[IN THE COURT OF APPEAL.]

JOEL v. LAW UNION AND CROWN INSURANCE COMPANY.

Insurance (Life) - Agreement that Statement should be the Basis of the Contract - Effect of Answers to Questions put by Medical Referee of Insurers to Assured - Non-disclosure of material Facts - Absence of Fraud.

One R. M. effected with the defendants an insurance upon her own life in pursuance of a proposal in which she made certain statements, the truth of which was not disputed. She signed a declaration that the statements so made were to the best of her knowledge and belief true, and by which she agreed that "this proposal and declaration" should "be the basis of the contract" between her and the defendants. Subsequently to the proposal, but before the execution of the policy, certain questions contained in a printed form were put to her by a doctor, who was instructed by the defendants to put these questions with any necessary explanation and fill in her answers thereto, and to report upon her health, and these questions were answered by her. Many of these questions related to matters of health, the answers as to which could only be matter of opinion, even if given by a medical expert. Among these questions she was asked to give the names of any medical men consulted by her, and to state when and for what she consulted them; and whether, among other complaints, she had ever suffered from mental derangement. The answer to the last-mentioned question was in the negative, whereas in fact she had, though not aware of the fact, been in confinement for acute mania; and, in the answer to the first-mentioned question, as filled in by the doctor, the name of one Dr. K. M., whom she had consulted for nervous breakdown following influenza, was not mentioned. She signed a second declaration, contained in the before-mentioned form, wherein she declared, "with reference to the proposal for assurance" on her life and her previous declaration, that the answers to the foregoing questions were all true. This declaration did not state that the answers were to form part of the basis of the contract. The policy did not refer to the proposal or either of the declarations. The assured subsequently committed suicide.

An action having been brought on the policy by the executrix of the assured, the defendants resisted the plaintiff's claim upon the ground that the accuracy of the answers to the above-mentioned questions was made a condition precedent to the validity of the policy, and upon the ground of misstatement and non-disclosure of material facts by the assured. The doctor who put the questions to the assured was not called as a witness at the trial. The jury found in answer to the following questions as follows:- Did the assured fraudulently conceal from the defendants that she had consulted Dr. K. M. for nervous

depression? Answer. - She foolishly, but not fraudulently, concealed this fact. Was the fact that she had consulted Dr. K. M. for nervous breakdown material for the company to know in considering whether they would insure the assured's life? Answer. - Yes. Upon these answers judgment was entered for the defendants:-

Held, on appeal, that, although the terms of the first declaration signed by the assured did not exclude the possibility of the truth of her answers to the questions referred to in the second declaration being material to the validity of the policy, yet, having regard to the nature and purpose of those questions, the truth of the answers to them was not, on the true construction of the documents, made part of the basis of the contract.

Held, further, that under the circumstances of the case, without the evidence of the doctor who put the questions to the assured as to what took place when he put the questions to her, and what explanation of them he gave to her, the second declaration signed by the assured as above mentioned was not per se sufficient evidence to prove that there had been any such non-disclosure of material facts by the assured as would, in the absence of fraud, render the policy voidable.

APPEAL from a judgment of the Lord Chief Justice upon further consideration. (1)

The action was brought by the executrix of the will of one Robina Morrison, deceased, against the defendants upon a policy of insurance whereby the testatrix insured her life with the defendants for the sum of 3000l.

The defendants set up, by way of defence, that the accuracy of the answers given by the assured to certain questions hereinafter mentioned was made a condition precedent to the validity of the policy; and that the policy was void by reason of fraudulent misstatements and non-disclosure of material facts by the assured at the time when the policy was effected; and, alternatively, by reason of concealment by the assured of the material fact that she had been treated for nervous breakdown by one Dr. Kinsey Morgan.

The insurance was effected in pursuance of a proposal dated October 27, 1902, signed by the deceased, which contained printed questions put to and answered by her with regard to (among other things) the place and date of her birth, whether her life had been proposed to any other office, whether she had been or intended going out of Europe, the nature of her profession or occupation,

(1) Ante, p. 431.

if any, and the names of two friends who knew what her health and habits were. At the end of the proposal form the following printed declaration was signed by her:- "I, the above-named Robina Morrison, do declare that to the best of my knowledge and belief the above particulars are true, and I agree that this proposal and declaration shall be the basis of the contract between me and the Law Union and Crown Insurance Company. Dated this 27th day of October, 1902. (Signed) R. Morrison."

Subsequently to the proposal, but before the execution of the policy, the defendants sent a printed form to Dr. Bernard Scott, a medical man employed by them to examine the assured, which began as follows:- "Dear Sir, - A proposal for an assurance on the life of Miss Robina Morrison having been made to this company, I am instructed by the directors to submit the case to you, with a request that you will obtain answers from the applicant to the several questions on this and the following page, and make such investigation as to her past and present state of health as will enable you to give the directors your opinion on the third page." The document contained certain questions on pages 1 and 2 headed - "Questions to be put to the applicant (with any necessary explanation) by the medical officer, who will fill in the applicant's answers." Then followed these questions: "(1.) Name (in full); occupation; age next birthday. (2.) Has your life been proposed for assurance to any and to what office or offices? If accepted, was it at the ordinary premium? Has a proposal on your life - (a) ever been declined; or (b) withdrawn? (3.) Have you always been of sober and temperate habits? (4.) Are you now free from disease or ailment? (5.) What is your height and weight? (6.) State the particulars required in this table as to the several members of your family." (Here followed a table containing particulars required as to father, mother, brothers, and sisters.) "(7.) What medical men have you consulted? When? And what for? (8.) Have any of your relations, living or dead, had any signs of consumption, or been insane, or had fits, or had cancer? (9.) Have you at any time had, and if so, when, any of the following ailments, viz.:- (a) Spitting of blood, asthma, palpitation, short breath,

habitual cough, or other complaint of the chest, throat, heart, or lungs? (b) apoplexy, palsy, fits of any kind, mental derangement, brain fever, or other disease of the brain? (c) bad digestion? (d) any complaint of the urinary organs? (e) jaundice, or any liver complaint? (f) fistula? (g) gout? (h) rheumatic fever, or any kind of rheumatism? (i) any eruptions on the skin? (k) any tumour, ulcer, or abscess? (l) rupture? if so, is it reducible? is an efficient truss worn? (m) any accidental injury? or surgical operation? (10.) What quantity of malt liquor, wine, or spirits do you drink daily? If a total abstainer, state for what period you have been so." On page 3 of this document were questions as to the health of the applicant, upon which Dr. Bernard Scott (who received a fee of one guinea from the defendants) was to give his opinion to the defendants, and thereupon to sign a certificate as to within which of three classes of lives he considered the applicant's life to be included. These last-mentioned questions and further details as to the character and contents of this document are given in the judgment of Vaughan Williams L.J. (1) On October 31, 1902, Dr. Bernard Scott had an interview with the assured and asked her the questions to be put to her, the answers to which he entered in the form. The questions and answers material to the present case were 7 and 9 (b). The answer to question 7, as recorded by the doctor, was as follows:- "Dr. T. B. Scott, Bournemouth; rarely; colds. Dr. Hodson, Brighton; last spring; measles." The answer to question 9 (b), as recorded, was "No." On this occasion Robina Morrison signed a second declaration, which followed the questions in the form answered by her, and was as follows: "I, the said Robina Morrison, do hereby declare, with reference to the proposal for assurance on my life, and my declaration dated October 30, 1902, that the answers to the foregoing questions are all true." The date October 30 referred to in the above declaration appeared to be a mistake for October 27. Dr. Bernard Scott sent the document filled in to the defendants, certifying that he recommended that the assured's life should be insured as a first class life; and on November 4 the policy, which

(1) See pp. 875, 876, post, to which the reader is referred for further particulars of the document.

contained no reference to the proposal or to either of the declarations, was executed.

