Supreme Court of Canada
William Hamilton Manufacturing Co. v. Victoria Lumber & Manufacturing Co, (1896) 26 S.C.R. 96
Date: 1896-03-24
The William Hamilton Manufacturing Company (Plaintiffs) Appellants;
and
The Victoria Lumber and Manufacturing Company (Defendants) Respondents
1896: February 26; 1896: March 24.
Present: Sir Henry Strong C.J., and Taschereau, Gwynne, Sedgewick, King and Girouard JJ.
On Appeal from the Supreme Court of British Columbia
Warranty—Defect in construction—Satisfaction by acceptance and user—Variation from design—Demurrage—Evidence—Onus of proof—Expert testimony—Concurrent findings reversed.
In an action where the defendants counter-claimed damages caused by the defective construction of a boiler for their steamer, which had collapsed.
Held, reversing the decision of the Supreme Court of British Columbia, that conclusive effect should not be given to the evidence of witnesses, called as experts as to the cause of the collapse, who were not present at the time of the accident ; whose evidence was not founded upon knowledge but was mere matter of opinion ; who gave no reasons and stated no facts to show upon what their opinion was based and where the result would be to condemn as defective in design and faulty in construction all boilers built after the same pattern which the evidence showed were in general use. The judgment therefore allowing the counter-claim was set aside though against the concurrent findings of two courts below.
APPEAL from the decision of the Supreme Court of British Columbia affirming the judgment of the court below allowing damages upon the respondent's counter-claim for cost of repairs and varying the same by adding further damages for demurrage on their steamer " Daisy " while the repairs were being made,
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the whole to be set off against appellant's principal claim to the extent for which judgment was recovered in the action.
The original action was brought by the appellants to recover the price of machinery furnished by them to the respondents, and on the admission of respondents judgment for $1,251 was rendered in their favour. The respondents, however, counter-claimed against the appellants for damages by reason of the defective construction of a marine boiler which they had ordered from appellants and paid for prior to the action. The damages claimed were for repairs to the boiler $979.03 and for demurrage on the steamer " Daisy " during the time she had been laid up for repairs, at the rate of $30 per day, $1,590, making a total of $2,569.03.
The respondents carry on a lumber manufacturing business at Chemainus, B.C., and employ their steamer " Daisy " for the towing of logs and conveying supplies to their lumber camps on the coast of Vancouver Island ; they also have a passenger carrying permit. The facts as to the ordering of the boiler and the questions at issue fully appear in the judgment of the court pronounced by His Lordship Mr. Justice Sedgewick.
The trial judge found that the appellants had contracted to supply the boiler according to a design furnished by the respondents, that they had not followed the design in building the boiler, and that it collapsed in consequence of defective construction and not through any neglect of the respondents. He further found that a statement to the effect that the boiler would be " made all right " in discussing the changes in construction by the general manager and vice-president of the company, appellants, was an express warranty and allowed the cost of the repairs, but <<missing>> allowed the claim for demurrage as being too remote. An appeal against this judgment was taken by the
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present appellants and also a cross-appeal by the respondents claiming the demurrage which had been thereby refused. The appeal was dismissed by the full court, and the cross—appeal allowed, the damages claimed for demurrage being fixed at $397.50 which appeared to be the profit which the " Daisy " would have made towing logs instead of another steamer which had been engaged for that purpose during the time she was idle.
Aylesworth Q.C. and Dumble for the appellants.
There were no specifications furnished, but only a plan or sketch of the proposed boiler drawn by the engineer or fireman of the respondents, and owing to defects observed in this plan one more in accordance with the style of boilers in general use was substituted. Respondents accepted it after full inspection and with knowledge of the deviations, and put it into their steamer.
There was no express warranty given. The " collapse " was not due to any variation in the design. There has been no breach of implied warranty. The accident more probably resulted from causes immediately under the control of those in charge of the boiler through contributory negligence, or from natural causes. No negligence or breach of warranty has been proved on the counter-claim. Reynolds v. Roxburgh ; Beven on Negligence.
The appellants were justified in the changes made and cannot be charged with negligence for following the " beaten track " in preference to the most unusual style suggested in the sketch. Strict adherence to the sketch plan was waived by the acceptance and long use of the boiler. The unsupported theory as to a hypothetical cause of the burning is not sufficient to support the charge of negligence in the face of more probable and
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Well-known causes asserted by skilled witnesses. Mere inference of want of skill is not sufficient.
