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Court of Appeal of Sri Lanka |
] [Hide Context] 321
1917 Present : Wood
Renton C.J. and Shaw J.
PEDRIS v. THE MANUFACTURERS LIFE INSURANCE CO., LTD.
447-D. C, Colombo, 44,358.
Life insurance-Action for recovery of amount due on a policy-Conviction of
person insured for treason by field General Court-Martial-
Execution of person
insured-Ceylon Indemnity Order in Council-May plaintiff prove that the person
insured was not guilty of treason
?-Record of conviction prima facie proof of
guilt.
The administrator of the estate of one Pedris brought this
action to recover from the defendant company money due upon
policy of life insurance. The undertaking to pay in the event of
death was a general one, and not limited to death in any particular
manner. Pedris was convicted by a Field General Court-Martial
of treason and shot. The Ceylon Indemnity Order in Council
(section
4) provided as follows:-" The several sentences and
orders pronounced by Military Courts during the continuance of martial law
are hereby confirmed, and all persons tried
by such Courts and confined in any prisons shall continue
liable to be confined there
until the expiration of the
sentences and such sentences shall be deemed to be
sentences passed by duly and legally constituted Courts
."
Held, (1) that section 4 of the Order in Council, prevented any question being
raised for any purpose as to the jurisdiction of
the Court by which the sentence
was pronounced either over the charges on which the trial proceeded or over the
person tried; (2)
that the effect of the Order in Council did not amount to a
declaration by statute that Pedris was guilty of treason; (3) that the
mere fact
that Pedris died at the hands of justice did not prevent his administrator from
recovering on the * policy; (4) that
it was open to the plaintiff to lead
evidence to prove that Pedris was not in fact guilty of treason; (5) that the
record of the
conviction of Pedris was prima facie evidence of his guilt.
THE
facts are fully set out in the judgment.
Bawa, K. C. (with him E. W. Jayewardene, L. H. de Alwis, and Skelton de Saram),
for the appellant.
Drieberg (with him Samarawickreme), for the respondents.
Cur. adv. Vult.
February 6, 1917. WOOD RENTON C.J.-
This case, which was argued before us with very high ability on both sides, and
in which we have had the advantage of a most careful
and exhaustive judgment by
Mr. Wadsworth, then Acting Additional District Judge of Colombo, raises
questions of great public interest
322
and importance. The plaintiff, as administrator of the estate of Diyunuge
Edward Henry Pedris, sues the defendants, the Manufacturers
Life Insurance Company,
for the recovery of a sum of Rs. 25,000 on a policy of insurance effected by
Pedris with them of his own
life on April 30, 1907. The amount of the insurance
was
Insurance payable to Pedris on April 1, 1927, if he should then be alive,
or to
Co., Ltd. his executors, administrators, or assigns in the event of his death
before that date. Pedris was, in the beginning
of July, 1915, tried in Colombo
by a Field General Court-Martial upon charges of (i) treason by levying war
against the King contrary
to section 41 of the Army Act, 1881,[44 and 46 Vict.,
c. 58.] (ii) shop
breaking, (iii) attempting to murder, (iv) wounding with
intent to murder, and
(v) wounding with Intent to do grievous bodily harm. These offences were alleged
to have been committed on
the 1st of the preceding June, in connection with the
riots which had then broken out in the Colony. Pedris was found guilty on
charges (i), (ii), (iii), and (iv), and not guilty on the fifth charge. He was
sentenced to death. The sentence was confirmed by
Brigadier-General Malcolm, who
was then the General Officer Commanding the Troops in Ceylon, and, in pursuance
of it, Pedris was
shot in jail on the morning of 7th July, 1915. The question
involved in the present appeal is whether the execution of Pedris is
an answer
to an action by his administrator on his insurance policy, which does not, it
should be observed, contain any condition
forfeiting the policy money, if the
assured should die at the hands of justice. The learned District Judge has
decided this issue
in favour of the defendants, and has dismissed the action
with costs. The administrator appeals.
