Samuel Anderson, in Error, v Anne Fitzgerald, Administratrix of Patrick Fitzgerald

• Jurisdiction: Ireland
• Judgment Date: 24 April 1851
• Date: 24 April 1851
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

SAMUEL ANDERSON, in Error,

and

ANNE FITZGERALD, Administratrix of PATRICK FITZGERALD.

Bowerbank v. MonteiroENR 4 Taunt. 848.

Carr v. StephensENR 9 B. & C. 758.

Hartley v. WilkinsonENR 4 Camp. 127.

Carter v. BoehmENR 3 Burr. 1905.

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

Quin v. The National Assurance Company J. & Car. 316.

Rickards v. MurdockENR 10 B. & C. 527; S. C. 1 S. L. Cas. 283.

Sayre v. RochfordUNK 2 Wm. Bl. 1169.

Rich v. Basterfield 16 Law Jour. N. S. 273.

Cohen v. HuskissonENR 14 M. & W. 95.

Geach v. Ingall 17 Law Jour. N. S. 255, Ex.

Berthon v. LoughmanENR 2 Star. 258.

Pawson v. Watson Cowp. 786.

Pawson v. BarnaveltENR 1 Doug. 13, n.

Freeman v. BakerENR 5 B. & Ad. 797.

Richardson v. BrownENR 1 Bing. 344.

Flinn v. HeadlamENR 9 B. & C. 690.

Pawson v. Watson Cowp. Rep. 787.

Pawson v. Ewer Doug. Rep. 12 (note).

Pawson v. Watson Cowp. 790.

Worsley v. WoodENR 6 T. R. 710.

Feise v. ParkinsonENR 4 Taunt. 640.

Ducket v. Williams 2 Cro. & Mees. 35.

Duckett v. WilliamsENR 2 Cr. & M. 381.

