Supreme Court of Canada
Heake v. City Securities Co. Ltd., [1932] S.C.R. 250
Date: 1932-02-02.
Virginia Frances
Maud Heake (Plaintiff)
Appellant:
and
City Securities
Company Limited (Defendant) Respondent.
1931: October 19; 1932: February 2.
Present at hearing of the appeal: Anglin C.J.C. and Duff, Newcombe, Rinfret and
Smith JJ. Newcombe J. took no part in the judgment, as he died before the
delivery thereof.
ON APPEAL FROM THE COURT OF APPEAL FOR
MANITOBA
Negligence—Landlord and Tenant—Fire in apartment building—Tenant of suite killed and his wife injured, in escaping; and property loss—Claim
by wife against owner of building for damages—Negligence
alleged,’ and found by jury, in owner of building,
in arrangement existing for garbage disposal—Insufficiency of alleged negligence, under the circumstances, to constitute actionable
negligence in law.
Plaintiff’s busband leased from defendant a suite in defendant’s apartment building. On
each floor, beside the freight elevator, and separated from the hall by swinging
wooden doors, was a platform on which were garbage receptacles. A fire occurred
in the building and in efforts to escape the plaintiff was injured and her
husband was killed. For this and for property loss, the plaintiff sued for
damages. The jury found that defendant was negligent in that it caused or
allowed inflammable refuse to be deposited beside the elevator shaft and failed
to safeguard such refuse against the danger of fire; that such condition
amounted to a trap or concealed danger created by defendant and caused the
injuries, death and loss; and judgment was entered for damages. The judgment
was set aside by the Court of Appeal for Manitoba. Plaintiff appealed.
Held, affirming judgment of the Court of Appeal (39 Man. L.R. 399), that
plaintiff could not recover (Anglin C.J.C. dubitante).
The principle of Rylands v. Fletcher (L.R.
3 H.L. 330) held not applicable.
The mere deposit and accumulation of
inflammable material on an owner’s premises does not make him responsible for
damages resulting from a fire started in that material by some one else without
his knowledge (Laidlaw v. Crow’s Nest Southern Ry. Co., 42 Can. S.C.R. 355).
Plaintiff could not recover for her husband’s
death unless he would have had a right of action arising out of the wrong
complained of, had he lived (C.P.R. v. Parent, 51 Can. S.C.R. 234; [1917] A.C. 195).
A tenant takes the premises as they are and
at his own risk, no matter what condition of visible danger there may be (Robins v. Jones, 15 C.B., N.S., 221; Lane v.
Cox, [1897] 1 Q.B. 415, at 417; Taylor v. People’s Loan & Svgs. Corp., [1930]
Can. S.C.R. 190). Defendant’s obligation to plaintiff’s husband was a
contractual one, under which the latter leased the premises and the approaches
by which he had access to them, as they were. During his occupancy prior to, at
the time of, and subsequent to the making of the lease, the arrangement for
garbage disposal existed the same as at the time of the fire, and
[Page 251]
he and plaintiff knew of the condition and
made use of the facility provided. Any danger therefrom was not a hidden
danger, but one as obvious to the tenant and plaintiff as to defendant.
For plaintiff to succeed in her action for
personal injuries and loss, she must establish the existence of some concealed
trap; and there was no evidence of such. The negligence found by the jury did
not in law constitute actionable negligence. (Cavalier v. Pope, [1906] A.C. 428; Groves v. Western
Mansions Ltd., 33 T.L.R. 76; Lucy
v. Bawden, [1914] 2
КБ. 318; Fairman v. Perpetual Investment Bldg. Soc, [1923]
A.C. 74, cited. Indermaur v. Dames, L.R. 1 C.P. 274, explained and
distinguished).
APPEAL by the plaintiff from the judgment of
the Court of Appeal for Manitoba allowing the defendant’s appeal from the
verdict of the jury at the trial and the judgment entered pursuant thereto for
damages to the plaintiff for the death of her husband and for personal injuries
and property loss. The Court of Appeal set aside the verdict and judgment at
trial and ordered judgment to be entered dismissing the plaintiff’s actions.
