeship of insured. § 3118. Funds for repairs. § 3119. Master's authority: pledge of owner's credit for necessaries, etc., to procure repairs, etc. § 3120. Sale of cargo or part thereof to repair. § 3121. Sale after abandonment. § 3122. Sale, when justifies an abandonment. § 3123. Sale : when abandonment necessary to recover total loss. § 3124. Sale : when abandonment unnecessary to recover total loss. § 3125. Sale : total and partial loss. § 3126. Sale : unreasonable exertions not required to prevent. § 3127. Illegal sale and abandonment confers no rights. § 3128. Sale, whether justifiable: cases. § 3129. Sale whether justifiable: opinions of text-writers. § 3130. Sale, whether justifiable: the rule. § 3131. Sale : master, owner, or part owner. § 3132. Bottomry bond and sale: assurer's refusal to pay bond. § 3133. Sale : obligation to communicate with owner or insurers : notice. § 3134. Sale of cargo: how far justifiable. § 3135. Sale of cargo : cases. § 3136. Sale: right or obligation to transship or forward goods. CONTENTS cxsix CHAPTER LXXX. REPAIRS AND REBUILDING: FIRE RISK § 3150. Repairs and rebuilding : nature of condition : stipulated indem- nity not exhausted. § 3151. Contract to repair or rebuild is between insurer and insured only. § 3152. Right to rebuild must be expressly reserved. § 3153. Character of repairs obligated by reservation. § 3154. Character of repairs may be affected by ordinance. § 3155. Construction of clauses to rebuild and that specif\4ng time of payment. § 3156. Assignment of loss and right to rebuild. § 3157. No time specified, election must be made in reasonable time. § 3158. Option exercised to repair or rebuild : effect of election : defense : pleading. § 3159. Repairs unauthorized unless election made. § 31G0. Time specilled for exercise of option after proofs of loss com- pleted : corrected proofs. § 3161. Delay followed by refusal after notice of election. § 3162. Rebuilding or repairs: delay: reasonable time. § 3163. Remedy: damages: unreasonable delay in rebuilding: failure to complete : defective work. § 3164. Assured, refusal to permit rebuilding or repairs. § 3165. What constitutes an election to rebuild. § 3166. Rebuilding: several insurers. § 3167. Rebuilding : arbitration clause : waiver, § 3168. Parol waiver of right to rebuild: arbitration. § 3169. Election to rebuild waives defense of misrepresentation. § 3170. Rebuilding prevented by ordinance or municipal authority. § 3171. Rebuilding clause : equities : widow's life interest. § 3172. Rebuilding: injunction. § 3173. Action by assurer against building contractor. § 3174. ProjDerty destroyed after rebuilding and v.'ithin term of policy. cxxx • CONTENTS TITLE XII. CONDITION AFFECTING LOSS AND ACTIONS. CHAPTER LXXXI. LIMITATION CLAUSES AFFECTING ACTIONS. § 3181. Stipulations as to the time of bringing suit are valid: construc- tion of. § 3182. Provision making loss payable after certain number of days. § 3183. Waiver of limitation may be by agent of insurer. § 3184. When limitation as to time of bringing suit may be void. § 3185. Provision making time dependent on act of insurer. § 3186. When time of limitation commences to run : life : mutual benefit. § 3187. When action is deemed to be commenced. § 3188. Limitation to certain time "after the loss shall occur." § 3189. "After the happening of the death on account of which the action is brought." § 3190. Within a certain time "after the fire." § 3191. After the loss "shall have become due." § 3192. "One year from the time of the alleged injur}-." § 3193. "Unless prosecuted within one year from the date of the loss." § 3194. Effect of stipulation in contract limiting action to particular forum. § 3195. Effect of provision in charter limiting action to particular foi-um. § 3196. Limitation runs against infant beneficiaries. § 3197. Effect of limitation on action to recover back premiums. § 3198. Limitation does not bar action against company for fraud. § 3199. Mistake in date of policy no excuse. § 3200. Plaintiff's prosecution for arson no excuse. § 3201. Validity of charter provision limiting time for issuing execu- tion. § 3202. Where last day of time limited falls on Sunday. § 3203. Effect of garnishment proceedings. § 3204. Dismissal of suit brought before expiration of time and bring- ing of another suit after expiration of period limited. § 3205. Same subject : exceptions in statutes of limitation not appli- cable. § 3206. Effect of attempt to sue in foreign court having no jurisdiction. CONTENTS exxxi § 3207. Waiver by acts of insurer: negotiations for adjustment. § 3208. Provision that if adjustment not satisfactory suit must be brought within certain time: effect of adjustment. § 3209. Request for further proof waives limitation as to time of bring- ing suit. § 3210. Effect of waiver of proof where policy provides that no suit can be brought until certain number of days after proofs furnished. § 3211. That denial of liability waives provision that suit cannot be brought until a certain time. § 3212. That denial of liability does not waive bringing suit within speci- fied time. § 3213, Effect of injunction preventing payment and receipt of money. § 3214. Where impossible to comply with provision on account of war. § 3215. Where suit commenced within time but summons cannot be served : absence of defendant. § 3216. Payment to mortgagee of his amount of loss no waiver of limi- tation as to mortgagor. § 3217, Effect of clause where company insolvent. § 3218. Substitution of new party plaintiff or defendant after expira- tion of time. § 3219. Where insurer agrees to transfer of action to another court : waiver. § 3220. W^hat will excuse failure to comply with limitations: other in- stances. § 3221. When failure to comply with limitation is not excused: cases generally. § 3222. Bill for reformation of policy, § 3223. Breach of condition is matter of defense: excuses for noncom- pliance need not be pleaded. § 3224. Where time for bringing action is controlled by statute. CHAPTER LXXXII. ARBITRATION AND AWARD. § 3231. Arbitration and award clauses : generally. § 3232. Validity of provision: condition precedent, when. § 3233. Same subject: cases. § 3234. Same subject: cases contra. § 3235. Other provisions as to arbitration and award: invalidity of. § 3236. General rule as to validity: arbitration and award clauses. § 3237. When compliance is not condition precedent. § 3238. Same subject: "At written request." cxxxii CONTENTS § 3239. What constitutes proper request for. § 3240. Manner of obtaining an award should comply with policy pro- visions. § 3241. Provision as to arbitration where loss is total. § 3242. Who is disinterested person : competency of appraisers. § 3243. Demand for appraisal: notice of. § 3244. Demand where loss occurs by distinct fires. § 3245. Where se\eral insurers liable for same loss : separate demand. § 3246. Estimate of loss: prerequisite to arbitration. § 3247. Award binding, when. § 3248. Award not binding, when. § 3249. When mortgagee bound by award. § 3250. Agreement for arbitration subsequent to loss. § 3251. Additional award, where prior award approved. § 3252. Where company elects to build or repair. § 3253. Where arbitrators exceed authority. § 3254. Arbitration clause: limitation of time for bringing suit. § 3255. Refusal to appoint appraisers or comply with arbitration clause. § 3256. Refusal to comply with provision except on new terms. § 3257. Denial of liability is waiver of provision. § 3258. Instances of waiver of arbitration provision by company. § 3259. When there is no waiver of provision. § 3260. Failure to agree upon arbitrators. § 3261. Arbitration waives defects in proof of loss. § 3262. Award may be set aside, when. § 3263. Averments in complaint as to arbitration clause. § 3264. Noncompliance : arbitration and award clauses : defense. § 3265. Where insured dies after submission. § 3266. Appraisers may call in experts. CHAPTER LXXXIII. NOTICE AND PROOFS OF LOSS. § 3275. Notice and proofs of loss: generally: fire: substantial compli- ance only necessary : construction. § 3276. Proofs of loss : parol contract. § 3277. Notice and proofs of death. § 3278. Notice and proofs of death condition precedent to recovery. § 3279. Proof of loss : marine risk : certification by insurer's agent. § 3280. Notice and proofs must be in time limited by policy, when. § 3281. Notice and proofs within certain specified time: insured must show compliance. CONTENTS cxxxiii Where stipulation for notice and proofs within certain time, but no forfeiture imposed for failure to furnish. Accident policy: notice "within ten days" from date of injury or death construed. Accident policy: injury causing total disability: death resulting therefrom: proof of death when time for notice commences. Proofs of loss may operate as notice, but notice alone will not dis- pense with proofs. Notice and proofs of death: condition precedent to right of ac- tion: both notice and proofs must be furnished. Place of notice and proofs. Notice of loss in writing. Notice: proofs: "As soon as possible." Nature of the proofs of death: "due notice and proof of death." Notice "forthwith." "Immediate notice." "Immediate notice:" when verbal notice is sufficient. "Give immediate notice and render particular account." "Immediate notice:" reinsurance. "Satisfactory proof:" what constitutes. Where policy does not prescribe time within which notice and proofs must be furnished. Provisions in by-laws of company as to notice and proofs. Furnishing of proof required is a demand for payment. Notice and proofs: service by mail. Nature of interest need not be stated in proof s .unless required by jDolicy. By whom notice and proofs should be given. Proofs of loss by creditor. Mortgagor and mortgagee: who may furnish proofs of loss. Policy to trustee: change of tiiistee: who may make proofs of loss. Proofs of loss Avhere policy is issued to partners. Proofs of loss signed by insured. Policy payable to another than original insured: when proof must be by original insured. Notice and proofs of death: life policy: who may furnish. Where constitution of fraternal order requires subordinate lodge or secretary of such lodge to make proofs of death. Notice and proofs: accident policy: who may furnish. To whom notice or proofs may be given: notice to. "secretary," agent. § 3313. Stipulation that proofs of loss must state other insurance. § 3314. Where statute requires notice to be accompanied by affidavit as to cause of loss. § 3282. § 3283. § 3284. § 3285. § 3286. § 3287. § 3288. § 3289. § 3290. § 3291. § 3292. § 3293. § 3294. § 3295. § 3296. § 3297. § 3298. § 3299. § 3300. § 3301. § 3302. § 3303. § 3304. § 3305. § 3306. § 3307. § 3308. § 3309. § 3310. § 3311. § 3312. cxxxiv CONTENTS § 3315. Where policy requires proofs to state origin of fire. § 3316. Policy covering goods in separate building : form of proofs. § 3317. Notice and proofs of loss: loss during war. § 3318. Before whom verification shall be made. § 3319. Statements in proofs of loss: how far conclusive: mistakes. § 3320. Statements in proofs of loss as to amount of loss : mistakes. § 3321. Notice and proofs may be condition precedent to garnishment. § 3322. Magistrate's certificate: construction of this provision generally. § 3323. Magistrate's certificate : "if required." § 3324. "Nearest" magistrate or notary : generally. § 3325. Magistrate or notary "nearest to the fire:" "most contiguous" to the fire : rule. § 3326. Certificate of magistrate "not concerned in the loss." § 3327. Sufficiency of magistrate's certificate. § 3328. Effect of statements in certificate of magistrate or notary. § 3329. Statements by physician as part of proofs of death. § 3330. Submission of insured to an "examination under oath." § 3331. Copies of bills, invoices, etc. : books of account. § 3332. Where books of account, invoices, etc., are lost. § 3333. "Particular account:" "Full and detailed statement." § 3333a. Notice of sickness or disease. § 3333b. Accident policy: notice and proofs: generally. § 3334. Accident policy: full particulars: does not require details of sub- sequent injuries. § 3335. Accident policy : notice of injury causing total disability : death resulting therefrom. § 3335a. Employer's liability insurance, § 3335b. Live stock insurance. § 3336. Notice and proofs of loss : notice affecting loss : guarantee in- surance. § 3337. Must furnish all "documentary evidence." § 3338. Where loss is total, "sufficiency of proof." § 3339. Fraud and false swearing: generally. • § 3340. Effect of false statements as to amount of loss where actual loss exceeds amount of insurance. § 3341. Discrepancy between amount claimed in proofs and amount of verdict. § 3342. Where fraud and false swearing enters into some of the items only. § 3343. False statements by agent of insured in proofs of loss. § 3344. False swearing: after commencement of suit. § 3345. Subsequent proofs to be taken in connection with former proofs. § 3346. Where laws of association require approval of subordinate lodge : power to reject. § 3347. Statutory' provisions. § 3347a. Separation of damaged from undamaged goods. § 3354. § 3355. § 3356. § 3357. § 3358, § 3359, § 3360, § 3361, § 3362, CONTENTS cxxxv CHAPTER LXXXIV. WAIVER AND ESTOPPEL— PROOFS OF LOSS. Waiver of notice of proofs of loss. Acts amounting to waiver or estoppel: proofs of loss: cases. Acts not amounting to waiver" or estoppel: proofs of loss: eases. Waiver by agent of company: by adjuster. Waiver of notice not waiver of proofs. Acting on oral notice waives written notice. Stipulations in policy that waiver must be in writing do not apply to proofs of loss. Mere silence no waiver. Failing to give notice of defects within reasonable time and specifying particular defects: retention of proofs. § 3363. Only defects specified can be relied on as defense, othei^s not specified are waived. § 3364. Where insurer objects to proofs and refers to policy. § 3365. Failure of insurer to respond to inquiries. § 3366. Where insurer requires corrections which cannot be made in time limited for furnishing proofs. § 3367. Receipt of proofs after time limited by policy for furnishing same. Request by insurer that proofs be furnished. Same subject : conclusion. Effect of requiring additional proofs. Waiver not acted upon, etc. Where person insured dies without knowledge of beneficiary or insurer and proofs are not furnished within time limited. Denial of liability is waiver of proofs or defects in proof. Denial of lia])ility: charge of incendiarism. Denial of liability may not operate as waiver. Refusal to pay loss because of pendency of garnishment proceed- ings. Denial of liability may be by agent. Refusal by insurer to accept proofs of loss on ground of no liability is waiver. § 3379. Where company declines to receive proofs as not 'being in time or not by .proper person. § 3380. Refusal to furnish blanks: life policy. § 3381. Examination under oath as waiver of notice or proofs. § 3382. Waiver of provision as to particular account of loss. § 3368. § 3369. § 3370. § 3371. § 3372. § 3373, § 3374, § 3375, § 3376, § 3377 § 3378, cxxxvi CONTENTS § 3383. Waiver of magistrate's certificate. § 3384. Where insurer estopped from setting up that insured has sworn falsely in his proofs: adjustment of loss. § 3385. Adjustment as waiver. § 3380. Promise to pay: waiver. § 3387. Offer by company to pay in settlement of loss part of amount claimed. § 3388. Payment of part of loss. § 3389. Submission to arbitration: waiver. § 3390. Appearance and pleading by insurer: waiver. § 3391. Statutory provisions: notice and proofs. § 3392. Letters showing waiver of proofs of loss. § 3393. Waiver: right to insist that proofs were not furnished by proper person. § 3394. Company estopped after payment of money into court to claim proofs insufficient. TITLE XIII. AVERAGE, ADJUSTMENT, AND DAMAGES OR RECOVERY. CHAPTER LXXXV. GENERAL AVERAGE— ADJUSTMENT AND DAMAGES OR RECOVERY. Art. I. General Average and Jettison: Generally. Art. II. General Average, Jettison and Adjustment. Suhdiv. I. York- Antwerp Rules. Siihdiv. II. Other Matters Relating to General Average. Art. til Adjustment and Measure of Damages or Recovery. Art. I. General Average and Jettison: Generally. § 3400. Contribution: laws of Rhodians and Romans: Oleron: generally. § 3401. Etymology of the word "average." CONTENTS cxxxvii § 3402. Divergent usages among maritime countries. § 3403. Jettison generally. § 3404. Jettison defined. § 3405. Essentials of general average. § 3406. Claim to contribution is equitable one. § 3407. General average defined. § 3408. Distinction : general and particular average. § 3409. General average : fire policies. § 3410. Previous consultation not prerequisite to sacrifice. Art. IL General Average, Jettison and Adjustment. Subdiv. I. York-Antwerp Rules. § 3417. Cautionary remarks. § 3418. Jettison of deck cargo. § 3419. Exceptions to last rule. § 3420. Damage occasioned by jettison : water getting down hatches, etc. § 3421. Damage by fire or consequent thereupon. § 3422. Cutting away wrecks or remains of spars, etc. § 3423. Voluntary stranding or running ship on shore. § 3424. Damage or loss : sails and sjjars : ship's engines : press of sail : refloating ship. § 3425. Expense of lightening to refloat ship and of reshipping. § 3426. Sacrifices' made for fuel. § 3427. Port of refuge expenses. § 3428. Port of refuge expenses : English rule. § 3429. Cost of repairs : deductions allowed : temporary repairs : new for old. § 3430. When loss of freight shall be made good as general average. § 3431. Loss of goods : amount to be made good as general average. § 3432. Basis and amount of contributory values and deductions. § 3433. Adjustment as affected by general average clause in contract: affreightment. o* Suhdiv. II. Other Matters Relating to General Average. § 3440. To what extent sacrifice must be successful : subsequent accident. § 3441. Other sacrifices and expenses in general average. § 3442. AVhat is not included in general average. § 3443. Who contributes. § 3444. What contributes. Art. III. Adjustment and Measure of Damages or Recovery. § 3451. Settlement includes adjustment: fifty per cent of goods of sound value delivered. cxxxviii CONTENTS § 3452. Adjustment of partial loss: measure of damages or recovery. § 3453. General average: adjustment: values. § 3454. Measure of damages or recovery. § 3454a. Employers' liability: measure of indemnity. § 3454b. Guaranty insurance. § 3455. Damages or recovery: deductions: exchange: duties. § 3456. Same subject: continued. § 3457. Compound policies: prorating loss. § 3458. Damages or recovery: interest on amount of loss. § 3459. Same subjects: continued. § 3459a. Refusal to pay loss: attorneys' fees. § 3460. Measure of damages or recovery: proportionate amounts: limit- ed liabilities. § 3461. Same subject: continued. § 3462. Same subject: continued. § 3463. Damages or recovery: mutual insurance companies, benefit socie- ties, etc. § 3464. Law of place or termination of adventure governs adjustment: general average. § 3465. Adjustment settled in foreign port. § 3465a. Compromise or settlement: accord and satisfaction: release. TITLE XIV. RIGHTS, REMEDIES, PROCEDURE AND EVIDENCE. CHAPTER LXXXVI. RIGHTS AND REMEDIES. § 3467. Rights and remedies: preliminary statement. § 3468. Right of action by insured : commencement of action or suit : gen- erally. § 3469. Action when contract completed but policy not delivered : trover for policy executed. § 3470. Forms of action, § 3470a. Form of remedy : anticipatory breach or renunciation of contract. § 3471. No action against insurers : refusal to insure : conspiracy. § 3471a. Conspiracy to ruin competitor insurer's business by employing its agents. § 3471b. Fraudulent combination to obtain policy : one party cannot recover share of proceeds from the other. CONTENTS cxxxix § 3472. Several policies upon same property: double insurance: pro rata clause. § 3473. Failure or refusal to levy assessment : action for breach of contract. § 3473a. Same subject : decisions. § 3474. Failure or refusal to levy assessment: mandamus: conclusion. § 3474a. When insurer not obligated to continue issuing assessment policies. § 3474b. Right of action to compel issuance of paid-up policy. § 3475. Election of insurers to rebuild : garnishment. § 347(3. Attachment and garnishment. § 3476a. Garnishment of judgment: employers' liability policy. § 3477. Recovery : insurer in one state, company cannot be garnished in another. § 3478. Action against foreign company : quo warranto : mandamus. § 3479. Action by foreign company to recover money paid agent. § 3480. Action where insured enters into contract induced by fraud. § 3481. Action by insured after settlement. § 3482. Carriers : rights of : remedies against. § 3483. Transfer of member to another class: wrongful refusal of benefit society. § 3484. Wrongful refusal to transfer policy. § 3484a. Beneficiaries' rights and remedies: generally. § 3484b. Beneficiary not entitled to personal judgment for money contracted to be paid for erection of monument. § 3484c. Right of wife to proceeds: ante-nuptial contract: right by succes- sion. § 3484d. Right of action for fraudulently inducing member to change bene- ficiary. § 3485. Rights and remedies of assured: general matters. § 3485a. Lloyds and individual underwriters: right of action and recovery. § 3486. Recovery back by insurer of money: payment made or procured by fraud: mistake of facts. § 3487. Actions for assessment : premium notes. § 3488. Recovery by creditor as beneficiary or a.ssignee of life policy. (a) General statement. (b) Where recovery limited to debt, advances, etc. (c) Recovery when transfer absolute in form. (d) When tru.st against creditor created under agreement. (e) When policy proceeds may be recovered. (f) Recovery where debt barred by limitation: presumption of payment. (g) Other matters affecting recovery. § 3488a. Same subject : illegality of contract. § 3488b. Same subject: recovery limited by policy clause. § 3488c. Riglit to i)roceeds: vendor and vendee. § 3488d. Bailor: right to benefit of insurance. cxl CONTENTS § 3488e. Right to dividends: surplus. § 3488f. Right to abandon contract. § 3J89. Where "sue and labor" clause furnishes additional remedy for sal- vage claims. § 3490. Actions by insurers: generally. § 3491. Right to make post mortem: exhumation: accident risk. § 3491a. Examination of person of assured in respect to injury: negligence of medical examiner. CHAPTER LXXXVII. JURISDICTION INCLUDING REMEDIES IN EQUITY. § 3495. Jurisdiction : generally. § 3495a. Jurisdiction and venue: statutes affecting accident insurance: same, guaranty insurance. § 3495b. Ousting jurisdiction: policy stipulations as to jurisdiction. § 3496. Jurisdiction: judgment in Federal court after property in custody of state courts. § 3497. Statute as to foreign companies: service of process and exclusive jurisdiction of state court. § 3498, Statute as to foreign companies: removal to Federal court. § 3499. Administrators appointed in different states : separate actions. § 3500. Jurisdiction: marine insurance: admiralty. § 3501. Provision in charter of company as to where suits are to be brought. § 3502. Jurisdiction of tribunals of mutual benefit societies: resort to courts. § 3502a. Same subject : distinctions as to gTounds of action. § 3502b. Jurisdiction of tribunals of railway relief associations or depart- ments : resort to courts. § 3503. Jurisdiction : where action may be brought : generally. § 3503a. Same subject: mutual companies or associations. § 3503b. Mutual company: when court will not entertain jurisdiction. § 3504. When court may order exhumation: accident policy. § 3505. Jurisdiction: garnishment. § 3506. Same subject: foreign insurer: agent in state. § 3507. Submission to jurisdiction: appearance: waiver: practice. § 3508. Jurisdiction of equity: generally. § 3508a. Equity: multiplicity of suits: several insurers. § 3508b. Equity: multiplicity of suits: suit by receiver of insolvent insur- ance company. § 3508c. Equity jurisdiction: fraud and misrepresentation. § 3509. Reformation of policy. § 3510. Mistake in name, or date, or description of property. CONTENTS cxli § 3511. Correction of mistakes : reformation of policy : generally. § 3512. Correction of mistake of agent of insured in procuring policy. §3513. Mistake in stating interest of insured. § 3514. Reformation of renewal policy to conform to former one. § 3514a. Reformation or cancelation of policy after loss or death. § 3514b. Ecjuity : revival or restoration of policy. § 3515. When equity will not reform policy. § 3516. Specific perforaiance of contract of insurance: mutual benefit societies. § 3517. Action to compel delivery of policy where contract has been com- pleted. § 3518. Accounting: same, bill for discovery: apportionment: tontine policy. § 3519. Decree apportioning loss. § 3519a. Equity: enforcement of rights under mutual benefit certificates, § 3519b. Equity : failure or refusal to levy assessment. § 3520. Where member has been expelled. § 3521. Change of beneficiary : bill of interpleader. § 3522. Rejection of claim by tribunal of society. § 3523. Equitable lien by mortgagee on insurance money. § 3524. Recovery by mortgagor where insurance paid to mortgagee : appli- cation money on mortgage debt. § 3525. Right to proceeds: vendor and vendee: trustee. § 3526. Right to proceeds: creditors. § 3527. Injunction cases: generally. § 3527a. Bill in equity against insolvent insurer by person injured by auto- mobile : third party policy. § 3528. Particular cases where equity will grant remedy to insured. § 3529. Particluar cases where equity will grant remedy to insurers. § 3530. Cases where equity will not act. CHAPTER LXXXVIII. SUBROGATION. §3537. Subrogation: right to, of insurer: generally. § 3538. Payment of total loss or entire destruction of subject insured equipollent with abandonment in giving right of subrogation: negligence: third parties. § 3539. Insurance on advances : rights of insurer. § 3540. Effect of release by insured to third parties upon insurer's right of subrogation where release is prior to execution of insurance con- tract. § 3541. Same subject : where release is subsequent to execution of insurance contract and before payment of loss. cxlii CONTENTS § 35-ila. Same subject : where insurer has knowledge of pending settlement or of settlement. § 3541b. Same subject: refusal to assign insurer: release to wrongdoer: defense. § 3542. Effect of reservation of rights to indemnity in release to wrong- doers. § 3543. Where policy provides as to effect of release by insured to third parties. § 3544. Release to third party who has knowledge of payment of loss by insurer. § 3544a. Release by insured: effect of, upon his right of action against in- surer. § 3544b. Payment: insurer to receive what insured recovers: insured as trustee: when insurer equitable assignee. § 3545. AgTeements between insured and carriers for benefit of insurance to latter may be valid. § 3546. Same subject: no violation of provision in policy against sale or transfer of interest. § 3546a. Can-iers : rights of insurers : where policy excludes subrogation. § 3547. Abandonment: right to be subrogated subjects insurer to agree- ment and equities under carrier's contract. § 3547a. Provisions in bill of lading : carrier to have benefit of insurance. § 3548. Provisions in bills of lading: carrier to have benefit of insurance: effect where insurer pays loss. § 3549. Rights of insurers against carriers: where no provision for subro- gation. § 3550. Pohcy providing for subrogation: contract with carrier limiting value of consignment. § 3551. Where provision in bill of lading giving carriers benefit of insur- ance conflicts with policy provisions. § 3552. Stipulation for benefit of insurance where loss caused by carrier's negligence. § 3553. Stipulation in bill of lading that carrier shall have benefit of insur- ance does not compel owner to insure. § 3554. Where no stipulation for subrogation of carrier. § 3555. Where owner has insurance but refuses carrier the benefit thereof. § 3555a. Whether money advanced is loan and repayable, or a payment by insurer : receipt : subrogation. § 35.36. Subrogation of insurer to rights of mortgagee: policy to mort- gagor: "loss payable to" mortgagee. § 3557. Same subject : policy void as to mortgagor, valid as to mortgagee : stipulation for subrogation. § 3557a. Same subject : acquisition of legal title by mortgagee. § 3557b. Same subject : refusal of mortgagee to assign to insurer. CONTEXTS cxliii § 3j57c. Same subject : rights of assignee : purchaser of equity of redemp- tion. § 3558. Same subject: where deficiency due on debt after foreclosure sale exceeds amount of insurance. § 3558a. Sale by owner, subject to trust deed: vendor's lien reserved: in- surer's right of subrogation. § 3559. Insurance by mortgagee where mortgagor pays or under provision of mortgage may be chargeable with premium. § 35G0. Same subject: conclusion. § 3561. Policy to trustees: agreement to subrogate insurer. § 3562. Policy payable to sureties: subrogation of debtor on payment of debt. § 3563. Right of insurer to subrogation where no provision therefor in policy issued to mortgagee and nothing inconsistent therewith: contract between mortgagor and mortgagee. § 3564, Same subject : Massachusetts decisions : contrary view. § 3564a. Rights of one of several insurers: settlements by mortgagee with other insurers. § 3564b. Same subject : effect of contribution clause. § 3565. Effect upon insurance right to subrogation when mortgage debt exceeds amount of loss. § 3566. When mortgagor entitled to subrogation against insurer. § 3567. Policy to mortgagor: mortgagee no right of subrogation. § 3568. Foreclosure proceedings: subsequent loss: sale under foreclosure and deficiency. § 3568a. Subrogation of insurer to rights of creditors of assured. § 3568b. Policy payable to lien holder: when insurer not entitled to subro- gation. § 3568c. Judicial bond: joint or severable liability: surety's right of subro- gation. § 3569. Rights of insurer, vendor and vendee: where sale incomplete: executory contract of sale. § 3570. Vendor and vendee: goods: seller's risk. § 3571. Repairs: insurer's right. § 3572. Rights of insurers to subrogation to contract rights of insured with third parties. § 3572a. Insurer's right of subrogation: illegal contract with city to fur- nish water supply. § 3573. Insurance by lessor: rights to proceeds. § 3573a. Insurance by lessee: liability of lesser: subrogation: defense. § 3574. Loss by negligence: wrongdoer: carrier: rights of subrogation: fire and marine insurance. § 3574a, Same subject liability of railroads for fires, etc.: subrogation of railroad or insurer: constitutional law: retroactive statute. § 3575. Same subject: marine insurance: collision. exliv CONTENTS § 3575a. Effect of part payment by insurer : negligence of third person. § 3576. Collision between vessels owned by same person : insurer's rights. § 3577. Fidelity guaranty : right to subrogation. § 3578. Foreign company : failure to comply with statutory requirements : right to subrogation against wrongdoer. § 3578a. Right of subrogation against wrongdoer: insurer member of un- lawful combination : defense. § 3579. Deatli caused by negligence or wilful act of another: insurer's rights. § 3579a. Personal injury: negligence, etc., of another: accident policy with- out stipulation for subrogation. § 3579b. Right of subrogation under emploj^ees' liability insurance. § 3580. Subrogation of insurer's agent to their rights : premium. § 3580a. Right of subrogation of insurer's agent who pays premiums under a mortgage clause. § 3581. Contract by bailee to insure goods: right of company insuring owners. § 3581a. Theft of an automobile : insurer's right of subrogation. § 3582. Vessel impressed into naval service: subrogation of insurer against government. § 3583. Insurance of pretended interest : recovery : real owner no rights. § 3583a. Waiver : insurer's right of subrogation : adjuster. § 3583b. Subrogation : form of remedy. CHAPTER LXXXIX. BANKRUPTCY— INSOLVENCY— DISSOLUTION. § 3590. Bankruptcy and insolvency. § 3591. Effect of insolvency. § 3592. General powers of receiver: assignee. § 3593. Powers of receivers : collection of assets : receiver in state of domi- cil of company. § 3594. Trustee in insolvency may recover where company has released a stockholder in violation of creditor's rights. § 3595. Rights of policyholders after dissolution : generally. § 3596. Priority of claims: where death of insured occurs before insol- vency of company: after insolvency: preferences. § 3597. Payment and priority of claims: cheek given before insolvency: dividend declared before: generally. § 3598. Dissolution of benefit society: mutual companies. § 3598a. Mutual marine insurance company: effect of insolvency upon policies : cancelation. § 3598b. Credit guaranty insurance: insolvency of insurer: excess losses. CONTENTS cxlv § 3599. Insolvency of maker of premium note of debtor holding life policy. § 3600. General matters in bankruptcy and insolvency. § 3601. Distribution of assets. CHAPTER XC. PARTIES— PLEADINGS— PRACTICE— DEFENSES. SuBDiv. I. Parties — Practice — Rights and Remedies. II. Pleadings. III. Practice, IV. Defenses. SuBDiv. I. Parties — Practice — Rights and Remedies. § 3607. Who' may be parties to the action: generally. § 3608. Contract under seal: who may sue. § 3609. "For whom it may concern:" who may sue. § 3610. Parties: in name of a.ssured. § 3611. When mortgagor may sue. § 3612. When mortgagee may sue. § 3613. Same subject: mutual companies. § 3614. Same subject : mortgagee clause. § 3615. Assignor and assignee: who may sue. § 3616. Same subject: life policies. § 3617. Parties: assignee: mutual companies. § 3618. Sale of property : assignee of, may sue. § 3619. Parties: assignor and assignee: collateral security. § 3620. Parties: assignment after loss. § 3621. Parties: trustees: "sold but not removed:" "their own but held in trust." § 3622. Parties: consignor and consignee. § 3623. Parties: