Scanlan and Wife, Administratrix of Edmond Fitzmaurice, Deceased, v Sceals and Two Others

• Jurisdiction: Ireland
• Judgment Date: 11 June 1841
• Date: 11 June 1841
• Court: Exchequer of Pleas (Ireland)

Exch.of Pleas

SCANLAN and wife, Administratrix of EDMOND FITZMAURICE,deceased,

and

SCEALS and two others

Newcastle Fire Insurance Company V. M'Morran 3 Dow. P. C. 255.

Everett V. DesboroughENRUNK 5 Bing.503; S. C. 3 M. & P.190.

Murphy V. Harris Batty, 206.

De Hahn V. HartleyENR 1 T. R. 343.

Quinn V. The National Insurance Company 6 Law Rec. N. S. 267; S. C. in Eror, Jones & C. 237.

Moir V. The Royal Exchange Assurance CompanyENR 3 M. & S. 461.

Huckman V. FerneyENR 3 M. & W. 505.

Duckett V. WilliamsENR 2 C. & M. 349.

Routledge V. Burrell 1 H. BI. 255.

Wood V. Worsely 2 H. BI. 577.

Worsely V. Wood, in ErrorENR 6 T. R. 710.

De Hahn V. HartleyENR 1 T. R. 343.

Westropp V. Bruce Batty, 161.

Pawson V. Watson Cowp. 785.

Bean V. Sturpart Doug. 11.

Pawson V. Barnevelt Doug. 12.

The Newcastle Fire Insurance Company V. Macmoran 3Dow. 255.

Everett V. DesboroughENR 5 Bing. 503.

Huckman V. FerneyENR 3 M. & W.505.

Wright V. KempENR 3 T. R. 470.

Fowler V. PadgetENR 7 T. R. 514.

Ross V. Bradshaw 1 W. Black. 312.

Willis V. Poole Cited in Parke on Insur. 650.

Everett V. DesboroughENR 5 Bing. 503.

Ball V. Mannin 1 Dow. & CI. 892.

Everett V. DesboroughENR 5 Bing. 503.

Everett V. DesboroughENR 5 Bing. 503;S. C.3M. & P.190.

Ball V. Mannin 1 Dow. & CI.392; S.C.S. & B.454.

