FOGGY OR LUCID?

Dominion, Volume 3, Issue 861, 6 July 1910, Page 5

FOGGY OR LUCID?

MEANING OF THE WORDS IN AN ACCIDENT POLICY. TO THE "WAYFARING MAN." Interesting excliangcs between members of the Bench and counsel'occurred in one of the cases argued before the Appeal Court yesterday,. the object of argument being to elucidate. tho meaning of the words "permanent partial disablement" as used in an accident insurance policy. The previous history of tho case was as' follows:—In March last a claim for £50 had been made by Falconer John Macdonald, a law clerk, against • tho Mutual Life Association of Australasia, on account of his haying lost tho sight of his right eye. TKo facts then placed before tho Court wero that on September 2, 1908, while . Macdonald was opening'a tin of chqese some liquid matter squirted into his eyo and set up I a septic, condition;

Dr. Hislop, reporting to the insurance company upon the- case, said: — Tho affected eye still has "perception of light," and the ability to perceive in a very blurred manner the general outjine of . prominent objects, but there is so much corneal opacity that the- eyo is of no use for the purpose of tho assured's occupation, and, indeed, is of little practical use for any purpose, except to distinguish daylight from dark. The company contended that Macdonald was not entitled to recover as for "permanent . partial disablement" in terms of the policy, these words being defined in, the schedule as meaning ."the complete and irrecoverable loss of the sight of one eye." The' Chief Justice, who heard the case in the Supreme Court, decided that the meaning of tho definition, in the policy' was such that Mdcdonald could not recover unless the eye had completely lost the power of sight. Case for the Policy-holder. In yesterday's proceedings, which were conducted before Mr. Justice Williams, Mr. Justice. Edwards, Mr. Justice Cooper, 'and Mr. Justice Chapman, Mr. P. J. O'Rcgan appeared for Macdonald, tho appellant, and Mr.' M. Myers and Mr. E. J. Fitzgibbon for the insurance company. .One of tho principal arguments submitted by Mr. O'Rcgan was that the words "complete loss of sight" or "total blindness" must be construed in reference to Macdonald's occupation. The injured eye was now of no use to Macdonald in his work as a clerk.

Was It a Trap? Mr.' Myers, remarking that, the policy was a 'joint life arid accident policy, dealt with its various provisions, and tho interpretation placed upon them by the company. • Mr. Justice Williams: t)o you-say that; if he had suffered similar injury to the other eyo as well, he would not have been entitled to recover?

: Mr. Myers: The company's view is that he would not have been'entitled to recover even although ho might not be ablo to carry on his- particular business. ■ •

Mr. Justice Williams: Or any business ? • - ■

Mr. Myers: Or any business. Mr. Justice Williams: And can only distinguish light from darkness? Mr. Myers: Yes. So long as the oyo can perform any of its functions. This policy is prepared— ;

■Mr. Justice Edwards: As a trap. Mr. Myers: No, your Honour. Mr. Justice Edwards: Well, it is a trap. This poor clerk imagined that he was securing himself from this risk, unquestionably. Mr.'Myers: No Mr. Justice Edwards: ' Any layman would have lielieved so. I. should have looked at it that way d'nlcss; I had subjected your .policy to examination through a very strong magnifying glass, or consulted my learned brothers be-fore-entering into, it. v i "This Is an Extreme Caso." Mr. Justice Cooper: If both eyes were injured to such : an extent that only tho minutest ray of light could penetrate, and the man was, in tlm ordinary sense of the term, "totally blind," you . say he . would not come under this policy? Mr. Myers:- There must be complete loss of ■ sij£ht. Mr..Justice Cooper: The.eye and the nerve may be dead. Mr. Myers: The function of the eye must have been destroyed. This is not what the -ordinary accident policy is, which takes into consideration the occupation followed by the assured, 'and which insures him against the risk which he may take when following that occupation. - , ■ Mr. Justice' Cooper: Is not a man complotely blind if he has so completely lost the sight, of bosh eyes that ho cannot see more than a ray of light? Mr. Myers: Your Honour is putting an extreme case. . * ■ Mr'. Justice Cooper: This is an extreme case, because if ho, had lost the sight of ,'the, lef.t eye to the same extent as 'well, he could not read, cr write, or guide himself about tho streets. Mr. Myers: Ob, yes; he could do that. He can distinguish light from dark, and can see outlines of things apparently, but in a blurred and indistinct way. Could the "Wayfaring Man" Understand? Mr. Justice Williams: Can he see a motor-car coming? Mr. Justice Edwards: Can he see a small dog running between his legs? Mr. Myers: Your Honours are bringing mo back to a question of degree. The. policy has been specially drawn to avoid questions of degree. Mr. Justice Cooper: Do you think that an ordinary wayfaring man would understand that? ~ Mr. Myers: I should say" "Yes." Reference was then made to the definition of the phrase' "permanent partial disablement" in the schedule of the policy, given as The complete and irrecoverable loss through accident of sight of an. eye, or the loss by complete physical separation above the wrist or ankle of one hand or one foot. ' Mr. Myers said that the premiums were fixed.with a due regard for the strict interpretation of tho provisions of the policy. Mr. Justico Edwards: Tho language applicable to the present case might have been more explicit. Mr. Myers: That is not altogether a just observation. Could words have been used which would show more fully or more plainly? ' Mr. Justico Edwards: .Quite easily. These words would do: "By destruction of the optic nerve." Deaf Man and an Armstrong Cun. Mr. Justice Cooper: Suppose it wero a case of injury to the earji and a man could hear an Armstrong gun going oft' within a fow foot of him, ho is not stone deaf. Mr. Myers: That is going boyond tho ordinary functions of tho ear. Mr. justice Williams: If ho wore affected the same way in both eyes, he would not bo able to go about by himself.

