The King v. Proud, [1926] SCR 599

Supreme Court of Canada

The King v. Proud, [1926] S.C.R. 599

Date: 1926-05-04

His Majesty The King (Respondent) .Appellant;

and

Elsie Proud (Suppliant) Respondent.

1926: March 8; 1926: May 4.

Present: Anglin C.J.C, and Idington, Duff, Mignault and Newcombe JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA

Husband and wife—Evidence of marriage—Insurance—Claim under Returned Soldiers’ Insurance Act, D., 1920, 10-11 Geo. V, c. 54.

Respondent, as widow of a deceased, claimed to recover from the Crown under a policy of insurance taken out by deceased under The Returned Soldiers’ Insurance Act, D. 1920, 10-11 Geo. V, c. 54. Against her claim it was urged that satisfactory evidence of marriage had not been produced.

Held, that as she had lived with deceased openly as his wife, was evidently regarded by deceased as his wife, had children by him acknowledged by him to be legitimate, and was accepted by people of repute as his wife, a prima facie case arose in her flavour; and the findings of the trial judge, who had accepted her statement of the fact of a marriage ceremony, should be affirmed, under all the circumstances, notwithstanding her failure to recollect details of such ceremony.

Judgment of the Exchequer Court ([1926] Ex. C.R. 1) aff.

APPEAL from the judgment of Maclean J., President of the Exchequer Court of Canada[1]. The suppliant (now respondent) in her petition of right claimed to recover from the Crown under a policy of insurance issued upon the life of P. E. Proud under the provisions of The Returned Soldiers’ Insurance Act, Statutes of Canada, 1920, c. 54, the beneficiary thereunder being named as “Elsie Proud, wife of the insured.”

The insured died in Edmonton, Alberta, in February, 1924. The respondent applied to the department of Government administering the Act, for payment of the amount payable under the policy, but this apparently was refused upon the ground that no certificate of marriage, or satisfactory evidence of marriage, had been produced.

O. M. Biggar K.C. for the appellant.

O. F. Howe for the respondent.

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The judgment of the majority of the court (Anglin C.J.C, and Duff, Mignault and Newcombe J.J.) was delivered by

Duff J.—The petitioner claims as the wife of the deceased Proud. The evidence of marriage might be more convincing, but the petitioner lived with Proud as his wife, openly, in Edmonton, had children by him acknowledged by him as legitimate, and was accepted by people of repute as his wife. Dr. Geggie’s evidence is conclusive upon this point, namely, that Proud considered himself the husbands—that is to say, the lawful husband—of the petitioner. When the doctor, on the day of his death, suggested a will, his answer was that his wife, with whom, admittedly, he was living on the most affectionate terms, would “get everything, anyway.”

At least a prima facie case in her favour arises on these facts. A serious point is presented by the absence on her part of all recollection of the details of the marriage ceremony. On the whole it would appear, however, when the state of her health is considered, that there is no real ground for disagreeing with the finding of the learned trial judge, who accepted her statement that somewhere in New York she went through a marriage ceremony with Proud.

Idington J.—This is an appeal from the judgment of the President of the Exchequer Court of Canada[2], in an action brought by the widow, formerly the wife, of a deceased soldier who, for her benefit, had taken a policy of insurance upon his life issued by the Dominion Government under the provisions of the Returned Soldiers’ Insurance Act, 10-11 Geo. V, c. 54, for one thousand dollars.

The learned trial judge, who tried the case in Edmonton where the late Mr. Proud and his wife lived at the time of his death, and for some year or two previous thereto, after the evidence for her was all heard and none adduced by appellant, on the application of defendant, now appellant, allowed the case to stand over for a couple of months, at the urgent request of appellant’s counsel, who pretended to doubt respondent’s story in the witness box, as to the validity of the marriage with her late husband, and possibly might ask for a commission to take evidence. No

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such commission ever was asked for and if the respondent’s story was false an investigation would certainly have enabled its falsity to have been demonstrated.

Such is the conclusion I have reached after reading the entire evidence.

She had been examined for discovery a week before the trial and I imagine at some length, for the appellant’s counsel insinuated time and again it would contradict her story at the trial.

Although in the printed case herein it was put down apparently as one of the exhibits that reference thereto is cancelled.

It never was put in or used and all references thereto would seem to have been bluff, and, I suspect, the whole of that was inspired by slandering on the part of her deceased husband’s relatives who expected to recover, if verified, said policy for themselves.

They evidently (if counsel before us for appellant right) dared not face the court.

The probability is that inquiry demonstrated no such case as pretended for defendant (now appellant) could be established or the commission would have issued.

I am, from a perusal of the evidence, quite clear that the judgment of the said judge was right and that this appeal should be dismissed with costs.

The story is a melancholy illustration of how often the poor returned soldier and his family have been improperly made to suffer.

Appeal dismissed with costs.

Solicitor for the appellant: W. Stuart Edwards.

Solicitors for the respondent: McDonald, Weaver & Steer.