Supreme Court of Canada
Magill v. The Township of Moore and The Moore Municipal Telephone Association,
(1919) 59 S.C.R. 9
Date: 1919-05-06
William Magill and Louise Magill (Plaintiffs) Appellants;
and
The Township of Moore and The Moore Municipal Telephone Association (Defendants) Respondents.
1919: April 3; 1919: May 6.
Present: Idington, Anglin, Brodeur and Mignault JJ. and Masten J. ad hoc.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Appeal—Amount—Apportionment of damages—Findings of fact—Inferences—R.S.O., [1914] c. 151.
An action brought under the “Fatal Accidents Act” (R.S.O., [1914] ch. 151), by a father and mother to recover compensation for the death of their son by defendant’s negligence resulted in a judgment against defendants for $1,500 apportioned as follows: $500 to the father and $1,000 to the mother. This judgment was reversed by the Appellate Division and the action dismissed. On appeal to the Supreme Court of Canada:—
Held, that as the “Fatal Accidents Act” permits but one action to be brought for the entire damages sustained by the class entitled to compensation and the appeal must be from the judgment as a whole the full amount of $1,500 is in controversy in this appeal and the court has jurisdiction to entertain it. L’Autorité, Ltd., v. Ibbotson (57 Can. S.C.R. 340) dist.
Where the determination of an action depends on inferences to be drawn from established facts and the credibility of the witnesses is not in question an appellate court should review the inferences drawn by the lower courts and draw inferences for itself.
Idington and Mignault JJ. dissented, holding that the inferences drawn by the trial judge were correct and that his judgment should be restored.
Judgment of the Appellate Division (43 Ont. L.R. 372; 44 D.L.R. 489), reversing that at the trial (41 Ont. L.R. 375; 41 D.L.R. 78), affirmed.
APPEAL from a decision of the Appellate Division reversing the judgment on the trial.
The material facts sufficiently appear from the above head-note.
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Tilley K.C. and Logan for the appellant.
Towers for the respondent The Township of Moore
Weir for the respondent The Moore Municipal Telephone Association.
IDINGTON J. (dissenting).—I agree so fully with the reasons assigned by the learned trial judge for his judgment, and those reasons assigned by the learned Chief Justice of Ontario for not disturbing said judgment, that I need not repeat same here.
It occurred to me, however, in considering this appeal that the acts of the respondent township relative to the additional wires it put up and of which its reeve speaks as a witness, deserved, perhaps, more stress laid upon that phase of the case than has been directly done by either of said learned judges.
The reeve seems to put beyond doubt the fact that the lower wires were put there by the respondent township, as appears from the following:—
HIS LORDSHIP.—The wires were put on before the accident, and after the Board had made their report? A.—Yes, the wires were put on after the Railway Board had made their report. There was a space, with pins there for the six wires.
Having regard to the jurisprudence which requires, in many cases, as a condition precedent to liability therefor, notice of want of repair of a highway, to be brought home to the municipal authorities, and the fact that the original construction in question was put there by an independent corporation for whose mere negligence the township could not readily be held responsible, it relieves one, when having to pass upon the question raised herein, of much of the inherent difficulty of the case to be able to consider the party accused from the point of view of having been an actor, rather than as one having a mere possible authority to interfere and hence having only a remote duty, if
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any, to see that another having acquired a legal right to invade the highway, keeps strictly within its licence to do so.
And that is still more satisfactory (for the judge at all events) when having to pass upon the argument presented to us that the township is relieved by reason of the order of the Ontario Railway and Municipal Board authorizing, under the “Ontario Telephone Act,” the township to take over and impliedly to continue the works in question.
To that argument there is the answer that what the Board had to deal with obviously was the financial aspect and all incidental thereto. Its exercise of authority by the order relied on goes no further. It enabled the township to acquire the works and proceed to carry on the business.
In course of doing so the primary obligation resting upon it, was not to invade the right of everyone to enter upon the highway wherever and whenever he saw fit. No one, save others in the common exercise of the same right, has the slightest authority to minimize the free and untrammelled use of the highway for the purpose of carrying any load he chooses, unless and only so far as statutory authority has expressly limited said right, by conferring on others a privilege, or restricting the use thereof by someone else, by reason of anything the legislature sees fit to prohibit.
Nothing of the latter kind is in question herein. The only thing involved here is the exercise of a privilege; and the question is whether it has been so exercised according to law.
