Best, serjeant, proposed to call some underwriters to prove, that if the rumours stated had been communicated to them, they would not have engaged in the risk. L And he was permitted, notwithstanding an objection of Lens, and the L. C. J. expressing serious doubts as to the admissibility of the evidence, to examine to this fact. The witnesses stated, they were of opinion that the rumours ought to have been communicated to the underwriters. GIBBS, C. J.-The question is, did the plaintiff know any facts injurious to the adventure, which ought, in common honesty, to have been communicated to the underwriters; I mean substantial facts, which were likely to change their opinion as to the magnitude of the risk. Loose rumours which have gathered together, no one knows how, need not be communicated. Intelligence, properly so called, and as it is understood by mercantile men, ought to be disclosed when known. The materiality of the facts known and suppressed are for the decision of the jury. If the concealment be of a material fact, whether a rumour, report, or an article of intelligence, it ought to be communicated; if immaterial, it may be withholden. I am of opinion, though I received it with reserve, that the evidence of the underwriters who were called to give their opinion of the materiality 1816. DURRELL and Another v. BEDERLEY. 1816. DURRELL v. BEDERLEY. of the rumours, and of the effect they would have had upon the premium, is not admissible evidence. and Another Lord Mansfield and Lord Kenyon discountenanced this evidence of opinion; and I think it ought not to be received. It is the province of a jury, and not of individual underwriters, to decide what facts ought to be communicated. It is not a question of science, in which scientific men will mostly think alike, but a question of opinion, liable to be governed by fancy, and in which the diversity might be endless. Such evidence leads to nothing satisfactory, and ought on that ground to be rejected. In the present case, the reports cannot be called loose; the plaintiff knew the frigates had been off the island; a capture was reported to have been made; a binnacle had actually been seen floating with a compass upon it: this latter circumstance was a fact; it was intelligence in its proper mercantile sense. Ought not the plaintiff to have communicated these rumours, coupled with the facts, to the broker who was to obtain the policy. He knew the current knowledge of Jersey on this subject; the underwriters could know nothing of it. If therefore a communication of these facts would, in the minds of reasonable men, have made an impression affecting the magnitude of the risk in which they were invited to engage, they ought to have been communicated. The Jury were of opinion, that the rumours ought to have been communicated. Verdict for the defendant. Lens, serjeant, and Marryatt, for the plaintiff. 1816. DURRELL Best and Vaughan, serjeants, for the defendant. and Another Upon those principles of good faith which should govern all contracts of insurance, the assured is bound to communicate every species of intelligence that he has, which may affect the mind of the underwriter in either of these two ways. 1. As to the point, whether he will insure at all. 2. As to the point, at what premium he will insure. There are some old cases, upon the subject of concealment, which have never been shaken; though, as we shall shew, some reasonable qualifications have been engrafted upon them. We shall first consider what concealments will vitiate the policy; and, secondly, what disclosures are unnecessary. 1. A merchant, having a doubtful account that a ship, like his, was taken, insured her without any Communication to the underwriters; Lord Macclesfield, Chancellor, held, that he ought to have disclosed what intelligence he had of the ship's danger, and which might induce him, at least, to fear that she was lost, though he had no certain account of it; for if this had been discovered, the underwriters would not have insured at so small a premium; but would either not have insured at all, or at a higher premium; therefore, he thought that the concealment of this intelligence was a fraud. Dacosta v. Scandrett, 2 P. Wms. 170. So, in Seaman v. Fonereau, 2 Str. 1183. Two days before the subscription of the policy, the plaintiff's agent received a letter to this effect: "The 12th of this month I was in company with the ship Davy, (the ship in question); at 12 o'clock in the night lost sight of her all at once; the captain spoke to me the day before that he was leaky, and the next day we had a hard gale." The ship, however, continued her voyage till the 19th, when she was taken; and there was no pretence of any knowledge of the actual loss at the time of the insurance. This letter was not communicated to the underwriter. The Chief Jus tice (Lee) held, that the letter 1816. DURRELL and Another v. BELERLEY ought to have been disclosed; for either the defendant would not have underwritten, or have insisted on a higher premium. So, in Willes v. Glover, 1 New Rep. 14., the contents of a letter, which stated the probable time of the ship's sailing, were withholden from the underwriters; and, although that expectation was not correct, as the ship did not sail till several days afterwards, yet it was deemed a material concealment. So, in Beckwaite v. Nalgrove, MS. Guildhall (cited 3 Taunt. 41.), the plaintiff concealed from the underwriters the fact that he had received a letter from the Cape of Good Hope, stating that there were then two or three French privateers in, those seas; and, upon the ground of that concealment, he was nonsuited. So, in Lynch v. Hamilton supra, it was held that the owner was bound to communicate to the underwriters any intelligence he had, which might affect his choice, whether he would insure at all, and at what premium he would insure; whether the fact was true or false. Therefore, where some ships were advertised to be in danger, and the insurer effected a policy on "ship or ship," knowing that the ship in danger was one of them, without stating the ships' names, the Court of C. P. held, that the concealment avoided the policy, though the rumour was false. 3 Taunt. 37. See likewise Webster v. Fosten, 1 Esp. 407. Fillis v. Brutton, Park. 250. Raicliffe v. Schoolbred, Marsh. 488. Lynch v. Dunsford, in error, 14 East 495. Sawtell v. London, 5 Taunt, 363. Gladstone v. King, 1 M. and S. 35. The same rule applies to policies of every other description. In contracts of chance, the circumstances of every case should be fully and fairly disclosed. Therefore, where A., abroad, having two warehouses, wrote to this country to effect an insurance upon one of them only, without stating, as was the fact, that a house nearly, adjoining it had been on fire on that evening, and that there was danger of the fire again breaking out, and sent his letter after the regular post time; and the fire, having broken out on the next day but one fol lowing, consumed A's ware house; it was held to be a material concealment, though A.'s letter was written without any fraudulent intention. Buff v. Turner and Others, 2 Marsh. Rep. 46. 2. As to what disclosures are not necessary. The assured is not bound to communicate any fact which the underwriter may be presumed to know equally with himself. In Vallance v. Dewar, 1 Campb. 503, Lord Ellenborough thus lays down the rule of disclosure "The rule is, that the broker must communicate what is in the special knowledge of the assured, not what is in the middle between them and the underwriter. He is not bound to make a laborious disclosure of what is known to all." Therefore the underwriters are bound to know the nature and circumstances of the branch of trade 1816. DURRELL v. BEDERLEY. Although, at the time of effecting the insurance, the underwriter is entitled to be informed of all the circumstances and Another relative to the actual state of the vessel, it is not necessary that he should be apprised of all the calamities which have previously befallen her in the course of the voyage. Freeland v. Glover, 6 Esp. 14. 7 East 457. Acc. Schoolbred v. Nutt, Park. 300. S. C. Mar. shall 475. And the broker is only bound to communicate facts to the underwriters, and not the opinions and apprehensions occasioned by those facts. Bell 1. Bell, 2 Campb. 475. The particular circumstances of that case, however, distinguish it from Lynch v. Hamilton, supra. The non-communication, of the damaged state of goods shipped, from which danger is likely to ensue, does not vitiate the policy, where these circumstances are unconnected with the cause of the loss. Boyd v. Dubois, 3 Campb. 133. |