Scottish Court of Session Decisions

Lord President.—(After narrating the facts)—Referring to the conditions under which payment is made and which are precedent to payment being made, it is quite clear that all these conditions have been complied with, with the possible exception of one, upon which the argument in the case turns. It is quite certain that Mr Hunter was the owner of the publication and that he had paid the fee for registration. It is also quite certain that notice of claim was sent to the registered office of the Company within fourteen days of the occurrence of the accident. The point on which parties are not at one was whether such a claim was made within twelve months of the registration of the holder's name.

I may say first as regards the construction of the sentence that I do not myself think that the construction of the sentence really causes any difficulty. I think it is quite clear that there are two things which are separate and which must both be complied with. The notice of claim must be sent within fourteen days of the occurrence of the accident, and the claim must also be made within twelve months of the registration of the holder's name. The question in this case is, was the claim made within twelve months of the registration?

Reading this policy, one would naturally suppose that the Company kept a register in which were duly inserted these applications as they arrived, and if a register was regularly kept, then, subject, of course, to objections based upon what might be called laches of the Company in not inserting the applications, I take it that the date of insertion in the register would be conclusive. But, curiously enough, it seems that the Company keeps no register in the proper and strict sense of the word, that is to say, it does not keep a regular register-book in which these applications are entered as they come in. Accordingly the real dispute here has turned on the question of what particular action of the Company it is that is equivalent to registration. The practice of the Company is detailed by a witness who was examined, one of the female clerks of the Company, and it is also set forth by the Lord Ordinary. The Company has argued that the true date of registration is the date of receiving the application, when the date is put upon it with an impressed stamp.

I think that in a matter like this the Company must be held to the solemn statement which it made, no doubt after full consideration of the matter, when the pleadings in the case were adjusted; and when I go to the pleadings I find this in answer 3:—“Explained that by the practice of the defenders all coupon slips received from holders of Letts' Diary with the necessary remittances are on receipt registered by being stamped, dated, and filed, and thereafter acknowledgments are sent out on printed forms intimating to the coupon-holders that they have been duly registered.” There being no regular register I think that by that statement the Company have tied themselves down to the view that registration is only fully effectuated when the slips are stamped, dated, and filed.

It appears from the evidence that it is not quite easy to say of any particular application exactly when it was filed, because practically the officials in the defenders' office get through the work as it comes. That is to say if there are a great many applications it will take longer to get them all stamped, dated, and filed than if there are few. In the same way there having been at this particular time a holiday immediately after the application came in, the operation was no doubt delayed more than it would otherwise have been.

In this state of uncertainty—there being no regular register, and there being no possibility of being absolutely certain when the operation is complete—I think the Company cannot complain if it is taken as against them that the operation is complete when they inform the other party that it is complete. Accordingly, I think here the only date of registration which it is safe to go upon is the date when it was communicated to the deceased—namely, the 3d of January. If that is so, that, of course, ends the case, because the notice of claim is still in time, as it is still within the year.

Accordingly, I come to the same conclusion as the Lord Ordinary, although not upon precisely the same grounds. And, in particular, I cannot quite agree with him as to the question of contract. I think the contract here was undoubtedly made by the sending of the deceased's communication to the insurance company; in other words, I think that the communication embodied in the coupon is an open offer which is made into a contract by acceptance, and that it does not require a further acceptance on the part of the Company. But that does not really matter, because according to the terms of the contract the claim has still to be made within the year, and for the reasons I have explained I think the claim was made within the year of registration. Accordingly I am of opinion that we should adhere.

Lord Kinnear.—I also think that the Lord Ordinary has come to a right conclusion. In my view there was a valid contract of insurance completed between the Company and the deceased Mr Hunter by his acceptance of the Company's offer to insure. If the offer expressed in the terms of the Company's advertisement had been made directly to Mr Hunter as an individual, and he had accepted it in terms for himself, there could have been no question whatever as to the completion of a valid contract. It is true, as the Lord Ordinary points out, that the document containing the offer is not probative, but it can be proved, and as matter of fact in this case its authenticity is not disputed.

If that be so, it makes no difference, in my opinion, that instead of being addressed directly to an individual it is a general offer made to all persons to whose knowledge it may come, which may be accepted for himself by anyone who receives it.

