ON THE

LAW OF INSURANCE

FIRE, LIFE, ACCIDENT, MARINE

WITH A SELECTION OF LEADING ILLUSTRATIVE CASES

AND

AN APPENDIX OF STATUTES AND FORMS

BY

GEORGE RICHARDS

OF THE NEW YORK BAR AND LECTURER ON INSURANCE LAW
IN THE SCHOOL OF LAW OF COLUMBIA COLLEGE

SECOND EDITION.

H.L. Miegus

NEW YORK AND ALBANY

BANKS & BROTHERS, LAW PUBLISHERS

1893

PREFACE.

THIS book was designed primarily for the class-room, and is the result of an effort to combine the advantages of the two more prominent methods in use for teaching law, commonly known as the text-book and case systems, the comparative merits of which have recently aroused wide-spread and thoughtful attention.

The appearance of Langdell's Select Cases as a substitute for Parsons on Contracts, at Harvard Law School, in the year 1871, and the subsequent abolition of text-books from their curriculum by the law faculty of that great university, marked a conspicuous departure from pre-existing methods of legal instruction, and gave impetus to an exchange of views among those interested in education which has continued with increased earnestness.

By the old method, the student is expected to acquire a knowledge of the elements of the law by memorizing the pages of a general treatise, which, in the estimate and according to the views of its author, contains a compendium of the whole body of law upon the given subject. By the other method, the student is made acquainted with original sources of legal authority; namely, leading decisions and opinions by the courts upon the given subject, together with the precise statement of facts upon which the opinion in each case is based, substantially as recorded in the official reports.

These selected cases, edited, arranged, and printed in a book for this purpose, are put into the hands of the class, and are made the subject not only of study and recitation, but also of a free discussion in the class-room under guidance of an instructor, with a view to evolving, illustrating, and emphasizing the important principles established by them, and also other analogous and closely allied principles which may at the same time be conveniently considered.

The former method gives a synopsis or brief outline of many

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cases; the latter sets forth with exact detail a few selected cases upon leading points illustrative of essential principles. The former method is more synthetic and abstract, the latter more inductive and concrete. The former is more theoretical, and, in a sense, more scientific; the latter, while embracing a narrower range of decisions, is, with respect to the particular adjudications and principles which it includes, more definite, practical, and thorough. Each of these methods, no doubt, possesses points of superiority over the other; and either is, in my judgment, for purposes of giving instruction in most branches of jurisprudence and for the average American student at law, immeasurably preferable to a lecture system.

A scientific presentation of a subject in its entirety, by a competent master, must be of value to a student. Within the broad scope of a general treatise, principles can be concisely defined and conveniently arranged, not only for purposes of study in the first instance, but also for subsequent reference and review; the relations of different cases to one another can be explained, decisions seemingly inconsistent can be harmonized, historical developments can be briefly but adequately summed up, and many particulars and distinctions of greater or less importance, which could not possibly be touched upon within the bounds of any selection of isolated cases, can be enumerated or brought within the reach of general rules.

For example, within pages 133 to 196, inclusive, of this volume, the meaning and legal effect of every clause of the New York standard fire policy are considered with some degree of comprehensiveness, together with numerous citations of authorities. Little of this matter probably could be omitted to advantage; and yet, to enforce or illustrate all the propositions of the text contained in these sixty-four pages with actual cases reported in full would increase the length of the work to several volumes, making it altogether too bulky and expensive to meet the more immediate aim of the book.

If, then, the student's memory were absolutely infallible, and if extent and variety of legal formulas were the only desideratum, and provided the general treatise were a sufficiently good one, the text-book system might well claim to be without a rival; and, as it is, it offers, I think, characteristic advantages which nothing else can supersede.

But, on the other hand, it is to be observed, in the first place, that a good text-book upon a given subject is not always available, and especially is this apt to be the case if the branch of law to be considered-like insurance law, for instance-is one which is in process of rapid development. Owing to the large number of independent tribunals in the different States, and the enormous multiplication of reported cases, involving decisions more or less inharmonious with one another, it is a harder task to write a scientific treatise upon a general branch of American jurisprudence than it used to be in former years, when, with a limited field to traverse, the learned juridical author led rather than followed the courts. Accordingly, as is well known, the cautious practitioner of modern times uses his text-book as an index or digest of cases and subjects, rather than as a safe and final exposition of the law, and is seldom satisfied without supplementing its perusal with a resort to the more reliable sources of authority to be found in the reports themselves.

But, in the second place, the solution of the question of ways and means how most effectively to inculcate legal principles may not turn altogether upon the excellence of the text-book that happens to offer itself for use; since at best a text-book is only a reflection from the law, and not the law itself. It is, for the most part, as has been remarked, nothing but a collection of actual decisions from many cases. Here the abridgment is not in the number of cases, but in the form and substance of every one; and in order to bring the reports of all the adjudications cited in the text within the compass of a volume, each case must be condensed to a point almost beyond recognition. Its title and individuality must be sacrificed. The exact and concise statement of material facts, prepared with all the experience and skill of the official reporter, without a careful examination of which no judge or lawyer would venture to estimate or pass upon the validity or significance of the decision, must be seriously curtailed or altogether dropped, for lack of room. For the same reason the opinion of the court, although it may be a monument of legal learning and profound thought, and may offer a most concise model of sound and convincing logic, and although presumably it was deemed necessary for the elucidation of the decision or else it would not have been written, must likewise be omitted.