Harvey v Ocean Accident and Guarantee Corporation

• Jurisdiction: Ireland
• Judgment Date: 30 June 1904
• Date: 30 June 1904
• Court: Court of Appeal (Ireland)

Harvey

and

Ocean Accident and Guarantee Corporation (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1905.

Insurance — Condition in policy — Condition against suicide — Cause of death — Injury by accident from an outward, external, and visible means or cause — Drowning — Presumption against crime.

H. insured his life with the defendants by a policy, which became a claim if the insured sustained any bodily injury by accident from an outward, external, and visible means or cause, and died solely from the effects of such accident within ninety days; but the defendants were only bound to pay after proof, satisfactory to the directors of the Company for the time being, of the cause of death had been given. The policy contained a condition that it would not extend to death by suicide, and a condition that in the event of any dispute arising between the Company and any claimant it should be referred to arbitration, and that the decision of the arbitrator should be conclusive evidence of the amount payable in respect of the claim, and that obtaining an award should be a condition precedent to the liability of the Company to pay any claim under the policy.

The insured (H.) was last seen alive in Cork about o'clock, p.m., on the 1st April, 1902. On the 20th April his body was found in the south branch of the River Lee, about one mile above Cork, without any marks of violence. At the coroner's inquest very little evidence was given, and a verdict was returned of “found drowned,” and a newspaper cutting, containing the evidence and the finding at the coroner's inquest, was sent by the personal representative to the Company, claiming payment. The Company refused to pay, and the matter was referred to arbitration. Further evidence was given before the arbitrator tending to explain the finding of the body in the place where it was found, and to prove the probability of accident.

The arbitrator found that the death was caused solely by drowning; that the insured died solely from the effects of bodily injury from an outward, external, and visible means or cause, but that no evidence was given by either party on which the arbitrator could find or determine at what particular part of the river, in what manner, under what circumstances, or from what immediate cause, he became immersed in the river so as to be drowned, or on which he could find or determine, apart from any presumption of law, whether the cause of death was accident or suicide. He further awarded that proof of death by drowning was given, but no proof was given to the directors from which they ought to be reasonably satisfied that the death was accidental: if, on the true construction of the policy, the onus lay on the claimant of giving such proof, he awarded that he had not:—

Held, by Madden and Wright, J J., (1) that proof by the administrator of H. that H. was found drowned in the River Lee, and that his death resulted solely from drowning, was not a sufficient compliance with the terms and conditions of the policy to entitle the administrator of H. to recover; (2) that the onus lay on the administrator of H. to give to the Company such proof of the drowning of H., and the proximate cause thereof, as ought reasonably to satisfy the Company that the drowning was the result of accident.

Held, by Lord O'Brien, L.C.J., (1) if there was nothing more in the case than the mere fact of the body being found drowned, that, having regard to the presumption against suicide and crime, death would be referable to an accident, and the administrator would, accordingly, be entitled to recover; but (2) that all the facts having been referred to the consideration of the Court by the arbitrator, the Company were, and would be, justified in not being satisfied that the death was due to an accident, and that, accordingly, judgment should be in favour of the defendants.

Held, by the Court of Appeal, upon the first question, that death by drowning is death from an outward, external, and visible means or cause, and that death from such a cause is prima facie death by accident; and when the tribunal of fact found the evidence so equally balanced that there was precisely the same weight of evidence in favour of accident as of suicide, the presumption of law against crime would entitle the claimant to recover the amount of the policy.

The Court of Appeal affirmed the decision of the King's Bench Division as to the second question.

Case Stated by an arbitrator appointed under the conditions endorsed on a policy of insurance effected by C.M. Harvey with. the Ocean Accident and Guarantee Corporation, dated 1st January, 1897, to award and determine:—“(a) Whether said C. M. Harvey died solely from the effects of bodily injury sustained by accident from an outward, external, and visible means or cause within the meaning of the policy; (b) whether proof satisfactory to the directors of the Corporation of the cause of the death of said C. M. Harvey was given within the meaning of the policy; (c) whether all the stipulations and conditions contained in or endorsed on the policy have been fulfilled so as to enable W. W. Harvey (the administrator of C. M. Harvey) to recover on foot of the same; (d) all other questions, matters, and things in controversy, arising out of or concerning said policy, or the reference, or in anywise incidental thereto.”

