Supreme Court of Canada
Canadian Pacific Railway Co. v. Parent, (1915) 51 S.C.R. 234
Date: 1915-03-15
The Canadian Pacific Railway Company (Defendants) Appellants;
and
Leosophie Parent and Joseph Chalifour (Plaintiffs) Respondents.
1915: February 11, 12; 1915: March 15.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff, Anglin and Brodeur JJ.
ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Railways—Shipping contract—Carrying person in charge of live stock—Free pass—Release from liability—Approved form—Negligence — Action by dependents — Conflict of laws — “Railway Act;” R.S.C., 1906, c. 37, s. 3.40.
The shipping bill for live stock, to be carried from Manitoba to its destination in the Province of Quebec, was in a form approved by the Board of Railway Commissioners and provided that, if the person in charge of the stock should be carried at a rate less than full passenger fare on the train by which the stock was transported, the company should be free from liability for death or injury whether caused by the negligence of the company or of its servants. C. travelled by the train in charge of the stock upon a “Live-Stock Transportation Pass” and signed conditions indorsed in English thereon by which he assumed all risks of injury and released the company from liability for damages to person or property while travelling on the pass, whether caused by negligence or otherwise. While the train was passing through the Province of Ontario, an accident happened through the negligence of the company’s employees and C. was killed. In an action by his dependents, instituted in the Province of Quebec, it was shewn that C. could neither read nor write, except to sign his name, and that he only understood enough English to comprehend orders in respect of his occupation as a stock-man; there was no evidence that the nature of the conditions was explained to him.
Held (Fitzpatrick C.J. dissenting), that the railway company was liable for damages in the action by the dependents.
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Per Davies, Idington, Duff and Brodeur JJ. (Fitzpatrick C.J. and Anglin J. contra), that, as C. could not have known the nature of the conditions or that they released the company from liability, and the company had not done what was reasonably sufficient to give him notice of the conditions on which he was being carried, the company was liable in damages either under the law of Ontario or that of Quebec.
Per Anglin J.—Although no action would lie in Ontario unless the deceased would have had a right of action, had he survived, and such an action would have been barred there by the contract signed by him, nevertheless, in Quebec, where there is no such rule of law, the action would lie, though the wrongful act had been committed in Ontario, as it was of a class actionable in Ontario. Machado v. Fontes ((1897) 2 Q.B. 231) applied.
Section 340 of the “Railway Act,” R.S.C., 1906, ch. 37, provides that “no contract, condition, * * * or notice made or given by the company impairing restricting or limiting its liability in respect of the carriage of any traffic shall * * * relieve the company from such liability unless such class of contract * * * shall have been first authorized or approved by order or regulation of the Board. (2) The Board may, in any case or by regulation, determine the extent to which the liability of the company may be so impaired, restricted or limited.” The Board of Railway Commissioners made an interim order permitting the use by the company, until otherwise determined, of the shipping form used, but did not expressly authorize the form containing the conditions signed by deceased.
Held, per Fitzpatrick C.J. and Davies and Anglin JJ. (Idington, Duff and Brodeur JJ. contra), that the contract signed by deceased was one of a class of contracts authorized by the Board.
Per Duff J.—The contract signed by deceased could not have the effect of limiting the liability of the company in respect of death because it was not in a form authorized or approved by the Board of Railway Commissioners and there had been no order or regulation made by the Board expressly determining the extent to which the company’s liability should be impaired, restricted or limited as provided by sub-section 2 of section 340 of the “Railway Act.”
Judgment appealed from, affirming the judgment of the Superior Court (Q.R. 46 S.C. 319) affirmed.
APPEAL from the judgment of the Court of King’s Bench, appeal side, affirming the judgment of the
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Superior Court, District of Quebec, by which the plaintiffs’ action was maintained with costs.
In the circumstances stated in the head-note, one Joseph Chalifour was killed while travelling as a stock-man, in charge of live stock, on a train of the company, defendants, in a railway accident which happened at Chapleau, in the Province of Ontario, and the action was brought by his dependents in the Province of Quebec to recover damages as compensation for the injury. The case was tried by a judge, without a jury, and judgment was entered in favour of the plaintiffs for $5,000 damages. This judgment was affirmed by the judgment now appealed from.
G. G. Stuart K.C. for the appellants. The judgment appealed from is erroneous because (1) there was no evidence to justify disregard of the release contained in the pass signed by deceased on which he was travelling; (2) the law of Quebec cannot apply to a right of action resulting from tort committed in Ontario; (3) respondents’ rights, if any, were statutory rights accruing under the law of Ontario; (4) the release was equally effective to bar respondents’ right of action, whether construed according to the law of Quebec or that of Manitoba, where the contract was signed by deceased; (5) the deceased could not have maintained an action, had he survived, and, consequently, the respondents cannot recover; (6) the contract signed by deceased was a release of all claims whether arising from death or injuries. We rely upon the following authorities: Lafleur, “Conflict of Laws,” p. 198, and authorities cited; Storey, “Conflict of Laws,” (8 ed.), para. 625, n. (a); Dicey, “Conflict of Laws,” p. 659, and American notes, specially at p.
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699; 8 Laurent, “Droit Civil International,” Nos. 9, 10, 11; Robinson v. Canadian Pacific Railway Co.; Read v. Great Eastern Railway Co.; Griffiths v. Earl of Dudley, at p. 365; Glasgow and London Ins. Co. v. Canadian Pacific Railway Co.; Conrod v. The King, per Anglin J., at p. 585; British Columbia Electric Railway Co. v. Turner, per Davies J., at p. 479, Idington J., at p. 484, and Duff J., at p. 491; Williams v. Mersey Docks and Harbour Board; Parker v. South Eastern Railway Co.; Bergevin v. Quebec and Lake St. John Railway Co.; Robertson v. Grand Trunk Railway Co.; Mercer v. Canadian Pacific Railway Co.; Sutherland v. Grand Trunk Railway Co.; Provident Savings Life Assurance Society v. Mowat, at p. 155; The Queen v. Grenier, per Strong C.J., at p. 51; Glengoil SS. Co. v. Pilkington.
In England, prior to “Lord Campbell’s Act,” there was no recourse in damages for the death of a human being. In Baker v. Bolton Lord Ellenborough held: “In a civil court the death of a human being could not be complained of as an injury.” And this case was followed and approved in Osborn v. Gillett; Clark v. London General Omnibus Co.; Jackson v. Watson & Sons.
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R. C. Smith K.C. and Savard for the respondents. The form of the contract indorsed on the pass in question was never authorized or approved by the Board of Railway Commissioners pursuant to section 340 of the “Railway Act.” The form of the shipping bill, which had been so approved, was a separate and distinct contract from that which was signed by deceased, the parties were not the same and there was no consideration for the agreement between deceased and the company; it was nullum pactum, according to the law of Quebec; arts. 982 to 989 C.C.; the reduction in the fare benefited only the shippers; Robinson v. Grand Trunk Railway Co., per Latchford J., upheld by the Supreme Court of Canada. Deceased was an illiterate man and signed the conditions on the pass in circumstances in which he did not give a full and valid consent to the release; the effect of the conditions was not explained to him. The shipping bill was never seen or signed by him nor was it read to him. The case of “death” is not mentioned in the conditions of the pass, it merely refers to accident or damage to person or property. The separate and distinct right of action of the widow and children, under article 1056 C.C. cannot be barred by an act of deceased: Robinson v. Canadian Pacific Railway Co.; Miller v. Grand Trunk Railway Co.; 1 Laurent, 89-91; 1 Migneault, 80; Félix, “Droit International,” p. 53; Bullenois, vol. 2, p. 467; and the law of the domicile governs. See The Queen v. Doutre.
