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In the case of Clark v. the Inhabitants of the Hundred of Blything, before the Courts in 1823, the facts were as follow: The owner of certain stacks of hay and corn, which were maliciously set on fire, had received the amount of his loss from an ins. office. But it was Held, by the Court, that he might nevertheless maintain an action in his own name against the Hundred under the 9 Geo. I. c. 22.
This last-named case is important as showing that in cases of incendiary fires the ins. office may fall back upon the Hundred for indemnity. [INCENDIARY FIRES.]
In 1827 the law upon the subject was again brought under statutory regulations by 7 & 8 Geo. IV. c. 31, wherein the liability of the Hundred is now defined, and the proceedings regulated. Sec. 2 enacts that if any church, etc., or any house, stable, etc., or any building or erection used in carrying on any trade or manufacture, etc., shall be feloniously demolished, pulled down, or destroyed, wholly or in part, by any persons riotously and tumultuously assembled together, in every such case the inhabitants of the hundred, wapentake, ward or other district in the nature of a hundred, by whatever name it shall be denominated, in which any of the said offences shall be committed, shall be liable to yield full compensation to the person or persons damnified by the offence, not only for the damage so done to any of the subjects hereinbefore enumerated, but also for any damage which may at the same time be done by any such offenders to any fixture, or furniture, or goods whatsoever, in any church, etc., or house, etc., or other buildings or erections aforesaid.
In order to obtain the benefits of this statute, the injured party must, within seven days from the commission of the offence, go before a Justice of the Peace having jurisdiction over the place where the offence was committed, and state upon oath the names of the offenders, if known, and submit to the examination of such Justice touching the circumstances of the offence, and become bound in recognizances to prosecute the offenders when apprehended. And every such action must be commenced within three months after the commission of the offence. Where less than £30 is claimed, the Justice may hear and determine the same.
Process against the Hundred is to be served on the High Constable. If the plaintiff recovers, the Sheriff, on receipt of the writ of execution, is to make out a warrant directing the Treasurer of the County to pay the amount.
It has been held that it shall be sufficient to constitute a riotous and tumultuous assembly if any one of His Majesty's subjects was terrified; and it has been held that the beginning to demolish a house, etc., within the statute must be such as to satisfy the jury that the ultimate object of the rioters was to demolish the whole of it.-Rex v. Ashton.
The latest enactment upon the subject appears to have been in 1861-the 24 & 25 Vict. c. 97; but it does not appear to vary from that of 1827. The Fenian outrages of 1867 and 1868 drew attention to the law upon this subject, but no fresh enactments took place. Plate-glass ins. cos., cattle ins. cos., and carriage ins. cos. should introduce into their pol. conditions protecting them from the consequences of destruction and injury by reason of Civil Commotion, naval or military operations, foreign invasion, usurped power, etc.
In all those cases where the insured have a primary right against third parties who have been the authors of the injury, either through negligence or more culpable misconduct, not amounting to felony, the insurers, on making good the loss, are entitled to enforce the remedy of the assured, and in their name to recoup themselves for their expenditure. The contract of ins. is treated as an indemnity, and the insurer as a surety, who is entitled to all the remedies and securities of the assured, and to stand in his place. If the insurers were first liable, payment by them would be a satisfaction, and relieve the wrong-doer; but this is not so, for the latter is first liable. The assured have indeed a double remedy: if they pursue that against the wrong-doer, and recover compensation, the insurers escape; but if they choose to enforce the claim against the insurers in the first instance, the latter are entitled to use the name of the assured in an action to recover the money which they have paid.—Bunyon, Law of Fire Ins. CIVIL LAW. That rule of action which every particular nation, commonwealth or city has estab. peculiarly for itself-more properly distinguished by the name of Municipal Law. The term "Civil Law" is now more generally applied to that which the Romans compiled from the law of nature and nations, and which, correctly speaking, should be called the "Roman Civil Law."
Most, if not all, the Maritime Codes now existing were founded more or less upon the Roman Civil Law. "There being (says Sir Robert Wiseman, in his Law of Laws) a necessity of another law, besides the particular law of each country, the Civil Law has been chosen by most foreign States; because it has from the time of the Romans run through all nations, and has been so generally applauded, and allowed of by all, that now at last it has purchased to itself the honour to be styled Jus Gentium, the law of nations, or Jus Commune, the common law of all Europe, because it hath more in it of the law of nature than any other law of man."
Owing to this common base, there is a harmony in the law of nations which has tended greatly to facilitate commerce, and with commerce maritime ins.
