1os4
FIDELITY-PHENIX
FIRE INSUR-)
*Oct.
,24.
ANCE COMPANY OF NEW YORK
APPELLANT; *Nov.
(DEFENDANT)
.....................
AND
D. McPHERSON AND ANOTHER (PLAIN-'
TIFFS) .
..........................
R
ON APPEAL FROM THE APPELLATE DIVISION THE SUPREME IDINGTON J.-This appeal arises out of an action brought by the respondents against the appellant upon a policy of insurance in favour of the respondents as owners of certain railway ties.
There were attached to the said policy the following clauses amongst others:- Assured: Messrs. McPherson and Quigley.
Seven thousand five hundred dollars on ties, the property of assured or sold but not delivered or for which they may be responsible in case of loss or damage by fire, only while piled in their cleared yard on the west bank of the McLeod river, on timber berth No. 1330 being 81 miles miles south of Hargwen station, Canadian National Railway (connected by assured's own railway) in the province of Alberta.
Warranted by the assured that the property insured is not within 1,000 feet of any scrub or bush nor within fifty feet of any railway track or siding.
The appellant set this up as a defence.
The learned trial judge and the Appellate Division for Alberta unanimously held that this warranty clause was a variation of or addition to the statutory conditions provided by the Alberta Insurance Act, R.S.A., c. 171, and by reason of its not being printed in red ink and otherwise in conformity with the relevant requirements of said statute as set forth in section 70 of said Act, it was, by section 71. null and void and hence no defence.
Said sections 70 and 71 are as follows:- 70. If the insurer desires to vary the statutory conditions or to omit any of them, or to add any new condition, there shall be added immediately after such conditions words to the following effect, which with any such variation, addition or reference to omissions, shall be printed in conspicuous type and in red ink:
"Variations in conditions"
"This policy is issued on the above statutory conditions, with the following variations, omissions and additions, which are, by virtue of The (1) [19211 1 A.C. 303.
S.C.R.
S.C.R. In so holding the said courts adopted our ruling in the case of Mackay v. The British America Assurance Company (1), and I am of the decided opinion that they were right in so doing.
There is no reasonable ground for distinguishing the two cases.
There can be distinctions attempted, and often are, between any two decisions or cases, which look clever to those adopting them, but I submit the facts in this case render it a stronger case for the application of said statute than did those in the Mackay Case (1).
There as here there was no written application by the assured. There was not in that case any such excuse for confusion of thought on the part of the assured such as likely to arise on the facts, as they existed in this case.
The insurer herein got the benefit of that, by the court holding that the broker was the agent of the insured and not the insurer.
I pass no legal opinion upon that aspect of this case for it is not necessary herein to do so, taking the view I do as to the applicability of the said section.
But the circumstances shew how necessary it is to bring home to the mind of the insured exactly what he is getting. The distinction sought in argument to be made between this case and said Mackay Case (1) arising out of the fact that in this case there had been no examination by the insurer, whilst in that of the latter there had been, does not appeal to me.
If it were rendered an imperative duty by law for insurers to inspect before insuring whenever possible and practicable, there would be vastly fewer losses by fire. I need not elaborate that, for inspection or no inspection does not, to my mind, make any difference in law. All I mean to say is that the insurer inspecting is better entitled to due consideration if open to him in law, than is he who indulges
Statutes and regulations cited
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Unresolved citations
- section 70 of said Act
- section 71
- sections 70
- 71