Hanes v. Kennedy, [1941] SCR 384

Supreme Court of Canada

Hanes v. Kennedy, [1941] S.C.R. 384

Date: 1941-06-02

Frank Hanes, Carl Hanes and William Hanes (Defendants) Appellants;

and

Thomas W.J. Kennedy, an infant suing by his next friend, T.J. Kennedy, and the said T.J. Kennedy (Plaintiffs) Respondents.

1941: March 20, 21; 1941: June 2.

Present: Rinfret, Crocket, Kerwin, Hudson and Taschereau JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence—Injury to customer in store by the exhibiting and discharging therein by another person of an air-pistol—Liability of person using the pistol, of person in charge of store, and of owner of store business—Non-interference by Supreme Court of Canada with reduction by Court of Appeal of amount of general damages awarded by trial judge.

The action was for damages for injury to the infant plaintiff, a boy 12 years old, caused by his being hit by a bullet discharged from an air-pistol in the hands of the defendant C.H., a boy 16 years old, in the store occupied by the defendant W.H. for his business. W.H. was not in the store at the time, it being in charge of his brother and employee, the defendant F.H. The said C.H. (a nephew of the other defendants but not employed in the store) had been exhibiting the pistol to a customer in the store, charging it with air and discharging it, and, after the infant plaintiff had entered to make a purchase, C.H. exhibited the pistol to him, pointing it towards him and discharging it, when the accident occurred. The trial judge, Urquhart J. ([1940] O.R. 461), held all defendants liable, and awarded $10,000 general damages to the infant plaintiff. His judgment was affirmed by the Court of Appeal for Ontario (ibid), except that said damages were reduced to $5,000. Defendants appealed; and plaintiffs cross-appealed, asking for restoration of the amount of damages awarded at trial.

Held: The appeal and cross-appeal should be dismissed.

The trial judge’s finding that C.H. was negligent should not be disturbed, there being ample evidence to warrant it. F.H. (who, on the trial judge’s finding, knew that the pistol was a very dangerous weapon), as the person in charge of the store, who negligently allowed C.H. to remain on the premises in possession of the dangerous article and to use it, must also be held liable. W.H. was the occupier of the store, as he was the proprietor of the business being carried on therein. A customer is entitled to the exercise of reasonable care by the occupier to prevent damage from unusual danger of which the occupier knows or ought to know (Indermaur v. Dames, L.R. 1 C.P. 274). W.H. failed in his duty to the infant plaintiff (who had entered the store as a customer) to exercise that care when his employee, F.H., was guilty of negligence; and must also be held liable.

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Where general damages fixed by a trial judge sitting without a jury have been reduced by the Court of Appeal under circumstances such as those in the present case, this Court, as a general rule, will not interfere. (Ross v. Dunstall, 62 Can. S.C.R. 393; Pratt v. Beamen, [1930] S.C.R. 284). No error in principle was made by the Court of Appeal. (McHugh v. Union Bank of Canada, [1913] A.C. 299, discussed and distinguished; Warren v. Gray Goose Stage Ltd., [1938] S.C.R. 52, at 57, referred to).

APPEAL by the defendants from the judgment of the Court of Appeal for Ontario[1] dismissing (but with a reduction of the amount of damages awarded) their appeal from the judgment of Urquhart J.¹ in favour of the plaintiffs for damages by reason of an injury suffered by the infant plaintiff.

The injury occurred in a store. The defendant William Hanes was the proprietor of the business carried on therein. On the occasion in question he was not in the store, his brother and employee, the defendant Frank Hanes, being in charge of it. The defendant Carl Hanes, a boy 16 years old, who was a nephew of the other defendants and lived with them, but was not employed in the store, had, a few weeks before the accident, purchased an air-pistol, and on the occasion in question he was exhibiting it, charging it with air and discharging it, in the store. He had been thus displaying it to a customer, a girl 13 years old, when the infant plaintiff, a boy 12 years old, entered the store to make a purchase. The defendant Carl Hanes, in exhibiting the pistol to the infant plaintiff, pointed it towards him and pressed the trigger, and a bullet struck the infant plaintiff in the eye, destroying it. It was not known how it happened that the bullet was in the pistol.

The trial judge found that the air-pistol was a highly dangerous weapon; that in pointing it at the infant plaintiff, the defendant Carl Hanes was guilty of assault and negligence; that the air‑pistol in his hands was an unusual danger in the store; that the defendant Frank Hanes, in charge of the store at the time, knew or should have known of such danger, because he knew that the pistol was a very dangerous weapon, and he owed a duty to the infant plaintiff, a customer in the store, to have seen that the danger was removed; and was liable in

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negligence for the consequences of allowing the danger to remain upon the premises; that the defendant William Hanes was liable for the negligence of his employee, Frank Hanes; and gave judgment against all the defendants for $10,000 general damages in favour of the infant plaintiff, and $406 damages, for expenses incurred or to be incurred, in favour of his father, the adult plaintiff.

