CLAIM SUCCEEDS

Evening Post, Volume CXVII, Issue 127, 31 May 1934, Page 12

CLAIM SUCCEEDS

A BURNT LORRY LOAD

OPEN INSURANCE POLICY

TKIANGULAR ACTION

'•It seems to me to be clear in principle arid to be established by judicial authority, and by statute, that a declaration of value made subsequent to loss does not have the effect of converting an unvalued or floating policy into a valued one," said Mr. E. Page, S.M., today, when delivering his reserved judgment regarding a claim by tho Wellington Express Co., Ltd., against the Phoenix Assurance Co., Ltd., and he accordingly awarded the . plaintiff company the amount claimed, £172 17s 6d. - Tho case, which was one of particular interest to insurance companies, as well as to those who make a practice of insuring goods consigned for transport, was a triangular one. Alice Eeles, a married woman, of Auckland, carrying on' business as the New Zealand Millinery Supplies, sued the Wellington Express Co., Ltd., for £101 as the value of goods belonging to her which were destroyed when one of fho defendant company's motor-lorries was burnt at Ngahauranga on September 30 last while en route from Masterton to AVellington, and £10 as damages. The Express Company in turn sued the Phoenix Assurance Co., Ltd., for £172 17s fid as the total value of the goods carried by the lorry when it was burnt, since the goods were covered by an open policy with the Phoenix Assurance Company. Mrs. Eeles was ' given judgment for £104 Is in her claim against the Express Company. After reviewing the particulars of the case, Mr. Page said that the practice with reference to declarations of value in connection with the open insurance, policies appeared to have been for tfye Express Company to fill in, approximately once a week,.a printed form addressed to the Phoenix Assurance Company, giving particulars of the loads carried during the preceding seven or eight days. AN ERRONEOUS ESTIMATE. "Upon the happening of the fire," continued the Magistrate, "advice was sent by telephone to the manager of the Wellington Express Company, and at 9 a.m., as. soon as their offices opened, he notified the Phoenix Assurance Company of the loss. He -also at once proceeded to make inquiries as to the value of the goods that had been destroyed. . All the papers relating to such goods,had been destroyed with them, and.he made inquiries from all the consignees. "The millinery, the property of the plaintiff Eeles, had- been consigned from Masterton by a traveller, one Jamieson . . . who was unable to give any assistance as to the value of the goods and stated ' that he would have to get in touch with his principals in Auckland. Meantime, the Assurance Company was pressing to be supplied with declarations of value relating to the goods carried on this trip, and on the preceding: trips in that week. They sent a boy along to the office of the Express Company to.collect Hie form. It was Saturday: morning, and the manager of the Express Company, believing that the form had to be filled in within 24 hours of the time fit, which the motor-lorry left Masterton, filled in, on the somewhat meagro information in hjs possession, his estimate of tho value of the goods carried on. the. load, namely, £89. , "It now. transpires that the true value of- such goods was £172 17s 6d. The main error in the estimate related to .the millinery of the plaintiff Eeles. He had been informed that there were four boxes of millinery, which ho valued at £25. Actually there were four packages, each containing four boxes, and the true value of these was £101 11s. The plaintiff Eeles has now sued the Express Company for this amount, and the Assuranco Company has been joined as third party. Liability .by... the Express ■ Company under, this section is admitted. "The answer made by the Assurance Company to tho Express Company's claim is that their policy, though an open policy,. is limited to the amount of the value declared, and they say that as the declaration made subsequent to the loss states the- value at £89, they are not liable for more. They have offered to settle the action by payment of that amount." ' '.' : Mr. Page said that though the form of the policy was that of a marine-in-surance polity, it was to be doubted whether the contract was really one of marino insurance. There was no clement of marine adventure connected with a motor-lorry service between Wellington and. Masterton, but the policy was expressed to coyer a wider area . . . and would cover steamor transport between Wellington and any other part of the Dominion. ■ After defining -Jth'o. various types of policies, Mr. Page said that the policy in question had the characteristics of a floating policy. At the time of the loss it was an unvalued policy, and oven if no deelaratidn of value had subsequently, been made it would still have been binding on the Assurance Company. , AN OBVIOUS REASON. The reason why a subsequent declaration of value should not have the effect of converting an unvalued or floating policy into a valued one was obvious continued Mr. Page. If an assured could,-by a declaration mado subsequent to loss, .convert an open policy into a valued one, the way would be open for him to put an unduly high value on the goods destroyed, and the insurance company would bo bound by the value so fixed. It had been held in an English case that the declaration making the policy a valued one had to be communicated to the underwriters before intelligence was received of tho loss. The result, therefore, was that, notwithstanding the subsequent declaration, the policy relating to the load Was Still an unvalued one and tho property was not of greater value than tho sum for which it was insured at the time of the loss. The measure of thn indemnity was the insurablo value of such merchandise. , Mr. Pago said ho did not think that tho erroneous estimate made by tho manager of the Express Company suhsequent to the loss defeated the right to the full indemnity. No question of tho bona fides of the claim arose and the erroneous claim could be amended. Mr. Page accordingly gave' judgment against the Phoenix Assurance Co., Ltd., for £172 17s 6d, with costs to scale. At the hearing Mr. E. Parry appeared for Mrs. Eeles, Mr. J. S. Hanna for. the Wellington Express Company, and Mr. G. E. Arms for the Phoenix Assurance Company.

Among ■ the pictures hung at the Summer Exhibition of the Royal Academy is one of Lyttelton Harbour, by Mr. Cecil F. Kelly. Mrs. Kelly has a portrait called "Edith." She also has a portrait, Miss Edith May, hung in the Paris Salon. Another New Zealand artist, Miss S. A. Holland, has had a picture accepted and hung at the Boyal Scottish Academy, Edinburgh.