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Colonial Cases

Kirby and Co. v. China Fire Insurance Company, 1878


Kirby and Co. v. China Fire Insurance Company

Consular Court, Hiogo
Flowers,  1878
Source: The North China Herald, 14 December 1878




Before M. FLOWERS, Esq., Consul.



   This was a claim for $45,000 with 10 per cent annual interest from the 10th August, 1878, due on fire-insurance policies.

   Mr. Montague Kirkwood appeared for plaintiffs.

   Mr. St. John Brown for defendants.

   Plaintiffs stated in their petition that they on the 7th March last paid defendants $262.50 for insuring for a year against loss or damage by fire $5,000 on a godown and $10,000 on a dwelling house and store; that they on the 1st. Sept., 1877, paid defendants $125 for insuring for a year against loss by fire $10,000 on goods and merchandize, stored in a godown on lot. No. 17, Kobe, and that the said policy was after wards transferred to the goods stored in a godown on lots No. 13 and 14, Kobe; that they on the 29th March last, paid defendants $347.50 for insuring for a year against loss by fire $20,000 on general stock in trade of a store-keeper, contained in the store and godown on lots No. 13 and 14, Kobe.  It was declared that, subject to the conditions indorsed on the policies, the plaintiffs should be paid by the defendants all such damage and loss as they should suffer by fire on the property in the said policies mentioned, not exceeding the sums therein mentioned. The conditions endorsed on the policies are identical and as far as material to this suit as follows:-

If any loss or damage by fire be sustained, the person insured is forthwith to give notice of such loss at the Company's office, and within one month at the utmost deliver to the Company as exact an account of the particulars as the nature of the case may admit.  If it be required, such account shall be supported by the oath of the party insured, by the certificate of a magistrate, or British Consul, or of some persons who may reside in the immediate neighbourhood of the sufferer, and who may be competent witnesses to the character of the assured and to the fairness of the claim, and further by the production of such books, documents or vouchers as may appear necessary.

   If there be found to be any false swearing, fraud, collusion, or wilful mis-statement on the part or behalf of the person assured, or if it shall appear that the fire shall have been occasioned by any wilful act or connivance on his part, the policy in such case shall be void and the right of recovery forfeited.

   On the 10th Aug., 1878, the insured premises were destroyed by fire, whereby the plaintiffs suffered considerable more loss than the several amounts insured as aforesaid, but although the plaintiffs have frequently demanded payment from defendants, the amount still remained unpaid.  The plaintiffs therefore asked that defendants be ordered to pay them $45,000, with 10 per cent annual interest from the 10th Aug., 1878, and costs.

   The defendants in their answer admitted the insurance, but pleaded that the policies, besides the conditions quoted by the plaintiffs, contain the following Clause V :-

Assurance made with other Companies on property assured by this Company, must be noticed either in or by endorsement upon the policies granted  by this Company.  Persons neglecting to notify such assurances with other Companies will forfeit their right of recovery on this Company,

And X :-

If any difference shall arise with respect to the amount of any claim for loss or damage by fire and no fraud be suspected, such difference shall be submitted to two Arbitrators, one chosen by each party, whose award or that of their Umpire shall be final and binding on all parties.

That plaintiffs effected assurance with another Company upon the property already assured by the defendants, that is to say with the London and Lancashire Fire Assurance company, in the sum of $20,000, and neglected to have such assurance noticed upon their policies. The plaintiffs further neglected to deliver in to the defendants as exact an account of the particulars and amount of the loss alleged to have been sustained, as the nature of the case admitted, and have refused to comply with the request of the defendants that the amount of plaintiffs' alleged loss should be supported by the attestation of competent witnesses and by the production of books, documents and papers'; the defendants have offered to submit the claim for the loss under the 1st ;policy, mentioned in the petition, to arbitration, but the plaintiffs have refused such offer.  For these reasons the defendants denied indebtedness.

(Hiogo News.)

   After evidence on behalf of the plaintiff had been taken,

   The Attorney for the defendant Co. did not call any witnesses, and intimated that he did not intend to give any evidence himself, or put in any documentary proof.

   The COURT, in giving judgment, said it considered the plaintiff had proved that he was entitled to the amount claimed, together with interest thereon at the rate of 10 per cent from the 10th day of August last; and therefore ordered that the defendant Company do pay to the plaintiff the sum of $45,000, together with interest thereon at the rate of 10 per cent per annum from the 10th day of August last, until date of payment, and the costs of the suit.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School