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decidendi of Kay L.J. The breach of duty on the part of Quin was just the same in essence, whether it consisted in not conveying his knowledge of the infirmity of the assured to the company or in failing to fill in the deviation" on the form. He concludes: "In my opinion, the condition that the statements in the proposal are to form the basis of the contract does not apply at all, because knowledge is to be imputed to the company of the fact that Bawden only had one eye."

I cannot see any difference between the scope of the authority of the agent in this case and the scope of authority of an agent employed to obtain proposals for industrial life assurance. Indeed the scope of the authority of the latter, as far as the health of the proposed assured is concerned, seems to me even clearer, inasmuch as he usually has to sign a declaration on the proposal that he has seen the proposed assured and that he appears to be in good health. He did in fact sign such a declaration in the present case. It cannot be questioned, therefore, that it is part of his duty to consider, as far as he is able, the state of health of the proposed assured, and it is manifestly his duty, if he knows that the state of health is not that stated in the proposal, to inform the company, and, if he fails to do so, the company cannot, as Lindley L.J. says, throw him over "and throw upon the assured the consequences of his breach of duty."

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This case has been followed over and over again. It was followed in Brewster v. National Life Insurance Society, 8 T.L.R. 648. It was followed in Hough v. Guardian Fire and Life Assurance Co., Ltd., 18 T.L.R. 273, by Wright J. who three months previously had given the decision in Biggar v. Rock Life Assurance Co. [1902], 1 K.B. 516, to which I shall have to refer later. It was followed in Holdsworth v. Lancashire and Yorkshire Insurance Co., 23 T.L.R. 521, in ThorntonSmith v. Motor Union Insurance Co., Ltd., 30 T.L.R. 139 and, in substance, in Goldring v. Royal London Auxiliary Insurance Co., Ltd., 30 T.L.R. 350. Finally, it was followed in a life assurance case, namely, Keeling v. Pearl Assurance Co., Ltd., 129 L.T. 573. This case is particularly interesting because it compares and contrasts in a life case the authorities represented by Bawden's Case and those represented by Biggar's Case—a comparison and contrast which had been already made in argument in Thornton-Smith's Case, supra. In Keeling's Case the proposer signed the proposal form with the answers to the material questions left blank. The agent subsequently questioned the proposed assured and was given true answers as to his health. He then filled in untrue answers on the proposal form and the policy was issued.

Bailhache J. dealt with the matter as follows:

"The remaining question is a question which in these cases always seems to me to be one of very considerable

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difficulty. The remaining question is: Is the assured barred because the person who negotiated on behalf of the insurance company with Mrs. Keeling, for this insurance on her husband's life, had inserted in the proposal form answers which are untrue? No doubt, if the answers had been given by the assured, or by her husband, the policy would be void, but the agent in this case has inserted answers which are not consistent with, and in one case are certainly directly contrary to, the information which he had from this woman's husband. If the knowledge of the agent is to be imputed to the insurance company, or if in filling up the proposal form he was acting as the agent for the insurance company, then, inasmuch as the answers are his own answers and not the answers of the assured, the policy is undoubtedly good.

"Now there have been a large number of cases cited to me on one side and the other. Perhaps the most illuminating of the cases, on the one hand, is that of the one-eyed man, the case of Bawden, and on the other hand, the case before Wright J., of Biggar, each of them coming to a different conclusion. In Bawden's case, it was held that the knowledge of the insurance agent that the assured had only one eye was to be imputed to the company, although in the filling up of the proposal form it was stated that he was not suffering from any physical defect a statement which, obviously, of course, having regard to the fact that the man had got only one eye, was untrue. In Biggar's case the answers were manufactured by the insurance agent, and were manufactured in fraud of the insurance company. In that case it was held that the policy was void, and that the insurance agent, in manufacturing those answers, was not acting as the agent for the insurance company.

"A good many cases have been decided, some falling on one side of the line, and some on the other. The learned arbitrator has found that in this particular case the agent, Mr. Allen, who filled up this form, was acting as the agent of the insurance company. However that may be, in my opinion, where an agent does, in fact, fill up these forms, and particularly when he is more than a mere collectorwhen he is an inspector whose business it is, as Mr. Allen says, to negotiate these contracts, and, as I gather, to fill up these forms for people who cannot fill them up for themselves when you find that, and when you find that the answers which the agent puts down are contrary to the facts which are stated to him by the assured-in such cases as that and in view of the finding of the learned arbitrator that Allen was in fact the agent of the insurance company, I have come to the conclusion that in this case the line of cases to be followed is the Bawden line of cases rather than the Biggar line of cases."

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It does not appear to me that the fact, to which the learned judge alludes, that it was an inspector and not a mere collector who did the business, really affects his decision, in view of what I have said as to the scope of the authority of an industrial life assurance agent in obtaining proposals.

Before I leave this case, I should mention the Irish case of Connors v. London and Provincial Assurance Co., 47 Ir. L.T.R. 148, 1913 W.C. and Ins. Rep. 408, with which, if and in so far as it is inconsistent with Keeling's Case, I have already disagreed in my judgment in In re Brunskill and the Pearl Assurance Co. (reported supra, p. 56).

There is one other life case, in which the principle of Bawden's Case was applied, Ayrey v. British Legal and United Provident Assurance Co., Ltd., [1918], 1 K.B. 136. There the proposer of an own-life policy described himself on the proposal form as a fisherman, which, in fact, he was, but did not disclose on the form the fact that he was also a member of the Royal Naval Reserve and was expecting to be called up for mine-sweeping. He told the defendant's agent, however, of this fact, when he signed the proposal. At that time, indeed, he was actually under orders to report for service. Shortly afterwards the plaintiff, who was the proposer's wife, asked the agent whether the fact disclosed to the agent made any difference. The agent asked the district manager, who told her that the insurance would be payable, and she therefore continued to pay the premiums. The proposer was drowned, but he had not in fact been employed in mine-sweeping or any other dangerous occupa

tion.