G. G. Stuart K.C. for the appellants.
R. C. Smith K.C. and Savard for the respondents.
The Chief Justice (dissenting).—This is an appeal from the Court of King’s Bench, Quebec,
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affirming the judgment of the Superior Court by which the widow and children of one Jos. Chalifour recovered $5,000 from the railway company for his death. The accident occurred at Chapleau, in the Province of Ontario. The deceased was travelling on a pass issued by the defendant company to the plaintiff’s employer, the Gordon Ironsides Co. He was engaged in the shipment of cattle; the train upon which he was being carried met with an accident through the negligence of the company’s servants which resulted in his death. The defence turns in large measure upon the effect of the contract between the Gordon Ironsides Co. and the railway company which provided that, where a pass was issued, the company should be freed from all liability whether caused by the negligence of its servants or otherwise.
The contract was made in Manitoba and the court below held that as no evidence was given respecting the law in Manitoba, it must be assumed to be the same as in the Province of Quebec and the case was, therefore, governed by the Quebec law.
In Quebec the wife and children have an independent cause of action (art. 1055 C.C.). But the death of the husband and father must be caused by an “offence or quasi-offence” committed by the party proceeded against. In other words, delict is the foundation of the right of action.
It has been recently said that negligence, to be negligence, must be a breach of duty and unless there was a breach of duty to take care, there was no negligence. Here the deceased was, at the time of the accident, travelling on the railway on a pass issued by the company respondent under statutory authority,
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and a condition of that pass was, that the deceased assumed
all risk of accident or damage to person or property and that the company should be free from all liability in respect of any damage, injury or loss caused by the negligence of the company, or its servants or employees or otherwise howsoever.
This pass was issued by the company in connection with a “special live stock” contract approved of by the Board of Railway Commissioners and entered into by the employers of the deceased, containing this clause:—
In case of the company granting to the shipper or any nominee or nominees of the shipper, a pass or privilege less than full fare, to ride on the train in which the property is being carried, for the purpose of taking care of the same while in transit, and at the owner’s risk as aforesaid, then as to every person so travelling on such pass, or privilege less than full fare, the company is to be entirely free from liability in respect of his death, injury or damage, and whether it be caused by the negligence of the company, or its servants or employees or otherwise howsoever.
The legislation giving the Board of Railway Commissioners power to order and approve of such a contract was fully referred to and discussed in the case of Robinson v. Grand Trunk Railway Co., disposed of by this court a short time ago and in which I had the misfortune to differ from the majority of my colleagues (vide secs. 26, 30, 31, 284, 340, R.S.C. ch. 37). The following sections of the same chapter should also be considered: 55, 322, 327, 339.
The order of the Board authorizing the railway companies to use the form of “live stock contract” above referred to was duly published as required by the “Railway Act” (sec. 339), and thereafter had a like effect as if enacted in that Act (sec. 31).
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The terms of the pass on which the deceased was travelling were binding on all the parties who presumed to avail themselves of the privileges which that pass conferred.
This case is, in my opinion, distinguishable on other grounds from such cases as Henderson v. Stevenson, and Parker v. South Eastern Railway Co., to which we were referred by respondent at the argument. In those cases the conditions relied upon were contained in an ordinary transportation ticket in common form, and it did not appear that the party receiving the ticket knew or had any reason to suspect that there were any special or exceptional conditions attached to it.
I agree with Mr. Justice Anglin that the deceased had notice of the conditions subject to which the pass was issued to him, or at least had reasonable notice and opportunity to have these conditions explained to him, and he did not choose to take advantage of that opportunity. It should not be lightly assumed that any man in this country is so ignorant as to believe that he may travel on a railway without a contract of some sort.
It is quite true, as Lord Watson pointed out in Robinson v. Canadian Pacific Railway Co., that the provision as to duelling in article 1056 shews, that cases were intended to be comprised in which there could be no right of action in the deceased. But the death must have been caused by the commission of an offence or quasi-offence, and if there was no duty owing to the deceased by the company there could be
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no breach of duty and, therefore, no negligence which could give rise to this action.
I am of opinion this appeal should be allowed with costs.
Davies J.—This appeal is from the judgment of the Court of King’s Bench (appeal side) of Quebec, affirming a judgment of the Superior Court holding the appellant liable in damages for the death of one Joseph Chalifour, the husband and father of the widow and children bringing the action.
Chalifour’s death occurred in the Province of Ontario in a collision between a locomotive of appellants’ railway and a car of appellants in which deceased was travelling in charge of cattle belonging to his employers, the shippers of the cattle.
The contract to carry the cattle from Winnipeg, Manitoba, to Montreal, Quebec, was made in the former city, and the accident occurred in the Province of Ontario.
Both courts below held that the rights of the parties under the contract were to be determined by the law of Quebec, where the carriage of the cattle ended, and that the rights of the widow and children to recover damages for the death of the deceased caused by the admitted fault of the company was under that law an independent right and could not be barred or destroyed by a contract or covenant made with the company by Chalifour before his death.
As establishing such a covenant, the appellant relied upon a contract between itself and the shippers of the cattle, the form of which had the approval of the Board of Railway Commissioners and also upon a condition printed upon the back of what was called a
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pass, under which the deceased, as one of the men in charge of the cattle, was travelling.
These conditions were signed by one Addshead, who appeared to be the principal man in charge of the cattle, and also by Chalifour, the deceased.
The contentions of the company were first that the law of Ontario, where the accident occurred and of Manitoba where the contract was made were the same and that the rights of the plaintiffs and the company’s liabilities were to be determined by that law and not by the law of Quebec; and, secondly, that the conditions of the contract or pass absolved them from all liability for damages arising out of the accident causing Chalifour’s death, whether in the words of the condition,
such accident, injury, damage or loss is caused by the negligence of the company or of its servants or employees or otherwise howsoever.
In other words, the company contended that it had with the sanction of the Railway Board, contracted itself out of any liability whatever, even if caused by gross negligence or otherwise arising out of the carriage of Chalifour as man in charge of the cattle from Winnipeg to Montreal.
In the view I take of the proved facts and the liability of the company under them, it is not necessary that I should express any opinion upon the important question as to whether the law of Quebec or that of Ontario or Manitoba is to be the governing law in this case.
Mr. Smith contended for the respondents that while the Railway Board had sanctioned the form of contract between the shippers of the cattle and the company exempting the latter from liability in respect
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of the death, injury or damage of the men in charge of the cattle whether caused by negligence or otherwise, it had not expressly sanctioned the form of pass or contract which the company had made or contended it had made with the man himself and that such latter contract was still within the provisions of section 340 of the “Railway Act” prohibiting contracts impairing carriers’ liabilities unless authorized or approved of by the Board.
I am of opinion that the class of contract to be made between the railway company and its shippers approved of by the Board is quite sufficient to cover the pass or contract made with Chalifour, if that is binding, and the omission of the word “death” in this latter contract or pass does not affect its real meaning or limit that meaning.
The question, however, remains to be determined whether any binding contract with conditions as those contended for, was made between Chalifour and the company, and that must be determined upon a consideration of all the facts and circumstances.
Chalifour was a French Canadian who resided with his family in the Province of Quebec. He could neither read nor write French or English, but he could write his name. He was quite an illiterate man and as proved could not even read the newspapers in his own language. He spoke and understood a little English, enough to enable him to understand orders or instructions respecting his duties or employment as a cattle drover or caretaker. He is one of a large class in Quebec well known in Canada.
Before the train started from Winnipeg he and his co-employee, Addshead, signed a paper or rather certain “conditions” on the back of a paper on the front
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of which headed in large capitals were the words “Live Stock Transportation Pass.”
It was signed in the presence of two employees of the company, one Devillers, who witnessed it and was an interpreter of foreign languages and understood French, and one Anderson, another employee, who did not understand or speak French.
The evidence they gave is somewhat meagre. Anderson says he does not understand French, but stood beside Devillers while he filled in the pass, that there was some conversation between Devillers and Chalifour in French, but he did not understand it. All he seemed to be clear about was that if any questions were asked with respect to the conditions they were explained. Devillers does not remember what the circumstances were or if he had any conversation with Chalifour or whether he explained the conditions.
