GLOSSARY OF LEGAL AND INSURANCE TERMS

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A

Ab initio.  From the beginning

Accident.  An undersigned, unexpected or sudden result.

Accountable.  Subject to pay, responsible, liable.

Accretion.  The act of growing; usually applied to the gradual accumulation of land by natural causes, as out of sea or river.

Acknowledgment.  Formal declaration before an authorized official by a person who executed (signed) an instrument that it is his free act and deed.

 Acquisition cost.  The cost to an insurance company of securing business.

 Act of God.  An act occasioned exclusively by the violence of nature with no interference or concurrence by any human agency.

Action.  The legal demand of one's right to recover from another person or party made before a court; a lawsuit.

Action ex contractu.  Action for breach of a promise set forth in a contract, express or implied.

Action ex delicto.  An action arising out of breach of duty, actin in tort.

Actual authority.  In the law of agency, such authority as a principal intentionally confers on the agent, or intentionally allows the agent to believe himself to possess; includes both express and implied authority.

Actual cash value.  The fair or reasonable cash price for which the property could be sold in the market in the ordinary course of business and not a forced sale.

Additur.  The power of a trial court to assess damages or to increase the amount of an inadequate award by a jury verdict, as a condition for denial of a motion for a new trial; with consent of defendant, whether or not plaintiff consents to such action.

Administrator.  In the usual sense of the word, a person to whom letters of administration, that is an authority to administer the estate of a deceased person, have been granted by the proper court; a representative of limited authority whose duties are to collect assets of the estate, pay its debts, and distribute the residue to those entitled.

Admissions.  Confessions, concessions, or voluntary acknowledgments made by a party of the existence of certain facts.

Affiant.  The person who makes and subscribes an affidavit.

Affidavit.  A written or printed declaration or statement of fact, made voluntarily and confirmed by the oath or affirmation of the party making it, and taken before an officer having authority to administer such oath.

Affirmative warranty.  Affirms existence of a fact at the time policy is entered into.  A promissory warranty requires that something be done or not done after the policy has taken effect.

 Agency.   Includes every relation in which one person acts for or  represents another by the latter's authority; where
one person acts for   another either in the relationship of principal and agent, master and servant, or employer-proprietor
and independent contractor.

Agent, general.  One employed in his capacity as a professional man or master of an art or trade, or one to whom the principal confides his whole business or all transactions or functions of a designated class; one empowered to transact all business of a principal at any particular time or any particular place.

Agent, local.  One appointed to act as the representative of a corporation and transact its business generally (or business of a particular character, at a given place or within a defined district).

Agent, special.  One employed to conduct a particular transaction or piece of business for his principal, or authorized to perform a specified act.  In the insurance business, special agents are field representatives of the company whose duty is to stimulate business for their company throughout the territory to which they are assigned.  They have the power to appoint agents, and may also withdraw their company from an agency.

Ambiguity.  Doubtfulness or doubleness of meaning, duplicity, or indistinctness or uncertainty of meaning of an expression used in a written instrument.

Answer.  A pleading by which the defendant in a law suit endeavors to resist the plaintiff's demand by an allegation of facts, either denying allegations-of the plaintiff's complaint, or confessing them, and alleging new matter in avoidance, which defendant alleges should prevent recover.

Appeal.  The right of a party, who has received an adverse decision, to take the case to a higher court for review.

Application.  The preliminary request, declaration, or statement made by a party applying for an insurance policy.

Arbitration.  The submission for determination of a disputed matter to private unofficial persons selected in a manner provided by law or by agreement.

Arising out of and in the course of employment.  Workers' Compensation acts provide for compensating an employee whose injury arises out of and in the course of employment, and these words describe an injury directly and naturally resulting in a risk reasonably incident to the employment.

 Arraign.   In criminal practice, to bring a prisoner to the bar of the court to answer the matter charged against him either
in an indictment or information.  It consists of calling the prisoner by  name, reading the charges against him, demanding of him whether he is guilty or not guilty, and entering his plea.

Assault.  An intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward the person of another, under such circumstances as create well-founded fear of imminent peril, coupled with apparent present ability to execute the attempt.  Battery consists of the actual execution of the act offered in an assault.  Hence, the placing of the victim in fear (assault) and the actual infliction of the injury (battery) constitute what is commonly referred to as assault and battery.

Assign.  To make over or set over to another.  The person doing the act is called the assignor and person to whom the cause of action or other property is assigned is called the assignee.

Assured.  A person who has been insured by some insurance company or underwriter against losses or perils mentioned in the policy of insurance.

