Home Insurance Company of New York and United States Fidelity and
Guaranty Company (Dependants) Apellants;
and
Lena Lindal and John Beattie (Plaintiffs) Respondents
1933: October 4, 5; 1933: December 22.
Present:—Duff C.J. and Rinfret, Lamont, Smith and Crocket JJ.
ON APPEALS FROM THE APPELLATE DIVISION OF THE SUPREME COURT
OF ALBERTA
Insurance—Automobile—Statutory condition No. 5—Exception of
liability when driver intoxicated—Applicability to insured—Action by injured
person, a passenger against insurer under section 180 of Alberta Insurance
Act—Whether public policy prevents injured person recovering when insured
driver was intoxicated—Contract—Illegality—Public policy—Contract of indemnity
against criminal act—Effect of estoppel of insurer—Alberta Insurance Act, 1926,
c. 31, ss. 179, 180, 254—Criminal Code, s. 285(4)—Alberta Vehicles and Highway
Traffic Act, 1924, c. 31, s. 59.
[Page 33]
The respondent Lindal, who was injured in an accident while
being driven by the respondent Beattie in his motor car, sued him for damages.
The respondent Beattie was insured under a "combination policy"
issued by the two appellant companies, under which he was insured by one company
with respect to legal liability for bodily injuries or death and by the other
with respect to damage to his car. The respondent Beattie had given notice of
the accident to the appellant companies, which made a full investigation and,
after unsuccessful efforts to reach a settlement with the respondent Lindal,
undertook the defence of the action against the respondent Beattie, which
action was maintained for $1,636.05 and $353.40 costs. After a return of nulla
bona, the respondent Lindal brought an action against the appellant
companies under section 180 of The Alberta Insurance Act, 1926,
c. 31. The respondent Beattie also brought action against the appellant
companies, claiming to be indemnified from the Lindal judgment and also for the
damage suffered to his automobile. In both actions the appellant companies
alleged that the respondent Beattie was intoxicated and contended therefore
that, under statutory condition No. 5 of the Alberta Insurance Act, they
were relieved from liability. The trial judge, Ives J., before whom both
actions were tried together, found that the respondent Beattie was intoxicated
and he dismissed both actions; but that judgment was reversed by a majority of
the Appellate Division.
Held, Crocket J. dissenting, that this appeal should be
allowed and the respondents' actions dismissed.
Statutory condition 5 of schedule d. of the Alberta
Insurance Act, 1926, c. 31, provides that the insurer under an automobile
insurance policy shall not be liable under the policy "while the automobile
* * * is being driven by * * * an intoxicated person."
[Page 34]
Held, that this condition, as to intoxication, does not
apply to the insured himself.
Held, also that the fact, that respondent Beattie's act
occurred while he was "manifestly" intoxicated when driving his
automobile at the time of the accident, as found by the trial judge,
constituted a violation of section 285 (4) of the Criminal Code sufficient to
prevent him from recovering, on ground of public policy. Crocket J. dissenting.
Held also, Crocket J. dissenting, that section 179 of
the Insurance Act of Alberta has no application to contracts for
indemnity in respect of losses occasioned by violating some provisions of a
Dominion statute, (in this case, respondent Beattie violated section 285 (4) of
the Criminal Code providing penalties for driving an automobile when
intoxicated). The Alberta legislation does not directly validate a contract of
indemnity which would otherwise be invalid because the insurer has proposed to
insure against an act or the consequences of an act that would be a criminal
offence under the Criminal Code, or under the criminal law of the Dominion
prevailing throughout Canada as distinguished from the penal laws of the
province.
Held, also, that the appellant companies, by
undertaking the defence of the action brought by the respondent Lindal against
the respondent Beattie were not estopped from denying liability on the policies
although they had full knowledge of the circumstances surrounding the accident.
The real foundation of the appellants' defence was not, that the policy was not
in full force and effect, but that they never contemplated indemnifying the
respondent Beattie for liability arising through his own criminal act. Crocket
J. expressing no opinion.
APPEAL from the decision of the Appellate Division of the
Supreme Court of Alberta,
affirming the judgment of the trial judge, Ives J., and maintaining the
respondent's actions with costs.
