FIRE INSURANCE.

Auckland Star, Volume XX, Issue 150, 26 June 1889, Page 8

FIRE INSURANCE.

OFFICIAL ASSIGNEE V. SOUTH .-.. BKITISH.

CLAIM £5&2.

[Continued from our Second Page.]

TO-DAY'S SITTING,

The Court; resumed at 10 a.m. tins morning, when Mr Hugh Campbell addressed the jury. He said that the defendants had set up, that the plaintiff did not comply with the conditions of the policy. It was required that a written notice should be served upon the Company. That had been done, for a notice was sent, stating that a fire had taken place on that particular day, and that notice v> as signed by the insured himself, and by the agent of the Company. There was also the fact that the Company had appointed an adjustor, before whom the particulars of loss had been placed. The affirmation had been placed before them and duly proved. He had produced the books of account, and there was no evidence that any of the conditions had not been strictly complied with by the insured. The accounts had been adjusted, and therefore they were entitled to payment. Then there was the 15th condition. Valuers were appointed on either side, and they wese therefore entitled to payment of the claim. His friend had posed as the representative of public justice, "but had they placed all the information in their possession at the disposal of the Official Assignee? No; everything had to be kept back until the last moment. This case really assumed the phase of a prosecution for arson, but he was himself merely there asking for payment on behalf of the Official Assignee. His friend had exercised all the art in which he was an adapt and past master to make the jury believe that he was there like a public prosecutor,' bub they must not forget that he was there merely as .the representative of an Insurance Company that wished to escape payment of a claim. He would liken his friend's arguments to a cobweb which obcured vision, but which could easily be broken, and no power on earth could reconstruct. His friend said that he would treat the matter on broad grounds, but his grounds were too broad altogether. The whole evidence must be focussed on the question as to whether there was design in the mind of Herbert Bradbury when the fire was originated. Herbert Bradbury might have been the innocent cause of that fire, or it might have been caused by a brand thrown through the wiudqw. There was nothing to show whether the fire was caused by accident or design. Hewould endeavour to locate that tire and show thorn how it commenced. Bradbury had a vight to be in the house, so that his triend's alluaion to a man found in the possession of stolen property was not analogous. If Herbert Bradbury took the keys of those doors away with him, he had a perfect right to do so. What was the use of locking the door unless he took the key away with him ? He just followed his ordinary practice if they believed the evidence for the defence. Mr Campbell then reviewed the evidence to show thatthe two girls saw the window open before the arrival of Mr Telford. Then Detective Herbert's evidence showed that according to the statement of Bradbury the alarm was given about 25 minutes after he left the house. Mr Collins' evidence made the time much shorter, but the girls said that they continued playing the piano ten minutes after theii brother left the house, and then, alarmed by the smoke, they went downstairs, and nodoubtthosewcrethe footsteps which Mr Collins heard. lie contended that the testimony for the prosecution proved the truth of the evidence of the two Bradburys aa to what took place up till the alarm of fire was given. Mr Telford told them that when he first saw the fire *it was so small that ho could have easily put it out. Unfortunately he did not get through the window and put that fire out; then they could have fully seen what there was in the shape of design in the origin of the fire. There was no evidence of kerosene, oiled rags, and such usual concomitants of incendiary fires. The progress of the fire was so slew at first that it could not have originated in a mass of combustible material. The evidence as to what took place after that was immaterial, as it would have happened whether the fire resulted from accident or from design. The evidence with regard to the second fire was of a most remarkable kind. The evidence showed that Herbert Bradbury had nothing to do with that fire. He was not there afc the time. The girls and his brother all stated that their brother did not go into that kitchen. Although it might be unnecessary for him to explain that fire, still he would speak of it. Mr Campbell contended that the blast of air from the open window caused the fire to spread so rapidly that it reached the curtains. They burned and fell down on the shelves and fired their contents. One of the partitions was badly burned, and that was explained by the presence of the fire kindlers. It was perfectly clear upon the whole case that Herbert Bradbury had nothing whatever to do with either of those fires. While there was no evidence for design, there were many signs that there was no design in that fire. He could have done it more conveniently and securely than on a Sunday night during church time, in the summer when there was plenty of light. Then his twosisterswereupstairs. Wore they to think that he, with diabolical meanness of malice aforethought, lit a fire which would cut off their only means of egress from the building? "That of itself showed ifc was incredible to believe that this man had originated the fire. He had stood in the place of a father to those girls since he was 16 years of age, and was it reasonable to think that he would act in such a manner ? If he wished to light the tire the shop was the most likely spot to start it and not to put it in a corner right opposite to a window where it must be seen. Then there was the fact that the caah box was found with money in it. ■ Would he not at least have secured the money if he intended to burn down the premises. The other witness arrived later on, when the fire had made progress, and their testimony was therefore of little value. Then the usual proofs of arson were absent on this occasion. The Insurance Company could not complain of an attempt to defraud, for when the insurance was effected the goods were in the premises, and though goods had been sent away, still the goods in the pi-emises realised after the fire more than the amount of the insurance. If Mr Bradbury found that his business was not paying, he could have sold them for their market value. So there was a total absence of motive, and thus, the evidence had j utterly and entirely failed upon that point. Mr Hesketh had laid stress upon the point that bills were coming due and there was no money to pay them ; but it should be remembered that not a bill was due until the 4th of April, with the exception of th«> bill for £18 due in March, and for which ho with scrupulous care left a cheque with his mother. Then there was the fact that he had an income of abovit £40, and was not pressed for money. So there was absolutely no evidence as to motive. According to Mr Skinner's calculation £767 worth of goods were on the premises at the time of the fire, while the valuers reckoned the amount at £600, find of course the goods would be of greater value to Mr Bradbury. Now he would refer to the absence of Mr Bradbury. His absence was no proof of guilt. When he came to Auckland from the country lie was to a great extent inexperienced in the ways of the world. Mr Skinner, an experienced accountant, was continually going to him for explanations, which he, with bis want.of knowledge,