It was not disputed that in December, 1894, the assured had suffered from a severe attack of influenza, and that this was followed by nervous depression, for which she had been treated by a doctor named Kinsey Morgan; that an attack of acute mania had supervened; and that it became necessary that she should be certified, and for a period of six months in 1895 she was confined in a private establishment at Sturminster kept by a doctor named Leach, from which, having gradually recovered, she was discharged in August, 1895. It appeared that she was ignorant of the facts that she had been insane and had been under restraint on that account, and that she had been led to believe that she had been sent away for a rest cure on account of nervous breakdown. She had told the Dr. T. B. Scott mentioned in her answer to question 7, who was a brother of the before-mentioned Dr. Bernard Scott, about her having been treated for a nervous breakdown after influenza. The assured committed suicide, while of unsound mind, in March, 1906. Dr. Bernard Scott was present but was not called at the trial.

In this case the defendants employed Dr. Bernard Scott because Dr. T. B. Scott, who usually acted as their medical referee, was the medical attendant of the assured. It appeared that the defendants had obtained a report from Dr. T. B. Scott, in which he reported favour ably on the health of the assured and stated that he thought her a good life. The defendants relied on the incorrectness of the answers given by the assured to the above-mentioned questions 7 and 9 (b).

The Lord Chief Justice left the following questions to the jury, which they answered as follows:- (1.) "Did the deceased lady Robina Morrison know in October, 1902, that she had suffered from mental derangement?" Answer. - "No." (2.) "Did the deceased lady Robina Morrison fraudulently conceal from the defendants the fact that she had suffered from mental derangement?" Answer. - "No." (3.) "Did she fraudulently conceal from the defendants that she had consulted Dr. Kinsey Morgan in the year 1894 for nervous depression?" Answer. - "She foolishly but not fraudulently concealed this fact."

(4.) "Was the fact that she had consulted Dr. Kinsey Morgan for nervous breakdown in the year 1894 material for the company to know in considering whether they would insure Robina Morrison's life?" Answer. - "Yes."

The case was argued before the Lord Chief Justice on further consideration, when he held that the truth of the answers given by the assured to the above-mentioned questions 7 and 9 (b) was not, on the true construction of the documents, made part of the basis of the contract of assurance, but that, there having been non-disclosure of a material fact, the policy was avoided, though that non-disclosure had not been fraudulent; and he accordingly gave judgment for the defendants. (1)

July 23, 24. Montague Lush, K.C., and Hon. S. O. Henn Collins, for the plaintiff. It was contended for the defendants in the Court below that, upon the correct construction of the documents, the truth of the answers of the assured to the questions referred to by her second declaration was made part of the basis of the contract. But, having regard to the nature of these questions, it is absurd to suppose that it could have been intended that the truth of the answers to them should be warranted, or made a condition of the insurance. The Lord Chief Justice rightly held that this was not the case, and that there was no agreement that this should be so. If an insurance company means to stipulate that the truth of the answers to such questions put to the assured shall be a condition precedent to the validity of the contract, they must do so in such unambiguous terms as a layman can without difficulty understand. Putting the case at the lowest, it cannot be said that the terms of the document here in question are such as would clearly bring home to the assured that they amounted to such a stipulation. The only obligation on the part of the assured was to answer the questions honestly to the best of her knowledge and belief.

Assuming that the accuracy of her answers was not made part of the basis of the contract, the question would still remain

(1) Ante, pp. 437, 438.

whether there was in this case such a misstatement or non-disclosure of a material fact as, in the absence of fraud, would avoid the contract. Contracts of insurance have been held to be contracts in relation to which uberrima fides is requisite on the part of the assured; and, therefore, misstatement, or concealment or non-disclosure of any fact which it was material for the insurers to know, and which was known to the assured, has, no doubt, been held to avoid the contract, although there may have been no fraud on the part of the assured, and he may not have known that the fact so concealed was material. For a considerable time it has been the practice for insurance companies to stipulate in cases of life insurance that the truth of answers made by the person proposing to effect an insurance on his life to questions put to him shall form the basis of the contract. The effect of such a stipulation is, it is submitted, that, inasmuch as it may be doubtful what facts a jury or other tribunal might find to be material, the parties, by convention between themselves, agree that certain matters and no others shall be considered as material, and that the truth of the answers given with regard to them by the assured shall be considered as the condition essential to the validity of the contract. The insurance company thereby obtain the advantage that any matter the truth of which is thus expressed to be the basis of the contract is thereby made material, whether it is really so or not, and whether a jury would or would not find it to be so. It would be a most unfair construction, that being so, if the effect were to leave it open to the company to set up as against the assured that other facts not made the basis of the contract were material: see judgment of Lord Cranworth in Anderson v. Fitzgerald. (1) The true construction of such a provision is that, so far as concerns the legal obligation in the case of contracts of insurance to disclose or to state truly material facts, the parties mutually bind themselves by convention as to what are to be considered such facts; but that, of course, leaves untouched the obligation to act in good faith, and not to be guilty of any conscious misrepresentation or concealment. The jury in this case have negatived bad faith. Therefore, in the absence of

(1) (1853) 4 H. L. C. 484, at p. 503.

fraud, the only statements of the assured the truth of which was made a condition, or material to the validity, of the contract were those contained in the proposal form. Assuming that the plaintiff's contention on this point is wrong, the question still remains whether the defendants have really proved that there was any misstatement or non-disclosure of a material fact by the assured. The onus of proof on this question rested upon them. The questions referred to in the assured's second declaration were, on the face of them, not for the information of the defendants, but for the information of Dr. Bernard Scott, for the purpose of enabling him to advise the defendants as to the state of the applicant's health. They were to be put by the doctor to the assured with such explanation as he might think necessary. The defendants did not call Dr. Bernard Scott, and, unless what took place at the interview between him and the assured, and how he put and explained the questions, is known, it is impossible to say whether there was really any misstatement or non-disclosure by the assured. There cannot be concealment by a person of that which he does not know. The assured did not know that she had been mentally deranged. With regard to the non-disclosure of the fact that she had been treated by Dr. Kinsey Morgan for nervous depression, it is impossible, without knowing what took place between Dr. Bernard Scott and the assured when the questions were put, to say whether there was any concealment by the assured. Dr. Bernard Scott was acting for the company, and, when told that the assured had been treated by his brother Dr. T. B. Scott, he may have said that that was enough, and it was unnecessary to give the names of other doctors. It could not have been intended that the applicant should give the names of all the doctors who had ever attended her during her life. The assured had informed Dr. T. B. Scott of her having been treated for nervous breakdown after influenza; therefore, by giving his name as one of the medical men who had attended her, she gave the means of obtaining information as to this to Dr. Bernard Scott as the defendants' agent, and this was sufficient. If Dr. Bernard Scott, as representing the defendants, did not think fit to avail himself of the means of information so given, the defendants must bear the consequences.

Further, it is contended that, having regard to the reference at the commencement of the assured's second declaration to the proposal and her first declaration, which merely stated that to the best of her knowledge and belief the particulars therein stated were true, the true construction of the second declaration is that the answers therein referred to are only true to the best of the assured's knowledge and belief. [They also cited Hambrough v. Mutual Life Insurance Co. of New York (1); Jones v. Provincial Insurance Co. (2); Moens v. Heyworth.(3)]

Montague Shearman, K.C., and Boydell Houghton, for the defendants. The agreement in the first declaration signed by the assured that the proposal and that declaration shall form the basis of the contract does not provide that they shall form the sole basis of the contract, or exclude the possibility of the truth of the answers referred to in the assured's second declaration forming part of the basis of, or being material to the validity of, the contract. It is submitted that the words "with reference to the proposal for assurance on my life, and my declaration dated October 30, 1902," in the second declaration shew that the answers mentioned in that declaration were also intended to form the basis of the contract. The assured is asked to answer questions in the proposal form as to certain matters, but only to the best of her knowledge and belief, and the truth of her answers to those questions is made the basis of the contract. It could not, however, be intended that those answers only should form the sole basis of the contract. Questions as to her health are not put directly to her by the defendants, but are, with the necessary explanations, to be put by and answered to the doctor who examines her for the company. She undertakes by her second declaration that the answers given by her to such questions as recorded by him are true, and the intention obviously is that they also shall form the basis of the contract. But, assuming that this is not so, nevertheless, by virtue of the legal doctrines applicable to contracts of insurance, including life insurance, if the answers so given by her are incorrect, and she thereby misstates or conceals

(1) (1895) 72 L. T. 140.

