CLAM SUCCEEDS

Wanganui Chronicle, Volume 74, Issue 189, 12 August 1931, Page 7

CLAM SUCCEEDS

WAIROA FREEZING CO.

FIRE DAMAGE TO BE PAID CHIMNEY STACK EXCEPTED ( Per Press A.>roriation. ] GISBORNE, Aug. 11. Judgment was delivered by Mr Justice Blair i„ the Supreme Court in the action the Wairoa Farmers’ Meat Co. “'■•l the Bank of New Zealand versus the New Zealand Insurance Co. and tho ■agio, Star, and British Dominions Co. a claim for £77,850 damages in respoet of the destruction of the Wairoa freezing Works shortly after the earthquake disaster in February. His Honour declared for plaintiffs on the policy for the whole of the fire damage, with the exception of the chimney stack. Tho judgment, points out that the method of ascertaining the quantum of lire damage is tho subject of a special arrangement, and by the same arrangement the question of costs is reserved, both matters being deferred meantime. General leave is reserved tor plaintiffs to apply for further orders necessary to give effect to the judgment. Mr Justice Blair’s resume of the ease, the hearing of which occupied ten days, covered fifty-one foolscap sides and closes with an intimation that the delay in the delivery of judgment was due to the mass of material examined was due to the mass of mater ial examined and tho necessity of wait ing for a stenographic, transcript of th< evidence and argument. Points from Judgment Air Justice Blair’s judgment dealt ex tensively with the effects of the earth quake as revealed in evidence and with the incidents associated with the fire including the action of the fire super intendent in arranging for the cutting off of the electric power as a measure of public safety. There was a body of <■ idenco for plaintiffs showing that inspection ot the buildings before the fire tailed to disclose any earthquake damage to cause the company any concern, which evidence could not be disregarded. The policy covered numerous buildings and it was suggested by the defence that the fall of one building abrogated the insurance on everything in the policy, unless the fall was caused by the fire, but his Honour could not get such a construction out of the ila use concerned. Any other construction would mean that if a small build-' ing many chains away from the others fell or became displaced, then the whole policy covering the property would bo invalid and £139,167 would be abrogated. Touching on the correspondence bo tween the parties prior to the litiga tion, the Judge said that it was obvious that proof of damage- was necessary only if and when required, and the letter from defendants attempted to place upon the plaintiffs responsibility for failure to comply with the request for proof, when no request had ever been made. Request for proof was first made after defendants had been served with a writ and had been granted additional time to file tho defence. No proof

was offered to his Honour that defendants, either by letter, telegram, or verbally, expressed any want of satisfaction with the proof sent by plaintiffs, nor had any request been made for further proof dealing with defenco under the clause covering an alteration in its business of the insured. Cessation Clause The defence, based on tho clause of the policy which purported to operates as a, cessation of the insurance in the event of any portion of the buildings falling or being displaced by the ’quake or other cause, was treated at length by his Honour, who dealt with the authorities quoted in the course of the hearing and favoured the interpretation of obscure clauses from the point of view of the insured. He held that the clause referred to was ambiguous and obscure and he justified reading it from the point of view of the insured party rather than from that of the insurer. The Judge said that the company*’ had never made any alteration in its business after the earthquake nor was there any change, voluntary or involuntary, on plaintiff’s part in tho nature of occupations or other circumstances such as ta increase the risk by fire. In the later stages of the judgment. his Honour indicated that no • portion of tho earthquake damage ’ could be said to have contributed to ' tho fire damage and tho spread of the fire was not attributable to any ’quake dain a go t o the buildings.