MARIYA UMMA , Appellant, and THE ORIENTAL GOVERNMENT SECURITY LIFE ASSURANCE CO.

039-NLR-NLR-V-57-MARIYA-UMMA-Appellant-and-THE-ORIENTAL-GOVERNMENT-SECURITY-LIFE-ASSURANCE-CO..pdf

1955Present: Gratiaen, J., and Fernando, J.MARIYA UMMA, Appellant, and THK ORIENTAL GOVERNMENTSECURITY LIFE ASSURANCE CO., LTD., Rosponclcnt.S'. C. 27S—D. C. Colombo, 23,600
Insurance—Contract of life insurance—Repudiation of liability by insurer—Vaguenessof allegations against deceased insured—Framing of issues —Duty of Courtto clarify issues—Civil Procedure Code, s.s. 77, 116—Proposal Form—Questionsappearing therein—Truth of answers—Tests to ascertain it.
Tilo insurer in iv contract of life insurance, on being sued for Ilia recoveryof Ks. 30,000 duo under the policy of insurance, filed answer repudiating lia-bility in general terms alleging that tins insured had withheld material infor-mation concerning the state of his health. Although the answer was defectivefor wont of precise information as to the grounds on which liability was repu-diated, it was not returned for amendment under Section 77 of tho Civil Pro-cedure Code. At tho same time, tho plaintiff, who was tho administratrix ofthe estate of the deceased insured, failedto servo interrogatories on tho insurerfor tho purposo of obtaining clarification of the allegations made againstthe deceased.
Held, that in tho circumstances Section 14C of tho Civil Procedure Codeimposed n special duty on tho Judge himself to order tho defehco to furnishfull particulars of its grounds for avoiding liability, and tho issues for adjudica-tion should only have been framed after tho Judge had ascertained for himself“ tiio propositions of fact or of law ” upon which tho parties wore at variance.
In tho absence of provision to the contrary expressed in tho clearestpossible terms, a person making a proposal for life insurance is entitled toassume that insurance Companies do not require information frivolously orthrough puro inquisitiveness on matters which have no conceit-able relevancyto tho risk which they ore invited to undertake. Therefore, in a country likoCeylon where perfectly healthy persons occasionally “ suffer ” from slightindispositions of brief duration, loosely described as “ influenza ”, an applicantfor insurance cannot be deemed to have given imtruo or incorrect informationif, although he had once hail a mild attack of “ influenza ” which was speedilycured by a few doses of mixture, he answered in the negativo tho followingquestions addressed to him in the proposal form :—
“ 1. Have you ever suffered from any of the following ailments—typhoid,influenza, filariasis, elephantiasis of leg or scrotum, kala-azar, blackwateror any other fever ?. ..-
•2. Have you within the past five years consulted any medical man for anyailment, not necessarily confining you to your house ? If so, give detailsand state names and addresses of medical men consulted. ”
If the words of a question appearing in the proposal form are ambiguous,they must be construed contra proferentes and in favour of the assured.
One ground' on which the insurance Company repudiated liability on- tho policy -was that the insured had given untrue and incorrect answers to theprinted questions in tho proposal form when thoso answers would form tho“ basis of the contract ”. The printed questions were, however, addressed
7LVII.'
2J. >". B 51757-1,502 (12/53)
Jo the deceased in tlio English language which lie could not understand. Theywent interpreted by t-ho Company’s agent in MalayuInin, and t he answers givenin Mnlnyalam were then translated into English by tlio Company's agent.
■JJe/d, that in t-ho circumstances the Company could not succeed withoutproof that the questions and the impugned answers were correctly interpretedand recorded by tlio Company’s agent.
.^^.PPEAL from a judgment of the District Court, Colombo.
ThiagaJinyam, Q.G., with X. Xadurasa, S. Hharvananda andT. Paralhalingain, for the plaintiff appellant.
II.. Perera, Q.C., with S. Xadesun, Q.G., *S'. J. Kadinjanutr and
J.de Saram, for the defendant respondent.
Cur. ado. vult.
August 3, 1955. Gkatiaex, J
The administratrix of the estate of X. Attained sued the defendantCompany, whose head office is in Bombay, for the recovery of Us. 30,000under a policy of insurance payable on his death.
On 30th November 1947 the deceased, who was the proprietor ofPilawoos Hotel, had submitted to the Company's branch office in Colomboa proposal (Dl) for the insurance of his life. The business was introducedto the Company's Inspector Sivasubramaniam b>- a canvassing agentNair who gave evidence at the trial in support of the plaintiff's claim.The printed proposal form, drafted by the Company in the Englishlanguage, contained a number of questions which the applicant forinsurance was required to answer “ fulty and distinctly in his own hand-writing A similar requirement- appears with regard to the questionsin the .“ Personal Statement” which was to be answered before hisexamination by a Medical Referee nominated by the Company..
-Thedeceased' could sign his name in English, but was otherwise illi-terate in that language. The questions in the proposal form and thePersonal Statement wore thercforo interpreted to him in Malaynlam bj-Sivasubramaniam who also translated his answers into English. Atthe foot of the proposal form is a declaration printed in English andsigned by him in both languages purporting inter alia to agree that hisstatements-ip .the. documents “ shall be .the basjs of the. contract ”. Afurther declaration, also printed in English in somewhat different- terms,was signed by him in both languages in the presence- of the MedicalReferee, Dr. Sivapragasam, after the medical examination.
Dr. Sivupragasam’s report P4 pronounced that, after a detailed medicalexamination, ho considered tho deceased a “ first class life ”, that is tosay, “a life in perfect health and of sound constitution with good per-sonal and family history and with prospects of longevity as good as thoseof healthy persons generally of the same age Tho Company accepted(ho proposal on tho loth December 1947 and the terms of the contract-arc contained in tho policy dated 12th January 1948. There is noevidence as to when the polic-y was forwarded to the deceased.
The deceased died at Cannanore in South India on 21st March 194S,and payment under the policy was claimed shortly'afterwards on behalfof his estate. On Sth August 1950, i.e., more than two years later,(he Company repudiated liability on the grounds specified in its letterP2. It was alleged, inter alia. (I) that the deceased had “withheldmaterial information at the time of effecting the assurance ” ami (2)that the Company had t: indisputable proof to show that tho deceasedhad for some months before ho submitted the proposal and even till thedate of issue of the Acceptance Letter been suffering from heart troubleand its complications and that he had also been suffering from piles andhernia ”. Upon receipt of this letter, the plaintiff instituted the presentaction in October 1950.
