Cartwright v MacCormack, Trafalgar Insurance Company Ltd, Third Party
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE DAVIES |
| Judgment Date | 19 November 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J1119-1 |
| Court | Court of Appeal |
| Docket Number | 1960. C. No. 166 |
| Date | 19 November 1962 |
[1962] EWCA Civ J1119-1
Lord Justice Willmer
Lord Justice Harman And
Lord Justice Davies
In The Supreme Court of Judicature
Court of Appeal
Mr RICHARD H. FORRREST, Q. C., and Mr EDWARD E. YOUDS (instructed by Messrs Howard, Stern & Co., Agents for Messrs E. Rex Makin & Co., Liverpool) appeared on behlf of the Appellant (Defendant).
MR GODFREY HEILPERN, Q. C., and Mr W. DERRICK FAIRCLOUGH (instructed by Messrs R. I. Lewis & Co.) appered on behalf of the Respondents (Third Parties).
LORD JUSTICE WILLIMER: Lord Justice Harman will deliver the first Judgment.
At 5.45 p. m. on the 17th December 1959 the Plaintiff in this action, than an infant, was riding his motor-bicycle along a road in the county of Chester in the direction of Birkendhead when he was run into by the defendant driving a motor car across his path. The plaintiff on the 4th October 1960issued his writ in this action claiming damages for personal injuries. The action was heard at Liverpool Assizes on the 14th and 15th May 1962 by Mr Justice Nield without a Jury. The plaintiff was successful and had Judgment for £770.lis.8d. The defendant at the same time took third party proceedings against the respondent insurance company, alleging the company's liability to indemnify him under an instrument called a temporary cover note admittedly issued by the respondent on the 2nd December 1959. The third party proceedings were tried immediately after the action. The respondent resisted this claim on three grounds, two of which were rejected by the learned Judge. As to these, there is no appeal and no more need be said. The third ground, on which the respondent succeeded, was that the policy had expired before the accident happened.
The policy is a written document, and the question therefore depends entirely upon the true meaning of the written terms. At the trial both parties sought to give evidence of what the policy meant to them, but the learned Judge rightly ignored this testimony as inadmissible, there being no claim to rectification. Everything, therefore, turns on the exact wording of the document, which is on a printed form with manuscript additions. At the head are the words: "Temporary Cover Note". Below this appear: "Invincible Policy issued and underwritten by The Trafalgar Insurance Company Ltd. There follows, "Premium actually paid", and filled in in manuscript "£2.0.0", and on the other side of the paper: "Date 2.12.59". Below this there is a frame divided into what I may call boxes and headed: "Description of Vehicle". This, however, is quite inaccurate and applies only to the top line of boxes. There follows: "Proposer R. MacCormack. Address 18, Cretan Rd., Liverpool - 15" followed by "Risks required", and in manuscript "Comp" Next: "Vehicle used for Social, domestic and pleasure purposes". Next: "Person or persons allowed to drive. The above named proposer only", and then follows the critical line. In the left box is Printed: "Effective time and date of commencement of risk". Next Please state time and give A. M., P. M., Noon or Midnight". Therefollows the word "Time" printed, and written "11.45 a. m". The next box is headed "Date" in print; under which is written "2.11.59". The right-hand box contains these printed words: "This Cover Note is only valid for fifteen days from the commencement date of risk". The bottom of the frame contains this printed statement: "Under no circumstances is the time and date of commencement of risk to be prior to the actual time of issue of this Cover Note". Below the frame are further printed statements ending with these words: "In any event the duration of this cover note shall not be more than FIFTEEN DAYS from the date of commencement of Insurance stated herein."
As I say, there is no question now that this was regularly issued and operated according to its tenor. The question, of course, is when do the fifteen days start to run. The insurance company argued that it started at 11.45 a. m. on the 2nd December, and therefore expired at the same time on the 17th December several hours before the accident occurred. For the appellant it was argued that time did not begin to run till midnight on the 2nd December, and was, therefore, still current at the time of the accident. The learned Judge favoured tha former view, and as a matter of first impression I must say that I was inclined to agree with him because there seems no adequate reason otherwise to explain the entry of time in the box. First impression is often a good pointer to follow on questions of construction; but the cardinal rule is to give proper weight if possible to every word used, and a further sorutiny has led me to prefer the second meaning.
In the first place, the time (11.45 a. m.) is merely put in in obedience to the instruction at the foot of the frame as to actual time of issue and to protect the insurance company until that hour of the day, showing that they are not on risk until. It arrives. What has changed my mind is the fact that time and date We used as separate terms, first in the phrase "effective time and date of commencement", secondly in the two boxes, one for "time" and another for "date", thirdly in the expression "commencement date of risk" in the fourth box, and in the phrase below again"time and date of commencement of risk". The duration of the insurance company's liability is expressed as fifteen days from the commencement date; It is not fifteen days from the commencement of risk. The risk runs, as we know, from 11.45 a. m., but the date of commencement is the 2nd December. The policy, therefore, expires fifteen days from the 2nd December, and these words, in my judgment, on the ordinary rules of construction exclude the first date and begin at midnight on that day. It would be otherwise if the fifteen days were to be reckoned from the time of commencement of risk, or perhaps even from the commencement of risk. These are small points, it is true, but it is from such details that the document takes its colour.
It was argued that, looking at the policy generally, it was intended to give fifteen days cover and no more, and that the construction I favour gives fifteen days and a half. I feel the force of this, as the learned Judge did, but it is not, in my judgment, enough to cutweight the language used, which I am of opinion is tolerbly clear. Even if it were ambigous so that either construction was equally probable, the document must, in my judgment, be construed contra Proferentom, that is to say, against the inusrance company which puts forward its offer to hold the appellant indemnified and takes his money as consideration. I think, however, there is no need to have recourse to this rather last ditch argument. The insurance company has agreed to hold the insured not for fifteen days, but for fifteen days from the date of the policy, and the commencement date.
It was argued for the respondent that fifteen days means fifteen consecutive periods of twenty-four hours, and a case of ( Cornfoot v. Royal Exchange Assurance Corporation 1904 volume 1 King's Bench Division, page 40) was cited in support of this proposition. This was a case of marine insurnce where a vessel was held insured "for thirty days in port after arrival", and it was held, as the headnote shows: "that the expression '30 days' in the policy meant thirty consecutive periods of twenty-four hours, thefirst of which began to run at 100.30 a. m. on August 2; and, therefore, that the insurance had come to an end before the loss occurred". I do not at all doubt the authority of that case. It turned on what the words "after arrival" meant, and it was held that another passag in the policy showed that the ship was considered to have...
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