Bowering v. Mutual Life Assurance Co. of Canada, (1975) 7 Nfld. & P.E.I.R. 117 (NFCA)

• Judge: Noel, Mifflin and Higgins, JJ.
• Court: Court of Appeal (Newfoundland)
• Case Date: October 10, 1974
• Jurisdiction: Newfoundland and Labrador
• Citations: (1975), 7 Nfld. & P.E.I.R. 117 (NFCA)

Bowering v. Mutual Life (1975), 7 Nfld. & P.E.I.R. 117 (NFCA);

    3 A.P.R. 117

MLB headnote and full text

Bowering v. Mutual Life Assurance Company of Canada

Indexed As: Bowering v. Mutual Life Assurance Co. of Canada

Newfoundland Court of Appeal

Noel, Mifflin and Higgins, JJ.

March 13, 1975.

Summary:

This case arose out of a claim by the wife of a deceased to the insurance proceeds payable pursuant to an accidental death provision in a life insurance policy. The deceased died while on a hunting trip due to exposure to wet and cold weather. The deceased and a companion walked into the barrens but due to cold and rainy weather they were forced to return. On the return walk the deceased was so tired he could not continue. The deceased's companion went for help and when help arrived the next morning the deceased was dead. The insurer refused to pay the plaintiff's claim. The plaintiff's claim was dismissed at trial - See 5 Nfld. & P.E.I.R. 389.

On appeal to the Newfoundland Court of Appeal, the appeal was allowed and the judgment of the trial court was set aside. The court stated that the insured died from accidental bodily injury. The Court of Appeal stated that the insured's death was involuntary and unexpected - See paragraph 9. The Court of Appeal stated that the insured did not plan or design his death and there was no deliberate or conscious courting of the risk - See paragraph 30.

Insurance - Topic 1856

The insurance contract - Rules of interpretation - Accidental death coverage - The Newfoundland Court of Appeal stated that exclusionary language respecting the risk in an accident policy should be construed "strongly against the company" - See paragraph 27.

Insurance - Topic 3565

Accident and sickness insurance - Interpretation of contract - Accident defined - The insured died while on a hunting trip due to exposure to wet and cold weather - The Newfoundland Court of Appeal held the insurer liable to pay the insured the insurance proceeds of $10,000.00 pursuant to the accidental death provisions in the policy - The Court of Appeal stated that the insured died from accidental bodily injury.

Words and Phrases

Accident - The Newfoundland Court of Appeal discussed the meaning of the word "accident" as found in an accident insurance policy.

Cases Noticed:

North West Commercial Travellers v. London Guarantee & Accident Co. (1895), 10 Mon. L.R. 537, folld. [paras. 8 and 26].

London Life Insurance Company v. Moore, [1929] S.C.R. 117, folld. [para. 9].

Sklar v. Saskatchewan Government Insurance Office, [1965] Ins. L.R. 700, folld. [para. 27].

Trew v. The Railway Passengers' Assurance Company (1861), 6 H. & N. 839, folld. [para. 30].

Statutes Noticed:

Judicature Act, R.S.N. 1970, c. 187, sect. 7(2) [para. 2].

Counsel:

David Riche, for the plaintiff-appellant;

R. Wells, Q.C., for the defendant-respondent.

This case was heard by the Newfoundland Court of Appeal on May 13, 1974. Judgment was delivered on March 13, 1975 and the following opinions were filed:

NOEL, J., - see paragraphs 4 to 12,

MIFFLIN, J., - see paragraphs 13 to 31.

HIGGINS, J., died on October 10, 1974 before judgment was delivered.