Moore v. State Farm Fire & Casualty Co., (1982) 42 N.B.R.(2d) 667 (CA)

• Judge: Hughes, C.J.N.B., Ryan and Stratton, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 27, 1982
• Jurisdiction: New Brunswick
• Citations: (1982), 42 N.B.R.(2d) 667 (CA)

Moore v. State Farm (1982), 42 N.B.R.(2d) 667 (CA);

    42 R.N.-B.(2e) 667; 110 A.P.R. 667

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Moore v. State Farm Fire & Casualty Company

(38/82/CA)

Indexed As: Moore v. State Farm Fire & Casualty Co.

Répertorié: Moore v. State Farm Fire & Casualty Co.

New Brunswick Court of Appeal

Hughes, C.J.N.B., Ryan and Stratton, JJ.A.

October 27, 1982.

Summary:

Résumé:

A man and his company brought an action against the company's insurer for the proceeds under a fire insurance policy on a house. It was understood by the insurer at the time of the insurance application that the man would own the personal property in the house and would be covered by the company's policy.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment unreported in this series of reports allowed the action for the value of the house, but dismissed the man's action for the value of the personal property lost after refusing to permit an amendment of the statement of claim to plead the oral understanding that the man's personal property would be covered. The man appealed.

The New Brunswick Court of Appeal allowed the appeal and held that the amendment should have been permitted and that the personal property claim was proved.

Practice - Topic 2101

Pleadings - Amendment of pleadings - General principles - The New Brunswick Court of Appeal stated that an amendment of pleadings should be allowed, however negligent or careless may have been the first omission and however late the proposed amendment, if it can be done without injustice to the other side and that there is no injustice to the other side, if it can be compensated by costs - The court noted that, while the trial judge's power to allow amendments is discretionary, the discretion is reviewable on appeal - See paragraph 10.

Practice - Topic 2120

Pleadings - Amendment of - Statement of claim - General - When a company applied for insurance on a house, the insurer understood that personal property in the house belonged to the company's owner and would be covered under the company's policy - When the company and the owner sued the insurer for the policy proceeds, the trial judge refused an amendment to the statement of claim to plead the oral understanding about personal property ownership and coverage - The New Brunswick Court of Appeal held that the amendment should have been permitted, because the insurer was not surprised or otherwise prejudiced by it.

Cases Noticed:

Stewart v. North Metropolitan Tramways Co. (1886), 16 Q.B.D. 556, appld. [para. 10].

Frobisher Ltd. v. Canadian Pipelines & Petroleums Ltd. et al. (1957), 10 D.L.R.(2d) 338, appld. [para. 10].

Marleau v. Peoples Gas Supply Company Limited (1940), 40 S.C.R. 708, appld. [para. 10].

MacDonald v. Mitchell and Barry (1969), 2 N.B.R.(2d) 165, appld. [para. 10].

Statutes Noticed:

Rules of Court (N.B.), O. 28, rule 1, rule 6, rule 12 [para. 10].

Counsel:

John S. MacPhee, for the appellant;

Hazen F. Calabrese, for the respondent.

This case was heard on April 27, 1982, at Fredericton, N.B., before HUGHES, C.J.N.B., RYAN and STRATTON, JJ.A., of the New Brunswick Court of Appeal.

On October 27, 1982, STRATTON, J.A., delivered the following judgment in English for the Court of Appeal. A French language translation of the judgment is set out following it.