Judgment of the Court
J.-The question is whether a policy of life insurance, upon which the plaintiff (respondent) claims for permanent disability, is to be considered as having taken effect or attached at the time of the injury which the insured received and for which he claims.
The plaintiff, who is a young man, at the suggestion of his father, who is a physician, signed an application for the insurance in the usual printed form of the defendant company, dated 13th June, 1924.
The application was submitted to Mr. Braniff, the company's agent at Pincher
Creek. At the same time the plaintiff's father gave his promissory note, dated 13th June, payable six months after date to the order of Mr. Braniff for $65.58, the amount of the semi-annual premium. The plaintiff underwent his medical examination on 17th June; Mr. Braniff sent the application papers to the Calgary office on 19th June, whence they were forwarded to the head office of the company in New York, where the risk was accepted and the policy executed, dated 26th June, and dispatched on the following day to the Calgary agent, who received it in due course and sent it to the agent at Pincher Creek for delivery. In the meantime, on 30th June, Mr. Braniff had endorsed Dr. Dubuc's note without recourse, discounted it at the Union Bank of Canada at Pincher Creek, and received the proceeds. Subsequently, at maturity, the note was paid by the maker. The plaintiff, on 4th July, met with an accident in which he sustained serious injury to his spine, on account of which he was laid up for a long time, and was still incapacitated at the time of the trial. The policy was delivered by Mr. Braniff to Dr. Dubuc about the middle of July.
By the application it is specified that the policy is " to take effect as of date policy is written," and by one of the subsequent printed paragraphs of the application form
S.C.R.
When the insured met with the accident, he was travelling with his father in the state of Idaho. The automobile in which they were left the road and went down an embankment. The plaintiff emerged from the wreck badly injured and became unconscious. His father treated him on the spot, had him conveyed to Bonner's Ferry, where he went into hospital in charge of a doctor, whence he was removed on the following day to Calgary, where he was again placed in hospital in charge of Dr. McEachern.
The whole defence arises upon the clause in the application which I have quoted, and the principal point is that inasmuch as the applicant had consulted or been treated by a physician during the time intervening between his medical examination and the delivery of the policy, the insurance did not take effect.
The policy itself contains the following clause:
I shall have something more to say about the delivery of the policy, but I think it must be taken to have been duly completed when Dr. Dubuc actually received the policy; moreover I think that the premium must be regarded as paid when, on 30th June, the company's agent received from the bank, without recourse, the proceeds of the note which was given in payment of the premium. Therefore, assuming delivery and receipt of the policy, and, payment of the premium, the sole question for consideration is as to the interpretation and effect of the remaining stipulation Now it will be perceived that it is necessary, in order that these words should be given an intelligible meaning, to interpret them reasonably and with the necessary implications. The word " then," in the context in which it stands, is to be understood as equivalent to " in that case " or, describing the case, it would not do to interpret the word as an adverb of time, because not only is that not its natural significance in this place, but moreover because the obvious reason of the clause is that failure of the applicant's health, so far as to cause him to consult a physician or to receive medical treatment, would naturally affect the basis of the application, and require reconsideration of the risk, which, unless re-accepted, would not attach at any time. Therefore, adopting the only meaning which I think permissible, the clause, in its application to a state of fact in which the applicant had consulted or been treated by a physician after his medical examination, would read as follows:
When this clause is considered in relation to the provision that the policy shall take effect as of its date, it acquires a definite and reasonable meaning.
The clause qualifies or creates an exception from the special stipulation that the policy is to take effect as of its date, and the words have relation only to a time antecedent to that date; the insurance applied for, which, if it ever become effective, is to take effect as of the date of the policy, is not to take effect if the applicant has consulted or been treated by any physician since his medical examination.
This protects the company against such an impairment of health between the date of the medical examination and the date of the policy as was considered apt materially to 'affect the condition of the applicant as represented by the application and the medical certificate, and the word " since " cannot consistently with the structure and intent of the application and the policy, when read together, have reference to any time subsequent to the date stipulated by the contract for the coming into force of the policy. Previously to this date the applicant had not consulted or been treated .by any physician since his medical examination, and therefore the policy attached as of the date particularly mentioned both in the application and in the policy. Moreover any other reading of the clause would involve the extraordinary situation whereby the applicant for a policy to take effect as of its date, whose application had been accepted, whose policy, to take effect of its date, had been written and executed by the company, and whose premium, reckoned from the policy date, had been paid and accepted by the company, would remain subject to all the vicissitudes of yRK. delay, accident in transmission, negligence in delivery, and other fortuitous occurrences, which might render ineffectual or postpone the very risk which it was the object of the transaction to insure.
NewcombeJ.
Then it is said that the policy was not delivered, and this rests upon the view that Mr. Braniff, the agent who actually handed out the policy to Dr. Dubuc about the middle of July, and who in ordinary course was the agent of the company through whom delivery should be made, had no authority to deliver the policy because of the instructions which accompanied it. This point arises because the plaintiff's counsel, upon examination for discovery of Mr. Blackey, the defendant's Calgary manager, called for production of the letter which accompanied the policy when it was sent to Mr. Braniff for delivery, and defendant's counsel informed him in reply that the defendant did not have the letter, but he produced a printed form which the plaintiff's counsel then put in as a part of the discovery with an admission that the letter which accompanied the policy, when it was sent from the Calgary office to the local agent at Pincher Creek, was in that form. In this form of letter the jagent is told and, by a printed notice in the margin, it is said that a policy must not be delivered
And by a subsequent paragraph in the margin it is said: Now the company could not, consistently with its obligations, impose conditions upon the delivery of the policy which were not provided for by the contract. I doubt that it was the intention of the company to instruct the agent to withhold delivery, except as authorized by the contract;