The Canadian Pacific Railway Co. v. Robinson

AN

*Nov. 13.

14, 18.

AND

DAME AGNES ROBINSON (PLAINTIFF) RESPONDENT. *June 22. ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).

2261, 2262, 2267, 2188 C.C.-Arts. 431, 433 C.P.C.

The husband of respondent was injured whl1e engaged in his duties as appellants' employee and the injury resulted in his death about fifteen months afterwards.

No indemnity having been claimed during the lifetime of the husband the widow, acting for herself as well as in the capacity of executrix for her minor child, brought an action for compensation within one year after his death. Held, reversing the judgment of the courts below, (Fournier J. dissenting) : 1. That the respondent's right of action under art. 1056 C.C. depends not only upon the character of the act from which death ensued, but upon the condition of the decedent's claim at the time of his death, and if the claim was in such a shape that he could not then have enforced it, had death not ensued, the article of the code does not give a right of action, and creates no liability whatever on the person inflicting the injury.

.APPEAL from the judgment of the Court of Queen's Bench Bench for Lower Canada (appeal side) (1) which confirmed the judgment of the Court of Review (2), dismissing three motions of the appellants, (1st) Sir W.

(2) M. L. R. 5 S. C. 225. (1) 11. L. R. 6 Q.

for judgment non obstante veredicto; (2nd) in arrest of judgment; and (3rd) for a new trial; and granting the respondent's motion for judgment upon the findings of the jury upon .a second trial in this cause.

The action was instituted on the 17th day of May, courA. 1884, by the respondent, acting as well for herself as in her capacity of tutrix to her minor daughter, then a child of about eight years of age, to recover damages consequent on the death of Patrick Flynn, the husband of the respondent, and father of her minor child, which death had been caused by the fault and negligence of the appellants.

The facts and pleadings are fully given in the report of the case (in Review) (1).

The questions which arise upon this appeal are:- First, whether the plaintiff has any right of action, it appearing from the allegations of her declaration that more than a year elapsed between the date of the accident and the death of her husband without any action having been taken, it being contended by the appellants that all liability and all rights of action resulting from the bodily injuries received by the deceased were prescribed and extinguished by the lapse of one year, under article 2262 of the code; and if so whether it was necessary to plead prescription;

Secondly, whether the defendants are entitled to a new trial.

Under article 1056 the right of action is given to the consort and relations only in the case when the person dies " without having obtained indemnity or satisfaction."

It follows from this that if the deceased had obtained indemnity or satisfaction from the appellants during his lifetime neither the widow nor his relations would have had any right of action, thus showing that the right of action is the same in favor of the deceased and of his consort and relations, though the measure of damages is different; the deceased in the one case being entitled to damages for the suffering and injuries personal to himself, and his consort and relations being entitled to damages for the pecuniary loss suffered by his death. But the foundation of the right of action is the sameviz., the bodily injuries which are alleged to have caused his death.

It follows from the article that if that right of action and the liability of the appellants were extinguished before the death of the deceased, it cannot be revived in favour of his consort or relations. The principle has been upheld in England in the interpretation of Lord Campbell's Act, from which act our article is drawn: Read v. Great Eastern Railway Co. (1); Pulling v. Great Eastern Railway Co. ; Pym v. Great Northern Ry. Co. (3); Senior v. Ward Haigh v. Royal Mail S.S. Packet Co. ; Merlin Rep. Po. Injures And this Court has held in this very case following the Privy Council in Trimble v Hill and the House of Lords in City Bank v. Barrow that the construction by the courts in England upon the English statute should be adopted by the courts of this country. See also Dibble v. New York c Erie Railway Co. It is, therefore, submitted with confidence, thatthe appellants have the right to urge under art. 1056, any matter, such as prescription, which extinguished their liability before the death of the injured person.

It may be urged that the plaintiff has a right action independently of the statute, which the code practically is; but this has already been authoritatively Tn decided by this court in this case, holding that the enactments of our code leave clearly, for an injury caused by death, nothing but the action given by art. . 1056, and that the statutory action only now lies. But it is objected by Mr. Justice Davidson that the prescription of the right of action is not equivalent to indemnity or satisfaction, because the prescription is not founded upon a presumption of payment but on the higher reason of public policy. The learned Judge has evidently misunderstood the contention of the appellants.

They did not contend that this prescription created a presumption of indemnity or satisfaction, but that it was evident, from the terms of the article 1056, that if the liability were extinguished in any way, whether by payment, prescription or otherwise, there was no new liability and no new right action in favor of the widow created by the decease the husband.

That the widow's right of action depends upon the existence of a valid right of action in the husband at the time of his death, is clear not only from the language .of the code making her right dependent upon the question as to whether he had received indemnity in his lifetime, but also from the undoubted principle that the negligence of the deceased would be a good answer to her action.

It is submitted that if the right of action can be extinguished by payment to the injured person during his lifetime, it can also be extinguished by lapse of time, provided that the law has fixed such lapse of time as a limitation to the right to recover damages resulting from the injuries received.

The lapse of time establishes a presumption juris et de jure of the extinction of the obligation or cause action.

Fuchs vs. Legard, (1); Caron v. Cloutier, The question, therefore, now arises whether it is the prescription of twoye ars established article 2261, wy byaril26, or of one year by article 2262, which should govern in an action for damages arising from bodily injuries. Two of the Judges of the Court of Review (Davidson and Wurtele, JJ.), after careful consideration, came to the conclusion that the prescription was that of one year established by article 2262.

On the other hand Mr. Justice Taschereau held that it was evident from the French version, which speaks of " injures corporelles." that this prescription could only apply to injuries resulting from an assault, or wrongful overt act; in other words, that the word " injures " means only " in.juries inflicted with malice: to wit, an offence," to use the language of Judge Davidson, and that, as the hurt was done without malice, to wit, a quasi-offence, the prescription established by 2261 should govern. Article 2261 speaks of damages resulting from offences or quasi-offences where other provisions do not apply. It may be true that in common parlance the word " injure " has the signification attached to it by the learned judge, but reference to the dictionaries will show that it has also the same meaning as the English word "injuries," as applied to the effects of storms, convulsions of nature, etc., and we frequently hear the expression " injures corporelles " applied by French-speaking members of the bar to the ordinary action for damages resulting from injuries to the person.

Moreover, it would seem extraordinary that the codifiers could have so mistranslated the expression

" injures corporel/es " as to make it read " bodily injuries," if the interpretation of the French version by the learned judge is correct.

It is submitted that the use of the word " corporelles " in conjunction with the word " injures" is sufficient to show that the meaning of the codifiers is correctly expressed in the English version, for it is doubted if the expresin te

EnlishversonPACIFIC sion " injures corporelles " can be found in the work of any legal writer as applied to injuries to the person.

It is contended that the codifiers used these words in order to express as clearly as possible the idea of bodily injuries. Article 2261 covers all damage resulting from offences or quasi-offences, whenever other provisions do not apply. Immediately following, we have provided a shorter prescription for damages resulting from bodily injuries, saving the cases regulated by special laws, and the special provisions contained in article 1056.

Now it is clear that article 1056 applies to both offences and quasi-offences;

and it is contended that this saving clause can have only one meaning, namely, that while actions for such damages are prescribed by one year, should the injured person die within that period the widow and surviving relatives should have another year within which to bring their action.

But surely it could not be held to mean that if the injured person lived for say ten years, they would still have a right of action for another year. This would be a reductio ad absurdun ; for if the liability of the person causing the injury is extinguished by prescription it is extinguished towards all the world ; and it cannot be contended that it can be revived by the subsequent death of the person injured.