It will be observed that this case differs from Bawden's Case in that the fact, which was communicated to the agent, was not in contradiction of a fact stated in the proposal form, but was a material fact which was not disclosed in the proposal form but was verbally disclosed to the agent, and there was the further element arising from the subsequent statement by the district manager that the insurance would be paid, on the faith of which the plaintiff continued to pay premiums, sometimes to the district manager and sometimes to agents. The Court found in favour of the plaintiff, while agreeing that if the fact disclosed to the agent had not been disclosed the policy would have been void. It held that the communication to the district manager was equivalent to a communication to the company, and that the receipt of premiums by the district manager with full knowledge of the facts was a waiver by the company of the objection that there has been concealment of a material fact. Atkin J. further said this: "I have great difficulty in seeing how it can be said that an assured, who correctly answers the questions in the proposal form and declares all the facts truly to an agent of the insurance company has been guilty of

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concealing material facts," and then proceeded to deal with a particular condition of the policy.

The two elements to which I have referred make this case a less clear decision as to the effect of disclosure to an agent than Bawden's Case, but there is nothing in it which conflicts with that case.

I may add that Bawden's Case has also been followed in Victoria in Gallagher v. United Insurance Co., 19 V.L.R. 228.

On the other hand, while Bawden's Case has never, as far as I know, been questioned by a court competent to question it, it has sometimes been criticised or not applied. Levy v. Scottish Employers' Insurance Company, 17 T.L.R. 229, was a case which was distinguished from Bawden's Case by the fact that the proposal form contained the words "No verbal statement made to the agent in respect of the above-mentioned answers shall be binding upon the company "-no doubt intended to exclude the decision in Bawden's Case. The facts otherwise were indistinguishable, in my opinion, since the "deviation note, which did not exist in this case, was not material to the decision in Bawden's Case, as I have said, though Wills J. partly relied upon it in the case now under discussion. In so far as the learned judge sought to distinguish Bawden's Case, apart from the words in the proposal which I have just quoted, I find myself unable to agree with him. He says: All that was decided in that case was that the agent under the circumstances of that case was an agent of the company to settle the terms of the proposal." Phillimore J's comment on Bawden's Case is that it turned upon the special terms of the contract, and the utmost the decision came to was this-that it was the agent's duty to put into the proposal form obvious and patent matters." I confess that I am unable to spell out from the facts and judgments in that case any justification for either of these statements.

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In the Scottish case of Macmillan v. Accident Insurance Co., Ltd., (1907), S.C. 484, the policy contained a clause similar to but even stronger than, that in Levy's Case, namely "the company shall not be held liable in respect of any knowledge of, or notice to, an agent which shall not have been communicated to, and have been acknowledged in writing by, the company at its registered office." The proposed assured gave correct information to the company's agent, who inserted it incorrectly in the proposal, which the proposed assured signed without reading it. He was held to be bound by the answers in the proposal. The Court was not content to rely on the above clause, as it might well have done, but disapproved of Bawden's Case and purported to follow Life and Health Assurance Association Ltd. v. Yule, 6 F. 437. In this latter case, however, no question of the agent's knowledge arose and it was

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in other respects a case of the Biggar's Case type. The reason given for disagreeing with Bawden's Case was that it did not attach sufficient weight to the fact that there was a written proposal as the basis of the contract. But the Lord Justice-Clerk made the erroneous statement (at p. 494) that the case of Bawden has not been followed in England, as the case of Biggar clearly shews."

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There would be a certain amount of plausibility in the Scottish Court's observations if the point was put rather differently, namely that the Court of Appeal failed to take sufficient, or indeed any, account of Bawden's fraudulent conduct. He dictated a statement in the proposal form, false to his own knowledge, that he had no physical infirmity, and it had nothing to do with him that the agent discovered that he had only one eye. The agent found that out for himself without any assistance from him.

This aspect of the case apparently was in the mind of Scrutton J. when he said, in Wells v. Smith, [1914] 3 K.B. 722, that Bawden's Case "would, I think, have been decided differently, if the one-eyed assured had actually put in the proposal a statement that he had the sight of two eyes." The statement made by Bawden was every bit as false in fact, though not so ostentatiously and aggressively false, as it would have been if he had stated that he had two eyes, but the latter statement might have brought it home to the Court of Appeal that he was a fraudulent plaintiff, and in that case, in Scrutton J.'s opinion, they would have decided against him.

If the position be put most favourably for Bawden, it might be argued that at least he and the company were in pari delicto, and in such circumstances, in accordance with the well-known maxim, potior est conditio defendentis.

But this argument, I think, fails, if the ground of the decision in Bawden's Case is considered. As McCardie J. said in Paxman v. Union Assurance Society Ltd., 39 T.L.R. 424, that case held that as the agent was aware of the untruth of the answer in the proposal form, the company could not rely on it, or, perhaps, it would be better to say that as the company by its agent was aware of Bawden's true physical condition, it must be taken to have contracted with a man in that physical condition, whatever he may have said or not have said in his answer in the proposal form. If this be so, it was not necessary for the Court to consider what Bawden answered and whether he was fraudulent or not.

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There is also an Irish case, Taylor v. Yorkshire Insurance Co., [1913] 2 I.R.1. The ground of the decision in this case was that every act of an agent within the scope of his employment is the act of his principal; and, consequently all knowledge acquired by the agent, when acting within the scope of his

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