1888 why the company refused to pay. Allison testifies that he delivered CONFEDERAthe policy to the deceased that he might read the conditions. He TION LIFE says: "I did not deliver it as a binding contract, and did not on ASSOCIATION that account countersign it. The policy was in my possession till OF CANADA May, 1873." v. O'DONNELL. The learned trial judge was of the opinion that Allison's memory was at fault, and believed the evidence for the plaintiff and gave judgment in his favour for $3,000. On appeal to the Supreme Court of Nova Scotia, the judgment below was affirmed and the rule nisi for a new trial discharged with costs. An appeal was then taken to the Supreme Court of Canada, where it was held, Fournier and Henry, JJ., dissenting, that the evidence established the fact that the policy had not been delivered to the assured as a complete instrument, and the company was not liable, and that the appeal should be allowed and a new trial ordered. The second trial was before McDonald, J., and a jury. On this occasion evidence was given on behalf of the plaintiff of an entry made by the assured in a cash-book of his father charging himself with the amount of this premium as having been paid by him to Allison on the 29th November, 1872, out of his father's cash. Allison having died in the meantime, his depositions at the former trial were made part of this case. The plaintiff also deposed at this trial that on one occasion he met Allison casually in the street, and that Allison had then said to him that he, the plaintiff, "had a policy now, and the money was paid," by which the plaintiff said that he understood Allison to mean that the premium had been paid. A judgment entered pursuant to the findings of the jury in favour of the plaintiff was moved against before the Supreme Court of Nova Scotia upon the ground, amongst others, of the inadmissibility as evidence of the entries in the father's cash-book, and of the conversation between Allison and the plaintiff, but after argument, the appeal was dismissed with costs. Upon appeal to the Supreme ASSOCIATION v. Court of Canada, the judgment below was set aside and a 1889 new trial ordered (Fournier and Henry JJ., dissenting), CONFEDERARitchie C.J., and Gwynne J., being of opinion that the TION LIFE policy was only delivered to the agent as an escrow, while oF CANADA Strong J., was of the opinion that the evidence of the entry O'DONNELL. in the books of the deceased was improperly admitted. Gwynne J., also discredited the evidence of the plaintiff as to the admission by Allison, a fact not alluded to by him on the former trial, when the matter was open to contradiction by Allison, who had since died. The action was tried the third time before Townshend J., and a jury. In the meantime the plaintiff had died, and his counsel offered in evidence his depositions taken at the former trial, part of which was objected to by counsel for the defendants. All the evidence was admitted except that portion relating to the entries in the books of the deceased's father. The trial judge, in charging the jury, cautioned them against placing too much reliance on the testimony of the deceased's father as to the admission made by Allison of the payment of the premium, as this evidence had not been given until after Allison's death. Judgment was entered in favour of the plaintiff upon the findings of the jury, and on appeal to the Supreme Court of Nova Scotia, this judgment was affirmed. 8. H. Blake, Q.C., Beatty, Q,C., and Borden, appeared for the appellants. Weldon, Q.C., and Lyon, appeared for the respondent. The only reasons for judgment delivered were the fol lowing: STRONG J.-I am of opinion that this appeal must be dismissed with costs. When this cause came before this court on the first appeal I was of opinion that the policy was not void as a deed, by reason of the memorandum endorsed being left in blank, but I considered that the atten TION LIFE ASSOCIATION 1889 tion of the jury ought to have been directed to the circumCONFEDERA- stances of this incomplete state of the endorsed memorandum, since taken in conjunction with the evidence as to the OF CANADA non-payment of the premium, it had, as a matter of eviO'DONNELL. dence, and purely as a matter of evidence, a strong bearing on the question of the sufficient delivery of the policy, and Strong J. I therefore considered it proper that the case should be sent back to be re-tried. v. On the second appeal the jury having found, as before, in favour of the plaintiff, I should have declined to interfere with the verdict had it not appeared that illegal evidence had been admitted. For this last reason, and for that alone, I held the appellants were entitled to a new trial. As it now appears to me that there can be no question whatever that nothing but strictly legal evidence was submitted to the jury, I am of opinion that the court below were quite right in declining to set aside this, the third, verdict obtained by parties claiming under the policy against this insurance company. The whole question in the view I have always taken is one of fact and ought now to be considered as concluded. TASCHEREAU J.