New York Insurance Co. v. Schlitt

New York Insurance Co. v. Schlitt
Collection
Supreme Court Judgments
Date
1945-02-27
Report
[1945] SCR 289
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Estey, James Wilfred
On appeal from
Alberta
Subjects
Insurance
Decision Content
Supreme Court of Canada
New York Insurance Co. v. Schlitt, [1945] S.C.R. 289
Date: 1945-02-27
The New York Life Insurance Company (Defendant) Appellant;
and
Henry Peter Schlitt, in His Capacity as administrator of the Estate of George E. Ross, Deceased (Plaintiff) Respondent.
1944: October 19; 1945: February 27.
Present: Rinfret C.J. and Kerwin, Taschereau, Rand and Estey JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
Life insurance—Provision in policy for "double indemnity" if insured's death resulted from "external, violent and accidental" cause, but not applicable in case of suicide—Insured burned to death in fire in his barn—Whether death "accidental"—Onus of proof—Presumption against suicide—Inferences from facts in evidence.
Plaintiff, administrator of the estate of R., deceased, sued to recover under a "double indemnity" clause in a policy issued by defendant insuring R.'s life (the amount payable simply on death had been paid). The "double indemnity" was payable "upon receipt of due proof" that R.'s death "resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause". It was not payable if R.'s death resulted from (inter alia) self destruction or any violation of law by him. He was a successful farmer. He had an asthmatic condition but otherwise was well. On the day before the day on which he died, his wife, during a quarrel, threatened to leave him (as she had threatened in quarrels on previous occasions), and the next morning, on his asking if she still "figured on leaving him", she replied "yes" (though she had made no preparations to leave), and, according to her evidence, he said it would spoil his life, he "couldn't face it". Shortly afterwards his barn was found to be on fire; it was completely destroyed, and his remains were found in its ruins.
The trial Judge dismissed the action ([1944] 1 W.W.R. 129), finding, in view of R.'s said statements, that he had committed suicide. That judgment was reversed by the Appellate Division, Alta, ([1944] 2 W.W.R. 68). Defendant appealed.
Held (affirming the judgment of the Appellate Division), that plaintiff should recover under the double indemnity clause. Rand J. dissented.
Per the Chief Justice and Kerwin J.: It is evident from the trial Judge's reasons that, but for R.'s said words on the morning of the fire, he would have concluded that R.'s death was due to an accident within the meaning of the policy. An appellate court is in as good a position as the trial Judge, in such a case, to draw the proper inference; and, under all the circumstances, the evidence did not lead to a finding of suicide. There is a presumption against the imputation of crime. That presumption is not overcome merely by proof of motive (also, there was no reasonable motive suggested in this case).
The burden upon plaintiff to show that R.'s death came within the terms of the double indemnity clause did not require plaintiff to show that the fire itself was started accidentally. Plaintiff was required only to produce such evidence as would warrant a court in finding that R.'s death, which undoubtedly occurred by reason of the fire, resulted from a bodily injury that was effected solely through an accidental cause (no question arises as to the cause being external and violent). The fire may have been started innocently by R. or innocently or intentionally by some one else; so long as R. did not start the fire with intention of committing suicide or place himself in the barn with that intention after a fire had been otherwise started, plaintiff must succeed.
Per Taschereau J.: Plaintiff had satisfied the burden upon him to show that R.'s death resulted from an "external, violent and accidental cause" within the meaning of the double indemnity clause. All the circumstances as revealed by the evidence (and bearing in mind that courts act upon the "balance of probabilities") lead to that conclusion. The case is one where an appellate court may draw its own inferences from the proven facts. Suicide is a crime and there is a legal presumption against the imputation of crime. Motives are very unreliable and cannot be classified as an accurate determining cause of human deeds, which they often influence in different ways; taken alone, they have very little probative value; and those alleged in this case do not rebut the presumption against suicide.
