Supreme Court of Canada
McFarran v. The Montreal Park and Island Railway Company, (1900) 30 SCR 410
Date: 1900-06-12
SARAH MCFARRAN (PLAINTIFF)
Appellant;
And
THE MONTREAL PARK AND ISLAND RAILWAY COMPANY (DEFENDANT)
Respondent.
1900: May 10; 1900: June 12
PRESENT: — Sir Henry Strong C.J. and Taschereau, Gwynne, Sedgewick and Girouard JJ.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA.
Married woman Community—— Personal injuries—Right of action—Pleading—Exception à la forme—Arts. 14, 116, 119 C. C. P, (Old Text) Appeal—Questions of procedure.
The right of action for damages for personal injuries sustained by a married woman, commune en biens, belongs exclusively to her-husband and she cannot sue for the recovery of such damages in her own name even with the authorization of her husband.
Where it appears upon the face of the writ of summons and statement of claim that the plaintiff has no right of action, it is not necessary that objection should be taken by exception à la forme. Absolute want of legal right of action may be invoked by a~ defendant at any stage of a suit.
Judgment of the Court of Queen's Bench, 3 Q. P. R. 1, over-ruled on. the motifs but affirmed in its result
Appeal from a judgment of the Court of Queen's-Bench for Lower Canada, appeal side (), affirming the judgment of the Court of Review at Montreal () which reversed the judgment entered in the Superior' Court District of Montreal, upon a verdict in favour of the plaintiff and dismissed the action.
The plaintiff, a married woman, brought the action for the recovery of damages suffered by her through bodily injuries caused by a collision which was-alleged to have occurred in consequence of the defend-
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ant's negligence. Her husband was made a party to the action for the purpose only of authorizing her to sue. The defence raised no question as to the plaintiff's right of action and upon verdict by the jury judgment was entered in her favour in the Superior Court. The defendant then inscribed the cause for revision, and, for the first time, raised the question that the right of action belonged to the husband alone and could not be exercised by his wife even with his authorization. The Court of Review on this ground, reversed the judgment of the Superior Court, set aside the verdict and dismissed the action with costs.
On appeal, the Court of Queen's Bench was of opinion that, by pleading to the merits without contesting the plaintiff's right of action, the defendant had waived the right to invoke that ground, but held, (Hall J. dissenting), that the action had been properly dismissed on the merits.
Macmaster Q C. and F S Maclennan Q. C. for the appellant. Decisions of provisional courts on questions of procedure should not be interfered with on an appeal to this court ; Ferrier v. Trepannier (). It was too late by the inscription in review to raise questions as to form of action. The judgment now appealed from holds that the defendant could not raise that question after verdict and judgment. Gladwin v. Cummings () ; Dawson v. Union Bank () ; Mayor of Montreal v. Brown (); Boston v. Lelièvre (). All informalities and nullities in the writ of service are expressly waived by the appearance of the defendant and failure to take advantage of them ; Art. 119 C C. P. Exception à la forme was compulsory Arts. 116-119 C. C. P.
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Art 1298 C.C. does not vest the husband with the exclusive power to exercise the wife's rights of action; it is permissive. He may "stand by " and allow his wife to exercise them with his assent or with the authorization of a judge. She is not ousted of the right of action merely because her husband may exercise it. When both join there can be no question. Art 1272 0 C does not include recovered damages for personal injuries, but only property reduced into possession. A married woman authorised by her husband may sue for damages for personal wrongs,'see Waldron v White () followed in Simmons v Elliott (); Turcotte v. Nolet () Brisbois v. Simard (). See also Ruckwart v. Bazin () ; Charest v. Tessier () ; Bonneau v. Laterreur (), and Art. 1282 C. C.
Many of the commentators and leading cases in France support this contention; Coutume d'Orléans, Art. 200 ; Pothier, Puissance du Mari, no. 6 ; 1 Baudry-Lacantinerie Coat. de Mar. p. 564, no. 734 p. 567 ; Dal. '58,2, 114; 86, 2, 38; '96, 2, 91; '98, 1, 121; S. V. '87, 2, 67.
