Moore v. Connecticut Mutual Life Insurance Co. of Hartford

Moore v. Connecticut Mutual Life Insurance Co. of Hartford
Collection
Supreme Court Judgments
Date
1879-12-13
Report
(1879) 6 SCR 634
Judges
Ritchie, William Johnstone; Strong, Samuel Henry; Fournier, Télesphore; Henry, William Alexander; Taschereau, Henri-Elzéar; Gwynne, John Wellington
On appeal from
Ontario
Subjects
Insurance
Decision Content
Supreme Court of Canada
Moore v. Connecticut Mutual Life Insurance Co. of Hartford, (1879) 6 S.C.R. 634
Date: 1879-12-13
Kate Douglas Moore (Plaintiff) Appellant;
and
The Connecticut Mutual Life Insurance Company of Hartford (Defendants) Respondents.
1879: June 14, 16; 1879: December 13.
Present: Ritchie, C.J., and Strong, Fournier, Henry, Taschereau and Gwynne, JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Life Insurance—Power of Court to set aside verdict and enter another—37 Vic. ch. 7, secs. 32 & 33 Ont.—secs. 264, 283, ch. 50 Re v. Stats. Ont—38 Vic. ch. 11, secs. 20, 22—New trial.
In an action on a life policy tried before a judge and a jury, in accordance with the provisions of 37 Vic., ch. 7, sec. 32, Ont, the learned judge, in place of requiring the jury to render a general verdict, directed them to answer certain questions, and the jury having answered all the questions in favor of the plaintiff, the judge entered a verdict for the plaintiff. Upon a rule nisi to show cause why this verdict should not be set aside and a non‑suit or a verdict entered for defendants, pursuant to the Law Reform Act, or a new trial had between the parties, said verdict being contrary to law and evidence, and the finding virtually for the defendants, the Court of Queen’s Bench made the rule absolute to enter a verdict for the defendants. The appellant then appealed to the Court of Appeal for Ontario, and the court being equally divided, the appeal was dismissed.
Held 1. (Taschereau, J., dissenting), that the Court of Queen’s Bench had no power to set aside the verdict for the plaintiff and direct a verdict to be entered for the defendants in direct opposition to the finding of the jury on a material issue.
2. That the court below might have ordered a new trial upon the ground that the finding of the jury upon the questions submitted to them was against the weight of evidence, but they exercised their discretion in declining to act, or in not acting, on this ground; and therefore no appeal to the Supreme Court of Canada would he on such ground, under sec. 22, 38 Vic., ch. 11[1].
3. That if an amendment to a plea was authorized by the court below, but such amendment was never actually made, the Supreme Court has no power to consider the case as if the amendment had in effect been made[2].
Per Gwynne, J., That the plaintiff never could have been non-suited in virtue of 37 Vic., ch. 7, sec. 33 Ont., as it is only where it can be said that there is not any evidence in support of the plaintiff’s case, that a non-suit can be entered; and that in this case, the proper verdict which the law required to be entered upon the answers of the jury was one in favor of the plaintiff[3]. APPEAL from a judgment of the Court of Appeal for Ontario, dismissing an appeal to that court from a judgment of the Court of Queen’s Bench for Ontario.
The action, which was brought by one of the children of the late Charles Moore, on a life policy issued by the respondent company, was tried before Moss, C.J., and a jury at the Toronto Assizes, on the 23rd of April, 1877, when a verdict was entered for the plaintiff which, in the learned judge’s opinion, the answers of the jury to the questions put to them, required to be entered. A rule nisi was afterwards obtained to set aside the verdict for plaintiff and to enter a non-suit or verdict for the defendants, pursuant to the Law Reform Act, or for a new trial, which was made absolute to get aside the verdict for plaintiff and enter a verdict for defendants.
The appellants then appealed to the Court of Appeal for Ontario, and that Court being equally divided, the appeal was dismissed.
The facts and pleadings are fully stated in the judgments hereinafter given[4].
Mr. James Bethune, Q.C., and Mr. Rose, with him, for appellant:—
The warranty in the application and policy was merely “that the applicant’s answers were fair and true.” Whether these answers were fair and true was a question of fact for the jury.
The respondents did not object to the questions being put to the jury, and if the Court of Queen’s Bench have done what they had no right to do, we are entitled to have our verdict restored. We contend that there was evidence to be left to the jury, and the Ontario stat., 37 Vic. c. 7, did not give the Court of Queen’s Bench the power to substitute their verdict for that of the jury.
Then all that respondents can now argue is that no questions should have been put to the jury. Now, if the questions were improperly put, the respondents should have objected to them. This was not done and they have no right to do so now. Appellants further contend that the questions were properly put to the jury, and that although it is for the court to construe a contractact was for the jury to say whether the injury received was such as to be material to the risk.
[The learned counsel then argued that the statements in the application were not warranties but merely representations. That in any case the insured only warranted that the answers were “fair and true,” and the jury having found that he had given “fair and true” answers, it could not be said he had received any personal injury which he might fairly have been expected to communicate to the insurers.]
Mr. Robinson, Q.C., and Dr. McMichael, Q.C., for respondents:
[The learned counsel, after having argued that the evidence showed beyond all doubt that the breaches of warranty alleged in the pleas were proved, therefore the plaintiff could not recover on the policy, continued:] The motion we made was to set aside the verdict, and to have a non-suit or verdict entered for the defendants, pursuant to the Law Reform Act, or a new trial had between the parties; also that we were entitled to a verdict under the answer of the jury to the seventh question. Now, when the judge proposes to leave certain questions to the jury, he does not necessarily leave the whole case, and the verdict which is entered is in the form of a general verdict.
Respondents contend that in this case, the questions put were partly relevant and partly irrelevant, and the the answers given to the relevant part, viz., to the fact of the insured having received a blow on the head and the consequent injury to the skull, and whether he had been attended by other medical aid, were in our favor. Moreover, if, as a matter of fact, all questions answered were irrelevant, the answers so given would not exclude the operation of sec. 283, of ch. 50 of the Revised Statutes, which declares that every verdict shall be considered by the court on all motions affecting the same as if leave had been reserved at the trial to move in any manner respecting the verdict, and in like manner as if the assent of parties had been expressly given for that purpose.
At the trial also respondent’s counsel submitted that there was no question for the jury, the warranty being that the statement is true.
It will not be denied that the judge in this case did not leave to the jury the fact that a personal injury had been received, and this fact being proved, it is a breach of a warranty, and on this finding the respondents are entitled to succeed. The qualifications put to these questions by the judge were not warranted by the contract.
THE CHIEF JUSTICE:—
The state of the pleadings, the issue raised, the finding of the jury, and the action of the court below, in setting aside the verdict for the plaintiff and ordering a verdict to be entered for the defendants, prevents our dealing with the case in any other manner, in the view we take of the case, than by ordering the restoration of the original verdict. We have no power to amend, or right to interfere with the record in the court below, and we are precluded by the Supreme Court Act from granting a new trial on the ground of the verdict being against the weight of evidence.
The most important question in this case was, in my opinion, as to the answer given by the applicant to the eighth group of questions:—
“Have you had any other illness, local disease or personal injury? And if so of what nature? How long since? And what effect on general health?” Answer: “No.”
