Supreme Court of Canada
Canadian Pacific Ry Co v. Robinson, (1887) 14 SCR 105
Date: 1887-06-20
THE CANADIAN PACIFIC RAILWAY COMPANY,
Appellant;
And
DAME AGNES ROBINSON (PLAINTIFF)
Respondent.
1887: Mar 8; 1887: Mar 9; 1887: June 20
PRESENT—Sir W.
J. Ritchie C. J. and Strong. Fournier, Henry and Taschereau JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR LOWER CANADA (APPEAL
SIDE). *
Damages—Misdirection as to solatium—New Trial—Art 1056 C. C.
In an action of damages brought for the death of a person by
the consort and relations under Art. 1056. C. C. which is a re-enactment and
reproduction of the Con. Stats. L. C. ch. 78, damages by way of solatium for
the bereavement suffered cannot be recovered.
Judgment of the
court below reversed and new trial ordered.
APPEAL from a judgment of the Court of Queen's Bench
for Lower Canada (appeal side) ()
reversing the judgment of the Court of Review on the motion granting a new
trial.
[Page 106]
This was an
action by a widow for herself and daughter for damages arising from the death
of the husband of the former caused by an
accident attributable to the fault of the defendant railway company. The
case was tried by a jury, and there was a verdict for the plaintiff.
The plaintiff’s
motion for judgment was met by one for a new trial on the part of the
defendants, which was made
on five different grounds: 1st. The omission from the assignment of facts for the jury of some
of the things necessary to be proved. 2nd. Misdirection. 3rd. Partiality
on the part of the jury. 4th. the absence of
an important witness at the commencement of the trial without any fault
of the party and whose evidence was
tendered before the close of the proceedings but refused by the Court.
5th. The discovery of new evidence
since the trial
The part of the
judge's charge reduced to writing conformably to Article 405 of the Code of
Civil Procedure, in consequence of
defendants' objections as to misdirection is as follows :-
"With reference to the fifth ground or head of objec-"tions,
and which is the only one involving a question "of law the judge told the
jury in effect, that in asssessing the amount of damages, if they found for
"plaintiff, they had right to and might consider the "nature of the
anguish and mental sufferings of the "widowed mother and her orphan
child."
And another of
the grounds for the motion for new trial was :–
"Because an important and essential witness on be "half of the
defendants was absent at the time of the "trial without any fault on their part and said witness ' appearing before the plaintiff had
submitted her case to the jury his evidence was duly tendered by the defendants, but was refused by the Court, the said
defendants
[Page 107]
having made due
diligence to have the witness "present in time at the said trial,. and he
having been "prevented by causes beyond his control or that of the d
defendants; and the evidence of the said witness being "still
obtainable."
“The following
is an extract of the minutes of the prothonotary for the 28th April 1883.
“The defendants
move that the case be postponed to examine Charles Scott, of Philadelphia, a
witness s summoned, now on his way to Montreal, Affidavit" of R. T.
Heneker fyled in support of said motion.
"The Court
allows ten minutes in order to give time" to said Charles Scott to appear
before this Court and " give his evidence.
"The time
allowed by the Court to permit witness " Scott to appear having expired,
the enquête of defendants is declared closed.
" The enquëte
on both sides is declared closed. " Mr. Harry Abbott, counsel for
defendants, addressed" the court and jury.
"At the
conclusion of Mr. Abbott's address Mr. "Charles Scott the witness above mentioned
being present into court, application is made by defendant's " counsel for
leave to examine him as a witness.
"Mr.
Hatton, one of plaintiff’s counsel, objects to the" examination of said
witness at this stage of the case.
"The
objection of Mr. Hatton is maintained by the "court." C. Scott's
affidavit is as follows :
Charles Scott, of Philadilphia, in the state
of Pennsylvania, one of the United States of America, manufacturer. being duly
sworn, doth depose and say:—
(1) I was the manufauturer and owner of the
machine in question in this cause at the time the accident in question occurred
to deceased, Patrick Flynn.
(2) The machine
on the day of the accident, was lying at the Grand Trunk Railway freight depot,
and was brought from there to the Canadian Pacific Railway Company's shops at
Hochelaga, upon a
[Page 108]
waggon to the
shed in question, hired by me.
(3) I had
previously applied to Mr. Blackwell, the then mechanical superintendent of the
Canadian Pacific Railway Company for permission to take the machine to the
Canadian Pacific Railway Company's shops, for the purpose of exhibiting a test
of springs which had been sent up here by me. Mr. Blackwell referred me to Mr.
Black, the mechanical foreman at Hochelaga Station. I asked Mr. Black if he
would hire me some men to unload this machine, or whether I would send the men
from the freight depot with the team. He replied that it was not worth while to
do that; that he would furnish the men to unload the machine and put it in the
shops; and I told him I would pay the men for their services.
(4) I arrived
at the shops shortly after the accident: and hear ing of it; expressed my
willingness to Mr. Blackwell to do something for the man, Flynn, who had been
injured; and gave him a cheque for one hundred dollars.
(5) I paid Mr.
Black the sum of twenty or twenty-five dollars, I am not quite sure which for
the services of the men who had engaged in unloading the machine.
