LAW REPORTS.

Dominion, Volume 1, Issue 291, 2 September 1908, Page 11

LAW REPORTS.

SUPREME COURT. CIVIL SITTING. • ■ , CLAIM FOR INSURANCE "MONEYS. _ C. N. -.KOKKJER v. AUSTRALIAN, ALLIANCE CO. ; VERDICT FOR THE PLAINTIFF. .. The caso of Christian N, Rokkjor, formerjy of Waipukurau, 'but noiv or Wellington; draper, v..the Austfftliah Alliance Insurance Company, was heard yesterday before; Mr; Justice Cooper and a jury of four; of whom Mr] Henry Burno was appointed for'email. •; Mr.' . Nielson appeared on behalf of the plaintiff) .and Mr. Menteath for the defendant coinpariy. • ■ , I'Tho : statement of claim set forth that plaintiff ; was the owner of stock-in-trade of drapery and household effects' contained ;in a defiling ihbuse situated in ''Ruatahiwha Stretot, .Waipukurau.. On February 22, 1908, in,.consideration of the sum of £4 05.. ; ,9dv the' defendant company' Executed to plaintiff a.'policy'of insuranco upon the whole of the goods for. £250. On-May 1, 1908, this goods wn-op;with, tho exception'-jof' several minor articles of furniture of littlo market value, totally destroyed by fire, plaintiff's loss t&bieby being, £430 os. 7d. The defendant company had not paid over to tho plaintiff tHo ainount of the ; risk. Wherefore, plaintiff.. prayed judgment for ; the .sum of. £250 and costs. ; • ; ' ■ The';-defence ",to tfas,'"that; the policy was issued upon a. proposal signed by plaintiff, which contained,a. statement ; to the eitfeot that the risk-:had'-hot-previously been declined by any other compapy, which statement .defendants . alleged was knowingly false. It was further alleged that the-risk had'-.been proposed : for"and declined ,by the Phoenix; Firo Insurance-Office, and that by reason", of. the alleged' false, statement the policy,' if such wero'executed, was' void as against, the defendant company'. • Plaintiff (sworn) . stated that he came.,t;o Neiw. Zealand from Denmark about four yeah 4go. He had never received any in? struction in-the English- language,- but lib cbuld,,read easy, ?^nt^nc6s. i ; If _hp wero v jeliis -wife : wr.ot<i- it 1 outVfifst, and .he' copied'it. vLast year they went to Waijpukurau to- commence in tho drapery .business.' Shortly after tho establishment, wis opened, a".neighbour named .J. C. : Simpson suggested'that ho should insure with -the Phoenix i; Fire Insurance Office. Plaintiff signed'a- r proposal and paid a premium,, but-the'.risk .was declined. It was 'a fapV-''that',*'before 3 'he went: to Waipukurau some, property belonging to him, and insured! by .the Phoeiux. Company, was damaged >by 'fire. Tho'Phoenix Company paid him:,jE2B,'in '.respect of the damage. Suose■jqiiently the Phdenix Company issued a fresh policy'"to . him/-- Plaintiff knew of no reasori why;,the.risk in respect of his property at VVaipiikiirau Should have been refused by tho" IJhoe'uix Company. -Later on, 'plaintiff en-tßred'-into negotiations with P. S. Carroll, tho agent for the defendant company. He told Carroll that lie wished to insure his stock;; which was worth £220, for £190, and his furniture, which, excluding jewellery,' wal-valued .by him at £80, for £60. Plaintiff farther■ stated that' it'.was 'his' Mention .to. increase \ his' stock. . Carroll v requested, himi'tp/fcsign 'a proposal and . pay the pre-mium,-but never asked him whether, the risk had,, previously, been declined by, any other ooinpajiy. Plaintiff' did- not ■ see words "on the'proposal, and if-he "had, he would" not hive ...known what was meant by them. The fire', his premises was caused through ? a . kerosene lamp,.. accidentallyupsetting,;, '-.Sijme Articles- <>f furttiturd;' valued at £7,-were saved. A declaration of loss had been;sent in, ; but he had not received the insurance. moneys. At this stage, his Honour said that the whole question was whether plaintiff made a false .'statement, which went to the' rootifof the'policy. -~ If he did; then the policy was void'j'Jif'he" did not, the pbliey was a good oht>.:. ' • ' ■

Replying' to*'Mr! Menteath,' plaintiff "de-' olaredjihatithe agent "for the defendant company did not ask Him if the'risk had been refused by; any "other office. : This closed the case for the plaintiff. Mr. Menteath, for the defendant company, submitted'°that, ; 'on the'facts "as disclosed, there .was no case to go to the jury. ' Honour said he would reserve to Mr. Menteath, leave to move for a non-suit. The queitioii,-..whether plaintiff knew", what .Wis meant.by'.the-inquiry in the proposal as to whether the risk had been declined by any other would be put to the jury. , -Patrick' Stephen Carroll, in evidence, stated that he was agent'at Waipukurau-for the defendant-company. -He asked plaintiff whether, any. other fcompany/had refused the risk and'plaintiff had answered in the negative! ■ Obarltbri. D. Morpeth, adjuster, deposed that";plain,tiff had told him.that he had.not inforhi^d. the agent for. the defendant company : that'the risk had been declined by another company, as he' did 'not sie why lie so.His.Honour, in summing-up,; said that as a proposal signed by plaintiff had been pro-duced-the onus lay on plaintiff to show that the answers to questions therein were not his. '.. ; . ' ' ' "

.' Subsequently, .his Honour stated that even if the jury found' in favour of , plaintiff there was ;a-substantial question of . Jaw to be-ar-gued ;>af, the jury found for the defendant company, .that would be "the end of the case, The jury, which retired at 3.20, returned at , 3.50; with the following answers', to the issues/submitted to. them:—(1) 'Did the defendant company's, agent be-foro-:.the'plaintiff signed the proposal ask the plaintiff whether the risk had been proposed .declined-by any other .company?— Answer:.; No. . ...... . , (2) Did the plaintiff answer'"No" to such question?— Answer: No. (3). Did the plaintiff at the time he signed theiproposal know that it conjoined the ques j tio'rii.'ahd the answer?—' Answer: No.' ' ' • Mr.'.i.Neilson, on behalf of the plaintiff, moved; for judgment 1 for the plaintiff.. His said the answers of the jury' meant'that there had been no wilful misstatements on. the part of. the plaintiff. ' Ho would. reserve', the 'matter:/until Thursday morning at 10.30 o'clock for further consideration and argument;