APPEAL FAILS

Southland Times, Issue 25303, 5 June 1935, Page 4

APPEAL FAILS

INSURANCE CASE JUDGMENT DELIVERED The reserved judgment of his Honour Mr Justice Kennedy, in the case between the Southland Building and Investment Society and Bank of Deposit, appellant, and Annie Marie Lillian Prendeville, wife of Antonio Valli Prendeville, respondent, heard at the recent Supreme Court sitting in Invercargill, is published below. Mr H. J. Macalister appeared for appellant, and Mr G. J. Reed for respondent. The appeal was from the decision of the Magistrate in awarding Mrs Prendeville £75 damages and £lO 5/~ costs for alleged negligence by the society as mortgagee, in respect of an amount of insurance taken out on her property, which was subsequently destroyed by fire.

“This is a general appeal from the decision of a Magistrate awarding damages and costs against the appellant,” says the judgment. “The action is based upon negligence and, alternatively, false and fraudulent representation. 'The pleadings raise the question of estoppel which is, however, only a matter of evidence and not a cause of action. It should be stated that there is no evidence to support any allegation of fraudulent representation, and if the action was based only on that allegation, it must have failed.. It was stated at the Bar that this allegation was not relied on at the hearing before the learned Magistrate and his decision must be otherwise based. I am of opinion that it has not been shown that his judgment is wrong. “The evidence and the facts found are set out at length in the case on appeal and as there is and can be practically no dispute as to the facts, it is not necessary in this judgment to refer to them at any length. I did not understand counsel to impeach the findings of fact set out.

“The question is one of inference from these facts and I am satisfied that the learned Magistrate drew the proper inference. There can be no question but that the appellant undertook to insure if it could and to procure if it could the insurance as previously obtained. Such an insurance was not obtained, but the appellant’s agents reported to the respondent that it had effected such insurance. This was, in the circumstances, the meaning of their communication. In fact only temporary coyeihad then been obtained and. when insurance was finally arranged for a lesser amount, no communication was sent to the respondent to correct the error. The learned Magistrate would appear to have drawn the inference that no steps were taken to effect insurance to the full amount to protect herself by the res'pondent who relied upon the appellant’s communication. “It is sufficient alteration of position if the respondent was induced by the representation to take no further steps to protect herself or to retrieve the postion until, owing to the fire, it was too late. I am not prepared, on the evidence and in view of the past insurance and the other evidence of value, to hold, if the Magistrate did so hold as from the statement it would seem he did, that further insurance could not in fact have been obtained if the application had been dealt with upon its merits. Whether this be so or not, however, it follows that in the action upon the first ground the appellant is estopned from asserting that it would not obtain the insurance represented. It follows accordingly that the respondent was entitled to the judgment given by the learned Magistrate. The appeal is accordingly dismissed. The appellant will pay to the respondent £lO 10/- for costs of the anpeal.”