CIVIL SERVICE MINERS AND GENERAL LIFE ASSU. Co., founded in 1854, and commenced bus. apparently in connexion with the Ancient Order of Foresters Freehold Land So.; but almost before the asso. had commenced operations, its effects were disposed of by the hammer of the then well-known Mr. Furber-an auctioneer, too frequently engaged in selling off the effects of unsuccessful ins. asso. The execution creditor was the upholsterer who had supplied the office furniture. CIVILIZED LIFE.-It has been the subject of much discussion how far the refinements of Civilized Life tend either to the multiplication of the human race, its happiness, or its longevity. We do not intend to enter upon the discussion of these questions here, but content ourselves with the following sensible passage from Dr. Price's Observations, etc.:
One of the most obvious divisions of the state of mankind is into the wild and the civilized state. In the former man is a creature, rude, ignorant, and savage, running about the woods, and living by hunting, or on the spontaneous productions of the earth. In this state the means of subsistence being scarce, and a large quantity of ground necessary to support a few, there can never be any considerable increase. In the latter state, man is a creature fixed on one spot, employing himself in cultivating the ground, and enjoying the advantages of science, arts, and civil government. Of this last state there are many different degrees or stages, from the most simple to the most refined and luxurious. The first or the simple stages of civilization are those which favour most the increase and the happiness of mankind. For in these states agriculture supplies plenty of the means of subsistence; the blessings of a natural or simple life are enjoyed; property is equally divided; the wants of men are few, and soon satisfied; and families are easily provided for. On the contrary, in the refined states of civilization property is engrossed, and the natural equality of men subverted; artificial necessaries without number are created; great towns propagate contagion and licentiousness; luxury and vice prevail; and together with them disease, poverty, venality, and oppression. And there is a limit at which, when the corruptions of civil society arrive, all liberty, virtue, and happiness must be lost, and complete ruin follow.
Those who understand Dr. Price's peculiar views of the degrading tendencies of cities will understand the dark shades of the preceding picture. We shall have to revert to the subject under TOWNS, Life In.
CLABON, C. B., Sec. of Law Rev. Int. So. since 1856.
CLAIM [from the Latin clamo, to cry out].-To ask as a right; to demand as due; to request authoritatively; to require; to become entitled to a thing; to derive a right. -Worcester.
In Ins. the making a "Claim " is technically understood as an intimation that the event or contingency insured against has occurred; or where several events or contingencies are insured against, that at least one of them has occurred. It forms a necessary condition of every ins. pol. that any claim made under it shall be verified by some proof of the occurrence which gives rise to the claim. Some pol. state the exact nature of the proof to be furnished. Others only intimate that "reasonable proof" will be required. There are several stages through which every claim must pass, varying more or less with the nature of the bus. We proceed to enumerate these:
1. NOTICE OF CLAIM-that is notice by claimant to the insurer (underwriter, or asso.). 2. PROOF OF CLAIM-that is proof to be furnished by the insured to insurer.
3. ADMISSION OF CLAIM-that is admission by the insurer that the insured has substantiated his claim.
4. PAYMENT OF CLAIM-the actual handing over of the cash and the receipt of the proper discharges to the insurer.
5. RESISTANCE OF CLAIM-that is either by letting the claimant take his course at law, or by the insurer giving notice of arbitration.
We shall treat of the subject as briefly and as clearly as possible under each of these heads.
(1). Notice of Claim.-It may be regarded as of the essence of the contract of ins. that timely notice that is to say, that the earliest possible notice-be given to the insurer of any casualty having happened by which it is supposed a claim has arisen. Many pol. name a specific time within which notice must be sent, or failing such notice any benefit otherwise accruing is forfeited. but the intention is in all cases the same, viz. that the insurer shall have early notice, in Others simply say "forthwith or "immediately"; order that he may enter into or upon such inquiry as he deems important to his interests. In the case of Fire loss, the necessity for early notice, in view of salvage, etc., appears obvious. In Cattle ins., in Glass ins., in Hail ins., it is equally obvious. In Fidelity ins. time is frequently of the utmost consequence. But in the case of Life ins., and yet more of Accident ins., the injury resulting to the office from delay can hardly be atoned for. If the cause of death requires to be investigated through the aid of a coroner's inquest, that must take place before burial; and where a post-mortem becomes necessary, that also must be made before burial, the alternative being the unpleasant one of an application to the Sec. of State for power to exhume. Regarding Accident ins. more particularly, we have already shown, under CAUSE OF DEATH, Some of the reasons which necessitate prompt notice. Even in non-fatal injuries the necessity of prompt medical advice, or special treatment, themselves suggest the injurious consequences which may arise from delay.
