Dupéré v. Montreal Tramways Ltd.

judge rendered judgment according to the verdict. The respondent then appealed to the Court of King's Bench, first, on the ground that the damages awarded were excessive, and also on grounds of misdirection: first, as to the doctrine of common fault, and, second, as to the use to be made of annuity tables in assessing damages.

As to the question of common fault the trial judge made the following remarks: " That question is put to the jury because both parties might be at fault, but, as a rule, I would say that in nine cases out of ten, there is no such a thing as a common fault; there is generally one determining fault that causes the accident, and the other one is not a contributing fault in the sense of the law. I might say, with due respect to my fellow judges, that the common fault is often only an easy way to decide a doubtful case. When it is not quite clear who is at fault, they say: Both at fault, and let it go at that." As to the question of the annuity tables, the trial judge gave these directions: " D'aprbs les tables d'assurance, h trente ans, s'il 6tait normal, il devrait vivre trente-cinq ans de plus.

On vit plus longtemps que cela des fois, mais il y en a qui vivent moins longtemps;

trente-cinq ans c'est la moyenne. Et a cet Age-lk, pour acheter une rente viagbre de cent dollars, cela lui cofiterait dix-sept cent quatre-vingt-deux dollars ($1,782) et pour deux cents dollars ($200) le double et ainsi de suite. Si vous arrivez A la conclusion que quand il 6tait normal il gagnait mille dollars ($1,000)

et qu'aujourd'hui il ne peut pas gagner plus, disons, que cinq cents dollars ($500) ce sera une base avec la table d'assurance, pour 6tablir le montant des dommages que vous devez accorder pour cet item-1A.

Ce sera un guide pour vous aider. Vous direz : il perd cinq cents dollars ($500) par annie. Si pour se rattrapper il veut acheter une pension viagbre, il faudra qu'l paie cinq fois dix-sept cents quatre vingt-deux dollars ($1,782).

S'il verse entre les mains d'une compagnie d'assurance dix-sept cent quatre-vingtdeux dollars ($1,782) la compagnie va lui payer cent dollars (3100) par annie pour le reste de sa vie. Les rentes viag~res plus vous 6tes jeune, plus ga coite cher. Quand vous 6tes vieux, ga ne cofite plus bien cher. Cela n'est pas une rigle absolue, c'est seulement un moyen, une indication pour vous aider a arriver ' une conclusion."

The Court of King's Bench set aside the verdict and ordered a new trial on the ground that the trial judge had DUPR misdirected the jury in these two important respects and MoTL substantial prejudice had thereby been occasioned. The appellant then appealed to this court and urged as his first . ground of appeal (which was also raised before the Court of King's Bench) that the objections to the particular statements made by the trial judge in his charge to the jury were not taken at the proper time. Under the Code of Civil Procedure (art. 498), a new trial may be granted:

But the causes for a new trial, mentioned in this paragraph, can be ascertained only by means of the minutes of trial, and when the party has caused his objections to be entered therein.

(art. 506, C.C.P.).

With regard to the minutes of trial, the code contains the following provisions:

466. The prothonotary keeps, under the direction of the judge, full minutes of the proceedings at the trial, including all admissions, and all exceptions taken, or objections made, orally in court.

467. A copy of such minutes is made out by the prothonotary, and, after being certified by the judge, is filed of record, and is held to be the true record of all proceedings mentioned therein, and stands in lieu of any bill of exceptions by either party against the evidence or the trial. What took place after the learned trial judge had completed his address to the jury is recited thus in the minutes of trial:

Les jur6s se retirent aux fins de d6lib6rer.

M. Vallie fait quelques exceptions I 1'adresse du juge et M. Genest y r6pond. Le tout est st6nographi6.

The material parts of the stenographic report referred to and thereby incorporated in the minutes of the trial read as follows:

Me Genest, C.R., conseil du demandeur:

La cour voudrait-elle demander aux parties si elles d6sirent que quelque chose soit ajouth A votre charge?

Le juge: C'est apris que le jury sera retir6.

(Les jur6s se retirent. Le juge aussi se retire.)

Exceptions A la charge du juge aux jurbs.

Apris la charge aux jur6s, alors que le juge et les jurbs se sont retirds de la salle d'audience, Me Arthur Vallie, C.R., avocat de la d6fenderesse, fait la d6claration suivante:

Under the above circumstances the effect of the judgment of the Court of King's Bench is that the manner in which the objections were taken was a compliance with the articles of the code sufficient to found a judgment ordering a new trial.

