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I P . &F. 116. SHILLING V. ACCIDENTAL DEATH INSURANCE CO. 6 5 1

sponsible (a). There is no evidence, however, th at th e storm was of such a character ;but on the co nt ra ry . The pr esen t sewer was only constructed in 1856, an d ther e hasbeen no lapse of time sufficient to te st it s powers as to ordinary seasons. I t wouldhave been otherwise had it stood for six years, and then blown up.

The truth is, the question is not merely as to the sufficiency of the new sewerper se3bu t as to its junction with the old sewer, which is of a larger bore. And the

question is, whether the accident arose from that cause, and whether the damagearose from the new sewer having been constructed of insufficient dimensions withreference to the junc tion . If so, th e verd ict should be for the plaintiff.

Verdict for the plaintiff.

[116] Coram Erie, J., and a Special Jury.March 17th, 1858.

SHILLING V. THE ACCIDENTAL DEATH INSURANCE COMPANY.

[Prior proceedings with annota tion, 2 E & N. 42.](An insurance against death by accident is within the stat. 14 Geo. 3, c. 48, as to

interes t. An insurance hav ing been effected in the name and on the life of apauper , depend en t on his son for support rupture d and subject to fainting fitsHeld, that there was nothing in the life insured which falsified a declaration thatthe insured had not been subject to " epileptic or other fits" ; and that " there

was not any circumstance or information touching his occupation or habits oflife, with which the directors ought to be made acquainted, as rendering himpeculiarly liable to accident s " ; no r was his being driven ou t in a vehicle avoluntary exposure to " obvious risk," within the meaning of an exception onthose te rm s; but it appearing th at the son had caused his father to make th eproposal for the insu rance, and almost immediately afterwards caused him tomake a will, bequ eath ing to him th e benefit of i t ; and th at the son had paid t he

premiums : the ju ry were di rect ed that , if th ey believed it was procured by theson for his own use and benefit, and that in reality the insurance was his act,and not the father's, they should find for the defendants, on a plea founded upon thestatute 14 Geo. 3, c. 48, s. 1, and [a former verdict for the plaintiff having beenset aside as against evidence] they found for the defendants.)

This was an action by the administratrix of Thomas Shilling, on a policy of in-surance da ted J un e 11th, 1856, effected in the name of Jam es Shilling, his father, fortwelve months from th at dat e. The insurance was against death by accident, exceptsuch as migh t be caused by wanto n exposure to any unnecessary risk or peril. Theproposal , which formed the basis of the policy, contained a declarat ion tha t the in-sured was not subject to " epileptic or other fits," and that there was no circumstanceor information touching his habits of life with which the directors ought to be madeacquainted, as rendering him peculiarly liable to accidents.

Pleas : 3. That the declara tion in the policy referred to was false in these respects,th at the insured had been and was subject to fits, and was ru pt ur ed ; and th at thedirectors ought to have been, but were not, made acquainted therewith, as the samerendered him peculiarly liable to accidents.

4. That the defendants were induced to and did enter into the policy, and it waseffected and obtained, by and through the fraud and covin of the insured and of othersin collusion with them.

5. That the policy was in truth and in fact made by one Thomas Shilling, in the

name of James Shilling, but for the use and benefit and on the behalf of ThomasShilling himself, and not for the use or benefit of James Shilling; [117] and th atThomas Shilling had not at the time of making the policy, nor before and at the timeof the death of James Shilling, any interest in the hie of James Shilling, and therebythe policy was a gaming and wagering policy contrary to the statute (&).

(a) See Blyth v. The Birmingham Waterworks Company, 25 L. J., Exch. 212 ;Whitehouse v. The Birmingham Canal Company, 27 L. J., Exch. 25 ; and Ruck v.Williams, ibid.

(b) 14 Geo. 3, c. 48, s. 1, that no insurance shall be made on lives or any otherevent wherein the person for whose benefit the policy shall be made shall have nobene fi t; which, it has been held, mu st be a pecuniary benefit, so t hat a policy effectedby a father on the life of his son, he no t having any pecuniary interest therein, is void .Holford v. Kymer, 10 B. & C. 724,

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652 SHILLING V. ACCIDENTAL DEATH INSURANCE CO. 1*.&F.118.

6. That the death of the insured was effected by wanton and voluntary exposureof himself to obvious and unnecessary risk and injury.

Demurrer (a) and issue.M. Chambers, Lush and Smith for the plaintiff.Shee, Serjt., Hawkins and Bushby, for the defendants (b).[There had been a former trial,coramPollock, C. B., resulting in a verdict for the

plaintiff,set aside as against evidence (c).]In March, 1856, the assured life, James Shilling, an old man of seventy-five, whowas chargeable to the parish of Maidstone, where he received a shilling a week and agallon of meal, was sent by the parish authorities to reside with his son, ThomasShilling, at Mailing, they insisting that the son was bound to support him. The oldman was badly ruptured, and subject to " swimmings " and faintings, in which hewas liable to fall down.

The policy had been effected on the 11th June, 1856. The son had insured hisown life in the same office for 2000Z. The proposal for the present policy was chieflyin[118]the handwriting of the son, though it was signed by the father. The premiumswere paid by the son.

In the same month, June 23rd, the father made his will, leaving everything to hisson Thomas (though he had other children), and making him sole executor.

Shortly afterwards the son took the father out in a gig, and they were both founddead in the river Medway, on the banks of which, near the railway (which passes close

thereto), they were last seen in life. The plaintiff was the widow and administratrixof Thomas. The insurance on the son's life had been paid.

The cause was tried at Maidstone, at the Summer Assizes for 1857, before Pollock.C. B., when the jury found for the plaintiff (d), but the Court granted a new trial onthe ground that the verdict was against the evidence.

