I think this appeal fails, though the reasons which have led me to this conclusion are somewhat different from those which are relied upon by the Scottish Courts.
The late Mr Hunter was injured in a railway accident on 28th December 1906, and died the next day. He had insured with the appellant Company, the defenders in this action, and the questions were whether the risk under the contract with the defenders was a subsisting risk on 28th December 1906, and whether claim was made under the insurance contract within twelve months of the registration of Mr Hunter's name by the defenders, whatever “registration” may mean.
In view of these controversies it is necessary first to ascertain what the insurance was. The defenders inserted in Letts's Diary what they called a coupon insurance policy, announcing that they would pay Â£1000 to any person killed in a railway accident (or under other circumstances immaterial to this case) on certain conditions, one of which was as follows:—“Provided that at the time of such accident the person so killed or injured was the owner of the publication in which this insurance coupon is inserted, that such person had duly caused his or her name to be registered at the head, office of the corporation in Perth, and had paid the fee for registration and cost of acknowledgment, and that notice of claim is sent to the registered office of the corporation at Perth within fourteen days of the occurrence of the accident, and that such claim be made within twelve months of the registration of the holder's name.”
Nothing beyond this appears in the document which fixes either the commencement of the insurance or the duration of it, or the date of its expiry.
This singular document has been regarded by all the Judges who have heard this case as an offer by the defenders which can be accepted, and a contract so made, by any person who complies with the conditions. I entirely agree with this view. It is admitted that Hunter did comply with all the conditions necessary to create a contract. He sent on 25th December 1905 the form of application for registration, called the coupon slip, with the necessary remittance. This was an acceptance on his part, and the contract of insurance, in my opinion, commenced, if not on 25th December 1905, when the letter was posted, then at all events on 26th December, when it was delivered, or on 27th December, when it was actually received by a person in defenders' employment. I will not enter upon the nice point when a contract is concluded by correspondence. On 27th December 1905, at latest, the risk attached; and it attached whether or not registration was effected on that day, because if it was not effected, the only persons to blame were the defenders. The late Mr Hunter had fully done his part, and they could not take advantage of their own default.
That being so, how long was the insurance to continue? On this the documents are silent, except for the provision which I have quoted, that the claim must be “made within twelve months of the registration of the holder's name.” This involves that when once the defenders have registered the name, no liability can arise more than twelve months after the date of registration. On the other hand, it is quite possible that the accident may have happened within the twelve months and yet no claim been made within the twelve months, which gives to the defenders the advantage of the time elapsing between accident and claim. If, however, there is no registration, then the time during which the liability continues is protracted, and protracted, as it seems to me, without limit; or if registration is delayed, then the cesser of liability is deferred accordingly. The defenders had it in their power to abridge the period of liability by instant registration.
In considering, therefore, whether this contract of insurance, which commenced at latest on 27th December 1905, was still in force on 28th December 1906, the date of the accident, and whether the plaintiff can succeed, two things are to be ascertained, first, what was the date of the registration of Hunter's name; secondly, on what date was the claim made.
Registration of the name is not whatever defenders chose to call it, but must mean something in the nature of a record which may be available for use if disputes arise. It was not enough that a date stamp was impressed on Hunter's coupon slip on 27th December 1905, nor that this slip was temporarily placed in a bundle with others on which the same fee had been paid, nor that the daily sum total of remittances, including Hunter's 6d., was entered in a book. No name whatever was entered in any of these processes, and no record of a name preserved except for a few days.
Nor do I think the acknowledgment with a reference number, dated 29th December 1905, but sent to Hunter on 3d January 1906, was a registration of his name. It was merely a receipt for the form or coupon slip he had sent. But I do think that when Hunter's coupon slip was taken from the bundle in which it had been placed temporarily, and was placed in another bundle alphabetically and that bundle filed to be kept “until the liability thereon expired” (to use the words of the joint minute of admissions), then the name of Hunter was registered. It then for the first time appeared on a record adapted and available for reference, and permanent so far as permanency was required. It does not appear in the evidence when that was done, but as the bundle in question (No. 22 of process) contained other coupon slips dated as late as 31st December 1905 and 1st January 1906, it cannot have been done before 1st January 1906. Very likely it was not done till later—almost certainly after 1st January, for the bundle includes a slip of that date. Now, the claim was made on 2d January 1907, and the defenders have not proved that registration took place before 2d January 1906, or indeed at what time it did take place.
It is a matter peculiarly and solely within their knowledge, and the burthen is on them to prove this if they can. So far as the evidence goes, the fact that they did not send their letter of acknowledgment to Hunter till 3d January 1906 seems to shew that the Act which constituted registration was not prior to that date, for in the joint minute of admissions the process which I regard as the registration is treated as a thing subsequent to the sending of the acknowledgment.
Accordingly, I am of opinion that the registration must be taken to have been within twelve months of the claim, not merely because the defenders have failed to prove the contrary, but also because upon a balance of probabilities I infer that was the fact for the reason stated. By the 10th paragraph of the joint minute I am entitled to draw inferences of fact.