C.J.C.-After giving full consideration to this case and to the arguments of counsel for the appellant and respondent, respectively, I am of the opinion that it is not possible for us to interfere with the order for a new trial. Having reached this conclusion, I abstain, as is our custom, from comment on the evidence or discussion of the facts. Without necessarily agreeing with the view of the Court of King's Bench that there had been sufficient compliance by counsel for the respondent company with art. 498 (3), I think that, in a proper exercise of judicial discretion, we should refrain from interfering with the order pronounced by that court. The trial already had, having regard to the manner in which the case was presented by the learned trial judge to the jury, cannot, as a whole, be regarded as other than most unsatisfactory.

It is almost impossible to say whether the jury was, or was not, properly instructed as to the application to the case at bar of the doctrine of common fault. Indeed, what was said by the learned trial judge may well have been taken by some members of the jury to amount to a withdrawal from its consideration of that issue. Yet, there certainly is evidence in the record of circumstances from which it might be inferred by the jury, as a reasonable deduction, that the plaintiff was not entirely free from fault.

Upon the other point of alleged misdirection, viz., as to the use to be made of annuity tables by the jury in arriving at the amount of their verdict, the charge is also unsatisfactory, because, although it may not be possible to point to any particular statement of the learned judge, in the V* course of his directions in regard to the use the jury might make of these tables, as clearly erroneous, the charge was Co. " out of harmony with the ideas that have always obtained Anglin as to the manner in which a jury should deal with " such tables, when presented for its consideration.

Nor does the charge, read as a whole, so qualify or modify the effect of either of these objectionable features as to render them clearly inocuous. This case does not fall within art. 500 C.C.P.

There, no objection to the charge was taken at the trial, although formal objections in writing were filed after verdict, on the morning following the hearing. Notwithstanding this state of facts, however, this court, reversing the Court of King's Bench, ordered a new trial. To quote from the judgment of Davies J., concurred in by Girouard and Duff JJ., a majority of the court,

While the judge's charge to the jury was not objected to as a whole, objection was taken to a particular part of it in which the judge told the jury that " they should consider the case as if the charge of drunkenness had been made against themselves, their brother or their friend." I cannot but think that this was an entirely wrong and false doctrine to lay down as to the proper functions of a jury. It was calculated to mislead their minds as to the manner and extent to which they should assess the damages or make their findings.

It is possible that if the learned judge's attention had been called to this language and its full meaning at the time, and objection taken to it he would have corrected the apparently misleading direction before the jury had retired, or if they had already retired, before they had agreed upon their verdict, but no such objection was taken at the time. This only goes to shew the imperative necessity of Courts of Appeal insisting, when asked to grant new trials as a matter of right, that only objections to particular statements made by the judge in his charge to (1) (1909) 42 Can. S.C.R. 406.

A converse case came to this court in Lamontagne v. Quebec Light, Heat & Power Company (1), of which the headnote reads, in part, as follows:

Here, the objections on both points of misdirection by the learned trial judge are to be found formulated in the stenographer's notes which were, apparently, made part of the minutes of trial referred to in art. 506 C.C.P., and, on that ground, would seem to have been treated by the Court of King's Bench as having been properly taken as exceptions under art. 498 (3), C.C.P., and as entitling the respondent to a new trial as a matter of right. It is said, however, by counsel for the appellant that, although these objections are found in the stenographer's notes, those notes also shew that they were taken after the learned judge had left the bench and while the jury was deliberating, and that they were not known to the trial judge until after the verdict. In answer to this, counsel for the respondent assures us that they had been stated, in substance, to the learned judge before he left the bench and that they were inserted in the stenographer's notes by his express direction. I find it unnecessary to pass upon the question of fact raised by this regrettable contradiction.

In my view, it is also unnecessary now to decide the question discussed by this court in Barthe v. Huard (2), and impliedly passed upon in Lamontagne v. Quebec L.H. & P. Co. (1), as to whether or not the respondent was entitled, as a matter of right, to the order for a new trial made by the Court of King's Bench, since I think that the result of the trial already had is so unsatisfactory that we should, in the exercise of our judicial discretion, inherent and statutory (R.S.C., c. 35, s. 47), affirm the order of the Court of King's Bench for a new trial. Without, therefore, involving art. 495 C.C.P., and without expressing approval or disapproval of the ground on which the Court of King's Bench based its order, I accept its conclusion.

The costs of the appeal to this court shall be to the defendant in any event of the cause, to be set off against the amount of any verdict which the plaintiff may obtain on a new trial.

