1862. FOWKES answer was false; first, because it was not true that the life had been accepted by the office; and next, because, even if it had, it was not so true that it had been declined and Another at another office, and this fact was suppressed (a). In the course of the case for the plaintiffs, Shee, Serjt, cross-examined one of the medical men who was called to prove that he had examined the deceased, and pronounced his life fairly insurable, and asked him whether he had not stated to two persons at the office of the defendants afterwards, that the life was a bad one, and on his denying it, proposed to call them to prove it. Huddleston objected, that this was collateral; but COCKBURN, C. J., said it was not so, because it went to show that his evidence to-day was false on the main issue (b). The witnesses were accordingly called, and swore that the witness had so stated to them. At the close of the case, COCKBURN, C. J. (to the jury).-First, were the answers of the testator, or either of them, untrue? Next, if so, were they, or either of them, untrue to his knowledge? As to the first answer, to the question whether he had ever been afflicted with gout? no doubt it must be considered with some reasonable latitude, and the answer would not be false, merely because he had some symptoms which an experienced medical man might see indicated the presence of gout in the system. You will probably consider whether there was gout in a sensible appreciable (a) Vide ante, pp. 441, 444. (b) See M'Kewan v. Thornton, 2 F. & F. 594, a very similar ruling, per WILLIAMS, J. See also a similar course taken, per BYLES, J., in a Crown case; Regina v. Dennis, post. It is conceived that the true rule, which is one only of proce- v. THE MANCHESTER AND LONDON LIFE IN SURANCE Co.. 1862. FOWKES form, and in considering that question you will bear in mind that the medical man himself described the only and Another attack which preceded the policy, as the slightest possible case of gout, and that there is no positive evidence that the CHESTER AND deceased knew that he had gout. v. THE MAN LONDON LIFE INSURANCE Co. As to the other answer, it is said, on the part of the plaintiffs, that the deceased had been proposed at two other offices, and had been accepted at one and declined at the other. Even if this were so, however, did the deceased answer truly, in stating simply that he had been accepted? Was the question asked him answered fairly and fully, according to its obvious meaning and effect? I rather think not, but that is for you. Is it, however, the fact that he had been accepted at either office? The office had not accepted him; all that appears is, that one of their medical officers had examined him and pronounced his life fairly insurable. The answer appears to imply that he had been accepted by the office, for that is the obvious meaning of the question. That, however, is for you. The jury found that the deceased had not been "afflicted with gout" at the time of the proposal; and that his answer to the other question was untrue, but not designedly so. (a) Subject to leave to move; but the case was not moved. There was, however, a demurrer argued in E. T., on which it was held, that Verdict for the plaintiff (a). the mis-statements must be wilful to vitiate the policy. Judgment, therefore, for the plaintiff. HURRELL v. BULLARD AND ANOTHER. 1863. London Sittings. Hilary Term. ACTION by shipowner against agents, for breach of On the employ duty in not duly insuring a vessel of the plaintiff. ment of any mercantile or agent, it is for the jury, in the absence of any dence of the nature of his ties are; and an insurance an insurance, absence of any The declaration in the first count stated, that the plain- commercial tiff was owner of a vessel called "The Nettle," with the tackle and other furniture and appurtenances thereof, which was about to sail on a certain voyage, to wit, from London to Malaga, and thence to a port or ports in the duties on such employment, United Kingdom of Great Britain and Ireland, and the to judge, from plaintiff, at the request of the defendants, retained and their own knowledge, employed the defendants for reward to them in that be- what those duhalf, to cause to be made according to the custom of mer- thus on the chant insurance upon the said vessel, tackle, furniture and employment of appurtenances, and to cause a policy or policies of insur-agent to effect ance to be made and underwritten thereon (a) for the said or get it effected, it is for voyage, from and against perils of the seas and other risks the jury, in the usually borne and taken upon themselves in marine policies absence of insurance by underwriters and insurers, and upon the dence, to judge usual terms and conditions of marine insurance, in the sum employed to of 2501., the defendants accepted and entered upon such ge retainer and employment, and the plaintiff then and thence, until at the time of the loss hereinafter mentioned, was interested in the said vessel, tackle, furniture and appurtenances to the said amount of 2501., and although reasonable time in that behalf, afterwards and before this action