Here are four distinct questions put, each requiring a separate and distinct answer, if the first is answered in the affirmative; the three last would seem most important to enable the medical officer of the company to advise, and the company to determine, how far such illness, disease or personal injury, as the case may be, ought to affect the proposed risk. With reference to the first it cannot be that the illness or disease referred to was intended to apply to any slight, trivial indisposition of a temporary character, which no one in the ordinary intercourse of life would treat or speak of as an illness in the sense that term is ordinarily used in the common parlance of life, and as distinguishable from indisposition, or that by personal injury was intended every trifling injury, such as a simple cut, or burn of a slight character, producing, perhaps, a little temporary pain, possibly a little inconvenience, but no serious consequences, nor effects of a character likely to cause the injury to be remembered; but injuries of a substantial character, such as impair the body, or health, or as would be considered serious at the time, or which in their immediate effect might possibly jeopardize life, or tend, in their ulterior consequences, to affect longevity, or leave the person injured more open to the effect of subsequent disease, though not proceeding necessarily, immediately, or directly, from the wound or injury itself; in other words, leaving what might be considered a weak spot in the system, which might be productive, in the future, of consequences detrimental to longevity, either proceeding from the injury itself, or in connection with disease or injury to which the person may become subject from other causes, all of which it would be the proper province of the medical adviser of the company to determine when he should know the nature of the personal injury, how long since it occurred, and what the subsequent effect had been on the general health. Though it is certainly not necessary that such injury should contribute to the death of the assured, it is sufficient if it is such an injury as he should have disclosed in his answer, so that the insurers should have been placed in a position to institute any necessary enquiries in reference thereto, and on the result accept or reject the risk, the object of these questions being to obtain such information as to any personal injuries of a substantial or serious character as will enable the insurers, not the assured, to judge of its effect on the proposed risk, and, as Mr. Justice Patterson says, it may not be easy to define the limits between mere hurts and ailments and injuries or diseases; but in this case the injury is of so decided a character, and so clearly, to my mind, a personal injury within the policy, that a critical definition is unnecessary to be attempted.
It is difficult for me to understand how this could have escaped the recollection of the assured, and so been overlooked by him, when it is clear from the evidence that the injury must have been present to his eye every time he looked in the glass, and he could not pass his hand over that part of his head without feeling the indentation. But whether it affected his general health, or was present to his mind at the time he answered the question, or was overlooked by him,. in my view, is wholly immaterial. A personal injury, such as a fracture or depression of the skull, with loss or exfoliation of a part of the bone of the skull, is, I think, a personal injury of the most severe and serious character, and was a personal injury within the meaning of the policy which the assured was bound to have communicated, whether resulting from accident or disease, and not having done so, and not having truly answered the question, there was a breach of his warranty, and, as a consequence, a forfeiture of the policy would be the necessary result, if defendants chose properly to raise the question by their pleadings. But for what has taken place on the trial, and the finding of the jury, I should not have supposed it possible that any ordinary reasonable man of common understanding could be found to say that an injury, which left comparatively exposed such a vital part as the brain, which nature has in a sound man so strongly and carefully guarded, was not a personal injury within the terms of the application. Can it be said that a person who had received such an injury as to fracture his skull and remove a piece of it, or that accident or disease had caused exfoliation, so as to produce an indentation and absence of a piece of the skull, whether it apparently affects his general health or not, has not received a very serious injury, or had such an illness as left him less sound and more liable to serious consequences in the event of receiving other injuries on, or affections of, his head than a person whose head had never been fractured or exfoliated, and was in a perfect state to fulfil its functions and protect the brain? I think the company stipulated for and were entitled to information with respect to the injury, to enable them to judge whether it might or might not affect the health, strength, or longevity of the assured, or whether, though of itself not affecting the general health, it might not, in connection with other diseases or injuries which might occur, possibly have an ulterior injurious effect, whether, in other words, it might not affect the risk. Was he not rendered by that injury practically unsound, in that his skull was broken or defective, and the rain was therefore not covered and protected as nature provided it should be?
In view of the purposes for which these questions are asked, to say he was not, and to treat this as a slight or trifling injury and class it in the category of simple bruises, sprains, cut fingers and such like, would be, in my opinion, a most unreasonable construction to put on the language of this question. In view, however, of the doubt raised by the evidence, which I cannot help saying I think very unsatisfactory, as to whether the injury resulted from disease or accident (for I cannot think there was any reasonable ground for supposing under the evidence it resulted from natural causes), if the question was a proper one to be submitted to the jury, then in view of the only issue raised, and the finding of the jury on that issue, a verdict should not have been entered for defendants, but a new trial ordered.
Had the pleadings raised properly the question as to disease as well as to accident, I think the verdict must have been in favor of the defendants, inasmuch as the serious injuries on applicant’s head, whether resulting from disease or accident, not having been communicated, would have invalidated the policy, but the jury having found on the issues as raised, in favor of the plaintiff, and having been matter proper to be submitted to them, and the question as to whether or not the verdict was against the weight of evidence not being open to us, we have no power to deal with the case otherwise than to say that the Court of Queen’s Bench should not have ordered a verdict for the plaintiff on the findings of the jury to be converted into a verdict for the defendants. If the pleadings did not properly raise the substantial points on which the case should turn the record should have been amended, or if the court below were dissatisfied with the finding of the jury on the issues as raised as being against the weight of evidence, a new trial should have been ordered.
STRONG, J., concurred in the judgment delivered by Gwynne, J.
FOURNIER, J. concurred.
HENRY, J.:—
This is an appeal from a decision of the Appeal Court in Ontario. It is an action on a life insurance policy which was tried before the learned Chief Justice of Ontario, and a verdict for the plaintiff entered by him for the present appellant on answers to certain questions submitted to the jury A rule nisi was granted to set aside the verdict and to enter a non-suit or verdict for the defendants, or to grant a new trial. On argument the rule nisi was made absolute to enter a verdict for the defendants.
The plaintiff appealed from that judgment and after argument before the Appeal Court it was ordered that the appeal should be dismissed without costs. From the latter judgment the plaintiff appealed to this court, and it was fully and ably argued in June last.
The policy is fully set out in the declaration, and to it the pleas raising the only issues necessary to be considered, are the second and fourth. It appears that on the trial an amendment of the fourth plea was conditionally allowed, but whether an amendment was really made appears to have been doubted by one or more of the judges of the Appeal Court, and I think there is no evidence that it was finally allowed. A difference of opinion, too, existed as to the power of either that court or the Court of Queen’s Bench, where the verdict was entered by the presiding judge, as in this case, upon special findings of a jury, to order a verdict to be entered for the defendants, or a non-suit, some of the judges holding, correctly as I think, that the court could only, in such a case, order a new trial. Entertaining the views I do, on the issues otherwise raised, it is not necessary, in my opinion, to consider either the matter of the amendment referred to or the power of the courts to order the entering of a verdict for the defendants; but if my judgment were to rest solely on one or both of the two points named I would decide them in favor of the appellant.
The second plea, to which I have referred, alleges that the negative answer to the question in the application; “Have you had any other illness, local disease or personal injury, and, if so, what nature? How long since? And what effect on your general health?” was untrue.
That the said Charles Moore had some twelve years before the time when he signed the said application and answered the said question in the negative, received a blow on the head which produced a fracture or depression of the skull, and which was followed by exfoliation of the bone of the skull, and which also caused some degree of inflammation of the brain. That the said blow was a personal injury within the meaning of the said question, and that the answer “No” given to the said question was untrue and was a breach of the warranty contained in the said application, and that by reason of such untrue answer and breach of warranty the said policy was forfeited.