The argument ranged over a great variety of topics. We were invited to consider
numerous questions as to the jurisdiction of the
Field General Court-Martial by
which Pedris was tried, arising under the Army Act, 1881,1[44 and 46 Vict., c.
58.] and the provision
in
section III, c. 1 of an Order in Council dated October 26, 1896, applied in this
Colony by a Proclamation by the Governor of
5th August, 1914, that-
" every person who shall for the time being be within the limits of the Colony
shall be subject to military law for the purposes
of the Army Act, and the said
Act shall, subject to the provisions of this Order, be deemed to apply to such
person in the same
manner as if such person had been a person accompanying His
Majesty's troops, or some portion thereof, when employed in active service
beyond the seas, and such person shall, for the purposes of the said Act, be
deemed to be under the command of the Officer Commanding
His Majesty's Troops.
It is, however, in my opinion, unnecessary for us to deal with this part of the
case at all. On 12th August, "1915, the Imperial
Ceylon Indemnity Order in
Council, 1915, was introduced by
323
Proclamation into the Colony. Section 4 of that enactment is in
these terms:-
" The several sentences and orders pronounced by Military Courts held in the
Colony during the continuance of martial law are
hereby confirmed, and all
persons tried by such Courts and confined in any prisons or other legal places
of confinement in the
Colony under or by virtue of such sentences shall continue
liable to be confined there or elsewhere as the Governor may direct,
until the
expiration of the sentences respectively passed upon them or until their
discharge by lawful authority; and such sentences-shall
be deemed to be
sentences passed by duly and legally constituted Courts of the Colony, and shall
be carried out or otherwise-dealt
with in the same manner as the sentences of
duly constituted Courts of Law of the Colony."
I think that the effect of this provision, which is applicable to the case,
inasmuch as Pedris was tried and sentenced during the
continuance of martial
law, is to prevent any question being raised for any purpose now as to the
jurisdiction of the Court by
which the sentence was pronounced either over the
charges on which the trial proceeded or over the person tried. The section
provides
in effect that the sentence passed on Pedris is to be deemed to have
been imposed by a "duly and legally constituted Court."
The context, in my
opinion, demonstrates that the word " deemed "in this connection means " shall
be conclusively
taken to be." We were urged by counsel for the administrator to
hold that, even if this were so, the language of section 4
of the Order in
Council itself shows that the jurisdiction of the Military Courts, whose
sentences are confirmed, was validated
only for the purpose of enabling the
sentences to be carried into effect. The words of the section, it was contended
are "
deemed to be, " not " deemed to have been. " This argument brings me to
the incidental consideration of a point with
which it will be necessary to deal
later on. It is obvious that section 4 of the Order in Council cannot be
construed in the restricted
sense just mentioned, if it applies to sentences
that have already been executed. I have no doubt but that it does. The
confirmation
in the first clause of the " several sentences " passed' by
Military Courts during the continuance of martial law makes
this quite clear.
The sentence imposed by the Field General Court-Martial upon Pedris is placed by
the Order in Council on the
same basis as if it had been a sentence of the
Supreme Court on an indictment against him for levying war against the King
within
the meaning of section 114 of the Penal Code.
There remains, however, the not less important and more difficult question
whether in spite of his conviction of, and execution
for, treason, it is still
competent for his administrator to prove in the present action that he did not,
in fact, commit the offence
of treason. This question has to be considered from
the point of view, in the
324
first place, of section 4 of the Ceylon Indemnity Order in Council.
1915, and in the next place of the general law apart from that
enactment. Do the words "the several sentences and orders
The Pronounced by
Military Courts in the Colony during the continuance of martial law are hereby
confirmed " legalize not
only the sentences themselves, but the findings on
which those sentences are based? As I have already indicated, I think that the
language just quoted confirms sentences that have been carried out as well as
those that are still current, and if it were permissible
to speculate as to the
intention of the framers of the Order in Council, there would be much to be said
for the view that they
meant to draw a politic o veil of oblivion over the
entire episode, with which the Order in Council is concerned, for all purposes.