In the case of Marine ins. the distance at which the casualty frequently happens interposes difficulties. Yet the necessity for prompt notice to the underwriter is as great as in most of the other classes of ins., and in some respects even more so, as great injustice
may be committed by other persons obtaining priority of information. The early Marine Ins. Ordin., quoted in this work, contain some very curious provisions with respect to the minimum rate at which the information is to travel.
It must be remembered, as a rule of vast importance, that notice to an agent is not notice to the principal. It is especially so in the case of ins. asso.
(2). Proof of Claim.-The proof to be furnished in support of a claim must of necessity depend greatly upon the nature of the ins. Its form is generally more or less fully indicated in the pol., or its conditions. In Marine ins. there is a certain routine process of placing the papers connected with the claim before an average-adjuster. We shall give a list of the documents required to be placed before the average-adjuster in a later part of this art. It is sufficient to state here, that, beyond the actual loss or damage, regard has to be taken of what is subject to "General Average," and what comes under "Particular Average," while the Warranties" of the pol., and the questions of "Seaworthiness," " Deviation," "Abandonment," or Salvage, may, any or all, demand consideration.
As to Fire ins., there is the first question of wilful or accidental origin; next, whether the fire has arisen from causes within the pol. or otherwise; also proof of the actual property destroyed, and of its value; and, finally, is it a "Specific" or an Average pol. Incidentally there will be questions of "Over-insurance," "Double Ins." "Civil Commotion," etc., etc.
Regarding Life pol. the main considerations are, first, the actual "cause of death,”— does it indicate any "misstatement" or "concealment" at the time the ins. was obtained; then, verification of age; next, had the ins. entered upon a prohibited occupation; or, finally, did he die within permitted limits of residence or travel. The question of "insurable interest" has sometimes to be kept in mind.
In Accident ins. the question of "cause of death" is of the most vital importanceaccident must be the direct and sole cause of death, and all diseases and personal infirmities (not previously stated, and specially ins. against) must be excluded. Next, was the insured following the "occupation" or occupations against the risks of which he insured, and no other. The question of the "limits of age" also arises-these limits are generally from 18 to 60 at the time of ins.; and the limits of travel; and also whether the death has arisen from "General accident," "Railway accident," or on the "Ocean," have likewise to be regarded.
As to Cattle ins., the questions of "substitution" and of "value" are the primary elements; but wilful exposure, improper treatment, as well as the actual cause of death, have to be regarded.
In Hail ins. the description of the crop, its acreage and value, with perhaps the incidental point of ownership, seem to be the main points involved.
In Fidelity ins. the questions of "amount,' ," "time" within which loss has arisen, the institution of the stipulated "tests of accuracy" (if any), and of collusion, either in the peculation, or in the escape of the delinquent, all have to be considered in relation to the proof of a claim.
In Glass ins. the "identity " and the "value" are the primary considerations; while the "cause" of the breakage has an important bearing (in regard to the office obtaining indemnity against the wrong-doer); and the time within which the damage has occurred. These are the most important practical points.
In Carriage Accident ins. the " cause of accident, and the value, both at time of ins. and at the time of the accident, are the main considerations. The cause of the accident, in relation to indemnity of the office by the wrong-doer; the question of value, in relation to the "average clause" in the pol. It is further necessary to confine the repairs to the actual injury occasioned.
(3). Admission of Claim.-This is a formal act of the underwriter or of the board of the co. on whom the claim is made, and which signifies that all the required proofs have been furnished. In the case of Marine ins. this process of admission is called the "settlement," and is signified by indorsement on the pol. In the other cases the notification is by letter, or sometimes a more formal document.
(4). Payment of Claim.-The payment of the claim is more or less remote from the period of admission of claim, according to the usage of the several branches of Ins. In Marine ins. formerly a month elapsed between "settlement" and "payment"; now, in consequence of increasing competition, claims are usually paid within a week; or, in the case of cos., at the next weekly board after "settlement." In Fire ins. the claims are usually paid at an early date after admission. The same may be said of most of the other branches of ins. except Life; here it is usual to pay at the end of three months [it was formerly in many cases 6 months], or more promptly on discount being allowed from the period of actual payment to the regulation time. In Accident ins. the non-fatal compensation is usually paid within a week after admission; the death claims at the end of 3 months, subject to discount for earlier payment, as in the case of Life ins. claims. Cases have arisen in which, in consequence of information subsequently received, even after formal admission of claim, payment has been withheld; and justly so.