As to the cases regulated by special laws there are none except those regulating prescription of just such actions as this one-viz., actions for damages resulting from quasi-offences.

Such are the provisions of the Railway Act, of ch. 85 of the Consolidated Statutes of Canada, and of the charters of many of our cities and towns establishing prescriptions of six and three months in such cases.

But a reference to the language of the codifiers themselves, in their third report, book 3, title of prescriptions, makes it incontestable that the codifiers intended to establish icnetbeta h oiiT neddt sals a separate prescription for all bodily injuries, whether resulting from offences or quasi-offences.

It will be seen that they give as one of their reasons that there was already is existence, by statute, a short prescription in such cases in favor of commercial corporations. This language could only refer to such special enactments as have already been mentioned.

At the time the report was written there was in existence, by the then Railway Act, a prescription of six months in favor of railway companies, and there were also short prescriptions established in favor of certain commercial corporations.

The prescriptions so established could not possibly have been confined to actions resulting from offences only. In fact, it would be only in very rare and exceptional cases that a corporation could be held to be guilty of an offence (ddlit) occasioning injury to the person. It only remains to consider the point raised by the Court of Queen's Bench, that the prescription of actions for damages resulting from torts causing injuries to the person only begins to run from the date of the cessation of the injury. This is a new contention, never raised by the respondent, and, it is submitted, entirely contrary to principle, and to the formerly existing jurisprudence of the courts of the province (1). Were this doctrine once admitted, there would be no end to litigation arising from injuries to the person, and the object of the law in establishing a limitation of such actions would be defeated; so long as the injured person lived and suffered from the consequences of the injuries received, he would be entitled to continue taking actions against the party liable. Many bodily injuries result in permanent disablement, 'TE and a consequent continuous damage during life. Can it be seriously contended that it is the policy of the law to continue the right of action so long as the damage continues?

The contrary is confidently contended for by the appellants.

The liability attaches from the instant the tort is committed, and is extinguished by the lapse of time, from that moment within which is fixed by law the limit of the right to take action.

If the tortious acts were continuous the limitation would only begin to run from their cessation. As for instance in cases of damage to property caused, for example, by the deprivation of access to a street, where the cause of damage is continued, the courts have always held that the right of action is not prescribed till the cause is removed, Grenier v. City of Montreal (1); Corporation of Tingwick v. T. By. Co.

But in case bodily injuries such as this, though 'the resulting damage may continue through life, there is but one act which caused it and the prescription must run from the date of its commission.

Such has always been the interpretation of the laws of limitations in

England and America. Wood's Limitations of Actions

; Fetter v. Beale ; Whitlehouse v. Fellowes

Addison on Torts

In France-it is the rule adopted by the code in matters of ddlit and was the rule of the law before the code, Jousse Id6e G6nerale de la

Justice Criminelle

No jurisprudence can be cited to sustain the holding of the Court of Queen's Bench on this point.

It is, therefore, submitted that the motion for judgment non obstante veredicto should have been granted by the courts below, or at least judgment arrested, because it was apparent, on the face of the plaintiff's declaration, that her husband having died more than a year after the bodily injuries were received without having taken suit, the liability of the appellants resulting from such injuries was extinguished under article 2262 by prescription, and that consequently the plaintiff had no right of action under article 1056 to recover the damages caused to her by his death resulting from such injuries.

As to the absence of any plea of prescription we contend that prescription may be relied on at any stage the case, even in appeal, and is not presumed to be renounced by pleading to the merits. Arts. 2188, 2267 C.C.

Grenier v. City of Montreal (1) ; Pigeon v. City of Montreal (2); Breakey v. Carter ; Dorion v. Crowley (4); Leduc v. Desmarchais ; Corporation Sherbrooke v. Dufort

The learned counsel also argued that, at all events, there should be a new trial on the ground of excessive damages, citing the previous report of this case and Corner v. Byrd

Article 2262 of the Civil

Code only refers to injuries inflicted with malice, as prescribed by one year, those inflicted without malice being quasi-offen- Q. Q. ces, like the injury in question, coming under the provision of article 2261 which are prescribed'by a E lapse of two years.

The French version of the code refers to " injures corporelles," and the word " inJures" means injuries inflicted with malice, not as in the present instance.

See also Lord Mackenzie's Roman Law (1).

Even if the respondent's rights were prescribed as alleged, prescription should have been sp.ecially pleaded.

Art. 2188 C. C.

The respondent's right of action only on the death of her husband. Prior to his death she had no right of action. How then could a right be prescribed before it came into existence ? Yet this is the pretension of the appellants. The respondent is not claiming any successive rights. She had a right of action quite different from any right which her husband might have had, provided he did not during his lifetime obtain indemnity or satisfaction from the appellants. It is not a successive right as representing her husband, but a right given to her by special legislation. There is no pretension that respondent's husband did obtain indemnity, but the appellants now pretend that prescription against his rights having been acquired it must be assumed to be equivalent to payment.

In the recent case of Mflarchelerre v. The Ontario and Quebec Railway Company for damages, although the defendants had not pleaded prescription, Mr. Justice

Johnson, in the Superior Court dismissed the plaintiff's action holding that under the Consolidated Railway act, 42 Vic., cap. 9, sec. 27, and Consolidated Statutes of

Canada, cap. 109, sec. 27, the action was prescribed by the lapse of six months inasmuch as that section provides that it is sufficient to plead the general issue.

The case was taken to the Court of Review, composed Justices Gill, Mathieu and Davidson, and the judg- CANI ment reversed on the ground that the defendants had renounced prescription through having paid for medi- ' attendance upon the injured person.

As to the application for a new trial for excessive damages, the learned counsel cited and relied on Cannon v. Huot Levi v. Reed Lambkin v. South Eastern Railway Co. and Stephens v. Chauss6 (4). Sir W. J. C.J.-I am of opinion that this appeal should be allowed.

I rely upon the judgment Mr. Justice Taschereau and concur in his reasons for my decision.

J.-When this cause was before this court on a former occasion on an appeal from the judgment of the Court of Queen's Bench dismissing the appeal from the judgment refusing a new trial, I expressed the opinion that the action founded on article 1056 of the Civil Code of Quebec was the same action as that authorized by chapter of the Consolidated Statutes of Canada, which was itself a re-enactment of the Imperial statute known as Lord Campbell's Act.

I adhere to that opinion and I must therefore hold that the present action is subject to the same conditions as a similar action would be under the Imperial statute referred to, except in so far as express provision to the contrary may have been made by the code.

It has been determined in England that the action under Lord Campbell's Act is not the same action as that which the deceased person would have himself had at common law, if he had survived, but a new action by the statute.

Seward v. Vera Cruz

Pym v. Great Northern Ry. Co. It has, however, been decided, as the language of the statute plainly requires, that the right to maintain an action under the statute is subject to the condition that the deceased person himself should have been at the time of his death entitled to maintain an action for the injury. This prin- Strong J. ciple is clearly established by many authorities and it applies as well to cases in which, there having been originally a good cause of action, it has been extinguished by release, acceptance of satisfaction or in any other manner as to cases in which there was originally no cause of action.

The application of this principle is shown by the following cases. In Haigh v. Royal Mail Steam Packet Co. a ticket was sold by the defendants to a passenger subject to a condition that the company would not be responsible for injury arising from perils of the sea though the negligence of the defendants' servants might have contributed to it. The passenger having been drowned in consequence of a collision caused by neglect of the officers and crew the ship, it was held that as the company would not have been liable to the passenger himself they were consequently not liable in an action on Lord Campbell's

Act brought by his executors.