But we have to deal here with an enactment which not merely is retrospective in
character, but was brought into operation after
the right sought to be asserted
in this action had accrued. It is clear, both on authority and on . principle,
that before the
language of section 4 is construed so as to debar the legal
representative of Pedris from enforcing a right already vested, we must
be
satisfied that the words actually used in the section are sufficient for the
purpose. The points in favour of the defendants
in this connection are these.
The section, in my opinion does deal with sentences that have been completely
undergone, and applies,
therefore, to the case of Pedris. There was no need for
a statutory confirmation of such a sentence, unless with the view of preventing
any of the steps that led up to it from being questioned in any future
proceeding, civil or criminal. The considerations that have
to be taken account
of on the other side are these. In the law administered by Military Courts, an
express distinction is drawn
between the ' findings " of those tribunals and the
" sentences " passed by them. If the framers of the Order in
Council had
intended to validate the former as well as the latter, - nothing would have been
easier than for them to have said
so. Moreover, even if section 4 of the Order
in Council covers executed sentences as well as those which are still in
progress,
the primary, as opposed to the subsidiary, purpose of the section was
to enable current sentences to be carried out. Applying to
the enactment in
question the Well-established rule of law as to the interpretation of
legislation of this character, I am not
prepared to hold that -there is anything
in it which precludes Pedris' administrator from challenging the propriety of
his conviction
on the merits.
I proceed now to an examination of the other aspect of the question. If the
guilt of Pedris has not been conclusively established
by the Ceylon Indemnity
Order in Council, 1915, is it so established by the production of the record of
his conviction? An argument
ab inconvenienti arises, in this connection, in
favour alike of the defendants and of the administrator. A person accused of
murder
is tried by a Judge of the Supreme Court with a jury at Criminal
325
Sessions, is convicted, and sentenced to death. On a case reserved
on certain points of law, the propriety of this conviction is affirmed
by the Supreme Court. If the contention of the administrator in
this case is upheld, the legal representative of the convict may
reopen the whole question of his guilt or innocence and have the
charge of murder incidentally re-tried in an action on an
insurance
policy. On the other hand, human justice is fallible. Let us
suppose that, after the execution of a person' convicted of
murder,
conclusive proof is forthcoming that he was not the murderer. Is
there any rule of public policy which makes it necessary
to debar
his relatives from proving his innocence for the purpose of recovering
a sum of money for which his life had been insured?
If we must
choose between the inconvenience of reopening a criminal trial as
a collateral issue in civil proceedings, and the injustice
of preventing
the relatives of a person, who has been wrongfully condemned and
executed, from proving that fact in such an action
as this, I prefer
to incur the risk involved in the former alternative.
The law on the subject up to a certain point is clear. Neither in England nor
under section 41 of the Evidence Ordinance is the
judgment of a Criminal Court a
judgment in rem. According to all the older English authorities,1 the record of
a conviction was inadmissible as evidence of the same fact coming into
controversy in a civil suit. This rule was
no doubt based to some extent on the
difference between the rules of practice and of procedure in criminal and in
civil cases.
But it survived the abolition of many of these differences, and,
particularly since persons accused of offences have been fully
enabled by
statute to give evidence in their own behalf, a tendency, which has proceeded, I
venture to think, upon reasonable grounds,
has been manifested by the Courts in
England to relax the old rule of law to the extent of making the record of a
conviction prima
facie evidence of guilt. In In re Crippen,2 Sir Samuel Evans
gave an express, ruling to this effect, declining to follow a decision of Hall
V.C. in Yates v. Kyffin-Taylor
and Wark,3 and a dictum of Bramwell L. J. in Leyman v. Latimer
4 to the contrary. But, so far as I am aware, the law has as
yet undergone no further relaxation. In none of the cases in which an
action on
an insurance policy has been met by the plea that the policy was void by reason
of the fact that the person insured had
died by the lands of justice, has it
ever been held that the production of the record of the conviction was
conclusive proof of
guilt. in Amicable Society v. Bolland,5 which is better
known as Fauntleroy's Case, it appears from the pleadings that the record of the
conviction was admitted, by
1 See Gibson v. Macarthy (10 George 3 (1899) W. N. 141.
11.), Cos. t. Hard. 314; March v. 4 (1878) 3 Ex. D, 352.
