ACCIDENT POLICY

New Zealand Herald, Volume LXXVI, Issue 23272, 15 February 1939, Page 16

ACCIDENT POLICY

INSURANCE PAYMENTS INJURY TO CYCLE DEALER COURT, RESERVES JUDGMENT [«Y TKLKOIIArn—OWN COlUU'.spontiknt] WHANGAKEI, Tuesday A claim under an accident insurance policy was heard in the Court to-day before Mr. G. N. Morris, S.M. Plaintiff -was Clifford Ernest Bra)-, a cycle dealer, of Whangarci; for whom Mr. S. Lamb appeared, and the defendant company was the Sun Tilsufanco Office, Limited, which was represented by Mi. G. F. R. Keith, of Auckland. Brav had a policy with the company by which he was entitled to a payment of £4 a week while totally incapacitated from work, but there was a clause by which tho company disclaimed liability for any claim arising out of motorcycling. Evidence was given by plaintiff that he had ridden a motor-cycle for about a mile out of Whangarei. On the carrier was a Maori, Jimmy Harris, to whom he was demonstrating the machine.

Plaintiff said he dismounted and Harris got into the saddle. Witness then was showing the controls to Harris when tho machine suddenly went forward and witness was thrown to the ground, his arm being broken. At the time of the mishap witness had one foot on the frame of the machine, the other being on the ground. Attendance at Shop Witness added that after coming out of hospital he was away for a period but later went doun to the shop every day to see how things were going on. During a period of 14 weeks he had to employ a mechanic to carry out tho work of the shop.

Opening the case for tho defence, Mr. Keith said the company did not accept plaintiff's .story. The compans' was in a somewhat difficult position to substantiate these views, but as the result of investigations it felt the claim was not a genuine one.

' Mr. Keith said the actions of plaintiff relevant ta the accident did constitute motor-cycling. He quoted authority to show that persons getting into or out of vehicles could be classed as journeying in those vehicles. Plaintiff had ridden the motor-cycle to the scene and had intended to ride back again. At the time he had one foot on the machine and was showing the controls to Harris. The whole chain of events that led up to the accident were all part of this cycling. The magistrate remarked that the cases quoted by counsel were not on all fours with this casQ. Bray was not getting on to or off th<s motor-cycle; he was only demonstrating. He had his foot 011 the frame, although this action' was not necessary for ihe demonstration. Wording of Policy "There is a well-known principle that if there is any ambiguity in the wording of an insurance policy then the meaning that favours the person insured must be accepted," said Mr. Lamb. "It is stretching the interpretation of the word motor-cycling to an absurdity when it is suggested that an intention to ride without any physical action to put that intention into effect can be construed as motor-cyling." Mr. Keith said the clause in the policy had been very closely worded bv the company and it applied only to total incapacitation. Partial incapacitation was not covered, so plaintiff was not entitled to the full amount of the claim. "How can I say that this man was totally incapacitated when he was quite able to direct his business?" said the magistrate. "1 am not going to decide this case off-hand. The only part 1 am settling is that I am accepting the plaintiff's story as to . the facts of the accident. 1 am going to reserve judgment on all other points."