doing at the time of the accident. Judgment was given for plaintiff, which was affirmed by the Appeal Division (N.B.).
Held (1) On the evidence, it could not be said that the jury erred in failing to find what M. was doing, or whether or not he was on a box car, at the time of the accident; and that, on the jury's findings, judg- &A Co. ment for plaintiff was the only possible outcome of the action.
(2) Even had M. been trying to engineer the movement of a box car at MAH6NEY. the time of the accident, that fact alone would not warrant judgment for defendant. The doing of that single isolated act, ordinarily forming part of the duties of a more hazardous occupation, would not amount to "engaging in" such occupation "either temporarily, casually or permanently."
(3) If a specific exception to the risk undertaken in an insurance policy be described in the policy itself, as well as in the application therefor
(although the latter be incorporated in the former), the insured is ordinarily justified in insisting that, as between him and the insurer, the words of the policy shall, if they differ from those of the application, be taken as evidencing, in that particular, the contract by which both are bound. And where the terms employed in the policy are reasonably susceptible of a construction which does not include in the exception, stipulated by the insurer in its own interest, the doing of an isolated act of extra hazard, that construction must prevail.
Ontario Co., [1928] S.C.R. 264, at p. 273, cited.
APPEAL by the defendant from the judgment of the
Supreme Court of New Brunswick, Appeal Division, affirming the judgment of Byrne J. (on the findings of a jury) for the plaintiff at trial.
The defendant issued a policy of accident insurance to one Frederick B. Mahoney. The plaintiff, his sister, was named in the policy as beneficiary in case of his death by accident under the provisions of the policy. The application for the policy (set out in the policy under the heading
" Schedule of Warranties ") contained, inter alia, the following statements, warranted to be true, by the insured:
7. My occupation and specific duties are fully described as President and General Manager of Lumber Company, office duty only and travelling.
8. I understand the classification of risks and agree to have my occupation classed as Select, and I further agree that for any injury received by me while engaged in any occupation or exposure to danger classed by the Company as more hazardous than that above stated, I shall be entitled to recover only such amount as the premium paid by me would purchase at the rates fixed for such increased hazard.
The policy contained the following provision:
(2) If the injury is sustained by (or sickness happens to) the Insured while engaged either temporarily, casually or permanently in an occupation classed as more hazardous than that stated herein (other than as provided for injury in Section G [not material in this case]), liability here- S.C.R.1
Cases cited
- Rural Municipality of Victory v. Saskatchewan Guarantee & Fidelity Co., Ltd. scr-1928-264 p 273