Dawsons v Bonnin
| Jurisdiction | England & Wales |
| Judge | Viscount Haldane,Viscount Cave,Viscount Finlay,Lord Dunedin,Lord Wrenbury,. |
| Judgment Date | 14 July 1922 |
| Judgment citation (vLex) | [1922] UKHL J0714-1 |
| Court | House of Lords |
| Docket Number | No. 16. |
| Date | 14 July 1922 |
[1922] UKHL J0714-1
Viscount Haldane.
Viscount Cave.
Viscount Finlay.
Lord Dunedin.
Lord Wrenbury.
House of Lords
After hearing Counsel, as well on Tuesday the 9th, as Thursday the 11th, Friday the 12th and Monday the 15th, days of May last, upon the Petition and Appeal of Dawsons, Limited, incorporated under the Companies Acts, of 46, Cadogan Street, Glasgow, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lord Ordinary in Scotland (Lord Anderson), of the 15th of July 1920, and also two Interlocutors of the Lords of Session there, of the Second Division, of the 12th of March and the 24th of May 1921, respectively, so far as therein stated to be appealed against, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Interlocutors, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of H. A. V. Bonnin, S. Moses, R. W. Roylance, Gerald Moses, Frank Barrett, and Charles B. Wootten, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 12th day of March 1921, in part complained of in the said Appeal, be, and the same is hereby, Varied by omitting therefrom the words "Recal the 2nd finding in said Interlocutor, in lieu of which find that the policy is void because the answer to the 4th question in the proposal form contains a material mis-statement of a circumstance by the insured material to assessing the premium in the policy," and also the word "also," and that, subject to such Variation, the said Interlocutor be, and the same is hereby, Affirmed: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal to this House, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within One Calendar Month from the date of the certificate thereof, the Court of Session in Scotland, or the Lord Ordinary officiating on the Bills during the Vacation, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
This is an Appeal from a judgment of the Second Division of the Court of Session, which affirmed a decision of the Lord Ordinary, who had tried the action, but varied the reasons on which that decision was based. The action was brought by the Appellants to recover a sum of 500 l. and interest against the Respondents with whom they had insured a motor lorry against fire and also any claims for injuries made by the public. The vehicle had been in fact destroyed by fire. The question in the Appeal is whether the Respondents were freed from liability under the policy by reason of inaccuracy in a statement made by the Appellants in the proposals submitted when the policy was issued, to the effect that the motor would usually be garaged at a certain address, whereas it was garaged elsewhere.
My Lords, the policy was issued to the Appellants on 8th February 1917, by the agent in Glasgow of the Respondents, who were Lloyd's underwriters. The transaction was initiated by a proposal form, signed on behalf of the Appellants, who were furniture removal contractors carrying on business at 46, Cadogan Street, Glasgow. They used motor cars and lorries in this business which they had been in the habit of insuring. Among others with whom they had had transactions of this kind was a Mr. Hamilton, an insurance broker, who acted for various insurance societies. He appears to have called on them and to have offered a quotation for the insurance in question, which was accepted. He then filled in a form of proposal from information he thought he had obtained from them, and this when signed became the proposal form as to which the question has arisen. It commenced by setting out the particulars of the motor vehicle intended to be insured, the make being of what was called the Halley Lorry type, and of the scope of the indemnity desired, confined to fire and to claims by the public. There then followed ten questions (to each of which a statement in answer was given), relating to the proposer's name and address, 46, Cadogan Street, Glasgow, and the purpose for which the vehicle was to be used. The fourth of these statements was made in response to a request for a statement of the full address at which the vehicle would usually be garaged. The answer given was "above address," that is to say, 46, Cadogan Street. There was a subsequent question as to the district in which the vehicle would be used, to which the answer was "Glasgow and District." The rest of the ten questions and answers are not material. Following on the proposal form and in the same document came the policy itself. It proceeded on the narrative that the insured (the Appellants) had subscribed and delivered to the insurers the proposal form, dated 22nd January 1917, "which proposal shall be the basis of the contract and be held as incorporated herein." The policy then stated that the premium had been paid for an insurance for twelve months, and it set forth the terms of the insurance as including, inter alia, indemnity to the extent of 500 l. against loss in damage caused by fire. Appended to the policy and qualifying it there was a statement of "conditions of insurance." The fourth condition was in these terms:—
"Material misstatement or concealment of any circumstance by the insured material to assessing the premium herein, or in connection with any claim, shall render the policy void."
What happened was this. On 27th December 1917 the vehicle insured was garaged, not at 46, Cadogan Street, but at Dovehill Farm, which had been a farm steading at Newlands, on the outskirts of Glasgow, but was within the City of Glasgow area. On that date it was burned accidentally. The vehicle was at the time of the fire within a building at Dovehill which had been a hay shed and was built of wood. In this shed, which was used by the Appellants as a garage for their motor lorries, there were other vehicles. One of these, a petrol motor lorry, took fire and in the conflagration the insured motor was burned up.
The question which arises is whether, under these circumstances, the Respondents are liable under the policy they had issued. They contend that the fourth of the answers in the proposal form was untrue. They say that the vehicle insured was not intended to be usually garaged at 46, Cadogan Street but at Dovehill, and that the answer actually given to the fourth question was not accurate, inasmuch as it amounted either to a misrepresentation of intention as to present and future storing or to a contract as to storing in the future which was broken. They also argue that the fourth of the conditions appended to the policy was that any material misstatement or concealment of any circumstance material to assessing the premium was by express provision to render the policy void, and that there was actually misstatement or concealment of the circumstance that the vehicle was to be garaged at Dovehill, a garage which they alleged was in such a situation and of such a character that if disclosure had been made the assessment of the premium would have been affected.
My Lords, the reply of the Appellants, the insured, on this point was that the question whether the motor vehicle was to be stored at Dovehill or at Cadogan Street was not a material one. The chief risks covered by the policy were in the main wholly unconnected with fire at the garage, and the percentage of the premium allocable to that risk was very small. The Respondents called evidence to prove that they did consider that the question was one of importance, and the learned Judges in the Courts below appear to have given credence to that evidence and to have attached weight to it. This is an important fact, and I am reluctant to differ from them. But I think that, notwithstanding some differences in the way in which they cross-examined the witnesses called for the Respondents, the Appellants have sufficiently proved by testimony which commends itself that in all probability no importance would have been attached to any answer to the fourth question in the proposal form to the effect that Dovehill was to be the place of garage.
But that does not dispose of the case. For if the Respondents can show that they contracted to get an accurate answer to this question, and to make the validity of the policy conditional on that answer being accurate, whether of material importance or not, the fulfilment of this contract is a condition of the Appellants being able to recover.
My Lords, for this reason it appears to me that the question which really lies at the root of the matter in dispute is one of construction simply. I do not look on the fourth condition appended to the policy as what is important for this purpose, for that condition extends to classes of possible misstatements and concealments which go beyond those to which the proposal statements are confined. On the other hand they relate to any such as may be actually material in assessing the premium, as distinguished from...
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