Attachment.  A remedy ancillary to an action by which the plaintiff is enabled to acquire a lien upon the property or effects of the defendant for satisfaction of a judgement which the plaintiff may obtain.

Attest.  To bear witness to; to bear witness to a fact; to affirm it to be true or genuine; to act as a witness to; to certify; to make solemn declaration in words or writing to support a fact.

Attorney.  In the most general sense denotes an agent or substitute, or one appointed and authorized to act in the place or stead of another.

Attorney-at-law.  An advocate, counsel or official agent employed in preparing, managing, and trying cases in the courts.  An officer, in a court of justice, who is employed by a party in a cause to manage it for him.

Attorney-in-fact.  A private attorney authorized by another to act in his place and stead, either for some particular purpose, or for the transaction of business in general, not of a legal character.  This authority is conferred by an instrument in writing called a letter of attorney or, more commonly, a power of attorney.

Attorney's lien.  The right of an attorney-at-law to hold or retain in his possession the money or property of a client until his proper charges have been adjusted and paid.

Audit.  In insurance, an examination of the insured's books and payroll records for the purpose of determining the premium due.

Award.  The decision  or determination rendered by arbitrators, commissioners, or other private or extrajudicial deciders upon a controversy submitted to them.

B

Bad faith.  Generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation; not prompted by an hones mistake as to one's rights or duties, but by some interested or sinister motive.

Bail.  To procure the release of a person from legal custody by undertaking that he shall appear at the time and place designated and sub-nit himself to the judgment of the court.

Bailee.  One who has possession of property belonging to another.  He may be a bailee for the benefit of the bailor, his own benefit, or for their mutual benefit.

Bailment.  A delivery of goods or personal property by one person to another in trust for the execution of a special object upon or in relation to such goods, beneficial either to the bailor or bailee or both, and upon a contract expressed or implied to perform the trust and carry out such object, and thereupon redeliver the goods to the bailor, or otherwise dispose of the same in conformity with the purpose of the trust.

Battery.  Any unlawful beating or other wrongful physical violence or constraint inflicted upon a human being without his consent.

Beneficiary.  One for whose benefit a contract is made; the person to whom-a policy of insurance is payable.

Bill of lading.  The written evidence of a contract for carriage and delivery of goods sent by sea or land transportation; receipt given by the carrier for the merchandise and must be surrendered before the goods will be delivered.

Binder.  Memorandum of an agreement for insurance which gives temporary protection, pending investigation of the risk and issuance of a formal policy; a verbal contract of insurance, temporary protection, pending investigation of the risk and issuance of a formal policy; a verbal contract of insurance, temporary in nature, but binding on both parties.

Breach of contract.  Failure, without legal excuse, to perform any promise which forms the whole or part of a contract.

Broker.  An agent employed to make bargains and contracts for a compensation.  In insurance, an individual or organization which acts as the representative of the insured in writing insurance contracts; an insurance specialist, under no obligation to place polity contracts with any one company, whose only duty is to secure the best possible coverage for his clients at the lowest possible rates.

Burden of proof.   In the law of evidence, the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause.

Burglary.  The breaking and entering of the house of another in the nighttime with intent to commit a felony therein, whether the felony be actually committed or not.

C

C.I.F.   These letters in contracts of sale indicate (as does C.F.I. or CF&I) that the price fixed covers the cost of goods, insurance, and freight.

C.O.D.   Collect on Delivery.  These letters import the carrier's liability to return to the consignor either the goods or the charges. The carrier accepts a check instead of cash at its own peril.

Cancellation.  Abandonment of a contract.  In insurance, termination of a contract before its expiration by either the insured or the company.  The notice of cancellation and methods by which it can be effected are usually set forth in the insurance contract.

Carlisle tables.  Life annuity tables, compiled at Carlisle, England, about 1780 and still used by actuaries as one of the bases for estimating life expectancy.

Carriage.  The act of carrying, or a contract for the transportation of persons or goods.  The contract of carriage is for the conveyance of property, persons, or messages from one place to another.

Carrier.    One undertaking to transport persons or property.   Carriers are either common or private.  The term also refers to the insurance carriers, or insurer.

Casual employment.  Employment at uncertain times or irregular intervals; casual and not in the usual course of trade, business, occupation, or profession of the employer; for a short time and for limited and temporary purpose.

Casualty.  Accident; event due to sudden, unexpected or unusual cause, event not to be foreseen or guarded against; misfortune or mishap.

Caveat emptor.  Let the buyer beware.  This maxim summarizes the rule that a purchaser must examine, judge, and test for himself.

Certiorari.  The name of a writ of review or inquiry; an appellate proceeding for reexamination of the act of an inferior tribunal, or an auxiliary process to enable an appellate court to obtain further information in a pending cause.

