The London & Lancashire Guarantee & Accident Co. of Canada v. Canadian Marconi Company

RITCHIE J.:-This is an appeal from a judgment of the Court of Queen's Bench of the Province of Quebec (Tremblay C.J. and Choquette J. dissenting) dismissing an appeal from a judgment of Demers J. of the Superior Court for the District of Montreal which had maintained the respondent's action against the appellant for $25,000 in respect of the accidental death of Mr. Ronald J. Williams, one of the respondent's senior employees, who was an "Insured Person" under the provisions of a Travel Accident Insurance Policy issued by the appellant to the respondent as the "Insured". The policy in question provided, inter alia, that:

The Company hereby agrees to make to the Insured, payments as detailed hereunder when any Insured Person sustains bodily injuries (hereinafter referred to as "such injuries") caused solely by accidental means and resulting directly and independently of all other causes from the said accidental means ....

Unless endorsed hereon by the Company to the contrary, this Policy does not cover death, injury or disablement:

(3) Directly or indirectly caused or contributed to by intentional selfinjury, by disease or natural causes, by suicide or attempted suicide (whether felonious or not), by provoked assault, by dueling or by fighting (except in bona fide self-defense).

1[1962] Que. Q.B. 396.

S.C.R.

o

Mr. Williams was killed as the result of an accident which occurred at 6:35 p.m. on July 22, 1956, while he was driving alone to the Dorval Airport, and when, after swerving back and forth across the highway a number of times, his car left the right-hand side of C6te de Liesse Road and collided with a large tree.

In view of the nature of the accident and the evidence that the deceased had had two 11-oz. drinks of whisky about an hour previously and that a blood test made three days after the death purported to disclose a finding of 2.3 parts per 1000 by weight of alcohol in the deceased's blood, the appellant company denied liability on the ground that the accident occurred whilst Mr. Williams was "in a state of ... intoxication" within the meaning of exclusion 5 of the policy.

In the course of his reasons for judgment in the Court of Queen's Bench, Owen J. observed that the accident was consistent with explanations other than intoxication, saying, inter alia, that "Williams might have felt faint or ill . . . .", and it is in relation to this observation that the appellant invokes exclusion 3 on the ground that such an explanation would mean that the death was caused "by disease or natural causes" and that it was, therefore, an event for which no indemnity was provided by the policy.

In light of all the evidence, I do not think that the circumstances of this accident are sufficient to discharge the burden assumed by the appellant of proving by a preponderance of evidence that Mr. Williams was in a state of intoxication or that his death was caused or contributed to by disease or natural causes, nor do I think that there was any evidence as to his behaviour on the day of his death which would make such a conclusion any more probable. The remarkable feature of this case, however, is that although Mr. Williams was said to be "perfectly normal" an hour before death after having had two drinks of whisky, the blood test made three days later is consistent with his having consumed the equivalent of approximately 16 ounces of whisky during the day of his death. If no evidence had been tendered to explain this anomalous result, it would unquestionably have supported the theory that the deceased, in some unexplained manner, had consumed enough additional alcohol between 5:25 and 6:35 p.m. to induce a state of intoxication in the average man. The evidence of Dr. Rabinovitch which appears to have been accepted by the learned trial judge and the majority of the judges of the

Court of Queen's Bench was, however, to the effect that in the particular circumstances of this case the appearance of the presence of indicia of high alcoholic content in the blood disclosed by the test was probably due to natural processes operating after death and that the result of that test was not to be relied upon as indicating the amount of alcohol consumed by Williams.

The conclusion reached by both of the Courts below is, in my view, succinctly stated by Mr. Justice Owen in the last paragraph of his reasons for judgment where he says:

The question of whether Mr. Williams was intoxicated or not is a question of fact, and as the learned trial judge and the majority of the Court of Queen's Bench are in agreement with respect to that question, I cannot express my opinion in more apt words than those employed by Taschereau J. in American Automobile Insurance Company v.

Dickson', where he said:

I would dismiss this appeal with costs.

Appeal dismissed with costs.

Grandprg, de Grandprg, Bergeron & Monet, Montreal.

Howard, Cate, Ogilvy, Bishop & Cope, Montreal.