1924-09-13 — Page 4

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DAILY PRESS, SATURDAY, SEPTEMBER 19TH,

IMPORTANT INSURANCE JUDGMENT IN JAPAN.

THE EARTHQUAKE. CLAUSE '

UPHELD,

1924

MAGISTERIAL PEACEMAKER. CHINESE COUPLE WHO COULD

NOT AGREE. ».

*

41

HONGKONG FOOTBALL

ASSOCIATION.

YESTERDAY'S MEETING.

EL

the details of those general insurance conditions at the time of making the con- tract, that is no reason why, the above finding should be modified, fon. after he expressed an intention to be bound by Before Mr. Hamilton at the Kowloon Mr. J. McCubbin presided over a fall those conditions, as found by the Court, Magistracy, yesterday, a Chinese woman meeting of the Hongkong Football Asso We have received a copy of a translait is impossible to admit, in default of sued her husband for maintenance, ciation lust evening, in the Board Reora tion of the pleadings and the judgment proof to the contrary, the existence of an The man said that she could have board of Messra. Shewan, Tomes & Company, delivered in the Tokyo District Court ineffectual mental reservation to the con- and lodging whenever she wanted it, bab The following were also present: Chyt a case brought against the Nippon Fire

trary. And neither in view of its legisla that she bad left him for several months. F. Wheeler, Capt. Barrett, RA, Lieut Insurance Co.

tive history nor from the view point of The woman, in the witness-box, stated Cottan, East Surreys, FSM Cook, grammatical interpretation, can Art. 419 that she was the man's kit fit (No. 1)|R.A., Chief Writer Vincer, R.N., and of the Commercial Code be regarded an wife. He had one conenbing. He was Messrs. May, MeTarish, Smith, R. Hall, a provision connected with public wel fare. In view, moreover, of the inter-in the habit of knocking the witness F. Wheeler. R. M. Omar, W. Ogley, H. national nature of insurance and of the about. Witness lived with the defendant Wavish, H. Gingham, W. Post. W. E thecries of insurance, it is undoubtedly proper to regard the Article as an op-in his boat for eight years, entil he took Wakeham, Mo Hing, C. F. Feun, Lai tional provision, and it is a matter of a concubine last year and set up an Wai Tong and the bosorary secretary (W. course that the said general insurance establishment on shore. Witness remain E. Hollands). conditions should be binding on the pinned on the bout, when her husband occa-

After the notice calling the meeting tiff. The court therefore finds thai..un September 25th, 1994, an agreement was sionally came and stayed with her. In and the minutes of the last meeting bad formed between the parties for making consequence of his ill-treatment. the witheen read, the Secretary informed the the insurance contract in question sub- ject to the defendant company's generalness left, the boat two months ago and meeting that he had received a letter conditions of fire insurance. This being went to live with her mother.

from the Chairman of the local “ Poppy The man said that his wife had a Day, Fund" asking if it would be pes- 39, then according to the earthquake insurance conditions the defenduct is

The plaintifs argument was chiefly based on the invalidity of the Earthquake Clause appearing among the printed on- ditions on the back of the policy but the judgment was decisively in favour of the Nippon Fire Insurance Co. on every point and no appeal has been lodged,

As this case is of great importance and likely to be of general interest we give below the Court's Reasons" for its

decision →→

REASONS.

ነ

Are insurance was entered into by and clause as contained in Art. 17 of the said I the money and food she wanted on the sible for the Association to arrange a

(2) The plaintiff contends that the said

her marriage she had told him that the had lost her mother.

An elderly and corpulent Chinese woman was produced by the complainant us her mother, and the defendant, on being confronted with her, said he had never seen her before.

His Worship, adjourned, the case for fortnight, advising the woman to go back to the bout to live, and the man to provide for his wife properly and not to assault her.

explanation.

charity match on Armistice Day, the gate being set aside to swell the local fund. The meeting were in favour of a match being played and it was arranged for the Services to meet a team chosen from the Rest of the League to play on the Club ground, subject to the approval of the H.K.F.C., the gate being devoted to the Poppy Day Fund.

It was announced that the following Rubs had aflated to the HKF.A. for the coming season:-H.K. Club, Kow-

·loan, Tamar, R.G.A., East Surreys, H.K. Police, South China, Club de Recreio and St. Josephs.