Per Estey J.: The case is one in which an appellate court is in the same position as the trial Judge as to drawing inferences of fact. R.'s words to his wife on the morning of the fire, when read in relation to all the other facts, do not justify an inference of suicide. On the issue of "accidental" death, plaintiff was entitled to invoke the inference against suicide, which inference was not "destroyed or attenuated" by R.'s said words. On the evidence it must be found that the cause of death was the fire and that that was an "external, violent and accidental cause" within the meaning of the double indemnity clause.
Per Rand J., dissenting: To recover under the double indemnity clause, plaintiff must show death by accident. That onus remained on him; and if, with the presumption against suicide and its underlying probative force properly applied, the evidence compels the Court to say that on the whole case the probabilities of accident or suicide are in equal balance, plaintiff must fail. The presumption against suicide arises from mankind's experience that a human being normally and instinctively shrinks from it. That general reaction the Court, in considering all facts before it, will keep in mind; but it, treated as a fact, is to be looked upon as any other circumstance in the particular situation. In the present case there was in the whole of the circumstances, including the weight of the factors in experience, sufficient to leave the Court in doubt whether R.'s death was brought about by his intentional act or by accident; and in that state of things plaintiff's burden had not been discharged. The Appellate Division had acted upon inferences which the undisputed facts did not warrant and at the same time had applied them to a burden of proof on defendant which the issue between the parties did not raise. The action should be dismissed.
APPEAL by the defendant from the judgment of the Supreme Court of Alberta, Appellate Division[1], reversing the judgment of O'Connor J.[2] dismissing the action, which was brought to recover, under a double indemnity provision in an insurance policy issued by the defendant, a further sum than that which the defendant had paid under the policy.
The plaintiff sued in his capacity as administrator of the estate of George E. Ross, deceased, who died on April 27, 1942, in a fire which burned his barn. The defendant had issued a policy dated December 28, 1925; which insured the life of the said Ross. By the policy the defendant had agreed to pay $6,850 (the face of the policy) upon receipt of due proof of the death of said Ross, or $13,700 (double the face of the policy) upon receipt of due proof that his death resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause, and that such death occurred within 90 days after sustaining such injury, subject to all the terms and conditions contained in sec. 2 of the policy. Said sec. 2 provided that the said provision for double indemnity benefit would not apply if the insured's death resulted from (inter alia) self-destruction, whether sane or insane, or any violation of law by the insured.
The defendant paid the sum of $6,850. The plaintiff brought action to recover the further sum of $6,850 under the said double indemnity provision, alleging that the death resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause, and occurred within 90 days from the injury and that due proof of such death, etc., had been supplied to or acquired by the defendant. The defendant denied the allegations of fact upon which the plaintiff based his claim (except the covenant in the policy) and further pleaded in the alternative the provision in the policy that the double indemnity benefit would not apply if the death of Ross resulted from self destruction, whether sane or insane, and alleged that his death resulted from self-destruction.
The trial Judge dismissed the action, finding that Ross had committed suicide. That judgment was reversed by the Appellate Division, which directed that judgment be entered for the plaintiff for the said sum of $6,850. The defendant appealed to this Court.
The facts and circumstances of the case are sufficiently stated in the reasons for judgment in this Court now reported. The appeal to this Court was dismissed with costs, Rand J. dissenting.
N. D. Maclean K.C. and H. G. Johnson for the appellant.
J. N. McDonald K.C. for the respondent. The judgment of the Chief Justice and Kerwin J. was delivered by
Kerwin J.—The appellant Company is the defendant in an action brought by the administrator of the estate of George E. Ross upon a policy of insurance issued by the Company to Ross as the insured. The Company agreed to pay $6,850 upon receipt of due proof of Ross' death
or thirteen thousand seven hundred Dollars upon receipt of due proof that the death of the Insured before the maturity date resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause.
