Global General Insurance Co. v. Finlay and Layng

Global General Insurance Co. v. Finlay and Layng
Collection
Supreme Court Judgments
Date
1961-06-12
Report
[1961] SCR 539
Judges
Kerwin, Patrick; Taschereau, Robert; Cartwright, John Robert; Judson, Wilfred; Ritchie, Roland Almon
On appeal from
Ontario
Subjects
Insurance
Decision Content
Supreme Court of Canada
Global General Insurance Co. v. Finlay and Layng, [1961] S.C.R. 539
Date: 1961-06-12
Global General Insurance Company (Defendant) Appellant;
and
Harold Finlay (Plaintiff) Respondent.
Global General Insurance Company (Defendant) Appellant;
and
Ivan Layng (Plaintiff) Respondent.
1961: May 8, 9; 1961: June 12.
Present: Kerwin C.J. and Taschereau, Cartwright, Judson and Ritchie JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Insurance—Automobile—Death of insured—Subsequent accident within policy period—Whether third party claims covered—Matters requiring proof to maintain third party action—The Insurance Act, R.S.O. 1950, c. 183, s. 214(1).
The predecessor of the defendant company issued a standard insurance policy to R.C. for a period of one year, during which time R.C. died. Her will, by which she devised and bequeathed all her property to her daughter and appointed her sole executrix, was admitted to probate. Subsequently, but within the policy period, the automobile, while being driven by L with the consent of the executrix, was involved in a collision with an automobile owned and driven by F. In an action for damages, judgment was given against the executrix in her capacity as such, and against L. Recovery was sought from the insurance company by F under s. 214(1) of The Insurance Act. An action against the same company was commenced by L, who claimed payment of his legal expenses incurred in defending the action brought against him and R.C.’s daughter, which action the company had refused to defend. At trial the actions were dismissed, but on appeal both F and L were successful. The Court of Appeal granted the defendant special leave to appeal to this Court.
Held: The appeals should be dismissed.
On the true construction of the policy, the claims against R.C.’s daughter as executrix of the estate, and L, who was driving the automobile with the daughter’s consent, were covered.
The matters which the plaintiff F was required to prove to maintain his action under s. 214(1) of the Insurance Act were: (1) the motor vehicle liability policy, and (2) that he had recovered judgment against a person insured under the policy for a claim for which indemnity was provided by the policy. As to item (1) the policy was proved and filed and its issue and terms were admitted in the pleadings. As to the matters set out in item (2) the plaintiffs made out a prima facie case in regard thereto by proving: (i) the formal judgment in the action of Finlay et al. v. Layng and Campbell; (ii) the record in the action; and (iii) the reasons for judgment. Continental Casualty Co. v. Yorke, [1930] S.C.R. 180, distinguished; Dokuchia v.St. Paul Fire and Marine Insurance Co. [1947] O.R. 417 and [1949] O.R. 170, discussed.
In the present case no attempt had been made to impeach any of the findings in Finlay et al. v. Layng and Campbell except the finding that at the time of the accident the automobile was owned by the daughter in her capacity as executrix. That point had been decided adversely to the defendant at trial and was not now questioned.
The trial judge was right in his conclusion that in the circumstances of this case the fact that at the time of the accident the automobile was owned by the daughter in her capacity as executrix was sufficiently established by proof of the judgment in Finlay et al. v. Layng and Campbell, the record of the action, and the reasons for judgment, and that it was unnecessary for counsel for the plaintiffs to call further evidence.
The judgment in that action, from which no appeal was taken, read in the light of the pleadings, furnished the best evidence of the nature of the claim against R.C.’s daughter in her capacity as executrix for which the judgment had been recovered; and the question whether or not that claim, which had become merged in the judgment, was covered became simply a question of the construction of the terms of the policy.
APPEALS, argued together, from judgments of the Court of Appeal for Ontario[1], reversing judgments of Spence J. Appeals dismissed.
G.L. Mitchell, Q.C., R.E. Shibley, and J.K. MacKenzie, for the defendant, appellant, in both appeals.
M. Lerner, Q.C., and M.A. Bitz, for the plaintiff, respondent, Harold Finlay.
J.J. Robinette, Q.C., and W.E. Bell, for the plaintiff, respondent, Ivan Layng.
