Scottish Court of Session Decisions

James Ballantine, chairman of Ayrshire Foundry Company, was insured with the Employers Insurance Company of Great Britain, Limited, Glasgow, for £1000 under a policy in these terms—“(1) The company, if during the currency of this policy the assured shall sustain any personal injury caused by accidental, external, and visible means within the conditions of this policy, and the direct effect of such injury shall occasion the death of the assured within three calendar months from the happening of such injury, shall pay to the legal personal representatives of the assured, within three calendar months after it shall have been proved to the satisfaction of the directors of the company that the death of the assured was occasioned as aforesaid, the sum of one thousand pounds: … Provided always, that this policy is subject to the conditions endorsed hereon, which are to be taken as part hereof, and are hereby agreed to be conditions-precedent to the right of the insured to sue or recover hereunder.” The conditions included, inter alia—“3. The assured shall not be entitled to make any claim under this policy for any injury from an accident unless such injury shall be caused by some outward and visible means of which proof satisfactory to the directors can be furnished, and that this assurance shall not extend to … any injury caused by or arising from natural disease or weakness or exhaustion consequent upon disease, … or to any death arising from disease, although such death may have been accelerated by accident. … 5. In case of death the legal representatives of the assured must deliver to the company a certificate from the medical attendant of the assured stating as fully as possible the nature, extent, and duration of the injuries and the cause of death, and shall produce all documents necessary to prove their title as such legal representatives, and shall furnish all such other information and evidence as the directors may require from time to time, or may consider necessary or proper to elucidate the case.”

On 30th September 1892 while Mr Ballantine was fishing in the river Orchy he fell into the stream and was found dead two days afterwards.

Upon 1st October the Insurance Company were informed of the death by their district inspector and by Messrs Emslie & Guthrie, solicitors, Ardrossan, who had been agents of the company in getting the insurance effected.

Upon 3rd October 1892 Dr Duncan, on behalf of the Insurance Company, telegraphed to Dr Allan, the medical adviser of the deceased's family — “As medical adviser of Accident Company where Ballantine insured, am asked to certify death as from accident; for this post-mortem examination necessary; will you see friends? arrange for to-morrow, and wire time fixed.” The same evening Dr Allan replied by this telegram — “Have seen friends, and your proposal is refused.” On the same day Dr Duncan wrote this letter to Dr Allan—“In confirmation of the telegram which I sent you to-day, I now write to ask you if you will be good enough to see the friends of the late Mr Ballantine, and ascertain whether they will allow a post-mortem examination to be made in order that we may ascertain with certainty the cause of his death. As medical adviser of the company I consider this necessary, and I will feel obliged if you will point out to the friends that under condition 5 of the policy of assurance the company is entitled to ask for any evidence of the cause of death which the directors may consider necessary. Please wire me when you can meet me in connection with this case at Ardrossan and the decision of the friends.” Dr Allan replied the next day—“I am in receipt of your letter of yesterday. The telegram which I sent you yesterday evening conveyed to you the decision of the friends on the matter of having a post-mortem examination of the body of the late Mr Ballantine. After the anguish which his mother has endured for the last four days, it was felt that it would be a cruelty to have her feelings further harrowed by the examination you propose. For my own part I think the examination is quite unnecessary, and when you know the particulars of the

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accident, and the evidences of Mr Ballantine's state of health at the time, I think you will agree with me.”

The Insurance Company upon 4th October wrote to Messrs Emslie & Guthrie in these terms—“Referring to telegram sent yesterday by Dr Duncan to Dr Allan, I have now to intimate to you that from the information we have, we are of opinion that death did not occur by accident within the scope of our policy. The only means of ascertaining whether it did or did not is by post-mortem examination, and we have therefore to repeat our request, before it be too late, that you will consent to a postmortem examination, and that our medical adviser be present, otherwise we shall be obliged to found upon your refusal. Meantime we must repudiate all liability under our policy.” This letter was handed to Messrs Emslie & Guthrie by the defenders' superintendent Ferguson, and on 5th October they replied—“When we intimated on 1st inst. the accident to your office, we did so in the ordinary way, as agents for your company. We had no instructions from Mr Ballantine's representatives to do so, and the terms and tone of your letter were surprising. We received your telegram to-day, and we have simply to refer to our interview with Mr Ferguson yesterday, and to say that we have no power to consent to a post-mortem examination.”