Ross died on April 27th, 1942. The Company paid $6,850 but declined to pay the additional sum that was claimed by virtue of the clause referred to.
Mr. Justice O'Connor, the trial judge, dismissed the action, as he came to the conclusion that Ross had committed suicide. The Appellate Division of the Supreme Court of Alberta reversed this judgment, as the five members of that Court came to the conclusion that the insured had not committed suicide. Both Courts treated that as being the only substantial one in question, but counsel for the appellant argued that they had not dealt with another issue raised by the Company. This matter will be adverted to later, but the evidence relating to Ross' death and to the relevant circumstances prior thereto must first be stated.
Ross was born on February 11th, 1893, and at the time of the issue of the policy, December 9th, 1925, was a bachelor. The beneficiary mentioned in the policy was his mother but this was changed on November 12th, 1937, to the executors, administrators or assigns of the insured. In 1938, as a result of correspondence through what is called a friendship column in a newspaper, Ross became acquainted with Susie Klassen. She became his housekeeper on his farm and in about three months they were married. Some time after the marriage quarrels arose over her claim that her husband and the hired man, Robert Thomas, tracked mud into the house and while on several occasions she threatened to leave, at no time did she make any preparations to carry out these threats. On Sunday, April 26th, 1942, another quarrel occurred over the same matter and she told her husband that she was going to leave. In cross-examination she stated that she meant it at the time and that he must have known that she meant it but "she did not know." Thomas, who had worked for Ross for some years and for Ross' father before that, was present during this quarrel and, according to his evidence, he told Ross that it was time he was quitting. The two of them went out of the house together; Thomas intimated to Ross that either he or Ross' wife would have to leave; Ross asked Thomas not to quit but to wait a few days, to which Thomas agreed. (At some stage but whether in Thomas' presence or not is not quite clear, Mrs. Ross complained that she was working too hard while her husband intimated that she had not been working as hard as his mother.) Thomas went to visit a neighbour, not because of the quarrel but because he very often went there or to the houses of other neighbours, and did not return until Monday morning.
On that Monday morning, Ross rose about six o'clock and went to do the chores. His wife prepared his breakfast and then went back to bed. Ross returned to the house, ate his breakfast and then went to the bedroom to inquire if Mrs. Ross were ill. She replied that she was not, but that she was trying to get some sleep since she had not slept during the night. He again left the house. After an interval she arose and had started washing the dishes when he returned and on asking if she still "figured on leaving him", she replied "Yes". According to her evidence, he said that "It would spoil his life if I left him; he couldn't face it; and things like that he was telling me; and talking about other things, too" and he then went out of the house. She had not commenced to pack any of her effects nor had she asked him to drive her to town. About ten minutes after Ross left, his wife went to the porch of the house and saw smoke coming out of all parts of the barn. She went out into the yard, towards the barn, and shouted for him but, not getting any answer, returned to the house and telephoned for assistance. So far as she could see, all the doors in the barn were closed. She opened one door, the one on the south side, and left it open. The barn and the contents burned, Ross' body was found in the debris and there is no doubt that he died as a result of the fire.
The barn was a frame building about eighty feet wide, running east and west, by about forty feet. There was a double door in the west part of the barn with a strip of cement about fifteen feet wide leading from this double door northerly across the barn, on either side of which strip of cement were the stalls, which had been planked. Otherwise the earth formed the ground floor of the barn. There was one stairway in the building, leading to the loft which extended over the whole area, and in the loft there were about eight tons of hay. The barn was wired for electricity, the power for which was generated outside. There were three or four gasoline cans on the premises, one of which was kept in a shed where the gasoline pump was. After the fire, one can was found by Thomas on the floor of the barn about fifteen feet from Ross' body. There was no gasoline in the can and the top was screwed on tightly. Thomas drove á tractor over this, flattened it and threw it on a junk pile, and it was only later that it was discovered by a policeman who then ascertained from Thomas what the latter had done. The fuse in the shed was intact.
