SMALLFIELD CASE.

Waikato Times, Volume 98, Issue 15306, 6 August 1923, Page 6

SMALLFIELD CASE.

PRIVY COUNCIL APPEAL. STATEMENT OF DEFENCE. MRS SMALLFIELD WINS. LONDON, June 15. The case Lucy Smallfleld (appellant) v. the National Mutual Life Association of Australasia (respondent) was heard before the Judicial Committee of the Privy Council last week. Viscount Haldane presided, and with him were Lord Buckmasler and Lord Parmoor. Mr T. J. C. Tomlin and Mr H. H. Ostler appeared on behalf of appellant, and Mr F. H. Maugham and Mr S. P. J. Merlin for respondent. This was an appeal from a judgment of the New Zealand Court of Appeal on June 20, 1922, reversing a judgment of the Supreme Court of New Zealand, and dismissing the action. Lucy. Smallfleld is the sole executrix under the will of her husband, Cecil Robert Smallfleld, who died at Hamilton on January 26, 1921. Smallfleld met his death while bathing in the Waikato River. In the afternoon of that day, which was very hot, he went with a friend, Chapman, to bathe. According to the latter's evidence, deceased dived into the river, swam down for about 24 yards, and then returned to the bank and sat in the water at the edge of the river. Chapman then went away for about 12 yards. When he returned Smallfiell had disappeared. His body was recovered from the river on January 30, 1921. Two inquests were held, and at the second inquest evidence was given that at the second post-mortem examination carbolic acid was found in the body of an estimated amount far in excess of the amount required to cause death. Statement of Defence Amended.

The respondent, on its defence, pleaded that the insurance policy, which was for £IO,OOO, was made subject to a condition that it should be void if Smallfleld should die by his own hand within 13 months of the date of the policy, and it was maintained that he did die by his own hand. At the end of the evidence of Dr Kenneth Mackenzie, who had said that the evidence he had listened to had strengthened his opinion that death was due to heart failure, and that the evidence was indicative of < heart trouble, the jury intimated that they were satisfied that there was no proof that the deceased had died by his own hand.

Counsel for the respondent then applied for leave to amend the statement of defence upon the ground that the evidence tendered on behalf of the plaintiff showed that the deceased had failed to furnish true answers to the questions submitted to him upon his proposal for insurance, and that the deceased had failed to disclose matters affecting the risk which he ought to have disclosed. The New Zealand Court of Appeal, by a majority of two to one, held not only that the amendment should be allowed, but proceeded to hold that the evidence of the appellant established the new defence; and directed that judgment should be entered in the Supreme Court for the respondent. The Chief Justice dissented from this judgment, holding that the judgment of Mr Juslic Stringer was right. Appellant's Case,

Counsel for the appellant in the appeal last week submitted that the judgment of the Court of Appeal should be set aside, or, in tho alternative, if the respondent's amendments ought to be allowed, that a new trial should be granted, confined to the issues raised by such amendments, with liberty to the appellant to adduce all such additional evidence as may be relevant. Amongst other reasons he maintained the respondent had known for at least two months before the issue of the writ that C. R. Smallfleld had been rejected for military service, and had not thought fit to raise any question as to the accuracy of any of the answers in the personal statement, or as to the state of health of the assured at the time of the personal statement. The, evidence adduced on the issues already disposed of showed no prima facie case in support of either of the amendments applied for. Even if the amendments applied for, or either of them, were or was proper to be allowed, the appellant was never given any opportunity of adducing evidence to meet the new case, and never, in fact, agreed to waive her rights in this respect. Case for Respondent.

Counsel for respondent held that the Court of Appeal had jurisdiction to hear the appeal notwithstanding section 35 of the Life Insurance Act, 1908, and the terms of the policy relating thereto. The Court of Appeal had jurisdiction in the circumstances to allow the amendment of the defence, and in the circumstances rightly allowed the amendment. The basis of the contract of assurance was the declaration and personal statements made by the assured, and on the true construction of the policy the answers and statements of the assured were warranties. The evidence establishes that the answers to three of the questions in the personal statement made by the assured were untrue. Judgment was reserved, but lias since been given in favour of Mrs Smallneld.