THE SMALLFIELD CASE.

New Zealand Herald, Volume LVIII, Issue 17935, 1 December 1921, Page 9

THE SMALLFIELD CASE.

♦ - JUDGMENT FOR THE WIDOW. SECURITY OF INSURANCE. "MATERIAL FACTS" DEFINED REASONABLE KNOWLEDGE. ONLY. Judgment for the full amount claimed, with costs on the highest scale, was en- , tered yesterday by Mr. Justice Stringer in the action in which Mrs. Lucy Smallfield ; (Mr. Ostler and Mr. Hopkins), claimed j £10,000 from the National Mutual Life i Association of Australasia, Ltd. (Mr. Neave and Mr. Gillies), under an insurance policy on the life of her husband, Cecil ! Robert Smallfield, wha disappeared while 1 bathing in the Waikato River on January ' 26 last, and whose body was recovered , from the river four days later. The insurance company defended the claim on the ground that the deceased committed suicide, and that as the policy had not been in force for thirteen months, it was therefore void, but the special jury empanelled for the action gavo its decision i on Tuesday afternoon that the defence had i failed to establish its contention. Yesterday's proceedings took tho form of legal argument. At the outset Mr. Neave applied for amendment of the f leadings, alloging nondisclosure of material facts, which had been given in evidence the previous afternoon. His Honor said the evidence did not disclose ill-health before, or at the time of, J the acceptance of tho insurance proposal. ' Mr. Neave: Yes, Mrs. Smallfield's evidence. According to her tho deceased was never well after having influenza, during tho epidemic in 1918, and that he used to complain of paws in the heart. One of the questions on the _ insurance form, saf.d counsel, was " What is the present and general state of your health?" His Honor: Well, he said it was good. It might have been good, though not as good as it was befoio the epidemic. Questions on Proposal Form. Mr. Neave robmitted the answer was not a true one, according to Mrs. Smallfield's evidence. Another question on the insurance form was: " Are there any | other circumstances which ought to bo com-! municated to the directors to enable them to form a fair judgment in regard to the risk of insurance on your life?" Smallfield answered " no" to this question, whereas it appeared he had been rejected for military service as medically unfit. His Honor: Suppose he was rejected because he bad flat feet? Mr. Neave said the reason did not ■ matter. The company was entitled to know tho fact of rejection. Mr. Ostler said the office knew that | Smallfield was a married man with -ne | child, and must have been accepted or , rejected by the military authorities. Mr. Neave: Smallfield may have been : rejected for military service on account of the alleged defective heart. We do not know. Examined by Two Doctors. His Honor: Except by your own medical examination, when two doctors examined him. Unless you can satisfy mo that I ought to make the amendments I am not disposed at present to grant them. Mr. Neave argued that the failure to disclose the rejection was as important as failure to disclose refusal for insurance by another company. Even if the question regardiug refusal were not specifically asked, tine withholding of the fact would vitiate the policy. His Honor: It suggest* that policies stand in jeopardy to a very muoh greater extent than one imagines. You knew of the attack of influenza, and because he did not disclose any obscure consequences ■ —■ Mr. Neave : The rejection was prior to the influenza. Mr. Ostler said the evidence of Smallfield's weak heart referred to a period of! less than nine months bofore his death, j If Mr. Neave's contention were correct, then it became a veritable trap for persons wishing to insure. In opposing the application, Mr. Ostler submitted that the amondraent should not be allowed, stating that it wag equiva'ont to a new cause of action. The fact that the deceased was rejected_ for military service lis unfit was, he said, mentioned by a witness at the inquest in May, so that the company • could not now say this came as a surprise to it. His Eonor'3 Comments. His Honor, in delivering his decision, said he did not think he ought to grant an amendment at this stage and of the character applied for unless he was first satisfied that upon the evidence there was a sufficient ground for believing that the defence might be established. The i defendant company claimed that it should L be allowed to raise two new defences, which, it said, had been disclosed, by the evidence adduced at the trial. The first, relating to the state of health of the deceased, must be based entirely on the evidence of the widow, and he was not dis-1 posed to place a great deal of reliance on ' the exact words she used in the witness- : box, because she was in a nervous con-; ditinn, and it was hard to hear exactly what ehe did say. There was nothing to show that Smallfield's fainting fite began ' before he filled up the insurance proposal. I As to the other point, which referred to i any other circumstances which should be ; communicated to the directors, the only j circumstance it was suggested the de- : ceased should have communicated was that j he was rejected for military service. The j clause surelv must mean circumstances, i which be Bhould reasonably have known | ought to be communicated. It would | be quite absurd if the man's whole i life could bo raked over to find out whether he had bad a fall or a bleeding nose or a fainting fit some time or other, of the sipifkanca of which he might be quite unaware. Otherwise almost every policy of insurance would be placed in jeopardy. The fact of Smallfield's rejection for military service might have been | due to a variety of causes, and in any case the company knew of it before the trial, j and it did not seem reasonable that they should set it up at the last moment as a defence.' He would refuse the amendment, arid if there was a right of appeal then, of course, Mr. Neave might avail himself of it. Objection to Pay Costs, Mr. Ostler formally applied for judg. ' ment for £10,000 with interest at 7 per cent, from June 17, the date when the verdict in the second inquest was delivered. _ ' After argument, His Honor reserved the point, saying that if he did allow interest it would be at 7 per cent. When Mr. Ostler applied for costs, Mr. Neave said it was a very serious question whether any costs should be allowed. He added that if the company had been informed of the new evidence that was to be brought forward it might have decided to pay the olaim. Mr. Ostler said the widow was put to the expense of over £300 by the second inquest. His Honor said a successful plaintiff ' was entit'ed to costs, and he saw no rea- < son for departing from the rule. He * would allow full costs. He "mentioned j' that he could not conceal from his mind j' the fact that when the carbolic _ acid ■ 1 theory was exploded there was still an ' < mdeavour to establish suicide by drown- ' ln ß- . i l Mr. Neave applied for a stay of pro- j jeedings for a month, and this was not •' jpposed. • 1