Ross did not smoke and, therefore, did not always have matches with him but, on some occasions, Thomas had secured matches from him. It appears to be common ground that Ross had been in the loft and had fallen where he had been overcome. While the evidence is not clear, it seems to have been taken for granted, at the trial, that because of what was found in the stalls, Ross had harnessed a team of horses and had probably used them to bring some feed, which, however, was not brought in the barn but was left outside. There is also evidence that gasoline was used occasionally to shine the harness.
There was no contradictory evidence and while the trial judge described the widow as giving her evidence with a fatuous grin, he believed her testimony. Part of that testimony, however, was an opinion expressed by her that her husband had committed suicide and a statement that she did not want the double indemnity and would refuse to accept it. As to the first part, the evidence was inadmissible as that was the very point the Court was asked to determine. As to the second part, counsel for the administrator stated before the Appellate Division that the widow had concurred in the instructions by the administrator to prosecute the appeal. There might also be mentioned the evidence of Thomas that he acted as he did in connection with the gasoline can because he feared that it might be considered Ross had committed suicide. His opinion on that point was also inadmissible.
It is evident from the reasons of the trial judge that if it had not been for the evidence of the widow that her husband had said he could not face it, etc., Mr. Justice O'Connor would have come to the conclusion that Ross' death was due to an accident within the meaning of the policy. An Appellate Court is in as good a position as the trial judge, in such a case, to draw the proper inference: Dominion Trust Co. v. New York Life Insurance Co.[3]. I agree with the Appellate Division that under all the circumstances and bearing in mind that no question as to financial difficulties could arise as Ross' estate was valued at about $40,000 with current debts of $400, the evidence does not lead to a finding that Ross committed suicide. There is a presumption against the imputation of crime: London Life Insurance Company v. Trustee of the Property of Lang Shirt Co.[4]; and motive can never be of itself sufficient: Dominion Trust Co. v. New York Life Insurance Co., supra. The only motive suggested in this case—that Ross, being timid as far as public opinion was concerned and not liking to be teased or made to feel ridiculous, would commit suicide rather than have it said that his wife had left him—cannot be taken seriously.
The other point mentioned earlier and on which counsel for the appellant relied was that the plaintiff had to bring himself within the terms of the policy. No doubt that is so and there must be evidence that Ross' death resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause. It was suggested that this required the plaintiff to show that the fire itself was started accidentally. This is a fallacy. The plaintiff was required only to produce such evidence that would warrant a court in finding that Ross' death, which undoubtedly occurred by reason of the fire, resulted from a bodily injury that was effected solely through an accidental cause; no question arises as to the cause being external and violent. The fire may have been started innocently by Ross, or innocently or intentionally by some one else. So long as Ross did not start the fire with the intention of committing suicide or place himself in the barn with that intention after a fire had been otherwise started, the plaintiff must succeed.
The appeal should be dismissed with costs.
Taschereau J.—The plaintiff, Henry Peter Schlitt, is the administrator of the estate of George E. Ross who died in tragic circumstances, and, in such capacity, he brought action against The New York Life Insurance Company, and based his claim on the following relevant paragraphs of the insurance policy, issued by the appellant on the life of the deceased:—
NEW YORK LIFE INSURANCE COMPANY
A MUTUAL COMPANY
AGREES TO PAY
to Lottie Ross, mother of the insured (with the right on the part of the Insured to change the Benefice try in the manner provided in Section 7) Beneficiary Sixty-Eight Hundred Fifty Dollars (the face of this Policy) upon receipt of due proof of the death of George E. Ross the Insured before December 9th, 1957 (hereinafter called the maturity date); or Thirteen Thousand Seven Hundred Dollars (Double the face of this Policy) upon receipt of due proof that the death of the Insured before the maturity date resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause, and that such death occurred within ninety days after sustaining such injury, subject to all the terms and conditions contained in Section 2 hereof.