It seems quite certain that the live stock contract itself was not shewn to Addshead or Chalifour and that the only paper they saw at all was one on which was printed on the front in large type, “Live Stock Transportation Pass,” and on the back “conditions” which they signed. My conclusion is that all they saw was the back of this paper headed “conditions” and that they asked no questions, received no explanations and really did not have any idea what the paper was, except that it had something to do with the cattle which they were in charge of and their carriage, and that they as men in charge had to sign it.
To draw an inference that this illiterate French Canadian, who only spoke or knew enough English to take and carry out orders connected with his work in taking care of cattle and tending them; who could not read in either language nor write anything beyond
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his own name, knew or could have known the nature of the document he was signing, is something I must decline to do.
Whether he did so know or must be held to have known is more an inference of fact to be drawn from all the circumstances than a presumption of law.
Chalifour’s signature under the facts and circumstances proved, if it carries us as far certainly does not carry us any further than his acceptance of the pass if handed to him would have done without his signature.
All he knew was that he was one of the men in charge of the cattle to take care of them and tend them to Montreal: If the heading of the pass itself “Live Stock Transportation Pass,” had been read to him it would not have conveyed the slightest idea to his mind, in my humble judgment, that he was agreeing with the company to take all the chances of the trip and that in case he was injured the company were not to be liable to him even for the grossest negligence.
I think the cases clearly establish that there is no rule or presumption of law that a person is necessarily bound by the conditions contained in a document delivered to him as a transportation ticket, and I do not think that the mere signature itself under the circumstances and facts proved in this case changes the law with respect to such rule or presumption. Henderson v. Stevenson; VanToll v. South Eastern Railway Co..
My position is that Chalifour did not know it was a ticket or pass at all he was signing. It was not handed to him, but to Addshead, his co-worker, and,
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after the accident, was produced by Addshead, who evidently had retained possession of it all along. It does not appear ever to have been in the hands or possession of Chalifour.
In the case of Parker v. South Eastern Railway Co., Mellish L.J., after reviewing several of the cases, at page 422, says:—
Now, I am of opinion that we cannot lay down, as a matter of law, either that the plaintiff was bound or that he was not bound by the conditions printed on the ticket, from the mere fact that he knew there was writing on the ticket, but did not know that the writing contained conditions.
And at page 423:—
I am of opinion, therefore, that the proper direction to leave to the jury in these cases is, that if the person receiving the ticket did not see or know that there was any writing on the ticket, he is not bound by the conditions; that if he knew there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions; that if he knew there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he would be bound, if the delivering of the ticket to him in such a manner that he could see there was writing upon it, was, in the opinion of the jury, reasonable notice that the writing contained conditions.
The real and proper question seems to be whether the, company did that which was reasonably sufficient to give the plaintiff notice of the condition under which they seek to be released from liability.
The well known case of Watkins v. Rymill, in 1883, may seem somewhat at variance with that statement. It was there held that
if a document in a common form is delivered by one of two contracting parties to and accepted without objection by the other, it is binding upon him, whether he informs himself of its contents or not.
This decision made no allowance for the special circumstances under which the document was delivered
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or the capacities or experience and knowledge of the parties.
The later decision of the House of Lords, however, in Richardson, Spence & Co. v. Rowntree, is that the question is one of fact and whether the carrier did what was reasonably sufficient to give the plaintiff notice of the condition under which they claimed exemption from liability.
The jury in that case found in answer to the question put to them that the company did not do so and, as the Lord Chancellor says, at page 220:—
The only facts proved were that the plaintiff paid the money for the voyage in question, and that she received the ticket handed to her folded up by the ticket clerk so that no writing was visible unless she opened and read it. There are no facts beyond those. Nothing was said to draw her attention to the fact that this ticket contained any conditions and the argument is that where there are no facts beyond these the defendants are entitled, as a matter of law, to say that the plaintiff is bound by those conditions. That, my Lords, seems to me to be absolutely in the teeth of the judgment of the Court of Appeal in the case of Parker v. South Eastern Railway Company, with which I entirely agree.
Lord Ashbourne in concurring with the Lord Chancellor, remarked:—
The ticket in question in this case was for a steerage passenger — a class of people of the humblest description, many of whom have little education and some of them none.
Lord Watson and Lord Morris concurred.
In a still later case, Marriott v. Yeoward Bros., Pickford J., in delivering a judgment as to the effect of conditions on the ticket of a passenger said at page 992:—
For the purpose of the judgment I am about to deliver I assume that the loss was occasioned by the felonious act of the defendants’
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servants. Under those circumstances the first point that I have to determine is whether the conditions on the ticket did or did not form part of the contract. That question is one of fact. I was, indeed, invited by the defendants’ counsel to hold as matter of law, upon the authority of the well-known case of Watkins v. Rymill, that the mere delivery and acceptance of the ticket with the conditions upon it was sufficient to make the conditions part of the contract. But that I am not at liberty to do. The case of Richardson v. Rowntree, in the House of Lords, clearly decided that the acceptance of the ticket does not of itself necessarily make all the conditions upon that ticket a part of the contract. It decided that the proper questions to be left to the jury were those which were formulated by the majority of the Court of Appeal in Parker v. South Eastern Railway Co., namely, (1) whether the plaintiff knew that there was writing or printing on the ticket; (2) whether the plaintiff knew that the writing or printing on the ticket contained conditions relating to the terms of the contract of carriage; and (3) whether the defendants did what was reasonably sufficient to give the plaintiff notice of the conditions. For the purpose of determining the answer to the third of those questions I think that the cases of Richardson v. Rowntree, and Acton v. Castle Mail Packets Co., shew that the jury must take into consideration the class of persons with whom the contract is made. In Richardson’s Case stress was laid upon the fact that the ticket was for a steerage passenger, a class of persons of whom many, as Lord Ashbourne observed, have little or no education. In Acton’s Case stress was equally laid by Lord Russell of Killowen in his judgment on the fact that the plaintiff was a business man.
In a late case of Carlisle and Cumberland Banking Co. v. Bragg, Buckley L.J. in speaking of the effect which ought to be given to documents signed by a party whose signature was really obtained by fraud and who ought not, therefore, to be bound, says, at page 496:—
I do not think myself that cases of this kind are to be confined to the blind and illiterate. Blindness and illiteracy constitute a state of things of which the equivalent for this purpose may under certain circumstances be predicated of persons who are neither blind nor illiterate. If a document were presented to me written in
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Hebrew or Syriac, I should for the purposes of that document be both blind and illiterate — blind in the sense that, although I saw some marks on the paper, they conveyed no meaning to my mind, and illiterate as regards the particular document, because I could not read it. It seems to me that the same doctrine applies to every person who is so placed as that he is incapable by the use of such means as are open to him of ascertaining, or is by false information deceived in a material respect as to the contents of the document which he is asked to sign.
My conclusion is that Chalifour’s signature to the conditions indorsed upon the “Live Stock Transportation Pass” on which the company rely to relieve themselves from liability was obtained under conditions and circumstances which do not permit of any inference or presumption of fact that he knew or could have known what he was signing or that they were conditions of his transportation as man in charge of the cattle and that the company did not do what was reasonably sufficient to give him notice and knowledge of those conditions.
I would, therefore, dismiss the appeal.
Idington J.—The late Joseph Chalifour, travelling as a servant in the employment of a firm of cattle dealers, shipping cattle from the west over appellant’s railway, was killed near Chapleau in Ontario in an accident due to the negligence of appellant. This action was brought by his widow for herself and family to recover damages arising therefrom. She has since died and the action is continued by the surviving members of the family.
The defence is that he was travelling upon a pass issued to him as said servant engaged in taking care of the cattle shipped by said firm and that the conditions of said pass contained a limitation that the deceased assumed all risk of damage to person and properly
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and hence there can exist no claim on part of the respondents.
By section 544 of the Criminal Code, the appellant is prohibited from carrying cattle, under such circumstances as existed in this case, unless in charge of men engaged to see that the cattle are properly cared for.
The section 340 of the “Railway Act” prohibiting appellant from limiting its liability is as follows:—
No contract, condition, by-law, regulation, declaration or notice made or given by the company, impairing, restricting or limiting its liability in respect of the carriage of any traffic, shall, except as hereinafter provided, relieve the company from such liability, unless such class of contract, condition, by-law, regulation, declaration or notice shall have been first authorized or approved by order or regulation of the Board.
