SUPREME COURT.

Evening Star, Volume IX, Issue 2786, 22 January 1872, Page 2

SUPREME COURT.

CfVIL SITTING. This Day. (Before his Honor Mr Justice Chapman and a Special Jury.) REICIIELT V. NEW ZEALAND INSURANCE COMPANY. This was an action to recover the sum of LIOOO, amount of insurance on buildings in Princes street, partly destroyed by fire on June 13. Mr Barton, with whom was Mr Stout, appeared for the plaintiff; Mr Smith and Mr Haggitt for the defendants. On the Associate commencing to call over the jury pane], M r Smith said he thought all gentlemen who had served on any of the previous juries, or on the grand jury should not serve on the present.

Mr Barton would not consent to that. The J other tide had had an opportunity of going over the panel, and should be content with those already struck off. His Honor : I think no one who has sat upon previous juries should sit upon this. Mr J. A. Connell claimed exemption on the ground of being a Provincial Government servant, which was disallowed \ Mi John Hislop was excused on the ground that he had served on the Coroner’s jury ; Mr W. Guthrie, on his Honor being reminded that he had promised that jurors in the long case of Creed v. Dalgety and others, last session, would not again be called upon to serve for a time; and Mr James Barr on the ground of ill health. Mr Peter Grant claimed exemption on the ground that during last week he had been compelled to ride in from the Taieri daily, and during the week had ridden close upon 200 miles; that already his loss of time had been very great ; and to be put on the jury now would be very inconvenient. His Honor: Unless I discharge the jury they must remain in Court until called upon. It was impossible for me to foretell how long the last case would take ; and, out of consideration of the jury I discharge them until Thursday morning, and again until Saturday, and then until to-day. I cannot, look upon what you ha-c urged as an excuse ; I am very sorry for it, but you must go into the box.

The jury was then sworn as follows : - Messsrs Chas. Smith (foreman), John Connell, Geo. Herbert, Colin Allan, G Matheson, G. O'Brien, John Davidson, John Price, Jas. Forrester, Chas. Ziele, John Gibson, and Peter Grant. The defendants by their pleas simply alleged that the fire was caused by the wilful act of the plaintiff. The issues put to the jury were 1. Did the fire happen from the wilful act of the plaintiff? 2. What amount, if any, is the plaintiff entitled to recover from the defendants ? About an hour and a half were occupied in discussing which side should begin. Ultimately bis Honor decided that the defendants should commence.

