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2 corrections, most recently by doug.butler - Show corrections

LAW COURTS.

SUPREME COURT -CIVIL SITTINGS. FRIDAY, JUNE 12.

[Before His Honor the Chief Justice.] BEAM V. SOUTH AUSTRALIAN INSURANCE COMPANT.

The Attorney-General (Mr. Andrews, Q.C.), and Mr. Way for the plaintiff ; Messrs. Boucaut and Thrupp for the defendants. On the names of the Special Jury who had

  been summoned to try the cause being called, John Primrose, of Fullarton, brewer, was ex cused on account of being over age, and D. Murray, Parkside, merchant, was fined £5 for non-attendance. This was an action for £L,OOO on a policy of insurance on the plaintiff's stock-in-trade. The pleas were that the plaintiff did not within seven days or by the next post render a proper account of his losses as required; that the plaintiff had made a false return of his losses, &c. ; that the fire occurred through the plaintiff's own act and with his knowledge; and that the fire was caused by spontaneous com bustion. Mr. Way read the declaration and the pleadings, and the Attorney-General opened the case to the Jury. Arthur Bean, the plaintiff, was then called, and said he carried on business in King-William-street as a leather cutter, &c He had two shops, whole sale and retail. Had purchased the business from his brothers. In November last a fire occurred in the retail shop, when the stock was consumed. Had sent in a claim to the In-urance Company of £893 12s. 9d., which was arrived at by taking the stock at cost price, deducting from it the amount of sales, and the amount of stock in the wholesale shop. His books were not destroyed, but the invoices which were kept in his desk were. The goods in the retail shop consisted generally of leather and grindery, and com prised fancy leathers, hemp, flax, skins, kc. ome goods bad come up the day of the fire rom Bean Brothers' yard at Thebartou. The ulk of the stock was in the retail shop. His brother (Mr. G. T. Bean) and Mr. Egan assisted to take stock after the fire. The police were in possession of the shop after the fire;he believed by the authority of the defendants. Gave an interest in a pro perty he had for the goodwill of the business. There was great difficulty in replacing the stock burnt, besause some of the goods were not to be had in the colony. By Mr. Thrupp— There was a door bstween the two shops. Sales were carried on promiscuously from both shops. Did not keep separate books for each shop. The north shop was the retail shop. The door was in the centre, with a win dow on each side. One of the windows was enclosed. The counter was flash with the front door. Some goods might bare been on the counter, but could not remember whether any goods were on the counter the night of the fire. It was not usual to keep goods under the counter. There was one shelf under the counter. The gas meter was under the show-board under the north window. Persons coming into the shop could not see the meter, and it could not be touched by any one entering the shop. The meter might have been kicked by him whilst serving in the shop. Never recollected kickiug the meter. At that time they closed the shop be tween 6 and 6.30 o'clock. Had used no gas for a long time before the fire. It was the duty of a lad named Johnston to look after the gas. There had been no occasion to do anything to the meter for a long time be fore the fire that he was aware of. Did not know whether the gas was turned off or not. There were no gas hangings from the ceiling of the shop. There was shelving all round the shop, and on that the stock jras placed. After the fire a greater portion of the shelving had tumbled down. The part of the shop near the meter was the most injured. There was other stock in the shop besides that on the shelves. Two lads were engaged in the shop be sides himself. Mr. Egan, the traveller, was not in the shop on the day of the fire. Closed that evening about 25 minutes past 6 o'clock. The boys closed the shop. One of them went ""into the cellar to push the shutters up, and the other boy put them in their places. The shutters were fastened on tie inside. One of the boys was sent to the Railway Station with a parcel after the last shutter was put up. Johnston and he went away together by the back door. There was also a back door to the wholesale shop, which was kept locked. Sent Johnston to the Exchange stables with his books, and stayed to lock the door while he was going up the passage. Saw Johnston afterwards under the Exchange Hotel verandah. It would scarcely be a minute from the time the boy left him until he saw him again under the Exchange verandah. Handed Johnston the keys under the Exchange verandah, and then went for his trap. He did not usually stop to lock-up. It was usual for him to take the books home every night. Always