Supreme Court of Canada
Canadian Atlantic Railway Co. v. Moxley, (1888) 15 S.C.R. 145
Date: 1888-03-15
The Canada Atlantic Railway Company (Defendants) Appellants;
and
James Templeton Moxley (Plaintiff) Respondent.
The Canada Atlantic Railway Company (Defendants) Appellants;
and
Richard Moxley (Plaintiff).Respondent.
1887: November 24; 1888: March 15.
Present: Sir W.J. Ritchie C.J. and Strong, Fournier, Henry, Taschereau and Gwynne JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Railway Company—Sparks from engine—Lapse of time before discovery of fire—Presumption as to cause of fire—Defective engine—Negligence—Examination for discovery—Officers of Corporation—R.S.O. (1877) c. 50 s. 136.
A train of the Canada Atlantic Railway Company passed the plaintiff’s farm about 10.30 a.m. and another train passed about noon. Some time after the second train passed it was discovered that the timber and wood on plaintiff’s land was on fire, which fire spread rapidly after being discovered and destroyed a quantity of the standing wood timber on said land.
In an action against the company it was shown that the engine which passed at 10:30 was in a defective state, and likely to throw dangerous sparks while the other engine was in good repair and provided with all necessary appliances for protection against fire. The jury found, on questions submitted, that the fire came from the engine first passing, that it arose through negligence on the part of the company, and that such negligence consisted in running the engine when she was a bad fire thrower and dangerous.
Held, affirming the judgment of the Court of Appeal, that there being sufficient evidence to justify the jury in finding that the engine which passed first was out of order, and it being admitted that the second engine was in good repair, the fair inference, in the absence of any evidence that the fire came from the latter, was that it came from the engine out of order, and the verdict should not be disturbed.
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Held also, Henry J. dissenting, that the locomotive superintendent and locomotive foreman of a railway company are “officers of the corporation” who may be examined as provided in R.S.O. (1877) c. 50 s. 136 and the evidence of such officers as to the conditions of the respective engines and the difference as to danger from fire between a wood burning and a coal burning engine, taken under said section, was properly admitted on the trial of this cause; and certain books of the company containing statements of repairs required, on these engines among others, were also properly admitted in evidence without calling the persons by whom the entries were made.
APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment of the Divisional Court by which the defendant’s rule nisi for a new trial was discharged.
These are actions against the Canada Atlantic Railway Company for damages by fire to the land of the respective plaintiffs, caused by sparks from an engine of the company which passed such lands on August 19th, 1884.
The pleadings in the actions were similar and were as follows:—
STATEMENT OF CLAIM.
1. While the plaintiff was possessed of certain growing wood, timber, cord wood, fences, meadow, pasture and surface soil in and upon the plaintiff’s land near to the defendants’ railway and the defendants were possessed of a certain locomotive engine containing fire and burning matter which engine was being driven along the said railway near to the plaintiffs’ said land under the management of the defendants the defendants so negligently and unskilfully managed the said engine and the fire and burning matter there
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in contained, and the said, engine was so insufficiently and improperly constructed that sparks from the said fire and portions of the said burning matter escaped from the said engine by and upon the plaintiff’s land thereby setting on fire and destroying the said growing wood timber, cordwood, fences, meadow, pasture and surface soil, and the plaintiff lost the use and enjoyment of the same.
The plaintiff claims $1,000 damages.
The following are the particulars under the plaintiffs statement of claim:—
1. The damage occurred upon Lot number 15, in the 5th Concession, Ottawa Front, of the Township of Gloucester, in the County of Carleton.
2. The setting on fire took place on or about the 19th day of August ultimo, A.D. 1884, between the hours of eleven o’clock in the forenoon and twelve o’clock noon, or thereabout.
3. The locomotive engine, at the time of such damage, was proceeding toward the city of Ottawa.
STATEMENT OF DEFFNCE.
1. The defendants say that they are not guilty by statute 31 Vic., c. 68, s. 21 D.; 34 Vic., c 47, D.; 42 Vic., c 9, s. 27 D.; 42 Vic., c 57, D.
JOINDER OF ISSUE.