It is an important point in relation to the payment of claims to see that the insurer
obtains a proper
(5). Resistance of Claims.-There was at one time existing a foolish sentiment regarding what is called the "disputing of claims" by the managers and directors of ins. offices. It is happily passing away. Ins. is a matter of contract, that contract being based upon good faith. If the underwriters or co. find that good faith has not been observed, it becomes a duty to resist. In Marine ins. fraud is of very frequent occurrence; but it is often very difficult of proof. In Fire ins. the proportion of claims more or less fraudulent is considerable. In Accident ins. and in Cattle ins. attempts at fraud in a small way are far too prevalent. The ordinary course of resistance is simply refusing to pay, leaving the insured to his legal remedy. It is doubtful whether this is always a wise course. Most pol. contain an "arbitration clause." Where the question is only one of amount, the underwriters or co. should take the initiative, and give "notice of reference." Where the claim is purely fictitious, or fraudulent in its inception, the initiative should be taken by the insurer, who is too often placed at a disadvantage by allowing the insured to commence a civil process, where a criminal one would most apply.
In addition to the preceding, which embody the main points of practice, from the office point of view, there are some other considerations to be regarded in dealing with claims. A knowledge of the legal decisions in previous cases of a like character is of the first importance; while business aptitude, discernment, and diplomacy are very frequently called into play, alike on the part of the "claim adjuster" and the managers of the office. We shall deal with a few of these considerations under alphabetical arrangement.
Accident Ins.-At the close of our HIST. OF ACCIDENT INS. we have noted a few of the more important points which have been determined in cases which have come before the Courts. We need not repeat them here. It is in the common interest of accident cos. to uphold those decisions. It is an important feature in accident ins. that the death must take place within a given period (usually three months) after the injury. It is a point of the first importance that the co. provide its own forms for the insertion of details of non-fatal as well as fatal injuries; and that the co. insist upon these being actually filled up and returned before any claim be admitted. It is no hardship on a person subsisting on the funds of the co. to make full and proper returns whenever required. Any attempt at evasion must be regarded with great suspicion. Twenty years' experience of this bus. has shown the writer that whenever there is any irregularity about the notice of injury or death reaching the office, there is also some irregularity about the claim itself.
Where the claimants are entitled to compensation for non-fatal injuries, the difficulty of obtaining completely satisfactory evidence is sometimes very great. Claimants and agents alike fall into the notion that a "liberal mode of settlement," without any very strict regard to the actual facts, is best for the office. Experience, however, speaks differently. An able writer upon ins. topics in the U.S. says hereon:
A strict construction of the terms of the contract, regardless of the character or influence of claimants, treating the rich and poor alike, will estab. confidence in the integrity and good faith of our settlements; while the man of position and influence will justly despise any co. which should seek to buy his influence by the payment of an excessive and unjust claim, when at the same time he sees a claim equally valid as his own denied to his poorer neighbour.
These remarks also apply to Health Ins.
Fire Ins.-Under APPORTIONMENT OF FIRE LOSSES we have already stated some of the general considerations which arise in relation to claims under F. pol.; while under AVERAGE POL. (Fire), we have noted many of the more technical points involved. Under CERTIFICATE OF LOSS we have spoken of a specific requirement under some F. pol. We now have to add a few more important details.
In the case of claims under "average pol.," the following special forms are required to form part of the "proof":
A., B., and Co., the undersigned, do hereby declare that the following is a full, true, and faithful statement of the whole of the goods, wares, and merchandize, and the value thereof, on the day of the fire, which was held by us, either on our own account, or on trust, or on commission, which are or were lying or being within the places and limits specified in our pol., No. . . ., of the . . . Ins. Co., on the day of the late fire in . . . wharf.
And we further declare that the following is a full, true, and faithful statement of all the ins. effected by or for us with other F. offices, upon such goods, wares, and merchandize; and that we have in this statement distinguished the specific insurances, or those that may vary from pol. No.... before mentioned, under which our claim is made.
And we do also declare, that we have not omitted from this statement any goods, wares, merchandize, or effects upon which we had at the time of the said fire any lien, claim, or title, upon which we could have made a claim for loss by fire, had such goods, wares, merchandize, or effects been destroyed by fire.
Then come the schedules to be filled up with the following all-important information: Ist. Particulars of the whole of the goods, wares, or merchandize at the time of the said fire, including those damaged or destroyed. 2nd. Particulars of goods, wares, or mer
chandize destroyed or damaged by said fire. 3rd. Particulars of pol. of ins. with other offices, with their respective amounts and numbers. 4th. Claim to be made in the following form:
Claim under pol. No.
subject to average. We do hereby declare and set forth, that at the fire, on the..., 187 the following articles, goods, wares, or merchandize, being our property or the property of other persons to whom we are legally liable, and ins. by your pol. No. were destroyed or damaged by the said fire according to the values at the foot hereof; wherefore we claim the sum of £ the amount of such value; and we further declare that we had no ins. effected with any other office or offices, except as before mentioned.
