Gonzy v. Lees, [1941] SCR 262

Supreme Court Of Canada

Gonzy v. Lees, [1941] S.C.R. 262

Date: 1941-04-22

Louis Gonzy and Remo Baceda (Plaintiffs) Appellants;

and

James Lees (Defendant) Respondent.

1941: February 5, 6; 1941: April 22.

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

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Automobile—Negligence—Collision—Minor son of owner driving car—Solely responsible for acciden—Statutory liability of owner—"Living with and as a member of the family of the owner" in section 74A (1) of the Motor Vehicles Act—Meaning of "living with"—Owner temporarily absent from home in another province—Son forbidden to drive by the father—Liability as owner under section 74A different from responsibility of parent or guardian under section 45—Motor Vehicle Act, R.S.B.C., 1936, c. 195, section 45, and section 74A as enacted by B.C. statutes, 1937, c. 54, s. 11.

In an automobile collision, the son of the owner of one of the cars was driving it, and the trial judge held that he was solely responsible for the accident, which finding of facts was concurred in by the appellate court. The son, about seventeen years of age, was living with his parents on their farm, and he had no driver's licence. About one month prior to the accident the father went to Alberta on business and did not return until after the accident; and, before leaving, he gave instructions to his son not to use his automobile outside of the farm. In an action for damages the occupants of the other car recovered judgment against the father, the respondent; but the Court of Appeal dismissed the action on the ground that, during the father's absence, his son, the driver, was not "living with and as a member of the family of" the respondent within the meaning of section 74 (a) of the Motor Vehicle Act of British Columbia.

Held, reversing the judgment of the Court of Appeal (55 B.C.R. 350; [1940] 3 W.W.R. 81), that the father, respondent, was liable: during the latter's temporary absence from his home, his son had not ceased to live "with and as a member of" his family within the meaning of the above section. In such case, the driver is deemed to be the agent of the owner and the consent of the latter is immaterial.

As to the respondent's contention that section 45 of the Act (enacted before section 74A) makes the parent or guardian liable only when the automobile has been entrusted to the minor by the parent or guardian,

Held that the liability of the respondent as owner under section 74A does not disappear because all the conditions of section 45 do not exist. If the automobile had been entrusted to the son by his father, the respondent would then be liable as father under section 45 and as owner under section 74A. In the present case, the respondent is liable not because he is a father who has entrusted an automobile to a minor child, but because his automobile was driven by a "person *** living with and as a member of" his family.

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Section 74A deals with the liability of an owner, an entirely different thing from the responsibility of a parent or guardian, irrespective of ownership, which is dealt with in section 45.

APPEAL from the judgment of the Court of Appeal for British Columbia[1], reversing the judgment of the trial judge, Murphy J. and dismissing the appellants' action for damages arising out of an automobile collision.

The material facts of the case and the questions at issue are stated in the above head-note and in the judgments now reported.

J. W. de B. Farris K.C. for the appellants.

C. W. Hodgson for the respondent.

The judgment of the Chief Justice and of Rinfret and Taschereau JJ. was delivered by

TASCHEREAU J.—The appellants brought action against the respondent as a result of an automobile accident which happened on the highway between Vancouver and Chilliwack on September 30th, 1939. The Supreme Court of British Columbia maintained the action, but the Court of Appeal[2] held that the defendant who is the respondent before this Court could not be held liable for the negligence of his minor son, George, who was driving one of the automobiles, and allowed the appeal, dismissing the action.

There can be no doubt that the sole and determining cause of the accident was the negligence of George Lees, son of the defendant, in attempting to pass a motor car by driving on the wrong side of the road, when the appellants' oncoming car was so close that a collision was inevitable.

The trial judge adopted these views which have not been found erroneous by the Court of Appeal[3], and I see no valid reasons why this finding of facts should be set aside.