carriers. § 3624. Beneficiaries: who may sue. § 3625. Same subject: wife: widow. § 3626. Same subject: children. § 3627. Same subject: children: guardian. § 3628. Same subject: partners. § 3629. Insurance as members of a club. § 3630. Parties: personal representatives: administrator: executor. § 3631. Same subject : mutual companies. § 3632. Parties: agents. § 3633. Parties : principal : disclosed : undisclosed. § 3634. Parties: policy to husband on wife's property. cxlvi CONTENTS § 3634a. Parties: joinder: husband and wife: community property: home- stead. § 3634b. Partiei^: husband: wife: mistake in name. § 3635. Parties: partners. § 3636. Parties: part owner: owner. § 3637. Renewals: who may sue. § 3638. Parties: sale under sheriff's certificate. § 3639. Joinder of parties: who may be joined. § 3640. Same subject : nominal partners. § 3641. Joinder : owner, agent, or otherwise : "for whom it might concern." § 3642. Joinder : mortgagor and mortgagee. § 3643. Joinder : heirs : children : husband : wife. § 3644. Libelant : insurer may be made colibelant or joined with insured or made party defendant in certain cases. § 3645. Joinder: jDolicy as collateral: stockliolders. § 3646. Joinder of parties: statutes. § 3646a. Joinder of parties : guaranty insurance. § 3647. Misjoinder of parties: who need not be joined. § 3648. Open policy: who may sue. § 3649. Double insurance: parties defendant. § 3650. Parties : charterers. § 3651. Parties: bonds with state treasurer. § 3652. Suit by treasurer of mutual insurance company. § 3653. Parties : insolvency : stockholders : attorney general. § 3654. Parties : manager of mutual insurance company. § 3655. Parties: receivers. § 3656. Corporate franchise: usurpation: parties. § 3657. Parties defendant: mutual insurance company. § 3658. Parties : insurance company against wrongdoers. § 3658a. Parties : indemnity against liability, or for losses paid employees or third persons. § 3658b. Same subject : privity of contract : employee against insurer. § 3658c. Same subject : employee against insurer continued. § 3658d. Same subject : employee against insurer continued : insolvency of assured. § 3658e. Same subject : stipulation that insurer defend. § 3658f . Same subject : withdrawal of insurer from defense of suit. § 3658g. Same subject: dismissal of parties. § 3658h. Same subject : employer against insurer. § 36581. Real party in interest: legal owner: beneficial owner: elevator policy. § 3658J. Same subject: assignee of insured: misjoinder. § 3658k. Same subject: joinder: insurer and employee: employee and re- ceiver. CONTENTS cxlvii § 36581. Privity of contract: parties: lessee or his assignee against in- surer. § SG.jSai. Parties: insurer: intervention. SuBDiv. II. Pleadings. § 3665. Declaration: complaint or petition. § 3666. Sufficiency of declaration, complaint, or petition, § 3667. Declaration, etc.: benefit societies: mutual companies. § 3668. Declaration: under statutes or codes. § 3669. Declaration : foreign companies. § 3670. Embodying the terms of the policy in the declaration. § 3671. Declaration: application. § 3672. Averment of interest. § 3673. Averment of interest : life policies. § 3674. Averment : performance of conditions precedent. § 367."). Conditions precedent: statutes. § 3676. Declaration: conditions: notice and proof of loss. § 3677. Declaration: conditions: suing after proofs of loss furnished. § 3678. The loss: damage: value of property. § 3679. Loss by barratry not recoverable under averment only of loss by capture. § 3680. Averment of ownership. § 3681. Declaration, etc., insufficient. § 36S2. Insufficient declaration, etc.: mutual benefit societies. § 3683. Declaration, etc. : pleading waiver. § 3684. Declaration, etc.: need not aver matters of defense: conditions subsequent. § 368.3. What declarations need not aver: generally. § 3686. Admissions by the pleadings: what they do not admit. § 3687. Amendments. § 3688. Multifariousness. § 3689. The answer. § 3690. Answer: insufficient; no defense. § 3690a. Replication. § 3691. Matters specially pleaded: general issue. § 3692. Plea in l)ar : abatement. § 3693. Demurrer. § 3693a. Demurrer to answer. § 3694. Bill of particulars: of discovery. § 3695. Bill of interpleader. § 3696. Replication: traverse. § 3697. Variance. cxlviii CONTENTS SuBDiv. III. Practice. § 3705. Practice. § 3706. Service of process. § 3707. Consolidation of actions. § 3708. Interrogatories. § 3709. Order of reference of case. § 3710. Admission of newly discovered evidence after evidence bad closed. § 3710a. Whether question for court or jury. § 3711. Instructions to jury. § 3712. Instructions: cases where not erroneous. § 3713. Instructions: cases where erroneous. § 3714. Arguments of counsel. § 3715. Special findings: special verdict. § 3715a. Objections to findings. § 3710. Defects in declaration cured by verdict. § 3717. Judgment of trial court final as to matters of fact. § 3718. Verdict : contrary to evidence : excessive damages : new trial. § 3718a. Verdict : correction of, after separation of jury. § 3710. Appeals : discretion of court as to motions. § 3720. Appeals : questions not raised at trial of ease, § 3721. Appeals. § 3722. New trials. § 3723. Incidental matters of practice. SuBDiv. IV. Defenses. § 3731. Waiver: estoppel. § 3732. Fraud and deceit. § 3733. Fraud between third party and assured no defense in action against the company. § 3733a. Incontestability: fraud: false and fraudulent misrepresentations or warranties: review of decisions. (a) Arkansas. (b) California, (e) Georgia. (d) Idaho. (e) Illinois. (f) Indiana. (g) Iowa. (h) Kentucky, (i) Louisiana, (j) Massachusetts. (k) Missouri. CONTENTS cxlix § 3733a— cont'd. (1) New Jersey. (m) New York. (n) Rhode Island. (o) Tennessee, (p) Texas. (q) Wisconsin. § 3733b. Same subject: summary and conclusion. § 3733c. Incontestability: insured not in good liealth when contract in- cepted. § 3733d. Incontestability: other instances. § 3733e. Incontestability: statutory provisions. § 3733f. Incontestability: what parties entitled te protection. § 3733g. Incontestability: when period of, begins: computation of time. § 3733h. Incontestability: renewal or revival of policy: reinstatement. § 3734. Sufficient defenses to actions on premiums, etc., notes. § 3735. Defenses which are not good to actions on premium, etc., notes or assessments. § 3736. Set-off: recoupment: counterclaim. § 3737. Set-off in action on premium notes. § 3738. Defense to action by mortgagee: tender. § 3739. Policy to cover consignor's interest. § 3740. Noncompliance with by-laws as a defense: conditions subsequent. § 3741. Election by company to repair. § 3742. Amount of loss received from another than insurer: no defense in action against company. § 3743. Matters of defense after adjustment of loss. § 3744. Defenses: general matters. CHAPTER XCI. EVIDENCE. § 3755. Best evidence. § 3756. Proof in support of pleadings: evidence admissible. § 3757. Admissions by pleadings: payment of money into court. § 3758. The policy or certificate. § 3759. Application in evidence. § 3760. Oral contract: contract to insure. § 3761. Insurable interest: generally. § 376] a. Same subject : wager policy. § 3762. Insurable interest in ship : the ship's register. § 3763. Insurable interest: goods, bill of lading, freight: generally. § 3764. Insurable interest : burden of proof. § 3765. Evidence of sufficient proofs of loss: receipt of by company: burden of proof. § 3766. Proofs of loss as evidence. el CONTENTS § 3767. Marine insurance: proof of loss: master's protest. § 3768. Evidence of loss: proximate and remote cause: within tbe policy. § 3769. Evidence of value of property : amount of loss : fire insurance. § 3769a. Evidence of loss to growing crops and extent thereof : hail in- surance. § 3770. Evidence to show what goods are covered : case of shifting and successive goods. § 3771. Evidence of loss: amount of: value of property: marine in- .surance. § 3772. Evidence of death : proofs of as evidence : disease. § 3772a. Evidence of death : coroner's verdict or finding. § 3773. Presumption as to suicide or murder. § 3774. Suicide: evidence of. § 3775. Insanity : presumption against : evidence of. § 3776. Proof of matter in defense: life insurance: burden of proof: character. § 3777. Proof of matters in defense: fire insurance: burden of proof: increase of risk: breach of conditions. § 3778. Evidence of other insurance. § 3779. Proof of matters in defense: marine insurance. § 3730. Misrepresentations : materiality of. § 3780a. Misrepresentations as to age : presumptions : evidence. § 3781. Evidence: clause in policy as to false swearing or attempt at fraud. § 3782. Evidence to show fraud : wilful burning. § 3783. Evidence of fraud : generally. § 3784. Burden of proof: compliance with conditions and warranties: fire insurance. § 378o. Marine insurance: compliance with warranties: burden of proof. § 3786. Presumption as to seaworthiness and unseaworthiness: burden of proof. § 3787. Same subject: cases. § 3738. Deon, A'alin, and Pothier. So in Franklin Ins. Co. v, Lord,^* Story, J., .says the doctrines of Valin, Pothier, and Emerigon are en- titled to great weight and cites from Emerigon, whose treatise is also considered in Vandenheuvel v. United Ins. Co. ^* Of the repoi*ts of Mason and Gallison, in which appear two of the above ca.^^es. Chancellor Kent ^^ declares that they may fairly be placed upon a level with the best ])roductions of English admiralty, for deep and accurate learning, as well as for the high- est ability and wisdom in decision. So, in the Star of Hope " the court, in discussing the question of general average, cites Emeri- gon. Again, the Ordonnance of Louis XIV. (1681),^* and the commentary thereon by Valin, is referred to by the court in Mor- gan V. The Insurance Company of North America, ^^ decided in 1806. It says: ''These ordinances and the commentaries on them l-ave been received with great respect in the courts both of England and the United States, not as containing any authority in them- selves, but as evidence of the general marine law. Where they are contradicted b}' judicial decisions in our own country they are not to be respected, but on points which have not been decided they are worthy of great consideration. I am strongly inclined to adopt the rule laid down by Valin. because I think it reason- able.'' This case is cited on the point decided, on the above authori- ties, in King v. The Debuvare Insinance Company. '^^ In Odlin v. The Insurance Company of Pennsylvania,^ the court says the opinions of French jurists on the question there under consid- eration had no inconsiderable weight with it, and although founded u]^on positive ordinances, yet they were evidence of the general law of merchants upon the subject, no judicial decision and no custom appearing to the contrary. "The sea laws and state ordi- nances of many of the maritime countries of Europe have, with some exceptions, gradually become incorporated with the coni- ng 1 Pet. Adni. (U. S.) 142. Fed. U. S.) 203, 230, Ifl L. ed. 638, per Cas. No. 17,135. Mr. Justice Clitt'ord. 12 1 Pet. Adni. (U. S.) 157, Fed. ^^ ^ec uote 8, ante, under this sec- Cas. No. 12,801. tion. "3Caines (N. Y.), 21. ^^ 4 Ball. (4 U. S.) 455, 458, 1 1*4 Mason (U. S. C. C.) 248, 255, L. ed. 907, per Tilghman, C. J. Fed. Cas. No. 5,057. 20 -^ ^Vash. (U. S. C. C.) 300, 307, «2 Johns. Cas. (N. Y.) 127, 150 Fed. Cas. No. 7,788. etseq. ^2 Wash. (U. S. C. C.) 312, 315, 16 3 Kent's Comm. (13th ed.) *20. Fed. Cas. No. 10,4.33. "The Star of Hope, 9 Wall. (76 6 SOURCES AND ORIGIN OF INSURANCES § I. mercial law of England by a kind of tacit adoption, and are in these cases considered as evidence of the customs of merchants. These regulations are used in the British and American courts, and have frequently furnished rules of decision where the posi- tive law of the country or former decisions upon the point had not prescribed a different one." And the court refers to Roccus, Le Guidon, A'alin, Emerigon. Pothier, and the Ordonnance of Louis XIV.2 S5 in Hone v. Tlie Mutual Safety Insurance Com- pany ^ the court considers the Ordonnance de la Marine of Louis XIV.,* Valin, Emerigon, Boulay Paty, and Alauzet, upon the question of reassurance. An examination of the insurance cases of England further shows that for the most part, certainly until comparatively recent times, they have concerned marine insur- ance ; ^ and the earlier statutes of England, which legislate con- cerning insurance as such, relate to marine insurance. It is, therefore, these ancient usages and customs of merchants, digested and compiled into sea laws, ordinances, and treatises, which have furnished the leading principles for the adjudication of insurance cases, and which are the sources from which Lord Mansfield, Story, and other learned jurists, have drawn in the determination of marine cases of insurance, and so marine law and marine insurance for a long period of time furnished the most certain developments of the principles governing the contract of insurance.^* 2 See note 8, ante, under this sec- "The legal principles of marine in- tion. surance, siu-li as those relating- to 3 1 Sand. (N. Y.) 137, 145. fraud, coueealment, misrepresenta- * See note 8, ante, under this see- tion, warranties, subrog-ation, agency, tion. reinsurance, rectitication of policy, ^ For cases down to 1795, see and return of premium, apphj, with Beawes' Lex Mercatoria, 302, et seq. certain few exceptions, to all insur- 5a "Until the year 1907 the law of auccs, so far as their application is marine insurance was derived mainly not excluded or modified by the terms from the decisions of the courts and of the policy. , . . The main ex- the treatment of textwriters ; but its ceptions above referred to are: (1) leading principles are now contained The doctrine of constructive total loss in the marine insurance act 1906 (6 and notice of abandonment, the rules Edw. VII. c. 41), the full title of as to adjustment of a partial loss, which is 'An Act to Codify the Law and the doctrine that a policy may be Relating to Marine Insurance' (the ratified after a loss. (2) Life insur- title of an act of Parliament is now ance is not a contract of indemnity, part of the act, and may be taken and the prin('ii)le of subrogation does into consideration for the purpose of not apply to it. The practice as to construing it). The act came into discovery of ship's papers is peculiar force on the 1st of January, 1907." to marine insuraiu-e, and does not 1 Arnould on Marine Ins. (8th ed. extend to any other cases of insui-- Hart & Simev) see. 1. ance." 17 Earl of Halsbury's Laws 7 §§ II., III. JOYCE ON INSURANCE § II. Origin of insurance generally. — The origin of insurance is wrapped in such obscurity that an exliau.stive examination of the works of the most learned authors on this subject fails to discover the exact time when insurance Avas first known or practised. Some of the most eminent Avriters contend that it was known to the ancients; others, that it had its inception in the necessities of mari- time commerce, and the risks and hazards consequent tliereon ; although none of these fix detinitelv the date of its invention and first practice. It is, however, argued by other prominent writers that tlie present nuitual insurance system had its origin in those artilicial alliances or clubs, which are said to have existed from time immemorial for nuitual benefit and assistance in different exigencies, in China, among the Teutons, the early Christians, and the ancient Greeks and Romans. That from these alliances or clubs sprang what were known as "guilds," between which and the Friendly Societies of England, mutual benefit societies, and the nuitual insurance system, the connection can be traced. There are certainly many points of resemblance between some of the alli- ances or clubs and the mutual insurance system, as will be noticed hereafter; and, if mutual insurance is a lineal descendant there- from, then the date of the earliest existence and practice of insur- ance can be somewhat more definitely fixed than it can upon the theory that it owes its inception to maritime commerce. In view, then, of the preceding remarks, we will consider spe- cifically the origin of the ditt'erent kinds of insurance, placing marine insurance first, because the most replete references, legal and historical, are to that branch of the contract of true insur- ance, and also because that concrete idea known as marine insur- ance first took tangible shape, grew, and was more extensively known and practised among nations than any other kind of inT surance until, perhaps, recent times. We shall next consider the origin of the mutual insurance system, and follow with the origin of the several kinds of insurance in that order which their priority of existence, coupled with their relative development and growth, as governed by the weight of authority, 'shall warrant. § III. Origin of marine insurance. — Whether insurance .was used among the Koniaus is a disputed question, and one upon which there is no certain evidence. of Engf. p. 513 {citing Tannel)aum & papers is peculiar to marine insur- Co. V. Heath, [1908] 1 K. B. 1032, ance"). See also Id. p. 335, as to C. A. 77 L. J. Iv. B. 634, 99 L. T. construction of marine insurance act 237, 13 Com. Cas. 264, 24 T. L. R. 1906, and extent of legal principles 450-C. A., wliei-e Eai'well, L. J., says: embodied therein. See also note 2, "It appears from all the cases that ante, herein, the right to claim discovery of ship's 8 SOURCES AND ORIGIN OF INSURANCES § III. The pi'iiieijial armmieiits adduced in its favor are: 1. Pa.s'^ages from Livy ® and Suetonius,''^ iini)lying that the government of Home, during tlie Kepubhc on two occasions, and the reign of the Emperor Claudius on one occa^fion, had assumed the risk of losses that might arise during the course of certain voyages, by storms oi- enemies. 2. That Cicero, in a letter Avritten to the Proqua_\stor Caninius Sallust. at Laodicea, asks him to procure himself sure- ties for treasure he should be sending home.* 3. That the laws i-elating to usury in the Justinian Code and Pandects,^ and else- where, specified the rate of interest granted to nautical insurance. 4. That the extensive u.^^e of bottonny and respondentia affords a strong presumption that insurance in its simpler forms was known and practised among the ancients. 5. That the nauticum fanms, the trajectitia, or nautica pecunia, which were terms used to indi- cate a form of obligation connected with carriage by sea or marine adventure, wherein entered the element of risk, resembled insur- ance. 6. That the Romans possessed ships and commerce, and wherever foreign connnerce was introduced some protection or se- curity of the nature of insvu'ance would be necessitated, especially in times of war, to encourage merchants to undergo the risks and hazards of adventures at sea. 7. That insurance, as a wager, was not unknown to the Romans. 8. That the above evidences, scat- tered through the Roman law and Roman history, if not suflicient in themselves, taken separately, are the several constituents which, aggregated, disco\er the existence among the Romans of the sys- tem of insurance. Opposed to these facts and the proposition they are advanced to prove are arguments to .show: 1. That the passages from Livy and Suetonius have no application to insurance; that the inference therefrom is that contractors were only to transport the stores i)ur- chased of them to their destination at the risk of the government, or, in other words, that the government became purchasers of the commodities or merchandise before embarked, and consequently the actual owner during the voyage. 2. That no inference is to be deduced from Cicero's letter in favor of the proposition, but that the reference therein has a nnich stronger atlinity to bills of exchange than to insurance. 3. That the laws relating to usury 6 T. Livius, lib. 23, n. 49; lib. 25, n. Facts, p. 378; Id. (1900) "Insurance," 3. whore it is said: "Siu-tonius conjec- ' Lib. 25, n. 21. "The origin of lures that Chuidius, the Koman Kni- insuraiice is unknown; it has, on the peroi-, was (he first contriver of the authority of Suetonius, been ascribed insurance of ships, 43 A. D." fo the Emperor Claudius, .\. n. 43." * Cicero, lib. 2, epis. 17. Haydn's Diet, of Dates (25th ed.) ^ pubiiyij(>j respectively A. D. 529, p. 728. See also Harper's Book of 533. 9 § III. JOYCE ON INSURANCE in the Code and Pandects deferred only to maritime interest, the fonyideration given in a bond of bottomry or hypothecation, and not to premium of insurance. 4. That impignoratio embraced what is knoAvn as bottomry, hypothecation, and respondentia ; that the foundation of these was merely a loan or pledge, either per- sonal or on property. 5. That foenus nauticum, trajectitia, or nautica pecunia were only payments for money advanced, or were terms used to indicate the loan, and as the creditor ran a risk during the voyage, and as the risks might apply to the ship or part of it, or to the cargo pledged for the payment of the debt, the rate of interest nauticum foenus usurse maritimae might be higher than ordinary. 6. That there is no evidence that any premium was paid in these transactions. 7. That ancient maritime commerce was limited and exposed to a paucity of risk, and that the naviga- tion of the Romans was for war, and not for peace or commerce. 8. That insurance is not a Avager, and the knowledge of wagers among the Romans would not imply a knowledge of insurance. 9. That there is no positive information, historical or otherwise, that insurance was in use among the Phoenicians, Carthaginians, or Greek republics, and that the Roman laws, the laws of Oleron, of Wisby, and of the llanse Towns, are silent as to insurance. It is also argued that Coke, in 1588,^° notices the practice as a novelty. With some or all of the above aflrirmative facts as the principal basis, it is deduced that insurance existed among the Romans by Emerigon," Rcklarride,^^ Duer,^^ Elliott," and others. Gibbon ^^ 1° Rep. pt. 6, pp. 46, 48. of law. With the Italians it is held 11 Emerigon on Ins. (Meredith's in the highest credit," and he also ed. 1850) xxxii. Emerigon, the refers to other authorities which show French jurist, had a well-earned rep- the great value of the work. Valin, utation for skill and learning in the the coniiuentator of the Ordonnanee maritime law, and his researches as de la Marine, speaks of Emerigon's to the origin and law of insurance learning, and Justice Park (Park on were laborious and exhaustive. In Insurance, 4th ed., xv.) refers to him the early part of 1783 his work on as a distinguished writer, and lie is "Marine Insurances" was published, cited as an authority in the courts "It is a work that has long been botli in England and this country, held in esteem in all commercial coun- ^^ Comm. de Code de Commerce, tries in Europe and America," says sec. 1004. Meredith in the introduction to his ^^ Diier on Ins. (ed. 1845) 7 et edition of date 1850 of the work (p. seq. xxix.), and he adds ( id., n. 1.) : "Es- i* Elliott on Ins. (ed. 1907) sec. 2, trangin (Disc, prelim., p. 32) af- p. 7, where he says : "It is thus more firms that in France it is regarded as than probable that the Romans were a sure oracle in the matter of insur familiar with the practice of insur- ance; that it is cited in the tribu- ance. . . . Insurance seems to nals as an authority having the force grow naturally out of an extensive 10 SOURCES AND ORIGIN OF INSURANCES § III. connects the. usury liuv-^ with nautical insurance. Walford,^^ rely- ing upon Ilendriks," docs not go as far as Gibbon, but .states that the contract of nautical interest or loan on bottomry or respondentia was used from very remote ages by the Greeks, Romans, and other nations as their ordinary insurance contract, and that it formed the traditionary groundwork of the insurance system; and this author quotes from Leybourn's Parnarithmologia that insurance was es- tabhshed by a law under Claudius Csesar; and Maylnes ^' declares Claudius "did bring in this most laudable custom of assurances." Richards ^' has briefly declared that the practice of underwriting by individuals lays claim to great antiquity, although he adds that its origin is a matter of doubt ; ^° while among those who assert that insurance was unknown to the Romans, Hopkins ^ admits tbat the transactions relating to interest or usury and maritime loans, above mentioned, bore a resemblance to insurance in the in- troduction of risk as an element in the pretium or rate of interest. He also says: ''Unquestionably within the compass of the Roman law and the details of Roman history may be found scattered the se\eral constituents which, when built together, form the system of marine insurance."' So, Marshall ^ also admits that the observa- tion of Ulpian in the Pandects gives color for insurance having been known among the Romans; that bottomry was a species of insurance, and was well understood by them; and we would add that it is generally conceded that bottomry and respondentia were well understood by the ancients; and the American Cyclopedia says it is possil)le that in.surance was common among merchants centuries before it was recognized by law.^ Again, in answer to the negative argument of silence of the Roman laws and Ronian juri.sts on this subject, Duer,* by an exhaustive course of reasoning, and Meredith,* in an excellent short note, show that this argument is commerce, and it is almost impossil)lc Diet, of Dates (25tli ed. 1911) ^p. to believe that without its protection 728; Harper's Diet, of Facts, p. 378. the tlourishing commerce of Tyre, i^ Richards on Ins. (ed. 1892) .sec. Carlhage, Corinth, Athens, Rhodes, 5, p. .5. and Alexandria could have been sue- ^'^ f^ee Id. (3d ed.) sec. 9, p. 12, cessfuUy carried on through so many where it is said: "Loans on bottomry ages." tire of ancient date, and from this 15 Decline and Fall (Milnuiu's ed. maritime usage the earliest forms of 18(^0 ) vol. 4, 368. . insurance may have developed." 16 Watford's Ins. Guide (2d ed.) 3. ^ Hopkins' Mar. Ins. (ed. 1867) 6, " Assur. Mag. vol. ii. 9, 10. "Lex Mercatoria (ed. 1(322) 146. 2 T^farshall's Ins. (.jth ed.) r, et seq. As to bottomry being conunence- ^9 American Cyclopedia, 314. ment of marine insurance, see ^Mar- ■* Duer on Ins. (ed. 1845) 7 et seq. tin's History of Lloyds & Marine * Eraerigon on Ins. (Meredith's ed. Ins. pp. 3 et seq. See also Haydn's 1850) xxxiii. n. a. 11 § 111. JOYCE OX INSURANCE not conclusive, and that notwithstandinii; there is, says the former, a fair presumption, and the hitter, an extreme probability, that in- surance was known to the Eomans. That insurance is of great antiquity is further evidenced by the works of Bacon,^ and also by the jn-eamble to the earliest English statute on insurance, of date 1()017 in both of which it is spoken of as a usage which had existed "•time out of mind." In support of some or all the propositions for the negative above mentioned and of the claim that insurance was unknown to the Romans, are Marshall,^ Park,» Hopkins,i° Parsons," and the Ameri- can Cyclopedia.^^ Kichards ^^ says the practice of marine underwriting probably started in the r2thor loth century. Hunter ^^ speaks of maritime loans pecunia trajectitia. and says Justinian fixes in them the maximum of interest. Ortolan ^^ defines trajectitia or nautica pe- cunia as a loan or pledge duinng a voyage, and asserts that on ac- count of the risk a higher rate of interest was allowed. The same author also says the .Justinian Code hxed the rate of interest for maritime loans,^^ and Justice ^"^ speaks of money lent to sea or upon the sea as foenus nauticum, pecunia trajectitia, usura mari- tima, and translat&s foenus nauticum, naval interest, and gives as a reason that "there seems to be such a difference between the foenus nauticum of the Rhodians and our bottomry that the latter would not be a proper term for the other." From an examination of the authorities and of the arguments on both sides we are strongly inclined to the belief that there are many traces of the existence among the Romans of the contract of insurance, and we are more especially led to this conclusion by reason of the learning and laborious researches of Emerigon and the great value of his work on insurance, as also by the arguments adduced in favor of tlie proposition by Meredith, Duer, and others, as well as by the admissions of those of the opposite view. But we are unal)le to determine to what degree of perfection the system 6Biif-oii"s Abndaratively few.^* We have mentioned the earliest grant to insurance companies in England, and it may be stated here that in the United Sfates it appears that a marine insurance office, which did underwriting un- der Lloyds system, was established in New York in 1754; and that in 1794 the Insurance Company of North America and the Insurance Company of the State of Pennsylvania were the first corporations that undertook marine underwriting.^** In New York the first general statute in relation to marine insurance was passed in 1849."" § IVa. Marine insurance continued: origin of Lloyds. — A con- sideration of the origin of marine insurance would not be complete without a mention of Lloyds, which may be referred in the be- ginning to the date 1688, in which year appears the earliest notice thereof. In 1692 Lloyd removed his cofteehouse to Abchurch lane, London, Avhich became the resort for underwriters and merchants,^* B ness peets any class of assurance busi- Cavalicant v. Maynard, in 1550, Id. less to the special provisions of this p. Ixxiii. The case of Emerson v. act relating to that class. Tiie act Sallanova, which was a claim upon (with exception of sec. 36 which an indemnity given against the with- came into operation on passage of drawal of a safe conduct by the King act) went into operation July 1st, of France 1545, is thus briefly mtu- 1910. See 5 Earl of Halsbury's tioned in 11 Id. p. Ixvi. as having Laws of Eng. pp. 620 et seq.; 2 been litigated in admiralty, altliougb Butterworth' 20th Cent. Stat. p. 430. not elsewliere mentioned in said vol- ^'4 Inst. 142; cited in Dowdale's umes. ease. Coke's Rep., pt. 6, 46, 48, Id. "See Park on Ins. (4th ed.) xliii. 3 Frazer, 351. Crane v. Bell, 7 "« 13 New Internat. Ency. (1908) Coke's Inst, (part 4) cap. 22, p. p. 64. 139, sometimes cited to this point as As to legislation, statistics, etc., of an earlier date, Avas a case where, marine insurance (1912) see New according to Coke, a promise was International Year Book, pp. 333, et made at Dartmoutli that a ship seq.; Id. (1911) pp. 360 et seq.; Id. should pass safely without taking and (1910_) pp. 376 et seq.; Id. (1909) surprising, etc., which ship was after pp. 3/4, 375: Id. (1908) pp. 3G1 et taken by the Spaniards super altum se(|.; Id. (1907) p. 400 et seq.; 2 mare: Held, not determinable in ad- Suppl. Americana (1911) "Insurance miralty for that albeit the taking was IMarine," p. 668. As to history of upon the high seas, and yet the prom- nuu'ine, see 8 Americana (1905) ise was made u|)on the land and the "Insurance-^Marine." As to increase action was at common law. This case of marine insurance in United States is, however, incorrectly reported ex- from 1880 to 1889, see Harper's Book cept as to the words ""that the prom- of Facts (1906) "Insurance." ise was made ui^on land and within "" N. Y. Laws 1849, c. 308, p. 441. the body of a county." 6 Pul)lica- For wording of this act, see note at tions of Selden's Soc, y>\). Ixxviii. ; end of § 5 herein, see also Id. pp. 129, 229. Tlie first ^^ ]\f j^^.tin's History of Lloyds & libel upon a policy of insurance is Marine Ins. p. 57; 16 Ency. Bri- 19 § IVa JOYCE ON INSURANCE marine insurance having been carried on for a long time prior thereto by individual merehants,^^ in Lombard street. The name "Lloyds," therefore, was identified with the underwriters and in- surance, and so became known throughout tlie insurance world. ^''' The name had become so attached to the house as a resort of un- derwriters that it clung to them when they removed in 1774 to the Royal Exchange, where, with the exception of a period from 1838 to 1844, they permanently located an office for carrying on their business. This society was incorporated by an act passed in 1871.^* tannica (11th ed.) "Lloj'ds," pp.833, Britannioa, 180; Hopkins' Mar. In.«;. 834. See also 11 Id. "Insurance," (ed. I8(i7) ;i2; Reynolds' Life Ins. subhead "Lloyds," p. 661, as to the (ed. 1853) 3. But the statute of practice of insurance at Lloyds be- 1719, 6 George I., chapter IS, would inj? the earliest which was successful warrant the inference that corpora- as business, etc. See also 11 New tions had carried on insurance as a Internat. Encv. (1903) "Lloyds," p. business Ions: before its date, althouri:h 398, 12 Id. (1908) "Lloyds,"' p. 368. Watford's Insurance Guide (2d ed. ) "In the time of William HI. and 10, speaks of the two companies a- of Queen Anne, Lloyd's Coffeeliouse, the first marine corporations. See at the corner of Abchurch lane, in further on first point §§ 325 et scq. Lombard street, became the celebrat- herein. ed resort of seafaring men and those ^^ As to Lloyds; competition and that did business with them. There, conflict* within England, ending in and subsequently in Po]je's Head Al- 1720 in compromise and monopoly, lev, and ultimately on the west side see 6 Insurance Times (Ncav York of the old Royaf Exchange, at this 1873) pp. 201-203. coffeehouse congregated the under- ^^34 Vict. c. 21; see also schedule writers of London. . . . Llovd's of act for fundamental rules of so- underwriters now meet and caiTy on their business in spacious rooms over the Royal Exchange." 