Backer v. Beaudet, [1973] SCR 628

Supreme Court of Canada

Backer v. Beaudet, [1973] S.C.R. 628

Date: 1972-05-01

Theodore J. Backer (Defendant) Appellant;

and

Michèle Beaudet (Plaintiff) Respondent.

1972: February 15; 1972: May 1.

Present: Abbott, Judson, Ritchie, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

Motor vehicle—Horse crossing highway—Collision with automobile—Driver killed—Animal under custody of third party—Negligence—Owner’s liability—Civil Code, art. 1053-5.

The respondent was a passenger in a car driven at night by her husband when suddenly a mare appeared on the road that he could not avoid hitting. This collision resulted in another one in which the husband died.

The mare was owned by the appellant who had given her into the custody of one J. She was kept to the appellant’s knowledge in a place unfit for a riding horse with regard to security. The trial judge found the appellant and J. both responsible for the damages. The Court of Appeal affirmed this judgment. Hence the appeal to this Court. The appellant submits that J. had the legal care of the animal under art. 1055 C.C.

Held: The appeal should be dismissed.

The agreement between the appellant and J. was that J. would look after the mare; in recompense his daughter was to have the right to ride her. This was not a contract of lease or hire of personal services whereby J. would become appellant’s servant.

The owner’s liability attaches to the legal duty of care, and it, therefore, disappears when this legal duty passes to a third party. Accordingly the appellant had no presumption to rebut under art. 1055 C.C.

However, the appellant has committed a personal fault in permitting the mare to be kept, with his knowledge and consent, in a place where insufficient precautions were taken to prevent her escape right next to a highway where there was no fence to prevent her from getting onto the road if by chance she got out of the building.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec, affirming a judgment of the Superior Court. Appeal dismissed.

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A.J. Campbell, Q.C., for the defendant, appellant.

R.G. Chauvin, Q.C., for the plaintiff, respondent.

The judgment of the Court was delivered by

PIGEON J.—Appellant Backer is appealing against a decision of the Court of Appeal which upheld a judgment of the Superior Court ordering him to pay respondent the total sum of $50,425 for damages resulting from the death of her husband.

On May 20, 1963, plaintiff was proceeding to Ottawa in a small Volkswagen driven by her husband. It was night. Suddenly, in the parish of Vaudreuil, a small black mare appeared on the road and respondent’s husband could not avoid hitting her. This collision resulted in another with a big car going the other way. Respondent’s husband was thrown on the road and died almost instantly.

Backer was the owner of the escaped animal, and had recently given her into the custody of one Jesty, the owner of a stable where he had kept her before, having decided to close down his establishment. The trial judge describes the agreement concluded by Backer as follows.

[TRANSLATION] SO he made an arrangement with Jesty in May 1963, providing for the stabling of the mare, who was still a filly, in one of the buildings on the latter’s farm: Jesty supplied feed and stabling and looked after her maintenance; in return, his daughter could ride the horse, but Backer’s daughter also rode her on weekends; before this agreement was entered into, Jesty had rather been concerned with farm work and farm horses; he had practically no experience with riding horses.

Jesty did not have a stable for riding horses, and it was decided to stable the mare in an old icehouse converted into a tractor shed. The building had no windows and entry was through a large door hung from a metal slide bar. In the opening behind this door a gate of the kind used

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for enclosures with wire fencing was installed. This gate was hinged to the door frame on one side, and on the other it was secured by a chain which was nailed to the frame and hooked onto a hook fixed on the outside. This made it possible to leave the sliding door ajar to provide necessary ventilation. This makeshift installation was set up by joint agreement between Backer and Jesty.

The trial judge found them both responsible for the damages claimed by respondent, but as Jesty did not enter an appeal only Backer’s responsibility is in issue. The trial judge said in reference to him:

[TRANSLATION] As to defendant Backer, he himself contributed to creating a dangerous situation of fact, although his experience and perception had taught him that riding horses were kept in conditions totally different, with regard to security, from those in which his mare was kept: not only did he not protest against such conditions, but he himself contributed and assisted in bringing them about by helping the defendant Jesty to set up makeshift premises to serve as a box stall for his mare; in addition he gave his animal into the custody of a keeper who, although experienced with farm horses, had no experience with riding horses.

It should be noted, however, that he states further on, before concluding:

[TRANSLATION] WHEREAS under Art. 1055 of the Civil Code defendants could only rebut the presumption of that article by proving fault of the victim or of a third party, or superior force;

WHEREAS they did not rebut that presumption;

These reasons were adopted on appeal, Mr. Justice Rinfret stating with the concurrence of his colleagues:

[TRANSLATION] Appellant Backer submits that Jesty, and not he, had the legal care of the horse.

This is a question of fact, and the trial judge ruled against him, and we have not been shown any manifest error in that ruling.

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He attempted to rebut the presumption to which he was subject, but did not succeed in doing so.

The agreement between the parties was that Jesty would stable and look after the horse; in recompense he obtained the right for his daughter to ride the pony every day except Saturday and Sunday, which were reserved for Backer’s daughter.

The latter therefore had the legal care of the horse, and he also had the physical custody through the agency of his servant Jesty.

He agreed for his horse to be kept in a place unfit for a riding horse: in an old icehouse with no outlet other than the door.