The plaintiff joins issue upon the defendants’ statement of defence.
Delivered the 8th of October, 1884.
On the day in question two trains of the company passed the place where the fire occurred and the fire was not discovered for some twenty minutes or more after the last train passed. The evidence given at the trial showed that the last train that passed was in good order and that the other was defective, and that there was an interval of an hour and a half between them. The plaintiff claimed that the first engine was the cause
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of the fire, which smouldered until it broke out as discovered, and the jury so found. The company say that if either engine caused the fire it was the last and that as the origin of the fire was largely speculative there was no evidence to warrant the verdict. It was also claimed that certain evidence of employees of the road was improperly admitted.
The Divisional Court upheld the verdict and refused a new trial and their decision was affirmed by the Court of Appeal. The company then appealed to the Supreme Court of Canada.
Chrysler for the appellants.
It is incumbent on the plaintiffs to prove the origin of the fire, which has not been satisfactorily done. The authorities show that there can be no presumption against the company when such a length of time has elapsed between the passing of the train and the discovery of the fire. McGibbon v. Northern and North Western Ry. Co.; Canada Central v. McLaren; N. B. Ry. Co. v. Robinson; Smith v. London and S. W. Ry. Co.; Jaffrey v. Toronto, Grey and Bruce Ry. Co.
Certain employees of the company were examined for purposes of discovery under R.S.O. ch. 50, sec. 156. The reception of their depositions was objected to at the trial and should not have been received. A portion of the depositions contained expressions of opinion by the deponents and such evidence is not contemplated by the statute. Goring v. London Mutual Fire Ins. Co.
It is said that we cannot object to this evidence as we allowed the witnesses to be examined. That is not so. De Brito v. Hillel, Fleet v. Perrins.
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The admissibility of such evidence is also dealt with in the following cases; Moore v. Boyd; Court v. Holland; Proctor v. Grant; Douglass v. Ward.
McCarthy Q.C. and Mahon for the respondents. As to the claim that the verdict is against the weight of evidence we can only repeat what has been said in two previous cases in this term, that a second appellate court will not reverse the findings of the jury, affirmed by the Divisional Court and the Court of Appeal.
On the general question of the liability of railway companies for negligence under circumstances such as the present and where the onus lies to prove such negligence see Vaughan v. Taff Vale Ry, Co.; Pigott v. Eastern Counties Railway Co.; Fletcher v. Rylands; Pollock on Torts; Addison on Torts; Freemantle v. London & North Western Ry. Co.; Dimmock v. North Staffordshire Ry. Co.; Cooley on Torts; Canada Central v. McLaren.
At the trial the depositions of the employees were objected to as a whole but no objection was taken to the particular portions which might be considered inadmissible. This practice is dealt with in MacLennan’s Judicature Act; And see Mathers v. Short.
SIR W.J. RITCHIE C.J.—(His Lordship read the pleadings in the case and continued:)
These are appeals from the judgment of the Court of Appeal. The actions are to recover damages to the crops, timber and soil of two farms adjoining one
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another, occasioned by a fire which the respondent alleges occurred through the negligence of the defendants in the management of one of their locomotive engines, passing along the defendants’ railway adjoining the land in question. The actions were tried together by consent; the amount of damages was agreed on in the event of the defendants’ liability being established.
The question submitted to the jury was: Did the fire arise from any negligence on the part of the company? And the jury found that it did. This verdict was sustained by the Queen’s Bench and Common Pleas Divisional Courts and by the Court of Appeal, Mr. Justice Burton alone dissenting.
The contention of the plaintiffs is that No. 4 engine which passed was defective, out of order and threw dangerous fire; that in passing along the track at the place in question fire was thrown from the engine, caught, smouldered, was blown into a flame and did the damage. The company say the evidence offered was insufficient to establish that fact, and that after No. 4 passed, and before the fire was discovered, another engine had passed by, about noon, and so long a time after No 4 had passed that the jury would not be justified in saying that the fire escaped from No. 4 which caused the damage. It was assumed, on the trial and on the argument, that this latter engine was in good repair and in proper working order; at any rate no evidence to the contrary was adduced. On the other hand, all the judges of all the courts agreed, that there was sufficient evidence to justify the jury in finding that No. 4 engine was out of order.