The judgment of the Court was delivered by
CARTWRIGHT J.:—These appeals, which were argued together, are from judgments of the Court of Appeal for Ontario1 pronounced on February 26, 1960, allowing appeals from judgments of Spence J. delivered on July 7, 1959.
Regal Insurance Company Limited, the predecessor of the appellant, issued a standard automobile policy (owner’s form) to Mrs. Rheta Campbell. The automobile described in the policy was a Chevrolet Sedan. The policy period was from June 14, 1957, to June 14, 1958. The perils insured against were (i) third party liability up to the limit of $100,000 resulting from any one accident, (ii) medical expenses incurred by persons who sustain bodily injury while in the automobile up to the limit of $500 for each person, and (iii) loss or damage to the automobile except by collision or upset but including fire and theft up to the actual cash value of the automobile at the time of loss or damage. The perils of damage to the automobile by collision or upset were not covered.
Rheta Campbell died on January 10, 1958. By her will, which was admitted to probate on February 3, 1958, she devised and bequeathed all her property to her daughter, Margaret Jean Campbell, and appointed her sole executrix.
On April 20, 1958, the respondent Layng was driving the automobile with the consent of Margaret Jean Campbell. It was found by the learned trial judge and by the Court of Appeal that at this time Margaret Jean Campbell was the owner of the automobile in her capacity as executrix; this finding was not questioned on the argument before us. While so driving the automobile Layng was involved in a collision with an automobile owned and driven by the respondent Harold Finlay, as a result of which Harold Finlay suffered injuries, his wife was killed and his six infant children were injured.
On August 5, 1958, the six infants by their next friend Harold Finlay and the said Harold Finlay commenced an action in the Supreme Court of Ontario against the respondent Layng, Margaret Jean Campbell and Margaret Jean Campbell in her capacity as executrix of the last will of Rheta Campbell, claiming damages for the personal injuries sustained by them and damages under The Fatal Accidents Act. Prior to the date of the commencement of this action Margaret Jean Campbell and Layng had called upon the appellant to defend any proceedings against them which might result from the accident but it refused to do so on the ground stated in the following words in a letter from its solicitors:
We have advised the Insurance Company that under the existing circumstances the policy contract in question afforded no coverage to either Miss Jean Campbell or Ivan Layng, nor to the executrix of the will of Rheta Campbell deceased, in respect of loss or damage arising from the ownership, use or operation of the automobile described in the policy, on April 20, 1958 (the date of the accident in question), the insured person Rheta Campbell having died January 10, 1958.
Under the circumstances the Company is denying coverage and/or liability under the policy and the Company has no intention of defending any actions which may be commenced against any or all of the said parties for damages allegedly resulting from the said accident although the Company will be obliged to receive notice of any such actions so that it may apply under the provisions of Section 214(9) of the Insurance Act to be added as a Third Party thereto.
Copies of the writ and statement of claim served on Margaret Jean Campbell and Layng were furnished to the appellant’s solicitors but the appellant did not make application to be added as a third party.
Margaret Jean Campbell and Layng were separately defended. The statement of defence of each defendant denied negligence on the part of Layng and claimed that the collision was caused by the negligence of Harold Finlay. The action was tried before Stewart J., without a jury, and on February 3, 1959, that learned judge gave judgment finding that both Layng and Harold Finlay were negligent, apportioning the blame 90 per cent to Layng and 10 per cent to Finlay, and directing judgment to be entered in favour of the plaintiffs against Margaret Jean Campbell in her capacity as executrix of the last will and testament of Rheta Campbell and against Layng for the following amounts:
Harold Finlay.......................................................................
$20,287.96
Elizabeth Finlay..................................................................
1,350.00
John Finlay..........................................................................
630.00
Mary Finlay..........................................................................
855.00
Emma Finlay.......................................................................
2,610.00
James Finlay......................................................................
4,230.00
Margaret Finlay..................................................................
1,530.00
and also for the costs of the action which were taxed at $2,447.55.
The action as against Margaret Jean Campbell in her personal capacity was dismissed without costs.