In Senior v. Ward (4) it was held that contributory negligence by the deceased was a defence to an action under the statute brought by his widow.

In Griffiths v. Earl of Dudley the deceased was a workman in the employ of the defendant who had expressly contracted that the defendant should not be liable in the case of an injury such as that which caused his death, and it was held that no action could be maintained under the statute. In

Read v. Great Eastern Ry. Co. Blackburn J. treats a bar of the right of action by the deceased by the operation of the Statute of Limitations, six years having CPAIN elapsed in the interval between the injury and the death without any action having been brought, as equivalent bar by satisfaction release, saying It is to be remarked that this case of Read v. Great Eastern Ry.Co. is also reported in Law Reports Queen's Bench 555, but that the passage just quoted is not to be found in that report. Best and Smith however appear to have been the authorised reporters to the Court Queen's Bench at the time of the decision, and their report is therefore to be regarded as the more authentic.

Now, the question we have to determine in the present case, which in this aspect of it comes before us on an appeal from the judgment of the court below on the motion in arrest of judgment, or for judgment non obstante made by the defendants in the Court of Review, is: whether the deceased husband and father the plaintiffs retained up to the time of his death a good right of action against the defendants in respect of the injury he had received, or whether the right to maintain such an action had not been extinguished by the prescription of the article 2262.

The procedure on a motion for judgment non obstante is provided for by article 433 of the Code of Procedure and article 431 regulates the proceedings on a motion in arrest of judgment. As I understood the argument it was not disputed by the learned counsel for the respondents, that it did appear upon the record both from the pleadings and the evidence (all of which are open for consideration on motions of this kind,) that more than a year had elapsed in the interval between the injury received by the deceased and the time of his death, and that any objection founded on this was open on these motions. It was, however, strenuously contended on the part of the respondents that the action of the pre- Strong J. sent plaintiffs was in no way dependent on the subsistence of a right of action in the deceased up to the date of his death (inasmuch as their action was an entirely new and independent one,) and further that even if it were, the respondents (plaintiffs) had notwithstanding, under the express provision of article

1056, the right to maintain an action begun at any time within a year after the death of the deceased, and lastly, that at all events the defence, that the action the deceased had been extinguished by prescription, could not be set- up inasmuch as it had not been pleaded.

As I have before said, I am of opinion that the action being of the same nature, and indeed the same action in all respects, as that conferred by Lord Campbell's

Act, it must, as an action on that statute is considered in England, be deemed to be a new action, but still a new action dependent on the condition that the action of the deceased had not at the time of his death been barred or extinguished.

It therefore only remains to consider the other propositions advanced by the respondents. That the provisions of article 1056 do not entitle the consort and relations mentioned in the article to sue in a case where the original action of the party deceased was extinguished before his death by satisfaction or release is,

I think, abundantly clear from the English authorities decided under Lord Campbell's Act.

No case appears to have arisen in England in which the right of action of the deceased had been barred by the Statute of Limitations, but in the passage which I have before quoted from Mr. Justice Blackburn's judgment in Read v. Great Eastern Railway Co. he puts the case of the action having been barred by the statute as one in which it would be " straining the words of the statute " to admit the action. Then it is to be observed that whilst the English Statute of Limitations only bars the remedy, leaving the right still subsisting, here the article 2262 is not merely a bar to the remedy but an actual extinguishment of the obligation arising from the delict, for the article 2267 expressly provides that in " all the cases mentioned in articles 2250, 2260, 2261 and " .2262 the debt is absolutely extinguished and no action can be maintained after the delay for prescription has expired."

If, therefore, the bar of the remedy by the Statute of Limitations would constitute a defence in England a fortiori must be the prescription of the article 2262, which not merely bars the remedy but is extinctive of the obligation, so operate in the Province of Quebec.

There is, however, contained in the article 2262 a saving of the special provision containtd in article 1056. This unquestionably refers to the proviso in article 1056 that the consort or designated relations of the deceased shall have " but 'only within a year after his death " a right to bring an action. These words are, in my opinion, quite immaterial in the present case. It could not be pretended that they would apply so as to give a right to sue in a case in which the deceased had accepted satisfaction or released the action, and if so there is no more reason why they should apply in a case where his action had been before his death extinguished by prescription.

Moreover, if the contrary inerpretation were adopted and they should be held to apply in a case where the death had been but a short time after the expiration of a year from the injury they ITa would equally apply to save an action to the representatives when the death had occurred twenty years after the wrongful act.

It never can be supposed that C the legislature intended to leave such an action un. covered by some prescription which would, however, be the result of attributing to the article the interpretation contended for by the respondents. The meaning of the article is, however, apparent; it applies to enlarge the period of prescription and to give the consort and relations a full year from the date of the death within which to bring their action, without joining as against them the time which may have elapsed in the lifetime of the deceased, in a case in which the death the deceased occurs before it has been barred by prescription.

As regards the question of pleading the defence that the action of the deceased had been prescribed I am opinion that we are bound to take notice of that defence as fully as if it had been formally pleaded. We are told by the authors that it .was always a question under the old law whether the court was bound to notice extinctive prescriptions when the parties had not pleaded them, the basis of the controversy having been the debated question whether prescription was founded on presumption of satisfaction or was a law of public order.

The authorities, it seemed, differed upon this question

In order to settle the dispute it was enacted by the French Code that the prescription must be set up by the party, art. 2223, but by article

2188 of the Quebec Code the question was solved the other way, and it was provided that: " The court cannot of its own motion supply the defence resulting from prescription except in cases where the right of action is denied." Then by the conjoint operation E the articles 2262and 2267 this right of action is most undoubtedly denied, the denial of the right of action thus referred to being intended to distinguish such cases of prescription as these to which the articles last mentioned apply from those in which the prescription amounts to no more than a mere presumption payment.

This point as to the right of the court to act on a defence of prescription not pleaded has arisen in-several cases both here and in the courts of the Province of- Quebec, and it has been decided more than once that the court must notice extinctive prescription though not pleaded.

My brother Taschereau will refer particularly to this point and to the authorities which support his view.

If then the court may, without plea, take ex ol/icio notice of the prescription in a case where it is set up directly, as extinguishing the action before the court, I see no reason why it should not be equally noticed without requiring it to be pleaded in a case like the present where it is relied on as shewing the extinction of the right of action, the continued existence of which to the death of the deceased is by the law made an indispensable condition to the maintenance of an action like that under appeal.

I can see no distinction between the two cases. The same reason applies to both. Extinctive prescription does not require to be pleaded because it is a law of public order, a reason which applies at least as strongly to a case like the present where it is used to show that no cause of action ever arose as to a case where it is admittted there was originally a cause of action, but one which has been extinguished by lapse of time.

J.-Le pr6sent appel est d'un jugement rendu A l'unanimit6, par la Cour du Bane de le Reine, le 19 janvier 1890, confirmant le jugement de la Cour de Revision siegeant A Montr6al, lequel avait renvoy6 les trois motions de l'appelante, 10 pour jugement non obstante veredicto; 20 en arrit de jugement, et 30 pour un nouveau procs, et accord6 la motion de 1'intim6e pour jugement conform6ment au verdict rendu par le jur6 sur un second proc~s de cette cause.

L'action a et6 institu6e le 17 mai 1884, par I'intimbe, taut pour elle-m~me qu'en sa qualit6 de tutrice A son enfant mineur, pour recouvrer les dommages leur vesultant de la mort de Patrick Flynn, mari de l'intim6e et phre de son enfant mineur. Cette mort avait

& la suite d'un accident arriv6 A Flynn par la faute et n6gligence de 1'appelante.