1 Arnould on Mar. Ins. (9th ed. Hart & Simev) .sec. 77, p. 101; Id. (6th ed. Mac- hichlan's) pp. 148 et seq. "The Austrian Llovds, an asocia- ciety. For many years prior to its act of incorporation in 1871, Lloyds had existed as a voluntary incorporation in the nature of a club consisting of underwriters, insurance brokers, mer- chants, and others, for the purpose tion for general commercial and in- of effecting marine insurance and for dustrial purposes, was founded at Trieste, by Baron Bruck, in 1833. It has regular connnunication be- tween Trieste and the Levant,- by means of a fleet of steamers carrying other purposes. In 1863, under the bA'-laws then in force, Lloyds was a voluntary association, governed by certain by-laws, imder wliich a per- son once admitted a member could the mails, and publishes a journal." not be excluded from membership ex- ITavdn's Diet, of Dates (25th ed.) p. 835, "Austrian Llovd's." See 11 New Internat. Encv. (1903) p. 398; 12 Id. (1908) p. 368. ^^ As to insurance being carried on by individuals, see Richards on Ins. (ed. 1892) sec. 5, pp. 5, 7; Id. (3d ed.) sec. 9; Griswold's Fire Under- writers (ed. 1872) 11, 35; 13 Enc}^ cept in the case of his bankruptcy or insolvency. The association consist- ed of (1) underwriting members (2) nonunderwriting members, (3) an- nual subscribers and (4) none but merchants, shipowners, 1)anker3, traders, underwriters, and insurance agents were eligible as members of Llovds or annual subscribers. The 20 SOURCES AND ORIGIN OF INSURANCES § IVa Their affair.'^ are managed by a committee appointed from their members, wjiieli appoints agents who are located in all the prin- cipal ports of the world. It is the duty of these agents to keep the society constantly informed of all matters of importance re- lating to the departure and arrival of ships, losses, casualties, and general shipping and insurance information/^ and these accounts practice of the underwriting mem- Lloyds v. Harper [1880] 16 Ch. D. hers was to underwrite policies of 290, 1 Eng. Rul. Cas. 686, C. A.; 17 marine insurance for the benetit of Earl of Halsbury's Laws of England, various owners of property, both p. 339, note i. members of tlie association and out- "Lloyds is supported by subscrib- siders, but the policies with out- ers who now pay annually 5£ 5s." siders could only be et¥ected Haydn's Diet, of Dates (25th ed.) through the agency of insurance p. 835. brokers who were either members of "The members are of two classes, or subscribers to the association. The underwriting members who pay an association as such incurred no lia- entrance fee of £100 and are required bility on the policies underwritten by to deposit securities to the value of its members. In 1871 (34 & 35 Vict. £5,000 to £10,000 as a guaranty of c. xxi.; entitled "An Act for Incor- their engagements, and nonunder- porating the IMembers of the Estab- writing members who pay a fee of lishment or Society Formerly Held 12 guineas. Subscribers pay an an- at Lloyds Coffee House, in the Boyal nual subscription of 5 guineas, but Exchafige, in the City of London for no entrance fee, and have no voice in the Etfecting of Marine Insurance, the management of the affairs of the and Generally Known as Lloyds and association." 11 New Internat. for other purposes"). The society Ency. (ed. 1903) "Lloyds," p. 308; was incorporated by act of Parlia- 12 Id. (1908) "Lloyds" p. 368. ment, all the rights of the committee 19 Lloyds Agents — "The associa- on behalf of the members being tion appoints agents in all the prin- vested by the act in the corporation, cipal parts of the world, whose duty Llovds V. Harper (1880) 16 Ch. D. is to forward regularly to Lloyds ae- 290', 1 Eng. Rul. Cas. 686, C. A. counts of all departures from and ar- lu 1871 an act was passed "grant- rivals at their ports, as well as of ing to Lloyds all the rights and priv- all losses and casualties and general ileges of "a corporation sanctioned information relating to shipping and by Parliament." 16 Ency. Britan- insurance, but these agents are ap- nica (11th ed.) "Lloyds," pp. 833, pointed hy tJie corporation of Lloyds, 8.34. See also 14 Id. "Insurance" and are not agents of the underwrit- subhead "Lloyds," p. 661; 11 New ers (Wilson v. Salamandra Assur- Tnternatl. Encv. (1903) p. 398, 12 ance Co. of St. Petersburg [1903] 8 Id. (1908) p. 3G8. Com. Cas. 129)" 88 L. T. 96, 9 Asp. "The peculiar value of such a pol- M. C. 370 ; Id. N. S. 370. 17 Earl icy" (Lloyds) lies in the fact that of Halsbury's Laws of England, p. great care is exercised in the election 339, note i. of members of the society, and that "By the derelict vessels (report) each member is required on election act 1896, masters of British ships are to deposit securities of the value of required to give notice to 'Lloyds at least £5,000 to cover his engage- agents of derelict vessels, which in- ments." Arnould on Mar. Ins. (9th formation is published by Lloyds." ed Hart & Simey) sec. 10, p. 17. See 16 Ency. Britannica (11th ed.) 21 § IVa JOYCE ON INSURANCE are forwarded by the agents and posted ujd in Lloj^d's rooms.^° The information, thus daily received and posted, is methodically compiled and at once published in a newspaper known as the "Shipping and Mercantile Gazette," which incorporates therein what was formerly "Lloyds List," and is easily available by means of numbered columns and indexed volumes.-' As to the subjects of insurance undertaken at Lloyd's, it is asserted by eminent authority of recent date that there is scarcely any risk that cannot be insured "Lloyds," pp. 833, 834. See also 14 shipping" 9 Americana (1904) Id. "Insurance," subhead "Lloyds," "Llovds;" see also 11 New Internat. p. 661. Ency. (ed. 1903) p. 398; 12 Id. 20 These rooms at Lloyds over the (1908) "Lloyds," p. 368. Royal Exchange are: the underwrit- "Lloyds Register of British and ing rooms where the "slips" are sub- Foreign Shipping is a society whose mitted; an apartment where the primary object is the classification of latest telegrams are exhibited for the vessels. It is managed by a commit- information of members, and a large tee composed of merchants, shipown- reading room containing tabulated ers, and underwriters, elected at the and alphabetically arranged vol- principal ports of the country, uraes of information. 1 Arnould on . . . Lloyds Register maintains a Mar. Ins. (9th ed. Hart & Simey) large and highly skilled staff of sur- sec. 77, p. 102. veyors at the principal ports of every "The books kept here contain an country." 7 Nelson's Ency. (1907 account of the arrival and sailing of "Loose Leaf" ed.) p. 362. See also vessels, and are remarkable for their 11 New Internat. Ency. (1903) early intelligence of maritime af- "Lloyds," p. 398. fairs," Haydn's Diet, of Dates (25th "A register of ships began about ed.) p. 835. 1764; and the terms 'A. I.' etc. were ^ Arnould on Mar*. Ins. (9th ed. used about 1775. Two societies (un- Hart & Simey) sec. 77, p. 102. derwriters and merchants) were As to "Llovds Written Lists," imited and one register issued Oct. "Lloyds Books,'"' and "Lloyds Print- 1834. Jubilee celebrated, Oct. 31, ed Lists," see 1 Parsons' Mar. Ins. 1884. . . . Lloyds have many (ed. 1868) 12; Hopkins' Mar. Ins. signalling stations. First annual is- (ed. 1867) 33; Richards on Ins. sue of their 'Universal Shipping (ed. 1892) sec. 6; Griswold's Fire Register' published here May, 1886." Undenvriters (ed. 1872) 14, et seq., Haydn's Diet, of Dates (25th ed.) 10; 1 Arnould on Mar. Ins. (Per- p. 835. "Earliest copv extant" is kins' ed. 1850) 83, 84, *82. *83, sec. dated 1761-65-66, 11 New Internat. 50; Id. (Maclachlan's ed. 1887) 148- Ency. (1903) "Lloyds," p. .398. See 51; 14 Enev. Britannica (9th ed.) also Id. as to classification of ves- 741, title "Llovds" Century Diet. sets. See 12 Id. (1908) "Lloyds," p. 3490, "Llovds." 368. As to "Lloyds News," "Lloyds "By Lloyds signal station act 1888. Lists," and "Lloyds Registry of powers were conferred on Lloyds to Shipping," their origin and history, establish signal stations with tele- see Martin's Ilistorv of Llovds & graphic communications" 16 Enev. Marine Ins. pp. 76, 104-120', 324- Britannica (11th ed.) Lloyds," pp. 354. 833, 834. See also 14 Id. "Insur- "Lloyds Registry is an independent ance,'' subhead "Lloyds," p. 661. association for the classification of SOURCES AND ORIGIN OF INSURANCES §§ IVb, IVe against by that corporation, and that ahiiost all insurances in the United Kingdom are framed on Lloyd's policy.^ § IVb. Marine insurance: summary. — We have traced, so far as the main facts enable us, the origin of marine insurance, as well as its adoption in modern times down to the date of the earliest reported English case, also to that of the earliest English statute, mentioned, in addition, the statutes in England, down to the pres- ent time, relating to the subject, together with a brief statement of some other facts bearing upon its growth in that country, and have also considered the origin and history of Lloyds in England. From the dates whicli we have given the sources of the law are easier of access to those who wish to recur to principles, and will be referred to hereafter, as far as necessary in treating of the law governing the contract. § IVc. Lloyds associations in United States: American Lloyds. — As we have before stated, a marine insurance oflice was established in the United States in 1754 in New York, which did underwrit- ing under Lloyds system.^ A case was also decided in South Caro- lina in 1802, upon a policy issued in 1777 by the South Carolina Insurance Company, which was formed by several subscribers or members upon lines somewhat similar to the plan of some of the later Lloyds associations or underwriters in the United States. And in a case decided in New York, in 1806, the United Insurance Company were insurers on the cargo and freight, and S. and twenty-two others were separate underwriters on the ship under a policy issued in 1798.* It was not. how- ever, until the latter part of the nineteenth century that asso- ciations designated as "American Lloyds" and also by various names using the word "Lloyds" as a part thereof, organized in any number in this country. But for a number of years thereafter they were before the courts principally, though not exclusively, up- on the question of their right to do business which was opposed under state insurance laws. As long as tliey were not under super- vision or control of the insurance departments they flourished, and this seems to have been especially true in New York, where they were expressly exempted for a time, and were so favored that they were in 1892 granted certain privileges.^ ^ 17 Earl of Halsbury's Laws of * The general provisions of the England, pp. 340, r)12; examine 1-t New York Insurance Laws of 1892 Eney. Britannica (11th ed.) 661. ( fn.s. Laws N. Y. 1892, c. 690, sec. 57. ^§ lY., at end of section. Approved May 18, 1892. In effect * United Ins. Co. v. Scott, 1 Johns. Oct. 1. 1892) were expressly made (N. Y.) 106. not applicable "to any individual or 23 § IVc JOYCE ON INSURANCE A case was, however, determined in 1898 in that state, wherein the protection afforded by the statute of 1892 was denied a Lloyds association. It was as follows: Certain individuals had, about six months prior to October 1, 1892, organized thirty different Lloyds associations identical in form, except that the names dif- fered, with one attorney and a general manager for the whole. The original organization was not made for the bona fide purpose of conducting the insurance business through the thirty different organizations, but for the purposes of sale to purchasers to be found. Such original associators were not actually engaged in business, and were not within the protection of the statute, and an assignee or transferee, in 1894, of the rights of the original associa- tors, said original associators having then resigned and so sus- pended business, was held to take no better right than the assignor, and so was unlawfully engaged in transacting the business of in- surance, and was not within the statutory exception.^ This case was cited in a decision rendered in 1910, where four individuals pai'tnership or association of under- death, retirement, or withdrawal of writers known as Lloyds, or as in- any such underwriters, or by the ad- dividual underwriters which, at the mission of others to said assoeia- time of the passage of this chapter, is tion' " Laws 1892, c. 690, 57, Laws lawfully engaged in the business of 1894, c. 684. The privileges con- insurance within this state, and not fei-red upon such Lloyds comijanies, required by law to report to the su- and not before especially referred perintendent of insurance or the in- to, are described as consisting 'of an suranee department, or subject to exemption from the conditions and their supervision or examination, nor prohibitions prescribed and provided to any such association, notwith- bj^ section 54 of said chapter 690, standing any change hereafter made Laws 1892, whereby they may trans- therein by the death, retirement, or act the business of fire insurance and withdrawal of any such underwriters, issue policies in the state of New or by the admission of others to such York without being possessed of the association." capital required of a lire insurance The N. Y. Laws of 1894, c. 684, corporation doing biLsiness in this see. 57, changed the words in the law state, and invested in the same man- of 1892; "at the time of the passage ner, and without a certificate to the of this chapter" is lawfully to the effect that they have complied with words: "on the first day of October, all the provisions which a fire insur- 1892 was" lawfully. This law went ance corporation doing business in into effect IMay 12, 1894. this state is required to observe, and Lloyds associations were so favored that the business of insurance speci- in New York "that those which on fled therein mav be safelv intrusted October 1, 1892, were lawfully en- to them.'" Balli v. White (1897) gaged in the business of insurance 47 N. Y. Supp. 197, 203, 21 Misc. were granted certain privileges, and 285, 292, per McAdam, J. exempted from supervision by the ^ People v. Loew, 52 N. Y. Supp. insurance department, and not re- 799, 23 Misc. 574, 44 N. Y. Supp. 42, quired to report thereto, 'notwith- 19 Misc. 248, 26 Civ. Proc. 132. standing anv change made therein by "24 SOURCES AND ORIGIN OF INSURANCES § IVc claimed "to own a sort of charter or franchise to do business as individual underwriters, under the name" of the New York & New En[!,land Underwriters at Lloyds of New York City, ''which they used as merchandise, granting rights to do business there- under to successive individuals, preferably, apparently, those who are financially irresponsible. These four so-called owners do not underwrite themselves, and in the contract with or licenses to others carefully protect themselves against any liability upon in- surance losses." ' It is noteworthy, that Lloyds rapidly decreased in numbers in that state from one hundred and twenty-five companies in 1895 to seven companies in 1904 oAving to their having been made sub- ject, to a certain extent, to the insurance department.^ ■^ In re Hotcbkiss, 123 N. Y. Supp. of underwriters to file annually a 511, 138 App. Div. 877, per Scott, J. verified statement of its affairs with 8 See 7 New Internat. Eney. (1908) the superintendent of insurance, p. 640, where it is also said tliat ''dur- N. Y. Laws 1905, c. 566 (in effect ing the last few years, however, May 19, 1905), further amended said Lloyds have been appearing in con- insurance law by inserting therein siderable numbers under the lax pro- two new sections, requiring (sec. 138) visions of the lUinois insurance law." every such individual or partnership, See also 10 Id. p. 685. etc., to create and maintain a reserve On restriction on insurance by un- fund equal to its liabilities. It also incorporated associations or individ- (sec. 139) contained provisions as to uals; Lloyds .associations, see note in change of name; as to similar names; 25 L.R.A. 238. establishment of branches under dif- Advance in state supervision over ferent names; changes in subscribing Llot/ds in New York, since the above underwriters or their attorneys in favoring and exempting statutes of fact; false or fraudulent reports; 1892 and 1894 appears from the fol- right of attorney general to enjoin ; lowing enactments : also certain exceptions as to attorneys N. Y. Laws 1902, e. 297 (in effect in fact or agents; failure to comply April 2, 1902), amended the preced- Avith requirements a misdemeanor, ing laws by requiring every such as- These two new sections (sees. 138, sociation 'lawfully engaged in the 139) were made applicable (sec. business of insurance in that state 162) to every individual or partnev- on April 1, 1902, to file on Sept. 1, ship or association of individuals 1902, with Uie superintendent of in- known as Lloyds or as individual surance a verified copy of its undenvriters then authoiazed to do original articles of association or eo- marine insurance business in the state partnership agreement, with any as defined (sec. loO) and to every 'amendments, staling where its princi- agent or attorney in fact for the pal office was located, the kinds of same. business in which engaged, and the N. Y. Insurance Law, Consol. Laws name or names under which it was or 1909, c. 33, sec. 57 (as amended by had been doing business. Laws 1909, c. 240, sec. 48, in effect N. Y. Laws 1903, c. 471 (in effect April 22, 1909), contains the same May 7, 1903), further amended said provision or exemption as the above insurance laws by requiring such in- law of 1892, as amended by the Law dividual partnership or association of 1894, and also requires such asso- 25 § IVc JOYCE OX INSURANCE In Alabama under the Civil Code of 1907, Lloyds are permitted to transact insurance business, other than life, upon the same terms and conditions as other companies regularly organized, but if they are without paid up cash capital they are required to make a de- |)o.sit.^ In Louisiana, under the statute of 1902, a deposit, etc., is required of Lloyds associations.^" In Maine under the statute of elation to file annually a verified (e) as to reserve fund; (f) as to in- statemeut of its affairs with the su- vestment of assets; (g) requiring lierintendent of insurance. Sees. 142. each underwriter to be worth in his 143, 162, are same as sees. 138, own right not less than $20,000 above 139, 162, of above Laws of 1005. all liabilities. Provisions were also N. Y. Laws 1910, c. 638 (in effect made as to change of location of June 24, 1910), amends c. 33, Laws principal office; as to change in un- 1909 (constituting Consol. Laws derwriters, inter-insurers, or at- 1909, e. 28), by adding new article tornej-s in fact; and as to deposits (art. 10, Lloyds and Inter-insurers) and liability in reports. See. 303 which provides (sec. 300) that not- specifies what other sections of the withstanding sec. 54, c. 28, Consol. chapter are applicable. Laws, 1909, '"persons, partnerships, N. Y. Laws 1911, c. 502 (in effect ()r associations which on Oct. 1, 1892, July 1, 1911) sec. 300, changed tlic were lawfully and actually engaged clause in the Law of 1910 as to ob- in the business of insurers as Lloyds taining the certificate, under sec. 301 or inter-insurers or individual un- thereof, to obtaining a license under derwriters, may, after Jan. 1, 1911, sees. 304, 305, of Laws 1911, Laws continue to do the business of in- 1911 only amended sec. 302 of Laws surers in this state, provided" they of 1910, by adding the word< then became authorized to engage in "licensed under the preceding section'' the business of insurance as Lloyds to the headline. It also added the or inter-insurers. Agents, subagents, words, "who claim that they were and representatives of such persons, lawfully and actually doing the busi- etc., were included. Noncompliance ness bt insurance in this state as with provisions of article constituted Lloyds or inter-insurers on October a misdemeanor. Sec. 301 required 1, 1892." Otherwise provisions of (a) an application for a certificate; Law of 1911, sec. 302, were same as (b) a verified statement of condi- Laws 1910, sec. 302.- Laws 1911, e. tion; (c) an agreement providing for 502, added two new .sections; sec. personal service of process; (d) 304 being general provisions affect- "such other matters as the superin- ing Lloyds and inter-insurance as- tendent of insurance may prescribe." sociations organized after July 1, An examination of the financial con- ]911, and sec. 305 being provi- dition of such persons, etc., and the sions for the admission of Lloyds and granting of a certificate of authority inter-insurers associations domiciled was also provided for. Sec. 302 in other states. Said Law of 1911 contained provisions (a) as to filing also provided for the forwarding of original verified certificate of articles process by the superintendent of in- of association, copartnership agree- surance. ment, or inter-insurance contract, ^ 2 Ala. Code (Civ.) 1907, sec. 4568 with amendments; (b) as to chang- (2592) Id. 4563 (2587). ing name; (e) as to establishing i" Wolff's Const. & Rev. Laws La. branches; (d) as to similar names; 1904, p. 884 (acts 112, 1902, p. 181. 26 SOURCES AND ORIGIN OF INSURANCES § IVc 1903,1^ Lloyd's associations, for the purpose of transacting marine insurance business, were granted all rights, powers, privileges, etc., under the Massachusetts laws ^^ these associations are authorized to transact insurance business, other than life. The ]Minne- sota Statute also contains provisions as to Lloyd's associations." In Tennessee, in 1896, companies on Lloyd's plan, ^'whereby each as- sociate underwriter becomes liable for a proportionate part of the whole amount insured by policy/' were authorized to do business, but were required to make deposit ''where they have not an actual paid-up cash capital." ^* In Mississippi in 1910 a law was enacted entitled "An Act to Raise Revenue and to More Clearly Define what are Insurance Companies in This State and to Place a Tax and Bring a Class of Companies, Associations, and Organizations under Supervision^ of the Insurance Department, Heretofore Claiming Exernption," ^^ and it included within fire and marine insurance companies or cor- porations "all corporations, partnerships, individuals, associations, or organizations, known as Lloyds, engaged in placing, writing, or soliciting any and all kinds of fire and marine insurance." Said statute of 1910 authorized such corporations, etc., known as Lloyds, to solicit, sign, issue, deliver, and to execute policies of insurance, contracts, and guaranties against loss by fire, water, lightning, or tornado, etc. It also made it unlawful for any corporation, part- nership, individual association, known as Lloyds, to solicit insur- ance, make such contracts and guarantee against loss by fire, water, lightning or tornado: rate or classify- risks, etc., except upon au- thority of the commissioner and compliance with the law.^^ Another reason given for the early failure of so many of these associations was that it was not due to the practice of individual underwriting in itself, but that the ostensible reserve for the pro- tection of the policy holders was usually of little or no value." And ^^ P. 471 e. 49, sec. 1. "luter-insurance contracts to be re- 12 Rev. Laws 1902, 1908, p. 1211 ported under oath once a year— Tax- (R. L. 118, sec. 86), sec. 91, cited in ation of same." Opinion of the Justices, 190 ]\Iass. ^^ See State v. Alley, 96 Miss. 720, 603, 85 N. E. .545, upon point of ex- 51 So. 402, 39 Ins. L. J. 629. In cise tax against "Individuals" and "a this case an organization of inter-in- person" as well as corporations. snrcrs claimed that they were not do- 13 Minn. Rev. Stat. Suppl. 1909, ing insurance business in the state, Annot. p. 592, sec. (1647—) 1 (Minn, and that they were not an "insurance Laws 1913, c. 534, sees. 1-4, pp. 772- company, corporation, partnership, 3.) association of individuals," within 1* Shannon's Annot. Code Laws Code 1906, sec. 2559. See § 336a 1896 (p. 766), sec. 3298. herein. 15 Chap. 103, Laws 1910, p. 76, "10 New Intemat. Ency. (1908) amending Code 1900, cliap. 69. jp. 685. 27 § IVd JOYCE ON INSURANCE there would seem to be no reason why such practice of individual underwriting shoidd not be successful, even though subject to law- ful state supervision intended to protect the insured. The plan of insurance or the system upon which these associa- tions carry on their business, and the distinction between the Eng- lish Lloyds and the Lloyds in the United States, will be herein- after fully considered. § IVd. Inter-insurance: reciprocal insurance: inter-indemnity contracts. — The contract of inter-insurance involved in a Missis- sippi cafie, decided in 1910, is declared to be the first of its kind ever reviewed by any court.^* In Missouri a case was decided in 1912, in w^hich it appeared that in 1906 certain copartnership firms and individuals organized, under the name of "The Printers' and Publishers' Reciprocal Un- derwriters at Printers' Exchange," for the purpose of insuring each other's business establishments. One hundred and seven dif- ferent concerns in different cities became members of the associa- tion.^' In California a statute was passed in 1911 entitled "An Act De- fining Certain Classes of Contracts for the Exchange of Indemnity, Prescribing Regulations Thereof, and Fixing a License Fee," and it provided that "individuals, partnerships, or corporations may ex- change reciprocal or inter-insurance contracts providing indemnity among each other from fire loss or from other damage to their- property in accordance with" the provisions of the act.^° " State V. Alley, 96 Miss. 720, 51 Mo. Laws 1913, p. 382 ; Mo. Laws So. 462, 39 Ins. L. J. 629, per Mayes, 1915, p. 321. J. As to inter-insurance: It.s legal 2° Cal. Stat. 1911, c. 669 (in effect aspects and business possibilities, see July 1, 1911), Stat. & Amdts. to Article by Mr. Robert J. Brennen, in Codes of Cal. 1911, p. 1279; Id. (ex- 58 Cent. "Law Jour. pp. 323-329. tra session 1911, p. Ill) chap. 22 "Isaac H. Blanchard Co. v. (approved Dec. 24, 1911). Plans Hamblin, 162 Mo. App. 242, 144 S. known as reciprocal or inter-insur- W. 880. ^nce or interindemnity contracts be- On contracts bv which individuals ^ween tirms and corporations not af- or firms undertake to indemnify each ^^(^^^(^ by Cal. Stat. 1913, c. 177, sec. other as insurance, see note in 47 ' P' ' ^;,.?^*^' ^' ?i-,^^?TV LRA (NS) "^97 '^'' ^ 1909, p. 311 (Herrons ' Inter-indemnity contracts not to ^^^jf'' ^f^^'^^''':^^^^^' ^,^^^^^^ ... , • • , . . ,,. 1910, Lit. o8, c. 17, sec. 17). does not constitute insurance business m Mis- „ i (u i 1" • i. . rpu- 1 • ^ ^PPly to purely co-operative inter- soun This covers making of con- i^Surance and reciprocal exchanges tracts between individuals, firms, or ^^^.^ed on by members thereof solely corporations providing indemnity for the protection of their own prop- among each other from casualty or erty, and not for profit." other contingency, or from fire loss tnter-insurance : See Laws Me. or other damage to their own prop- 1913, p. 172, c. 135; Laws Minn, erty. Mo. Laws 1911, p. 301. See 1913, p. 671, c. 464. 28 SOURCES AND ORIGIN OF INSURANCES § V. § V. Origin of mutual insurance system. — The mutual insurance system is claimed to be of very ancient origin. This claim is based upon the assumption that there is an analogy between it and the Friendly Societies of England; that bet\Yeen the latter and the guilds there is a great similarity, and, to go one step farther, the ori- gin of guilds is attempted to be traced to those artificial alliances or clubs which existed in ancient times, in China, among the Teutons, the German tribes of Scandinavia, the ancient Greeks and Romans, and the early Christians, for mutual protection and assistance in various exigencies, and for other purposes. The eflort, however, to discover the origin of guilds, as well as of the word ''guild" itself, has been productive so far only of disagreement.^ It is not neces.^ary. though, to inquire here as to the origin of guilds or of the word ''guild." It is sufficient that the essence of the guild was mutual protection or benefit, social, political, or pecuniary. We may also note tliat guilds are said to be mentioned in the laws of Ina and Alfred.2 While Brentano^ speaks of the guilds shown by the Judi- cia Civitatis Lundoniae, the statutes of the London guilds reduced to writing in King Athelstan's time,* and says one might call these guilds "assurance companies against theft," owing to their regula- tions against violence, especially of theft; and guilds have also been defined as "the nmtual assurance societies of the poorer classes." * The Fortnightly Review^ states that the "Fraternitie," or "Bretherede," of "St. James at Garlekhith, London," begun in 1 Lambert's Two Thousand Years ^ gj-pntano on Guilds, etc. 11. of Guild Life, and see bibliographic * 925 a. d. to 941 a. d. note appended thereto; 11 Encv. ^ Baton's Benefit Societies and Life Britannica, 259, "Guilds; " 9 Id. 780, Ins. (ed. 1888) sec. 10; Id. (3rd ed.) "Friendlv Societies ; " 12 Id. ( 11th sec. 10. ed.) "Gilds;" 11 Id. (11th ed.) As to Saxon Guilds, see Irancis "Friendly Societies," p. 217. Brent- Annals of Life Assurance (ed. 1853) ano on Guilds and Trades Unions; y.p. 27 et seq. See also chapters on Old Guilds and New Friendlv Trades Medieval Guilds of England (188/) Societies, Fortnightly Review, N. pp. 113 et sec].; Jack's Introduction S Oct. 1869, p. 391; Workmen's Ben- to History of Life Assurance (ed. efit Societies. Quarterly Review, Oct. 1912) sub-title "The Gild System," 18(54, p. 318; Bacon's' Benctit Socio- pp. 15-149. ties and Life Ins. (ed. 1888) sec. 10, As to Guild's Sick Clubs under Id. (.'?rd ed. 19041 .^^ecs. (5, 10; sec German laws prior to 1911, see Cvclopedia of Fraternities (1899) Boyd's Workmen's Compensation pp 112 et seq.; Walford's Insurance (ed. 1913) sec. 581: as to same under Guide (2d ed.) 3. German Code of 1911, see Id. sec. 2 Ina, In i, or Ine, 688 A. D. to 72(1 001. ,. , .„ ^ o A. D.; Alfred, 871 A. n. to 901 A. d. ^ Vol. 6, N. S. or Vol. 12, 0. S. See Lambert's Two Thousand Years Ludlow's article on Old Guilds, etc. of Guild Life, 43; Walford's Ins. Oct. 1869, p. 394. Guide (2d ed.) 3. 29 § V. JOYCE ON INSURANCE 1375, provided for relief in sickness, for old age, for burial, arbi- tration clauses, and relief under false imprisonment. The same author' asserts that "the whole vast group of Friendly Societies scarcely looks back beyond the first act which authorized the forma- tion of such bodies toward the close of the last century, 1793, * and if the existence of a Friendly Society here and there can be estab- lished in the earlier years of the century, it is reckoned a matter worthy to be recorded." Notwithstanding this assertion, there is authority for stating that the system of Friendly Societies in Eng- land may be traced to within a few years of the suppression of re- ligious guilds in the 16th century, since the last recorded guild was in 1628, and Friendly Societies existed in 1634, and although there is no directly connecting link between the two, yet it may reason- ably be believed that the latter are an outgrowth of the former.^ Numerous acts have been passed in England containing provisions in relation to these societies.^" 'Id. 391. See article bv same (1863) 26 & 27 Vict. c. 87, sees. 60, writer on Guilds and Friendly Socie- 68; (1870) 33 & 34 Vict. c. 61. sec. ties, 21 Contemp. Rev. 553, 737. 2; (1875) 38 & 39 Vict. c. 60; (1870 8 The act was 33 Geo. III. c. 54; 40 & 41 Vict. c. 13, sees. 16, 17; repealed 1855, 18 & 19 Vict. c. 63, (1882) 45 & 46 Vict. c. 72, sec. 21; sec. 1; latter act repealed 1875, 38 & (1883) 46 & 47 Vict. c. 47; (1884) 39 Vict. c. 60, sec. 5, but see sec. 7: 47 & 48 Vict. c. 43, sec. 4: (188/) 50 this act amended 1876, 39 & 40 Vict. & 51 Viet. c. 56; (1888) 51 & 52 Vict. c. 32; last act repealed 1887, 50 & c 15, sec. 6; (1889) 52 & 53 Vict. c. 51 Vict c 56, sec. 17. 22. Acts were also passed in 1819, 9 9 Encv. Britannica, 780, "Friend- 1829, 1834, 1846, 1850. 1855 and Iv Societies;" 11 Id. (11th ed.) 1876. These acts, from 1819 to 1850, ''Friendly Societies," pp. 217, 221. inclusiye, as well as the act of 1793 Examine 12 Id. p. 14, and see Bib- (already noted), were repealed by liography, 12 Id. p. 17; see also 6 act of 1855 (18th & 19th Vict. c. 63, Ludlow 'on Old Guilds and New sec. 1), but as to acts of 1829 and Friendly Trade Societies, Fortnioflit- 1834, see 17 & 18 Vict. c. 56, and 6 ly Reyiew, N. S. Oct. 1869, p. 391; & 7 Will. IV. e. 32 (1836), and as to Workmen's Benefit Societies. Quar- acts of 1846 and 1850, see 17 & 18 terlv Reyiew, Oct. 1864, p. 318: 16 Vict. c. 56. The act of 1855 was re- Am" & Eng. Ency. of Law, 19; Ba- pealed by act of 1875 (38 & 39 Vict, con on Benefit Societies and Life Ins. c. 60), which was amended in 1876 (ed. 1888) 16, 17. by 39 & 40 Vict. c. 32, which in 1887 I'* For synopsis of Friendly Socie- was repealed by 50 & 51 Vict. c. 56, ty statutes prior to 10 Geo. IV. c. 56, sec. 17; Chronological Table and In- see 4 Crabb's Dig. & Index (of Eng- dex of Statutes (11th ed.) title lish Stat. ed. 1847) p. 257; Id. Part "Friendly Societies." As to statutes 11. p. 653. in force in 1895, see Id. (13th ed. A.s to the acts relating to Friendly 1235-1895). See Bunyon on Ins. Societies which were in force in (ed. 1854) 176, 177. As to the assur- 1889. see: (1833) 3 & 4 Will. TV. c. ance companies act. 1909 (9 Edw. 14, sec. 25; (1854) 17 & 18 Vict. c. VII. c. 49, sec. 36) ;.the Friendly Soc. 56; (1860) 23 & 24 Viet. c. 137: act 1896 (8 Edw. VII. c. 32), amd'g 30 SOURCES AND ORIGIN OF INSURANCES % V. The purpose of Friendly Societies under the English insurance corporation act of 1892 was mainly by voluntary subscriptions, with or without donations, for relief in sickness or other infirmity, in old age, widowhood, or orj^hanhood, for payments on birth or death, for payments in distress, to seekers for employment, and in case of damage or shipwreck at sea, for endowments and for insur- ance of tools against fire, and these societies include under the act every such corporation not required by law to be licensed for the transaction of insurance, and if the contract it offers to undertake is a contract of insurance, the society is an insurance corporation." In so far, then, as the object of guilds and Friendly Societies is mutual benefit and assistance, pecuniary and otherwise, there are many points of resemblance in them to the mutual insurance sys- tem, even if there were no other connecting link.