AUSTIN v. ZURICH GENERAL ACCIDENT & LIABILITY INSURANCE COMPANY, LTD.

(1944) 78 Ll.L.Rep. 185

COURT OF APPEAL.

Before Lord Greene (Master of the Rolls), Lord Justice MacKinnon and Mr. Justice Uthwatt.

Motor insurance-Extension clause-Double insurance - Rateable proportion - Non-disclosure -Breach of conditions of policy -Accident involving fatal injuries to A. and injuries to N. (both passengers) in A.'s car driven by plaintiff with A.'s consent-A. insured by "Zurich," plaintiff insured by "Bell," both policies containing extension clause - Actions brought against plaintiff by N. and by executrices of A.-Settlement-Payments made (without prejudice and denying liability) by "Bell" in accordance with settlement terms-Present action brought by "Bell" (suing in plaintiff's name) against "Zurich" claiming full or part indemnity under policy issued to A.- Subrogation rights of "Bell"-Effect of double insurance-Whether imposing proportionate liability on each insurance company - Right of plaintiff to sue "Zurich"-"Notwithstanding anything in any enactment, a person issuing a policy of insurance under this section shall be liable to indemnify the persons or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of those persons"-Alleged non-disclosure of material facts by A. and incorrect answers to questions in proposal form-"The truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy" -Defective vision-Physical infirmity- Chronic alcoholism-Previous demands for increased premiums-Accident record of previous three years - Condition of "Zurich" policy requiring insured to give notice of any impending prosecution- Informations preferred against plaintiff, charging him with dangerous and careless driving-Failure by plaintiff to give notice to "Zurich"-Road Traffic Act, 1930, Sect. 36 (4). Practice-Appeal-Notice of intention to cross-appeal given by respondents under R.S.C., Order 58, r. 6-Appeal dismissed, with costs - Cross-appeal abandoned - Costs incurred solely by reason of service of notice to be paid by respondents.