2. The Board may, in any case, or by regulation, determine the extent to which the liability of the company may be so impaired, restricted or limited.
This is substantially the same as section 275 of the “Railway Act” of 1903 under which the Railway Commissioners, in 1904, ordered as follows:—
That the above mentioned applicants do severally have power to use the forms submitted, and they are hereby legally authorized so to do until this Board shall hereafter otherwise order and determine.
The shipping firm, in whose employment the deceased was, admittedly shipped their said cattle under a form of contract thus approved.
The questions raised herein are thus far the same as raised in the case of Robinson v. The Grand Trunk Railway Co., where this court held that the servant of the shipper who had signed a similar form of contract for the shipment of a horse and given the duplicate thereof to said servant, put in charge of the
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horse there in question, was entitled to damages arising from the negligence of the company. But in this case the matter of contract was carried a step further by the appellantes officers at Winnipeg issuing a pass worded, so far as bearing upon this case, as follows:—
To conductors: Winnipeg, 18th Sept., 1911.
The two men whose signatures are subscribed on back hereof are the only persons entitled to pass in charge of thirteen cars of live stock (here follow the numbers of the cars, etc.).
On the back of this there was printed in smaller type than appears in the case herein, the following:—
Conditions.
Each of us, the undersigned, having charge of live stock mentioned on face hereof, in consideration of the conditions of the Canadian Pacific Railway Company’s Live Stock Transportation Contract, agree with the company, while travelling on this pass to assume all risk of accident or damage to person or property, and that the company shall be entirely free from all liability in respect of any damage, injury or loss to any of us or the property of any of us whether such accident, injury, damage or loss is caused by the negligence of the company, or its servants or employees or otherwise howsoever.
Signatures: Witness:
F. Addshead. H. Devillers.
Joseph Chalifour.
Countersigned:
H. W. Dickson.
Local Freight Agent.
It is contended by appellant this is a contract by virtue of which the respondents are debarred from maintaining this action.
The respondents first deny the right of the company to impose such limitation of liability and next shew by evidence justifying the finding of the learned trial judge that deceased could read neither English nor French and understood but little English — only enough to understand the orders of his superior, relative
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to his usual duties as a cattle man, if I understand what she speaking is testifying to.
The attesting witness Devillers does not help much by what he says. At the utmost it seems to be that if deceased asked for any explanation it was given him, but he has no recollection of the man or circumstances. Dickson seems to remember that Devillers said something to the deceased in French, but what passed he cannot tell for he understands no French.
The other cattleman, Addshead, who seems to have signed first and to have escaped from the accident uninjured, was not called. It seems to be fairly demonstrated from the circumstances put in evidence and relied upon by respondents that he was the bearer of this pass. We are not enlightened in any way unless by the name and the fact that he was first to sign and carried the pass, whether he could speak English or not. If I were pressed to answer I should say he was of English stock and likely knew as little French as Dickson.
All such minor details are usually of little consequence, but as bearing upon the probability of deceased understanding what he was about in signing his name to this alleged contract, I should have liked to have known all such details and have been the better able to realize whether or not the deceased knew and understood what he was doing when he signed his name to the said paper.
In some of the cases elucidating the law we have to deal with, it is suggested in England a man signing or even accepting a like conditional pass might be presumed to know how to read English. But if we would do justice here in Canada we cannot proceed
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upon any such hypothesis. Men of the race of the deceased may by nature be as bright and intelligent as any Englishman yet be so handicapped by their want of knowledge of either English or (for that matter as the evidence here discloses) French when it has to be read, that we must be careful to observe that not unusual condition of things in coming to a conclusion in a matter of this kind.
And I may add that in Canada they are not the only persons to whom the like considerations must be extended if justice is to be done.
To my mind the question above all others to be determined herein is whether or not the appellant has produced evidence, upon which we can safely rely, enabling it to claim that deceased contracted himself and thereby respondents out of all right to complain of the grossest kind of negligence on appellant’s part.
No one who has that general knowledge of the world, and this little part of it, and of the class and kind the deceased belonged to, and the usual mode in which such transactions as involved herein are gone about, but must feel loath to hold that deceased knowingly and understanding what he was about intended to contract as appellant contends he did contract. The onus rested on appellant to shew that he did.
I cannot hold on the evidence before us that it satisfies me.
And as to any implication from the service in which deceased was engaged, we are bound for the present at all events by our decision in the Robinson Case.
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There is, moreover, in this case a feature that has impressed me very much and renders the position of appellant weaker than in the Robinson Case.
It is this:—That in that case the entire contract of the shipper, if read, was before the plaintiff and for a time in his possession and it contained the following clause:—
In case of the company granting to the shipper or any nominee or nominees of the shipper a pass or privilege less than full fare, to ride on the train in which the property is being carried, for the purpose of taking care of the same while in transit, and at the owner’s risk as aforesaid, then as to every person so travelling on such such a pass or privilege less than full fare the company is to be entirely free from liability in respect of his death, injury or damage, and whether it be caused by the negligence of the company, or its servants or employees or otherwise howsoever.
What right had appellant to convert the clear explicit language of this clause
free from liability in respect of his death, injury or damage, and whether it be caused by the negligence of the company, or its servants or employees or otherwise howsoever,
into the dubious sort of terms contained and used in the above quoted conditions? It seems to me it had none. Such contract as it has any right to impose in such a case must fall within the order of the Board or be null. The word “traffic” in said section 275 is by the interpretation clause made to cover passengers as well as freight. In the first place there is a great deal to be said for the argument that this limitation was never in law applicable to the case of the servant himself for his loss, but only to the interest of the master in his servant And such right of action as he might have for injury to him and hence never in law intended to extend to the rights of the servant himself.
[Page 256]
It is clear to my mind the order is capable of such a construction. And unless the order must be construed as covering and enabling such a limitation of liability there is nothing upon which the appellant can rest, unless upon the said conditions being construed as a clear contract on part of deceased whereby his widow and children would be deprived of any right to complain herein.
And applying such a test to this ambiguous thing called “conditions” we are face to face with the interpretation put thereupon by Mr. Justice Cross in the Court of Appeal holding it did not cover the case of death resulting from the injury.
That is not my own interpretation of the terms used in the conditions, but clearly they can be so read.
And yet in face of that view held by a careful and able judge we are asked to impute to the poor deceased — ignorant of the language — a clear understanding that the condition applied to his death and that in such event though caused by the grossest negligence on the part of appellant, his family could have no claim.
I cannot think such a result would be either law or justice.
I, therefore, need not enter upon the very wide field of international law and other law into which the argument so well and ably invites us.
I think the appeal should be dismissed with costs.
Duff J.—I think this appeal should be dismissed with costs. The action is brought in the Province of Quebec by the respondent as the widow of one Joseph Chalifour, who was killed in a railway accident while on one of the appellant company’s trains in the
[Page 257]
Province of Ontario, due to the negligence of the appellant company’s servants. The respondent bases her claim on article 1056, Civil Code of the Province of Quebec, and on the “Fatal Accidents Act,” 1 Geo. V., ch. 33, sec. 33, in force in Ontario. The appellant company sets up in defence, first, a contract with the employers of the deceased Joseph Chalifour, and secondly, a contract alleged to have been entered into with Chalifour himself relieving it from responsibility for the negligence of its servants.
It is not, as I understand it, disputed that if these alleged contracts would be no answer to the respondent’s action in Ontario she is entitled to recover in these proceedings; and as in my opinion the defence based on these contracts fails, it will not be necessary to consider the possible rights of the respondents on the opposite hypothesis. I will only observe that to me it is not obvious that the decision of the Court of Appeal in Machado v. Fontes furnishes the rule of decision governing the courts of Quebec in similar cases; or that article 1056 C.C. has any application where the wrong from which death results as well as the death itself occur outside the Province of Quebec.