March, (1858) 28 L. J. P. & M. 5 (1830) 2 Dow & Clark 1 and 4 Bli.
30; and Castrique v. Imrie, (1870) N. S. 194; and cf. in the Court of
L . R. 4 H. L. 434. Chancery, 3 Russ. 351.
2 (1911) P, 108.
26
agreement of the parties, without further proof. Amicable Society v. Bolland 1 is a decision by the House of Lords, and it is inconceivable that if it had introduced such a wide deviation from the law as there The to fore understood, Lord Blackburn would have omitted to discuss it Castrique v. Imrie,2 which is, of course, a decision of much later date. Moreover, in none of the text books in which the legal position of judgments of Criminal Courts is discussed, is Amicable Society v. Bolland 1,cited in that connection, In Cleaver v. Mutual Reserve Fund Life Association3 Mrs. Maybricks Case-the point was not raised. The most recent authority on the question is the decision of the Court of Appeal in Hall v. Knight and Baxter,4 in which a legatee, who had been convicted of the manslaughter of her testator, was held to have been rightly dismissed from an action for probate of the will, on the ground that the principle according to which a person, who is guilty of feloniously killing another, cannot take any benefit under that person's will, is based on public policy, and applies equally to a case of manslaughter as to a case of murder. There are statements in the report of Hall v. Knight and Baxter4 and dicta ut the judgments of the Court of Appeal which seem at first sight to support the contention of the defendants in this matter. The summons, taken out by the plaintiff before the Registrar to dismiss the legatee from the action, alleged as a ground for her removal that "she having been convicted of the manslaughter of the testator could take no beneficial interest under bis will." The President held " that a person who had been found guilty of feloniously killing another was not entitled to take any benefit under that other person's will," and dismissed the legatee from the case accordingly. Cozens-Hardy M.R. made use of the following language: -'' The death of the testator was due to the act of the (legatee). That is a fact which has been proved, and is now incontestable. She was found guilty of occasioning the death, and a verdict of manslaughter was given. The case was taken to the Court of Criminal Appeal and the decision was upheld, and, therefore, that is a fact which is conclusively proved." But, On the other hand, the President, from whose decision the appeal was taken, was Sir Samuel Evans, the very Judge who, in In re Crippen,5 had held that the record of the conviction was prima facie evidence of guilt. If he had intended in Hall v. Knight and Baxter4 to hold that the record of a conviction was conclusive proof of guilt, he would certainly have said so in express terms, and, if the Court of Appeal had meant to lay down any such proposition, the learned Judges would not have failed to refer to the decision in In re Crippan.5 Moreover, in other parts of the judgments in Hall v. Knight and Baxter there are passages that modify the view suggested by the
1 (1830) 2 Dow & Clark 1 and 4 Bli. N. S. 194; 3 (1892) 1 Q. B.147.
and cf. in the Court of Chancery, 3 Russ. 351. 4 (1914) P. 1.
2 (1870) L R. 4 H. L. 434. 5 (1911) P. 108.
327
observations of Cozens-Hardy M.R. cited above. " I think it would be shocking, "
said the Master of the Bolls, if (the
legatee) who was the cause of the death of
this man, and was convicted of felony in respect of that, could come before the
Court
and claim an interest under any will made in her favour by the testator."