The list of documents may be completed by the following: "Warehouse-keeper's Certificate. We hereby certify that the goods hereunder mentioned were in our custody, in a warehouse situate in at the time of the fire before referred to.-Signed, . . . .'
In the case of Levy v. Baillie, before the Courts in 1831, the facts were as follow. The plaintiff had effected a pol. against fire, with a condition that he should forfeit all benefit under the pol. if there was any fraud or false swearing in the claim he made. A fire ensued, and the plaintiff made affidavit of the damage to the extent of 1085; having sued for the amount, and a jury having found a verdict for him, with only £500 damages, the Court granted a new trial.
In the case of Wright v. Pole, before the Courts in 1834, it was Held, that an innkeeper, having ins. in the Sun Fire his interest "in the inn and offices," could not, upon such inn and offices being partly burnt, recover against the insurers the loss sustained by his hiring other premises while his own were being repaired, or by the refusal of persons to go to the inn while under repair-the insurers having reinstated the premises in proper time.
It was decided in the case of Simpson v. the Scottish Union Ins. Co., tried in 1863, that a tenant from year to year insuring is not limited in his claim on the ins. co. to the extent of his interest in the property insured.
Even where there is no fraud, the insured on a fire pol. can only recover the real amount of the loss. This was so held in Goulstone v. Royal Ins. Co., tried in 1858.
Life Ins.-The main point to be guarded against is death by suicide, instead of from natural causes. We shall discuss this subject fully under SUICIDE. The other chief questions are 'concealment" and "intemperance." The points involved herein, as affecting life ins. claims, will be fully discussed under those heads; while under DISEASED LIVES, and FRAUDS, much that is important will be found. Some considerations also arise under DAYS OF GRACE. See also PROOF OF DEATH.
Sometimes a death will be presumed, as where a ship in which the insured life sailed is never heard of, and from circumstances appears to have been overtaken by a storm in which other ships perished. So also a person goes abroad, and remains unheard of for a long period. See DEATH, PRESUMPTION OF.
The following curious and important point was determined Obiter dictum in 1786, in the case of Locker v. Offley. A person insured for one year only meets with a mortal wound, but does not die of the same until after the expiration of the policy. Mr. Justice Willis held the insurer was not liable: hence it is regarded as a principle that the loss itself, as well as the cause of loss, must have happened during the continuance of the pol. We do not remember any recent case on this point.
We have long felt that a complete statement of the aggregate claims paid by all the different life offices would operate as one of the most striking popular arguments in favour of the practice of Life Ins. Of course it is impossible to obtain such a return from the offices which have passed away; but there ought to be no difficulty in obtaining the items from each existing office. Mr. William White, in his useful Ins. Register, did for one or two years give such returns for many of the offices. We shall hope under LIFE INS. CLAIMS to present such a T. in a completed form.
Marine Ins.-The following specific documents are usually required to substantiate claims. 1. Protest-to show the loss of or damage to the vessel. 2. Bill of lading-to show that the goods were on board. 3. Invoice-to prove value. 4. Account Sales-to show realization. 5. Original vouchers -to show amount expended in repairs, etc. 6. Survey-to prove damage. 7. Rate of Exchange of the day. 8. Average Statement. These being investigated and found correct, the underwriter indorses the claim papers as "settled."
Weskett said in 1781 :
Proprietors, and their factors or agents, of ships or goods which have been wrecked, stranded, taken, retaken, seized, detained, or condemned, ought to use their utmost diligence in making claim thereof in due form, and furnishing proper and authentic documents to that effect, in cases where there is a right, and hope of recovery of salvage; for negligence or inactivity on such occasions would be highly culpable and fraudulent with regard to insurers; to whom, on their satisfying the loss, security ought to be given by the insured, or their agents, that such claim shall be duly made and prosecuted at the charge and with the advice and assistance of the insurers; and also that they shall be reimbursed their due proportion of the value of all that shall be restored or saved. A master of a ship or cargo who may have fallen under the afore-mentioned or any similar circumstances, who leaves the place where they may have happened, without exhibiting authentic papers, and exerting his best endeavours to recover ship and cargo, or without duly claiming, appealing, etc., as the case may require, is liable to be sued, and to answer for not having done his duty. Under CONCEALMENT and FRAUD many other points in connexion with marine claims will be discussed.