COURT OF APPEAL

Taranaki Daily News, 21 June 1922, Page 5

COURT OF APPEAL

the smallfield case. VERDICT UPSET. By Telegraph.—Press Assoeiatten. Wellington, June 20. The Court of Appeal gave judgment, by two to one, for appellant in the case wherein the National Mutual Life Association of Australa-sia appealed against Mr. Justice Stringer’s judgment refusipg the company leave to amend the statement of defence and directing that judgment 'be entered for Mrs. ymallfield, of Hamilton, on her claim of £lO,OOO, alleged to be due on the policy -of insurance over the life of her late hus•>band. The ground of the company’s applies,-' tion for leave to appeal was that the evidence tendered on behalf of Mrs. Smalltield showed that her husband failed to furnish three answers to questions submitted to him on the proposal for insurance, and failed to disetoee ■matters affecting the risk which ought to have been disclosed. The Chief Justice said that no prori- . sion existed under New Zealand rules for filing a new defence, unless such defence had arisen after filing the that defence. The fact that Smallfield had been declined for military service was known to appellant before the commencement of the case. The evidence was insufficient to show that the proponent knew that his heart was in a bad state prior to the proposal. Mr. tice Stringer’s finding on the facts cotdch not be held to be wrong. The Chief JwM t ice opined that the appeal should tie dis missed. Mr. Justice Sim considered there WMkj evidence supporting the proposed new,*' defence. Assured had warranted thrf truth of all the statements in his proposal. An amendment should have bean granted, but he agreed with the fonn of judgment proposed by Mt. Justice Hosking, who held that certain statements by Smalltield were not true and there were undisclosed circumstances which should have been communicated to the company. An amendment should have been allowed. The conditions af-4 feeting her husband’s death deposed to by Mrs. Smallfield should havo been, communicated to the company. Mr. Justice Hosking opined that theappeal should be allowed and judgment entered for the company. Respondent

should be allowed £2OO costs as to the issue of suicide, on which she had succeeded.