COUR SUPRtME DU CANADA
Having reached this conclusion it becomes unnecessary to give further consideration to the preliminary objection. et al.
In the result I would dismiss both appeals with costs but, FLOUE-TRED in view of the appeals having been argued together, would direct, as did the Court of Appeal, that only one counsel fee be allowed to cover the two appeals.
Solicitors for the appellants: Weingust & Halman, FLUE-CURED Toronto.
GRWR',
Solicitors for the respondent: Fleming, Harris, Kerwin, BoAR
Barr & Hildebrand, St. Catharines.
Cartwright J.
IRENE VIOLET SMITH (Plaintiff) ...... APPELLANT; *Nov. 9,10
AND
BRITISH PACIFIC LIFE INSUR- Apr. 6
RESPONDENT. - ANCE COMPANY (Defendant) .
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN Insurance-Accident insurance-Insured suffering fatal heart attack while rocking car caught in snowdrift-Whether loss caused by accident as required by policy.
The widow of the deceased brought action to recover under a policy of insurance. The defendant took the position that the deceased did not die from bodily injury caused by accident within the meaning of the terms of the policy as originally issued or as subsequently extended by a rider. The deceased had suffered a heart attack in the spring of 1961 and after a period of hospitalization and recuperation had returned to work with instructions to restrict his activities. On September 29, 1961, accompanied by a friend, he went on a hunting trip in his automobile. Blowing snow and ice were encountered and the car became stuck in a snowdrift. The friend shovelled and pushed while the deceased attempted to help by rocking the car, i.e., by shifting alternately from forward to reverse gear. While thus engaged, the deceased suffered a coronary thrombosis and occlusion causing his death. The trial judgment in favour of the deceased's widow was reversed by the Court of Appeal and an appeal was then brought to this Court.
Held: The appeal should be dismissed.
The exertion of driving and handling the steering wheel of the automobile and, at the last, of rocking the automobile by alternately shifting from forward to reverse gear was not an accident but deliberate and, there- Taschereau CJ. and Cartwright, Abbott, Martland and Hall JJ.
R.C.S.