Under the “Fatal Accidents Act” it is now settled that it is a condition of the respondents’ right to recover that the victim of the accident would have had a right of action arising out of the wrong complained of if he had lived. The appellant company alleges that the right of action which otherwise would have arisen in favour of Chalifour, would in fact, have been defeated by force of one or both of the agreements above mentioned.
[Page 258]
I think this defence of the appellant company fails for these reasons: first, the agreement between the appellant company and the employers of Chalifour could not nullify the primâ facie obligation of the appellant company to use due care to carry him safely arising out of their acceptance of him in fact, as a passenger on their railway unless it were shewn that he expressly or impliedly assented to the terms of that agreement as modifying the obligation. No such assent is in fact proved; and in any event section 340 of the “Railway Act” applies and, not having been complied with, would deprive any such assent of any effect it might otherwise have had. Secondly, as to the alleged agreement with Chalifour:—Chalifour’s assent to the terms of the alleged agreement has not been established in fact; and, assuming the alleged agreement to be established in fact, the section referred to, section 340, deprives it also of any force as a defence. It will be convenient to deal first with the effect of section 340.
The appellant company relies upon first an agreement entered into between the Gordon Ironsides Company, the shipper (Chalifour’s employer), and the appellant company, providing for the carriage and delivery of certain cattle shipped at Winnipeg for Hochelaga. And the contract contained certain restrictions of the company’s liability, not material to the present discussion. There is also the following paragraph upon which the appellant company relies:
In case of the company granting to the shipper or any nominee or nominees of the shipper a pass of privilege less than full fare, to ride on the train in which the property is being carried, for the purpose of taking care of the same while in transit, and at the owner’s risk as aforesaid, then as to every person so travelling on such a pass or privilege less than full fare the company is to be entirely free from
[Page 259]
liability in respect of his death, injury or damage, and whether it be caused by the negligence of the company, or its servants or employees or otherwise howsoever.
The alleged contract with Chalifour is contained in certain conditions printed on the back of a document described as a “Live Stock Transportation Pass” of the same date. Section 340 of the “Railway Act” is as follows:—
340. No contract, condition, by-law, regulation, declaration or notice made or given by the company, impairing, restricting or limiting its liability in respect of the carriage of any traffic, shall, except as hereinafter provided, relieve the company from such liability, unless such class of contract, condition, by-law, regulation, declaration or notice shall have been first authorized or approved by order or regulation of the Board.
2. The Board may, in any case, or by regulation, determine the extent to which the liability of the company may be so impaired, restricted or limited.
3. The Board may by regulation prescribe the terms and conditions under which any traffic may be carried by the company.
This enactment deprives the agreement just referred to, and any notice of the terms of the agreements, of any effect in restricting or modifying the primâ facie obligation of the company except in so far as the agreements and notice have been authorized or approved by order or regulation of the Board of Railway Commissioners or in so far as they come within and are made effective by some order or regulation made under sub-section 2.
The appellant company produces an order of the Board, bearing date the 17th of October, 1904, which is in the following terms:—
In the Matter of
The application of the Grand Trunk Railway Company, the Canadian Pacific Railway Company, the Canadian Northern Railway, and the Pere Marquette Railway Company, for approval by the Board of Railway Commissioners of their forms of bills of lading
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and other traffic forms, in compliance with section 275, sub-sections 1 and 2 of the “Railway Act.”
The above named companies are the only railway companies in Canada which have, up to the present moment, complied with the requirements of section 275; and in respect of these so far received it may be remarked that there is much diversity in the forms of the several railways. The whole subject is of very great importance and will require that much circumspection should be exercised in examing into the contracts and forms which the Board hereafter has to approve; and also into the question of limitation of liability on the part of carriers.
In view of these facts, and that the railways generally have not submitted their forms for approval, the Board does not deem it advisable to make any final or definite order upon the subject at present, but is of opinion that an interim order might properly be made permitting such railways as have made application therefor to continue the use of their present forms until the Board shall otherwise prescribe and order.
It is Therefore Ordered
That the above mentioned applicants do severally have power to use the forms submitted, and they are hereby legally authorized so to do until this Board hereafter otherwise order and determine.
And the Board further requires that a select committee be formed of the legal and traffic officers of the several railway companies named, and others who may hereafter submit their applications, to meet the Board at Ottawa, on a date to be hereafter announced, for the discussion of the said forms and contracts, both freight and passenger, at a session of the Board to be called for such purpose.
(Sgd.) Andrew G. Blair,
Chief Commissioner, Board of Railway
Commissioners for Canada.
This is the order upon which the appellant company relies as giving force to the two agreements now under consideration.
It appears from the certificate of the Secretary of the Board that the only “form” having any relevancy to the present case coming within the operation of this order is a form of “Contract for Carriage of Live Stock” which seems to be identical in its terms with that between the appellant company and the shippers above referred to.
The form of contract thus approved is a contract
[Page 261]
between the railway company and the shipper; and it contains the paragraph, upon which the railway company relies, above set out. No form of notice to the shipper’s nominee or form of contract between the railway company and the shipper’s nominee is approved in express terms. And after very full consideration I have come to the conclusion that Mr. Smith’s contention is sound and that the order does not imply any approval or authorization of any contract between the railway company and the shipper’s nominee or of notice to the shipper’s nominee within the meaning of the first sub-section of section 340.
I think that is so for these reasons. The order itself shews that it was passed as a temporary provision only pending a fuller examination of important questions touching the approval of contracts and notices affected by section 340; and I think that the operation of the order must be confined strictly by the effect of the language used which appears to me to be simply this; that the “forms” specified (which were understood to be the forms then in use) were approved for what they were worth. The company is authorized to enter into a contract in the form produced. That is the whole effect of the order.
This interpretation of the order is, no doubt, open to the observation that in view of the decision of this court in Robinson v. Grand Trunk Railway Co., the paragraph quoted above, would afford no protection to the railway company in the case of action by nominees. But it is to be observed that the Court of Appeal for Ontario
and the Chief Justice of this court took the view that this same clause was (even in the absence of notice of it to the shipper’s nominee) sufficient to preclude action against the company by the nominee, on the ground that the nominee being on the railway by a consent which was expressed in the contract, and only in the contract, was bound by the conditions of that consent. It is quite possible that this was the view of the law upon which the contract was framed. However that may be the order expressly approves the contract with the shipper and nothing else. I see no ground for implying an approval of a contract with the nominee of the shipper or notice to the nominee. The order is a general approval of a large number of forms containing no doubt many clauses and it would be going altogether too far to read it as an approval not only of the “forms” produced, but any other forms which might be necessary to accomplish the object of the companies.
A similar reason compels the conclusion, I think, that there is nothing in the order “determining” the extent to which the “liability of the company” to the shipper’s nominee “may be impaired, restricted or limited” within the meaning of sub-section 2.
This is a complete answer to the appeal. But I think the appeal fails on the ground also that the evidence does not sufficiently shew an assent by Chalifour to the conditions by which he is alleged to have been bound or any notice to him that he was being carried under a contract with his employers absolving the appellant company from responsibility from injuries caused by the negligence of its servants. The paper on which the company relies is a document called a. “Live Stock Transportation Pass.” On its
[Page 263]
face, partly in print and partly in handwriting, is the following words:—
CANADIAN PACIFIC RAILWAY.
Western Division.
Live Stock Transportation Pass.
To Conductors:— Winnipeg, 18th Sept., 1911.
The two men whose signatures are subscribed on back hereof are the only persons entitled to pass in charge of thirteen cars live stock 170922, 167196, 166252, 165346, 169796, 168794, 167934, 166496, 167128, 135054, 350130, 164574, 165058.
Billed from Cardston * * * to Montreal.
As men in charge of live stock are now only passed to Winnipeg on stock contracts Conductors east of Winnipeg will not honour stock contracts for passage.
Conductors in charge of train making last run will take up this pass and turn it to agent at destination of live stock.
Valid only when countersigned by
R. E. Larmour,
General Freight Agent.
No. 7512.
Countersigned:
H. W. Dickson.
It is endorsed as follows:—
Conditions.
