Skip to Content

Colonial Cases

Joly v. Sun Life Assurance Co. of Canada, 1899

[life assurance]


 

Joly v. Sun Life Assurance Co. of Canada

Supreme Court for China and Japan
Hannen CJ, 19 May 1899
Source: North China Herald, 22 May 1899


 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 19th May

Before Sir Nicholas J. Hannen, Chief Justice.

JOLY v. SUN LIFE ASSURANCE CO. OF CANADA.

  This was a sitting for the hearing of certain applications regarding the suit pending between Mrs. Clara Agnes Joly and the Sun Life Assurance Company of Canada. Mr. H. P. Wilkinson appeared for the plaintiff, and Mr. W. A. C. Platt (Messrs. Stokes and Platt) with whom was Mr. D. McNeill (Messrs. Dowdall, Hanson and McNeill), for the defendants.

  Mr. Platt in making the first application, said it arose out of a summons taken out by the defendants for leave to amend the pleadings. Regarding the first paragraph of their answer, the defendants originally admitted paragraphs 1, 2 and 5 of the plaintiff's petition. They now desired to add to that admission paragraphs 3 and 4, with the following words: "And to paragraph 3 they admit that a contract of assurance was entered into between them and the said Henry Bencraft Joly and that an interim receipt was issued by them to the said Henry Bencraft Joly, but with regard to the terms of the said contract they beg leave to refer to the said interim receipt itself and the application and policy therein referred to. The defendants deny the allegations contained in paragraph 6 of the said petition."

  The plaintiff in paragraph 3 of her petition set out one of the terms of the contract and acknowledged there were other terms by saying inter alia, and the proposed amendment of the answer was merely to make clear the defendants' position. The plaintiff pleaded a contract and had only set out one of its terms, acknowledging there were others. He submitted that the proposed amendment was a reasonable one and His Lordship would be satisfied that justice demanded it should be done, whilst it would not be to the prejudice of the plaintiff. It merely set out in plainer language one of the real issues between the parties.

  With regard to the second amendment asked for, at the end of paragraph 2 of the answer, the word "policy" was used, and it was proposed to substitute for that, the words, "said contract of assurance." It was merely a verbal alteration and could not prejudice the plaintiff in any way. 

  The third amendment was the insertion of the following paragraph: "In answer to one of the said questions referred to in the preceding paragraph, namely, 'Has any company ever declined to insure your life or offered you a policy on a different plan or at a higher premium from that for which you applied?' the said Henry Bencraft Joly replied, 'Put back 12 to 14 years ago on account of ill health after long residence in tropics; never re-applied. Standard Home Office,' meaning thereby that he had applied direct to the Home Office of the Standard Life Assurance Co., and had been  put back by that company on such grounds, whereas in truth and in fact, as he the said Henry Bencraft Joly well knew, he had during the year 1888, applied to the Canton Agency of such company for an insurance on his life and not direct to the Home Office of such Company, and whereas in truth and in fact such application had been declined and he had not been put back as he alleged in his said answer.' 

  At the time the original answer was prepared the defendants were under the impression, from Mr. Joly's answer, that his application was made to the Home Office of the Standard and it was not until they subsequently obtained the information from home that they found unsuccessful application had been made to the Canton Office of the Standard Co.  There is no doubt that justice demanded the defendants should be allowed to make this amendment, and the plaintiff could not be prejudiced at all. The plaintiff had ample notice that the officers of the Standard were to be examined on the commission at home, and she was most ably represented there, and even if the proposed paragraph had been inserted in the original answer she would have been in no better position.

  With regard to the next proposed amendment, as originally drafted the answer said the Equitable Life Assurance Company of the United States and the New York Life Insurance Company had declined to assure his life, and he (Mr. Platt) now wished to add, "or, in the alternative, he did not communicate as it was his duty to so do, and as the fact was, that application had been made by him to the said companies or their agents respectively and afterwards withdrawn or not completed." 

  When the original answer was drawn the defendants believed that the companies referred to had declined to insure Mr. Joly, but when the New York and London commissions had been sent out it occurred to the pleader that possibly the life had not been declined, or possibly the application had been withdrawn. Therefore his firm had some correspondence in December last with Mr. Wilkinson, informing him that should the evidence take on commission warrant it the defendants would apply for an amendment of their answer.  He (Mr. Platt) thought his Lordship would come to the conclusion that justice demanded the defendants should be allowed to make that amendment, and that the plaintiff would not be prejudiced thereby.