Respondents were bound to show negligence and consequent injury, they must take the case out of the realm of mere conjecture and place it within bounds of reasonable certainty. It is not sufficient if the evidence be equally consistent with presence or absence of negligence. There must be affirmative evidence in support of the claim sufficient reasonably to convince a jury of the facts sought to be proved.
The damages assessed upon the counter claim are excessive and should be greatly reduced. There was no necessity for such extensive repairs. The appellants are not liable for demurrage or loss of earning power in the boat during the time alterations were in progress ; such damages are in any event too remote. The delay was not before the boiler could be made to work, but because of an accident months afterwards, and it is not reasonable to contemplate implied warranty as continuing over any length of time, however remote, or as rendering them responsible for loss of earnings. This court can judge of the facts and the value of expert testimony as well as the courts below, particularly when the bulk of the evidence was taken by commission and many witnesses were not heard orally in the court of first instance. Chapman v. Walton ; McQuay v. Eastwood ; Fields v. Rutherford ; Jackson v. Hyde ; Metropolitan Railway Co v. Jackson.
Robinson Q.C. for the respondents.
This appeal is upon mere questions of fact and the appellant must make his case sufficiently clear to justify the reversal of the concurrent findings of two courts below. North British Ins. Co. v. Tourville.
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The courts below have conclusively found breach of warranty. It is only under very exceptional circumstances that the courts will reverse against such concurrent findings on questions of fact. Hay v. Gordon . The suit here is for breach of warranty, not for negligence, and the respondents have negatived the charge of negligent use. The words " I will supply you well " were held to be warranty in Jones v. Bright. In this case the manager assured the purchasers that " if the boiler was not all right they (appellants) would make it all right." The government inspector was called in and only such repairs as he required were done, no unnecessary cost being incurred. There was breach of both implied and express warranty. The boiler collapsed while being used for the purposes for which it had been built. The respondents should recover both for repairs made and demurrage for loss of profit on the use and earnings of their vessel while the repairs were being done.
The following cases are in point : Laing v. Fidgeon ; Drummond v. Van Ingen ; Randall v. Newson; Colonial Securities Co. v. Massey.
Aylesworth Q.C. in reply.
The judgment of the court was delivered by :
SEDGEWICK J.—The appellant company had sued the respondent company in the Supreme Court of British Columbia for goods sold and delivered. At the trial before Mr. Justice Drake the amount due was agreed on and judgment was ordered to be entered accordingly.
The defendant company, however, in the same action made a counter claim against the plaintiffs, and upon that claim being investigated the learned trial judge
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found in its favour, awarding damages to the extent of $979 03 against the present appellants. Upon appeal to the Supreme Court in banc the damages so found were increased by the sum of $397.70, and it is from the judgment as a whole that this appeal is taken.
The plaintiffs are lumber manufacturers and own a steamer the " Daisy," which is used in towing lumber, &c., between the mainland and Vancouver Island. In May of 1890 Mr. Palmer, the president of the respondent company, gave an order to one William Hamilton, the president of the appellant company, for the construction of a boiler to be built at Peterborough, Ont., and to be forwarded to Vancouver, B.C., for the use of the " Daisy." There was no written contract, but with the verbal order was given a sketch or rough design of the proposed boiler, unaccompanied, however, by any detailed specifications or any details whatever except those that appear upon the sketch itself. This sketch was prepared by a Mr. Gill, who is not and never was a boiler maker, but who appears to have filled the joint offices of engineer and fireman on board the " Daisy." The sketch or design is as in diagram page 102. The appellants during the summer of 1890, in pursuance of the order so given, built a boiler and forwarded it to Vancouver for acceptance. This boiler was built according to the plan as in diagram page 103.
A comparison of the two sketches will disclose differences in the boiler as ordered and the boiler as constructed. In the former, the back upper corner of the combustion chamber or fire box is not rectangular, but of a rounded or circular shape, while the back plate inclines slightly from the perpendicular towards the fire box. In the latter, the corner is rectangular and the plate perpendicular. The first does not, however, show, except perhaps by scale, the variation from the perpendicular in the back plate. It must nevertheless
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be considerably less than one inch at the height of 4 feet 6 inches, if we are governed by the scale.
