Supreme Court of Canada
Klock v. Lindsay, (1898) 28 SCR 453
Date: 1898-05-14
JAMES B.KLOCK, et al. (DEFENDANTS)
Appellant;
And
ARCHIBALD LINDSAY (PLAINTIFF)
Respondent.
ARCHIBALD LINDSAY (PLAINTIFF)
Appellant;
And
JAMES B. KLOCK, et al. (DEFENDANTS)
Respondent.
1898: Feb 25; 1898: May 14
PRESENT :—Taschereau, Gwynne, Sedgewick King and Girouard JJ.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
Landlord and tenant—Loss by fire—Negligence—Legal presumption— Rebuttal of—Onus of 'proof-—Agreement, construction of—Covenant to return premises en good order—Art, 1629 C. C.
A steam sawmill was totally destroyed by fire, during the term of the lease, whilst in the possession of and being occupied by the lessees. The lease contained a covenant by the lessees "to return the mill to the lessor at the close of the season in as good order as could be expected considering wear and tear of the mill and machinery.'' The lessees, in defence to the lessor's action for damages, adduced evidence to show that necessary and usual pre cautions had been taken for the safety of the premises, a night watchman kept there making regular rounds, that buckets filled with water were kept ready and force-pumps provided for use in the event of fire, and they submitted that as the origin of the fire was mysterious and unknown it should be assumed to have occurred through natural and fortuitous causes for which they were not responsible. It appeared however that the night-watchman had been absent from the part of the mill where the fire was first discovered for a much longer time than was necessary or usual for the making of his rounds, that during his absence the furnaces were left burning without superintendence, that sawdust had been allowed to accumulate for some time in a heated spot close to the furnace where the fire was actually discovered, that on discovering the fire the watchman failed to make use of the water-buckets to quench the incipient flames but lost time in an
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attempt to raise additional steam pressure to start the force pumps before giving the alarm.
Held, that the lessees had not shown any lawful justification for their failure to return the mill according to the terms of the covenant; that the presumption established by article 1629 of the Civil Code against the lessees has not been rebutted and that the evidence showed culpable negligence on the part of the lessees which rendered them civilly responsible for the loss by fire of the leased premises. Murphy v. Labbé (27 Can. S. C. R. 126), approved and followed.
Appeal by the defendants from the judgment of the Court of Queen's Bench for Lower Canada (appeal side), () which reversed the judgment of the Superior Court, District of Ottawa (), dismissing the plaintiffs action, and ordered a judgment to be entered in favour of the plaintiff for $10,000 damages and costs; and Cross-Appeal by the plaintiff to have the assessment of the damages under the same judgment increased.
The defendants leased a steam sawmill at Aylmer Que., from the plaintiff, for the milling season of 1896, a written memorandum of lease being signed by both parties, containing the covenant recited in the head note. The mill was destroyed during the month of May, 1896, during the night time, by a fire which originated in some unknown and mysterious manner in a heap of sawdust which had accumulated near the furnaces, in which a slow fire was kept up during the night to facilitate getting up steam for starting the machinery in the morning. Fire buckets filled with water were kept on the premises in convenient positions and force pumps provided, to be worked by steam, in the event of fire. A night-watchman also was employed by the lessees, his duty being to make periodical rounds of the mill premises and lumber yard and attend to the furnaces while the mill was shut down for the night. From the evidence it appeared that after the night-watchman
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attended to the furnaces at a quarter past eleven on the night of the accident, he had not returned to them until the discovery of the fire about three and a half hours later, and that there was no person left in charge of the furnaces during the time the watchman was making his rounds, which usually occupied about an hour and a half. On discovering the fire the watchman stated that he began to " fire up" for the purpose of increasing the steam pressure from 20 lbs., then showing on the gauge, to the 40 lbs. pressure necessary to work the force pumps, but that as the fire spread rapidly he raised the alarm. He stated that he began to call " fire " about ten or fifteen minutes after he first saw the flame. Another witness who saw the fire from some distance soon after it started, stated that it could have been extinguished then by throwing a pail of water upon it but this was not done In the trial court Mr. Justice Gill, dismissed the plaintiff's action with costs, but on appeal this judgment was reversed and damages awarded to the plaintiff with costs.