(2) (1857) 26 L. J. (C.P.) 272.

(3) (1842) 10 M. & W. 147.

material facts, the result is that the policy is avoided, even although she did not fraudulently misstate or conceal those facts. In this case there was, as shewn by the findings of the jury, clearly concealment by the assured of the fact that she had consulted Dr. Kinsey Morgan for nervous depression, and the jury found that this was a material fact. Her answers to questions 7 and 9 (b) were not true. It may be that she cannot be said to have concealed the fact that she had suffered from mental derangement, because she does not appear to have been aware of that fact; but she knew that she had suffered from influenza and consequent nervous depression, and she did not disclose that, nor that she had consulted Dr. Kinsey Morgan for nervous depression. Apart from questions put, she was bound by the general law governing insurance to disclose the fact that she had suffered from influenza and consequent nervous depression so serious that she had to consult a doctor for it. It may be admitted that question 7 cannot mean that the assured is to give the names of all the doctors she had ever consulted in her life, but this was a case of a doctor being consulted for serious illness, which was a matter plainly material to the question whether, and, if so, at what premium, the insurance should be granted, and therefore one which the assured was bound to disclose. It is clear law that the fact that the assured did not suppose a matter to be material does not relieve him from the obligation to disclose it, if in fact material. It was not necessary for the defendants to call Dr. Bernard Scott. The declaration signed by the assured that the answers to the questions contained in the document were true was sufficient prima facie evidence of the misstatement and non-disclosure relied upon, and it was for the plaintiff to call Dr. Bernard Scott, if she wanted to qualify what was prima facie the result of the document signed by the assured. The declaration that certain matters shall be the basis of the contract cannot, as suggested, mean that nothing else shall be material for the purposes of the doctrine by which the assured is bound to disclose material facts.[They cited Wood v. Dwarris (1); Thomson v. Weems (2); London Assurance v.

(1) (1856) 11 Ex. 493.

(2) (1884) 9 App. Cas. 671, at p. 684.

Mansel (1); Lindenau v. Desborough (2); Brownlie v. Campbell (3); Dalglish v. Jarvie (4); Wheelton v. Hardisty.(5)]

Montague Lush, K.C., for the plaintiff, in reply.

July 30. VAUGHAN WILLIAMS L.J.The defendants, the Law Union and Crown Insurance Company, at the trial of this action relied principally upon the defence of fraud, it being alleged that the answers to certain questions put to Robina Morrison on October 31, 1902, were fraudulent and untrue to the knowledge of Robina Morrison, and that the non-disclosure of the true facts was also fraudulent. The jury have negatived all fraud. The questions to which I have referred, and the answers to them, were: "What medical men have you consulted, when, and what for?" Answer. - "Dr. T. B. Scott, Bournemouth; rarely, colds; Dr. Hodson, Brighton; last spring, measles." "Have you at any time had, and, if so, when, any of the following ailments?" and then follows a list that I need not read, but it included "mental derangement." Answer. - "No." The defendants relied alternatively on the non-disclosure by Robina Morrison of the fact, which she knew, that she had been treated, as she believed, for nervous breakdown, by Dr. Kinsey Morgan. This is pleaded without any allegation of fraud, but with the allegation that such facts were material to be known to the defendants and were known to Robina Morrison, but not to the defendants.

The defendants allege that the truth of the answers to the questions of October 31 was a condition precedent to the enforcement of the contract, and the basis of the contract. I think not.

The proposal by Robina Morrison for life assurance contained a declaration of October 27 to the effect that certain particulars appearing on the face of the proposal, in the shape of answers to questions, were, to the best of the knowledge and belief of Robina Morrison, true, and she agreed that the proposal and

(1) (1879) 11 Ch. D. 363.

(2) (1828) 8 B. & C. 586.

(3) (1880) 5 App. Cas. 925, at p. 954.

(4) (1850) 2 Mac. & G. 231, at p. 243.

(5) (1857) 8 E. & B. 232.

declaration should be the basis of the contract between her and the Law Union and Crown Insurance Company; and the defendants contended that the signature at the end of the answers of October 31, coupled with the declaration "I the said Robina Morrison do hereby declare with reference to the proposal for assurance on my life, and my declaration dated October 30, 1902, that the answers to the foregoing questions are all true," made these answers also the basis of the contract. I cannot agree. If the insurance office meant this, it lay on them to say so plainly. It would have been very easy to have stated plainly that such answers were to be the basis of the contract, but this is not done. With reference to the questions of October 31, it is to be observed (1.) that, unless these questions are expressly made part of the basis of the contract, they appear to be, as the questions on the face of the proposal are in terms stated to be, questions to be answered "to the best of my knowledge and belief"; (2.) that on their face the questions are questions the answers to which no person would warrant. The questions are such as no one but a medical man could answer with an approach to certainty. They are questions to which it would be unreasonable to expect warranted answers. Honest answers were the most any one could expect. Moreover, I do not know what the questions really were. The questions, by the written instructions given to the agent of the defendants, who was to put the questions and fill in the answers, were to be put "with any necessary explanation." I have no doubt he did obey these instructions; but, as Dr. Bernard Scott, the medical officer who obtained and filled in the answers, although in Court at the trial, was not called as a witness, there is no evidence as to what explanations were given to Miss Morrison. Question 7 - "What medical men have you consulted?" - in my opinion, involved some necessary explanation. Some limit to this question must have been intended. It could not have been expected that Miss Morrison's answer should extend to early childhood. I do not know what limit was set by Dr. Bernard Scott in his explanation. I do not think that there is anything in law to make the truth of the answers a condition precedent to the liability of the defendants on the policy, and, if the truth of the answer were

not such a condition, it comes within the statement of Willes J. in his judgment in Wheelton v. Hardisty (1), where he says, "unless it were untrue to the knowledge of the plaintiffs, and therefore fraudulent, the mere untruth of it would not avoid any policy in which it was introduced, the policy containing no express stipulation to that effect. Here is no such stipulation. The mere recital of such a statement in the policy would not alter the general law, or convert such statement from a mere matter of representation into a condition precedent."

Besides these considerations based on the proposal and the two sets of answers, there is another consideration based on the purpose with which Dr. Bernard Scott, the medical agent of the defendants, instructed to put the questions and obtain the signature of Miss Morrison to her answers as written down by him, was so instructed. In my opinion he was so instructed for the purpose of obtaining information to enable him to advise the company as to the class in which he advised that the life of the applicant should be accepted, and he was only to give this advice after he had complied with the following instruction, given in the same form in which the before-mentioned questions were contained:- "The medical officer, having obtained the signature of the applicant at foot of the preceding page, will personally examine her and answer the following questions. It is particularly requested that the results of the examination be not made known to the applicant or agent." "Agent," of course, there does not mean the medical agent, but an agent who it is supposed possibly may present the application of the applicant. These questions and answers were: "Question 1. - What is the condition of the heart? Answer. - Normal. 2. What is the condition of the lungs? - Normal. 3. What is the condition of the viscera in the other cavities? - Normal. 4. What is her general configuration? - Healthy. And physical development? - Good. 5. Has she the appearance of health and vigour? - Yes. And of the age stated (32)? - Yes. And of uniform temperance? - Yes. 6. Has she good marks of vaccination? - Yes. Or has she had smallpox? - The answer to that appears to be 'No.' 7. What is the condition of the urine under ordinary tests? - Both

(1) 8 E. & B. 232, at p. 299.