was unable to give* This worked upon his sensitive mind until the poor young fellow went away, as he felt he could" not face the jury. But before he goes he thinks of his mother, and draws a cheque for all the money he had. in the bank and leaves ib with her. He thought it cruel and unkind of Mr Skinner to pester that poor young man until he was compelled to efp away. This young man associated only with his family, and yet you are asked to believe that for come inexplicable causa he commits a horrible crime without a motive. Ho would leave the matter confidently in their hands, trusting that they would return a just and true verdict. THE JUDGE'S SUMMING UP.

His Honor next addressed the jury. He said : Mr Foreman and gentlemen of the jury , )—As you have heard, this is an action brought, not by the person insured himself, but by the Official Assignee on behalf of the creditors, for the purpose of recovering insurance effected by the bankrupt upon his stock. The Assignee, it must be remembered, cannot stand in any other position than did Bradbury himself. He stood in exactly the same position as Bradbury. Therefore you have to try whether Bradbury was entitled to recover the amount due under that insurance at the time when he went away. There seem to me two points which you have to determine arising out of the defence set up by the Insurance Company. The most important ono is that the insured himself set this building on fire. In fact, that he coinIf he did so then of course he is not entitled to recover. Then if you are satisfied that he did not set the premises on fire, you have to consider nevertheless, if he failed to comply with the conditions of the policy, and was not entitled to recover on that account. The first is the most important question, Was it Herbert Bradbury who set it on fire or not?" Now in this as in every other case the person alleging must prove this to your satisfaction. It is not mere suspicion, there must be evidence adduced that he did set that building on tire. It has been put to you that you ought to presume that "he set it on fire in consequence of certain suspicious circumstances, because he was the last person seen on the promises, and that the fire occurred 10 minutes after he left. Now, gentlemen, let me say that there is no such presumption at law. His Honor then referred to the instance cited by Mr Hesketh of a man found in possession of recently stolen property, and said that under such circumstances the jury must under prosumption of law hold such person guilty. He said that in the case of a man found shot and paper being found in the possession of another which corresponded with the wad found near the body, that would be a suspicious circumstance and could bo taken into consideration by the jury ; but he apprehended that no jury would say .that was sufficient alone to convict, but taken in conjunction with other circumstances it might be important. If a person were found close to the body it would be no presumption of guilt. True, if on bis clothing blood was found or a weapon similar to that -with which the murder had been committed, it would be very suspicious, but there would be no legal presumption as in the case of theft. His Honor continued : In the present case you must look at the various circumstances and say whether you are satisfied that the insured did set fire to that house. Now there are two facts which are undisputed, in fact admitted on all sides, namely, that this fire originated in the insured's own bedroom, or, as it has been called, the show - room. It is proved that he was in that room ten minutes before, and locked it up and took the key away with iiim. Those, so far as I can see, are the sole facts which point to him as the person who set the place on fire. There are circumstances to show motive, but these seem the sole facts which indicate that he act the house on fire. You must also remember in considering these facts that there are other facts which bear upon the opposite side. Thus the windows were left open. That is shown by the sisters, and also by Telford. The latter, with the proper instincts of a stoker, knowing how the draught would assist the fire, shut the window and then ran to the station. Then you must remember that the accused, if guilty, must have done this knowiug that his sisters were upstairs, and that they would experience difficulty in getting out. Do those facts satisfy you that he was prepared to sacrifice the lives of his two sisters, and also the property ? Even if it happened that the fire resulted through carelessness, that is not an answer to the claim. The act must be wilfully and intentionally done. You must consider, if he did set the place on fire, why ho did not take his sixers out with him foi a walk and not leave them in danger. You must satisfy yourselves beyond doubt that if he did sot it on fire, he did so wilfully. His Honor further said that the counsel for defence had to some extent anticipated his remarks by calling attention to the order of the persons who arrived at the fire. First were the girls, then Telford, who shut the window. Then Collins, and Fenton, who found the window shut. As to the time, they could not depend much upon that unless established by other facts. Mr Collins calculated the time by two verses of a hymn having been sung in a neighbouring church. But then there are long verses and short verses, quick music and slow. The only real evidence as to time was that of young Bradbury, who said they left the house at 20 minutes paat 7 o'clock, and that is corroborated by Dowding. From these facts it would appear to be about 10 minutes afterwards the fire was discovered. All the evidence showed that the whole thing occurred between seven and a quarter past. They must consider whether the facts tended to show that the fire was the wilful act of Herbert Bradbury. They must also consider whether the time and position of the fire were well chosen. They must take these things into consideration to determine whether the fire was wilful and intentional, and also to consider what motive there had been for that fire. The motive suggested was either to defraud the Insurance Company or his creditors. The evidence showed that there was. more stock tlaan he was insured for. Therefore he would bealoser. Itcould hardly be todefraud Ms creditors, especially when he could much more easily defraud his creditors by going through the Bankruptcy Court. It was a very much simpler and easier act, and much too common nowadays, for a man to file his schedule. Therefore, they must consider whether or not there was any motive. No doubt it wat; a very suspicious circumstance that he had nod. But it was not evidence of his having committed the crime. They knew that there were men who were sensitive. Men who were so sensitive that they have, when innocent, fled or committed suicide. Therefore, you have to consider whether this young man may not have simply out of cowardice gone away, instead of whether he went away because he was guilty. A point had been made of the fact that there were two fires. Well, if that were so, the one upstairs must have been lit first. But the evidence was slight. Edith Bradbury and her mother say that there were curtains in the show-room. Edith Bi'adbury says that she saw those curtains on fire. Those curtains would cause a sudden flash which might beseen on the window, whereas the fire in the show-room would not haveshown such a glare. If Edith Bradbury's testimony was to be believed, that accounted for the whole thing. While the Bradburys spoke of fire - lighters in the box, it

