031-NLR-NLR-V-61-EMJAY-INSURANCE-CO.-LTD-Appellant-and-JAMES-PERERA-Respondent.pdf
H. N. O. FERNAjSTDO, J.—Emjay Insurance Go., Lid., v. James Per era 145
Present:H. ST. G. Fernando, J,, and T. S. Fernando, J.EMJAT INSURANCE CO., LTD., Appellant, and JAMES PERERA,
Respondent
S. C. 513—D.G. Colombo, 29,431(M
Evidence—“ Admission ”—No requirement that it should he adverse to the personwho made it—Statement made by a deceased person—Admissibility as admissionagainst representative in interest—Contract of life insurance—Administrator'sposition as representative in interest of deceased policy holder—Evidence Ordi-nance, ss. 17, IS, 21, 32.
A statement, in order to be an “ admission ”, need not be “ adverse ” to theperson making it. Section 17 of the Evidence Ordinance makes it clear thatthe only characteristics which a statement must possess in order to constituteit an admission are (1) that it suggests an inference as to a relevant fact or afact in issue, and (2) that it must be made by one of the persons and in thecircumstances “hereinafter mentioned”. The following sections contain noreference to the need that the statement should bo adverse to or against theinterest of the maker, and section 21 permits all admissions to he proved asagainst the maker or his representative in interest.
Sections 17 to 21 and section 32 respectively of the Evidence Ordinanceconstitute independent heads of admissibility in regard to the reception ofstatements of deceased persons; the conditions set out in section 32 do nothave to be fulfilled in the case of such statements which are within the terms ofseotions 18 and 21.
An insurance company sought to repudiate a claim made by the administratorof the estate of a deceased holder of a policy of life insurance on the ground thatthe deceased had made a false or incorrect declaration, being of tbe basis of thecontract, as to the state of his health at the time of the declaration.
Held, that a statement made by the deceased subsequently, but to tbe effectthat he bad been suffering from certain symptoms at or about the time of tbedeclaration, was an “ admission ” provable under sections 18 and 21 of tbeEvidence Ordinance.
<A.PPEAT. from a judgment of the District Court, Colombo.
Ivor Misso, with N. C. J. Rustomjee and H. W. DissanayaJce, for thedefendant-appellant.
Kingsley Herat, with Stanley Perera, S. D. Jayasundere and A. B.Walgampaya, for 'the plaintiff-respondent.
Cur. adv. vult.
August 2, 1957. H. N. G. Eubhaupo, J-—
The plaintiff is the administrator of the deceased holder of a policyof life insurance. His claim on the policy has been resisted on the groundthat the deceased had on 31st January 1950 made a false or incorrectdeclaration, being of the basis of the contract, as to the state of his health,in an application for reinstatement of the policy which had lapsed ashort time before. The position of the insurance company was. in brief,
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J. lf.B 18533-1,995 (11/59)
146 H. IT. G. FERNANDO, J.—Mmjay Insurance Go., Ltd,., v. James Perera
that the deceased was suffering from tuberculosis at the time of thedeclaration, and it is not disputed that the plaintiff's action had to failif this allegation was proved.
The company relied on evidence proving that the deceased was ad-mitted to the Welisara Chest Hospital on April 4th 1950 with symptomsof tuberculosis, that he was treated for that disease thereafter and thathe died of tuberculosis at the Chest Hospital in May 1953. This evidenceby itself raised an inference that he might have been suffering from thedisease prior to the time of admission, but was insufficient to provethat he had contracted the disease on or before January 31st 1950. Butthe company also relied on .a statement alleged to have been made to theadmitting clerk by the deceased on the day of his admission to the hospital.In answer to questions put by the admitting clerk, the deceased had statedhis symptoms to be malaise, loss of strength, cough and night sweats,and had stated further that the duration of these symptoms since thefirst onset had been six months. In the context of the other provedfacts, these statements, if admissible, would he quite sufficient to provethat the deceased had suffered in January 1950 from the symptomswhich were present at the time when the statement was made. Thereis nothing in the evidence which casts any doubt on the correctness ofthe statements or with respect to the credibility of the testimony of theadmitting clerk. Counsel for the company has argued that the learnedtrial Judge wrongly ruled out the statement, and I agree that if it isreceived in evidence, the plaintiff’s case must fail.
Two points were argued by counsel for the respondent with muchinsistence :firstly that the deceased’s alleged statement to the
Hospital clerk is not admissible under section 14 of the Evidence Ordi-nance, and secondly that the statement is not an admission which can beproved under sections 18 and 21 of the Ordinance.
As to the first point, the argument is that declarations as to the mentalor bodily feelings or state of health of the declarant fall within the resgestae principle, and must, to be receivable unaer section 14, have beenmade at or about the time at which the feelings or state of health arealleged to have existed. I have to agree that there is much in the EnglishCommentaries to justify this argument. While the language of illus-tration (m) to section 14, read particularly in contrast to that of illus-tration (1), is undoubtedly open to tne construction that a declarationas to the state of health of an assured at a former point of time would bereceivable under the section, the intention might well have been merelyto express in statutory form the decision in Aveson v. Kinnaid 1 admit-ting a contemporaneous declaration. However, the view I have formed,as to the admissibility of the statement now in question under sections18 and 21 renders unnecessary a definite expression of opinion as to thescope of illustration (m) to section 14.