Each of us, the undersigned, having charge of live stock mentioned on face hereof in consideration of the conditions of the Canadian Pacific Railway Company’s Live Stock Transportation Contract, agree with the company, while travelling on this pass to assume all risk of accident or damage to person or property, and that the company shall be entirely free from all liability in respect to any damage, injury or loss to any of us or the property of any of us whether such accident, injury, damage, or loss is caused by the negligence of the company, or its servants or employees or otherwise howsoever.
Signatures: Witness:
F. Addshead. H. Devillers.
Joseph Chalifour.
Countersigned:
H. W. Dickson,
Local Freight Agent.
The evidence of Devillers, whose name appears as witness, shews that the signature professing to be that
[Page 264]
of Chalifour was in fact his, although he does not actually recall the circumstances. Chalifour was a stable hand, a French Canadian, living in Beauport, unable, as the evidence of his wife shews, to read a word of either French or English (testimony undisputed and, according to common experience, not at all incompatible with the fact that he was able to sign his name) and speaking and understanding spoken English, very little — enough only, as his wife explained, to apprehend the directions of his superiors in his work of cattlehand.
The evidence of Devillers and of Dickson shews — the evidence of Dickson indeed was quite explicit upon the point — that no explanations of the nature of the document would be given to the signatories unless an explanation were asked for. Devillers is unable to recollect, as I have mentioned, the actual signing of the document or the circumstances of it.
What then is the significance of Chalifour’s attaching his name to the pass in these circumstances? Does it shew or create any presumption of assent on his part to the conditions? Did the fact that he was asked to sign amount in the circumstances to reasonable notice to him that the company was proposing some modification of their primâ facie legal obligation as carriers? Did the fact of signing amount to a representation to the company, either that he understood the nature of the document or that he was willing to be bound by anything it might contain?
It is not open to dispute that, if Chalifour, although unable to read the conditions on the back of the pass, had understood that in presenting the paper for his signature the officials of the company were proposing conditions affecting the terms upon which
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he was to be received as a passenger on the railway — then having given his signature and having acted on the assent of the company given in consequence he would be bound by what he had signed in the absence of fraud or some other equitable ground of relief. But as Chalifour could not read the conditions then unless in fact he knew that the paper contained conditions or the fact of signing amounted in the circumstances to a representation by him that he was prepared to be bound by anything the paper might contain, or in other words, as I think the two questions are in substance identical, unless the fact of being required to place his signature on the pass was reasonable notice to him that it did contain conditions, his signature cannot affect his rights.
The burden of the affirmative of the issue raised by the company’s allegation that Chalifour assented to a modification of the primâ facie obligation of the company rests, I think, upon the company throughout, unless some presumption of law arises shifting that burden by the fact of the signing alone. I pass for the moment the question as to whether any presumption of law does arise, and I consider the questions first, of Chalifour’s knowledge, and, secondly, of the significance to him of the fact that his signature was required and the significance to the company of the fact that he gave his signature in the circumstances as questions of fact.
First, then, as to Chalifour’s knowledge. The evidence of Dickson is explicit, as I have mentioned, that no explanation would be given unless asked. Dickson says that Chalifour had a conversation with Devillers which Devillers does not remember. The purport of the conversation is not given. Whether
[Page 266]
Chalifour asked for an explanation, and if so, what answer was given, are matters of speculation merely. I have no difficulty in holding that the company has failed to shew knowledge in fact or facts from which knowledge can be judicially inferred.
Secondly, as to the significance of Chalifour being required to sign and the act of signing. The question to be considered is whether in the circumstances, assuming him to have exercised the normal judgment of a person of his class and circumstances as known to the company through Dickson and Devillers he ought to have understood that the paper he was asked to sign contained conditions affecting his rights; or correlatively whether the company, having regard to all the circumstances, was entitled to assume from Chalifour’s conduct that he did know that there were conditions to which he was assenting.
The question is one upon which people will naturally differ, but I have come to the conclusion that giving their proper weight to all the facts they do not justify a conclusion that Chalifour would or that Dickson, who was the agent of the company for delivering the pass, would or would be entitled to regard Chalifour’s act of signing as meaning anything more than the giving a signature for the purpose of identification. The evidence sufficiently shews that in September, 1911, when the pass in question was issued, the practice of the Canadian Pacific Railway Co. with regard to cattle shipments over its lines west of Winnipeg provided for the passing of attendants by having them place their names on the back of the transportation contract itself for the purpose of identification, the possession of the contract being the conductor’s warrant for passing attendants whose names
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were so indorsed. Down to some time prior to September, 1911, this practice seems to have been general. The indorsement on the transportation contracts in evidence is as follows:—
Form 18.
CANADIAN PACIFIC RAILWAY COMPANY.
Live Stock.
Transportation Contract.
From ......................................................................
To ..........................................................................
Date................................, 19..................................
Shipper...................................................................
Names of persons entitled to a free pass in charge of this consignment.
............................ Agent.
Note.—Agents must require those entitled to free passage, in charge of live stock under this contract, to write their own names on the lines above.
Conductors may, in cases where they have reason to believe contracts have been transferred, require the holders to write their names hereon to compare signatures. This contract must be punched by the conductors of each division.
The same indorsement is to be found upon the form of contract approved by the Board of Railway Commissioners, in 1904, now in evidence. The direction on the pass in question shews that for shipments east of Winnipeg a change took place some time before the date of the pass, and the system of issuing passes was substituted. We do not know when this change took place. But we do know that under the earlier system which apparently at the time in question still continued to obtain on the Canadian Pacific Railway west of Winnipeg the cattle men were obliged to sign their names on the back of the transportation contract for the purpose of identification, and that
[Page 268]
under that system each signed his name for identification only and not as evidencing assent to any agreement with the company. That is very obvious from an inspection of the contracts in evidence. If the signatures are evidencing assent, then it must be that indorsement is an essential part of the form as approved and the attaching of his signature to the indorsement, in accordance with the direction, is a condition of the valid assent of the bearer of a pass to the contract as affecting him.
As I have said we do not know when the change was made. We are not told that the agents were instructed when that took place to inform cattle-men who were unable to read of the fact that the pass to which they were asked to attach their signatures contained conditions affecting their rights as against the company which these signatures, once affixed, would purport to evidence. The only evidence we have touching the point is the evidence which I have already mentioned of Devillers and Dickson, which makes it plain that the duty and practice of the agent were limited to giving explanations where explanations were asked. When one looks at the direction to the conductors on the face of the pass itself it is made clear that one purpose of the signatures on the back of the pass was the purpose of identification, and Dickson expressly admits in his evidence, that the signatures were required for that purpose. A cattle man accustomed under the other system to sign his name on the back of the transportation contract along with the other attendants would be most unlikely, especially if he was unable to read, to attach any significance to the act of signing except that he was complying with the usual rule and for the usual purpose. As I have said, we have no evidence
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when this system of passes was adopted. It may have been in operation no longer than a week. We are left to speculate on that point.
In these circumstances I think it is impossible to affirm that Chalifour’s act of signing had either for himself or for the company any significance as affecting their mutual rights unless it can be said that by signing he affirmed that he was sufficiently capable of comprehending the document to understand that there were conditions.
I think this cannot be affirmed. In the first place, it must be remembered that the pass was delivered to Addshead, who was the employee in charge. It is quite evident that it never came into Chalifour’s possession. Addshead signed first, Chalifour afterwards. As the original pass shews, the conditions are printed in small type, not likely to attract the attention of a man of Chalifour’s class. But to my mind the most weighty consideration applying to this point is that Devillers, Chalifour being the utterly ignorant man that he was, according to the evidence of the respondent, must in the short conversation he had with him have had his attention attracted to the fact that it was most unlikely in the first place that Chalifour could read English at all, and in the second place that he would be capable of comprehending even in the most general way the significance of the printing below which his signature was placed.
I conclude that treating the questions above stated as questions of fact simply, respecting which the onus is on the appellant company, the company has failed to acquit itself of that onus.
