Judgment of the Court
- ABBOTT J.:-This appeal involves the interpretation of a contract of accident and sickness insurance issued by appellant in favour of respondent.
Taschereau, Rand, Kellock, Fauteux and Abbott JJ. (1) Q.R. [19541 Q.B. 607.
The facts are not disputed and it is common ground that if the respondent was confined to his house, within the CoNmeaning of Clause A of Part 4 of the policy contract, the appeal should fail and that, if he were not so confined, the appeal should be maintained and the respondent's action dismissed.
Abbott J. The relevant clauses of the policy read as follows:- PARTIE 4. PERTE DE TEMPS PAR MALADIE
A. INCAPACITE TOTALE LA VIE DURANT AVEC SEJOUR FORCE A LA MAISON. Lorsqu'une maladie rend l'assur6 absolument, nicessairement et continuement incapable et 1'empiche de vaquer & toute occupation ou emploi, et $100 durant lequel temps l'assur6 est sous les soins et r~gulibrement (Par Mois) visit6 par un m~decin, chirurgien ou ostiopathe qualifi6, autre que lui-m~me, 'assureur paiera l'indemnit6 mensuelle contre les maladies pour la p6riode que l'assur6 sera ainsi incapable, et durant laquelle il sera aussi en raison de la dite maladie ndcessairement, strictemcnt et continuement retenu dans la masson.
B. INCAPACITE TOTALE SANS SEJOUR FORCE A LA MAISON. Lorsqu'une maladie rend l'assur6 absolument, n~cessairement et continueiinent incapable et 1'empiche de $100 vaquer h toute occupation ou emploi, et durant lequel temps (Par Mois) l'assur6 regoit les soins et services d'un m6decin, chirurgien ou ostiopathe qualifi6, autre que lui-m~me, l'assureur paiera I'indemnit6 mensuelle contre les maladies pour la p6riode que l'assur6 sera ainsi incapable, telle piriode ne d6passant pas un mois, quoique non re-tenu dans la maison.
The italics are mine.
It is conceded that during the period for which indemnity of $100 per month is claimed, the respondent, as a result of a throat affliction was totally incapacitated within the meaning of the policy. He was confined to his house most of the time but it is also common ground that during the period in question he made numerous visits to Montreal to see his doctor and on the occasion of each of these visits also went to the offices of the Insurance Company appellant. In addition to these trips to Montreal, respondent went out of his house each day for a short walk, was able to drive his car, although there is no evidence that he did in fact do so, regularly visited a store nearby, and on at least one occasion called at the office of his lawyer. On these facts the learned S.C.R.
trial judge and a majority of Court of Queen's Bench -held that respondent during the period in question was nicessairement, strictement et continuement retenu dans la maison" as provided in Clause A of Part 4 of the contract. Had the respondent left his house for the sole purpose of receiving medical treatment which might only be obtainable elsewhere, it is perhaps not unreasonable that a condition such as that contained in the clause in question should be broadly interpreted so as to permit such visits. A provision substantially identical to the one in issue in this appeal was so interpreted by Campbell J. in Mitchell v. Occidental Life (2), but it is significant that the learned judge, p. 343, described visits of this kind as "exceptional and temporary absences from the house, especially when ordered or recommended by the attending physician."
A similar question arose in the case of Guay v. Provident Accident and Guarantee Co. (3), decided by the Court of Review. In that case the insured was totally incapacitated and for a week was confined to the house except for visits to his doctor's office. During a subsequent six weeks' period he took exercise in the open air and visited the office of another doctor for a minor operation not related to his incapacity. The policy called for payment of $25 per week while the insured was necessarily confined to the house and of $12.50 per week while he continued to be incapacitated although not necessarily to the extent of confining him to the house. He was held entitled to recover the full rate of $25 for the week during which he was confined to the house except for visits to his doctor and $12.50 per week for the subsequent six weeks' period.
I find it unnecessary to determine in this case whether visits by respondent to his doctor for the sole purpose of obtaining medical treatment could be brought within the terms of Clause A of Part 4 since it is clear on the evidence that respondent was permitted a very considerable freedom of movement by his physician and did in fact leave his home daily.
The words "necessairement, strictement et continuement retenu dans la maison" in the clause in question must be given the natural, ordinary meaning which they bear in relation to the context in which they stand and I am unable