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

COMMON LAW REPORTS. 251 E. T. 1851. Exch. Chain. eytttqutr aant6tr. Jan. 22. April 24. ASSIMPSIT against the defendant as one of the Directors of the A policy of in- surance effect- United Kingdom Life Assurance Company, to recover the sum of ed on the life of A ontained 450, the amount Of a policy of insurance, bearing date the 8th of a reccital, that August 1846, effected on the life of Patrick Fitzgerald. The policy A was a nur- seryman, and was as follows had warranted, and did there " Whereas Patrick Fitzgerald, of Kilrush, in the county of Clare, by warrant, several mat " Ireland, nurseryman, is desirous of making an assurance with the ters, therein particularly "United Kingdom Life Assurance Company in the sum of 450 specified, res pecting his " upon his own life, and hath warranted, and doth warrant, that his age, profes sion, state of health, and mode of life ; and also contained a proviso, that if A should die upon the high seas, or felt de se, &c., or if any thing so warranted as aforesaid should not be true, or if any circumstance material to the 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, or if any fraud should have been practised upon the Company, or any false statement made to them in or about the obtaining or effecting of the insurance, the policy should be void, and all monies paid on account thereof forfeited. A declaration in assumpsit on this policy, after setting forth the policy, its conÂÂsideration, and the promise by the Company, averred that the statements of the matters warranted [setting them forth seriatim] were true, and that there was not any circumstance material to the insurance mis-stated or misrepresented, or concealed, or not justly and fairly disclosed, and that there was not any fraud practised on the ComÂÂpany, or any false statement made to them in or about the effecting of the policy, and - concluded in the usual form. At the trial a proposal, executed by A prior to the exeÂÂcution of the policy, was proved, which contained several queries put to A, and his answers thereto ; and at foot thereof was an agreement that the particulars therein mentioned, and which might be stated by A, should form the basis of the contract between A and the Company; and if there was 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 there should be any fraud or mis-statement, all money which should have been paid on account of the insurance should be forfeited and the policy void. Held, that the proposal was no part of the contract. Held also, that according to the true construction of the contract between the parties, a statement made in or about the obtaining of the policy must be not only false, but also material to the insurance in order to vitiate the policy, and that the question of materiality was properly left to the decision of the jury.-Dissentientzbus MONAHAN, C. J., PIGOT, C. B., and JACKSON, J. * Absentibus CRAMPTON, J. and RICHARDS, B. 252 COMMON LAW REPORTS. E. T. 1851. "name, residence and profession, business or occupation, is as above Exch. Cham. " stated, and that his age will not exceed fifty-two years on his next ANDERSON V. " birth-day ; that he is not employed in military or naval or preven FITZGERALD. " tive service ; that he has had the small-pox, that he has not had " the cow-pox, and that he has not had the gout ; that he has not "been nor is subject to or afflicted with rupture, fits, or convulsions "since childhood, asthma, insanity, or spitting of blood, and that he " is not afflicted with an habitual cough, or any disease or disorder "tending to the shortening of life, and that he has led, and conÂÂ" tinues to lead, a temperate life, and that he has a sound and good "constitution, and is now in a good state of health. " And whereas the said Patrick Fitzgerald has paid the said " Company the sum of 21. Os. 9d. as the premium for one year, " commencing on the 8th day of August 1846, and terminating on " the 7th day of August 1847, both days inclusive. " KNOW all men by these presents, that if the said Patrick FitzÂÂ" gerald shall die at any time within the term of twelve calendar "months, commencing on the 8th day of August 1846, and ending " on the 7th day of August 1847, both days included ; or if the said "Patrick Fitzgerald shall, in the event of his living beyond the said. "term of one year, pay to the said Company during his life the sum " of 21. Os. 9d. on or before the 8th day of August in every subse quent year, the funds and property of the said Company shall be " subject and liable to pay and satisfy, within three calendar months " after proof satisfactory to the Board of Directors shall have been "received at the principal office of the said Company, of the death "of the said Patrick Fitzgerald, and the cause of such death, and " the circumstances connected therewith, and also of the time of the "birth of the said Patrick Fitzgerald, unless admitted by indorseÂÂ" ment hereon, by the production of certificates of birth, death and "burial, and of such other documents or vouchers, and by the affordÂÂ" ing such information as the Directors may reasonably require, unto "his executors, administrators or assigns:the sum of 450 hereby " assured. "Provided always that in case the said Patrick Fitzgerald shall " die upon the high seas, unless in passing in decked vessels in time -" of peace from one part of Europe to another, or shall go beyond COMMON LAW REPORTS. 253 " the limits of Europe, or shall enter into or engage in any active E. T. 1851. Exch. Chain. "military or naval service, or the preventive service, without previous ANDERSON "license from the Board of Directors of the said Company for that v. . " purpose, or shall kill or destroy himself, or cause his own death, rtrzoeaesw.o " whether felo de se or otherwise, or die by duelling or by the hand " of justice, 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 conÂÂ" cealed, or shall not have been fully and fairly disclosed and "communicated to the said Company, or if any fraud shall: have 4' been practised upon 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 monies paid by or on "behalf of the said Patrick Fitzgerald on account of this insurance " shall become forfeited. "Provided, nevertheless, that if this policy shall be kept in: force "for the space of five years, and five annual payments shall have "been paid thereon, and that thereafter the said Patrick Fitzgerald 4" shall die by duelling, this policy shall be valid for one-half of the "sum hereby assured. And further, that although the said assured " may die by duelling, or destroy himself, or cause his own death, " or die by the hands of justice as aforesaid, yet that if any other "person shall have acquired a bona fide interest in this assurance " by assignment or by legal or equitable lien, this policy shall "remain valid and in force to the extent of such other person for " his benefit, and his receipt shall be a sufficient discharge to said " Company. "Provided always, and it is hereby expressly agreed and declared, "and the true intent and meaning hereof is, that the capital, stock " and funds of the said Company shall alone be answerable to the " demands payable thereupon under this policy and all other pollÂÂ" ties, and that no Director, officer, or member thereof shall in any "event or on any account, or in any manner be subject or liable to " any demand or claim against the said Company beyond his or ,her " particular share or interest in the capital, stock or funds of •the "said Company at the time when such claim may arise, anything 254 COMMON LAW REPORTS. E. T. 1851. "contained in this policy, or any law or statute to the contrary Exch. Cham. "hereof notwithstanding. In witness whereof," &c. ANDERSON v. The declaration contained three counts. The first count, after FITZGERALD. setting forth the policy, proceeded to aver, that in consideration that Patrick Fitzgerald, at the request of the Company, had paid to the Company 21. Os. 9d. as a premium for the insurance of 450 upon -the life of Patrick Fitzgerald for one year, and had then promised the Company to perform and fulfil all things in the policy on his part to be performed and fulfilled ; the Company then and there promised Patrick Fitzgerald to become an assurer to him of the said sum of 450, and that they would pay to his executors, &c., within the time in the policy, said sum, and would perform and fulfil all...