It is argued, however, that the presence of Chalifour’s name there creates a presumption of law that
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he understood the contents of the document to which he attached it. I think there is no such presumption of law. In In re Cooper, it is said by Sir George Jessel, that when a man signs a deed
there is a presumption of law that he knows its contents.
But I have just pointed out that there is here no evidence of anything amounting to the execution of a legal instrument or intentional taking part in a juridical act a condition implied in Sir George Jessel’s language when reading the context. I repeat that if it had been shewn, that Chalifour had placed his name on this document in circumstances which amounted to an affirmation on his part that he was entering into a contract with the railway company respecting the terms on which the company was to carry him then in the absence of fraud or some other special ground of relief his knowledge or his ignorance of the contents of the document would have been quite immaterial. Such principles have no application whatever in the state of the evidence in this case; the evidence does not bring us to the point at which they come into operation. All observations, therefore, in decided cases and in text books as to the effect of signing a document which is understood or represented to contain some disposition of property or to form some part of a business transaction are quite beside the point.
I have seen no case either in the English or American courts holding that a presumption of knowledge of the contents of a document signed arises in which it did not appear by direct evidence or manifestly from the circumstances of the case that the signer
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knew, at least in a general way, the nature of the document. Nor have I seen any case which affirms as a broad principle that every person signing a document purporting to be of a character to have legal effect, if operative, is deemed by a presumption of law to have a knowledge of its contents. On the contrary it is not so in the case of wills in respect of which the rule is, I think, correctly stated in Taylor on Evidence, paragraph 160. The testator is presumed to know and approve the contents of a will which he is proved to have signed, but the presumption is not a presumption of law, that is to say, it is not a presumption which acquits the proponent of the will of the burden of the issue resting on him as to the deceased’s knowledge and approval of the contents of the document. If it is shewn that the deceased was unable to read or if doubts are cast upon his capacity or if there are suggestions of undue influence in the circumstances, the proponent must remove these. The burden of establishing the affirmative of the issue remains to the end.
I think there is no rule or law that requires us to hold that the attaching of Chalifour’s signature in the circumstances disclosed by the evidence had the effect of shifting the burden which rested upon the appellant company of establishing the affirmative of the issue raised by their allegation that Chalifour was received by them as a passenger on the condition that they should be relieved of their primâ facie obligation to exercise due care in carrying him.
That the presence of Chalifour’s signature is in itself without evidentiary value or is itself of inconsiderable weight nobody would affirm. But when the circumstances are all considered the force of that fact seems to me to be entirely neutralized.
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For these reasons this appeal should he dismissed with costs.
Anglin J.—Joseph Chalifour, the husband of the plaintiff (by original action) lost his life in consequence of a collision, at Chapleau, Ontario, between a locomotive on the defendants’ railway and a car in which he was travelling in charge of cattle, on a pass issued to him pursuant to an agreement made by the defendants with his employers, the shippers of the cattle. Before leaving Winnipeg, Manitoba, Chalifour, on the demand of the defendants’ agent, placed his signature on the pass, issued to himself and another servant of the shippers, who accompanied him, beneath the following condition, which was printed upon it:—
Each of us, the undersigned, having charge of live stock mentioned on face hereof in consideration of the conditions of the Canadian Pacific Railway Company’s Live Stock Transportation Contract, agree with the company, while travelling on this pass to assume all risk of accident or damage to person or property, and that the company shall be entirely free from all liability in respect of any damage, injury or loss to any of us or the property of any of us whether such accident, injury, damage or loss is caused by the negligence of the company, or its servants or employees or otherwise howsoever.
The collision was found at the trial to have been attributable to the fault of the defendants and against that finding no appeal has been taken. Indeed, the negligence which caused the accident appears to have been gross and inexcusable.
The defence relied upon is that by the law of Ontario, to the benefit of which the defendant company claims to be entitled, it is not liable to the plaintiff because the conditions of the pass on which her husband travelled exempted it from liability to him for
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any personal injuries he might sustain in transit. In answer to this plea the plaintiff alleges:—
(1) That the relieving condition signed by Chalifour had not been approved by the Board of Railway Commissioners, as is required by section 340 of the “Railway Act.”
(2) That it should be held that Chalifour himself was not bound by the condition which he signed because it was not established by the defendants that he knew what it was or that they had taken reasonably sufficient means to bring its nature and purport to his knowledge.
(3) That the plaintiff has a right of action in the courts of the Province of Quebec, although she should be unable to maintain a similar action in the Province of Ontario, where the accident happened.
(1) The condition on the pass exempting the railway company from liability, which Chalifour signed, is couched in terms not materially dissimilar to those of a clause in a form of shipping contract approved by the Railway Board. The difference, if any, would tell rather against the company than in its favour. If the clause of the shipping contract bears the construction which the defendants maintain it should receive, the condition upon the pass is, I think, of the class authorized by the approval of the form of shipping contract.
It is perhaps open to question whether the clause in the shipping contract is not susceptible of a construction which would make it inapplicable to the liability of the railway company towards the man in charge of the live stock, and would restrict its operation
[Page 274]
to exempting the company from liability towards the shipper for such damages, if any, as might be occasioned to him through injury to his servant. The form authorized is of a contract which purports to be between the shipper and the company. Provision is made for requiring the signatures of the men to be carried in charge of the live stock to be placed on the back of the contract. But these signatures, when so placed, are not preceded by any words purporting to make the signatories parties to the instrument or to bind them by its terms. On the contrary, it is consistent with the form of the document that the signatures are to be obtained merely for purposes of identification.
On the other hand, the clause providing for exemption is scarcely such as we would expect to find it were it only against liability for the possible loss to the master occasioned by injury to his servant that provision was being made. Nor is it likely that this somewhat illusory right of the master was the subject of such careful attention at the hands of the railway company and of the Board of Railway Commissioners.
Chalifour was not asked to place his signature on the shipping contract, which contained a blank for that purpose, but on the pass issued to him and his fellow drover. This circumstance, however, I regard as immaterial, because section 340 does not require that the specific contract or condition under which the traffic is carried should be itself authorized, but only that it should be of a class which has been authorized. As at present advised I would not be prepared to hold against the defendants on this answer to their plea.
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(2) On the second ground of reply I also entertain an opinion favourable to them. Such authorities as Robinson v. Grand Trunk Railway Co.; Richardson v. Rowntree; Parker v. South Eastern Railway Co., and Henderson v. Stevenson, relied upon by counsel for the plaintiff, seem to me to differ widely from the case now before us. In none of them had a contract exempting from, or limiting, liability been signed by the passenger or bailor. Conditions printed more or less obscurely on the tickets or contracts issued by the defendants were relied upon as relieving them from their ordinary liability as carriers or bailees. In the Robinson and Richardson cases the plaintiffs, who were themselves the injured persons, deposed that they had been ignorant of the conditions relied upon and there was no evidence that they were aware of them. Apparently had they been aware that the printing on the tickets which they bought contained conditions relating to the terms of carriage they would have been bound by them, although ignorant of their nature and effect. Harris v. Great Western Railway Co.. Indeed, they would probably have been so bound, although unaware that the printed matter contained such conditions, if the defendants had done what, under the circumstances apparent to them when they sold the tickets, was reasonably sufficient to bring the conditions to the passengers’ notice. Marriott v. Yeoward Bros., at pages 993-4. In Parker’s Case, and in Henderson’s Case, where limitations of liability in respect
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of loss of luggage deposited at parcel rooms in railway stations were set up in defence, the plaintiffs gave similar evidence of their ignorance of the limiting conditions. In the present case there is no such evidence of ignorance. In each of the cases cited by Mr. Smith admitted or proven ignorance of the conditions relied upon by the defendants negatived actual consent to them by the plaintiff, and the question was whether the defendants had taken such reasonably sufficient steps to bring those conditions to the notice of the plaintiff that the latter was precluded from setting up such ignorance in reply to the defence based upon them. In the present case the question is whether the presumption of his knowledge of the tenor of the conditions on the pass raised by Chalifour’s signature to them has been rebutted—whether presumed knowledge has been disproved. There is no evidence in the record that Chalifour was ignorant of the nature of the conditions on the pass and certainly nothing to warrant an inference that he was unaware that the printing upon it, to which he affixed his signature, contained conditions relating to the terms of the contract of carriage. There is no evidence that the defendants’ agent had knowledge of his inability to read English or had any reason to suppose that he did not understand the printed matter, which he appears to have signed without any hesitation upon being asked to do so. Under such circumstances I am not prepared to hold that the agent was not justified in assuming that Chalifour knew what the printed conditions were. He was not bound to inquire into the idiosyncrasies of the particular passenger. Marriott
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v. Yeoward Bros., at page 993. In the absence of evidence of special circumstances which should have been apparent to the agent, indicating that Chalifour, notwithstanding his readiness to sign the condition on the pass, needed explanation of its nature and effect, I know of no ground upon which it should be held that the agent was under an obligation to proffer such explanations.
