British Columbia Electric Railway Co. v. Turner, (1914) 49 SCR 470

Supreme Court of Canada

British Columbia Electric Railway Co. v. Turner, (1914) 49 S.C.R. 470

Date: 1914-02-23

The British Columbia Electric Railway Company (Defendants) Appellants;

and

Elizabeth Turner, and Margaret Trawford, George Trawford and Miriamtraw. Ford, By Elizabeth Turner, Their Next Friend (Plaintiffs) Respondents.

1914: February 10, 11; 1914: February 23.

Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.

On Appeal From The Court of Appeal For British Columbia.

Practice—Action by dependents—B.C. "Families Compensation Act"—Release by deceased—Defence to action—Repudiation—Fraud—Setting aside release—Personal representative—Right of action—Return of money paid—Limitation of action—General statutory provision—Carriers—Private Act—B.C. "Consolidated Railway Coy's Act"—Statute—R.S.B.C., 1911, ch. 82—"Lord Campbell's Act"—(B.C.) 59 Vict., ch. 55, sec. 60.

Where a release by the deceased is relied upon by the defendants in an action for damages by his dependents, under the provisions of the "Families Compensation Act," R.S.B.C., 1911, ch. 82, the plaintiff's may take exception to the release on the ground that it was fraudulently procured, although the personal representative of the deceased has not been made a party to the action. The judgment appealed from (18 B.C. Rep. 132) was affirmed.

Such an exception may be entertained by a court of equity notwithstanding that the money paid as consideration for the release is neither tendered back to the defendants nor brought into court to abide the issue of the action. Lee v. Lancashire and Yorkshire Rway. Co. (6 Ch. App. 527) ; Read v. Great Eastern Rway. Co. (L.R. 3 Q.B. 555) ; Robinson v. Canadian Pacific Rway. Co. ( (1892) A.C. 481) ; Rideal v. Great Western Rway. Co. (1 F. & F. 706); Clough v. London and North Western

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Rway. Co. (L.R. 7 Ex. 26) ; Seward v. The "Vera Cruz" (10 App. Cas. 59); Pym v. Great Northern Rway. Co. (2 B. & S. 759; 4 B. & S. 396); Williams v. Mersey Docks and Harbour Board ((1905), 1 K.B. 804); Erdman v. Walkerton (20 Ont. App. R. 444), and Johnson v. Grand Trunk Rway. Co. (21 Ont. App. R. 408), referred to.

By section 60 of the "Consolidated Railway Company's Act" (B.C.), 59 Vict., ch. 55, actions for damage or injury sustained by reason of a tramway or railway, or the works or operations of the company, are subject to a limitation of six months.

Held, that the limitation thus provided for the protection of a private corporation had not the effect of altering the general limitation of twelve months provided by the fifth section of the "Families Compensation Act," R.S.B.C., 1911, ch. 82. Green v. British Columbia Electric Rway. Co. (12 B.C. Rep. 199); Canadian Northern Rway. Co. v. Robinson (43 Can. S.C.R. 387); Zimmer v. Grand Trunk Rway. Co. (19 Ont. App. R. 693); Markey v. Tolworth Joint Isolation Hospital District ((1900) 2 K.B. 454), and Williams v. Mersey Dock and Harbour Board ( (1905) 1 K.B. 804), referred to.

Per Duff J.—Section 60 of the "Consolidated Railway Company's Act," (B.C.) 59 Vict. ch. 55, has no application to an action brought against the company for breach of duty as a carrier. Sayers v. British Columbia Electric Rway. Co. (12 B.C. Rep. 102) referred to.

APPEAL from the judgment of the Court of Appeal for British Columbia[1], reversing the judgment of Murphy J., at the trial[2], and directing that a new trial should be had between the parties.

The action was brought, under the "Families Compensation Act," R.S.B.C., 1911, ch. 82, by the widow and children of the late George Trawford, deceased, to recover damages for his death, which was alleged to have been caused through the negligence of the company while he was travelling as a passenger on their tramway. As a defence to the action, the company set up a release executed by the deceased before

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his death discharging them from all claims which he then had against the company on account of the injuries he had sustained or which, in future, his heirs, executors, administrators or assigns might have, in consequence of such injuries. The release was granted in consideration of the sum of $1,000, which was paid to deceased by the company at the time the release was executed. The answer by the plaintiffs was that the release had been obtained through fraud and misrepresentations, but they did not offer to return the money which had been paid to deceased by the company nor did they bring it into court. The personal representative of the deceased was not a party to the action. The trial judge took the case from the jury and dismissed the action because the plaintiffs had not tendered back the money nor deposited the amount in court to abide the result of the trial. This judgment was reversed by the Court of Appeal for British Columbia and a new trial was ordered.

Ewart K.C. for the appellants. The plaintiffs were not entitled to attack the release given by the deceased, upon the ground of misrepresentation and undue influence— (a) in the absence of any election to repudiate the settlement made by the deceased, either by him personally or by his legal representative: (b) in the absence of restitution by the deceased or his legal representative of the money paid by the company. We also contend that the plaintiffs' claim is barred by lapse of time.

