Scanlan and Wife, Administratrix, v Sceales and Others

• Jurisdiction: Ireland
• Judgment Date: 29 January 1849
• Date: 29 January 1849
• Court: Exchequer of Pleas (Ireland)

Exchequer of Pleas.

SCANLAN and Wife, Administratrix,

and

SCEALES and others.

See 5 Ir. Law Rep. 139.

See Sceales v. Scanlan, 6 Ir. Law Rep. 367, et seq.

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

CASES AT LAW. 71 H. T. 1849. Exch.of Pleas. SCANLAN and Wife, Administratrix, V. SCEALES and others. Jan. 27, 29. B po Tins was an action of assumpsit, brought by. the administratrix of asysuarancelic y of one Edmond Fitzmaurice against three of the Directors of the effected by one E. F. with the Caledonian Insurance Company, upon a policy of insurance effected C. I. Com pany upon his with the Company on the 24th of July 1838, upon the life of Fitz- own life, it was recited maurice, for the sum of £1500. Fitzmaurice died in May 1839. that he had deposited in the office of the Company " a declaration, signed by him, dated, &c., which being set forth as the strict statement of facts," was received as the basis and condition of the contract of assurance between the said Company and the said E. F. ; and it was provided as folÂlows:-" That in case any untrue or fraudulent allegation be contained in the said declaration deposited in the office as aforesaid, or that any information regarding the past health or habits of the party assured, or other circumstances important for the Directors to know, should have been withheld from them, &c., then and in every such case this policy shall be null and void." The declaration referred to was headed, " Form of Life Assurance Declaration, always to be referred to as the bona fide basis of agreement between the Company and the assured," and contained, amongst others, the following query and answer thereto :-" Reference to the usual medical attendant on the life or their family as to the present, past and general state of health and habits of the life to be assured P" -" Never had a medical attendant until Dr. Ludgate dressed his leg when it was scalded ; his certificate accompanies this." The declaration concluded in these terms :-" I Edmond Fitzmaurice, the party proposing the preceding assurance, do hereby declare and agree that what is above set forth and stated by me is the strict truth, and shall be the basis of the contract of this insurance between the C. I. Company and me ; and if it shall hereafter appear that any of the matters set forth have not been truly and fairly stated, or any mateÂrial fact connected with the health or habits, occupation or my interest in and of the life proposed for insurance, should be withheld from the knowledge of the Directors, or if my said interest in the policy shall cease, then all moneys which shall have been paid in consequence thereof shall be forfeited, and the insurance itself shall be absoÂlutely null and void ; and I do hereby declare my accession to the articles of agree. ment of the C. I. Company, &c. Dated at C., and signed by me, upon the 20th day of June 1838.-E. F." In an action brought by the administratrix of E. F. to recover the amount of the above policy, the defendants, in order to show that the answer by E. F., that he never had a medical attendant until Dr. Ludgate dressed his leg, was untrue, proÂduced as a witness a physician, who stated that he had attended E. F. for influenza in January 1837 (which was prior to Ludgate's attendance). There having been a verdict for the plaintiffs Held, on motion for a new trial, that though the question and answer were, as decided by the Court of Exchequer Chamber, in Sceales v. Scanlan (6 Ir. Law Rep. 367), matter of warranty, that the jury were justified in considering the truth or falsehood of the answer with reference to the terms in which the question was proÂposed, and that therefore, and also inasmuch as the jury might have been of opinion that the witness, who was not corroborated as to that fact, might have been mistaken as to the date of his attendance, the defendants were not entitled to have the verdict set aside as being against the weight of evidence. 72 CASES AT LAW. H. T. 1849. The policy, which, together with the proposal and declaration Exch. of Pleas. hereafter referred to, will be found set forth in full in the 5th vol. SCANLAN of the Irish Law Rep., p. 139-41, after stating that a declaration, v. SCEALES. signed by Fitzmaurice, dated the 20th of June 1838, had been deposited in the office of the Company, " which, being set forth as the strict statement of the facts," was "received as the basis and condition of the contract of assurance between the said Company and the said Edmond Fitzmaurice," proceeded, after a variety of stipulations, as follows :-" 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 re specting the past health or habits of the party assured, or other " circumstances 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, &c., then and in every "such case this policy shall be null and void, and all moneys paid "therefor shall be forfeited to the said Company." The proposal and declaration referred to in the policy were, as far as they are material to be stated here, as follows : "Form of Life Assurance Declaration, always to he referred to "as the bona fide basis of agreement between the Company and "the assured. Submitted 21st of June 1838. Disposed 26th June " 1838. Policy, No. 1169." " State if the life had the measles and small-pox or cow-pox ?- " Yes, all of them.' Is the life proposed for insurance of active and "strictly temperate habits ?-' Yes.' Has he been always so ?.Â"'Yes.' Reference to the usual medical attendant on the life or " their family as to the present, past and general state of health and "habits of the life to be assured ?-' Never had a medical attendant " until Dr. Ludgate dressed his leg when it was scalded. His certiÂ" ficate accompanies this.' " "I Edmond Fitzmaurice, the party proposing the preceding "assurance, do hereby declare and agree that what is above set "forth and stated by me is the strict truth and shall be the basis " of the contract of this insurance between the Caledonian TnsurÂ" ance Company and me ; and if it shall hereafter appear that any CASES AT LAW. 73 "of the matters set forth have not been truly and fairly stated, or H. T. 1849. xch. of Plea "any material fact connected with the...