SUPREME COURT, INVERCARGILL.

Western Star, Issue 943, 29 April 1885, Page 2

SUPREME COURT, INVERCARGILL.

i .., ■ j Wednesday;’ 25te ■ Ajßip.j U (Before His Honor Mr Justice Wjllipntfjj,),W*il r Mi^ h[in MOORS? 'AND ANOTHER YVinPUi •EyiJTty.^ . INSURANCE CO. , , /' Thio was,a claim forlfl2so. Mr Fmn at)-* 0 pearad for plaintiffs, and MFWadfi, 1 with’ foSi *■>'■> ■Mr Reade, for the defendants, A jury of ■ four, with Mr J. McKellar as foreman, having been empanelled, -yil A : Mr Finn opened the cosefgr tbenlaintiffa., He said that on the 31st JtouSaryVlßM*?tfi , e 1

Company issued: a pohcyxof jnjjuraiio® „$o Moors and Co. for the sum of £250 upon oartain sawmill plant at Colad BsylwHrho statement of claim set, forth ithat.gn the date the plaintiffs were the owners'of the mill and plant; that the defendants,' in-considera-tion of £lO .paid ,to, them, executed. to the -plaintiffs a polity of insurance‘oif'llie said buildings and? • machinery., ias , -from , a 31sb January, .1884 to 31st January, 1885; that on the 26th October,• 1884, the ’said '• buildings and machinery were, totally; destroyed by fire; that the plaintiffs' thereby suffered a loss of £250; that they dujy performed all . the-conditions of the said policy: and that '• the defendants have 1 not "'’paldyfiantiv still!*'* refuse to pay, the amount of, the policy. The defendants, Mr Hihn continued, denied all the material allegations contained in the plaintiffs’ declaration, only admitting ' that a* policy for "the ' amount ? slated timvLt* issued to them. They alleged,that the phuntiffs did not suffer a loss of £25b v said fire; that the plaintiff, Perkins, at the date of the alleged fire, was not a partner in the firm—that he had no insurable interest in the property insured; that Moors, prior to * the date of tho fird, had parted with his interest in the property insured; that one of tho conditions to which the policy was subject had not been fulfilled.; that no account ’ of the alleged Joss was suppli'ed'ia ; aeiail that Perkins wilfully made afalse declaration in connection with the claim of Moors‘and Co, for alleged }o?s and damage,

said that on behalf of plaintiffs it would be proved that Moors, and Perkins, .had entered, into a partnership long before the date of the policy; that the property insured was partnership property ; that the premium was ... paid, out of- such property-; and that they were partners at the time of the loss, and are so still. The defendants alleged that Perkins was not a partner, and that therefore there was no proof of loss, but it w ould be shown that he had sent in a claim of loss tojihe Invercargill manager of the Company, *. and that it was accepted, no demand being made for fuller particulars.' The property insured was unlike ordinary goods andchattels, as it did not depreciate in value readily,-and iit would be proved that it was nearly as valuable at the .time of the fire as on the date of the policy. , The Company had never attempted ;to return the balance of the premium; nor had they ■ attempted to pay. any money into Court, .but they alleged fraud, or in other words, that the property was over-insured. That, however,-had to b^ ■-’* proved. Mr Finn then called-" - A. T. Perkins, who gave evidence in support of the claim. He detailed the offers made after the fire by the insurance companies holding risks on the mill and pi nt. He entered into partnership with Moors in July, 1882, and was still a partner. Part of their property was the sawmill and plant, which were insured for £1250. After purchase, and before the lire, additions were y made'of the value of £200.... At the date of the fire the property ‘covered by the policy Was worth about £IOOO. Gave in the proof of loss the day after the fire. Negotiations afterwards took place between witness and the .Companies, with the result that he offered,;^without, prejudice, to. take £7OO, op the property;’ 1 | ’Cross-examined by Mr Wade ; ‘Had never denied being a partner of Moors. Moors Hyas the licensee under the Government of tnl; sawmill are i, and was liable for the royalty. Mr,. Moors, was now in Victoria. He i-(witness) attributed the fire, to' the efigihe being A portable one; the mill hadj been on fire three times the week before it was burned down; the cause being, as, witness believed, sparks from the engine, j .‘v Mr Wade ; Did you ever say it would bei-a good job if the mill -were burned down Witness: -I have no distinct recollection that I ever said so, but if I did it was in. joke.,E-H’; ffOi.'il f. u.-> ■ ■ -- •* " 1 j Mr Wade:‘Well, you may find that idlej remarks Will .come against’ jfah when you least expect it. There is Scriptural warrant; ..for that.- <-()W ■ In reply to further i questions witness de- , med‘ that he had ever placed; shavings,or 1 other , debris in such a position as to endanger! the safety of the mill. He had received; £395 from the other, insurance companies.j ■Received a cheque for £2lO , from the National, and told Mr Cuthb.ertson,., (local meager df’ the Equitable Co.) that, the] National had paid in. fully-namely, £250. j Thought.it was fair tp say so in order to get! Guthbertson to settle. j W. Young, manager. ;of_the Invercargill j ’branblTdf the Colonial Bank, deposed that; the plaintiffs 'had. transacted; business with! the bank as H. E. Moors and Co. He under-; stood the firm consisted of Moors and Perkins, ,and cheques were; signed pby; the; 4fcfeU>i. - u Kj7J ° *- x '