The material facts of the cases and the questions at issue are
stated in the above head-note and in the judgments now reported.
Thomas N. Phelan K.C. for the appellants.
N. D. Maclean K.C. for the respondent Lindal.
S. Bruce Smith for the respondent Beattie.
The judgment of the majority of the Court, Duff C.J. and Rinfret,
Lamont and Smith JJ. was delivered by
LAMONT J.—About 3 a.m. on the 10th day of March, 1932, in
the city of Edmonton, the respondent, Lena Lindal, was a passenger in an
automobile owned and driven by the respondent, John Beattie, when the
automobile came into collision with a street railway standard. As a result
[Page 35]
of the collision Miss Lindal was very
seriously injured and the car badly damaged. Miss Lindal brought an action for
damages against Beattie for the injuries she had suffered, alleging that her
injuries were caused by his negligence. She recovered a judgment against him
for $1,636.05, and costs which were taxed at $353.40. Execution was issued
against Beattie but it was returned by the sheriff unsatisfied.
At the time the accident took place Beattie carried automobile
insurance in the form of a combination policy with the Home Insurance Company,
New York, and the United States Fidelity & Guaranty Company, Baltimore. By
this policy the latter company agreed to indemnify him against all loss or damage
which he should become legally liable to pay for bodily injuries caused to any
person by the ownership, maintenance or use of the automobile, up to the amount
mentioned in the policy. The Home Insurance Company agreed to indemnify him
against collision damage to his automobile.
When her execution was returned by the sheriff unsatisfied, Miss
Lindal commenced an action, under section 180 of the Alberta Insurance Act, against
the United States Fidelity & Guaranty Company, to recover the sum of
$2,005.20, the amount of her judgment, interest and costs. At the same time
Beattie brought an action against both insurance companies in which he claimed
from the Home Insurance Company the sum of $525 for collision damages to his
car, and from the Fidelity & Guaranty Company the sum necessary to relieve
and indemnify him against his liability to Lena Lindal. The companies set up
that they were not liable because Beattie had committed a breach of statutory
condition 5 of the policy, which reads as follows:—
Risks not covered: 5. The insurer shall not be liable under
this policy while the automobile, with the knowledge, consent or connivance of
the insured, is being driven by a person under the age limit fixed by law, or,
in any event, under the age of 16 years, or by an intoxicated person.
By section 254 of the Insurance Act of 1926, this
statutory condition, along with others, is deemed to be a part of every
contract of insurance in force in Alberta.
These two actions were tried together before Mr. Justice Ives
who, on the evidence, held that at the time of the accident Beattie was driving
his car while in an intoxicated
[Page 36]
condition, and, not only was he
intoxicated, but, by reason of the quantity of alcohol which he had consumed,
he was unable to drive a motor car with safety. These findings, in the light of
the learned judge's reasons, clearly involve, as we think, the conclusion that
the accident was due to Beattie's intoxication. On the above findings the trial
judge held that the accident was not a risk insured against, and he dismissed
both actions. From his judgment an appeal was taken to the Appellate Division
of the Supreme Court of Alberta, which reversed the judgment (Clarke and
McGillivray JJ. dissenting). The
majority of the court held that both plaintiffs were entitled to recover. From
the judgment of the Appellate Division the companies now appeal to this court.
That respondent Beattie was in an intoxicated condition when
driving his automobile at the time of the accident the trial judge found on conflicting
evidence. The view of the judge as to the relative weight to be ascribed to the
testimony of different witnesses ought not to be disturbed on appeal in the
absence of the gravest reasons. In this case the reasons advanced on behalf of
the appellants have not satisfied us that the finding ought to be set aside.
The appellants contend that Beattie's driving his automobile
while intoxicated relieves them from liability for two reasons: (1) that, under
statutory condition 5, such risk was not covered by the policy, and(2) if
covered, the claim for indemnity is unenforceable as being contrary to public
policy.