* * *
SECTION 2—DOUBLE INDEMNITY
The provision for Double Indemnity Benefit on the first page hereof will not apply if the Insured's death resulted from self-destruction, whether sane or insane; from any violation of law by the Insured; from military or naval service in time of war; from engaging in riot or insurrection; from war or any act incident thereto; from engaging, as a passenger or otherwise, in submarine or aeronautic operations; or directly or indirectly from physical or mental infirmity, illness or disease of any kind. The Company shall have the right and opportunity to examine the body, and to make an autopsy unless prohibited by law.
* * *
SECTION 7
* * *
Self-Destruction.—In the event of self-destruction during the first two insurance years, whether the Insured be sane or insane, the insurance under this Policy shall be a sum equal to the premiums thereon which have been paid to and received by the Company and no more.
* * *
The appellant paid the sum of $6,850, but refused to pay the double indemnity on the ground that George E. Ross had committed suicide, and that under the terms of the policy, his death had not "resulted directly from bodily injury effected solely through external, violent and accidental cause." The trial Judge found that Ross had committed suicide and dismissed the action, but the Court of Appeal reversed this judgment and the Insurance Company now appeals to this Court.
Ross was a farmer domiciled in Wainwright, Alberta, where for many years he carried successfully his farming operations with the help of one man named Robert Thomas. The evidence reveals that he was a good worker, leading a retired life, that he was active and robust, except for an asthmatic condition of the lungs that occasionally required the care of Dr. Wallace, who was the family physician.
Ross's farm was highly mechanized, and he was the owner of a fine herd of cattle and of one team of horses, and he was very particular about his property which he kept in very good condition. The barn was equipped with an electric system.
In 1938, when he reached the age of approximately forty-five, as the result of an advertisement called "Friendship Group", which he had seen in the local newspaper, he met one Susie Klassen, who for three months acted as his housekeeper, and then became his wife. Until the date of his death, he had on several occasions quarrelled with her and although the differences seemed to be of a minor character, she threatened to leave him; but Ross's matrimonial troubles, if serious at all, did not appear to affect him, for his friends testify that he looked quite happy and pleased about his marriage.
The day previous to his death, an insignificant happening arose about the hired man who came into the house with muddy boots, to which Mrs. Ross objected strenuously, so that Thomas left the house momentarily, and was not present when the next morning the tragedy happened.
That morning Ross got up at about six o'clock, and went out doing the chores, after which he came home and had his breakfast. He then went in his wife's room and, seeing that she was in bed, asked if she was sick. He went back to the barn and returned later, asking his wife if she still had the intention of leaving him, and, receiving an affirmative reply, he said it would spoil his life and that he could not face it. His wife testifies that he talked also of different other things, that he did not look cross at all, but she could see that he felt bad. Ten minutes after he had left, the wife, who was washing her dishes, walked into the porch and saw smoke coming out of the barn, which she says was all on fire. She went to the barn, which was located at a distance of approximately seventy-five yards from the house, and shouted for her husband, but did not get any answer. She opened one of the doors, but she could not go in because the smoke was too thick. She then telephoned for help, and the first to arrive was Mr. Mudles, with some other neighbours. Corporal Miller of the Royal Canadian Mounted Police was also called, as well as Corporal Francis.
When they arrived all the upper part of the barn was burned, and, towards the south end near the centre, they found the dead body of Ross. It was lying on prairie wool and underneath it were pieces of what appeared to be parts of the ceiling, leaving the impression that the body had fallen from the loft. Although it was in a charred condition, it was identified as being the body of Ross. The two horses and the other animals were also burned, but calcinated strips of leather were on the remains of the horses, evidence that they had recently been harnessed. A gasoline can was found in the barn after the fire. It was empty, but the top was screwed on, and when Addison Thomas, the help, discovered it, he thought he would destroy it, so he ran the tractor over it and threw it in the junk pile.
With this evidence, the trial Judge found that the plaintiff as administrator of the estate was not entitled to the double indemnity, because he thought that Ross had committed suicide, but the Court of Appeal reached a different conclusion.
It was undoubtedly upon the respondent to show that Ross's death was the result of "an external, violent and accidental cause". This, I think, he has established, although the trial Judge found otherwise. This is a case where a Court of Appeal is at liberty to draw its own inferences from the proven facts, and is not bound to accept the findings of the Judge in the original Court. (Dominion Trust Co. v. New York Life Ins. Co.).[5].
All the circumstances of the case, as revealed by the evidence, lead me to the conclusion that the respondent has brought himself within the provisions of the double indemnity clause of the policy. In Jerome v. Prudential Insurance Company of America[6], Rose C.J. said: "Nothing, practically, can be proved to a demonstration, and courts act daily, and must act, upon a balancing of probabilities".
And some time before, in Richard Evans & Co. Ltd. v. Astley[7], Lord Loreburn had also said: "Courts like individuals, habitually act upon a balance of probabilities".
Here in this case, the balance of probabilities is in favour, I think, of George E. Ross having met a violent, external and accidental death, by burning in the fire which destroyed his barn.
The appellant company has alleged in its plea that Ross perished as a result of self-destruction. Suicide, although not punishable, is nevertheless a crime, and the law of evidence is that there is a legal presumption against the imputation of crime. In London Life Insurance Co. v. Trustee of the Property of Lang Shirt Co. Ltd.[8], Mr. Justice Migneault said: That there is, in the law of evidence, a legal presumption against the imputation of crime, requiring, before crime can be held to be established, proof of a more cogent character than in ordinary cases where no such imputation is made, does not appear to admit of doubt.
In the same case, Lang Shirt Co.'s Trustee v. London Life Ins. Co.[9], Latchford C.J., in his judgment at page 95 stated and quoted the law as follows:—
It is, I think, settled law that, when the death is explicable in two ways and the circumstances are equally consistent with accident or suicide, as, for instance when the assured is found drowned, without any explanation of how he happened to get into the water, the presumption against crime applies, and the insurers are therefore liable as for death by accident: Welford, Accident Insurance (1923), p. 211.
The same principle has also been applied in Harvey v. Ocean Accident and Guarantee Corporation[10], where it was held:—
If a man is found drowned, and certainly drowned either by accident or by suicide, and there is no preponderance of evidence as to which of the two caused his death, is there any presumption against suicide which will justify a jury or an arbitrator in finding that the death was accidental and innocent, and not suicidal and criminal? In my opinion there clearly is such a presumption.[11].
The appellant submitted that it has established a motive which would show that death was self-inflicted by the deliberate intention of the deceased. It is said that Ross, being of a timid and retired nature, would be unable to bear the loss of his wife and the ridicule that would fall upon him, if she left him. The threats which never materalized, made by Mrs. Ross that she would leave her husband, must not be given too much weight. Motives are indeed very unreliable, and they cannot be classified as an accurate determining cause of human deeds, which they too often influence in different ways. Taken alone, and not coupled with other extraneous evidence, they have very little probative value, and surely those that are alleged in the case at bar do not rebut the presumption against suicide. As Lord Dunedin said in Re Arnold Estate[12]:—
Motive, however, can never be of itself sufficient. The utmost that it can do is to destroy or attenuate the inference drawn from the experience of mankind that self-destruction being contrary to human instincts is unlikely to have occurred. The proof of suicide must be sought in the circumstances of the death. Ross was a prosperous farmer who left an estate of over $40,000, and who had no financial troubles. His affection for his wife had, since a certain time, cooled down to a stage of indifference, and the grief due to the possible loss of her companionship and the alleged ridicule that her departure would cast upon him, appear to be mere conjectures that cannot allow me to say that he sought an end to his sorrows and fears in self-destruction.
I would dismiss this appeal with costs.
Rand J. (dissenting)—This action was brought for $6,850 on a policy of life insurance providing what is known as a double indemnity on death arising from accident. Liability for death alone was admitted and payment made but as for accidental death it was denied and these proceedings resulted. The trial judge found the deceased had brought about his own death and dismissed the claim. On appeal this was reversed and judgment given for the amount claimed.
The facts are somewhat meagre. At the time of his death on April 27th, 1942, the deceased was forty-nine years of age. He was a farmer in the Wainwright district of Alberta and left property consisting of more than six quarter sections of land, buildings, farm implements, cattle, etc., of the net value of approximately $42,000. The farm had been his father's and apparently he had always lived on it. He had remained unmarried until 1938. In that year he replied to an advertisement for a place as housekeeper by the woman he later married; and, after the exchange of two or three letters, she came to his home in March or the early part of April of that year. The letters on the part of the deceased had been written by Robert Thomas, a hired man, who had evidently worked on the farm continuously from some years before the death of the father. On July 31st, 1938, the deceased married the housekeeper and from then until his death they lived together, with Thomas a member of the household.
Those best acquainted with the deceased, his doctor, Thomas and others, agree in describing him generally as a capable farmer but somewhat reserved and retiring: a quiet man, who did not do much talking. He had enjoyed good health until three or four years before his death when "he seemed to get kind of asthma effects of some kind: got short of wind." The doctor described him as a "timid soul". He was peculiarly sensitive to ridicule and to neighbourhood talk, and in relation to women was shy and hesitant. He could not stand "guying" and was "touchy". We have not much to indicate the attitude or feeling between him and his wife but, from her account, their life together had been disappointing. She thought his affections had cooled towards her and at times he looked "despondent and down-hearted and fed up with life."
On several occasions she had threatened to leave but nothing of that sort actually took place. It is probably a fair inference that the wife on the one side and the deceased and the hired man on the other had gradually grown on each other's nerves. Their untidiness was evidently a source of irritation to her, which she did not hesitate to express to the hired man. On the Sunday preceding the death there was a flare-up between them on his coming into the house, as she complained, with too much dirt on his boots. He denied that and resented it. The wife declared she would leave and the hired man likewise. After a long talk with the deceased, however, he finally agreed to stay on for a few days at least. On that morning, with his work finished, he went over to friends about six miles distant, intending to return at night, but on account of rain he put off returning until the next morning. That was not unusual, however, and carried no significance.
Evidently the deceased and his wife did not speak again that day or night, although they occupied the same bed. About six o'clock the next morning, as was his practice, he got up and went outdoors, doubtless to do the chores. His wife, who had not slept during the night, prepared his breakfast and then went back to bed. The deceased returned to the house and, after eating break-fact, came to the door of the bedroom and enquired if his wife was ill. She replied no, that she was trying to get some sleep, upon which he again went out of the house. About nine o'clock his wife rose, dressed and started to wash up the breakfast dishes. While at this, the deceased came in and they had a serious discussion. He asked her if she intended to leave and she answered that she did. He spoke of the work about the house and contrasted what she did with what his mother used to do. He did not appear angry "but I could see he felt bad." Finally, "he said he couldn't—it would spoil his life and he couldn't face it" (her leaving). From these few details we must surmise his state of mind as he left her. The talk lasted but a few minutes and as he closed the door of the house again, it was the last seen of him alive.
About ten minutes later his wife, happening to go out to the back porch, saw smoke coming from all parts of the barn. She ran out, calling her husband, and went as far as the barn door which she opened but, in the thick smoke that met her, left it, turned back to the house and telephoned for help.
In the barn, which was 60' by 30', were a team of horses, two calves and three pups. The horses were in a double stall next to the double doors which opened towards the house. The loft had a good flooring throughout and was reached by a stairway running to the back, the northerly side, along the westerly wall. In it were seven or eight tons of hay, some of which was known as prairie wool. There were doors between the sections below through' which the stairway could be reached from any part.
