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sponsible (a). There is no evidence, however, that the storm was of such a character ;
but on the contrary. The present sewer was only constructed in 1856, and there has
been no lapse of time sufficient to test its powers as to ordinary seasons. I t would
have 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 sewer
per se3 but 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 damage
arose from the new sewer having been constructed of insufficient dimensions with
reference to the junction. If so, the verdict should be for the plaintiff.
Verdict for the plaintiff.
[116] Coram Erie, J., and a Special Jury.
March 17th, 1858.
SHILLING V. T H E ACCIDENTAL DEATH INSURANCE COMPANY.

[Prior proceedings with annotation, 2 E & N. 42.]

(An insurance against death by accident is within the stat. 14 Geo. 3, c. 48, as to
interest. An insurance having been effected in the name and on the life of a
pauper, dependent on his son for supportruptured and subject to fainting fits
Held, that there was nothing in the life insured which falsified a declaration t h a t
the insured had not been subject to " epileptic or other fits" ; and t h a t " there
was not any circumstance or information touching his occupation or habits of
life, with which the directors ought to be made acquainted, as rendering him
peculiarly liable to accidents " ; nor was his being driven out in a vehicle a
voluntary exposure to " obvious risk," within the meaning of an exception on
those t e r m s ; but it appearing that the son had caused his father to make the
proposal for the insurance, and almost immediately afterwards caused him to
make a will, bequeathing to him the benefit of i t ; and that the son had paid the
premiums : the jury were directed that, if they believed it was procured by the
son for his own use and benefit, and t h a t in reality the insurance was his act,
and not the father's, they should find for the defendants, on a plea founded upon the
statute 14 Geo. 3, c. 48, s. 1, and [a former verdict for the plaintiff having been
set aside as against evidence] they found for the defendants.)
This was an action by the administratrix of Thomas Shilling, on a policy of insurance dated June 11th, 1856, effected in the name of James Shilling, his father, for
twelve months from t h a t date. The insurance was against death by accident, except
such as might be caused by wanton exposure to any unnecessary risk or peril. The
proposal, which formed the basis of the policy, contained a declaration t h a t the insured was not subject to " epileptic or other fits," and that there was no circumstance
or information touching his habits of life with which the directors ought to be made
acquainted, as rendering him peculiarly liable to accidents.
Pleas : 3. That the declaration in the policy referred to was false in these respects,
t h a t the insured had been and was subject to fits, and was ruptured; and t h a t the
directors ought to have been, but were not, made acquainted therewith, as the same
rendered him peculiarly liable to accidents.
4. That the defendants were induced to and did enter into the policy, and it was
effected and obtained, by and through the fraud and covin of the insured and of others
in collusion with them.
5. That the policy was in t r u t h and in fact made by one Thomas Shilling, in the
name of James Shilling, b u t for the use and benefit and on the behalf of Thomas
Shilling himself, and not for the use or benefit of James Shilling; [117] and t h a t
Thomas Shilling had not at the time of making the policy, nor before and at the time
of the death of James Shilling, any interest in the hie of James Shilling, and thereby
the 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. 2 5 ; and Ruck v.
Williams, ibid.
(b) 14 Geo. 3, c. 48, s. 1, that no insurance shall be made on lives or any other
event wherein the person for whose benefit the policy shall be made shall have no
benefit; which, it has been held, must be a pecuniary benefit, so that a policy effected
by a father on the life of his son, he not 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 exposure
of 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, coram Pollock, 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, who
was chargeable to the parish of Maidstone, where he received a shilling a week and a
gallon of meal, was sent by the parish authorities to reside with his son, Thomas
Shilling, at Mailing, they insisting that the son was bound to support him. The old
man was badly ruptured, and subject to " swimmings " and faintings, in which he
was liable to fall down.
The policy had been effected on the 11th June, 1856. The son had insured his
own life in the same office for 2000Z. The proposal for the present policy was chiefly
in [118] the handwriting of the son, though it was signed by the father. The premiums
were paid by the son.
In the same month, June 23rd, the father made his will, leaving everything to his
son 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 found
dead 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 administratrix
of 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 on
the ground that the verdict was against the evidence.
Sichermore, the referee, named in the policy, who had not been called at the last
trial, was now called to prove that the father, while living at Maidstone, had talked of
insuring 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, that 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 done
after making this consultation. It is not a question as to hearsay. It is evidence
of conversation prior to an act.
The evidence was accordingly admitted. The same witness proved that he had
never 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 the plaintiff, 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 conversation
was held, which resulted in the contract. The policy being traced to Thomas, is
evidence 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 he
resided at Mailing, and was a builder (which answered to the description of the son
Thomas), called at the office in London in May, 1856, to inquire about insuring the life
of " 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 " gentleman." 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 was
directed to withdraw.
(c) See 27 L. J., Exch. 16.
(d) Vide supra.
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I t was proposed to call witnesses to swear that the course of business in the office
was only to resort to the referees when the question was as to the identity of the
parties.
Shee, Serjt., objected; but
Erie, J., admitted the question.
I t 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 her
examination.
M. Chambers objected, as the widow sued in a representative character, and could
not bind the children, the next of kin, whom she represented.
[120] Erie, J., said the objection, on that ground, was novel, and hardly sustainable : supposing the question was admissible to show the real object of the
insurance.
M. Chambers urged that it was not so, for she had denied the statement; and it
was the fact of interest which was in issue, not her statement as to it. The question
would 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 t h a t 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 fide
by James for his own benefit, or, substantially, by Thomas in the name of James, but
not for his benefit. Everything, therefore, is admissible which was done by Thomas ;
and words are often acts. The question is not open to the objection against hearsay.
I t is not hearsay. I t is a question as to an act done. One asks another to attest a
document, or to advance a sum of money; those are not merely words, but acts.
So, here ; the evidence is admissible.
The evidence was, t h a t the son had said he was going to insure his father's life
and his own ; and that, as he (the son) was bound to support him, it would be a
desirable 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 t h a t it did not render them more liable to accidents, though he admitted
that it might make it more difficult to get out of the way in case of an accident. The
witness also stated t h a t fainting fits were not deemed " fits " by the faculty.
Erie, J., ruled t h a t upon this evidence the clause in the declaration as to fits did not
apply, and t h a t the death was not shown to have been occasioned by voluntary
exposure to obvious risk of injury.
Shee, Serjt., thereupon relied on the plea raising the question as to interest under
the statute, contending t h a t the evidence showed t h a t the insurance was really by
Thomas.
Erie, J.There is now no plea for the jury to consider but t h a t which raises the
question whether the policy was in truth Thomas's. The statute (a) renders a policy
void when it is effected by a party having no pecuniary interest in the life of the
assured. Therefore if the policy had been effected by the son in his own name it
would have been obviously void. An insurance against death by accident is within
the statute. And the question is, whether the insurance was not in effect the same
as if it had been effected by the son in his own name on his father's life ? If it were
for the sole benefit of the son, it does not matter that it was with the full concurrence
of the father, and that it was the father's free act, and the case would come within the
statute. The jury are at liberty to look at the will, and judge if it were a part of the
plan by which the son was to take the benefit of the policy. Was the father under
the influence of the son when he made the will ? If so, it might reasonably be considered as one of the steps in the scheme by which the son was to realize the benefit of
the policy. If the jury think t h a t the policy was in truth made by Thomas, though
in the name of the [122] father, and for his, the son's, own use and benefit, they should
find for the defendants, if otherwise, for the plaintiff.
Verdict for the defendants.
(a) Vide supra, p. [117 (&)].
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