The exclusion from liability, under statutory condition 5, is
only "while the automobile, with the knowledge, consent or connivance of
the insured, is being driven by * * * an intoxicated person." This is not
apt language to describe an act done by the insured himself. It is, however,
just the language one would expect to be used if the intention was to exclude
liability where the automobile was being driven by a third person with the
permission of the insured. Apart from the inaptness of the language there is,
we think, another difficulty. To exclude liability, the automobile, when driven
by an intoxicated person, must be driven with the knowledge of the insured. If
statutory condition 5 is construed so as to include the insured himself, we
should
[Page 37]
have this remarkable result: that, if the
insured were so intoxicated as not to know what he was doing, the condition
would not apply owing to the insured's want of knowledge; while, if he were but
slightly intoxicated, he would know that he was driving and the condition would
be applicable. In our opinion condition 5 is not to be construed as applicable
to the insured.
The appellants' second contention is that they are exempt from
liability because the peril insured against was brought into operation by a
wrongful act of the insured, which constituted a violation of the criminal law,
and that, under these circumstances, it would be contrary to public policy for
the court to assist the respondent in securing indemnity for an illegal act.
Section 285(4) of the Criminal Code reads as follows:
Everyone who while intoxicated * * * drives any motor
vehicle or automobile * * * shall be guilty of an offence and liable upon
summary conviction for the first offence to a term of imprisonment not
exceeding thirty days and not less than seven days, for a second offence to a
term of imprisonment not exceeding three months and not less than one month,
and for each subsequent offence to a term of imprisonment not exceeding one
year and not less than three months.
The respondents do not dispute that if the liability arose from a
wrongful act of the insured, intentionally or wilfully done, the insured is not
entitled to be indemnified against its consequences. They do, however, contend
that it is only an intentional wrongful act on the part of the insured that
will bar his right to indemnity. Mere negligence, however gross, no matter to
what criminal consequences it may expose the insured, is, they contend, not
sufficient, for one of the objects of insurance is to protect the insured
against the consequences of negligence. For that reason it is said the doctrine
of public policy has no application where the liability arises not from the
wilful act of the insured but from his negligence.
Does the fact that Beattie's act constituted a violation of the
Criminal Code prevent him from recovering on grounds of public policy?
There are two cases in which the question has been answered in
the negative: Tinline v. White Insurance As-
[Page 38]
sociation,
and James v. British Insurance Company.
On the other hand the question is answered in the affirmative in O'Hearn v.
York Insurance Company,
which was a case of an insured who while driving his car on the public highway
in an intoxicated condition and at an excessive rate of speed, struck and
injured a man who died as the result of his injuries. The insured was convicted
of an offence under section 285 of the Criminal Code, and the judge at the
trial of the action, which he brought against the insurance company for
indemnity, found that he had been guilty of the offence. Both the trial judge
and the Court of Appeal, in that case, held that the insured should not be
indemnified against the consequences of his own criminal act. Reference was
there made to the case of Lundy v. Lundy,
where this court held that no devisee can take under the will of a testator
whose death has been caused by the criminal and felonious act of the devisee
himself, and, that in applying this rule, no distinction can be made between a
death caused by murder and one caused by manslaughter. Chief Justice Strong, in
giving judgment, said as follows:—
The principle upon which the devisee is held incapable of taking
under the will of the person he kills is, that no one can take advantage of his
own wrong. Then surely an act for which a man is convicted of manslaughter and
sentenced to a long term of imprisonment was a wrongful, illegal and formerly *
* * a felonious act.
The principle which, in our opinion, is applicable to the present
case is that stated by Kennedy J. in Burrows v. Rhodes,
as follows:—
It has, I think, long been settled law that if an act is
manifestly unlawful, or the doer of it knows it to be unlawful, as constituting
either a civil wrong or a criminal offence, he cannot maintain an action for
contribution or for indemnity against the liability which results to him
therefrom. An express promise of indemnity to him for the commission of such an
act is void.