This somewhat unusual disposition is made in ease of the plaintiff, who might otherwise be embarrassed by having Ali to pay these costs forthwith. As a price of this concession in favour of the plaintiff, I think it reasonable to order the set-off directed,-the whole in the exercise of the discretion conferred on us by s. 48 of the Supreme Court Act. RiNFRT J.-For the reasons given in the judgment of the Court of King's Bench, we agree that the particular statements referred to therein and made by the learned trial judge in his charge to the jury were of a misleading character and substantial prejudice to the respondent must have been thereby occasioned. (Art. 500 C.P.)

The appellant urged that the misdirection complained of could not be made the ground of an order for a new trial, because, as he alleged, the objections to the misdirection were not taken at the proper time.

It is not disputed that the objections were taken before verdict. Further, we must hold that they were entered in the minutes of trial as required by art. 506 C.P. They form part of the stenographic report. The minutes of trial state the fact that the objections were made and refer to the stenographic report for the purpose of ascertaining what the nature of these objections was. But the contention is that they were taken after the judge had retired, and, therefore, at a time when the misleading character of the charge could not be corrected before the jury.

The article of the Code of Civil Procedure dealing with this question reads as follows:- The French version uses the word " object6 " as the corresponding word for " excepted."

will be noticed that the article provides for two distinct cases: the first is misdirection and the second is nondirection. When there has been non-direction, the judge must be asked to instruct the jury on the point of law he has omitted to discuss; and if he refuses, exception must be J- taken to his refusal. When there has been misdirection, all that is required, according to the decision of the Court of King's Bench, is that the party complaining should have "duly excepted to such misdirection."

That is precisely what the respondent has done in the present case. The entry is as follows:- The Court of King's Bench held that that was a sufficient compliance with the requirements of the code, and it gave effect to the objections.

As a mere question of the interpretation of the code, we are not prepared to differ from the Court of King's Bench on that point. Moreover, this being a matter of practice and procedure, we should be slow in reversing the judgment of the court of last resort of the province on a question of that kind.

What we have said thus far would be sufficient to dispose of the appeal; but, as there is to be a new trial, we think our view ought to be stated as to a further point raised by the respondent.

At the time of the accident which gave rise to the present action, there was in force, in the city of Montreal, bylaw no. 890 entitled: " R~glement relatif h la circulation et b la s~curit6 publique."

Acceding to the request, the learned judge made reference to it in the following way:

No mention whatever of the by-law was made by the learned trial judge when addressing the French-speaking jurors. The absence of any reference to the by-law in the charge made in French and the manner in which it was referred to in the charge made in English amounted, in our view, to a refusal " to instruct (the jury) on a matter of law."

On this point, even if the construction put forward by the appellant should prevail, all the requirements of art. 498 (3) of the code were fully met, and exception to the refusal was duly taken.

We think it was the duty of the trial judge to instruct the jury as to the legal purport of article 15 of the by-law and to tell them that they should consider whether, upon the proven facts, the plaintiff complied with it and, if not, how far his failure to do so had any bearing upon the accident which happened later. The refusal of the trial judge so to instruct the jury, is an additional reason why a new trial should be granted.

, J.-One of the grounds of appeal is that objections to the misdirection of the trial judge were not taken * at the time and in the manner required by the Code of Civil Procedure, article 498. The Court of King's Bench have co held against this contention, and I agree with my brother J. Rinfret that we should not lightly interfere with the judgment of that court upon a mere matter of practice and procedure unless there is clear error. This, in itself, might be a sufficient ground for dismissing this appeal.

I am, however, also in agreement with my Lord the Chief Justice that the trial already had, having regard to the manner in which the case was presented by the learned trial judge to the jury, cannot, as a whole, be regarded as other than most unsatisfactory; and that the result of that trial is so unsatisfactory that we should, in the exercise of our discretion under article 495 and R.S.C., c. 35, s. 47, affirm the order of the Court of King's Bench for a new trial. There is no doubt that, in view of the express provisions of article 498 as to new trials, resort for the granting of a new trial should not ordinarily be had to these general provisions. Where, however, the ends of justice clearly require it, as here, this may be done.

In addition to the misdirection on the two points referred to in the Court of King's Bench, I am in agreement with what my brother Rinfret says as to the by-law he refers to, and there is also to be noted the evident lack of information upon the part of the jury when they proceeded to consider their verdict. An amendment of the claim for damages had been asked and granted at the conclusion of the plaintiff's case, by which the amount of damages originally claimed under each heading was greatly increased. The answer of the jury as to the amount of damages that they awarded was first in the following words: " Plein montant r6clam6 * * * Unanime ". Then we have, in the " extrait du prochs-verbal d'audience ", the following:

From this it is quite clear that the jury, in returning the verdict for the full amount claimed, had no idea of what that amount was, and were prepared to give a verdict for the full amount, whatever it might be. They were sent back to find out the amount in figures, and then returned with the amount $23,040 filled in, after the words " Plein montant r6clam6 ".

