SUPREME COURT.

Dominion, Volume 3, Issue 763, 11 March 1910, Page 11

SUPREME COURT.

DEFINITION OF BLiNDNESS. POLICY-HOLDER'S' CLAIM. A special case involving the construction to bo placed upon tho words "permanent partial disablement," as used .in an insurance policy,' was argued 1 before tho Chief Justice, Sir-Robert Stout, at a Banco sitting of the Supreme Court yesterday. Tho plaintiff. Falconer John Macdonald, cleric, claimed ,£SO from the .Mutual Life Association of Australasia, (defendant). Mr. P. I. O'Regan appeared for plaintiff, and Mr.. H. D. Bell, K.C., with him Mr. E. J. Fitzgibbori, for the dofendant.company. The caso for plaintiff was that, on September 2, .1908, while ho was in the apt of opening, a tiii of cheese, some liquid matter, squirted into his eye, in-conse-quence whereof he was totally incapacitated for a period of eleven weeks, and also suffered permanent partial ' disablement by tho loss of the sight of his eye." -•tinder the policy of insurance which plaintiff held,.ho claimed to be entitled to the payment of .£SO by tho company, who,. ■ however, denied that they were liable,. It was admitted by tho insurance company that; the diseased condition of the eye was "caused by an "accident" in terms of the policy. The question for the opinion of tho Court was whether plaintiff was entitled to recover as for. permanent partial disablement" in terms of tho policy,- "inasmuch as it is admitted by the plaintiff that, he has perception of light by the said injured eye." ■ ... Mr. O'Regan referred to a letter from Dr. Hislop to the company reporting on the case,- an extract from which .was as follows:— ;

The affected eye .still has "pcrcep-.... tion of light," and the ability to . perceive in a very blurred manner the general outline of prominent objects, but there is so much corneal opacity, that the eye is of 'no use for. the purpose of the assured s occupation, and, indeed, is" of little practical iise for. any purpose, except to distinguish daylight from dark. In' the medical sense it is not totally blind, but, if the other ono were similarly affected, the assured would find'great difficulty in earning a living. It seems to mo a point for the company to decide whether, in the definition; the words "loss 'of sight"". mean ■ "blindness" in the. medical sense, or whether, they are to ■ convey the meaning, in a more '. general- sense, of "loss of use," which undoubtedly is present in this case. Mr. Olcgan said that, the' case, no matter what the result, was one calculated to make the path of insurance canvassers hard. The injured eye was useless, and was permanently damaged. \. • ■ His Honour:, You say that he has not got an eye. That is what it amounts to. Mr: o'"ftegan: That is what it amounts to; We say that the eye is just as useless to him as if the eyeball had been physically removed. We admit at once that he has a perception of '■ light, but that is of no use to him in his, occupation. ■ In further argument, Mr. O'Regan said that, in connection with tho construction of contracts, words were, construed ■ most strongly against the person using, them. The wording;of the policy had been fixed: by the company, and it had been' held that, where there was ambiguity in a policy, that construction was to be preferred which favoured ,tho i assured arid bore strongly against the. company which 'prepared'the'policy. : : : " . -Mr; Bell said that tho whole question was:: What does "complete" loss.of sight mean? If insurance companies were to be bound by the decision of a judge, that incapacity from work . mcaiit total disablement, ~ they would have to . increase i.the'ir present premiums. For the pur;poses of the policy, if there was perceppoil i.there was not total 16ss' of sight. , ■ His Honour asked whether a man would not be. wholly blind whose eyes could' not "see" things.in the ordinary sense: '~ ;, Mr. Bell replied that the'test of'blind-' nesswas given in tho Acts of the ties; There the case was of "a blind man who could not see the sun." His Honour remarked." that the optic nerves of a blind man with his eyes shut, so ho had been told, might, still, perceive that the. sun was shining. ■ ■'.'■ ' Mr. Bell said that suqh a case.was like that of a blind man, who, on touching something scarlet,/declared that it was "like 1 the sound- of \ aj' trumpet." That was his description of the sensation upon his'rierves. ■' • . ; His Honour referred to the case of a solicitor ■■ who had been insured for total disablement,-ahd who;.was injured in tho hunting field to such; an extent;that he had to do. all. his business at his own house. He succeededj.in his action. One of .the arguments i agiihst him was that, being a solicitor, he (had no need of the ankle, but.had he lieen a dancing.master the position must have been different. The reply, to was that a dancing master .might, give lessons in dancing while. sitting in a chair. •. Judgment was. reserved.