In the recent case of Haseldine v. Hoskins,
Scrutten L.J. says as follows:—
It will be noticed that Kennedy J., used two phrases
"manifestly unlawful," or "the doer of it knows it to be
unlawful." These two phrases must mean two different things, because if
the first phrase means that the act is manifestly to the man who does it
unlawful, there was no need to use the second phrase, "or the doer of it
knows it to be unlawful." I.
[Page 39]
think that the learned judge is clearly
meaning such an act, that there can be no doubt that it is unlawful.
It is, therefore, sufficient to bring in the doctrine of public
policy that Beattie should have been "manifestly" intoxicated while
driving his automobile at the time of the accident. On this point the judgment
of the learned trial judge leaves no doubt.
The learned judge described Beattie's action as follows:—
Admittedly the street conditions were most dangerous—that is
his own evidence—slippery, old winter ice, snowing and sleeting heavily, with
only the view that under such conditions the operation of his windshield wiper
afforded him. Yet he was going at the rate of thirty miles per hour when there
was no need for such speed. He insisted on passing a car going in the same
direction which had not obeyed his horn signal to turn out, as he admits,
although he had only that block to travel before himself leaving that street.
Such conduct constitutes such a degree of reckless carelessness that it may be
inferred the actor was not in a normal condition.
It was, however, contended on the part of the respondents that,
whatever may have been the rule as to public policy in former times, public
policy in Alberta permits an insurer to agree to indemnify the insured against
loss or damage for which he may become liable by reason of driving his
automobile while intoxicated. By section 179 of the Insurance Act of Alberta,
1926, it is provided:—
It shall be lawful for an insurer to contract to indemnify
an insured against financial loss occasioned by reason of liability to a third
person, whether or not the loss has been caused by the insured through
negligence or while violating the provisions of any municipal by-law or any Act
of this legislature.
Prior to the passing of this section the legislature of Alberta
had, by section 22 (2) of the Motor Vehicle Act, 1911-12, enacted, with
certain prescribed penalties, the following:—
22 (2). No intoxicated person shall drive or operate a motor
vehicle in any place.
This provision, with a slightly altered phraseology, has continued
on the statute book ever since and it is now found as section 59 of the Vehicles
and Highway Traffic Act, chapter 31 of 1924.
From 1921 the material part of section 285 (4) of the Criminal
Code has been in force, and, it is not questioned that it is valid legislation
of the Dominion Parliament.
The respondents contend that the effect of this legislation is to
make inapplicable, in Alberta, the doctrine of public policy in circumstances
such as we are here con-
[Page 40]
cerned with. It is, therefore, necessary
to consider what effect must be given to these sections of provincial Acts,
especially in view of the legislation of section 285 (4) of the Criminal Code.
We think the contention of the respondents ought to be rejected
for this reason: first of all, it does not appear to be open to doubt that the
phrase "Act of this legislature" in section 179 of the Insurance
Act imports legislation which is legally operative. No doubt, in enacting
section 22 (2) of 1911-12, and in prescribing penalties in respect of the
violation of it, the Alberta legislature was creating an offence which, in view
of the decisions of the Privy Council in Rex v. Nat. Bell Liquors,
and Naden v. The King,
is properly described as a criminal offence: provided, of course, that the legislation
was operative.
In 1921, however, as already stated, the Dominion Parliament
passed legislation adding a section to the Criminal Code in terms almost
identical with those of the provincial enactment (section 22 (2)) and making it
a criminal offence, in the strictest sense, to drive an automobile while in a
state of intoxication. The effect of this legislation by Parliament was to
supersede existing provincial legislation, which was legislation in the same
field; and thereafter, as long, at all events, as the Dominion legislation
should remain in force, the provincial legislation would necessarily be
inoperative. The Dominion legislation has remained in force until the present
day. There was not, therefore, at the time of the accident, or at the date of
the policy, an Act of the provincial legislature in force, within the meaning
of section 179 of the Insurance Act, prohibiting the driving of a motor
vehicle while in a state of intoxication.