In view of the law and the principles governing such cases, I feel no difficulty in asserting that if the plea had been sustained by sufficient evidence, and that the injury was of the description stated in it, the plaintiff’s case would have been met, and the verdict should have been for the defendants. It would then have been, I think, such an injury as the applicant was bound to disclose in his answer. There is no doubt in my mind of the law, that the company had the right to propound the question, and to require thereto a truthful answer on pain of the forfeiture of the policy. The general proposition of law to warrant this decision is well established, and the authorities need not be cited in favor of it. A material misrepresentation avoids a policy as well as a warranty. In case of the former the materiality is generally essential, but in the latter it is not an element to be considered. We have not here the necessity of deciding as to the materiality of the subject-matter, as I have no doubt there was, in this case, a warranty of the truthfulness of the answers in question. The court is to judge of the sufficiency of the plea, but it is for the jury to decide upon the facts proved in support of it. The province and duty of the presiding judge is to expound the law to the jury, and it is for the jury in view of the law so expounded to find their verdict upon the facts. In the case of a general verdict it is final between the parties, if the rulings and charge are unexceptionable, unless the verdict is against the evidence or the weight of it. In the former case courts do not hesitate to set aside a verdict; but in the latter it is done only in cases where the preponderance is very great. Judges should not usurp the functions of a jury any more than a jury those of the court. In an argument for a new trial on the ground that it is against evidence or the weight of evidence, a judge is not to consider himself a juryman, or to inquire what his verdict, as a juryman, would have been. The law in such cases calls upon him to review the finding with a due appreciation of the prerogatives of the jury, but not to take their place. This distinction is sometimes forgotten, and I am inclined to the opinion that the present case is not an exception.
Without going into unnecessary prolix detail, I may say that after much reflection I have arrived at the conclusion that the charge to the jury in this case contained a full and correct view of the law bearing on the issues. The answers to the questions were held to be warranties and not mere representations, and the attention of the jury was properly directed to the nature of the issues and the law applicable to them. The only question open for discussion is therefore, in my opinion, as to the nature and extent of the finding of the jury upon the questions submitted to them. Objection has, however, been taken to the wording of some of the questions put to the jury. It may be that in one or two of them, taken separately, there were terms used which were not critically exact as defining legal propositions, but taken together with the other questions, and in view of the law expounded to the jury, they, in my judgment, fairly covered the necessary ground; and the answers, I think, were sufficient, as a whole, to amount to a general verdict for the plaintiff. The several questions were obviously put to the jury, so that the answers—not to any one or more, but to them all—might enable the judge to find his verdict. They contained no proposition of law by which the jury would be perplexed, or by which their finding on one question would be affected by their answers to others. Some of them were, to my mind, unnecessary; but in putting them, in the way adopted, no injury could have resulted to the defendants. The very first question was unnecessary, as other questions made the same inquiry, only in a different form; for it differed, in legal effect, from the others referred to, in no respect; and otherwise only as to the question of a false statement wilfully made. A negligent misrepresentation would be as fatal as a wilful one. The answer in the negative to that question was not, however, taken by the learned Chief Justice as sufficient; for the second question is propounded to further the inquiry in another aspect. He, therefore, in the second question, asked the jury “Had he any serious or severe personal injury which, through forgetfulness or inadvertence, he did not communicate to the company?” to which the jury replied in the negative. These two answers, then, find that no misrepresentation, either intentionally, or through forgetfulness, or inadvertence, was made. Instead of the two, one general question might have included both propositions, but there was nothing wrong in dividing the inquiry. They then substantially found that up to the time of the application the insured had received no serious or personal injury.
Looking, too, at the third question put to the jury, with the law, as I hold, properly explained, what do we find? That third question asks, “Had he any personal injury, which he might have been fairly expected to communicate for the information of the defendants?” With the law before them the jury answer “No.”
In the absence of any proof to the contrary, we must conclude the jury accepted the law so laid down for their government; and kept it in view when answering the questions. The answer to the fourth question being in the negative is unimportant, as the substance of it is otherwise found. It was, however, for the interest of the defendants that it was put, as, if the question had been affirmatively answered, it would have negatived some of the other findings. Lastly, as to the eighth question, which is the only other one which refers to the issue on the second plea, it is a general one, which again covers the whole ground. “Did he give fair and true answers to the question ‘Have you had any other illness, local disease or personal injury?’ The jury answer ‘Yes.’” With the law before them, as I before stated, the answer to that question settles the whole issue; and, even if some of the other questions could be accepted to, the answers to them are not important, unless, from the putting of them, we felt the jury were misled as to the law, of which there is no evidence whatever.
Before referring to the evidence, I think it right to say that, in my opinion, the learned Chief Justice expounded the law properly on the trial. He very properly excluded the consideration of slight injuries and attacks of illness. Where questions are asked by companies as to specific diseases, they are likely to cause reflection and the exercise of memory on the part of the applicant; but when a man is asked generally whether he ever had a personal injury, no company can reasonably require (what in most cases would be impossible) that a man or woman of forty or fifty years of age should report every time they fell off of a horse, or were upset from a carriage, or in their younger days had been upset or tumbled down and were slightly hurt. The company no doubt had the right to ask the question in any form they thought proper; but having asked it in such general terms and to cover a whole lifetime it is not for them to construe it and the answers to it. That duty devolves on the courts who have, under the circumstances, to say what is reasonably included in and covered by the questions, and whether the answers were fairly and truly given. That every slight Injury or attack should fee notified is not only preposterous, but would in the great majority of cases be impossible. A line must, therefore, be drawn somewhere, but the crossing point has been found difficult to determine. In fact none has yet been drawn of general applicability, and I am of opinion that none such can be drawn. Each case must, to a large extent, be governed by the facts peculiar to it. It has been contended that the company should get every information that would enable it to judge of the probable effects of any sickness, disease, or accident that might subsequently by any possibility affect the life of the applicant. This is, however, in view of medical knowledge or want of knowledge, too sweeping a proposition. There is in many cases a difficulty of correctly ascertaining the exact connection between a previous illness or injury and the immediate cause of death. Because a person meets with accidents which at the time and up to the time of his application do little or no injury, that the mere possibility that, from some one or other of them, injurious effects might result in after life, should make it necessary that he should report them, is, to my mind, most unreasonable, and not such as any company expects or could reasonable expect. If, however, an applicant has received an injury calculated according to medical evidence to affect his general health or the length of his life, he, I think, who fails to report it does so at the risk of forfeiting his policy. The question then is has it been clearly proved that the applicant in this case had received, and failed to notify the company of, such an injury as set out in the plea. Did he, in the words of that plea, receive a blow “which produced a fracture or depression of his skull, and which was followed by exfoliation of the bone of the skull,” and which was of so aggravated an injury as to cause “some degree of inflammation of the brain.” The defendants substantially say to the plaintiff: “The applicant through whom you claim had sustained that specific injury which he did not report, and we will prove it and so avoid the policy.” On reading that plea—so specific as it is—one would reasonably expect to receive positive evidence—first of the blow, next the fracture, then the exfoliation of the bone of the skull, and, lastly, the inflammation of the brain.
Having given my view of the law, I must now consider the evidence in relation to the findings of the jury. The onus of proving the issue, it must not be forgotten, was on the defendants. I have read over the evidence carefully and fully considered it, and I must say it falls far short of what in my opinion was necessary.