The regular time for passing Eastman station, near the farms of the plaintiffs, for the freight train was 11.30 a.m. and for the passenger train 12.01 p.m. On the 19th of August, 1884, the trains passed at or about
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the regular times, and some short time after the passenger train passed the fire was seen bursting up. Is it to be assumed as an incontrovertible fact that another train having passed, and the fire not having been discovered until an hour after when it appeared in full blaze, entirely rebuts any inference that the fire could have been caused by the first train? If No. 4 only had passed, in an improper condition with respect to fire throwing, and no other train had passed before the fire was discovered, could any reasonable jury have come to any other conclusion than that the fire, though not discovered for an hour, was caused by sparks from this improperly conditioned engine? It appears to me this would have been an almost irresistible inference of fact. How, then, is this met by showing that a train in perfect order passed about an hour afterwards and some quarter or half an hour after that the fire was seen blazing up?
Mr. Justice Burton, the only dissentient judge, was of opinion that there was no evidence to go to the jury, and that the learned judge should have non-suited the plaintiffs. He does “not question that there was evidence of the alleged faulty construction of engine No. 4 which could not have been withdrawn from the jury”; “but,” he says:
There is not a particle of direct evidence to show what caused the fire. No doubt, if the fire had broken out shortly after the passing of engine No. 4, no other cause for the fire being shown, the jury might properly enough have been asked to draw the inference that sparks from that engine had caused the fire. But I entertain a very strong opinion that no such inference should or ought to be drawn when it was shown that no trace of fire was seen until after the passing of the second engine, upwards of an hour subsequently, in an exceptionally dry season, and that it was discovered some 10 or 15 minutes after the passing of that second engine, it being common knowledge that all engines do emit sparks and cinders which might have caused the injury, notwithstanding that they are of the best construction and are worked without negligence.
And he was compelled to hold that it was a pure
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question for the judge.
On the contrary, I think the evidence in this case could not properly have been withdrawn from the jury, being of opinion there was evidence to go to the jury in support of the respondents’ case. I cannot look upon it as a mere matter of speculation as to which engine the fire came from, but a fact to be determined, resulting from the direct evidence and the fair and reasonable inferences to be drawn therefrom. The jury being justified in finding No. 4 out of order and throwing fire badly, and it being assumed on both sides that the engine of the regular train was in order, I think the fair inference, in the absence of any evidence that the fire came from the regular train, would naturally be that it came from the engine out of order rather than from the one in order.
But Mr. Justice Burton seems to think that the time between the passing of No. 4 and the passing of the regular train admitted to be in good order, and the discovery of the fire after the passing of the latter, was an answer in law to the plaintiffs’ case, thus turning what should, in my humble opinion, in view of all the surrounding circumstances, be a presumption or inference of fact into a proposition of law. The defective state of engine No. 4 and it being a wood burning engine and its cinders more likely to do damage than a coal burner; the perfect state of the engine on the regular train and it being a coal burner and its cinders less likely to do damage; the length of time between the passing of the respective trains and the time the fire was discovered; the condition in which it was first seen; the state of the wind; the nature and character of the ground on which the fire broke out; and the reasonable probability of it smouldering, were all, in my opinion, matters for the jury and could not be withdrawn from their consideration; for who,
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as the judge suggested, bringing their common knowledge to their assistance in relation to such affairs, could be so capable of arriving at a correct conclusion as to whether the fire was caused by one or the other of the engines and, if so, by No. 4, a conclusion to be arrived at dependent as well on direct evidence as on presumptions or inferences of fact, and, therefore, the learned judge was, in my opinion, right in refusing to non-suit, and the jury having found in favor of the plaintiffs I think the verdict should not be disturbed.
I think the evidence of extracts from the repair book kept in the appellants’ offices of entries of repairs required by engine No. 4, which is alleged to have caused the damage, were admissible in evidence. I was a little doubtful as to the admissibility of Donaldson’s deposition but I cannot say that any wrong or miscarriage has been caused thereby. I cannot think the verdict would have been at all affected by the rejection of this evidence.
