INSURANCE DISPUTE

Hawke's Bay Tribune, Volume XXIII, Issue 78, 14 March 1933, Page 6

INSURANCE DISPUTE

OHAU CROSSING ACCIDENT. APPEAL COURT LITIGATION. Wellington, March 13. The Court of Appeal to-day commenced the hearing of the case of the Australasian Temperance and General Mutual Assurance Co. and the Commercial Union Assurance Co., against Elizabeth Ivy Johnson and John Randolph Johnson. At the commencement of the hearing of the appeals Mr A. B. Sievwright, Counsel for the respondent (Mrs Jolin■on) raised a preliminary objection to the appeal of the T. and G. Assurance Society. He submitted that the society was debarred from questioning the decision of the trial Judge because the society had expressly agreed in the contract of insurance not to appeal from any judgment of the Supreme Court. He contended that there was a clause in the policy which concluded the question of appeal of the society, the clause reading as follows: “Any decision of the Supreme Court of New Zealand in regard to this policy will be accepted by the society as final.’’ Mr E. P. Bunny, counsel for the society, submitted that the meaning of the clause quoted was that the society agreed to accept the jurisdiction of the New Zealand Courts and not to appeal to any Court outside New Zealand. The ■ociety undertook not to take any case to the Privy Council, but did not agree not to appeal to the Court of Appeal. Counsel submitted further that the society was not able to contract itself out of the right of appeal from the Supreme Court. After hearing Mr Sievwright in reply the Court reserved its decision on the preliminary question and commenced bearing the general appeal. Mr Bunny reviewed the admitted farts of the case for the benefit of the Court. LAPSE OF TIME. He was followed by Mr IT. F. O’Leary, who submitted that Mrs Johnson was debarred by the lapse of time from bringing an action against the T. ■nd G. Society. There was a clause in the policy which provided that no action should be brought against the •onety unless it commenced within six months of the date of the accrual of the rights of action, which was in this ease the date of the accident. There was a further provision that if the claim was disputed by the society, then the claimant was allowed six months after the repudiation of the claim in which to bring action. He contended that although the accident to Mrs Johnson had occurred on May 6, 1930, no action had been taken until March 2, 1932, and that plaintiff was accordingly debarred by tho policy from recovering. The Judge in the Court below had held that by making a payment the society bad waived its rights to raise this defence. Counsel contended, however. that payment had been made to the husband of the claimant and not to Mrs Johnson herself, and that tho defences of the company were unaffected bv such a payment. The Court adjourned until to-morrow.