L'intimbe concluait A $10,000 de dommages et int~rats.

L'appelante a plaid6 que l'accident en question n'avait td caus6 par aucune faute ou n6gligence de sa part, ni de la part d'aucun de ses employ6s, mais qu'au contraire,-il n'avait et caus6 iue par la faute et n6gligence du dit Patrick Flynn. Sur la contestation ainsi lice, le proces eut lieu sous la pr~sidence de

1'hon. juge Doherty, et un verdict fut rendu en faveur de l'intim6e pour $2,000 et de $1,000 en faveur de son enfant mineur. Jugement fut rendu par la majorit6 de la Cour de Revision renvoyant la motion de l'intijugement de l'appelante pour un nouveau proces.

Sur appel la Cour du Bane de la Reine ce jugement fut renserv6 l'unanimit6 des juges de cette Cour par un jugement accor- Fournier j. dant a 1'intim6e le montant de son verdict.

Le jugement de la Cour du Banc de la Reine ayant 6t6 soumis i la revision de cette cour, il intervint le 20 janvier 1887 en faveur de l'appelante, un jugement lui accordant un nouveau prochs, sur le principe que le juge avait err6 en disant aux jurbs " qu'ils avaient le droit et pouvaient prendre en consideration dans l'6valuation des dommages les angoisses et les peines d'esprit de la m~re et de l'orpheline."

La cause 6tant revenue devant la Cour Superieure pour faire fixer un jour pour le procds, l'appelante apr~s plus de trois ans de contestation, fit motion pour amender son plaidoyer et obtint la permission de plaider de nouveau. Une nouvelle 6nonciation de faits fut pr6par6e pour tre soumise au juge.

Le prochs eut lieu les 28 et 29 novembre, et le jur6 rendit un verdict de $4,500 en faveur de l'intim6e et de $2,0. 0 en faveur de son enfant mineur.

L'appelante fit alors A 1'encontre de ce verdict les trois motions mentionn6es plus haut. L'intimbe de son c6t6 lit motion pour jugement en sa faveur conform6ment au verdict.

Les deux premibres motions, celle pour jugement nonobstant le verdict et celle en arrst du jugement sout en r~alit6 fond6es sur les memes raisons, savoir: que le droit d l'intim6e tait 6teint et prescrit dis avantl'institution de son action, parce que Patrick Flynn, son mari, ayant t6 victime de 1'accident le 22 aofit 1882, n'6tait mort que le 13 novembre 1883, plus d'un an et trois mois apris, c'est-h-dire A une 6poque oil 1action de Flynn, s'il eilt v6cu, eilt t prescrite.

Cette pritention de l'appelante est toute nouvelle et est formul6e pour la premibre fois sur le d6bats de ces motions.

n'en a kt fait aucune mention dans les defenses h 1'action ni dans les plaidoiries orales.

Les d6fenses out t m~me amend~es sans qu'on ait sou- Fournier J. lev6 cette pr6tention.

Les raisons invoqu6es au soutien de la motion pour un nouveau prochs, etaient que la pr~pond~rance de la preuve est en faveur de l'appelante; que Flynn ne fut pas bless6 pendant qu'il 6tait an service et sons les ordres de 1'appelanite, mais par sa propre faute et n~gligence; que le verdict est irr6gulier et d6fectueux, parce que les r6ponses sont vagues, incertaines et contradictoires et que le montant accord6 est excessif.

Devant la Cour de Revision on a fort savamment debattu la question de savoir laquelle des deux prescriptions, de celle d'un an, en vertu de Particle 2262 on de celle de deux ans, en vertu de Particle 2261 doit s'appliquer au cas du quasi-d6lit dont le mari de la demanderesse a t victime. Mais avant de rechercher la solution de cette question. il Iaudrait d'abord 6tablir qu'il s'agit dans cette cause du droit d'action du mari.

Tel

'est pas le cas, it n'est nullement question ici de la rtlamation que le mari aurait en s'il eat v6cu.

s'agit uniquement de laction donn~e h 1'intimee par

Particle 1056, action qui ne peut exister qu'apris la mort du mari sans avoir requ de compensation pour ses dommages.

L'action donn6e a l'intime dans les circonstances de cette cause est de date assez r~cente. Elle a d'abord t6 introduite par le statut C.S.C. ch. 78 qui lui m~me n'6tait pour ainsi dire que la copie du statut imp6ria

10 Vic., ch. 93, commundment appel6 le Lord Campbell's

Act.

Ces dispositions 16gislatives font maintenant partie du code civil dans lequel elles sont r6sumbes sous l'article 1056.

O'est dans cet article seul que doit trouver la source du droit de l'action de l'intimbe. I lui est accord6 de la maniare suivante:

seulement A L'action dont il s'agit n'est pas celle qu'aurait eu Flynn pour dommages lui r6sultant de ses blessures des souffrances qu'il avait en A supporter; c'est l'action sp&ciale accord6e A sa veuve pour les dommagesinterts lui r6sultant de la mort de son mari.

Elle lui est accord6e personnellement et non en aucune qualit6 de repr~sentante de son mari. Elle no r~clame pas du chef de son mari, comme 6tant A ses droits, soit conme 16gataire on autrement, l'indemnit6 qu'il aurait eu droit d'avoir.

Non, elle exerce l'action qui lui est donn6e par l'article 1056, ind6pendamment de tous droits pouvant appartenir A son mari, elle ne d6rive son droit d'action que du statut, c'est-a-dire du code, et nullement de son mari.

Son action n'existe m~me pas du vivant de son mari; comment peut-on dire qu'elle d6pend de 1'existence du droit d'action de son mari, et que s'il a laiss6 6teindre on prescrire son droit autrement que par l'acceptation d'une indemnit6, ]a perte de son droit entraine aussi celle du droit de sa femme qui n'est pas son h6ritiere on reprbsentante 16gale, qui ne r~clame pas de son chef, mais quelle posside en vertu d'une disposition toute sp6ciale et personnelle en sa faveur.

Une telle pr6tention est si 6videmment fausse qu'elle se refute d'elle-mame.

Ce droit d'action reconnu A la fomme est un droit conditionnel. Pour qu'il existe il faut d'abord que son mari u'ait pas accept6 de compensation pour les cons6quences du d41it ou quasi d6lit dont il a kt victime. Ce n'est qu'apris le dbcs de son mari que le droit de 'FZ poursuivre celui qui en est I'auteur, pour les dommages int6r~ts r6sultant de tel d6chs, prend naissance par 1'existence de la condition.

Son mari 6tant le novembre 1883, sans avoir accept6 ni reeu aucune compensation pour ses Fournier J. dommages, ce n'est qu'A compter du moment de son dc6~s que le droit d'action de l'intimbe a commenc6 a exister.

Mais d'aprbs 1'6trange proposition de 1'appelante que le droit d'action du mari 6tait prescrit, celui de la femme doit 4galement I'4tre, et m~me avaut d'avoir exist6, puisqu'au moment du d~chs de son mari le droit de ce dernier 6tait d6ji prescrit.

Que fait-on de la disposition qui accorde A ]a femme son droit d'action pendant 1'ann6e, seulement A compter du dicis?

On l'ignore tout simplement, ou mieux encore on a recours A une subtilit6 aussi ing6nieuse que pen honnote, pour d6truire son droit d'action en pr~tendant qu'il n'6tait que le'mime droit que celui de son mari, ayant pour origine le mime quasi-ddlit et que le mari ayant laiss6 prescrire son action, celle de la femme 1'a

6galement.