The learned judges of the Court of Appeal dismissed the action on the ground that George Lees at the time of the accident was not "living with and as a member of the

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family of the defendant." They based their contention on section 74A of the Motor Vehicle Act which reads as follows:—

74A. (1) In an action for the recovery of loss or damage sustained by any person by reason of a motor-vehicle on any highway, every person driving or operating the motor-vehicle who is living with and as a member of the family of the owner of the motor-vehicle, and every person driving or operating the motor-vehicle who acquired possession of it with the consent, express or implied, of the owner of the motor-vehicle, shall be deemed to be the agent or servant of that owner and to be employed as such, and shall be deemed to be driving and operating the motor-vehicle in the course of his employment; but nothing in this section shall relieve any person deemed to be the agent or servant of the owner and to be driving or operating the motor-vehicle in the course of his employment from the liability for such loss or damage.

This section which was enacted in 1937 clearly stipulates that the owner cannot escape liability when the person driving the automobile "is living with and as a member of the family of the owner." In such a case, the driver is deemed to be the agent of the owner and the consent of the latter is immaterial. This consent to the possession of the automobile by the driver is a necessary element to create liability, only when such driver is the person mentioned in the second part of the section.

The evidence reveals that at the time of the accident the respondent had gone to Alberta on a business trip where he expected to spend a few months, and the Court of Appeal held that during this absence, his son, George Lees, the driver, was not living with and as a member of the family of the respondent within the meaning of section 74A.

With respect, I cannot agree with these views and I cannot come to the conclusion that during the period of the temporary absence of the defendant from his home, the wife and son of the defendant had ceased to live with and as members of his family. On this ground, the contention of the respondent cannot prevail, and I fail to see how he can escape liability.

But the respondent now invokes section 45 of the Motor-Vehicle Act, which says:—

45. In case a minor is living with or as a member of the family of his parent or guardian, the parent or guardian shall be civilly liable for loss or damage sustained by any person through the negligence or improper conduct of the minor in driving or operating on any highway a motor-vehicle entrusted to the minor by the parent or guardian; but nothing in this section shall relieve the minor from liability therefor.

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In every action brought against the parent or guardian of a minor in respect of any cause of action otherwise within the scope of this section, the burden of proving that the motor-vehicle so driven or operated by the minor was not entrusted to the minor by the parent or guardian shall be on the defendant. 1935, c. 50, s. 45.

The respondent's contention is that this section makes the parent or guardian liable only when the automobile has been entrusted to the minor by the parent or guardian. It is true, and there is evidence that the respondent before leaving for Alberta had given instructions to his son not to use his automobile, and it is argued that such being the case, the automobile had not been entrusted to the minor son.

Section 45 was enacted before section 74A and until the latter was introduced in the Act, there was no text of law imposing a liability upon the owner of an automobile driven by another person. This liability attached by section 45 to the parent or guardian is irrespective of ownership, and exists when the automobile is entrusted by one of them to the minor. If the respondent had not been the owner of the car, section 45 could be of some help to him but such is not the case. The responsibility created by section 74A enacted in 1937, has its very foundation on ownership. This section covers a much wider field than section 45, and applies to every person even to the parent or guardian when they happen to be owners of automobiles and when the driver lives with and as a member of the family.

In the present case, the respondent is liable not because he is a father who has entrusted an automobile to a minor child, but because his automobile was driven by a person living with and as a member of his family.

If the automobile had been entrusted to George Lees by his father, the respondent would then be liable as father under section 45, and as owner under section 74A, but it cannot be said that the liability as owner under section 74A disappears because all the conditions of section 45 do not exist.

It would be strange if it were otherwise, and if we were to construe these two sections as suggested by the respondent. As pointed out by Mr. Farris K.C. for the appellant, a father owner of an automobile would not be liable for the negligence of his minor son of twenty years of age, living with or as a member of his family, unless the

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car were entrusted to the son by the father, but the following year, when the son has reached the age of majority, such liability would exist. This is surely not the letter nor the spirit of the law.

For these reasons, I am of opinion that the appeal should be allowed, and that the judgment of the trial judge should be restored with costs throughout.