Paragraph 6 of the Company's answer is to the following effect :—
The defendant Company states that after the death of thesaid Kalingal Ahamed deceased, it was discovered that he had failedto disclose facts regarding the state of his health and/or about ailmentswbic-h he had been suffering from at or about the date of the saidPersonal Statement and of the proposal for insurance, at or about thedate of the letter of acceptance or at or about the date of issue of thePolicy of Assurance, and that the deceased had either fraudulentlyor wilfully given false answers or information in the said PersonalStatement and/or Proposal for Assurance, in regard to his health orailmrnts or had either fraudulent^' or wilfully concealed or withheldmaterial information from the defendant Company in regard to lii.shealth or ailments. Tho defendant Company therefore avers that(he. said policy of insurance effcelcd thereunder ceased and determinedand all monies paid thereunder have become forfeited to the defendantCompany and the defendant Company is under no liability whatsoeverto pay the sum of Es. 30,000 or any sum whatsoever. ”
These allegations (so Counsel appearing for tho Company informed nsduring the argument) wero later slightly modified to tho cxteiit that (heCompany did not consider it necessary to pursue the earlier imputationof an express fraud. The modified grounds of repudiation aro set outin issues 3 and 4 which (as amended during the trial) read as follows :—
“ 3. Had the deceased failed to disclose facts regarding tho stateof his health and/or about the ailments that he had been suffering
from on or about the date of the personal statement Dl, or date ofproposal, acceptance of the proposal or date of issue of tho policy ofTnsuranee 1
4. Had the deceased given untrue or incorrect- answers and informa-tion in the personal statement and proposal for insurance in regardto any one or more of the following particulars :—
(а)Date of birth and age—Cage 3 of page 1 of DI.
(б)In regard to the question in cage 14 of page I of DI.
(c) In respect of the personal statement at page 2 of DI, in regardto the answers to questions 3a (1), 3a (2), 3a (3), 3a (4) of page 2of Dl and 3c, 3r> (1, 2) and 9a and 9u ?
Issue 4 (a) was withdrawn at an early stage of tho trial, and we wereinformed that the Company did not invite oven an incidental finding
that the deceased’s age in fact exceeded 4G in November, 1947.
*
Issue 3 raises tire question whether the deceased had in fact withheldmaterial information concerning the state of his health, and thus dis-regarded the duty imposed by law on any person proposing to take outa policy of life insurance. As to issue 4, the Company took up the alter-native position that the validity of the policy was by mutual agreementmade conditional upon the “ truth ” and/or “ accuracy ” of the deceased’sanswers to the specific questions put to him in the proposal and thePersonal Statement. It is common ground that the burden of provingthat the contract was either voidable for the reasons alleged in issue3 or void ab initio for the reasons alleged in issue 4 was on the Company.,
Issue 3 was framed in terms of the utmost generality, and gave noindication of the ailments from which the deceased allegedly sufferedat the relevant dates. Counsel for tho plaintiff therefore asked at thecommencement of the trial for particulars of these allegations. Heclaimed that- the Company’s defence on this issue should be restricted tothe grounds of complaint- specified in its letter of repudiat ion P2. Tholearned Judge over ruled tho objection and said :—
“ The answer is no doubt couched in general terms, and in my viewshould have specifically referred to the various items in the proposalfor insurance and tho Personal Statement which arc alleged to havebeen made by the deceased. But at the same time one cannot losesight of the fact- that by interrogatories the plaintiff could have clarifiedthe position. This has not been done. I allow the issues. ”
The Company’s pleadings were certainly defectivo for want of preciseinformation as to the grounds on which liability was repudiated. Theanswer should therefore have been returned for amendment- under Section77 of the Civil Procedure Code. I also take tho view that, although theplaintiff would have been better advised to serve interrogatories on the
Company for tho purposo of obtaining clarification of allegations madeagainst the deceased, the learned Judge took far too narrow* a view*of his own powers and duties in such a situation.
Xo express provision is made in our Code for the salutary machineryof “ summons for directions ” as in England or for i>re-trial proceedingsas in America. Xeverthelcss, and indeed for this very reason, Section146 imposes a special duty on the Judge himself to eliminate the clementof surprise which could arise when the precise nature of the dispute isnot clarified before the evidence is recorded. The defendant’s pleadingswere defective, and the plaintiff (let it be conceded) had not been asvigilant as she should have been to protect herself against surprise.But it was still the Judge’s duty to control the trial. Ho should haveordered the defence to furnish full particulars of its grounds for avoidingliability, and tho issues for adjudication should only have been framedafter the Judge had ascertained for himself “ tho propositions of factor of law ” upon which the parties were at variance. This was especiallynecessaiy where the administratrix of an estate was confronted withserious allegations against a person who had never had an opportunity,when alive, to answer personally to the charges.
The same observations apply to issue 4. Each printed question inthe Personal Statement refers to a formidable catalogue of “ ailments ”,and, if the Company intended to rely on other charges than those specifiedin its earlier letter of repudiation (namely heart disease, hernia and piles)it shoidd certainly have specified the additional ailments ” in rospeetof which the deceased was alleged to have given untrue or incorrectanswers.
The trial commenced upon issues which were left far too vague, and,as the learned Judge himself points out in the closing paragraph of hisjudgment, the proceedings were unduly protracted for a variety of reasons.The advantage which this experienced Judge of first instance enjoyedof seeing and hearing t-hc witnesses was therefore ” perhaps not so great ”as it would have boon if the dates of trial had been loss widely separatedeach from the other..
I now pass on to review some of the facts which came to light in t hecourse of tho trial. Tito Compaiy was clearly entitled to view with somesuspicion the fact that a man who was pronounced a ” first class life ”in November 1947 shoidd have died of heart failure (according to thecertificate of death) in March 194S. Indeed, the mystery deepenedwhen this certificate, which originally gave his age as " 55 ” and the nameof his last medical attendant as “ Dr. L. S. Shenoy-”, was subsequentlyamended, fust by altering his ago to “ 46 ” and, at a later date, the nameof the medical attendant to ” Dr. M. Narayanan ”.
