Scottish Court of Session Decisions

John M'Kechnie, carting contractor, 128 Stobcross Street, Glasgow, effected an insurance upon his own life with the Scottish Accident Insurance Company, Limited, 115 George Street, Edinburgh.

The policy, which was dated 24th January 1887, bore that “if during the continuance of this policy the insured sustains any bodily injury caused by violent, accidental, external, and visible means, then in case such injury shall, within three calendar months from the occurrence thereof, directly cause the death of the insured … the company shall pay to … his legal representatives the full sum of £1000 … provided always that this policy shall not extend to nor cover the death of the insured … arising from natural disease or weakness or exhaustion consequent upon disease or any surgical operation rendered necessary thereby, or arising from such disease, weakness, exhaustion, or surgical operation, although accelerated by accident.”

The said John M'Kechnie had suffered from kidney disease in 1883, 1884, 1886, and in the early part of 1887, but he was free from any active symptoms of that disease in October 1887. On Saturday 29th October 1887 he was thrown out of a Whitechapel cart in Glasgow and met with somewhat severe injuries, which confined him to his bed until the following Monday, when he was allowed by his doctor to go to a business meeting although told to rest as much as possible. He was laid aside from active work for several weeks in consequence of the accident, and upon 7th December 1887 kidney disease again manifested itself. He died upon 12th January 1888. The cause of death was certified as “Haematuria (Albuminuria).”

James Anderson and others, as M'Kechnie's trustees, brought an action against the said Scottish Accident Insurance Company to recover the sum of £1000 under the policy in consequence of the death, and pleaded —

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“(1) The said John M'Kechnie having effected an insurance upon his own life against accidents with the defenders, and having sustained injuries which caused his death, the pursuers, as his trustees and executors foresaid, are entitled to payment of the sum sued for.”

The defenders explained that the insured died from disease and not from the said accident. They offered, however, £13, 15s. in full of any claims under the policy, being the allowance due under the said policy for three days' total disablement and three weeks' partial temporary disablement caused to the insured by the accident in question, but without prejudice to a plea that the policy was void and null.

They pleaded, inter alia—“(4) The death of the insured having arisen from natural disease or weakness or exhaustion consequent upon disease (whether accelerated by accident or not), and liability on the part of the defenders for death so arising being excluded by the terms of the policy, the defenders are entitled to absolvitor, with expenses.”

The Lord Ordinary ( Fraser) allowed a proof, which established the facts stated above, and afterwards pronounced the following interlocutor:—“Finds that, as the said John M'Kechnie died from chronic Bright's disease of the kidneys, and not from the effects of the accident, although such disease was accelerated by the injury received from the accident, the defenders are not liable for the sum contained in the said policy as upon a death: … Finds that the said John M'Kechnie was in consequence of the fall from the cart totally disabled for three days, and partially disabled for nine weeks: Finds that the defenders are due to the pursuers the sum of £13, 15s., as allowance for such total and partial disablement, and for said sum of £13, 15s. decerns against the defenders in favour of the pursuers: Quoad ultra, Assoilzies the defenders from the conclusions of the action, and decerns: Finds the pursuers entitled to expenses down to the date of closing the record, and the defenders entitled to expenses subsequent thereto, &c.

“ Opinion.—It is clearly proved that the deceased John M'Kechnie was labouring under Bright's disease of the kidneys in a more or less acute form from August 1883 down to the time of his death. He was attended by medical men for this disease in August 1883, and again in December 1884, when the doctor found that the disease had become chronic; and again in February 1886, and again in June 1886—this last attack being a very serious one, and was expected by the two doctors who then saw him, viz., Dr Cameron and Dr M'Conville, to terminate in death. Again he was attended for the same disease in June 1887. The accident occurred on 29th October 1887, and after the best consideration which the Lord Ordinary can give to the irreconcilable opinions of the medical witnesses who were examined, he cannot hold that that accident caused, although it might, and in the opinion of the Lord Ordinary did, accelerate the disease of the kidneys which made its appearance on the 7th of December 1887, and terminated in death on the 11th of January 1888. The special clause freeing the company from responsibility, if the bodily injury from the fall was not the primary cause of death (though it accelerated it), must be given effect to. Whether the company would have been exempted from liability if there had been no such special clause is not very clear, provided it be held that the injury caused the acceleration of the death. This point arose in a Divisional Court in England in the case of Issit and Others v. The Railway Passengers' Assurance Company, January 18, 1889, 5 Times Law Reports, 194. The policy of assurance in that case said that the money should be payable if the assured ‘die from the effects of such injury.’ The injury received by the assured was a fall by which his shoulder was dislocated. He was taken home and put to bed, and died within a month of the accident. The fact of the shoulder being dislocated was not discovered till a week after the accident, on account of the swelling, when the dislocation was reduced by a consulting surgeon who was called in. A few days after this the assured was found to be suffering from pneumonia, and he died from that disease. Upon the question, whether the pneumonia was directly caused by the accident, it was found, upon a special case submitted by a referee, to whom the matter had been referred, that it was not, but that it was pneumonia resulting from cold. The award continued in these words:—‘I find that the deceased would not have died as or when he did if it had not been for the accident. He suffered great pain as a consequence of the accident, and was extremely restless and unable to bear his usual clothing, or any heavy or warm clothing on him. He was reduced by the accident to a state of debility, in which he was more susceptible of cold than he would have been but for the accident, and was also less able to resist the effects of any illness which might come on him. I find that the pneumonia from which the deceased died arose from his catching cold during his illness from the accident; that he caught the cold by being exposed in some way to cold air, but that such exposure could, on the evidence, only have been slight, and not such as would have caused his death if he had been in a normal state of health. I find that his catching cold, and the fatal effects of the cold, were both due to the condition of health to which he had been reduced by the accident. On the part of the executors it was contended that the words in the policy, “die from the effects of such injury,” were wide enough to include a death happening in the way hereinbefore described, and that the assured did “die from the effects” of the injury caused by his accident within the true meaning of the policy. On the part of the company it was contended that the policy only covered death caused immediately or directly by the accident. I find and award (subject, however, to the

