Foley v Tabor
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1861 |
| Date | 01 January 1861 |
| Court | Assizes |
English Reports Citation: 175 E.R. 1231
QUEEN'S BENCH, COMMON PLEAS AND EXCHEQUER
2 F. & T 863. FOLEY V. TABOR 1231 [6(8] Michaelmas Term, 1861, cut am Erie, C J foley and another v. tabor. (As a policy on a ship may be avoided, by unseaworthiness, caused either by overloading or bad stowage, tending to increase the dangei 01 difficulty of navigation, and so to enhance the rate of premium-the not mentioning the nature of the cargo-if the proportion ot dead weight in it must lead to bad stowage, may be such a concealment as will vitiate the policy But it will not be so if the underwriter knew, or had reason to believe, that the cargo would include some proportion of dead weight, and the agent of the assured, when he effected the insurance, did not know what proportion In such a case, knowledge of or concealment from, the particular underwriter may be material, but not the knowledge or ignorance of subsequent underwriters of a different policy (even although the actions on both policies are consolidated), and qucvre, as to previous underwriters of the same or another policy In such an action, with common counts, the pleas being concealment and unseaworthiness, applied by proper averments to those counts, the plamtift is entitled to begin. Declaration on a marine policy, dated 24th September, 1801), on ship, " Storm Queen," seaworthy, &c , at aud from London to the Cape, while there, and thence to Kurrachee, for 425U/ on ship, valued at l()00l , underwritten by the defendant for 150/ , at 50s per tent Averment of partial loss, ot 50 pt-i cent repaired , and afterwards ot total loss. Common money counts, and on account stated Pleas . 1 That ship in policy mentioned was at the commencement of the risk, and time of setting sail, unseat orthy 2. Policy procured by fraud (afterwards withdrawn). 3. That, at the time of the contract mentioned, certain material facts, which ought to have been communicated to the defendant, were wrongfully concealed fiorn defendant, who, by such concealment, was induced to subscribe the policy. 4 As to 75/ (the defendant's share of the partial loss at 50 per cent ) parcel of the money claimed by the common counts, that the said sum of 75/ was claimed by plaintiffs as money payable to them under and by virtue of the policy mentioned m the first count and not otherwise, and that except by vntue of such policy plamtifts not entitled to 75/ or any part thereof, and that at the time ot the commencement of the risk, and of the ship setting sail, she was unseaworthy 5. As to the 75? , similar averment identifying it with [664] the claim on the policy, and that material facts were concealed from defendant, by which he was induced to subscribe the policy 6 As to 151, similar identifying averment, and that policy was piocured by fraud (withdrawn) 7 As to 31. 15s., further part of the sum. claimed by the money counts, payment into Court. Replication : joining issue on all the pleas except the seventh, and as to the seventh, accepting the money in satisfaction. These two sums of 75£ and 3/. 15,s , were the only sums claimed by the particulars The second and sixth pleas were afterwards withdiawn Bovill (Honyman and F. M. White with him), for the defendant, claimed the light to begin Lush (Cleasby and Watkm Williams with him), for the plamtifts, objected -The claim is for unliquidated damages He cited Mercer v. Whatl (ò" Q B 447) Bovill offered to admit that it the plamtifts weie entitled to recover anything beyond the total loss, the amount they were entitled to was the amount claimed by the particulars (a). Lush declined to accept the admission Erie, C. J , decided that the plamtifts should begin, the damages being unliquidated (6). (a) See LucLie v Bu^ftby, 13 C B 804, which decides* that in every case where theie is a claim for an average loss, it is a claim foi unliquidated damages-., even \\hei'e there has been an adjustment But sec also living v. Mannttty, G C. B 391, that a contract of insurance may be liquidated, if the value is ascertained In an action on a life policy, the only pleas being fraud, or false representation, the...
To continue reading
Request your trial
-
Kreglinger and Fernau Ltd v Irish National Insurance Company Ltd
...importance, then such intimation may be sufficient to put the insurer upon enquiry. So held by Davitt P. Foley and Another v. Tabor,ENR 2 F. & F. 663; Asfar and Co.v. BlundellELR [1896] 1 Q.B. 123; Joel v. Law Union and Crown Insurance Co.ELR [1908] 2 K.B. 882; Mann Macneal and Steeves v. C......
-
Smith-Thomas (Hillary) v Insurance Company of the West Indies
...have the means of learning from sources available to them". The learned editors of MacGillivray (supra) at paragraph 17–73 cite the case of Foley v Tabor (1862) 2 F. & F. 663 at p. 672 in support of the proposition. 63 It would seem to me that, even if the principle in Foley, were applicabl......
-
King, Bulwer and Others v Walker
...The jury must in each case assess the damages. They also referred to Arnould on Insurance, vol. 1, p 358, 2nd ed. , Foley v. Tabor (2 F. & F. 663), Goram v. Sweeting (2 Wms Saund. 202 h , note p.), Nantes v. Thompson (2 East, 385), Cousins v. Nantes (3 Taunt. 513). Secondly, to entitle the ......
-
Burges and Another against Wickham and Another
...of which varies with the class of the ship, aa well as with its situation, and the nature of the voyage and of the cargo; Foley v. Tabor (2 F. & F. 663, 671, 672), per Erie C.J. In Knill v. Hooper (2 H. & N. 277, 283, 284) Wat-[676]-son B., delivering the judgment of the Court, said:-" It w......