D'abord, il n'est pas vrai que 1'action du mari soit la mame que celle de la femme. Elles ne naissent pas en mime temps, et la nature en est diff6rente.

Celle du mari prend naissance imm~diatement apris l'accident, et taut qu'elle existe la femme n'a elle-minme aucun droit d'action.

L'action du mari a pour objet de r~clamer ses dommages lui r6sultant de ses blessures, perte de temps, etc., etc.

Cello de la femme est limit~e aux dommages et inthr~ts r6sultant du dchs de son mari.

Comment peut-on appliquer la mnme prescription, que ce soit celle d'un an on de deux airs, et les faire courir de la date de l'accident contre les actions respectives du mari et de la femmne ? Si c'est celle d'un an, dans le cas actuel, le mari 6tant mort plus de quinze mois apres l'accident, 1'action de la femme 6tait prescrite avant la naissance de son droit d'action, que la loi ne Hli accorde cu'A compter du d~chs C'est d6truire en entier l'effet de Particle.

La vraie date de Ia prescription de laction de la femme est si clairement et positivement d6terminde par le code, qu'il me parait absurde de chercher A en etablir une autre; c'est, dit Particle 1056, pendant l'ann6e seulement, a compter du decks, que la femme aura droit de poursuivre l'auteur du d41it ou quasi-d61it pour les dommages-interts r6sultant de tel d6chs. Tant qu'il ne s'est pas 6coul6 un an depuis le d~cs du mari, femme a droit d'exercer son action, comme dans le cas actuel, et il est tout fait indiffrent pour qui regarde que la prescription, soit d'un an on de deux ans, quant A 'action qu'aurait ene son mari. Son action A elle qui nalt au dkces de son mari ne pent pas durer plus d'un an, et n'est nullement lie au sort du droit d'action de son mari.

Les tribunaux n'ont pas le droit d'6tendre ni de diminuer la duree de son action; elle adroit de 1'exercer pendant toute l'ann6e apr.s le d~chs de son mari. Paisque tant que son mari n'est pas mort, la femme ne peut exercer aucun droit d'action, son action ne pent donc stre prescrite conform6ment A la maxime contra non valenten agere curr it prescriptio.

Cette action &e la femme me parait assez solidement appuybe sur l'article 1056, pour qu'il ne soit pas n~cessaire de discuter les questions de savoir si ce n'est pas plut6t la prescription de deux ans de Particle 2261, que l'on doit appliquer an cas actuel.

En effet l'accident dont il s'agit n'est qu'un pur quasi-d61it, dans lequel 1'616ment de la malice n'entre nullement L'hon. juge en chef, Sir Dorion, apres avoir exprim6 l'opinion clue la prescription de l'action du mari dans le cas actuel, ne devait commencer A courir 1S91 qu'apr~s l'expiration des quinze mois pendant lesquels TH il a surv~cu & l'accident, s'exprime ainsi, dans. son jugement sur cette cause au sujet de la prescription de 1'action de la femme.

This action is not given to them in any representative quality, and the article expressly provides that it may be brought within a year from the decease of the injured party . The prescription against the action of the decease did not therefore apply to the action of the wife and children.

This was the opinion of the majority of the Court of Review, and it will be unanimously affirmed by this court.

En consquence je suis avis que l'appel doit 6tre renvoy6 avec d6pens.

TASCHEREAU J.-By section 1 of oh. 78, C. S. C., it is enacted that :- Whenever the death of a person has been caused by such wrongful act, neglect or default, as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, in such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to felony.

50 Vic.

ch.

5, ss. 5, 6 and 7, such repeal, could it otherwise do so, does not affect the present case.

Then,

I do not see that it adds anything to the repeal enacted by article 2613 C. C. of all previous laws on matters upon which express provision is made in the code.

So that, for our determination of the controversy as it is now presented, the law is precisely the same as it was when the case first came to us.

Now, I take it to be concluded by the judgment this court, upon that first appeal, that this action, avowedly brought under article 1056 of the code, is nothing else but the statutory action given in England by Lord Campbell's act, and consequently that, in expounding the law as to its nature and the principles upon which it rests, we must be guided by the same consideration and governed by the same rules, that have been authoritatively adopted and recognized in the construction of that act. And one of these rules, I would say to-day an uncontroverted one, is that, under the act, the widow or other relatives therein mentioned have no action if, at the time of his death, the deceased had none.

The leading case on the question is Read v. Great Eastern Railwail Co. where it was determined, upon that principle, that if the deceased has accepted any compensation in satisfaction of his claim against the defendant, his personal representatives are debarred from bringing any action under the statute. The statute does not give any new right of action, or fresh cause of action, said the court, and if the deceased has received compensation he could " not have maintained an action and recovered damages in respect thereof in the very words of the statute, so this plaintiff has herself no action." And as Lush J. said in the same case, as reported in B. & S.:- In Haigh v. Royal Mail Steam Packet Co. Brett M. R. speaking of the same statute said

I refer also to lrmsworth v. South Eastern R R. Co. (1),

I91 Tucker v. Chaplin (2), Boulter v. Webster (3), Griffths v.

The Earl of Dudley (4), on the same principle. Again it was held that, if the deceased, being a workman, had contracted for himself or his representatives with his ,. employer not to claim compensation for personal injury, whether resulting in death or not, his widow had no Taschereau action under Lord Campbell's act for the damages . resulting to her from his death. The plaintiff had argued that the act gives a separate and independent right to the widow and children of a person killed, a right wholly separate from any right existing in the decedent's legal representatives, to recover for injuries to his personal estate.

But said Field J. :- Read v. Great Eastern (5) is a clear decision that Lord Campbell's act did not give any new cause of action, but only substituted the right of the representative to sue in the place of the right which the deceased himself would have had if he had survived.

And Cave J. added:

It was argued that whether or not the deceased could have bargained away his own right to recover damages, he could not bargain away the right of his family under Lord Campbell's act.

That act was passed because it was thought a hardship that, where a man sustained personal injuries, and died without having himself recovered compensation leaving behind him persons in certain degrees of relationship, those persons should not be entitled to bring an action.

Read v. Great

Eastern (5) has decided that the act gives no new cause of action to the relatives, but only a right in-substitution for the right of action which the deceased would have had if he had survived.

And in Senior v. Ward (6), Lord Campbell C.J. said:

We conceive that the legislature in passing the statute upon which this action is brought intended to give an action to the representatives of a person killed by negligence only where, had he survived, he himself, at the common law, could have maintained an action against the person guilty of the alleged negligence.

(4) 9 Q. B. D. 357.

(5) L. R. 3 Q.

(3) L. J. N. S. 598.

It is true that, in Pyn v. Great Northern Raitway Co. in the Exchequer Chamber, Erle C.J. said: but that sentence is used merely in reference to the extent of the damages that can be recovered on an action under the act ; and the words " cause of action," as the context of the judgment clearly shows, simply refer to those damages.

The same remark applies to Blake v. Midland where it was said that

In that case also the only question under consideration was the nature and extent of the damages recoverable on an action under the act.

In Seward v. The Vera Crux in the House Lords, where the point under consideration was, whether the Admiralty Court had jurisdiction on an action under the act, though Lord Selborne said that the act gives a new cause of action, and Lord Blackburn (who in Read v. Great Eastern had said, " the statute does not give a new right of action ") added an action new in its species, new in its quality, new in its principle, and in every way new," there was not a single expression thrown out that could be interpreted as questioning this decision in Read v. Great Eastern or as casting the least doubt on the doctrine that, to maintain an action under the act, there must have been, at the time of the death for which damages are claimed a subsisting cause of action, and that when the deceased, either voluntarily or involuntarily, had placed himself in a position that, had he survived, he could not, at the tine of his death, have brought an action for his personal injury, no new right of action had been conferred to replace that which, through his T own conduct, had never arisen or had been extinguished. Beven on Negligence (1).