  The last proposed amendment was at the end of paragraph 5, where it was asked to add the words, "or physicians." Already one physician had been examined on commission, and if it was proposed to examine any more ample notice would be given to the plaintiff. 

  Finally, here was a verbal alteration in paragraph 6 which followed if his Lordship allowed the amendment in paragraph 3.

  Mr. Wilkinson, opposing the application, said he did so on general and particular grounds. When the defendants came forward and applied for the commission to collect evidence they declared that Mr. Joly had been declined by other offices, that he suffered from heart disease, and that he had suppressed those facts. His Lordship ruled that as the defendants alleged actual fraud on two points they must be given every opportunity of proving it, and the commission was issued.

  Then he was practically told by the defendants that they were going to try and get any evidence they could. He found that the agent of the insurance company, who up to that time had never been mentioned in the pleadings, was examined, and Mr. Platt now put the paragraph forward as a mere amendment because he (Mr. Wilkinson) might have supposed that something of the kind would be done. He contended that the amendment should not be allowed for another reason. The defendants had lots of time to know why they were declining to pay the money. The said originally that their reasons were that Mr. Joly applied to two insurance companies, was refused, and he told lies about it. If the defendants thought it was part of their case that he had applied to those offices they should have put it in. They had, however, failed on that point and now wanted to take something else. 

   If a person put up a defence of fraud, he was supposed to know what it was, because fraud was something that affected a person's mind. The Company had already had plenty of opportunity of stating what deceived them, and yet they were now asking to amend their pleadings. Such a thing was vexatious and an abuse of the process of the Court. It was the rule to first get evidence and then draw the pleadings. Here the defendants first drew their pleadings, then got their evidence, and tried to make it fit in with their answer. 

  The learned Counsel concluded by referring to certain reported cases, including Lowther v. Heaver (L.R. Chan. Div. 41, p. 254), Moss v. Malings (L.R. Chan. Div. 33, p. 603), Steward v. N. Met. Tramways Co. (Q.B. 16, p. 108), and Lawrence v. Norreys (Appeal Cases 15, p. 210).

  Mr. Platt, in reply, said it had to be remembered that in having the action brought against them in Shanghai the defendants were in a difficulty, as their evidence had to be collected from New York and London.

  His Lordship, in giving his decision, said - Taking the application to insert the new paragraph first, I think that it would prejudice the plaintiff to allow that. As Mr. Wilkinson has pointed out, this is a case of fraud, and the defendants must have known exactly on what grounds they refused to pay the money, and they must have known, and ought to have known perfectly well, all the causes which made them at the time think there was fraud on the part of the plaintiff, and that therefore they would not pay the money.

  Then certain commissions are issued, and the plaintiff goes to meet those commissions under the impression that the case is exactly as it is stated in the defendants' answer. I do not think that something of an entirely new effect should be put in which would prejudice her, so that I think I ought to refuse the amendment with regard to the insertion of the new paragraph

  With regard to the other amendments, I think they more precisely define the issues that are raised between the plaintiff and the defendants, and upon this account, and because they do not appear to prejudice the plaintiff, they should be granted.

  I therefore grant all the amendments except the application to insert the new paragraph 3, and I think, under the circumstances, costs ought to be costs in the cause.

  Mr. Wilkinson said he now wished to apply for a commission to examine Dr. Chassaud, at present of Smyrna, who would very clearly state what Mr. Joly knew of his state of health, and what Dr. Thorne told him, (Mr. Joly) of his health. The allegation was that Mr. Joly knew he was suffering from heart disease and concealed it, whereas Dr. Chassaud's evidence would be that he (Mr. Joly) did not know that he was suffering from heart disease, and therefore could not have concealed it.

  M. Platt, interposing, said he had seen a written statement from Dr. Chassaud, and offered to accept it as evidence so as to avoid the trouble and expense of a commission.

  His Lordship, after conversation, made a note to the effect that Mr. Platt consented to Dr. Chassaud's sworn declaration being put in and treated as evidence, just as if it had been stated to the Jury and there had been no cross examination on it.

  Mr. Platt asked that certain exhibits in the possession of the Court might be sent to Chemulpo in order that they might be used at the Commission there.

  Mr. Wilkinson said he objected to those documents on the ground that they had nothing to do with the case at all.

  His Lordship - At the trial, when the commission is read out, you will object to those having been shown to anybody on the grounds you will then give? Well, we can argue that point when it arises.

   The Court then rose. 

Published by Centre for Comparative Law, History and Governance at Macquarie Law School