STRONG J.—Concurred in the judgment of Mr, Justice Gwynne.
FOURNIES J.—Concurred in dismissing the appeal
HENRY J.—I have had a good deal of difficulty about this case in more respects than one. The plaintiff in all actions for negligence in which damages have resulted to him is required to prove the negligence. Now we all know that in running railways through this country in dry seasons sparks will come, and we know they will be carried to another portion of the country and remain lighted for a long time and when falling to the ground set fire to combustible substances. There is this difficulty here. There is no evidence at all that the fire was there when engine No. 4 passed. That is the engine that has the bad charac-
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ter. And there is no evidence that any sparks from that engine caused the fire. The engine that passed an hour afterwards might possibly have emitted sparks which caused the damage. If so the company would not be liable as that engine was provided with the necessary appliances for protection from fire.
We have to assume a good deal in this case. We must assume that the fire was there when the second engine passed, and had been smoldering there for over an hour.
I think that in a case of this kind, depending on circumstantial evidence, the rule is that the plaintiff is bound to prove the reasonable absence of any other cause. I am not going so far as to say that the plaintiff has not done that in this case, and am not in favor of reversing the judgment and setting aside the verdict of the jury, but I feel bound to express the difficulty I have had in arriving at a conclusion.
As to the engine No. 4 there is a difference between the evidence for the plaintiff and that for the respondents. That is a matter for the jury and no court will set aside their finding. But there was evidence admitted which I think should not have been received. The depositions of parties on matters of opinion were improperly received. It is hard to say what effect an affidavit such as Donaldson’s would have on the jury, or whether it did not influence their verdict. If improper evidence has been received which might have influenced the jury, and there was not sufficient evidence independent of it, the verdict should be set aside. I have looked into the case and think there was sufficient evidence without this deposition. While expressing this doubt still I concur with the majority of the court.
TASCHEREAU J.—I am of opinion that this appeal should be dismissed. I have read the judgment pre-
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pared by Mr. Justice Gwynne and concur in the views expressed by him.
GWYNNE J.—By the rules nisi issued at the instance of the defendants in the Divisional Courts of the High Court of Justice for Ontario in which the above actions were respectively brought, the discharge of which rules is the subject of the present appeals, it was ordered that the respective plaintiffs should show cause why the verdict and judgment for the plaintiff obtained in the said respective actions should not be set aside and judgment entered for the defendants or a new trial had between the parties on the grounds following:
1. That the verdict is contrary to law and evidence and the weight of evidence.
2. That there was no evidence to go to the jury in support of the plaintiffs’ claim.
3. That there was no sufficient evidence that the fire which ignited the plaintiffs’ property came from the defendants’ locomotive number four.
4. That there was no evidence of negligence on the part of the defendants either in the construction or management of the said locomotive.
5. And on the ground of the improper reception of evidence of the depositions of Moxley, Donaldson and James Ogilvie and of entries in the books of the defendants made subsequent to the fire, and of entries in the said books before and after the said fire, without calling the persons who made the said entries or proving their authenticity, and upon the grounds that the said entries are not evidence against the defendants of the facts alleged therein.
The verdicts and judgments in favor of the plaintiffs had been rendered upon the answers of the jury to three questions submitted to them, which questions
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and answers were as follows:—
QUESTIONS.
1. What was the cause of the fire?
2. Did the fire arise through any negligence on the part of the company?
3. If you say yes state what, in your opinion, was the act of negligence?
ANSWERS OF THE JURY.
To the first of the above questions they answer
We agree in the belief that the fire came from engine No. 4.
To the 2nd question they answer
We believe it did.
And to the third they say
The act of negligence on the part of the company consists in running engine No. 4 when, according to their own reports, she was a bad fire thrower and dangerous.
