Beach v. Healey, [1943] SCR 272

Supreme Court of Canada

Beach v. Healey, [1943] S.C.R. 272

Date: 1943-04-02

Theodore Beach Sr. and Theodore Beach Jr. (Defendants) Appellants;

and

Robert J. Healey (Plaintiff) Respondent.

1943: February 25; 1943 April 2.

Present: Duff C.J. and Rinfret, Davis, Kerwin and Hudson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Motor vehicles—Negligence—Trial—Pedestrian struck by motor vehicle-Action for damages—Findings of jury—Evidence—Form of question to jury as to negligence of driver of motor vehicle, where by statute onus is on him to disprove negligence causing damage.

In an action for damages by reason of the death of plaintiff's son caused by his being struck, while walking on a highway, by a motor car driver by one of the defendants, the trial Judge, on the jury's answers to questions put to them, dismissed the action. The Court of Appeal for Ontario ([1942] O.W.N. 288) set aside the verdict and judgment at trial and ordered a new trial. The Supreme Court of Canada now restored the judgment at trial, holding that there was evidence properly submitted to the jury upon which they might reasonably find, as they did a verdict for the defendants.

It was stated in this Court, per the Chief Justice and Davis, Kerwin and Hudson JJ., that the proper course was not followed in respect of the form of certain questions submitted to the jury (which appear in this report infra); that the proper procedure was that laid down in Newel v. Acme Farmers Dairy Ltd., [1939] O.R. 36, as expressed in the headnote in the report of that case (quoted in the reasons for judgment in this Court in the present case); and it was pointed out that some observations made in this Court in Landreville v. Brown, [1941 S.C.R. 473, were not sanctioned by the majority of the Court.

APPEAL by the defendants from the judgment of the Court of Appeal for Ontario[1] allowing the plaintiff's

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appeal from the judgment of Hope J. (who dismissed the action, upon the findings of the jury) and ordering a new trial.

The action was brought under the Fatal Accidents Act, R.S.O. 1937, c. 210, for damages by reason of the death of the plaintiff’s son, Ronald A. Healey. The deceased, while walking with others northerly on a highway into the village of Kemptville, Ontario, between 7 and 7.30 p.m. on November 17, 1940, was struck by a motor car owned by the defendant Theodore Beach Sr. and which was being driven by the defendant Theodore Beach Jr. northerly on said highway, which accident caused the deceased’s death. Plaintiff alleged that the accident was due to the negligent operation of the motor car.

At the trial the questions put to the jury and their answers were as follows:

1. Was the defendant, Theodore Beach Jr., guilty of any negligence which caused or contributed to the accident? (Answer Yes or No.)

ANSWER: No.

2. If your answer to Question 1 is “Yes” then state fully the particulars of his negligence.

ANSWER: (Not answered.)

3. Was Ronald A. Healey guilty of any negligence which caused or contributed to the accident? (Answer Yes or No.)

ANSWER: Yes.

We the Jurors found Ronald A. Healey guilty of negligence by walking on the highway on a night when weather conditions were so poor for driving a car.

A good sidewalk was provided for pedestrians and was in better condition for walking on than the highway.

4. If your answer to Question 3 is “Yes” then state fully the particulars of his negligence.

ANSWER: (Not answered except as above.)

5. If you find that Theodore Beach Jr. and Ronald A. Healey were both negligent state the degree of fault or negligence of each.

ANSWER: (Not answered.)

6. Did the plaintiff suffer any pecuniary loss or damage by reason of the death of Ronald A. Healey? (Answer Yes or No.)

ANSWER: No.

7. If your answer to Question 6 is “Yes” at what amount do you assess the damages?

ANSWER: (Not answered.)

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and judgment was given dismissing the action. The Court of Appeal set aside the verdict and judgment and ordered a new trial¹. The defendants appealed.

T.N. Phelan K.C. and B. O’Brien for the appellants.

S.E. Stewart for the respondent.

The judgment of the Chief Justice and Davis, Kerwin and Hudson JJ. was delivered by

THE CHIEF JUSTICE.—As we stated at the conclusion of the argument, there was, in our opinion, evidence properly submitted to the jury upon which they might reasonably find as they did a verdict for the appellants; and the appeal must accordingly be allowed and the judgment at the trial restored.

We think, however, we ought to say explicitly that the proper course was not followed in respect of the form of the questions submitted to the jury. These questions were considered by counsel and agreed to; and it appears that trial judges in Ontario have in this matter felt themselves under some constraint by reason of some observations made in this Court in Landreville v. Brown[2]. These observations were not sanctioned by the majority of the Court. The proper procedure is laid down by the Court of Appeal in Newell et al. v. Acme Farmers Dairy, Ltd.[3] In the report of that case the headnote is in these words:—

Where in an action for the recovery of damages for personal injuries alleged to have been caused by the operation of a motor vehicle by the defendant, the onus of proof is on the defendant to disprove negligence by virtue of sec. 48 (1) of The Highway Traffic Act, R.S.O. 1937, ch. 288, the only question the trial judge should put to the jury as to the negligence of the defendant is as follows: “Has the defendant satisfied you that the plaintiff’s injuries did not arise from the negligence or improper conduct on the part of the defendant?” The trial Judge should not put to the jury a further question or direction that, if their answer to the aforesaid question is “No,” they should state fully what acts or omissions constituted negligence on the part of the defendant.

With the decision as thus stated, we are in agreement.

The appeal is allowed and the judgment at the trial is restored with costs throughout.

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RINFRET J.—The appeal should be allowed and the judgment at the trial should be restored with costs throughout.

Appeal allowed and judgment at the trial restored with costs throughout.

Solicitor for the appellants: J.M. Rickey.

Solicitors for the respondent: McKimm, Dulmage & Stewart.