evening and morning specimens normal. 8. Is her business or occupation in any way likely to injure her health? - No." There is then this note at the foot: "If there is any special or noteworthy feature in the case not elicited by the printed questions, please to state it here." There is then a statement as follows:- "Miss Morrison is not certain of family history details, but says that exact particulars might be gained from the London and North Lancs. Office, in which her sister, Mrs. F. Gould, was insured." I very much doubt whether the answers of the assured were intended by the defendants themselves to form part of the contract of insurance. The form of the certificate set out in the instructions is as follows:- "Certificate. - I, the undersigned, acting as medical examiner for the company, having regard to the present condition and past health and family history of the applicant, and also to the subjoined table of classified lives, recommend that the applicant be placed in Class I. (If in Class II. state the objectionable features, and the number of years that, in your opinion, ought to be deducted from the average expectation of life (see table on back). The age which the applicant should attain is - years.) Date, October 31, 1902. Signature of medical officer, Bernard Scott, M.R.C.S., &c. Table of classified lives. - Class I. - Good lives, which may be safely assured at the ordinary rate of premium. Class II. - Lives below average, owing to an unfavourable family history or personal condition, or former illnesses, but which may nevertheless be safely assured at an extra rate of premium. Class III. - Bad lives, not desirable for assurance even at an extra rate of premium." This form of certificate certainly points to the purpose of the interview of the medical officer being merely to advise as to the class in which the applicant was to be placed, and not the obtaining of answers which should be the basis of the contract, or even part of the contract.

It is desirable at this point that I should deal with the argument of Mr. Lush, that it was not open to the defendant company to put forward the answers of October 31 as constituting part of the basis of the contract, because the effect of the declaration on the proposal was to limit the material particulars to those appearing on the face of the proposal, and that, that being so,

the obligation of the proposer to make full disclosure of all material facts was limited to the disclosure contained in the answers to questions appearing in the proposal. This argument was based upon the following passage in the judgment of Lord Cranworth in the case of Anderson v. Fitzgerald (1): "Nothing therefore can be more reasonable than that the parties entering into that contract" (of insurance) "should determine for themselves what they think to be material, and if they choose to do so, and to stipulate that, unless the assured shall answer a certain question accurately, the policy or contract which they are entering into shall be void, it is perfectly open to them to do so, and his false answer will then avoid the policy. Now it appears to me, my Lords, that that is precisely what has been done here. The parties entering into the insurance have so stipulated, 'The basis of our contract shall be your answering truly these two questions.'" Then Lord Cranworth (2) goes on to say: "Thus, if a person effecting a policy of insurance says, 'I warrant such and such things which are here stated,' and that is part of the contract, then whether they are material or not is quite unimportant - the party must adhere to his warranty, whether material or immaterial. But, if the party makes no warranty at all, but simply makes a certain statement, if that statement has been made bona fide, unless it is material, it does not signify whether it is false or not false. Indeed, whether made bona fide or not, if it is not material, the untruth is quite unimportant. .... If there is no fraud in a representation of that sort, it is perfectly clear that it cannot affect the contract; and even if material, but there is no fraud in it, and it forms no part of the contract, it cannot vitiate the right of the party to recover." Now, having regard to the question which was raised in that case, which was simply a question whether, in a case where by the terms of the policy the answers to two questions were made the basis of the contract, it was right for the judge at the trial of an action brought against the insurance office on the policy to ask the jury if such questions and answers were material, as to which the House of Lords decided that it was not right, I cannot see that the observations of

(1) 4 H. L. C. 484, at p. 503.

(2) 4 H. L. C. at p. 504.

Lord Cranworth as to the parties to an insurance contract having a right to determine for themselves what they think to be material, or that the truth of certain answers shall be the basis of the contract, affect the question whether in the contract in the present case the answers to the questions appearing in the proposal are made the whole basis and the only basis of the contract, so as to exclude the answers to the questions of October 31 being also warranties and part of the contract; and still less do I see how these observations on representations and misrepresentations exclude, or tend to shew that we ought to exclude, from this contract the implied contract by an applicant for a policy to make full disclosure of all facts material to the risk.

I have already stated that in my opinion the truth of the answers to the questions of October 31 is not warranted by or made part of the basis of the contract of insurance, and the observations of Lord Cranworth above quoted, in my opinion, strongly confirm my view.

I have now only to deal with the question whether the policy is vitiated by concealment or non-disclosure of facts material to the risks insured against. This to my mind is the most difficult question in this case. First, I ask myself, does the obligation to make full disclosure apply to a contract of life insurance in the same sense that it applies to a contract of marine insurance? In my opinion it does. The judgment of Sir George Jessel in London Assurance v. Mansel (1) shews that the principles which govern insurance matters, which are said to require the utmost good faith, uberrima fides, apply to all kinds of insurances. But the same judgment shews that there may be certain circumstances from the peculiar nature of marine insurance which require to be disclosed, and which do not apply to other contracts of insurance. I think also that the insurance office may, by the requisitions for information of a specific sort which it makes of the proposer, relieve him partially from the obligation to disclose by an election to make inquiries as to certain facts material to the risk to be insured against itself. It is worthy of observation that the obligation to disclose does not

(1) 11 Ch. D. 363.

extend to matters equally within the knowledge of those granting the policy of insurance and the applicant for insurance. Thus Lord Campbell in Wheelton v. Hardisty (1) says: "But the assurer and assured being equally ignorant of material facts to influence their contract, if the assurer asks for information, and the assured does his best to put the assurer in a situation to obtain the information, and to form his own opinion as to whether the information is sincere, can it be permitted, where the assurer, without any blame being imputable to the assured, has allowed himself to be deceived, that he shall be able to say to the assured, 'You warranted all the information I receive to be true; and having received your premiums for many years, now the life drops, I tell you I was incautious, and the policy I gave you is a nullity'? The uberrima fides is to be observed with respect to life insurances as well as marine insurances. The assured is always bound, not only to make a true answer to the questions put to him, but spontaneously to disclose any fact exclusively within his knowledge which it is material for the assurer to know; and any fraud by an agent employed to effect the insurance is the fraud of the principal; but there is no analogy between the statements of the 'life' or the referees in the negotiation of a life insurance and the statements of an insurance broker to underwriters, by which he induces them to subscribe the policy."

Having said this about the obligation to disclose, I will refer now to the findings of the jury as to the facts within the knowledge of Robina Morrison. The findings were the following:- (1.) "Did the deceased lady Robina Morrison know in October, 1902, that she had suffered from mental derangement?" Answer. - "No." (2.) "Did the deceased lady Robina Morrison fraudulently conceal from the defendants the fact that she had suffered from mental derangement?" Answer. - "No." (3.) "Did she fraudulently conceal from the defendants that she had consulted Dr. Kinsey Morgan in the year 1894 for nervous depression?" Answer. - "She foolishly but not fraudulently concealed this fact." (4.) "Was the fact that she had consulted Dr. Kinsey Morgan for nervous breakdown in the year 1894

(1) 8 E. & B. 232, at pp. 269, 270.

material for the company to know in considering whether they would insure Robina Morrison's life?" Answer. - "Yes."

The matters to be disclosed must be matters within the knowledge of the applicant. The only answer causing any trouble is the answer to the third question, which comes to this, that she concealed the fact from the defendants that she consulted Dr. Kinsey Morgan in the year 1894 for nervous depression, and the jury find, in answer 4, that the fact that she had consulted Dr. Kinsey Morgan for nervous breakdown in the year 1894 was material for the company to know in considering whether they would insure Robina Morrison's life. I am not sure what these findings mean. I am inclined to think that they mean that the did not tell Dr. Bernard Scott, the medical officer of the company, or they may mean that she did not inform the ordinary officers and agents of the company, as distinguished from the medical examiner. Whichever be the meaning, I am of opinion that the onus of proving the concealment is on the defendants; and I am not satisfied that Miss Morrison did not tell Dr. Bernard Scott of the nervous breakdown, or that he did not become aware from her statements of the nervous breakdown, and, from information given to him by his brother, both of the nervous breakdown and the attendance of Dr. Kinsey Morgan. At all events, the evidence which was given at the trial appears to me to shew that he was aware of the nervous breakdown which followed the influenza.