It follows that the accident occurred within the period of insurance, and the claim was made within twelve months of the registration.
Lord James of Hereford.
I also concur.
I have felt some doubt originally with regard to this case, owing to the vague terms in which the policy is couched and the manner in which the Company dealt with the coupons; but, having read the judgment which has just been delivered and the judgment which is about to be delivered by my noble and learned friend on my right, I concur in those judgments.
Lord Shaw of Dunfermline.
The respondent's late husband, Adam Turnbull Hunter, was injured in the Elliot railway accident on 28th December 1906, and he died on the following day. Messrs Letts, publishers of a diary, had made arrangements which included the payment of Â£1000 to the appellants, an insurance company, under which purchasers of the diary might insure, inter alia, against accident under the conditions contained in a document which is called a coupon insurance policy. The provisoes of the policy are five in number. It is admitted that four of these provisoes were complied with, namely, (1) that the deceased was the owner of the Letts publication; (2) that he had duly caused his name to be registered at the head office; (3) that he had paid the fee for registration and cost of acknowledgment; and (4) that notice of claim was sent to the registered office within fourteen days of the accident. But it is said that the fifth proviso has not been complied with, namely, “that such claim shall he made within twelve months of the registration of the holder's name.”
This is a difficult question. I observe, in the first place, that while the terminus a quo of this insurance contract, namely, the date when the deceased accepted the open offer contained in the printed policy, is definite, the terminus ad querm is left indefinite. Why this should be so I do not know. It would have been easy to stipulate that the insurance should last for twelve months from the making of the contract, and to stipulate a time within which, after the expiry of the twelve months, claims must be made. This was not done. There is no time stated for the duration of the contract. What is provided is that notice of a claim is to be sent to the registered office within fourteen days of the accident, and that “such claim be made within twelve months of the registration of the holder's name.” When registration is to take place and what it is to consist of are not stated. It may be assumed that if registration took place promptly upon the execution of the contract these contracts would at least in practical effect have lasted for less than twelve months; because, in the event of a person dying at the end of a year from the execution and simultaneous registration of the contract, it is pretty clear that some days might naturally elapse before the notice of claim under the policy was sent forward. In all these cases the insurers under this policy would stand free, and they could successfully resist the argument that they had made a twelve months' insurance.
This appears to me to make it incumbent upon the Court to be very scrupulous as to fixing the date of registration. The circumstances of the present case are somewhat peculiar. In ordinary transactions registration would assume a register of some separate kind, and in a ledgerised form familiar in accounting. In this case there was no such book. It is not, however, necessary for me to pronounce upon whether that being so and there being no separate register there was therefore no registration, although I agree that the mere tying of the bundles of applications together when received was not registration, and that it is not proved when the subsequent reassortment and alphabetical arrangement of the contents of the bundles took place. But I think one fact in this case has been too much kept out of view, namely, that when the insured in such cases filled up the printed request for registration he enclosed a remittance “also to cover cost of acknowledgment.” I think that when that acknowledgment was received the insurers and the insured were put upon a proper business footing, that is to say, that the registration was then known to both parties and taken to have been accomplished as at the date when the acknowledgment was made and in due course dispatched by the insurer to the insured. It would be of the worst example to permit acknowledgments to be made which narrate historically that registration had been achieved, it may be, months before. And, in short, I think the insurers under such a policy are liable to a person insured for twelve months after they have accomplished and acknowledged the registration in fact. On 3d January 1906 the appellants' general manager wrote to the late Mr Hunter, “Enclosed please find official acknowledgment of the registration of your coupon.” It reached Hunter on 4th January. On 2d January of the following year, that is, within a year, Mr Haddon, Mrs Hunter's agent, wrote to the Company giving notice of the accident, death, and claim. It appears, however, that the date of the “official acknowledgment,” which was enclosed with the letter of 3d January 1906, was 29th December 1905, and the Insurance Company plead that they are thus in the position of having officially acknowledged the registration of the insurance more than twelve months prior to the notice of death. After much consideration I do not think this argument is sound. I think an acknowledgment is not something private in the books of the Company, but is an acknowledgment to the insurer; that an “official acknowledgment to Adam Turnbull Hunter” is of no effect so long as it is lying in the archives of the Company or until it is in course of transmission to the addressee; and, finally, until this acknowledgment is not only made, but in the course of transmission, there has been no datum arrived at upon which both parties to the contract could rely as the definite and specific time to which, namely, until twelve months thereafter, the insurance should run.
I may further say that in a transaction of this kind it appears to me that the onus of satisfying the Court as to when registration was de facto accomplished rests upon the Insurance Company, that they have left that matter in doubt, and that I concur with the judgment of the learned Judges of the First Division upon that point. But I hold further, as above stated, that the element of acknowledgment entered into the bargain of parties, and was indeed the crucial business point with regard to which the running of liability could be measured.