A verdict for this large amount, arrived at in this manner, is certainly unsatisfactory, and a strong ground for ordering a new trial.

I agree with the disposition of the costs of this appeal proposed by my Lord the Chief Justice and my brother Rinfret, and agree with the latter that the costs of the abortive trial should be provided for as he suggests, and that it would be well to have it specially mentioned that the bond for costs of appeal to this court is to remain in force.

J.-Pour les motifs expos6s dans ses notes par 1'Honorable Juge-en-chef de la province de Qu6bec, je suis d'avis de confirmer l'arrit de la Cour du Banc du Roi accordant un nouveau procks.

RUTHERFORD v. ROYAL BANK OF CANADA APPEAL from the decision of the Court of King's Bench, appeal side, province of Quebec (1), reversing the judgment of the Superior Court, Patterson J. (2), and dismissing the action instituted against the respondent bank by the appellant acting as trustee of a bankrupt company in reimbursement of a cheqdie alleged to have been paid without authorization.

The firm of Harvie Smith & Company, Limited, opened and operated, for the purposes of the business which it formerly carried on in Montreal, a current account in a branch of the appellant bank, under authority of a resolution of the directors of the company passed on the 30th of November, 1926, in accordance with its by-laws. The following resolutions relevant to the issues involved in this appeal were passed. Resolution no. 3 provided that any two of the four senior officers of the company, namely, the two vicepresidents and the treasurer, were authorized on behalf of the company to make, sign, draw, accept or endorse cheques, etc., and, by resolution no. 4, it was also provided that " all securities, documents and instruments signed, made, drawn, accepted or endorsed as aforesaid shall be valid and binding upon the company."

The respondent bank had no knowledge of these resolutions. Throughout the period with which this appeal is concerned, Dr. Robert Harvie was the president and Milton F. Gregg was a vice-president and the treasurer of the company. On the 9th of August, 1927, a cheque signed in the name of the company by Robert Harvie alone, for $4,250 payable to himself or to his order, was presented at the branch of the respondent and, although incomplete since it bore the signature of only one officer of the company, whereas under the terms of the above mentioned resolution, it should have been signed by two, it was accepted for payment by the accountant of the branch, charged against the company's account therein and paid in due course through the personal account which Harvie had in the same branch of the bank. Milton F. Gregg, who was one of the officers of the company duly authorized for and on its behalf inter alia to receive all paid cheques and other vouchers and to sign the bank's form or settlement of balances and release, on the 5th of November, 1927, received from the bank a detailed statement of the company's account with the bank for the three months ending the 31st of October preceding and the cheques and vouchers for the various items mentioned in the statement, and signed and delivered to V*E the bank what is referred to as a " verification slip " and noRnYA which in fact is the bank's form of settlement of balances and release whereby the company undertook forthwith to examine the statement and vouchers and to inform the bank within ten days of anything in them that was found to be incorrect, agreeing that the statement should be conclusive evidence of the correctness of the balance therein shown and that the bank should be released from all claims by the company in respect of each and every item shown therein, save such as were questioned or notified in writing to the bank. Harvie Smith & Company, Limited, assigned in bankruptcy in October of the next year (1928) and Mr. W. E. Dunton was appointed its trustee in bankruptcy.

He found the said cheque of 9th August, 1927, among the papers of the company that were turned over to him and instituted the present action to recover from the bank the amount thereof, on the ground that it was paid by the bank out of the company's funds without authorization. Mr. Dunton was later on replaced as trustee by the present appellant, who continued the action to judgment.

The Superior Court, Patterson J. (1) maintained the appellant's action, but the judgment was reversed on appeal to the Court of King's Bench (2).

On appeal to the Supreme Court of Canada, after hearing counsel for the appellant and the respondent, judgment was reserved; and, at a later date, judgment was rendered dismissing the appeal with costs. Mr. Justice Smith, who delivered the judgment of the court, after stating the facts of the case, made the following observations: " No objection to the payment by the bank of this cheque was ever made by the company. The vice-president and treasurer Gregg had full authority to sign the release on behalf of the company, and prima facie that document is binding on the company. No evidence was offered to displace the prima facie defence thus established, and it is therefore un-