(6) The machine
was in my possession, that is to say, upon the waggon and in its unloading,
until it was actually delivered in the Canadian. Pacific Railway shops, and it
continued to be my property and was afterwards removed from there in the same
manner that is without any special appliances except rails or planks, which
were not fastened together or secured in any particular manner, merely sliding
it off \and on the truck.
(7) I have
always moved these machines in the same manner, and have never had an accident.
I have never seen the rails or planks braced together under them; and I moved
this very machine again from the Grand Trunk to the Canadian Pacific Railway
new shops afterwards in the same manner.
And I have
signed.
The jury having
returned a verdict awarding $2,000 damages to the respondent and $1,000 to her
child, the Court of Review, on the motion for the new trial, granted the motion
for a new trial. On appeal to the Court of Queen's Bench, that Court reversed
the judgment of the Court of Review and ordered judgment to be entered for the
plaintiff for the amount of damages awarded by the jury.
Scott Q.O. and H. Abbott for the
appellants.
The following
authorities may be cited on the question of misdirection and improper rejection
of evidence :
[Page 109]
Fuller v. G. T.
R. Go. ();
Bourdeau v.
G.T. R Co. ().
As to the
solatium allowed, see Ravary v. G. T. R. Co. ();
St. Lawrence & Ottawa Ry. Co. v. Lett ().
The evidence
shows that the accident was caused by the negligence of fellow servants of the
deceased for which defendants are not liable See
McDonald on Master and Servant ();
Morgan v. Vale of Neath Ry. Go. ();
Lovell v. Howell ()
* Howells v. Landore Siemens Steel Go. ()
* Feltham v. England ().
Arts. 1056, 426
and 427 sub-sec. 7 were referred to.
Hatton Q C for
the respondents.
The grounds
relied on for a new trial should have been urged before the verdict was entered
It is too late to bring them forward now. See Cannon v Huot ().
Fuller v G. T.
R. Go. and Bourdeau v. G. T. R. Co relied on by appellants'. counsel do not
apply as the circumstances in those cases were different from the present. See
Hall v. Canadian Copper &
Sulphur Co. ().
The propriety
of the direction to the jury as to mental suffering, &c, must be decided
according to the law of Quebec. Ravary v. G. T. R. Go. (3) contains the law on
this point. The articles of our Code 1053—5 on this subject were copied from
the Code Nipoleon Arts 1382–6 inclusive
As to the right
to recover these damages see Labelle v. City of Montreal () * Evans v.
.Monnette ();
Richelieu u Nay. Go. v. St. Jean ().
The case of St.
Lawrence &c Ottawa Ry. Co v. Lett (4)
[Page 110]
was decided
under English law and does not apply to Quebec.
The following
authorities were also referred to: Sourdat ();
Dalloz Jurisprudence générale, Vo. Responsabilité No. 1; Toulhier (); Potter's
Dwarris on Statutes ()
The resolution of the Barons of the Exchequer in Heydon's case (); Allan et
at v. Pratt Court of Queen's Bench (appeal side) Montreal, coram
Dorion C.J. Tessier, Cross and Baby J.J., reported in Montreal Daily Gazette of
19th March instant by Mr. Kirby, editor of the Montreal Law Reports, from the
notes of Mr. Justice Cross who delivered the judgment of the Court which was
unanimous.
SIR W J. RITCHIE C.J. I think the damages must be
estimated not by the injured feelings of the plaintiff but must rest on the
privation of some advantage actually suffered or reasonably expected to be
suffered from the homicide and to be compensated by a sum of money in lieu
thereof.
The statute
provides for the assessment of damages by a jury in proportion to the injury
suffered by the wife, &c., from the death of the deceased. The code
provides for his consort and his ascendant and descendant relatives recovering
" all damages occasioned by such death" (), all damages
occasioned—that is to say, according to the loss they have severally and
personally sustained capabee of ascertainment by a reasonable calculation in
money, in which calculation the feelings of the parties are not to be taken
into consideration for the purpose of assessing damage, but the actual
pecuniary damage sustained.
I think the
reasoning of Justices Badgeley and Duval in Ravary v. Grand Trunk
Railway (),
[Page 111]
should prevail.
The code
appears to me to have intended to embody the provisions of the statute passed
when Ontario and Quebec were in union and to be substantially the same, and
under which statute the same rule for assessing damages would be applicable
alike to Ontario and Quebec; and this I cannot think the code intended to
alter, and which rule, on the authority of the cases in Ontario as well as
those in England under a similar statute and from which the Canadian act was
copied, clearly excludes damages by way of solatium for wounded feelings.
I think it
would be much to be regretted if we were compelled to hold that damages should
be assessed by different rules in the different provinces through which the
same railroad may run.
If the damages
are so assessed as solatium to the widow and next of kin for the bereavement
and mental suffering, how is it to be apportioned ? It seems to me very
difficult, if not impossible, to say how much the feelings of the mother and
each of the children have respectively suffered. I am of opinion that the
appeal should be allowed and a new trial ordered.
