Montreal Gas Co. v. St. Laurent / City of St. Henri v. St. Laurent, (1896) 26 SCR 176

Supreme Court of Canada

Montreal Gas Company v. St Laurent; City of St Henri v. St. Laurent, (1896) 26 SCR 176

Date: 1896-05-18

THE MONTREAL GAS COMPANY (DEFENDANTS en garantie)

Appellant;

And

AMABLE ST, LAURENT, ês-qtcalite (PLAINTIFF), AND THE CITY OF ST. HENRI (DEFENDANT)

Respondent.

THE CITY OF ST HENRI (DEFFNDANT)

Appellant;

And

AMABLE ST. LAURENT, es-qualite (PLAINTIFF)

Respondent.

1896: May 11; 1896: May 18

PRESENT :—Sir Henry Strong C.J. and Taschereau, Sedgewick, King and Girouard JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).

Negligence__ Obsttruction of Street__ Assessment of damages__ Questions Of

             fact—Action of warranty.

The Superme Court will not interest with the amount of damages assessed by a judgment appealed from if there is evidence to support it.

In cases of delit or quasi-delit a warrantee may 'before condemnation take proceedings en garantie, and the warrantor cannot object to being called into the principal action as a defendant en garantie. Archbald v. deLisle (25 Can. S. C. R. 1) followed.

APPEALS from the judgment of the Court of Queen's Bench for Lower Canada (appeal side) District of Montreal, affirming the judgment of the Superior Court at Montreal which condemned the defendant the City of St. Henri, as principal defendant to pay $2,122 for damages assessed and ordered the defendants en garantie, the Montreal Gras Company, to indemnify

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the said principal defendant against the payment of such damages with interest and costs.

The action was brought by the plaintiff against the City of St. Henri claiming damages for injuries sustained by his minor son Joseph St. Laurent, through being thrown from a carriage while driving at night on Notre-Dame Street in the city of St. Henri the carriage being upset, as alleged, through a heap of earth taken out of a cut made by the gas company in the street being negligently allowed to remain upon the highway so as to cause an obstruction in the street which could not be seen on account of the darkness and without enclosure or signal to prevent accidents or give warning of the dangerous state of the thoroughfare. The particulars of plaintiffs claim were as follows '.

The defendant called the gas company into the suit en garantie alleging that they had by contract agreed to be responsible for accidents resulting from the construction or repair of the system of lighting established by them to furnish gas to the citizens, and that the accident in question had been caused through the cut made in the street by them to repair gas pipes laid under the street and left unprotected by their fault and negligence. The principal action and the action en garantie were united and tried together in the Superior Court at Montreal.

On the principal action the trial judge found that the accident was caused by reason of the absence of

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light in the street and by* reason of the negligence with which the cut had been filled * that Joseph St. Laurent ' had been unable to work during four months and since the accident had only worked at intervals on account of pains which he suffered in the head; that he was unable to follow his trade as a seamster; that after the accident he was subject to nervous attacks during which he lost control over his reason and was at times violent and threatened to kill his mother; that it was uncertain whether he would ever get better * that he was still subject to such attacks and according to the medical evidence he was exposed to insanity and paralysis. The court also found upon the action en garantie that the accident had occurred on the gas company's cut and condemned them to pay the amount of the judgment rendered against the principal defendant. This judgment was affirmed in the Court of Appeal, and the decision of the Court of Appeal is now appealed from by both the principal defendant and the defendant en garantie. The appeals were heard together.

Bisaillon Q.C. for the appellant the Montreal Gras Co.

There was no warranty. There was no by-law or resolution by either of the corporations whereby the gas company was made responsible for damages. There cannot be warranty against delits or quasidelits and the gas company cannot in any case be called in as a warrantor in an action based on the delit or quasi-delit of the defendants.

Armstrong v. Barlhe ([1]); Corporation of Three Rivers v. Lessard ([2]); Mowat v. deLisle ([3]); Central Vermont Railway Co. v. The Mutual Insurance Co. ([4]) St. Jean v. Atlantic & North Western Railway Co, ([5]); Seguin v.

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City of Quebec ([6]); Corporation of St. Joachim v. Valoîi ([7]); Lyman v. Peck ([8]).

The item $2,000 being for future and conjectural damages could not be entertained. Sourdat ([9]) Art. 1075 c. C. There is no proof of damages in praesenti. The accident being due to carelessness in the maintenance and lighting of the street the municipal corporation must bear the blame. The gas company was not obliged to light the streets, or place watchmen on their cuts, and did all they were obliged to do by filling the cut they had made to repair their pipes. In any case the damages are excessive.

Madore for the City of St. Henri appellant and respondent. We rely upon the charter of the gas company ([10]), as making them responsible for the neglect of their servants in leaving their cut improperly filled in and a heap of earth and rubbish on the street. The damages assessed are excessive and not justified by the evidence. The physician heard as a witness in speaking of damages based his opinion upon mere theory and mentioned no facts from which conclusions might he drawn.

Geoffiion Q.C. and D' Amour for respondent St. Laurent. The evidence showed actual damages sustained by the plaintiff not only on which to base the finding of the items aggregating $122 but also various ways in which the respondent was and would be humiliated and distressed in his feelings and placed at a disadvantage with others in his straggle for a livelihood and the comforts and position to which he would otherwise have had a reasonable hope to attain on account of his actual condition, and from his risk of being incapacitated by insanity or stricken down by paralysis

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no one would employ him in those occupations where the lives and safety of others are dependent, not only ^L upon the employee's skill, but upon his physical condition and power of endurance. That provision for his future or the future of those dependent upon him, by means of life insurance or benefit societies would be debarred him, or secured only upon greatly increased rates of premium that his chances of settlement in life by marriage would be seriously impaired, and in other ways he sustains and will continue to sustain actual present damage even if the risk should never become a reality. The text of the judgments appealed from do not include an estimate of future or conjectural damages. Sutherland on Damages ([11]); Levi v. Reed ([12]); Cossette v. Dun ([13]); Gingras v. Desilets ([14]).

The medical testimony is uncontradicted and more over is corroborated as to the facts. Actual cases of similar accidental injuries were cited in support of the opinions expressed.

The judgment of the court was delivered by :

TASCHEREAU J.—These appeals must be dismissed. As to the amount of damages given by the judgment,. we cannot interfere. Cossette v. Dun (3); Bait v. Ray ([15]); Levi v. Reed (2). It certainly appears to be large, but, as the Court of Appeal says, there is evidence to support it, leaving out of consideration the evidence given as to problematic or uncertain future damages. As to the objection taken by the defendants en garantie against the right to an action en garantie in a case of dèlit, or quasi-délit it cannot now prevail. I refer to what I said for the court on that question in Archbald v. deLisle ([16]). The Court of Appeal itself in Montreal,

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by its judgment in the present case, disposes of the contention that the jurisprudence in the province does not admit of such actions whatever be the name ¿given to them in cases of délits or quasi-dèlits.

Appeals dismissed with costs.

Solicitors for appellant, The Montreal Gas Co. Bisaillon, Brosseau & Lojoie.

Solicitor for respondent : Amable H. Laurent.

Solicitors for the City of St. Henri : Madoe &c Guérin.