Scottish Court of Session Decisions

This was an action at the instance of Mrs Elizabeth Duke or Donnison, as executrix of her late husband Amor Spoor Donnison, against The Employers Accident and Live Stock Insurance Company, Limited, concluding for payment of £1000, being the principal sum contained in a policy of insurance issued by the defenders on the life of the said Amor Spoor Donnison. By the policy of insurance founded on, Mr Donnison was to be entitled to certain sums in the event of being disabled by an accident, and to £1000 in the event of an accident proving fatal. The policy was subject to certain conditions endorsed thereon. One of these (No. 4) provided that “it is a condition-precedent to any right of the assured or his representatives to make any claim, that notice thereof in writing must be delivered to the company within fourteen days after the occurrence of the accident.” By the 5th condition it was provided that “in the case of death the legal representatives of the assured … shall agree to a post-mortem examination if required by the company.”

It was averred that Mr Donnison died on 5th March 1896 as the result of an injury sustained by him on 3rd February 1896 through a heavy travelling case accidentally falling on one of his great toes. Notice of the accident was sent to the defenders on 2nd March 1896.

The defenders pleaded, inter alia—“(2) The pursuer is barred from recovering the sum insured under the said policy, in respect she has failed to comply with condition 4 thereof, which is declared a condition-precedent to her right to sue or recover thereunder.”

The pursuer pleaded, inter alia,—“(3) The defenders, having by their actings waived any objection on the ground of want of notice, are barred from now founding thereon as excluding the action.” The Lord Ordinary ( Low) before further answer, allowed to the pursuer a proof of the averments made by her in support of her plea of waiver.

Proof regarding this question was led accordingly. The following statement of the facts established is taken from the opinion of the Lord Ordinary—“Mr Donnison received an accident to his foot on 3rd February 1896. He did not, however, give any notice to the defenders of the accident or of a claim in consequence thereof until the 2nd of March, when he wrote to them intimating a claim. He did not in that letter give the date of the accident. On the 3rd of March the defenders sent a printed form containing a number of questions which Mr Donnison was requested to answer. He filled up the answers on the same day and sent the paper back to the defenders. One question was, ‘State day, hour, and place of occurrence,’ and the answer was, ‘February 3rd, at 6 o'clock, in Dublin.’

The defenders therefore became aware on the 3rd of March that Mr Donnison had not given notice of his claim within fourteen days of the occurrence of the accident. Their interpretation of the policy—which is not contested—is that the failure to give notice within fourteen days entitled them, if they chose to exercise the power, to reject the claim without any further inquiry.

On the 4th of March Mr Donnison was examined by the medical men of the defenders, and on the 5th March he died.

On the 6th of March Mr M'Cankie, the defenders’ managing director, called for the pursuer—Mr Donnison's widow—and arranged for a post-mortem examination of Mr Donnison's body, which took place the following day.

The question is whether by insisting upon a post-mortem examination the defenders have barred themselves from founding upon the condition which entitles them to reject a claim if notice is not given within fourteen days of the occurrence of the accident.

There are some discrepancies in the evidence as to what occurred at the meeting between Mr M'Cankie and Mrs Donnison, but the main features of the interview are plain enough.

Mr M'Cankie had written a letter to Mrs Donnison, which he says that he took with him, read to her, and left with her. I do not doubt that he read the letter, and whether he left it or not is not material. The letter commenced—‘In accordance with the conditions of our policy, we desire to have a post mortem examination of the deceased Mr Donnison,’ and then certain

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hours which would suit the doctors were suggested.

Mrs Donnison was naturally very much averse to the idea of an examination, but Mr M'Cankie told her that the company were entitled to have an examination, and I think that the evidence shows that he read to her the clause from the policy.

Mrs Donnison then said that she must consult her family, and went into another room for that purpose. Her son-in-law, Mr Morrison, was there, and he asked Mrs Donnison to let him see the policy, which she did. Upon reading over the clause in regard to a post-mortem examination, Mr Morrison told her that if the defenders insisted upon holding a post-morte examination, he did not see how she could prevent them. Mrs Donnison then went back to Mr M'Cankie and said if she was compelled she must let them do it, or words to that effect.”