Taking everything into consideration, I am inclined to think that the defendants could rely, by way of defence, on the non-disclosure alleged in these respects, if proved; but the question arises whether they have really sustained the onus of proof which rested upon them. I have had grave doubts whether or not the result of what has taken place is not that we ought to order a new trial. The onus of proving non-disclosure or concealment is on the insurance office. The evidence appears to be as follows. In this case the office has proved, first, that the signature of Miss Robina Morrison appears at the end of a declaration at the foot of a page of questions purporting by the printed instructions on the paper to be questions which Dr. Bernard Scott, the medical officer of the insurance company, was instructed to put, after making any necessary explanation, and the answers to which

were to be filled in by the medical officer. Secondly, it appears that Dr. Bernard Scott was in Court at the trial, but the defendants did not call him as a witness. Thirdly, it is proved that Miss Morrison, in answer to the written question as to what medical men she had consulted, when, and what for, answered, "Dr. T. B. Scott, Bournemouth; rarely, for colds; Dr. Hodson, Brighton; last spring, measles." In answer to the written question "Have you at any time had, and, if so, when, any of the following ailments?" among them being mental derangement, she replied "No." We do not, however, know exactly what the questions plus the explanations were. Those answers were followed by the declaration, "I the said Robina Morrison do hereby declare with reference to the proposal for assurance on my life, and my declaration dated October 30, 1902, that the answers to the foregoing questions are all true." Then that is signed with her name. I do not think that by reason of her having so signed her name the onus shifted from the defendant company, on whom the onus lay to prove non-disclosure, to the plaintiff. I say this, amongst other reasons, because one does not know what the explanations were to the questions put. I have already pointed out that question 7 on the face of it involved some necessary explanation, and no evidence was given as to what that explanation was. Fourthly, it is in evidence that the assured was also attended by Dr. Kinsey Morgan, who attended her for insanity following influenza. Dr. Morgan, who was a witness, deposed that he told Miss Morrison that she was suffering from nervous breakdown, and she believed this statement. Now, in addition to what I have already stated, one has to take into consideration some admissions that were made. They appear (1) to be as follows: "It was admitted by the plaintiff that the deceased had in fact suffered from acute mania, and that from January to August, 1895, she had been in confinement in the house of a Dr. Leach; that she had in December, 1894, consulted a Dr. Kinsey Morgan for nervous depression, and that it was upon a certificate signed by him that she had been so placed under restraint." Of course the question with which I am now dealing has not necessarily any relation whatever to the

(1) See ante, p. 432.

answers to the questions of October 31. It is not a question of representation or misrepresentation. What I am inquiring into here is whether there is any evidence, taking into consideration the evidence in the case generally and the admissions which I have just read, which made it right to leave to the jury questions 3 and 4, as the Lord Chief Justice did. No difficulty arises with regard to questions 1 and 2 and the answers to those questions. Questions 3 and 4 and the answers to them are as follows: (3.) "Did she fraudulently conceal from the defendants that she hud consulted Dr. Kinsey Morgan in the year 1894 for nervous depression?" Answer. - "She foolishly but not fraudulently concealed this fact." (4.) "Was the fact that she had consulted Dr. Kinsey Morgan for nervous breakdown in the year 1894 material for the company to know in considering whether they would insure Robina Morrison's life?" Answer. - "Yes." I am of opinion that, apart from the answers signed by Miss Morrison, there was evidence to go to the jury that she knew of the nervous breakdown and the attendance by Dr. Kinsey Morgan, and under the circumstances I should hesitate to say that on these answers, as they stand, the defendants would not be entitled to the verdict and judgment which were actually given; but I think myself there ought nevertheless to be a new trial in this case, because I think that, in the absence of any certainty as to what took place at the interview between Dr. Bernard Scott and Miss Robina Morrison on October 31, it is very doubtful whether she may not have given Dr. Bernard Scott, if not full information, full means of information at this interview. One has to observe that amongst other things she gave information that Dr. T. B. Scott had attended her as her medical attendant. It is true she says for colds, but this put the insurance office in a position in which, if they had chosen to make inquiries of Dr. T. B. Scott, they could have got full information as to all these matters, because it is in evidence that Dr. T. B. Scott himself was fully aware of the influenza and of what followed the influenza. Whether it was what followed at first, the nervous depression, or whether it was what followed later, the mental derangement, it seems to me that that information could have been got, and I have already mentioned the fact

that I am quite in the dark as to what explanations were given when Dr. Bernard Scott put the questions to the lady. I do not think that the jury had it so clearly called to their attention, as, under the circumstances, was requisite, that they could not find for the defendants unless they had sustained the onus of proof that there had been non-disclosure of a material fact; and I am satisfied that the jury treated the answers to the questions as appearing in the printed document as conclusive evidence of such non-disclosure, notwithstanding the fact that Dr. Bernard Scott was not called to prove what took place at the interview when the questions were put, or what explanation of them was given by him to the assured. I think that Dr. Bernard Scott ought to have been called to explain what then took place. I do not think the jury really had these difficulties put before them when the verdict was given, and under those circumstances I have come to the conclusion that the right thing here is to order a new trial. A new trial will be granted on the condition that the charge of fraud is in no way to be reopened.

FLETCHER MOULTON L.J.read the following judgment:- I am of the same opinion. The contract of life insurance is one uberrim¾ fidei. The insurer is entitled to be put in possession of all material information possessed by the insured. This is authoritatively laid down in the clearest language by Lord Blackburn in Brownlie v. Campbell (1): "In policies of insurance, whether marine insurance or life insurance, there is an understanding that the contract is uberrima fides (2), that, if you know any circumstance at all that may influence the underwriter's opinion as to the risk he is incurring, and consequently as to whether he will take it, or what premium he will charge, if he does take it, you will state what you know. There is an obligation there to disclose what you know, and the concealment of a material circumstance known to you, whether you thought it material or not, avoids the policy." There is, therefore, something more than an obligation to treat the insurer honestly and frankly, and freely to

(1) 5 App. Cas. 925, at p. 954.

(2) Sic in the report.

tell him what the applicant thinks it is material he should know. That duty, no doubt, must be performed, but it does not suffice that the applicant should bona fide have performed it to the best of his understanding. There is the further duty that he should do it to the extent that a reasonable man would have done it; and, if he has fallen short of that by reason of his bona fide considering the matter not material, whereas the jury, as representing what a reasonable man would think, hold that it was material, he has failed in his duty, and the policy is avoided. This further duty is analogous to a duty to do an act which you undertake with reasonable care and skill, a failure to do which amounts to negligence, which is not atoned for by any amount of honesty or good intention. The disclosure must be of all you ought to have realized to be material, not of that only which you did in fact realize to be so.

But in my opinion there is a point here which often is not sufficiently kept in mind. The duty is a duty to disclose, and you cannot disclose what you do not know. The obligation to disclose, therefore, necessarily depends on the knowledge you possess. I must not be misunderstood. Your opinion of the materiality of that knowledge is of no moment. If a reasonable man would have recognized that it was material to disclose the knowledge in question, it is no excuse that you did not recognize it to be so. But the question always is, Was the knowledge you possessed such that you ought to have disclosed it? Let me take an example. I will suppose that a man has, as is the case with most of us, occasionally had a headache. It may be that a particular one of those headaches would have told a brain specialist of hidden mischief. But to the man it was an ordinary headache undistinguishable from the rest. Now no reasonable man would deem it material to tell an insurance company of all the casual headaches he had had in his life, and, if he knew no more as to this particular headache than that it was an ordinary casual headache, there would be no breach of his duty towards the insurance company in not disclosing it. He possessed no knowledge that it was incumbent on him to disclose, because he knew of nothing which a reasonable man would deem material or of a character to influence the insurers in their action. It was

what he did not know which would have been of that character, but he cannot be held liable for non-disclosure in respect of facts which he did not know.

