Supreme Court of Canada
Western Assurance Co. v. Harrison (1903) 33 SCR 473
Date: 1903-06-02
The Western Assurance Company (Defendants)
Appellants
And
Annie E. Harrison and Cuthbert Harrison (Plaintiffs)
Respondents
1903: May 18; 1903: June 2.
Present:—Sir Elzéar Taschereau C.J. and Sedgewick, Girouard, Davies and Nesbitt JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.
Insurance against fire—Application—Untrue statement—Materiality—Statutory condition.
In an application for insurance against fire among the questions to the applicant were: "Have you * * ever had any property destroyed by fire?—Ans. Yes. Give date of fire and, if insured, name of company interested. Ans. 1892. National and London and Lancashire." The evidence showed that there was a fire on the applicant's property in 1882, and two fires in 1892, and the insurance by the policy granted on this application was on property which replaced that destroyed by the latter fires.
Held, reversing the judgment appealed from (35 N. S. Rep. 488) that the above questions were material to the risk and the answers untrue. The first statutory condition therefore precluded recovery on the policy.
Appeal from a decision of the Supreme Court of Nova Scotia affirming the judgment at the trial in favour of the plaintiffs.
On appeal to the Supreme Court of Nova Scotia from the judgment for plaintiff on the trial of the action on the policy of insurance against fire, the company raised questions of overvaluation of the property insured, untrue statements as to ownership and others, as well as that of the untrue answer to the question as to previous fires above set out. On this appeal counsel
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for the plaintiffs was only called upon to argue the latter.
McCarthy K.C. for the appellants,
Newcombe K.C. for the respondents.
The judgment of the court was delivered by:
NESBITT J.—The application in this case forwarded to the head office of the company, and forming the basis of the contract of insurance, contained the following:
Q. 12. Have you, or if a firm, has any member of it, ever had any property destroyed by fire?
A. Yes.
Q. 13. Give date of fire, and if insured name of company interested;
A. 1892. National, and London and Lancashire.
The evidence discloses that the insured had had, prior to the application for insurance, three fires while living on the same property, in which his property had been destroyed.
The answer is therefore untruthful, and we hold material, and under the first statutory condition precludes recovery in this action.
It is unnecessary to consider the other points raised on this appeal.
Appeal allowed with costs in all courts.
Appeal allowed with costs.
Solicitor for the appellants: A. E. Dunlop.
Solicitor for the respondents: H. H. Wickwire.
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