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C. A.

1903

ZIMBLER

v. ABRAHAMS.

Vaughan

8 & 9 Vict. c. 106. If the defendant has a right under this document to specific performance, there is an end to the plaintiffs' claim, unless it can be shewn that the contemplated interest has come to an end. I have then to look at the document and ask myself what interest was agreed to be granted Williams L.J. by it. I have a difficulty in saying that the interest was to be merely a tenancy from week to week, for that would be to give effect to the earlier part of the document and none to the latter portion. If that is not to be taken as the meaning, the alternative seems to be that it was intended to grant to the defendant a lease of the house for his life subject to two conditions, one that the lessor might turn him out if he did not pay his rent regularly, and the other that the defendant could determine his own life estate by moving out. Speaking for myself I should, in the absence of authority, have doubted whether equity would have granted specific performance of an agreement of that sort, because the lessee may at once determine his life estate and make the lease futile.

If the defendant is entitled to specific performance, it follows that he is not liable to be ejected; but I do not think that our order ought to end there, for it seems to me that the plaintiffs ought to recover in this action unless the defendant, who must be treated as if he had answered the claim of the plaintiffs by a counter-claim for specific performance, within fourteen days elects to ask for specific performance of this agreement, which would be granted upon condition of his paying all the arrears of rent now due. If this is carried out the appeal will be dismissed.

STIRLING L.J. I agree. If the document of October 5, 1896, is to be treated as being an actual demise, then, by reason that it was not a deed, according to old decisions and the more modern case of Cheshire Lines Committee v. Lewis (1) it is at law of no effect. Having regard, however, to the decision of Lord Chelmsford in Parker v. Taswell (2), we have in this case a document which, though it may have been intended to operate as a demise, may still be looked upon as an agree(1) 50 L. J. (Q.B.) 121. (2) 2 De G. & J. 559.

ment for a lease capable of specific performance. If the true construction of the document is that it was not a demise which turned out to be inoperative, but an agreement for a lease, the case for specific performance is a fortiori. The opinion of Lord Eldon in Browne v. Warner (1) tended in this direction. In Cheshire Lines Committee v. Lewis (2) Brett L.J. doubted whether specific performance could be granted of the document as an agreement for a lease because the same difficulties of inconsistency and repugnancy would be met with as in treating it as a lease. But, in Mardell v. Curtis (3), Cozens-Hardy J. granted specific performance in a case somewhat similar to the present, and I see no reason to dissent from the decision in that case. That being so, the consequences pointed out by my Lord follow. I think that the defendant is entitled to relief upon the terms of the agreement being fully performed by the defendant up to the date at which specific performance is obtained.

MATHEW L.J. I am of the same opinion. I think that the document must be construed as intending to create an interest in favour of the defendant. It is plain that it was intended to impose a burden on the estate of the lessors for the benefit of the lessee. The interest of the lessee was the right to occupy the premises as long as he regularly paid the rent which was reserved. It is only in this Court that there has been an opportunity of raising this question of specific performance, and I agree that the defendant is entitled to that relief upon the terms that have been mentioned.

Appeal dismissed on defendant complying with
the terms imposed.

Solicitors for plaintiffs: Brighten & Lemon.

Solicitors for defendant: G. Vandamm & Co.

C. A.

1903

ZIMBLER

V.

ABRAHAMS.

Stirling L.J.

(1) 14 Ves. 156, 409; 9 R. R. 259.

(2) 50 L. J. (Q.B.) 121.

(3) W. N. (1899) 93.

A. M.

1903

Feb. 23.

MARDORF v. ACCIDENT INSURANCE COMPANY.
Insurance-Accident—Construction of Policy—" Intervening Cause.”

A person insured himself with the defendants under a policy whereby the defendants agreed to pay him a certain sum in case he should be injured by accidental violence and should die within three months of its occurrence, if the injury should be the "direct and sole cause" of his death. The policy was subject to the condition that it should not apply to “death. . . . caused by or arising wholly or in part from " any "intervening cause." The assured on July 2 accidentally inflicted a wound on his leg with his thumb-nail. His leg became inflamed, and on July 9 erysipelas had set in. This was followed on July 12 by septicemia, and on July 16 by septic pneumonia, of which complaint he died on July 22. It was conceded by the defendants that the septic germs, the development of which resulted in the man's death, were introduced into his body at the time of the infliction of the wound :

Held, that the erysipelas, septicemia, and septic pneumonia were not "intervening causes" within the meaning of the policy, but merely different stages in the development of the septic condition which was immediately brought about by the introduction of the poison, and that the man's death was directly and solely caused by the accidental injury to his leg.