The plaintiffs' contention is that their right of action is separate and distinct from that to which the deceased was entitled. In view of the English authorities this assertion is untenable. Read v. Great Eastern

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Railway Co.[3]; Griffiths v. Earl of Dudley[4] ; Williams v. Mersey Docks and Harbour Board[5].

The alleged misrepresentation and undue influence, no matter how amply proved, do not make null or void the settlement entered into by the parties. They render it voidable only. Until election to rescind it is made, it is valid and binding. Election can be made only by the deceased or by his legal personal representative. Kerr on Fraud (1910), page 9; Deposit and General Life Ins. Co. v. Ayscough[6]. A contract tainted with fraud remains valid until it is rescinded. Reese River Silver Mining Co. v. Smith[7]. There being no suggestion of any election prior to the commencement of the action, the settlement was, at that time, valid and binding; the rights of the parties must be regarded as of that date. We rely upon Lee v. Lancashire and Yorkshire Railway Co.[8] ; Foss v. Harbottle[9]; Clinch v. Financial Corporation[10]; Bank of Toronto v. Cobourg, Peterborough and Marmora Railway Co.[11]; Knight v. Bowyer[12], and Greenstreet v. Paris[13].

The plaintiffs' cause of action is barred by section 60 of the "Consolidated Railway Company's Act" (B.C.), 59 Vict. ch. 55. On this point we refer to Williams v. Mersey Docks and Harbour Board[14]; Markey v. Tolworth Joint Isolation Hospital District Board[15]; Kent County Council v. Folkstone Corporation[16]; City and South London Railway Co.

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v. London County Council[17] ; Barker v. Edger[18] ; Esquimalt Waterworks Co. v. City of Victoria[19]; British Columbia Electric Railway Co. v. Stewart[20].

W. Hart-McHarg for the respondents. The "Families Compensation Act" of British Columbia is legislation to provide for the compensation of the families of persons killed by accident and creates an entirely new cause of action of which the person injured cannot deprive them. See Kenrick & Co. v. Lawrence & Co.[21], at page 104, per Wills J. The person injured cannot make a settlement in regard to his injuries, binding on his family, without the family's consent. We refer also to Pym v. Great Northern Railway Co.[22] ; Seward v. The "Vera Cruz" [23]; Blake v. Midland Railway Co.[24] ; The "George and Richard"[25].

It would appear that the legislation of British Columbia was intended to meet the difficulties arising under "Lord Campbell's Act," where there might be a hostile executor, and to provide that, in a suit by the dependents, they should have all the rights and powers of the personal representative. They are, consequently, entitled to attack the release. Stewart v. Great Western Railway Co.[26]; Hirschfeld v. London, Brighton and South Coast Railway[27] ; Johnson v. Grand Trunk Railway Co.[28].

As to the effect of section 60 of the defendant com-

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pany's Act in regard to limitation of plaintiffs' right of action, we refer to Zimmer v. Grand Trunk Railway Co.[29]; Green v. British Columbia Electric Railway Co.[30]; McDonald v. British Columbia Electric Railway Co.[31]. In the English cases relied upon by the appellants it is to be noted that the "Public Authorities Act" there in question is an Act for the protection of public authorities, whereas the defendant company's Act is a private Act only. See Parker v. London County Council[32], per Channell J., at page 504. It is submitted also that an injury to a passenger on the company's tramway does not come within the proper construction of the words used in section 60 of the Act. See Carpue v. London and Brighton Railway Co.[33]; Ryckman v. Hamilton, Grimsby and Beamsville Electric Railway Co.[34]; Sayers v. British Columbia Electric Railway Co.[35]; Canadian Northern Railway Co. v. Anderson[36], and Cie. pour I'Eclairage au Gaz de St. Hyacinthe v. Cie. des Pouvoirs Hydrauliques de St. Hyacinthe[37], per Strong C.J., at page 173.

It is submitted that the plaintiffs have an entirely new cause of action irrespective of anything that the deceased may have done; that they have all the powers an executor or administrator would have had in so far as concerns their present action; that it is not necessary for them to bring a separate action to have the release set aside, and that they are under no obligation to tender back the money paid in considera-

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tion of the release nor to bring it into court to abide the issue of their action.

THE CHIEF JUSTICE.—The statute of British Columbia gives the dependent, on the death of the injured party, a right of action against the person who has caused the wrong, if, at the time of his death, the deceased had a subsisting enforceable claim. The cause of that action is the injuria or prejudice resulting to the dependent from the wrongful act. In one sense it is a new action, but the condition subject to which that right of action may be exercised being that the deceased did not receive indemnity or satisfaction during his lifetime, to that extent and in that aspect, it is a representative or derivative action. If, therefore, the action of the dependent is met by the plea of satisfaction based upon a release, that plea being destructive of his right, the dependent should be able to meet it by denying the existence of such release or by alleging that it was obtained by fraud, and that, in the latter case, the deceased did not receive a real or tangible indemnity or satisfaction for the offence or quasi-offence in question. It may well be that it will be necessary to have all the parties to the release, or their representatives, before the court on that incidental issue, but, if that be necessary, then I am satisfied that the resources of the British Columbia "Procedure Act" will be found quite sufficient to enable that to be done.

