Scottish Court of Session Decisions

In December 1894 Mrs Cruikshank, widow of George Macaulay Cruikshank, patent agent, Glasgow, raised an action, as executrix-dative of her husband, against the Northern Accident Insurance Company, Limited, for £1000, being the amount which, by policy dated 20th February 1883, the defenders promised, subject to the conditions of the policy, to pay to Mr Cruikshank's representatives in the event of his death through accident. The negotiations for the policy had been conducted, on the part of the defenders, by Mr Black, then

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the general agency superintendent of the defenders at Manchester. A printed proposal and declaration had been filled up by Mr Cruikshank. The fifth question in the proposal was as follows:—“Are there any circumstances which render you peculiarly liable to accident?” The answer written opposite this question was, “Slight lameness from birth.” Attached to the proposal was a declaration in the following terms:—“I hereby declare and warrant that the above statements are true; that I have not had paralysis or a fit of any kind …; that I have no physical infirmity…; and I agree that this declaration shall be the basis of the contract between me and the Northern Accident Assurance Company, Limited.” This declaration was signed by Mr Cruikshank.

Mr Cruikshank, when an infant, had been injured by a fall from his nurse's arms. This rendered him a cripple for life. His right leg was shorter than the left, and was entirely wanting in proper muscular development. With the aid of a stick and crutch he could walk along the street at the rate of two and a-half or three miles an hour.

On 24th January 1894 he met with an accident by reason of a fall, which resulted in his death on the following day.

The defenders refused to pay the pursuer the sum contained in the policy on the ground that the policy had been obtained by material misrepresentation or concealment on the part of the deceased, and that the declaration in the policy, which constituted a warranty, was untrue.

On 27th August 1895 the Lord Ordinary ( Low), after a proof had been led, decerned against the defenders for payment to the pursuer of the principal sum of £1000 and interest thereon, as concluded for, and found the pursuer entitled to expenses.

Note.—“It is not disputed that the description given by Mr Cruikshank of his lameness in the proposal, upon which the policy in question was issued, was not in fact true. He described his lameness as slight, while, as a matter of fact, he was extremely lame. If, therefore, the policy was issued upon the faith of the statement made in the proposal, and of nothing else, the policy would be void.

The pursuer, however, avers that Mr Black, the defenders' general agency superintendent, through whom the insurance was effected, saw Mr Cruikshank, and was fully aware of his condition.

It appears that in 1883 Mr Cruikshank and Mr Black met by chance in a hotel in Manchester and got into conversation. Mr Black asked Mr Cruikshank if he was insured against accidents, and, upon the latter replying in the negative, proposed that he should take out an insurance with the defenders' company.

In regard to what followed the evidence is conflicting.

Mr Black says that he only saw Mr Cruikshank sitting at table, that he did not see him walk, nor did he see his lower limbs, and that he accepted the proposal upon the faith of Mr Cruikshank's statement that he was only slightly lame.

Upon the other hand, the evidence for the pursuer is as follows:—When Mr Cruikshank returned from Manchester he told his wife that he had taken out an insurance against accidents. He then told her in detail how it had come about. He said that he had met the insurance company's agent by chance in the hotel at Manchester, and that the agent proposed that he should take out an insurance against accidents. He then said to the agent that he must first see the subject with which he had to deal, and he accordingly rose and walked across the room. The agent said that his lameness did not matter, because people in his condition took more care than those who had no physical infirmity, and that the risk to the company was therefore not greater. The matter was then concluded, the premium was paid, and a covering note given.”—[ His Lordship here reviewed the evidence on this point and proceeded.]

I have, therefore, no doubt that the story told by Mr Cruikshank was true; and if so, I am of opinion that the defenders are not entitled to take advantage of the misdescription in the proposal of Mr Cruikshank's physical condition. The knowledge of their agent was their knowledge.

A more difficult question arises upon the general declaration at the end of the proposal. It is, so far as material, in the following terms:—‘I hereby declare and warrant that the above statements are true; that I have not had paralysis or a fit of any kind, or been ruptured; that I have no physical infirmity.’

Mr Cruikshank's signature is appended to the declaration, and it is argued for the defenders that the declaration was not true in respect (1) that he had a physical infirmity, and (2) that he must have had infantile paralysis.

The only physical infirmity which Mr Cruikshank had was his lameness, and if that was disclosed in the answers to the questions in the earlier part of the proposal, I think that that was sufficient. The declaration must, I think, be read in the light of the previous answers, and anything which is disclosed in the answers does not require to be excepted from the declaration.

But then it was said that the lameness was caused by infantile paralysis, and that as the declaration was a warranty, it was not material to inquire whether Mr Cruikshank was or was not aware that he had had paralysis.