STRONG J.—The
respondent instituted this action, as well on her own behalf as in the quality
of tutrix of her minor daughter Mary Agnes Flynn, to recover damages for the
death of her former husband Patrick Flynn, which was the consequence of an
accident met with by the deceased while in the employ of the appellants when
engaged with other employees in unloading a machine from a waggon or truck, and
which accident, as the respondent alleges, was occasioned by the negligence of
the appellants in not providing proper appliances for performing the work in
the course of which it occurred, The respondent in her declaration
[Page 112]
claimed a trial
by jury The appellants pleaded two pleas; That the accident was not caused by
the negligence of the appellants but by the negligence, carelessness and
inattention of the deceased himself and that every possible means to prevent
any accident were used by the appellants' employees at the time in question—in
short a plea of contributory negligence. The other plea was the general issue.
The respondent replied to the first plea by a general answer denying its
allegations.
Assignments of
the facts to be proved having been furnished by the parties the cause came on
for trial on the 27th and 28th April 1885, before Mr. Justice Doherty and a
jury. The fact of the marriage of the respondent with the deceased and the
birth of the minor as issue of that marriage having been admitted, the jury
after having heard the testimony of numerous witnesses found in answer to
questions put to them by the judge (amongst other findings) :—That the deceased
Patrick Flynn was, in unloading the machine, acting under the orders of the
appellants' officers and so in the employ of the appellants; that the accident
was caused by the fault or negligence or want of skill of the company
appellants or their servants; that, the deceased Patrick Flynn was not guilty
of carelessness, negligence or rashness in connection with the unloading of the
machine; that the respondent had suffered damage to the amount of $2000 and the
minor child of the respondent to the amount of $1000 by reason of the death of
their husband and father. It appears from the report of the trial made by the
learned judge, and which forms part of the record, that overruling the
objections on that head of the appellants' counsel, he told the jury in effect,
that in assessing the amount of damages if they found for the respondent "
they had right to and " might consider the anguish and mental suffering of
the
[Page 113]
" widowed
mother and her orphan child."
The appellants
moved before the Court of Review for a new trial on five specific grounds: (1)
Because the assignment of facts submitted to the jury did not contain all the
facts necessary to be found; (2) Because the judge misdirected the jury; (3)
Because the jury exhibited undue partiality in favor of the respondent; (4)
Because an important witness for the appellants was without any fault on their
part absent at the time of the trial and that the witness appearing after the
evidence had been closed but before the respondent's counsel had begun to
address the jury the learned judge refused the application of the appellants'
counsel to have him examined: (5) Because of the discovery of new evidence. The
Court of Review considered all these grounds of the motion insufficient save
the fourth but upon that ground granted a new trial on payment of costs.
On an appeal
from this decision of the Court of Review the Court of Appeals disallowed all
the grounds for a new trial, reversed the judgment of the Court of Review, and
gave judgment in the respondent's favor on the verdict, for the damages found
by the jury. From this last judgment the present appeal has been taken to this
court.
I entirely
agree with both the courts below that the 1st, 3rd and 5th grounds assigned in
the motion for a new trial are insufficient, and further with the Court of
Appeals that the proposed witness Scott, whose absence without any fault on the
part of the appellants formed the 4th ground of appeal, was not so material
that it ought to have induced the court to remit the cause for the
consideration of another jury. It appears to me that Scott's evidence, as
detailed in his affidavit is not inconsistent with the finding of the jury that
the deceased was in the actual employ of the appellants
[Page 114]
when the
accident happened. It would not establish a case where workmen had (to use the
expression of the present Master of the Rolls in the case of Murray v. Currie ()
) been lent to another employer. The evidence of Oliver, the :appellants' own
witness, shows conclusively that the deceased and the men engaged with him in
unloading the machine which caused the accident were acting under the immediate
directions of Oliver as foreman of the gang, who was himself acting in
obedience to the orders of his superior officer, Jackson who acted as he did
with the sanction of Mr. Black the general foreman of the appellants'
mechanical works at Hochelaga.
In the face of
this evidence at the trial taken in conjunction with what Scott says in his
affidavit, no jury could be expected to find that the deceased was not in the
employment of the appellants when the accident happened, and I am therefore of
opinion that the Court of Appeal exercised a wise discretion in refusing to
grant a new trial on this ground in exercise of the powers conferred by article
426, No. 15 of the Code of Civil Procedure.
As regards the
first ground for a new trial there was ample evidence of negligence which was
entirely a matter for the consideration of the jury. The point principally made
under this head, in the argument of the present appeal, was however, that the
appellants were not responsible for the negligence of the fellow servants of
the deceased. This point, however well founded in fact would be an insufficient
defence in point of law, for, according to the best French authorities the rule
of modern English law upon which that defence is founded is rejected by the
French law which governs the decisions of such questions in the Province
[Page 115]
of Quebec ().
The point on
which I feel compelled with sincere respect to differ from the Court of Appeals
is that comprised in the second ground specified in the motion viz: v.
misdirection—the particular misdirection which I consider fatal to the verdict
being that the learned judge Strong J. told the jury that they were at liberty
in estimating the damages to consider the anguish and mental suffering of the
respondent and her child.