Chattel.  An article or personal property; any species of property not amounting to a freehold or fee in land.  Chattels is more comprehensive than goods as it includes animate as well as inanimate property.

Chiropractor.  One professing a system of manipulation which aims to cure disease by the mechanical restoration of displaced or subluxated bones, especially the vertebrae, to their relation.

Claim.  The right, real or alleged, of an individual or corporation to recover for a loss which may come within an insured's policy contract.

Claimant.  One who claims or asserts a right, demand, or claim.

Classification of risks.  A term used in insurance with reference to the nature and situation of articles insured and to the occupation and business of the applicant.

Client.  A person who employs or retains an attorney, or counsellor, to appear for him in the courts, advise, assist, and defend him in legal proceedings, and to act for him in any legal business.

Code.  A collection, compendium, or revision of laws.

Collusion.  An agreement between two or more persons to defraud a third person of his rights by the forms of law, or to obtain an object forbidden by law.

Coinsurance.  A relative division of risk between insurer and insured, depending upon the relative amount of the policy and the actual value of the property insured, and taking effect only when the actual loss is partial and less than the amount of the policy, the insurer being liable to the extent of the policy for a loss equal to or in excess of that amount.

Commission.  The recompense or reward of an agent, factor, broker, or bailee, when same is calculated as a percentage on the amount of his transactions or the profit to the principal. In insurance this refers to a certain percentage of the premiums given to the agent as compensation for his work in selling and servicing the policy.

Common law.  Distinguished from law created by the enactment of legislatures, common law comprises the body of those principles and rules of action, relating to the government and security of persons and property which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs.

Cammon-law marriage.  One not solemnized in the ordinary way but created by an agreement to marry, followed by cohabitation.

Commotion.  A civil commotion is an insurrection of the people for general purposes (though it may not amount to rebellion, where there is usurped power) which occasions a serious and prolonged disturbance and infraction of civil order, but not attaining the status of war or an armed Insurrection.  Term refers to political disorders, not to economic disturbance.

Comparative negligence.  That doctrine in the law of negligence by which the negligence of the party is compared in degrees of slight, ordinary, or gross, and a recovery permitted, notwithstanding the contributory negligence of the plaintiff, when the negligence of the plaintiff is slight and that of the defendant gross; but refused when the plaintiff has been guilty of a want of ordinary care, thereby contributing to his injury; or when the negligence of the defendant is only ordinary or slight when compared with the contributory negligence of the plaintiff.

Complaint.  In civil practice in states having a code of civil procedure, the complaint is the first initiatory proceeding on the part of the plaintiff in a civil action; it corresponds to a declaration of narrative in common-law practice.
 

Compulsory insurance.  Any form of insurance which is required of all members of a class by the state.

Concurrent insurance. Where two or more insurance policies cover the same interest, or identical property; overlapping insurance.

Condition.  A clause in a contract or agreement which may suspend, rescind, or modify the principal obligation; conditions may be positive (requiring that a specified event shall happen or an act be done), restrictive, or negative ( the latter imposing an obligation not to do a particular thing).

Conservator.  A guardian, protector, preserver; a person appointed by the court to take care of the person and the estate of an incapable person, such as an infant, idiot, or other incompetent.

Consideration.  In the law of contracts, an inducement to a contract.  The cause, motive, or price, are impelling influences which induce a contracting party to enter into a contract.

Consignee.  One to whom a consignment is made; the person to whom goods are shipped or otherwise transmitted; the one to whom the carrier may lawfully make delivery in accordance with its contract of carriage.

Constructive loss.  Sometimes referred to as constructive total loss.  Loss resulting from such injuries to property without its destruction, as render it valueless to the insured or prevent its restoration to the original condition except at a cost exceeding its value.

Contempt.   Willful disregard or disobedience of a public authority.

Contempt of court.  Any act calculated to embarrass, hinder, or obstruct the court in the administration of justice, or lessen its authority or dignity; committed by a person who does any act in willful prevention of its authority, or tending to impede or frustrate the administration or dignity of justice; or by one who, being under the court's authority as a pa -= a proceeding therein, willfully disobeys its lawful orders or fails to comply with an undertaking which he has given.

Continuity rider.  A clause attached to a surety bond, assuming the liability for certain or all losses which may have occurred during the term of a previous bond, which have not as yet been discovered.,

Contractual liability.  Liability assumed under any contract or agreement, express or implied.  Such liability is excluded in automobile liability policies and, with certain exceptions, most other liability policies unless there is a specific agreement on the part of the company to assume such liability.