KERWIN J.—On September 30th, 1939, while in a motor car on a highway in British Columbia, the appellants were injured, and the motor car in which they were driving was damaged, by coming into collision with a motor car driven by George Lees. George Lees was a young man seventeen years of age, who did not have a permit to drive but who, at the time, was driving a motor car owned by his father, James Lees, the respondent in this appeal. The accident was found by the trial judge to be due to the negligence of George Lees and judgment was given for the appellants against the respondent. On appeal, the finding of negligence was confirmed but the three members of the Court of Appeal being of opinion that no liability attached to the respondent, set aside the judgment and dismissed the action.

The question as to the respondent's liability depends upon the construction of subsection 1 of section 74A of the British Columbia Motor Vehicle Act, R.S.B.C., 1936, chapter 195, as enacted by section 11 of chapter 54 of the statutes of 1937, which subsection reads as follows:—

In an action for the recovery of loss or damage sustained by any person by reason of a motor-vehicle on any highway, every person driving or operating the motor-vehicle who is living with and as a member of the family of the owner of the motor-vehicle, and every person driving or operating the motor-vehicle who acquired possession of it with the consent, express or implied, of the owner of the motor-vehicle, shall be deemed to be the agent or servant of that owner and to be employed as such, and shall be deemed to be driving and operating the motor-vehicle in the course of his employment; but nothing in this section shall relieve any person deemed to be the agent or servant of the owner and to be driving or operating the motor-vehicle in the course of his employment from the liability for such loss or damage.

Our attention was not called to any provision in the earlier Motor Vehicles Acts of the province imposing civil liability upon the owner of a motor vehicle, such liability apparently depending upon the general law. By section

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12 of chapter 44 of the 1926-27 Statutes, section 18A was added to the then Act (R.S.B.C., 1924, c. 177). This section is as follows:—

So long as a minor is living with or as a member of the family of his parent or guardian, the parent or guardian shall be civilly liable for loss or damage sustained by any person through the negligence or improper conduct of the minor in driving or operating a motor-vehicle on any highway; but nothing in this section shall relieve the minor from liability therefor.

In 1929, by section 7 of chapter 44, this section was amended by striking out the words "a motor vehicle on any highway" and substituting therefor "on any highway a motor vehicle entrusted to the minor by the parent or guardian."

As thus amended this provision in substance is now found as section 45 in the Revised Statutes of 1936. This section seems to impose a liability upon a parent or guardian under the conditions therein set forth, irrespective of whether or not the appellant or guardian was the owner. Section 74 deals with the responsibility of the owner for any violation of the Act, etc., by any person entrusted by the owner with the possession of a motor vehicle. Then, in 1937, came section 74A, subsection 1 of which is quoted above. This subsection deals with the responsibility of the owner for the acts of "every person driving or operating the motor vehicle, who is living with and as a member of the family of the owner of the motor vehicle, and every person driving or operating the motor vehicle who acquires possession of it with the consent, express or implied, of the owner."

In my view, the legislature, by its latest enactment, was dealing with the responsibility of an owner, an entirely different thing from the responsibility of a parent or guardian irrespective of ownership. Even if that were not so, I would be disposed to think that the 1937 legislation treats alike every person living with and as a member of the family of the owner of a motor vehicle, whether that person was or was not a minor.

In the present case, George Lees was certainly living as a member of his father's family in British Columbia and in my view he was also living with his father even though the latter was absent for a short time in Alberta. It is undoubted that the father resided in British Columbia and

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that his home was with the members of his family. With respect I consider that he was living with them, and that his son was living with him, notwithstanding his temporary absence. The fact that the father prohibited the son from driving or operating the car on the highway is immaterial as the acquiring possession of it, with the consent, express or implied, of the owner, does not apply to one who was living with and as a member of the family of the owner.

I would not interfere with the finding of negligence by the trial judge, concurred in by the Court of Appeal and the appeal should therefore be allowed and the judgment at the trial restored with costs throughout.

