Carter v Boehm

JurisdictionEngland & Wales
CourtCourt of the King's Bench
Judgment Date01 Jan 1766

English Reports Citation: 97 E.R. 1162

IN THE COURT OF KING'S BENCH

Carter
and
Boehm

S. C. 1 Bl. 593.

Discussed and approved, Bates v. Hewitt, 1867, L. R. 2 Q. B. 608. Principle applied, Harrower v. Hutchinson, 1870, L. R. 5 Q. B. 590. Observation adopted, Gandy v. Adelaide Assurance Company, 1871, L. R. 6 Q. B. 756. Dictum discussed, Davenport v. Charsley, 1886, 54 L. T. 344. Referred to, Rowley v. London and North-Western Railway Company, 1873, L. R. 8 Ex. 231. Dictum adopted, Bristol, &c., Aerated Bread Company v. Maggs, 1890, 44 Ch. D. 622. Referred to, Seaton v. Heath [1899], 1 Q. B. 790; [1900], A. C. 135. Adopted, Gedge v. Royal Assurance Corporation [1900], 2 Q. B. 222.

carter t rJ3s^orfHM. 1766. [S. C. 1 Bl. 593.] Concealment will avoid a i 'i i f~ *k-'^ (.-jf. policy of assurance. ik a J,Di8(3u'8ed and approved, Bates v. Hewitt, 1867, L. R. 2 Q. B. 608. Principle applied, 72/-m-/473'.ffamweer v. Hutchinson, 1870, L. R. 5 Q. B. 590. Observation adopted, Gandy v. Adelaide Assurance Company, 1871, L. R. 6 Q. B. 756. Dictum discussed, Damenport v. Charsley, 1886, 54 L. T. 344. Referred to, Rowley v. London and North-Western Railway Company, 1873, L. R. 8 Ex. 231. Dictum adopted, Bristol, &c., Aerated Bread Company v. Maggs, 1890, 44 Ch. D. 622. Referred to, Seaton v. Heath [1899], 1 Q. B. 790; [19001 A. C. 135. Adopted, Gedge v. Royal Assurance Corporation [1900], 2 Q. B. 222.] This was an assurance-cause, upon a policy underwritten by Mr. Charles Boehm, of interest, or no interest: without benefit of salvage. The insurance was made by the plaintiff, for the benefit of his brother, Governor George Carter. [1906] It was tried before Lord Mansfield at Guildhall: and a verdict was found for the plaintiff by a special jury of merchants. On Saturday the 19th of April last, Mr. Recorder (Eyre,) on behalf of the defen- 8 BURR. 1907. CARTER V. BOBHM 1163 dant, moved for a new trial. His objection was, "that circumstances were not sufficiently disclosed." A rule was made to shew cause : and copies of letters and depositions were ordered to be left with Lord Mansfield. N.B. Four other clauses depended upon this. The counsel for the plaintiff, viz. Mr. Morton, Mr. Dunning and Mr. Wallace, shewed cause on Thursday the first of this month. But first, Lord Mansfield reported the evidence-That it was an action on a policy of insurance for one year : viz. from 16th of October 1759 to 16th October 1760, for the benefit ol the Governor of Fort Maryborough, George Carter, against the loss of Fort Marlborough in the island of Sumatra in the East Indies, by its being taken by a foreign enemy. The event happened: the fort was taken, by Count D'Estaigne, within the year. The first witness was Cawthorne, the policy-broker, who produced the memorandum given by the governor's brother (the plaintiff) to him: and the use made of these instructions was to shew that the insurance was made "for the benefit of Governor Carter, and to insure him against the taking of the fort by a foreign enemy." Both sides hat been long in Chancery : and the Chancery-evidence on both sides was read at the trial. It was objected, on behalf of the defendant, to be a fraud, by concealment of circumstances which ought to have been disclosed; and particularly, the weakness of the fort, and the probability of its being attacked by the French: which concealment was offered to be proved by two letters. The first was a letter from the governor to his brother Roger Carter, his trustee, the plaintiff in this cause: the second was from the governor to the East India-Company. [1907] The evidence in reply to this objection consisted of three depositions in Chancery, setting forth that the governor had 20,0001. in effects: and only insured 10,0001. and that he was guilty of no fault in defending the fort. The first of these depositions was Captain Tryon's: which proved that this was not a fort proper or designed to resist European enemies : but only calculated for defence against the natives of the island of Sumatra; and also that the governor's office is not military, but only mercantile; and that Fort Marlborough is only a subordinate factory to Fort St. George. There was no evidence to the contrary. And a verdict was found for the plaintiff, by a special jury. After his Lordship had made his report,- The counsel for the plaintiff proceeded to shew cause against a new trial. They argued that there was no such concealment of circumstances (as the weakness of the fort, or the probability of the attack,) as would amount to a fraud sufficient to vitiate this contract: all which circumstances were universally known to every merchant upon the exchange of London. And all these circumstances, they said, were fully considered by a special jury of merchants, who are the proper judges of them. And Mr. Dunning laid it down as a rule-" that the insured is only obliged to discover facts; not the ideas or speculations which he may entertain, upon such facts." They said, this insurance, was in reality, no more than a wager; " whether the French would think it their interest to attack this fort; and if they should, whether they would be able to get a ship oi war up the river, or not." Sir Flelcher Norton and Mr. Recorder (Eyre) argued, contra, for the defendant {the underwriter). They insisted, that the insurer has a right to know as much as the insured himself knows. They alledged too, that the broker is the sole agent of the insured. [1908] These are general, universal principles, in all insurances. Then they proceeded to argue in support of the present objection. The broker had, they said, on being cross-examined, owned that he did not believe that the insurer would have meddled with the insurance, if he had seen these two letters. All the circumstances ought to be disclosed. This wager is not only " whether the fort shall be attacked:" but " whether it shall be attacked and taken." 1164 CARTER V. BOEHM 3 BURR. 1909. Whatever really increases the risque ought to be disclosed. Then they entered into the particulars which had been here kept concealed. And they insisted strongly, that the plaintiff ought to have discovered the weakness and absolute indefencibility of the fort. In this ease, as against the insurer, he was...

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