I have no hesitation in saying that it would be a cruel injustice to deny the dependent an opportunity to set up and make good the allegation of fraud against a plea of satisfaction which, if upheld, is a complete bar to his other action.

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For the reasons given by Mr. Justice Anglin, I am of opinion that the company cannot set up as a defence to this action the plea of prescription (59 Vict. (B.C.) ch. 55, sec. 60).

The appeal should be dismissed with costs.

DAVIES J.—This was an action brought by the widow and children of George Trawford who, in his lifetime, was injured by an accident on the defendants' railway. He died of his injuries on the 22nd of February, 1910. Prior to his decease, the company claimed that he had made a settlement with them for all claims in connection with the accident and that he had given them a release of all such claims. The company pleaded this settlement and release and the plaintiffs replied that it was obtained by wilful misrepresentation and fraud.

The trial judge dismissed the action on the grounds: First, that it could not lie without the money paid for the release being brought into court as a condition of setting it aside; and, secondly, that these plaintiffs, not suing in a representative capacity, cannot bring an action to set aside the release.

The Court of Appeal set aside this judgment and ordered a new trial. I agree with the judgment of the Court of Appeal and, for the reasons given by them, which I do not think it necessary to re-state at any length.

I cannot accept the contention of Mr. McHarg that the action under "Lord Campbell's Act" is an entirely independent one which cannot be affected by any release granted by the injured party in his lifetime. I think the authorities shew that a bonâ fide settlement may be made between the parties during the lifetime

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of the injured party and that, where this is reached and the injured party obtains satisfaction and grants a release of all his claims, apart from fraud, no action accrues to his widow and childen after his death. In order to give them such a right of action the injured party must himself possess it at the time of his death. If a settlement has been made between the injured party and a release obtained from him by fraud, that would not deprive him of his right of action. I see no reason whatever why, in such a case, the statutory representatives and beneficiaries of the injured man who had died should not have the right to bring their action and set up the fraud. It was conceded by Mr. Ewart that the executor, if he sued, would have that right, and I am unable to follow the reasoning that the parties for whose benefit he had the right to sue, and who themselves had a statutory right to sue in their own names in the event of the executor not doing so, should not have the same right as the executor is conceded to have in case he brought the action.

I think these dependents and beneficiaries are, under the statute, the legal personal representatives of the deceased in respect of everything necessary to assert their rights under the statute.

It surely must be so or Mr. McHarg's contention must be sustained that the statutory action is one entirely and absolutely independent and not open to be defeated by any settlement made in his lifetime by the injured party.

The authorities are adverse to that contention which, if accepted, would practically result in the company causing the injuries being mulct in damages twice over for the same wrongful act.

But, that being so, I cannot accept the contention

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that the statutory rights of the widow and children can be defeated by a fraudulent release and that, in the event of the executor of the deceased declining to sue, their statutory action is defeated by a fraudulent release which they cannot attack.

Then, Mr. Ewart relied strongly upon the applicability to such a case as this of the limitation upon actions brought against the company contained in the "Consolidated Railway Company's Act," section 60.

I have reached the conclusion that this contention of Mr. Ewart cannot be sustained.

The Act under which the plaintiffs sue, commonly known as "Lord Campbell's Act," created, it is true, a new cause of action. That cause of action is given for the benefit of the dependents of the deceased, not solely because of the injuries he received, but because he died possessed of a good cause of action in respect of those injuries. In order to recover in this statutory action, not only in the words of the statute must

the death of a person have been caused by the wrongful act, neglect or default

of the defendant, but such wrongful act, neglect or default must be such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof. And so I agree, under the authorities, that, if the party injured had received satisfaction in his lifetime either by a voluntary settlement with the person liable or by recovery of damages in court or otherwise, the statutory action created in favour of the dependents of the deceased person would not arise.

This special Act of Lord Campbell, creating a special cause of action arising by reason of the death

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of the person injured in consequence of such injuries, provides that such action must be

commenced within twelve calendar months after the death of such deceased person.

The limitation clause in the company's Act, of 1906, provides that

all actions or suits for indemnity for any damage or injury sustained by reason of the tramway or railway or the works or operations of the company shall be commenced within six months next after the time when such supposed damage is sustained.

I do not think such a general clause can be held to repeal the special limitation clause of "Lord Campbell's Act," the action under which arises not alone as a consequence of the damages sustained by reason of the railway or the works or operations of the company, but by reason of the death of the injured person having, at the time of his death, a good cause of action. I agree with the court of British Columbia, in Green v. British Columbia Electric Co.[38], that a special Act creating a special cause of action and making special provisions as to the time within which it is to be brought is not repealed by a general limitation clause passed for the benefit of a private corporation. A technical construction of the two limitation clauses which could produce such a result would bar very many actions of dependent widows and children who may not have been guilty of any neglect or delay in asserting their statutory rights which only arise on and because of the death of the uncompensated injured party. Many such deaths of injured parties may not take place within six months of the injury received and, as to all these cases, the maintenance of such a

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contention would be tantamount to a repeal of the Act.

