WOMAN'S CLAIMS

Evening Post, Volume CXV, Issue 62, 15 March 1933, Page 10

WOMAN'S CLAIMS

DISPUTED DOCUMENTS

HEARING OF APPEALS

Legal argument was continued in. the Court of Appeal today on the appeals of the Australasian Temperance and General Mutual Life Assurance Co., Ltd., and the Commercial Union Assurance Co., Ltd., challenging the right of Mrs. Elizabeth Ivy Johnson to recover from them accident insurance moneys,the company already had paid out to her husband. Ecceipts for the .payments, purporting to be signed by Mrs. Johnson, were obtained by the two companies,'but some months later 'Mrs? Johnson alleged that the signatures on the receipts and other documents were forgeries and that her husband had no authority to collect the money. She took action against the two companies in the Supreme Court last year and judgment was given in her favour by Mr. Justice Reed. TEEMS OF POLICY. Continuing his argument on behalf of the Commercial Union Co., Mr. E. Parry analysed the evidence as to the accident at the Ohau railway crossing in May, 1930, in respect of which the claims for the insurance moneys were made. He submitted that the accident was not covered by the Commercial -Union policy. Another submission was that, eontrar3' to the conditions of the- policy, the husband's account of the accident set out in the claim form was inaccurate. In the result it was contended that quite irrespective of the question of forgery the Commercial Union Company was entitled to succeed. If all the facts had been known in the first place the company would have been entitled to refuse to pay out. The next point made by' Mr. Parry was that Mrs. Johnson had held out her husband as having implied authority to collect the money. The Chief Justice and Mr. Justice Ostler suggested that that was not so. They pointed out that both the T. and G. Society and the Commercial Union had required the signature of Mrs. Johnson before paying out the money. Mr. P ( arry next dealt with the question of estoppel, submitting that' Mrs. Johnson was estopped from claiming that the receipts" were forgeries upon the ground that by her silence the insurance companies had lost their opportunity of . getting ' something from the alleged forger, after they had paid out. Mrs. Johnson's conduct in respect of which it was claimed she"'was estopped, lasted, it was submitted, from August 23, 1930, until some time in March, 1931.^ Mr. Justice Ostler commented that there was ample authority for the proposition that payment of insurance moneys was an election by the company concerned to waive all conditions of the policy. That was what he thought the two appellant companies were up against. ' They had insisted upon obtaining Mrs". Johnson's signature ■ and had elected to pay out on the signature to the documents received by them. Mr. B. L. A. Cresswell, appearing with Mr. Parry for the Commercial Union, addressed a short argument to the Court on the aspect of detriment to the companies said to have been caused by Mrs. Johnson's silence. CASE FOR MRS. JOHNSON. Opening his argument on behalf of the respondent (Mrs. Johnson), Mr. A. B. Sievwright submitted that in this case the facts were of great importance. Counsel drew the attention of the Court to the fact that at the completion of the evidence in the Supreme Court action Mr. Justice Eeed ' intimated that he was satisfied the disputed documents, five in all, were forgeries. At this stage the Chief Justice informed Mr. Sievwright that the members of the Court agreed that there would be no justification for taking a different view from Mr. Justice Reed on the question of the documents being forgeries. Mr. Sievwright: Do I then understand your Honour to say that the document dated July 3 referred to at length by Mr. O'Leary, in the view of this Court, is a forgery? _ The Chief Justice: His Honour found, it to be so, and we see no reason, to dispute that finding. i Mr. Sievwright said that this intimation would shorten his argument. He then dealt with the point raised by Mr. Parry at the accident suffered by Mrs. Johnson did not come within the Commercial Union's policy. His submission was thaff there was evidence to support the contention that the accident was covered by the policy. ESTOPPEL QUESTION. - On the question of estoppel bysilence, Mr. Sievwright said there were three facts proved on the evidence. The first was that the moneys were paid out when Mrs. Johnson was lying in hospital and so had no idea that they were being paid out. Secondly, when she became aware that the , forgeries had been perpetrated the companies had paid out all the moneys and there was nothing more due to be paid. The mischief had been done. The third fact, and it was a very important point, was that in each case the fact that the receipts were forgeries came to the knowledge of Mrs. Johnson and the companies at the same time. In other words, there was concurrent knowledge. The whole question of estoppel by silence was based on one party having information the other had not. In.order to substantiate the defence of estoppel put forward by the appellants, it must be shown, he submitted, that Mrs. Johnson had exclusive knowledge of the forgeries. The insurance companies, said Mr. Sievwright, did not accept Mrs. Johnson's statement that the documents were forgeries and insisted that they were genuine. ' Thus, if there was any duty on Mrs. Johnson to disclose, which was denied, loss or damnification, if any, must be attributed to their failing to make inquiries or by their being content to accept the assurance of Johnson (the husband) and his solicitor. (Proceeding.)