Dr. Narayanan, a medical practitioner of Tillichery. in South India,reported to the Company tliat he treated tho deceased for coronarythrombosis from about 14tli March 1948 until ho died—first at thoresidence of the patient’s wife’s family in the village of Eddakat, and laterat Cannanore. He said that he had known the deceased quite well since
about 1944, anti that tho deceased had beon in good health until the dateof his last illness. Dr. Narayanan categorically denied that Dr. Shenoywas consulted at any stage of tho decoased’s last illness, and his version,if truo, left no room for the complaint that the deceased had been guiltyin November 1947 of non-disclosure of any material facts concerningtho state of his health.
When Dr. Shenoy was contacted by the Company, ho wrote a letter(D2) of 5th February 1949 giving a completely different history of thelast illness. Ife said that it was lie alone who had been in charge of thepatient, first at Dddakat from the middle of February 194S until about5th March, and later at Cannanore until he died 10 days later. He alsoclaimed to have called a Dr. Miller (then Civil Surgeon at Sholapur) inconsultation on two occasions. According to him, the deceased diedof cerebral oedema, and had been suffering for a considerable time fromchronic myocarditis, unguinal hernia on both sides, and external piles.These details were elaborated in a further letter to the Company (D3)of Sth June 1949 and clearly forms the basis of the letter of repudiationP2 of October '1950. If Dr. Shenoy’s version was substantially correct,the facts would without doubt have established that the deceased, whenhe was virtually a dying man, had fraudulently, and with the connivanceof others, induced the Company to insure his life upon a completely falsehypothesis.
Dr. Miller’s name was disclosed by Dr. Shenoy in February 1949,but he was not contacted by the Company until about October or Novcm-ber 1951, i.e., after tho action had commenced. He was unable at firstto recollect the case, but, after Iris memory had been stimulated (f donot use the- word in a sinister sense) by reference to the details of Dr.Shenoy s version, he agreed to give evidence to the effect that he hadin fact been consulted in March 194S concerning a patient answeringto tlie description of the deceased, and that he remembered havingagreed with Dr. Shcnoy’s diagnosis.
One can well appreciate the additional difficulties which the learnedJudge encountered in a trial where medical men gave irreconcilableversions on questions of fact. He ultimately found it impossible toaccept the evidence of either Dr. Shenoy or Dr. Narayanan “ with anydegree of confidence ”, and decided that tho value of Dr. Miller’s evidencewas greatly reduced because, in attempting to reconstruct what hadoccurred 3.V years before the Company contacted him, lie had beenmuch influenced ” by what Dr. Shenoy had previously stated. TheJudge finally concluded that neither Dr. Shenoy nor Dr. Narayananhad spoken the whole truth ”, and that it was “ perhaps right ” to drawthe inference that ” both doctors had been called in, Shenoy at the last-moment when the relations of the deceased became desperate ”.
The Company relied on the evidence of another witness called Koch-chakan who had also been contacted for the first time after the trialcommenced. His evidence, if true, strongly supported Dr. Shcnoy’sopinion that the deceased man must have been a “ very sick man ” in
Xovcmbcr 1047. But ho Mas disbelieved, and certain documents pro-duced by him (alleged to have been written by the deceased during therelevant period) were not accepted as genuine..
As to the plaintiff's witnesses, the learned Judge was much impressedby the evidence of the Comjuany’s canvasser Xair who stated that thedeceased was in excellent health in Xovembcr 1947 and earlier. Actingon his evidence and on the medical report of Dr. Sivapragasam (who diedon 17th 5Cay 1950 before the Company repudiated liability) the learnedJudge said " I have no doubt that at that particular time (i.e., in Xovem-bcr 1947) the deceased Ahamed was perfectly healthy Issue 3 wasaccordingly answered in favour of the plaintiff.
AVith regard to issue 4, the Company again relied on the inferences<lrawn by Dr. Shcnoy as to the probable state of fho deceased's healthin Xovcmbcr 1947, and on the evidence of both Dr. Shcnoy and Koeh-ehakan as to what the deceased had himself told them in that connection.If tliis evidence had been accepted, the policy was clearly void becausethe deceased had given false answers to several questions in the proposalform and the Personal Statement. But here again the learned Judgewas not prepared to place reliance on the statements of fact made byeither witness, or on the inferences drawn by Dr. Shcnoy from the symp-toms which he claimed to have observed during the last illness. In theresult, there was no evidence adverse to the deceased which the Judgefound himself in a position to accept on controversial matters coveredby issue 4 up to the stage when the case for the Company had been closed.Nevertheless, the extremely general form in which the issue was framedenabled the Company to rely on a matter incidentally mentioned In-Dr. Xarayanan when he was called to rebut Dr. Shcnoy*s" version of I hodeceased's last, illness. Tad me explain how this anticlimax occurred.
According to Dr. Xarayanan, the deceased had not suffered from anyserious illness since about 1944, but he had had a mild attack, diagnosedas " influenza ”, early in 1945 ; and this indisposition was speedily curedby a few doses of mixture. Upon this isolated item of evidence givenby a. witness whom the learned Judge otherwise regarded as demons-trably unreliable, issue 4 was answered in favour of the Company—1 liereason being that the deceased had on 30th November 1947 answeredin the negative (I) the question (in the proposal form) whether lie hadconsulted any medical man for any ailment ” within the past five yearsand (2) the question (in the Personal Statement) whether he had “ eversuffered from any other illness, accident or injury, whether considcrtd{by the deceased) to be important or not ”.
It was conceded on behalf of the Company that in any view of thematter, influenza, having already been included specifically in an earlier .question No. 3 (a) (3) of the Personal Statement, is not caught up by thewords ‘‘‘ any other illness ” in question 3 (c). It was also conceded thatthe words whether considered to be important or not ” qualified theword “ injury ”, but not necessarily the words preceding it. Ar. Pc-rcraargued, however, that the policy ought to have been declared void abinitio because question 3 (a) (3) was answered in the negative. This
submission was rejected by the learned trial Judge because in his opinionquestion 3 (a) (3) referred in this context only to ailments, includinginfluenza," of a somewhat serious and sovero character
For the reasons which follow, I have come to the conclusion thatupon the learned Judge’s findings of fact, the deceased has not beenproved to have given an " untrue ” or " incorrect ” answer cither toquestion 14 in the proposal form or to question 3 of the Personal State-ment- The truth of the impugned answers was made the “ basis of thecontract ”, and it must certainly be conceded that the question of theirmateriality to the insurance risk does not directly arise. Bauson v.Bounin . Put were the answers in fact " untrue ” ? As Lord Watsonpointed out in Thomson v. TJ'eems , “ the subject matter of tho warrantyis a point to be determined in each case .according to the just.constructionof the question and answer taken per se, and without reference to thewarranty given …. If tho words are ambiguous, they must beconstrued contra •projerentes and in favour of the assured ”.