Mr Smith then opened his case as follows : —The plaintiff in this case brings his action upon two policies of insurance effected with the New Zealand Company—the one upon (roods in his premises in Princes street, where he carried on during the last three years a fancy goods trade, which premises were destroyed by fire on the 13th June last—the other on the building; each policy being effected for LSOO. As you have already heard, the only defence which the defendants have raised is, that the fire by which the buildings and goods were destroyed was caused by the wilful act of the plaintiff. If the defendants cannot establish this plea to your satisfaction, the plaintiff, as a matter of course, would be entitled to recover the amount he claims. No doubt a great deal will be made by the learned counsel on the other side of the fact that the plaintiff has already undergone a criminal trial upon the same charge—for it is substantially repeated in the plea in the record in this action—and that he was acquitted. Some of you gentlemen of the jury may have come into that box with the preconceived notion that because a jury has pronounced a verdict of acquittal upon that same charge, the Insurance Companies ought to pay over the money at once, without further question. Possibly that would be right if wc ' had not some peculiar circumstances attending the delivery of the verdict iij. question ; but more than all that, new evidence will he brought before you on this occasion, which I undertake to say will leave no moral doubt whatever in your miuds that the plaintiff was guilty of what has been attributed to him, viz., of wilfully setting fire to his premises, for the purpose of defrauding three Insurance Companies. The plaintiff had also effected insurances with the Victoria, and Liverpool, London and Globe Companies, j am going to take the sometimes dangerous course of putting one’s opponent in the witness box 5 to allow him to manufacture, if he pleases, any evidence he likes, to suit his own purposes. So satisfied am I that the more this case is investigated the clearer will the guilt of the plaintiff become; —that he will find it impossible to give a satisfactory and truthful explanation of the circumstances which all tend to prove his guilt,— that I shall have mo hesitation in placing him in the witness box, to put him through the ordeal of a close examination upon all matters connected with the insurance of the premises, and the fire by which they were destroyed. At the criminal trial the plaintiff was unable to speak for himself, and the prosecution were unable to place him in the witness box to elicit evidence from him. That will now be done, and will form an element in this case which ought to indues anyone who has gone into the witness-box with a preconceived notion as to the duty of the insurance companies to hold your judgment in suspense in fact you are bound to do this until the whole of the evidence adduced at former trials has been given ; and until you hear how the plaintiff has gone through his examination. In the evidence which I shall marshall before you, I shall endeavor to satisfy you beyond all reasonable doubt that the plaintiff was «uilty of what is attributed to him. Of course it very rarely happens that any man who is capable of doing so who resolves to commit the crime of arson, ever allows a person to observe him commit the act. A man with a grain of common sense selects such an hour as renders it impossible that there should be any such witness. In order to establish this crime, it is necessary to collect circumstances which have a tendency to satisfy the minds of a jury that the party charged with the crime is guilty of it. In this case there is a train of circumstantial evidence, each part of which in itself points strongly towards the plaintiff—the accumulating effect of which is to bring irresistible conviction to your minds of his guilt, inasmuch as the evidence will show such a train of circumstances, all conspiring towards the same result, which is perfectly inconsistent with any other supposition. The learned counsel thou proceeded to give a narrative of the case. In reference to the fact which was attempted to be proved at th,e criminal trials, that the plaintiff suffered from diarrhoea the night before the fire, Mr Smith referred to the subject in these terms : “ The day after his acquittal the plaintiff called on Mr Elliott, who in the course of conversation asked him if he really had diarrhea that night. He said he had not. Mr Elliott then asked him if he had diarrhoea at all that clay, and his reply was, ‘ No, I had not. ’ We shall hear perhaps what did take the plaintiff down to his pi’emises that night. This time I shall not be fighting with a spectre ; neither shall I have to go behind

the scenes. You must know the theory that has been set up to account fer his visit to the shop at that hour, —it was talked about town on the occasion of the last trial, and I shall bring the plaintiff face to face with it, and show that there is no more ground for it than for the diarrhoea theory. After commenting on the other facts he intended to establish, and reading the correspondence between the solicitors on each side, the learned counsel concluded as follows : The Insurance A guits having been pressed to give an a.iower, “yea or nay,” to the plaintiff’s' demand for a settlement of his claim, have been pushed into a corner, and have taken upon themselves to defend this action, upon the ground that the plaintiff wilfully set fire to his premises. It rarely happens, perhaps for the sake of public decency and morality, that insurance companies do resist claims of this kind ; they have been too much in the habit of settling claims which they knew to be fraudulent, for fear that on account of the keen competition of insurance companies, those companies who resisted claims—even if persuaded they were fraudulent—would be subjected to invidious comparisons, and stigmatised for not settling claims against them; while other offices sometimes took the unworthy credit to themselves that they always paid their liabilities. In the present case, notwithstanding that one jury has pronounced a verdict of acquittal, the insurance agents have joined together in order that a further and more searching investigation shall take place before twelve special jurors, who shall on their oaths say whether or not the plaintiff was guilty of wilfully setting fire to his premises, As I told you before, an element in the case will be the examination of the plaintiff himself ; and no doubt your verdict will turn ip a great measure on the way in which he comes out of that ordeal.

The following witnesses were examined : —J. M. L. Nicholson, John Hamaan, Jno, Tennant, J. Scholefield, and Wm. Noonan (partly examined.)