CASE stated by arbitrators in the matter of a claim by the executors of John Mardorf, deceased, against the Accident Insurance Company.

In September, 1895, John Mardorf effected an insurance for 10007. with the Accident Insurance Company, under a policy whereby, in the event of the insured sustaining any personal injury caused by external and accidental violence, the company bound themselves to pay to the insured or his personal representatives compensation as follows:

"A. If such injury shall be the direct and sole cause of the death of the deceased within three months of the happening of the injury. . . . 1000l." If the injury only caused total or partial disablement, less sums were payable.

"E. And the company hereby further agrees that if the insured, not being entitled to any other form of compensation under this policy, shall independently of all other causes be totally and absolutely incapacitated by disease as defined in

the notices indorsed hereon from attending to business of any kind, then the company shall pay for every week during which he shall be so incapacitated compensation at the rate per week of 61."

It was provided that the policy and insurance thereby effected should be subject to the conditions and notices thereon indorsed. Among the conditions in the policy was the following: "Provided further that this policy with reference to compensation for injury to the insured applies only to death directly and solely caused by some outward and visible means of which proof satisfactory to the directors can be furnished, and does not apply to death caused by or arising wholly or in part from disease or other intervening cause, even although the disease or other intervening cause may either directly or otherwise be brought on or result from accident."

Among the notices indorsed on the policy was the following: "The word 'disease' in this policy means 'typhus,' 'scarlet fever,' or 'typhoid fever,' 'smallpox,' ' diphtheria,' or 'measles.'

John Mardorf regularly paid the premiums on the policy and died under the circumstances hereinafter set out on July 22, 1901, and at the time of his death the policy was in force.

The executors claimed 1000l., the sum assured, from the insurance company, who denied their liability, and the dispute was referred, pursuant to the arbitration clause in the policy, to arbitrators.

At the hearing before the arbitrators the following facts were proved :

John Mardorf was a master baker, fifty-nine years of age. On July 2, 1901, after a long day's work, he came home in the evening hot and tired; and whilst he was taking off his socks one sock adhered to his skin, and in trying to free it he inflicted a wound with his thumb-nail on the side of his leg.

Between July 2 and July 7 the deceased attended to business, but complained of feeling ill, and took to his bed on July 7. On July 8 a doctor called and saw the wound, which he pronounced to be in a septic condition.

VOL. I. 1903.

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MARDORF

v. ACCIDENT

INSURANCE

COMPANY.

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ACCIDENT

INSURANCE
COMPANY.

On July 9 the doctor again examined the leg. Erysipelas had then set in. The erysipelas had originated in the

wound.

On or about July 12 septicæmia set in, and some time between that date and July 16, in the opinion of the doctor, septic pneumonia set in, as there were symptoms of it on the 16th, and a consultation was had with another medical man. On July 22 Mardorf died. Septic pneumonia was the cause of death, and in the opinion of the medical men it was consequent upon the wound, and but for the wound he would not in their opinion have had septic pneumonia.

The question for the opinion of the Court was whether the death of John Mardorf was a death covered by the policy.

Norman Craig, for the plaintiffs. The injury to the man's leg was the direct and sole cause of his death. The case of Fitton v. Accidental Death Insurance Co. (1) is an authority in favour of the plaintiffs. There, in a policy against death directly and solely caused by accidental injury, there was an exception of "hernia or any other disease or cause arising within the system of the insured before, or at the time, or following such accidental injury, whether causing such death directly or jointly with such accidental injury." The assured accidentally fell and ruptured his bowels, immediately causing strangulated hernia, which disease necessitated a surgical operation from which he died. It was held that the death was covered by the policy. The kind of hernia there excepted was a disease arising in the system, and not one immediately caused by the injury. So here the septic pneumonia is not within the exception of "disease or other intervening cause," for the germs of that disease were obviously introduced into the assured's body by the same instrument which inflicted the wound, and the death was consequently directly caused by the wound. In Smith v. Accident Insurance Co. (2) the exceptions in the policy included "erysipelas or any other disease or secondary cause or causes arising within the system of the insured before or at the (2) (1870) L. R. 5 Ex. 302.

(1) (1864) 17 C. B. (N.S.) 122.

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