INSURANCE CASE

Waikato Times, Volume 127, Issue 21219, 16 September 1940, Page 6

INSURANCE CASE

BAKER’S DISAPPEARANCE COURT OF APPEAL ENGAGED LEAVE TO SWEAR DEATH . (By Telegraph.—Press Association) WELLINGTON. Monday • The disappearance of William Alfred Joseph Suiter Montgomery, a baker, while on his daily round delivering bread at Ngatea, near Thames, on February 3, 1936, and the question of payment of his life insurance are occupying the attention of the Court of Appeal today. Montgomery’s van was found near the wharf on the Piako River, but no trace of Montgomery has been found since then. At the time of his disappearance ho was in good health and in a sound financial position, and there appeared no reason why he should have taken his own life. The view commonly accepted in the district was that he had accidently fallen into the river, which was then somewhat flooded, and been drowned. The Public Trustee as holder of a will dated 1925 applied in June last to the Supreme Court for an order granting leave to swear the death of a missing person so that probate could be granted and the estate administered. This application was opposed by the A.M.P. Society, the Colonial Mutual Life Assurance and the Stale Fire Office, in which Montgomery’s life was insured for a total of £3OOO. Case of Importance Mr Justice Johnston, by whom the application was heard, gave leave to swear death, at the same time pointing out that the insurance companies could defend proceedings on the policy on the ground that there was no evidence of death. The Court of Appeal is today hearing an appeal from this decision. Mr G. G. G. Watson, appearing for the appellant insurance companies, said the case was of general importance to all insurance companies, as Mr Johnston’s judgment carried the state of law further against the insurance companies than it had been before and made an order on facts which hitherto would not have been considered sufficient. He submitted that the judge had adopted a wrong view of law, which although correct in England was wrong in New Zealand. Difference In Law In New Zealand, continued Mr Watson, the effect of the Administration Act was that once probate or letters of administration were obtained the onus was then thrown on the insurance companies to prove affirmatively that a missing person was not dead but alive. In England the law placed no such burden on the companies. Mr Justice Johnston, having accepted the law to be the same as in England, approached the facts in an attitude which he would not have adopted had he been aware of the true effect of the Administration Act. Had the Judge approached the facts in the correct attitude he would not have held that the evidence produced was sufficient to enable him to make the order asked for. (Proceeding)