CLAIM FOR £l000 DAMAGES

Southland Times, Issue 23437, 18 February 1938, Page 8

CLAIM FOR £l000 DAMAGES

Slander Alleged By Company OPENING OF CASE FOR DEFENCE INSURANCE COMPANIES IN SUPREME COURT The Supreme Court was occupied all day yesterday hearing the action for alleged slander in which the Australian Provincial Assurance Association, Limited, is claiming £lOOO damages from the Australian Mutual Provident Society. The hearing was begun on Wednesday. Yesterday morning the evidence for the plaintiff was concluded, and the rest of the day was devoted to hearing the evidence for the defence. When the Court rose last evening the last witness for the defence was being examined. It is probable that the case will be concluded today. His Honour, Mr Justice Kennedy, presided. Mr H. F. O’Leary, K.C., of Wellington, and with him Mr G. J. Reed, is representing the plaintiff, and Mr G. G. Watson, with him Mr H. J. James, both of Wellington, is appearing for the defendant. A jury of 12 is trying the case. George Robert Bruce Smith, of Sydney, general manager of the plaintiff company since 1927, said he had been associated with the company since 1914 and for a short period had been manager in New Zealand. The plaintiff company was incorporated in Australia and registered in New Zealand. The witness learned of certain trouble in the Invercargill, district early in 1937, and because of it he visited Invercargill and Otautau in March last year. After an interview with the Collies he formed certain conclusions and was convinced that the matter could be settled only by the head offices of the companies. The witness told of letters which passed between the companies and outlined the negotiations which led to the action being taken. Cross-examined by Mr Watson, the witness said his duties in Sydney kept him fully occupied. Mr Watson: Yet .you came all the way from Sydney to Otautau to make this investigation?

Witness: Yes. You know that whatever was alleged to have been said, the A.P.A. still retained the Collie policy?—Yes. When you came to Otautau you found that the alleged statements had been made to one family?—Yes. And that you still retained the policy?—Yes. , And having made a thorough investigation you met the' acting general manager of the A.M.P. in Sydney?—Yes. And made your complaint?—Yes. The facts as set out in your letter, through the solicitors, to the A.M.P. company contained the results of your investigations in New Zealand? —Yes. You asked to have a suitable notice of apology published in the Press circulating in the southern island of New Zealand?—Yes. Did you mean every newspaper in the South Island?—We had not arranged that. I understand there are 100 newspapers in the South Island. Did you intend that all of those papers should publish the apology?—No. Well, what did you mean?—The principal papers in Invercargill, Dunedin .and Christchurch. APOLOGY DRAFTED Mr Watson read a letter which was sent to the head office of the AM.P. company in Sydney from the A.P.A, company. It read, inter alia:— “In the circumstances, you will appreciate that our clients have suffered very considerable damage to their reputation, and in ordinary circumstances they would not have hesitated to have instituted legal proceedings, as, in fact, they have been forced to do in other cases. However, our clients’ regard for your venerable society, and the high ethical position for which it has always stood, leads them to hope that you will take suitable action to prevent a repetition of what has occurred, and that you will be prepared to publish in the press in the southern island of New Zealand a suitable notice and apology, and we take the liberty of submitting a draft form of notice which we think would be suitable to the occasion.

The suggested notice of apology was as follows:

NOTICE AND APOLOGY BY A.M.P. SOCIETY The Australian Provincial Assurance Association, Limited, has made representations to us that certain of our agents, when canvassing for business on our behalf, made certain statements in relation to the association of a disparaging character, and which gravely reflected on the financial stability of the association, and indicated that persons intending to insure would be well advised not to insure with such association. We wish to repudiate entirely the statements complained of and to apologise for their having been made. Such statements were wholly untrue, and we wish to state that the Australian Provincial Assurance Association, Limited, is an insurance company of the highest standing and that its financial position is unassailable. Furthermore, it is a member of an association of life insurance offices, which association only includes companies of undoubted stability and integrity. Do you think the apology as drafted by you was a fair one?—Yes, certainly. In view of the facts I learned I consider such an apology was warranted. The defendant’s agents may have made the statements to hundreds of persons. What were your reasons for demanding such an apology? Were you seeking an advertisement for the A.P.A.?—No. I considered it necessary to restore the prestige of the company which the agents of the A.M.P. had tried to tear down. I put it to you that it was a deliberate attempt to obtain an advertisement for your company?—lt was not. I suggest that your motive was to ensure that litigation would take place?— That may be your conception but it is wrong. The purpose of the writ was to endeavour to re-establish the prestige of your company was it not?—Yes. Then why the delay in issuing the writ?—l was very anxious to get the matter brought on. Any delay was caused by the Sydney firm of solicitors. You have not lost one pennyworth of business by the incident. Then why make a claim for. £1000? You have not lost any business?—As far as I know we haven’t. Are you seeking to make money out of this action?—We are trying to vin-