Upon 7th October Messrs Emslie & Guthrie applied for the sum in the policy in these terms—“We are now instructed by Mrs Ballantine, mother of the deceased, and who is executor under his will, to intimate in terms of the policy her claim for the sum insured thereby, and you will be good enough to accept of this letter as due notice.”

Mr Ballantine had been buried upon 5th October.

Upon 10th October the Insurance Company wrote this letter—“Referring to your letter of 7th inst., and to our interview on Saturday, I need not repeat our reasons for refusing to admit this claim. We should not be at all unwilling to have the principles involved established by a court of law, and we are strengthened in this by the advice of our solicitors, an extract from whose letter is annexed hereto. Our desire, however, is to act liberally towards our policy-holders, and we should contest this case with regret, as it would doubtless be a very painful matter to the friends of the deceased, involving as it would our demand for an exhumation of the body. To obviate the painful necessity referred to, and with the desire to go to the furthest limits of liberality, we are willing, subject to your acceptance before our meeting on Thursday first, to recommend the directors to dispose of the whole matter at once by a payment of £750. You will please understand that this suggested settlement is proposed entirely without prejudice.”

This offer was not accepted, and Mrs Ballantine, as general disponee and sole executrix of her deceased son, raised an action against the company for the sum in the policy.

The defenders averred—“Explained that the circumstances under which the pursuer's son met his death were so peculiar that the defenders had reason to believe that he died from natural disease, or some other cause against which they do not insure, and not by drowning, as alleged by the pursuer. Their consulting physician, Dr Duncan, having had the details, so far as known, laid before him, stated that he could not certify the cause of death as from accident without a post-mortem examination of the deceased's body, and accordingly he wired on 3rd October to that effect to Dr Allan, the pursuer's family doctor, and asked him to see the friends and arrange for a post-mortem examination being held the following day. Dr Allan telegraphed back that the deceased's relatives, before whom he had laid Dr Duncan's request, declined to allow of the examination. The defenders at once intimated by letter, dated 4th October 1892, to the pursuer's agents, that they were of opinion that death did not occur by accident within the scope of the policy, and that the only way of ascertaining whether it did or not was by post-mortem examination. They accordingly repeated their request that the pursuer would consent to a post-mortem examination, and that their medical adviser should be present, otherwise they would found upon the refusal. This request and other requests of the same nature were refused. The pursuer has thus failed to comply with the conditions of the policy quoted in answer 3, and which were declared to be conditions-precedent to a claim under it. The pursuer has never offered any evidence to the defenders with a view to satisfying them that the cause of Mr Ballantine's death was an accident within the meaning of the policy founded on. On the pursuer furnishing evidence to this effect, satisfactory to the directors, the defenders are willing to pay or consign the sum in the policy.”

The defenders pleaded—“(1) The pursuer having failed to comply with the conditions of the policy, which were thereby declared conditions-precedent to her right to sue or recover under the same, the defenders should be assoilzied. (2) Separatim, the pursuer's son not having met his death from accident within the meaning of the policy founded on, the defenders should be assoilzied with expenses.”

The Lord Ordinary allowed a proof.