The solicitor and client costs payable by Layng to his solicitors for defending the Finlay action were taxed at $3,932.75. On February 24, 1959, the respondent Finlay brought action against the appellant pursuant to section 214(1) of The Insurance Act, R.S.O. 1950, c. 183, which reads as follows:
214(1) Any person having a claim against an insured, for which indemnity is provided by a motor vehicle liability policy, shall, notwithstanding that such person is not a party to the contract, be entitled, upon recovering a judgment therefor against the insured, to have the insurance money payable under the policy applied in or towards satisfaction of, his judgment and of any other judgments or claims against the insured covered by the indemnity and may, on behalf of himself and all persons having such judgments or claims, maintain an action against the insurer to have the insurance money so applied.
The statement of claim alleged the judgment of Stewart J., the issue of the policy to Rheta Campbell and its relevant terms including the description of the insured automobile, the death of Rheta Campbell, the issue of letters probate of her will to Margaret Jean Campbell, and continued:
6. The said motor car while being driven by one Ivan Layng, with the consent and knowledge of the said executrix, was in a collision with a motor car owned and operated by the Plaintiff, Harold Finlay, in which the other persons referred to in Paragraph 3 above were passengers, at the intersection of the Poplar Hill Sideroad, and the 12th Concession of the Township of Lobo, in the County of Middlesex, on Sunday, April 20, 1958.
7. Following the trial of the action instituted on August 5, 1958 in the Supreme Court of Ontario by the parties referred to in Paragraph 3 above for their damages arising out of the said collision, Mr. Justice Stewart who presided at the said trial reserved Judgment and pronounced Judgment on February 3, 1959 in the terms set forth in Paragraph 3 above.
In its statement of defence the appellant pleaded the terms of the policy, the death of Rheta Campbell on January 10, 1958, the grant of letters probate to Margaret Jean Campbell on February 3, 1958, the date of the accident April 20, 1958, and continued:
5. At the time of the said accident the said vehicle was being driven by one Ivan Layng and the Judgment referred to in the Statement of Claim was granted against him as well as against the said Margaret Jean Campbell in her capacity as Executrix of the last will and testament of Rosieta Martha Campbell, also known as Rheta Campbell.
6. Upon the death of the named insured Rheta Campbell, that part of the insuring contract relating to third party liability as set forth in Section A thereof, came to an end, and any right of indemnity thereunder became confined to any claim which may have raisen prior to such death.
7. The Defendant submits that no obligation exists under the said policy of automobile insurance to indemnify Margaret Jean Campbell in her capacity as Executrix of the last will and testament of Rosieta Martha Campbell, also known as Rheta Campbell, in respect of the amounts awarded under the Judgment referred to in Paragraph 3 of the Statement of Claim because:—
(a) The insurer agreed “to indemnify the insured, his Executors or Administrators. against the liability imposed by law upon the insured”, the insured being Rheta Campbell;
(b) The liability imposed by the said Judgment upon Margaret Jean Campbell arose by reason of the negligence of Ivan Layng while driving the vehicle described in the policy with the consent of the said Margaret Jean Campbell, and there is no obligation upon the Defendant to indemnify her against the said liability under the circumstances;
(c) In any event, at the date of the accident in question April 20, 1958, the vehicle described in the policy was owned by Margaret Jean Campbell in her personal capacity and she was not insured by the policy.
The Defendant, therefore, submits that this action be dismissed with costs.
On April 20, 1959, Layng commenced action against the appellant. In his statement of claim he alleged the issue and terms of the policy, the death of Rheta Campbell, the appointment of Margaret Jean Campbell to be her executrix, the consent of Margaret Jean Campbell as executrix to his having possession of the automobile, the happening of the accident, the bringing of the action by the Finlays against him and Margaret Jean Campbell, the giving of notice of the action to the appellant, its refusal to defend, the trial before Stewart J. and his judgment, the retaining by Layng of his own solicitors to defend the action and the incurring by him of the liability to pay their costs of $3,932.75. The prayer for relief asked for payment of this amount.