…

Not only did he agree to this old icehouse, but he helped to install a gate there which he ought to have known was inadequate, and which proved to be so in the circumstances.

It should first be noted that appellant correctly submits that Jesty was not his servant. The contract concluded between them cannot be regarded as a contract of lease or hire of personal services. It does not have the essential features of such a contract, it lacks the element of subordination which is a condition for its existence (Quebec Asbestos Corp. v. Couture[1]).

What must be considered next is whether Backer actually retained the legal care of his mare after giving her into Jesty’s custody. With respect for the contrary opinion, it must be remembered that this is not a question of fact, because we are concerned here with the legal effect of a specific agreement. French decisions and legal writers are almost unanimous in holding that one who boards an animal becomes its legal custodian, and the owner ceases to have this status. This is how the Cour de Cassation ruled in Evrard c. Marquet[2]. That case dealt with an automobile accident caused at night by an escaped animal. The Court held that [TRANSLATION “by agreeing to ‘board’ the animal, i.e. to look after it, to tend it and to feed it, Evrard entered into a contract which by its very nature implied transfer of the care;…”

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It must now be considered whether, due to the fact that Jesty had the legal care of the animal when she escaped, Backer was exempt from the liability imposed by the first two paragraphs of art. 1055 of the Civil Code, which read as follows:

Art. 1055. The owner of an animal is responsible for the damages caused by it, whether it be under his own care or under that of his servants, or have strayed or escaped from it.

He who is using the animal is equally responsible while it is in his service.

This wording differs somewhat from that of art. 1385 of the Code Napoléon, which is in the following terms:

[TRANSLATION] Art. 1385. The owner of an animal, or one who is using it, while it is in his service, is responsible for the damages caused by it, whether the animal be under his own care or have strayed or escaped from it.

It is therefore necessary to seek whether, in Quebec, prior to the judgment under consideration, the French decisions and text-books holding that the liability in question is alternative and not cumulative were properly subscribed to: Bacon v. Frechette[3]; Trudel v. Hossack[4]. The French version of our article could mean that the owner of an animal is liable in two cases: first, when it is under his care or under that of his servants, and secondly when it has strayed or escaped. If one looks at the English version, however, it can be seen that it states the second alternative applies only when the animal has escaped from such care (“have strayed or escaped from it”). In Quebec as in France, therefore, the text-books and decisions to the effect that the owner’s liability attaches to the legal care, and that it therefore disappears when this legal care passes to a third party, must be taken to be correct. Accordingly, it has to be admitted that the Superior Court as well as the Court of Appeal erred in taking the view that Backer had a “presumption” to rebut. He did not have to exculpate himself. It was for the

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plaintiff, now the respondent, to show that he had committed a fault causing damage.

Does this error require that the judgment awarding damages be reversed? I do not think so. The fact remains that both Courts found Backer had committed a personal fault, consisting in having permitted the animal belonging to him to be kept, with his knowledge and consent, in a place where insufficient precautions were taken to prevent her escape. As was pointed out by the trial judge, the shed in which the mare was kept stood right next to a highway, and there was no fence to prevent her from getting onto the road, if by chance she got out of the building. Backer could not be unaware of the grave danger to the public that the presence of an escaped horse on a highway represents. An accident like the one that occurred was to be expected if ever the mare got out of the shed, in which there was nothing but a chain hooked outside to hold in place the gate across the door opening. Having heard the testimony of expert witnesses, the trial judge stated:

[TRANSLATION] The young mare was only 12 hands high; she was, in English riding terminology, a pony, i.e. a horse smaller than the usual average for riding horses; the expert witness Adams stated at the hearing that these small horses are full of tricks: he noted that the wire square through which passed the chain holding the gate closed (see photo P-5C) was slightly larger than the other squares, because the animal had undoubtedly pushed through her head, which was smaller than that of an average horse, and then removed the chain with her lips or teeth;

It is true that defendant Jesty stated that on the evening before the accident he ascertained that the chain was on its hook, and that the sliding door was closed so as to leave a gap of about two feet, but the fact remains that the mare got out of her box, and she could only have got out through the door; he also stated that persons unknown had got into the chicken coops nearby at about that time, but this illegal evidence cannot be accepted, and it was for him to show that the gate was opened by third parties, a proof which he has been unable to make.

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In effect, the Court of Appeal agreed with those remarks. As this was certainly a question of fact, I see no reason to intervene. Appellant did not succeed in showing that, by coming to that conclusion, a manifest error had been committed. It is quite true that if the chain intended to hold the gate actually was, after the accident, as Jesty testified, in the position shown in the photograph filed into the record, it was impossible for the mare to have done this. But, in spite of that, the trial judge was of the view that Jesty had not succeeded in proving that the animal had escaped through the intervention of persons unknown. The Court of Appeal did not find he had committed an error in coming to this conclusion, and the least I can say is that it does not seem obvious to me that there was any error in so deciding. Nor do I think one could believe that the errors of law on the application of art. 1055 had anything to do with this conclusion.

For these reasons I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the defendant, appellant: Campbell Pepper, Durand & Laffoley, Montreal.

Solicitor for the plaintiff, respondent: Roland G. Chauvin, Montreal.