The present
action is founded on article 1056 of the Civil Code which is as follows :—
In all cases
where the person injured by the commission of an offence or a quasioffence dies
in consequence, without having obtained indemnity or satisfaction, his consort
and his ascendant and descendant relations have a right but only within a year
after his death, to recover from the person who committed the offence or quasi
offence, or his representatives, all damages occasioned by such death. In the
case of a duel, action may be brought in like manner not only against the
immediate author of the death, but also against all those who took part in the
duel, whether as seconds or as witnesses. In all cases no more than one action
can be brought in behalf of those who are entitled to the indemnity, and the
judgment determines the proportion of the indemnity which each is to receive.
These actions are independent and do not prejudice the criminal proceedings to
which the parties may be subject.
The first
question which presents itself is: Whether this article is to be taken as a
reproduction of the enactment contained in the consolidated statutes of Canada, cap. 78, and as providing for the continuance of the action conferred by that act,
exclusively of all other actions by the persons named in the article, for the
same cause or whether it is to be considered as putting an end to the remedy
given by the statute and as continuing or reviving an action known to the
former common law of Lower Canada, an action to be regulated as regards the
recovery of damages by the principles of French law and irrespective altogether
of the rules in relation to damages applied in proceedings
[Page 116]
under the act.
From the terms
of article 1056 it is apparent that the ' only action which can now be brought
by or on behalf of the persons named in it to recover indemnity for the death
of a relative is one subject to the provisions of the article, for it says in
express terms, that no more than one action can. be brought for that purpose»
Therefore the action given by article 1056 and the action conferred by the
statute cannot coexist as cumulative and alternative remedies, but the
statutory action must be considered as entirely superseded by an action
depending on this article of the code. The question we have to decide therefore
is one concerning the interpretation of the article, and the answer to it must
depend on whether or not we can say that article 1056 contains in its terms
intrinsic evidence of an intention to continue the remedies given by the
statute rather than that given by the common law»
The
consolidated statute cap 78 was derived from the statute of Canada 10 & 11
Vic. cap. 6. which in turn was (as is well known) a literal reenactment of the
Imperial Statute 9 & 10 Vie cap. 93 commonly called Lord Campbell's Act.
If, therefore, article 1056 is to be considered as embodying the provisions of
the statute it is clear that, according to a rule of construction which has the
sanction of the highest authority, it ought to receive the same interpretation
at our hands as that which the English courts have applied to the original act.
The principal
argument against the contention that article 1056 is to be interpreted in the
same manner as the statute is that derived from the former law of Lower Canada
as it existed at the time of the passing Of the statute in relation to the
remedial rights of the relatives of deceased persons whose deaths had been
caused by " délits " or quasi-delist."
[Page 117]
It appears that
such an action could have been maintained on well established principles of the
old ( French law. Further, it may be conceded that in P such an action the
plaintiff was not limited to an indemnity in respect of such pecuniary or
material loss as he might be proved to have sustained by the death of his
relative, but beyond and apart from these damages, he might also recover in
respect of that which the learned judge in his charge to the jury in the
present case defined as " the anguish and mental suffering of the
plaintiff and her child ;" and which Larombière (), in a passage
quoted in the respondent's factum, designates as t the moral wrong to the
natural and " legitimate affections of the party complaining ;" in
short that same element of damages which in the Scotch law is termed the "
solatium, " by which name also it has been rejected by the English courts
as a ground of damages to be recovered in an action brought under Lord
Campbell's act. Whilst, however, I am willing to concede for the present
purpose that damages by way of consolation for the bereavement suffered could
be recovered in an action brought at common law before the statute, the
judgment of Mr. Justice Badgley in Ravary v. G. T. R. Coy. (), and the
French authorities referred to therein shew that even this was by no means free
from doubt.
The
jurisprudence of the courts of the Province of Quebe bearing on the questions
involved in the present case, so far as it can be collected from the published
report of the decisions of those courts, is somewhat scanty. We have been referred
however, to some cases of which the three following may be particularly noticed
In the case of
Ravary v. The G. T. R.. Co' y. (2) which
[Page 118]
was decided by
the dourt of Appeals, in 1860, a majority of the court consisting of Sir H. L.
Lafontaine C. J., Mr. Justice Aylwin and lr Justice Bruneau (sitting ad hoc)
held, that irrespective of the statute an action could be maintained by the
widow and children of a man who had been killed by an accident resulting from
the negligence of a railway company against the authors of the death and that
in such an action damagres were recoverable in respect of a s solatium
"—and this decision was based on the jurisprudence of the French courts
both ancient and modern aid the opinions of writers of authority collected from
several legal treatises, all referred to in the full and learned judgment of
Mr. Justice Aylwin. It also seems to have been the conclusion of the majority
of the court, that, even in an action avowedly brought under the statute, the
rule as to damages would be the same and that in this latter case the decisions
of the English courts against such a measure of damages would not apply. This
decision was far from being arrived at unanimously Mr. Justice Badgley, in a
judgment entitled to weight as well from the force of argument as from the
great research which it displays, recorded his reasons for an opinion opposed
to that of the majority of the court, and in this latter opinion Mr. Justice
Duval concurred. In the Court of Review, on the motion for a new trial in the
same case, two of the: three judges who composed that court, Mr. Justice
Mondelet and Mr. Justice Day, expressed opinions coinciding with that of
Badgley J, while the third judge, Mr. Justice Smith, was in favor of sustaining
the verdict by which the jury had given damages for a considerable amount
without any proof of material or pecuniary loss, such damages being attributed
by them to a solatium exclusively. This verdict, too, was in direct
contradiction, to the charge of the judge who presided
[Page 119]
at the trial,
by whom the law was laid down in the same way as it was afterwards adopted by
the majority of the Court of Review and by Mr. Justice Badgley in the Court of
Appeal.