The general limitation in the company's Act has reference only to

actions or suits for indemnity for damage or injury sustained by reason of the railway or the works or operations of the company,

and such action would arise as soon as the injury was sustained.

But the damages sought to be recovered in this action only arise as and when death follows from the injuries and may be more than six months after such injuries.

Then, the appellants submit that, even if fraud was proved, the alleged settlement and release would not necessarily be null and void, but voidable only, and could only become void on the election of the deceased or his personal representatives. The important question Mr. Ewart suggested is not whether they have a right to sue for injuries sustained by the deceased, but whether they have a right to elect to rescind an agreement made by him.

Substantially, the submission of the company is that, assuming the alleged settlement to have been a fraudulent one, the company cannot be restrained from setting it up as against the claim of the plaintiffs, there not having been rescission made in his lifetime by the injured man or by his executor after his death. It seems to me the proposition contains its own refutation as it amounts to saying that a fraudulent release can be set up as a bar to defeat the statutory claim of the widow and children.

I have no doubt that such an unjust and inequitable result cannot be supported and that the Court of Appeal in so holding was right.

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For the purpose of maintaining their statutory right of action the widow and children of an injured person who is dead may be considered as the statutory representatives of such party, and, as such, they have a right to attack a release obtained from him in his lifetime and which is being set up as a bar to their actions on the ground that it is fraudulent. The High Court, having the jurisdiction formerly exercised by the Court of Chancery, in the words of Sir William James L.J., in Lee v. Lancashire and Yorkshire Railway Co.[39],—

should not relinquish its jurisdiction to deal with a case of fraud, but should say that the company was not to be entitled to use at all, for any purpose or under any circumstances, the document which has been obtained in that way.

The question what, if any, portion of the money paid to the injured party in his lifetime might be set off against the claim of the widow and children seems to me one which must, in each case, be left to the court and jury trying the case. It may well be that the amount so paid was solely for the actual medical and other expenses incurred by the injured party and for damages for the pain and suffering he endured, and for the actual loss of his time while injured, none of which would be recoverable in the action brought by the widow and children. In such a case, no part of such moneys should either be returned to the defendants or allowed for in estimating the pecuniary damages these statutory claimants were entitled to recover. In other cases, the moneys paid might be taken into consideration, in whole or in part, in estimating the damages, the test being whether or not they were recoverable in the statutory action. In each

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case it must be left to the court or the jury assessing the damages to determine on the facts as proved.

It seems to me that this must be the proper course to be followed. If not, Mr. Ewart's argument must prevail that the statutory action, when brought by the widow and children on their own behalf, may be defeated by the plea and proof of a release which could be shewn by them to be a fraudulent one, or Mr. McHarg's position must be accepted that the statutory action was an entirely new and independent one, which could not be satisfied or discharged by any release given by the injured party.

In my judgment, neither contention should prevail, but the course I have suggested should be followed, which would ensure justice to all parties.

The appeal should, in my opinion, be dismissed with costs.

IDINGTON J.—Two questions are raised on this appeal. The first is whether or not the family of a man who has died under such circumstances as would give them a right of action founded upon "Lord Campbell's Act" against the appellant are, by virtue thereof, entitled to disregard a release alleged to have been obtained from deceased by fraud, or are, notwithstanding the fraud, barred thereby from any action.

The next question is whether or not the limitations in one of the company's Acts, to which I will refer at length, has created a bar to the action.

The answer to the first question must depend upon the construction of the Act upon which the action is founded and without which there can be no action by the respondents.

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The action must be founded upon and within the following terms of the Act.

That whensoever the death of a person shall be caused by the wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensured) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.

I must ask to be permitted to pass by much learning, heretofore and in this case, expended upon efforts to determine the knotty questions of whether it is or is not a new action or only one that the deceased had or might, but for his death, have had, yet enlarged, by the results of his death, in its consequences upon the pecuniary fortunes, or deprivation of pecuniary fortune, thereby wrought in and upon the welfare of the members of the family concerned.

I must read the language of this statute according to its plain ordinary meaning, and, in doing so, I discard no authority binding upon this court. There is no dispute that, but for the alleged release (or the statutory limitation relied upon), the respondents, by virtue of what happened, had become entitled to bring this action. And the whole controversy turns upon whether or not the release, even if obtained by fraud, must stand as a bar to the action. And that depends on the meaning to be given to the words

then the person who would have been liable if death had not ensued shall be liable to an action for damages in respect thereof.

It is clear that a person who had, either in anticipation of such an accident clearly accepted the risk and consequences or has wrought his own destruction or certainly contributed thereto by his own acts causing the injury and damages, may, by his agreement,

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acts or conduct have thus deprived his family of any chance of invoking this statute to support an action against others, though culpable in relation to the cause of death.

