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DEATH Insurance

should be furnished of the death or deaths, injury or in 1861. juries, accident or accidents, or other event or events on Braunstein which such sum should become payable, and, if required ACCIDENTAL by the directors, a medical or other agent of the Company was to be admitted to see the person killed or Company injured, and to examine the wound or injury received by him, when and as often as, in the opinion of the directors, it might be necessary. Sixthly. Every policy granted by the Company was granted upon the terms and conditions in the deed of settlement upon which the Company was formed, the provisions of which should have the same force and effect as if inserted in the policy. Seventhly. That if at any time it should be determined by the Company, in the manner specified in the deed of settlement, that the Company should be dissolved, a dissolution thereof should thereupon take place, in the manner and subject to the conditions contained in the deed of settlement, and thereupon the insurance effected by the within written policy should cease and determine, but the insurer should be entitled to receive back, from the funds of the Company then remaining unapplied and undisposed of, the amount of the premium within mentioned, provided the same should be claimed within six calendar months after notice of such dissolution should have been given in the London Gazette and in two London newspapers. Averment, that the declaration referred to in the policy was in all respects true, and that the terms and provisions of the deed of settlement, so far as the same were applicable to policies of the Company, were in all respects the same as and no other than the terms and provisions of the policy thereinbefore set forth : that the policy remained and continued in force up to and until, and upon and after, the 21st August, A. D. 1859, and



1861. that, whilst the policy was in full force as aforesaid, the Braunstein plaintiff, to wit on the day and year last aforesaid, while

travelling on a line of railway in Great Britain by a Insurance

passenger train, propelled by steam power, received and Company. suffered bodily injury of a serious nature from a railway

accident directly affecting himself within the meaning of the policy, which accident greatly injured the plaintiff's health and constitution, and he thereby became sick, sore, lame and disordered, and so remained and continued for a long space of time, during all which time the plaintiff was hindered and prevented from attending to his affairs and business.

The declaration concluded by averring performance by the plaintiff, and breach by the defendants.

Fourth plea. That by the deed of settlement of the said Company mentioned in the said conditions printed on the back of the said policy, it was declared and provided that, before payment of the sum insured by any policy, proof satisfactory to the directors of the said Company should be furnished by the claimant of the death or accident together with such further evidence or information, if any, as the said directors should think necessary to establish the claim. And the defendants say that, after the plaintiff had sustained the said injury by the said accident, and had made his claim in writing under the said policy upon the said Company for compensation in respect thereof, the directors of the said Company thought it necessary that the plaintiff should furnish to the said Company certain evidence or information to establish the said claim, of which the plaintiff

, in a reasonable time after making the said claim and before the commencement of this action, had notice, and was then required by the said directors to furnish the




DEATH Insurance Company.

said evidence or information to them ; which the plaintiff wholly neglected and refused to do, although he could and might have obtained and furnished the same, nor did he furnish any proof satisfactory to the said directors of the said injury sustained by him.

Fifth plea. That, after the plaintiff had sustained the said injury and had made his claim in writing under the said policy upon the said Company for compensation in respect thereof, and before this suit, the amount or sum of money to which the plaintiff was entitled, by way of compensation for the said injury, became and was, and still is, a matter in dispute and difference between the plaintiff and the defendants, and although the defendants then were and ever since have been willing to refer the same to arbitration in manner mentioned in the conditions endorsed on the back of the said policy, yet the amount of the said compensation has never been settled or ascertained by arbitration as in the said conditions mentioned.

To the fourth plea the plaintiff replied that the said evidence or information which the plaintiff was required by the said directors to furnish to them, was not evidence or information which the said directors ought properly or reasonably to have required the plaintiff to furnish. And that the plaintiff did, duly and in accordance with the said policy and conditions, furnish, supply and provide the defendants, the said directors, and all other persons, with all due, reasonable, proper and sufficient evidence and information to establish the said claim, and such as ought reasonably to have satisfied the said directors and the defendants. And that the said directors unreasonably and capriciously refused to be satisfied with the said evidence and information so fur




DEATH Insurance Company

nished, applied and provided by the plaintiff as aforesaid ; and in thinking it necessary that the plaintiff should furnish, and in requiring the plaintiff to furnish, the said evidence or information in the said fourth plea mentioned they the said directors acted in an unreasonable and capricious manner.

To the fifth plea the plaintiff demurred, and the defendants demurred to the replication to the fourth plea.

Joinders in demurrer.

Horace Lloyd, for the plaintiff.—The fourth plea is bad. The directors are not empowered by the policy to exact from the assured any evidence they please. The clause requiring evidence satisfactory to the directors to be produced was meant as an instruction to the directors for their guidance between them and their shareholders. Besides, every clause in a deed should, if possible, receive a reasonable construction, and such as shall not be inconsistent with the general intention of the parties : “Expressum facit cessare tacitum.” This clause must therefore be understood to mean such evidence as the directors may reasonably require. In Dallman v. King (a), Tindal C. J., in delivering judgment, says,

Admitting this clause of the agreement to constitute a condition precedent, the next question is, whether the condition has been substantially performed. The stipulation consists of two parts: first, that the work should be done in a substantial manner; secondly, that it should be done to the satisfaction of the lessor. The gist of the agreement is, that the work should be done in a substantial manner; the approval of the lessor was added, for the purpose of enabling him to ascertain

(a) 4 Bing. N. C. 105. 109.




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that the work had been done. It never could have been intended that he should be allowed capriciously to withhold his approval ; that would have been a condition which would go to the destruction of the thing granted, and if so, according to the well known rule, the thing granted would pass discharged of the condition.” Taking for granted, however, that the plea is good on its face, the replication alleges, which is admitted by the demurrer, that the refusal of the directors to receive the evidence offered them was unreasonable and capricious.

Then, as to the fifth plea, the words used in this case do not constitute the reference to arbitration a condition precedent to the plaintiff's right to recover. It is true that, in Scott v. Avery (a), one of the conditions in a policy of insurance on a ship was that the sum to be paid for loss or damage should, in the first instance, be ascertained and settled by the committee of the association; and if a difference should arise between them and any suffering member “relative to the settling any loss or damage, or to a claim for average, or any other matter relating to the insurance," the difference was to be referred to arbitration in a way pointed out: "provided always, that no member who refused to accept the amount of any loss as settled by the committee, &c., should be entitled to maintain any action at law, or suit in equity, on his policy, until the matters in dispute should have been referred to, and decided by, arbitrators, &c.; and then only for such sum as the said arbitrators should award :" and the obtaining the decision of such arbitrators was declared a condition precedent to the maintaining of an action; it was held that these conditions were lawful, and that (even should the difference relate

(a) 5 H. L. Ca. 811; on error from the Exchequer Chamber, 8 Exch. 487. 497.

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