This point was not taken in argument, and that is regrettable,
because on all questions touching the validity of provincial legislation it is
the practice of this court to invite the Attorney-General of the province to
present such considerations as he thinks right upon the matter under
consideration. It is not necessary, however, that the judgment should be put
upon this ground, and, therefore, we do not think it proper to delay judgment
for the purpose of hearing the Attorney-General.
[Page 41]
In our view the effect of section 179 of the Alberta Insurance
Act is this: Contracts by an insurer to indemnify an insured against
financial loss occasioned by reason of liability to a third person, shall be
recognized by the law as binding, notwithstanding the fact: 1st, "that the
loss has been occasioned by the insured while violating the provisions of any
municipal by-law or an Act of the legislature" of Alberta. That is to say,
a contract for indemnity is not illegal on the ground of public policy because
the right of indemnity extends to losses so occasioned or arising under such
circumstances. To that extent the rule which strikes contracts with invalidity
on grounds of public policy is modified, but to no greater extent. The statute
has no application to contracts for indemnity in respect of losses occasioned
by violating the provisions of the Criminal Code. Nothing of the kind is
expressed and nothing of the kind can be implied.
It follows that the Alberta legislation does not directly
validate a contract of indemnity which would otherwise be invalid because the
insurer has professed to insure against an act or the consequences of an act
that would be a criminal offence under the Criminal Code or under the criminal
law of the Dominion prevailing throughout Canada as distinguished from the
penal laws of the provinces.
It might be argued, however, that the Alberta legislation is
evidence establishing the conclusion—upon which the courts ought to act—that a
contract of indemnity against a crime, or the consequences of it, where the
crime consists simply in driving an automobile while in a state of
intoxication, is not a contract opposed to public policy. To that there appears
to us to be two answers: The first is, that by the legislation of 1921, already
mentioned, such conduct had become a criminal offence under the Criminal Code.
This legislation was a part of the criminal law of the Dominion on the very
subject with which the Alberta Legislature was dealing in passing section 179
of the Insurance Act of 1926. Notwithstanding this fact, the section is
carefully restricted, in so far as it specifically refers to legislation, to
"the provisions of * * * any Act of this Legislature." In view of
this, it would not, we think, be an admissible inference that the Legislature
contemplated the modification of the doctrine of public policy in the wide
sense contended for.
[Page 42]
The second reason is this: the rule as formulated by Mr. Justice
Kennedy in the passage already quoted above from his judgment in Burrows v.
Rhodes,
although it may be said that, in its origin, it merely exemplified the power of
the court to refuse to enforce contracts on the ground that they infringed some
dictate of public policy, is a long settled rule. And we do not think it is now
competent to the courts to refuse to give effect to it in the absence of direct
legislative sanction or, at all events, of such legislation as should
demonstrate the intention of the Legislature that such contracts should no
longer be regarded as exceptions to the general principle of freedom of
contract.
Two other points require to be noticed. The first is that the
appellants do not, in their pleadings, allege that Beattie's act was illegal as
being contrary to public policy, and it is contended, therefore, that they are
precluded from relying on Beattie's intoxication. The rule upon this point, as
stated by Lord Moulton in N.W. Salt Co. v. Electrolytic Alkali Co.,
is:—
If the contract and its setting be fully before the Court it
must pronounce on the legality of the transaction. But it may not do so if the
contract be not ex facie illegal, and it has before it only a part of
the setting, which it is not entitled to take, as against the plaintiffs, as
fairly representing the whole setting.
In this case the act which constituted the illegality was
Beattie's driving his automobile when he was intoxicated. That he was driving
his automobile at the time of the accident he admits. That he was then
intoxicated was expressly set up in the pleadings and the court was entitled to
assume that it had before it in evidence all the relevant surrounding
circumstances relating to his intoxication. If on that point Beattie, when
before the trial court, did not put in all his relevant evidence, the
responsibility must be laid at his door. We think, therefore, that Beattie's
admission and the proof made at the trial, irrespective of the argument before
the Appellate Division, where the question was raised, were sufficient to
justify the court in passing upon Beattie's act as being illegal on the ground
of public policy.