It is suggested that this is making a contract by an advertisement, but it is none the worse for being an advertisement if it is a distinct and definite offer unconditionally accepted. The instances of such a contract are familiar. They are to be found in the books, and perhaps the most common example is a contract made by advertisement undertaking to give a definite reward for the performance of certain services. It is held that the offer is accepted by the person who performs the services, and thereupon makes a claim, in respect of his having done so, to the reward in terms of the offer. But the principle is quite clear—that when a general offer addressed to the public is appropriated to himself by a distinct acceptance by one person, then it is to be read in exactly the same way as if it had been addressed to that individual originally.

There may, of course, be a question—it is always a question of construction merely—whether a public announcement of this kind is in fact an offer, or whether it is a mere advertisement of a desire on the part of the advertiser to do business in a certain way. In the latter case it is not an offer; but if it contains a definite offer undertaking to pay money upon perfectly distinct specified conditions, then it is an offer, and when anyone, into whose hands it has come, accepts the terms and performs the conditions, there is to my mind a perfectly valid contract. The question in this case that was most seriously disputed is, as your Lordship has pointed out, whether the terms of the offer have been satisfied in respect of the registration of the coupon—the due registration of the coupon at a certain date.

Now, upon the terms of the advertisement it seems to me to be clear enough that the Company undertakes the duty of registration. The condition is that a claim is to be made within twelve months of the registration of the holder's name. Registration can be made by the Company only, but they keep no formal register, and they say that the way in which they register their insurances is that the coupon slips which they receive with the necessary remittances are registered by being stamped, dated, and filed, and thereafter acknowledgments are sent out intimating to coupon holders that they have been duly registered. I do not doubt that it is perfectly lawful to keep a register by filing the documents which constitute a title, just as it is by keeping a book in which the holders of such documents are registered in order. It is a perfectly lawful and effectual method of keeping a register.

But then it is a more complicated operation, or rather series of operations, as it is described by the defenders, that is followed, and if they choose to keep their register in that form, it lies upon them to prove that the whole operation was completed upon a certain date if they are to allege that the completion of the registration excludes a claim in respect of the accident having occurred beyond the term of liability. The insured knows nothing except what he is informed, and they undertake to perform this particular duty in their own office. In this case it appears to me that they have not proved that the whole process which they say amounts to registration was completed before 29th December. I agree with your Lordship, for the reasons you have given, that it must be taken against them that the process was not completed until they informed the insured by the letter of 3d January that registration had been duly made. If that is to be taken as the date, there is of course an end of the question, because the accident happened on the 28th December.

But then it might be argued that the completion of the registration itself was not determined by the date of the letter communicating the fact to the insured, but by the date of the official acknowledgment which they sent to the insured, that is to say, the 29th of December. If that were so, it appears to me that there would be good ground for the pursuer's argument that the condition that the claim shall be made within twelve months of the registration would still be satisfied. The Company is admittedly liable for an accident occurring on the last day of the twelve months, and the clause can hardly be held to mean that in such a case the claim must be intimated to the Company on the day of the accident, and that then the claimant is to have fourteen days to give notice that he is going to claim. There seems to me, therefore, to be ground for Mr Thomson's argument that the true meaning is that the claim shall emerge, that is, that the cause of action shall arise within twelve months.

I prefer, however, the view that your Lordship has taken, that the true date for the purposes of this action must be taken to be the date when the Company informed the insured that they had duly registered his coupon, and that they cannot be heard to say that they did so before that date to the effect of limiting the period within which he is to have a claim. I should desire to say at the same time that I do not think that can be laid down as a proposition of universal application in all circumstances in which the question can be raised, because, as your Lordship has pointed out, it is quite possible that registration may be unduly delayed by the default or unnecessary delay of the Company, whose duty it is to register, and that they could not be allowed to take advantage of their own delay or their own default in is order to limit the claims of the insured. Is enough for the purposes of this case that they have to my mind failed to prove any other date except the date when they told the late Mr Hunter that his coupon was duly registered.

Lord Mackenzie.—I agree with your Lordships that the issue of the coupon by the Insurance Company was an offer; that the request for registration was an acceptance by the deceased Mr Hunter of that offer; and that thereby the contract was constituted. The contract provided that, in the event of such an accident as the deceased met with, the claim was to be made within twelve months of registration. For the reasons explained by your Lordship in the chair, I am of opinion that the date of registration must be held to be the 3d of January 1906 ; that when this claim was made on the 2d of January 1907 it was made in due time, and that therefore the executrix is entitled to recover.

LORD M'LAREN and LORD PEARSON were sitting in the Extra Division.