LAW REPORTS.

Dominion, Volume 3, Issue 836, 7 June 1910, Page 9

LAW REPORTS.

TO PAY OR NOT? INSURANCE ON A CITY FIRE RISK. ALLEGATIONS MADE. Final hearing of the case of Mrs. Emily Ada Tropsor versus the Ocean Accident Guarantee Corporation, Limited, was taken yesterday before the Chief Justice (Sir Robert Stout). This was a claim for ,£l7O on on insurance policy, and the case was partially heard on Thursday and Saturday last. The statement of claim was to the effect that, on August 20, a firo had occurred, on premises in Cambridge Terrace by which fire plaintiff suffered tho loss of all her furniture and effects. Iter policy with the defendant company was one for ,£IBO, but the company refused to pay, nlleging, as' reason for refusal, that arson had been committed. The company also alleged that the policy had only been issued after misrepresentation by Prosser, the latter acting as agent for his wife.

During the hearing of the case, on the preceding' days reference was made, in evidence, to two previous fires which had occurred on premises occupied by Mr. Prosser in Moxham Avenue, ICilbirnie. The company contended that, when Mr. l'rosser furnished the particulars necessary for the taking out of tho policy in liis wife's name, ho should have given information nconccrning these fires. On the other hand it was stated (as part of the case for tho plaintiff, Mrs. l'rosser) that the furniture had been made over to her by her husband subsequently to the second firo at Kilbirnie.

Mr. J. P. O'Upgan appeared for plaintill', ami Mr. T, 31. Wilford for the insurance company. When further evidence had been given by Mrs. Elizabeth Edith Mallows, Mrs. Alice Long, and William Short (hotel porter) with a view to rebutting certain allegations made by witnesses for the defence, argument was proceeded with. A Husband-to.-Wife Transfer. Mr. Wiiford opened by referring to the main Suggestion of the defence, viz., that the transfer of the goods was a "fake" from beginning to end, in order to get insurance. He followed this up by pointing' out that Prosser had not eil'eeted the transfer to his wife by any deed or document, which course, under the suspicious circumstances, ought to have been followed, and the deed registered. As against the plea of transfer certain evidence had been given during the. case to the effect that Mr. and Mrs. Prosser had exercised joint ownership, some of the lodgers paying their rent to Mr. Prosser. Altogether this alleged transfer was a transaction which should be viewed with extreme suspicion. Who would, believe. in the. transfer of the ownership of tools that Mr. Prosser wns actually using in his trade as a bootmaker, unless it had been done for a purpose? and for what purpose? For tho purpose of insurance.

The Benzino Allegation. Then there was another aspect of tho case. Experts had . recently told the Court that one of the easiest methods of setting fire to premises was to sprinkle bwissino. or another hydrocarbon on the lumiture or stock, and leave a gasjot burning. The lire might then begin without explosion or noise. Now, Mr* Prosser had admitted that some benzine had been kept under tho staircase ■Mr. Prosser hnd denied that, but a witness lor tho defence. John Kush lirown, who lodged in the house, had declared positively that ho had seen benzine tins in a cupboard under tlio staircase. ' Couusei further contended that Mr Prosser had not exhibited überrima fides _m ■ his dealings with Air. Smylie the insurance canvasser. Ought not he to have given information of his two previous tires at Kilbirnio whether he was then acting for himself or, as agent, for his principal (his wife)? The proposal for an insurance policy was necessarily made out in the form ot a declaration, and the whole of the statements made were surely tainted, when it ■was shown that one of the- boot-repairing machines, claimed for as having been totally destroyed, had not been touched by the Are.

Questions to Answer when Insurinn. There were threo questions on tho proposal for insurance, regarding which agents were warned to bo particularly carelul. Tho first question on the Ocean Company's proposal reads as follows:— "When was tho last stock-taking, and tho amount!'" Prosser, in answering the question, had declared that stock had been taken on October 4, and that its valuo was ,£233. That statement had been contradicted by witnesses for the plaintiff,. however, when they had been questioned nhout it. Tho second question on the proposal was: "Havo the applicants, either collectively or individually, and, if individually, either alone or in conjunction with other persons, ever had a lira'loss or made a claim for.fire loss upon an insurance company, and, if so, upon which company?" This question, said counsel," had been framed specially to meet "the husband-and-wifo-transfcr case." This was the second point of alleged fraudulent misrepresentation, and the company claimed that,""" in the faec of these declarations, tho policy was forfeited. The third question was: "Has the risk teen offered to or declined by any 'other officeP/ Insurance experts had stated .that "risk" meant "the property insured," and, when Mrs. Prosser stated that tho "risk" had never previously been offered to any other company, she was stating what was incorrect. The company contended, therefore, that the claim of Mrs. Prosser was absolutely ended.

The Other Side: Allegations Combated. Mr. O'Rcgan, in reviewing Mrs. Prosser's case, urged that the hearing had shown her to bo a reliable witness and, consequently, her evidence regarding the ownership of the furniture ought to bo believed. It had been made to appear that- Mr. Prosser was hungering for insurance, and that ho took part in a plot to defraud tho company. As against this view he would point out that Mr. Prosser hod not niado the application to any company—on the contrary, he had been canvassed by an agent. Tho evidence given by the witnesses for plaintill' shoved that the fire could not havo been premeditated. Although claim had been made for a machine that had been damaged only by water, that did not necessarily mean fraud, which must be clearly proved. Mr. Prossor, acting for his wife, was not bound (said Mr. O'Kegnn) to say anything about his own previous fires, and, if tho answers to the proposal had been given by Mrs. Prosser herself, she would have been justified in answering question 3 in the negative. Mr. O'Rcgan quoted an English case in which it had been held that a man, having had fires of'his own, was not compelled to give particulars of them, when applying for insurance on account of a partnership with another. The figure quoted as the valuo of the stock related to a previous valuation made by v Mr. Prosser. In Mr. O'ltegan's opinion, tho evidence hnd foiled entirely to prove incendiarism. His Honour reserved judgment.