Insurers are thus in the highly favourable position that they are entitled not only to bona fides on the part of the applicant, but also to full disclosure of all knowledge possessed by the applicant that is material to the risk. And in my opinion they would have been wise if they had contented themselves with this. Unfortunately the desire to make themselves doubly secure has made them depart widely from this position by requiring the assured to agree that the accuracy, as well as the bona fides, of his answers to various questions put to him by them or on their behalf shall be a condition of the validity of the policy. This might be reasonable in some matters, such as the age and parentage of the applicant, or information as to his family history, which he must know as facts. Or it might be justifiable to stipulate that these conditions should obtain for a reasonable time - say during two years - during which period the company might verify the accuracy of the statements which by hypothesis have been made bona fide by the applicant. But insurance companies have pushed the practice far beyond these limits, and have made the correctness of statements of matters wholly beyond his knowledge, and which can at best be only statements of opinion or belief, conditions of the validity of the policy. For instance, one of the commonest of such questions is, "Have you any disease?" Not even the most skilled doctor after the most prolonged scientific examination could answer such a question with certainty, and a layman can only give his honest opinion on it. But the policies issued by many companies are framed so as to be invalid unless this and many other like questions are correctly - not merely truthfully - answered, though the insurers are well aware that it is impossible for any one to arrive at anything more certain than an opinion about them. I wish I could adequately warn the public against such practices on the part of insurance offices. I am satisfied that few of those who insure have any idea how completely they leave themselves in the hands of the insurers should the latter wish to dispute the policy when it falls in. In the case of the

question to which I have referred, if it can be shewn, even by the aid of the contemporaneous examination of the medical referee of the office itself, that the insured had at the time some disease, the policy is void. The disease may have been unknown, and even undiscoverable; it may have been transient, and have had no effect on his future life, or on the cause of his death. These things are immaterial. If the company choose to dispute the policy, and establish a single inaccuracy in these statements, which are thus made conditions, the policy is void, and usually all that has been paid thereon is forfeit. Hence I fully agree with the words used by Lord St. Leonards in his opinion in the case of Anderson v. Fitzgerald (1) to the effect that in this way provisions are introduced into policies of life assurance which, "unless they are fully explained to the parties, will lead a vast number of persons to suppose that they have made a provision for their families by an insurance on their lives, and by payment of perhaps a very considerable proportion of their income, when in point of fact, from the very commencement, the policy was not worth the paper upon which it was written."

Under these circumstances it is plainly the duty of the Court to require the insurers to establish clearly that the insured consented to the accuracy, and not the truthfulness, of his statements being made a condition of the validity of the policy. No ambiguous language suffices for this purpose. The applicant can be and is called on to answer all questions relevant to the matter in hand. But this is merely the fulfilment of a duty - it is not contractual. To make the accuracy of these answers a condition of the contract is a contractual act, and, if there is the slightest doubt that the insurers have failed to make clear to the man on whom they have exercised their right of requiring full information that he is consenting thus to contract, we ought to refuse to regard the correctness of the answers given as being a condition of the validity of the policy. In other words, the insurers must prove by clear and express language the animus contrahendi on the part of the applicant; it will not be inferred from the fact that questions were answered, and that the party interrogated declared that his answers were true. This is only

(1) 4 H. L. C. 484, at p. 507.

what a witness does when he declares he has given true evidence. He is stating his belief, and not making a contract.

In the present case Robina Morrison, the insured, on applying for the policy, filled up a proposal form which required her to state certain particulars regarding herself, and subscribed to a declaration at the foot which was to the effect that she declared that to the best of her knowledge and belief the said particulars were true, and that she agreed that that proposal and declaration should be the basis of the contract. It is not contended that they were not true, so that nothing turns directly on this declaration. She was then sent by the company to a medical man chosen by them to inquire into the case. It happened that her ordinary medical man, Dr. T. B. Scott, was the medical referee usually employed by the company, and therefore they sent her to Dr. Bernard Scott, his brother, for this purpose. They forwarded to him a paper consisting of two parts, the first consisting of questions to be put by the medical referee to the applicant, and the second being a form which, when filled up by the doctor, would constitute his report on the case. The language of both parts requires careful examination, for it is on this paper that the case of the defendants is mainly based. The first part requests the medical referee to obtain answers from the applicant to the several questions contained in the first part of the paper, and to make such an investigation into her past and present state of health as would enable him to give the directors his written opinion on the second part of the paper. The questions are headed as follows: "Questions to be put to the applicant (with any necessary explanation) by the medical officer who will fill in the applicant's answers." The whole of the answers are in the handwriting of the medical officer. At the end of this part of the paper there is a declaration in the following form, signed by the applicant: "I, the said Robina Morrison, do hereby declare with reference to the proposal for assurance on my life, and my declaration dated October 30, 1902, that the answers to the foregoing questions are all true." The second part of the paper commences as follows: "The medical officer, having obtained the signature of the applicant at foot of the preceding page, will personally examine him and answer the following questions.

It is particularly requested that the results of the examination be not made known to the applicant or agent." Then follow the answers of the medical referee to various questions as to the health and condition of the applicant relating largely to the same matters as the questions which the applicant had been required to answer as described, and ending with a recommendation that the applicant's life should be put in the first class, i.e., of good lives. It is evident that the paper was never intended to pass out of the hands of the medical officer, and, no doubt, never did so. Dr. Bernard Scott was not called by the defendants at the trial, but this paper was put in. The applicant had given Dr. T. B. Scott as her ordinary medical attendant, as he had in fact been for four years, and a report was obtained from him by the defendants which was equally detailed and equally favourable, and the applicant's life was taken as a first class life. She committed suicide in 1906 while of unsound mind.

The defence set up is based on the undoubted facts that the insured in 1894 consulted Dr. Kinsey Morgan for nervous depression, and that subsequently, in 1895, she had on his certificate been in confinement in the house of a Dr. Leach for mental derangement. But the jury have found, and it is not now contested, that she was at the date of the application for the policy unaware that she had suffered from mental derangement. She no doubt knew that she had consulted Dr. Kinsey Morgan, but she thought it was for nervous breakdown following upon influenza, and that he had ordered her a rest cure. The defendants seek to make this adequate to support their defence by contending that the replies given by her to the doctor, and declared by her to be true, came within the class of contractual conditions of validity, and that, as in those answers she stated that she had never suffered from any disease of the brain, the policy never attached. They further say that, even if these answers have not a contractual status, she was asked what medical men she had consulted, and she omitted to give the name of Dr. Kinsey Morgan, who could have informed the company of her serious mental illness in 1895, and that, therefore, the policy is void for non-disclosure of a material fact known to her. The jury have

negatived fraud, and on the circumstances shewn by the evidence I think they were right in so doing; but they have found that she foolishly concealed the fact that she had consulted Dr. Kinsey Morgan, and that this fact was material; and on these latter findings the learned judge in the Court below has given judgment for the defendants.