In the United States a similar statute has received the same construction in the following cases : In Dibble v. New York (2), the defendants had settled Taschereau with the deceased his claim for his injuries. The judge at the trial had charged the jury that this settlement could not affect the widow's action which was given to her by the statute for the damages she had sustained by reason of her husband's death.

But the court held that such was not the law, and that

" the right to such an action depends not only upon the character of the act from which death ensued, but upon the condition of the decedent's claim at the time of his death, and if the claim was in such a shape that he could not then have enforced it, had death not ensued, the statute gives the executors no right of action and creates no liability whatever on the part of the person inflicting the injury."

Johnson J., for the court, said

When death ensued, therefore, the deceased had no subsisting cause of action ; nor could he have maintained any action and recovered any damages, in respect of the act or the injury, if death had not ensued.

The right of action which he might have enforced had he survived the injury, upon his death accrues to the personal representative.

And it is given for the same wrongful act or neglect.

That is the essential foundation of the action in either case.

The wrong to be redressed is the same in both cases, but the injury flowing from the wrong to be compensated is different. The person injured is compensated for the injury to his person, the others for the injury they sustained from the death of the injured person.

If the person injured obtained satisfaction by action or by voluntary settlement and payment before death ensues, the wrongful act which caused the injury, and all'the consequences past and future, are included, and the whole

(1) P.

cancelled together, and the liability of the person inflicting the injury ended............The object of the statute was to continue the cause of action............for the benefit of the widow and next of kin, to enable them to obtain their damages resulting from the same primarycause, and not create an entirely new and additional right of action. And Comstock C.J., in the same case, in appeal, reported

Wh itford v. The Panama Ry. Co. (1), said: No new cause of action is created by the legislature, but the cause which, by the rules of the common law, has become lapsed or lost by the death of the person to whom it belonged, is continued and devolved upon his administrator.

The opposing argument is founded wholly on the idea that the cause of suit by the administrator is the death of the party, and not the wrongful assault or negligent conduct by which it is occasioned.......In the view of the statute, therefore, the right to be enforced is not an original one, springing into existence from the death of the intestate, but is one having a previous existence, with the incident of survivorship derived from the statute itself.

The true point of inquiry is whether a wrong of this nature, resulting in death, affords more than a single cause of action. Now to affirm that, in cases of this nature, two causes of suit arise, one in favor of the decedent in his lifetime, the other founded on his death, is to depart from the plainest legal analogies.

In Littlewood v. The Maqor, of New York (2) also, where the deceased had recovered before his death for his damages, an action by his widow was held not to be maintainable.

Rapallo J., for the court, said

It seems to me very evident that the only defence of which the wrong-doer was intended to be deprived was that afforded him by the death of. the party injured, and that it is, to say the least, assumed throughout the act that, at the time of such death, the defendant was liable.

The statute may well be construed as meaning that the party who, at the time of the bringing of the action, would have been liable if death had not ensued shall be liable to an action notwithstanding the death.

In Fowlkes v. The N. 4- D. Ry. Co. (3), the statute governing the case decreed, in one of its sections, that the right of action which a person who dies from in- (1) 23 N.Y. 464.

juries received from another, or where death is caused by the wrongful act or omission of another, would have had against a wrongdoer, in case death had not ensued, vrould not abate or be extinguished by his death, but was to pass to his personal reprepresentative for the benefit of his widow and next of kin. There was no statute of limitation expressly applicable to that class of cases. But by another section of the statute

. it was provided that action for personal injuries should be commenced within one year after the cause of action accrued.

The court held that, under this last section, the cause of the survivors' action accrued when the injury was received, or at the time of the wrongful act or omission, and that consequently, as to their action, the statutory limitation of one year began to run from that time, as it would have for the decedent's action itself had he survived his injuries.

Now, applying these considerations' to the present case, I am of opinion that the respondent's argument here in answer to the appellants' motion, that her action is not an action transmitted to her by the deceased, but that it is a new action entirely different from that which the deceased had in his lifetime for his injuries is, as against the motion, unfounded in law and cannot support her claim.

Of course her action was not transmitted to her by the deceased.

He never had an action for damages resulting from his own death. And her action is different in this, that she claims the damages resulting from his death, whilst he would have claimed the damages resulting from the injury to himself; in other words, he would have claimed his damages, whilst she claims her own damages.

Pym v. Great Northern

But what is the cause of action in both cases ? Where did it originate ? What gave birth to any right of action at all against the appellants ? Is it not their negligent act from which the deceased suffered an injury ? Is not the !.

respondent's action for her damages based, as it could not but be, on that negligent act, as an action by the deceased for his own damages must itself have been ? There is unquestionably only one article of the code under which the appellants' liability as tort feasors attaches; that is, art. 1053, which enacts that every person is responsible for the damage caused by his fault to another.

On that article only did an action by the deceased lie, and on that article only does the basis of the respondent's action rest. The action is a new action in one sense, as to her.

It is the creature of the statute, or of art. 1056, and is new, entirely new, in that respect.

It originated for her at her husband's death, and is for damages that, for him, did not exist. But the measure of her right to have the appellants declared responsible towards her is to be ascertained by the rights the deceased himself had against them and there is attached to her right of action the implied statutory condition that, at the time of his death, her husband himself had a right of action. If his right was then gone, if the appellants were freed from any liability towards him, she has no claim. The statute and the article of the code extend the remedy to her but do not revive the appellants' liability if it had been extinguished.

They simply give her the right to avail herself of the right to the action the deceased had at his death, enlarging its scope so as to embrace the actual pecuniary damages resulting to her from the death. The article of the code may not be so clear on this as the statute was, but in construing it, as it is not E given as a new law, it has to be taken as a purely declaratory enactment, (1) and as such conferring no new or additional rights, apart from the damages, upon the widow and other surviving relatives therein mentioned.

And the fact that it was not in the code, as presented to the legislature, but was subsequently J. inserted by the commissioners as an omission in their report of a subsisting law, is confirmatory of that view. They cannot be presumed to have intended to make in that law a change they had no power to make, and before coming to the conclusion that they have inadvertently done so we must carefully ascertain that there is no room whatever for a different construction.

Moreover, when by an express enactment, given as pre-existing law two years before the decision in Read v. Great Eastern the code decreed that payment and satisfaction to the deceased for his damages bars the survivors' action for their damages, it clearly recognized that their action is not the so totally separate and independent one that the respondent would have us declare it to be.

Now, in the present case, could Flynn, the respondent's husband, at the time he died, but for his death have maintained an action against the appellants for the damages resulting to him from the accident in question under art. 1053 0. C., that is to say, after the expiration of one year from the time of the accident?

I am of opinion that he could not.

By art. 1138 0. C. " all obligations become extinct by prescription," and by art. 2183 " prescription is a means of being discharged by lapse of time.

Extinctive prescription is a bar to, in some cases precludes, any action for the fulfilment of an obligation or the acknowledgment of a right when the creditor has not preferred his claim within the time fixed by law." By art. 2262 actions for bodily injuries are prescribed o.

by one year after the right of action accrued; and by art. 2267 after the lapse of one year the liability of the wrong doer is absolutely extinguished, and no action .

lies for the damages resulting from his offence or quasioffence; or, in other words, no action lies for bodily injuries but during one year after the act of commission or omission by which they were caused, except in cases of continuous torts, delits, or quasi-dMlits successifs, the doctrine as to which has no application in the present case.