The substantial ground of objection to the admissibility of the state-ment under sections 18 and 21 is that a statement of a deceased personcannot be admitted under those sections ; counsel’s contention was thatsection 32 is exhaustive of cases in which statements of deceased persons
1 6 East. 188«
H. X. G. ^FETCSTANDO, J.—Em jay Insurance Co., Lid., v. James Per era147
may be proved, subject only to the exception that any such statementmay be admitted under section 14 as forming par3 rei gestae.
There is no express provision in section 32 indicating an intentionthat its provisions should be exhaustive, nor is there any indication insection 18 that a statement of a deceased person is not to be regarded asan admission although it otherwise falls within the scope of one of thedefinitions contained in the section. It is not therefore unreasonable totake the view on first impression that section 18 (read with section 21)formulates a rule of admissibilitv distinct from that set out in section 32.But counsel contends that such a view must be rejected because it wouldbe contrary to those fundamental principles of the English Law ofEvidence which were given statutory expression in our Ordinance. Thejudgment of the Privy Council in Eliaiamby v. Eliatamby1 emphati-cally rejected the proposition that the Ceylon Ordinance “ practicallyswept away all the English Law relating to hearsay ”, thus underliningthe need to bear the hearsay principle in mind in construing our Statuteand to avoid a construction offensive to that principle except perhapswhere such a construction is made imperative by clear words. Accor-dingly, the most appropriate mode of examining counsel’s contentionis to consider whether the statement now in question would have beenadmissible under English Law prior to the enactment of the EvidenceA ct of 1938 which introduced certain new exceptions to the hearsay rule.
In Smith v. Smith a, the administrator of a deceased’s Estate wassued for the recovery of a watch which was claimed by the administratoras property of the deceased. A statement by the deceased that he hadgiven the watch to the plaintiff was admitted as evidence a6ainst theadministrator and in proof of the fact that the watch was the property ofthe plaintiff.
Again, in Create v. Barrett 3 (referred to at p. 243 of Phipson 4) a claimwas made to certain rights in minerals raised from a mine on the groundthat the mine was situated under the waste of a manor. A statementby a deceased lord of the manor, in a lease of adjoining lands, to theeffect that the land over the mine was private property and not vrasteof the lonTs manor was admitted as evidence to negative the claim. Tshould note that the claimant was the lessee of the lord for the time being,and that the statement of the former lord was therefore one made bya person from whom the claimant derived his title.
In Doe v. Pellet5, (also referred to in Phipson) B’s heir sought ejectmentof L, the heir of B’s widow; the widow, who had continued in possessionfor twenty years after B’s death, had made a statement that she heldthe land for life and that it would go to B’s heirs after her death. Thisstatement of L’s predecessor in title was held to be admissible against L.
In Tucker v. Oldbury TJ. D. G.Q the dependant of a deceased workmansued the employer under the Workmen’s Compensation Act for compen-sation for Injuries sustained by the workman in an accident. The em-ployer relied on a statement by the workman himself as to the cause
– [1925) 27 N. 2j. R. 396.i Phipson, Law of Evidence, 9th Edition.
• 3 Bing. N. C. 29.% 5 B & Aid. 223.
1 C. M. c& R. 919.s [1912) 2 K. B. 317.
148 EJ. N. G. I’ERNASTDO, «T.—JBmjay Insurance Go., Ltd., v. James Per era
of the accident which would negative liability under the Aet. It was heldthat the statement was not receivable as an admission against the de-fendant because the workman was neither a party to the suit, nor aperson from whom the defendant derived his title. In this case the titleof the workman was an independent statutory one : but if it had notbeen so, and if the right to claim compensation had been derivative, asfor Instance one enforceable by the administrator of the deceased’sestate, the statement would presumably have satisfied the requirementsof the English Law which are given statutory form in our section 18.
But can it be supposed that these cases to which I have referred are onlyillustrations of the English Law relating in particular to statements ofdeceased persons as expressed in our section 32 : that the statementswere admitted as declarations of deceased persons against their pecuniaryor proprietary interests ? There are cogent reasons for the view thatsuch a supposition is erroneous. In Phipson (at page 228), it is statedthat there are four exceptions to the Buie excluding hearsay, the firstexception dealt with being “ admissions and confessions Statementsmade by deceased persons are separately listed as the third class ofexception. In considering (at page 230) the principle of allowing evidenceof admissions, the author mentions as one suggested ground, that anadmission is probably true, as being against interest. But this groundis criticized for two reasons. Firstly that statements against interestare not in English Law receivable per se, but only where the declarantis dead, and secondly that a statement made hy a party is receivableagainst him even though when made it was in fact in his interest. I mightadd in amplification that a statement, in order to be an “ admission ”,need not be “ adverse ” to the person making it. Section 17 of ourOrdinance makes it clear that the only characteristics which a statementmust possess in order to constitute it an admission, are (1) that it suggestsan inference as to a relevant fact or a fact in issue, and (2) that it mustbe made by one of the persons and in the circumstances “ hereinaftermentioned”. The following sections contain no reference to the needthat the statement should be adverse to or against the interest of themaker, and section 21 permits all admissions to be proved as against themaker or his representative in interest. Phipson ultimately favoursthe view that admissions are received in. evidence because a party’s owndeclaration, whether for or againt his interest when made, may be takento be true as against himself. It would appear therefore that the groundof the reception of admissions is different from that which justifies thereception of statements of deceased persons made against their interest.
