Anderson v Fitzgerald

• Jurisdiction: Ireland
• Judgment Date: 14 July 1853
• Date: 14 July 1853
• Court: House of Lords (Ireland)

English Reports Citation: 10 E.R. 551

House of Lords

Samuel Anderson,-Plaintiff in Error

Ann Fitzgerald,-Defendant in Error

Mews' Dig. viii. 26. S.C. 17 Jur. 995. Commented on in In re Universal Non-Tariff Insurance Co., 1875, L.R. 19 Eq. 495; London Assurance Co. v. Mansel, 1879, 11 Ch. D. 371; Thomson.v. Weems, 1884, 9 A.C. 682.

Insurance on Life - Materiality of untrue Answers - Misdirection - Bill of Exceptions.

ANDERSON V. FITZGERALD [1853] IV H.L.C., 484 [484] SAMUEL ANDERSON,-Plaintiff in Error; ANN FITZGERALD,-Defendant in Error [June 30; July 1, 4, 14, 1853]. [Mews' Dig. viii. 26. S.C. 17 Jur. 995. Commented on in In re Universal Non-Tariff Insurance Co., 1875, L.R. 19 Eq. 495; London Assurance Go. v. Mansel, 1879, 11 Ch. D. 371; Thomson.?. Weenis, 1884, 9 A.C. 682.] Insurance on Life-Materiality of untrue Answers-Misdirection-Bill of Exceptions. F. applied to an insurance office to effect a policy on his life. He received a form of " Proposal" containing questions requiring to be answered. Among these were the following : " Did any of the party's near relations die of consumption or any other pulmonary complaint? " and " Has the party's life been accepted or refused at any office? " To each of these questions F. answered " No." The answers were false. F. signed the proposal, and a declaration accompanying them, by which he agreed " that the particulars mentioned in the above proposal should form the basis of the contract." The policy mentioned several things which were "warranted" by F. The subjects of these two answers were not included in such warranty. The policy also contained a proviso, that " if anything so warranted shall not be true, or if any circumstance material to this insurance shall not have been truly stated, or shall have been misrepresented or concealed, or any false statements made to the Company in or about the obtaining or effecting of this insurance," the policy should be void, and the moneys paid should be forfeited. In an action on the policy : Held, reversing the judgments of the Courts of Exchequer and Exchequer Chamber in Ireland, that it was a misdirection to leave, it to the Jury to say whether the answers to the two questions were material as well as false, and if not material, that the plaintiff was entitled to the verdict. The representation being part of the contract, its truth, not its materiality, was in question. (By the Judges.) A Bill of Exceptions, which sets forth what a Judge was asked to direct, and alleges that he refused to give such direction, is informal and bad. A Bill of Exceptions should state what directions the Judge gave, as it is misdirection, and not nondirection, which is the subject of an exception. This was a writ of error on a judgment of the Court of Exchequer Chamber in Ireland. Ann Fitzgerald was the administratrix of one Patrick Fitzgerald, deceased. [485] The defendant Anderson represented the United Kingdom Life Assurance Company. The action was brought against Anderson on a policy of insurance effected with that company upon the life of Patrick Fitzgerald. The declaration, which was in the usual form, set forth the policy, in which was a warranty that, amongst other things, the assured was not afflicted with any disease tending to shorten life ; that he led, and continued to lead, a temperate life, and that he had a sound and good constitution. The policy also contained a proviso, which, after providing against the assured going beyond the limits of Europe, or entering the military or naval service, proceeded thus: " Or if anything so warranted as aforesaid shall not be true, or if any circumstance material to this insurance shall not have been truly stated, or shall have been misrepresented or concealed, or shall not have been fully and fairly disclosed and communicated to the said company, or if any fraud shall have been practised on the said company, or any false statements made to them in or about the obtaining or effecting of this insurance, this policy shall be null and void ; and all moneys paid by or on behalf of the said Patrick Fitzgerald on account of this insurance shall become forfeited." The declaration then contained the usual averments of the fulfilment of all matters requisite to be performed on the part of the deceased and his representatives by the terms of the policy, and negatived the doing of any of the matters which might have vitiated the policy. The defendant pleaded, first, non assumpsit, and secondly, a special plea, setting forth the " proposal and statement " which Fitzgerald had signed, and which contained among others the following declaration, " that none of his near relations had died of consumption, or any other pulmonary complaint, and that his life had not been [486] accepted or refused at any other assurance office; " and the plea alleged that " it was 551 IV HJUC., 487 ANDERSON V. FITZGERALD [1853] agreed between Patrick