^^ Taking this analogy as a basis, then, upon the question of priority between this ^3'stem of insurance and marine insurance, there is more direct and certain evidence in favor of the mutual system. Tlius, Hopkins, ^^ who gives credit therefor to a paper read ^* before the Institute of Actuaries, in 1864, notices to some extent a Latin inscription on a marble slab found at Lanuvium, an ancient town in Latium, a short distance from Rome, dated during the reign of Hadrian, a. d. 117- 138; This inscription shows that the club Avas ostensibly for the worship of Diana and Antinous, but in reality it was to provide a sum at death of a member for burial. There was also an entrance fee provided. It was constituted under a decree of the Roman sen- ate and people, granting it the privilege of assembling and acting collectively. It met not more than once a month ; whoever omitted payment for a certain number of months had no claim on the so- ciety for his funeral rites, although he should have made a will. No claim was allowed by the club to any patron, patroness, master, act 1890 (59 & 60 Vict. e. 25, sec. 2), Friendly Societies— statistics show- and the collecting society and indus- ing membership, funds, etc. 1897- trial assurance companies act 1896 1907, in United Ivingdom, see Webb's (59 & 60 Vict. c. 26, which consoli- New Diet, of Statistics (ed. 1911), dated the enactments relating to pp. 292 et seq. See also as to Friend- Friendly Societies and industrial as- ly Societies, Jack's Introduction to surance companies), see Butter- History of Life Assurance (ed. worth's 20 Cent. Stat, of England, 1912), "pp. 223 et seq. • pp. 243; 2 Id. p. 446. As to present ^^ As to development of the insur- statutes of England, see also 15 Earl ance idea from the early guilds, Ger- of Halsburv's Laws of England, pp. many, see Boyd's Workmen's Com- 119-204; Chitty's StAtutes of Eng. pensation (ed. 1913) see. 30. see note 12. pp. 17, 18, § IV. herein. ^^ Hopkins' Mar. Ins. (ed. 1867) " Act 1892, 55 Vict. c. 39 ; Hunt- 7-11. ers' insurance corporation act 1892, ^* By M. N. Adler. 12, 13. 31 § V. JOYCE ON INSURANCE mistress, or creditor except lie were named in a will, and no funeral rites could be had by one who had inflicted death upon himself. The resemblance between this club's system and that of the modern benefit society is noticeable. Hopkins remarks that it is "probably the nearest api)roximation on record to the insurance system dur- ing the Roman period, and a,« containing the feature of a present payment for a larger deferred sum," but he adds that it difiers from insurance in some important respects. There also existed in the third century, at Alexandria, a Christian brotherhood for nursing the sick.^* Other instances might be mentioned, but the above are sufficient to show that this system may claim more positive evidence of an anterior date when compared with marine insurance in this respect than can the latter. We have already noted the granting by statute, in England in 1719, monopolies to two companies for insuring sea risks and loan- ing money on bottomry. It appears that while these monopohes existed, clubs or associations of shipowners were established in many of the seaports of England for the insurance of ships of their mem- bers, being in fact mutual insurance clubs.^^ These clubs, however, i^Bi-entano on Guilds and Trades Unions, 9. 16 Marshall on Ins. (5th ed.) 35. Origin and history of mutual in- surance chihs. "In 1719 two com- panies, the London Assurance Com- pany and the Royal Exchange As- surance Company, were incorporated with the exclusive right of making marine insurances in their corporate capacity. This monopoly gave rise to shipowners' clubs for the mutual insurance of their own vessels. In such clubs each member is both as- sured and insurer; he is insured as to his own property in the club by all the other meml)ers in proportion to their respective properties in it, and he is at the same time an insurer in the proportion of his own property in the club for the property of eacli of the others, their mutual agreement being the consideration of the con- tract. By reason of the monopoly of the two' insurance companies aliove mentioned, it was essential to the legality of the mutual insurance clubs that their members should be liable individually, only, each for his own proportion and not jointly, or one for others of them. Moreover the man- agers of the club had no right of ac- tion against a member for premiums or for his contributions to losses paid. . . . The monopoly granted to the two insurance companies was taken away in 1824, and thenceforth until 1862 no restriction was placed on tho formation of mutual associations or joint stock companies to carry o!i the business of marine insurance. But the companies act of 1862 (25 & 26 Vict. c. 89, sec. 4, repealed and re-enacted by the companies [consol- idation] act, 1908 [8 Edw. VII., c. 69] sec. [1] 2) produced the result that, as a marine insurance associa- tion is a comi)any for the acquisition of gain within the meaning of that act, it is when consisting of more than twenty members, an illegal as- sociation unless registered as a com- pany. Mutual insurance associations are now, therefore, always registered under the companies acts, usually as a company limited by shares or as a company limited by guaranty. . . . In general, it is now the association itself which is the insurer, and the assured's right of action is against 32 SOURCES AND ORIGIN OP^ INSURANCES § Y. while they may still retain their mutual feature, are obligated to be registered in order to carry on the business of insurance. ^''^ There are many reported cases in which such clubs or associations were interested, and in which various questions, including that of their legality, the subscription to the policy, its validity, the liability of members, etc., are considered." The premiums on insurance in these clubs, so far as their liability could be called premiums, were merely nominal, the absence of regular premiums being one fea- ture of their organization, the liability of each member being based upon the expenses and their contributions to losses.^^ Hopkins,^" speaking of mutual iur^urance clubs or societies, says their nature is that of benefit societies. He distinguishes the protection they afford from insurance properly so-called, and adds, ''their resem- blance to true assurance consists in the protection mutual clubs give against similar losses and contingencies subject to local rules and usages, and in their attaching their 'rules' frequently to the com- mon form' of the policy with some necessary modifications." In this connection we notice a statement of Guicciardini, before re- ferred to, of date loGO or 1561, that a vast commerce existed be- tween England and the Netherlands, and that the merchants had "fallen into a way of insuring their merchandise from losses at sea by joint contribution." This passage is cited by Anderson and also Ihe association and not aj^ainst the N. 543 (1858) ; Bromley v. Williams, other members." Earl of Halsburv's 32 L. J. Ch. 716 (18G3) ; Turnbull Laws of England, Vol. 17, pp. 504, v. Woolfe, 9 Jur. N. S. 57 (1863) ; 505 and notes; 4 Td. i)p. 405 et seq. In re London Mar. Ins. Assn. 1'^ See the companies' act 1862; 25 (Smitli's case) L. R. 4 Ch. 611 & 26 Vict. e. 89; 30 & 31 Vict. c. 26, (1869) ; In re London Mar. Ins. sec. 9; 7 & 8 Vict. c. 110. See also Assn. (Andrews' case) L. R. 8 Eq. last preceding note herein, and § IV. 176 (1869) ; Re Arthur Average herein for English statutes. Assn. L. R.. 10 Ch. 542 (1875) ; Mar- As to illegal insurance companies ine Mutual Ins. Assn. v. Young, 43 in England— necessity of being regis- L. T. N. S. 441 (1880) ; Re Padstow tered' under companies' acts 1862- Total Loss Assn. L. R. 20 Ch. D. 137 1908, see 17 Earl of Halsburv's Laws (1882) ; Lion Assn. v. Tucker, L. R. of England, pp. 339, 340 and notes. 12 Q. B. D. 176, 53 L. J. Q. B. 185 "Reed v. Cole, 3 Burr. 1512 (1883); Ocean Iron Steamship Ins. (1754) ; Hari'ison v. Millar, 7 Term Assn. v. Leslie, 6 Asp. Mar. Rep. N. Rep. 340 (1796) ; Lees v. Smith, 7 S. 226 (1887) ; Jones v. Bangor Mut. Teim Rep. 338 (1797) ; Dowell v. Shipping Ins. Soe. Lim. 6 Asp. Mar. Moon, 4 Camp. 166 (1815); Strong Rep. N. S. 456 (1889). V. Harvey, 3 Bing. 34 (1825) ; Mead ^^ See Marsliall on Ins. (5th ed.) V. Davison, 3 Ad. & E. 303 (1835); 35; Hopkins' Mar. Ins. (ed. 1867) Turpin v. BiUon, 5 Man. & G. 455 405. (1843); London Monetary Advance 20 ]Xopkins' Mar. Ins. (ed. 1867) and Life Assn. v. Smitli,*:! Hurl. & .3:)1, 392. Joyce Ins. Vol. I.— 3. 33 § V. JOYCE ON INSURANCE by Plopkins, who speaks of it as being a meager account of insur- ance.^ Mr. Justice Bradley ^ says the earliest form of the contract of in- surance was that of mutual insurance. Griswold ^ says mutual in- surance was earliest in use,* and Richards * asserts that back in An- glo-Saxon times there is evidence of attempts among friendly guilds to guarantee protection against fire and other calamities by mutual contribution,^ and that in 1710 the earliest mutual and stock com- pany was organized in London.' Other companies had, however, fonned prior thereto on the mutual plan; thus, in 1686, the ''Friendly Society for Insuring Houses from Fire" was formed; in 1696 the "Amicable Contribution for the Assurance of Houses and Goods from Fire" was organized, and the policy of this company is said to contain the germ of perpetlial insurance, and to throw some light upon the decisions of the courts upon successive losses. ^ and in 1706 the "Amicable Society for a Perpetual Assurance Of- fice," a life company, was founded. The scheme was mutual, and provided for a fixed rate of contribution, which was the same lor all members, the ages of whom were limited from twelve to fifty, afterward changed to forty-five, and a certain sum was distributed each year among representatives of deceased meml>ers. The plan was, however, changed in 1734, so as to fix more definitely the sum to be paid at death, but it was not until 1807 that the company be- gan rating members according to age and other circumstances.^ Coming to the United States, the earliest insurance company was ^2 Anderson's History of Com- ^ Richards on Ins. (ed. 1892) sec. 9; merce, 109; Hopkins' Mar. Ins. (ed. Id. (3rd ed.) sec. 13; Hoplvins' Mar- 1807) 29. ine Ins. (ed. 1867) 392, 393; 13 En- 2 Insurance Co. v. Dunham, 11 cyclopedia Britannica, 1 80-82 ; 9 Wall. (78 U. S. 1) 32, 20 L. ed. 90. American Cyclopedia, 424 ct seq.; ^ Griswold's Fire Underwriters (ed. Bliss on Life Ins. (ed. 1872) sees. 1, 1872) 74, 84. 2; Reynolds' Life Ins. (ed. 1853) 4, * See also Watford's Insurance 5; Watford's Insurance Guide (2d Guide (2d ed.) 198. ed.) 25; Harpers Book of Facts ^ Richards on Ins. (ed. 1892) see. (1906) "Insurance" Amicable So- 8; Id. (3rd ed.) sec. 12, p. 16. ciety was oldest English company es- ^ See also Watford's Insurance tablished at Sergeants Inn London. Guide (2d ed.) 3, 13. See Historical Sketch of the Corp. ' See also 13 Enev. Britannica, 180, for Relief of Widows, etc., bv John 182; 11 Id. (llth ed.) ; Griswold's Wm. Wallace (Phila. 1870) 'p. 12. Fire Underwriters (ed. 18/2) 24; Amicable Society incepted at begin- Walford's Insurance Guide (2d ed.) ning of 1705, obtained charter on 25. ^ July 25, 1706, Jack's Introduction to * Griswold's Fire Underwriters (ed. History of Life Assurance (ed. 1872) 20, 23. See § VI. herein. 1912) p. 234. 34 I SOURCES AND ORIGIN OF INSURANCES § V. the "Philadelphia Contributionship for the Insurance of Houses from Loss by Fire," organized on the mutual jjlan in 1752.^° As to fraternal societies in the United States, including su(!h asso- ciations as rely upon benefit features for relief and aid in case of sickness, etc., or what are known as Friendly Societies in England, in fact including all kinds of benefit and mutual insurance associa- tions, their history may, it seems, be started at a period beginning within the last half of the nineteenth century. ^^ ^° Griswold's Fire Undorwriters Assessment system made its ap- (ed. 1872) 36 et seq. See § M. liere- pearance about 1865 as an insurance in. For the history of mutual eompa- business aside from fraternal organ- nies and their phins of organization izations, and has rapidly extended, in New York, and the statutes relat- Harpers Book of Facts (1906) "In- ing thereto down to and including surance." that of 1849, see opinion of Denio, C. History, etc., Assessment com- J., in White v. Haight, 16 N. Y. 310. panies were started in the United As to date of organization of mutual States over thirty years ago. 8 companies in United States to 1845, Americana (tOO")) "Insurance-life- see Jack's Introduction to History assessment." Flan of meeting cost of of Life Assurance (ed. 1912) p. 245. life insurance by assessments was ^^11 Eney. Britannica (11th ed.) fir.st used in United States about p. 221. 1867 by local bodies. Id. For History of Missouri State In the United States, "Three acts legislation as to fraternal beneficiary passed in 1907 relative to assessment associations (lodge system), see State life insurance, deserve special men- (ex rel. Supreme Lodge K. of P.) v. tion, namely, those of Iowa ('07 c. Vandiver, 213 Mo. 187, 204 et seq., 83), Wiscoiisin ('07, e. 447), and 111 S. W. 911; Kern v. Supreme Minnesota ('07, c. 318). The Iowa Council Amer. Legion of Honor, 167 and Wisconsin acts seek to place as- Mo. 471, 479 et seq., 67 S. W. 2.")2. sessment life insurance upon a safer The assessment plan or si/sfem of basis, by forbidding all such soeie- insurance: — A new form of benefit ties, other than fraternal beneficiary organization, said to have come into associations, from transacting any existence about 1870, assessments business in the state, unless they shall being levied when a member dies; value their assessment policies or but this plan not having proved sue- certificates of membership as yearly eessful, assessments were then levied renewable term policies, according to in advance of death. "There arc the standard of valuation of life pol- about 200 mutual benefit insurance licies prescribed by the laAvs of the companies or organizations in the states." Year Book of Legislation, United States conducted on the 'lodge Vol. 10 (New York State Library, system.' . . . This form of in- Legislation Bulletins 37-39) ]). 323; surance may be called co-operative. Review of Legislation on Insurance, and has many elements which make 1907-1908, by S. Huebner. See also the organizations practising it 9 Id. p. 366. stronger than the oixlinarv assess- For hislory of legislation as to ment insurance companies having no assessment insurance companies in stated meetings of members." 11 Missouri, see Aloe v. Fidelity Mutual Ency. Britannica (11th ed.) p. 222. Life Assoc. 164 Mo. 675, 681 et seq. See also Id. as to the advantages and 55 S. W. 993. disadvantages of these svstems. When policy is on assessment plan 35 § V. JOYCE ON INSLTvA>iCE In New York, fraternal beneficiary societies, orders or associa- tions were recognized by the act of 1883,^2 ^^(j ^q 1339 is ^i^q\^. fo^.. mation and regulation, fis a separate and distinct class, was first provided for.^^ In 1881, however, an act ^^ entitled "An Act Con- cerning Charitable Benevolent and Beneficiary Associations, Societies, and Corporations." was passed in that state, relating to associations and societies issuing certificates to members, promising to pay, upon disease, sickness, or other physical disabil- ity, relief or aid, etc., to such member, or to others dependent upon him, or beneficiary designated by him, where such money, relief, or aid, etc., were derived from admission fees, dues, and assessments, etc. This statute was, however, not applicable to life insurance com- panies; that is, only certain societies and associations were subject to the provisions of the act. The earliest benefit assurance case in the United States appears to be of date 1871.^^ and the next decision seems to be of date 1875." While, therefore, the idea of mutual protection or mutuality as a principle of insurance is of very ancient origin, yet it has not ap- proximated to true insurance until within a comparatively short time,^^ and it furnishes no 'adjudications in this country until' re- cent years. It appears, then, that the principle of mutuality or reciprocity had been applied to protection against various emergen- cies certainly before marine insurance came into general use, if not before it had been used at all, and that even in England it became the basis of incorporation of several life and fire companies before marine insurance had assumed any proportions as an organized system, and thus, also, before marine insurance decisions com- menced, under that eminent jurist. Lord Mansfield, from 175G. to make that marked progress which they then did in establishing leading principles of insurance. Whatever defects may have exist- and not an endowment policy, see ment; the. growth of the system: the Haydel v. ^Mutual Reserve Fund Life requirements for soundness and per- Assoc. 104 Fed. 718, 44 C. C. A. 109. manence, set forth in a series of ar- 12 Chaj^ter 175. tifles, see The Fraternal Monitor 13 Laws of 1889, c. 520, p. 711." (Rodiester, K Y.) in 31 pages. "Report of Board of Statutory ^^ Laws 1881, e. 2.3G. Consolidation, N. Y. vol. 3 (1907) ^^ ^Vetmore v. Mutual Aid & Be- p. 2950. Such societies are now gov- nevolent Life Ins. , Assoc. 23 La. erned by Consol. Laws, Laws 1909, Ann. 770. c. 33, art. 7, sees. 230 et seq. which " IVIaryland Mut. Ben. Soc. v. latter is repealed, and a new art. 7, Clendinen, 44 Md. 429, 22 Am. Rep. sees. 230-249, added bv Laws 1911, c. 521. 198, ]). 448 ; sees. 242, 245, ain'd ^^ See Tabor's Three Systems of Law.s 1913, c. 410. Life Ins. 11, 120 et seq. For historv of fraternal develop- 36 SOURCES AND ORIGIN OF INSURANCES § Va ed in the infancy of the assessment system or mutual system of in- surance, great strides have been made toward placing the same on a scientific basis, so that now some of the largest and most success- ful companies are mutual companies.^^ § Va. Origin of cattle insurance societies. — It is proper to men- tion here the origin of cattle insurance societies, which in their con- stitution and management resemble Friendly Societies. They were introduced during the panic caused by the cattle plague, and were established and regulated under the Friendly Societies act of ISTo.^'^ Their purpose is to provide, by insurance against loss of neat cattle, sheep, swine, horses, and other animals by death from disease or otherwise.^ In New York the first general law which provided for insurance upon the lives of domestic animals was passed in 1853.^ It is noteworthy, however, that in 1873 it was declared in a New York periodical that every attempt or trial that had been made to introduce or conduct ''live stock insurance" or "cattle" insurance in the United States had proved an utter failure, and had resulted in the downfall of the companies who had endeavored to create this class of insurance.^ But coming down to 1889 we find that the laws of that state * provided for the organization and regulation of co-op- erative or assessment companies for insurance of domestic animals, and these are now regulated by statute,^ the Laws of 1912 provid- ing for insurance upon the lives of horses, cattle and other live stock.^ 19 See Tabors' Three Systems of " Co^goi La^g, N. Y. Laws 1909, Life Ins. 24; Richards on Ins. (ed. c. 33, art. 8, as am'd by Laws 1910, 3892) sees. 7, 9, p. 14. c 318, p. .504; Id. c. 63^ see. 70, sub- 20 38 & 39 Viet. c. 60, sec. 8, subd. div. 8, p. 1702; Laws 1911, c. 324, see. 2. See Friendly Society act 1896 70, subd. 8, p. 758. See Report of (59 & 60 Vict, e." 25) ; see. 8 (2) ; 15 Board of Stat. Consol. N. Y. vol. 3 Earl of Halsbury's Laws of England, (1907) p. 2950. p. 125, see. 2.33. ^ Laws N. Y. 1912, e. 2.32, p. 444 iRapalje & Lawrence's Diet. 179; (in effect April 9, 1912). /The Laws 15 Earl of Halsbury's Laws of Eng- of 1912, c. 231, p. 444, provide for land, p. 125. "Cattle insurance so- insurance upon the lives of horses, cieties" are among the class of cattle and other live stock, or against Friendly Societies capable of regis- loss by theft of any such property or tration""The expression 'other ani- both, but this amendment is disre- mals,' it is conceived, includes only garded in the above amendment, c. animals ejusdcra generis."' Id. p. 125. 232. On animal insurance, see note in 44 A company authorized to issue pol- L.R.A.(N.S.) 569. ieies against accidents to individuals 2 Laws N. Y. 1853, c. 463, p. 887. may likewise issue policies against '6 Insurance Times (New York, accidents to live stock. In re Penn- Dee. 1873) p. 859. sylvania Casualty Co. 36 Pa. Co, Ct. * Laws N. Y. 1889, c. 454. p. 635 (Opinion of Att'y Gen.). 37 § VI. JOYCE OX INSURANCE § VI. Origin of fire insurance. — Although Hfe assurance may claim an earlier date for its origin, yet the idea of security in case of fire seems to have followed more closely upon marine insurance than the adoption of life insurance. It is said that efforts were made among the early Saxon guilds to guarantee protection against fire, and we have seen that Friendly Societies offer this indemnity in some measure. It is also said that in- sui-ance was applied to fire risks as early as 1G09; that there is a recorded proj)osal made in 1635 for the estahlishment of a fire insurance company; and in 1670 there is a record of a comi)any formed at Edinburgh for "Friendly Assurance against Fire." But it was not, however, till after 1666, when the great fire in London occurred, that the idea of fire insurance assumed in lOng- land any organized shape as a system and the earliest office for in- suring property was opened in 1667, in London, on the plan of individual underwriting. In 1680 a proprietary company, the "Fire Office," formed in London. In 1681 the corporation of Lon- don opened books for securing and entering sul Eliz. c. 12 er." See also Stat. 6 Geo. I. c. 18 (1001) which reads: Whereas, here- (1719) ; Stat. 19 Geo. II. c. 37 tofore, "assurers," etc., "have souglit (1746); Stat. 14 Geo. 111. c. 48 6G TERMS AND DEFINITIONS §1 tract is commonly called 'policy of assurance' or 'insurance.' " Mr. Hopkins * asserts that their meaning is identical, and bases his state- ment on the derivation of the words. Mr. Arnould * says: ''The party indemnified, called the a.ssured in the act,® is sometimes also called the inspired." "^ Other writers use the term indiscriminately. jMr. Justice Field, in Connecticut Mutual Life Insurance Co. v. Luchs,* declares that "there are undoubtedly instances where this distinction between the terms 'assured' and 'insured' is observed, though we do not find any judicial consideration of it." In this case a ])olicy was issued on I/s application, by which the company agreed to insiu'e the life of D., and to pay the money to the "assured" after due notice and proof of D's death, and it was decided that the term "assured" must be held as applicable to L., as being the party for whose benefit the insurance was intended, the court saying: "The application of either term to the party for whose benefit the insurance is effected or to the party whose life is insured has gen- erally depended upon its collocation and context in the policy." ^ (1774) ; Tlie assurance companies act 1909 (7 Edw. VII. c. 49) noted under § 4 lierein. "Asfiuraiices" related formerlif to the conveyance of property in Eng- land, as is evidenced by Sfieppard's worlv entitled "The Touchstone of Common Assurances ... or con- veyances of the Kingdom." So, in !1627, Charles I. introduced a pro- ject "for . . . making and regis- tering . . . assurances." ^Bacon's Abi'idgement (ed 1778) 598, r)99. * Hopkins Marine Ins. (ed. 1867) 4C. ^Arnould on jVIar. Ins. (8th ed. Hart & Simey) sec. 1, p. 3. 6 Marine Ins. act 19()() (G Edw. YII. c. 41) entitled "An Act to Codi- fy the Law Relating to Marine in- surance." 'In the earlier edition of Arnould (6th ed. Maelachlan's) it is said: "The party interested in the proper- ly insured is called the insured or as- sured," p. 16. 8 108 U. S. 498, 504, 27 L. ed. 800, 2 Sup. Ct. 9-19. ^ See also Cvrenius v. Mutual Life Ins. Co. 73 Hun (N. Y.), 365, 26 N. Y. Supp. 248, 55 N. Y. St. Rep. 897 (aff'd 145 N. Y. 576, 50 N. E. 225). In this case the court said: "It is to be observed that in the policy the amount is payable 'to the said a.s- sured, his executors, administrators, or assigns.' The question is. Does the term 'assured' refer to George A. Cvrenius, who is recited to have paid the consideration, or to Alvin Cvreni- us, whose life was the subject of the insurance? In determining this qttes- lion the application may properly be referred to. That was executed by both Alvin and George A., and on its face stated that it was the basis and part of the contract. It is re- ferred to in the policy as furnishing in part the consideration. The iiolicy is staied to be issued upon the faitli of the statements and declarations made in the application. Both are jiart of one transaction, and are to ite read together in determining its character and effect. Reading the policy and application together, it ap- ]>ears that George A. Cyrenius wa.s the ai)idicant for the insurance, and was the person for whose benelit it was to be effected. Tlie policy re- cites that the money consideration is received from liim, and in the com- plaint it is alleged that he paid it. 67 II § 1 JOYCE ON INSURANCE This case was expressly followed in Brockway v. Connecticut Mu- tual Life Insurance Company,^" which latter case wii^s based upon substantially the same material facts and precisely the same policy, the court holding that the same construction should be given the term "iissured"' as was given in Connecticut Mutual Life Insurance Company v. JaicIis.^^ So in other cases this term has been held to mean the person for whose benefit the insurance was made, rather than the one upon whose life it dei>ends,^2 On the other Sueli being- the ease, aecording to the ers Ins. Co. v. Pacaud, 150 III. 245, doctrine laid down in Smith v. Aet- 41 Am. St. Rep. o55, 37 N. E. 400 na Life Ins. Co. 5 Lans. (N. Y.) 545, (policy was on o-rain, "assured's the a.ssured should be deemed to be property, or held by assured in trust George A. Cyrenius. A similar view or on fomniission or sold but not dc- is taken in Connecticut Mutual Life livered." it was held that where the Ins. Co. V. Luchs, 108 U. S. 4!)8," 27 party contracts for the insurance L. ed. 800, 2 Sup. Ct. 049. It also ])a\s the premium, and the company appeared in this case that the father makes tiie loss i)ayable to such i)arty, iurnished the money for the fir.st pre- the agreement to pay is a contract mium and tlie greater part of the with the person who pays the con- other premiums, and that the policy sideration, and he has a right of ac- was delivered by the son to the fath- tion in his own name, altliough the er, but there was no evidence of an insurance is in the name of another, intent to transfer the title, and no no discussion as to "assured" or "in- assignment was alleged in the com- sured") ; Washington Life Ins. Co. v. plaint. Hanev, 10 Kan. 525 (declarations of 1° (U. S. C. C.) 29 Fed. 766. partv" where life is insured for the " 108 U. S. 498, 504, 27 L. ed. 800, benelit of another, made long after 2 Sup. Ct. 949. In tlie Brockway applicniion and policy cannot be re- Case it was held that "assured'.' re- ccived in evidence against assured ierred to the one on wiiose applica- to impeach application. Party in- tion the policy was issued, who was sured was not a party to the record, the beneficiary and paid the i)remium, No discussion as to distinction be- and that the personal representative tween assured and insured cited and of the per.son on whose life the ])oli- qnoled from in N'allcy Mutual Lite cy was issued could not maintain an Assoc, v. Teewall, 79 Va. 421, but action on the contract. the question there was only as to the See the following cases: ^Vav- admissibility of certain evidence and nock V. Davis, 104 U. S. 775, 26 L. there was no discussion as to insured ed. 924 (question here was one of or assured). In Irving v. Manning right of person wiio lias insured his 4 II. L. Cas. 303, 1)07, in the opinion own life to assign it to parties hav- of the judges the words '"assured" ing no insurable interest. Mr. .Ins- and "policy of assurance'' are used, lice Field, who delivered the opinion. ^^ Ilogle v. Guardian Life Ins. Co. [he also delivered the opinion in the 4 Abb. Pr. N. S. (X. Y.) 346, 348, Connecticut Mutual Life Ins. Co. 6 Rob. (29 N. Y. Sup. Ct.) 567; Ca.se above noted] uses the word "as- ^I'^tua L. Ins. Co. v. France, 94 V. S. sured" throughout in reference to 5()2, 24 L. ed. 287. In this ca.se the the fiarty on whose Hie the |)olicy ])olicv provided that the sum insured was issued, but there is no discussion should be paid "to the said assured, as to "assured" or "insured ") ; Trad- her executors," etc., and the policy 68 II TERMS AND DEFINITIONS hand, in Campbell v. New England Mutual Life Insurance Corn- was effected by a brother for a sis- son who must pay the premiums, and ter's benefit. Reynolds on Life Ins. is therefore obligated to pay all out- sec. 22. See also Ferdon v. Cantield, standing indebtedness in case the 104 N. Y. 143, 145, 10 N. E. 140 policy should lapse, and whose de- (Rapailo, J. said: "Although the fault forfeits the policy, that . . . life of" C. "was the life insured by in order to effect a forfeiture of the the policy, he was not the party a,s- policy it was necessary to be shown sured thereby. His life was the sub- in the language of section 3 of chap- .ject of insurance but the contract ter 341 of the Laws of 1876 'that does not, on its face, purpoi't to have the notice to the assured has been been made either with hiui or for his f\^^\y addressed and mailed by the benefit, nor does he appear to have had any interest therein which he could assign." Policy was on the Tontine plan and question wa.s of the rights of assignee of the person whose life was insured. The policy company is.suing such policy to the assured,' and that in this case the person 'assured,' and to whom the policy was issued, wa.s the plaintiff, and that she, in this case also answers whose lite was insured ine poncy ^^^^ description of the 'person whose was taken out by and the premiums » ^^ ^g-_„ were paid by the beneficiaries to whom the amount of insurance was payable) ; Rowe v. Brooklyn Life Ins. Co. 38 N. Y. Supp. 621, 16 Misc. 323 (upon the application of the wife, a policy was issued and de- livered to her upon her Inisband's life is assured' in the act of 1877") ; New York Life Ins. Co. v. Ireland, — Tex. — , (1891) 14 L.R.A. 278, 281, 17 S. W. 617 (a person is not entitled to the benefit of a tontine policy payable to his wife and chil- dren as the "a.ssured." He has life, she paid the premiums, and was neitiier any nght.s as tru.stee to said to receive the amount of the insur ance in the event of her husband's death, or in case she died first, then said insurance was to be paid to her heirs, etc. She as beneficiary was held to be the "assured" within the statute of 1876 of that state requir- ing, in order to effect a forfeiture of" the policy for nonpayment of benefits, nor any legal title to the ])()]icy even though he has always held possession and control thereof, has paid the premiums and the bene- liciaries have never known of the in- surance). "Beneficiar}i'- and "assured," said io be syiwni/mous terms Fnion Fraternal League v. Walton, 109 Ga. premiums a "notice to the assured" 1, H, 77 Am. St. Rep. 350, 46 L.R.A. and also that she was the "person 424, 34 S. E. 317, dissenting opinion whose life is assured" under the of Lumpkin, P. J., contract was bv statute 1877. Wright, J., said (Id. p. 623) : "Under the statutes, and the authorities construing the legislative intent, it must be held, where the contract is made with the beneficiary. benefit society with member, and said by court to differ from ordinary life insurance. The word "assured" is sometimes applied to the beneficiary; but it is to whom the policy is delivered, and generally synonymous with the to whom it is payalile during lier word "insured," and the meaning of life, and after her death to her ex- the term "assured" is to be derived ecutors and administrators, and from the connection, as well as upon where the pereon on whose life the 1 he fact of who procured the policy, policy risk is taken has no interest— and with whom the contract was present, future or contingent— there- made, thus a third party may be the in, and where the beneficiary is "a.ssured." Chandler v. Traub, 159 designated in the policy as the per- Ala. 519, 49 So. 241, the court, per 69 § 1 .lOYCK OX INSLl.'ANCE paiiy/^ the polu y was issued upon tlic life of A. to him, as '•'the assured," and the promise was to pay the sum insured to the as- sured, his executors, etc.. lor the henetit of his brother's wife, and the court dechn-ed that tlie phiintiff did not, by virtue of the clause de- claring the policy to be for her benefit, become the assured; that she was merely the person designated by agreement of the parties to receive the proceeds of the poHcy on the death of the assured. There was, however, no discussion as to the meaning of tliese terms." In a Massachusetts case ^^ tlie words "insured" or ''as- sured" in a mutual fire insurance policy were held to apply to the person who owned the property, applied for the insurance, paid the premium, and signed the deposit note, and not another to wIkhu the money was payable in case of loss, although he might have a lease of the premises. Under the standard policy the word '"in- sured" includes ''legal representatives." ^® Simpson, J., says, however: "We wood v. Agricultural Ins. Co. 73 N. lliink that, in our statute, the word Y. 447. 