dicate our status, not to make money out of the action. CASE FOR THE DEFENCE “Just as counsel for the plaintiff emphasized the point that the case was an important one to his client, so is it one of very great importance to the defendant company,” said Mr Watson, in opening the case for the defence. After making an investigation of the facts the A.M.P. Society was satisfied that none of the statements complained of had been made and was prepared to defend the action. If the action was wellfounded and if damages were recoverable against the A.M.P. as a result of statements made by its agents then, he would say to the jury, contrary to what the plaintiff had claimed, that the A.M.P. would be entitled to recover the amount from its servants who had contravened the regulations of the company and made statements in excess of their duty. He would remind the jury that the issue was not whether the A.P.A. was a “dud” company or not. The A.P.A. had not to prove that it was not a “dud” company and the A.M.P. had not to prove that it was a “dud” company. The issues, he said, were: (1) Did the servants of the A.M.P. use substantially the words alleged, and (2) did those words bear the particular, strained, and possible meaning placed by the plaintiff on them? The onus, of proving these things was on the plaintiff, not the defendant. Alexius Hugh Ryder, new business agent of the A.M.P. Society in Invercargill, said he and Cowie interviewed Collie, senior, about September 26 or September 27, 1936. They went to Collie with the idea of insuring the two younger Collies. They knew that the eldest son, John, had a policy and it was decided, in view of trouble over his policy in 1932 and 1933, not to bother inquiring about a policy for him. The interview was between Collie, senior, Cowie and the witness. They sat in a car, and in answer to a question about insurances for his younger sons, Collie said he was surprised to hear the question as he had been thinking of insuring his sons. On his son Wallace’s life he said he already had a policy in the National Mutual Office and would want only £250 for him. For the other son, Allan, he would require £5OO. After having premiums quoted to him Collie said he would have them fixed up. He invited the witness to return the following week when the witness would be going through the district. Collie then said he had been wanting to see Cowie and the witness about some trouble over a policy in the A.M.P. office on Johns life, in 1933. He did not say, however, that he did not like going into the A.M.P. after what that office had done to John. Mr James: What did he say about the 1933 incident? , , , , , Witness: He said that Jack had dropped his policy and wanted to hear what had happened. I told him I thought Jack had made a mistake in dropping his A.M.P. policy. I showed him figures in the insurance book, and quoted the AM.P bonus rate and the A.P.A. bonus rate. Collie asked how the A.M.P. could pay the higher bonus, and 1 compared the expense rates of the companies, and showed that the expenses of the A.PA. were nearly double those of the A.M.P. , , Collie said it appeared as if he.had made a mistake in carrying on with his AP.A. policy in 1933 and it appeared to him that it was a very poor office, said the witness.

“NO STATEMENT OF REFLECTION”