I will, for argument's sake, assume that by a release duly executed and covering the accident and the personal consequences to the husband himself, or the father of a family so stricken, he so releasing would have no action, and, hence, his wife and family would have no right of action.

But, if that release was obtained by fraud and, hence, was liable to be effectively repudiated by the deceased, I am unable to comprehend how or why the existence of that which was no barrier in the way of liability to him can be set up as a barrier in the way of those given by this statute an action to recover in case of any existing liability to him not that which he could have recovered for, but that which they are declared entitled to recover for as their own, by way of compensation for their pecuniary loss, as the Act has been held to mean.

It is said that a fraudulent transaction is not absolutely void, but only voidable, and that, in case the deceased has not repudiated the fraudulent release, it stands good. This is very plausible, but also very sophistical.

The inherent right of deceased to bring an action if he so willed, and not his willing it should or should not be brought, is the test which the fair meaning of the language furnishes. It is the liability of the appellant to be so called upon that is the condition precedent to the right of action of respondents. And the answer is that, if he was capable of bringing or had

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any right, notwithstanding what had transpired, to bring an action, then the family can.

Their right, in my view, no more depends upon the expression of his will or that of his representatives than upon the expression of the will of any one else.

Some propositions of law were made in argument relative to the necessity for re-payment by one defrauded, either before or concurrently with his repudiation in order to make it effective.

I entirely dissent from such or any like sweeping proposition in relation to the effective termination of the validity of a transaction induced by fraud.

Its repudiation terminates its validity. There may be an infinite variety of circumstances which may induce a court of justice to impose or not impose terms upon one pursuing his right after such repudiation.

From the grossest kind of wilful deceit down to the case of a dubious form of misrepresentation inducing an unfair dealing, or mere mistake, the variety or complexity of what may or may not be imposed in such cases is so almost infinite that I will not attempt to discriminate herein, where I have not the facts before me, to enable me to do so if I could. All I need say here is that finding the right to repudiate existed in deceased, then the right of respondents to insist that, in fact, the deceased could have so repudiated leaves the path open to respondents to proceed with the action given by this statute.

Whether the doing so may be clogged with such conditions as a court would have imposed upon him must depend upon the development of the facts surrounding the giving of the release.

It may well be that the money he got was in the

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way of compensating him for his inability or lessened ability to maintain his family, and, in such case, be properly considered in this case, or it may be that the payment had no relation to any such thing, but merely that personal to himself by way of expenses and for his personal sufferings, when it might be something which did not concern the pecuniary claims of respondents which are alone in question in the action.

I must refrain from doing more than to illustrate here what I have concluded is the nature of the right of action respondents have under the peculiar circumstances in question herein.

I agree with the Court of Appeal that the respondents are entitled to proceed with the action, unless barred by the limitations in the statute which the appellant relies upon and which reads as follows:—

All actions or suits for indemnity for any damage or injury sustained by reason of the tramway or railway, or the works or operations of the company, shall be commenced within six months next after the time when such supposed damage is sustained, or, if there is continuance of damage, within six months next after the doing or committing of such damage ceases, and not afterwards, and the defendant may plead the general issue and give this Act and the special matter in evidence at any trial to be had thereupon, and may prove that the same was done in pursuance of and by authority of this Act.

I do not think this statute of limitation applies to the claim made by the respondents. I have so frequently had to point out that a statute of limitation must, in order to be applicable to any given case, be clearly shewn to have been intended to cover the case in respect of which it is invoked, that I do not deem it necessary to repeat my views at length here.

Every word in the section I have just quoted can be given a plain, ordinary meaning without straining

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them to repeal this Act pro tanto. I can hardly imagine any legislature ever intended to repeal any part of the Act upon which respondents' action is founded, and, least of all, by such means as by use of such an enactment as this.

Of course, if the legislation could not be given a clear, sensible meaning without involving repeal of the Act in question, it must stand repealed. We are not driven to any such alternative or subterfuge. The limitation in the "Railway Act" involved in the action in question in the case of the Canadian Northern Railway Co. v. Robinson[40] is somewhat analogous, and we did not find the limitation there claimed applicable, though much like this, and the Judicial Committee of the Privy Council refused to disturb the ruling.

The English authorities relied on are the result of considerations that are not open to the appellant and to the application in its favour of the clause in question.

On the other hand, a great body of judicial interpretation in this country relative to this very section of the Act and similar Acts, and their bearing upon the Act upon which respondents rest their claim, is ranged against the ground taken by appellants, and, no doubt, has been acted upon for years in this country.

Hence, I do not think, unless imperatively driven to put another view forth, we should disturb what seems so long settled.

The appeal should be dismissed with costs.