It is evident, therefore, that the case turns mainly on the status and meaning of the paper signed by her on the occasion of her visit to the doctor. I entertain the strongest opinion that the accuracy of the replies to the doctor who examined her was not a contractual limitation or condition of the contract, but that these replies were, and were intended by both parties to be, only statements made by her to the best of her knowledge for the purpose of assisting the medical referee and the company to judge of the goodness of her life, i.e., of the risk they were taking. In the first place, the occasion and the circumstances of the statement raise a strong probability that this was so. As Lord Blackburn says with regard to a similar case in Thomson v. Weems (1), "There was very strong ground for saying that it was not shewn that the assured contracted that her answers to a medical man selected by the company, who was to examine her alone and report to them confidentially the conclusion to which he came, were warranted to be accurate; the very object of the examination would be frustrated if the patient was not to answer frankly and without reserve to the questions she was asked." Next, the nature of the questions shews that they must have been regarded as between the interlocutor and the answerer as relating to belief only. I will not again refer to the question as to whether she was free from disease or ailment, a matter of which he was infinitely better able to judge than was she, and which it was the very object of the interview for him to investigate by tests. But take such a question as this: "Have you had a rupture, and, if so, is it reducible, and is an efficient truss worn?" She was not able to decide on the reducibility of the rupture or the efficiency of a truss, and he was. Moreover, the very letter to the doctor shews that the questions formed part of an investigation to enable him to make a confidential report on

(1) 9 App. Cas. 671, at p. 683.

the facts of the case. Considering the position of the parties at the interview, and the duty on her part, which she must have felt, and he must have relied on, to answer fully whatever questions he put, so as to help him most, it would require the strongest possible language in the declaration to make me believe that she had intentionally altered her position from that of one who was bound to help the doctor acting for the insurers to the utmost of her power to that of a contracting party entitled like every other contracting party to view their demands with suspicion and, so to speak, to hold them at arm's length in defence of her interests. There is no such language to be found in the declaration, which merely goes to the truth of the statements, and in my opinion adds little, if anything, to what the law would have implied from the fact of the statements being made. It is a case in which the principle of taking such a document as this "contra proferentes" ought to be applied in the strongest way, in view of the confidential character of the interview and the relations created thereby. If such a contractual effect is to be given to what passes at a medical examination, then in my opinion a man ought to take his lawyer with him when he goes to be examined, and I say further that in my opinion the members of the medical profession ought to refuse to act for offices that put such an interpretation on what there passes. The duty of a medical practitioner at such a time is to work with and by the aid of the applicant in order to enable himself to give a reliable report to the office, and not to negotiate onerous contracts woven out of the well-meant efforts of the person he is examining to assist him in his task. There is something which to my mind is repulsive in the idea of a medical man under such circumstances inducing - as he is entitled and bound to do - the applicant to tell him freely all that he knows about himself, with the intention of making every such statement go to increase his contractual obligations, and to render the terms of the policy more onerous, and thus to give fresh chances to the company of disputing and perhaps invalidating the policy years afterwards when the man has passed away, no doubt in the confidence that the premiums he has paid through all the subsequent years of his life have secured a provision for his family.

But I have now to consider the effect of the statements as statements by the applicant to the proposed insurers, and therefore statements which were bound to be full and truthful. From this point of view only one matter is relied upon by the defence, namely, the omission of all reference to her having been treated by Dr. Kinsey Morgan. But in this connection we have to look carefully at the genesis of the document. The paper was not sent direct to the applicant, but to the doctor, who was directed to put the questions to the applicant, "with any necessary explanation," and to fill up the paper himself. He was not called at the trial. Now I have no doubt that he performed his task with the utmost bona fides and with perfect loyalty to both the applicant and the company. But this direction entitled him to put such construction upon the several questions as he thought reasonable, and authoritatively to state to the applicant that such was their meaning, and that she might and should answer them on that understanding. It is evident from the nature of the questions themselves that some explanations and limitations of this kind must have been given. Take question 8: "Have any of your relations, living or dead, had any signs of consumption, or been insane, or had fits, or had cancer?" The answer is "No." This, interpreted strictly, would mean that countless persons, many of whom could never have been known to the answerer, as, for instance, her great-grandparents, were included in the answer. I have no doubt that the medical officer explained within what reasonable limits this was to be taken, and also gave some explanation of what "signs of consumption" would mean; and I can see from his note in his report that, although he put down the answer "No" and allowed her to sign the paper, he was aware that she had expressed the slightness of her knowledge of the matter and had referred him to her sister for better information. Similarly with the question on which the defendants rely. I have no doubt that neither the medical officer nor the applicant intended that a list of all the doctors she had seen in her life should be given in answer to that question, or supposed that the list there given was or was meant to be complete. It was intended to be sufficient for practical purposes, and, so far as I

can see, the answer was truthful and proper to the question as it probably was explained. In my opinion this paper, taken by itself, furnishes no evidence even of non-disclosure sufficient to support the onus which lay on the defendants. The applicant was justified in saying that the answers were true, if they were so in the sense in which the questions were explained to her by the agent of the company, who had their specific authority to give explanations, and, as they did not call him, they cannot rely on the strict language of the question, or on the construction which would be given to the document by a Court interpreting a document prepared and signed by the applicant alone or under different circumstances. And, even if Dr. Bernard Scott had been called, I should be - were I a jury man - slow to suppose that there had been non-disclosure by the applicant by reason of her answer to this question, seeing that a misunderstanding might so easily arise on the point. Once realize that in all probability neither party thought that an exhaustive list was required or intended, and the document is rendered practically worthless for the purposes of the defence.

I am therefore of opinion that the paper signed by the applicant before the doctor does not support the case of the defendants. Taken by itself, without any evidence of the explanations given by the medical referee in putting the questions, it does not to my mind afford any evidence of non-disclosure of the fact of the applicant having been attended by Dr. Kinsey Morgan, still less does it shew that the applicant answered untruthfully the questions put to her on behalf of the company as explained to her by the examining doctor. There is nothing in the paper which leads me to think that she acted at that interview otherwise than as an honest person, genuinely desirous to perform her duty to the company, might reasonably have been expected to do. I therefore put this declaration aside as insufficient to support the defence.

But I now come to the point which has occasioned me the greatest difficulty. Over and above the two documents signed by the applicant, and in my opinion unaffected by them, there remained the common law obligation of disclosure of all knowledge possessed by the applicant material to the risk about

to be undertaken by the company, such materiality being a matter to be judged of by the jury and not by the Court. Here the jury have found that the applicant foolishly but not fraudulently concealed from the defendants that she had consulted Dr. Kinsey Morgan in the year 1894 for nervous depression, and that the fact that she had so consulted him was material for the company to know in considering whether they would insure her life. I have no hesitation in coming to the conclusion that we cannot act upon these findings so as to support the judgment for the defendants, because the declaration signed by her was allowed to go to the jury as, and taken by the judge to be, a concealment of the fact which made her liable as for non-disclosure. For the reasons I have given I am of opinion that no such case can be based on that declaration. But I cannot say that, taking the whole of the evidence together, the jury might not have come to the conclusion that in fact there was non-disclosure of the knowledge that she had in this respect, and that she ought to have realized that such knowledge was material. The fact that her own doctor - the ordinary medical referee of the company - seems to have been fully aware of as much as she herself knew about her having consulted Dr. Kinsey Morgan, and shews by his report that he attached no importance to it, makes me wonder that the jury should have returned the finding that they did to the fourth question, and makes me believe that they meant by it to say, not that she had any knowledge that a reasonable person would have considered material to impart to the company, but that the fact, if imparted and followed up by them, would have led to the discovery of matters unknown to her which would have been material. This does not, in my opinion, suffice to support a defence of non-disclosure. But the findings exist, and, though for the above reasons I am of opinion that the judgment for the defendants must be set aside, I cannot say that even with proper directions there may not be evidence for the jury to consider on these issues, and I therefore am of opinion that the case ought to be sent down for a new trial.

BUCKLEY L.J.The document dated October 27, 1902, provides that the proposal and declaration shall be the basis of the

contract. I do not assent to Mr. Lush's argument that it results from this that nothing else was to be the basis of the contract, and I cannot find in Lord Cranworth's judgment in Anderson v. Fitzgerald (1) anything to support the contention that it does. The question is one of construction. It does not follow, because contractually two facts are to be the basis of the contract, that no other facts are to be added to, or are to form part of, the basis.

But, secondly, I am of opinion that the facts stated in the document of October 31, 1902, are not contractually added to the facts which are to be the basis of the contract. It is plain from the latter document that it is one addressed to a medical man, who may be employed for the first and last time to report on the particular case, and to whom a fee of one guinea is offered for his services. It shews that he is instructed to put certain questions to the applicant "with any necessary explanation," that is, explanation which seems to him necessary, and he is to fill in the applicant's answers to the questions thus put. With the assistance of the answers, he is to make such an investigation as to health as will enable him to give the opinion on the third page. The portion of the document signed by the applicant amounts, I think, only to this, that the applicant says "I know that I have proposed to insure with the office; I know that I have made the declaration contained in the first document; and, seeing that you have come to examine me medically on behalf of the office, I declare that I have given true answers to the questions you have put to me." The operative part of the document commences on page 3, and its purpose appears by the certificate with which it terminates. That purpose is to say in what class the applicant shall be placed. There is in all this nothing which makes the applicant's answers in this document the basis of the contract.

