There is another way for paying for losses in mutual companies.

Instead of paying cash premiums in advance, the insured gives a bond

or note well secured that he will pay in cash whenever a call is made

on him to cover the losses that have been incurred at the end of the

year or other period. This method is in vogue in some sections,

because still less money is required to keep property insured. Of

course besides the money to pay losses another sum is required to pay

the expense of management. It will be seen that the mutual plan is

purely for protection against loss and no profit in the way of

dividends is forthcoming, for the companies have no capital. It is

true that some companies, instead of returning the unexpended premiums

for losses retain them or a part of them and by so doing accumulate a

surplus. Many companies, however, return all the contributions not

expended for management or losses and have no surplus, or only a very

small one.

Stock insurance companies proceed on a different principle. They are

organized to make money, a capital is subscribed, the rates of

insurance or premiums are fixed and after paying the expense of

management and loss, the balance is paid to the stockholders in the

way of dividends. The business is one of unusual hazard, and only a

rich person, who can afford to lose his money, ought to invest in the

stock of such companies. Their profits and losses vary greatly from

year to year; and failures have been frequent. Nevertheless some

companies have a fine record, enough to tempt them to continue

notwithstanding their trying reverses.

As the contract of insurance is for an indemnity, the insured must

have some interest in the property insured, otherwise the contract is

a mere wager, which the law condemns. Moreover the interest must

continue and exist at the time of the loss. Who, therefore, has an

insurable interest? A bailee, a carrier of goods, a consignee who has

authority to sell them, a factor, pledgee, warehouseman, an assignee

for the benefit of creditors, an executor or administrator, an

attachment creditor, but not a general creditor, a landlord, tenant,

mortgagee of real or personal property, a lienor, for example, the

holder of a mechanic's lien, a receiver, residuary legatee or devisee,

a trustee, vendees and vendors of real and personal property, the

owner of stock in a corporation, any agent who has the care and

management of his principal's property, besides many others. But a

fire insurance policy may be assigned as collateral security with the

company's consent, and continue valid though the assignee has no

interest in the property. This rule therefore is fundamental, and if

the interest of the insured in the property has been extinguished

after making his contract and prior to its loss by fire, he can get

nothing from the company. Likewise the property must have been in

existence at the time of making the contract, if it was not, the

policy is void. Many stories are told of insuring ships after learning

of their loss; such conduct is a palpable fraud.

An insurance policy is a contract, of which the policy is evidence. A

standard policy has been prescribed in several states by statute: in

other states the parties are still free to make such terms as they

please. It is usual for companies to execute blank policies in due

form to be filled out and delivered by their agents. Such policies are

not valid until countersigned, unless the countersigning is waived.

When does the policy become valid or binding on the insured? Says a

competent authority: "Where a policy has been duly executed in

compliance with an application on the part of the insured, so that the

minds of the parties have fully met as to the terms and conditions of

the contract, a manual delivery of the policy to the insured is not

essential to render it binding on the company. If the contract has

become binding by the issuance of the policy and the placing it in the

hands of an agent for delivery, then the fact that such delivery is

not actually made to the insured until after the loss has occurred,

will not defeat recovery by the insured."

The premium usually must be paid at the time of issuing the policy,

unless a different agreement is made concerning it. Credit may be

given, and an agent generally has authority to do this. A valid

payment may also be made in other means than money; a check or note

may be given for it.

An insurance policy may be assigned, though it usually contains a

clause that the consent of the insurer is needful. When the policy

contains this clause and the insurer without valid reason refuses to

consent to an assignment, "the assignee acquires the same right as

though consent had been given."

Consent to an assignment may be given by the president of the company,

without formal vote by the directors. It may also be given by the

secretary or by any other agent duly authorized.

When can a policy be canceled? Unless this right is reserved in the

contract, or given by statute, the insurer cannot cancel the contract

without the consent of the insured. It often is reserved, and if

exercised, this must be done before a loss occurs, and a cancellation

made afterwards, though without knowledge of it, is void. The motive

for making it is not important. If, as a condition of cancellation,

the unearned portion of the premium is to be returned, the failure to

return it renders the cancellation worthless. Nor is this effective

until notice has been given to the insured.

A court of equity will reform a contract of insurance on the ground of

accident, fraud, and mistake. Oral evidence is admissible to prove the

fraud or mistake; it must, however, be clear before a court will grant

relief. If mistake is the ground for asking relief, the insured must

not have been guilty in causing it, and must act promptly after his

discovery. This rule does not prevent him from seeking relief when the

agent of the insurer has been negligent. Furthermore it may be granted

even after the happening of a loss.