The other point is that by undertaking the defence of the action
brought by Lindal against Beattie, with full
[Page 43]
knowledge of the circumstances
surrounding the accident, they are estopped from denying liability on the
policy.
This argument was strongly pressed upon us but, however effective
it might be in some cases, we do not think it can prevail against the defence
that Beattie's act constituted a crime and that to permit the recovery of
indemnity in this case would be to give effect to an illegality. If the defence
here had been that the appellants were denying liability on the ground that the
policy was not binding on them because Beattie had made a material
misrepresentation or had failed to fulfil some condition precedent to
liability, it might be argued that, having undertaken Beattie's defence in the
action brought against him by Lena Lindal for damages for personal injuries,
they could not, afterwards, be held to deny their liability under the policy.
That, however, is not this case. The real foundation of the defence in this
case is not, that the policy was not in full force and effect, but that it
never contemplated indemnifying Beattie for liability arising through his own
criminal act.
The appellants here were insisting that they were entitled under
the policy to conduct Beattie's defence. Suppose that Beattie had said to them
that he would agree to their conducting his defence, but only on condition that
they would not raise against him, when he would sue for indemnity, any defence
based upon his intoxication or his criminal act; and suppose further that the
appellants had given him an undertaking in writing to that effect; of what
avail would that have been to Beattie? Even in the absence of an allegation
that Beattie's act was illegal or criminal, once such illegality or criminality
were brought to the attention of the court, it would be the duty of the judge,
even of his own motion, to refuse, on grounds of public policy, to enforce
indemnity and he should dismiss the action. If an express undertaking would not
be enforceable, we are of opinion that conduct, whether by way of estoppel,
waiver or election, cannot preclude the appellants from denying liability.
The appeal should be allowed, the judgment below set aside, and
the judgment of the trial judge restored. The appellants are entitled to their
costs throughout.
[Page 44]
CROCKET J. (dissenting).—I regret that I have to
differ from my brethren in their conclusion that s. 179 of the Alberta
Insurance Act does not contemplate a loss caused by the insured while violating
that provision of the Alberta Motor Vehicles Act, which prohibits the
driving of a motor vehicle by a person who is intoxicated, because at the time
of the passage of the former statute the Criminal Code contained a provision
declaring that every one who while intoxicated drives any motor vehicle shall
be guilty of an offence and liable upon summary conviction to a term of
imprisonment.
It is no doubt true, as held in my brother Lamont's judgment,
that the incorporation in the Criminal Code of this provision renders the
prohibition of the Alberta statute inoperative, so far at least as concerns a
prosecution for the imposition of the penalty fixed by the Alberta statute for
that offence against the provincial Act; but I do not think that this fact can fairly
be said to read that portion of s. 59, which enacts the prohibition against the
driving of a motor vehicle by an intoxicated person, entirely out of the
provincial Motor Vehicles Act as if it had been expressly repealed or
never been enacted. Notwithstanding that it may be inoperative so far as
prosecutions for the imposition of the penalties prescribed by the penalties
section of the Alberta statute are concerned, it still remains in that statute
as an unrepealed enactment, and one which is not now held to be void. It is,
therefore, one, which I think the legislature must be held to have had in
contemplation with all other prohibitions of the Motor Vehicles Act, when
it passed its Insurance Act in 1926. Section 179 of this Act deals
entirely with the validity of motor insurance contracts for the indemnification
of a motor vehicle owner against loss occasioned by reason of his liability to
a third person—a liability which can only be created by negligence or some
other wrongful act on the part of the owner or on the part of one for whose
acts he is responsible. It expressly declares that it shall be lawful for an
insurer to contract to indemnify the owner against such loss, notwithstanding
that it has been caused by him through negligence or while he was violating any
of the provisions of any municipal by-law or any of the provisions of any Act
of the legislature. It in no manner concerns or contem-
[Page 45]
plates the subject of prosecutions for
criminal negligence or of prosecutions for violation of any of the provisions
of either the provincial Motor Vehicles Act or of the Criminal Code, and
refers to the violation of "the provisions of any municipal by-law or any
Act of this legislature," solely for the purpose of indicating the
wrongful and illegal acts in respect of which an insurance company may lawfully
contract to indemnify a motor vehicle owner. The fact that the Dominion
Parliament had provided in the Criminal Code that every one who drives a motor
vehicle while intoxicated, and thus does something which the Alberta Motor
Vehicles Act prohibits, shall be guilty of an offence under the Code and
liable to a gaol sentence, cannot, it seems to me, fairly be taken to exclude
the act of the owner in driving a motor vehicle while intoxicated from the purview
of s. 170 of the provincial Insurance Act, any more than the fact of
gross or criminal negligence rendering the driver of a motor vehicle liable to
prosecution and conviction for manslaughter, if such negligence on his part
causes the death of another, can be taken to exclude gross or criminal
negligence from the purview of that section. The thing done remains from the
point of view of the intention of the provincial legislature just as much a
thing which falls within the prohibitory provisions of the Motor Vehicles
Act as it did before.