" Why should the legatee," said Hamilton
L.J., " be excluded from taking the
bounty when he can be hanged, and not be excluded when he can only be sent to
penal servitude
for life? The distinction seems to me either to rely unduly upon
legal classification, or else to encourage what, I am sure, would
be very
noxious-a sentimental speculation as to the motives and degree of moral guilt of
a person who has been justly convicted
and sent to prison." "It is against
public policy," said Swinfen Eady L.J., "that a person committing a crime
should
directly benefit in the way that it is claimed that (the legatee) should
benefit." I cannot but think that in Hall
v. Knight and Baxter,1 as in Amicable
Society v. Bolland,2 the guilt of the convict was not contested. But the
decision of the Court of Appeal in the former case involves a direct recognition
of the principle enunciated by Sir Samuel Evans in In re Crippen 3 that in civil
proceedings, such as the present, the record of a conviction should be admitted
as prima facie, although not as conclusive,
evidence of guilt. The record of the
conviction of Pedris was admitted without question in this action. The point in
dispute in
this connection was whether or not the administrator is entitled to
challenge its propriety on the merits.
I would set aside the decree of the District Judge dismissing the plaintiff's
action, and send the case back for further inquiry
and adjudication in the
District Court. The record of the conviction of Pedris has already been
admitted, and is admissible as
prima facie evidence of his guilt. It will,
however, be open to the plaintiff to rebut that evidence by proving, if he is in
a
position to do so, that, in spite of his conviction, Pedris did not in fact
commit treason by waging war against the King. I agree
with the learned District
Judge that no evidence is admissible under issue 6 (a), for the purpose of
showing that in any event
Pedris could not have had any reasonable belief that
he was committing an offence punishable with death. It is quite immaterial
what
his belief on that point was, if he in fact committed such an offence. For the
reasons given above, no question as to the
jurisdiction of the Field General
Court-Martial over the charges on which Pedris was tried or over Pedris himself
can be raised
now. The plaintiff is entitled to the costs of this appeal in any
event. The costs of the original and of the subsequent proceedings
will be in
the discretion of the learned District Judge. The evidence already recorded may
stand quantum valeat.
1 (1914) P. 1.
2 (1830) 2 Dow & Clark 1 and 4 Bli N. S. 194; and cf. in the Court of Chancery, 3 Russ. 351.
3 (1911) P. 108.
328
SHAW J -
This action is brought by the administrator of the estate of one
D .E. Pedris to recover from the defendant company the sum of
Rs.
25,000 upon a policy of insurance dated April 30, 1907, whereby
the defendant; company promised to pay the amount insured to
the
said D. E. Pedris on April 1, 1927, or in the event of his death
before that date, then upon the happening of such death to his
representatives.
The undertaking to pay in the event of death was
a general one, and not limited to death in any particular manner.
Pedris died on July 7, 1915, having been executed at the Welikada Jail in
pursuance of the sentence of a Field General Court-Martial
held on July 1, 1915,
and delivered by the Court-Martial upon a finding by the Court that Pedris was
guilty of treason, in that
he did on or about June 1, 1915, levy war against our
Lord the King.
I do not propose to set out the numerous issues which were before the Judge, or
to deal with his findings upon all of them, because,
in view of the opinion I
have arrived at as to the effect of the Order in Council of August 12, 1915, the
decision of many of these
issues becomes unnecessary.
The Judge has held that Pedris having met with his death at the hands of
justice, the policy on his life cannot be enforced, and
has refused to allow
evidence to be called with the object of showing that the finding of the
Court-Martial was wrong. He has also
held that the Order in Council of August
12, 1915, amounts to a statutory enactment declaring that Pedris was guilty of
the offence
in respect of which he was convicted, and has, in addition, decided
several objections to the validity of the proceedings of the
Court-Martial and
the execution of the sentence in favour of the defendants, and has dismissed the
action with costs.
From his decision the plaintiff appeals.
I am unable to agree with the finding of the District Judge that the effect of
the Order in Council of August 12, 1915, amounts
to a declaration by statute
that Pedris was guilty of the offence in respect of which he was convicted.