In its statement of defence the appellant admitted the giving of notice of the action to it and its refusal to defend and set out the facts as to the issue of the policy and the death of Rheta Campbell. Its grounds of defence were set out in paragraphs 5 and 7 which reads as follows:
5. Upon the death of the named insured Rheta Campbell, that part of the insuring contract relating to third party liability as set forth in Section A thereof, came to an end, and any right of indemnity or defence thereunder became confined to any claim which may have arisen prior to such death.
* * *
7. At the time of the accident mentioned in paragraph 7 of the Statement of Claim, the plaintiff was not driving the automobile with the consent of the person insured by the said policy of insurance, she having previously died as aforesaid and the terms of the policy relating to consent having thereby become terminated; and the plaintiff was not entitled to have the action Harold Finlay et al. vs. Ivan Layng et al. defended on his behalf by the defendant; nor is he now entitled to be indemnified against the costs of defence incurred by him, as claimed in this action.
The two actions came on for trial at London in June, 1959, before Spence J. and were ordered to be tried together.
Before any evidence was tendered there was some discussion between the Court and counsel in the course of which the following appears:
Mr. Mitchell (counsel at the trial for the appellant):
In order perhaps to clarify the issues, which are set forth fairly clearly in the pleadings, if your lordship would refer for a moment to the Statement of Defence it sets forth our position. Your lordship will notice paragraph Six in what we call a Fresh Statement of Defence:
Mr. Mitchell then read the whole of paragraphs 6 and 7 of the statement of defence in the Finlay action which have been quoted above and the discussion continued:
HIS LORDSHIP: Certainly, the late Mrs. Campbell was not driving the vehicle. There is a judgment against her estate on the ground of her ownership, and surely that is res judicata, and I do not deal with that defence—
Mr. MITCHELL: I submit it is not res judicata as against the Global General Insurance Company. We were not a party to those proceedings.
HIS LORDSHIP: I presume the estate gave you notice and you preferred not to defend, and I am afraid you are going to be bound by it under those circumstances. However, we will not argue the case at the beginning—
Mr. MITCHELL: I submit that it is not res judicata and it is one of the things to be determined before your lordship.
HIS LORDSHIP: Well, proceed.
Counsel for Finlay then called the local registrar of the Court at London and filed as Exhibit 1 a certified copy of the formal judgment of Stewart J. of February 3, 1959, and as Exhibit 2 the record in that action. He then tendered a copy of the reasons for judgment of Stewart J., and counsel for the appellant objected as follows:
Mr. MITCHELL: May I object to the production and filing of the reasons for judgment. I do not think they are evidence in this action—the judgment is evidence, but surely the reasons for judgment cannot be evidence in this action. I know of no rule that would make those reasons for judgment evidence. After hearing argument on the objection the learned judge admitted the evidence and the reasons were filed as Exhibit 3. The ruling was expressed as follows:
HIS LORDSHIP: Well, I will have all the material—I do not see how a judgment was recovered in that action against the estate of Rosieta Martha Campbell unless the estate of Rosieta Martha Campbell was the owner of the vehicle at the time the accident occurred. If there was that judgment recovered, then it is res judicata between the parties, and I am going to have all the material before me before I determine that it is res judicata, so I will permit it to be filed. Your objection is noted.
However, Layng was later called as a witness and on his evidence the learned trial judge found as a fact that at the time of the accident the automobile was owned by Margaret Jean Campbell in her capacity as executrix; that finding was affirmed in the Court of Appeal and, as has been mentioned, it was not questioned before us.
Counsel for the plaintiffs filed the insurance policy, the letters probate of the will of Rheta Campbell, the certificate of taxation of the costs in the action of Finlay v. Layng et al., the certificate of taxation of the bill payable by Layng to his solicitors, and a number of letters establishing that due notice of all relevant claims and proceedings had been given to the appellant and that it had refused to defend the action on behalf of either Margaret Jean Campbell or Layng.
Harold Finlay was called and proved that nothing had been paid on account of the judgment awarded to him.
It would appear from the reasons of the learned trial judge that only two questions were argued before him, (i) whether the third party liability coverage afforded by the policy terminated upon the death of Rheta Campbell except as to any claim which might have arisen prior to her death, and (ii) whether at the time of the accident giving rise to the judgment obtained by Finlay the automobile was owned by Margaret Jean Campbell in her capacity as executrix.