We are not without evidence as to why the change from the original design was made. That design was made, not as a working plan, but as indicative of the size and strength of the boiler required. It bore indisputable evidence that it was not the work of a skilled mechanician. It was proved that if built according to it with no more stays or bolts than therein specified, the plates at the point of curvation, instead of standing a pressure of 120 lbs. to the square inch, would stand a pressure of only 18 lbs. The manufacturers, therefore, took upon themselves the responsibility and risk of altering the design in order more fully to carry out what the owners of the steamer substantially wanted, a boiler of sufficient strength and capacity to do the required work.
The boiler was built under the provisions of the Steamboat Inspection Act, and when completed was examined by the government inspector, was submitted to the statutory hydrostatic test, showing a capacity to stand a working pressure of 128 lbs. to the square inch, and was duly certified under the statute.
The boiler arrived at Vancouver in September, and thereupon was inspected by the president of the respondent company and by Mr. Gill, who had made the design. The changes in the mode of construction were at once noticed, and thereupon these two gentlemen had an interview with Mr. Munro, the vice-president of the appellant company who happened to be at Vancouver at the time. There may be a question as to what actually took place at this moment, but I accept the respondents' contention and the finding of the trial judge, that the boiler was accepted and placed in the " Daisy " upon the faith of Mr. Munro's assurance " that if the
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boiler was not all right they (the appellants) would make it all right."
In my view, whether this assurance was given or not, the appellants were under the implied obligation to provide a boiler suitable for its intended purposes, and if, after acceptance, it turned out that it failed in that regard liability would at once attach to the manufacturers. The purchasers probably might, when they found the machine was not built in the form specified, have refused to accept it on that ground without reference to its character as a machine, but having accepted it in its altered condition they can only recover—but they can recover—if they have established that there was some intrinsic defect in it, some negligence, whether in design or workmanship.
In September the respondents placed the boiler in position, and the vessel was operated with it continuously for eight months, the price of it having been paid in the month following its delivery.
For about six months after the boiler was in use it was operated at a pressure of between 80 and 90 lbs., the safety-valve then in use blowing off at that point, but for nearly two months afterwards she was run at a pressure of 120 lbs. more or less.
On the 24th of May, when the machinery was in charge of Mr. Gill and the steamer was towing a boom of logs on the waters of the Pacific, the accident which has caused this litigation occurred. The vessel had been running all right with a steam pressure of 120 lbs. at a certain time when according to Gill there was a pressure of 118 lbs. ; he went from the engine room into the mess room, leaving no one in charge of the engine, and having fired up a few minutes previously. While away from his place he " heard a leak in the boiler." He then went back to his place of duty, lowered the steam down to 45 lbs., and at that pressure took the
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steamer with its boom of logs to harbour.
Upon examination it appeared that the leakage occurred by reason of the bulging out of the perpendicular plate at the back of the fire box, and the consequent breaking away or displacement of one or more of the rivets or stays which kept the fire box in position. In other words, the plate had become overheated or " burnt," and the pressure of steam in the water spaces was so great that the plate was forced out and the leakage occurred, the immediate cause of the accident, or the collapse as it is called, being the overheated plate. The only question therefore in controversy is as to the cause of this overheating. Was that overheating the result of some defect in construction which the manufacturers, by the exerci?e of ordinary care, might have provided against ? If so, they are liable. And the affirmative of this proposition, the respondents assert, they have established and the courts below have so held.
Now, the allegation of the respondents in their counter claim was that
the boiler and machinery was to be manufactured according to certain plans and specifications prepared by the defendants, but that the boiler and machinery was not constructed according to the said plans and specifications, and by reason of such defective construction the said boiler was not fit for the purposes for which it was required, and collapsed.
There was no suggestion of defective material or of carelessness or unskilfulness in workmanship. In fact it was conclusively proved, as well by the defendants' as by the plaintiffs' witnesses, that both the material and the workmanship were perfect. But it was contended, and that was the whole of the defendants' case, that if the boiler as constructed had had the slightly inclined plate with the circular corner, instead of the perpendicular plate and the right angled corner, the
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overheating would not have taken place.