Sichermore, the referee, named in the policy, who had not been called at the lasttrial, was now called to prove that the father, while living at Maidstone, had talked ofinsuring his life.

Shee, Serjt., objected, that this was mere hearsay.Erie, J.Any evidence is admissible which tends to show that the father was the

real insurer.Shee, Serjt.This evidence is equally consistent with either view, tha t the policy

was for the benefit of the father, or of the son.Erie, J. It was not a mere declaration. It was a declaration with reference to

an act done ; and one of the most important acts in the man's life, which was doneafter making this consultation. It is not a question as to hearsay. It is evidenceof conversation prior to an act.

The evidence was accordingly admitted. The same witness proved that he hadnever been referred to by the company until after the death.

[119] Shee, Serjt., for the defence, proposed to prove an admission by some one,suggested to have been theplaintiff,as to the object of the insurance.

M. Chambers objected, that it should be traced to Thomas, or to his father James.Erie, J.The whole transaction originating in this conversation, that is evidence

for the jury that the man who completed it was the man with whom the conversationwas held, which resulted in the contract. The policy being traced to Thomas, isevidence that the conversation which originated the transaction was with him.

The witness stated that a person about thirty-five years of age, who stated that heresided at Mailing, and was a builder (which answered to the description of the sonThomas), called at the office in London in May, 1856, to inquire about insuring the lifeof " a friend."

There was a local agent at Mailing, to whom, however, the son did not have recourse.The father was described in the policy as " out of business," and in the will as " gentle-man." The proposal for both policies had been sent to and returned by one individual ;and the premiums for both policies had been paid by the son in one cheque on his

banker.

(a) On the demurrer the defendants had judgment. See 26 L. J., Exch. 266.(6) There had been a view, and one of the jurors who had the view was objected

to, on the part of the defendants, as having expressed a strong opinion on the case.The objection was heard before the Judge in his private room, and the juror wasdirected to withdraw.

(c) See 27 L. J., Exch. 16. (d) Vide supra.

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1 P. & P. 120. SHILLING V. ACCIDENTAL DEATH INSUBANCE CO. 6 5 3

I t was proposed to call witnesses to swear th at t he course of bus iness in the officewas only to resort to the referees when the question was as to the identity of thepa rt ie s.

Shee, Serjt., obje cted ; bu tErie, J., admitted the question.It was proposed to ask as to a statement made by the plaintiff, after the

deaths, as to the object of the insurance; she having denied the statement on herexamination.

M. Chambers objected, as the widow sued in a representative character, and couldnot bind the children, the next of kin, whom she represented.

[120] Erie, J., said the objection, on that ground, was novel, and hardly sus-tain able : supposing the question was admissible to show th e real object of th einsurance.

M. Chambers urged that it was not so, for she had denied the sta te me nt ; and itwas the fact of inter est which was in issue, not her sta tem ent as to it. The questionwould be irrelevant and cause a collateral issue wholly immaterial.

Erie, J., thereupon doubted ; and the question was withdrawn.Evidence was offered for the defendants, of a declaration by Thomas, the son,

when the father was not present.M. Chambers objected that it would not be good evidence, as the statement was

not brought to the knowledge of James.Erie, J.The question in the cause is, whether the insurance was effected bona fideby Ja me s for his own benefit , or, subs tant ia lly, by Thomas in the nam e of Ja me s, butnot for his benefit. Eve ryth ing , therefore, is admissible which was done by Thomas ;and words are often acts. The question is not open to the objection aga inst h earsay.It is no t hear say. I t is a question as to an act done. One asks ano the r to atte st adocument, or to advance a sum of mo ne y; those are not merely words, bu t acts.So, here ; the evidence is admissible.

The evidence was, tha t the son had said he was going to insure his fathe r's lifeand his own ; and t ha t, as he (the son) was bound to supp ort him, i t would be adesirable provision for himself.

Mr. De Morgan was called to show that very many aged persons were ruptured.Shee, Serjt., objected.Erie, J., doubted the relevancy of the evidence, but admitted it valeat quantum.The witness stated that one out of every four persons [121] above sixty were

ruptured, and that it did not render them more liable to accidents, though he admittedth at it might make it more difficult to get out of the way in case of an accident. Thewitness also stated that fainting fits were not deemed " fits " by the faculty.

Erie, J., ruled that upon this evidence the clause in the declaration as to fits did notapply, and that the death was not shown to have been occasioned by voluntaryexposure to obvious risk of injury.

Shee, Serjt., thereupon relied on the plea raising the question as to interest underthe statute, contending that the evidence showed that the insurance was really byThomas.

Erie, J.There is now no plea for the jury to consider but that which raises thequestion whether the policy was in tr ut h Thomas's. The statut e (a) renders a policyvoid when it is effected by a party having no pecuniary interest in the life of theassured. Therefore if th e policy had been effected by the son in his own nam e itwould have been obviously void. An insurance against deat h by accid ent is within

the st atut e. And the question is, whethe r th e insurance was not in effect the sameas if it had been effected by the son in his own nam e on his father 's life ? If it werefor the sole benefit of the son, it does not matter that it was with the full concurrenceof the father, and that it was the father's free act, and the case would come within thest atut e. The jur y are at libe rty to look at the will, and judge if it were a pa rt of theplan by which the son was to take th e benefit of the policy. Was the fa ther und erth e influence of the son when he made the will ? If so, it might reason abl y be con-sidered as one of the steps in the scheme by which the son was to realize the benefit ofthe policy. If the jur y thin k th at the policy was in tr ut h made by Thomas, thoughin the name of the [122] father, and for his, the son's, own use and benefit, they shouldfind for the defendants, if otherwise, for the plaintiff.

Verdict for the defendants.

(a) Vide supra, p . [117 (&)].