Should there be a conflict between the written and printed portions of

a policy, the written portion will be presumed to represent the intent

of the parties. If, therefore, the printed portion excludes certain

articles from the risk, and the written portion covers them, they are

included. Conditions also written or printed on the margin or back of

the policy are regarded as portions of it, and these too will control

the printed portions. Besides, the written application is usually

considered a part of the contract and the policy is construed or

interpreted in connection with it. This is especially so where the

proposals and conditions are attached to the policy. If the intent of

the policy is not clear from the language used, the surrounding

circumstances may be shown for the purpose of ascertaining the intent

of the parties. The known usage of trade may also be taken into

account in construing the language of a policy.

The language of the policy should be so construed as to cover the

property within the intention of the parties, and support, if

possible, the contract of indemnity. Mere clerical errors or mistakes

in describing it may be corrected even after it has been destroyed.

The location is an essential element, and the policy will not be

stretched to cover property not within the description. If a building

is described this does not include separate structures used in

connection with it, nor fixtures constituting no part of the

structure. Unless expressly excepted, however, insurance covers those

things which have been so annexed as to become a part of the realty

but none others. The term store fixtures covers fittings, fixtures,

furniture used in the course of trade, whether they are part of the

realty or not. Likewise the term "stock" used in a mercantile business

includes everything usually kept for sale, in that business, but

nothing more; while household furniture includes all articles

necessary and convenient for housekeeping. With respect to future

additions these are covered by the policy unless it is so drawn as to

show a clear intent to exclude them.

The risk usually begins with the date of the policy, unless it is

effected by a preliminary contract. In such a case the risk begins

from the date of the preliminary contract, and continues for the

period fixed in the policy, or, if none has been fixed, for a

reasonable time.

A misrepresentation voids a policy generally. It must not only be

false in fact, but the insured must have known that it was false when

making it in a substantial and material respect. The misstatement of

an agent of the insured will have the same effect. Indeed, any fraud

of the insured in procuring the policy has the effect of voiding it if

the insurer chooses to do so. Of course, the wrongful facts or acts of

the insured possess a varied character. His conduct in concealing

facts that ought to have been made known to the insurer may have that

effect. Thus to conceal a fact of which the insured had knowledge, and

which, if known by the insurer the risk probably would not have been

taken, is a fraud rightly available to the insurer.

The parties to an insurance contract may agree that the questions put

by the insurer and the answers given by the insured shall become a

warranty. This, as experience has shown, is a simpler way of effecting

a policy of insurance. When this is done a misrepresentation

constitutes a breach of warranty and the contract becomes void.

The modern policy provides that it shall be void if the insured "now

has or shall hereafter make or procure any other contract of

insurance, whether valid or not, on property covered in whole or in

part by this policy." If the insured effects other insurance he must

not forget to obtain consent of the insurer, and should he forget his

good intention will not preserve his policy. Nor can the insured

protect himself by canceling the prior policy if he breaks the

condition. Nor does its expiration revive the subsequent policy. An

overstatement of existing insurance under an express warranty will

also violate the policy. While forgetfulness or good intention will

not save the insured in such cases, insurance obtained by a third

person without the knowledge of the insured on the same property will

not endanger his rights under his policy.

If a fire occurs and a loss results, this may be total or partial. In

every case of loss fire must be the proximate cause of the loss. What

loss is covered by a policy has been the subject of frequent

controversy. Damage by water used to extinguish a fire is usually

covered; also damage to or loss of goods removed to prevent their

destruction from fire in the insured or another building. Likewise

the loss caused by blowing up a building to check a fire, likewise

damage from an explosion which is the direct result of a fire, "but an

explosion due to the ignition of a match or spark of an explosive

substance, no fire resulting, is not within the terms of an ordinary

fire policy." The standard policies contain a clause relieving the

insured from liability to pay for property stolen during the progress

of a fire, or during the removal of property necessitated by fire.

An exception of liability from lightning, unless followed by fire,

excludes recovery unless there is loss from burning, but it is quite

common to insure against loss from lightning as well as fire.

Unless there is a stipulation in the policy the insurer is not

relieved from liability by mere negligence or carelessness of the

insured or his servants though directly contributing to the loss; on

the other hand, the insured who does not take reasonable care to avoid

loss from his negligence or that of his servants may defeat recovery

under his policy. This rule is not easy of application, cases of

clearly proved negligence are numerous, also cases free from

negligence, a third class of a doubtful nature. The field of the law

is open in every direction to these.

For a total loss the insurer is liable for the entire value of the

property to the limit covered by the insurance. Thus the loss of a

building is total though some of the walls remain standing, but not

when the remnant can be restored. In some states the statutes provide

that in case of total loss the insurer shall be liable for the full

amount of insurance, and shall not be allowed to show that the

property was of less value than the amount insured.