Conversion.  Unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights; any unauthorized act which deprives an owner of his property permanently or for an indefinite period of time.

Coroner's inquest.  An inquisition or examination into the causes and circumstances of any death happening by violence or under suspicious conditions within his territory; held by the coroner with the assistance of a jury.

Corporation.  An artificial person or legal entity created by or under the authority of the laws of a state, consisting of an association of numerous individuals; regarded in law as having a personality and existence distinct from that of its several members, and which is, by the same authority, vested with the capacity of continuous succession, irrespective of changes in its membership, either in perpetuity or for a limited term of years, and of acting as a unit or single individual in matters relating to the common purpose of the association, within the scope of the powers and authority conferred upon such bodies by law.

Costs.  A pecuniary allowance made to the successful party (and recoverable from the losing party) for his expenses in prosecuting or defending the suit or a distinct proceeding within a suit.

Covenant not sue.  An agreement by one who had a right of action at the time of making it against another person, by which he agrees not to sue to enforce such right of action.

D

Daily report.  A summary of all the essential facts with reference to a risk on which a policy has been issued, which the agent sends to the company after writing the policy; usually takes the form of a carbon copy of the face or declaration of the policy and is submitted to the company at the close of each day of business.

Damages.  A pecuniary compensation or indemnity which may be recovered in the courts by any person who has suffered loss, detriment or injury, whether to his person, property or rights through the unlawful act or negligence of another.

Declaration.  A statement by the applicant or the insured with regard to the circumstances of the risk.

Defendant.  The person defending or denying; the party against whom relief or recovery is sought in an action or suit.

Delictum.   A delict, tort, wrong, injury or offense.

Dependent.  One who derives support from another, not merely persons who derive a benefit from the earnings of the deceased; one who depends on or is sustained by another, or who relies on another for support.

Diagnosis.  Medical ten-n meaning the discovery of the source of the patient's illness, or the determination of the nature of his disease from a study of its symptoms.

Disclaimer.  The refutation or renunciation of a claim or power vested in a person and formally alleged to be his.  In insurance law, a denial by the insurance carrier that the policy of insurance covers the circumstances claimed by the insured.

Discovery.  The disclosure by the defendant of facts, titles, documents, and other things which are in his exclusive knowledge or possession, and which are necessary to a party seeking the discovery as part of a cause of action pending or to be brought in another court, or as evidence of his right or title in such proceeding.

E

Earned premium.  The amount of any time during the life of the policy which would compensate the company for the protection furnished for the expired portion of the policy term.

Embezzlement . The fraudulent appropriation of property or money by clerk, agent, trustee, public officer, or other person acting in a fiduciary character.

Embracery.   In criminal law, the attempt to influence a jury corruptly by promises, persuasions, entreaties, entertainments and the like.

Emergency.  A sudden unexpected happening, or unforeseen occurrence or condition; a perplexing contingency or complication of circumstances; a sudden or unexpected occasion for action.

Emergency employment doctrine.  A regularly employed servant possesses implied authority to engage an assistant to aid in performance of a task, including an emergency situation, when it is necessary to obtain such assistance..

Endorsement.  A supplementary agreement attached to an insurance policy for the purpose of changing its conditions or altering its coverage.

Et al . An abbreviation of et alii, and others; the singular is et alius.

Ex gratia.  As a matter of grace, favor, or indulgence; gratuitous; applied to anything accorded as a favor, as distinguished from what might be demanded as a matter of right.

Ex parte.  In behalf or on the application of one party only.

Excess insurance.  The amount of insurance which is available only when this amount exceeds a certain figure.

Expectancy of life.  In life annuities, the number of years a person of a given age may, upon any quality of chance, expect to enjoy.

Experience.   Applied to insurance, the loss record of an insured, or a class of coverage over a period of years.

Experience rate.  A special rate for casualty insurance available to an insured because of satisfactory past insurance; this rate is a deviation from the manual rate.

Express.  Clear, definite, explicit, unmistakable; manifested by direct and appropriate language; distinguished from that which is inferred from conduct.

Extraordinary repairs.  Within the meaning of a lease, made necessary by some unusual or unforeseen occurrence which does not destroy the building but merely renders it less suited to the use for which it was intended.

Extraterritoriality.  Operation of laws upon persons, rights, or jural relations existing beyond the physical limits of an enacting state.

F

Falsus in uno, falsus in omnibus.  False in one thing, false in everything.  Doctrine means that if testimony of a witness on a material issue is willfully false and given with intent to deceive, the jury may disregard all of the witness' testimony.