The learned trial judge decided the first of these questions in favour of the appellant and the second in favour of the respondents and accordingly dismissed both actions.
Both Finlay and Layng appealed to the Court of Appeal for Ontario and their appeals were allowed. The Court of Appeal granted the appellant special leave to appeal to this Court in the Layng action and in the Finlay action with respect to the interests of those persons represented by the plaintiff whose interests do not exceed $10,000.
The reasons for the unanimous judgment of the Court of Appeal were delivered by Schroeder J.A. They deal fully with the question of the proper construction of the policy in the light of the relevant statutory provisions. I am in substantial agreement with those reasons and wish to adopt the following conclusions stated by the learned Justice of Appeal:
On a careful consideration of the words used, read in the light of the provisions of statutory condition l(a)(b)(i) to which I shall refer later, it is evident that the parties had in contemplation the continuance of the insurance protection provided in section A of the insuring agreement in favour of the executors or administrators of the insured applicant in the event of her death occurring during the currency of the policy. In the view which I take the policy, in its primary import, is doubtless a single insurance for the benefit of a single insured. The identity of the insured changes, however, when her death occurs, and her executor or administrator is then substituted in her place as the insured for the balance of the term of the policy with all the rights to indemnification of the primary insured so long as the executor or administrator remains the owner of the vehicle specified in the policy. If that be the correct view then the words “every other person who with the insured’s consent personally drives the automobile” refer to the consent of the primary insured’s executor or administrator and the words “against the liability imposed by law upon the insured” are to be construed in the same manner.
* * *
The executrix of the primary insured is an insured person within the meaning of this policy to the same extent as she would be if she had been identified therein suo proprio nomine, because the executor or administrator of an insured is a person who is readily identifiable, and the maxim certum est quod certum reddi potest applies. It follows that the executrix has been sufficiently named as the insured to entitle her to recover, and the same right enures to the benefit of the plaintiff Layng who, on the occasion in question, was driving the automobile with the consent of the then named insured, the executrix of the deceased policyholder.
There remains a question argued before us but not dealt with in the reasons of the learned trial judge or in those of the Court of Appeal, and not included in Part II of the factum filed by the appellant in this Court. In the course of the argument set out in Part III of the appellant’s factum the point is stated as follows:
The plaintiffs maintain these actions under s. 214(1) of the Insurance Act.
In order to succeed under this section a judgment creditor must prove:
(1) The Agreement to indemnify; (2) That his loss or damage arose from the use or operation of the motor vehicle in respect of which the policy of insurance was issued;
(3) That the insured person was legally liable to him in damages for such loss or damage.
* * *
Proof that loss or damage arose from the use or operation of the motor vehicle in respect of which the policy of insurance was issued, and that the insured was legally liable to a judgment creditor for damages for such loss or damage, is not established by merely filing the formal judgment and reasons therefor in the action giving rise to an action under Section 214(1) supra.
* * *
It is submitted that the plaintiffs failed to make out their case at the trial of this action because they attempted to do so by filing the formal judgment and the Reasons for Judgment in the action Finlay et al. vs. Campbell and Layng and did not prove the fundamental requisites required by the decision in the Yorke case. (i.e. Continental Casualty Co. v. Yorke [1930] S.C.R. 180).
In support of this submission counsel for the appellant cites the Yorke case, supra, and the two judgments of the Court of Appeal for Ontario in Dokuchia v. St. Paul Fire and Marine Insurance Company[2].
In my view the matters which the respondent Finlay was required to prove to maintain his action under s. 214(1) may be more accurately stated as follows:
(1) The motor vehicle liability policy;
(2) That he had recovered judgment against a person insured under the policy for a claim for which indemnity was provided by the policy.
Item (1) presents no problem, the policy was proved and filed and its issue and terms were admitted in the pleadings.
It could well be argued that the matters set out in item (2) were sufficiently admitted in the pleadings which have been quoted above, particularly in paragraph 5 and in the first sentence of clause (6) of paragraph 7 of the Statement of Defence in the Finlay action:
5. At the time of the said accident the said vehicle was being driven by one Ivan Layng and the Judgment referred to in the Statement of Claim was granted against him as well as against the said Margaret Jean Campbell in her capacity as Executrix of the last will and testament of Rosieta Martha Campbell, also known as Rheta Campbell.