Witness: I made no statement whatever reflecting upon the financial stability of the A.P.A.; none whatever. Mr James: Did you refer to the A.PA. company as a “dud” company? —No. . ~ Collie added, after comparing the rates of the A.P.A. with, another company, that he did not think the A.PA. could be a very good company, said the witness. Mr James: Did you make the statements attributed to you by Collie, about the A.PA. being a “dud” company, the policy not being worth the paper it was written on and that if the policy was given to you for nothing you wouldn’t have it?—No. Well what do you think of the statements made by Collie?—Absolutely ridiculous. The second interview took place on October 1, said the witness. He was alone on that occasion and went to Collie’s place to complete some proposals. Collie and his three sons were present at the time. After the business was completed Collie said to the witness that he had been thinking over. Jack’s A.PA. policy, and asked the witness’s advice about dropping it and taking out a fresh one with the A.M.P. “I told him I was not permitted to advise him—that I was an interested party,” said the witness. “I said it would be unfair for me to do so but that he could find out what he would lose by surrendering his A.P.A. policy and then seeking other advice. I mentioned his bank manager or stock company manager as people likely to give him that advice.” Did you. draft a letter so that Jack Collie could get the advice about surrender value from the A.P.A?—Yes. What did Collie have to say on that occasion?—He said he thought the A.P.A. was not as good an office as the A.M.P. The witness called back for a third interview on November 19. He saw Collie, sen., and Jack Collie, and asked Collie what was his decision about Jack’s policy. He replied he had decided to surrender it. Collie also said he had seen his bank manager, who had said that all his insurance was with the A.M.P. and he knew the A.M.P. to be a good office. The witness then got a proposal from Jack Collie. The premium was paid that day by Collie. The financial position of the A.P.A. was not discussed. The witness did not advise Jack Collie to surrender his A.PA. policy. He denied Jack Collie’s statement to that effect. CONFERENCE ARRANGED When he came back from a holiday visit to Australia in January 1937, he was told about a conference which had been arranged between all parties, said the witness. There were present at the meeting, Collie, sen., John Collie, Wallace Collie, Wilson, Cowie and the witness. Collie, sen., was in the chair. The charge of “twisting” John Collie’s policy was the object of the meeting. There was no suggestion of a discussion about alleged slanderous statements. Several matters were discussed but the discussion reverted to the charge of “twisting.” During the discussion Collie said that after his previous discussion with the witness about surrendering the policy he had come to the conclusion that the A.P.A. was a “dud” office. The witness reminded Collie that he had other advice and he admitted having received advice from his bank manager. When they were leaving the meeting Wilson said that the best thing to be done was for the A.M.P. to give Collie his premiums back and that would be the end of the matter, said the witness. The witness refused to do so. Cowie took no real part at all in the conference. He interjected once and Wilson said that he (Cowie) could have the floor later. That was the whole of Cowie’s part in the discussion. It was ridiculous for any man of experience even to suggest that if he could get a policy for nothing he would not take it. The witness said he had little to gain but a great deal to lose if he tried to “twist” a policy. “Twisting” was subject to dismissal by his company. He had 14 years’ experience as an insurance representative.

A SERIOUS MATTER To Mr O’Leary: It would be a very serious matter for an agent of one company to describe another as a _ "dud’ company. It would be a reflection on the other company. He agreed that if the statements were made by him they would be a serious thing for the company. He would say that Collie was an honourable man, but he apparently got so confused that he did not know what he had said. Mr O’Leary: Well, well take Wilson. He has said that you said the company was a “dud.” What of that?—lt is a deliberate untruth. It is ridiculous. Did you say anything like these men have said you said?—No. None of the statements these men have told us? —No. ’ Did Mr Cowie make any of the statements? —No. Take John Collie. He said that Ryder and Cowie said the A.P.A. company was a “dud” company and he would be better out of it. Did you say that?—No.

You attribute those statements to confusion on the part of the Collies?— Yes. You say Wilson is deliberately lying? —Yes. Do you appreciate that Collie and Wilson said practically the same thing? —Yes. What basis have you for saying that Wilson was deliberately lying?—l expected him to remember what was said. The witness said he had not spoken to the manager of the bank at Otautau about the insurance.