was strange that the firemen did not appear to have noticed them. It was for them to say whether ib was not much more probable that the curtains took fire accidentally by a spark coming through the open window. It was for them to judge whether those two fires were intentionally, started, and whether there was sufficient evidence to show that they were wilfully originated. If they came to the conclusion that this fire was the wilful act of Herbert Bradbury, then their work would be at an end ; but if they could not satisfy themselves on that point, then they must consider whether theie was a substantial compliance with the conditions of the policy. Absolute compliance was nob necessary so long as the Company were informed about the fire. The Company were informed, and must have accepted the notification, as they sent Mr Skinnei to inquire into the matter. Ib was also requisite that a full claim of loss should be put in'within fifteen days. There was practically a statement of the loss of the insured, as an agreement was made with the Company's agent. He had not, however, verified it by,a declaration before a Justice of the Peace* They must consider whether thab was not seeing that an agreement had b6en made with the agent— that it had been superseded Joy the appointment of two valuers, in fact that it had been verified by third parties. Here they had the account made out by the arbiters of the Company, and thus the further verification might be unnecessary. It did not apply to cases where the accounts were made by an official of the Compauy. tJy adjusting, the loss he virtually substituted that act for verification. If they vvere satisfied that it wa3 so, then of course thab would be substantial compliance with engagements, and would meet all the objectsof the couditionbof policy. Of course, if they thought that the conditions had not been substantially verified, then the plaintifl' had no right to a verdict; if, on the other hand, they considered that it had been substantially complied with the plaintiff would be entitled to recover. The amount claimed was £526 16b lid and £35 7d. From the latter they must deduct the amount of goods which were admittedly tho property of Mrs Bradbury. In concluding, Hia Honor said that if the jury were satisfied beyond reasonable doubt that lie did not set fire to the house, and that he substantially complied with the conditions on the back or the policy, then they must return a verdict for the plaintiff. If, they found that he did set ib on fire and did not comply' with the conditions then the plaintiff would not be entitled to recover, The jury retired for twenty minutes, and returned into Court with a verdict for the plaintiff for £541 3s lid. Mr Campbell asked that judgment should bo entered up.

His Honor gave judgment for £541 3s lid with costs upon the higher scale, leaving it open for the defendant to move to set aside the judgment and get a rehearing. In arranging tlie costs His Honor said, " I don't like to allow two days, as I think it has a tendency to open out cases. I will allow a day and a-half."

Mr Hesketh asked His Honor to certify that it was a lit case to have been brought before a epecial jury, which Mis Honor did.