In the first place, as to the fracture or depression caused, as alleged, by a blow, in the technical meaning of the word, no “blow” was proved; but it is alleged the applicant was once thrown off his horse when hunting, and on another occasion was thrown out of a sleigh. Here the direct evidence as to the injury ceases as far as the fracture is concerned. None is given of any fracture. It appears, from the evidence, that after one or other of those falls he spoke to a doctor, but the latter could find nothing wrong with him and did not prescribe for him. Would it not, therefore, be unwarrantable to conclude his skull was then fractured? Besides, we have the evidence of Dr. Nicholl, who says that when at the time of his last and fatal injury, having heard that he had had one or more falls, one of which had injured his head, he concluded from the appearance of the skull, after the trephining operation had been performed, that the missing bone had been removed by an operation. That no such operation had been performed is abundantly shown; for it is proved by more than one witness that the injury was so slight that he attended to his business as usual and never complained of any injury. What then does the absence of part of the bone prove? Simply that it was a defect from his birth, or from disease, and if from the latter what disease? Was it the result of an external injury or not? If it was it has not been traced or proved. To say, without further evidence, the disease was the result of an injury would be the wildest guessing. The doctors substantially admit that they could not account for the absence of part of the bone. They say there are many such cases known without any external injury; that such cases are often found to have existed from birth, and others as the result of disease producing necrosis, exfoliation or wasting of the bone. How then could a jury reasonably be expected, from the evidence, to jump at the unreasonable conclusion that the absence of the bone must have been from the fracture alleged. Had there been a fracture and exfoliation of the bone, the subject must necessarily have felt it for a long time, and the soreness and pain must have been severe, and known to his brother and those around him, and to the doctor, and to have necessitated medical treatment. A fracture of a man’s finger would be known to his whole household, and that of a leg would likely be the subject of a newspaper paragraph, but the fracture of a man’s skull, of the extent to result as before mentioned, is asked to be presumed, without any medical man of the place (one of whom was spoken to at the time it is alleged to have taken place) or any one else hearing or knowing of it, and in the face of his brothers and the doctor’s testimony, that the fall did not injure him. The medical men all say, the absence of the bone may have been from malformation, or the result of disease, and is no sufficient proof of any fracture. Without information as to a previous injury they would, without doubt, have attributed it to malformation or disease; and even with the “rumors” they had heard, with the addition of what one of them thinks the applicant told him, none of them ventured to decide whether it was from malformation, or was the result of disease, or of an external injury. None. of them said, that, from all he saw and heard, he was of opinion the loss of bone was caused by an external injury. The onus to prove the fact was on the defendants, and I maintain the evidence wholly failed to establish it. The medical men may have erred in their views, but they were the witnesses of the respondents, and if they failed to establish their defence they must bear the consequences. The verdict must be founded on evidence, and a jury cannot set up their crude ideas against scientific evidence. From the evidence of the medical men, I am justified in the conclusion that, had they, when considering the case, before them the evidence of Edward Moore and Doctor Valentine, they would have concluded the absence of the bone was from malformation or the result of disease. I have already referred to the testimony of the former, but will now quote what the latter says:
And the injury to the head—the contusion—there was nothing done at all in that case. He was simply directed to call and keep himself under observation in case anything did occur. It was simply a contusion of the skin. He was kept under observation, and no cerebral symptoms arose. This was in 1865, I think; it was not earlier than 1864 or later than 1866.
In another place, he says no injury to the bone was discoverable.
That was, no doubt, the time referred to in the plea, and the very identical injury referred to in it. That taken with Moore’s evidence, apart from the improbabilities from other known facts, establishes beyond all reasonable doubt, that there was, at that time (as positively above stated) no fracture of the bone, but “simply a contusion of the skin,” without any “cerebral symptoms;” and, I presume this was the contusion which left the marks of the cross-cuts spoken of by one of the witnesses. I cannot conceive how, with such evidence before them, any jury could be expected to presume that a fracture of the bone had taken place, or how any one could expect the court to set aside a verdict in accordance with that evidence, or, what would be worse, to order a verdict for the defendants. Juries are permitted, and sometimes required, to found their verdicts on presumptions of certain facts: and the law distinguishes as to the nature of them. Juries are not, however, permitted to act upon them in the face of reliable evidence that rebuts them. Such, I hold, is the case here; and I go the length of saying that had the verdict been otherwise it ought to be set aside.
The judgment delivered by the late learned and lamented Chief Justice of the Queen’s Bench as to this issue, was founded wholly on the, I think, mistaken assumption that the plea was proved. While agreeing with his statement of the law, I differ with him entirely as to the evidence. If it had been necessary to submit the matter to the jury to presume a certain fact from the circumstantial evidence adduced, it was their province alone to do so or not; but if they do not we cannot control them. If they do, and the presumption was at all justified by the evidence, the court has, in my opinion, no right to interfere. I feel bound to say that the judgment was erroneous, for it is not only contrary to the evidence but an invasion of the prerogative of the jury.
Before concluding my observations on this part of the case, I consider it proper to remark upon one part of the evidence of Dr. Wright, the consulting physician of the company, upon which I think improper stress has been laid. Speaking of the insured at the time of the application, he says:
After he had signed the paper he passed it back again, rose from his chair and was about leaving, when he spoke of a fall he had had upon his head; he said he was not injured by it. The question was repeated to him, and he again asserted that he had had a fall upon his head, and that it had not injured him.
It is possible I may be wrong, but, if so, I have been under an hallucination during all my professional life, if you can take against a man an admission made against his interest, and discard what he adds to qualify and control it. A man may admit that at one time he was indebted to another, but, at the same time, alleges that he had paid the debt. Such a statement would not be evidence of present indebtedness, and would not be received as such. A man could not be convicted of an attempt to commit murder who admits the administration of deadly poison to another, but adds that he did so with the intention of immediately giving a sufficient antidote—that he did administer also the antidote, and no harm was done by the poison. The party might be blamed for unnecessarily tampering with human life, but the presumption of malice, from the admission of the administration of the poison, would be rebutted by taking the whole, and not a mere part, of his statement. So in this case; the addition of the words “that he was not injured by it” (the “fall”) must be taken with the admission of having had a fall. Even if the fact of the fail were otherwise shown, the admission, as I take it, could not be received, even as corroborative evidence, except by taking the result of the whole statement. The admission in question was adopted by one of the judges of the Court of Appeal contrary to the principle I have stated, and I think his doing so was an error. Taking the whole statement there is no evidence whatever from it that the applicant was guilty of any misrepresentation or concealment which would legally avoid the contract.
The defence on the ground that the applicant had suffered from dyspepsia has been, I think, very properly found by all the judges as not proved.
I will now give my opinion as to the remaining issue which is on the amended fourth plea, but which I think is not regularly a part of the record.
“That the answer given to the question, ‘How long since you were attended by a physician? Namely: ‘about thirty years ago,’ was untrue to the knowledge of the said Charles Moore. That the said Charles Moore, previous to the making of the said application and a much shorter period than thirty years had been attended by and had consulted and availed himself of the skill of other medical men, to wit, Dr. Lizars, Dr. Nichol, Dr. Barrick, Dr. Russell, and Dr. Valentine, and that he had concealed the said fact. That he had consulted the said medical men and gave no reference to the said medical men, and that the answer given to the said question was untrue, and was a breach of the warranty contained in the said application.”