Peter Macgregor, Mr Ballantine's ghillie, deponed—“Mr Ballantine was a tall man, being nearly 6 feet in height. When he was fishing the Elbow and Tree Pool the second time I noticed that the water was again up to about the middle of his thigh, and the seat of the waders was not wet. He was just in about the same depth of water on both occasions, and that might be 2 1 2 or 3 feet. About the time that Mr Ballantine went into the water again after lunch, I noticed that Mr Radcliffe and his ghillie were at the upper end of the pool on the opposite side. I was standing on the shingle behind Mr Ballantine, and about 20 yards from him, keeping clear of his

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cast. He was casting at an angle across the stream. He was farther up the river than I was, and I saw the left side of his face. About ten minutes after he resumed fishing after his lunch I noticed that he was examining his cast. He had been fishing during the morning with salmon fly, and having got no success he fished with worm bait after lunch. When he was examining his cast I noticed that he was still in the same depth of water as he had been previously when he was fishing. After I saw him examining his cast I turned and went to the basket to prepare another cast. While I was preparing an extra cast I heard a scream, and turned round and saw Mr Ballantine falling in the river, slanting backward. He made a movement with his legs, and that movement of his legs pushed him into the rapids. The moment his legs made the movement the current caught him and carried him into the rapids. His head got up in the rapids once, and then he disappeared. At the point where Mr Ballantine was fishing the water was going pretty fast, and he was near the place which I have described as the rapids. When he disappeared I had nothing but a short gaff, and I could do nothing with it to help the man in the water. After Mr Ballantine s head disappeared it reappeared in the eddy, and he gave a low scream, but not so loud as the first one. I heard it quite well, however. Mr Ballantine called out again, but it was a very low scream or gurgle—more of a gurgle. By that time he was out of the current and in the eddy at the foot of the Tree Pool. When Mr Ballantine gave the scream or gurgle there was nothing but his head above the water. I noticed the point of the rod in the stream. (Q) Did Mr Ballantine appear to have kept hold of his rod till that point when he gave the gurgle?—(A) No, the first time his head appeared the rod seemed to be under him, and I saw the point of it as if he were holding it. The rod was found in the Tree Pool, just about the point where he gave the gurgle. When Mr Ballantine fell I sprang to catch him, but he disappeared before I got to the water's edge. I called out in Gaelic to the shepherd's wife to fetch a rope. I kept opposite to Mr Ballantine while he was being carried down the river. In the stream he was carried down very fast. The shepherd's house is about 200 yards from the river side. While Mr Ballantine was in the eddy I thought that he was swimming towards me, towards an old tree on the south side. That old tree was partly under water that day, the river being so high. Mr Ballantine did not succeed in reaching the old tree as the eddy carried him round towards the north side. When carried a certain distance towards the north side he disappeared, but he appeared a third time just before he was carried out of the pool. His head appeared longer above the surface in the eddy than on the other occasion. When I thought that Mr Ballantine was swimming towards the tree I think his eyes were open, but I don't think there was any recognition in his face at that time. He looked flushed and red in the face. (Q) Did he go out of sight again when he was caught at the end of the eddy?—(A) He went out of sight before that. About 30 yards below the eddy he appeared again for a minute, and his head turned round and then he disappeared. (Q) Did he lift his head?—(A) There was nothing but his head out of the water, but he turned round and I saw the collar of his coat. He then rolled over backwards, and that was the last I saw of him. He was just at the top of the rapids then, and I knew that his case was hopeless. He was carried down the rapids, which are below the pool. The river gets into full current below the eddy, and it was when he got into the full current below the eddy that I saw him with his head up, roll backwards, and thought his case was hopeless. … From the time Mr Ballantine fell into the water till I lost sight of him would just be about three minutes altogether, as far as I could judge. I think the distance he would go in that time would be about 60 yards, but it might be a yard or two more or less.”