I find it impossible to believe that s. 179 of the provincial Insurance
Act did not contemplate any and all degrees of negligence, whether that
negligence should constitute an offence under the Criminal Code or not, and
that it did not also contemplate all prohibitory provisions of provincial
statutes, irrespective of whether the violation of any of those provisions
would constitute an offence against the Criminal Code. The clear purpose of the
enactment, in my view, was to make it lawful for an insurance company to
contract to indemnify an owner of a motor vehicle against liability to third
persons by reason of all or any such acts of negligence and all or any such
wrongful and illegal acts as those described in the prohibitory provisions of
the Alberta Motor Vehicles Act or in any other Act of the Alberta
legislature or in any by-law of any municipality within the province, quite
irrespective of whether the violation of any such prohibitory provisions
constituted an
[Page 46]
offence under the Criminal Code or not.
To give the language any other meaning, it seems to me, is tantamount to
reading into the section a proviso that it shall not apply to any of those acts
of negligence or prohibited acts if they were acts which were then or might
subsequently be prohibited by the Criminal Code as well, and, with all
deference, I cannot think that the mere fact that the section makes no mention
of the Criminal Code has the same effect as if the Legislature had incorporated
such an express proviso in the enactment.
To give the section such a construction would render of little
value these insurance policies and all other similar policies, by which
insurance companies specially agree to indemnify motor vehicle owners against
losses caused by their own negligence or illegal acts, and for which they
receive from the insured a special premium, and I have no doubt that this was
the particular consideration which led the Alberta Legislature to enact the
legislation in question,
I construe the section as comprehending not only all degrees of
negligence but all acts which the legislature has itself expressly prohibited
and declared to be illegal or which any municipality within the province by
by-law has prohibited, and hold, therefore, that the Legislature of Alberta has
in effect declared that it shall be lawful in that province for an insurer to
contract to indemnify a motor vehicle owner against liability to third persons,
notwithstanding such liability may be the result of his driving the vehicle
while intoxicated.
If I am right in this view it follows as a consequence that no
Court can properly declare to be unlawful within the province of Alberta on
grounds of public policy, these insurance contracts which the legislature has
itself declared shall be lawful. The Legislature has settled, so far as the province
of Alberta is concerned, any question of public policy which may be involved in
the passage of the enactment referred to.
I only wish to add that I entirely agree with the observations of
Harvey, C.J., regarding the finding which the learned trial judge made as to
Beattie being intoxicated, viz: that he did not direct his mind to the
consideration of whether Beattie was liable criminally, and that on the
evidence before him no judge or jury would have felt justified in convicting
him of a crime. The trial judge's finding is
[Page 47]
based on what he believed to be the
weight of evidence, and disregards the fact that the doctor whom the police
called to examine Beattie and who examined him less than an hour after the
accident, swore that he was sober.
The passage quoted in the majority opinion of this Court from the
trial judge's reasons as apparently the principal ground of the finding of
intoxication, while it no doubt discloses strong evidence of negligence on the
part of Beattie, is by no means conclusive as to the fact of his having been
intoxicated.
I would dismiss the appeal with costs.
Appeals allowed with costs.
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