The letter referred to by his Lordship was in the following terms:—“Dear Madam—In accordance with the conditions of our policy, we desire to have a post-mortem examination of the deceased Mr Donnison, and as it would suit Dr Byrom Bramwell and Dr Peddie this afternoon at 4·30, kindly let me know if that hour would also suit you. If that hour is quite impossible for you, I will arrange it for 10· 30 to-morrow morning. I am also intimating this to Dr Lyon Wilson. Yours faithfully, Jas. M'Cankie.”

Mr M'Cankie deponed—“I was at the house ( i.e., Mr Donnison's house) myself the day before the death. I went there just to get any information I could as to the man's condition.”

Mrs Donnison was not informed by anyone on behalf of the defenders that the want of timeous notice was a good answer to her claim, and that they proposed and were entitled to found on that defence whatever might be the result of the postmortem examination.

On 19th February 1897 the Lord Ordinary issued the following interlocutor:—“Sustains the third plea-in-law for the pursuer, and repels the second plea for the defenders: Appoints the cause to be enrolled for further procedure: Finds the pursuer entitled to expenses since the date of closing the record, allows an account thereof to be given in, and remits the same, when lodged, to the Auditor to tax and report: Further, grants leave to reclaim.”

Opinion.—[ After setting forth the material provisions of the policy and the facts as above stated]—“The defenders contend that their insisting upon a post-mortem examination did not bar them from founding upon want of notice. Their argument was to the following effect. The defenders were entitled to consider whether they would found upon want of notice or not, and to enable them to do so it was necessary to ascertain by a post-mortem examination whether the deceased had died of the injury or of disease. The pursuer could only found upon the fact of the examination being insisted upon if she could show that it prejudicially affected her claim under the policy. It was clear that it in no way affected the claim under the policy.

Now I have no doubt that Mr M'Cankie was quite justified in asking for a postmortem examination. The claim in regard to notice was one in favour of the defenders, which they could enforce or not as they liked. I fancy that in practice such a condition is frequently not strictly enforced, and in order that the directors might judge as to the course which it was expedient to follow I think that it was reasonable that they should know what an examination of the body disclosed.

But then I think that Mrs Donnison should have been told what the position of matters was. She should have been told that the want of notice entitled the directors, if they chose, to reject the claim, and that notwithstanding the post-mortem examination they might still adopt that course.

It is quite certain that nothing of that sort was said to the pursuer, and it is equally certain that she believed, and was led to believe, that she had a good claim under the policy unless the examination disclosed an objection to the claim of which the defenders were not then aware.

I do not think that it is necessary for the pursuer to show that her claim under the policy has been prejudiced—that is to say, that she has been put in a worse position as regards the claim than she was in before. I think that the principle to be applied is analogous to the principle of rei interventus. It is no slight or unimportant thing for a woman to consent to a post-mortem examination of her husband's body, and if her consent was asked and given upon the footing (as it was in this case) that a claim existed against the company which they were entitled to test by an examination, it seems to me that they are not now entitled to maintain that no claim existed. It would have been different if the defenders had not known of the want of notice at the time. But they were fully aware of it, and their position is that it gave them an absolute right to reject the claim.

In these circumstances, when without warning the pursuer of the position which they were entitled to take up, and might still take up, they insisted upon a postmortem examination, which would be of no possible benefit if they were to stand upon want of notice, I think that they must be held to have waived their right to take that objection, and are now barred from doing so.”

The defenders reclaimed, and argued—There was no waiver here of the company's right to found on the want of timeous notice. The act founded on as a waiver must be an act which was capable of no other reasonable explanation. The company in demanding a post-mortem examination did not commit themselves to an act of that description. The explanation was that before deciding on what course they would take with regard to this claim they wished to have all the facts before them. This they were perfectly entitled to do, and

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notwithstanding what they did they were now entitled to state all the pleas originally open to them. They were not bound before demanding a post-mortem examination to elect whether they would rely on the want of notice or not, or to notify the pursuer of what they proposed to do as to that defence. See Morrison v. The Universal Marine Insurance Company (1873), L.R., 8 Ex. 107. The cases in which a plea of waiver had been upheld were much stronger than the present, and might be referred to by way of contrast. See Wing v. Harvey (1854), 5 De G., M., and G. 265, and Shepherd v. Reddie, March 1, 1870, 8 Macph. 619.

Counsel for the pursuer and respondent were not called upon.