Now as to entering a non-suit or a judgment for the defendants it is quite impossible that the contention of the defendants should have prevailed. There was evidence that the fire took place within an hour and a half after a locomotive engine of the defendants, which was a wood burner and known as engine No. 4—and within 30 or 40 minutes after another engine of the defendants which was a coal burner and known as engine No 406—had passed the place where the fire originated; the evidence also showed that it originated on the defendants’ property and within the distance of about 20 feet from the railway track—that there was no apparent cause from which the fire might have originated other than those locomotives—that in the same month in which this fire occurred, and previously thereto, fire had taken place frequently along the track after the defendants’ cars had passed, which the witness who testified thereto had himself put out. It was also proved that engine No. 4 had been repeatedly reported between the 1st of June and the 19th of August, on which latter day the fire occurred, by the engine driver, whose duty it was to cause such report
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to be entered in a book of the defendants kept for the purpose, as wanting repairs. On the 14th June she was thus reported:
Smoke stack netting wants examining. Elbow on R.H. flue pipe leaking. Side-rod brasses want reducing on R. S. on back crank pin.
and on the 22nd July, thus:
Netting on smoke stack wants examining, throws fire bad. Whistle pipe that screws into dome leaking. Boiler wants washing out.
There was evidence that in consequence of this latter report some repairs were done to the netting, but the engine, which was an old one, was again reported in like manner on the 1st, 8th, 21st and 23rd of August as requiring divers repairs, not, it is true, pointing to the smoke stack netting, but on the 28th August she was reported again as follows:—
Big and little end brasses on left hand side wants reducing and lining up. Bonnet on top of smoke stack wants examining—throws fire bad.
The depositions of the defendants’ locomotive foreman taken before the trial under an order in that behalf made pursuant to section 156 of ch. 50 R.S.O. were also read in evidence. In those depositions he had deposed among other things that:—
There is a cone 24 inches in diameter in engine No. 4. Pieces of charcoal may be forced into the bonnet and after striking the cone and rebounding may wear holes in the netting. The wearing away of the netting is commoner in a coal burner than in a wood burner. A’ larger quantity of fire will escape from a wood-burner than from a coal burner. If in proper order the wood burner is as safe as a coal-burner. If a wood-burner is kept in good order it should not throw dangerous sparks. The cylinder in No, 4 is 15¼ inches in diameter by 26 inch stroke. The diameter was increased ¼ of an inch when repaired—when new it was 15 inches—there are two exhaust nozzles of 2⅝ inch diameter—that is the inside diameter of the outlet. We vary the size of the exhaust nozzle. The exhaust nozzle of No. 4 has not been varied. By making the exhaust nozzle smaller you create a greater vacuum in the smoke box and you increase the draught on the fire. If the exhaust nozzle of the engine is too small it will cause a back pressure on the engine. You have to be particular to the one-eighth of an inch in the exhaust nozzle.
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If the nozzle is smaller than it should be a pressure will be created and a stronger draught on the fire tubes, and the air of the fire tubes stronger and the lip of the fire particles greater and the tendency will be to throw more unburned fuel into the smoke stack.
This witness being called by the defendants at the trial testified, among other things on his cross-examination, that a perforated cone which this engine No. 4 had was harder on the netting than a solid cone—that this netting would wear out sooner over the perforated cone than over the solid one; and being asked what was the effect of enlarging the cylinder and leaving the exhaust pipe the same size it had been before the enlargement of the cylinder, he said that the effect was to make the engine steam freer, but that it would give more forcible draught up the petticoat pipe and would have the tendency to throw the sparks with more force against the bonnet.
Now, it is impossible for us to hold that this evidence, assuming it to have been properly received, was wholly insufficient to warrant the case being submitted to the jury, and that therefore the plaintiff should have been non-suited; it is equally impossible to hold that upon the findings of the jury in answer to the questions submitted to them judgment should be entered for the defendants. So likewise is it impossible for us to interfere with the findings of jury as against the weight of the evidence. Unless we could say that it was impossible for the fire to smoulder for the space of about an hour and a-half before it was observed, as it was, we cannot say that the jury have arrived at a wrong conclusion in attributing the fire to the engine No. 4, which was proved upon more occasions then one to throw fire badly. Nor can we say that the jury were not justified in concluding that upon the 19th of August she may have been as defective in this particular as she appeared to be on the 22nd July, and on the 28th August notwithstanding the
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repairs done on the 23rd of July. It is impossible to say that the evidence so strongly preponderates against the finding of the jury as to lead to the conclusion that they have either wilfully disregarded the evidence or failed to understand it.