The terms of the policy were that if the assured should sustain any injury by accident from an outward, external, and visible means or cause, and if the assured should die solely from the effects of such accident, within ninety days from the happening thereof, the Company should pay to his executors, administrators, or assigns £1000 after proof, satisfactory to the directors of the Company, of the cause of the death should have been given.

The policy contained a condition that the Insurance Company should not be liable in case of suicide; and also a condition that in the event of any dispute arising between the Company and any claimant, it should be referred to arbitration, and that the decision of the arbitrator should be conclusive evidence of the amount payable in respect of the claim, and that obtaining an award should be a condition precedent to the liability of the Company to pay.

When the claim was made on foot of the policy, the Company refused to pay, on the ground that satisfactory evidence had not been furnished to the Company that the death of the assured occurred from accident within the meaning of the policy. The matter was referred to arbitration, and the facts are fully set out in the arbitrator's award. Further evidence of the facts and surrounding circumstances was given before the arbitrator beyond what had been sent to the Company when the claim was made.

The arbitrator found as follows (1):—

1. The said C. M. Harvey at the time of his death was Secretary to the Royal Cork Yacht Club at Queenstown at a salary of £150 a year, with free apartments and board, and had other emoluments as Consul worth about £100. He was unmarried.

2. For many years prior to his death he was in embarrassed circumstances; and at the time of his death his debts amounted to about £600, exclusive of two large claims made against his estate since his death. One of these claims was preferred by the representative of a former steward of the Yacht Club for provisions, &c., supplied to said Charles Meade Harvey several years ago; and the other was a claim by Mr. Wade, a trustee with the deceased of the marriage settlement of Mrs. Collings, sister of said deceased, for contribution to a sum of £500 trust funds which Mr. Wade had been compelled to replace under an order of the Chancery Division of the High Court of Justice in Ireland made in the year 1895. The assets of the deceased were valued at £90, exclusive of the amount of the policy in dispute.

3. In and prior to the year 1902 the deceased had, as secretary to the Yacht Club, received moneys for bar accounts and subscriptions, which ought to have been lodged in bank to the credit of the Club, and had applied portions of said moneys to his own use. The deficit in his accounts in respect of these moneys amounted in December, 1901, to £39, and in April, 1902, to the sum of £59, after crediting him with the proportion of salary due to the latter date. Complaint was from time to time made by one of the club trustees of the irregular way in which the accounts were kept, and the moneys dealt with by the deceased. The deceased had an account of his own with the Bank of Ireland at Queenstown, guaranteed by a friend to the amouut of £50. In the month of March, 1902, this account was overdrawn, and the Bank was pressing to have it squared. The deceased met this demand by lodging the acceptance of a friend for £40. He was about the same time threatened with an action for the price of a gold cigarette case which he had purchased on credit, after receiving the money to buy it from a friend who desired to make him a present.

4. Immediately prior to the 1st April, 1902, the deceased was trying to borrow money. He had applied to a friend in Cork, Mr. A., who had accommodated him on previous occasions, stating that he wanted money urgently; but this gentleman declined to make a further advance. He also wrote to a friend in England, Mr. B., for a loan of £50, on the security of share certificates of the estimated value of £70, and Mr. B. sent a cheque for the amount, returning the certificates; but Mr. B.'s letter was not delivered at Queenstown till the 2nd April, 1902, and never reached the deceased.

5. The immediate relatives of the deceased in Cork were his brother, W. W. Harvey, and his sister, Mrs. Haynes. The former had not been in communication with the deceased for six months prior to his death, and the latter had not seen him for about two years. There...