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BODEMER, NO V AMERICAN INSURANCE CO 1961 (2) SA 662 (A)
BODEMER, NO V AMERICAN INSURANCE CO 1961 (2) SA 662 (A)
South African Case Law, Juta's (1838 to date)/CHRONOLOGICAL LISTING OF CASES – 1838 to date/1961/Volume 2: 611 829 (June)/BODEMER, NO v AMERICAN
INSURANCE CO 1961 (2) SA 662 (A)
URL:
http://jutastat.juta.co.za/nxt/gateway.dll/sacl/3/25970/26249/26262?f=templates$fn=default.htm
Judge Hoexter JA, Van Blerk JA, Ogilvie Thompson JA, Holmes JA and Jennett AJA
Flynote : Sleutelwoorde
Insurance Personal accident policy Duty of insured to disclose that he had an artificial leg Deceased insuring through an agent Agent at
request of insurance company's branch manager signing proposal on deceased's behalf Agent unaware that deceased had an artificial leg
Policy issued Only thereafter that D deceased knew a proposal form had been signed on his behalf Failure to disclose nevertheless fatal to
the policy.
Headnote : Kopnota
When respondent had been sued under a personal accident insurance policy it had repudiated liability on the ground that the deceased had
failed to disclose that he had an artificial leg. It appeared that one R, an employee in a firm of bookkeepers some 27 miles away, had kept the
books E of the deceased, that the firm had also acted as canvassing agents for various insurance companies including the respondent, and that
the deceased had instructed R to have his life insured for the maximum. R had then asked his employer N to make out a cover note as agent for
the respondent in favour of the deceased. which was signed by N but never sent to the deceased, though a copy thereof was sent to the
respondent. Some time afterwards one M, the manager of respondent's local branch, F had visited this firm at Bethal, and was asked by it to
proceed to the deceased at Hendrina to get him to sign the application form. M, however, maintained that it was unnecessary for him to do so
and that N could sign the form. N had then signed the form containing the usual proposal and declaration, and thereafter respondent had issued
the policy. Neither R nor N had been aware that the deceased had an artificial leg, and N had signed the declaration that the deceased suffered
from no physical disability. N had not had the deceased's G authority to sign the proposal form and the deceased had not known, before he
actually received the policy, that a proposal form had been signed on his behalf. The action having been dismissed with costs in a Provincial
Division, in an appeal it was contended on appellant's behalf that the deceased had had no real opportunity of disclosure before the policy was
delivered to him, and that his duty to disclose fell away when the policy was delivered to him.
Held, that the failure to disclose was fatal to the policy.
H Held, further, that an application now made for the first time on appellant's behalf to amend the declaration by introducing a claim for
rectification could not be granted as the issue involved in the new claim had not been properly canvassed at the trial.
The decision in the Transvaal Provincial Division in Bodemer, N.O v American Insurance Company, 1960 (4) SA 428, confirmed.
Case Information
Appeal from a decision in the Transvaal Provincial Division (GALGUT, J.). The facts appear from the judgment of HOEXTER, J.A.
G. Viljoen, Q.C. (with him C. P. Joubert), for the appellant: In die Hof a quo het appellante haar beroep op die sogenaamde 'estoppel by recital'
van die Engelse reg en daar is gesteun op die beslissing in Pearl Life Assurance Co v Greenhalgh & Johnson, 1909 (2) K.B. 288. Die Hof het egter
die beroep op die gemelde beginsel verwerp, omdat, o.a., A die gemelde saak onderskeibaar is op die feite, nl. (i) in die gemelde saak het dit
gegaan oor 'n 'deed duly sealed'; (ii) die persoon wat die aansoekvorm onderteken het, was die agent van respondent; en (iii) die eiseres kon nie
lees of skryf nie, en daar geen voorstelling aan die oorledene gemaak was wat hom genoop het om sy posisie te verander tot sy B eie nadeel
nie. Die onderskeiding gemeld, behalwe die onderskeid wat die seël betref, is van geen wesenlike belang nie. Die feit dat die eiseres nie kon lees
of skryf nie het alleen gedien as bewys dat sy nie die aansoekvorm kon onderteken nie, en dit is nie duidelik dat die sogenaamde 'agent' van
respondent enigiets meer was as die gewone werwingsagent nie; vgl. die Pearl Assurance saak, supra te bl. 290. Wat C die belangrikheid van
die seël betref, vgl. Spencer Bower Estoppel, para. 62, bl. 103 4, n. 5; Carpenter v Buller, (1841), 8 M. & W. 209; MacGillivray Insurance Law,
(4de druk, para. 693); Williston Contracts (Revised ed., 1936, para. 115 A). Die seël se belangrikheid het grootliks verdwyn. In die geval van