HUDSON J.—This action was brought for damages for personal injuries sustained by the plaintiffs in an automobile accident. A motor car driven by a son of the defendant, George Lees, collided with the car driven by the plaintiffs. It was alleged that George Lees was the agent or servant of the defendant and, further, that the defendant

was the owner of the motor car driven by the said George Lees and that the said George Lees was then living with and as part of the family of the said defendant and had acquired possession of the said motor car with the consent of the defendant.

The trial judge held that the accident was due to the negligence of George Lees and that the car was the property of the defendant and that George Lees, his son, was then living with and as part of his family.

It appeared from the evidence that George Lees was driving the car without the consent of his father and probably against his express wishes. The trial judge gave judgment to the plaintiffs, holding that the defendant was liable under the provisions of section 74A of the Motor Vehicle Act, R.S.B.C., 1936, as amended by 1937, chapter 54, section 11.

On appeal the Court of Appeal reversed this decision and held that the defendant was not liable under the section which reads as follows:—

In an action for the recovery of loss or damage sustained by any person by reason of a motor vehicle on any highway, every person driving or operating the motor vehicle who is living with and as a member of the family of the owner of the motor vehicle, and every person driving or operating the motor vehicle who acquired possession of it with the consent, express or implied, of the owner of the motor

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vehicle, shall be deemed to be the agent or servant of that owner and to be employed as such, and shall be deemed to be driving and operating the motor vehicle in the course of his employment; but nothing in this section shall relieve any person deemed to be the agent or servant of the owner and to be driving or operating the motor vehicle in the course of his employment from the liability for such loss or damage.

It is no longer in question that the plaintiffs suffered loss or damage by reason of a motor vehicle on a highway, that such motor vehicle was owned by the defendant and driven by his son and that the accident was caused by the son's negligence. Nor is it open to doubt that the defendant's son was a member of his family.

Two of the learned judges in appeal thought the son was not living with the defendant within the meaning of the statute and, for that reason, excused him. With respect, I cannot agree with this view.

It is unnecessary for me to repeat the evidence which has already been set out by the other members of the court, but I think that any reasonable interpretation of the language "living with" would bring the defendant's son and the defendant within the provisions of this section. It was the family home where father, mother and children all normally resided and mere temporary absences did not in my opinion alter the situation.

There is another point which raises a more difficult question. In the Motor-Vehicle Act which is incorporated in the Revised Statutes of British Columbia, 1936, there is a section 45 which reads as follows:—

In case a minor is living with or as a member of the family of his parent or guardian, the parent or guardian shall be civilly liable for loss or damage sustained by any person through the negligence or improper conduct of the minor in driving or operating on any highway a motor vehicle entrusted to the minor by the parent or guardian; but nothing in this section shall relieve the minor from liability therefor. In every action brought against the parent or guardian of a minor in respect of any cause of action otherwise within the scope of this section, the burden of proving that the motor vehicle so driven or operated by the minor was not entrusted to the minor by the parent or guardian shall be on the defendant.

and this section has not been specifically repealed.

It is argued that section 45, dealing with a particular and more limited class, shoud be construed as if still applying to cases like the present and be thereby excluded from the provisions of 74A, which was introduced into the Act at a later date.

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It should be noted that section 74A deals with the liability of owners and that 45 deals with the liability of parents, whether they be owners or not. Section 45 creates a liability where the motor vehicle has been "entrusted" by the parent to the person driving at the time of the accident. Section 74A is not inconsistent with 45 but more comprehensive, enlarging the liability, and it should be noted too that in the latter part of the section it deals with entrustment, and such entrustment is to persons other than a child or person living with the possessor.

In my opinion section 74A covers the case and the defendant is liable. I would reverse the decision of the Court of Appeal and restore the judgment at trial, with costs throughout.

Appeal allowed with costs.

Solicitors for the appellants: Farris, Farris, McAlpine, Stultz, Bull & Farris.

Solicitors for the respondent: Sullivan & McQuarrie.