An insurance Company is always entitled to stipulate that a policyis void even if the assured gives information which, upon extreme litera-lism, is incorrect on matters however trivial and immaterial; but in thatevent the Company must have the commercial courage to communicateits intention to the other party in the clearest possible terms. " It isa weighty matter that the questions aie framed by the insurer, and, ifan answer is obtained which is, upon a fair construction, a true answer,it is not open to the insuring Company to maintain that tho question wasput in a sense different from or more comprehensive than the proponent’sanswer covered. When an ambiguity exists, the contract must standif an answer has been made to the question on a fair and reasonableconstruction of the question.- Otherwise, the ambiguity will be a trapagainst which the insured should be jjroteeted by the Courts of law. ”— per Lord Shaw in Condogianis v. Guardian Assurance Co. 3.
Let us consider in the first instance the case of an applicant for insurancewho was a- person of good education and perfectly conversant with thelanguage in which the following questions were addressed to him :—
(J) "Have you ever suffered from any of the following ailments—typhoid, influenza, filnrinsis, elephantiasis of leg or scrotum,kala-azar, blackwater or any other fever ? ”
(2) Have you within the past five years consulted any medical manfor any ailment, not necessarily confining you to your house ?If so, give details and state names and addresses of medicalmon consulted ”.
How would a reasonable man making a proposal for life insurance fairlyread these two questions if ho assumed (as he is entitled to assume)that reasonable insurance Companies do not require information
frivolously or through puro inquisitiveness on matters -which Iiavo noconceivable relevancj' to tho risk which they aro' invited to undertake ?In iny opinion, the question as to “ influenza ” is “ one which tho Companycould hardly reasonably have expected to bo answered with strict andliteral truth ” in a country where perfectly healthy persons occasionally“suffer ” from slight indispositions of brief duration, loosely describedas " influenza It must therefore be read “ with some limitationand qualification to make it reasonable Connecticut Mutual LifeInsurance Co. v. Moore *.
“ Influenza ” was classified in tho Personal Statement as an “ ailment ”and (leaving aside “ Kala-azar ” which convoyed no meaning to any ofus who heard or argued the appeal) was included in a group of diseasesnotorious^' calculated to reduce longevity. That the term catches upa serious attack of “ influenza ” which might well bo atteiulod by conse-quences impairing a man’s general health is clear enough. But, can itfairly be read as having been intended also to include what a layman•would describe colloquially as a " touch of flu ” ? One cannot imaginethat a reasonable insurance Company negotiating with a person residingin Ceylon would seriously wish to know whether he had never in his lifehad a slight indisposition of that kind. I therefore agreo with the learnedJudge’s view of what “ influenza ” meant in tho context of question3 (a) (3).
As to question 14 appearing in the proposal form, the purpose of theinsurance Company in asking whether the deceased had ever “ consulted ”any medical man for “ any ailment ” was to obtain the “ means of testinghis other answers by reference to the medical gentlemen -who had beenconsulted during tho past five years Mutual Life Insurance Co. v.Ontario Metal Products Co. But there remains the question as to howthe terms “ consult ” and “ ailment ” should be construed in the contextin which they appear. In tho decision of the Judicial Committee to whichI have just referred, a similar question required tho names of “ everyphysician or practitioner who has prescribed for or treated you or whomyou have consulted in the past five years ”. This indicates that tiio threeterms aro not synonymous in tho minds of all insurance Companies.
In that particular case, the assured had on several occasions obtainedfrom a doctor a tonic when he was “ feeling overworked and run down ”.The Judicial Committee considered that the doctor had “ prescribedfor him ” or “ treated him ”, but did not go so far as to hold that thedoctor had also been “ consulted
It cannot at any rate be said that there is no ambiguity in question 14,and I am not convinced that a person who, when slightly indisposed,was given an influenza mixture on an isolated occasion by his wifo’sfamily doctor would be guiltj' of untmthfulness or oven of substantialinaccuracy if he denied that ho “ consulted ” the gentleman concerned" for an ailment A reasonable applicant for insurance might wellassume that the Company was concerned only to obtain information
(1925) A. C. 344.
(1SS1) 6 App. Cas. 614.
as" to whether ho had during the relovant period sought tho professionaladvice of a medical man in coimection with some ailment (roal or imagined)of a serious nature. “ Tho question what medical men have you cons ailed ?involves some necessary explanation, and some limit to this questionmust have been intended Joel v. Law Union and Croun Assurance Co. *.
This brings mo to another reason for holding that the Company hasnot discharged tho burden of proving that the “ basis of the contract ”was destroyed on grounds covered by issue 4. Tho printed questionswere addressed to the deceased in a language which (to the knowledgeof the Company’s agent Sivasubramaniam who attended to the preli-minary negotiations) he could not understand. They were interpretedby iSivasubramaniam in Malaya lam, and tho answers given in Malaynlainwere then translated into Hnglish by iSivasubramaniam. In thesecircumstances, proof of the accuracy of the translations was, I think,essential to the success of the Company’s defence. Moreover, theMedical Pefereo was himself specially directed to " read over carefully ”the answers in the Personal Statement before examining the deceased,and to obtain fuller information such as will explain the meaningof ambiguous terms like fever, cough, &c. ”. There is no evidence as towhat was said, or what explanations given, at that stage.
Finally there are the declarations signed by the deceased at the footof tho .proposal form and of the Personal Statement. How were theseHnglish terms explained in Malayalam to the deceased 1 Consider, forinstance, the phrase “ the foregoing statements are true ”, The Muslimhotel-keeper was entitled to elucidation from the Indian insurance agentas to what precisely the Comjiany meant by “ truth Did Sivasubra-maniam explain that, as far as the Company was concerned, tho termincluded “ any inaccuracy unaccompanied by moral guilt ”? Did hoalso say that the policy would bo void even if statements of honest opinionwere subsequent ly found to bo incorrect ? The deceased had no doubtadded a statement in Malayalam that what Sivasubramaniam had put-down as representing his answers was “ written to (his) dictation ” andthat lie “ understands the contents ”. This does not mean that liepretended to understand anything other than what had been explainedto him in tho only language with which lie was conversant.