1841. Exch. of Pleas SCANLAN and Wife, Administratrix of EDMOND FITZMAURICE, deceased, SCEALS and two others, Directors of the Caledonian Insurance Easter Term. Company.* April 7 , 8. Trinity Term. Tune H. THIS was an action of assumpsit against the defendants, three of the Where a li po- c insur- Directors of the Caledonian Insurance Company, to recover the sum of ancy eof effected £1500, the amount of a policy of insurance, bearing date the 24th day on the life of F., contained of July 1838, effected on the life of one Edmond Fitzmaurice, deceased. an introduc The policy was in the following terms :- tory recital that F. " had " Sum insured £1500. " Premium 178 15 0 deposited in the office of " Stamp . 1 10 0 the Company a declaration " Total £80 5 0 including extra signed by him, which being " for tendency to weak bowels only. Annually £78 15 0 on 20th June, set forth as the "including extra for tendency to weak bowels only, strict state- ment of the " - facts, was re Whereas Mr. Edmond Fitzmaurice, writing clerk, Dominick-street, ceived as the " Cork, has proposed to effect an assurance on his own life with the basis and con dition of the " Caledonian Insurance Company, for the term of life, in the sum of contract of as- "£1500, and has deposited in the office of the said Company, a decla- - surance be the " ration signed by him, dated the 20th of June 1838, which being set Company and the said F. setting forth," &c. (extracting certain parts of the declaration, but omitting others) ; and the policy concluded with a proviso that in case any untrue or fraudulent allegation were contained in the said declaration, deposited in the office as aforesaid, or that information respecting the past health or habits of the party assured, or other circumstance important for the Directors to know, should have been withheld from them, &c.; then, and in any such case, the policy should be null and void. Held, that upon the whole of the instrument, the true construction of the policy was, that no more of the declaration than was set forth in the introductory part of the policy, was incorporated with it as matter of warranty ; and therefore, that the suppression by F. of the fact of his having been attended by another medical man besides the one named in the declaration, did not vitiate the policy, it not having been included among the things made matters of warranty by incorporation with the policy, and the Jury having found that the fact suppressed was neither fraudulently withheld, nor a circumstance important for the Directors to know. Where it was made matter of warranty in a policy of insurance, that the habits of the party whose life was insured, were " strictly temperate ;" Held, in an action on the policy against the Directors of the Company, that the words "strictly temperate " are subject to construction, and that the defendants were not entitled to a direction from the Judge that those words should be construed in their literal sense ; and a general exÂception taken by the defendants to the Judge's charge, so far as it was explanatory of their meaning, was overruled, much of the charge being admittedly right, and the dcendÂants not having pointed out by their exception the particular parts of it which v ere objectionable. This case n as unavoidably omitted in i proper place. "forth as the strict statement of the facts, is received as the basis and "condition of the contract of assurance between the said Company and "the said Edmond Fitzmaurice ; setting forth, that the age of the said " Edmond Fitzmaurice does not exceed fifty years, and that the said " Edmond Fitzmaurice is now in a state of perfect good health, and not "subject to any disease or ailment which tends to shorten life, except "tendency to weak bowels only ; that his habits of living are now, and "have been always, active and strictly temperate ; and also declaring his " accession to the articles of agreement and constitution of the life "assurance department of the said Caledonian Insurance Company, "recorded in the books of council and session in Scotland, on the 30th "day of December 1833,-and in particular to articles fifth and eighth " thereof, by which it is declared, that no member or partner shall incur " or be liable in any personal responsibility for the claims of the assured " or others, on the said company, nor the real or personal estate of any "partner or member as an individual, be affectable by the same in any "way whatever. And whereas the said Edmond Fitzmaurice has made " payment to the Manager of the said society of the sum of £78. 15s., " being the premium for the assurance of £1500, on the life of himself, " for the space of one year, commencing on the 20th day of June 1838, " and ending on the 20th day of June 1839, the receipt whereof " is hereby acknowledged ; it is hereby declared, that in case the said " Edmond Fitzmaurice shall happen to die at any time within the term " of one year as above set forth, the stock and funds of the Company "shall be subject and liable, according to the provisions of the aforesaid "articles of agreement, as well as the printed conditions annexed, to " satisfy and make good, within three calendar months after proof satisÂ" factory to the Directors of the death of the said assured has been "received, to the said Edmond Fitzmaurice's executors or administrators, "the sum of £1500. And it is hereby further declared, that this policy " may be continued in force from year to year by annual payments, until "the expiration of the term first above mentioned, provided the said " Edmond Fitzmaurice shall duly pay to the said Company, on or before "the 20th day of June next ensuing, the sum of £78. 15s , and the like sum " on or before the expiry of every year thereafter, which annual payments "shall be accepted as a full consideration for such assurance. PROVIDED "NEVERTHELESS, that in case any untrue or fraudulent allegation be "contained in the said declaration, deposited in the office as aforesaid, " or that any information respecting the past health or habits of the party " assured, or other circumstance important for the Directors to know, shall "have been withheld from them, or in case payment of the said premiums "shall not be regularly made as aforesaid, or if the interest on the part of "the assured in the life shall cease and determine, or in case any of the "nullities specified in the conditions hereunto annexed, as well as in the "original proposal, then, and in every such case, this policy shall be null "and void, and all monies paid therefor shall be forfeited to the skid T. T. 1841. " Company. In witness whereof, these presents, partly printed, and Eleel"f Pie" "partly written, on stamped paper (the writing having been filled up by SCANLAN " James Buchannon, clerk to said Company), are subscribed by three v. " Directors and the Manager of the said Company, at Edinburgh, the scEaLa. " 24th day of July 1838 years." Signed, &c. The printed conditions annexed to the policy, and referred to by it, provided for the payment of the premium within a certain period after the stipulated time, and related to other matters not material to the questions raised in the case. The proposal and declaration mentioned in the policy were as follows : " Form of life assurance declaration, always to be referred to as the "bond fide basis of agreement between the Company and the assured. " Submitted, 21st of June 1838. Disposed, 26th of June 1838. " Policy, No. 1169. " Name, residence, and profession or occupation of the person effecting " the assurance with the Company.-' Edmond Fitzmaurice, writing clerk, " Dominick. street, Cork.' " Name, residence, and profession or occupation of the person on " whose life the assurance is to be made.-' Edmond Fitzmaurice (same).' " Place and date of birth.-' Ballylongford, county Kerry ; February " '1789? " Age next birth-day.-Fifty years.' " If been abroad beyond Europe, how long, and where?-' No. " Term for which the assurance is to be made with the Company.Â"' For life.' " Sum to be assured.-' £i500: " State if the life had the measles and small pox, or cow pock ?-' Yes, "'all of them.' " State if the assured at any time has been afflicted with gout, " insanity, asthma, habitual cough, dropsy, liver complaint, fits, hernia, "rheumatism, disease of the heart, erysipelas, delirium tremens, or been " subject to chest disease, consumption, or spitting of blood ?-' No.' " Or if at any time been subject to, or afflicted with any other disorder " or ailment tending to impair the constitution or shorten life, or has he "suffered any severe accidents in his...