Mulligan, William Hughes

English

Fordham University School of Law

Fordham Law Review Volume 26 Issue 4 Article 9 1957 Essentials of Insurance Law William Hughes Mulligan Follow this and additional works at: https://ir.lawnet.fordham.edu/flr  Part of the Law Commons Recommended Citation William Hughes Mulligan, Essentials of Insurance Law, 26 Fordham L. Rev. 734 (1957). Available at: https://ir.lawnet.fordham.edu/flr/vol26/iss4/9 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. BOOK REVIEWESSENTIALS OF INSURANCE LAW. By Edwin W. Patterson. McGraw-Hill Publishing Co.,New York: 2d ed. 1957. Pp. 558.Professor Patterson's book on the essentials of insurance law is at least as good, andI think superior within its own limits to any other legal text on insurance with which Iam familiar. The preface however is quite misleading and so is the book jacket. Pre-sumably the publishers feel that the prospect of marketing this volume among themultitudes slaving in the salt or gold mines of the insurance industry is more sub-stantial than sales to the legal profession. Hence the book is described as intendedprimarily for those not engaged in the profession of law. For this reason the jacketpromises a "minimum of legal language" and the author promises a "readable summary• * . using but little technical language." Apparently this will attract laymen but itmight equally repel lawyers, and this is my objection. This is a book for lawyers on thebench, in the office and in the classroom. A minor irritation as a result of this emphasison lay use is the absence of a table of cases which would be a considerable convenienceto the professional reader, particularly the law student using Professor Patterson'sexcellent casebook. The casebook arrangement and selection are closely paralleled inthe textbook.The author struggles manfully in his opening chapters to explain legal terms to thelayman but my impression was that as he warmed to his subject he gave it up as a badjob. After forty years of studying, teaching and writing insurance law one could hardlyexpect the Cardozo Professor of Jurisprudence at Columbia University School of Lawto write anything but a "law book." He has not disappointed. Simplicity of languageis a virtue enjoyed not only by laymen but judges and lawyers. Once the professionfails to communicate in judicial decision or law writing it fails to be efficacious. Tech-nical terms must be used, but the process of reasoning must not be obfuscated in law-educator language as distinguished from law-teacher, lawyer and judge language. Anexample of law-educator language is that given by Professor Mechem in his address asretiring president to the 1957 Convention of the Association of American Law Schoolsin San Francisco. He stated that a young law-educator colleague was overheard at aliquor emporium ordering a "quintile" of Scotch. Presumably if he had ordered a"fifth," he would have saved time, purchased the same amount for the same price andreceived the same effect.Lawyers instinctively abhor law books for laymen; they are about as helpful tolawyers as druggists used to be to laymen in the drafting of wills. This is not such abook. The absence of string citations in the footnotes is in no sense a disadvantage. Thecase cited is responsive to the text and is thoroughly understood by the author. Thisprocedure is refreshing and in the long run will save and not waste the time of thepractitioner. Another merit of this book which distinguishes it from others in the fieldis that the author has a point of view. He will not only indicate what the law is butwhy it is or why it should not be. Thus in his discussion of innocent misrepresentationof fact' Professor Patterson presents the arguments for both the insured and the insurerand then indicates the trend of distinction between questions of fact and opinion. (Thisdistinction is one which he has not emphasized in his prior writing but the presenttreatment is full and detailed.)Since the book is limited to essentials one cannot expect a complete discussion of allthe problems in insurance law. One regrets however that Professor Patterson did notenlarge upon his rather abrupt treatment of the law of binding receipts in life policies. The1. Pp. 388-402.BOOK REVIEWlaw is presently a quagmire and the author's extended comments would be welcome.But the book does cover admirably the questions of government control, the making ofthe contract, insurable interest in property and in life, termination; the insured eventand excepted causes; warranties and conditions; representations; concealment; waiver,estoppel and election. These subjects comprise its eleven chapters.There are areas in insurance law which are unsettled and where one might wish toqualify the text. For example, while American courts do favor the view that a stock-holder of a corporation has an insurable interest in the corporation's property, I thinkit would have been helpful to indicate that the cases are not numerous and the doctrinemust have inherent limitations. The comparative size of the stockholder's interest andthe existence of corporate insurance upon the property destroyed may well negative theexistence of any substantial economic interest. The doctrine should be limited to casesinvolving the insurance of uninsured corporate property of substantial value by a majorstockholder. This is not only a question of the difficulty of ascertaining loss but evena question of the existence of the interest. That factual expectation of loss constitutesan insurable interest in New York is not as clear to me as it is to the author. Case lawhas never gone this far in this state. The Nationl Filtcring Oil Co. case did notsimply involve the accident of loss through physical or factual propinquity. There was acontract involved, the value of which depended upon the continued existence of theproperty insured. The problem is open in this state and may depend upon whetherthe word "lawful" in the statute3 means legally protectable or licit, as distinct fromillegalIf a fire destroys a building insured by both lessor and lessee and the lessor restorespursuant to a contractual obligation, may the lessee recover on his policy? The NewYork Court of Appeals said "yes" in Alexandra Restaurant v. Ncw Hampshire Irs. Co.Wisconsin said "no" on facts which were identical in principle.5 The author's opinion isthat the Wisconsin view is more likely to be followed. The New York decision isunfortunate and relies on precedents which are distinguishable.One of the most provocative topics in insurance law is the effect of general statutoryrevisions ameliorating the harsh common-law doctrine of varranties. Whether theywill ever or should ever have the intended effect is questionable. Not all clauses inpolicies, e.g., "while located at and not elsewhere," conveniently fit within the statutorydefinitions; or if they do, the effect of their breach does not seem to be reasonablysolved by application of the new statutes. Professor Patterson's treatment of thisinteresting facet of law is admirable and is certainly better than anything published inthis field. It is in his treatment of topics like this that one feels that his work isprimarily for the legal profession. One could hardly expect the layman to understandthe implications of insurance law which depend upon a basic understanding of contract,quasi-contract, agency, tort, and personal and real property law. The book should alertthe lay readers in the insurance industry to the importance of their own legal departmentswhere several copies of this book should by all means be available for counsel.WILLIAM HUGHES 'MULIG.tU2. National Filtering Oil Co. v. Citizens Ins. Co., 106 N.Y. 535, 13 N.E. 337 (1857).3. N.Y. Ins. Law § 148.4. 297 N.Y. 858, 79 N.E.2d 26S (1943).5. Ramsdell v. Insurance Co. of North America, 197 Wis. 136, 221 N.W. 654 (1928).'I Dean, Fordham University, School of Law.

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