The medical evidence for the pursuer was to this effect:—

Dr Allan deponed—“Mr Ballantine was a robust vigorous man, and very much above the average as regards health and strength. By constitution he was a strong man, and all his organs were perfectly healthy. He was never troubled with any heart or liver complaint or anything of that kind. He was six feet high and about fourteen stones in weight. … When he was lifted out of the river the froth came from his mouth and nostrils. I had no doubt that the cause of death was drowning. (Q) Was that manifest to any one of ordinary skill who saw him?—(A) It was the natural inference. (Q) I believe you looked at the body more minutely at the hotel?—(A) I may say only the face; I did not see him undressed. (Q) You know the peculiar appearance which drowned people have, what is called goose-skin?—(A) I did not see that, but I inquired after wards and I found that he had it. Assuming that that was present, that confirms my opinion that death occurred by drowning. I think that the froth coming from the nostrils and mouth is a certain sign of death by drowning. That is caused by attempted breathing—water being drawn into the lungs and mixed with the air already in the lungs. … I was very much surprised when I got the telegram [requesting a post-mortem examination], because I considered it utterly unnecessary. I considered it an unnecessary piece of cruelty to inform Mrs Ballantine anything about it. She had very strong feelings on the matter. She expressed herself before the body was found as dreading that there would be any mutilation. I knew her feelings as regards that, and I told her nothing about the proposal. She was suffering dreadful anguish at the time. (Q) I see they were good enough to ask you to arrange this matter?—(A) They were, with friends, but not with Mrs Ballantine. I consulted the only friends

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that were available, namely, Mr Cleminson and Mr Scott. Mr Cleminson was a partner of Mr Ballantine, and stayed in Ashgrove House along with the family. Mr Scott was formerly Mr Ballantine's tutor, and is now engaged in the company of which Mr Ballantine was chairman. I told Mr Cleminson and Mr Scott my opinion of the defenders' demand. I sent in reply to Dr Duncan the telegram, ‘Have seen friends, and your proposal is refused.’ The friends there mentioned were Mr Cleminson and Mr Scott.”

Dr Joseph Bell deponed—“(Q) I wish you to assume from me that the ordinary medical attendant of Mr Ballantine pronounced him to have been in excellent health, with his organs in a normal and healthy condition, that about three weeks prior to the accident he was examined by Professor Fraser and passed for life insurance by the Standard Company, that he fell into the water and was found two days afterwards, the external symptoms being goose-skin and frothing from the mouth and nostrils—in these circumstances, what is your opinion with regard to the cause of death?—(A) That it could hardly be explained by anything else except death from drowning. I understand he was seen to fall into the water. The froth coming from the nostrils and mouth is a common symptom in cases of death from drowning, and it means that the water and air have met together in the breathing apparatus, and have been churned up in the efforts at respiration.… When I was reading the case, and saw the statement about the first scream, I stopped and said to myself, ‘Possibly epilepsy, but when I read on and saw about the second scream and the gurgle I said to myself, ‘No, drowning.’ In the case of epilepsy there would be the one cry on the occasion of the attack, and it is exceedingly rare to hear a second or a third. Apoplexy never entered my mind after the young man being passed by a distinguished physician like Professor Fraser, whose accuracy is so great, and it would be impossible that a man who was to suffer from apoplexy should not have shown some symptoms in his blood-vessels of a tendency thereto. I also think that a second and third scream would be very unlikely in the case of apoplexy. Angina pectoris is exceedingly rare at Mr Ballantine's age. Aneurism is also rare at his age, and it is excluded by Professor Fraser's examination. … Cross.— (Q) Might the froth not have been caused by some water getting into his throat after death, and being churned up, or through decomposition in the lungs?—(A) No, we could not trust to that: the churning up of the water from the movement of the body might possibly do it. (Q) But if water got into his mouth, it would be churned up and mixed with the air from the lungs, while the body was being carried to the hotel?—(A) Yes, but the explanation of the froth is that the man was drowned. (Q) But it would have made it perfectly certain whether or not the man was drowned if he had been examined postmortem and the lungs had been found to be filled with air and water?—(A) It would have been far better had he been examined post-mortem.”

