THE £l0,000 CLAIM.

Taranaki Daily News, 1 December 1921, Page 5

THE £l0,000 CLAIM.

END OF SMALLFIELJ CASE. i • QUESTION OF PAST' HEALTH. INTERESTING LEGAL ARGUMENT. By Telegraph.—Press Association. Auckland, Last Night. Before Mr. Ostler asked Mr. Justice Stringer at the Supreme Court to-day for judgment for £lO,OOO in favor of Mrs. Lucy Smallfield, following upon the . jury’s verdict that suicide had not been proved, there was an argqment of considerable public interest on certain pointe raised by Mr. Neave for the National Mutual Life Association of Australasia. Mr. Neave sought to amend the defence by certain additional pleas. He contended that on the evidence by Mrs. Smallfield, her husband, in filling up the proposal form for insurance, failed to supply the correct informaton -regarding the “present and general state” of his health. In answer to the question: “Are there any other circumstances which ought to be conimunicated to the directors to enable them to form a fair judgment in regard to the risk of insurance on yopr life?” The insured answered “no” whereas it appeared, he was rejected from military service as unfit. The company did not know the reason for rejection, but that was not a material point. His Honor: Who is to decide whether there are any other circumstances? Mr. Neave: The office should know the fact and they sre to decide materiality. His Honor: Suppose a man has £ bleeding nose for a week, that condition passes away and apparently the man is quite well, although the bleeding was really symptomatic of some disease. Would he be responsible for not stating that he had a bleeding nose for a certain week? Mr. Neave said that was not the question. The question x was what fact had Smallfield failed to disclose, and having got it, was it one he ought to have disclosed. His Honor: Suppose he was rejected because he had flat feet? Mr. Neave replied that the reason did rot matter; the company was entitled to know the fact of rejection. Mr. Ostler: The office knew Smallfield was a married man with one child and must have been accepted or rejected by the military. His Honor: Suppose a man had had a fall, which as far as he knew did not affect him in any way, but which turned out afterwards to have affected his brain. If the fall is not disclosed, is he guilty of a misstatement under the clause? A man’s whole life might be raked over for incidents he had failed to disclose.

Mr. Neave: He may have been rejected from military service on account of an alleged defective heart; we do not know.

Hi& Honor: Except by your own medical examination, when two doctors examined 'him. Unless you can satisfy me 1 ought to make amendments I am not disposed at present to grant them. Mr. Neave contended that failure to disclose rejection was as important as failure to disclose refusal by another insurance company. Even if the question regarding refusal were not specifically asked the withholding of the fact would vitiate the policy. His Honor: It suggests that policies stand in jeopardy to a very much greater extent than one imagines. You knew of the attack of influenza, and be-. , cause he did not disclose any obscure consequences—Mr. Neave: Rejection was prior to the influenza. Mr. Ostler said the evidence of Smallfield’s weak heart referred to a period of less than nine months before his death; If. Mr. Neave’s contention were correct it became a veritable trap for persons wishing to insure. Mr. Neave: “The fact of rejection, and not the reason for it, is the material matter,” . After counsel had quoted authorities His Honor refused to allow amendments. He said there was nothing to show that Smallfield’s fainting fits began before he filled up the insurance proposal. Regarding the non-stating of his rejection from the military, His Honor said it would be quite absurd if a man’s life could be raked over to see whether he had not a fall, or a bleeding nose, or a fainting fit, at some time or other, the significance of which the man might be quite unaware of. The fact that he was rejected for military service might be due to a variety of causes. In any event the company knew he had been rejected. Argument on the question of interest from June 17 was reserved, and joint judgment was given for £lO,OOO, plus interest if allowed at 7 per 'cent. Mr. Neave took exception to paying plaintiff’s costs, stated to be in the vicinity of £3OO. His Honor said a successful plaintiff was entitled to costs, and there was no reason for departing from the rule. He could not conceal the fact from his mind that when the carbolic acid theory had been exploded there was still an endeavor to establish suicide by drowning. Full costs would be allowed. Mr. Neave next askM for a stay of execution for a week or a month, and this was granted.