It appears that when in a subsequent year Mr Cruikshank was insuring his life, he told the doctor of the insurance company that his lameness had been the result of a fall which he had when an infant. He told his wife the same thing. Now, if the lameness resulted from a fall, the probability is that the spine received some injury, and that partial paralysis of the legs ensued.

Why the lameness is entered in the proposal in question as being from birth it is impossible to say. The answers in the proposal are filled in in Mr Black's handwriting,

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and the words ‘from birth’ appear to have been filled in after the original answer ‘slight lameness’ had been written. It may be that Mr Cruikshank gave Mr Black the same account of the origin of his lameness as he gave to others (at least I see no reason why he should not have done so), and that the words ‘from birth’ were added as a short way of describing a lameness which commenced at a time which Mr Cruikshank could not remember. But however that may be, the statement as it stands must be taken as Mr Cruikshank's statement, and the policy dealt with upon that footing.

Now, in the first place, I do not think that it is proved that Mr Cruikshank ever had infantile paralysis. No doubt the evidence renders it highly probable that the lameness was caused by partial paralysis brought on by a fall in infancy. But I do not think that upon the medical evidence the defenders' case can be put higher than one of probability.

Further, although the declaration is a warranty, it is to be remembered that it is intended to be made by members of the general public desiring to insure against accidents. Therefore in a case of lameness following upon a fall in childhood, where the scientific cause of the lameness is paralysis, induced by an injury to the spine, I do not think that the policy would he void because the proposer did not know, and therefore did not state, that his lameness was caused by paralysis, if he stated truly and accurately the extent and nature and origin of his lameness. Now here, according to the view which I take of the evidence, the defenders knew, through Mr Black, how lame Mr Cruikshank was, and what was the nature of his lameness. They knew that the right leg was shorter than the left, and was almost powerless. They had knowledge therefore which suggested that Mr Cruikshank might have had infantile paralysis. But then it is said that Mr Cruikshank made an untrue statement as to the origin of his lameness. As regards that, the burden of proof is upon the defenders, and upon the evidence I am unable to say for certain that the statement was untrue. Mr Cruikshank told his wife and the doctor of the Life Insurance Company that he had had a fall when an infant, to which his lameness was attributed, and he must be taken to have told Mr Black that he had been lame from birth. It is not said that Mr Cruikshank made a wilfully false statement, and no one now can tell for certain whether the latter statement was in fact true or false. The origin of the lameness was not a matter within the personal knowledge of Mr Cruikshank. He had been lame ever since he remembered, and the defenders knew that that was the case. No one suggests that, if it had been stated that the lameness was due to a fall in infancy, instead of from birth, that would have made any difference in the risk. The important matters were the nature and extent of the lameness, and that Mr Cruikshank had been lame ever since he remembered. The defenders were aware of all that, and therefore they knew all that was necessary to enable them to consider whether they should refuse the proposal, or charge a higher premium, or demand a medical examination.

Upon the whole matter I am of opinion that the pursuer is entitled to decree.”

The defenders reclaimed, and argued—(1) The statement made in the proposal by the assured that he had had “slight lameness from birth” was untrue. It was clearly proved that he was very lame. The policy was issued on the faith of this untrue statement, and was accordingly void. (2) It was for the pursuer to prove that the defenders' agent Black saw the condition of the assured at the time the proposal and declaration were signed. In this she had failed. (3) Assuming the agent did see the condition of the assured, he had no authority to waive any of the conditions upon which the policy was issued, and accordingly his doing so could not bind the company. (4) In any view, the policy was void on account of the breach of the express warranty in the declaration that he had not had paralysis, and had no physical infirmity. It was proved that both the statements were untrue in fact, and this was sufficient to free the defenders from liability under the policy— Standard Insurance Company v. Weems, August 1, 1884, 11 R., H.L. 48, L.R. 9 App. Cas. 671. (5) The case of Bawden v. London, Edinburgh, and Glasgow Assurance Company, May 13, 1892, 2 Q.B. 534, was distinguishable. That case was expressly decided in view of the special circumstance that the assured had only one eye, which was a patent defect, and that he was illiterate. The Court also did not consider the question of warranty.

Argued for pursuer—(1) It was proved that Mr Black had seen Mr Cruikshank walk before he took out the policy. The lameness had been described as slight lameness from birth, rendering the assured peculiarly liable to accident. If Mr Cruikshank's activity in walking was taken into account, this was not an untrue mode of describing his lameness. In any event, Mr Black's knowledge was the knowledge of the Insurance Company, and prevented them objecting to fulfil the contract on the ground that they now considered Mr Cruikshank's lameness was not of the nature described— Bawden, supra. (2) As regards the paralysis—in the first place, it was only a matter of medical opinion that the lameness was caused by infantile paralysis. In the second place, the paralysis mentioned in the declaration did not refer to infantile paralysis, but to what was known as a shock of paralysis, which might be recurrent.

At advising—