ICvc-n when the trial was in progress, Sivasubramaniam continued tobe entrusted by the Company with responsible duties, but he was notcalled by the Company. Indeed, strenuous attempts were made toprocure his attendance as a witness on the plaintiff’s behalf, but theywere frustrated because, in the learned Judge’s opinion, which I amunable to reject, the Company “ kexit him out of tho witness box Inthose circumstances, wo cannot assume that the interpretation whichSivasubramaniam gave to tho relevant questions coincided with thomeaning for which the Company now contends. And I do not agreethat when Counsel for the plaintiff admitted at the commencementof the trial .that the deceased had "submitted ” the Personal Statementand the proposal for insurance to tho Company, he could reasonably
* (190S) 2 K. B. SO 3.
have been understood to concede tho accuracy of Sivasubramaniam’stranslation. This Emission w.s recorded long before tiio points at issuewhich later assumed so much importance were brought to tho plaintiff'sotiee.
The principles laid down in Joel’s case (supra) apply in a very'specialway when the meaning of questions to answers which form tho “ basisof tho contract ” has been explained to an illiterate “ assured ” by aninsurance agent acting within the express or apparent scope of hisauthority. It was pointed out in Anderson v. Fitzgerald 1 that “ a policyought to be so framed that he that runs can read How much greateris the obligation imposed on insurance Companies who have constructiveknowledge that the applicant cannot read at all l Xo doubt an illiterateman, if left to construe the documents for himself, runs the risk of beingmisled by an interpreter of his own selection. Hut the position is quitedifferent when tho Company’s agent volunteers the explanations and,as a step towards securing the business, fills up the form for a person whocannot fill it up for himsolf. Keeling v. Pearl Insurance Co.-. In sucha situation, he is not " the mere amanuensis ” of tho illiterate person.Accordingly, the prima facie inaccuracy in tho Knglish language of airanswer given in Ifalayalam does not avoid the policy unless it is establishedthat the relevant questions were correctly interpreted and explained, andthat the answers thereto were correctly inserted by the insurance agent.
This is a very different case from Bigyar v. Bock Life Insurance Co. aand Neivsholme Bros. v. Road Transport and General Insurance Co. ',where an assured person, though literate and pcrfcctlj-’ competent tounderstand the documents, was content to adopt, without reading them,answers invented or incorrectly inserted by a dishonest insurance can-vasser. Obviously, the assured in those cases “could not escape theconsequences of his mm negligence ”, and the “ very distinguishedcase ” of Baicden v. London, Edinburgh and Glasgow Assurance Co. 3did not therefore apply. I respectfully agree with tiie judgment of theHigh Court of Madras in Kulla Animal’s case G that in a situation suchas has arisen in tho present case, the Company cannot succeed withoutproof that the questions and the impugned answers were correctlyinterpreted and recorded by the Company’s agent.
In this country, people are becoming increasingly aware of the advanta-ges of making family provision through life insurance, and many honestpersons proposing to avail themselves of these benefits are handicappedby their inability to read or write the language in which the preliminarydocuments are drafted by insurers. The legal relationship of the insuranceagent vis a vis his employer on the*one hand and the illiterate applicantfor insurance on the other therefore becomes vitally important-. Theagent generally has no authority to conclude the contract of insurance,but the illiterate applicant is prima facie entitled to assume that theagent has authority at least to explain the meaning of the questionscontained in the documents and to put the answers when given into
'1 (1S53)4 II. L. C. 431.'{1920) 2 K. B. PIG.
5 {1923)129 L. T. 673.'(lSll) 2 Q. B. 534.
3 {1902)1 K. B. 516.•A. I. R. (1954) Mad. G3G.
proper shape. Macgillivray’s Insurance Imw (4th ed.) paras 925 and926. If tho Ian- does not protect tlio illiterate man to this extent, thoimpar congress us—condemned by Lord Dunedin in GlicTcsman’s case 1—between an insurance agent and “ a wretched little (person) who couldneither read nor write ” would bo fraught with danger to the lattor.
In the presont case, the completed documents, whon rccoived in Bombay,must have made it clear to the Company that the deceased did not under-stand the language in which the questions were addressed to him ; itmust have been equally apparent that their own agent in Ceylon wasthe person who interpreted tlio questions, reduced his answers intowriting, and explained tlio stipulation that those answers would formthe “ basis of the contract ”. In these circumstances, the Court shouldrefuse to declare tho contract void in the absence of proof that the inter-preting agent's functions had been properly discharged. I cannot agreewith the argument that, in such a situation, tlio plaintiff’s only remedywas to obtain a rescission of tho contract on tho basis of some misunder-standing, and to claim a refund of any premia previously paid undertho policy. The correct analysis seems to bo that the assured and thoagent of the insurance Company were in truth ad idem, but we do notknow what precisely they wore ad idem about in relation to the specialwarranties relied on by tho Company'. Issue 4 must therefore be answeredin favour of tho plaintiff.
There remains the Company’s final contention that we should reversethe learned Judge’s conclusions of fact on issues 3 and 4, and to hold thatDr. Shenoy’s evidonce and Koclichakan’s evidence ought to bo believed—in which event the deceased’s answers in tho proposal form and PersonalStatement must have been false to his knowledge in many' respects.Mr. Nadcsan, who argued this part of the Company’s case, subjected thojudgment under appeal to microscopic analysis. It is certainly a pitythat tho dates of trial were unduly spread out, and some of the reasonsgiven for rejecting the evidence of Dr. Shcnoy are perhaps less convincingthan others. After all, no judgment, when meticulously dissected,will be found to be completely beyond criticism. But, generally speaking,I think it can fairly be said that the learned Judge’s conclusions aro notvitiated by substantial misdirection. Bearing in mind the well-knownprinciples laid down by Lord Greene in Yu ill v. Yuill 2 and by LordThankcrton in Tl'aff v. Thomas 3, I cannot accept the argument that thefindings to which the Company takes exception were “ so clearly wrongthat the appellate tribunal’s judgment of fact should bo substituted forhis ”. As to whether, if I had enjoyed the advantage of seeing and hearingtho witnesses for myself, I woidd have taken a different view of the meritsof the case, it is idle to speculate. But there is no reason for holding thatthe canvasser Kair, who made a favourable impression on the trial Judge,ought to have been disbelieved—particularly when Sivasubramaniamwas not called to contradict him. The acceptance of Nair’s evidencerules out the possibility that it was not the deceased but some healthy
1 (1027) A. C. 139.1 (1943) P. 13.