The plaintiff’s claims were for damages for
the death of her husband and for personal injuries and loss of property, as the
result of a fire which occurred in an apartment building owned by the
defendant. The plaintiff’s husband was tenant of a suite in the building. At
the time of the fire the plaintiff and her husband were in the building, and in
endeavouring to escape the husband suffered injuries from which he died and the
plaintiff suffered injuries. The plaintiff claimed that the fire and the
resulting death, injuries and loss of property were caused by negligence of the
defendant.
The material facts of the case are
sufficiently stated in the judgment now reported. The appeal to this Court was
dismissed with costs.
F. M. Burbidge K.C. for the appellant.
H. A. Bergman K.C. for the respondent.
Anglin C.J.C.—While gravely doubtful as to the proper
result in this case, I am inclined rather against the respondent but shall not
formally dissent from the judgment of my learned brothers who constitute the
majority of the court.
[Page 252]
On the whole case, I do not feel so strongly in
favour of the appellant as to justify my so dissenting, without further
research, from the judgment dismissing the appeal.
The judgment of Duff, Rinfret and Smith JJ. was
delivered by
Smith J.—The respondent (defendant) was the owner of a five-story
apartment building in the city of Winnipeg, known as the Casa Loma Block, the four upper floors of
which are divided into suites, which are let to tenants for residential
purposes. There was a passenger elevator with a front stairway adjoining, and a
freight elevator with a back stairway adjoining, affording access to and from
the various suites.
The freight elevator was separated from the hall
by swinging wooden doors opening outwards into the hall. Behind these doors,
and within the shaft, there was a platform approximately four feet wide, extending across its full width, and
in front of the platform was the opening in which the elevator ran, which
extended from the basement to the roof. On the platform, at each side of the
doorway closed by the swinging doors, were garbage cans, The plan, Exhibit 5,
filed, shows two cans at each side.
The appellant (plaintiff) and her husband moved
into suite 58 in this Casa Loma Block on the fifth floor, first taking over the unexpired part of a
former tenant’s lease. On August 25, 1927, after having lived in the suite for
over two months, the appellant’s husband took a written lease of this suite for
a term of one year, commencing October 1, 1927. While occupying the premises
under this lease, the fire which gave rise to this action occurred, about two o’clock
in the afternoon of the 14th of April, 1928. The appellant and her husband were
asleep when the fire broke out, and when they were roused the fire had gained
such headway that they felt that they could not escape by the door leading into
the hall, and jumped from the window. The husband was killed, and the appellant
sustained the injuries complained of in this action.
The appellant sues for the damage resulting from
the injuries sustained by herself, for loss of property and for damages for
loss of her husband, under the Manitoba Act which
[Page 253]
is the equivalent of Lord Campbell’s Act. The
alleged ground of action is the negligence of the defendant in allowing refuse
and inflammable material to be deposited and to accumulate in or at the
elevator shaft, where the defendant knew or ought to have known that the same
would be in danger of causing a fire. There were other allegations of
negligence, such as the lack of fire escapes and fire-fighting apparatus, but
all were abandoned at the trial except the allegation of negligence just
mentioned.
At the trial, the vice-president of the defendant
company testified that,
There were on each floor two cans, and
possibly a box for the small cans like fruit cans that we did not want to get
mixed with the garbage, because we had to burn the garbage. The tenants were
requested to wrap the garbage and deposit it in the cans.
He says that there may have been only one can,
and that in the first place there were covers for them. Some of these were
found after the fire, and some were found in the basement.
The appellant (plaintiff) testifies that the garbage,
paper, and stuff like that, would be taken by the tenants to the freight
elevator shaft, and left in any of the containers there. She further testifies
as follows:
I have taken magazines, newspapers, and
stacked them up on the platform there, and there was no other place to put
them, in a wooden box or a cardboard box the things were delivered in. There
was a bushel basket there as a container.
