SUPREME COURT.

Evening Star, Issue 3946, 18 October 1875, Page 2

SUPREME COURT.

CIVIL SESSIONS. Friday, October 15. (Before his Honor Mr Justice Williams.) ALL QK.I) FRAUDULENT REPRESENTATION. Flexman v. The standard insurance Company.—Claim of L13,0U0 ou au insurance policy, r.ho following witmssv.s were ca.led for tlu defence: — Charli s livid, manager of the standard Fite ,%nd Murine Ins ranee Company in Dunedin : 1 fit st saw the plaintiff in reference to tue insu rancet on the evening of the date of the proposal. It was in the Standard office. J. did nt, as stateu by M.r Flexman, first speak to him on the matter near Wise’s corner. The plaintiff told me that lur Eliott was going to give up his risk on the building, and asked me if I would take it up. The r. suit was that I sent a message that e reuing to Mr Flexman that we would accept the risk, I signed the interim policy on the next morning. It was annexed to the proposal, which was at that time tilled up in its juesent shape. It was not then signed, nor had it the office memonuulum across it. I gave tue proposal to Mr Wei duer, and when next I saw it it *as signed ; it w,.s then tiled in the office. I first heard that the buildings were ins .red in the .Norwich Union utfice two or three days sui'sequent to th.- tire, at a meeting of the insurance agents. I am ignite sure that was the first intimation I had of that fact. I then wrote t . Mr rlexm.in, and tendered him •i ivtuiii of till' pr-mium. this Uk'Ho.-s v.uti lived to ,-r \V.eh;n«y The nexi i iu-.ud of ~.e mutter was a letter Loin Ml F ie .man, asking when the money would be paid. The claim of loss was leceivfed upon the day whose date it

bear?, Tli* conditions endorsed upon the nolicy are the only conditions upi .n which the Standard Company insure# against fire. I believe the pobcy was not delivered until after tb. fire. Cross examined i We would not have received hi# proposals unless we weir reinsured We got rid tf the whole risk and the profit My motive was to vet Flex man"- other bush uses, which was volunteered by him. It does not follow that if I got other risks from him I would iv-iimuro them also. Very early next morning I signed the interim policy I did not -end he policy mr dioMr FT xman. Ihj >ve uolicies now m the office a year oi l. My be ’iff is ifiot was never required, •‘hen 1 si mi Ui-.y are folded up and pit aside, for de iv-iy. I scot the policy’ after he fire, because lie had a. right to it. The whole risk was taken by the Transatlantic. I was given to understand that the transatlantic would not pay us Ido not remember that I evr said that I would pay Mr Flex man. if the Transatlantic would pay me. L. Weidner, clerk in t a Standard Insurance Office, deposed; I made out Flexman’s proposal from a memo. Mr Keid gave me. I then made out the interim policy and pinn-d it to the proposal, and (took it’’to Mr (Keid for his sigaatui*. That prop sal is the same now as then, except that it was not signed by Mr Klexman, nor the office memo., *’Re-insured in the Transatlantic,” written on it. On the morning following the 31st, I toek the document to Mr Flexman’s. He opened it, and signed the proposal. I then detached the in teriin poliev, and returned the proposal to oui office, and it to Mr Kilgour. I wrote the words “reinsured in the Transatlantic ” on the proposal. The statement as to what took place is also untrue. He mver fold me that he was insured in the Norwich Union for LI,OOO. He never applied to me for the pol cy. I took a cheque for L4O to Mr Flexman on the 9fh of July, for the return of the premium, but he rekised to accept it.

Saturday, October Iff.