(1947) .1. C. 1S1.
man, fraudulently impersonating him, who had been taken before Dr.Sivapragasam ; indeed the Company concedes that what purports to bothe signature and handwriting of “ K. Aliaiued ” in the relevant docu-ments were in fact his. Why should one assumo that Dr. Sivapragasam,who was specially directed to seo that the declaration was mado andsigned in his presence, had failed in this duty ? Dr. Sivapragasam helda responsible position in the Government Medical Service in November1947, and continued to enjoy the Company’s confidence until ho died.If his report was made after an honest medical examination, Dr. Slienoy’sversion cannot be accepted. There was no evidence to justify the assump-tion that Dr. Sivapragasam was the kind of man who would havo per-formed his professional duties dishonestly or even lightly. It is not theplaintiff's fault that the Company’s decision to repudiate liability waspostponed for so long that Dr. Sivapragasam died in the interval. Onecannot understand why Dr. Sivapragasam was not asked his views onDr. Shenoy’s version as soon as the letter D2 was received in February1949.
I would allow the appeal and order a decree to be entered in favourof the plaintiff as prayed for, with costs in both Courts.
Fernando, J.—.
Counsel for the respondent Company at the appeal have argued quiteinsistently that the state of health of the assured had been proved to besuch that the trial Judge should have held that the assured gave incorrectanswers to the questions put in the following items in the personal state-ment D1 :—
3A. for the reason that he had suffered from swelling of the kneesand joints shortly before the date of the proposal.
3D. for the reason that ho did in fact suffer from hernia.
9A1 and 9A2. for the reason that to his own knowledge he sufferedfrom various complaints in August and September 1947 andwas under medical treatment in Ceylon and in India.
It was also argued that, quite apart from the consultation ofDr. Narayannen for influenza in 1944 or 1945, the treatment in" 1947should have been disclosed in cage 14 of tlio proposal form, and thatthe failure to do so entitled tho Company to a finding that the answergiven was incorrect. Counsel did not press for a finding in their favourupon the third issue framed at the trial, but only for the reason that thealleged non-disclosures relevant to that issue were the same as are relied'upon to establish the incorrectness of the answers given in the items towhich I have just referred.
ICS
Upon this part of tho case, the criticism offered by Counsel for theCompany is that the trial Judge failed to recognise the importance oftwo planks of the prosecution case, namely, (a) that- it was Ur. Shenoy,mul not Dr. Narayanncn, who attended on the assured during the threeweeks of his last illness, and (6) that during the months of August andSeptember, 1947, the assured had written a number of letters from Indiato one Kochakan in Ceylon -which disclosed that the assured was thensuffering from various ailments and was then under medical treatment.Wo were invited to say that both these facts were conclusively provedat the trial, and that, considered together with certain other parts ofthe evidence, they established the incorrectness, if not also the deliberatefalsity, of some of the answers in Dl.
There was firstly Ur. Shcnoy’s own evidence that he treated the assured
from about the middle of [February, until his death ” on 21st March194S, at first at Kddakat and later at Cannanore, visiting him daily,and being present at his bedside two hours before his death. During theentirety of this period Ur. Shenoy did not see Ur. Narayanncn attendon the patient. There was then the evidence of Ur. Miller that he lxadbeen called in consultation by Dr. Shenoy and had examined the assuredon the day of his death as well as on an occasion about 10 days before.The copy of the death registration entry (D17A) shows that the deathwas registered on 22nd March 194S at the Cannanore Municipal office,that the name of the medical attendant was entered as Ur. L. S. Shenoy ”and that the age as furnished was 55 years, the same as that estimated byUr. Shenoy according to his evidence ; copies of this entry were attachedto applications made by the widow of the assured to this Court in July194S and to the District Court in August- 194S in connection with theadministration of the estate of the assured. The position taken by theappellant with regard to this entry is that there were two errors in it—the first (as to age) was corrected (U20) in July 194S by the StationarySub-Magistrate of Cannanore upon application (D1S) made by Andutty.(lie brother-in-law of tho assured, and the second (as to the name of themedical attendant) was corrected by flic same Magistrate. (U22) inSeptember 194S, upon the petition of the widow and Ur. Naraya mien'sname was substituted. The contention of the Company is that the correc-tions were sought only because Dr. Shenoy had (about a month afterthe death) declined to accede to a request by Andutty for a certificateinforming the Company that coronary thrombosis was the cause of death,and that the need for a correction as to the name of the doctor becameurgently apparent only when the Company had early in August 194$(P25) called for an extract from the deatli register. It was argued forthe Company, not only that the death registration entry confirmed thoevidence of Dr. Shenoy of the fact that he attended, but also that thecorrection was a device employed to support the false position thatDr. Narayanncn had been in attendance. With respect, the secondpart of tho argument is difficult to appreciate. The Company reliesupon the widow’s application for the correction ns being confirmation ofUr. Shcnoy’s evidence of tho attempt to induce him to certify to anuntrue statement as to the cause of the death of the assured. If there
FJEKXANDO, J.—Mrtrfyn Ummn v. The Oriental Government Security 150Life ,4.«i/mncc Co.y Ltd.
were extrinsic circuinstances suggesting an inference that the applicationto correct the entry was based upon false averments, then undoubtedlythe making of such an improper application would be strong corroborationof 3)r. .Siienoy’s evidence. Hut here flic only available means by whichwo can test the propriety of the motive behind the application consistsin the evidence of Dr. Shenoy himself. I thought at first that Counselfor the appellant justifiably complained that the trial Judge did notaddress his mind to the fact that the orders for correction were ruadobv a judicial officer who, in one at least of the orders (as to age) statedI have made inquiries and I was satisfied that tlie age of the deceasedwas 45 years ”, and who in making the later order which now turns outto he so important, must he presumed to have been judicially satisfiedas to the facts which rendered his order necessary. It is significant thatthe petition by the widow (D21) contained this statement :—
” J)r. Jj. S. .Shenoy did not treat him. The Doctor who treated himwas Dr. M. Xarayanncn of Tellichory. If you verify this from the saidDoctors, they will testify the truth of this statement.”