The Order in Council, called " The Ceylon Indemnity Order in Council," is
admittedly part of the law of this Colony, and
was proclaimed in Ceylon on
August 30, 1915. As its name implies, its purpose was mainly to indemnify
persons for acts done in
good faith in suppressing the riots that had occurred
in the previous June. This object is achieved by the earlier sections of the
Order, which I need not set out. Section 4 then provides as follows:-"The
several sentences and orders pronounced by Military
Courts held in the Colony
during the continuance of martial law are hereby confirmed, and all persons
tried by such Courts and
confined in any prisons or other legal places of
confinement in the Colony under or by virtue of such sentences shall continue
liable to be confined there or elsewhere as the Governor may direct, until the
expiration
329
of the sentences respectively passed upon them or until their discharge by
lawful authority; and such sentences shall be deemed to
be sentences passed by
duly and legally constituted Courts of Colony, and shall be carried out or
otherwise dealt with in the same
manner as the sentences of duly constituted
Courts of Law of the colony."
This is a legislative enactment of a very unusual character, made in a very
unusual way, and one that must be strictly construed,
and not extended beyond
the scope that its wording necessitates. I cannot agree that it in any way
amounts to a legislative enactment
that Pedris and the other persons convicted
by the Military Courts were guilty of the offences for which they have been
convicted
and sentenced.
The enactment confirms " the several sentences and orders." It does not purport
to confirm the "findings " of
the Courts, which are quite different to, and
precede, the " sentences and orders. " The section then goes on to provide
that
the sentences shall be deemed to be sentences passed by duly and legally
constituted Courts of the Colony and carried out
as such
The meaning of the enactment seems to me to be clearly apparent -from its
wording. It is to place the sentences and orders of Military
Courts on exactly
the same footing as those of the Civil Courts of the Colony, and to make such of
the sentences and orders as
have not been fully enforced enforceable in the same
way as sentences of the Civil Courts.
The decision of the District Judge on this point has been influenced by
consideration of what he thought were the objects of the
enactment and the
requirements of public policy. In the absence of any ambiguity in the language
used, I cannot see that any inquiry
into the intention of the legislative
authority is admissible, but, even if it were, there is no reason to suppose
that the object
of the enactment was to give to the findings of the Military
Courts any greater effect than those of the Civil Courts of the Colony,
which
were sitting and trying very similar cases at the same time, and I am unable to
see that any principle of public policy requires
the finding of a Military Court
not to be open to challenge in subsequent civil proceedings in cases where such
challenge would
be permissible had the finding been one of a Civil Court.
The construction, however, that should, in my opinion expressed above, be placed
on the Order in Council of August 12, 1915, disposes
of many of the points taken
by the appellant. The legislative confirmation of the sentences, and the placing
of them on the footing
of sentences of the duly constituted Courts of the
Colony, appears to me to cure , any irregularity in the constitution of the
Military Courts, and any defects in the confirmation of the sentences by the
Governor or Officer Commanding, and prevents any question
being raised as to the
capacity of the Military Courts to try and sentence
330
any particular class of persons. I, therefore, think that it is unnecessary to
go into the question whether any irregularities or
want of
jurisdiction existed or not.
There remain for consideration the important questions whether
the mere fact that Pedris died at the hand of justice prevents his
administrator
recovering on the policy, irrespective of the question whether he was in fact
guilty of the treason in respect of
which he was sentenced or not, and whether
the conviction is conclusive of his guilt and not open to challenge in a
subsequent
civil suit.
In the case of The Amicable Society v. Bolland,1 one Henry Fauntleroy, who had
effected an insurance on his life in the Society, was convicted of felony, and
executed in pursuance
of the sentence passed upon him. The Vice-Chancellor
directed the Society to pay to Fauntleroy's assignees the amount due on the
policy, but on appeal to the House of Lords the judgment was reversed, and the.