There Was,
therefore, very considerable dissent from the judgment of the Court of Appeal,
and opposed to the views of the four judges whose opinions there prevailed
there were those of five judges who all at different stages of the same cause,
gave judgments in it, including the judge who presided at the trial, two judges
in the Court of Review, and the two dissentient judges in the Queen's Bench. It
is not therefore, surrising that in the case of Provost v. Jackson (), decided in
the Court of Appeals at Montreal in 1863 on an appeal from a judgment
pronounced in the Superior Court in 1860, we find no disapproval expressed by
the majority of the court of the " motifs '' of the judgment of the
Superior Court in Review, in which it was considered that an action by a father
and mother for causing the death of their son depended entirely on the statute,
although the ratio decidendi of the Court of Appeals certainly was the
failure of the plaintiffs to prove their intermarriage. In Ruest v. Grand
Trunk Railway Coy. (),
decided in 1878, Mr. Justice McCord determined that the action given by article
1056 is exclusive of any other action to recover damages for the loss suffered
by the death of a relative within the degrees provided for by the article and
he held that no such action was maintainable by the brothers and sisters of the
deceased. The learned judge's own language is as follows :—
But no such
action lies except under the terms of article 1056 the express inclusives of
which excludes the right of any other persons than those herein mentioned
According to the terms of this article the consort and ascending and descendant
relations can
[Page 120]
alone have the
right to claim damages for death occasioned by quasi-offence. In so far
therefore as the brothers and sisters of Ruest are concerned the action is not
founded and the defence en droit will be maintained.
These are the
only authorities to be found in the reports which throw any light on the
question we have to decide on this appeal.
The conclusion
I have arrived at after considering these and other authorities and. the terms
in which the fourth section of the statute is expressed as well as those of the
articles, is, that the common law action was entirely superseded, at least as
regards the persons mentioned in the second section as those for whose benefit
an action might be brought, by the action given by the statute, and that
article 1056 was a reenactment and reproduction of the statute and is to be
interpreted in the same way, The fourth section of the statute provides that
" not more than one action ' shall lie for and in respect of the same
subject of complaint".—that is " a subject of complaint "
entitling the parties named in the 2nd section to an action to be brought by a
nominal plaintiff for their benefit. I think it impossible that the intention
of the legislature to exclude all other actions for the benefit of the same
parties and for the same cause, at common law or otherwise could have been more
explicitly demonstrated than by these words. I am therefore of opinion that
from the date of the enactment of the statute the remedy for the causes
mentioned in it was confined to an action founded on it. In like manner,
entirely agreeing in this respect with Mr. Justice McCord's decision in Ruest
v. G T. Ry. Co., I am of opinion that the almost identical words,
" not more than one action can be brought on behalf of those who are
entitled to the i indemnity " contained in article 1056, have the same
effect of restricting the remedy of the relations named in the article to an
action founded on its terms.
[Page 121]
Then the state
of the law of Lower Canada at the date of the promulgation of the Civil Code
being such as I have mentioned — that the only remedy for persons coming within
the degrees of relationship specified in the statute, was an action founded on the
statute—it would seem to be a reasonable inference, apart altogether from the
internal evidence afforded by the language and provisions of the article, that
the action given by it was intended to afford the same remedy and to be subject
to the same limitations and restrictions as the former statutory action. When,
however we find on an examination of the terms in which the article is
expressed that it includes the same persons as those for whose benefit an
action under the statute could alone be maintained that it is exclusive of all
other actions for the same injury that it is subject to the same anomalous
condition that the right to institute it may be intercepted by indemnity or
satisfaction made to the deceased in his lifetime and that the same exceptionally
short period 01 prescription applies to it and that whilst in all these
features it resembles the statutory action, it differs entirely and radically
from the action given by the old French law, it appears to me we may safety
conclude that it was not intended by the code to lay down any new law or to
give any new remedy or to revive the old extinct common law action, but merely
to continue the same state of the law as that which previously existed under
the statute.
This also
accounts for the absence, as applied to art. 1056 of the marks by which the
codifiers distinguished new law.
Then taking it
as established that art. 1056 is to be read and interpreted as an adoption into
the code of the provisions of the statute, and having regard to the history of
the legislation already stated, we are bound to follow the English course in
the constructions
[Page 122]
which, in the
early case of Blake v. Midland Railway Company (), they placed
on the original enactment, viz: that it does not authorize the assessment of
damages in respect of the injured feelings and affections and mental sufferings
of the party complaining. The rule that courts in construing colonial statutes
copied from Imperial legislation, ought to follow the construction applied by
the English courses has the sanction of the highest authority. In the case of Trimble
v. Hill ()
the Judicial Committee of the Privy Council lay down the rule just adverted to
as one which ought invariably to be acted on and applied by colonial courts in
interpreting statutes of English origin. It is true that the case of Blake v.
