McDougall v. La Banque d'Hochelaga

EDGAR MILL McDOUGALL

AND

-Oct.9.

OTHERS (OPPOSANTS)

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PE.L.N.S. *Oct.

AND

LA BANQUE D'HOCHELAGA (CON-N

TESTANT) .

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R

APPEAL FROM THE SUPERIOR SITTING IN REVIEW, AT MONTREAL.

J.-This appeal, which was heard ex parte, after due notice being given to all parties interested, should be dismissed with costs.

In the first place, there is no legal proof of the insurance having been effected by the late Mr. Mc- Dougall, as the policies are not produced, which is the best evidence that could be adduced. The trial judge J so found and I quite agree with him. Even if such proof was in the record, can it be contended seriously that at any time the creditors'could claim the indemnity either from McDougall or the insurance company? The trial judge was of the opinion that they could not and I think he was right.

If McDougall was not the legal proprietor of the immovable in question, as all the courts ultimately decided, he was admittedly a creditor having an insurable interest, and that alone would be sufficient to prevent the creditors from recovering the amounts of the policies under article 1201 of the Civil Code. McDougall was so clearly the sole and legal holder of the policies, in his own exclusive interest, that immediately after the setting aside of the judicial sale by the courts in favour of the creditors, the latter could not claim the above policies or the indemnity they covered.

Such is also the well settled jurisprudence in France.

Sirey, Recueil, 1890, 2, 173, especially note

I am of the opinion that the appeal should be dismissed with costs.

CLEOPHAS

LAMOTHE

(DE.

THE NORTH AMERICAN LIFE

ASSURANCE COMPANY

APPEAL from the judgment of the Court of King's Bench, appeal side, affirming the judgment entered by Doherty J., in the Superior Court, District of Montreal, on the verdict of the jury, at the trial, maintaining the respondents' action for the cancellation of a policy of life insurance and dismissing the appellant's action to recover the amount of the policy.

The actions were consolidated for trial in the Superior Court and were tried together by His Lordship Mr. Justice Doherty with a jury.

The assignments of facts to be submitted to the jury were settled, before the trial, by His Lordship Mr. Justice Taschereau, upon suggestions made by both parties, in conformity with articles 424 and 425 of the Code of Civil Procedure, but were subsequently amended, during the trial, by order of the trial judge, the appellant taking objection to such amendment.

Upon answers by the jury to the questions submitted judgments were entered in favour of the company in both actions and these judgments were affirmed by the judgment now appealed from.

The present appellant appealed to the court below for a judgment in his favout, non obstante veredicto, or for a new trial, on grounds of misdirection by the trial judge,. verdict being against the weight of evidence and the admission of illegal evidence as well as the irregularity complained of in the amendment of the assignment of facts, and these grounds were again urged on the present appeal.

It was argued, on behalf of the appellant, that the trial judge had erred in his charge to the jury on questions as to the wagering character of the policy and as to certain representations made by the assured being materially incorrect and wilful misstatements.

The appellant asked for judgments in his favour in both cases or for a new trial.

'. Chase-Gasgrain K.U.,

THE (oral).-This appeal is dismissed with costs, and the application for a new trial is refused, on the ground that there was no misdirection by the judge which occasioned substantial prejudice to the appellant; and, in view of the whole evidence, the jury could, in our opinion, reasonably find the verdict complained of.

Appeal dismissed with costs.