When the loss is partial the insurer is liable only for the amount of

the loss, not exceeding the insurance. The policy may limit the amount

of recovery to the cost of restoring or replacing the property, and in

such cases this is often done instead of paying the loss in money. If

each of several classes or items is separately valued, thereby

separating the liability for them, the recovery for any one class or

item is limited to the damage to the same.

Lastly, in fixing the loss the distinction between open and valued

policies must be explained. A fire policy is generally written in such

a way that the liability of the insurer depends on the amount of the

loss to be determined after the loss has occurred. When this is done,

the valuation of the property in the application for a policy or in

the policy, does not fix the liability of the insurer, even though the

loss be total. This is called an open policy. On the other hand the

loss may be fixed by a stipulation in the policy, and which binds the

insurer to pay the whole sum insured in case of total loss. This is

called a valued policy. A policy is regarded as an open one, unless it

appears to have been the intention of the parties on a fair and

reasonable construction of its terms, to value the loss and so fix by

contract the amount that may be recovered.

=Fixtures.=--A fixture is something annexed to land either temporarily

or permanently. Different rules apply to persons in different

relations. The law favors removal by a tenant presuming that he does

not put in things for the landlord's benefit, unless there is an

agreement to that effect between them. On the other hand a different

rule applies between the seller and purchaser of real estate. As

between them the law presumes that the seller intended to keep the

things affixed to the house, especially ranges and the like. On the

other hand a somewhat different rule applies between mortgagor and

mortgagee. The former is favored, but not so much as the tenant.

Suppose the mortgagor was a nurseryman, and the land was taken for the

debt by the mortgagee, would it include the trees and shrubs that had

been planted for sale? The courts have given an affirmative answer.

The facts that are of special value in finding out whether a thing is

a fixture or not are: (1) the actual annexation of the article to the

realty; (2) the immediate object or purpose of the annexation; (3) the

adaptability for permanent or mere temporary use; (4) and whether the

article can be removed without material injury to the property to

which it is annexed. See _Lease_.

=Garage Keeper.=--The garage has been said to be the modern substitute

for the ancient livery stable. A garage man who receives the

automobile of another to keep or repair--a service for which the owner

is to pay a compensation--is a bailee for hire. While this relation of

bailor and bailee exists, the owner is not ordinarily responsible for

the negligence of the garageman or his servants in the care or

operation of the automobile.

A public garage is not a nuisance. Even the storage of gasoline in

suitable tanks set down in the earth is not a nuisance. Yet the

business may become a nuisance when conducted in some localities, or

in an improper manner. The operation of a public garage may therefore

be enjoined in a purely residential section within a short distance of

large churches, a parochial school and houses. Likewise the odors, the

noise, and the fire hazard, which are occasioned by the construction

and management of a garage, create a situation which justifies public

regulation.

A garage keeper is generally allowed a lien on an automobile for

storage and repairs. If no price has been fixed in advance, the garage

keeper is entitled to recover of the owner the reasonable value of the

services and materials furnished. When the automobile is brought to

the garage by a chauffeur, the garage keeper should assure himself of

the chauffeur's authority to order repairs, especially those of a

permanent nature.

The garage keeper when storing a car for another for compensation must

exercise reasonable care and prudence. If negligent he is liable for

the damage. It is said that the liability of a garage keeper for hire

is not affected by reason of the knowledge of the owner as to the

place where the property is kept. Its acceptance by the garageman

imposes on him the duty of exercising due care for its safety and

protection. But he is not an insurer of the property; and therefore is

not liable for loss by fire unless he has been negligent. Generally,

in such a case the burden of proof is on the owner of the machine to

show that the fire was caused by the negligence of the garageman.

Sometimes one keeps a car for another for accommodation, receiving no

compensation therefor. One who thus serves another is liable only for

gross negligence.

The garage keeper must protect the property from theft. If he permits

a machine to remain in an alley when it ought to have been inside his

garage, he is liable. In one case a motorcyclist left his machine with

a garage keeper to be kept over night, and also gave permission for

its inspection by any one whom he might send around. A person

appeared with a permit to inspect it who, under the permission, stole

it and rode away. The garage keeper was rightfully held not liable.

If a garage keeper or his servant negligently runs a machine left in

his custody for storage or repairs, the garageman is liable for the

damage resulting to the owner. At the expiration of the bailment he

must deliver the machine to the owner or person authorized by him to

receive it, and is liable if neglecting or refusing. He is also liable

if delaying unreasonably to make repairs, or for making them

unskillfully. Lastly, if the car is driven by the garageman's servant

while the bailment continues, the bailee, and not the owner, is

responsible for any injury done to a third person by the servant's

negligence. Of course, if the driver was acting outside the scope of

his authority, and was using the car for personal purposes, neither

the garageman nor the owner would be responsible for whatever

happened. See _Automobile: Chauffeur_.