-This appeal must be dismissed. The jury have found that the premium was paid. They have believed the witnesses who so proved. We could not set aside their verdict, without assuming their functions. This settles the want of countersigning of the policy. The appellants cannot now invoke it. Then, this point has been determined by a majority of this court on a former appeal (a). I concur in what the judge in equity said in the court below. GWYNNE J. (dissenting).—I am of opinion that the evidence given by Edmund O'Donnell while he was plaintiff on the record as administrator of Wm. A. O'Donnell, deceased, of an admission alleged to have been made to him by one (a) 13 Can. S.C.R. 218. TION LIFE v. Allison in his lifetime, that he had as agent of the defendants 1889 received the premium upon the instrument declared on as a CONFEDERApolicy effected on his life by Wm. A. O'Donnell, deceased, ASSOCIATION was inadmissible for the reasons given by me in this OF CANADA case when last before the court, reported in vol. 13 O'DONNELL. of the Canadian Supreme Court Reports at page 228, Gwynne J. namely, that the admission, assuming it to have been made as alleged, formed no part of any transaction which Allison was conducting for or on behalf of the defendants at the time the admission, if made, was made, and that, therefore it could not be received as an admission of the defendants themselves, and it had in fact no binding effect whatever upon the defendants. It is, however, now contended that although it is admitted the evidence could not be given in evidence if Allison were alive, as it formed no part of any res gesta which he was conducting for the defendants, that which had no binding effect whatever upon the defendants during the life of Allison, acquires binding effect upon them by his death, upon the principle that, as is contended, the admission is a statement of a deceased witness who, if living, would be a good witness, made against his interest, and as such is admissible; but a little reflection will, I think, shew that this rule of evidence has no application in the circumstances of the present case, and that, indeed, on the contrary, to admit the evidence would be to subvert the rule, and the principal upon which it is founded. The principal upon which such evidence is admissible is that to prevent the ends of justice being defeated by reason of the death of a witness, a statement of the witness made in his lifetime, if such statement be made against his pecuniary interest, and be free from suspicion of collusion, shall be received as secondary evidence of the matter stated in substitution for the primary evidence upon the oath of the witness and to supply the defect arising from such primary evidence not being forthcoming by reason of the death of the person who could have given it. The statement being against the pecuniary interest of the TION LIFE OF CANADA O'DONNELL. 1889 person making it, may be presumed to be what, if alive, he CONFEDERA- Would have given upon oath. In Starkie on Evidence, pp. 64 and 66, statements of this nature are said to be admisv. sible upon the ground that if not admitted all evidence upon the subject might be excluded and that such evidence can Gwynne J. never be resorted to until the higher degree of evidence which the declarant might himself have given be shewn to be no longer attainable in consequence of his death. In Bewley v. Atkinson (aa) Lord Justice Thesiger says: The principle upon which statements of a deceased person are admissible in evidence is this, that in the interests of justice where a person who might have proved important material facts in an action is dead, his statements before death relating to that fact are admissible provided there is sufficient guarantee that the statements made by him may be taken to be true. It is obvious therefore that the statement of a deceased person against his interest who, if alive, would have to be called to testify upon his oath as to a fact in question in a cause, can only be received as secondary evidence in substitution for the primary evidence which by reason of the death of such person cannot be obtained, and that such evidence never can be received in contradiction of the primary evidence of the deceased person given in his lifetime upon oath where such evidence is forthcoming, and was given under such circumstances as make it admissible in the action in which the point in question is in dispute. A brief review of the facts, while establishing the worthlessness of Edmund O'Donnell's evidence as to the statement alleged to have been made to him, and indeed its utter incredibility, will shew that in the present case the alleged admission was not offered in lieu of primary evidence upon oath unattainable by reason of the death of a witness who could have given it; but by way of contradiction of the evidence of the witness given on oath in this very case and for the purpose of insisting that the evidence of the witness so given upon oath is untrue whereas during his lifetime no suggestion of its untruth or that he had ever made the admission now put forward was ever made. The action was commenced in 1874 by Edmund O'Donnell as administrator of Wm. A. O'Donnell, deceased. In (aa) 13 Ch. D. 283 at p. 297. |