CLAIM FOR INSURANCE.

New Zealand Herald, Volume LIX, Issue 18017, 16 February 1922, Page 9

CLAIM FOR INSURANCE.

HAMILTON FIREMAN'S DEATH.

QUESTION OF CONDITIONS.

COMPANY'S SUMMONS FAILS.

Judgment has been delivered by Mr. Justice Stringer in a summons in the caso of William Graham (Mr. Strang), against the Provident Life Assurance Company (Mr, Nortlicroft), heard at Hamilton last December.

The action was one by tho administrator of the estate of Albert Graham, a member of the Hamilton Fire Brigade who was killed in the fire engine accident in January, 1921, to recover £250 under an accident assurance policy. The J policy contained the usual conditions that if the proposal or declaration of the in- j sured contained any untrue statement or j concealment, or if any material fact af- j fecting the risk was incorrectly stated, or | if any renewal of the polity was obtained | through any untrue statement, concealment, and misrepresentation, or if the insured failed to givo notice of change of residence or occupation, then the policy would bo null and void. The also, contained the following condition: " All differences between the company and the I insured arising out of this' policy shall, if j required by tho company, oe referred to, the decision of a neutral person, to be agreed upon by both parties, and this condition shall be deemed to ba a submission to arbitration under the Arbitration Act, 1908. and it i 8 expressly stipulated that the obtaining of an award by such arbitration -hall be a oondition precedent to any right to recover by legal proceedings." The defendant company applied under section 5 of tho Arbitration Act, 1908, for a stay cf proceedings in tho action. His Honor said it appoared clear from the affidavits filed that there wa s no dispute between the parties as to the following matters: That tho deceased, at tho timo of effecting the policy in 1918 and thereafter until his death was a blacksmith by occupation; that subsequent to the issuo of the policy he became a volunteer of the Hamilton Fire Brigade, which was itself a voluntary association; that ho did not disclose to the company the fact of bis having become a member of the brigade; th&t while acting as a mem. ber of the brigade he was killed by accident; that tho company repudiated liability solely upon the ground that the policy had become null and void under the conditions before-mentioned by reason of the non-disclosuro by the deceased nf his having become a member of the brigade. It seemed clear, the Judge said, that tho Court had a discretion under section £ of the Arbitration Act as to whether it should grant a stay of proceedings, and that if the matter were referred to arbitration the Court, on the request of either party, would direct the arbitrator to , state a case for the opinion of the Court on the question of law involved. He was of opinion it would bo more convenient and probably less expensive and more expeditious to determine in the course of the action itself the question of law which had arisen and which could easily be stated by the parties for the opinion of the Court. In the case of Smallfield versus the Government Life Insurance Commission, which was referred to in the argu ment before him, Mr. Justice Adams granted a stay of proceedings in an action upon a policy issued under tho Go 1 orn- | ment Life Insurance Act, 1908, where the | dispute wa s whether the insured had died j from natural causes or by suicide. In j that caso, however, there was a statutory I obligation to refer all disputes to arbitra ! tion which it was held was not qualified i by the incorporation of section 5 of the ! Arbitration Act with Section 20 of the ! Government Life Insurance Act. If Mr j Justice Adams had been dealing with | the case unfettered by the express proviI sions of the Govorninent Life Insurance ' Act, and under the Arbitration Act alone, he would, as stated in his judgment, have refused a stay of proceedings in that case.

Mr, Justice Stringer said he thought, moreover, that a stay of proceedings might be properly refused upon tho principle stated by Lord Haldane in an English caso, as follows When there is a repudiation which goes to the substanw of the whole contract I do not Bee how the person setting up that repudiation can be entitled to insist upon a subordinate term of the contract still being enforced." Tho summons was therefore dismissed.