APPEAL UPHELD

Press, Volume LXIX, Issue 20957, 11 September 1933, Page 8

APPEAL UPHELD

AN INSURANCE CASE MAGISTRATE'S DECISION UPSET An appeal by Francis Wimbush, of Wellington, against the decision of Mr C. R. Orr Walker, S.M., in awarding £6l 7s Id to Thomas Rothwell and Herbert Marwood Tinkler, of Hinds, who claimed that amount as being the balance due from an insurance policy on a motor-truck that was destroyed by fire, was upheld by Mr Justice MacGregor in a judgment given at the Supreme Court on Saturday. The appeal.was on law and fact. The insurance cover was for £IOO and before the action £3B 12s lid was paid into the court at Ashburton in settlement of the amount owing. It was asserted in the action there that Wimbush, as Lloyd's underwriter, failed to pay the balance of £6l 7s Id making up the £IOO policy. The magistrate gave judgment for the amount claimed and Wimbush then appealed in the Supreme Court, claiming that this judgment was erroneous in fact and law. Nature of Case. "The facts of the case are not really in dispute, and the only defence now open to the appellant (Wimbush) is breach of condition or warranty on the part of the respondents," stated his Honour. "That defence depends largely on the precise terms of the policy sued lon, and the proposal therefore, signed by or on behalf of the plaintiffs (Rothwell and Tinkler). By that proposal the plaintiffs agreed to accept and abide by the conditions of the Lloyd policy to be issued thereunder, and further declared and warranted 'that the answers given above are in every respect true and correct, and that this proposal and declaration shall be the basis of the contract.' "After consideration I regret that I cannot agree with the result arrived at by the magistrate on either point. Unfortunately his attention does not appear to have been drawn to the terms of the policy itself, which was granted pursuant to the terms of the proposal. As already stated, that policy bears on its face the following endorsement: 'Warranted not insured with nor declined by any other office.' These words seem to me to be of great importance as indicating how the answers to question 4 ('Has any proposal for insurance, or any nolicy on any car in which you were interested, ever been withdrawn, declined, or cancelled?') in the proposal should be construed in this action, if not how the action should be determined. The Relevant Facts. "It appears manifest to me from the evidence that at least one breach ot condition or warranty, has been proved on the part of the respondents. One of the conditions of this policywas: 'Warranted not insured with nor declined by any other office.' From the letter of December 24, 1931, from the New Zealand Insurance Company it clearly appears in my opinion that the risk was in fact 'declined' by them. From the respondent Rothwell's letter of December 30, 1931, and the New Zealand Insurance Company's reply of January 5, 1932, it also appears that the risk was then 'offered to and declined by' that company. I think it further appears from the same correspondence that the New Zealand Insurance Company did in fact 'cancel' their existing policy over the truck, and also did thereby decline the 'proposal' contained in the respondents' letter of December 30, 1931. Support for Appellant. "None of these vital facts was disclosed to the appellant, who was thus left in ignorance of more than one 'consideration which would ancct the mind of the ordinary prudent man in accepting the risk." In these circumstances i find it impossible to hold that the bald answer 'no' given by the respondents to the question was 'in every respect true and correct' On the contrary, I think it was untrue and incorrect, as applied to both branches oC the question. In the result the defence of breach of warranty has in my opinion been established, and the appellant must succeed. "I desire to add that this appeal wa3 well argued by Mr Sim for the appellant and by Mr Brassington for the respondents. It is fair also to the magistrate to state that the argument before me appears to have been conducted on somewhat different lines from that which took place at the original hearing before the magistrate at Ashburton." ... The appeal was allowed with costs (£lO 10s) and disbursements to be paid by the respondents, the case to be remitted to the magistrate with a direction to enter judgment for the appel- . lant with the appropriate costs in the i Magistrate's Court