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DUFF J.— The first ground of this appeal is that the action is barred by section 60 of the Act under which the appellants' railway is operated. That section is as follows:—

All actions or suits for indemnity for any damage or injury sustained by reason of the tramway or railway, or the works or operations of the company, shall be commenced within six months next after the time when such supposed damage is sustained, or, if there is continuance of damage, within six months next after the doing or committing of such damage ceases, and not afterwards, and the defendant may plead the general issue, and give this Act and the special matter in evidence at any trial to be had thereupon, and may prove that the same was done in pursuance of and by authority of this Act.

In this connection there are two points: First, whether this action, which charges the appellants with causing the death of the late George Trawford, a passenger on their railway (through negligent default in their duty as carriers), is within the contemplation of this provision. That point was dealt with in Sayers v. The British Columbia Electric Co.[41], and I think it is unnecessary for me to do more than to say that, having re-considered the question, I see no reason to alter the view which was given effect to in that case.

The other point arises in this way. The respondents contend that, assuming section 60 to apply to an action charging default by the appellants in respect of their duty as carriers of passengers, the dependents of Trawford can, notwithstanding that section, bring their action within the limit of one year fixed by "Lord Campbell's Act." That point also has been dealt with by the courts in British Columbia in Green v. The British Columbia Electric Co.[42]. I was a party to the judgment of the Chief

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Justice in that case, in which the opinion was expressed and acted upon that section 60 does not apply to actions brought under "Lord Campbell's Act." I think that view is right, and for the reasons then given.

The principal ground upon which counsel for the appellants contends that the action ought to be dismissed is that the deceased George Trawford, before his death, entered into a contract with the appellants whereby, in consideration of certain sums of money (which were paid), he agreed to release the appellants from all claims for damages in respect of the negligence charged in this action; that this release has never been set aside or repudiated by Trawford or by his legal personal representatives, and that, according to the settled law as to the nature and conditions of the right of action created by "Lord Campbell's Act," the subsistence of this release presents an insuperable obstacle to the respondents' success in this action. "Lord Campbell's Act" created a new cause of action, but, with full acknowledgments for the able argument addressed to us by counsel for the respondents upon the point, I think it must be taken as settled, for this court at all events, that it is a condition of the right of action which the statute confers upon the dependents that the victim should himself have been entitled to maintain an action, if he had lived. As Blackburn J. puts it in Read v. Great Eastern Railway Co.[43],

the intention of the enactment was that the death of the person injured should not free the wrongdoer from an action,

or, to use the words of Lush J., in the same case,

the intention of the statute is to enable representatives of the person injured to recover in a case where the maxim actio personalis, etc., would have applied.

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Read's Case[44] was decided forty-six years ago, and the decision seems to have been treated as sound law by Lord Watson, who delivered the judgment of the Judicial Committee in Robinson v. The Canadian Pacific Railway Co.[45], at page 487. If, therefore, the appellants had proved at the trial that the deceased George Trawford had entered into a contract whereby, for good consideration, he had agreed to release all his claims in respect of the negligence complained of in this action, and the consideration had been paid, and the matter had ended there, that would constitute a complete defence against the respondents' claim. But, in answer to this defence, the respondents allege that the settlement relied upon was obtained by fraudulent misrepresentations and undue influence, and at a time when the deceased Trawford was ill and without legal advice. At the trial, the learned trial judge permitted the appellants to prove the execution of the document—it is not under seal— by Trawford, which is in the following terms:—

I, George Trawford, do hereby declare, for the sum of $1,000 and doctor's and hospital expenses to date, which I acknowledge to have received on the execution hereof, I hereby release and acquit and forever discharge the B.C. Electric from all claims which I, my heirs, executors or administrators and assigns now have, or may in future have, by virtue of an accident happening to me on the 10th November, 1909, whereby I sustained personal injuries, without acknowledgment on their part of any liability whatever, and I further declare that said release has been read to me and I fully understand its contents.

(Signed) GEORGE E. TRAWFORD.

(Before two witnesses.)

The learned trial judge refused to allow the respondents to shew the circumstances under which this document was obtained, and, treating it as a con-

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clusive answer to the respondents' claim, dismissed their action. It seems, however, quite clear to me that if it should appear from the evidence—it is, of course, a question of fact—that Trawford really did agree with the appellants to accept the sum mentioned in full satisfaction of all claims to compensation which he might have in respect of all injuries arising from the negligence in question, but that his assent, although a real assent, was obtained by fraud or by an unconscientious abuse of the opportunity which his situation afforded the appellants, then the respondents would be entitled to say in this action that as Trawford, if he had lived, could have maintained, an action against the appellants (notwithstanding the existence of the agreement thus procured), so they, likewise, are not debarred by it from claiming compensation under "Lord Campbell's Act." On the other hand, if it should appear that, in fact, Trawford did not assent, that "his mind did not go with" that which appears upon the document, to use the language of Erle C.J., in Rideal v. The Great Western Railway Co.[46], so that there never was an agreement, then, although the appellants should be acquitted of fraud, the respondents would be equally entitled, on the same principle, to maintain their action. As to the rights of the appellants arising out of the fact that moneys were paid to Trawford—that is a question which, to some extent, depends upon the facts as developed at the trial. In either of the supposititious cases above suggested, if Trawford himself had been suing, while it seems clear that, in the first case at all events, it would not have been