By art. 2188 the courts are bound, of their own motion, to dismiss any action brought after the expiration of one year if limitation is not specially pleaded.

The respondent's contention that the only prescription that could have been opposed to an action by her husband, at the time he died, would have been that two years under art. 2261 is unfounded. That article, in express terms, covers only offences and quasi offences where other provisions of the code do not apply. Now, when art. 2262 decrees that actions for bodily injuries are prescribed by one year, it means all actions for bodily injuries under art. 1053 with, of course, the limitative words of the article itself, " saving the special provisions contained in art. 1056 and cases regulated by special laws."

The respondent, to support this contention that the prescription of two years under art. 2261 would have been the only one applicable to an action by Flynn, has based an argument on the French version of art. 2262. The words "iniures corporelles " therein, she said, do not apply to a quasiofence, but merely to an ofence. There is no doubt that the word " ininres " in this connection, is generally taken to mean an injure par vote fait or an offence, ddlit; yet, Dareau under the title " Injures par T action," treats of the damages caused by the negligence of a carriage driver, or by an unskilful surgical operation, and a case in our own courts, Wood v. McCallum (2),. used the terms an " action d'injures " for malicious arrest of person.

Another case of Smith v. Binet says : " The contents of a confidential letter are not the subject of an action d'infures." Even in the Roman law Quelquefois, le mot injure signifie dommage,"

Thevenot-Dessaules (4).

But, however this may be, I do not attach any importance to it, because the code itself gives an unmistakeable clue to the interpretation of the words as used in this article. When the English version says

" bodily injuries," there is no room left for controversy.

I take it that whether the article was first written in

French or in English is immaterial, if there is no absolute contradiction between the two versions. In the case of ambiguity, where there is any possibility to reconcile the two, one must be interpreted by the other.

The English version cannot be read out of the law (5).

It was submitted to the legislature, enacted and sanctioned simultaneously with the French one, and is law just as much as the French one is. Here, the words bodily injuries leave no room for doubt, and we must conclude that injures corporelles mean bodily injuries, and that bodily injuries mean infures corporelles. In fact that is what the two versions of the code, read together or by the light of one another, say in express terms.

Moreover, in this article 2262 itself, there is, intrinsically, and without reference to the English version, a clear interpretation of the term injures corporelles adverse to the respondent's contention on this point. The words therein "saving the special provisions contained in art. 1056" evidently and necessarily imply that the and mentioned that article 1056 are both such as can be the cause of bodily injuries, or injures which art. gives J.

an action, and which that article itself (2262) decrees shall be prescribed by one year. Were the respondent's views to prevail it would -follow that, as to offences, ddlits, causing death under art. 1056, the prescription of one year of art. 2262 would be the one to apply, but that as to quasi-offences, quasi dilits, causing death under the same article 1056, the only prescription applicable would be that of two years under art. 2261. I do not see anything in these articles that would justify such a distinction.

I hold then that the majority of the Court of Review rightly came to the conclusion that, at the time of his death, Flynn's right of action was gone. Now, it must be conceded that, had he lived, and instituted an action against the company at any time after the expiration of a year, his action must have been dismissed even if the company had not contested it at all, or if they had pleaded to the merits without invoking the prescription by the court itself of its own motion, as I remarked before (1); and this even in a Court of Appeal, if it had escaped notice in the court of first instance.

Such is the established jurisprudence of the province, and one which has received the direct sanction of this court in the two cases of Breakey v. Carter, and Dorion v. Crowley In the recent case of Corporation of Sherbrooke v. Dufort the Court of Queen's Bench has given anew full application to this doctrine.

Now, as to that saving clause itself of art. 2262,

" saving the special provisions contained in art. 1056 " it is susceptible of only one construction, that is, that as to offences and quasi-offences followed by the death of the person injured thereby the widow and other relatives therein named are given a year after the death to bring their action, though at the time of the bringing of their action more than a year had

. elapsed since the offence or quasi-offence which caused the death, provided the deceased had not allowed his own action, given to him by art. 1053, to be extinguished by prescription. This construction is the only possible one if, as I take it to be concluded by authority, it is in an essential condition of the survivor's right of action that the deceased, at his death, himself had a right of action. In the present case when Flynn died the company were freed from any liability for the consequence of their quasi-offence. It had been absolutely extinguished, and I do not see on what principle it could be contended that it was revived by his death in favor of his widow and child. That would be extending the right of the survivors under the act to an unlimited number of years, and as long as the injured party survives his injury, with one year additional, provided doctors could be found to swear, and a jury to find, that the quasi-offence was the immediate cause of the death. Now is that not against the very terms of art.

2267, which decrees that the liability of the wrongdoer is absolutely extinguished by effluxion of time, and of art. 2183, under which extinctive prescription precludes the action when it is not brought within the year ? This saving clause of art. 2262 was undoubtedly inserted to obviate what would, otherwise, have evidently been a contradiction between the article itself and article 1056.

Without it the widow would have had one year after the death, to bring her action only when the husband would have died on the very day of the accident, and if he died, say ten months after the accident, she would have had only two months. With it, she has one year after his death, if he dies at any time within the twelve months and, perhaps though unnecessary to decide here, if he dies after the twelve months but the prescription as against him has .

been interrupted by an action or otherwise.

It was not in the article as passed by the legislature, and was inserted therein subsequently, as pre-existing law, by the commissioners, as was art. 1056 itself. The commissioners had not the power to make any amendments to the code as passed by the legislature, and therefore, in the construction of the two articles read together, as I previously remarked as to article 1056, we are bound to declare, as nothing directly to the contrary appears therein, that the law is precisely the same as it was before the code (except as for the time required for the prescription of actions for bodily injuries which was specially enacted as new law), and consequently that under the code, as it was previously under the statute, any objection which would have been fatal to an action by the decedent, at the time when he died, must be fatal to an action by the survivors.

Now, as to the contention that the prescription should have been pleaded by the company.

On this point also I think the respondent fails. The argument that her action is based on art. 1056, and that, consequently, prescription should have been pleaded as art. 2262 and art. 2267 do not apply to the said art. 1056, is based on a confusion of the matters in controversy.

The basis of her action is art. 1053, not art.

1056, and the appellants do not at all contend that her action is prescribed.

But they say that as Flynn's action, given to him by art. was by article 2262 prescribed when he died, and as by art. 2267, coupled with art. 2188, their liability was absolutely extinguished and he had then in law no right of action, consequently as art. 1056 only extends to her the right of action he had when he died she, in law, has no action. The maxim contra non valentem agere nulla currit prescriptio, cited by the respondent, has no application whatever. It is not a new fact, but one resulting from the respondent's own declaration upon which the appellants rely in support of their motion;

and they simply contend that upon the findings of the jury, assuming their absolute correctness, she has no claim against them. Troplong

They have pleaded a general denegation, besides a plea, in an exception, that they were not indebted towards the respondent in any sum of money whatever. That was, as unequivocally as could be, putting the respondent's right of action in issue.

It has been argued that, had the appellants specially pleaded that the action had been prescribed before Flynn's death, the respondent might in reply have alleged facts to show that the prescription had been interrupted or renounced to.

But that is precisely the ground of one of the allegations her declaration, as follows:- Now, of that allegation not only has the respondent made no proof whatever and is there no finding by the jury, but she obviously abandoned it altogether by assenting to an assignment of facts in which there is not a word of it. Then apart from this, such a contention, assuming Walker v. Sweet (1) to be correctly (10orcl decided, if it were to prevail here, would put an end to the so-well established right of invoking these short prescriptions in ex parte actions, or without a special plea, at any stage of the proceedings and this even in * appeal, for the first time. In every such case the plaintiff might also urge that, had prescription been pleaded, he would have been able to reply and prove that it had been interrupted. . And is it quite sure that a plaintiff would be allowed by a replication such a departure from his original demand?