=Homestead.=--A legal homestead is the home or residence of a family

land owner, and includes a specific area varying in the several

states. By the more general rule the land must be connected in a

single piece, though in some states the pieces may be distinct. Though

divided by a highway this does not effect a separation, as the land

therein belongs to the owner subject to the public rights to pass and

repass and also use to keep the highway in repair. The peculiarity

about a homestead is, it is protected by law from seizure by the

owner's creditors.

One of the most important questions relating to a homestead is, the

meaning of the head of a family. The term is not limited to a man

having a wife and children. It includes an unmarried man with whom

his widowed sister and children reside; or a man who supports his

mother; likewise an unmarried woman with whom the children of a

deceased sister are living. Nor need they live under the same roof,

the essential thing is the relation and dependence existing between

them. On the death of a husband owning a homestead the right survives

to the widow, and usually to the minor children. Some statutes give

her the absolute estate, others a life interest; in some states she

loses the homestead by a subsequent marriage. In most states the

rights of surviving children end on attaining their majority. In many

states the surviving husband is entitled to the homestead right, even

though there be no children. A husband does not lose his homestead

when his wife withdraws from the family under a decree of divorce.

Non-residents as a rule are not within the privilege of the homestead

laws.

On the dissolution of a marriage by divorce, as the wife ceases to be

a member of the husband's family, she loses her rights to the

homestead. The decree of divorce may, in the dissolution of the

marriage, reserve to her the right, and if she is the owner of the

homestead she may continue to occupy it as one. The mere desertion of

husband or wife by the other spouse will not, in itself, destroy the

character of the homestead although an entire dissolution of the

family will have that effect.

By the federal law every head of a family, or a person twenty-one

years old and a citizen, or intended citizen, of the United States, if

not the owner elsewhere in the United States of one hundred and sixty

acres of land and has not previously obtained a federal homestead, is

entitled to a quarter section or less of the public land. Three things

are necessary: (1) An affidavit showing that the applicant comes

under the law; (2) a formal application; (3) payment of the land

office charges. When these things are done, the certificate of entry

is delivered to the applicant and the entry is made. Then the entryman

must actually reside on and cultivate the land for three years, and at

the end of that period, he is entitled to a patent. The lands thus

acquired are not liable for any debts contracted prior to the issuing

of the patent.

The head of a family can sell or mortgage his homestead, whether he is

solvent or not, nor can his creditors prevent its sale since they have

no rights therein. And if he sells his homestead and with the proceeds

buys another, the second is as fully protected from creditors as the

other.

From liability for most debts a homesteader is exempt, but not for

all. Generally the homestead is not exempt from taxes, but not

everywhere from fines for public offenses or liability on official

bonds. Debts contracted prior to the acquisition of the homestead and

pre-existing liens in most states are enforceable against the

homestead. So are debts contracted in improving or preserving the

homestead. These include materials furnished, also the wages of

clerks, servants, laborers and mechanics.

=Husband and Wife.=--The law, while regarding marriage as a contract,

adds something more, for it cannot be terminated by the will or

consent of the parties; a contract on the other hand in most cases can

be. To constitute a marriage there must be an agreement or mutual

assent by the parties. This agreement must be made freely, seriously

and not as a joke. False representations of health, wealth, etc., do

not invalidate the agreement, yet these may be grave enough to have

that effect. Consent may be obtained by deceit or compulsion so gross

as to justify a court in declaring that the parties were never legally

married. A person may be too defective mentally to give an intelligent

assent. A subsequent mental weakening would be no ground for annulling

a marriage. An Illinois court recently remarked, it is a harsh rule

that would permit a married man whose wife later in life became insane

to put her away on account of her misfortune. If one were so

intoxicated that he did not act intelligently, he could avoid his

marriage.

A male at common law can marry at fourteen, a female at twelve. By

statute a later date, twenty-one for males and eighteen for females

has been fixed in many states. The right to disaffirm a marriage on

the ground of non-age, unlike the parties to a contract, applies to

both parties.

In this country marriage is regulated largely by the states, though a

movement has been started to make marriage and divorce a matter of

national regulation.

As marriages are of higher character than other contracts relating to

the ordinary dealings of men, even those that are prohibited by law

are for reasons of public policy not always void. They are therefore

not void, simply because the formalities prescribed by statute in

obtaining the license and solemnizing the marriage have not been

observed, when the parties afterward live together like other married

people.

A marriage ceremony is not void though performed by one outside his

jurisdiction, or not having a license obtained at the proper place.

Persons who improperly grant licenses and solemnize marriages may

themselves suffer legally, but their wrongful action cannot be

visited on others. The principle still prevails in most states that a

marriage which is good by the common law, though contrary to statutory

forms unless there is an express prohibition, is a valid marriage. In

a few states a common law marriage is invalid.

Putnam's Handy Law Book for the Layman · 第 9 / 24 段