took the cash home with him at night. The principal books he took home were the ledger and day-book. First heard of the fire just after he started to go home. Some one told him the shop was on fire. Jumped out of the trap and ran round to the front of the shop. It might have been about 10 minutes or a quarter of an hour from the time he locked up to the time when he ran to the front of the shop. Remained till the firs was over. Went home about 8.30 o'clock. lived on the South-road, and when he got home foundthat his wife knew about the fire. Had come to no conclusion as to bow the fire happened. An inquest was held on the fire, when he gave evidence. The result of the inquest was to the effect that the fire was malicious, but there was no evidence to show by whom. A rider was also attached to the effect that his evidence was not satisfactory. After the inquest he wrote a letter to the news papers. The boy Johnston also wrote a letter. Saw Johnston's letter before it was sent. Did not dictate the letter to the boy. It had been suggested to him, and he suggested it to the boy. Suggested to the boy to write the letter, because he had been made to say something which he did not say. Was present at the inquest when Johnston was examined, bnt not when he was re-called. The boy was made to say that he found him (witness) at the back door when he came back from the stables, and that was what he wished to correct. When he first proposed the insurance to the Company, he saw Mr. Tapley, who inspected the stock. Did not remember telling Mr. Tapley there was stock in the cellar, and showing it to him. Did not remember Mr. Tapley remarking that £1,000 was a large sum to insure the stock for. Did not remember having a conversation with Mr. Tapley on the premises after the fire, and telling him that he had not increased his stock. He had increased the stock since the insurance. Did not recollect the amount of purchases when he first pur chased the retell business. When he purchased the wholesale business he gave between £1,000 and £1,100 for it. He gave bills for that. The retail was paid for partly by cash and partly by bills. The wholesale business was insured in the same company for £1,500. There was some burnt stock left after the fire. It was still in the back store, and had not been sold, (The

witness was then examined as to how he had made up his losses.) By Mr. Way—There were goods under the stairs. There was a consider able space between the stairs and the counter. His brother had the use of the office at the back of the wholesale shop, and was at the shop on the da; of the fire. The last customer served that day was Mr. Dunn. They had been very busy that day. He was not often there when they shut -up the shop, but when Mr. Egan was away he sometimes stayed at the shop. _ Mr. Egan was away in the country at that time. There were muslin curtains in the retail shop where the glass show-case should be. There was a little lobby at the end of the shop, which they had to go through before they got to the back door. The lobby was enclosed by a door, which he also locked before going out. The iron gate at the end of the passage was sometimes called a door by Johnston. Mr. Ingleby suggested that Johnston should write a letter. Several questions were asked him at the inquest which he did not like. Was not quite so calm at the inquest as he was then, as he was excited, having been refused admission to the premises. The letter produced was the one written by Johnston. (Letter put in and read.) The letter produced was the one he had written. (Put in and read.) The Company accepted the risk after inspect ing the premises. There was considerably more stock in the retail shop at the time of the fire than there had been for some time pre viously. Geo. T. Bean, of Torrens Side, tanner and importer, deposed that he at one time carried on the same business as his brother did, and that the plaintiff had purchased the busi ness from him. He had the use of the office in the wholesale shop, and was in the shop on the day of the fire. There was a general as sortment of leather and grindery in the retail shop. After the fire, made a calculation as to the claim which should be made by his brother. Some of the stock in the wholesale shop was   damaged, but that was not included in the calculation. It was arranged with Mr. Baker that it should not be included on condition that possession was given up of the whole sale shop. Sir. Baker was the surveyor for the Insurance Company. A policeman was at the door, and took his orders from Mr. Baker. After the conversation with Mr. Baker the plaintiff was allowed to take possession of the wholesaleshop, hutthepolice retained possession of the retail shop, which they kept for aliout a week. (Witness then explained how the losses bad been ascertained.) The