Stuart Q.C. and Francis McLennan for the respondent. The right of action alleged belongs to the husband and under the regime de la communauté can be exercised by him alone. This defect is apparent upon the face of the summons and declaration and need not be pleaded by exception à Ia forme. ; it can be invoked at any stage of the proceedings without special pleadings. Arts. 387, 1272, 1292, 1298 C. C. Pothier Com. nos. 72 77 497' 1 Guillouard, no. 863; Dal. Rep. vo. Con. de Mar. nos. 583, 596, Supp. nos. 194,196 200 202. The husband alone can bring an
[Page 413]
action for and on behalf of the community, the wife cannot do so ; C. C. 1292 ; C. N. 1421 ; Pand. Fr, vo. Mariage, nos. 5516 to 5520; Pand. Fr. Rec. '97, 1 382 ; Dal. Rep. vo. Con. de Mar. nos. 1111, 1120, 1124; Cooper V. Cappel ().
The want of right of action has been properly raised without special pleadings and there can be no waiver ; the proceedings are null. Forbes v. Atkinson (). The defect is not a mere informality within Art. 116 C. C. P., nor is it of the class of objections generally raised by preliminary exception ; Cole v. Coté() ; Thiviergev. Les Curé, &c., de St. Vincent de Paul (). The effect of the plaintiff s description is to deprive her of any right to her conclusions, a ground for a demurrer, or motion in arrest of judgment (Art. 431), or for judgment non obstante veredicto (Art. 433), to be urged before the Court of Review under the old procedure but now the trial judge must enter up judgment in accordance with the verdict (Art. 491), and such an objection is heard for the first time in the the Court of Review Arts. 492 to 508 C. P.Q.
The judgment of the court was delivered by :
Taschereau J.—The appellant is a married woman, commune en biens, who brought this action for bodily injuries caused to her by the respondent, her husband being joined by the writ for the purpose of authorising her therein. The Court of Review (Taschereau, Gill and Doherty JJ.) dismissed her action on the ground that :
Considérant que sous le régime de Ia communauté l'action en dommages-intérêts à raison d'un délit ou d'un quasi délit dont la femme est victime, est une action mobilière, et que Ia créance née du fait' délictueux ou quasi-délictueux, tombe dans la communauté
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qu'en conséquence la femme, même autorisée du mari, ne peut exercer cette action qui appartient au mari seul, et qui doit être portée eu son nom comme chef de la communauté.
The Court of Appeal concurred with the Court of Review upon that point, but held that as the defendant had not taken the objection to the appellants right of action by exception to the form, it could not • avail itself of it. They, however, dismissed the action on the facts of the case, holding that the respondent was not guilty of negligence.
We are of opinion that the plaintiff's appeal from that judgment should be dismissed upon the ground that she had, as commune en biens, no right 01 action, and that the defendant was not obliged to plead it by exception to the form.
Upon the first point, that a married woman, commune en biens, has no right to such an action even with the authorization of her husband, it is not necessary, as we adopt without reserve the ruling of the two courts below thereupon, to cite any authorities. Decisions to the contrary may be found, but o on cite de pareils arréts comme on signale des écueils. They are illustrations of the saying " toutes les erreurs peuvent trouver des arrêts et tous les paradoxes des autorités. "
An attempt has been made to distinguish between an ordinary debt and the damages resulting from a tort on the ground that the former exists before the judgement and the latter are created by the judgment. But that is a fallacy which has received no countenance in the" courts below, and rightly so. The amount of the sum due for a tort under Art 1053 C. C. is only established by the judgment, but the liability for it exists from the date of the act that caused it ; so much so, that it is from that date that the prescription runs. it is a debt due from the date of the tortious act. Then even if it were the judgment
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that created the debt for a tort yet the action to have that debt determined would belong to the husband.
On the point of pleading we are of opinion with the Court of Review that if on the face of the writ and of the declaration, it appears that the plaintiff has no right of action, it is not necessary for the defendant to plead it by exception to the form. An absolute want of legal right to the action may be invoked by the defendant at any stage of a cause. The female plaintiff sues for a debt which, upon her own allegations, appears to be due to another. That cannot be called an informality, and Arts. 14, 116 and 119 of the old Code of Procedure referred to in the formal judgment of the Court of Appeal have no application. Her action could not be maintained even if the defendant had not appeared.
I need hardly say that this is not, as contended for by the appellant, one of these questions of procedure upon which this court does not as a general rule interfere with the rulings of the Provincial courts. It is a pure question of law.
The appeal is dismissed with costs in the Court of Review, the Court of Appeal and in this court against the appellant; each party paying his own costs in the Superior Court.
Appeal dismissed with costs
Solicitors for the appellant : Macmaster, Maclennan & Hichkson.
Solicitors for the respondent : Hatton & McLennan.
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