.■:, A DAM' a| WAIWETU. \". Sitting int; Banco, the Chief Justice' heard an originatiiig summons under the Declaratory Judgments Act, 1908, the case involving'the .construction to'be placed upon Section' 62 of;.the Land Drainage Act, 1908. Plaintiffs were John. Eli Ellis, flock manufacture!!, of Lower Hutt, and Edith Dorothy .Ellis; his wife, and they were represented ly Mr. C. B. Mbrison. The Hutt County Council.'(defendants), were represented by Mr. A. de 8.. Brandon and Mr! Ward. " '. ' The summons placed before the Court the following questions: (1) Whether the local authority hid power and jurisdiction under Section 62 of the Land Drainage Act, 1908, to riake an order—(a) compelling the removil of a mill dam in the Waiwetu Stream, ivhich plaintiffs claimed a legal right .to maintain, the dam being on the freehold. property of Mrs. Ellis, and (b) entailing ion plaintiffs a penalty for noh-complianciv without first having heard plaintiffs ori the facts and law. (2) 'Whether'a mill dam'was "growth or refuse' and obstructions"'within the meaning of Section 62; l (3)' Whether a County Council-\ras the.proper local authority to exercise the powers of the Act inresp'ect of ah alleged obstruction situated within a River Board district." (4) Whether it was a <proper exercise of authority..for. a local body to issuo'such' an order as was issued to the | plaintiff,' John Eli Ellis, on December 11, 1909, on.an indemnity by a ratepayer, without first hearing tho person to bo Iffectcd. .. < . 11l his affidavit, jlaintiff, John Eli Ellis, stated that tho land on which the dam stood had been purchased by his wife from Samuel Sma}t Mason in .1907, and tho business of flock, manufacturing had been carried on b| plaintiff there since 1898. Plaintiff believed that the defendant council give him noticb to remove the dam atjthe request of ■ Carl Rasmussen, owner of adjoining land, on tho latter's agreeing'. .to indemnify the council against thojeost of any appeal to a magistrate under! the Act. It was pointed ouj.by counsel for plaintiffs that tho order was made against the occupier of the property, but no notice was given to'tho frteholder. His Honour heard argument and reserved his decision, j PETITIONS tN DIVORCE. ' Tho hearing of undefended divorco petitions occupied the Chief Justice yesterday morning. \ A petition for disalution of marriago with Florence Lily Crawford was submitted by John Heiry Crawford, telegraph linesman, for ;vhom Mr. Toogood appeared. A decreo nisi was granted, to become absoluto in tlxreo months. Petitioning for divorco from her husband, Samuel Laming a driver, on the ground of misconduct, Maria Mary Shepherd was represented by Mr. Blair. A decree nisi was grafted on the usual terms. ■ • ' ' • } Alleging that his wifl, Elizabeth Maud Phillips, had misconducted herself with George' Fletcher (co-rjspondent), John Cookson Phillips souglt a divorce. A decree nisi was granted, to be made absolute in throe months, 'i William John Alexander M'Ginnity, hotel chef, who was represented by Mr. Bunny, sought a divorce from his wife, Alice Louisa M'Ginnity.', A decree nisi uas granted on tho usua. terms.

A decree absolute was asked for bv Mr. O'Regah in the case of. James Callan versus Alico Callan and Walter Norris (co-respondent), The decree was granted, and the enstody of the two Children was given to petitioner.

HOTEL PROPERTY AT FOXTON. ■ Reserved judgment was delivered by the Chief Justice yesterday in the case, heard on Tuesday last, affecting the sale of the Post Office Hotel, Foxton. The, parties were: Georgo Alexander Gray, Elizabeth Gray, William Franklin Gray,' and Kathleen Emma Dnlzell (plaintiffs), and Susan Mary Dawson; Louisa Christina Stansell, and Jessie Martha Parish (defendants). Mr. C F. Cook (Marton) appeared for plaintiffs; Mr. C. H. Treadwell appeared for Mrs. Dawson, and Mr. F. G. Bolton for the two other defendants. The claim was for a decree for partition, or, in the alternative, for sale of the hotel. The parlies were owners of the hotel,.as tenants-in-common. Plaintiffs'were desirous that a sale should be. effected, but defendants opposed tho sale, on tho ground that it would not be in the interests of a majority of the owners. His Honour held that tho Court must either decree for a partition or a sale; there was .not a. third course. After considering the .question, "Would a sale be! for the benefit, of the parties inter-, estcd?" his Honour had decided that.he could not dismiss the case and refuse relief to plaintiffs. He would decree a sale, because, partition would bo an injury to all. The matter would be.referred to the registrar, who would have a reserve' price fixed, and consideration of all other questions would be deferred until after the sale. :