This plea charges an untruthful answer to the knowledge of the applicant It therefore includes not only a false representation, but a fraudulent one. Had the plea founded a defence on a false representation not amounting to a warranty, the onus on the defendants would include proof of the knowledge that the answer, when given, was false. The evidence in that case would have been here wholly insufficient. This plea was put in on the trial and raised an issue wholly different from that in the original plea; and if the amendment was forced on the plaintiff without further time given to permit rebutting evidence and the ques- tion of that amendment were open, I would feel inclined to reject it. The defence on the original plea was what the plaintiff came prepared to meet, and we are, I think, at all events, permitted if necessary to consider the amended plea under the circumstances in which it was admitted. It does not, however, appear to me there is any necessity for doing so.
I will commence the consideration of this part of the case by saying that as regards this issue I adopt the views of the learned Judges Burton and Galt, of the Court of Appeal. I concur with them in their ruling that the questions having been prepared by the company they must take the consequences of any ambiguity in them. Their questions should be plainly put, and the whole difficulty has arisen in this case from the absence of one of two words, “first” or “last” “How long since you were (first or last) attended by a physician?” The company may very properly say we meant the applicant to read the question as if it contained the word “last.” Still it is open to the charge of ambiguity, calculated to mislead. The indefinite question might, not without some reason, be understood by many as intended to inquire as to the time the applicant first required medical treatment. In my opinion that inquiry would in many cases be quite as important as one in reference to the last preceding employment of a medical man. In his early days many a man has had injurious complaints and diseases which have so far passed away which a physician more recently employed might never have known about, but about which it would be desirable for the company to be informed. By a reference to his first doctor information might be obtained that a later one could not furnish. I mention this not to prove that such a construction would be the correct one; but to show how ambiguous the question was and how likely to mislead, and when we know that uneducated persons and others not accustomed to such inquiries, are called upon, very often without much time for reflection, we should not too readily decide that the answer, by mistaking the term, was necessarily untrue to the extent of avoiding the policy. A mistake as to the meaning of the question does not necessarily make the statement in answer untrue. If it be not untrue, there is no breach of warranty, and consequently no defence. To prove there was not any untruth, as ordinarily understood in the answer, let me suppose it had been “How long since you were first attended by a physician?” The answer, “about 30 years ago,” would have been strictly correct. That, it is patent, is the way the question was understood; but the defendants say he should have understood it to mean “last,” instead of “first”—but that does not negative the truth of the answer he gave to what he supposed the question asked. The proper conclusion, I think, is that he answered a question he supposed to have been put; but did not answer at all the question as understood or intended by the company. The mere failure to answer the question as intended by the company, when done in good faith, and in the belief the answer he gave was what was asked for, would not, in my judgment, be a breach of the warranty under the circumstances.
Besides, the other questions and answers were such as to notify the company of the construction put on the question by the applicant. After stating in his answers that his complaint was “lake fever” and giving the name of Dr. Sampson, who attended him at Kingston, then dead, and being asked for the name and residence of his medical attendant, he replied, “Dr. Barick of Toronto, who attends my family—he has known me for seven years.” He thus pointed out Dr. Barick as his physician, with an intimation or sugges- tion from which it might reasonably be presumed he had been such for seven years previously. If, therefore, the company wished information as to how long since he was last attended by a physician, they got it fully in the answer to that question. They were told who his first physician was, and they were referred to Dr. Barick as the one then attending him. If Dr. Barick was then, at the time of the application, his medical attendant, was not the answer sufficient to start any necessary inquiry? The mistake, if any, as to the question to which “about 30 years ago” was given as the answer, must have been patent to the company if they at all considered the answers, for that answer, as alleged to have been intended by them, was wholly inconsistent with that which notified the company that Dr. Barick was then his medical attendant. The discrepancy as to the first question was therefore fairly notified to the company before they issued the policy, and as the error, if any, was largely the result of their own ambiguous words, I don’t think it lies with them now to seek shelter from their liability for that for which they have themselves to blame.
There is no ground for thinking that the question was framed intentionally ambiguous as a trap, but it certainly was one into which the uninitiated were not unlikely to fall, and was equally dangerous as if it had been. When it was so easy to have made the question plain to ordinary minds, such as generally had to answer it, there is no excuse for a company deliberately to frame and print such an ambiguous one, and one so much calculated to produce mistakes. According to the principles laid down by Lord St. Leonards, and quoted by Mr. Justice Burton in this case, and by Willes, J., as quoted by Mr. Justice Galt, I feel that the ambiguity which has caused the difficulty under the issue raised by the amended plea was the act of the de- fendants, and that in consideration of the peculiar facts and circumstances of this case, it would be gross injustice to deprive the appellant of her rights under the policy.
The evidence, however, does not establish the fact that the applicant was attended by any of the physicians named in the plea or any other for any serious illness or injury. The same principles should be applicable to this plea as to the second, and when the question is asked: “How long since you were attended by a physician?” I think it was not intended to cover every unimportant ailment or injury, but something that, in the opinion of a medical man, might have some effect on general health, and I am helped to this construction by the concluding part of question eight, which, in case any other illness (besides those enumerated in question seven), local disease, or personal injury, is reported “and what effect on general health?”, which shows, to my mind, that the attendance of a physician inquired about was only in cases more serious than any which the doctors say they attended him for, and for one of which (occasional indigestion) one of the doctors recommended “aride on horseback.” Another doctor on one occasion attended him for a slight attack of the liver and bowels, which he supposed was from the heat of the weather. He says: “Of course it was nothing serious.” Dr. Valentine stated that he had treated him for a local disease of a temporary character, of which he was cured in 1865, or the end of 1864, from which no permanent constitutional disturbances remained; and for slight derangements of the stomach. If then the answer had been that the last attendance upon him of a physician for anything more than trifling causes not at all affecting his general health, or probable longevity, it might not improperly be said when he replied, “Dr. Chapman, 30 years ago,” was strictly true. The evidence shows him to have been particularly healthy and active, and it would, I think, be straining words from their true bearing and meaning to say that the attendances last referred to were such as were contemplated or required by the questions. Because differences of opinion have been expressed in the lower courts and here, I have considered it proper to be thus minute in dealing with the issues involved.
For the reasons given by Mr. Justice Burton and Mr. Justice Galt before referred to, and for those I have myself given, I think, that on the fourth issue also our judgment should be for the appellant. I have not failed to consider the effect of the statute under which the questions were propounded to the jury, and I think I am justified in saying, as I now take occasion to do, that in a case like the present the court could not enter a verdict for the defendant or a non‑suit, and that the power in such cases is limited to making an order for a new trial. As therefore the order was not justifiable all we can do in that respect is to reverse the judgment.
I am of opinion that the judgments of the Court of Appeal and the Queen’s Bench should be reversed, the appeal allowed and judgment entered for the plaintiff on the verdict, with costs up to and since the rendering of the verdict.
TASCHEREAU, J.:—
Upon the fourth plea, I am of opinion that the question, “How long since were you attended by a physician?” was not clear and may have been understood by Moore as meaning, “How long since you were first attended by a physician?”
Why did not the company, if they meant to know who attended him last, ask him plainly, “When were you last attended by a physician?” I am inclined to think with the Court of Appeal, that the applicant misunderstood the question put to him, and that his answer is not then untrue, and I would be for the the plaintiff on this part of the case.
I come now to the consideration of the questions raised on the second plea. This part of the case is not free from difficulty. This plea is as follows:—
And for a second plea the defendants say, that the answer given in the negative by the said Charles Moore, as in the declaration mentioned, to the question, “Have you had any other illness, local disease, or personal injury? and, if so, what nature? how long since? and what effect on general health?” was untrue. That the said Charles Moore had some twelve years before the time when he signed the said application and answered the said question in the negative received a blow on the head which produced a fracture or depression of the skull, and which was followed by exfoliation of the bone of the skull, and which also caused to some degree inflammation of the brain. That the said blow was a personal injury within the meaning of the said question, and that the answer, “No,” given to the said question was untrue and was a breach of the warranty contained in the said application, and that by reason of such untrue answer and breach of warranty the said policy was forfeited.