451. Cited in Matthews v. applies to the person whose life is American Central Ins. Co. 154 N. Y. insured." Id. -Vi^. 449, 452, 39 L.R.A. 433, 48 N. E. 1^98 Mass. 381, 389. '51, upon point as to legal repre- " See also Hurlburt v. Pacifle sentatives of assured, including heirs Ins. Co. 2 Sum. (C. S. C. C.) 471, at law, etc., cited in Matthews v. 479, Fed. Cas. No. 6919. American Central Ins. Co. 41 N. Y. 15 Sanford v. Mechanics' Mutual Supp. 304, 308, 9 App. Div. 339, Fire Ins. Co. 12 Cash. (66 Mass.) 344; Lawrence v. Niagara Fire Ins. 541. Co. 37 N. Y. Supp. 8il, 812, 2 App. 16 Under a standard policv pro- Div. 267, 269, affirmed (mem.) 154 vision that the word "insured," N. Y. 752, 49 N. E. 1099, which wherever it occurs, shall be held to holds that where a fire policy upon include the "lesal rein-esentatives of real propertv runs to insured's legal the insured," the term "legal repre- representatives, his executor or ad- sentatives" refers to tliose who sue- ministrator may properly bring an ceed to insured's legal rights, by action for loss after his death. This reason of his death or the transfer of last case is cited in Matthews v. the policy, and should not be eon- American Central Ins. Co. 41 N. Y. strued to include anyone wlio is Supp. 304, 308, 9 App. Div. 339, authorized to act for insured. Metz- 344, as simply holding that action ger V. Manchester Fire Assur. Co. may be brought by personal repre- 102 ]Mich. 334, 63 N. W. 650. See sentatives. The Wyman case is also Wvman v. Wvman (de<'ided in cited in Kanes Estate, In re, 77 N. 1863) 26 N. Y.' 253, where it was Y. Supp. 874, 878, 38 Misc. 276. decided that if one ha.s effected in- Legal representatives as bene- surance upon a house against loss by ticiaries, see §§ /86, 793 herein, fire, the interest in the policy de- The Georgia Code uses as part volves upon liis lieirs at law, and the of the detinition of insurance upon damages accrue to them in case of life the words: "The life may be loss. Distinguished in Herkimer v. that of assured, or of another in Rice, 27 N. Y. 163. 166, see also Id. whose continuance the assured has 180, as to effect of judgment in the an interest." Ga. Civ. Code, sec. Wyman ease. Distinguished in Sher- 2114 (Code 1911, sec. '2496). Union 70 TERMS AND DEFINITIONS , § 1 In determining whether the word "insured" or "assured" ap- plies to u mortgagor or mortgagee, the circumstances will be con- sidered and the words construed and applied in the sense in which they were understood by the immediate parties to the contract whereby the insurance was effected.^'^ But the words '"insured"* and "assured" may both apply to a grantee with a lien back to the grantor.^* Fraternal League v. Walton, 109 inserted in the policy, citing Eddv Ga. 1, 3, 77 Am. St. Rep. 350, 46 v. London Assur. Co. 143 N. Y. 311, L.R.A. 424, 34 S. E. 317. Under 25 L.R.A. 686, 38 N. E. 307; Hast- Herron's Savle's Tex. Civ. Stat, ings v. Westchester Fire Ins. Co. l'.\ (Suppl. 1908-1910, p. 233) Tit. 58, N. Y. 141, 147, 154; I^wis v. Guardi- chap. 11. .sec. 1, Tex. Rev. Stat. 1895, an Ins. Co. 181 N. Y. 397, 106 Am. Art. 3096a, "The 'insured' or 'policy' St. Rep. 557, 74 N. E. 224) ; De Witt holder is the person on whose life v. Agricultural. Ins. Co. 89 Hun (96 the policy of insurance is effected." N. Y. Sup. Ct.) 229, 36 N. Y. Supp. ^' Liveri^ool & London & Globe 520 (where an owner of property Ins. Co. V. Davis, 56 Neb. 684, 77 N. obtains insurance thereon, and then W. 66 (where, as I)et\veen the parties sell.s said property with a mortgage to the contract wlien the insurance back, and the policy is indorsed to was effected, the protection of the said vendee as the owner, with loss policy was applied and paid for payable to the mortgagee as interest solely on behalf of the mortgagee, the may appear, and said vendee and '■insured;' in a clause voiding the mortgagor contracts to sell to an- policy for concealment or misrepre- other party, who enters into posses- sentation, will be construed to mean sion, and obtains a policy in another the mortgagee, and not the mort- company, and thereafter the original gagor. In this case it was also held policy is indorsed to him as owner, that where a policy was made out but without his knowledge at the time describing the mortgagor as owner, it was made, said last owner of the with a mortgage slip, making loss or property is not, at the time of damage payable "for the account of the issuance of the second policy, the the fissured" to the mortgagee, such insured under the policy issued to the clause does not make the loss pay- first owner, although he was the in- ai)le to the mortgagor, but to the sured, if at all, a.s of the time said mortgagee to be applied to the mort- original policy was indorsed to him) ; gage indebtedness) : Watertown Fire Armstrong v. Agricultural Ins. Co. Ins. Co. V. Grover'& Baker Sewing 56 Hun (63 N. Y. Super. Ct.) 399 Mach. Co. 41 Mich. 131, 32 Am. Rep. ("assured'' is mortgagee where the 146, 1 N. W. 961 (mortgagee Avas policy to owner makes loss payable held one of the jiarties "assured," un- to former as interest may appear, der provision of policy that "in case and as such "assured" must deliver of loss the assured shall give imme- preliminary proof of loss) ; Hastings diate notice") ; Lewis v. London v. Westchester Fire Ins. Co. 12 Hun Ji Lancashii-e Fire Ins. Co. 137 N. (19 N. Y. Super. Ct.) 416 {''assured" Y. Supp. 887, 78 Misc. 176 {''in- held to apply only to the owner and sured" under sec. 122 of N. Y. Ins. moitgagor, and not to the morl- Law, providing for cancelation of gagee's interest). policy upon request of "insured/' ^* The grantee with lien back to etc., includes a mortgagee for whose grantor to whom original policy is benefit a mortgage clause has been assigned, with insurer's consent, be- 71 § 1 JOYCE ON INSURANCE Again, the circumstances and construction of the policy may show that the owner of the cargo is meant by the "assured," ^' or that forwarders of tlie cargo are the "a.ssured,'" ^° or that a towing company, and not the cargo owner, is the assured.^ Where the loss was payable to the "assured" under an agree- ment to reinsure, it was decided that by "assured" was meant the company reinsured, and not the assured under the original policy.^ And if parties agree to "reinsure" loss if any, "payable to the as- sured upon the same terms juid conditions, and at same time as contained in the original policies," the word "assured" means the reinsured company, and not the assured in the original policies.^ The construction, however, does not appear in any of these cases to have turned upon any distinction between the terms themselves, but rather upon the relation which they sustained to the other words of the policy, and were construed as they were for the pur- pose of effectuating the intent of the parties to the contract, and de- termined that the loss was payable to the party whose interest was intended 'to be covered where the description might apply to iixjre romes the "insured'' under the new contract thereby created Avith the insurer, within a clause against other insurance, etc. Such grantee is also the "assured" under a rider with a provision making the loss proven due "assured" payable to the grantor (original policy holder) "as interest may appear." Dumphy v. Commercial Union Assur. Co. Ltd. — Tex. Civ. App. — (1911), rehear- ing denied (1912) 142 S. W. 116. ^^ Under a clause, "the insurers are to be subrogated to all the rights of the assured under their bills of lad- ing or transportation receipts," the words following "assured" show that the owner of the cargo is meant by the "assured," where also the premi- um was added to the freight and paid by the owners of the cargo, and it is evident from the facts and the construction of the policy and the certificate that said policy was in- tended to protect them, and the in- surer was entitled to subrogation to said assured's rights. Merchants & Miners Transp. Co. v. Robinson- Baxter-Dissowav Towing & Transp. Co. 113 C. C. A. 427, 191 Fed. 7C9. ^^ Loss was payable to *'the assured or order, and return of this certifi- cate." The forwarders of a cargo insured it as part of the price of freight agreed upon. A certificate payable to order was issued to them, and they indorsed and delivered thi.s to the owners. The name of the forwarders alone was entered in the policy book wiiliout any additional words as "for whom it may concern," nor did the certificate contain th^se or any equivalent words, nor were they descnbed as agents. It Avas held that said forwarders, the per- sons named, were the "assured." The Sidney (U. S. D. C.) 23 Fed. 88 in. A. Baxter, The (U. S. D. C.) 182 Fed. 030. Policy was +akon out by towing company on barge cargo, but loss was payable to cargo owner; case of subrogation to assxred's rights, but recovery not authorized against towing company for in- surer's benefit for fault for collision. ^ Carrin2:ton v. Commercial Fire & Marine Ins. Co. 1 Bosw. (N. Y.) 152. ^ Carrington v. Commercial Fire & Marine Ins. Co. 1 Bosw. (N. Y.) 152. 72 I TERMS AND DEFINITIONS § 1 than one. We cannot discover that any distinction of practical vakie has ever been made by the text-writers or the courts in the use of these words, except in those cases where their meaning or ap- phcation has depended upon the construction of some particuhi: policy, and we shall therefore use the terms throughout this work as synonymous.* § 2. Definition of insurance. — Insurance, strictly defined, is a contract wliereby one for a consideration agrees to indonmify an- other for liability, damage, or loss by certain perils to which the subject may be exposed, but the contracts of life insurance and of accident insurance covering death are not strictly contracts of in- demnity.* Emerigon ^ defines insurance as ''a contract by which one promises indemnity for things transported by sea, deducting a price agreed upon between the assured, who makes or causes to be made the transport, and the insurer, who takes upon himself the risk and burdens himself with the event," and he adds: "This definition is taken from the Guidon la jMer, and is the doctrine of all our authors."' He also says that it "is a contract by which one takes upon himself the peril which the property of others encoun- ters upon the sea.' This definition, of course, relates to marine in- surance, as do the early definitions. Many other definitions of insurance have been given.^ It is said in Funke v. Minnesota *See Bouvier's Law Diet.: Bacon's person." This definition is given by Benefit Societies and Life Ins. (ed. Gray, J., in Commonwealth v. 1888) see. 19, p. 22; Id. (ed. 1894) Weatherbee, 105 Mass. 149, 160, see. 19, p. 27; 13 Am. & Eng. Eney. cited or quoted with approval in the of Law, 630. following cases : 5 See sees. 24 et seq. for this dis- A labama. — Suj^reme Commandery tinction. On what constitutes in- Knights of the Golden Rule v. Ains- :-.urance see note in 47 L.R.A.(N.S.) worth, 71 Ala. 430, 443, 46 Am. Rep. 290. 332, per Brickell, C. J. 6 Emerigon on Ins. (Meredith's Jvawsas.— State (ex rel.) v. Vigi- ed. 1850) "c. i. p. 2. lant ln.s. Co. 30 Kan. 585, 587, 2 Pac. ' Emerigon on Ins. (Meredith's ed. 840, per Brewer, J. 1850) c. i. p. 4. Kentucky. — Sims v. Commonwealth, 8 "A contract of insurance is an I'l-* Ky. 827, 828, 71 S. W. agreement bv which one party, for 929. r^^ a- tt ■ i a consideration (which is usually Massachusetts.— C\&^m v. United paid in monev either in one sum or States Credit System Co. 16o Mass. at different times during the con- 501, 52 Am, St. Rep. 528, 43 N. E. tinuance of the risk), promises to 293. make a certain payment of money il//.s.soMr/.— State v. Merchants upon the destruction or injury of Exch. Mut. Ben. Soe. 72 Mo. 146, 159, something in which the other party per Napton, J.; State (ex rel. has an interest. In fire insurance Beach) v. Citizens Benefit Assoc. 6 and marine insurance the thing in- Mo. App. 103, 169. ■ sured is property; in life or accident Nebraska.— ^iiviQ v. Farmers Ben. insurance it is the life or health of a Assoc. 18 Neb. 276, 281, 25 N. W. 81. 73 -f»l § 2 JOYCE OX INSURANCE Suittli Dakota. — Masonic Aid As- soc. V. Taylor, 2 S. Dak. 324, 329, 50 N. W. 93. "An insurance in relation to prop- erty is a contract whereby the in- surer becomes bound for a definite consideration, to indemnify tlie in- sured asrainst loss or dama2:e to cer- Commonweahh, 87 Pa. 173, 183, 30 Am.- Rep. 352. Insurance is a contract of in- demnity, in which the parties may stipulate for the manner and time in which that indemnity sliall be made, and the law will enforce such con- tract. Commonwealth Ins. Co. v. tain property named in the ])olicy, by Sennett, 37 Pa. St. 205, 78 Am. Dee. rea.'Jon of certain perils to which it 418. may be exposed." Dover Glass Insurance "is a contract whereby Works Co. V. American Fire Ins. Co. one party agrees to wholly or 1 ilarv. (Del.) 32, 45, 65 Am. St. partially indemnify another for loss Rep. 264, 29 Atl. 1039, per Wolcott, or damage which he may suffer Chan. from a specified peril." Shakman v. "Insurance is an agreement by United States Credit System Co. 92 which the insurer, for a con.'iidera- Wis. 366, 374, 53 Am. St. Rep. lion, agrees to indemnify the assured against loss, damage, or prejudice to certain property de.'^cribed in the agreement, for a specified period, by reason of specified perils." Barnes V. People, 168 111. 425, 429, 48 N. E. 91. Insurance is "an agreement bv 920, 32 L.R.A. 383, 66 N. W. 528. "Insurance is a contract by which the one party, in consideration of a price paid to liim adequate to the risk, becomes security to the other that he shall not suffer loss, damage, or prejudice by the happening of the perils specified to certain things which one party, for a con.sideration, which may be expo.sed to them. If ])romises to make a certain payment this be the general nature of the con- of money upon the destruction or tract of insurance, it follows that it injury of something in which the is applicable to protect men against otlier party has an interest." Rensinhouse v. Seelev, 72 Mich. 603, 617, 40 N. W. 765. ' "A contract of insurance is intend- ed as an indemnity against an un- certain event, which, if it occurs, will cause loss to the assured." Cross v. uncertain events which may in any wise be of disadvantage to them; not only those persons to whom posi- tive loss may arise by such events, occasioning the deprivation of that which they may possess, but those also who in consequence of such National Fire Insurance Company, events may have intercepted from 132 N. Y. 133, 30 N. E. .390. Insurance is a contract whereby, for an agreed premium, one party undertakes to com))ensate the other for loss on a specified subject by specified perils (conclusion of defi- nition is same as that given in Dover Class Works case, ante). State (ex them the advantage or jirofit, which but for such events they would acquire according to the ordinary and probable cour.se of things." Lucena v. Craufurd, 5 Bos. & P. 269, 300, 301, per Lawrence, J. This definition down to and including the words "mav be exposed to them" rel. Sheets) v. Cincinnati, Chicago & is quoted with approval in Cum- St. Louis Rv. Co. 68 Ohio St. 9. 30, mings v. Cheshire Countv Mut. Fire 90 Am. St. Rep. 635, 64 L.R.A. 405, Ins. Co. 55 N. H. 457, 458, per Fos- 67 N. E. 93, quoting Bouvier's Law ter, C. J., although the court gives Diet. (Rawle's Rev.) 1668. preference to the definition of Black- "A contract of insurance is mere- stone (2 Blaekstone's Commentaries, ly a guaranty against loss of prop- 458: 2 Hamond's ed. 696: Chase's erty by fire or marine disaster." In- Blackstone, 567) which is this: "A surance Co. of North America v. policy of insurance is a contract be- 74 i TERMS AND DEFINITIONS § 2 Farmers' Mutual Fire Insurance As.wis. — People (ex rel. Kasson) V. Rose, 174 111. 310, 312, 316, 44 L.R.A. 124, 51 N. E. 246; Vreden- burgh V. Physicians Defense Co. 126 111. App. 509, 512. 7Hf//f/«a.— State v. Willett, 171 Ind. 296, 23 L.R.A.(N.S.) 197, 86 N. E. 68. Kentiicki/. — New York Life Ins. Co. V. Klopton, 7 Bush. (70 Ky.) 179, 185, 3 Am. Rep. 290. Maine. — Buffalo Fertilizer Co. v. Aroostook Mutual Fire Ins. Co. 109 Me. 483, 84 Atl. 1078 [quoting Me. Rev. Stat. 1903, p. 471, c. 49, sec. Minnesota. — Physicians Defense Co. V. O'Brien, 100 ]\Iinn. 490, 495, 111 N. W. 396 {quoting Minn. Rev. Laws 1905, .sec. 1596). Missouri. — Isaac H. Blanchard Co. V. Ilamblin, 162 Mo. App. 242, 144 S. W. 880. Sew Jersey. — Piries v. First Rus- sian Slavonic Greek Catholic Benev. Soc. 83 N. J. Eq. 29, 89 Atl. 1036. Pennsiilvamia. — Commonwealth v. Provident Bicvde Assoc. 178 Pa. 636, 638, 639, 36 L.R.A. 589, 36 Atl. 197; Commonwealth v. Equitable Ben. Assoc. 137 Pa. 412, 418, 18 Atl. 1112. South Dakota. — Lawver v. Globe .Alut. Ins. Co. 25 S. Dak. 549, 560, 127 N. W. 615. Tennessee. — American Surety Co. V. Folk, 124 Tenn. 139, 141, 135 S. W. 778, 40 Ins. L. J. 1074 {quoting Tenn. acts 1895, c. 160, sec. 2; acts 1899, c. 31, regulating the business of all insurance other than life and casualty. The case gives also a general definition of insurance). Texas. — American Legion of Hon- or v. Larmour, 81 Tex. 71, 16 S. W. 633. 9 29 Minn. 347, 354, 43 Am. Rep. 216, i3 N. W. 164, per Dickinson, J. 75 §§ 3-5 JOYCE ON INSURANCE loss." This construction was in a case where tlie condition was against making any insurance in any other coniijany. Insurance was early delined by statute in Knghuid,^" and it is now defined under the statutes in several of the United States." §§ 3, 4. (Transferred to ^S :'.;*.Sd, 839c herein). § 5. Definition of marine insurance. — Marine insurance is a con- tract whereby one for a consideration agTees to indemnify another for loss or damage on a certain interest, subject to marine risks by certain perils of the sea or specified casualties during a voyage or a fixed period. This branch of insurance includes risks of river navi- gation and of raihvay and other land carriage connected with sea transit. ^2 Another definition is this: "INlarine insurance is a con- i"The statute 43 Elizabetli, cliap- Codes (Civ.) 1902, Porto Rico, sec. ler 12, declares tliat a policy of as- l(i93. surance is when a merchant a:ive.s a See also the following statutory consideration in money to othei-s to definitions : assure his goods, sliip, or other Alabama. — 2 Ala. Code (Civ.) things by him adventured, upon such 1907, sec. 4544 (2596). terms as may be agreed between the Dakota. — Codes (Levisee) p. 1027, merchant and assurers. see. 1474. ^^ Insurance is a contract whereby Massachusetts. — Suppl. 1902-1908 one undertakes to indemnify another to Rev. Laws, p. 1159, sec. 3 jRov. against loss, damage, or liability aris- L. 118, sec. 3 ; Laws 1907, c. 576, p. ing from an unknown or contingent 840). event: Cat. Civ. Code, see. 2527. Montana. — Rev. Codes (Civ.) 1907, "A contract of insurance — life ex- sec. 5545 (sec. 3370). cepted — is an agreement by which North Dakota. — Rev. Code, 1899, one party for a consideration sec. 4441. promises to pay money or its equiva- Oklahoma. — Snyder's Comp. Laws lent or do some act of value to the 1909, sec. 3722, p. 883. assured upon the destruction or in- South Dakota. — Rev. Codes (Civ.) jury of something in which the other 1903, sec. 1703, p. 805. party has an interest." Me. Rev. Tennessee. — Shannon's Annot. Stat. 1903, p. 471, c. 49, sec. 1. Code 1896, sec. 3275 (Laws 1895, c. Insurance is "any agreement where- 160, sec. 2) Laws 1899, c. 31. by one party for a consideration ^^ gp^ Hopkins on Ins. (ed. 1867) undertakes to indemnify anotlier to a 53. Commonwealth v. Weatherbee, specified amount against loss or dam- 105 Mass. 149, 160. See also defini- age from specified causes, or to do tion of insurance by Kmerigon, given some act of value to the assured in under § 2 herein, case of such loss or damage." Minn. Application of principles of ma- Rev. L. 1905, sec. 1596. line insurance to all insurances, see "An insurance contract is. one by note at end of § I. herein, which the underwriter is liable for "Insurances mail he divided into the fortuitous damages which may general and special. A general in- occur to the insured personal or real surance is Avhere tlie perils insured property, in consideration of a cer- against are such as the law would im- tain price, which may be unre- ply from the nature of a contract of strictedly fixed by the parties." Rev. a marine insurance considered in 76 TERMS AND DEFINITIONS § 5 tract of indemnity against all losses accruing to the subject-matter of the policy from certain perils during the adventure." ^^ Marine itself, and supposing none to be ex- [Stli ed. Hart & Simey] ) defines pressed in the policy. A special in- this contract as that ''whereby one suranee is where, in addition to the party, for a stipulated sum, under- implied perils, further perils are ex- takes to indemnify the other against pressed in the policy; and they may loss arising from certain perils or be specified or the insurance may be sea risks to which his ship, merchan- agaiiist all perils." Vandenheuvel v. dise, or other interest may be exposed United Ins. Co. 2 Johns. Cas. (N. Y.) 127, 150, a policy on freight. 13 Llovd V. Fleming, L. R. 7 Q. B. D. 299, 302, per Blackburn, J. during a certain voyage or a certain period of time." Mr. Duer's defini- tion (1 Duer on Ins. [ed. 1845] 1) is very brief, being this: "Marine "Insurance has been described as insurance is a contract of indemnity 'a fixed sum as the price of risk.' " jvgainst the perils of the sea." While Barnstable, Tlie (U. S. D. C.) 84 Chancellor Kent (3 Kent's Commen- Fed. 895, 897, 898, a case where taries [13th ed.] 25) defines marine there was a stipulation in a charter insurance as "a contract whefeby party that "the owner shall pay for one parly, for a stipulated premium, the insurance on the vessel," and the undertakes to indemnify the other construction of the charter party was against certain perils or sea risks to involved, and it was determined tliat which his ship, freight, and cargo, or as between said owner and the some of them, may be exposed (luring charterers the risk of a collision lien a certain voyage or for a fixed period was cast upon the former. of time." This is the same definition "A policy of marine insurance is a given by Mr. Field in his work on contract by wliich, for a considera- Damages, ( 2d ed.) sec. 562. Anoth- tion stipulated to be j)aid by one er definition, given by Mr. Marshall interested in a ship, freight, or cargo, (Marshall on Ins. [ed. 1810] 2) is subject to marine risks, another as follows : "Marine insurance is that undertakes to indemnify him against which is applied to maritime com- .some or all of those risks during a merce, and is made for the protection certain period or voyage ; in other of persons having an interest in ships words, that, so far as the perils in- or goods on board from the loss or sured against are concerned, the sub- damage which may happen to them jcct insured shall remain, through- from the perils of the sea during a out the terra of the policy, of tlie certain voyage or a fixed period of value which it had at the beginning lime." Mr. Phillips (Pliillips on Ins. of the adventure." Matheson v. Equitable Marine Ins. Co. 118 Mass. 209, 211, 19 Am. Rep. 441, per Gray, C. J. See Commonwealth v. Weatli- erbee, 105 Mass. 149, IGO. 1 ) says: "Marine insurance is aeon- tract whereby, for a consideration stipulated to be ])ai(l by one interest- ed in a ship, freight, or cargo subject to marine risks, another undertakes A contract of insurance is merely to indemnify him against some or all a guaranty against loss of property those risks during a certain period or by marine disaster. Insurance Co. voyage." For other definitions, see 2 of North America v. Commonwealth, Parsons on Contracts (7th ed.) 350; 87 Pa. 173, 30 Am. Rep. 352. Rapalje & Lawrence's Law Diet. 668; Mr. Arnould (Arnould on Marine Bacon's Abridgement (4th ed.) 598, Ins. [6th ed. Maclachlan] p. 161, Id. 599, 13 Encye. Britannica, 184. 77 § 5 JOYCE ON INSURANCE insurance is also defined under the English statute of 1906.^* under the statutes of several of the United (States.^* And ^*"(1) A contract of marine insur- ance is a contract whereby the insur- er undertakes to indemnify the as- sured, in manner and to the extent thereby agi-eed, against marine losses; that is to say, losses incident to ma- rine adventure. (2) A contract of marine insurance may, by its express terms or by usage of trade, be extended so as to protect the assured agaiiits losses on inland waters or on any land risk wliich may be incident- al to any sea voyage. (3) Where a ship in the course of building, or the launch of a ship, or any adventure analogous to a marine adventure, is covered by a policy in the form of a marine policy, the provisions of this act, in so far as applicable shall ap- ply thereto." Marine Ins. act 1906 (6 Edw. VII. c. 41); Butterworth's Twentieth Cent. Stats. (1900-1909) pp. 394 et .seq.; 15 Chittv's Stats. Eng. (1902-1907) pp. 881 et seq. * IMaritime perils is also defined Marine insurance act 1906, 6 Edw. VII. c. 41; 2 Butterworth's 20tli Cent. Stat. pp. 397, :398; 17 Earl of Hals1)urv's Laws of Eng. "Insur- ance," pp. 335, 336. The stamp acts (30 Vict. c. 23, sec. 4; 47 & 48 Vict. c. 62, sec. 8, defined sea insurance). See further as to stamp acts, 17 Earl of Halsburj^'s Laws of Eng. "Insur- ance." ^^ Marine insurance is an insurance against risks connected with naviga- tion, to wliich a ship, cargo, freight- age, profits, or other insurable interest in movable property may be exposed during a certain voyage or a fixed period of time. Cal. Civ. Code, see. 2655; Cal. Laws 1913 c. 269, see. 3, p. 484, amd'g c. 594 of Polit. Code. "A contract of marine insurance is one by which a pei'son or corporation, for a stipulated premium insures an- other against losses occurring by the casualties of the .sea." Ga. Code 1911, p. 658, sec. 2515 (sec. 2120). See also Levisee's Dak. Code sec. 1563; Mont. Rev. Codes (Civ.) 1907, sec. 5638 (sec. 3540); N. Dak. Rev. Codes (Civ.) 1899, .sec. 4537; S. Dak. Rev. Codes (Civ.) 1903, sec. 1883. The insurance laws of New York provide for the incorporation of ma- rine insurance companies "for the purpose of making insurance upon \essels, freights, goods, wares, mer- chandise, specie, bullion, jewels, prof- its, commissions, bank-notes, bills of exchange, and other evidences of debt, bottomry and respondentia in- terests, and every insurance apper- taining to or connected with marine risks and risks of transportation and navigation including the risks of lake, river, canal, and inland transporta- tion and navigation (above wording is same as that of the first general insurance in corporation act in New- York, Laws 1849, c. 308, p. 441. It is also the same as the California Stat. 1913, c. 269, sec. 3, p. 484, amd'g c. 594, of Polit. Code.) insur- ance upon automobiles, whether sta- tionary or being operated under their own power; which shall include all or any of the hazards of fire, ex- plosion, transportation, collision, loss liy legal liability for damage to prop- erty resulting from the maintenance and use of automobiles, and loss by burglary or theft or both, but shall not include insurance against loss by reason of bodily injury to the per- son." N. Y. Laws 1911, p. 190, c. 126, sec. 150 (entitled "An Act to Amend the Insurance Law, in Rela- tion to tlie Character of the Automo- bile Indemnity which may be As- sumed by Eire and Marine Insurance companies.") See also Laws N. Y. ]912, p. 444, c. 232, sec. 70, subdivs. 9, 10. Examine 1 Wolff's Const. & Rev. Laws La. 1904, p. 845. TKKMS AND DEFINITIONS § 6 § 6. Definition of fire insurance. — Fire insurance is a contract whereby one for a consideration agrees to indemnify anotlier for loss or damage on pro],)erty by fire.^* 16 Fire Insurance is a contract by Ihe damage. The .sum payable can which the insurer undertakes in con- in no case exceed the amount named sideration of the premium to indem- in the policy; but as the contract is nify the insured against all losses a contract of indemnity, if the loss is ■which he may sustain in his house, less, the amount for which the insur- <>oods, or merchandise by fire within er is liable will also be lesi^." Or for t^he time limited in the policy : 11 Pet- a proportionate share under average clauses. 5 Renton's Ency. of Laws of Eng. p. 348. For other definitions see the follow- crsdorft's Abridgement, 9, note "In- surance." "Fire insurance is a con- tract to indemnify, in whole or part, one having an insurable interest in property from loss or damage caused by fire to the property insured:" Sharp's Lectures on Fire Ins. 1. "In- surance against fire is a contract to indemnify the insured for loss or damage to his property occasioned by that element during a specified peri- od:" Flanders on Fire Ins. 1, 17. See also Wood on Fire Ins. (2d ed.) p. 4; 2 Mar.sliall on Ins. (ed. 1810) *784; 2 Parsons on Contracts (Vth ed.) 418; 7 Am. & Eng. Ency. of Law, 1002. "A contract of fire insur- United States. — Lveoming Fire Ins. Co. V. Haven, 95 U. S. 242, 24 L. ed. 473 ; Durham v. Fire & Marine Ins. Co. (U. S. C. C.) 22 Fed. 468, 470, 471. Maine. — Donnell v. Donnell, 86 Me. 518, 520, 30 All. (i7. Massachusetts. — Commonwealth v. Weatherbee, 105 Mass. 149, 160; Wilson v. Hill, 3 Mete. (44 Mass.) 66, 68. Mississippi. — Lee Mutual Fire Ins. Co. V. State, 60 Miss. 395, 399. Pennsylvania. — Insurance t'o. of ance is a contract by which the insur- North America v. Commonwealth, 87 cr agrees, for valuable consideration Pa. 173, 30 Am. Rep. 352 (said to (usually called a premium), to in- be merely a guaranty against loss of demnify the assured, up to a certain property by tire or marine disaster), amount and sut).ject to certain terms Wisconsin. — See Johannes v._Phoe- and conditions, against loss or injury nix Ins. Co. 66 Wis. 50, 56, 5< Am. by fire which may happen to the Kep. 249, 27 N. W. 414 (where the property nisurcd during a specified (-(.urt says: "By such contract the period." 17 Earl of Halsbury's Laws msurer agrees to compensate the in- of Eng. "Insurance," p. 516. "Fire sured for'loss by fire of certain prop- insurance is a contract whereby, in erty for a given time"), consideration of the ])ayment of an The insurance laws of New York agreed premium, the insurer under- provide for the incorporation of fire lakes to make good to the assured any insurance companies, "for the ])ur- loss or damage which may happen to po^e of making insurances on dwell- specified property during a stipulat- inghouses, stores, and all kinds of ed period. Fire policies — in this re- buildings and houseliold furniture spect differing from marine policies ;,,]d other property against loss or — are usually for a specific sum, (hiuiage by tire, lightning, Avind, which bears no necessary relation to storm, tornadoes (same as in Laws the value of the property insured, of 1849, c. 308, p. 441) and earth- The amount payable in case of a loss, quakes, and against loss or damage therefore, is not determined by the by water to any goods or premises value of the property insured and in- arising from the breakage or leak- jured, but simply by tlie amount of age of sprinklers, pumps, or other 79 § 7 JOYCE OX INSURANCE Fire in^ul■an(•e includes ''insurance against lo^s or damage by fire, liglitning. windstorm, tornadoes or eartliquakes." ^"^ § 7. Definition of life insurance. — Life insurance is a contract dependent upon lunnan life, whereby one for a consideration agrees to pay another a certain sum of money upon the happening of a given contingency, or upon the termination of a specified period.^^ apparatus erected for extinguishing " Cal. Stat. 1913, c. 269, sec. lires, and of water pipes, and against 2, p. 483, amd'g c. 594 of Polit. accidental injury to such sprinklers, Code. puuip.s, or other apparatu.s, and, up- 18 "Life insurance imports a niutu- on vessels, boats, cargoes, goods, mer- ^1 agreement, whereby the insurer, in chandise, freights, and other proper- consideration of the payment by the ty against loss or damage by all or assured of a named sum annually, or jtny of the risLs of lake, river, canal, at certain times, stipulates to pay a iind inland navigation aand transpor- larger sum at the death of the as- tation (Laws of 1849 also provided sured. The company takes into con- ngainst the risks of inland naviga- sideration, among other things, the tiou and transportation) as well as age and health of the parents and rel- hy any or all ol the risks specilied in atives of the applicant for insurance, section one hundred and hfty of this together with his own age, course of cliapter" (see last note to § 5 herein) lif^^ habits, and present pl"-sical con- "including insurance upon automo- flition; and the premium exacted biles, whether stationary or oper- fj-ojn the assured is determined by the aled under their own power, w.hich probable duration of his life, calcu- shall include all or any of the haz- lated upon the basis of past experi- ards of tire, explosion, transporta- pnee in the business of insurance, tion, collision, loss by legal liability The results of that experience are dis- for damage to property resulting closed by standard life and annuity from the maintenance and use of au- tables, sliowing at any age the prob- lomobiles, and lo.'^s by burglary or g^ie duration of life." Ritter v. Mu- Uu'tt of hoth, but shall not include ti^al Life Ins. Co. I(i9 U. S. 139, 151, msuranoe against loss by reason of ig gup. ct. 300, 42 L. ed. 693, 27 bodily injury to the person." N. Y. j^s. L. J. 804, 813. Laws 1910, p. 39(, c. 168, sec. IIU ^ contract of life insurance or of (entitled "An Act to Amend tlie In- ■^^^^^,,^,,^^ , ^n a life in the ordinarv surance Laws m relation to hre and ^ ...^ ^ contract to pav a certain .Marine Insurance Corporations ) ^^^^ ^^ ^^^^^^. ^,^ ^^^ ^^^^j^ ^^- ^^^^ amending sec. 22 c. o3 Laws 1909 ^^^^^^^^r g^ate (ex rel. Clapp) v. (entitled "An Act in Relation to In- ^^^^^^,^^ Investment Co. 48 Minn, surance Corporations Constituting ^^^ -^j^ -^ j^. yr -^Q.