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opinion of the Court in this special case) that the death of the said F. T. Isitt was not a death from the effects of the injury caused by accident within the meaning of the said policy, and that the said company are not liable to pay the sum of £500 assured by the policy, but are only liable to pay the sum of £12, 10s. tendered.’ The Court, consisting of Mr Baron Huddleston and Mr Justice Wills, held that the executors were entitled to recover from the company in respect of the death. The arbitrator had found that if, as a point of law, it was necessary that the accident should be the proximate cause of death, then the company was liable to pay. It was important to observe that the words in the policy were, that if the assured should ‘sustain any injury caused by accident,’ and should ‘die from the effects of such injury’ within three months, the company would be liable. There was then a distinction between cause and effect. The Court was of opinion that the natural intervening consequences should be considered, and, if so, the arbitrator's finding amounted to this—that the assured had died from ‘the effects’ of the injury. The cold which he caught, and which resulted in fatal pneumonia, was a natural consequence, and not anything external of an exceptional description. A man who lived some time after an accident could not avoid being exposed to some external conditions. If the natural consequence of the accident was death, the company were liable under their policy. It will be observed that in the case of Issit there was not the special clause about acceleration which occurs in the present case, and as that clause—although a very harsh and severe one as against the assured—is not in itself illegal, the defenders will escape liability.

That John M'Kechnie might have lived for some years had it not been for the fall from the cart—no doubt with intermittent attacks of disease of the kidneys—the Lord Ordinary considers very probable. Dr Cameron thought he ought to have died from the attack of 1886; but he did not, and the Lord Ordinary thinks that he might have survived for a long time the attack of December 1887 had his system not been weakened by the fall from the cart, and this opinion he holds, notwithstanding that Dr Cameron and Dr Grainger Stewart think to the contrary. But still the fact remains, that he did die in consequence of the disease of the kidneys, and the fall from the cart merely accelerated his death. It was not the primary cause of that ending; and the clause in the policy comes into play.

It is with reluctance that the Lord Ordinary comes to this result. He would have wished to have taken the same view as the Divisional Court in England did; but the language of the policy here is too explicit to a contrary effect.”

The pursuers reclaimed, and argued—They had proved the policy, the accident, and the death. That was enough. The death was prima facie caused by the accident. It lay with the defenders to prove it was not. The deceased may not have been a very robust man, and may have been predisposed to haematuria, but he was suffering from no disease when he met with the accident. The clause in the policy about acceleration upon which the Lord Ordinary had decided the case only applied where there was an existing disease at the date of the accident to be accelerated. Here there was none. It was set up by the accident, which accordingly directly caused the death within three months. To hold that a delicate man who had not very many years to live could not recover under such a policy would be to encourage a fraud upon the public. Such a policy was to be liberally interpreted in favour of the insured— Fitton v. Accidental Death Insurance Company, June 18, 1864, 17 C.B. (N.S.) 122; Winspear v. Accident Insurance Company, Limited, November 29, 1880, L.R. 6 QBD 42; Lawrence v. Accident Insurance Company, Limited, June 22, 1881, L.R. 7 QBD 216; M'Glinchy v. Fidelity and Casualty Company, 1888, American State Reports, vi. 190; Scott v. Scottish Accident Insurance Company, Limited, March 19, 1889, 16 R. 630.

Argued for respondents—If the accident in any way caused death, it was only by accelerating the disease, and the defenders were freed from liability by the clause about acceleration as the Lord Ordinary had held. It had not been proved, however, that there was any connection between the accident and the death. The haematuria did not show itself at once as it should have done if caused by the accident. It only manifested itself five weeks afterwards and in the way it had done at intervals for several years. Accordingly the pursuers had completely failed to discharge the onus which lay upon them of connecting the accident and the death.

At advising—