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necessary for him to bring or offer to bring the money into court, [Clough v. London and North-Western Railway Co.[47]], yet, in my opinion, the defendants would have been entitled to rely upon the document as a binding receipt for the amount in fact paid as a payment on account of the compensation to which Trawford was justly entitled. On the other hand, if it should appear that Trawford had been led to believe, by the artifices of the appellants, that this document was something other than it, in truth, was, and that the receipt he was giving was a receipt for damages only suffered down to the time when the receipt was given, then Trawford would have been entitled to maintain an action for subsequent damages without bringing the amount paid into account; for the appellants would be estopped by their conduct from alleging that the receipt was other than that which they pretended it was. In the last mentioned case, the respondents, in my judgment, would be entitled to have the amount of their compensation estimated without reference to the moneys paid. In either of the other two cases, I think the respondents' action must be subject to the same incidents as Trawford's action would have been, if he had lived—to this extent, at all events, that the appellants are entitled to have the amount paid brought into account.

The substance of Mr. Ewart's contention at this point is that the agreement relied upon can only, at worst, be a voidable agreement which stands and must be given effect to until it is repudiated by the legal personal representatives of Trawford. It occurs to one at once that this contention is open to the obser-

[Page 494]

vation that the respondents have not had an opportunity of raising, before the proper tribunal, the question whether or not there ever was an agreement such as that alleged. But, let us assume that such an agreement was really entered into, that is to say, that the mind of Trawford was really brought to the point of assenting to such a settlement as that evidenced by the document produced; and let us also assume that the respondents are in a position to shew that this agreement was brought about by fraud or in such circumstances of unfairness as would have entitled Trawford to rescind it. It follows (I repeat) that Trawford, in his lifetime (there being no suggestion that there was any conduct of his which would have precluded him from repudiating the arrangement), could have maintained an action against the appellants in respect of the negligence upon which the present action is based. That being so, the condition of the statutory right of action is satisfied; the case is, indeed, within the express words of the statute—the death of Trawford having been "caused by wrongful act, neglect or default," and the act, neglect or default being such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof.

The only criticism Mr. Ewart attempts to make upon this application of the very words of the statute itself is this:—He argues that to permit the action to proceed might be unjust to the estate of Trawford whose legal personal representatives might desire that the settlement should stand. But the only possible interest the estate could have would be to retain the benefit of that which it had received, and if justice should require that the benefit should be

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restored without detriment to the estate, or, in other words, at the cost of the dependents, it is for these to say whether or not they will pursue their remedy at such a price. If there is any reason to suppose that the interests of the estate are really involved, there can be no difficulty adding as a party defendant an administrator ad litem to keep an eye on these interests.

It might easily happen, of course, that the interests of the estate and the interests of the dependents should be far from identical, and it may very fairly be argued that the Act does not contemplate the estate being called upon to set aside a settlement for the benefit of the dependents at the cost of giving up the advantages the deceased had derived from the settlement. But, on the other hand, I see no reason to doubt that it would be within the authority, if not the duty, of the executor (the interests of the estate being properly protected) to take the necessary proceedings on behalf of the dependents, including the impeaching of any fraudulent settlement; and, if the executor refused to act or if there were no executor, I can see no reason for holding that the right of action vested in the dependents in such circumstances does not ipso jure include as one of its incidents this same right to impeach a fraudulent settlement. That seems a reasonable implication when one bears in mind that the object of the statute was to afford a way of escape from the injustice which often attended the application of the principle actio personalis, etc., according to the settled doctrine of the courts.

ANGLIN J.— The chief question in this case is whether the plaintiffs, suing under "Lord Campbell's

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Act," are debarred from maintaining their action by a release of his claim against the defendants arising out of his injuries, given by the injured man, since deceased, in consideration of a payment of $1,000 made to him. In answer to the plea of this release, the plaintiffs reply that it was procured by fraud of the defendants, and is, therefore, not available to them as a defence. The defendants contend that, until the release is set aside, it is binding, and that only the personal representatives of the deceased can take proceedings to set it aside. The plaintiffs, on the other hand, maintain that the issue as to the validity of the release can be raised by them in this action and without the presence of the personal representatives. They also contend that the release, even if unimpeachable, is not a bar to their recovery, because their right of action under "Lord Campbell's Act" is new and independent and not a statutory continuance of the right of action which the injured man had. On the last point, compare Read v. The Great Eastern Railway Co.[48]; Seward v. The "Vera Cruz"[49], at pages 67 and 70; Pym v. The Great Northern Railway Co.[50]; Robinson v. The Canadian Pacific Railway Co.[51] ; and Williams v. Mersey Docks and Harbour Board[52].