^g Chapter Twentv-eight of the Consoh- , ' .. . • >.>.*. dated Laws") "as amended bv chap. "Life insurance is a con ract to 301, of Laws of 1909, N. Y. Laws pay a certain specihc sum on the hap- 1911, p. 189, c. 126, sec. 110 (en- P^""!"? ^^^ a particular event, which titled "An Act to Amend the Insur- may or may not occa.sion a pecuniary ance Law, in Relation to the Char- lo««- , Trenton Mutual Life & F^re acter of the Automobile Indemnity J"!- ^ »• v- Johnson, 24 ^. J. L. 5^0, which mav be Assumed by Fire and ^°'^- ■ :\Iarine Insurance Companies"). N. Life insurance is a contract to pay Y''. Laws 1912. pp. 444 et seci. c. 232. money upon the death of the assured, See Laws 1913, c. 296. See also Ga. in consideration of certain payments Code (Civ.) 1911, see. 2470 (2089). being dulv made at fixed periods dur- 80 II TERMS AND DEFINITIONS § 7 ing: his life. Reed v. Provident Sav- of a reversionary sum in consider- iiine party agrees to pay a given sum of indilterence to llie com})any. They upon the happening of a particular df) not found their calculations on event contingent upon tlie dni'ation that, but simply upon the probahili- of human life, in consideration of the ties of human life, and they get paid immediate payment of a smaller sum the full value of that calculation." or certain equivalent periodical i)ay- Law V. London Indisputable Life ments by another." Mr. Marshall, Policy Co. 1 Kay & J. 229, per Wood. (2 Marshall on Ins. [ed. 1810] 766, V. C. says: "The insurance of a life is a In Fryer v. Morland, L. R. 3 Ch. contract wheieby the insurer, in con- 675, 685, Jessel, M. R., in constru- .sidciation of a certain premium, ing the succession duty act (1(5 & either in a gross sum or periodical 17 Vict. c. 51), and the meaning of jtayments. underlak(>s to pay the per- "policy of insurance on the life," etc., son lor whose benetit the insurance says those words mean "a contract, no is made a stipulated sum or an an- doubt, for money. If is a ]Hirchase nuity equivalent upon the death of Joyce Ins. Vol. L — G. 81 § 7 JOYCE ON INSURANCE Life insurance has also been defined by statutes in some of the states.^^ the person whose life is insurecl, Ohio. — Koekley v. Coshocton Glass whenever this shall iiappen, if the in- Co. 86 Ohio St. 213, 225, 226, 99 N. snranee be for the whole life, or, in E. 299. case this shall happen within a cer- Virginia. — Cosmopolitan Life Ins. tain period, if the insurance be for Assoc, v. Koegel, 104 Va. 619, 52 S. a limited time." "A contract by E. 166 (within sec. 3251 of Code), which the insurer, in consideration of England. — Dalby v. India & Lon- a certain premium, either in a gross don Life Assur. Co. (1851) 15 C. B. sum or by annual payments, under- 365, 387, 13 Eng. Rul. Cas. 383, per takes to pay the person for whose Parke, B. benefit the insurance is made a cer- As to indemnity see §§ 24 et seq. tain sum of money or annuity on the herein. death of the person whose life is in- ^^ "An insurance upon life is a con- sured:" 1 Smith's Mercantile Law, tract by wliich the insurer, for a stip- ( Macdonell & Humphrey's ed. 1890) ulated sum, engages to pay a certain 491. amount of money if another dies See Bliss on Life Ins. (ed. 1872) within the time limited by the policy, sec. 3; Cooke on Life Ins. (ed. 1891) The life may be that of the assured, .«ee. 1; Petersdorff's Abridgement, or of another in whose continuance title "Insurance," 16. • the assured has an interest.'' Ga. For other definitions see the follow- Code (Civ.) 1911, p. 654, sec. 2496 ing cases: (sec. 2114). Life insurance includes California. — Briggs v. McCullough, "insurance upon the lives of persons 36 Cal. 542, 551. and every insurance appertaining Connecticut. — Fuller v. Metropoli- thereto, and the granting, purchasing tan Life Ins. Co. 70 Conn. 647, 663, and disposing of annuities." Cal. 675, 41Atl. 4. Stat. 1913, c. 269, see. 1, p. 183, Georgia. — Rylander v. Allen, 125 amd'g c. 594 of Polit. Code. Ga. 206, 6 L.R.A.(N.S.) 128, 53 S. Life annuities. An aleatory eon- E. 1032, 35 Ins. L. J. 724; Union tract of annuity binds the debtor to Fraternal League v. Walton, 109 Ga. pay a pension or annual rent to one 1. 3, 77 Am. St. Rep. 350, 46 L.R.A. or more specified persons during 424, 34 S. E. 317 (both cases quoting their lives, for a principal in per- Ga. Civ. Code, sec. 2114 [Code 1911, sonal or real property, the ownership sec. 2496] ) ; Cason v. Owens, 100 Ga. of which is at once transferred to 142, 143, 28 S. E. 75. said debtor "charged with the in- Massacliusetts. — Mutual Life Ins. come." Rev. Codes (Civ.) Porto Co. V. Allen, 138 Mass. 24, 27, 52 Am. Rico 1902, sec. 1704. "An annuity Rep. 246; Commonwealth v. Weath- may be constituted on the life of the erbee, 105 Mass. 149, 160. person who gives the capital, on that J/i.ssoMr/.— State (ex rel. Atty. of a third person, or on that of sever- Genl.) V. Merchants Exchange Mut. al persons. It may also be consti- Benev. Soc. 72 Mo. 146, 159. New Jerseg. — Merchants and Min- ers Transp. Co. v. Borland, 53 N. J. Eq. 282, 285, 31 Atl. 272. Neiv York. — Columbia Bank v. Equitable Life Assur. Soc. 80 N. Y. tutefl in favor of the persons for whose life it is granted, or in favor of another or other different persons." Rev. Codes (Civ.) Porto Rico, 1902, sec. 1705. That deferred annuity policii redid Suppl. 428, 431, 79 App. Div. 601; and not contrary to public policy St. John V.American Mutual Life Ins. though payments to commence in f u- Co. 13 N. Y, 31, 38, 64 Am. Dec. 529. ture during beneficiary's lifetime, see 82 i TEKMS AND DEFINITIONS § 7a § 7a. Definition of assessment insurance. — Assessment insurance is that where tlie benefit to be paid is dependent upon the collec- tion of such assessments as may he necessary for paying the amount insured, it constitutes assessment insurance when the payments are not unalterably lixed by the contract. In old-line policies the amount of the premiums is fixed unalterably, and the insurer's lia- bility is definitely fixed. ^^* A mutual benefit association provides insurance "upon the assessment plan," even though it agrees to pay a definite sum and has fixed rates of assessment which it has authority to receive in advance, where it has no "legal resei've," but only an "emergency fund," and it has the reserved right, under its contracts, to increase or lower the rates of assessment.^" In insurance and business circles the words "assessment company," as distinguished from "old-line mutual" company, means that in such first-named company the money to pay a death loss is collected by an assessment made upon those members who sur- Mutual Life Ins. Co. v. Smitli, 184 Stat. 1909, see. 6959 (Rev. Stat. 1899, Fed. 1, 106 C. C. A. 593, 33 L.R.A. see. 7901; Rev. Stat. 1889, sec. (N.S.) 439. 5800, was enacted in 1887). quoted ^^^ Knott v. Securitv Mutual Life and applied in Moran v. Franklin Ins. Co. 161 Mo. AppI 579, 592, 144 Life Ins. Co. 160 Mo. App. 407, 140 S. W. 178, quoting from Haydel v. S. W. 955, liolding nonforfeiture law Mutual Reserve Fund Life As.soc. of that state not applicable to life (U. S. C. C.) 98 Fed. 200, 203, case policy in that case, as it Avas an as- aff'd 104 Fed. 718, 44 C. C. A. 169. scssnient policy (see note to above Ai^sessment or co-operative plan, cited Stat. 1909, sec. 6950). See life insurance defined; statutes con- Haydel v. Franklin Life Ins. Co. 136 ^ trued. Mutual insurance on the as- Fed. 285, 69 C. C. A. 423, constru- sessment plan is defined under Laws ing Mo. Rev. Stat. 1899, sec. 7901, Cal. 1891, p. 126, c. 116, sec. 1. The deciding when policy is one under as- slatute is construed in Engwicht v. sessnient plan, and not an ordinary Pacific States Life Assur. Co. 15:'. life ])oliey, and not within the non- Cal. 183, 96 Pac. 87, a case determin- forfeiture law. Examine also Hay- ing the rights of members or "con- del v. Mutual Reserve Fund Life As- ti-act holders," and that a certain see. 104 Fed. 718, 44 C. C. A. 169, debenture was not such a contract, aff'g 98 Fed. 200, determining when Assessment or co-operative insurance, contract is not an endowment policy, see Wolff's Const. Rev. Laws La. Ijut one on the assessment plan. Co- 1904, p. 845. "Every contract where- operative or assessment plan, life in- by a benefit is to accrue to a person surance defined. Minn. Rev. Laws, or persons named therein, upon the Suppl. 1909, Annot. p. 443, sec. . 96, .sec. 250G). "All corporations, 3.')0, 46 So. 37^2, 37 Ins. L. J. 587. associations, relief organizations, so- "^ "Industrial" and ''FrudentiaV cieties, or fraternal orders, with or companies defined — patrers. "Indus- without capital stock, and haxing or trial or i)rudential life insui'ance com- not having a ritualistic form of gov- panics under the meaning of this crnment, whether operating under the article are such life insurance compa- present insurance laws as insurance nies that issue policies not exceeding (♦ompanies. or operating under the .$50(1 in amount, the pi-emiums on laws governing fraternal bencliciary wliich are cominited at a weekly rate ordei-s, and issuing policies or bene- and are collected and paid weekly fit certificates, and conducting their under the terms of the policies of the business in the manner and within the c(imi>any issuing the same. Rut the meaning an(T definition .set forth in the coin]ianies organized under the pro- preceding ]iaragraph, shall be held visions of this article may also issue and deemed to be doing an industrial life ]iolicies, not exceeding .$1,000 in life insurance business, and shall be amount, the premiums on wliicli shall subject to this section and all the be computed at a monthly rate, and other laws of this state not repugnant by the terms of the policy shall be to this .section, res'ulaling the business paid monthly to such company." Mo. of life, health, and accident-insurance Rev. Stat. 1909, sec. 6993 (Rev. Stat, in this state." Code Ga. 1911, p. 6.V) 1899, sec. 7943) art. 5, title "Tndus- tCiv.) sees. 2.")02, 2.')03. liial and Prudential Insurance." Ar- ^ "Industrial life insurance is here- tide was enacted by Law 1897, p. by defined to be that insurance for i;{8. which the sti])ulated premiums, ad- * lUflustrial sick Ix'iiefit associations vances, assessments, or dues are regu- cndiiace associations that collect larly payable and collectable every weekly dues and assessments, and is- tour weeks, tri-weekly, bi-weekly, sue ])olicies ])roviding weekly indem- semi-weekly or at any other staled nity on account of sickness or acci- terms less than a month aiiart, and dent, in addition to benefit in case of the. policies or benefit certificates for death and associations not j-equircd which are for sums of $500 or less on to maintain legal reserve for death a single life on which policies or bene- l)enefits: certain fi'alernal beneficiary fit certificates i)rovide a weekly ca.sh associations excepted: corporations, benefit for disability, caused by sick- joint -stock companies, or a.^socialions ness or accident, of $20 per week or are included. Va. acts 1910, p. 438, 85 § 7b JOYCE ON INSUKANCE In England in the collectino; societies and industrial assurance companies act of 189(),^ entitled "An Act to Consolidate the En- uctnienLs lielating to Eriendly So.cieties and Industrial Assurance Companies which IJeceive Contributions and Premiums by Means of Collectors," the term "industrial assurance company" refers to any person or body of persons, corporate or unincorporate, grant- ing- insurance on any one life for a less sum than twenty pounds. And the assurance companies act of 1909 ^" provides for insuring money to be paid for the funeral expenses of a parent, grandparent, ])ayment dependent upon the length of time between the issuance the life is insured for a specified sum, still, whether the entire amount, or a proportionate part thereof, or any sum whatever shall be paid, may be governed by a limitation or restriction making such ]»ayinent dependent upon the length of time between the issuance of the policy and the death of the insured. This is illustrated by the limitation that one half the benefit is to be paid if death oc- curs within six months from date of tlie j)olicy, and the full amount if death occurs thereafter; that one half is to be paid if death occurs after six months and within one year; that one fourth is to be paid if death occurs after three months and within six months, and that no benefit is to be paid if death occurs within three months. There are said to be two reasons for such restric- tions, namely to keep out fraudulent risks, and at the same time to keep the expense of investigations duly proportional to the amount of insurance, and to kee]) the amount of prei^iiums paid always within a reasonable proportion to. the premiums collected, in view of the fact that only a small instalment, a.s in case of a weekly premium, is paid in advance, differing therein from the premium due in advance imder an ordinary life policy. A policy or contract is industrial, and not accident, insurance where it contains the liniitation first above stated, and also the pro- vision that in the c\ent of death from accident within six months from date of the policy "the full amount of insurance named in the first schedule will be paid." It is not the giving of direct afiirma- tive benefits of a special kind on account of the accident. It con- stitutes 'iimply an excei)tion of this class of cases from the ordinary rights of an insured person, which limitation was established to prevent fraud of a kind bearing no relation to deaths by accident." c. 201. entitled "an Aet to Define Supp. 540, 145 Ai)p. Div. 704; Laws and Classify Industrial Sicl^ IJenelit X. Y. 1892, c. 600, see. 55. Companies and Associations." ^ 59 & 60 Yict. c. 2(). As to statutori/ limUation of ^° Edw. VTT. c. 49. s,ht be construed as coercive or in the nature of a penalty.^* it is said in connection with governmental insur- ^' It is said in a case holding the also, through fear of discharge if he Wisconsin act constitutional, that did not accept. 'Mionc can say what the practical "Workmen's compensation is at operation ot the law will be. ]t is present t)eing presented to the Anieri- cnough for our present purpose that can people in three forms, viz.: no one can say with certainty tiiat it First: In a. form merely optional, will operate to coerce either employ- i. e., contemplating that the employ- er or employee." Borgnis v. Falk ers and employees should bring theni- County, 147 Wis. 327, 37 L.K.A. selves under its provisions (which, (N.S.) 489, 133 N. W. 209, per AVins- except in the Ohio bill, provides for low, Ch. J. The decision in this ca,se direct liability of the employer, in- was under the workmen's compensa- stead of insurance) by tiieir own lion act. Laws 1911, c. .30; Laws action; or quasi-optional, i. e., re- 1911, e. 485, and so far as is neces- (luiring them, if not desiring to be sary to state here,, it divided all pri- Ijouud by its provisions, to take af- ate em])loyers of labor into two class- firmative action indicating their es: (1) Tliose who elected to come election. . . . Second: A law sub- under the law; and (2) those who did stituting for the present employers' not so elect. It took away the defens- liability law, a sj'stem of workmen's es of assumption of risk, and negli- compen-sation, the employer to be gence of a coemj)loyee from the sec- liable for the payment of the com])en- ond class (except that where there sations, and the same to be api)lica- were less than four co-employees the ble to all employments. . . . Tb.ird : latter defense was not disturbed), but A system of compulsory insurance left both defenses intact to the tirst in wliich the state lends its sovereign class. It prescribed the manner in ] tower to afford at least the compul- \\ Inch an emi)loyer might elect to sion, and in wiiich it either may or come under its terms, and how an may not also a.'^sume the management employee might make his election, and conduct of tiie business." Art. and when silence on the part of an by Miles M. Dawson, in Bnllock's employee would be considered an elec- Selected Articles on Compulsory tion; but it did not in terms compel Ins. (1912) pp. 88, 90, 93. On work- either em])loyer or employee to sub- men's compensation a<-ts generally see mit to its provisions. It Avas urged note in L.R.A.191GA, 23. The eonsti- as an objection that the law. wliile tutionality of workmen's comitensa- in its words presenting to employer tion and industrial insnrajice statutes and employee a free choice to accept is discussed in notes in 37 L.K.A. or not accept its terms, was in fact (N.S.) 466; L.R.A.1916A, 409. coercive, so that neither employer nor "There are two classes of workmen's employee could be said to act volun- compensation laws: One imposes tarily in accepting it. As to the em- the liability upon the individual em- ployer the argument was that the ab- ])loyer, wiiile tlie other is l)ased upon olition of the two defenses was a the principle of mutnal insurance. club forcing him to accept: and as to I^iws of the first class may be either the employee it Avas argued tliat if optional or comiuilsory," etc. New his employer accepted the law the eiu- Internat. Year Book (1911) p. 239. ployee would feel compelled to accept "In the states of the civilized world 88 I TERMS AND DEFINITIONS § 7d juiee covering accident, sickne.i(j under workmen's compensa- ticials, or make insurance contracts subject to the statute, or even by the tion act of England 1900 (ni force character of tlieir provi.sions preclude July 1, 1907) see Wilkinson v^ Car h conti'acts, etc. An act was & General Ins. Corp. 108 L. T. 512 SU( 16 10 New Internat. Ency. (1908) ]>. 088. ''The recent agitation in the Cnited States lias been confined anv corporation, tirm, or i)ra,ctically to the compensation of individual, i'md tiie corporation, woi'kmen for injuries received in in- firm, or individual by wliich they were dust rial accidents and the liability of employed, to form an a.ssociation for employers ])assed in Massachusetts in 1910 (c. .559) acts & res. 1910, p. 538, au- employecs, oflicers, and or tlionzing agents of the purpose of pi'oviding annuities, jjcnsions, or endowments for em- ployees retiring from their employ- ment on account of age, the i)artici for the same." As to foreign countries, the subject is "interwoven with other forms of social insurance — such as insurance against unemidoyment and old age," l)ating employees to contribute to tlie etc. Preface to Meyers Select List of funds a certain percentage of tiu'ir Reference.s, etc., noted in bililiog- wages or salaries, to be deducted by raphy in note p. 51, § VII b herein, the employer, and the employer also 89 § Td JOYCE ON INSUKANCE sory insurance, wlicre and in so far as it is at the expense of employers, is in effect simply a liability to pay compensation for accidental injuries to employees, with a legal obligation added to insure its payment," and "the principles of the compensation law are developments of the negligence law." " Again, it is de- clared as to workingmen's compensation, that it ''is a term used to designate that form of compensation for industrial accidents which has come to replace employers' liability. . . . Most of the American legislation still takes the form of employers' liability laws." ^* INIr. Bradbury states, in the preface, that the introduction to his work shows the evolution of the employers' liability principle into the workmen's compensation and the state insurance doc- trines.^' Mr. Boyd considers the distinctions between the common law, employers' liability laws, and workmen's compensation laws as remedies for compensating workmen injured in the due course of their employment; he also states that the relation imposed by the workmen's insurance acts is purely economic in character as distin- guished from the creation of a new right in the employee sounding in tort, and that the obligation fall? within the domain of contract, one thrust upon the employer, as part of the contract of employ- ment, to become a party to an insurance policy created by law, to be entered into as an additional consideration for services rend- ered by the employee. ■ The same writer also notes the fundamental differences between the ])rinciples of workmen's industrial insurance and those of employers' liability laws or compensation acts in cer- tain states.^" It is said of the workmen's compensation act of England of 1906 that: "That act has rendered it practically neces- sary for all who desire to avoid the risk of bankruptcy, and who cannot afford to be their own insurers, to insure. Tens of thous- ands of small shopkeepers wdth one assistant, lodging-house keep- ers, and others with one 'general', small farmers, tenants of small buildings, and the like with one man, are driven to insure." ^ 1'^ Article by P. Tecumseli Sherman seq.; pp. 13, 14, sec. 6; p. 155, sec. in Bullock's Selected Articles on 67. Compulsory- Ins. (1912) pp. 72, 73. ^ Bradley & E.ssex & Suffolk Acci- See also Bovd'.s Workmen's Compen- dent indemnity Soc, In re, 81 L. J. ,<.ation Direct Payment & State Ins. K. B. 523, 530, [1912] 1 K. B. 415, (ed. 1913) p. 205, sec. 100. 105 L. T. 919, 28 T. L. R. 175, [1912] 18 New Internal. Year Book (1912) W. Kep. 6, per Farwell, L. J., case "Workmen's Compensation," p. 815. of construction of policy taken out 1' BradhuryV Workmen's Compen- 1)y a earner and small farmer aaaiusl. sation & State Ins. Law (ed. 1912). liability for accidents under work- Preface, p. VI. men's compensation act of 1906. 2" Boyd's Workmen's Compensa- Proviso here was for keeping wages lion, Direct Payment & State Ins. book. (ed. 1913) pp. 1 et seq. sec. 1 et 90 TKftMS AND DEFINITIONS § 8 § 8. Definition of accident insurance. — Accident insurance is a contract whereby one for a consideration agree? either (1) to in- demnify another against personal injury resulting from accident, or (2) to pay another a certain sum of money in case of dcatli caused by accident. It is said that accident insurance is intended to indemnify for injury resulting from accident or to compensate by payment of a fixed sum where death results to the insured in consequence of accident, and that the contract closely resembles that of life insurance.^ It is also declared by the court, in Healey 27 American Law Review, 585, dental death, constitute accident in- .'87. See Cominonweallli v. Weatlier- surance nnder the Statute 1007, c. bee, 105 Mass. 149, KiO; see also deti- 576, see. 32, el. 5, specifying kinds of nition of life and accident insurance accident insurance that companies in State (ex rel. Slieets) v. Pittsburg, may transact. Cincinnati, Chicago & St. Louis l?d. What constitutes an accident or in- Co. 68 Ohio St. D, 30, 96 Am. St. dustrial policy, and not a life or en- Rep. 635, 64 L.R.A. 405, 67 N. E. dowment policy, see Pride v. Conti- 93, is given under, § / herein, nental Casualty Co. 69 Wash. 428, What accident insurance covers, see 125 Pac. 787, nnder Rem. & Bal. 17 Earl of Halsburv's Laws of Eng. Code, sees. 6155, 6159. "Insurance," pp. 566, 571; compare Under a decision in New Jersey in § 9 herein. See also Miller v. 1908 it is determined that a contract JVIarvland Casualty Co. 193 Fed. 343, for life insurance cannot nnder the 113 C. C. A. 267. statute of that state be included in the As to last point in text, see Logan .same policy with insurance against V. Fidelity & Casualty Co. 146 Mo. bodily injury or death by accident. 114, 47 S.' ^X. 948 ; Maryland Casual- ^tna Life Ins. Co. v. Watkins. / 7 ty'Co. y. Gehrmann, 96 'Md. 634, 650, N. J. L. 223, 71 Atl. 325, 38 Ins. L. 54 Atl. 678; compare Tictin v. Fi- J. _125. Under Pub. Laws 1902, p. delity & Casualty Co. (U. S. C. C.) 40/, as am'd 1907 Pub. Laws, 128, 87 Fed. 543; Standard Life & Acci. specifying among the classes of ni- Ins. Co. V. Carroll, 86 Fed. 567, 30 C. surance for which companies might C. A. 253, 41 L.K.A. 19; National be formed in that state : "(3) Upon Life & Accident Ins. Co. v. Lokey, the lives or health of persons and 166 Ala. 174, 52 So. 45. every insurance appei-taining there- "An ordinary life policy includes to, and to grant, purchase, or dis- the occurrence of death by accident i)o.se of annuities. (4) Against as one of the conditions which call bodily injury or death by accident for a payment by the company, as (and upon the health of ])ersons)." well a.s death from any other cause, (^iting ^Etna Life Ins. Co. v. Ilardi- and ordinary accident policies in- son, 199 Mass. 181, 85 N. E. 40 < . dude injuries by ai-cidenl causing Company authorized to i.-^sue death, and to that extent they pro- i)()licics against accidents to individu- vide insurance for life." ]\letropoli- als may likewise issue policy against tan Life Ins. Co. v. Hardison, 208 accidents to live-stock. Pennsyl- Mass. 386, 389, 94 N. E. 477, 40 Ins. vania Casualty Co. In re, 36 Pa. C_o. L. J. 901, per Knowlton, Ch. J., Ct. 635, under Pa. act May 1, 18/6 holding that certain jirovisions in a (Pul). L. 53) as am'd by act July 9, life and industrial policy did not, 1897 (Pub. L. 239) classifying in- even though providing against acci- surance. / 91 § 9 JOYCE ON INSUKANCE V. Mutual Accident. Association,' tliat ''a policy of accidental in- surance is issued and accei)ted for the ])urpose of furnishing in- demnity against accidents and death caused by accidental means." * Under the Massachusetts act of 1887* accident insurance policies include ''liorse or vehicle policies," ''general liability policies," "outside liability policies," and "elevator policies," all being in- tended to coA'er accidental injuries to persons arising from different causes, or under which the indenniity is paid for loss to the assured by an accident for the effects of which he is legally responsible and which results in bodily injury or death, as s])ecified within the policy classification, and the issuance of said policies is not carrying on more than "one class or kind of insurance." ® A statute |)ermitting the insurance of the health of persons and against accidental injuries, etc., resulting from traveling and gen- eral accidents by land or water does not authorize the issuance of a policy covering liability imposed by law by reason of bodily inju- ries, including death, accidentally sustained by reason of the main- tenance, use, etc., of automobiles.' § 9. Definition of casualty insurance. — Casualty insurance has been defined as an insurance against loss through accidents or casualties resulting in bodily injury or death,* In a case decided in Massachusetts a distinction" is made by the court between "accident" 3 133 111. 550, 560, 9 L._R.A.(N.S.) Stat. 1879, which foreign companies .171, 23 Am. St. Eep. 637, 25 N. E. might cariv on). Under Ilerron's 52. Suppl. 1908-1910 to Sayle's Tex. * See Employers' Liability Assur. Stat. p. 233, accident insurance re- Corj). Lim. v. Merrill, 155 Mass. late.s to the injury, disablement, or 404, 29 N. E. 529; Bunyon on Ins. p. death of persons resulting from 100; Black's Law Diet. 632; Rapalje traveling or general accidents by land & fjawrence's Law Diet. 668. or water. 5 Cliapter 214, sec. 29, ck 5, same "^ American Fidelity Co, v. Bleak- also as to Pub, Stat. c. 119, sec 201; k'V, 157 Iowa, 442, 138 N. W. 508. Stat. 1887, c. 214, sec. 80; Stat. 1889, ''Travelers' insurattce" is recog- c. 356; Stat. 1891, c. 195. nized as a line applicable to that class ^ Einployer.s' Lialiilily As.sur. Corp. as a distinct line of insurance. Most Tjim. v. Merrill, 155 Ma.ss. 404, 29 N. accident companies make a specialty Vj. 529. As to Rev. Laws Mass. of it. It is a generic term, and no Suppl. 1902-1908 (acts 1908) p. .,ne has an exclusive right to its nse 1176, .see note under next section wlien sucli use by another is not made (§ 9 herein). See People (ex rel. to operate to the former's detriment. Ocean Accident & (luarantee Corp.) Travelers Insurance Machine Co. v. V. Van Cleave. 187 III. 125, 58 N. E. Travelers Jns. Co. 142 Ky. 523, 528, 422 (as to kinds oE l)usiness casualty 529, 134 S. W. 877, a cause of action conipanies may transact, under act to enjoin use of name. 1899); Peoi)le (ex rel. Stevens) v. « State (ex rel. Clapp) v. Federal Fidelity & Casualty Co. 153111.25,26 Tnve.st. Co. 48 Minn. 110, 111, 50 N. L.R.A. 295, 38 N. E. 752 (as to mean- AV. 1028. ing of "any kind of business," under 92 TERMS AND DEFINITIONS § 9 and "casualty" insurance, it being said that the "distingui'^liino; feature of what is known in our legislation a.s 'accident insurance' is that it indenmilie.s against the eti'ects of accidents resulting in bodily injury or death. Its field is not to insure against loss or damage to property, although occasioned by accident. 80 far as that class of insurance has been developed it has l)een with reference to Ijoilers, plate-glass, and injnries to property by street-cars, etc., and ])erhaps injury to domestic animals, and is known as 'casualty insurance.' " ^ In an Iowa case,^" the court, per A\'eaver, J., in con- sidering the statutes of that state and the words ''other casualty,'' "casualty," an. that companies may tran.sacf. See 497, c. 49, sec. 122. "Casualty insur- Metropolitan Life Ins. Co. v. Ilardi- ance'' defined, under detinition of as- son, 208 Ma-ss. 380, 389, 94 N. E. 477. sessnieid plan of insurance: Suppl. 40 Ins. L. J. 901, considered under 1888, Pub. Stat. Mass. c. 183, pp. 291, note to last ])receding section herein. 292. Casualty insurance, upon co- Accident and casualty insurance in- operative or assessment i)lan, includ- clude-s plate glass insurance. JMetro- ed in accident insurance covering ac- politan Casualty Ins. Co. v. Basford, cident, sickness or other physical 31 S. Dak. 149,' 139 N. W. 795. See disability. Minn. Rev. Laws, Suppl. also Laws S. Dak. 1911, c. 170, 1909, annot. p. 443, sec. (1702—] 1 amd'g Laws 1905, c. 73. Under (act 1907, c. 318, sec. 1). By N. Y. Herron's Sup|)l. (to Sayle's Tex. Civ. Laws 1883, c. 175, the formation of Stat.) 1908-1910, p. 233, accident in- life and ca.sualty companies in co- surance is conditioned upon Uie in- operative or assessment plan was jury, disablement, or deatli of persons authorized. Report of Board of resulting from traveling, or general Statutory Consol. (covering insur- accidenti5 by land or water. iince) vol. 3, p. 2949. See i>resent Suits on accident policies insui'ing N. Y. Stat, considered under J; X. against accidents to human beings are herein, notes 8-13, pp. 03-05. not within South Dakota Code Civ. i" Bankers Mutual Casualty Co. v. Proc. sec. 99, subd. 5, providing that First Nat. Bk. 131 fowa, 4,')G, 401, all actions brought on a policy of in- 108 N. W. 1040. suranee to recover for loss or dam- ^^ Cititiq Standard Diet. 93 § Oa JOYCE OX IXSUKANCE is quite commonly applied to losses and injuries which happen sud- denly, unexpectedly, not in the usual course of events, and without any design on the part of the })erson suft'erino; from the injury. Nor does the fact that the conscious or intended act of some other per- son produces it take from such injury its character of an accident or casualty." ^^ The court concludes that the insurance against casualty under the laws of that state has no reference whatever to other than ]»roperty losses,' as distinguished from losses by personal injury, or those through accidents resulting in bodily injury or death, and insurance against loss by burglary was held included within the words ''other casualty" under the Code.^^ § 9a. Definition of employers' liability or indemnity insurance. — An employers' liability or indemnity insurance is a contract which, for a consideration or premium and for a specified term, insures an employer against liability to an employee for damages, or which agrees to indemnify the employer for the loss or damages actually sustained by him, by reason of his liability to the employee.^* This insurance is considered a distinct branch of accident insur- ance.^^ The usual provision seems to be one whereby the insurer '^^Citing Richards v. Travelers Ins. Assur. Corp. v. Merrill, 155 Mass. Co. 89 Cal. 170, 23 Am. St. Rep. 455, 404, 29 N. E. 529, where, in differenti- 26 Pac. 762; Accident Ins. Co. v. Crandal, 120 U. S. 527, 30 L. ed. 740, 7 Sup. Ct. 685; Schneider v. Provi- dent Lif^ Ins. Co. 24 Wis. 28, 1 Am. Rep. 157. atinrown- Corliss Enijine Co. 137 Wis. 564, 20 L.R.A.(N.S.) 956, 110 N. W. 308 (la.^t clause construed) ; Hoven v. Emplovers' Liability Assur. Corp. 93 AVis. 201, 32 L.R.A. 388, 67 N. W. 4(i (agreement to pay "all sums for which it shall become liable to its em- ployees," construed). Another form is "again.st loss by 96 fecting safety of persons, see Butler Bros. V. American Fidelity Co. 120 Minn. 157, 44 L.R.A.(N.S.) 609, 139 N. Y. 355). Massachusetts. — Hood & Sons v. :\Iarvland Casualty Co. 20(i Mass. 223,' 30 L.R.A.(N.S.) 1192, and note, 138 Am. St. Rep. 379, 92 N. E. 329 (fii-st clause construed). Minnesota. — Butler Bros. v. Ameri- can Fidelity Co. 120 Minn. 157, 44 L.R.A.(N.S.) 609, and note 139 N. TEKMS AND DEFINITIONS § 9a or while actually engaged in the performance of duty in the trade or occupation for which employed ; or only for loss or liability iov injuries sustained during the innnediate doing of certain construc- tion work ; " or wliile engaged in certain specilied work within cer- tain territorial limits; ^^ or for injuries in a designated place; ^^ or while on duty at the places, or at any of the places specified: or covering all operations connected with the business including cer- tain designated clashes of employees;^" or against liability on all inside or shop work, and general liability on outside work, includ- ing liability to persons other than employees; ^ or for injuries acci- dentally suffered by any person not employed by assured, while at or about certain described work of assured during the prosecution of the latter's work at the place or places specihed; ^ or for injuries accidentally suffered by any person or persons not employed by assured, in and during the period of construction of certain specified work;' or to cover, in addition to employees, the liability of as- sured to thd public only for personal injuries, only caused by as- W. 355 (loss to be paid in money^ etc.) ; Patterson v. Adan (Philadel- phia Casualty Co.) 11!) .Minn. iiOS, 48 L.R.A.