The questions appearing in the second document were in my judgment asked and answered, not for the purpose of informing the office as to the applicant's health, but for the purpose of assisting Dr. Bernard Scott in advising the office as to her health. Many of them were questions which the applicant could not possibly answer as matter of fact, and which, indeed, no medical

(1) 4 H. L. C. 484, at p. 503.

man could answer as matter of fact. They were questions of opinion. The purpose, moreover, of the answer was, not that the office was to rely on the answer, but that the medical man with the assistance of the answer was to make a medical examination and advise the office on the question of fact, or rather I should say the question of opinion, as to health.

Thirdly, the answers as appearing in the document are not, I think, as against the applicant sufficient evidence to shew what disclosure she made, or what, if any, concealment she practised, without calling Dr. Bernard Scott to say what explanation, if any, he gave as to the manner in which he wanted the questions answered, and what replies she gave to the questions or modified questions which he put to her. The answer is filled in by him as representing what she told him, and in answer to a question whose form the document alone does not disclose. The document is, no doubt, evidence in the sense that it is admissible, but it is not, I think, evidence of the facts for which the defendants seek to use it. It does not necessarily disclose the question put. It does not necessarily disclose the answer given. Indeed I go further and say that it does not purport to shew the answer given. All that it shews is that the assured accepted as correct the doctor's version of the effect or substance or outcome of the answer she verbally gave to the question, whatever it was, that he put. Take the concrete case, the disclosure of Dr. Kinsey Morgan's name. The defendants say that it is not in this document and that it ought to have been there, and that that is evidence that the name was not disclosed. In my opinion it is not. The defendants' proposition rests upon the basis that the name ought to have been there and is not there, and therefore presumably was withheld. How do I know that it ought to have been there? That depends upon the form in which Dr. Bernard Scott in fact put question 7.

Thus far, therefore, my opinion is that the answers in the second document did not constitute any warranty or form any part of the basis of the contract, and, further, were not, without calling Dr. Bernard Scott, sufficient evidence as against the applicant upon the question of disclosure or concealment.

But, fourthly, it remains that the assured had, as she knew, suffered a serious illness, namely, influenza followed by serious consequences, although she did not know that in fact it had resulted in mental derangement. The plaintiff does not prove that the assured disclosed the fact that she had had a serious illness. Here the question divides itself into two parts. First:- Was she at her interview with Dr. Bernard Scott asked whether she had suffered from a serious illness? It is possible, I think, to read the seventh question as if (transposing it) it had been "What illnesses" (that is, serious illnesses) "have you had, and whom did you consult upon them?" But in the absence of Dr. Bernard Scott it is impossible, I think, as against the assured, to assume that the question was put in that form. The facts are much more consistent with the probability that he put the question, more or less, as it stands, and was satisfied so soon as he was told the names of two medical men, one of whom was his own brother, and that thereupon he may have said that that was enough and he wanted no more. Secondly, however - whether she was asked or not - the question remains whether, upon the general law, she was bound (unless by contract she had been relieved from so doing) to disclose the material fact that she had had a serious illness. In my opinion she had not been contractually relieved from that duty under the general law. But then the matter stands thus. It was for the defendants to prove that she did not disclose that illness. The mere production of the second document did not, I think, cause the onus to shift so as to throw it upon the plaintiff to prove that she did disclose it, for the document is no prima facie evidence that she did not disclose it. Whether she did or not depends upon what passed between her and Dr. Bernard Scott. Here it is material to state that Dr. T. B. Scott, whose name she did give, was a person who, as has been proved, knew from her information that she had had a nervous breakdown for which she had to undergo a rest cure, and that she and her mother dreaded a recurrence. Inasmuch as she did not know that it had resulted in mental derangement, Dr. T. B. Scott would not, of course, have learned that fact from her; but he knew of the serious illness, and she had, by giving

Dr. T. B. Scott's name, referred Dr. Bernard Scott to a person who was able to give him information to the extent to which the assured had given Dr. T. B. Scott information. Under these circumstances it seems to me that the onus remained upon the defendants, and that there was some evidence that she had made disclosure, inasmuch as she had referred Dr. Bernard Scott to Dr. T. B. Scott, who was in possession of all the information which she had, although that information, I agree, was not exhaustive. So far I should be of opinion that the defendants have not discharged the onus of proving that there was non-disclosure.

Fifthly, that which the defendants have principally advanced is that the assured did not give the name of Dr. Kinsey Morgan. It is necessary here to discriminate. The material fact here was not the person of the medical man who attended her, but the fact that she had suffered from a certain illness. She did not know of the mental derangement, and, therefore, did not, of course, conceal that. The withholding of Dr. Morgan's name was not withholding a material fact, but withholding the means of enabling the office to ascertain a material fact. Whether she withheld the name or not depends, as I have said, upon the manner in which Dr. Bernard Scott put question 7 to her. The defendants have not proved how that question was put.

There remains, however, the third finding of the jury. This, I may say, is that which has given me the most trouble. To my mind the question put to the jury is embarrassing, and the answer most unsatisfactory. The question, reading it in bits, is this: "Did she fraudulently conceal from the defendants" something? The whole point of the question lay, I think, in the word "fraudulently." The jury answered that she did not fraudulently conceal; that, I think, was the substance of their answer. They were not asked the question, Did she conceal? But they have answered that question. And to that they have appended an adverb, and have said that she "foolishly" concealed something, a matter which they had not been asked. However, it does not stop there; the thing as to which the question as to concealment is asked is not a simple but a complex fact. The question runs thus: "Did she fraudulently

conceal from the defendants that she had consulted Dr. Kinsey Morgan in the year 1894 for nervous depression?" It does not ask, Did she conceal that she had suffered from nervous depression? - which would be one question; nor, Did she conceal that she had consulted Dr. Kinsey Morgan? - which would be another and a different question; but asks, Did she conceal that she had consulted Dr. Kinsey Morgan, for nervous depression? - which is a third and a complex question. When the jury answered, inserting the word "foolishly," that she foolishly concealed something, whether they meant that she foolishly concealed the name of the doctor, or whether they meant that she foolishly concealed the complaint, or whether they meant that she foolishly concealed that she consulted a certain doctor for a certain complaint, I do not know. It seems to me that the question was embarrassing, and the answer leaves me in the greatest doubt. However, there is that finding of the jury. The defendants say that the judgment, which was in their favour, was right, because the findings of the jury led to that conclusion. I do not think myself that they can successfully say that. The extraordinary position seems to me to be this, that we have here a plaintiff appellant who asks, not for a new trial, but for judgment in her favour, and defendants who have succeeded below, and yet contend that they ought to be allowed a new trial. It really comes to this, as it appears to me, that the defendants who have failed, and have failed from the way in which they conducted their case, are to have an opportunity of seeing whether they cannot do better. Had I been without the assistance of my learned colleagues, while admitting that the trial has been so unsatisfactory that I should have felt the greatest temptation to say that justice required that there should be a new trial, I hope I should have been strong enough to say that that temptation ought to be resisted, because in my view the defendants have not succeeded in proving that which rested upon them, and must take the consequences. At the same time, having regard to this question and to this finding, as to the exact meaning of which I really am left in the utmost doubt, and the admitted fact that the lady did know that she had had a serious illness -

having regard to all those facts, I quite agree that it is far more satisfactory that there should be a new trial.

Solicitors for plaintiff: F. Richardson & Sadlers, for Clayton & Gibson, Newcastle.

Solicitors for defendants: Robins, Hay, Waters & Hay.

E. L.