versekering verkry die polis in D elk geval die kenmerk van 'n geseëlde stuk. By die sogenaamde 'estoppel by recital' skyn dit nie asof benadeling
in die Engelse reg 'n vereiste was nie. Dit is bloot 'n reël van die bewysleer dat geen getuienis toelaatbaar is om 'n feit daarin genoem te weerlê
nie; sien Halsbury Laws of England (Simonds uitg., band 15, bl. 215; vgl. bl. 227, para. E 429 en verder); Simm and Others v AngloAmerican
Telegraph Co. (1879), 5 Q.B. 188; C.A. te bl. 206; Low v Bouverie, (1891) 3 Ch. te bl. 101; Greer v Kettle, 1938 A.C. te bl. 171. Die beginsel
het wederkerig gewerk. Albei partye tot die ooreenkoms was gebonde. Alleen waar daar eensydige voorstelling is, geld die vereistes van
misleiding en benadeling. Of, anders gestel, in die geval van 'estoppel by recital' F is die voorstelling wederkerig en geld die 'estoppel' teenoor
albei kontrakterende partye; vgl. SpencerBower, op. cit. paras. 62, 189, 197. Indien dieselfde feite vandag voor 'n Hof in Engeland dien, sou die
beslissing dieselfde wees? Alhoewel meer resente gewysdes soos Greer se saak, ibid, die beginsel aansienlik gekwalifiseer het, geld die G
oorweging nog dat, hoewel 'n dwaling die estoppel sal vernietig, dit 'n egte dwaling (genuine mistake) moet wees; sien Halsbury, supra, bl. 215
n. (a) en (e); Phipson, Evidence (9e druk, bl. 624 en 706, n. 3). Greer se saak is onderskeibaar aangesien in daardie geval die borge nie bewus
was of die skuld wel deur aandele verseker was nie (soos die aanhef verklaar het) en hulle dus 'n duidelike verskoonbare dwaling begaan het. H
Indien die beslissing dieselfde sou wees, sou dit geld hier te lande of sou dit aansienlike oorredende krag hê? Dit word betoog dat dieselfde
beginsel hier te lande geld; sien TreasurerGeneral v Lippert, 1 S.C. te bl. 295; Town Council of Heidelberg v Kerkraad van die Nederduitsch
Gemeente Hervormde of Gereformeerde Kerk, Heidelberg, 1930 T.P.D. 543; Cohen v C.I.R. & Another, 1948 (4) SA 616; Tschirpig and Another
HOEXTER JA
insurance only came into existence on the acceptance by the deceased of the policy and on the payment by him of the premium. The contract
therefore included as part of its basis a term or condition that the insured suffered from no material disability. It is not necessary for A
respondent to demonstrate its case. It is sufficient if the case is established on a balance of probability; see Lindeque v Hall, 1927 T.P.D. at bl.
422.
Viljoen, Q.C., in reply.
Cur. adv. vult.
B Postea (March 9th).
Judgment
HOEXTER, J.A.: On the 31st October, 1956, the respondent signed an C accident policy for £15,000 in favour of the late W. J. Bodemer, who
died on the 7th June, 1957, and to whom I shall refer as the deceased. On the latter date the deceased fell in front of a powerdriven plough
and was crushed to death. The accident which caused his death was one covered by the policy and the appellant as the executrix in his estate
accordingly claimed the sum of £15,000 from the respondent. When the D latter refused to pay, she brought an action on the policy in the
Transvaal Provincial Division. Her action was dismissed with costs and it is against that order that she now appeals to this Court.
The circumstances in which the respondent issued the policy now relied upon to the deceased are testified to by one Rossouw, who was the E
bookkeeper and chief clerk of Oos Transvaalse Boekhouers en Agente, to which I shall refer as the firm, and which carried on business as
bookkeepers and as canvassing agents for various insurance companies. Rossouw, who became a partner in the firm in July, 1959, was the
employee of the firm who during 1956 went to Hendrina, 27 miles from Bethal, every Tuesday to do the books of the deceased who was inter
alia F the proprietor of a café at Hendrina. Rossouw had known the deceased for about a year when the latter broached the subject of an
accident policy to him. 'Hy het gesê' I quote from the evidence of Rossouw 'ek moet vir hom reël vir 'n ongevallepolis vir die maksimum
bedrag wat ek kan kry.' On his return to Bethal, Rossouw discovered that the G maximum was £15,000, obtainable from the respondent. He
accordingly asked his employer, van Niekerk, to make out a cover note as agent for the respondent in favour of the deceased. It is clear from
the period of insurance provided in the policy now being relied upon that the cover note was signed by van Niekerk on the 31 August, 1956,
because the period of insurance is stated in the policy to be from the 31st August, H 1956, to the 31st Agust, 1957. For some reason not
satisfactorily explained by Rossouw, the cover note was not sent to the deceased although a copy thereof was sent to the respondent.