goods that he saw in the shop on the day of the fire would bear out the calculation which had been made. Some of the goods were very expensive. There would be a considerable difficulty in replacing some of the stock after the fire. By Mr. Thrupp— Believed Mr. Baker was the surveyor for the Insurance Company, because he acted as such on the day of the fire. If any goods bad been sold or removed from the shop with out being entered they would have to be de ducted from his calculation. Henry J. Dunn, bootmaker, of Woodville, deposed to having been at the plaintiff's shop on the night of the fire and purchasing a parcel there, which was sent to the Railway Station for him. The shop had its usual appearance on that evening, and he had frequently been there. By Mr. Boucaut— Was not smoking when he went to the shop. Did not smoke. Michael Egan, traveller, in the employ of the plaintiff, said he was in the shop three or four days prior to the fire. There was a good stock, and the shop was well furnished. Thought the stock was the best assorted stock in the trade. Thought the stock was worth about £1,000. Received some orders on his trip which could not be executed on account of the fire. Should think the average profit on the stock was about 30 per cent. Assisted to take stock in the wholesale store after the fire. By Mr. Boucaut—Did not assist Mr. Joel Roberts to take an inventory of stock saved after the fire. Moses Saunders, bootmaker, of Rundle-street, gave evidence of having been in the plaintiffs shop on the morning of the fire, and saicl he considered the stock to be a very good one. William H. Stacy, wholesale boot and shoe merchant, was called to show that the allow ance made by Mr. Bean for profit, 25 per cent., was a fair average allowance. Thomas Deller, in the employ of Messrs. Bean Brothers at Thebarton, deposed to having taken some goods from the yards at Theharton to the plaintiff's shop on the morning of the fire, and said that he had frequently delivered goods there before. James Champion, of Stepney stated that he had formerly been in the leather trade. He knew the plaintiff's shop, and had frequently seen the stock. He believed it was a good stock. Was employed to assist Mr. Roberts in the valuation of the stock after the fire. By Mr. Thrupp—Had no particular quarrel with the Insurance Co., except that he thought they had acted very shabbily towards him. Dennis Twohey, also in the shoe trade, said he believed the stock in the plaintiffs shop to be a good stock. Thomas Johnson, shoe im- porter, deposed that be had been called in by Bean Brothers after the fire, and asked to value the salvage, and what he would give for it Valued it at £32. Had frequently passed the shop. It appeared to be well stocked. By Mr. Boucaut—There was a deal of rubbish under the window near the meter and in the cellar. Could pretty well see what had been burnt in the other part of the premises. (The correspondence which had taken place between the solicitors for the plaintiff, and the solicitors for the Insurance Company, was then put in and read.) George T. Bean recalled, stated that he brought his books up as required by the Company, but they never inspected them. James P. Owen said he was working for Mr. Arthur Bean, and was in his employ on the day of the fire. The shop was pretty well stocked. Deller brought up some goods from Bean Brothers' yard on the same day. By Mr. Boucaut—Took a parcel to the Railway Station. Had just come up from the cellar before he went to the Railway Station. Did not smoke that day. Had some resin amongst the stock, but it was principally kept in the wholesale shop. The matches used were the patent safety matches. They were kept in a drawer in the shop. The matches were not burnt. By Mr. Andrews—Had seen people smoking in the shop. James W. Johnston, also in the employ of the plaintiff, was called, and in cross-exami nation by Mr. Boucaut said he remembered the evening of the fire. After putting up the shut ters Mr. Bean gave him the books, which he took to the stables, and returned and met Mr. Bean at the iron gate at the end of the passage. (The statement of the witness at the inquest, that when he returned he saw Mr. Bean at the back door, was read to him, and he said he did not mean to say that. Other portions of the evi- dence of the witness were read to him, and he said they were mistakes on his part.) Mr. Bean was waiting at the iron gate for him when he returned from the stable. When he said the back door, he meant the gate leading into Hindley-street. Was much con fused at the inquest. Sent the letter produced to the papers. It was written by a gentleman in Faulding's. It was written because he thought it was his duty to write it. No one asked him to write it. Mr. Arthur Bean never asked him to write. Had some conversation with Mr. Bean, with