money was held not to be recoverable. The reason
given by the Lord Chancellor
for the decision was that it would be contrary to public policy to insure a
person a benefit in the
event of his committing a capital felony and being
tried, convicted, and executed for that felony; and, as it would be contrary
to
public policy for any such express contract to be made, so no contract can be
implied in a policy to pay the. money in such
an event. In that case no evidence
was given that Fauntleroy had actually committed the felony for which he had
suffered death
beyond putting in a copy of the conviction by consent of the
parties, but it is clear that the question of Fauntleroy's guilt was
never
disputed in the case, and the judgment of Lord Brougham throughout proceeded on
the assumption of his guilt. The question,
says the Lord Chancellor, is this, "
whether the assignee can recover against the insurance company the amount of
this insurance;
that is to say, whether a party, effecting with an insurance
company an insurance upon his life and afterwards committing a capital
felony,
being tried, convicted, and finally executed, whether, under such circumstances,
the parties representing him and claiming
under him can recover the sum insured
in the policy so effected." The Lord Chancellor did not hold, and, in my
opinion, did
not intend to hold, that the mere fact that the insured was
convicted of felony and executed prevented the assignees from recovering,
but
only that if an insured actually committed felony and was executed for it the
money was not recoverable.
The principle of the decision in Fauntleroy's Case is the same as that of
Cleaver v. Mutual Reserve Fund Life Assurance,2 In re Crippen,3 and Hall v.
Knight and Baxter,4 and is well set out in the
1 (1890) 4 Bligh N. S. 194. 3 (1911) P. 108.
2 (1892) 1 Q. B. 147. 4 (1914) P. 1.
331
judgment of Sir Samuel Evans in In re Crippen,1 where he says: " It is clear
that the law is that no person can obtain or enforce any right resulting to him
from his own
crime; neither can his representative claiming under him obtain or
enforce any such rights. The human mind revolts at the very idea
that any other
doctrine could be possible in our system of jurisprudence. "
If none of the cases I have mentioned was any question raised as to the guilt of
the convicted person, and none of them can, in
my opinion, be considered as an
authority for the proposition that mere conviction and execution of a person for
a felony will
prevent his assignees or representatives recovering on a policy on
his life, if he be in fact innocent of the offence in respect
of which he has
been convicted. It is worthy of note that neither in Taylor on Evidence or in
Roscoe's Nisi Prius Evidence is Fauntleroy's
Case referred to as an authority
for the admissibility or conclusiveness of judgments of Criminal Courts in
subsequent civil proceedings,
nor is it mentioned in the subsequent leading case
on the subject, Castrique v. Imrie, which I shall refer to later. In Cleaver
v.
Mutual Reserve Fund ' Life Assurance 2 the question of law to be decided was ''
whether, if it were proved that James Maybrick died from poison intentionally
administered
to him by Florence E. Maybrick, that would offer a defence to the
action, " and the judgment of the Lords Justices all proceed
on the assumption
that she was in fact guilty. In Hall v. Knight and Baxter 3 the Master of the
Bolls says in his judgment: " If there were any possibility of a question as to
whether Jean Baxter had
been guilty of the crime, that would be a matter which
ought to have been tried in Court, but when the fact is perfectly indisputable
and beyond contest, I know nothing whatever which prevents the Court, in a case
of this kind, dealing with what is a pure question
of law on an application to
stay proceedings. "So also Hamilton L.J. says it is against public -policy that
a person "
committing a crime " should benefit thereby.
The doubt that has been raised as to the effect of the decision in Fauntleroy's
Case seems to have principally arisen from the somewhat
loose language employed
by text book writers, who cite that case as an authority for the proposition
that " death at the hands
of justice " prevents a policy being enforced, an
error that Vice-Chancellor Wood falls into in Home v. Anglo-Australian Life
Assurance Co. 4
I can see no reason on grounds of public policy why the representative of an
innocent person, who has been convicted and executed,
should not recover the
amount of an insurance on his life, his death would have been just as much an
accident as if he had been
killed by a chance shot of the military when firing
on rioters, and I can see no public policy that demands that a conviction for
crime resulting
1 (1911) P. 108. 3 (1914) P. 1.
2 (1892) 1 Q. B. 147. 4 (1861) 80 L. J. Ch. 517.
