Gorman v The Hand in Hand Insurance Company

• Jurisdiction: Ireland
• Judgment Date: 04 June 1877
• Date: 04 June 1877
• Court: Exchequer (Ireland)

Exchequer.

GORMAN

and

THE HAND IN HAND INSURANCE COMPANY.

Pim v. Reid 6 M. & Gr. 1.

Roper v. LendonENR 1 E. & E. 825.

Ryder v. WombwellELR L. R. 4 Ex. 32.

Elliott v. The Royal Exchange Assurance CompanyELR L. R. 2 Ex. 237.

Scott v. AveryENR 5 H. L. C. 811.

Fire policy — Agreement to refer to arbitration — Evidence proper to be submitted to the jury — Onus probandi — Construction of policy — Materiality of the place in which the things insured are kept.

224 THE IRISH REPORTS. [I. R. Com. Pleas. the reasonable inference would be, that but for the confinement 1877. she would have been at home discharging the domestic duties.. the Defendant, but the second ground mentioned in that ease was KEIGHTLEY. not necessary for its decision, as there was no relation of service at the time of the seduction to support the action. The daughter in this ease left her service in America to return home, and the jury might very reaso4bly find that, upon her return to Ireland, the original service reVived, and that she was prevented from returning to her mother's house by reason of her impending confinement, , which, therefore was the cause of the mother not having her services on her( return. The reasonable inference was that she returned, intending to go back to her mother, but was prevented from carrying 1 out that intention by this circumstance, and she does return hoMe, in pursuance of her original intention, as soon as that obstacle was removed. The manuscript note of Lord. Denman, refer d to by Mr. Roscoe, appears to us to contain a correct stateme of the law. The cause shown must be allowed.. MORRIS, C. J., and KEOGH, J., concurred. Cause shown allowed. Attorney for the Plaintiff : .71f. Henry. Attorney for the Defendant : P. Gallagher. Exchequer. 1877. GORMAN v. THE HAND IN HAND INSURANCE COMPANY. Fire policy-Agreement to refer to arbitration-Evidence proper to be submitted to the jury-Onus probandi-Construction of policy-Materiality of the place in which the things insured are kept. 1. A fire policy provided, according to its true construction, that the DeÂfendants, the insurers, should be liable for loss by fire, unless the fire were the act of an incendiary ; to an action on the policy for loss by fire, the Defendants pleaded that the loss was caused by the act of an incendiary :-Held (1), that May 31. June 1, 2, 4. (1) L. R. 7 Ex. 283. VOL. XI.] COMMON LAW SERIES. 225 the plea was in confession and avoidance, and that, once the Plaintiff showed Exchequer. the loss by fire, the burthen of proving that the fire was the act of an incen- 1877. diary was cast upon the Defendants ; (2), that, it having been left doubtful, a oRmAN upon the evidence, whether the fire happened through accident or design, the v. Judge was right in refusing to direct a verdict for the Defendants upon that Thu HAND IN HAND plea. INSCE. Co. 2. The policy contained an agreement to refer 'matters in difference to arbitration, the performance of which agreement was not, according to the true construction of the policy, a condition precedent to the Defendants' liability ; in an action on the policy for loss by fire, the Defendants pleaded that a differÂence arose as to the amount of the loss, that they were ready and willing to refer, of which the Plaintiff had notice, that he refused to refer, and. that the difference never was referred :-Held (1), that all these allegations constituted no defence to the action ; (2), that the Judge was right in directing a verdict for the Plaintiff upon that plea, although the jury answered, categorically, that a difference as to the amount of the loss had arisen, and was never referred. 3. The policy, according to its true construction, insured specifically the ricks of hay actually in the Plaintiff's haggard at the time of effecting the policy :-Held, in an action for loss of hay by fire, that the Plaintiff was not entitled to recover for the loss of any hay that did not answer the above 'description, e., which was not actually in the Plaintiff's haggard at the time of effecting the policy. 4. The policy, according to its true construction, insured certain " agriculÂtural machines" then being in a specified place, and provided that, in case of their removal from that place without assent, the risk should cease ; in an action on the policy for the loss by fire of the identical machines, it appeared that they were not, at the time of the fire, in the place specified :-/Teld, that the contract rendered the place material, and that the Defendants were not liable for the loss. In such cases, however, the policy must receive a reasonable construction; and the risk upon horses or agricultural implements-the contemplated use of 'which would necessarily render frequent removal from the specified place essenÂtial-does not absolutely cease upon such removal, but ceases pro tempore when they leave it, and re-attaches upon their return. ACTION upon a fire policy of insurance. The plaint averred : That by a policy of insurance, dated the 26th of November, 1875, made by the Defendants and sealed with their common seal, after reciting that the Plaintiff had paid to the Defendants the sum of £4 6s. 9c1., for insuring against loss or damage by fire £2158 on certain buildings and goods in the policy deÂscribed, from the 18th of November, 1875, to the 25th of December, 1876, and had agreed to pay the Defendants on the 25th of December in every succeeding 226 THE IRISH REPORTS. [I. R. year during the continuance of the said policy the like sum of £4 6s. 9d., it was. declared that, subject to the conditions indorsed on the said policy and constiÂtuted the basis of the said insurance, the Plaintiff should be paid out of the capital stock and funds of the said Company the amount of all such damage and loss as he should suffer by fire on the property in the said policy mentioned, not exceeding the said sums so insured thereon respectively as aforesaid, during the said time from the 18th of November, 1875, to the 25th of December, 1876, or at any time afterwards, so long as the Plaintiff should pay the said sum of 14; 6s. 9d. on the said 25th of December in each succeeding year as aforesaid, and the Defendants should accept the same ; and the said conditions as indorsed. upon the said policy the Plaintiff, to avoid prolixity, begs to refer to; and the Plaintiff, at the time of the making of the said policy, and thence until and at the time of the damage and loss hereinafter mentioned, was interested in the said building and goods so insured respectively as aforesaid, to the amount sa insured thereon respectively ; and after the making of the said policy, and whilst it was in force, the said premises and goods so insured as aforesaid were burned, damaged and destroyed by fire, whereby the Plaintiff suffereddamage, &c. To -which the Defendants pleaded (1). That one of the conditions, amongst others indorsed on the said policy of insurance, was, that the said policy did not cover loss or damage by fire to. property occasioned or happening through its own spontaneous combustion, or, &c., by or through, &c., the act of an incendiary : averment, that the alleged. loss and...