I beg to move that all the words after " insurance " in line 35 of subsection 2 of section 388 be struck out. I pointed out last evening that if a barn, we will say, had been destroyed by fire and the insurance collected from an insurance
company, but not to the full value of the damage done, the owner of the barn could not sue the railway company for the balance, if in the meantime it had been found that the fire was started by a defective locomotive.
At common law the fact of a man having his barn insured does not prevent him from bringing an action against the man who sets fire to it. If the hon. member for Carleton (Mr. Carvell) and the hon. member for Kingston (Mr. Nickle) are satisfied with this amendment I shall make no objection, but we should be very careful when making changes in the law as to the rights of a man who has insured his property.
Of course, this is purely statutory; we are providing a liability against the railway company. We say that the railway company is liable up to the amount of $5,000, no matter whether they have used the proper appliances or not. I remember when, under the old law, one almost had to look down the smokestack of the engine to find out whether the spark arrester was working. If I have insurance upon my property, I ought not, in case of loss, to be allowed to get the full amount of my insurance and then collect full damages from the railway company; the two put together ought only to make good my loss. The contention of the member for South Ontario (Mr. Smith) is, as I understand it, that under the present law, if you accept the insurance, you have no right to look to the railway company for
the balance. If that is a true interpretation of the statute, I do not think it is right.
The member for South Ontario informs me that he has been asked by the local insurance companies to request that the words in question be eliminated from this subsection; that he has consulted with the best legal talent available, who assure him that if they are removed, the claim which the member for South Ontario has made in committee will be allowed.
In order to expedite matters, I am willing that these words be struck out. If on the third reading we find that we are in error, we may be able to reinstate them. I must confess that it is hard to sit down here in committee and read over an intricate section of this kind and make up your mind as to its true interpretation.
It appears to me that it is hardly sufficient to limit the liability of the railway company at $5,000. It is true that in some instances that amount may be sufficient, but in others it may not. If a property worth $10,000 or $12,000 was destroyed by fire caused by a locomotive, and the property was insured for $3,000, what recourse would the loser have? He could only go ,to the railway company. I think that the amount of $5,000 should be increased to $10,000 in order to protect sufficiently those who suffer damage by fire caused by locomotives. I hope this suggestion will be taken into consideration by the committee, because the matter is important to any one whose property is located near a railway line.
Mr. 8EXSMITH: Many valuable buildings are situated close to railway lines. I think it is highly improper that the amount of liability should be limited to $5,000.
In case of fire, the claimant would have to prove that the railway company caused the fire. I do not see why a man whose loss amounted to $10,000 or $20,000 should be unable to receive from the railway company more than $5,000 because of this limitation. '