J.M. McDougall Q.C. and Lafleur for the defendants, appellants and respondents on the cross-appeal.
Geoffrion Q.C, and Henry Aylen for the plaintiff, respondent and appellant on the cross-appeal.
TASCHEIEAU J.‑ The lease in question contains covenant that the said Klock & Co. shall return mill to said Lindsay at close of season in as good order as can be expected considering usual wear and tear of mill and machinery Klock Co have failed with out any lawful justification to so return the mill as they had covenanted to do They are therefore liable would dismiss the appeal with costs.
As to the cross-appeal on the amount of damages we do not see anything in the record which would
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justify us in interfering with, the judgment of the Court of Appeal.
GWYNNE J. concurred in the judgment dismissing the appeal with costs for the reasons stated by His Lordship Mr. Justice Girouard, and was also of opinion that the cross-appall should be dismissed with costs.
SEDGEWICK and KING JJ. were of opinion that the appeal and cross-appeal should both be dismissed with costs for the reasons stated in the judgments reported.
GIROUARD J.—The respondent, proprietor of a sawmill in Aylmer, Que., demands from the appellants the sum of $20,000 being the value of the mill machinery and other accessories, which were destroyed by fire on the 29th of May, 1896, while they were in the possession of the appellants as his lessees. The action was dismissed by the Superior Court (Gill, J.), the defendants having, in the opinion of the learned judge, rebutted the presumption of law created by article 1629 of the Civil Code, but this judgment was unanimously reversed in appeal, (Lacoste, C. J., and Bossé Blanchet, Hall and Würtéle, JJ.,) and the defend ants were condemned to pay the sum of ten thousand dollars. Hence the present appeal by the defendants, and also a cross-appeal by the plaintiff who asks for an increase of the amount awarded.
The rules of law governing a case like this have been laid down by this court in Murphy v. Labbé, () and we have nothing more to say on the subject, and we Simply refer to that decision.
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As to the facts, we entirely agree with the Court of Appeal and fully concur in the elaborate review of. the evidence made by Mr. Justice Bossé, and have no hesitation in adopting his conclusions:–
Le fait d'avoir laissé dans ces conditions et sans surveillance pendant un si long temps les fourneaux allumés constitue une grave imprudence. Un bon pre de famille n'aurait pas agi ainsi. Le bran de scie accumulé entre le fourneau et la cloison et que l'on n'enlevait jamais avait dû sêcher à la chaleur du fourneau et constitutait un danger sérieux. En fait c'est là que le feu a originé. Cette négligence n'est pas celle d'un bon pere de famille.
Le fait de ne pas jeter sur ce commencement de flamme l'eau des sceaux qu'il avait sous la main, et de perdre un temps précieux dans une tentative déraisonnable pour obtenir une pression de vapeur additionnelle, quand ii lui en fallait au moins 40 lbs. pour faire fonctionner la pompe, est une faute grave du préposé dont le proposant est responsable. Et de tout ceci, il résulte que, loin d'avoir repoussé la présomption de faute établie par notre texte, les défendeurs ont montré qu'ils avaient commis trois fautes distinctes qui, en dehors de cette disposition denotre code, suffiraient pour engager leur réponsabilité. ()
We are therefore of opinion that the judgment appealed from should be affirmed and that the appeal of the appellants should be dismissed with costs and likewise that the cross-appeal of the respondent should be dismissed with costs against him.
Appeal and cross-appeal dismissed with costs
Solicitor for the defendants, appellants and respondents on cross-appeal: J. M. McDougall.
Solicitor for the plaintiff, respondent and appellant on cross-appeal: Henry Aylen.
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