Midland Railway company was not a decision of a Court of appeal, hut,
independently of being the decision of a court comprised of very eminent
judges, of whom the author of the act, Lord Campbell, was one, it has ever
since been acquiesced in by text writers and acted on by the courts as an
authoritative construction of the act. Moreover, it was tacitly recognized as a
sound decision in Rowley v. P. & N. W. R. Co. () where the
principle son which damages are to be calculated in an action brought by a
widow and children for indemnity under Lord Campbell's act were considered, and
certain rules laid down which entirely exclude the element of damage now in
question.
I am therefore
of opinion that the learned judge should have instructed the jury that the
plaintiff and her child were not entitled to recover any damages in respect of
and by way of consolation for the bereavement they had suffered and that his
direction to the contrary was erroneous.
Further, in
view of the great injustice and inconvenience
[Page 123]
which would be
sure to result if so impalpable a ground of damages as the solatium could be
taken into account by juries in estimating damages in cases like the present, I
should, if the question came before us without previous decision, as nova
res, for these reasons, which are very ably pointed out in the judgment of
Mr. Justice Cross, unhesitatingly adopt the same conclusion as that arrived at
in the case of Blake v. Midland Railway Co.
I am of opinion
to reverse the judgment of the Court of Queen's Bench and restore and affirm
that of the Court of Review for a new trial.
FOURNIER and HENRY J.J. concurred with the Chief
Justice that there had been misdirection.
TASCHEREAU J.—I
am of opinion that the judge at the trial misdirected the jury in telling them
that in assessing the amount of the damages, they might consider the nature of
the anguish and mental sufferings of the plaintiff, or in other words, that
they could make an estimation of her tears, sighs, and sorrows, in pounds,
shillings, and pence.
Though the
French law allowed a larger basis for a pecuniary compensation in such cases, I
take it that now with us, under article 1056 of the code which is the
reenactment of our statute 10—11 Vic. similar to Lord Campbell's Act there is
no difference between the English law and ours on the subject. The Privy
Council held in Trimble v Hill (1) that when a colonial
legislature has passed an act in the same terms as an Imperial statute and the
latter has been authoritatively construed by a Court of Appeal in England, such
construction should he adopted by the courts of the colony. And in City Bank
v. Barrow (2), in the
House of Lords, on the interpretation of an article of
(1)5 Àpp. Cas. 342. (2) 5 App. Cas. 664.
[Page 124]
our code Lord
Blackburn said that where a colony reenacts an imperial statute it is as if the
English law was carried over bodily to the colony, and in construing" the
colonial law, the interpretation given to the similar law by the courts in
England should be followed. I think this reasonable rule should be followed in
this case.
When by the
10th and 11th Vic. the legislature of the United Canada’s reenacted Lord
Campbell's act, it was the intention not only to provide for damages resulting
from death in Upper Canada but also to put the law in both Provinces on the
same footing. That is why the act was extended to Lower Canada, though the
common law then gave a remedy for such injuries It cannot have been intended by
this legislation, that if a man was killed in Upper Canada no solatium should
be granted to his wife or legal representatives by way of damages, but that if
he was killed in Lower Canada such a solatium could be given. That in the
present case, for instance, this plaintiff can get a solatium, because her
husband was killed in Lower Canada whilst if he had been killed a few miles
further west, in Upper Canada, none would be granted under the same statute The
statute and the code entirely changed the laws. 1st, As to prescription; by
article 2261, C. C. it would be two years; 2nd As to the parties entitled to
the action; 3rd, In giving only one action to all the parties injured; 4th, In
denying, as in England (),
the action where the deceased party had himself obtained an indemnity (). From this it
is evident in my opinion that the action now given is an entirely different one
from the common law action. And if different in four such important respects,
can it be contended that as to a fifth, the measure
[Page 125]
of damages, the
principles of the common law action can be engrafted on the statutory action ?
This obviously would be to set at naught the intention of the legislator, who,
for no other reason than to have the law in both Canadas on the same footing has
extended this legislation to Lower Canada, and this no doubt as it was to
principally affect companies incorporated for and running their roads through
both Provinces.
It could not be
contended, I take it for granted, that, if the English act had been extended to
Scotland, it would not receive there the same construction as is given to it by
the courts of England. A statute would not be held to mean one thing in England
and another in Scotland. And so here, I take it, it cannot mean in Lower Canada
what it does not mean in Upper Canada, or give a. larger remedy in one Province
than in the other.
Furthermore, in
this section itself (1056) of the code, there is intrinsic and, to my mind,
unmistaken able evidence that the Legislature intended that the measure of
damages in such cases should be there after the same in Lower Canada as in
Upper Canada. That is in the enactment that if the deceased has himself
obtained an indemnity, this will be a bar to any action by his consort or legal
representatives for their injuries resulting from his death. This, as I have
already remarked, is entirely new law. Previously, at common law, the indemnity
received by the deceased, or the action by him instituted for his injuries was
no bar to his consort or relatives' action for their own injuries resulting
from his death. They were held to be two distinct rights giving the two
distinct actions ().
But now the code, as the statute did, though in no such express words, clearly
re fuses a new action to the survivors in such cases ().