At the trial, the learned judge presiding, instead of taking a general verdict, directed the jury to answer certain questions. It is, perhaps, better to give here those questions with the remarks and directions of the learned judge.
The first four questions that I shall put to you relate to the personal injury which it is alleged by these defendants that the applicant, Charles Moore, sustained, and the existence of which was not disclosed to them on his application. The defendants’ contention is that they put to the applicant this question, ‘Have you had any other illness, local disease, or personal injury, and if so, of what nature, how long since, and what was the effect of it on your general health; ‘ that he answered in the negative, as in fact he did; that that answer was untrue, and vitiated the policy, because he had received, many years before, a severe injury to his head, amounting to a fracture; and which they say in the plea—although there is no evidence upon that point—was succeeded by exfoliation. It is to that question and answer, and to the circumstances which actually existed, as far as you can make them out from the evidence in connection with this injury, that I direct your attention. (The learned judge here referred in detail to the evidence.)
Bearing that evidence in mind, I ask you to reply to the following questions:—
“1. Had Mr. Moore any personal injury which must have been present to his own mind as something coming fairly within the term “personal injury” and which he did not communicate to the defendants?”
You will perceive from the terms of this question the idea present to my mind in framing it. It appeared to me that it might possibly be held that any “personal injury” must be one that would be fairly present to the mind of a person making such an application as something that an ordinary man would understand as a personal injury that he ought to communicate to the Company; and if you think that, you will of course answer this question “Yes.” In other words, if you think that this injury to his head, whatever its extent and origin, did fairly come within the term “personal injury,” and was present to Mr. Moore’s mind, then the answer should be “Yes.” If you think it was so slight, and made so little impression upon himself and his own mind that he could not accept it as coming fairly within the term, then you will answer “No.”
2. “Had he had any serious or severe personal injury which, through forgetfulness or inadvertence, he did not communicate to the Company?”
I have already pointed out to you that in my construction of these questions in this application the applicant must at his own peril answer the questions correctly, and that forgetfulness or inadvertence will not excuse him. If he makes a slip the Company can, if found consistent with fair dealing or necessary for the protection of its own interests, set it up; but I want to get your answer to this question.
3. “Had he any personal injury which he might have been fairly expected to communicate for the information of the defendants?”
That is almost another form of one of the preceding questions, but raises a point slightly different.
4. “Had he any personal injury which had any effect on his general health?”
It is contended by the learned counsel for the plaintiff that that is the fair meaning of the question put in the application with reference to any other personal injury, illness, or local disease. The words must have some limitation: and it may be that the propor limitation is that they should be confined to injuries that affect the general health. In considering this question you will bear in mind what all the witnesses said as to the state of health Mr. Moore had after the accident, and consider the medical evidence as to the effect which it might have. Although the medical men would be no doubt the first themselves to admit that, it is not comparable with evidence of the actual state of health which he did enjoy. That is the last question in relation to the personal injury.
To these four questions the jury answered “No.”
To another question, as follows:—
Did he give fair and true answers to the questions, “Have you had any other illness, local disease, or personal injury? And if so, of what nature? How long since? And what effect on general health?
the jury answered “Yes.”
Now, as to the evidence on this part of the case, the following is a correct synopsis of it, as given by Mr. Vice-Chancellor Blake in the Court of Appeal.
Dr. Nicol says: When I was first called in to see him in his last illness, he was apparently suffering from a species of low fever with some head affection; then, I think on the night following the day he was attacked, he was attacked with paralysis of the left side, and then after that he became semi-comatose.
Q. Did you find on examination any evidence of personal injury?
A. Yes: just on the parietal bone on the right side of the head there was a depression that I could just put my little finger into.
Q. What examination was made to enable you to judge of the injury to the skull?
A. Trephining. There was a deficiency in the bone, perhaps the space of my little finger, perhaps a little more. It was not a very recent injury... The depression I mentioned was easily discoverable to any person who had reason to suspect its presence, or who searched the head carefully; the depth was slight, not more than a tenth or an eighth of an inch; you would hardly have noticed it... I think that one day I had some conversation with him in reference to this injury to the head... It was on one of these two occasions, 1869 or 1870… I do not remember what he said about it, except that it was from a fall from a horse, or from his horse falling on a furrow. I had not seen the injury to his head at that time. I have some idea that I put my finger in the place where he told me, but I could not say positively. I think there was something said about a piece of bone being lost, but whether he volunteered it, or whether it was in answer to a question from me, I cannot say. There was a loss of bone. I cannot say positively, but I think there was; when I put my finger in, as I think I did, I found the depression. He spoke of that as a fall from a horse.
Q. Then he was under the impression that that kind of injury caused it? A. Yes; but if the bone perished and exfoliated, it would be equally from this injury as if he had the bone fractured, and the surgeon removed the bone at the time. I supposed at that time he had had the skull fractured, and that some surgeon or another had removed the piece of bone. If an examining physician had passed his fingers at all carefully over Mr. Moore’s head he would have detected the depression in the skull; if he merely passed his hand over it he would not have discovered it.
Dr. Athens, in answer to the question, ‘What was the condition of the skull before you commenced the operation? says: There was a depression there. Mr. C. Moore had for years past kept his hair very short, and, as far as I can remember, the depression could be seen, but there was no difficulty whatever in feeling it; the point of the little finger could be easily buried in the depression; perhaps the index finger, just the point of it. This was the first time I had attended Mr. Moore, but I was in the habit of seeing him often. If I had been aware of the depression before that evening I had forgotten it; there was a piece of bone absent then, there was a part of the skull gone; no matter what had happened to it, whether it never was there, or was the result of disease or injury, the piece was gone, and we planted the trephine so that the edge of the instrument just came over the edge of this deficiency. I would not expect to find an opening there, although I have seen children born with an opening in the bone where no opening ought to be, but I would come to the conclusion, from looking at his head, that he had lost a piece of bone, either from fracture or disease; of course some diseases would kill bone; I have seen men with no fracture who have lost a part of their skull. I could hardly suppose that the absence of the portion of skull was natural; it is only just possible.
Q As a physician you formed an opinion?—A. I perhaps was guided by the information that was given to me at the time, that he had some injury previously. My opinion at that time was that he had had a fracture of the skull, and lost part of the bone..... The bone had either been removed by the surgeon, if it had not been, knocked out by the cause of injury, or had necrosed, died. Exfoliation is throwing off in thin scales or leaves. I do not think there had been anything of that sort; it is not at all likely..... That is a sort of wasting away..... I received information then and there about a past injury. The skull has inner and outer densities, and a spongy structure between the two. It is my belief that the whole had disappeared, the entire thickness of bone had gone. In such a case the bone fills in a little from the edges, but leaves a little deficiency in the centre; then the centre will fill with dense tissue resembling sclerotic tissue covered with scalp; that was the case here.
Q. Was he as well prepared to resist the effects of another blow over this spot?—A. No, he was not.
Dr. Barrick says: I first saw him, I think, about ten days before his death; he was then complaining of a pain in his head, at some distance from the old depression; that was the burden of his com plaint. I was aware of the depression in the head before that time. I took notice of it before anything was said about it, because his hair was thin and cut short, but I could not tell how long that was before. He said that he had had several tumbles and accidents, and from some of them he led me to believe that this depression arose.