(N.S.) 184, and note, 138 N. W. 281 (niitomohile policif ; injury etc. caused by : los.s payable in money, etc.: applies only when insui'er de- nies liability and refuses to defend). Ndiih Carolina. — Cannon ^lanu- facturins: Co. v. Employers Indemni- ty Co. 161 N. C. 19, 76' S. E. 530 (to reimburse for loss sustained and paid in money under a final judgment: what constitutes final judgment). Ohio. — Garrett v. Travelers Ins. Co. 20 Ohio Dec. 181, 55 Ohio L. above clause con- indemnity against injured employee cannot Bull. 181. (Last strued as one of loss, etc. sue ) . Tihofle Island. — Herbo-Phosa Co. V. Philadelphia Casualty Co. 34 R. I. 567, 84 Atl. 1093 (what constitutes payment though not "in money"). See Taxicab Motor Co. v. Pacific Coast Casualty Co. 73 Wa.^^h. 631, 132 Pac. 393, icliat confilitules ■payment of judgment; case of insurance against loss on account of bodily injuries or death accidentally sull'eved by any person from operation of taxicabft. ^"^ Construed in Camden & Atlantic Joyce Ins. Vol. I. — 7. 9 Teleph. Co. v. United States Casualty Co. 227 Pa. 242, 75 Atl. 1077. Con- tract here covered only pei'sons not employed by assured in and during certain construction Avork. ^^ Construed in connection with the right to recover additional premium.'^, in Pacific Coast Casualty Co. v. Home Teleph. & Tclcg. Co. 11 Cal. App. 712, 106 Pac. 262. 13 Construed in JEtna Life Ins. Co. V. DuParquet, Huot & ]\Ioneuse Co. 65 Misc. 551, 120 N. Y. Sup p. 759. ^^ Con.strued in Humes Const. Co. V. Philadelphia Casualty Co. 32 P. I. 246, 79 Atl. 1. See also Hoven v. West Superior Iron & Steel Co. 93 Wis. 201, 32 L.R.A. 388. 67 N. W. 46. 1 Construed in Cornell v. Travelers Ins. Co. 175 N. Y. 239. 07 N. E. 578, 32 Ins. L. J. 769. See also Butler Bios. V. American Fidelity Co. 120 Minn. 157, 44 L.R.A.(N.S.j 609, 139 N. W. 355. 2 Construed in Henderson Ligliting & Power Co. v. Maryland Casualtv Co. 153 N. C. 275, 30' L.R.A. (N.S.) 1105, and note, 69 S. E. 234. ' Construed in Camden & Atlantic Teleph. Co. v. United States Casual- tv Co. 227 Pa. 242, 75 Atl. 1077. § 9a JOYCE ON INSURANCE siired or his workmen ; * or the policy may be one indenniifying l)laintifl' again.st loss from liability imposed by law upon assured for damages on accoimt of bodily injuries, including death result- ing therefrom, accidentally suffered by any person or persons whomsoever, while within or upon the described premises or the premises or wings adjacent thereto.^ The contract may also agree to indemnify assured in a certain sum against liability for damages on account of fatal or nonfatal injuries accidentally suffered by employees, and also against liability to workmen employed by other contractors and the public, arising out of personal injuries caused by them or their workmen, but not caused by a subcontractor or subcontractor's workmen.^ An indemnity policy may also be is- sued to a earner to protect it against loss on account of injuries sils- tained by its employees.' A liability policy may also agree to in- demnify against loss on account of accidental injuries suffered by persons using elevators} .A casualty policy against explosion of stexim boilers may cover employers, employees and other persons; as, where it is taken out to indemnify the employer against injury or loss of life, ''whether to the assured, to employee, or to any other person or persons," "payable to the assured for the benefit of the injured person or persons, or to their legal representatives in case of death, and not contingent upon the legal liability of the as- sured." ^ But a law authorizing insurance of employers against loss * Construed in Creem v. Fidelity & alty Co. of America, 166 Mo. App. Casualty Co. 126 N. Y. Supp. 555, 567, 149 S. W. 1049. 141 App. Div. 493, 40 Ins. L. J. 600; Elevator policy to indemnifj' own- s. c. 118 N. Y. Supp. 1102, 134 App. er of legal title to building from lia- Div. 949; s. e. 116 N. Y. Supp. 1042, bility for damages resulting from ac- 132 App. Div. 241. See Lewinthau eident or injury in elevator, when v. Travelers' Ins. Co. 61 Misc. 621, only record or legal owner and not 113 N. Y. Supp. 1031. beneficial owner, within protection of ^ Harbor & Suburban Bldg. & Sav- policy, the latter owner not being ings Assoc, v. Employers' Liability named therein. McCarl v. Travelers Assur. Corp. 140 N. Y. Supp. 117, 79 Ins. Co. 151 Iowa, 669, 132 N. W. 12, Misc. 150. See also Graustein & Co. 40 In.'^. L. J. 1820. V. Employers' Liability Assur. Corp. ^ Emliler v. Hartford Steam Boiler Ltd. 214 Mass. 421, lOi N. E. 1073. Inspection & Ins. Co. 158 N. Y. 431, 6 Tolraie V. Fidelity & Casualty Co. 44 LR.A. 512, 53 N. E. 212, aff'g 40 88 N. Y. Supp. 717, 95 App. Div. N. Y. Suppl. 450, 8 App. Div. 186. 352. Insured was a contractor for In this case recovery against an em- erection of a city building. ployer for an employee's death pre- ' New Orleans & C. R. Co. v. Mary- eluded recovery by latter's legal land Casualty Co. 114 La. 154. 6 representatives. Policy was issued L.R.A.(N.S.) 562 and note, 38 So. prior to the New York statute of 89. 1892, under which an employer was 8 Nesson v. United States Casualty expressly authorized to take out a Co. 201 Mass. 71, 87 N. E. 191. policy of accident insurance covering See also Scarritt Estate Co. v. Casu- liis employees collectively, for the 98 TERMS AND DEFINITIONS § 10 in congequence of accidents or casualties to employees or other per- sons or to property or both, resulting from employees' acts occurring in connection with the transaction of business or from the operation of machinery connected therewith, does not authorize the issuance of a policy covering liability imposed by law by reason of bodily in- juries, including death accidentally sustained by reason of main- tenance, use, etc., of automobiles}'^ In policies limited to employees' injuries, the premiiun is based upon or bears a direct ratio to the gross amount of wages paid by the insured.^^ § 10. Definition of endowment insurance. — Endowment insur- ance is, in general, a contract to pay assured a. specitied sum of money at the termination of a certain designated period, if he is then living, but to a person named if assured dies before the speci- fied time.^^ There are, however, several forms of endowment pol- benefit of such as might be injured. AUhama.—llo\-)kms v. Northwesl- The Insurance Law (Laws 1892, c. em National Life Ins. Co. 41 Wash. 600) see. 55. 592, 83 Pae. 1019, 35 Ins. L. J. 267, ^"American Fidelity Co. v. Bleak- 269 (contract here provided iiii- ley, 157 Iowa, 442, 138 N. AV. 508. equivocally for endowment policy and On insurance against liability for for endowment fund, expres.sly [iro- automobile accidents, see notes in 44 viding- that if holder of certititate L.R.A.(N.S.) 73; 51 L.K.A.(N.S.) kept same in force and survived un- 584; L.R.A.1915E, 575. lil a certain date he should surrendei- As to different kinds of insurance certificate to association and receive a other than life, authorized in Iowa, certain sum from the endowment see Iowa Code, Suppl. Annot. 1907, fund; question was one of waiver of p. 356, sec. 1709; acts 1913, p. 150, right to endowment). c. 143, p. 151, e. 144. Id. pp. 165-171, California.— Bviggs v. McCnllough, c. 147 (mutual benefit— under Em- 36 Cal. 542, 5.50, 551. jiloyers' liability and Avorkmen's com- Illinois. — Rockhold v. Canton Ma- pensation act)." sonic Benev. 8oc. — 111. — , 19 N. E. 11 So, in Palmer & Hardin v. Pi- 710, aff'd 129 111. 440, 2 L.R.A. 420, delity & Casualty Co. 137 Ky. 139, 21 N. E. 794 (contiact was to ])ay in- 125 S. E. 270, 39 Ins. L. J. 554; sured upon arriving: at seventy years Pacific Coast Casualty Co. v. Home of age, or after he had been a mem- Teleph. & Teleg. Co. 11 Cal. App. her in good standing- for twenty-five 712, 106 Pae. 262; Empire State years, or, upon liis death, to his wif<^ Surety Co. v. Moran Bros. Co. 71 if living-, if not, then to his children Wash. 171, 127 Pae. 1104, case of or legal representatives; benevolent action to recover balance of premium : society held to have no power to is- amount of premium was based upon sue endowment insurance; see, in this entire amount of compensation paid connection, Boyd v. Southern Mutual to employees: "kind of business" and Aid Asso. 145 Ala. 167, 41 So. 164). "kind of work" defined in connection Indiana. — Union Central Life Ins. wifli rate of premium. Co. v. Woods, 11 Tnd. App. 335, 37 12 State (ex rel. Clapp) v. Federal N. E. 180, 26 Ins. L. J. 151 {qnolinn Investment Co. 48 Minn. 110, 111, 50 definitions from And. L. Diet, and N. W. 1028. Bliss on Ins. [2d ed.] p. 6, sec. 6). See the following eases: Missouri. — State (ex rel. Supreme 99 § 11 JOYCE ON INSURANCE icic.^, or rather, plans of endowment insurance. ^^ So a policy may he issued on what is called the endowment plan comhinino- an in- surance of the life and an investment of the moneys paid.^^ § 11. Definition of tontine insurance. — Tontine insurance, strictly so called, derives its name from Tonti, an Italian, to whom its in- vention is accredited. It is based upon survivorship) among a num- ber who share an annuity, or ratlier participate in an apportionment Lodge of Fraternal Union of Amer- ica) v. Orear, 14J: Mo. 157, 45 Si W. 1081. (In this ease the time for payment was arbitrarily fixed with reference to the age of assured. The amount being ])ayable at the end of a fixed period was, therefore, held to be an endowment insurance.) Endowment policy is one j^ayable at a certain time at all events, or sooner if tlie party sliould die sooner ; the premiums all to be paid within a certain limited time; amount payable to the person whose life is insured or to liis assigns on a day certain, or it he sliould die before that time, then ■ to be payable to a person or persons designated. Carr v. Hamilton, 129 U. S. 252, 253, 32 L. ed. 669, 9 Sup. Ct. 295. Endowment insurance has been de- fined as "that quasi insurance busi- ness which really partakes more of the nature of investment or savings bank business." Fawcett v. Supremo Sitting of tlie Order of tlie Iron Hall, (U Conn. 170, 205, 24 L.R.A. 815. 29 Atl. 614, dissenting opinion of Ham- mersley, J. IVhen polici/ not endoicment in- mtrance. In Haydel v. iMntual Re- serve Fund Life Assoc. 104 Fed. 718, 44 C. C. A. 169. 30 Ins. Law. Jour. 289, 291-293, certain "five-year Combination option policies" were claimed to be endowment policies be- cause "the company undertook to pay or make return of a specified sum of money at the termination of certain designated periods during the lifetime of the assured," but they were de- clared not endowment policies in that they lacked some of the essential fea- tures of sucli contracts, and that tliey were not so far variant from ordinarv policies issued on the co-operative or assessment plan as to warrant a rul- ing that a company, rest'"cted to busi- ness on the assessment plan, exceeded its power in issuing them. When policy not an endowment or life jjolicy, but an industrial or acci- dent insurance policy, see Pride v. Continental Casualtv Co. 69 Wash. 428, 125 Pac. 787, under Rem. & Bal. Code, sees. 6155, 6159. ^^ As to reserve dividend plan of W. P. Stewart, see Fuller v. jNIetro- politan Life Ins. Co. 37 Fed. 163. Participatiny tontine endowment policy upon "reserve dividend plan" — form of, see Fuller v. Metropolitan Life Ins. Co. 70 Conn. 647, 056-659, 41 Atl. 4. Most of these policies were foi' a term oE ten vears. 14 Miller V. Campbell, 140 N. Y. 457, 462, 463, 35 N. E. 651. In this case the policy ditfered from an ordi- nary life insurance, a certain period being fixed within which the obli- gation of the insurer accrued to the wife, children, or pei'sonal representa- tives, and they had no rights to re- ceive payment under it beyond that ]ieriod. It combined an insurance of the life and an investment of the moneys i:>aid, in that it provided for a state of widowhood or orphanage in case of the death of the person whose life was insured pending a specified period, and it also secured to the person effecting the insurance upon his life for a certain period for the benefit of liis family, a presumably ]irofi table return of the original in- vestment of his moneys with the in- surer, and might thus be regarded as a provision for an advanced period of liis life. 100 I TERMS AND DEFINITIONS § 11 of the profits upon the lapse of certain intervals, and the sum rep- resenting the share of one deceased is enjoyed by those who survive to this extent, that the profits to be apportioned among the survivors must, theoretically at least, increase as the deaths increase, until final division made among the survivors, or the last survivor may take the whole according as the terms of the agreement may pro- vide.^* A tontine contract of insurance is more than a policy of life insurance. In addition it is an agreeenmt on the part of the insurer to hold all the premiums collected on the policies forming ^5 See Pierce v. Equitable Life unity or a loan raised on life annui- Assur. See. 14.j Ma.ss. 56, 1 Am. St. ties with benefit of survivorship:" Rep. 433, 12 N. E. 858, per Devens, 2 Rapalje & Lawrence's Law Diet. J.; Uhlman v. New York Life Ins. 1280, title "Tonline." See definition Co. 109 N. Y. 421, 4 Am. St. Rep. in Bouvier's Law Diet. "Insurance," 482, 17 N. E. 363; Jacks' Introduc- quoted in Romer v. Equitable Life tion to History of Life Ins. (ed. Assur. Co. 102 111. App. 621. See, al- 1912) pp. 211 et seq. "A species of so, 2 Abbott's Law Diet. 572; Whart- life annuity propounded by Lorenzo on's Law Lexicon, 826, title "Ton- Tonti, about 16.')0, as a mode by which tine." governments might obtain loans. The The system of Tontines was "in- general idea is that property is vented by Lorenzo Tonti or Tontine, loaned, owned, or invested for the a Neapolitan, in 1653. The plan was benefit of a certain number of per- this: A certain number of persons sons who at first receive its income, clubbed together a specified sum (with- the share of a deceased member in- out reference to age or sex) annual- creasing the sum divisible among the ly, and at the expiration of each year .'survivors; the last survivor taking the interest of this fund was divided the whole income or principal, as the among the subscribers who were liv- case may be:" Anderson's Diet, of ing; and so on from year to year, un- Law 1039, title "Tontine." "A spe- til the last survivor received the whole cies of association or partnership interest. Tliis novel scheme had all i'ormed among persons who arc in re- the appearance of a profitable invcst- ceipt of perpetual or life annuities, nient, until an inquiry was instituted with tlie agreement that the shares or ^f, ascei-tain whal liecame of the pvin- annuities of those who die sluill ac- ^^.-j^.^j g^^j^-, subscribed, as the interest crue to the survivors :" B/rtc/.:'.s Law of the fund only was awarded. This Diet. 1178, title "Tontine." "Besides ^^,.^^ ^^^^^ ^^ .^^ invention. ... A the provision for payment by the m- jj^^^-^^^^ number of vears was fixed sured on the ha.ppening of the event ^,^^. ^j^^ eontmuation of the tontine, on which the liability of the insurer ^^^^^^ ^,^^ ^^_^^^^^^ originally subscribed becomes consummated, P^'ovision is ^^^^_^;^,^^.^. ^,^^^ ,^^^^,^^ .sometimes made tor appropriation ^^ ^^ t i/-on ,\ ^ 4 ■ f for the benefit of the insmvd of divi- ■ • • • . I^\l<>8^' "•^' 1'^^^ ■^^^^•^■'^» "^ dend. or i.rofits from ihe business •' tontine m I ranee was a widow, conducted 'bv the insurer. This is ^vlio at the period of her death, at commonlv done in what is known as Hie age of ninety-six, enjoyed an in- a 'tontine policy,' wherein iirovi«ion come of 73,500 livres (£3,062, 10s.) is made for the distribution of such for her original subscription of 300 profits at the expiration of a sjiecified livres, of the value of only £12, 10s." period:" Cooke on Life Ins. (ed. Burt's Life Assur. Historical & Sta- 1891) 200, 201, sec. 110. "A life an- tistical, etc. p. 45. 101 § 11 JOYCE ON INSURANCE that class for I lie specified period, which is called the tontine period or period of distribution, and after paying death losses, expenses, and other losses out of the fund so accumulated, to divide the remain- der among those who are alive at the end of the tontine period, and who have maintained their policies in force. ^® In this, as in other kinds of insurances, several plans have been devised which dilfer in a greater or less degree from ''Tontine" insurance strictly so called." ^^ Equitable Life Assur. Soo. v. dend period tlie policy was an ordi- Winn, 137 Kv. 641, 048, 28 L.R.A. iiarv life policy. Columbia Bank v. (N.S.) 558 and note, 126 So. 153. Equitable Life Assur. Soc. 80 N. Y. ^""''Tontine savings fund policy Supp. 428, 79 App. Div. 601 (ca.'^e plan." Provisions were in substance of action in aid of an attacbment) as follows: Insurance was during rev'g 61 App. Div. 594, 70 N. Y. natural life. If the person whose Su])p. 767. See also as to Tontine life was insured should die before a Savings Fund plan with term of fif- eertain specified time, said amount teen years; Equitable Life Assurance was to be paid to his surviving chil- Soc. v. Spellnian, 22 Ky. L. Rep. 18)), dren share and share alike; for non- 56 S. \V. 710, 29 Ins. L. J. 651. ])ayment of premium, policy was to question as to right to paid up poli- lapse. Prior to the completion of the cy and waiver. Gadd v. Equitable tontine dividend period as above Life Assurance Soc. (U. S. C. C.) 97 stated, no benetit could be derived Fed. 834. from the policy by either the assured "Tontine savings fund plan" Con- or his beneficiaries except in case of sidered with reference to right to sur- as.sured's death. Said policy had no render value or paid-up insurance, sui-render value, either in cash or in and forfeiture for nonpayment of a paid-up policy. No dividends premiums see Banner v. Equitable were payable upon the policy except Life Assurance >Soc. 141 N. Y. Supp. assured survived the completion of 442, 156 App. Div. 502. the tnntine dividend period, and un- Fifteen-gear iontine investment less tlie policy was then in force.. All plan. If insured survived said peri- surplus or profits derived from such od, the proceeds or value were never- policies, on said plan, as .should cease Iheless to be paid; no dividend was to be in force before completion of to be allowed or i)aid on the policy their respective tontine dividend peri- unle.^s insured survived until eorn- ods. were to be apportioned equitably pletion of the tontine dividend peri- among such i^olicies as should com- od, and unless I lie policy was then in ])lete their tontine dividend periods, force; suri^lus or profits derived Certain options were to accrue to from sucli ])olicies on said plan as the legal Imldcr or liolders of the should not be in force at the eomple- policy ujton assured's deatli, or upon tion of their respective tontine divi- the termination of the tontine divi- dend periods were to be apportioned (lend period, such as wiilidrawal in eijuitaljly among such policies of the ca.sh of policy's entire share of the same dale as should complete their assets; receiving a paid-up ]iolicy; tontine dividend periods; premiums continuing the insurance and pur- were paid semi-annually in advance, chasing an annuity; and withdrawal IT assured survived the tontine peri- in cash of accumulated surplus and od, and the policy was then in force, continuing policy in force on ordi- the face of tlie policy was to be paid nary plan. It would seem that prior and also a share of all accrued di- to the completion of the tontine divi- vidends on the policy. New York 102 TEILMS AND DKFlXITiONS § 11 An insurance company which by a policy agrees that the surplus or profits derived from policies on the tontine savings fund assurance plan, that shall cea.se to be in force before the completion of their tontine dividend periods, shall be apportioned equitably among such policies as shall complete their tontine dividend periods, does not hold such surplus or profits as a trust. The amount to be appor- tioned is not a dividend in the limited sense in which that word is used in its application of dividends to stockholders. The assured is not a member of the corporation, but its creditor who has con- tracted with it. At tbe end of the fixed period, having complied with the contract on his own behalf, and made the payments re- quired, he is entitled to have apportioned to him his share of a cer- tain fund to be computed.. This share, or its equivalent in value, is the assured's own property.^* In Bogardus v. New York Life In- Life Ins. Co. V. Miller, 22 Ky. L. don v. Northwestern Mutual Life Rep. 230, 56 S. W. 975, 29 Ins.L. J. Ins. Co. 199 N. Y. 188, 92 N. E. 440. 1033. Where tontine insurance void as ''Free tontine policy" maturing' in gamblirifj contract. Fuller v. Metro- ten years. If insured then living politan Life Ins. Co. 70 Conn. 647, and the policy in force he was enti- 41 Atl. 4. tied to certain options, among them Tontine debenture certificates. being the right to withdraw in cash Contracts of investment security de- such policy's entire share of the as- bentures or certificates, when contra- sets; tliat is, of the accumulated re- ry to public policy and unlawful, serve and in addition thereto the sur- State v.' Interstate Savings Inv. Co. plus apportioned by the society to 64 Ohio St. 283, 52 L.R.A. 530, 60 such policy. Donoho v. Equitable N. E. 220. life Assurance Soc. 22 Tex. Civ. App. ^' Pierce v. Equitable Life Assur. 192, 54 S. W. 645, a case whether Soc. 145 Mass. 56, 61, 62, 1 Am. St. representations of agent as to sur- Rep. 433, 12 N. E. 858, per Devens, J. plus were false and fraudulent or a Right to accounting in equity of matter of estimate and opinion only, holder of matured tontine dividend Held the latter. l^olicy, see Peters v. Equitable Life "Tontine policy and tontine install- Assur. Soc. 200 ;\Iass. 579, 86 N. E. ment policy;" meaning of terms may 885 (under Rev. Laws Mass. c. 159, be shown by oral evidence. Thomp- .sec. 3, d. 5) See also Ev'erson v. son V. Thorne, 83 Mo. Ai)p. 241. Life Assur. Soc. 71 Fed. 570, 18 C. Semi-tontine policy with option to C. A. 251, aff'g 68 Fed. 258, semi- purchase annuity, with other options tontine policy {quoting from F^hl- if policyholder alive and policy in man v. New Yoi'k Life Ins. Co. 109 force at' end of tontine period. See N. Y. 421, 432, 17 N. E. 363, and cit- Timlin v. Equitable Life Assurance ed in Grieb v. Equitable Life Assur. Soc. 14] Wis. 276, 124 N. W. 253, Soc. [ U. S. C. C] 189 Fed. 498, 40 Ins. L. J. 295 (case of effect of 502, which is aff'd [U. S. C. C. A.] on writing attached to policy, and nat- opinion below in 194 Fed. 1021) ; ure of relation of parties to con- Ilunton v. E(|uitable Life Assur. Soc. tract). (U. S. C. C.) 45 Fed. ()61 ; Equitable Fifteen-year semi-tontine policy Life Assurance Soc. v. Winn, 137 Ky. with' certain options at terniiiialion (i41, 28 L.R.A. ( X.S.) 558. 126 S. W. of accumulative i^eriod. See Lang- 15.3; Hackett v. Equitable Life As- 103 § n JOYCE ON INSURANCE surance Company ^^ tlie policy was on the tontine or '^ten-year divi- dend system;"" annual i)iemiums were to be paid each year for a ten years' policy, to be voided in case of default, dividends to be allowed assured only in case he survived the ten-year dividend period, the policy being then in force. Aside from the provision for payment of amount at death, it was stipulated, in case of surviving the period specified and the policy remained in force, that there should be a payment in cash or annuity bonds of a proportionate share of divi- dends, accretions, etc.. from a fund to be created by a certain class of policyholders, consisting of those effecting insurance on the same plan in the same year, and that the surplus and profits from certain funds of that class should be equitably apportioned among survivors of that class holding jDolicies, and it was held that the policy did not require a separate investment of the funds of that class to which the policy belonged, and that the consent of assured to placing of divi- dends in a reserve fund did not extend its obligations in this respect. The court said: ''No ex])ress obligations are assumed by the defend- ant, either in the policy or by the application, with reference to the management or investment of the funds in question, and the tontine plan is referred to as a known and understood system of insurance pursued by all life companies of similar character to determine in a certain contingency the extent of the company's liability to a special class of its policyholders. It contem])lates the union of the interests of a large number of persons, and the administration of a fund for their mutual benefit, and from its very nature is incapal)le of being molded and managed to meet the special requirements of particular individuals. Upon the accession of every person to this class, he be- Ijecomes interested in the contributions of every other member, and neither of them can afterward withdraw his contribution without in- juiy to the rights of all others interested in the fund. . . . We therefore think that the use of these moneys in connection with its other funds, and their investment and management according to the mode Avhich in the judgment of the defendant was best adapted to promote the interests of all of its policyholders, was entirely legiti- sur. Soe. 63 N. Y. Sv^pp. 1092, 50 contention that remedy in equity un- App. Div. 266, atf'g 63 N. Y. Supp. tenable. Hac-kett v. E(iuitable Life 847, 30 Misc. 523. Assur. Soe. 63 N. Y. Supp. 847, 30 Tontine polici/ — Apportionment hrj Misc. 523, aff'd 63 N. Y. Supp. 1092, societif not reviewaJiIe bi/ courts in 50 App. Div. 260, case of eom|ilaint action to recover distributive share at law by policyholder on "semi-ton- without showing fraud or irregulari- tine' plan to reach reserve and sur- tv in procedure. Oadd v. Equitable plus, — demurrer. Life Assurance Soc. (U. S. C. C.) ^^ 101 N. Y. 328, 4 N. E. 522, per 97 Fed. 834, 30 Tns. L. J. 281. Ruger, C. J. When accounting unnece^san/ ami . 104 TERMS AND DEFINITIONS § 12 mate, and in accordance with the true meaning of the contract. The tontine plan nndoul)ledly contemplated such action on the part of the in>^urer.s a.« would enaljle them at the expiration of the ten-year dividend period to determine the aggregate of such dividends, accre- tions, and interest, and to divide the same among the survivors of the class to which they belonged according to their respective rights therein ; but it seems to us that it does not involve the necessity of keeping separate from its other funds either the premiums paid by such class or their profits or accuumlations, or the duty of separately handling, investing, or accunmlating such funds. "" 2° § 12. Definition of guaranty insurance. — (uiaranty insurance is a contract whereby one for a. consideration agrees to indemnify another against loss arising from the want of integrity, fidelity, or insolvency of employees and persons holding positions of trust, against insolvency of debtors, losses in trade. I'osses from non]tay- ment of notes and other evidences of indel)tedncss, or against other breaches of contract. It includes other forms of insurance which are specifically cla.s.urancc Wond may guarantee or secure the faith- ful performance of a private or public building contract; ^ or guar- antee payment of all claims for labor or material on a construction contract;^ and there may be an insurance of securities, or a con- tract to insure the payment of a sum of money deposited with a bank if the bank should default in paying the sameJ I'olicies of life insurance and .^hip policies are contracts for secur- ing against losses to be incurred under circumstances entirely dif- ferent from the loss contemplated under guaranty policies.* § 13. Definition of real estate and title insurance. — Title guar- anty insurance is a contract whereby one agrees for a consideration * People V. Mercantile Credit & v. United States Credit-System Co. Guarantee Co. 166 N. Y. 416, 419, 60 64 N. J. L. 34, 44 Atl. 96(). N. E. 24, rev'^^ .55 App. Div. 594, ^ A. R. Shorthiil Co. v. x?:Ctna In- meaning' of 'Unsolvenci//' see Strouse demnity Co. — Iowa, — , 124 N. W. V. American Credit-In'denuiitv Co. 91 613; Hornel & Co. v. American Bond- Md. 244, 46 Atl. 328, 1063," 29 Jns. ins' Co. 112 Minn. 288, 33 L.K.A. L. J. 980. See also Steinwender v. (N.S.) 513, 128 N. W. 12, 40 Ins. L. Philadelphia Casualtv ('o. 141 App. J. 137; First National Bank v. School Div. 432, 126 N. Y." Supp. 271, 40 District, 77 Neb. 570, 110 N. W. 349 Ins. L. J. 128. (school district) ; Illinois Surety Co. I'oliditij of insurance against in- v. Ilildebrand, 126 N. Y. Supn. 651 solveiicji or credit inaarance. In (municipal). Minnesota the business of insuring' ^ Knennan v. United States Fideli- against lo.sses resulting' from the in- ly (luaranty Co. 159 Mich. 122, 123 solvency of those to whom goods are N. ^\ . 799. sold oil credit was authorized 1)V ''Dane v. Mortgage Ins. Corp. Laws 1881, c. 123 (G. S. 1894, sees. Law Rep. [1894] 1 Q. B. 54. Surety 3331-3337, inclusive) entitled "An companies have legal right to insure Act to Authorize and Regulate with- payment of bank deposits. Reyioi-t in this State the Business of Insur- of Attorney . General oi' New \oik ance Other than Life, Fire, and Mar- (1893) p. 266. ine," such enactment l)eing broad And a bond may guarantee- that a enough to authorize any kind of in- person against whom a judgment has sui-ance that is not against good mor- l)eeii rendered will perform the judg- als or piildic policy. Ilayne v. Met- ment of the court. United States ropolifan Trust Co. 67 'Minn. 245. Fidelity & Guaranty Co. v. Barrett, 59 N. W. 916. See also Genl. Stat. 140 Ky. 697, 131 S. W. /96, what Minn. 1894, sees. 333 et se(|. Credit allegations suHicient to show breach insui'ance unlawful in Massachusetts, of bond. Claflin y. United States credit Svs- « 'Powle v. National Guardian Ins. tern Co. 165 Mass. 501, 52 Am. St. Co. 7 Jur. (N. S.) 618, 623. Rep. 528, 43 N. E. 293; Rosenbaum 107 § 13 JOYCE ON INSURANCE to guarantee or protect another's title to real estate,^ or which in- sures against all loss or damage, not in excess of a specified sum, which assured may sustain by reason of existing defects or unmar- ketableness of title to a described estate, mortgage, or interest, or because of liens and encumbrances changing the same, as of the date of Ihe policy, with certain exceptions; or by reason of defects in the title of a mortgagor in the mortgaged estate, or mortgage interest.^" 9 See Hogan, In re, 8 N. Dak. 301, v. California Title Ins. Co. 153 Cal. 73 A. S. 7.39, 45 L.R.A. 166, 78 N. 718, 96 Pae. 500 (from all loss or W. 1051, 28 Ins. L. J. 520. Mr. Rich- (Uunage not in excess of a certain ards says: "The Title Guarantee'' sum which assured shall sustain by & Trust Co. of New York by its reason of defects of title of assured Ijoliey obligates the insurer in sub- to the described estate or interest, or stance to do three thing's for the pro- by reason of liens or encumbrances tection of the insured: (1) To de- affecting the same on the date of the fend suits against the title at the i>olicy with certain express excep- expense of the insurer; (2) To pay lions); Minnesota. — Place v. St. adverse judgments therein rendered; Paul Title Ins. & Trust Co. 67 Minn. (3) and, if 'the in.-=ured contracts to 126, 64 Am. St. Rep. 404, 69 N. W. sell or if he negotiates a loan, and 706 (to indemnify not in excess of the title is refused, to test its validity a certain amount against all loss or in court at the exj^ense of the insurer, damage sustained by rea'Jon of de- and, if defeated, either to pay dam- iects in the title of mortgagors in ages or else to take the property at the mortgaged estate with certain the contract price where the insured specified exceptions) ; New Yorlc— has contracted to sell it or to make Trenton Potteries Co. v. Title Guar- the loan where he has negotiated a antee & Trust Co. 176 N. Y. 65, 68 loan." Richards on Ins. (3rd ed.) N. E. 132 (against all loss or dam- sec. 467, p. 653; Id. (ed. 1892) sec. age not in excess of a stipulated 10, ]). 14. amount which insured may sustain ^° United States. — Equitable Trust l)y reason of any defect in the title of Co. V. ^tna Indemnity Co. (U. S. the described premises, or by reason C. C.) 168 Fed. 433 (to insure ti- of nnnmrketability of the title of in- tles of mortgagees of a builder and sured, or by reason of liens and en- nwner and of purchasers of build- cnmbrances charging the same as of ings to be erected on the builder's tlie date of the policy) ; Pennsi/Jra- land, to protect tliem from the own- 'nia. — Foehrenbach v. German-Ameri- or's defaults in building operations, can Title & Trust Co. 217 Pa. 331, and fi'om liens, the indemnity com- 118 Am. St. Rep. 9, 12 L.R.A.