Anderson v Fitzgerald

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

House of Lords.

ANDERSON,

Appellant;

FITZGERALD,

Respondent.

and

Duckett v. WilliamsENR 2 Cr. & M. 348.

Geach v. IngallENR 14 M. & W. 95.

Pawson v. WatsonENR I note to Bean v. Stupart, 1 Dougl. 12; also Cowp. 785.

Scanlan v. Sceales 6 Ir. Law Rep. 367.

Borradaile v. Hunter 5 Scottƒ€™s N. R. 418.

Mƒ€™Alpine v. Mangnall in errorENR 3 C. B. 516.

9Writ of Error from the Exchequer Chamber in Ireland.)

COMMON LAW REPORTS. 475 1853. H. of Lords. VousSe of if,ortIO. ANDERSON, Appellant; FITZGERALD, Respondent.* July 4, 14. Tins was a writ of error on a judgment of the Exchequer Chamber F. proposed his life for in Ireland, which affirmed a judgment of the Court of Exchequer insurance, and signed a form ,in Ireland, on a bill of exceptions for misdirection. It was an of proposal, which con- action of assumpsit on a policy, by the personal representative lained his an_ twenty--seven to of the assured, against one of the directors of the United King- twenty-seven cicala Life Assurance Company.-[The facts are fully stated in questions, the twenty-first - the report of the case in the Exchequer Chamber, 1 Ir. Law - and twenty cond se of which fol- Rep., p. 251.] were as low :-" 21. Did any of the party's near relations die of consumption or any other pulmonary complaint ?-Answer, No"-" 22. Has the party's life been accepted or refused at any office ? &c.-Answer, No." The proposal also contained the following agreeÂÂment :-"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 mis-statement, all money which shall have been paid on account of this insurance shall become forfeited, and the policy be void." The policy contained a warranty on the part of F., as to most of the facts, replied to in the proposal, but not as to questions -21 and 22. It then proÂÂvided that the policy should be null and void, and all moneys paid by F. forfeited, upon F. dying in certain enumerated modes ; " or if any thing 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 upon the said Company, or any false stateÂÂment made to them in or about the obtaining or effecting of this insurance." Upon an action on the policy against the Company, it appeared that the answers to quesÂÂtions 21 and 22 were not true :-Held, reversing the decisions of the Courts of Exchequer and Exchequer Chamber in Ireland, that the Judge was wrong in directing the jury, that if they found the statements both false and material, they should find a verdict for the defendants ; and that the questions which the Judge ought to have left to the jury were-first, were the statements false ; and secondly, were they made in obtaining or effecting the policy ? Observations on the form of this policy and its ambiguity, and the effect of making some of the statements in the proposal matters of warranty-per Lord St. Leonards. A bill of exceptions should state what directions the Judge gave on the particular issue raised, as it is misdirection, not non-direction, which is the proper subject of a bill of exceptions.-Per the Judges. *Before the LORD CHANCELLOR (LORD CRANWORTH), LORD BROUGHAM and LORD ST. LEONARDS, assisted by PARKE, PLATT, ALDERSON & MARTIN, E.B. ; COLERIDGE, WIGHTMAN, WILLIAMS, ERLE, CRESSWELL, TALFOURD and CROMPTON, J.J. 476 COMMON LAW REPORTS. 1853. Sir F. Kelly and Bovill, for the plaintiff in error. H. of Lords. ANDERSON v. Napier and Fitzgerald (of the Irish Bar), for the defendant FITZGERALD. in error. The following authorities were cited :-Duckett v. Williams (a); Geach v. Ingall (b); Pawson v. Watson (c) ; Scanlan v. Sceales (d), and Borradaile v. Hunter (e). At the conclusion of the arguments, the following questions were put for the opinion of the Judges:- "First, was it necessary for the plaintiff in error to prove on the " trial, that the answers given by Fitzgerald to questions twenty-one " and twenty-two, contained in the proposal dated 'Kilrush, 17th "of June 1846,' or either of them, were or was material as well as false?" " Secondly, if it was necessary for the plaintiff in error to prove "the materiality as well as the falsehood of the answers, or either " of them, are the exceptions, so far„ as they relate to the ruling " of the learned Judge, on the issues joined on the second and "third pleas, or either of them, sustainable ?" PARKE, B., on behalf of the Judges, requested time to consider. July 4. PARKE, B., now delivered the unanimous opinion of the Judges, as follows:- Your Lordships have proposed two questions for the considerÂÂation of those of her Majesty's Judges who heard the argument of the case at your Lordships' bar. The first is-Was it necesÂÂsary for the plaintiff in error to prove on the trial that the answers given by Fitzgerald to questions 21 and 22, contained in the proposal dated " Kilrush, 17th of June 1846," or either of them, were or was material as well as false ? I have to state, that we have considered with due attention the very able (a) 2 Cr. & M. 348. (b) 14 M. & W. 95. (c) In note to Bean v. Stupart, 1 Dougl. 12 ; also Comp. 785. (d) 6 Ir. Law Rep. 367. (e) 5 Scott's N. R. 418. COMMON LAW REPORTS. 477 arguments, both at your Lordships' bar and in the judgments 1853. H. of Lords. of the Irish Judges, which are fully reported in the printed ANDERSON cases laid before us, and that we find ourselves unable to agree in v. the conclusion at which the majority of those Judges have arrived. FITZGERALD The answers referred to by your Lordships were given to two questions put to the assured, Fitzgerald :-the first, wheÂÂther any of the party's near relatives died of consumption, or other pulmonary complaint ? and secondly, whether the party's life had been accepted or refused at any other office; and if accepted, whether at the usual premium, or with what addition ? To both the assured answered in the negative. At the end of the list of questions, the assured subscribed a declaration, to the effect that the particulars should form the basis of the contract between the assured and the Company, and that if there were any fraudulent concealment or untrue allegation contained therein, or any circumstance material to the insurance should not have been fully communicated to the Company, or if there should be any fraud or mis-statement, all the money paid on account of the insurance should be forfeited, and the policy should be void. The first question then submitted to us is, whether it was necessary for the plaintiff in error to prove on the trial that the above answers, or either of them, were or was material as well as false ? We are all of opinion that it was not. This question does not appear to us to turn upon the well-known distinction between warranties and representations, laid down by Lord MansÂÂfield, nor upon the point whether the declaration above mentioned was either a part of the contract binding between the parties, irrespective of the policy, or meant to be referred to by it. The proviso is clearly a part of the express contract between the parties, and on the non-compliance with the condition stated in the proviso, the policy is unquestionably void. The case, thereÂÂfore, resolves itself, in our view of it, as it does in that of most of the Irish Judges, simply into a question of the construction of the proviso itself; and it is upon questions of that nature that different minds are apt to differ in their conclusions, however disposed to adopt the established rules for the construction of VOL. 3. 61 L 478 COMMON LAW REPORTS. 1853. written instruments. 13y that proviso it is stipulated, first, that H. of Lords. if the assured should die on the high seas (with certain excep ANDERSON V. tions), or should kill himself, or die by duelling, &c., or if any FITZGERALD. thing warranted as before mentioned (and there were several express warranties before stated) should not be true, or if any circumstance material to that insurance should not have been truly stated, or should have been misrepresented or concealed, or should not have been fully and fairly disclosed and communicated to the Company, the policy should be void. Thus far the condition applies only to material matters ; but it proceeds to declare, obÂÂviously with a view of extending the protection of the office still further, that if any fraud shall have been practised on the ComÂÂpany, or any false statements made to them, in or about the obtaining or effecting of that...