* *
*
Q. There was a garbage tin, a bushel basket and a
wooden barrel?
A. Yes, and a wooden box.
Q. And there was no cover on the tin?
A. No, sir.
Arthur H. Sutherland, a policeman, testifies
that he was coming along the hallway on the second floor, and saw flames coming
out from underneath the swinging doors of the elevator shaft referred to, and,
opening the door, found it on fire on the inside; and he says:
I looked around at the back, and it looked like
there was some waste paper in a basket burning.
He says the door itself was on fire, and the
flames and smoke were coiling up to the ceiling. There were cinders flying, and
what appeared to be charred paper or something like that. He yelled “Fire,” and
ran out to the fire alarm box, and from there saw fire coming out at the eaves
at the top of the building.
[Page 254]
The jury found, as to the claim for death of the
husband,
(1) that the defendant caused or allowed
inflammable refuse to be deposited beside the elevator shaft and failed to
safeguard such refuse against the danger of fire;
(2) that the defendant was thereby guilty of
negligence causing the death of the plaintiff’s husband;
(3) that the defendant assumed a contractual
obligation expressed or implied, to the plaintiff’s husband, to provide
reasonably adequate provision for the deposit of refuse;
(4) that the defendant, in breach of such
contractual obligation, was guilty of negligence causing the death of the
plaintiff’s husband;
(5) that such condition amounted to a trap or
concealed danger created by the defendant and caused the death of the plaintiff’s
husband.
(6) that the plaintiff’s husband was not guilty
of contributory negligence.
They assessed the damages at $10,000.
As to the claim for personal injuries, the jury
made the same findings as those set out above in numbers 1 and 2, and found
that the condition amounted to a trap or concealed danger which caused the
plaintiff’s injuries and loss; and that the plaintiff was not guilty of
contributory negligence; and that her damages were $5,000, and expenses to
date, $2,300, and judgment was entered for the plaintiff accordingly.
This judgment was set aside by the unanimous
judgment of the Court of Appeal.
The first argument in the appellant’s factum is
that the principle of Rylands v. Fletcher applies. In that case, the defendant
constructed a reservoir on his own land, and the water escaped into an
adjoining mine, and flooded the mine. The defendant was held liable. The
principle laid down is as follows:
We think that the true rule of law is, that
the person who, for his own purposes, brings on his land and collects and keeps
there anything likely to do mischief if it escapes, must keep it in at his
peril; and if he does not do so, is prima facie answerable for all the
damage which is the natural consequence of its escape.
[Page 255]
This principle has no application here, because
the garbage brought to the cans did not escape and do the damage complained of.
Musgrove v. Pandellis likewise has no application. There, petrol
in the carburettor of an auto for an unknown reason took fire when the
unskilled operator of the auto started the engine. The operator negligently
omitted to turn off the tap to prevent further petrol flowing from the tank to
the carburettor; and the fire spread and did damage to the plaintiff. The
ground of the decision was the negligence of defendant’s servant in failing to
control the fire after it started, which he could easily have done.
In Job Edwards Limited v. Birmingham
Navigations, there
is nothing that in any way assists the appellant, as the question was as to
control of a fire after it had started accidentally.
In Smith v. London and Southwestern
Railway Company,
workmen employed by a railway company in cutting grass and trimming the hedges
bordering the railway, placed the trimmings in heaps near the line and allowed
them to remain there fourteen days, during very hot dry weather in the month of
August. Fire from a passing engine of defendant company ignited one of these
heaps and spread to the dry hedge, and was thence carried by a high wind across
a stubble-field and a public road and burned the goods of the plaintiff in a
cottage. It was held that the defendants were liable, although there was no
suggestion that the engine was improperly constructed or driven. This, of
course, is the case of a fire started by the defendants, and the negligence was
that it was known to the defendants that their engine emitted sparks, and that
they might, under the circumstances, have contemplated the probability of these
sparks igniting the dry heaps of refuse and the hedge, and thus spreading, so
as to cause damage.