The sole remaining question is as to the motion for a new trial on the ground of the reception of the evidence of the depositions of Moxley, Donaldson and James Ogilvie, officers of the defendant company taken under the order issued in pursuance of the 156 sec. of ch. 50 R.S.O., and of the entries in the defendants’ books as to the condition of the smoke stack netting of the engine No. 4. As to the depositions the only objection taken was as to those of James Ogilvie for the reason, perhaps, that as Donaldson does not appear to have been examined as fully as was Ogilvie, his depositions were not deemed to be of much importance. The objection taken to Ogilvie’s deposition being read was merely that a locomotive foreman, which Ogilvie was, does not occupy such a position as would make his evidence binding on his employers. The statute under which the depositions were taken enacts that:—
Any party to an action at law whether plaintiff or defendant may at any time after such action is at issue, obtain an order for the oral examination upon oath before a judge or any other person specially named by the court or a judge of any party adverse in point of interest, or in the case of a body corporate of any of the officers of such body corporate touching the matters in question in the action.
The statute also provides that the officers of a body corporate so examined may be further examined on behalf of the body corporate of which he is an officer in relation to any matter respecting which he has been examined in chief, and that the depositions shall be taken down in writing by the examiner, and when completed shall be read over to the party examined and shall be signed by him in the presence of the parties, or of such of them as may think fit to attend, and that
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the depositions so taken, whether they be the depositions of a party to the action or of an officer or officers of a body corporate party to the action, who was or were examined in the place of and for the corporation, should be returned to and kept in the office of the court in which the proceedings are carried on, and that office copies of such depositions might be given out, and that the depositions certified under the hand of the judge or other officer or person taking the same, or a copy thereof certified under the hand of the clerk or deputy clerk of the crown or clerk of the county court, as the case might be, should without proof of signature be received and read in evidence saving all just exceptions. The only difference between this provision of our statute and that of the English Judicature Act in like case is that with us the examination takes place vivâ voce, in England upon interrogatories. The principle upon which the examination is authorized and the depositions taken upon it are received in evidence is thoroughly explained by Sir George Jessel, Master of the Bolls, in Church v. Wilson. The practice is there shown to have been adopted as a great improvement upon the old equity device for obtaining evidence to be used in a common law suit by a bill of discovery. He there says:—
The defect of the old common law system was that it did not allow you in an ordinary action at law to obtain discovery from your opponent, and equity therefore invented the bill of discovery in aid of the plaintiff in the action or of the defendant in the action and gave that discovery and, of course following its own rules as applied to actions at law, it gave a similar remedy where it was a suit in equity. Then came this difficulty, that a corporation, answering not on oath but under their common seal, you could not indict the corporation for perjury and you could not therefore have the usual remedy or sanction whiih enabled you to rely on the discovery, and so to avoid that, the courts of equity allowed you to add an officer of the corporation as defendant to make him answer on
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oath, because according to the then procedure you could not interrogate him in any other way. In process of time the legislature, thought fit to get rid of the necessity of resorting to courts of equity for discovery by empowering the courts of law to give discovery in common law actions. Then what did the legislature do? It did not adopt the method which was adopted by the courts of equity in suits in equity—that method was both cumbrous and expensive; what it did was this—by enacting the provisions of the 51st section of the Common Law Procedure Act of 1854, which is almost in the words of the provisions of order 31, rule 4: that is recognizing the impropriety of making the officer a party to the action of common law it enabled the person requiring a right to discovery, to get an order to examine the proper officer on interrogatories. Then of course the parties to the action paid all the costs of the proceedings and the officer gave discovery and had nothing further to do with the action. When the legislature inaugurated a totally new system of pleading and established a new court of justice—for that is what the High Court is the first question was, what system should they adopt in it, as there must be but one system for all kinds of action whether common law actions or equity actions, and they adopted the rule which had been adopted in common law actions, and that is the rule inserted in the schedule to the act.