Clearly the burden of asserting and proving that such an exercise of privileged rights has been done within the law conferring it, rests upon him asserting it.
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And these principles are none the less obligatory because the township council happens to be acting in a dual capacity as it were of guardian of the public highway and of the public who travel thereon, and at the same time of a trustee for others interested in claiming the exercise of the privilege.
I think the township failed absolutely in proving any such legal exercise of privilege and did an illegal act when it put on those wires constituting the lowering of the head-room under which deceased had to drive.
The cross-bar being there may have been a temptation which the careless man directing the placing of the wires could not resist, but did not in law enlarge the privilege.
If there is no rule laid down in the statutes conferring such a privilege, as to the correct means of its exercise, the law, of course, will imply that a reasonable regard for the rights of others must be observed. That was wholly neglected by him who was too stupid or too careless to consider what was necessary to preserve for him owning the field and entering it at the point in question his right of access to the highway.
I cannot understand why a man should blind himself with such sophistries as put forward by one of the witnesses testifying to the mode of construction adopted, of one height of head room for a gate at a farm yard and another for that at a field liable to have as high loads carried in and out.
Curiously enough he recognized that a similar gate in same vicinity was furnished with a higher set of poles.
So much for the aspect of the matter if free from regulations having force by statute. When we apply these there does not seem to have been a vestige of
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right left in the township for adding to the wires already on as it did after the regulation of 20th April, 1914, which obliterated all former regulations of a like kind and established a standard which it was obligatory upon the township to have observed.
True it points to the provision in section 26 of the “Telephone Act” as if that constituted all prior erections valid. It does nothing of the kind as I read it. It preserves the rights of those erected, but of course, presupposes them to have been legally erected.
If my view, as above set out, is correct then this erection did not fall within the reservation and all done there must fall within the regulation.
The learned trial judge seemed troubled with the want of evidence of the exact date of the latest work. I respectfully submit that it was for those claiming the privilege to have proven they acted within and by virtue of it.
Holding as I do the erection illegal the argument presented in support of a defence of contributory negligence looks very much as if a ruffian had slapped in the face a man driving a load to market and thereby led to the team running away and killing the man, he could be excused from paying damages so resulting by shewing that the load was not built in the best way possible.
Indeed, some of the arguments elaborately put forward as to the alleged contributory negligence are amusing. Because the head-room was not ample, there should have been a wagon with higher wheels to render it less ample; or a culvert constructed which, of certainty, would involve an approach also lessening the head-room, or perhaps both; and, in short, deceased
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should not have been there; all of which seem ill-fitted to this case.
I have no doubt of the liability of the township and am only sorry I cannot see my way to deal with the quest on of giving relief over as desired so that the burden fall on those for whom the township were trustees and relieve the ratepayers not concerned.
But on this record, and having regard to the course of events at the trial, the only thing open to this court is to declare that the judgment should be without prejudice to that right if it can be established.
I, therefore, express no opinion as to such right either one way or another.
I think the appeal should be allowed with costs of appellant but not of respondent here and below as against the township.
I have some doubt if the extra costs created by adding said co-defendant should not be disallowed appellant.
ANGLIN J.—At the opening of the argument of this appeal a question of jurisdiction was raised by the court. While the judgment entered in the trial court was for $1,500, that sum was apportioned under sec. 4 (1) of R.S.O. ch. 151, $500 to the plaintiff William Magill, and $1,000 to the plaintiff Louisa Magill. We held in the recent case of L’Autorité, Ltd. v. Ibbotson, that where eleven plaintiffs joined in one action alleging injury by the same libel published in the defendant’s newspaper and each claiming $2,000 damages, an appeal to this court from the Court of Review by the defendant could not be entertained, the minimum appealable amount from that court
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being $5,000. There, however, each plaintiff had a distinct cause of action; each could have brought a separate action. There might be defences as to one or more which did not exist as to others. There might be an appeal as to only one of the plaintiffs or a separate appeal as to each of several or of all of them. Therefore as to each plaintiff the matter in controversy on the appeal was his own right to recover damages for the injury done to himself. The court regarded the action as a joinder of several actions.