Thereafter nothing was done by Rossouw in furtherance of the mandate given to him by the deceased until, on the 6th September, 1956, the
manager of the respondent's Pretoria branch, one van der Merwe, visited the firm at Bethal. According to Rossouw he had a discussion
HOEXTER JA
with van der Merwe and van Niekerk in the latter's office. Van der Merwe was told that the deceased was interested in a policy with the
respondent and was asked by Rossouw to touch at Hendrina, on his way back to Pretoria, in order to get the deceased to complete the
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application form (exh. 'A'). Van der Merwe then pointed out according to Rossouw that it was unnecessary for him to do so A because any
member of the staff of the firm could sign the application form. Van der Merwe handed a form to Rossouw, who gave it to van Niekerk, who
1961 (2) SA p667
HOEXTER JA
with van der Merwe and van Niekerk in the latter's office. Van der Merwe was told that the deceased was interested in a policy with the
respondent and was asked by Rossouw to touch at Hendrina, on his way back to Pretoria, in order to get the deceased to complete the
application form (exh. 'A'). Van der Merwe then pointed out according to Rossouw that it was unnecessary for him to do so A because any
member of the staff of the firm could sign the application form. Van der Merwe handed a form to Rossouw, who gave it to van Niekerk, who
signed exh. 'A', a form containing the usual proposal and declaration. The signed exh. 'A' was then taken by van der Merwe to B Pretoria, but for
some unknown reason the policy was signed by the respondent only on the 31st October. It was sent to the firm at Bethal, but again it was
only on the 27th November, that Rossouw went to Hendrina to hand over the policy to the deceased, who thereupon paid him the first premium
on the policy. It appears from the above summary of Rossouw's evidence that he was the only one who was ever personally in C touch with the
deceased. He testified that during the period from the 31st August, to the 27th November, neither he himself nor the deceased ever spoke a
further word about the policy to each other. It was on the 31st August, that the deceased gave his mandate, and it was on the 27th November,
that Rossouw handed over the policy to him. In view of the D fact that Rossouw went over to Hendrina every Tuesday to do the books of the
deceased, it is very difficult to believe that he never mentioned to the deceased that a cover note had been made out or that a proposal form
had been signed in respect of the policy which the deceased was apparently anxious to obtain, and it is still more difficult to believe that the
deceased never questioned Rossouw at to what he had done in E pursuance of his mandate to obtain a policy. The trial Judge assessed the
credibility of Rossouw as follows:
'Rossouw, in my view was an unsatisfactory witness and I am of the opinion that in many ways he was reconstructing events. Nevertheless I do
not find that he was deliberately untruthful.'
F In any case there was no evidence to contradict that of Rossouw as to what happened between himself and the deceased, and I shall
accordingly approach the appeal on the basis that in this respect his evidence must be accepted. The trial Judge found as a fact that van
Niekerk did not have the deceased's authority to sign the proposal form and that the G deceased did not know, before he actually received the
policy, that a proposal form had been signed on his behalf. It was admitted by the appellant that one of the deceased's legs was an artificial
one and the trial Judge found that the deceased had failed to inform the respondent of this fact and that the respondent was unaware thereof
both at the time when the policy was signed, and when it was tendered to the H deceased. Indeed even Rossouw himself testified that he was
ignorant of the deceased's physical disability. Van Niekerk was similarly ignorant when, professing to act on behalf of the deceased, he signed
the declaration that the deceased suffered from no physical disability.
In the view I take of the appeal I need deal with one only of the various defences set up by the respondent to the claim by the appellant.
HOEXTER JA
VAN BLERK, J.A., OGILVIE THOMPSON, J.A., HOLMES, J.A., and JENNETT, A.J.A., concurred.
Appellant's Attorneys: Tim du Toit & Co., Pretoria; Naudé & Naudé, Bloemfontein. Respondent's Attorneys: Henry Nankin, Pretoria; Simler &
Cooper, Johannesburg; Claud Reid, Bloemfontein.
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