respect to writing the letter. From the time of giving his evidence at the inquest and his signing the letter, he had no conversation with Mr. Arthur Bean. Did not recollect seeing Mr. Ingleby during the inquest. Recollected seeing Mr. Ingleby when a drawer in the shop was broken open during the inquest, but did not recollect Mr. Ingleby speaking to him then. Did not remember Sir. Ingleby asking him on that oc- casion to point out the spot where he saw Mr. Bean when he came back. Had not spoken to Mr. Bean about his evidence that day. Re- collected showing Mr. Ingleby the drawer where the matches were in the shop. Mr. Bean was standing near the partition door when he went away with the books. Supposed about two minutes had elapsed from the time he took the books to the time he got the keys from Mr. Bean. Had got nearly to the Bank of Aus- tralasia on his way home when he heard the cry of fire. He generally had charge of the gas meter. It was turned off. Turned it off himself on the last occasion of its being use. Did not notice any resin about. By Mr. Way—Sometimes called the iron gate a door. Was present at a conversation with Mr. Ingleby after the inquest in the presence of Mr. Bean. Thought the conversation was at Mr. Ingleby"s office, or in King William-street Did not recollect whether anything was said about a letter at that conversation. The handle of the winch on the gas-meter was turned towards the floor when the gas was turned off. By Mr. Boucaut —Was not certain where the conversation with Mr. Ingleby took place, nor was he certain what was said. That concluded the case for the plaintiff. Mr. Boucaut submitted that the plaintiff must be called. He had not shown that he had furnished a proper account of his loss as   required. His Honor remarked that he had furnished as good an account as he could, and surely that was sufficient. Mr. Boucaut then addressed the Jury at considerable length in opening his case, and in doing so remarked that the defendants did not rely on the plea of spontaneous combustion. He referred to the evidence which had been given by the other side and to the evidence which he should call, and said he should show that the gas was turned on and that the pipe was broken, and that must have been done by some person de signedly. He should also show that a heap of rubbish, amongst which was some resin and bill heads of the plaintiff, was found near the gas meter, and he thought they would have no diffi- culty in coming to the same conclusion as the Jury did at the inquest—that the fire was caused wilfully. William Townsend, M.P., of Adelaide, auctioneer, was then called, and said that on the 26th of November last, about 25 minutes past 6 o'clock, he was passing the plaintiff's shop, when his attention was attracted by what appeared to be dust com- ing out of the cellar on the southern side of the shop. He then heard crackling as if of fire, and saw the flame. He immediately dispatched three cabs—one to Mr. Baker, one to Barlow's and the other to the Police Station. A Hrl McCa.be then camo up, and some one cried out "Fire." A policeman arrived, and wished to burst open the shutters; but he prevented him doing so, as he was afraid ttiat if the fire escaped the whole place would be burnt down. All that time the fire was burning above the counter in the north corner of the shop near the gas meter. When he first passed

the shop, about ten minutes before, everything was right Was present at the inquest Saw the boy Johnston point out to Mr. Ingleby where the matches were kept Heard Mr. Ingleby ask Johnston where Mr. Bean was standing when he left him, and he pointed to a place. The matches were kept in a drawer on the north side of the shop, and were uninjured when they were opened. Not one went on to the premises until after the reel arrived. Rupert Ingleby, the Coroner, deposed to having held an inquest on the fire at the plaintiff's shop, and produced the depositions. During the inquest a question arose as to the matches, and Johnson was taken round to show where they were kept When the drawer was broken open the matches were found uninjured except by water. Johnston, in reply to a ques tion, pointed oat where Mr. Bean was standing when he returned from the stables, and said he was locking the back door when he returned. The fire was excessively superficial, and had gone all over the shop. After the inquest, which had Listed some time, he walked up and down Rundle-street fora few times, and then went to his office. The plaintiff came to him and said something about the evidence having been taken down wrongly, or given wrongly; and being busy, and not wishing to be annoyed, he said " Write to the newspapers." From what he saw of the premises after the fire, he was under the impression that uothing but gas could have caused it Found a charred