* * *
(b) The liability imposed by the said judgment upon Margaret Jean Campbell arose by reason of the negligence of Ivan Layng while driving the vehicle described in the policy with the consent of the said Margaret Jean Campbell. However, I do not rest my judgment on this point on the precise form of the pleadings; in my opinion the plaintiffs made out a prima facie case in regard to the matters set out in item (2) by proving, as they did, the formal judgment of Stewart J., the record in the action of Finlay et al. v. Layng and Campbell, and the reasons for judgment of Stewart J., all of which were, in my view, rightly admitted in evidence by the learned trial judge.
In so far as the judgment of this Court in Continental Casualty Co. v. Yorke, supra, appears to decide anything to the contrary it is clearly distinguishable on the facts and also by reason of the substantial changes that have been made in the relevant statutory provisions that were then in force, particularly the replacement of what was then s. 85(1) of The Insurance Act by s. 214(1) and the enactment of s. 214(9). I have examined the complete record in that case. At the trial before Raney J. no oral evidence was given. Six exhibits were filed; (i) the formal judgment of Riddell J. in the action of Jeanne Yorke v. Elizabeth Schwartz and A.C. Schwartz directing that the plaintiff do recover from the defendants damages in the sum of $2,067.25 and costs, (ii) the formal judgment of the Court of Appeal for Ontario dismissing the defendants’ appeal with costs, (iii) the certificate of the taxing officer, (iv) a letter from the Sheriff reporting that his return to a writ of execution issued pursuant to the judgment was “nulla bona”, (v) the insurance policy, and (vi) a birth certificate to shew the age of the defendant A.C. Schwartz.
It will be observed that there was nothing in any of these exhibits to indicate the nature of the claim on which the plaintiff’s judgment was founded beyond the fact that it was a claim for damages. However, at the trial counsel for the insurance company admitted that the judgment was for damages claimed to have been caused by the negligent driving by A.C. Schwartz of the insured automobile which was owned by the other defendant Elizabeth Schwartz. Indeed, he made it clear that the only defence was one based on statutory condition 5 in the policy which read:
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 sixteen years, or by an intoxicated person. It was admitted that A.C. Schwartz was driving the insured automobile, that he was under 18 years of age and that he did not have a permit to drive as required by statute for a person under that age; but counsel for the plaintiff made it quite clear that he did not admit that A.C. Schwartz was driving with the consent of Elizabeth Schwartz. Counsel for the defendant at first proposed to call Elizabeth Schwartz in an endeavour to prove the giving of consent but changed his mind and took the position that the giving of her consent was sufficiently proved by the judgment of Riddell J. which had already been filed. This was the only point which this Court was called upon to decide or did decide. Lamont J. who delivered the unanimous judgment of the Court rejected the argument that the consent of Elizabeth Schwartz must be presumed from the fact of judgment having been given against her; he said at page 188:
Furthermore, I do not see anything in the Act (i.e. the Highway Traffic Act) that would prevent Mrs. Schwartz from being liable at common law for the damage caused by her son’s negligence if it were shewn that he was in her employ and, at the time of the accident, in the course of his employment. It does not necessarily follow, therefore, that because judgment was given against her, Mrs. Schwartz had any knowledge that her son was driving her automobile, or that she consented thereto.
Lamont J. also pointed out that the pleadings in the action of Yorke v. Schwartz had not been put in evidence.
In the first Dokuchia case the plaintiff was given judgment at the trial against the insurer. The Court of Appeal examined the formal judgment and the pleadings in the action in which Dokuchia had recovered judgment against Domansch (the insured) for the purpose of ascertaining whether the claim which had become merged in the judgment was one covered by the policy. The action failed because it was impossible to determine from the record whether Dokuchia at the time he was injured was in the employ of Domansch and if he was so employed his claim was excluded from coverage by the terms of the policy. The Court of Appeal accordingly set aside the judgment against the insurer and directed a new trial.