On appeal by the defendants, the Court of Appeal for Ontario reduced from $10,000 to $5,000 the amount of damages awarded to the infant plaintiff, but in all other respects dismissed the appeals. Fisher J.A., dissenting, would have allowed the appeals and dismissed the action.

The defendants appealed to the Supreme Court of Canada (special leave so to appeal from the judgment in favour of the adult plaintiff was granted by the Court of Appeal for Ontario). There was a cross-appeal asking that the damages fixed by the trial judge should be restored. By the judgment of this Court now reported, the appeals and cross-appeal were dismissed with costs.

T.F. Forestell K.C. for the appellant Carl Hanes.

R.B. Law K.C. for the appellants Frank Hanes and William Hanes.

J.R. Cartwright K.C. and O.M. Walsh K.C. for the respondents.

The judgment of the Court was delivered by

KERWIN J.—The appeals should be dismissed with costs. The trial judge has found that Carl Hanes was negligent. There was ample evidence to warrant this finding and we agree with the Court of Appeal that it cannot be disturbed.

The trial judge also found Frank Hanes to have been negligent, as appears from the following extract from his judgment:—

So it comes down to this as I see it. William Banes is the owner of the store; Frank Hanes, his brother, was his employee in charge of it that day; the infant defendant was in the store armed with a highly dangerous weapon; both the uncles, particularly Frank Hanes, knew its qualities and propensities and that it was a very dangerous weapon; to the knowledge of Frank Hanes the infant defendant was charging it with air and discharging it in the store; Frank Hanes allowed him to do this and did not see that he did not flourish the weapon around in the store in the direction of customers; he allowed him to remain in the store; the infant plaintiff entered the store as an invitee; the infant defendant charged the pistol with air, cocked it (to say the least), took aim at the infant plaintiff and pressed the trigger, causing serious injury.

[Page 387]

As the person in charge of the store, who negligently allowed Carl Hanes to remain on the premises in possession of the dangerous article and to use it, Frank Hanes must be held responsible.

William Hanes was the occupier of the store as he was the proprietor of the business being carried on therein. The infant plaintiff had entered the store as a customer. As pointed out by Willes J. in Indermaur v. Dames[2] a customer is entitled to the exercise of reasonable care by the occupier to prevent damage from unusual danger of which the occupier knows or ought to know. William Hanes failed in his duty to the infant plaintiff to exercise that care when his employee, Frank Hanes, was guilty of negligence, and William Hanes must also be held liable in damages.

The trial judge awarded the infant plaintiff ten thousand dollars damages. The Court of Appeal, while agreeing with all the considerations which the trial judge stated moved him to fix that amount, thought there were other matters which had not been sufficiently taken into account by him and reduced the damages to five thousand dollars. The plaintiffs cross‑appeal.

Where general damages fixed by a trial judge sitting without a jury have been reduced by a Court of Appeal under circumstances such as we find here, this Court, as a general rule, will not interfere: Ross v. Dunstall[3]; Pratt v. Beaman[4]. Mr. Cartwright referred to McHugh v. Union Bank of Canada[5]. That, however, was a case where the Court of Appeal of Alberta determined that there was no evidence upon which the trial judge could assess damages but granted the plaintiff the option to have the matter referred to the Clerk of the Court to take an account of what damages, if any, the plaintiff had suffered by the negligence of the defendants but gave directions which would limit such damages. That decision was affirmed by the Supreme Court of Canada with an alteration in the direction as to the method of assessment. The Judicial Committee, agreeing with the minority opinion that had been expressed in this Court, decided (p. 309) that there was evidence to warrant a determination by the trial judge as to the quantum of damages and that there

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was nothing to justify a conclusion that his assessment was erroneous. I think there was nothing more involved in that decision on the question of damages, and the judgment delivered on behalf of the majority of this Court in Warren v. Gray Goose Stage Ltd.[6] does not indicate that any wider construction was put by them upon the words of their Lordships in the McHugh case[7]. It was pointed out, at page 57, that the course adopted by the Privy Council “undoubtedly would not have been taken had the Privy Council not concluded that the two appellate courts below had erred in principle in interfering with the assessment made by the trial judge.” No error in principle was made by the Court of Appeal in this case, and the cross-appeal should, therefore, be dismissed, with costs.

Appeals and cross-appeal dismissed with costs.

Solicitor for the appellants: T.F. Forestell.

Solicitors for the respondents: Walsh & Evans.