The production of the pass with the admitted signature of Chalifour upon it raises a presumption of law that he knew and intended to be bound by the conditions which he had subscribed. Re Cooper, at pages 628-9. The facts that he was illiterate — being able merely to sign his name — and that his knowledge of the English language, in which the pass was printed, was imperfect, do not, in my opinion, suffice to rebut this presumption. McDonald v. Hancock Mutual Life Ins. Co.; Harris v. Story; Doran v. Mullen.
The presumption arising from the signature is not that Chalifour had read the condition — the evidence perhaps sufficiently disproves that — but that he knew what it was — and that the evidence does not disprove. It is quite uncertain that he was not told the contents of the pass when he signed it. But, assuming that the defendants’ agent did not then give him this information, that does not suffice to warrant the conclusion that he did not possess it. He may have acquired it from other sources. He had been in the cattle business for two years, and, although this was
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his first trip to Winnipeg, he had been to Liverpool in charge of cattle and had probably travelled on railways in this country in the same capacity. At all events he was thrown into the company of men whose business it was to make such trips and who were presumably familiar with the conditions of carriage. His companion on the trip in question, who also signed the pass, was English speaking and probably knew its terms. It is not shewn that he did not communicate them to Chalifour, as, indeed, he may well have done. There is not a tittle of evidence to indicate that Chalifour was in any way misled or imposed upon, and there is nothing whatever to warrant the assumption — for such it would certainly be — that he signed the condition on the pass without knowing or ascertaining what it was, or under the belief that it was something other than it was in fact. I think it would be quite too dangerous upon such evidence as we have before us to hold that Chalifour was unaware of the nature and effect of the condition on the pass which he signed and on which he travelled.
Nor would that suffice to relieve him from the provisions of the contract if he was aware that the printed matter which he signed contained conditions relating to the terms on which the pass was issued to him. Parker v. South Eastern Railway Co.; Harris v. Great Western Railway Co.. His signature imports such knowledge, and it would, be a pure assumption that he did not have it. Indeed, the only evidence in the record is that he had a conversation on the subject of the condition with Devillers, who issued
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the pass. Devillers says of his interview with Chalifour:—
Q. Maintenant, pouvez-vous vous souvenir si vous avez eu aucune conversation avec lui au sujet des conditions?
R. Il n’y a pas de doute que j’ai eu une conversation avec lui et que j’ai dû lui donner les renseignements qu’il a dû avoir besion.
Q. Pouvez-vous vous souvenir si oui ou non il vous a demandé ce que voulaient dire les conditions et dans ce cas qu’est ce que vous lui avez répondu?
R. Je ne peux pas dire qu’il m’a demandé les conditions de ce contrat-là, de la passe, mais s’il me les a demandées, je les lui ai données avec les autres renseignements.
Q. Etait-ce la règle générale que vous suiviez?
R. C’était une pratique qu’on avait chez nous de donner les renseignements.
Q. C’était l’usage?
R. C’était l’usage du bureau de donner les renseignements autant pour les passes que pour ce qui regarde le live stock sur le chemin.
* * * * *
Q. Vous êtes certain que s’il vous a demandé quelques renseignements, vous lui avez donné des renseignements complets?
R. Oui, et bien explicites aussi.
The witness was not cross-examined in regard to this evidence. It at least indicates that Chalifour’s attention was directed to the condition he was asked to sign, if, indeed, he was not explictly told its nature and contents, I am not prepared to relieve the plaintiff from whatever consequences may ensue upon Chalifour’s having taken the pass on which he travelled with knowledge of the condition to which he affixed his signature. The case must, I think, be dealt with on the footing that, had Chalifour survived his injuries, he would not have had a cause of action against the defendants.
(3) But on the third point raised by the plaintiff I think we are bound by the decision in Machado v. Fontes; see, too, Carr v. Fracis Times & Co.;
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to hold that the defendants are liable in this action instituted in the Province of Quebec, although no action could have been maintained by her in the Province of Ontario because of the condition subject to which her husband had accepted carriage by the defendants.
I am, however, with respect, of the opinion, that Mr. Justice Cross has misconceived the ground upon which the liability of the defendants should be placed. He appears to have dealt with the case as if the crucial question were whether, on its proper construction, the contract signed by Chalifour purported to bar any claim that his dependents might have to recover damages sustained by them as a result of his death. That is not the contention of the defendants. Their position is that, in order to succeed, the plaintiff must shew that she has a claim actionable in the Province of Ontario as well as in the Province of Quebec, and that if suing in the Province of Ontario, she would fail, not because her husband had undertaken to contract away her right of action, but because, had his injuries not been fatal, he would have been unable, in view of his contract with the defendants, himself to maintain an action against them for damages, and his having that right is by the “Fatal Accidents Act,” 1 Geo. V., ch. 33, sec. 3, made a condition of the statutory right of action thereby given to his dependents. Conrod v. The King. The right of action in the Province of Quebec given in similar circumstances by article 1056 C.C. is not subject to this condition. Miller v. Grand Trunk Railway Co.. If, therefore, the wrong upon which the plaintiff founds her action had occurred in Quebec she would have had a claim
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actionable there. Although the wrong committed in Ontario does not give her a right of action in that province, because, had her husband survived his injuries, he would not have had a right of action against the defendants, the negligent act or omission which caused his death was not “authorized, or innocent, or excusable” in Ontario any more than it would have been in the Province of Quebec had it occurred there. There is under the circumstances no civil remedy for that negligence in Ontario, yet even there it entailed responsibility of another character, not, it is true, upon the present defendants, but upon the individual who was guilty of it. Criminal Code, sec. 283. While by no means satisfied that the view expressed by Mr. Westlake in his work on Private International Law (5 ed.), at page 286, that
it is probably the better opinion that no such independent action would lie where damages were not granted by the lex loci delicti commissi,
is not more logical; Evans & Sons v. Stein & Co.; Foote’s Private International Jurisprudence (4 ed.), 451, 453, 457-8; in deference to the view expressed by the Judicial Committee in Trimble v. Hill, at page 344, I bow to the authority of Machado v. Fontes, which in principle clearly covers the case at bar. Dicey on Conflict of Laws (2 ed.), 645. Indeed, if it be distinguishable at all, the distinction makes in the plaintiff’s favour. In the Machado Case the alleged wrongful act on which the suit was based was of a class not actionable in Brazil where it occurred. In the case at bar the wrongful act on which the plaintiff
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bases her claim was of a class actionable in Ontario, where it occurred, but the document executed by her deceased husband affords a defence to the defendants.
I understand that the conditions of the right to maintain an action in the Province of Quebec for a wrong committed outside the jurisdiction do not differ materially from those which obtain in territories where English law prevails. Dupont v. Quebec Steamship Co.; Glasgow and London Ins. Co. v. Canadian Pacific Railway Co.; Lafleur on Conflict of Laws, page 199 et seq. But see Grand Trunk Railway Co. v. Marleau.
I would on this ground affirm the judgment against the defendants and dismiss the appeal with costs.
Brodeur J.—I concur with Mr. Justice Duff.
Appeal dismissed with costs.
Solicitors for the appellant: Pentland, Stuart, Gravel & Thomson.
Solicitors for the respondent: Morand & Savard.
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