Mr O’Leary: When Collie referred to the 1932-33 incident that was a charge of “twisting,” was it not?—Yes. You can make no suggestion about Ibison influencing the Collies in 1932-33 can you?—No. It was then that a complaint was made reflecting upon the financial stability of the A.P.A.—Yes. In 1936, when you went to the farm you apparently avoided John Collie?— We went to the car with Collie. You knew of the 1932-33 trouble when you went to the farm?—Yes. The witness said he drafted the letter, at John Collie’s request, to the A.P.A. asking about the terms of surrender. He did not advise John Collie to drop the policy. Coltman informed him of the charge of “twisting,” and he appreciated that the meeting was called to investigate what was said about it. The financial stability of the A.P.A. was not questioned. Wilson did not say at the meeting that it was called to investigate defamatory statements. William David Cowie, agent for the A.M.P. Society, at Invercargill, said he discussed insurance with members of the Collie family twice—in November 1936, and on February 19,' 1937. On the first visit he and Ryder went to Collie’s farm to insure Allan and Wallace Collie. Collie, senior, met them and they discussed insurance while sitting in a car. At that time Collie made no demur about insuring with the A.M.P. He did not raise any objection to insuring with the A.M.P. Society. At the second interview Collie spoke about the trouble over John’s policy. Ryder told Collie that he thought he had made a mistake in allowing the-policy to lapse, and gave as reasons that the bonuses of the A.P.A. were not as good as those of the A.M.P. After Ryder had quoted the figures to Collie, the latter said the A.P.A. must be a “dud” company. Mr James: Did you say the company was a “dud” company?—No. Did Ryder?—No. He probably referred to the company as a poor one. Was Collie the only person who said that the A.P.A. was a “dud” company? —Yes.

Was there anything said by either you or Ryder reflecting on the financial stability of the A.P.A.?—No. The witness denied making the remarks given in evidence by the Collies that Ryder and he had said the A.P.A. was a “dud” company, and that the policy was not worth the paper it was written on.

The witness vas at the meeting on February 19, 1937. Wilson did not say that the purpose of the meeting was to investigate any slanderous or defamatory statements. To Mr Reed: He had been an insurance agent for 10 years and knew the Collie family for a number of years. He knew him and his son John as well-respected farmers. He also knew Wilson, the AP.A. agent and knew him as a respected man. Mr Reed: Did Ryder quote very extensively from the insurance book on the occasion you first interviewed Collie, senior. Witness: No. Did he read passages from it?—He quoted the funds from it. Would you deny that he quoted anything else?—No. What did Collie say about the 1933 incident?—He said he had been wanting to see us about it. There was a charge of “twisting?”— That is so.

Then when Collie brought up the 1933 incident what did Ryder do?—He had to justify himself, and that is where the insurance book came in. What did Ryder say?—“l think you are making a mistake to allow the A.M.P. policy to lapse.” Ryder then compared the relative benefits of the A.M.P. and the A.P.A.? —Yes.

And you there and then discussed the A.P.A. and their policies?—We compared the two offices. Did either of you at that stage suggest it would be better to drop the A.P.A. policy as in a few years’ time an A.M.P. policy would be worth more?—No.

Were the premiums on John Collie’s policy discussed at the meeting?—No. Who used the word “dud” at the September meeting?—Collie, senior. Have you heard the word used frequently?—No. How many times?—Not very often. Hundreds of times? —No. Dozens of times?—No. Well, more than once?—Oh yes. “HEAT” AT THE MEETING Was there any heat shown during the meeting of all parties in February? —Yes, possibly. Did Wilson ask you to keep quiet?— No he asked me to “open up.” Did Wilson show heat?—A little. It was an argument. Did Ryder get heated?—No. Did Collie?—No. Only Wilson?—Yes. Collie accompanied the witness to the back-door, he said, but he did not hear anyone use the words “It’s no doubt a dud company—better to change.” William Hall Denley Coltman district manager of the A.M.P. at Invercargill said Wilson and Collie, senior, called on him to lay a charge of “twisting” a policy on his son John’s life. Nothing was said about defamatory or slanderous statements. The witness told the men that the representatives against whom the allegation was made were on holiday and he suggested that a meeting be held when the representatives of the company returned to Invercargill. The meeting was thus arranged for February 19. The witness was not present at the meeting. On April 9 of last year he received a letter from his head office stating that a charge of making defamatory statements against the A.P.A. by Ryder and Cowie had been laid and asking the witness to investigate the charge. Up till then he had heard nothing of the charge and was surprised. On that evening he telephoned Collie but was unable to locate him. An interview was arranged, however, and the witness was to meet Collie on April 14. Collie asked if he would like Wilson to be present, but he replied that he did not think it necessary.

The Court then adjourned till this morning.