The following were appointed to the Referees Committee:Lieut. Cottam, Messrs. Wakeham, Hall, Smith, Vincer and Ip Kan with Mr. May as honorary secretary to the Board

OPENING MATCHES. "

The Chairman announced that two cups, had been promised the Association, one' by the Sunday Herald to be styled the

by the Lee Wah Company, to be played International Charity cup, and the other chosen yearly by the for hy teams H.K.F.A. The teams competing this sea son for the former cup would be teams Scotland and representing England, China. For the Lee Wah cup, toaME would be chosen from the Army, Navy,

(1) It is disputed by neither party that ou September 29th, 1929, a contract of between the plaintiff and defendant on the buildings named by the plaintif and obviously without any liability for the boat until she went away. She said she for the sum of Y5,000 as affirmed by the damage caused to the plaintiff by the was living with her mother, but before plaintiff, that the plaintiff paid the pre-fire in question. inium to the defendant, that the policy for the said contract was issued and de- earthquake exempting clause cannot he construed to he binding upon the parties livered by the defendant to the plaintiff to the action, innstach it lacks propriety subsequent to the amking of the con- tract, and that the buildings were burned and rationality in view of the conditions But law being down during the currency of the said con of existing social life. tract. And it is affirmed by the plaintiff embodied in statutory law, it is impos- himself that the burning was due to the sible to recognise what is called general As a question of legal fire arising from the great earthquake or universal law. which occurred in Tokyo on September interpretation, therefore, it is a matter certain thing 1st, 1923, whereas Art. 17 of the defen of course that whether dant company's general conditions of fire lacks propriety or is irrational fruin a view should be adjudicated insurance as to the existence of which social point there is no dispute between the parties upon with reference to the proper inter- -provides that the defendant company pretation that is to be placed on the The contention of the plaintiff on this is not liable to indemnify any damage law; it is inadmissible for a Court of point is therefore also unfounded. The caused by fire due to earthquake whether Justice to go beyond the bounds of its plaintiff has further contended that the directly or indirectly and its spread or proper functions that is, the interprets earthquake claus is void inasmuch as otherwise. The Court will therefore con- tion and application of the law-and to it was never imagined at the time of sider whether or no the said general in indulge in judicial legislation or seek making the contract that a fire due to sitrance conditions are binding on the standards of judgement upon the case in earthquake should arise during the term parties to this action. The general con hand in morality or theory, according to of currency of the insurance in question, ditions of insurance is a document which the so-called theory of free law." The hut that such contention is unfounded is same remark applies to the interpretation each insurance company is required to prepare in advance and annex to the of the intention of the parties. The Court obvious in the light of the foregoing is empowered to exercise proper free dis application when it applies for a licence

(4) The plaintiff bas also contended for the conduct of insurance, business crtion agreeably to general currents of that the earthquake clause should be set The permission of the competent authori thought only within the limits prescribed aside for the maintenance of the "social ties is essential to it. and it determines by the law. It may consult equity, con-life" as it is offensive to the moral sense the contents of an insurance contract in crete propriety or reason only is so far of the component members of society, ordinary and general circumstances, that as it can do so without runcing counter Rut freedom of contract is the rule, and is, where no special stipulations to the to or frustrating the objects of the law if the earthquake clause is clear and de- Civilians and Chinese. It was also - contrary are entered into with the other Consequently, under the existing Civil finite in its wording, and it is also clear nounced that South China would play party. According to the Insurance Law, Code and Commercial Code, under which that it is not a matter inconsistent with the H.K. Club a charity match on Satur it must be suitably made aut and ap- contracts cap, as a rule, be freely enter the law, as, shown by the foregoing find-day, 27th inst, on the Club ground, the proved of by the competent authorities ed into, it is a matter of course that ing af the Court, the clause cannot be gate being devoted to fund now being raised to relieve distress caused by the as one of the conditions for obtaining a

within the limits permitted by the law regarded as contrary to morality even

fcode. business licence; while according to the the parties should be able freely to enter though, owing to the occurrence of an

A lengue meeting followed, the chief Regulations for the Euforcement of the into a contract, and that the law should earthquake which is notorious to the

business of the evening being to fix a Insurance Law, either the full text of the bind the parties according to the terms Court, the said clause has produced re.