Counsel for the Company relied on section 35 of the Evidence Ordinance,but in my opinion the section gives greater supj^ort to the appellant.So far as the trial Judge was concerned, the entry that was relevant wasthe entry as corrected and he was quite entitled to assume by reason ofthe Magistrate’s orders that what were relevant were the particularsin the corrected entry. So that on fuller consideration I have little doubtthat the Judge realised that the original entry was of little or no availto the Company as corroboration of Dr. Shenoy unless it could beshown aliunde that the Magistrate was actually misled by falsemisrepresentations.
In support of the proposition that Dr. Shenoy alone attended on theassured, it has been further submitted that the evidence of Dr. Narayali-nen as to his attendance on the assured is demonstrably false. In thecertificate P5 which he issued on 15lh August, 194S, Dr. Narayanncnset down the cause of death as ‘ coronary thrombosis ”, but he describedthe symptoms as “ anaemia, palpitation and weakness”, which latter,the Company argues, are not the characteristic symptoms of coronarythrombosis. Where further particulars were required, he referred (inPJS of 7th September, 194S) to the following symptoms :—
c" The blood pressure was very low (100mm) systolic and he was ina collapsed condition with pain over the chest, with dyspnoea nauseaand vomiting. The patient was restless with a sensation of oppression.There was cynosis, skin cold with profuse sweating and the pulse wasimperceptible.
Dyspnoea was on the increase.”
In Ids' evidence in chief, the doctor omitted to mention some of thesymptoms described in P2S, and ho made good the omission only in thecourse of cross-examination.■
Dr. Narayannen admitted in evidence that lie had consulted a medicaltext book and his diary before lie •wrote P2S. The diary was apparentlyone kept for income tax purposes : his explanation that an entry asto fees is more readily accepted by the income tax authorities whensupported by details of a patient’s symptoms is scarcely credible ; andtho failure to produce the diary deprived the Court of tho only reasonablemeans of testing so curious an explanation. He tried to account fortho omission from Po of important symptoms by stating that he wroteit without consulting his diary, and when pressed upon the mattersaid that he “ thought anything was good enough for the InsuranceCompany ”.
Dr. Narayanncn’s need to consult a text book is not so difficult toappreciate : ho has treated only a fen- cases of coronary thrombosis,each with tho settled expectation that immediate or very early deathwas inevitable, and this particular case was no exception. Pur therm ore,although Dr. Narayannen observed that the assured was continuous^screaming and writhing with pain, his personal convictions as to thefatal effects of morphia with heart patients, despite the contrary opinionsof text book writers, prevented him from administering even small dosesof that drug. He did not think fit to call in another doctor, even thoughsuch a practice was usual and though the family could well afford thecost of a second opinion. Although the doctor observed that the patientwas semi-conscious during the whole period, ho nevertheless consented,upon the patient’s insistence, to his removal from Eddakat to Cannanoreon 19th March at the risk of death during the journey.
These and other features of tho evidence of Dr. Narayannen renderedit highly improbable, either that he could have made a correct diagnosis,or that he was aware of the corroct treatment of thrombosis, even iffortuitously diagnosed ; and they amply justify tho view taken by thetrial Judge that "it is utterly impossible to act upon his evidence withany degree of confidence ”. But considering that much of what is un-satisfactory in his evidence can be reasonably accounted to ignoranceof or at least unfamiliarity with the subject of thrombosis, I am unableto agree with Counsel for the Company that the trial Judge shouldnecessarily have concluded that the witness did not ever attend on theassured during the relevant period.
The learned Judge rejected the evidence of Dr. Shonoy in identicalterms. It was argued that his evidence (unlike that of Dr. Narayannen)not being intrinsically false should not have been rejected 11 only upona mere reading of it ”, and that the specific reason stated as tho groundfor its rejection was only that the condition of the patient in Februaryand March as observed by Dr. Shenoy did not justify the inferenceswhich he purported to make as to the state of health at the time of theproposal. While conceding to some degree that the Judge may havebeen justified in declining to accept Dr. Shcnoy’s opinions as to thepatient’s state of health in November, 1917, Counsel argued that a merereading of Iris evidence did not demonstrate the falsity of two statementsin tho evidence of Dr. Shenoy, namely, (u) that ho did attend on the
patient regularly during tlio last illness, and (6) that the patient madethe admissions reported to the Company h}' Dr. Shcnov’s letter D3 ofSth June, 1949 :—
“That lie had swelling of the legs for about three months prior toFebruary, and that ho got serious from Colombo, and therefore hadto fly to Ma dr as in a plane, and then to Edclahat by train. He hadbreathlessness, and there was difficulty in passing urine. The motionswere scanty. Ho never reported to me the previous history of rheu-matic fever. He told me that he had this swelling some six monthsprevious to the recent illness and that he was treated by a nativephysician.”
What wo are asked by Counsel for the Company to say in appeal is thatDr. Shenoy must necessarily have been believed by the trial Judge whenho stated that these admissions were made, and that these admissions,either by themselves or together with admissions alleged to have beenmade by the assured in certain letters alleged to havo been written to thewitness Kochakan, demonstrate the inaccuracy if not also the falsehoodof various answers given in Dl.
The learned Judge clearly appreciated that it would bo a groat advan-tage to ascertain which of the two doctors was the medical attendantduring the relevant time. But he was faced with a situation where twoprofessional men gave completely irreconcilable versions on a simplequestion of fact, so that to believe the one was to brand the other a per-jurer. In other circumstances, it would have been his duty to choosebetween the two, however unreliable the evidence of both. In this case,however, what was important was the state of the assured’s health atthe time of the proposal, and there was other material upon which to forman opinion as to his health, namely, the evidence of the canvasser Nairand the report of the medical referee Dr. Sivapra-gasam made on 30thNovember 1947 in the proposal form. I feci quite unable to say inappeal that the Judge erred in acting upon that material and in ignoringcompletely the evidence of both the other doctors.
Dr. Shenoy "s evidence was not rejected solely because he was contra-dicted by Dr. Narayanncn ; a stronger reason was that acceptance of thetruth of his evidence would necessarily have led to the inference thatDr. Sivapragasam was either a knave or the victim of a clever fraudpractised by persons now unknown. Here again, having regard toDr. Sivapragasam’s standing in the medical profession in Ceylon and tothe responsible office which he held in 1947, the Judge eoukl not fairlyhave entertained any such inference unless lie was forced to do so byreliable evidence as to tho actual circumstances in which the medicalexamination of the assured was conducted. The failure of the Companyto call its agent Sivasubramaniam made it obvious that thocircumstances would not have supported such an inference.