T. Perkins gave evidence as to the value of; the property insured, and said that when his son (A. T[. Perkins),entered into partnership! with Moors he was under age, add there was! therefore*hp(deed.; of .partnership 'fi^OTeonxHeai.' t Y/Y ..- ’

G. Woods and.H., Wilson,-were also ex'litnmed'.'''' .The latter stated that a former otynef of the mill (Henry) wanted £I4OO for 'it. ; J 7,U1‘l u r ■’ was plaintiffs’ case. 7 ’Mr Wade, in opening the defendants’ case, 'said that the pleadings set out that one of their reasons for refusing to pay the amount claimed was that there had been no proof of loss; inasmuch as the declaration attached to one 1 sent inhad been made by A. T. Perkins, whom the Company, were lied to believe was hot a member Of the firm. However, Perkins had proved that he was a partner, and as such had made the proof of loss. There was therefore no question on that point. The Company would 'ndt have pleaded that or any other technical point if satisfied that the amount claimed tyas fair and bona fide, namely, that the insured parties had sustained the loss, or somewhere near the loss, which .they alleged they had suffered? In other words, if they believed.the claim was an honest One it wOuld have been honestly paid, but as it was they felt bound; to avail themselves of any technical point open to, ,them.- jury in such cases ought not to allow themselves to be influenced by.the feeling that the plaintiffs had suffered some loss, and the defendants, being a wealthy Company, could better afford to make that loss; They had simply to listen to the evidence, and before ‘giving, judgment for the* ’amount claimed they" would • have to satisfy themselves that in consequence of the fire the plaintiffs had .sustained; the loss for which they now claimed. Perkins had admilted that he had received £395 from the other companies interested, and from the evidence to be submitted the jury would probably: find that that alone was more than sufficient-to cover the actual loss plaintiffs had suffered.,'' h. ■ R. P. .Cuthbertson, local agent of the defendant. .Company, ;was then called and examined by Mr Reade. , Cross-examined by Mr Finn: The reason why we did not reinstate the property Was that before we had exansted every reasonab)q,effort for a-settlement the Government the plant, and the sawmill area was for-

levied to the Crown.!,- <'■' l - ■ 'Re-examined' by Mr Wade; Ifc waa cstiijmtedlbat.the cost of repairing or replacing t&o property would be £438, but that includes£9s for articles not covered by insurance... {U'l fJlfi ( . Jabez Hay, engineer, deposed that three, days after the fire he inspected the salvage, and made an estimate of what it would cost to make good- the damage done. To replace the mill plant (sheds excepted) would have cost £338. Had he known of.the existence of three - belts, 1 bis estimate would have been £57 Jess. ; , , .. James Stewart,, engineer, estimated- the; valufeof = aifc the tMe .of the fire at abwfia&wM was then insured for £7OO it was considerably over-insured. Cross-examined: If there"had been good timber there the mill would have been more valuable, sits value would be regulated by the nature of the timber available for sawmill purposes. -I saw-Mr. Kirkaldy (manager of the Insurance Co.) at lliverton. He inquired as to the salvage from Moors and Co.’s mill, andJ told him about it. There were two belts saved from the fire, and after the fire they were taken to Perkins’ hut. Three or four- persons, knew that they were taken there. >! F, Henry, sawmiller, said that in 1883 he had sold the sawmill at Colac Bay for £I4OO. In this were included bullocks, the mill plant and -site, the sawmill area Of 200 acres, and the right to cut on 185 acres. At that timo the mill and machinery were worth from £SOO to £550. Immediately before the fire ho estimated their value at about £4OO. They had deteriorated to that extent during two . 1 « ..1 rl Un 'iiAttinfnfrtM Tm»

years. The property could be reinstated tor £250. utilising the salvage. ' _ Cross-examined: Did not tell Mr Wilson on one occasion that the plant had cost me £IOOO. I paid Jabez Hay £IOO for the engine, boiler planing machine,intermediate shafting, saw spindles, and rollers, and all the ironwork. The belting was afterwards obtained from Cowper and Wilson, and cost about £BO.

It was not £IBO. The Court at this stage adjourned till two p,m., and on resuming Donald McKay and John Horr gave evidence as to the value of tho mill and plant. The former in crossexamination stated that several additions had been made to the plant after the plaintiffs took it over, and the latter, referring to two belts saved from the lire, said that if they had not been put away under cover they plight have been injured. Perkins said that he was going to put them away, and did so. Counsel then addressed tho Court, and his xr rt nor reviewed the evidence. Jl °™, jury, after half-an-hour’s deliberation, .Q a-verdict for the plaintiffs for £214. TmW 'en was given accordingly,with costs J le—disbursements and witnesses’ Spwi W *“ b J ttoße Si«'W'