Fitzgerald and the company that the particulars stated in the declaration should form the basis of the contract between him and the company, and that if there should be any untrue allegation contained therein, or any mis-statement, the insurance should become forfeited, and the policy should be void." The plea then alleged that " the proposal and statement did form the basis of the contract, and that they were false, and contained untrue and unfaithful representations, inasmuch as Patrick Fitzgerald was then afflicted.with a disease of the lungs, etc., and that two of his sisters had died of consumption, and that his life had already been accepted at six different assurance offices and refused at six others." The third plea in like manner set forth the statement made by Fitzgerald, as made to Dr. Russell, the medical officer of the company, and then alleged that the said statement was false, and contained untrue and unfaithful representation of the facts, (setting forth among others), " that two of his sisters had died of consumption, and divers others of his relations had died of pulmonary complaints," and that he had theretofore made proposals for insurance to other companies and was insured at divers other offices; and that these statements were made by Fitzgerald to induce Eussell to report in favour of an insurance on his life. There were other pleas charging untrue representations as to his own state of health. The plaintiff replied de injuria as to the second and third pleas, and took issue on the others. The cause was tried before Mr. Justice Ball, at the Limerick Assizes, in March, 1848, when the " proposal" * [487] for insurance was put in evidence, and the facts alleged in the plea as proofs of the falsehood of the proposal and statement were proved; but it appeared that the two sisters who died of consumption were respectively aged sixty-seven and sixty-five. The learned Judge directed the jurymen that they " must not only be satisfied that the various false statements relied on by the defendant were false in fact, and were made in and about effecting the policy, but also that such false statements were material to the insurance, before they could find their verdict for the defendant." The defendant's counsel tendered a bill of exceptions to this ruling, on the ground that the jury should have been directed that, if the statements were made in and about the effecting the insurance, and such statements were false in fact, the defendant was entitled to a verdict, whether such statements were or were not material.! The verdict [488] was given for the plaintiff for 450, the * The " proposal " for insurance contained twenty-seven questions; among which were the following, with the answers thereto: " 1. Age next birth-day? Fifty-two years.-21. Did any of the party's near relations die pf consumption, or any other pulmonary complaint? No.-22. Has the party's life been accepted or refused at any office? No."-The " proposal " finished with this declaration : " I hereby agree that the particulars mentioned in the above proposal shall form the basis of the contract between the assured and the company, and if there be any fraudulent concealment or untrue allegation contained therein, or any circumstance material to this insurance shall not have been fully communicated to the said company, or there shall be any fraud or misstatement, all money which shall have been paid on account of this insurance shall become forfeited, and the policy be void." f The bill of exceptions set forth the whole evidence, and proceeded to make the following statements:-That the defendant's counsel called on the Judge to direct the jurors, that if, previous to the 'making of the policy, any false statement was made to the company in or about the obtaining or effecting of the said insurance, though the jury should believe that the same was not material to the insurance, they should find a verdict for the defendant. " But the said learned Judge then and there refused so to direct the jury." That the defendant's counsel called on the Judge to direct the jury, that if the statement as to the refusal or acceptance of the life at other offices was false, the verdict must be for the defendants, although the jury-might believe such false statement not to be material; but that he refused so to direct the jury, and told the jury to find whether the statement was false, and if false, whether it was material, and if the jurymen believed the statement to be " both false and material, they should find a verdict for the defendant on the first issue." There were similar exceptions as to the direction with regard to the answers of Fitzgerald as to his having had any relations who had died of consumption, and as to his making the insurance for the benefit of his family only. In each of these the Judge had directed 552 ANDERSON V. FITZGERALD [1853] IV H.L.C., 489 sum secured by the policy. The exceptions were argued in the Court of Exchequer, when the Lord Chief Baron expressed an opinion that they ought to be allowed...