Mr Weidaer’s cross-examination was eon* tinned. He said : The proposal was filled up when I took it to Mr Flexman. The figures written at the he.id of the proposal were written at the same time, and in my opinion here ie not the slightest difference between the coloring of the two. I had no conversation with Mr Flexmau when I saw him on the Ist J uno, I never saw him in the standard! office —I am quite ceitain of that. The policy is dated the 16th June. I uouM pledge my oath to the fact that the policy was made out on the day of its date--to the best of my be lief it was. as I date the policies when I write them. The policies are left in the office till oalled for, and if they remain a long time in the office they are sent out. (Mr Macassay : They remain as nr Barton said yester day till the fire occurs.) lam not prepared to swear that the policy was signed by Mr Reid on the day of its date, but it must have been signed within a week. After the fire Mr Rrid gave instructions to send over the policy, and I had it sent over. I did not attach imp rtnnoe to the fact, Idi I not interpret it as meaning that the company would nor, pay. On the 31st May, when Mr Flexman said he oalled at the Standard office, I was away all day with the exception of about two minutes. When I came in, saw Mr Reid, who told me to call on the Transatlantic, and I went away again Numbers of people call at the office. I might not remember some calling, but I would remember Mr Flexman, Unowinc him for a number of years. He ainlvf lid not call on the ,? lst May, and I don’t believe ho called at any other time. uebrrt Kilgour, cashier in the Standard Insurance Company, deposed that he never had any conversation with Mr Flexman in the Standard Insmance v ffice in reference to any insurance policy, and was never present at a conve gatiou between Mr Flexman and Mr W-idner in ’be office The only time he saw bVxmau in the office was when ha called to see \l.r Ridd. Weidner was not in the office then. Flexman did not tell him or Wtiduer he had LI.OOO in the Norwich. By Mr Mma-sey: (he whole of what Mr Flexman swore yesterday regarding the alleged interview is a pure invention—it is utterly untrue. James Cunningham, carpenter, and now inspector of bridges, who lived near the tannery, estimated that the buildings were worth about L9OO, and could be put up new for L1.,‘200. A portion of them were mere shelters, not buildings—sheds of a most inferior description ; another portion consisted of sheds of a fair description. H. F. Hardy, architect and valuator: I have seen the building m my times before the fire and since then. My impression, after careful consideration, is that the buildings, as they stood, were worth about L 1,500. Cross-examined : I formed this estimate very recently: about a week ago. I have experience in various capacities. lam an arcin'ect, a valuatoi, a builder, a carpenter, a churchwarden.—(Laughter.) My estimate is formed by twenty years’ valuating experience. This was the case for toe defence. Mr Haggitt asked to be allowed to amend the declaration from L 5,000 to L 7,000 the a Mount set down when the plea was originally delivered. His Honor considered the amendment immaterial. If it was shewn that there had been fraudulent representations, the amount, piovided it was too exce sive, would not alter the matter. The alteration, being pressed for, was allowed. Mr Haggitt then reviewed the evidence. Ho stated that insurance contracts were like any other mercantile contracts, and insurers could make any stipulations they pleased, as the only conditions under which they should enter into a contract with their customers. Persons when insuring with companies must ascertain from the company what information was required in order that they might arrive at a conclusion whether they will or will not take the insurance policy. Lord St. Leonards had stated that if any one warranty or statement made by a person effecting an insurance was untrue- it should be sufficient to evade the contract. The evidence placed Mr Flexman in a very unpleasant predicament, Mr Flexman could not have made so many mistakes ; or Mr Reid, Air Kilgour, ami Air Weidner could not have made so many mistake?. It could not he all mistakes ; thi y could not flatter themselves by saving that the witnesses had very bad memories—t 'ere was something worse than that he (Mr Haggitt) was sorry to say on the one side or the other, and it was for the jury to decide ou which side the mistakes were. 'I he learned counsel then poin ed out the discrepant ;>■ in the evidence given by Air Flexmau, and that by the witnesses for the defence. I nloiinnately tor Mr Flexman, every word that he had spoken had been denied, not by one, bur. by three witnesses ; and every corroborative fact was directly and diametrically opposite to his account, and tended to disprove his story. Marks on b ■ hj papers showed that tbe proposal and interim i.oltcy had uiiuoubtedly been pinned tog. iher. Mr Macassey having replied, Ms Honor summer up. 'he jury then r tir dat 8.30 p.m., and returned the following special verdict :

“ We, the jury in lh" case of Flex man v, the Stan ard Insurance < .'otupany, find a verdict for the plautiff, and that the facta of the case are as follow : - “ That Charles Flex man entered into a contract with the Stamlar ; Insurance Company for indemnity against loss by fire, on his iannery buildings at the Kaikorai, for twelve months from the .‘list May, 1875, to 31st May, 1876, being at th.it time insured for LI,OOO in the Norwich Union Insurance Company. “That he was not aware that the words. ‘Not otherwise iutrwed’ were written in his proposal for insurance, and that ho signed the same negligently, without knowledge of its contents, and that he did not f audulent y or wilfully conceal from the defendants the fact that the same buildings were insured fur LI,OOO in the iNorwich Union Insurance Company. * We find that he is entitled to 11,500 damages, withou interest.” Mr Btout submitted that the jiwy should be required to find whether or not the pro pusiil set f.T'h in the plea was till d up in the manner eel iW n holme .Mr I l ’.ex man signed it. 11 io Honor said the object of the rule which enabled a special jury to find the. facts as

brought out at the trial *as that these might be settled once for all. Unless the jury found the facts their verdict would amount to nothing. Their verdict did not do so ; it consist d partly of law and partly of fact Before they left the box they should specify all the facts at issue between the parties one way or the other. the jury again reTred, and ultimately brought m n verdict for plaintiff on all the issues lor L 1,600.