In the decided cases also, these two grounds for the receptionof statements of deceased persons are regarded as distinct from eachother. Thus in Grease v. Barrett1 where a declaration was received as anadmission, it was sought to bring in the same declaration as being one madeby a deceased person against his proprietary interest: but this secondground of admissibility was rejected for the reason that the Court heldthat the declaration was not against the interest of the deceased. It isclear that here the principle of our section 18 was relied on despite the
11 G. M. <St 3. 919.
H. IT. G. FERNANDO, J.—Enijay Insurance Go., Ltd., v. James Per era 149
inapplicability of the principle of our section 32. So also in Tucker v.Oldbury U. D. C.1, the Court, having first held that the statement of thedeceased workman could not be received as an admission, thereafterproceeded to consider whether it could be received as a declarationagainst interest and decided the contrary. The references in Phipson(at pages 244 and 329 respectively) to the Dysart Peerage Gase2, showthat the two grounds for reception were treated as distinct from eachother. I am satisfied from reference to the English oases that the EnglishLaw rendered an “admission ” by a deceased person receivable withoutregard to the question whether it fulfilled the requirements which arementioned in our section 32, and that accordingly it would be wrong tosuppose that there was any intention to restrict the scope of section 18only to statements of persons who are alive.
No Indian cases were cited at the argument in appeal, and I do notimagine that a search for them would assist the contention of Counsel forthe respondent. Monir {Law of Evidence, 2nd Edition 1940) does not inhis commentary dh sections 17 to 21 refer to any limitation of the scopeof those sections to statements of persons who are alive; on the contrary ,the following passages from his text are to the opposite effect:—
“ The heir is a representative of the ancestor through whom he claims.A widow is the representative of her husband if she claims throughhim …. An administrator is the representative of the intestate,and therefore an admission by the latter is provable against the former.The admissions of a testator are admissible against his representative,that is against the executor.” (at page 153).
“ Admissions by the predecessors in title of the parties :—Statementsof a person, from whom a party to the suit has derived his interest inthe subject-matter of the suit, are receivable as admissions againstthe latter, if the statements were made dining the continuance of theinterest of the former. The party against whom the statement istendered in evidence is, in such a case, in “ privity ” with the personmaking the statement; and the ground upon which such statementsare received is that the maker of the statement and the party who hasderived his interest from him are identified in interest. Privies areof three classes ; privies in blood, as heir and ancestor, privies in law,as executor and testator, or administrator and intestate, and priviesin estate or interest, as vendor and purchaser, grantor and grantee,donor and donee, lessor and lessee, joint tenants, et cetera.” (at pages152 and 153).
“ Further, a declaration, when admitted as an admission, is originalevidence and not hearsay. An admission may therefore be provedby any witness who heard it, and the person making it need not becalled at all.” (at page 138).
In Woodroffe and Ameer Ali (Law of Evidence 9th Edition at pages 254,25o): reference is made to th.6 nils tlioitf the admissions of one person areevidence against another in respect of “ privity ” between them, and theterm “ privy ” is explained to include privies in blood as heir to ancestor,
1 (1912) 2 K. B. 317.3 6 Apj?. Gas. 489.
2*J. X. B 1S533 (11/69)
ISO
Rodrigo v. Weerakoon
and privies in law as executor to testator or administrator to intestate. Thecase of Smith v. Smith1 is cited, as well as an Indian decision that adeclaration of a testator as to the disposition of her ornaments by willwould be an "admission” which could be 'proved~against her represen-tatives.
These references in the Indian Text Boobs to declarations by deceasedpersons as being admissions receivable against their privies would be quitemisleading, if not incorrect, unless the true position is that the death of adeclarant does not preclude the reception in evidence of his declarationas an admission against his representatives in interest.
For these reasons I would hold that sections 17 to 21 and section 32respectively constitute independent heads of admissibility in regard to thereception of statements of deceased persons, and that the conditions setout in section 32 do not have to be fulfilled in the case of such statementswhich ere within the terms of sections 18 and 21. Hence the statement ofthe deceased policy-holder in the present case, being a statement madeby a person from whom the plaintiff has derived his interest in the policy,is an " admission ” provable against the plaintiff who as administrator isa representative in interest of the deceased. As earlier pointed out, thestatement establishes the fact upon which the company relies as the groundof repudiation.
The appeal is allowed and the plaintiff’s action is dismissed with costsin both Courts,
T. S. Ferstaitdo, J.—I agree.
Appeal allowed.