Somers and Somers v. Brow Estate and Co-Operative Fire and Casualty Co., (1976) 17 N.S.R.(2d) 121 (CA)

• Judge: MacKeigan, C.J.N.S., Coffin and Cooper, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 05, 1976
• Jurisdiction: Nova Scotia
• Citations: (1976), 17 N.S.R.(2d) 121 (CA)

Somers v. Brow Estate (1976), 17 N.S.R.(2d) 121 (CA);

    19 A.P.R. 121

MLB headnote and full text

Somers and Somers v. Brow's Estate and Co-operative Fire and Casualty Company, Third Party

Indexed As: Somers and Somers v. Brow Estate and Co-Operative Fire and Casualty Co.

Nova Scotia Supreme Court

Appeal Division

MacKeigan, C.J.N.S., Coffin and Cooper, JJ.A.

May 5, 1976.

Summary:

The case arose out of the plaintiffs' claim in negligence against the defendant estate of a deceased woman driver for damages arising out of a motor vehicle collision. The woman was the registered owner and usual driver of a motor vehicle. She was the mortgagor of a chattel mortgage on the vehicle, but the Trial Division found that her husband earned the money which the wife used to make the mortgage payments. The purchase price of the vehicle was paid partially by a trade of the husband's vehicle. The husband was the named insured in a motor vehicle liability policy on the vehicle. The plaintiffs brought an action against the wife's estate for damages. The insurer denied liability on the ground that the insured husband was not the true owner of the vehicle. The plaintiffs applied to Judgment Recovery (N.S.) Ltd. for payment of the claim. Judgment Recovery (N.S.) Ltd. made an application for an order that the insurer be required to respond to the plaintiffs' claim, because the motor vehicle liability policy was in effect with regard to the vehicle. The Trial Division allowed the application in a judgment reported 16 N.S.R.(2d) 188. The Trial Division held that the husband was the owner of the vehicle and that his wife was operating the vehicle with his consent. The Trial Division held that the insurer was required to respond to the plaintiffs' claim against the wife's estate. The insurer appealed. The Appeal Division dismissed the appeal.

Insurance - Topic 2285

Automobile insurance - Insurable interest - What constitutes an insurable interest in personal property - Payment of part of purchase price - The husband of a deceased woman paid part of the purchase price on a vehicle registered in the wife's name - The husband was the named insured in a motor vehicle liability insurance policy on the vehicle - After an accident the insurance company denied liability on the ground that the husband was not the owner - The Nova Scotia Court of Appeal held that the payment of part of the purchase price gave the husband an insurable interest in the vehicle and was a beneficial owner - Paragraphs 19 and 20.

Insurance - Topic 3801

Automobile insurance - General principles - Meaning of "owner" for purposes of an automobile insurance policy - Motor Vehicle Act, R.S.N.S. 1967, c. 191, s. 1(al) - A wife was the registered owner and driver of a motor vehicle which was involved in an accident with the plaintiff's vehicle - The husband was the named insured in a motor vehicle liability policy on the vehicle - The purchase price of the vehicle was paid partially by a trade of the husband's vehicle - Although the wife was a chattel mortgagor of the vehicle, the Supreme Court found that the husband was earning the money which the wife used to make the mortgage payments - The Nova Scotia Court of Appeal held that the husband was the owner of the vehicle for purposes of the policy and that the insurer was required to respond to the plaintiff's claim against the wife's estate.

Practice - Topic 8800

Appeals - Appeal from fact finding of trial judge on basis of credibility - The Nova Scotia Court of Appeal held that the appeal court must be convinced that the fact finding by the trial judge was wrong before it will interfere with the fact finding - Paragraphs 15-18.

Cases Noticed:

Rhodenizer v. Rhodenizer (1953), 31 M.P.R. 127, appld. [para. 16].

Powell v. Streatham Manor Nursing Home, [1935] A.C. 243, refd to. [para. 16].

McCann v. Behnke, [1940] 4 D.L.R. 272, appld. [para. 17].

Wolfe v. Oliver and Oliver and Co-operative Fire and Casualty Co. (1974), 8 N.S.R.(2d) 315, dist. [para. 19].

Statutes Noticed:

Insurance Act, R.S.N.S. 1967, c. 148, sect. 82(1) [para. 5].

Motor Vehicle Act, R.S.N.S. 1967, c. 191, sect. 1(a1), sect. 193A [para. 2].

Counsel:

Douglas A. Caldwell, for Appellant;

John M. Davison, for Respondent.

This case was heard on April 1, 1976, at Halifax, Nova Scotia, before, MACKEIGAN, C.J.N.S., COFFIN and COOPER, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On May 5, 1976, COOPER, J.A., delivered the following judgment of the Appeal Division: