ALICE MARIE VANDEPITTE Vs. PREFERRED ACCIDENT INSURANCE COMPANY OF NEW YORK

JUDGEMENT

(1.) The appellant, Alice Marie Vandepitte, sustained injuries on 5 March 1928, owing to the motor car, in which she was a passenger and which her husband was driving, being involved in a collision with a motor car driven by Jean Berry. Jean Berry was the daughter of E. E. Berry and was driving the car which was her father's property, with his permission. As she was a minor living with her father, he was civilly liable, under S. 12, Motor Vehicles Amendment Act, 1927, of British Columbia, for injuries sustained by the appellant due to his daughter's negligence, but in the case the appellant brought her action in the Supreme Court of British Columbia against Jean Berry, claiming that she was injured by Jean Berry's negligent driving. In the proceedings, the appellant's husband, E. J. Vandepitte, was brought in as third party. On 13 June 1928, judgment was given for the appellant for $4600 and costs against Jean Berry, and for Jean Berry against E. J. Vandepitte for $2300 and costs on the basis that both drivers were negligent in the same degree. The appellant issued an execution against Jean Berry, but it was returned unsatisfied. Thereupon, on 20 May 1929, the appellant brought the present action in the Supreme Court of British Columbia, against the respondents, claiming to recover $5648.71, the amount of the judgment and costs, in virtue of S. 24, Insurance Act of British Columbia (Ch. 20 of 1925). The appellants succeeded in the Supreme Court and on appeal in the Court of Appeal of British Columbia, but in the Supreme Court of Canada the respondents' appeal was allowed, and the appellant's action was dismissed with costs throughout. From that judgment the matter comes on appeal by special leave before their Lordships. S. 24, Insurance Act (Ch. 20 of 1925), is in the following terms : "Where a person incurs liability for injury or damage to the person or property of another, and is insured against such liability, and fails to satisfy a judgment awarding damages against him in respect of such liability, and an execution against him in respect thereof is returned unsatisfied, the person entitled to the damages may recover by action against the insurer the amount of the judgment up to the face value of the policy, but subject to the same equities as the insurer would have if the judgment had been satisfied." Section 10 is as follows : "(1) Every contract by way of gaming or wagering is void. (2) A contract is deemed to be a gaming or wagering contract where the insured has no interest in the subject-matter of the contract."

(2.) Part 7 of the Act contains special provisions, relating to automobile insurance, among which is S. 152, which provides that no insurer shall make a contract for a period exceeding 14 days without a written application therefor, signed by the applicant or his agent duly authorized in writing, and sets out the particulars required : S. 153 is in the following terms : "Every policy shall contain the name and address of the insurer, the name, address, and occupation or business of the insured, the name of the person to whom the insurance money is payable, the premium or other consideration for the insurance, the subject-matter of the insurance, the indemnity for which the insurer may become liable, the event on the happening of which such liability is to accrue, and the term of the insurance."

(3.) Section 154 contains statutory conditions which are to be deemed to be part of any contract in force in the Province and to be printed on every policy, including para. 8, which reads as follows : "(1) Upon the occurrence of an accident involving bodily injuries or death, or damage to property of others, the insured shall promptly give written notice thereof to the insurer, with the fullest information obtainable at the time. The insured shall give like notice, with full particulars of any claim made on account of such accident, and every writ, letter, document or advice received by the insured from or on behalf of any claimant shall be immediately forwarded to the insurer. (2) The insured shall not voluntarily assume any liability or settle any claim except at his own costs. The insured shall not interfere in any negotiations for settlement or in any legal proceeding, but, whenever requested by the insurer, shall aid in securing information and evidence and the attention of any witnesses, and shall co-operate with the insurer, except in a pecuniary way, in all matters which the insurer deems necessary in the defence of any action or proceeding or in the prosecution of any appeal. (3) No action to recover the amount of a claim under this policy shall lie against the insurer unless the foregoing requirements are complied with and such action is brought after the amount of the loss has been ascertained either by a judgment against the insured after trial of the issue or by agreement between the parties with the written consent of the insurer and no such action shall lie in either event unless brought within one year thereafter."