At the new trial the whole record in the case of Dokuchia v. Domansch[3], was filed including the reasons for judgment of the Court of Appeal for affirming the trial judgment. Once again, however, the claim of Dokuchia against the insurance company failed because in upholding his judgment against Domansch the Court of Appeal had decided that his injuries did not arise from the use or operation of the insured vehicle, and it was held as appears in [1949] O.R. at page 179, that this adjudication was binding upon Dokuchia in his action against the insurance company. In applying this decision it must be remembered that all the documents referred to were admitted in evidence by consent and that Dokuchia, who was held to be bound by the judgment, and the reasons therefor, given in his action against Domansch, had put that judgment and those reasons in evidence as part of his case. It is not necessarily decisive of the question whether the judgment and reasons would have been binding also on the insurance company, although there is nothing in the reasons to suggest the contrary.
Turning now to the facts of the case at bar it is my opinion that the best evidence by which a party bringing action under section 214(1) of The Insurance Act can establish the nature of the claim for which he has recovered judgment against an insured is to prove the formal judgment, the reasons therefor and the record, including of course the pleadings, in the action in which the judgment was recovered. All of these are admissible in evidence and nothing in the Yorke case or the Dokuchia cases decides, or indeed suggests, the contrary.
In the case at bar no attempt was made either in the appellant’s pleadings or in the evidence to impeach any of the findings made in the action of Finlay et al. v. Layng and Campbell except the finding that at the time of the accident the insured automobile was owned by Margaret Jean Campbell in her capacity as executrix. It has already been pointed out that the learned trial judge heard evidence on that point and decided it adversely to the appellant and that this finding is not now questioned. This, in my opinion, is sufficient to dispose of the ground of appeal with which I am now dealing.
However, I wish to rest my judgment on this point also on the view that the learned trial judge was right in his conclusion that in the circumstances of this case the fact that at the time of the accident the insured automobile was owned by Margaret Jean Campbell in her capacity of executrix was sufficiently established by proof of the judgment of Stewart J., the record in the action of Finlay et al. v. Layng and Campbell and the reasons of Stewart J. and that it was unnecessary for counsel for the plaintiffs to call the further evidence which, as a matter of precaution, they did call.
So long as the judgment of Stewart J. stood (and it was proved that no appeal was taken from it and that the time for appealing had expired) it, read in the light of the pleadings, furnished the best evidence of the nature of the claim asserted against Margaret Jean Campbell in her capacity as executrix for which the judgment had been recovered; and the question whether or not that claim, which had become merged in the judgment, was covered became simply a question of the construction of the terms of the policy. I have already expressed my agreement with the view of the Court of Appeal that on the true construction of the policy the claim was covered.
In an action brought under s. 214(1) the question to be determined is whether the plaintiff has made against an insured a claim for which indemnity is provided by a motor vehicle policy and has recovered a judgment therefor; the question is not whether that judgment was correct.
The judgment of Stewart J. was a final judgment pronounced by a court of competent jurisdiction and constituted conclusive evidence against all the world of its existence, date and legal consequences; (vide Halsbury, 3rd ed., vol. 15, p. 395 and the cases there collected). The legal consequence of that judgment was to impose upon Margaret Jean Campbell in her capacity as executrix a liability arising from the ownership of the automobile described in the policy. That liability was clearly one imposed by law and fell within the terms of the insuring agreements set out in section A of the policy. I can find no support for the appellant’s submission that it was necessary for the respondent to prove again in the action against the insurer under s. 214(1) the facts on which the judgment of Stewart J. was founded. To so hold would be to disregard the maxim, interest reipublicae ut sit finis litium.
For the above reasons I would dismiss both appeals with costs.
Appeals dismissed with costs. Solicitors for the defendant, appellant: Mitchell Hockin & Dawson, London.
Solicitors for the plaintiff, respondent, Harold Finlay: Lerner, Lerner & Bitz, London.
Solicitors for the plaintiff, respondent, Ivan Layng: Wright, Poole, Bell & Porter, London.
[1] [I960] O.R. 167, 23 D.L.R. (2d) 376.
[2] [1947] O.R. 417 and [1949] O.R. 170.
[3] [1944] O.W.N. 461; [1945] O.R. 141.