HUSBAND GOT WIFE'S INSURANCE MONEY

Manawatu Times, Volume LVI, Issue 7105, 14 March 1933, Page 7

HUSBAND GOT WIFE'S INSURANCE MONEY

The Oku Crossing Case

APPEAL FROM SUPREME COURT JUDGMENT

Per Press Association WELLINGTON, Mar. 13.

The Court of Appeal, is to-day hearing the case of the Australian Temperance and General Mutual Assurance Company and tho Commercial Union Assurance Company against Elizabeth Ivy Johnson and John Randolph Johnson.

The insurance companies arc appealing against the decision of Mr Justice Reod, delivered in Wellington in August last, in which he gave judgment in favour of Mrs Johnson for £245 10s against the Commercial Union Company and for £SOO against the T. and G. Company. Both actions were claims by Mrs Johnson, for insurance moneys in respect of a motor accident at Ohau railway crossing on 6th May, 1930, as a result of which she suffered the amputation of her left leg below tho knee.

In the case of tho action against the Commercial Union, the claim was made under a comprehensive motor car policy whereby she was insured inter alia for £250 and £lO modical erpenses for the loss of a leg.

The claim against the I*, and G. Company was based on the provisions of an ordinary accident policy entitling the insured to a sum of £SOO for the same injury.

In. each case the insurance companies acknowledged liability, paid the insurance moneys to the husband of plaintiff, Mrs Johnson, and obtaineJ. receipts purporting to be signed by her. Mrs Johnson alleged, that these receipts were forgeries and the Court accepted this view. The trial. Judge hold that Mrs Johnson had not signed the rccipt-s and that she had not reecived the moneys to which she was entitled under the provisions of the policies. Appeal was brought against this decision.

At the commencement of the hearing Mr. A. B. Sievwright, counsel for respondent (Mrs. Johnson) raised a preliminary objection to the appeal of the T. and G. Assurance Society. He submitted that the society was debarred from questioning tho decision of the trial Judge because the society had expressly agreed in its 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 the appeal of tho 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 Now Zealand courts and not to appeal to any Court outside New Zealand. Tho society undertook not to take any case to the Privy Council but did not agree n-ot to appeal to the Court o'f 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 the hearing of the general appeal. Mr. Bunny reviewed the admitted facte of tho ease for the benefit of the “Court. Ho was followed by Mr. H. F. O’Leary who submitted Mrs. Johnson was debarred by lapse of time from bringing action against the T. and G. Society. There was a clause in the policy which provided that no action should be brought against the society unless it was commenced within six months of tho dato of the accrual of the right of action, which was in this ease the date of the accidont. There wan a furblior 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 an action. Ho contended that although the accident to Mrs. Johnson had occurred on May 6, 1930, no action had been taken until March 2, 1932, and plaintiff was accordingly debarred by the policy from recovering. The Judge in the Court below had held that by making a payment the society had waived its rights to raise this defence. Counsel contended, however, that the payment had been made to tho husband of claimant and not to Mrs. Johnson herself, and that the defences of the company were unaffected by such payment. The Court adjourned until tomorrow.