and before the loss of the said vessel, tackle, furniture and appurtenances hereinafter mentioned elapsed, and all conditions were performed and everything happened necessary to entitle the plaintiff to maintain this action for the breach next hereinafter alleged, yet defend (a) This count related only to effecting the policy. a express evi whether he was get the insurance effected, or only to place the hands of the business in brokers to effect it; and whet whether he is responsible for their neglect or default, especially in not getting it effected with responsible innot informing surers, and in his employer, the insured, who they are, in order to enable him to sue them. It is matter of law that the agent is only bound to use due care and do what is usual, but it is matter for the jury what this duty involves, or whether there has been a breach of it. 1863. HURRELL v. BULLARD ants did not nor would, within such reasonable time as aforesaid or at any other time, cause to be made, according to the custom of merchants, an insurance upon the said and Another. vessel, tackle, furniture and appurtenances or any of them, and did not nor would cause to be made or underwritten thereon any such policy or policies as aforesaid for the said voyage, from and against such perils and other risks as aforesaid, and upon the terms and conditions and in such amounts as aforesaid or otherwise howsoever. And the defendants in breach of their duty in that behalf wholly neglected and neglected so to do, and the plaintiff wholly confiding in the said retainer and employment so given to and accepted by the defendants as aforesaid, suffered and permitted the said vessel with the said tackle, furniture and appurtenances to proceed, and the same did proceed on her said voyage, and afterwards, and after the breach of duty by the defendants as aforesaid and whilst the said vessel was proceeding on her said voyage, the said vessel with the said tackle, furniture and appurtenances was, by such the perils of the seas as aforesaid, broken to pieces and sunk and wholly lost to the plaintiff, and the plaintiff thereby lost and was deprived of the said sum of 2501. so to have been insured in respect thereof as aforesaid, the said loss being by and through one of the perils from and against which the defendants ought to have caused insurance to be made, and a policy or policies of insurance to be made and underwritten as aforesaid, whereby, and by reason of the said neglect and breach of duty by the defendants, the plaintiff has wholly lost and been deprived of the monies and indemnity he might and would otherwise have procured and recovered. 2. That the plaintiff was owner of a vessel called "The Nettle," with the tackle and other furniture and appurtenances thereof, which was about to sail on a certain voyage, to wit, from London to Malaga, and thence to a port or ports in the United Kingdom of Great Britain and Ireland, 1863. HURRELL v. BULLARD and the plaintiff, at the request of the defendants, retained and employed as defendants for reward to them in that behalf to effect a good and available insurance (a) upon the said vessel, tackle, furniture and appurtenances for the said and Another. voyage from and against perils of the seas and other risks. usually borne and taken upon themselves in marine policies of insurance by underwriters and insurers to the amount of 2501., upon the terms that the defendants should use due and reasonable care and diligence in and about effecting the said insurance in an available manner, and in causing the said policy or policies to be underwritten by sufficient and responsible underwriters, and should do all such things as were then usually done by insurance brokers retained and employed in such manner and for such purposes as aforesaid (b), in order to enable the plaintiff to obtain payment of the monies which might become due in the event of the loss of the said vessel, tackle, furniture and appurtenances or any part thereof by any one of the perils so to be insured against as aforesaid; and the defendants then accepted and entered upon such retainer and employment upon the terms aforesaid, and the plaintiff then and there until and at the time of the loss hereinafter mentioned was interested in the said vessel, tackle, furniture and appurtenances to the said amount of 2501.; and although a reasonable time in that behalf afterwards and before this action and before the loss of the said vessel, tackle, furniture and appurtenances hereinafter mentioned elapsed, and all conditions were performed and everything happened necessary to entitle the plaintiff to maintain this action for the breaches hereinafter alleged, yet the defendants did not nor would use due and reasonable care and diligence in and about effecting such insurance as aforesaid in an available (a) This came a little nearer to the real point, but still related only to the policy itself, which seemed to be, on the evidence, effected well enough. (b) This was the real point, as it turned out, upon the evidence; relating as it did, though still in general terms, to what was to be done after the making of the policy. |