Scottish Court of Session Decisions

The late Archibald Boyd, by policy of assurance dated 6th June 1887, insured his life for £50 with the Refuge Assurance Company, Limited, Glasgow. The policy provided—“Number one of said conditions is as follows:—‘The full sum assured shall become payable if the assured shall die

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from accident happening at any time after the date of this policy; or shall die from any other cause after twelve calendar months from such date.’ … ‘On the death of the assured the claimant under this policy shall transmit to the Company's manager, or to its agent for the district, a registrar's certificate of the death, and also such other evidence and information as the directors may require, including reasonable evidence of the age of the assured, and of claimant's title, and if the claim is made on the ground of death from accident, satisfactory evidence of the accident. No money will be paid without such proofs; if the same are satisfactory and the sum assured is under £100 it will be paid immediately.’” Boyd was found drowned in the Clyde upon 22nd July 1887, and his daughter, Mrs Janet Boyd or Macdonald, as his executor-dative, with consent of her husband James Macdonald, vanman, 9 Stock Street, Paisley, brought an action in the Sheriff Court at Glasgow against said company for payment of £50 as due under said policy.

She averred that the deceased met with his death by accidental drowning in the river Clyde at or near to Renfrew Ferry Slip between the 17th and 23rd days of July 1887. This the defenders denied, under reference to the above condition in the policy as to satisfactory evidence of the accident, and pleaded—“(1) The pursuer having failed to produce any proof of accidental death, the defenders are not liable in the sum sued for.”

The Sheriff-Substitute ( Spens) allowed a proof of the averment that the deceased met his death through accident.

“ Note.—At the debate I was disposed to take a different view, and to hold that it rested upon the Insurance Company to prove that the deceased had committed suicide, and that if they were not prepared to take this onus, decree should be granted. Further consideration has induced me to take a different opinion. The question is, of course, entirely one of contract, and by the conditions of the policy, the directors may require ‘if the claim is made on the ground of death from accident, satisfactory proof of the accident.’ Now, suicide is not accident, and the mere fact that the man was found drowned does not itself necessarily point to accident. If the circumstances disclosed in the proof infer that death was accidental, then the pursuer will be entitled to prevail, but the onus at all events rests upon him of establishing the alleged accident.”

The pursuer appealed to the Sheriff ( Berry), who adhered.

The evidence led at the proof failed to throw any light upon the way in which the deceased fell into the water The Sheriff-Substitute found that the pursuer had failed to prove that the deceased died through an accident, and assoilzied the defenders.

“ Note.—Under the conditions of the policy, the directors are entitled to require when a claim is made ‘on the ground of death from an accident, satisfactory proof of the accident.’ Now, the result of the proof to my mind is that it is impossible to predicate with certainty whether the deceased committed suicide, or whether being drunk, accidentally walked or slipped into the river Clyde. I admit that of the two I think the latter is the more likely, but still no one can speak with any reasonable certainty on the subject. Now, if death was through suicide, it was not accident, and there being such a large element of doubt as to the matter, no ‘satisfactory proof of the accident’ has been given. I am therefore of opinion that defenders are entitled to prevail.”

The pursuer appealed to the Sheriff, who adhered.

The pursuer appealed to the Second Division of the Court of Session, and argued—If the Sheriff's view was correct it would be impossible to recover under such a policy as this without the evidence of an eyewitness. The construction put by them upon the conditions in the policy was unreasonable. If there was any doubt, the policy was to be construed contra preferentem— Scott v. Scottish Accident Insurance Company, Limited, March 19, 1889, 16 R, 630.

The legal presumption was against suicide— Mallory_v. The Travellers Insurance Company, 1871, 7 Amer. Rep. 410. The circumstances here pointed to accidental death by drowning which was covered by such a policy as the present— Frew v. Railway Passengers Assurance Company, May 14, 1861, 6 Hurl. and Nor. 839; Reynolds' Executor v. The Accidental Insurance Company, June 22, 1870, 22 L. T. (N.S.) 820; Winspear v. The Accident Insurance Company, Limited, November 29, 1880, L.R., 6 Q.B.D.42.

Argued for the respondents—One of the conditions of recovering under this policy was “satisfactory evidence of the accident.” This had not been produced. The pursuer had failed to discharge the onus which lay upon her of negativing the possibility of suicide. In this case the Sheriffs were right in holding that a balancing of probabilities was not sufficient but that there must be distinct evidence of the alleged accident— M'Kechnie's Trustees v. Scottish Accident Insurance Company, Limited, October 24, 1889, 17 R. 6.

At advising—