Here the right of action is purely statutory (R.S.O. ch. 151, sec. 3). The statute gives but one action (sec. 6) to be brought by the personal representative, or, on his default (sec. 8), by one or more of the relatives of the class for whose benefit it may be maintained. The cause of action is single; it is for the entire damages sustained by the whole class in whose behalf the statute provides that compensation may be recovered. Either of the present plaintiffs might have maintained this action without joining the other and would have recovered the whole amount to which both have been held entitled. Before that amount is distributed any costs not recovered from the defendants may be deducted from it (sec. 4 (1)). The appeal to a divisional court was necessarily from the judgment as a whole. The appeal to this court is to restore that judgment as a whole, and it is the whole amount of it, $1,500, that is “the matter in controversy on the appeal” (“Supreme Court Act,” sec. 48 (c)). The court was unanimously of this opinion and jurisdiction to hear the appeal was, therefore, maintained.
The material facts sufficiently appear in the reports of the judgments of the learned trial judge and of the Appellate Division. I assume, without
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so deciding, that there was not statutory authority for placing the telephone wires just as they were, such as would bring this case within the principle of the decision in Canadian Pacific Railway Co. v. Roy. Having regard to the conflicting views as to the proper inferences to be drawn from the proven facts, as to which there is little, if any, dispute, I have thought it necessary to study and analyze with care all the evidence in the record. I shall, however, content myself with stating the conclusions to which it has led me. Unless in exceptional cases no good purpose is served, in my opinion, by setting out at length the considerations on which inferences of fact are based in an ultimate court of appeal. No question of credibility being involved, our right, if not our duty, to review the inferences drawn by the courts below is unquestionable. Dominion Trust Co. v. New York Life Ins. Co.
Before reversing the judgment appealed from, however, we should be satisfied that it is erroneous. I am not so satisfied. On the contrary, my study of the evidence has left me in absolute uncertainty as to whether the presence of the telephone wires at the gateway contributed at all to the upsetting of the load of hay which resulted in the death of James Magill. While it is quite possible that it did, having regard to all the circumstances, it seems to me more likely that it did not—that, if the wagon, loaded as it was, had been driven in the same course, the same results would probably have ensued had there been no wires to have been passed under. Solely on this ground and without finding anything in the nature of a voluntary assumption of risk or contributory negligence
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on the part of the deceased and also without requiring that it should be established that the negligence of the defendants was the sole cause of the occurrence which resulted in James Magill’s death, I would dismiss this appeal—with costs if demanded.
BRODEUR J.—I concur with Mr. Justice Anglin.
MIGNAULT J.—In my opinion this appeal should be allowed.
The learned trial judge found as a fact that the telephone wires in question, which were only 13 feet 9 inches above the ground, were so placed on the highway as to form an obstruction and interfere with the driver on the top of an ordinary load of hay in driving out of the field on to the highway. He also found that the position of the wires causing the deceased to stoop or to crouch down in passing under them was the proximate cause of the horses getting from under that control which was necessary to procure the safe passage of the load. He further found that the deceased was not guilty of contributory negligence.
The Appellate Division reversed the judgment, Sir William Meredith C.J. dissenting, the main reason, as I read the opinion of Mr. Justice Hodgins, being that while the learned trial judge was entitled to draw the inference that the obstruction resulting from the wires, having caused the driver to stoop or crouch down, was the proximate cause of the horses getting out of control, other inferences could be made, so that the matter was left in doubt and the present appellants could not succeed.
I think, with deference, that the inference drawn by the learned trial judge was a very reasonable one in view of the evidence of the boy Hird, who was on
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the top of the load with the deceased. There was a clearance of only 3 feet 9 inches between the top of the load and the wires, of which there were six on the lower cross bar, so that the driver would have to stoop and in so doing would be unable, while crossing a considerable space, to control his horses. Under these circumstances, I cannot say that the findings of fact of the trial judge are clearly wrong.
I also approve of the disposition of the case by the learned trial judge with regard to the respondent, The Moore Municipal Telephone Association.
I would allow the appeal with costs here and in the Appellate Division and restore the judgment of the learned trial judge.
MASTEN J.—I concur with Mr. Justice Anglin.
Appeal dismissed with costs.
Solicitor for the appellants: John R. Logan.
Solicitors for the respondent the Township of Moore: Cowan, Towers & Cowan.
Solicitors for the respondents The Moore Municipal Telephone Assoc.: Parlee, Burnham & Gurd.
57 Can. S.C.R. 340; 43 D.L.R. 761.
41 Ont. L.R. 375; 41 D.L.R. 78; 43 Ont. L.R. 372; 44 D.L.R. 489.
[1919] A.C. 254, 257; 44 D.L.R. 12.
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