Family automobile doctrine.  Also referred to as the family car or the family purpose doctrine: that one who owns and maintains an automobile for the general use of his household makes use of the automobile for such purpose as a part of his business, so that any member using the automobile for those purposes (under general authority to do so) becomes his representative, for whose negligence he is responsible.  It is an extension of the respondeat superior principle to the operation of the family automobile.

Fellow servant.  One who serves and is controlled by the same master; also those engaged in the same common pursuit under the same general control; those who derive authority in compensation from the same c source and are engaged in the same general business, though in different grades or departments.

Fellow servant rule.  Rule that a master is not liable for injuries to a servant caused by the negligence of a fellow servant engaged in the same general business and where the master has exercised due care in the selection of servants.

Fidelity bond.  A contract of fidelity insurance; a guarantee of personal honesty of the officer furnishing indemnity against his defaultation or negligence; a form of insurance or suretyship which protects a party against loss from the dishonest of his employees.

Fiduciary.   A person or corporation having the duty created by his undertaking to act primarily for another's benefit in matters connected with such undertaking, or an agent handling the business of another when the business which he transacts or the money or property which he handles is not his own or for his own benefit, but for the benefit of another person to whom he stands in a relation in-plying and necessitating great confidence and trust on the one part and a high degree of good faith on the other.

Financial responsibility law.  A statute requiring motorists to furnish evidence of ability to pay damages either before or after an accident has occurred.

Flat cancellation.  Termination of an insurance polity without any refund of premium by the company or without any payment of earned premium by the insured; cancellation as of the inception date.

Fleet policy.    An insurance contract covering a number of automobiles specifically  designated,   or   providing   automatic  coverage of all automobiles owned by the insured on a reporting or payroll basis; a device utilized to obtain a lower premium.

Forgery.    False making or material altering, with intent to defraud, of any writing which, if genuine, might be of legal efficacy or the foundation of a legal liability; the signing of a name of another with an attempt to imitate the handwriting for the purpose of obtaining money or other property.

Friendly suit.  In casualty insurance, a suit brought by the guardian of an infant or incompetent against the defendant solely for the purpose of having the court enter judgment for the amount agreed upon as a settlement in advance.

G

Gift.  A voluntary transfer of personal property without consideration.

Good faith.  Honesty of intention and freedom from knowledge of circumstances which ought to put the holder upon inquiry; an honest intention to abstain from taking any conscious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render the transaction unconscionable.

Goods.  Every species of personal property.

Guardian.  A person lawfully invested with the power and charged with the duty of taking care, and managing the property and rights, of another person, who for some peculiarity of status or defect of age, understanding, or self-control is considered incapable of administering his own affairs.

Hazard.  In insurance law, the risk, danger, or probability that the event insured against may happen; varies with the circumstances of the particular case.

Hearsay.  Evidence proceeding not from the personal knowledge of the witness; mere repetition of what he has heard others say.

I

Imputed negligence.  Not directly attributable to the person himself, but t-he negligence of a person in privity with him, and with whose fault he is chargeable.

Increase in hazard.  In insurance, a change in the circumstances of a risk, making a loss more probable.

Independent contractor.  One who, exercising an independent employment and contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of the work.

Inevitable accident.  An accident is inevitable, so as to preclude recovery on the ground of negligence, if the person by whom it occurs neither has, nor is legally bound to have, sufficient power to avoid it or to prevent its injuring another.

Inherently dangerous.  Danger inhering in an instrumentality or condition at all times so as to require special precautions to prevent injury; not the danger arising from mere casual or collateral negligence of others.

Injunction.  A judicial process operating in personam and requiring the person to whom it is direct to do, or refrain from doing, a particular thing,'

Insurable interest.  An interest as will make the loss of the property of pecuniary damage to the insured.

Insurance.  A contract whereby, for a stipulated consideration, one party undertakes to compensate the other for loss on a specified subject by specified perils.

Interstate .  Traffic, intercourse, commercial trading, or transportation of persons or property between or among the several states of the Union, or from or between points in one state and points in another state.

Intrastate Commerce.  Commerce within the confines of one state only.

Ipso facto.  By the fact itself.

J

Joint control.  A practice in fiduciary bonds whereby trust assets may be handled only upon the signature and consent of both the principal and the surety.

Joint and several.  A liability is said to be joint and several where the creditor may sue one or more of the parties to such liability separately, or all of them together, at his option.

Judgment.  The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination.

Judgment creditor.  One who has obtained a judgment against his debtor, under which he can enforce execution; the owner of an unsatisfied judgment.

Judgment debtor.  A person against whom judgment has been recovered and which remains unsatisfied.