Laidlaw v. Crow’s
Nest Southern Railway Company, is a
case in this court where it was held that, where the railway company had no
knowledge of the existence of a fire on their right of way not caused by the
operation of the
[Page 256]
railway, the fact that the condition of the
right of way, covered with fallen timber and dry brush of a very inflammable
character, which facilitated the spread of the fire to adjoining property, did
not constitute actionable negligence. This case seems to apply here, as it
holds that the mere deposit and accumulation of inflammable material on an
owner’s premises does not make him responsible for damages resulting from a
fire started in that material by someone else without his knowledge, though he
might become responsible, after becoming aware of the existence of the fire,
for neglecting to prevent its spread to the property of another. In the present
case there is no pretence that the fire was started by the respondent
proprietor, or that the proprietor was negligent in failing to prevent its
spread.
So far as the appellant’s action for damages for
the death of her husband is concerned, it is perfectly clear, under the
authorities, that she cannot recover unless the husband would have had a right
of action arising out of the wrong complained of if he had lived. C.P.R. v.
Parent. The
plaintiff’s husband, at the time of the fire, was the tenant of the respondent
company under a written lease, and it is settled law that a tenant takes the
premises as they are and at his own risk, no matter what condition of visible
danger there may be. Robins v. Jones.
In Lane v. Cox, Lopes, L.J., has the following:
A landlord who lets a house in a dangerous
or unsafe state incurs no liability to his tenant, or to the customers or
guests of the tenant, for any accident which may happen to them during the
term, unless he has contracted to keep the house in repair. * * * There cannot
be a liability for negligence unless there is a breach of some duty; and no
duty exists in this case to the tenant, and none can be alleged to strangers.
See also Taylor v. The People’s Loan
and Savings Corporation.
The obligation of the respondent to the
appellant’s husband was a contractual obligation, under which he leased the
premises and the approaches by which he had access to them, as they were. From
his residence there prior to, at the time of, and subsequent to the making of
the lease, the arrangement for the disposal of garbage existed just as it
[Page 257]
did at the time of the fire, and he and the
plaintiff knew of that condition, and made use of the facility provided for the
disposal of garbage, just as other tenants did, and, according to her evidence,
the plaintiff herself was a chief offender in creating the condition of danger
that she complains of. If this garbage, deposited as it was, constituted an
evident danger, it was not a hidden danger, but a danger that was as obvious to
the tenant and his wife, the appellant, as to the landlord. The suggestion is
that the fire occurred through the negligence of some of the other tenants. If
so, the appellant’s husband in his lease contracted that the landlord should
not be liable to him for such negligence.
Numerous decided cases make it abundantly clear
that the plaintiff under the circumstances is not entitled to recover damages
for her own injuries and loss. In Cavalier v. Pope, the owner of a dilapidated house
covenanted with his tenant for repair, but failed to do so. The tenanťs wife, who lived in the house and
was well aware of the danger, was injured by an accident caused by the want of
repair. Held, that the wife, being a stranger to the contract, had no claim for
damages against the owner. Lord Macnaghten, at page 430, makes the following
statement:
The wife, who was not the tenant, cannot be
in a better position to recover damages than a customer or guest.
In Groves v. Western Mansions Limited, the plaintiff was the wife of the tenant
of a room on the first floor of a building which was let by the defendant in
separate tenements. Several of the tenements, including that of the plaintiff,
were approached by a common staircase. The plaintiff went out of her room to
the landing in order to draw water from a tap on the landing. She found that a
tap on the landing immediately above had been left running, and she went to the
upper landing to stop it. On the way down she slipped on a defective step and
suffered per injuries. She sued the defendants for damages for negligence. Held,
that proof of the existence of a concealed trap was essential to the cause of
action, and, as the plaintiff could not show that, it was held that she was not
entitled to damages.