Q. Did you speak to Mr. Moore at all about that injury before you called in the other doctors to consult?—A. He mentioned that to me, I think, when he was attacked last time; he complained of pain in the head about an inch and a half from this old place; he then commenced and related to me again that he had received an injury and that his impression was that the depression had arisen from that injury. That is what he told me in his last illness. He told the other medical men that the object in taking in part of the old injury was to see the condition of the bone at that part. We were anxious to include part of the old depression to see what the nature of that part was.
Edward Moore, the brother of the deceased, says: I felt his head after the last accident in the store, the hurt was about two inches from the old injury, on the same side of the head. I saw the old injury then. You could not help but see it. I had been aware of it before. It had been cut and healed up. I felt the new injury to see if the skull was broken.
From the evidence of Drs. Nicol and Aikins, there can be no doubt that by some means a piece of the bone of the skull of the deceased had been removed. As to the manner in which this was lost, Dr. Nicol says: “I supposed at that time that he had had the skull fractured, and that some surgeon or another had removed the piece of bone,” and Dr. Aikins says: “I would come to the conclusion, from looking at his head, that he had lost a piece of bone either from fracture or disease.”
That the conclusion arrived at by these medical gentlemen is correct, is evident from the family physician of the deceased, Dr. Barrick, who says that—
His patient informed him that he had had several tumbles and accidents, and that from some of them he led him to believe that this depression arose; and at another time he says: He then commenced and related to me again that he had received an injury, and that his impression was that that depression had arisen from that injury. That was what he told me in his last illness.
In my opinion this evidence establishes clearly that Moore had, some years before he made his application to the company, received an injury on the head. The plaintiff contends that this depression of the skull may have been caused by disease or may have been natural. Now, I can’t see how we can attribute it to disease. 1st. Because if it was so the plaintiff could have easily proved it; 2nd. Because the doctors examined do not think it was caused by disease; 3rd. Because Moore himself, in his application to the company, stated that he never had any other disease than the lake fever. As to the possibility of this depression in the skull being natural, I can’t see my way to support the plaintiff’s contention in this respect 1st. Because the doctors examined say this was most unlikely. 2nd. Because the plaintiff would have been able to prove it, if it had been natural; 3rd. Because Moore himself said it was caused by a fall on the head; and all the witnesses, including Moore’s brother, speak of it as “the old injury.” It is impossible, in my opinion, after reading the evidence adduced, to doubt that Moore had, at some time or another, before he made the application to the company, received an injury by which he had lost a portion of his skull. It appears to me to be proved beyond a doubt, and, as said by the late Chief Justice of the Court of Queen’s Bench, the question in its naked form as to this fact, was not submitted to the jury, for the reason that there was no dispute about it. The jury have not found that Moore had received no personal injury; but that he had received no personal injury which must have been present to his mind as something coming fairly within the term “personal injury”; that he had no serious or severe personal injury, which through forgetfulness or inadvertence he did not communicate; that he had no personal injury which he might fairly be expected to communicate for the information of the defendants, and that he had not any personal injury which had any effect on his general health. They never found, and they could not find in face of the evidence, that he never received any personal injury whatever. By finding that he had not received any personal injury which had any effect on his general health, they have not found for the plaintiff. On the contrary, as the case was given to them, all parties at the trial, judge, jury and counsel (as said by Burton, J, and Patterson, J, in the Court of Appeal) assuming that there had been a personal injury, this answer of the jury seems to me to mean “Yes,” he had received a personal injury, but it did not affect his general health. Now, his statement to the company was that he had never received a personal injury. This was, it seems to me, untrue. The jury also answered “No” to the third question put to them, as follows: “Had he any personal injury which he might have been fairly expected to communicate for the information of the defendants?” But that is not finding that he never had any personal injury whatsoever. It seems to me, that it was for the court to decide whether any injury received should have been communicated to the defendants. The second question to them speaks of a serious or severe personal injury. Now, what he stated to the company was, not that he had never received any serious or severe injury, but that he had never received any personal injury. The answer of the jury to the first question put to them does not either say that Moore never received any personal injury whatsoever, so that, without disregarding the answers of the jury to the questions submitted to them, it seems to me, that, as a matter of law, the plaintiff is not entitled to recover. The basis of Moore’s contract with the company was that each and every one of his answers to their questions was strictly true. It being established that one of them was not true, the company is freed from all obligations under this contract, whether this untrue answer was given to them fraudulently or not[5], and whether this untrue answer was on a material fact or not[6]. I fully admit this proposition that the words “illness, local disease or personal injury,” do not include such trifling ailments as influenza, or toothache, or a black eye, but I cannot avoid the conclusion that a fracture in the skull, by which that vital portion of the human frame, the brain, is not as well protected as it otherwise would have been, is a personal injury, and, in Moore’s case, should, as such, have been communicated to the company.
I am of opinion to dismiss this appeal with costs.
GWYNNE, J.:—
The position in which this case at present stands, is certainly not satisfactory. The learned judge before whom the case was tried, entered a verdict for the plaintiff, as the verdict which, in his judgment, the answers of the jury to the questions put to them required to be entered. The Court of Queen’s Bench reversed that verdict and has ordered one to be entered for the defendants upon the issues joined on the second and fourth pleas.
In rendering this judgment the Court of Queen’s Bench seems to me to have arrived at the result which they did arrive at, by reading the evidence rather in connection with the questions and answers endorsed on the application for insurance than with regard to the issues joined between the parties which they went down to try, and this is the more unfortunate, as much of the evidence relied upon by the late learned Chief Justice of that court in his judgment was irrelevant to those issues, and consequently inadmissible. This is pointed out by Mr. Justice Patterson in the Court of Appeal, who, while concurring in the judgment of the Court of Queen’s Bench upon the second plea, was of opinion that the fourth plea was by no means so clearly proved as to warrant interference with the verdict entered thereon for the plaintiff, even if the plea had followed the language of the question on the application with respect to which it was framed, which, in his opinion, it did not. He therefore was not disposed to disturb the verdict for the plaintiff upon that issue. Two of the other learned judges of the Court of Appeal were of opinion that the plaintiff was entitled to judgment upon all the issues, and the fourth was of opinion that a new trial should be granted, but as the other members of the court did not consent to this, and thinking the plaintiff not entitled to succeed, he concurred with Mr. Justice Patterson, and the court being divided, no rule followed on the appeal, and so the case comes before this court.
Much of this difference of opinion has arisen, I think, from the want of sufficient attention to the issues joined. The declaration alleged that the policy of insurance declared upon was issued and accepted upon certain express conditions and agreements which are set out in the declaration, containing among others the following:—
1st. That the answers, statements, representations and declarations contained in or endorsed upon the application for this insurance, which application is hereby referred to and made part of this contract, are warranted by the assured to be true in all respects, and that if this policy has been obtained by or through any fraud, misrepresentation, or concealment, then this policy shall be abso- lutely null and void; and, further, that no answer, statement, representation or declaration made to any agent, solicitor, or any other person whatever, and not contained in said application, shall be taken or considered as having been made to, or brought to the notice or knowledge of this company, and this company shall be held and considered as having no notice or knowledge of such answer, statement, representation or declaration, and the said application, a copy of which is hereto annexed, shall be taken and held to be, and to contain the only answers, statements, representations or declarations made to this company on behalf of this insurance.