Judicial notice.  The act by which a court, in conducting a trial or framing its- decision, will, of its own motion and without the production of evidence, recognized the existence and truth of certain facts having a bearing on the controversy at bar, which, from their nature are not properly the subject of testimony, or which are universally regarded as established by common notoriety.

L

Larceny.  Felonious stealing, taking and carrying, leaving, riding, or driving away another's personality with intent to convert it or deprive the owner thereof.  Larceny is the fraudulent taking and carrying away of a thing, without claim or right, with the intention of converting it to a use other than that of the owner, and without his consent.

Latent defect.  A hidden defect; a defect in an article known to the seller but not to the purchaser, and not discoverable by means of observation.

Lease.  Any agreement which gives rise to the relationship of landlord and tenant; contract for exclusive possession of lands for a determinate period.

Legal representative.  In its broadest sense, one who stands in place of and represents the interests of another; usually refers to executors or administrators.

Legally liable.  Liable under law, as interpreted by the courts; liability imposed by law or liability which the law fixes by contract.

Liability.  Any legally enforceable obligation; most commonly used in a pecuniary sense.  In insurance terminology an important distinction is made between liability imposed by law, which means an obligation forced upon a person because of his acts or omissions, and the broader term legal liability which embraces all pecuniary obligations, including liability assumed by contract.

M

Malice.  The intentional doing of a wrongful act, without just cause or excuse, with an intent to inflict an injury, or under such circumstances that the law will imply an evil intent.

Malpractice.  Any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties; evil practice, or illegal or immoral conduct.

Manual rates.  Insurance costs for a particular phase of the business, as published in the pertinent manual.

Merchantability.  This means that the article sold shall be of the general kind described and reasonably fit for the general purpose for which it shall have been sold.

Misrepresentation.  An untrue statement of fact, an incorrect or false representation, a statement made to deceive and mislead.

Narr.  Common abbreviation of narration, a declaration in an action; one of the common-law names for a plaintiff's count or declaration, being a narrative of the facts on which he relies; the complaint.

Navigable - in- fact.  Streams or lakes are navigable in fact when they are used or susceptible of being used in their natural and ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

Navigable waters of the U.S. Waters are navigable waters of the United States when by themselves, or by uniting with other waters, they form a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes.

Nuisance.  That which annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him; everything that endangers life or health, gives offense to senses, violates the laws of decency, or obstructs reasonable and compatible use of property.

O

Oath.  An affirmation of the truth of a statement which renders one willfully asserting untrue statements punishable for perjury.

Obligation.  Any enforceable duty assumed by or imposed upon a person, firm, or corporation.  An obligation or debt may exist by reason of a judgment as well as an express contract.

Obligee.  The person in favor of whom some obligation is contracted, whether such obligation be to pay money, or to do, or not do something; the party to whom a bond is given.

Obligor.  The person who has engaged to perform some obligation; one who makes a bond.

Occupancy.   In insurance contracts, refers to the type and character of the use of property; in a burglary policy implies actual use of the house as a dwelling place, not absolutely continuous but as a place of usual return.

Occupational disease.  Disease gradually contracted in usual and ordinary course of employment, because of and incidental thereto.

Ocean marine insurance.  As commonly used, applies to any form of marine coverage while the subject of the insurance is on water: "wet marine."  Contrary to popular belief, insurance on ships and cargo on inland lakes and rivers also comes under the general classification of ocean marine insurance.  Inland marine insurance properly refers to any risk not on water assumed by a marine insurance company, such as personal property floaters and the like.

Omnibus clause.  A provision in the automobile liability policy which extends coverage to any  person, firm, or corporation legally responsible for the operation of the insured automobile, and to any person operating the car with the consent of the named insured.

Opinion evidence.  Evidence of what the witness thinks, believes, or infers in regard to facts in dispute; distinguished from his personal knowledge of the facts themselves.

Order.  In legal practice, every direction of a court or judge made or entered in writing and not included in a judgment; an application for an order is a motion.

Ordinary  care.  That degree of caution which the ordinary person of reasonable prudence would use under any given set of circumstances.

Ostensible agency.  An in-plied or presumptive agency which exists where one, either intentionally or from want of ordinary care, induces another to believe that a third person is his agent though he has never, in fact, employed him.  Strictly  speaking, it is no agency at all, but is in reality based entirely upon estoppel.

Ostensible authority.  Such authority as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent possesses.

Ostensible partner.  One whose name appears to the world as such, though he has not interest in the firm.

Osteopathy.  A method or system of treating various diseases of the human body (without the use of drugs) by manipulation applied to various nerve centers, rubbing, pulling, kneading parts of the body, flexing and manipulating the limbs, and the mechanical readjustment of any bones, muscles or ligaments not in the normal position, with a view to removing the cause of disorder and aiding the restorative force of nature in cases where the trouble originated in misplacement of the parts, irregular nerve action, or defective circulation.