The fire consumed the barn and contents. The body of the deceased was found near the easterly side of the double doors and underneath it were some unburned prairie grass and a small portion of the floor of the loft. The head as well as the arms and legs had been entirely burned off and identity was in part established by a watch found near the remains.
The hired man had heard of the fire and reached the home between ten and eleven o'clock at a time when the barn was still burning. In looking through the ruins he came across a can which he recognized as one which had been used for gasoline and kept in a small building between the barn and the house and a bit to the east, which housed a gasoline engine and water pump. This can lay twelve feet or so in a cross direction from the body of the deceased. Thomas had never seen it in the barn before. He picked it up and two or three days later ran a tractor over it and threw it on the junk pile. There is no doubt of his reason for so doing. When he had picked it up, however, he was not alone and some time later, in August, upon being questioned about it by the Mounted Police he produced it to them.
There was no doubt, either, in the mind of the widow as to the cause of the fire and up to and including the trial she disclaimed the insurance monies. The first coroner called was a friend of the deceased and certified the death as from accident. The matter was not allowed to rest there, however, and an enquiry later held by another coroner found death by suicide.
From the moment when the deceased left his house for the last time with the words "it would spoil his life and he couldn't face it" on his lips, until his charred remains were found in the ruins, we are left to conjecture. What actually took place was hidden behind the closed doors of the barn.
The trial judge took the issue to be whether or not the deceased committed suicide, with the onus of establishing it on the appellant. He found a motive in the fact that "he had met his wife in a rather unorthodox way which no doubt caused considerable gossip in the neighbourhood and many dire predictions of unhappy married life, now likely to be fulfilled," and he was strongly influenced by the last conversation in part quoted: that it would spoil his life if his wife left him and that he could not face it. "í take his last words to mean that he could not face the disgrace of his wife's desertion and would end his life. I find he did." In the Court of Appeal the reasons of Ford, J.A., were concurred in by Harvey, C.J.A., Howson J.A. and Shepherd J. In them the controlling view of the facts is, I think, indicated by the references to the incident of the gasoline can and the cause of the fire. Speaking of the former, Ford J.A., says:
There are, I think, many other inferences to be drawn from what the hired man did with the gasoline can he says he found in the ruins than the one that he was endeavouring to protect the reputation of his employer from the odium attached to suicide. He says that he found an empty gasoline can, which had been usually kept elsewhere, in the ruins of the barn, and that he ran the tractor over it. This action on his part as well as the expressed opinion of the widow on whose farm he and she are still living, may have been done and expressed to protect some one other than Ross as the incendiary and killer.
And of the fire:
The fact that it was not more than ten minutes after Ross is said to have left the house that the barn was on fire, with smoke coming out of every crack, the fact that it is clear that he had gone to the loft and, that if he is the one who set the fire, must have made other preparations for his alleged act, unless he had previously prepared the setting for his death, should lead to the conclusion that it was someone else who set the fire or that the fire was itself accidental. The possibility, if not probability, of the fire itself being accidental is stated in the reasons for judgment of the learned trial Judge.
There is also this observation on the possibility of suicide:
Here the "method of death," which it is said is what should be found to have been adopted by Ross, is so fantastic that it is almost unbelievable that such a man as Ross is said to have been would have planned and adopted it as the means of escape from his troubles.
Lunney J.A. reached the same conclusion. It was assumed, as a result of the presumption against it, that the onus lay upon the appellant to prove suicide in order to defeat accident.
In dealing with these speculations I should first remark that we are not at liberty to question the testimony of the widow. The trial judge, in a case in which he would properly subject her and her testimony to a keen scrutiny, believed her and, although he mentions an unattractive mannerism, he had no doubt of her veracity. As to the hired man, Thomas, not the slightest justification appears for any question of his honesty or truthfulness. We cannot, therefore, disregar