[Page 126]
Now, is this
not, as Mr. Justice Cross well remarked in the court below, enacting as clearly
as if it were laid down in so many words, that anguish of mind and mental
sufferings are not to, be the subject of pecuniary compensation. The injured
man, if he settled before his death with the party who caused his injury,
obviously did not settle for his .wife's or children's anguish of mind caused
by his death. So that when the action in that case is taken away from said wife
or children it is, it seems to me, equivalent to an express enactment that
their anguish of mind is no ground for damages.
The code, in my
opinion, has taken away the common law action and the remedy it gave.
When Ravary v.
The G T. R. ()
was decided, before the code, it might have been a question whether the statute
had had that effect. But since the code there can be no doubt on the subject,
and that case upon that ground is entirely distinguishable.
It is expressly
enacted by art. 2613 thereof that all laws previously in force are abrogated in
all cases in which express provision is thereby made upon the particular matter
to which such laws relate. This clearly leaves for an injury caused by death
nothing hut the action given by art. 1056, and the jurisprudence is all in that
sense. Provost v. Jackson, judgment of Superior Court (); Ruest v.
G. T. By. ();
G. T. Ry. v. Godbout ().
And if the statutory action only now lies, the statutory damages can only be
allowed. More» over, when Ravary v. The G. T. R. was decided Read
v. The Great Eastern Railway had not been decided, and there was not
in the statute, as there is now in art. 1056, the express refusal of the action
where the
[Page 127]
deceased had
received an indemnity. That consideration was consequently not before the
judges who determined that case. I would, for all these reasons, hold that the
charge of the learned judge at the trial in this case is as illegal here as it
would be in Ontario or in England.
But I go
further and would hold that even under the French law, supposing that it ruled
this case, the charge of the learned judge was illegal by its vagueness.
Laurent ()
would call it dangerous. I would say it is illegal, because it is dangerous.
The jury may have been led to believe under the terms in which it was given,
that they might consider the anguish of mind and mental sufferings of the
plaintiff during the fifteen months that elapsed between the accident to the
husband and his death. Clearly this could not be taken into consideration.
Then, apart from this there is not a single authority that sustains such a
charge. In this case, there is even no evidence of what the deceased earned at
his death; nothing but the speculative opinion of one witness who hardly knew
him. No evidence whatever of how much it would take to educate the child and to
support her or her mother not a word of all this None. All the authorities
cited by Mr. Justice Badgley in Ravary v. The G. T. R. demonstrate
that there must be some basis upon which the damages can be assessed. I need not
refer to them more particularly here As said by Mr. Justice Mondelet in that
case in the Superior Court ()
:—
If vindictive
damages were to be given, without any rule, upon the mere caprice of juries
excited by public clamor, there would he no safety for railway companies
against the most monstrous fines.
If a jury could
be charged, as has been in this case the court would lose all control over
their verdict. In the present case for instance a verdict for $10000 or $200000
would he unassailable, if this one is. It is not
[Page 128]
a question of
excessive damages. How could the court say that the damages are excessive, if
it has no means to ascertain what principles and for what they have been
assessed. The court it seems to me should direct the jury to state what amount
they grant for actual real damages, and what amount for mental sufferings or
anguish of mind. Otherwise, the court has no check on the verdict. The jury
should also be charged that though they may take into consideration the mental
sufferings and anguish of mind of the plaintiff", yet the damages must not
be assessed to an amount out of proportion with the actual pecuniary loss they
have suffered. Such are the remarks of the court of Marseilles in the case
cited by Laurent (),
of Compagnie P. L. M. v. Olivier (). If in France, where the damages are à Parbitrage du Juge, these considerations guide the
courts in the assessments of such damages 1 think that with us in a case tried
by a jury the court should direct them that they also are to be guided by these
considerations. The jury should also be told of the rule of law, that, for a
death caused by an accident they cannot give as heavy damages as for a death
caused by an assassination or any crime a rule admitted by all the writers, and
mentioned by the court in the case of Enfants Vervieis v. Constant (). The law
authorizes vindictive damages and damages for a prejudice moral in cases
where the party causing the death has acted with malice or committed a délit,
but not when the death was caused by a quasi-délit. For this
proposition we have no less an authority than that of the Cour de Cassation,
the highest tribunal in France in the case of Re Roche () who held that
:
Les
dommages intérêts reclaims en matière criminelle ne doivent pas nécessairement
être restreints, come en matière civile au préjudice
[Page 129]
matériel
résultant du crime ou du délit; ils peuvent aussi, comprendre le préjudice
moral causé à la partie civile par ce crime ou par ce délit.
Said
the court:—
Attendu
que cet article n'est point applicable aux dommages intérêts résultant d'un
délit ou d'un quasi délit; que les dommages intérêts réclamés en matière
criminelle ne sont pas de la même nature, et peuvent n'être pas restreints
comme doivent l'être ceux qui sont réclamés en matière civile, que le préjudice
matériel résultant d'un crime ou d'un délit peut, en outre, être accompagné
d'un préjudice moral qui peut entrer dans les appreciations du juge et, par
consequent, influer sur la quotité des dommages-intérêts qu'il accorde à la
partie civile Rejeté.