To meet this contention a large number of witnesses were examined in the province of Ontario (their personal examination at the trial, owing to distance, was out of the question), and it was abundantly proved, not only by witnesses who had personally to do with the boiler's construction, but by many other experts as well, that the design was that in common use throughout the world ; that boilers built upon Mr. Gill's design, if the inclined plate is in fact a part of it, were practically unknown ; that the great steamships plying between Europe and this continent—the American liners—were built with the rectangular corner and the upright plate, and the suggestion was that the accident must have been the result, not of defective design, but of other causes.
When the case come on for trial the evidence taken in Ontario having been brought to the knowledge of the defendants, how was the case met ? Only two witnesses gave any professional evidence, Mr. Gill the engine man who made the design, and Mr. J. C. Thompson, the government boiler inspector, of Victoria. They practically corroborated the evidence of the Ontario witnesses as to the unusual character of the Gill design. Gill himself said that of the one thousand steamships on the Pacific coast that he was acquainted with only two had a curved top at the back of the fire box, and Mr. Thompson's experience was about the same, but they persisted in their theory that the design of the boiler as built was defective inasmuch as the side plate was perpendicular, and that had it been slightly off the right angle the accident would not have happened. " I concluded," said Mr. Gill, " the perpendicular sheet stopped the circulation and it caused the sheet to overheat ; the steam had to follow the sheet to get to the surface of the water." And in this con-
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clusion Mr. Thompson concurred. It was substantially upon this evidence, and upon this evidence alone, that the judgment in favour of the respondents was based, and we are now called on to say whether it was sufficient for that purpose.
In my judgment, it was not. These two men were not present at the time of the accident. Their evidence, so far as it related to the crucial point in controversy here, is not the evidence of knowledge but of opinion, and the weight that is to be given to it must largely depend upon the opportunity the witnesses have had to form a correct opinion, and of the reasons which have influenced them in coming to it. The onus of proving that the accident was caused by the faulty construction of the boiler was upon the respondents. They had to show that but for that fault in construction the collapse would not have happened, and they try to remove that onus by bringing two experts to testify that " in their opinion " it was the perpendicular plate. It is our duty to judge the value of that opinion and the weight to be attached to it. It does not appear from the evidence upon what facts or by reason of what investigation that opinion was arrived at. They do not explain why a perpendicular sheet has the effect of stopping the circulation in the water spaces. One might suppose that the sheet if inclined towards the fire box and thus brought more directly in contact with the heat waves would be all the hotter by reason of that inclination, but that is not explained.
The comparative merits of the two methods might have been tested by experiment. We have no evidence of this. There have been innumerable boiler explosions and collapses before. In the whole extended history of the science of engine building has it ever been suggested that the perpendicularity of a side plate was the occasion of accident ?
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Whatever effect the deviation might have in a stationary boiler, one would suppose that in a marine boiler constantly changing its position, never at rest, but moving with the oscillations of the ship and the movements of the sea, the deviation asked for in the present case would be practically ineffective for any purpose, but the experts give us no aid on this point.
What are the actual facts which these experts really know upon which they base their opinion ? They do not tell us. Now, in the absence of evidence and explanation of this kind, the statement by them of their opinion is not proof, and in my view no judgment can be based upon it. It is mere conjecture, or suggestion, or guess work, possibly true, probably not, upon which no verdict could safely rest.
In my view the respondents have not shown by evidence sufficient to reasonably satisfy the ordinary mind that the overheating in question was due to a mistake of construction. The evidence, such as it is, is singularly wanting in all these essential features which render expert testimony on a point like that of any value, and for my part I cannot give conclusive weight to it.
There is another view, too, which presents itself to my mind. As already stated, the boiler designed and built by the appellants here is substantially upon the same principle as that upon which the rest of the world's steamships are built. Almost universally the plate in question here is perpendicularly placed. To sustain the judgment in the present case would be to judicially declare that all boilers the world over so patterned and built are defective in design and faulty in structure. The evidence, to my mind, fails most signally to justify such a wide and far-reaching result.
In my view the appeal should be allowed, and the
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counter claim dismissed with all costs both here and below.
Appeal allowed with costs.
Solicitors for the appellants : Russell & Godfrey.
Solicitors for the respondents : Bodwell & Irving.
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