Professor J. R. Fraser deponed—“I am Professor of Materia Medica and Therapeutics in the University of Edinburgh. I am chief advising medical officer to the Standard Life Insurance Company. I examined the deceased Mr Ballantine in reference to a proposal for insurance upon his life with the Standard Company on 6th September 1892. I made a minute examination of Mr Ballantine, and the general conclusions were that the present state of his health was good, that the state of the different organs was healthy, that his constitution was strong.… (Q) Was there anything in your examination to suggest to your mind that any change might be expected in his bodily condition between the 6th and 30th September?—(A) No, barring some acute illness, and assuming that the normal condiditions of life remained the same, there was absolutely nothing. He was a man whom I should have expected to live a long time. Personally he was a good life, and I so advised the Insurance Company. … (Q) Assume from me that he was fishing in the Orchy when he slipped off his feet, that he gave a scream upon the accident occurring, and that he gave other two screams subsequent thereto, the latter being more of a gurgle than a scream, that he was found two days afterwards, and that the persons finding him, including a medical man, found froth emerging from his mouth and nostrils—what did that man die of?—(A) I have no doubt that he died of drowning. No other suggestion occurs to me with regard to the cause of death which would be reasonable.”

For the defenders Dr Duncan deponed—“I have read the notes of evidence given by Peter Macgregor in this case. (Q) Assuming these to be the facts under which Mr Ballantine met his death, what do you say as to the possible cause of death?—(A) I think that there is no evidence whatever in the statement as given by the ghillie to show that the death was certainly caused by drowning. The evidence seems to point to the deceased having been suddenly seized with illness of some kind. A post-mortem examination would certainly have placed the cause of death beyond doubt. (Q) Is there any difficulty after a post-mortem examination is made in saying whether a man has actually died from drowning or not?—(A) Not under such circumstances. (Q) What possible cause of death do you suggest?—(A) What occurred to me after thinking over the matter was that it was quite a possible thing that he might have died from rupture of a deep-seated aneurism in the chest, or from rupture of an aneurism of one of the arteries in the brain; looking at the whole circumstances of the case, that seemed to me quite a possible theory of his death. Of course there are other possibilities. He might have had an attack of angina pectoris. We know that such things happen with persons in apparent health, and presenting

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no appearance of disease. There are further possibilities of death by rupture of the heart, which I have seen occurring suddenly in a person who did not present any appearance of disease beforehand. … (Q) Might there be a premonition of the ailment that was about to seize him just immediately before he was attacked?—(A) It does not necessarily mean instant death; of course a person may live for a few seconds or a few minutes after the bursting of an aneurism, or after rupture of the heart, or after cerebral hemorrhage. A man does not necessarily lose consciousness instantly even after rupture of the heart. (Q) Apart from the question of a seizure of that kind do you find it difficult to account for the circumstances connected with this accident as explained by Macgregor upon the footing that this was a strong robust man and a good swimmer?—(A) The difficulty that occurs to me is that there is no evidence of his having made the slightest effort to save himself, although he seems to have been in perfectly good health. … I have been told that Professor Fraser examined Mr Ballantine for life insurance about three weeks before his death. I was told that within the last week. Assuming that Mr Ballantine died from a rupture in the way I suggest, the medical examination such as is usual in life insurance would not necessarily disclose the condition of the blood-vessels Cross.—(Q) Be good enough to assume from me that when the accident occurred the gentleman was swept off his feet, that he cried three times, that he was apparently swimming towards the edge but was swept away by the current, and that when his body was recovered froth and water were emitted from the lungs through the apertures of the nostrils and the mouth?—(A) Under these circumstances the probability of drowning would be greatly increased. (Q) Suppose that such a case had been presented to you, that would have been one of those reasonable cases in which you would have spared the feelings of the relatives by refraining from ordering a post-mortem examination?—(A) Probably I would not have ordered a post-mortem examination in a case like that.”