(N.S.) pany being secured by bond executed 465, 66 Atl. 561 (to indenniity and by the owner to a trust company) ; insure against all loss or damage not Banes v. New Jersey Title Guaran- exceeding a specified sum which the tee & Trust Co. 142 Fed. 957, 74 C. insured shall sustain by reason of C. A. 127 (a policy or contract of the defects of the title of insured to guarantee against loss or damage the estate mortgage and interest de- wliich assured may sustain on account scribed, or because of liens or incum- of existing defect.s of title to a mort- brances charging the .same at the gage interest, or because of liens and date of the policy) : Wheeler v. Eqni- encumbrances alfecting his interest at table Trust Co. 206 Pa. 428, 55 Atl. the date of guarantee and against all 1065 (to indemnify and insure loss or damage not exceeding a cer- against all loss or damage not exceed- lain amount) ; California. — Bothin ing a specified sura arising from de- 108 TERMS AND DEFINITIONS § 13 The sole object of title insurance is to cover possibilities of loss through defects that- may cloud or invalidate titles. It is an as- sumption for a premium, of risk based on a careful examination of the muniments of title and the exercise of jiKl2,ment by skilled con- veyancers. It means the opinion of the company issuing it, as to the validity of the title, and an agreement to indemnify or make the title good in case loss should result in consequence thereof to as- sured. ^^ The risks of title insurance end where those of other kinds begin. The purpose or intent of title insurance is to protect or save the insured harmless from loss through defects, liens, or encumbran- ces, ett'., that may burden his title when he takes it, and it is not designed as a protocfiou to him against matters that may arise dur- ing a stated period after the policy is issued. As a general rule, therefore, it would follow that when insured gets a good title, the covenant of the insurer has been fultilled and there exists no lia- bility. ^2 Such a i)olicy guarantees only the record title where it excepts the tenure of present occupantsS and liens and encumbrances, judi- cial proceedings, etc., not shown by any public record. ^^ Under the New York statute, title guaranty corporation.s iriay be formed for the purpose (1) of examining title to real property and chattels real, to procure and furnish information in relation thereto, to make and guarantee the correctness of searches for all instruments, liens or charges affecting the same, guarantee or insure the payment of l)onds and mortgages, invest in, purchase, and sell, with such guar- antee or with guarantee only against loss by reason of defective title or encumbrances, such bonds and mortgages as are lawful invest- feets or uiimarketableness of title, of liens, a l)uil(ling being then in snbject insured was a mortgage on iiroeess of erection on the mortgaged ground rents issuing out of certain premises it being so set fortli in the h)ts and buildings said mortgage was policy). taken as collateral security also ^^ Foehrenbach v. Gernian-Ameri- against loss from failure to com- can Titk & Trust Co. 217 Pa, 331, plete certain buildings according to 336, 33/, 118 Am. St. Rep. OKi, 12 plans and specitications mentioned); L.R.A.(N.S,) 4G5, GO Atl. 561, per "Wheeler v. Real Estate Title Ins. & Potter, J., Id. 336, 337. Trust Co. 160 Pa. 408, 28 Atl. 849 12 Trenton Potteries Co. v. Titl_c (construction of policy upon a mort- Guarantee & Trust Co. 176 N. Y. 65, gage. The covenant in it was to in- 72, 68 N. E. 132, per Werner. J.; deranify the holder again.st "all loss Foehrenbach v. German-Anierican . . .' by reason ot defects or un- Title & Trust Co. 217 Pa. 331, 336, marketableness of the title to the es- :!37, 118 Am. St. Rep. 016, 12 L.R.A. tate or interest insured ... or (N.S.) 465, 66 Atl, 561, per Potter, because of liens or encumbrances J. charging the same at tlie date of this ^^ Bothin v, California Title Ins, & policv," with one cla,'^s excepted: un- Trust Co. 153 Cal. 718, 96 Pac. 500. marketability by reason of possibility 109 § 13a JOYCE OX INSURANCE nieiits for insurance companies under tlie act, and guarantee and insure the owners of real property and chattels real, and others in- terested therein, against the loss by reason of defective titles thereto and other encunibi-ance thereon. 8uch corporation to be known as a title "rju-firantee''^^'' corpora' Ion. (la) To guarantee the validity and legality of bonds or other evidences of indebtedness issued by any state or by any city, county, town, village, school district, mun- icipality, or other civil division of any state, or by any private or public corporation ; to act as registrar or transfer agent, but not iis- cal, of any such corporation, and to transfer and countersign its certificates of stock, bonds, or other evidences of indebtedne.ss. Such corporation to be known as a securities gmiranty corporation. (2) To guarantee and indemnify merchants, trader.s, and those engaged in business and giving credit, from loss and damage by reason of giving and extending credit to their customers and those dealing with them. Such corporation to be known a.s a credit guaranti/ cor- poration.^* As to the nature of this contract it is said in Minnesota Title Insurance and Trust Company v. Drexel.^^ ^\^^^^ ^'tj^g insurer is not a surety.^^ In that case the defendant company for an ade- quate consideration agreed to 'indemnify, keep harmless, and in- sure, Drexel. the mortgagee, 'from all loss or damage not exceeding fifty-five thousand doUai-s.' the amount of the mortgage debt, which he or his assigns might sustain by reason of defects in the title to the mortgaged premises, or by rea.«on of liens or encumbrances thereon existing at the date of the policy. The contract is plain and explicit on this point. In a word, it is a guaranty that the mort- gagee should not suft'er any loss or damage by reason of defects in the title to the property, or liens or encumbrances thereon existing at the date of the policy, under this guaranty, if the mortgaged property with a clear title and free from encumbrances was worth the amount of the mortgage debt, the mortgagee could confidently rely upon the sufficiency of his security."' § 13a. Definition of rent insurance; rent guaranty insurance. — Rent insurance is that class of underwriting which oftVrs indemnity or a guarantee to the les.sor, against loss of rents resulting from fire rendering the property untenantable; or against loss to a tenant, where his lease does not exempt him therefrom, by reason of an obligation to pay rent while the premises, as the result of fire, re- 12* So in oripnal. ^^ Laws applicable to sureties do " Law.s N. Y. 1911, c. 525, p. 1198, not apply to guaranty and .'lurety amd'o; T^ws 1909. e. 33, see. 170, as eorapanies to indemnify against am'd by Laws 1909. c. 20'2. See 2 los.ses by bad debts: Tebbets v. Birdseve's Cum. & Gilb. Consol. Laws :\[ercantile Credit Guarantee Co. 7.3 N. Y. Annot. pp. 2635 et seq.; 7 Id. Fed. 95. 19 C. C. A. 281, 38 U. S. (Supp. 1910-13) p. 1386. App. 431. This question, however, is 15 70 Fed. 194, 198, 17 C. C. A. 56, considered elsewhere herein. iKT Caldwell. J. 110 TERMS AND DEFINITIONS 13b main untenantable ; " or to vendors, against loss of rentals in case the vendee fails to make certain improvements on realty and com- plete certain buildings within a specified time." Insurance against loss of rentals is in the nature of or analogous to insurance on prof- its/^ and also to a valued policy.^" § 13b. Definition of strike insurance. — Strike insurance may be defined as a contract whereby-, for a consideration, the insurer agrees to indemnify and guarantee firms^ corporations or other persons carrying on manufacturing, against damage or loss, directly or in- directly, resulting from any interference with, or suspension or in- terruption of l)usincss or the use and operation, wholly or partly of a manufacturing establishment by reason of employees strike.^ "See Whitney P:state Co. v. Northern Assurance Co. 155 Cal. 521, 523, 23 L.R.A.(N.S.) 123, and note, 101 Pac. 511. Examine also: Amusement Syndicate Co. v. Prus- sian Nat. Ins.' Co. (1911) 85 Kan. 97, 116 Pac. 620, 40 Ins. L. J. 1882 (case of insurance measuring lia- bility by loss of rents while building- being rebuilt or repaired, unless in- sured elected not to rebuild or repair, when time necessary therefor de- termined amount of loss; also ques- tion involved as to effect of valued policy law and insurance on rents being insurance on ''real property") ; Palatine Ins. Co. v. O'Brien (1908) 109 Md. 100, 16 L.R.A.(N.S.) 1055 and note, 71 Atl. 775, 38 Ins. L. J. 482, s. c. (1907) 107 Md. 341, 16 L.R.A.(N.S.) 1055, 68 Atl. 484, 36 Ins. L. J. 616 (case of insurance against loss of rent by fire; loss to be computed from date of flre and to cease upon premises becoming tenantable, with agreement to re- build or repair within such a sliort time as the circumstances permitted, but rents were not re-established owine to delay by civil authority) ; Helkr v. Roval Ins. Co. (1896) 177 Pa. 262, 34 L.R.A. 600, 35 Atl. 726 (insurance by tenant for loss by reason of payment of rent while premises untenantable. Same case, same insurance (1892) 151 Pa. 101, 25 Atl. 83; (1890) 133 Pa. 152, 7 L.R.A. 411, 19 Atl. 349; Carey v. London Provincial Fire Ins. Co. (1884) 33 Hun (40 N. Y. Supr. Ct.) 315 (insurance upon lease-hold inter- est; action for profits on subleases; loss by fire) ; Cushman v. North- western Ins. Co. (1852) M Me. 487 (insurance by lessee of interest ac- quired by lease). Insurance against loss of rents authorized: Iowa acts 1911, p. 12, c. 18, sec. 4, amd'g sec. 1709, par. 1, of Supp. 1907. This contract classed as rent guar- antee insurance. See 5 Universal Cyc. ''Guarantee companies," p. 327, Article by Clarence H. Kelsey. See also Francis' Annals Life Assur. (1853) p. 288. ^^ Young V. American Bonding Co. 228 Pa. 373, 77 Atl. 623; German- American Title & Trust Co. v. Citi- zens Trust & Suretv Co. (1899) 190 Pa. 247, 42 Atl. 682 (a ease of insur- ance against actual loss which miglit result to one as purchaser of gi-ound rents upon unimproved land, by reason of noncompleticm of buildings to be erected. No policy was issued, l)ut settlement certificate was treated by parties as complete agreement). ■ 19 See note 38 Ins. L. J, 491, and sections on profits under chapters herein covering Description of Prop- ertv and Risks and Losses. 20 Whitnev Estate Co. v. Northern Assurance Co. 155 Cal. 521, 23 L.R.A. (N.S.) 123, 101 Pac. 511, under definition in Cal. Civ. Code, see. 2596. 1 Buffalo Forge Co. v. Mutual Se- curitv Co. 83 Conn. 393, 76 Atl. 995, 39 Ins. L. J. 1347. Ill TITLE III. CONTRACT AND POLICY. CHAPTER 11. NATURE OF THE CONTRACT. § 16. Risk is an esseiitial element. § 17. Division and distribution of loss are essential. § 18. Insurance is an aleatory contract. § 19. Insurance is a voluntary contract. g IHa. Standaid tire policy a voluntary contract. § 20. Insurance is an executory contract. § 21. The contract is synalla2:matic. § 22. Insurance is a conditional contract. § 23. Insin-ance is a personal contract. § 24. Insurance other than that of life and' accident is a contract of in- demnity. § 24a. Standard Are policy is contract of indemnity: collateral contracts: mortgasres. § 25. Indemnity — stipulation as to value in policy. § 26. Life insurance not a contract of indemnity. § 27. Accident insurance is not a contract of indemnity in all cases. § 27a. That emploj-ers' liability insurance is contract of indemnity. § 27b. Same subject: whether contract one of indemnity or liability or both. § 27c. Injui-y to property or to employees and others: to what extent con- tract i.s one of indemnity. § 27d. Englisli w(n'kmen's compensation act grants complete indemnity. § 27e. Insurance of carriers against losses from injuries to passengers is contract of indemnity. § 27f. Insurance against burglary and loss or damage to property are con- tracts of indemnity. § 27g. Insurance against accidents, death, and theft of animals is contract of indenmity. § 27h. Fidelity guaranty insurance is contract of indemnity. § 27i. Title guaranty insurance is contract of indemnity. 112 i NATURE OF THE CONTRACT § 16 § 27j. Rent or rent guaranty insurance is contract of indemnity. § 27k. Insurance on "use and occupancy" of an elevator: when not a con- tract of indemnity. § 271. Credit guaranty insurance is contract of indemnity. § 27m. Whether contract to defend physician against suits for malpractice is one of insurance and indemnity. § 27n. Employees' benetit and reliftf association : contract not one of in- demnity. § 28. Reinsurance is a contract of indemnity. § 29. Other incidents of the doctrine of indemnity. § 16. Risk is an essential element. — There must be a rislc, since that is an essential element. It is of the very essence of insurance and forms the principal foundation of the contract. In other words, the insurer takes upon himself the peril which the property or in- terest of others is liable to encounter. The very life of the contract involves the presumption that the thing is or will be exposed to some danger. But the risk should be of a real loss which neither the insurer nor insured has the power to avert or hasten.^ If the term ''risk" is used in a contract of insurance or reinsurance, the court must in case of doubt determine what the parties intended, having in view the whole contract, and the sense in which the word is used and the precise contract relations sustained by the parties to each other is important. The word, as ordinarily used, describes the liabilit}' a^ssumed as specified on the face of the policy.^ This risk or cause of loss against which it is intended to indemnify the assured* ma}', as a general rule, be any uncertain event which may ^ See Emerigon on Ins. (Mere- ' Continentnl Tns. Co. v. ^tna Ins. dith's ed. 1850) c. i. pp. 4, 5; Hop- Co. 138 N. Y. l(i, 20, 33 N. E. 724, kins' Marine Ins. (ed. 1867) 53, 55; i)er O'Brien, J., reversing, as to the- 13 Ency. Britannica, 101; Nye v. construction of the word "risk" un- Grand Lodge A. O. U. W. 9 Ind. der the facts of the case, 17 N. Y. App. 131, 140, 141, 36 N. E. 429; Supp. 106. See also Pitcher v. Hen- l)er Latz, J. Hart v. Delaware Ins. nessey, 48 N. Y. 415, where "risks of Co. 2 Wash. (U. S. C. C.) 346, 350, navigation" were hold broader than I'ed. Cas. No. 0150; Stern v. Rosen- "perils of navigation." But see defi- Uial, 128 N. Y. Sup)). 711, 713, 71 nition of the word "peril" in Mar- Misc. 422; Jones & Abbott v. Insui-- sliall on Ins. (ed. 1810) 2, note a, ance Co. of North America, 90 Tenn. wliich is: "In insurance the word ()04, 25 Am. St. Rep. 706, 18 S. W. 'peril' generally signifies the liappen- 260. ing of the event or misfortune of As to meaning of "sum at risk" in which danger was apprehended." marine policy, see Standard IMarine "Perils of the Seas," see §§ 2797- 1ns. Co. V, Nome Beacli Lio'literage 27(10 lierein. & Transp. Co. 133 Fed. 636, 67 C. C. *1 Phillips on Ins. (3d ed.) sec. A. 602, 1 L.R.A.(N.S.) 1095. 905. Joyce Ins. Vol. I. — S. 113 § 17 JOYCE ON INSURANCE in anywise be of di.'^advantagc to the party insured.* provided al- ways that said party has an insurable interest which is exposed thereto, or which may suffer damage or loss therefrom, and pro- vided further that the risk is a legal one not in contravention of the provisions or obvious policy of the law, nor an infringement upon the rights of persons not parties to the contract, and tiuit it doe,« not arise from the fraud of the insured.^ These points will, however, be fully considered under insurable interest, void and illegal insur- ances, wager policies, description of subject matter and property, risk and loss. etc. § 17. Division and distribution of loss are essential. — Another most important principle miderlying the contract of insurance is that which minimizes the loss to the individual by a division and distribution of liability among a large number of persons who are subjected to like risks, and it folloAvs as a neces.e adven- tured, at the seas as also by land, to the end that merchants might enlarge and augment their trafficke and commerce, and not ad- venture all in Bottome to their loss and overthrow, but that the same might be repaired and answered for by many." '^ Substantially the same language was used in 1601, in the preamble to the st (4th ed.) 598, ."309. .^ni, per Lawrence, J. ' Willes, 641. 64-5. «See 1 Phillip.s on Ins. (3d ed.) i° 93 U. S. 24, 31, 32, 23 L. ed 905 et seq. ' 789. 'Maylncs' Lex Mercatoria (ed. 1C22) 146. 114 NATURE OF THE CONTRACT § 18 ."Spreading; their risks over a large niiinljer of oases the companies calculate on this average with reasonable certainly and safety," And tlie court also says: "The insured parties are associates in a great scheme. This associated relation exists whether the company he a mutual one or not. Each is interested in the engagements of all, f)ut of (he coexistence of many risks arises the law of average which underlies tlie whole business. An essential feature of this scheme is the mathematical calculations referred to on which tlio ])ieiiiiums and amounts assured are based." " It is also said (hat: '"The con- ditions necessary to the business of insurance are: (a) The exist- ence of a known danger to which all property owners are exposed, and against which they cannot efl'ectually protect themselves; (b) the strong probability that loss from this danger will fall upon but few^ of these who are exposed to it; (c) the certainty that when the loss happens it will fall so heavily on those to whom it comes as to make pecuniary indemnity a matter of great importance; (d) some knowledge of the relative value of the property annually destroyed by fire to serve as a basis for calculating the risk assumed b}' the insurer, and the amount of premium required to enable the insurer to meet losses and expenses and secure a fair return for the capital employed." ^^ § 18. Insurance is an aleatory contract. — The derivation of this word embodies the idea of chance or uncertainty, and the contract is aleatory in the 'sense that it is dependent upon some contingent event: That the obligation of the insurer is subordinated to certain perils. As we have already stated,^' risk is an essential element of insurance, and neither the assurer nor insured can know whether the event will or will not h;ippen, nor can either control the event to avert or hasten it. Therefore, since insurance depends upon some contingent event again>t the occurrence of which the contract is intended to provide, although it may never occur, it is an aleatory contract. It must he inidei'stood, however, that true insurance is always concerned with real value; it is not merely speculative, as in case of Avager policies, but is intended to protect actual interests from possible losses. It is based u|)on certain facts and data re- quired to be made known as far as a.scertainal)le. It does not pro- ceed upon concealed facts, since the chance or probability of the uncertain event hai)poning or of the ])eril must he estimated before- hand with an approximate degree of certainty.^* *^ New York Life Ins Co. v. Stat- ^* See Emerigon on Ins. (Mere- liam. OiVU. S. :U, 23 L. ed. TSfl. (lilh"s ed. 1850i e. i. see. 3, pp. 11, ^^Commonwealth v. Viooman, 13; 1 May on Ins. (3d ed.) sec. 5; 164 Pa. 300, 318, 44 Am. St. Rep. Ilopkin.s' Marine Ins. (ed. 18G7) 53, (in3, 2.") L.K.A. 2.')0. 30 All. 217. 58, 59, 290. ^' § 16 herein. ''Contrac t.s of life insurance fall 115 §§ 19-21 JOYCE ON INSURANCE § 19. Insurance is a voluntary contract. — Insurance is a volun- tarx' contract, and insurer.s have the right to inii)o;;e conditions therein. If the assured objects to them, he is not-bound to close the contract, but if he voluntarily enters therein, he wih be bound thereby.^* This of course relates to valid conditions, and those not jirohibiled ])y positive law nor against ])nbUc policy. § 19a. Standard fire policy a voluntary contract. — Although the form of a standard policy is prescribed b}^ statute, nevertheless its force and efficacy is derived from the consent of the parties, and upon acceptance by them it is to be treated as a voluntary con- tract, and not as a legislative enactment. ^^ § 20. Insurance is an executory contract. — The contract of insur- ance is an executor}^ contract in the sense that it is executed by the payment of the sum insured on a loss.^''' And a benetit society's contract entered into with a member is executory. ^^ It is said in a New York case that ''the contract (life) was not as to all its stip- ulations and- as to botli ])arties executory. It was executed by the plaintiff by the payment of the amuial premiums from 1849 to and including 1801, while it was wholly executory on the part of de- fendant, its undertaking being to pay the amount specified upon the death of the insured." ^^ A parol contract of insurance must, it is held, take effect in praesenti, and must not be executory. It is dis- tinguished in this respect from a i)arol agreement to issue a jjolicy.^" § 21. The contract is synallagmatic. — Inasmuch the contract of insurance is a nuitual agreement imposing certain reciprocal ob- ligations upon the insurer and insured, it may be said to be synal- lagmatic whether the subject matter be of a marine character or a within the ciass of aleatory con- the legislatnre intended by preserib- traets.'' 17 Karl of llalsbnry'.^ Laws ing the form of contract, and [)ro- of England, "Insurance," p. .')14. liibiting any other, to give it effect 1^ Keim v. ilunie Mut. Fire *.^' 'SI. in depriving a party of rights, which, Ins. Co. 42 ^lo. 38, 43, 97 Am. Dec. as a contract, it would not have.' " 201. 1'' IMutual Life Ins. Co. v. Wager, i^Dunton v. Westchester Fire Ins. 27 Barb. (N. Y.) 354, 3(57. See New Co. 104 :\le. 372, 20 L.R.A.(N.S.) York Life Ins. Co. v. Statham, 93 U. 1058, 71 Atl. 1037, 38 Ins. L. J. 600. S. 24, 23 L. ed. 789. Policy in standard form prescril)ed ^* Union Fraternal League v, 1)V Me. Kev. Stat. c. 49, sec. 4, par. Walton, 109 Ga. 1, 77 Am. St. Rep. 7'. The Court, per Whitehouse, J., 350, 44 L.K.A. 424, 34 S. E. 317. savs: "As stated bv the court in ^^ Cohen v. New York Mutual Life Reed V. Washington Ins. Co. 138 Ins. Co. 50 N. Y. (510, 10 Am. Rep. Mass. 572, Avith reference to the standard policy then prescribed by their statute: 'It is tiieir contract. As such it does not deprive the plain- tiff of his action and his trial by juiy. It is not to be presumed that IIG 522, per Allen, J. 20 Hartford Fire Ins. Co. v. Whit- man, 75 Ohio St. 312, 9 Am. & Eng. Ann. Cas. 218, 79 N. E. 459. On validity of oral contract of in- surance, see note in 22 L.R.A. 768. II NATURE OF THE CONTRACT § 22 building or the life or health of a person, or any other insurable interest. 'Tothier says that 'the contract of insurance is synal- lagmatic, for it produces reciprocal obligations. The insurer enters into an obligation to the aSvSurcd to guarantee and indemnify him against the perils of the sea, and the assured binds himself in turn to the insurer to pay him the premium agreed upon.' "^ § 22. Insurance is a conditional contract. — Insurance is a con- ditional contract in the sense that the contract may never attach even though the terms be agreed upon, as where the payment of the premium is a condition precedent or where some act is required to be performed by the assured in relation to the risk before the con- tract is completed. It is also conditional in the sense that the in- surer is not obligated to pay unless the loss arises from the specified perils or Avhere no risk attaches and no premium is due.^ If the contract stipulates that in certain contingencies it shall be void and insures "against all direct loss or damage by fire except as herein- after provided," it is a conditional contract. It is also conditional when it insures against loss to property ''while located and con- tained as described herein and not elsewhere." ^ The court said in this case: "(a) The contract is declared upon as absolute and un- conditional; it is alleged that by it the defendant did insure the plaintiff against all direct loas or damage by fire upon or to the prop- erty, etc. The contract in proof insures 'against all direct loss or damage by fire except as hereinafter provided,' and there are subse- quent stipulations which provide that in certain contingencies the policy shall be void, such as loss caused by riot, etc. By the very terms of the contract it is conditional ; it insures the plaintiff only in case the loss does not occur from the excepted causes. A contract to insure without limitation is not a contract to insure only in certain cases, (b) In another respect, the contract in proof is a conditional or qualified one. The declaration is upon a contract to insure the tinshop building and its contents. The company would be liable if the property burned, situated as described, when the policy was issued, and it might be liable in case of loss if the building was lo- cated elsewhere and the personal property contained in some other building.* The contract in proof insured the property 'while lo- ^Emeriq'on on Ins. (Meredith's v. Snow, 3 Burr. 1237. See Hart v. ed. 1850) ^c. i. see. 2, pp. 5, 6. Delaware Tns. Co. 2 Wash. (U. S. 2Enieri?on on Ins. (MenMlitli's C. C.) 346, 350, Fed. Cas. No. 6150; ed. 1850) c. i. sec. 3, p. 11; 1 Mav Jones & Abbott v. Insurance Co. of on Ins. (3d ed.) see. 4; McKee v. North America, 00 Tenn. 604, 25 Am. Metropolitan Life Ins. Co. 25 Hun St. Rep. 706, 18 S. AV. 260. (N. Y.) 583, 584; Tyrie v. Fletcher, 3 Cooledge v. Continental Ins. Co. 2 Cowp. 666, 668, 14 Eng. Rul. Ca.s. 67 Vt. 14, 30 Atl. 708. 502, per Lord j\ran.«field ; Steven.son ^Citing Felly v. Royal Exchange 117 § 23 JOYCE ON INSURANCE cated and coiilaincd a.< dc.-^crihed herein and not elsewhere.' This latter clause qualilies tlie contract, making it conditional." ^ § 23. Insurance is a personal contract.— It is well settled that insurance is a personal contract, whatever the subject matter of the insurance may be,^ Jt is a "contract by which the insurer under- takes to indemnify or pay money to the insured in the manner and subject to the conditions agreed upon. This liability of the insur- er to pay money is not altered by the fact that such money may l)e expended in rebuilding under certain circumstances, as in a hre Assur. Co. 1 Burr. 341, 14 Eng. Rul. Michigan. — Hall v. Niag'ara Fire Cas. 30; Lyons v. Providence Ins. Co. Ins. Co. 93 Mich. 184, I'JU, 32 Am. 14 R. I. idi). St. Rep. 497, 18 L.R.A. 135, 53 N. * Cooledo-e v. Continental Ins. Co. W. 727; Disbrow v. Jones, Mar. C7 Vt. 2^ 28, 30 Atl. 798, per (Mich.) 48. Taft, J. Nebraska. — P'armers & Merchants ^ United States. — Hurst v. Spring- Ins. Co. v. Jensen, 56 Neb. 584, tield Fire & Marine Ins. Co. 196 U. 44 L.R.A. 861, 76 N. W. 577, aliC'd 58 ^5. 47, 25 Sup. Ct. 179, 49 L. ed. 381; Neb. 522, 44 L.R.A. 862, 78 N. W. Royal Ins. Co. v. Stinson, 103 U. S. 1054. 25, 28, 26 L. ed. 473; Carpenter v. New Hampshire. — Lahitf v. Ashue- Providcnce Washington Ins. Co. 16 lot Ins. Co. 60 N. H. 75. Pet. (41 U. S.) 495, 503, 504, 10 L. New Jersey.— Kase v. Hartford ed. 1044, per Story, J. ; Columbia Ins. Co. 58 N. J. L. 34, 32 Atl. 1057. Ins. Co. V. Laurence, 10 Pet. (35 U. New York. — Lett v. Guardian Fire S.) 507,512, 9 L. ed. 512; Northern Ins. Co. 125 N. Y. 82, 25 N. E. Trust Co. V. Snyder, 76 Fed. 34, 37, 1088, per Gray, J. ; Wyman v. Wy- 22 C. C. A. 47. man, 26 N. Y. 253; Wvman v. Pros- Alabama.—8hadgett v. Phillips & ser, 36 Barb. (N. Y.) 368; iEtna F. Crew Co. 131 Ala. 478, 90 xVni. St. Ins. Co. v. Tvler, 16 Wend. (N. Y.) Rep. 95. 56 L.R.A. 461, 31 So. 20. 385, 397, 30 Am. Dec. 90. Illinois.— Undley v. Orr, 83 111. 0/t/o.— McDonald v. Black, 20 App. 70. Ohio, 185, 192, 55 Am. Dec. 448; Indiana. — Nordyke & Marmon Co. Hubbard v. Winshel, 6 Ohio N. P. V. Gery, 112 Ind. 535, 2 Am. St. Rep. Rep. (41 Weekly Law Bull.) 249; 219, 13 N. E. 683. Hubbard v. Austin, 9 Ohio C. P. Dec. Kentucky. — See Cook v. Kentucky 111. Growers Ins. Co. 24 Ky. L. Rep. Tennessee.— American Steam Laun- 1956, 72 S. W. 764. dry Co. v. Hamburg-Bremen Fire iUame.— Adams v. Rockingham Ins. Co. 121 Tenn. 13, 21 L.R.A. Mutual Fire Ins. Co. 16 Shep. (29 (N.S.) 442, 113 S. W. 394. Me.) 292, 294, per Tenney, J.; White- rffl/*.— McLaughlin v. Park City house V. CargiU, 88 Me.'479, 34 Atl. Bank, 22 Utah, 4/3, 54 L.R.A. 343, 276. ' 63 Pac. 589. Man/hnid.—S.Vmnor & Sons Ship- TT'/.s^;OH.siw.— Stanbilber v. Mutual building & Drv Dock Co. v. Hough- :\Iill Ins. Co. 76 Wis. 285, 291, 45 ton, 92^ Md. 68, 86, 84 Am. St. Rep. N. W. 221. 485, 48 Atl. 85; Heller v. National England. — Rayner v. Preston, L. Marine Bank, 89 Md. 602, 73 Am. R. IS Cb. D. 1, io, per Brett, L. J. St. Rep. 212, 45 L.R.A. 438, 43 Atl. See note 135 Am. St. Rep. 743. 800. 118 NATUKE OF THE CONTRACT § 23 policy, nor tnat it may be paid out in defending suits against the title, or in testing its validity or in paying judgments rendered, as in ease of title insurance. It is nevertheless a contract either to in- demnify the assured or to pay him a certain sum of money in case a certain casualty happens.' This obligation does not run with the property whether it be real estate or personalty, neither does it pass with the title unless assigned with the consent of the insurer,* or ' See Rayner v. Preston, L. R. 18 Mut. Fh-e Ins. Co. 43 Vt. 497, 500, 5 Ch. D. 1, 9, per Brett, L. J. Am. Rep. 207. Fire insurance is a purely person- Enghind. — Rayner v. Preston, L. al contract, by which the insurer R. 18 Ch. D. 1, 9. agrees to indenuiiiV iu.sured again.st "A contract of fire insurance is a any loss he may sustain by destruc- personal contract with the assured, lion of his interest in the property and is not a contract passing- with the insured. Nordvke & Alarnion Co. v. ]iroperty insured," 17 Earl of Hals- Gery, 112 Ind.' 535, 2 Am. St. Rep. bury's Laws of England, "Insur- 219,' 13 N. E. (583. anee," p. 517. ' United States.— llxmi v. Spring- A contract of insurance does not field Fire & Marine Ins. Co. 196 U. run with the land nor pass as an S. 47, 50, 25 Sup. Ct. 179, 49 L. ed. incident to it. Carpenter v. Provi- 381; West Norfolk Lumber Co., In dence Washington Ins. Co. 16 Pet. re, 112 Fed. 759. (41 U. S.) 495, 10 L. ed. 1044, cited Alabama. — Shadeett v. Pliillips & in: Crew Co. 131 AlaT 478. 90 Am. St. United States.— City of Norwich, Rep. 95, 56 L.R.A. 461, 31 So. 20. The (Place) v. Norwich & New York California.— Xyxw-'xi^ v. Phoenix Ins. Transp. Co. 118 U. S. 494, .30 L. ed. Co. Ill Cal. 409, 415, 43 Pac. 1115. 144, (J Sup. Ct. 1150; West Norfolk Illinois.— Lm^ley v. Orr. 83 III Lumber Co. In Re, 112 Fed. 763. Ai)p. 70. California. — Davis v. Phopuix Ins. .l/„/„^._Wliitehouse v. Cargill, 88 Co. Ill Cal. 409, 415. 43 Pac 1115. Me. 479, 34 Atl. 276; Adams V. Rock- J/fssoxW.— Sauner v. Pliot>nix Ins. iiigliam Ins. Co. IG Shep. (29 Me.) Co. 41 Mo. App. 480, 486. 292 294. .V<'(c Hampshire. — Laliiff v. Ashue- 3/a.s.sar7tMse».9.— Wilson v. Hill, 3 lot Ins. Co. 60 N. H. 76; Cummings Met. (44 Mas'^.) 66, 69. v. Cheshire County Mut. Fire Ins. .l//r///.7rrH.— Disbrow v. Jones, Co. 55 N. H. 458; Folsom v. Bel- Har. (Mich.) 48. knap County Mut. Fire Jns. Co. 30 ^'ew numpsliire.—{A\\n'& v. Ash- N. H. 240. nclot Ins. Co. 60 N. H. 75; Cumming O/^/o.— McDonahl v. Black, 20 V. Cheshire Countv Mut. Fire Ins. Ohio 193, 55 Am. Dec. 448. Co. .55 N. H. 457, 459. Pen»si/lranin. — Nippc's App. 75 Neiv York. — Lett v, Guardian Fire Pa. 479. Ins. Co. 125 N. Y. 82, 86, 25 N. E. h'liode Island.— B.oxs{e v. Provi- 1088; .T.tna Fire Ins. Co. v. Tvler, dence Mut. Fire Ins. Co. 16 R. I. 529. 16 Wend. (N. Y.) 385, 397. 30 Am. South Carolina.— Sieinmeyvr v. Dec 90 Steinmever, 64 S. Car. 420, 92 Am. r>/no.— l\rcDonald v. Black. 20 St. Rep.' 809, 59 L.R.A. 323. 42 S. E. Ohio St. 185, 192, 55 Am. Dec. 448. 184; Graliam v. American Fire Ins. Sotith Carolina.— Anneh' v. De Co. 48 S. Car. 218, 59 Am. St. Rep. Saussure, 26 S. Car. 497. 505, 4 Am. 707. 26 S. E. .323; Annely v. St. Rep. 725, 2 S. E. 490. De Saussure, 26 S. Car. 50.), 4 Am. T'ermonf.— Plimpton v. Farmers St. Rep. 725, 2 S. E. 490. 119 § 23 JOYCE ON INSURANCE unless by extraordinary or special and express stipulation of the parties it is made to run with the subject matter,^ or unless it be so framed as to be inseparably attached to the property and follow the successive owners during the continuance of the risk, such succes- sive owners being in turn the parties really assured, as w'here the insurance is on account of the "owners,"' or for whom it may con- cern, or where the loss happens to be payable to ''bearer," although this latter form rarely exists.^" So where one insured real property, the insurance payable to himself, his executors, administrators, and assigns, the interest in the policy was held to pass to his executors in preference to his heirs. ^^ But neither a mortgagee nor any other lien creditor has any riglit to claim the benefit of a policy underwritten for the mortgagor or owner of the property unless there is an express agreement permit- ting it.^^ So a contract of insurance upon property sold at a fore- ^ Cummings v, Cheshire County Michigan. — Hall v. Niagara Fire Mutual F. Ins. Co. 55 N. H. 457, 459. Ins. Co. 93 Mich. 184, 32 Am. St. See also the following eases: Rep. 497, IS L.R.A. 135, 53 N. W. United States. — West Norfolk 727. Lumber Co., In re, 112 Fed. 759. South Carolina. — Annely v. De California. — Davis v. Phoenix Ins. Saussure, 26 S. Car. 497, 505, 4 Am. Co. Ill Cal. 409, 415, 43 Pac. 1115. St. Rep. 725. 2 S. E. 490. Illinois.— Undley v. Orr, 83 lU. C'^aZ/.—MoLaughlin v. Park City App. 70. Bk. 22 Utah, 473, 54 L.R.A. 343, 03 Maryland. — Heller v. National Pae. 589. Marine Bk. 89 Md. 602, 73 Am. St. FermoH^— Plimpton v. Farmers' Rep. 212, 45 L.R.A. 438, 43 Atl. 800. Mnt. Fire Ins. Co. 43 Vt. 497, 500, Tennessee. — American Steam Laun- 5 Am. Rep. 297. dry Co. V. Hamburg-Bremen Fire On right of mortgagee to benefit Ins. Co. 121 Tenn. 13, 21 L.R.A. of insurance taken in name of (N.S.) 442, 113 S. W. 394. mortgagor, see note in 25 L.R.A. 305. Utah. — McLaughlin v. Park City A contract of insurance is not in Bank, 22 Utah, 473, 54 L.R.A. 343, any manner incident to the estate, 63 Pac. 589. running therewith, but a special ^° See Rogers v. Tradei-s' Ins. Co. agreement with the underwriters 6 Paige (N. Y.) 583, 588; 2 Duer on against loss or damage which as- Ins. (ed. 1846) pp. 49, 50, sec. 31. sured may sustain, and not the loss i^Wyman v. Prosser (N. Y.) 36 or damage which may fall upon any Barb. 368. other person having an interest as 12 Heller v. National Marine Bk. grantee, mortgagee, or creditor, or 89 Md. 602, 73 Am. St. Rep. 212, 45 otherwise. Adams v. Rockingham L.R.A. 438, 43 Atl. 800. Examine ^Mutual Fire Ins. Co. 16 Shep. (29 § 24a herein. Me.) 292, 294; Plimpton v. Farmers See also the following cases: Mut. Fire Ins. Co. 43 Vt. 497, 500, 5 United »S'