I find no satisfactory ground of distinction between the extinguishment of the cause of action by the injured man by an accord and satisfaction, evidenced by a release, and its extinguishment by the recovery of a judgment upon it or the expiry of a period of limitation. If, on a proper construction of "Lord

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Campbell's Act," it is a condition of the plaintiff's right of action that the deceased shall have had, at the time of his death, a subsisting and enforceable cause of action against the defendants, as I think the English authorities establish, a release binding on the deceased would seem to present a very formidable—I think an insurmountable—obstacle to the plaintiffs' recovery. It has, however, been the view of some eminent judges that the existence of a cause of action in the deceased, enforceable by him up to the time of his death, is not made a condition of the right of action given to his wife and others by "Lord Campbell's Act." See Erdman v. Town of Walkerton[53], at page 456, per Burton J.A.

But, if the release pleaded by the defendants is voidable for fraud, it did not bind the deceased man. The defendants remained liable to him up to the moment of his death, and, in an action brought by him against the company, if they had pleaded the release, its validity could have been questioned and determined. Johnson v. The Grand Trunk Railway Co.[54]. Apart from the objection that they do not sufficiently represent the deceased, I see no reason why the plaintiffs may not raise and require the determination in this action of the question as to the validity of the release set up by the defendants. That, I think, is the proper practice under modern procedure.

There is, no doubt, some anomaly in permitting the validity of a contract made by a dead man to be impugned in the absence of his personal representative. But, having regard to the nature of the right of action conferred on the wife and other benefic-

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iaries by "Lord Campbell's Act," and to the conditions upon which that right is given, I think it essential to "advancing the remedy" which the statute was designed to afford that these beneficiaries should have the same right to attack a release, such as that relied upon, so far as it presents an obstacle to their maintaining their statutory action, as the deceased himself would have had if surviving. Otherwise "the person who would have been liable if death had not ensued" would not be "liable to an action for damages, notwithstanding the death of the person injured," although the statute declares that he shall be so liable. 9 & 10 Vict. (Imp.) ch. XCIII.

The release being impeached for fraud, the court, in the administration of equity, does not require that the money paid by the defendants should be refunded or brought into court as a condition precedent to the right of repudiation being asserted. Equity may be done in the action by deducting the whole of the money already paid by the company, or such part of it, if any, as may be deemed proper, from any verdict which the plaintiffs may recover.

On this branch of the appeal I would, for these reasons, affirm the judgment of the Court of Appeal.

I am also of the opinion that the company cannot set up as a defence to this action section 60 of ch. 55, of 59 Vict. (B.C.), which gives it the benefit of a period of limitation of six months from the doing or committing of such damage, in all actions or suits for indemnity for

any damage or injury sustained by reason of the tramway or railway or the works or operations of the company.

The plaintiffs maintain that a claim for damages for personal injuries sustained in a railway accident

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is not within the purview of that provision. While inclining very strongly to that view, I do not rest my judgment upon it, because I am satisfied that the section invoked is not available as a defence in an action under "Lord Campbell's Act." The Ontario Court of Appeal, in Zimmer v. The Grand Trunk Railway Co.[55], held that a similar limitation provision did not affect rights of action conferred by "Lord Campbell's Act." It would be supererogatory to do more than express my respectful concurrence in the opinions there delivered by Hagarty C.J.O., and by Burton and Maclennan JJ.A., on this point. I would merely add that, if applicable to actions under "Lord Campbell's Act," the provision relied upon by the appellants would entirely cut out the right of action specifically given to the widow and other beneficiaries by the amendment of 27 & 28 Vict. (Imp.) ch. XCV., in all cases where there is an executor of the deceased or an administrator to his estate, because in such cases the right of the beneficiaries to sue arises only after the expiry of six calendar months from the death of the injured person. That cannot have been intended. See, too, Green v. British Columbia Electric Railway Co.[56].

Two English cases are cited by the appellants in support of their contention that the period of limitation given by the statute which they invoke applies to this action, rather than the period of twelve months from the death specified in "Lord Campbell's Act." They are Markey v. Tolworth Joint Isolation Hospital District Board[57], and Williams v. Mersey Docks and Harbour Board[58].

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Unless the former decision is to be distinguished on the grounds that the Act there invoked was a public Act, whereas that in question here is a private Act, and that the English statute was enacted for the protection of public authorities and officials, whereas that before us is for the protection of a private corporation, it would seem to be in point. But it is an opinion of a Divisional Court by which we are not bound, and, if it be not distinguishable from the case at bar, I respectfully decline to follow it.

Williams v. Mersey Docks and Harbour Board[59], which is a decision of the English Court of Appeal, is clearly distinguishable on the ground that, at the time of his death, the right of action of the injured person had been barred by the limitation provision of the "Public Authorities Protection Act." The existence of a cause of action against the defendants by the deceased at the time of his death was there held to be a condition of the right of action conferred by "Lord Campbell's Act." Here the injured man, admittedly, had a cause of action against the defendants at the time of his death, unless it had been extinguished by the accord and satisfaction evidenced by the release pleaded, of which the validity is in question.

The appeal, in my opinion, fails and should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellants: McPhillips & Wood.

Solicitors for the respondents: Abbott, Hart-McHarg. Duncan & Rennie.