Mr. Myers: The questions arise: "Is the man blind?" or "Is lie nearly blind?" This man is not blind. ■

Mr. Justice Edwards: In the popular sense he is blind; ho is not stone blind. Mr. Justice Williams: He has lost his sight "completely" for all practical purposes.

The Court reserved judgment,

DANNEVIRKE ESTATE OF £30,000. REDISTRIBUTION SOUGHT. In the afternoon the Chief Justice (Sir Robert Stout), Mr. Justice Williams, Mr. Justice Edwards, and Mr.Justico Cooper heard argument in the appeal case Elizabeth Allardicc, Eliza Marion Hawkins, Albert William Allardicc 1 , .Ada Elizabeth Hall, Henry George Frederick Allardicc, and Helena Laura Jane Haselden (appellants) versus Agues Allardicc and Thomas Henry Gordon Lloyd (respondents), executors and trustees of the' will of' the late James Allardicc, settler, of Daimovirke. Tho case, which was brought under the Family Protection Act, 1908, had come before Mr. Justice Chapman in the Supreme Court on April 23, 100!), in the form of an originating, summons.

Shortly, the point of the case was whether a redistribution of the estate of James Allardicc- should not be. made, with_ a view to aiding members of Ms first family, seoing that by his will the whole of the estate was left to members of the second family.

Mr. C. P. Skerrctt, K.C., with him Mr. S. A. Atkinson, appeared for tho appellants; Mr. D M. Findlay and Mr. F. B. 'Sharp for the respondents. Tracing the'facts as set out in numerous affidavits, Mr. Skorrett pointed but that tho testator, James Allardicc, occupied the first house, in the township of Dannevirke.' In the year of his marriage (1871) he was emploj'ed as a farm hand by Mr. Purvis Russell on his Hatuma Station, Waipukurau, where his wife, then 21 years of age, wa3 engaged as housemaid. Six children, wero born of the marriage— (1) Eliza Marion, 38 years of age,now the wifq of William Henry Hawkins, .journalist,' of Pahiatua, whoso average yearly earnings for the last five years have not exceeded £150. (2) Albert William, 37 years of age, unmarried, who has lived with his mother at Dannevirke since his father's death, following ,tho occupation of a horse-breaker. (3) Annie Ward, 35 years of age, now the wife of John James Clark. (4) Ada Elizabeth, 34 years of ago, now.the. wife of Arthur Percy Hall, commission agent, of Dannevirke, whoso yearly earnings for the last fivo years have not exceeded £150. (5) Henry George Frederick, 33 years of ago, unmarried, who was a saddler, now living with his mother at Dannevirke, his average yearly earnings during the last five years not' having exceeded £50., ' (5). Helena Laura Jane, 31 years of age, now wife of John Lane Haselden', clerk, of Wellington, whose earnings for the past two years havu not exceeded £2 per week.

Nucleus of Creat Wealtn. Immediately after their marriage James Allardice and his wife went to reside on Mr. Purvis Russell's farm at Havelock, Hawke's Bay, and later they purchased -a livery stable business at Napier. Mrs. Allardice put savings amounting to. £150 into the business, and Mr. Allardice himself- provided, £100, which sums constituted the nucleus of the wealth subsequently amassed. In 1873 Mr. Allardico removed to Dannevirke, where his wife and ho carried on' business as hotelkeepers, storekeepers, butchers, and accommodation housekeepers. They weru the first European family to sottlo in Dannevirke, which had now a population of 401)0. For many years tho family endured tho hardships and privations of the early bush settlors. Obtaining a hotolkeeper's license again, tho tostaloi- purchased, out of profits accumulated botweon 1882 and 1888, several acres of land, including 40 acres fronting High Streot, Dannevirke,; on part of which ho built and occupied tlio Masonic Hotel. About 1886 he' commenced a certain relationship with Agnes Little (now tho defendant Agnes Allardice), who was then employed by a Dannevirke. draper as a dressmaker. In 1891 Mrs. Allardice became aware of her-husband's relations with Agnes Little, an; admission of which was made, and a quarrel was followed by separation. Allardico, although then worth about £12,000, refused to inako separate provision for his wife and his children, hut ho granted his wife tho lease of the Masonic Hotel. Mrs. Allardice conducted, the hotel, maintaining and educating her children until Allardico leased tho hold to another'party at. an' increased' rental. In 1891' Allardice went to live with Agnes Little, to whom he was married fifteen yoars later, and with whom ho lived until his death in March, 1908.

' Profitable Oannevirke Land. The 40 acres of land in Dannevirke, pui chased for £800 about 1888, had increased in value to upwards of £25,000 at the timo of the testator's death. Mrs. Allardice affirmed that it was through' her devotion to the interests of her husband and her children that tho greater part ol his ivcakb. \>at, mcumulatcd. Until compelled by legal proceedings, the testator would not contribute to the support of his wife, who,'in 1892, obtained a judicial separation from her husband. At'that: time misconduct alono was not a sufficient ground for divorce,'but in 1905 she obtained a divorce, and-alimony was fixed at £120 per annum during her life. In 1906 the tostator married Agnes Little, and there were seven children (six living), none of whom wcro legitimate except tho youngest. Allardice made a will which, after providing for a life interest in the whole of the estate (valued at between £22,000 and £30,000) in favour of Agnes Allardice, gave the estato to tho children of his second wife, making no provision for his divorced wife, Elizabeth Allardice, and her six children. Mr. Justice Chapman, on hearing' the case in 1909, declined to order any redistribution of tho estate, stating that although some of tho first family were in slender circumstances, the sons were able-bodied labourers, the daughters had long been maintained by their husbands, and none'of the family were in a state of want. The Court heard lengthy argument, which had not concluded at tho adjournment hour.