Western Australian Insurance Company Limited v Dayton [1924] HCA 58

i

OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.}

THE WESTERN AUSTRALIAN INSURANCE) on Sore ee hs Drrenpant,

AND

DAYTON . 4 é a A 3 F ReEsPoNDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Insurance—Policy of insurance on motor-car—Validity of policy—Untrue answer to question in proposal—Answers filled in by agent of insurer—Authority of agent— Agent for proposer or insurer—Breach of warranty—Non-disclosure of fact— Materiality—Verdict of jury.

Practice—High Court—Appeal from Supreme Court of State—A ppeal as of right— Policy of insurance against damage by fire, dc., to extent of £350—Declaration of validity of policy—Judiciary Act 1903-1920 (No. 6 of 1903—No. 38 of 1920), sec. 35 (1) (a) (2).

A policy of insurance effected by the respondent with the appellant, an insurance company, upon a motor-car, stipulated that a written proposal and declaration was the basis of the contract. 'The proposal form contained certain questions which were untruly answered, and declared and warranted that the answers were in every respect true and correct. The untrue answers had been filled in by an employee or agent of the insurance company after he had obtained the respondent's signature to the proposal form, and the true facts had never been communicated to the company or to the employee or agent. In an action by the respondent for a declaration that the policy was good and binding on the company, the Supreme Court made a declaration 'to that effect. On appeal therefrom, r

Held, by Isaacs A.C.J. and Gavan Duffy J. (Starke J. dissenting), that the declaration was properly made.

Per Isaacs J.: The employee or agent had acted within the scope of his authority and the company was estopped from relying on the untruth of the 'answers.

H. C. or A.

1924. ~~

MELBOURNE, Oct. 20, 21,

Sypxey, Dec. 19.

Isaacs A.C.J., Gavan Dufly and Starke JJ.