It is useful in this connection to consider certain relevant dates. Noticeof the death was given to the Company in Juno 194S (PIG) ; tho claim
forms were furnished in July 194S, and Dr. Narayannen’s certificateas to tho cause of death in the same month (Po) ; the same doctor’sexplanatory letter (P2S) was written in September 194S ; thereafterno further queries or complaints whatever were made by tho Companyuntil they wrote the letter of repudiation (P2) in August 1950. TheCompany contacted Dr. Shcnoy towards the end of 194S, and he statedto them on 5th February 1949 (D2) that he had attended on the assuredand in June 1949 (D3) that the assured had made certain admissionsas to his state of health. Although Dr. Sivapragasam was alive untilJuly 1950, there is nothing to show that the Company made any inquiriesof him during tho IS months which elapsed after Dr. Shenoy’s first letter,inquiries which would have greatly assisted both the Company and theCourt. Moreover, if the plaintiff had been informed earlier of theCompany’s intention to repudiate, her action might have been filed ata time when Dr. Sivapragasam would have been available as a witness.The Company had, at tho latest in Juno 1949, all tho information uponwhich it subsequently repudiated the claim in August 1950, but theclaimant was given no inkling in the meantimo of the difficulties in storefor her. In these circumstances, it was quite pardonable for her counselto suggest that the decision to repudiate was only taken after it wasknown that Dr. Sivapragasam was no longer alive to confirm thestatements in his medical report.
Having regard to the evidence of the canvasser Nair which thelearned Judge chose to believe, there were no suspicious circumstancesattendant on the medical examination by Dr. Sivapragasam in November1947, and doubt could only have been cast upon his cvidonco by the othereve-witness Subramnniain who was the Company’s agent. The- onlye-xplanation offered by the Company for tho failure to call this agenlwas the bare allegation by counsel that there must- have been a deceptionto which the agent also was a party and that he would therefore- obviouslyhave been an adverse witness. X feel quite- unable to countenance thisallegation against a person who, right up to the time of the terminationof the trial in October 1953, continued to function as the. Company'sagent in this country. But even if the. Company laboured under the-misfortune that they wore, unable to rely upon the. evidence off heir ownjiirpiit, it would bo unreasonable to take a mere suggestion of his dishonestyinto account- to the prejudice of the plaintiff.
What the learned Judge was in substance invited by the Companyto do upon Dr. Shenoy’s evidence was to form scriousty adverse inferencesas to the conduct- of two persons who arc no longer alive to defend theirinterests. Dr. Sivapragasam would have been able to explain his conductto the Company but for the failure to communicate with him when he wasalive ; he might have, been able to explain his conduct to the Court, butfor tho failure to repudiate this claim within a reasonable time. TheJudge had no explanation before him for cither failure and I think ita fair observation that- the Company had only itself to blame if theJudge decided on the faith of Dr. Sivapragasam’s certificate that theassured enjoyed perfect health in 1947 and that accordingly the storyof contrary admissions to Dr. Shcnoy had necessarily to be rejected.
Tlic remaining evidence relied upon by the Company in proof of theassured's ill-health at the time of the proposal consisted of letters PG,PS, P9, P10 and Pll alleged to have been written to one Kochakan inColombo by the assured from India. Kochakan had apparent^ beena close business friend of the assured before his death and had jointlypurchased with him two houses of considerable value, lint differencesarose thereafter between Kochakan and the relatives of the assured, somuch so that he was sued by the present plaintiff in the Pistrict Court-of Colombo on a claim of Ks. 10.000 and judgment was entered againsthim. That action was fixed for trial on 11th October, 195 f, and Kocha-kan’s name came on the Company's list of witnesses in this case for thefirst time on the JOth October, 1951, together with the names of onePr. T. Sivapragasam (not of course the medical referee) and ayurvedicPr. Abdul Kahiman. It was still later that the Company listed theletters which Kochakan would produce. One of the letters (PS) referred(according to Kochakan) to this ayurvedic physician who was in Indiain August 1947 and his name was presumably placed on the list ofwitnesses in order to support the letter DS and Kochakan’s oral evidencethat- this physician luid attended on the .assured. But the Companydid not ultimate!}* call this physician or even Pr. Sivapragasam whoaccording to Kochakan had attended on the assured. Another of theletter's (C9) refers to a draft for Rs. 2,000 which according to Kochakanwas sent to the assured in India through the Imperial Bank ; but despitethe fact that the Exchange Control requires careful chocks to bo keptas to remittances abroad, no evidence was adduced at- the trial to supportKochakan’s bare word that- he did post the draft.
Kochakan admittedly was not a careful business man, and bad toadmit that in a former case he professed that lie had no proper plac-e tokeep btishtes-'i books and documents. That being so, it is strange that heshould have retained from 1947, until late in 1951, inconsequential letterslike those he produced. Tt is abundantly clear that at the lowest he wasquite prepared to play the part of a sneak against t-he plaintiff in revengefor her suing him in an action which was ultimately successful, andindeed the Company’s counsel quite rightly stated that his evidence wasunworthy of credit, without corroboration. Called as he was to corro-borate 77r. Rhenoydlie latter's evidence was no corroboration of Kochakan.According!}*, the only element of corroboration consisted in the factthat certain of the statements in the letters did refer to events whichactually took place at the time they were written; but the plaintiff'svery argument was that the introduction into the letters of factuallycorrect statements was necessary to support- the claim that they weregenuine. The witness Mamno, the brother of the- plaintiff, was confident-that the assured never signed his name on private letters in English anda glance at the actual signatures on these letters is sufficient to show that-there is nothing characteristic about these signatures which would enablea person like Kochakan to identify them. In the face of the contradictionby 3famoo and in view of the suspicion with which Kochakan’s evi-dence had necessarily to be regarded, the Company could not-, withoutcalling some expert witness, have reasonably expected the learnedJudge to hold that the letters were actually written by the assured.
The considerations to which X have referred lead me to conclude thatthe learned District Judge rightly declined to hold in favour of theCompany upon the alleged state of health of the assured at the time ofthe proposal and his alleged admissions as to ill-health and treatmentin 10X7. These same considerations woidd at the lowest prevent mefrom holding as a Judge of appeal that the District Judge shouldnecessarily have found in favour of the Company on those matters.
There is nothing which I can usefully add to what my brother Gratiaenhas written upon the important questions of law raised by the appellant.I respectfully agree with his judgment on those questions and with theorder ho proposes.
Ajipcal allour/1.