date for the opening of the league sea- general conditions must be entered in the of the contract provided that the subsults, unsatisfactory and unfavourable to

son, which was fixed for the first Satur- policy, or a document containing the same stance of the contract is definitely defined some of the component members of so-day in October. Eight teams have cn- must be annexed to the policy. In prae- and that it is entered into within the eiety, considering that it is inferable red for the senior division and ten for tive, there are quite a number of cases limits recognised by the law. And insur from the foregoing explanation that it bas the junior. The draw for the opening where special conditions of insurance are ance, whether commercial (economic) or operated to the advantage of persons atch resulted as follows:-Police not agreed upon by the parties to a fire mutual, is a business that must necessarily insured against fire other than due to RG.A., Sookunpoo; Kowloon East insurance contract, and where the insure carried on in such a manner that a earthquake. The arguments adduced by Surreys, Kowloon; Tumar & H.KFC, ance contractor, without being fully aware large number of persons who are exposed the plaintiff incidentally to this point South China A "South China"," of the contents of the general insurance to the same risk form a body, and any are, therefore, all unfounded.

Club ground if availble. Owing to the. conditions of the company to which he loss that may be sustained by any of the

(5) The plaintiff has further contended late entry of St. Joseph's the opening applies for insurance, enters into the con- meinbers being distributed among the that from the view point of the insurance matches for Division II. will be drawn tract with the intention to abide by these members of such body and compensated systern, too, the earthquake clause is later. general conditions, making his applica at any time, the possible sufferers are void; but, as admitted by the plaintiff tion merely by voluntarily affixing bis seal relieved from anxiety in normaal times himself, insurance is founded on a statis- to an application form prepared by the It must therefore he rationally conducted tical basis; and that commercial com- insurance company. The fact is that the on the basis of statistics and mathe-panies engaged in insurance business particulars provided for in the general matical principles. To this end, provision conduct their business entirely on the insurance conditions are elaborate and was made for relieving the insurance com basis of such statistics is not only clear voluminous and that some of them are of pany from liability for any loss occasion from the foregoing explanation, but easily such a nature that they are intelligible ed by an earthquake-fire, it being held inferable from the interpretation of the only to persons possessed of technical rational and reasonable for the conduct Insurance Law and the Regulations for knowledge of insurance: So the insurance of fire insurance to exclude from its scope the Enforcement of the Insurance Law. contractor, having canɓdence in the other fires occasioned by earthquake which The more carefully and minutely this party, that is the insurance company, works immense damage and whose prob- statistical basis is built up, the sounder acts in the belief that no disadvantageable rate of occurrence cannot be ascer the conduct of insurance business will be

The so-called Can accrue to him even though he be tained seismologically.

Therefore even if the, statistical basis bound by the insurance conditions fixed earthquake clause is clear and definite in relating to earthquakes is unreliable and by the company. If the insurance, con- its meaning and must be deemed "a pro- the supervision exercised by the com- the Second XI., Mr. W. H. Edmonds; tractor takes this line in entering into a por and rational clause from a social † contract with an insurance company, it point of view; and therefore, it shauk quite at grid in this respect is not and Captain of the Third XI., Mr. A. is because he believes that as the com. not be regarded as a "matter prejudicial quite as it should be, or even if the re- sources of the insurance companies are petent authorities are required to pay to public erder or good inorals in the small and there are points about their bringing up the playing membership to Teo new playing members were elected. due attention to the supervision of in sense of Art. 60 of the Civil Cude, but as statistics which are inaccurate and are surance companica, the provisions made a matter permitted by the law. Besides, not fully considered, that does not im

approximately "fifty. by the insurance company must, the from Exhibita "B" No. 11 and 2) and mediately constitute an infringement of whole, be proper and appropriate, And No. 2 it appears that the defendant com- the principles of insurance law, and in- it is reasonable to think that the general pany conducta insurance business on the validate the earthquake clause. The insurance conditions having been pre basis of calculation from which fires due plaintiff has particularly emphasised the pared mathematically in respect of a busi- to earthquake are excluded, from its point point that the insurance company has ness conducted by the insurance company of view, therefore, the tipulatios in the been unjustly enriched by the premium on the rational basis of statistics and earthquake clause is obviously an essen- owing to the occurrence of the earth Hongkong Daily Preas in the year 100% The following lines appeared in the duly approved by the competent authoritial condition of the insurance contract quake-re, but the company cannot be bus they seem to be as applicable to day ties, it does not contain any clause ob in question, and it is impossible to recog- considered to have made any unjust en- jectionable to either party to the contract.nise the existence of an insurance con- richment as it was held liable to in-lished.]

as they were when they were first pub- So if the parties have entered into antract from which the earthquake clause demaify damages under the insurarice insurance contract without specially ex is eliminated, as contended by the plain contract during the period between the pressing an intention not to abide by or tiff. The contention of the plaintiff that making of the contract and the outbreak follow the general insurance conditions an insurance contract, is a submissive

unfounded.