[Page 258]
In Lacy v. Bawden, the defendant was the owner of a house which
consisted of a basement and two upper floors, the rooms on each floor being
separately let. The house was entered by a front door on the ground floor
level, which was approached from the street by a flight of six or seven steps
protected on each side by a coping about eight inches high. On either side of
the steps was an area. The steps remained in the defendant’s possession and
control. The plaintiff, wife of one of the tenants occupying the house, slipped
on the steps and fell into the area, sustaining injuries. The jury found that
the defect in the steps consisted in the absence of a railing, which was due to
the negligence of the defendant, and that both plaintiff and defendant knew
before the accident of the existence of the defect. It was held that, as the
danger was patent, the landlord was not liable.
In F airman v. Perpetual Investment
Building Society, the
defendants owned a block of flats, which they let to various tenants, the
defendants keeping control of the staircase giving access to the flats. The
stairs were made of cement reinforced by iron bars embedded in the cement.
Owing to wear, the cement became scooped out, and the plaintiff, who lodged
with her sister in a flat on the fourth floor, of which the sister’s husband
was tenant, while descending the stairs, caught her heel in a depression so
formed, and was injured. It was held that the only duty owed by the defendants
to the plaintiff was not to expose her to a concealed danger or trap, all of
the five judges agreeing in this view of the law. Two of them, however,
dissenting from the majority, were of opinion that the defect in fact
constituted a trap. The previous cases are reviewed, and Miller v. Hancock is held to be incorrect, unless upon the
assumption that there was in that case a concealed trap, the existence of which
is not stated in the case. At page 84, Lord Buckmaster says:
I have only to add that the plaintiff was a
lodger to one of the defendants’ tenants; she had therefore a material interest
in the use of the premises and could not be regarded as a mere guest or casual
visitor.
[Page 259]
Lord Atkinson points out that, as between the
plaintiff and the tenant, the plaintiff had an interest, but goes on to state
(p. 86) that,
The plaintiff, being only a licensee, was
therefore bound to take the stairs as she found them, but the landlord was on
his side bound not to expose her, without warning, to a hidden peril, of the
existence of which he knew, or ought to have known. He owed a duty to her not
to lay a trap for her. But even if the plaintiff was in the position of an
invitee of the defendants, her rights and duties in that character would be
those described and measured by the well-known passage from Willes J.’s judgment in Indermaur
v. Dames.
In the latter case, upon the premises of the
defendant, a sugar refiner, was a hole or chute on a level with the floor,
usual and proper in the defendant’s business. When not in use, it was necessary
that it should be open for the purpose of ventilation, but it was not
necessary, when so open and not in use, that it be unfenced. The plaintiff was
a gas-fitter in the employ of a patentee who had fixed a patent gas regulator
on defendant’s premises, for which he was to be paid if it effected a saving in
the consumption of gas. He went upon the premises with his employer’s agent to
test the new apparatus. Without negligence on his part, as the jury found, he
fell through the hole and was injured. Held, that as plaintiff had a right to
go there, defendant was guilty of a breach of duty towards him in suffering the
hole to be unfenced. At page 289, the plaintiff is given a right to amend the
declaration by stating the facts as proved:
* * * in effect, that the defendant was the
occupier of and carried on business at the place; that there was a shaft, very
dangerous to persons in the place, which the defendant knew and the plaintiff
did not know; that the plaintiff, by invitation and permission of the
defendant, was there near the shaft, upon business of the defendant, in the way
of his own craft as a gas-fitter, for hire, etc.
I make this quotation because it shows that a
necessary allegation was that the defendant knew of the dangerous condition,
and the plaintiff did not know.
It is clear, therefore, that in order to succeed
in her action for personal injuries and loss it was necessary that the
appellant should establish the existence of some concealed trap. There is no
evidence of anything of the sort; and the negligence on the part of the
defendant found by the jury does not in law constitute actionable negligence.
There
[Page 260]
was, of course, no evidence of the contractual
obligation found in the answers to Questions 3 and 4.
The appeal must be dismissed with costs.
Appeal dismissed with costs.
Solicitor for the appellant: Alex. Farquhar.
Solicitors for the respondent: Johnson & Bergman.
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