P

Parol evidence.  Oral or verbal evidence, that which is given by word of mouth; the ordinary kind of evidence that is given by witnesses in court.

Parol evidence rule.  When parties put their agreement in writing under this rule, all previous oral agreements merge in the writing and a contract, as then written, cannot be modified or changed by parol evidence in the absence of a plea of mistake or fraud in the preparation of the writing.  But the rule does not forbid a resort to parol evidence that is not inconsistent with the matters stated in the writing.  Under this rule, parol or extrinsic evidence is not admissible to add to, subtract or vary from, or contradict judicial or official records or documents, or written instruments which dispose of property or are contractual in nature, and which are valid, complete, unambiguous, and unaffected by accident or mistake.

Parties.  The persons who take part in the performance of any act, or who are directly interested in any affair, contract, or conveyance, or who are actively concerned in the prosecution and defense of any legal proceeding.

Partnership.  A voluntary contract between two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business with the understanding that there shall be a proportional sharing of the profits and losses.

Payroll audit.  An examination of the insured's accounts by a representative of the insurer to determine the premium due on a payroll, receipts, or other unit basis.

Penalty.  The sum of money which the obligor of a bond undertakes to pay in the event of his omitting to perform or carry out the terms imposed upon him by the conditions of the bond.

Peremptory.  Imperative, absolute, conclusive, positive, not admitting of question, delay, or reconsideration.

Perjury.  In criminal law, the willful assertion to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any  form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being material to the issue or point of inquiry, and known to such witness to be false.

Plaintiff.  The person who brings an action; the party who complains or sues in a personal action and is so named on the record.

Possession.  The detention and control, or manual or ideal custody of anything for one's use and enjoyment, either as owner or proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name.  Possession does not necessarily connote ownership.

Postmortem.   After death.

Power of attorney.  An instrument authorizing another to act as one's agent or attorney; a letter of attorney.

Precedent.  Adjudged case or decision of a court of justice, considered as furnishing an example or authority for an identical or similar case afterwards arising on a similar question of law.

Premium.  The sum paid or agreed to be paid by an insured to the underwriter as the consideration for the insurance.

Preponderance.  Greater weight of evidence, or evidence which is more credible and convincing.

Prima facie.  At first sight.

Prima facie case.  Such as will suffice until contradicted and overcome by other evidence; a case which has proceeded upon sufficient proof to that stage where it will support a finding, if evidence contrary to it is disregarded.

Principal.  The employer or constitutor of an agent who gives authority to any agent or attorney to do some act for him; one who, being competent sui Juris to do any act for his own benefit or on his own account, confides it to another person to do for him.

Privity of contract.  That relationship or connection which exists between two or more contracting parties.

Probate.  The act or process of proving a will.

Probate bond.  Bond required by law to be given to the probate court or judge as incidental to proceedings in such courts, such as the bonds of executors, administrators, and guardians.

Probative.  In the law of evidence, having the effect of proof, tending to prove, or actually proving.

Probative facts.  In the law of evidence, facts which actually have the effect of proving facts sought; evidentiary  facts; matters of evidence required to prove ultimate facts.

Proper lookout.  Duty imposed on a motorist, requiring him to use care, prudence, watchfulness, and attention of an ordinarily prudent person under the same or similar circumstances.

Proximate.  Immediate, nearest, direct, next in order; in its legal sense, closest in causal connection.

Proximate cause.  That which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.

R

Rate.  In insurance, the agreed factor in determining an insurance premium.

Reasonable certainty rule.  Permits recovery of damages only for such future suffering as is reasonably certain to result from the injury received.

Reckless disregard of the rights of others.  As used in automobile guest law, the voluntary doing by a motorist of an improper or wrongful act, or, with knowledge of existing conditions, the voluntary  refraining from doing a proper or prudent act when such act, or failure to act, evinces entire abandonment of care; needless indifference to results which may follow and the reckless taking of chances, but without intent that any accident occur.

Reckless driving.  Operation of an automobile with a reckless disregard of possible consequences and indifference to others' rights.

Reinsurance.  A contract by which an insurer procures a third person to insure him against loss or liability by reason of the original insurance; a contract that one insurer makes with another to protect the latter from a risk already assumed.

Release.  Relinquishment, concession, or giving up of a right, claim, or privilege by the person in whom it exists, or to whom it accrues, to the person against whom it might have been demanded or enforced.

Relevancy.    Applicability to the issued joined; that quality of evidence which renders it properly applicable in determining the truth and falsity of the matters in issue between the parties to a suit.

