INDEX.

(797)

INDEX.

ABANDONMENT. See Contracts, 8, 9.

ABATEMENT. See Appeal, 13, 14; Judgments, 1.

ACCEPTANCE. See Accord and Satisfaction, 1; Dedication, 2, 3;
Fraud, 1.

ACCIDENT INSURANCE.

1. PROVISO-CONSTRUCTION.-In a proviso of an accident insurance
policy providing that the policy is issued upon condition that the
company assumes no liability thereunder should the accident, in-
jury, disability, death, loss of limb or sight result wholly or in
part, directly or indirectly, from injury intentionally inflicted on
the insured by any person, the words "on the insured" cannot be
deemed to have been inserted for the purpose of qualifying the
verb "inflicted," but as qualifying the adverb "intentionally," and
as defining the intention of the person inflicting the injury.—
Mah See v. North American Acc. Ins. Co., 421.

2. WHEN PROVISO OPERATIVE.-The concurrence of three elements is
requisite to render such proviso operative: (1) An intention to in-
jure, (2) directed at the insured, and (3) the infliction of injury
upon him.-Id.

3. LIABILITY UNDER POLICY-INTENT TO INJURE ANOTHER.-The in-
surer is not exempt from liability under such a proviso if the
person who shot the insured intended thereby to shoot some other
person. Id.

4. EXCEPTIONS

-

LIMIT TO LIABILITY-CONSTRUCTION.-A proviso in
an accident insurance policy which is uncertain or ambiguous,
rendering it capable of either of two constructions, one holding
the insurer liable and the other exempting it, must be construed
liberally in favor of the insured and strictly as against the in-
surer, (1) because it is found in a policy of insurance, and (2)
because it is found in an exception, attached to the policy, which
purports to limit the risk assumed by the insurer in the general
provisions thereof.-Id.

5. CAUSE OF DEATH EVIDENCE-BURDEN OF PROOF.-In an action
upon an accident insurance policy for death caused by shoot-
ing, the burden is upon the plaintiff to prove by a preponderance
of the evidence that the death resulted "through accidental means,"

ACCIDENT INSURANCE (Continued).

as provided in the body of the policy, but that burden is fully met when it is shown, without contradiction, that the shooting did not follow as a natural or probable result from anything done by the insured; and on the issue raised by the claim of defendant that the insured died as a result of "injuries intentionally inflicted" on him, the burden of proof rests upon the defendant.—Id.

6. EVIDENCE-CERTIFICATE OF DEATH-WHEN INADMISSIBLE.-A certified copy of a certificate of death, which stated the cause of death of the insured as "homicide," was properly stricken from evidence after its admission in an action on an accident insurance policy, when it appeared that there was a physician in attendance at the death of the insured but that he did not sign the certificate.-Id.

7. IMPROPER QUESTION. In an action upon an accident insurance policy, objection was properly sustained to the question, “As a matter of fact do you know that Fong Wing [the insured], prior to his being injured or killed, had been threatened on the part of certain tong leaders in Chinatown?"—Id.

8. PROPER SUSTAINING OF OBJ FCTION.-In such a case, objection was properly sustained to the question, "Did you receive another anony mous letter on the day following the shooting of Fong Wing [the insured]?" Id.

See Evidence, 2, 3.

ACCORD AND SATISFACTION.

1. DISPUTED CLAIM-ACCEPTANCE OF AMOUNT LESS THAN CLAIM.The general rule is that where the amount due on a claim is in dispute and a check for less than that amount is sent to the creditor with a statement that it is sent in full satisfaction of the claim, and the tender is accompanied by such acts or declarations as amount to a condition that if the check is accepted at all it is accepted in full satisfaction of the disputed claim, and the creditor so understands, its acceptance by the creditor constitutes an accord and satisfaction even though the creditor states at the time that the amount tendered is not accepted in full satisfaction. Berger v. Lane, 443.

2. PLEADING. The general rule is that he who relies upon an accord and satisfaction must plead and prove both.-Id.

3. HONESTY OF DISPUTE. While it is not necessary that the dispute or controversy should be well founded, it is necessary that it should be founded in good faith in order that an accord and satisfaction may result. Without an honest dispute an agree ment to take a lesser amount in payment for the liquidated claim is without consideration and void. An arbitrary refusal to pay, based on the mere pretense of the debtor, whether for the obvious

ACCORD AND SATISFACTION (Continued).

purpose of exacting terms which are inequitable and oppressive, is not such a dispute as will satisfy the requirements of the rule. Id.

4. BROKERS' COMMISSIONS ACTION TO RECOVER-NONSUIT ACCORD AND SATISFACTION.-A nonsuit is improperly granted in an action to recover a broker's commission on the sale of real estate, on the theory that there has been an accord and satisfaction in the acceptance of a check in an amount less than the claim, where the written contract authorizing the agents to sell the property provides for payment to them of a commission equal to the amount of the claim, the validity of the contract is not disputed, the amount fixed as commissions is not denied, it is admitted that plaintiffs were the procuring cause of the sale, no modification of the contract of agency is claimed, and the circumstances do not show anything upon which a disputed claim might be predicated.-Id.

ACCOUNTING. See Contracts, 2, 4, 5; Wills, 17.

ACKNOWLEDGMENTS. See Contracts, 25.

'ACTIONS. See Mortgages, 2; Special Proceedings, 1, 2.

ADMISSIONS. See Assault, 3; Criminal Law, 23; Pleading, 1, 5, 7. ADOPTION.

1. COMMON LAW-STATUTORY PROCEEDING-PROOF OF.-The adoption of one person by another was unknown to the common law and is purely statutory, and one claiming that an adoption has been accomplished must show that every essential requirement has been complied with.-Estate of Taggart, 493.

2. MINORS-ADULTS.-The statute of California provides only for the adoption of a minor child and no provision is to be found for the adoption of one adult by another.-Id.

See Estates of Deceased Persons, 18.

ADVERSE USER. See Water and Water Rights, 3, 5, 6, 8, 19.

AFFIDAVITS. See Divorce, 1, 2.

AGE. See Criminal Law, 9.

AGENCY.

1. PURCHASE OF PROPERTY-SCOPE OF AUTHORITY.-In the ordinary course of affairs, when one person employs another to purchase property from a third person for him for a commission, the authority conferred is merely that of acting as an intermediary

190 Cal. 51