332
in sentence of death should have any different effect, or be in any way less
open to question in subsequent civil proceedings, than
any
other criminal conviction.
That a conviction for crime is not so conclusive has been held in
an unbroken chain of authorities from the earliest times down to
the
present day. In Castrique v. Imrie,1 Blackburn J., in giving the
opinions of himself and four other Judges to the House of Lords,
said: "A judgment in an English Court is not conclusive as to anything but
the point decided, and therefore a judgment of conviction
on an indictment for forging a bill of exchange, though
conclusive as to the prisoner being a convicted felon, is not only not
conclusive,
but is not even admissible evidence of the forgery in an
action on the bill, though the conviction must have proceeded
on the ground
that the bill was forged. " So also in Leyman v.
Latimer2 Bramwell L.J. says: "It is plain from the numerous
cases cited in 2 Taylor on Evidence 3 that a conviction for felony is
rea inter altos acta, and of itself is no evidence in any civil proceeding
that the person convicted
has committed felony. "
One of the more recent cases on the subject is Caine v. Palace Steam Shipping
Co.,4 where it was held that the conviction of certain seamen for refusing to
proceed to sea was not conclusive against them in a subsequent
civil suit
brought for their wages.
It has also been held in several cases in the Indian Courts, of which I will
mention Ram Lal v. Tula Ram,5 that a judgment of a Criminal Court is not
conclusive in subsequent civil proceedings, and in this Colony a similar opinion
was
expressed by Berwick D.J. in the case of Gould v. Ferguson.6
Whether the opinion expressed by the Judges in Castrique v. Imrie and in the
text books that a conviction is not only not conclusive,
but even inadmissible,
in a subsequent civil suit does not go too far is open to some doubt. Sir Samuel
Evans in In re Crippen
expressed his dissent from a decision of Hall V.C. given
in a case of Yates v. Kyffin-Taylor and Wark,7 where the Vice-Chancellor, after
reviewing all the cases, held that the conviction of the defendant Work for the
murder of a testatrix,
under whose will he was claiming a benefit, was not only
not conclusive against him, but altogether inadmissible.
The reasons given by Sir- Samuel Evans in the case above mentioned appear to me
to be deserving of much weight, and I should not
be prepared to hold", whatever
may have been considered to be the law at one time, that a conviction in a
criminal case is
now altogether inadmissible in a subsequent civil suit to which
the convicted person or his representative is a party.
1 (1870) L. R. 4 H. L. 414. 4 (1907) 1 K. B. 670.
2 (1878) L. R. 3 Ex. Div. 352. 5 (1881) 1 L. R. 4 All. 97.
3 Pt. 3, ch. IV., par. 1693, p. 1416 (7th ed.). 6 (1880) 1 Br. App. B IX.
7 (1899) W. N. 141.
333
This question has, however, no
great importance in the present
case, for the conviction of Pedris was put in evidence at the trial
un objected to by the plaintiff, and both sides were prepared to
lead evidence on the issue of the guilt of the accused had the
District
Judge not decided that no evidence could be given to show
that the finding of the Court- Martial was wrong.
In my opinion the mere fact that Pedris was executed in consequence of his
conviction by Court-Martial does not prevent his administrator
recovering on the
policy, and, notwithstanding that conviction, it is still open to the plaintiff
to satisfy the Court by evidence,
if he is in a position to do so, that the
insured was not in fact guilty of the crime of treason.
The plaintiff desired also to lead evidence on issue 6 (a), viz.: - " Were the
circumstances in which the acts for which Pedris
was sentenced to death were
committed such that he could not have had any reasonable belief that he was
committing an offence punishable
with death? "
I think the Judge rightly excluded evidence on this issue, for, if Pedris in
fact committed treason and was executed for it, his
belief as to the possible
punishment for his acts is entirely immaterial.
I would set aside the order dismissing the action, and remit the case to the
District Court to enable, both sides to lead evidence
on issue 4 (b). The
appellant having succeeded in getting the decree against him set aside should
have the costs of this appeal.
Sent back.
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