Remote cause.  In the law of negligence, with respect to injury  or accident, a cause which would not, according to the experience of mankind, lead to the event which happened; where the effect is uncertain, vague, or indeterminate and does not follow necessarily.

Representation.  A statement, express or implied, made by one contracting party to the other before or at the time of making the contract in regard to some past or existing fact, circumstance, or state of facts pertinent to the contract which is influential in bringing about the agreement; an allegation of any facts by the applicant to the insurer, or vice versa, preliminary to making the contract and directly bearing upon it, having a plain and evident tendency to induce the making of the policy.

Reputation.  Estimation in which one is held, the character or general opinion, good or bad, imputed to or held of a person by those of the community in which he resides.

Res adjudicate.  A com-non but indefensible misspelling of res judicata.  The latter term designates a point, question, or subject matter which was in controversy or dispute and has been authoritatively and finally settled by the decision of a court.

Res gestae.  Things done.  Those circumstances which are the automatic and undesigned incidents of a particular litigated act and which may be separated from the act by a more or less appreciable lapse of time , and which are admissible when illustrative of such act; the whole of the transaction under investigation and every part of it.

Res gestae os am exception to the hearsay rule; it renders acts and declarations, which constitute a part of the things done and said, admissible in evidence even though they would otherwise come within the rule excluding hearsay evidence or self- serving declarations.

Res  ipsa loquitur.  The thing speaks for itself.  Rebuttable presumption that the defendant was negligent; the presumption arises upon proof that the instrumentality causing the injury was in the defendant's exclusive control, and that the accident is one which ordinarily does not happen in the absence of negligence.

Rescind.  To abrogate, annul, avoid, or cancel a contract; particularly, nullifying a contraction by the act of a party; not merely to terminate the contract and release the parties from further obligation to each other, but to abrogate it from the beginning and restore the parties to the positions they would have occupied had no
 contract been made.

Respondeat superior.   Let the master answer.  A master is liable in certain cases for the wrongful acts of his servant, being principal for his agents.  The doctrine does not apply where the injury occurs while the servant is acting outside the legitimate scope of his authority.

S

Slander.  The speaking of base and defamatory words tending to prejudice another in his reputation, office, trade, business or means of livelihood.  Libel and slander are both methods of defamation; the former being expressed by print, writing, pictures, or signs; the latter by oral expressions.

Subpoena.  A process to cause a witness to appear and give testimony, commanding him to lay aside all pretenses and excuses and appear before a court or magistrate therein named at a time therein mention to testify for the party named under a penalty therein mentioned.

Subpoena duces tecum.  A process by which the court, at the instances of a suitor, commands a witness, who has or controls some document or paper pertinent to the issues of a pending controversy, to produce it at the trial.

Subrogation.   The substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities.

Substituted service.  Service of process upon a defendant in any manner authorized by statute - other than personal service within the jurisdiction - as by publication, by mailing a copy to his last known address, or by personal service in another state.

Surety.  One who undertakes to pay more or do any other act in the event that his principal fails therein; one bound with his principal for the payment of a sum of money, or performance of some duty or promise, who is entitled to be indemnified by someone who ought to have paid or performed, if payment or performance be enforced against him.

T

Trap.  A device, as a pitfall, snare, or machine that shuts suddenly as with a spring, for taking game and other animal.

Trespasser.  One who enters the premises of another without invitation or permission, expressed or implied, but merely for his own convenience or out of curiosity; unlawful entry upon the land of another.

U

Unilateral.  One-sided, having relation to only one of two or more persons or things.

Unilateral Mistake.  Mistake or misunderstanding as to the terms or effects of a contract, made or entertained by one of the parties but not by the other.

V

Verdict.   The formal decision or finding made by a jury in-paneled and sworn for the trial of a cause, and reported to the court upon the matters or questions duly submitted to them upon trial.

Verify.  To confirm or substantiate by oath.  When used in a statute it ordinarily imports a verity attested by the sanctity of an oath; frequently used interchangeably with swear.

W

Waiver.  The intentional or voluntary relinquishment of a known right; renunciation, repudiation, abandonment, or surrender of some claim, right, or privilege, or of the opportunity to take advantage of some defect, irregularity, or wrong.

In insurance law, the doctrine is that if the insurer, with knowledge of facts which would bar existing primary liability, recognizes such primary liability by treating the policy as enforced, the insurer will not thereafter be allowed to plead such facts to avoid its primary liability.

Willful (or wanton) misconduct.  Failure to exercise ordinary care to prevent injury to a person who is actually known or reasonably expected to be within range of a dangerous act.


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