Then again in the Attorney General v. Gaskill, the same learned judge says:—
One of the great objects of interrogatories when properly administered has always been to save evidence, that is, to diminish the burden of proof which was otherwise on the plaintiff. Their object is not merely to discover facts which will inform the plaintiff as to evidence to be obtained, but also to save the expense of proving a part of the case.
Then in Berkeley v. Standard Discount Co.; the same learned judge says:—
We have had a long experience under the Common Law Procedure Act of 1854. The only difference between the present rule and section 51 of the Common Law Procedure Act is that in addition to the word “officer” you have “member,” but why should this make any difference? * * *
I am by no means disposed here to lay down any rules which will fetter the discretion of any other judge, but I will state that my own practice has been not to direct a “member” if it be shown there is an “officer” who could answer; that is, who had a competent knowledge of the facts. Secondly, I always require to
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see that the interrogatories are not served on a person who has not the means of answering. But the fact is that the company is served with the application, and the company has as much interest as any body else in seeing that the proper man should answer, because the effect of the answer may be very serious as regards the position of the company. The ordinary practice, I believe, is for the company’s solicitor to act for the officer or member, who is directed to answer and to prepare the answer for him, with the usual advantages which are possessed by the solicitor of the company, and to charge the company with the cost of so doing. I by no means desire to en courage the employment of a separate solicitor in such a case as this. The defendant here is the company and the person interrogated is making discovery on the part of the company.
It was, therefore, decided that the person interrogated who had been, but was no longer a director of the company, had no right to refuse to answer the interrogatories until he should be paid his costs of so doing.
In the same case Thesiger L.J. says:—
The rule upon which the question turns is nothing more or less than an extension of section 51 of the Common Law Procedure Act of 1854, and is, I think, intended to be worked in the same manner in which that action was worked. It is apparent, he says, that the examination by interrogatories which is to take place is not any examination distinct from the examination of a party to the action, but is, as was the case of the officer under the Common Law Procedure Act, an examination of some one who may be called upon to answer as an alter ego of the corporation inasmuch as the corporation cannot itself answer.
And again he says:—
Now in practice under the Common Law Procedure Act the application was made in chambers against the company, and if they had any objection to the interrogatories the company appeared by their solicitor, but the officer never appeared.
Now, that the locomotive superintendent and the locomotive foreman were the officers of the company most competent to speak to the condition of the locomotives of the company, and their ability to prevent the escape of fire, and therefore the fittest persons to have been submitted to examination under the statute upon a question of that character, cannot, I think, admit of a doubt; and if there were any it is removed by the fact that the defendants themselves called the locomo-
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tive foreman and examined him largely upon the same question, and he was, in fact, the only witness whom they did examine upon that question. Then, as to the entries in the defendants’ books as to the condition of engine No. 4, these entries, having been made in a book kept for the express purpose of calling the attention of the mechanical department to something required to be done and having been caused to be made in the book by the driver of the engine whose duty it was to make the entries or have them made, were admissible in evidence. The book in which the entries were made was one which the defendants were bound to produce, and consequently did produce upon an application for inspection of documents in the defendants’ possession containing entries relating to the matter that was in issue. The point, however, of this objection was wholly removed by the defendants themselves having called the driver of the engine No 4, who, although he gave his evidence in a very unsatisfactory manner, a manner which showed the importance in the interest of justice of the entries being themselves received as sufficient evidence of the facts stated therein, could have left no doubt upon the minds of the jury that as he himself could not write he caused the entries to be made in the book for him by some other person or persons who could write, and the mechanical foreman testified that the entries were all seen by him at the respective times of their being made, and were attended to. It was for the jury to say with what effect, having heard all that he said upon the subject.
The appeal must, in my opinion, be dismissed with costs.
Appeal dismissed with costs.
Solicitors for appellants: Stewart, Chrysler & Godfrey.
Solicitors for respondents: Mahon & O’Meara.
R.S.O. (1877) c. 50 s. 136. Any party to an action at law, whether plaintiff or defendant, may at any time after such action is at issue obtain an order for the oral examination * * * in case of a body corporate, of any of the officers of such body corporate touching the matters in question in the action.
11 O.R. 307; 14 Ont. App. R. 91.
L.R. 1 Ex. 265; L.R. 3 H.L. 330.
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