Is not this
holding, as unequivocally as can be, though in the negative form, that though
for a crime damages for a moral loss can be given, yet for a délit civil or
a quasi-délit, none but the real damages for the pecuniary loss are
allowable? And it is only for murders or other crimes that all the books and
arréts in France before the bodes allow damages. This remark applies
specially to the authorities cited by Sourdat at No. 54 (). The arret of
the 3rd of April, 1685 (),
(the reference in Sourdat is wrong) was in a case of murder in fact these cases
are all trials in the criminal courts.
The respondent
has invoked as supporting the legality of the judge's charge to the jury a
passage from Sourdat ()
where the author says that an indemnity is due to a son for the death of his
father even if his father had been entirely supported by him. This, is a mere
opinion of the author, coupled with the argument of a member of the French bar
in one of his cases and then it must be remarked that the author in that
passage, as in No.. 54 of the same book, speaks of a death caused by a murder.
The same remarks applies to the passage in Demolombe (). To the
opinions of
[Page 130]
those
commentators I find a forcible answer by the annotator to the Magaud case
() in Dalloz in
the following words :—
Ces
arguments inspires par des reminiscences de notre ancienne législationouu
l'action publique et l'action civil n'étaient pas nettement distinguées comme
elles l'nt été par notre droit penal moderne ne sont conformes ni aux principes
généraux sur Ia responsabilité, ni même aux sentiments qu'éveille aujourd'hui
généralement dans une famille l'accident ou même le crime qui lui a enlevé un
des siens. II ne répugne pas moins à la loi qu'aux sentiments les plus nobles
de l'âme humaine de faire d'un malheur de famille une source de vengeance et de
gain. La personne qui a perdu un enfant ou un père qui était à sa charge ne
nous parait donc pas fondée à venir demander à l'auteur de l'accident le prix en
argent de sa douleur L'individu qui a éprouvé un prejudice moral, par suite de
l'atteinte portée a sa réputation ou à son honneur, est bien venu à réclamer
une réparation, parce qu'il craint d'avoir perdu l'amitié, l'estime et le
respect des honnêtes gens, et qu'il veut prendre des mesures pour faire taire
ou pour punir le mensonge et Ia calomnie. Mais la personne à qui un accident a
enleve un père infirme ou un jeune enfant, n'a reçu aucune atteinte dans sa
consideration 5 son maiheur a dû au contraire lui attirer de nouvelles
affections et de nouvelles sympathies Et puis, si de pareilles questions
pouvaient s'agiter devant les tribunaux,
il
faudrait permettre d'apprécier, de discuter, et même de nier les sentiments de tendresse
et d'amitié qui existaient entre la victime et la réclamante :
Enfin
quel criterium guiderait le juge dans la fixation des dommages-intérêts ? Il en
faut donc revenir à ce principe qu'on ne peut exiger une reparation pécuniaire
qu'à raison du prejudice souffert dans ses intérêts matériels ou moraux* mais
non dans ses affections et ses sympathies.
Le juge
accueillera la demande d'un pŁre, d'un enfant. d'une veuve, venant dire:
cette mort, qui me frappe dans mes affections les plus chéres, porte ausii un
grave préjudice à ma fortune, à mon avenir, ou à mon honneur. Mass ii ne
prétera pas l'oreille au plaideur qui osera dire: cette mort me eause une
immense douleur et des regrets éternels ; diminue zen l'amertume et la
durée au moyen d'une somme d argent !
I refer also to Dalloz ().
11 ne
suffit pas, pour justifier l'intervention civile d'une personee qu' elle ait
été blessée dans ses affections, ses goûts ou ses habitudes, par un fait
criminel: il faut, que I'action civile soit ifondée sur un prejudice sérieux et
appréciables
[Page 131]
And at
No. 83— Une lésion purement morale Peut servir de fondement à une action civile
des one cette lésioin résulte d'un crime ou d'un délit.
And to Mangin,
Action publique ()
where he says :—
Il ne a
suffirait pas non plus Que le delit l'eût blessé dans ses affections.
Also to
Larombière ()
where the writer gives the considerations that should guide the judge in the
assessment of damages for mental sufferings, which I hold the judge with us
should mention to the jury for their guidance.
In the Magaud
case ()
a widow with her children was suing a railway company for damages caused by the
accidental death of her husband. The plaintiff recovered but there is not a
word in the judgment of solatium or damages for mental sufferings on the
contrary, the court distinctly holds, that
La
reparation devant toujours être calculée sur le prejudice réel et sur la
privation plus ou moins grande imposée a celui qui se plaint.
Likewise in a
case of Boesch v. Gitz cited in Merlin (), where 600
francs ($120) are granted to the widow of a man who has been killed by the
defendant, " pour dommages reels," but not a word of damages for
sorrows and anguish of mind. The same remark applies to the case of Caderousse
Gramont ().
I refer also to
a case of Joire, 17 Febry, 1819, ().
It was there held
that
Le
prejudice résultant d'un délit ne donne par lieu à des dommages interêts s'il
ne constitue qu'un préjudice moral et non un préjudice pécuniaire.
I am of opinion
that the appeal should be allowed and a new trial granted.
Appeal
allowed and new trial ordered with costs.
Solicitors
for appellants: Abbott, Tait, Abbott & Campbell.
Solicitor
for respondents: J. C. Hatton.
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