they are, in default of proofs to the con- contreat" is therefore unfounded. After of the earthquake-fire. According to the trary, to be presumed to have entered having made the insurance contract a plaintiff's logic, the insurance company into the contract with the intention of question subject to the said clause, it is would have to be considered to have been being governed by those conditions. More inadmissible for the plaintiff to plead unjustly enriched by the premium accept over, it is admitted by the plaintiff tim equity against the said clause even if it ed each and every time a term of insur- ance has expired without the happening self that in making the contract in ques-bas.operated to his disadvantage because tion he voluntarily sent in to the defen- of the outbreak of a fire due to earth of any accident; but it requires no argu- ment to demonstrate that such reasoning dant company an application in writing quake. Perhaps, as contended by the is incorrect. The contention of the plain- containing a statement that he was pre- plaintiff, the general conditions of insur- tiff on this point is, therefore, likewise pared to enter into an insurance contractance may contain some clauses which are subject to the general conditions of fire merely formal and by which the parties insurance; and whereas he himself de-have no intention to abide, but that cocussed above, the plaintiff has advanced (6) In addition to the arguments dis clares that the policy for the insurance aideration does not warrant the conclusion in question was forwarded by the defen.that the earthquake clause is put further detailed arguments in support of dant company to him on September 30th, essential condition of the contract under the alleged voidness of the general con- 1000, that is, five days after the date on consideration, as clearly shown in the ditions of fire insurance, but they are all which the contract. was made, and that foregoing explanation. The contention of either arguments drawn from sentimental the defendant company's general insur- the plaintiff under discussion is therefore iurisprudence or those coging within the ance conditions were printed on the back rejected.

sphere of legal philosophy, and it does of the said policy, neither assertion-nor (3) the earthquake clause coastinot are much argument to show that proof, has been made or produced in the tutes an essential element of the insur they must all be rejected as being ined- present case from which it is to be gather ance contract in question, as pointed out missible as bases of a legal claim before ed that any objection or question as above, if that clause was void for the a judicial court. raised by the plaintiff in regard to the reason claimed by the plaintiff, the whole The causes of the plaintiff's demand in said conditions during the period of nearly contract would also be void, irrespective this case being thus all unfounded, his eleven months intervening between his of whether or no an insurance contract is claims must be dismissed without going to receipt of the said policy and the hap to be regarded as a sort of " submissive " the trouble of adjudicating upon the pro- pening of the casualty in question. Such or accessory contract, an affirmed by the priety or impropriety of the amount of being the case, the plaintiff must be deem- plaintiff, because there is no reason to the demand. Judgment has therefore ed to have voluntarily entered into the believe that the defendant was faulty in been given as per the formal adjudication contract with the intention of being making and considering the said clause above, the incidence of the costs of the governed by the general insurance con- an essential condition of the contract suit being fixed in accordance with "Art. ditions, and even if he were unaware of (Continued on next colama.)

72 of the Code of Civil Procedure.

J

HONGKONG HOCKEY CLUB,

FIFTY PLAYING MEMBERS.

The Annual General Meeting of the

Hongkong Hockey Club was held yester day evening at the Hongkong Cricket Club headquarters, the newly-elected Committee being as under- DS.U.; Captain, Mr. E. J. E. Mitchell; President, Lieut. Col. L. G. Bird, Vice-captain. Mr. W. Woodward; Hon. Becretary, Mr. P. W. F. Mills; Hon. Treasurer, Mr. G. H. Pierey; Captain of

Bower

BALLADE OF HONGKONG WATER.

Perhaps rain may be falling When this in print I see And need for eaterwauling

Will all be lost to me; Yet all men must agree

(Tho' now the, bold galosir Squelch through the flooded les)

This sort of thing won't wash 1

For weeks past we've been bawling

For water, piteously, The matter overhauling."

With thoughts removed from

glee!

'Tis trite as A.B.C.

Those who deny talk boah- Bring it from Kowloon, free;

This sort of thing wea't wash 17t

What was the use of trawling

In puddles thick as gheo For liquid black, appalling,

"From which a pig would fee? The very laundress, she

In Chinese whispers." Gosh, Mo no can use he,

This sort of thing won's wash 1'*

ΥΕΑΥΟΙ

Oh mighty Powers that be,

Disdain this pisint to quash— Four cuffs are brown-as ted

This sort of thing won't wash b

FRANCOIS VILLON.