mass, comprising melted resin and paper near the the meter. By Mr. Andrews—Johnston was examined at the inquest Took down the answers to the ques tions. The evidence taken down was not ver batim. William Coppard, in the employ of the Ga? Company, deposed to having gone into the premises of the plaintiff as soon as possible after the fire, when his attention was called to the smell of the gas escaping. He went to the store and got some tools, and came back again, and examined the pipes. The meter was several feet from its usual place. Took off the stop cock, and cat the gas off. The stopcock produced was the same, and was in the same condition as when he took it off. It ap peared to have been broken by a blow or a sudden jerk. The gas was fuU on before he took the stop-cock off, and was escaping. There was a lot of rubbish about like pitch or resin and paper when he took the stop-cock off. By Mr. Andrews—Tho key on the stop-cock is not a fixture. Believed one of the firemen was in the shop before him. The force of the water mig'it have knocked the meter away. By Mr. Thrupp—Did not think the force of the water could have broken the brass stop-cock. By His Honor—The stop-cock was only attached to the meter by a lead pip", and when that was gone there was nothing to connect them. Geo. Anderson, Engineer and Manager of the Gas Company, stated that the fracture in the plug of the stop-cock must have been oc casioned by a severe blow. There was some gas consumed on the plaintiff's place in October. There was a little catch on the plug, to prevent it going all the way round, which had been broken off. Detective Fitz patrick deposed that he went to the plaintiff's premises on the 29th November, a few diys after the inquest, and examined the premises' carefully. Traced the service pipe till it entered the footpath. No gas could have escaped from it Where the meter ought to be he noticed that there had been a lot of resin, or pitch mixed with paper, sticking to the boards. The pieces of board produced were some of what he had found. They were within a foot or fifteen inches of the meter. The fire was very superficial, and had not done much damage except to the surface. William Richards, enginedriver, stated that he was at the fire at the plaintiff's shop on the 26th November. Examined a a brass stop-cock (produced) which was handed to him by Coppard. It was in the same state as it was then. No one could have touched the stop cock before Coppard did. The gas was escaping. Joel Roberts, of Prospect Villige, agent, stated that he had formerly been an assistant with Mr. Dench for about 11 or 12 years, and had had opportunities of knowing the value of leather and grindery. On December 3he examined the damaged stock at Mr. Bean's and took an inven tory of it Mr. Linklater wrote it from his dic tation. There was some rubbish which he could not reckon, and he had no means of making an estimate of them. Took an inventory, so far as he could, of everything he saw. Afterwards went through the inventory and put a valuation on the goods. The document produced was the valuation. The total amount was £372125. 3d. The prices put on the articles was the whole sale price, supposing them to have been sound. The greater portion of the goods were not so much damaged by fire as by water. Mr. Egan was present a portion of the time, and gave him what information he required. By Mr. Way—Was cashier for Mr. Dench, and his principal duty was to look after the books. He did not profess to be a tradesman in the full sense of the term. (The witness was cross examined by Mr. Way to show that his know ledge of the trade was but limited, and he said he was not a practical tanner.) John Dench, tanner, of Hindmarsh, said he had gone through the list produced, and agreed with the valuation. Thomas Linklater, accountant of Brougha.ni place, deposed that he wrote the list produced from the dictation of Mr. Roberts, at the pre mises of the plaintiff. Saw the plaintiff at the premises, and he asked if it would not be better to send the policeman away, as it looked bad to see a policeman there. Replied that he had nothing to do with it, as the Company were not in charge. He was accountant to the In surance Company. His Honor thought that would not be evidence. Messrs. Boucaut aud Thrupp submitted that it was. Witness con tinued—Plaintiff appeared to know why he had come to the premises, and told him that Mr. Egan would act in his place, as he was busy. Mr. Roberts took down everything. The goods were scorched, but not wholly de stroved. Could count them. There was a very small amount of <fe&r£4?n the floor. It was mostly in the north-east corner. By Mr. Andrews— The articles were damaged by water. The boards were either burnt through or had been burnt and broken in the north-east corner. Did not notice whether there was.an