Would not this be a new ground of action ? If a plaintiff declares upon facts which in law do not show a right of action, he has no locus standi; and if he base his demand on a right prima facie absolutely prescribed, and on which the law says he cannot maintain an action, but relies upon other facts to rebut the prescription, he must allege these other facts in his declaration, and if he alleges them, but does not prove them, he must also fail, whether the prescription was pleaded or not. It seems to me here, upon this motion, that if by the respondent's declaration, aside from the allegation of promise to pay which she has abandoned as I said, it appears that, at his death, her husband bad no action, as I think it clear it does, the question is at an end.

Or put the question in another shape, would not this action, but for that allegation of promise to pay, have been demurrable ?

Compare Lavoie v. Gregoire and Filiatrault v. Grand Trunk

If a debt extin- (1) C. Jur.

guished by peremptory prescription be transferred, could it be contended on an action by the transferree that prescription must be specially pleaded by the debtor ?

Unquestionably not, and the transferree plaintiff could not ask the court not to give effect to the prescription, on the ground that haditbeen pleaded he might in reply have alleged interruption by the defendant in his dealings with the transferrer. Now I J. think I am justified by the cases I have cited at the opening of my remarks to assimilate, in this respect, the action conferred on the survivors, by the statute, to an action by a transferree.

By the statute, construed as I think it must be, the wrongdoer has the same right to oppose to an action by the survivors the grounds of defence that he would have had against an action by the deceased that a debtor has to oppose to a transferree all the grounds of defence.he would have had against the transferrer. That must be so, if it is law, as Read v. Great Eastern and Griffiths v.

The Earl of Dudley (2) held it to be, that no action lies under the statute if at the death there was not a subsisting cause of action.

By art. 431 0.P.C., the defendant has the right to move in arrest of judgment upon the verdict, whenever it appears on the face of the record that, notwithstanding the verdict, the plaintiff has no right to recover any sum. And by article 433, the court may non obstante veredicto, render judgment in favor of the other party, if the allegations of the party who got the verdict are not sufficient in law to sustain his pretensions.

These enactments, it seems to me, expressly recognize that it is not necessary for a defendant to plead questions of law which appear the face of the record.

There is no ambiguity in their terms that I can see, and if they do not entitle the appellants here to the right to these motions I am at a loss to understand what they mean. As to the contention of the respondent, that she is entitled to invoke the appellants' pleading and snhsequent proceedings the waiver of their right to these motions, there is nothing in it. It is also evidently based on a mis-conception of the ground taken by the appellants, as if they were relying on the prescription of the present action.

Now, I repeat it, that it is not at all the ground they take. They simply deny that, upon the findings of the jury, she ever had a right of action.

And I cannot conceive that their pleas or other proceedings could give her a right to an action which, as appears on the face of the record, they, ab initio, put in issue, and which she never had and never can have.

There is one point upon which it is unnecessary to pass upon, yet which I must mention least my silence might be construed as an acquiescence to the propositions of law that were enunciated thereon in the course of the argument.

Both parties seem to have taken it for granted that the prescription of art. 2262 was not based on a presumption of payment, but only on grounds public policy. I would have thought it based on both. However, as the question was not argued I refer to it merely to remark, without coming to any determination whatever on the point, that all that the commissioners say about it in their report, could it affect the law, is that it is grounded upon the higher reason public policy rather than on the presumption of payment. And it would seem to me that, in any liberating or extinctive prescription, even those falling under art. 2267, the element of presumption of payment is not to be considered as entirely eliminated.

Domat says: I refer also to Pothier (1); Marcad6 (2); Boileux (3); Bigot-Pr6ameneu (4); Troplong (5); and authorities in Sirey which is held by the commentators, and the jurisprudence, to be grounded. as our art. 2262 is, less on a presumption of payment than on reasons of public policy. Compare also Fuchs v. Legard Caron . v. Cloutier and Giard v. Giard

In the view I take of the case, it would be also unnecessary for me to refer to the evidence given at the trial. I will say a word, however, as to the contention argued at some length before us, on the part of the respondent, that the company had, by its conduct acknowledged its liability for this accident, and had thereby interrupted the prescription of Flynn's action, though in law it has no bearing on the case as it is presented to us, and is even not now open to the respondent, as by the assignment of facts -no issue on this fact, by consent, was submitted to the jury. It is in evidence, it is true, that Dr. G-irdwood did make some offers to the deceased on the part of the company, but he distinctly swears that these offers were merely made as a gratuity and to relieve his immediate wants, without acknowledging any obligation whatever. Mr.

Armine Nicholls likewise testifies that offers made to him as acting for Flynn by Mr. Drinkwater for the company were made without any acknowledgment liability. Under these circumstances the following cases are entirely applicable here:

L'ouvrier opposerait vainement comme ayant eu pour effet d'interrompre la prescription, le fait de la reception de secours donnes par le patron, ces secours n'impliquant pas nicessairement que le patron ait entendu reconnaitre la r~sponsabilit qu'on pretend faire d~clarer h sa charge.

Qu'h supposer mine que la compagnie ait donn4 quelques secours A Billebault, on ne saurait y voir une reconnaissance du droit de cet Taschereau ouvrier, mais un acte de bien faisance fort naturel, et que ce serait j arriter les louables blans de la chariti que leur donner une portie qu'ils n'ont pas par cux-m~mes Billebault v. Oomp. de mines de Blanzy (1). L'action en rdsponsibilit6 dirg6e devant un tribunal civil contre un patron . raison d'un accident servenu it Pun do ses ouvriers dans la cours de son travail.

En pareil cas la prescription n'est ni suspendu par la minorit6 de Fouvrier, ni interompu par un secours donnI4 par le patron, accord6 a titre de commis4ration et ne pouvant impliquer la reconnaisance d'une dette. In re Androit c. Schneider et Comp. (2).

I refer also to Dalloz (3).

The formal judgment of the Court of Review,Wurtele J. dissenting, is based upon the ground that the prescription of Flynn's right of action should have been pleaded, and that by their pleas and subsequent proceedings in the cause the appellants had waived their right to now invoke such prescription.

By the formal judgment of the Court of Appeal it does not appear that this judgment was confirmed upon other grounds; and I would have assumed that, when the court merely says " considering there is no error, doth affirm," they had come to the same conclusion as the court below upon the same grounds. In the printed case submitted to us there are unfortunately no notes from any of the learned judges in the Court of Appeal. We have been referred, however, to what purports to be the opinion of the learned Chief Justice Dorion, speaking for the court in M. L. R. 6 Q.

prescription against Flynn's action did not at all apply to the action of his wife and children, the court thereby holding, if I do not misunderstand them, that assuming that the appellants were freed from all liability towards Flynn before his death, and even if they had specially pleaded the prescription of Flynn's action, yet that the respondent was entitled to her action.

I have come to the conclusion, after the best consideration I have been able to give to the case, for the reasons I have above given, that this judgment cannot be supported, and that the motion of the respondent for judgment on the verdict should be dismissed, and the motion of the appellants for judgment in arrest of judgment, or non obstante veredicto, should be allowed.

At the settling of the minutes it will be determined, after having heard the parties, if necessary, upon which of these motions judgment should be entered.

and JJ. concurred with

Appeal allowed with costs. The motion for judgment non obstante veredicto granted with costs.*

Meredith.