The application so referred to was for a policy of insurance for $25,000 upon the life of Charles Moore, aged 50. Upon this application, which was in one of the company’s printed forms, were endorsed certain questions to be answered by the applicant, among which were the following, which are the only material ones to be set out, namely:
7th. Have you ever had any of the following diseases? Answer, Yes or No, opposite each. Here follow thirty-six particular diseases enumerated, and among them dyspepsia, and the question concludes as follows: “If you have a rupture, state whether you habitually wear a truss?”
“State the number of attacks, character and duration of all the diseases which you have had?”
To this question the applicant answered by inserting “No” after each particular disease mentioned in the question.
This question was immediately followed by the 8th, namely: “Have you had any other illness, local disease or personal injury? and if so, of what nature? How long since? And what effect on general health?” To which the applicant also answered “No.”
14th. “How long since you were attended by a physician? For what diseases? Give name and residence of such physician?” “Name and residence of usual medical attendant? Name and residence of an intimate friend.”
This question the applicant answered as follows:
To 1st part. About 30 years ago, Lake fever. Dr. Sampson, of Kingston, who is now dead.
To 2nd. Dr. Barrick, of Toronto, who attends my family; has known me some years.
To 3rd. Mr. Dunbar; has known me some years.
Upon this application and the answers to the questions thereon endorsed the policy sued upon was issued by the defendants upon the 27th March, 1875, and in August, 1876, after having paid two premiums, amounting together to $2,347.00. Moore, the insured, died from the effects of a blow then recently received upon his head.
The plaintiff, as one of the children of Moore for whose benefit, among others, the policy was effected, brings this action, to which the defendants plead in bar:
1st. That they did not make that policy in the declaration mentioned.
2nd. And for second plea the defendants say that the answer given in the negative by the said Charles Moore as in the declaration mentioned to the question “Have you had any other illness, local disease or personal injury? and if so, of what nature? How long since? And what effect on general health?” was untrue. That the said Charles Moore had, some twelve years before the time when he signed the said application and answered the said question in the negative, received a blow on the head which produced a fracture or depression of the skull, and which was followed by exfoliation of the bone of the skull, and which also caused to some degree inflammation of the brain. That the said blow was a personal injury within the meaning of the said question, and that the answer “No,” given to the said question was untrue and was a breach of the warranty contained in the said application, and that by reason of such untrue answer and breach of warranty the said policy was forfeited.
3rd. And for the third plea to the said declaration the defendants say that the said Charles Moore had before the time when he made the said application been afflicted with “dyspepsia,” and that the answer “No” given by the said Charles Moore to the question, “Have you ever had any of the following diseases, among others dyspepsia?” was untrue and a breach of the warranty contained in the said application, and was untrue to the knowledge of the said Charles Moore.
4th. And for fourth plea the defendants say that the answer given to the question, “How long since you were attended by a physician? namely, about 30 years ago” was untrue to the knowledge of the said Charles Moore; that the said Charles Moore had, previous to the making of the said application, and at a much shorter period than 30 years, received a severe blow on the head, the effects of which remained until his death, and that while he was suffering under such injury he consulted and availed himself of the skill of a medical man, one Dr. Lizars, and that he concealed the said fact that he had so consulted the said medical man, and gave no reference to the said medical man, and that the answer given to the said question was untrue and was a breach of the warranty contained in the said application.
The plaintiff joined issue upon these pleas.
A motion was made by the defendants, and leave was given to them at the trial to amend this fourth plea, subject, however, to a special reservation to the court in which the action was pending to the question whether, under all the circumstances, the amendment should be allowed. If we were now considering the question whether the amendment in the terms proposed should be allowed, I confess that the propriety of allowing it seems to me to be more than doubtful. When we consider the extremely rigorous and partial terms in the interest of the defendants in which this policy is framed, terms which, if construed literally, would seem to be open to a construction that it would be impossible for the most honest insurer to comply with them; and which would leave it in the power of the defendants, upon the discovery after diligent enquiry, of some old forgotten disease or injury which the applicant had had and which had passed away years previously without leaving a trace behind, to avoid the policy when called upon to fulfil their undertaking, while retaining, nevertheless, the premiums which they may have been receiving punctually for many years; and when we consider that the effect of the amendment (although this was not the object at all in view when it was authorized) would be to enable the defendants to set up as a defence in avoidance of the policy the non-communication by the applicant of a private disease which he had had in a mild form (not being one of the thirty-six diseases particularly inquired after) and which had been cured more than eleven years previously, leaving no trace or effect whatever behind,—I do not think that the indulgence of permitting the defendants to make an amendment which would open to them a road for avoiding the policy by proof of the existence of such a disease, the fact of the existence of which was otherwise inadmissible, should be granted. However, we are not called upon to consider that question, because as matter of fact it appears by the judgments of the learned judges in the court below that the amendment, although authorized, subject to the above reservation, was never actually made; and we must consider the case as it was considered and dealt with in the court below as it stood upon the original pleadings; indeed I must do the defendants the justice to say that in the argument before us, I did not understand them to urge at all or rely upon the fact of the existence of this disease as avoiding that policy, but that they rested upon what they insisted upon as a good and meritorious defence, namely, the injury to the applicant’s head relied upon both in the second and fourth pleas. But however that may be, we must deal with the record upon the original pleas as without any amendment having been actually made.
At the trial the plaintiff produced the policy which, upon production, was admitted.
Upon this record then, whatever opinion a judge trying the case might form of the sufficiency of the evidence offered by the defendants in support of their pleas, it seems to me to be very plain that the plaintiff never could have been nonsuited either in virtue of anything contained in the Ontario stat, 37 Vic., ch. 7, s. 33 or otherwise. That statute only authorizes the court to enter a nonsuit upon a motion after verdict without leave reserved under the circumstances and in a case where a nonsuit might properly have been entered under the old practice, upon leave reserved with the plaintiff’s consent, and the rule as laid down in Campbell v. Hill[7], (referred to by the late learned C.J. of the Queen’s Bench in his judgment) and in the cases upon which Campbell v. Hill proceeds, has only been applied to cases wherein the plaintiff fails to adduce such legal evidence in support of his case as entitles him to have his case given to the jury, or, which seems to me but another expression for the same thing, to cases in support of which the plaintiff has given no evidence sufficient to warrant a verdict in his favor, or which the defendant would not be entitled ex debito justitiœ to set aside. It is only where it can be truly said that there is not any evidence in support of the plaintiffs case that a non-suit can be entered. When the question is as to the value or weight of the evidence it must be submitted to the jury. Here, as it seems to me, the question was wholly as to the value or weight of the evidence as bearing upon the issues joined, and was in fact, eminently one for the jury, but in a case like the present, or in any case where issues are joined upon pleas the onus of proving which lies on the defendants, I do not think it has ever been held or suggested that the court would be justified in withdrawing the issues joined from the jury and in entering a non-suit because, in their opinion, the defendant has proved his pleas beyond all rational controversy. The only way therefore in which the case can be constitutionally disposed of is by a verdict determining the issues joined upon the pleas, either in favor of the plaintiff or of the defendants.
The learned judge before whom these issues were tried availed himself, as it was competent for him to do, of the Ontario Act, 37 Vic., ch. 7, sec. 32, being sec. 264 of ch. 50 of the revised statutes, which enacts that—
Upon a trial by jury in any case, except an action for libel, slander, criminal conversation, seduction, malicious arrest, malicious prosecution, false imprisonment, the j