opening into the cellar in the north-east corner. Richard E. Tapley, Secretary to the South Australian In surance Company, said Mr. A. J. Baker had nothing to do with their Company. The Com pany had never taken possession of the pre mises. When Mr. Bean first applied for the policy he attended at the premises and filled up the form from plaintiff's dictation. Asked plaintiff if all the stock was there, but he said no; he intended to increase it Af ter the fire he saw the plaintiff, and asked him if he had increased his stock, and he replied in the negative. By Mr. Way—Their Company paid a portion of Mr. Baker's salary as Superintendent of the Fire Brigade, but not as agent for the Company. W. G. Coombs, saddler, of Hindley street, said he was the Foreman of the Jury at the inquest on the fire at Mr. Bean's. The fire was a superficial one. Did not think any of the articles were so burnt as not to be recognised, exctpt those in the window. Heard Mr. Ingleby ask Johnston where Mr. Bean was when he returned from the stables, and Johnston said, locking the back door. By Mr. Andrews—Mr. Ingleby bad asked hint that afternoon in Court if|he remembered the circumstance about John ston. That closed the case for the defendants. G. T. Bean recalled, said that under the counter there was a vacant space where there was a heap of paper, and when he had the shop he used to keep resin on a shelf under the counter; but his brother kept it on a shelf in the shop, and it was possible some might have been under the counter. Did not think it was possible for any one to go into the shop after ihe fite and tell the va'ue of the stock which had been there before the fire, as it was so scattered about by the force of the water and mixed together. (The witness then stated the value of several of the articles in stock.) There was a hole in the floor under the window leading into the cellar, through which the shutters were passed; and there was also another hole under the win dow into the street It would be possible to reach the meter from the street. The witness Egan was recalled, and examined as to the debris in the shop after the fire. W. H. Haddy, bootmaker, Port Adelaide, said he was in the shop of the plaintiff a few days before the fire. The stock of leather in the shop was a very good one. Should think it was worth about £200 or £300, as there were some very expensive leathers amongst the stock. That closed the whole of the evidence. Mr. Boucaut then briefly addressed the Jury on behalf of the defendants, contending that what he had put to them in opening had been clearly made out by the evidence he had called. Mr. Way replied on behalf of the plaintiff, pointing out how improbable it was that the plain- tiff should have set the premises on fire, and con tended that he was clearly entitled to a verdict. His Honor then summed up, and the Jury, after an absence of 40 minutes, returned into Court and said they could not agree. One of the Jury stated that what they could not agree upon was as to whether the plaintiff set the place on fire or not. His Honor said they must ask themselves whether there was any evidence of his having caused the fire. The Foreman remarked that some of the Jury thought there was no chance of their agreeing. His Honor remarked that he thought the Jury had made up their minds not to agree. The Foreman (Mr. J. Chambers) said he thought that was ahout it. His Honor said he thought they had better retire for a few minutes longer. He did not want to put the parties to further ex- pense, and he wished not to discharge them without giving them a chance to agree. The Jury accordingly again retired for a short time, and on returning into Court said they had not agreed. After a short pause, His Honor said he thought he ought to discharge the Jury. When he was informed by respectable gentlemen that there was no chance of their agreeing he did not see that it would be of any use in locking them up till they did agree. Mr. Way asked that the cause should be set down for Tuesday next They had given notice of trial, and there had been no trial. Mr. Boucaut said the defendants claimed to have a Special Jury, and his learned friend might set it down and give them notice. His Honor said he did not think it would be necessary to give notice. The cause had been set down but not tried. The Jury were then dis- charged, and the cause set down for Tuesday next DISCHARGE OF THE JURY. In the early part of the day a Jury was called

for the case of Leake v. Sutherland, which was tho only remaining Jury cause on the list for Tuesday next, and the remaining Jurors were discharged by His Honor, who told themthat they would have an interview with the Snentt before they left _ _ , Court adjourned at &30 o'clock tiH Tuesday next, at 10 o'clock.

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