Littley v. Brooks and Canadian National Ry. Co.

by striking out paragraph 2 of part 1, Over-Crossings, and substituting in lieu thereof the new paragraph 2 quoted at the beginning of this judgment. It also added two additional paragraphs relating to notice of accidents, and preall rights as between power companies and railway companies for crossing privileges. These added paragraphs not in question under this appeal.

J.

For the reasons stated, so far as concerns the substituted paragraph 2, we would answer the question submitted in the negative.

The respondents should pay to the appellants the costs of this appeal.

LAURA

LITTLEY

STANLEY

LITTLEY,

MANSFORD

BROOKS

CANA- DIAN NATIONAL RAILWAY COM- PANY negligence, and though his degree of fault has much exceeded that of defendant, the Contributory Negligence Act, RS.O., 1927, c. 103, is applicable to enable the action to be maintained; and it is also appli- LrrrLEY cable for the purpose of providing for apportionment of the liability for damages. (Lamont J., dissenting, contra).

Plaintiffs claimed damages for the deaths of the occupants of a motor car Ry. Co. through its collision with defendant company's electric train. The jury found negligence both in defendants and in the driver of the motor car, assessed damages, and apportioned the fault, 259' to defendants, and 75% to the driver of the motor car. This Court held that, having regard to the evidence, the assessment of damages was unreasonably large and such as must have been occasioned by a misunderstanding of the basis upon which the amount ought to be determined; also that the jury should have been asked who was actually driving the motor car, and whether any of the other occupants stood in such a relation to the driver as to imply his responsibility for the driver's contributory fault or neglect; and that there should be a new trial, but limited to the following issues: (1) the entire amount of damages suffered by each plaintiff; (2) to whom and how should responsibility for the contributory negligence found by the jury be imputed.

(Lamont J. dissented, holding, on his grounds next stated, that the action should be dismissed.)

Per Lamont J., dissenting:

The requirement, to give a right of action under the Fatal Accidents Act, that deceased's death was caused by a wrongful act, neglect or default of defendant, has not been affected by the Contributory Negligence Act. To hold that the present action should succeed, with such damages only as would be proportioned to defendants' fault, would mean that the Contributory Negligence Act, by inference, has amended the Fatal Accidents Act in matters which are of its very essence, viz., (1) so as to give a right of action to dependants where the death, though not caused, has been contributed to, by defendant's negligence; and (2), so as to restrict dependants' measure of damages as given by the Fatal Accidents Act, which is based on a principle entirely different from that applicable were deceased living and suing; and implication of such amendments is not justified by the provisions of the Contributory Negligence Act. That Act applies only to cases where the damages sought to be recovered in the action resulted partly from the defendant's fault and partly from the plaintiff's fault.

APPEAL by the plaintiffs, and cross-appeal by the defendants, from the judgment of the Appellate Division of the Supreme Court of Ontario (1) ordering a new trial. The action was brought under the Ontario Fatal Accidents Act, for the benefit of the plaintiff Laura Littley and her son, Stanley Littley, to recover damages for the deaths of the husband and three children of the said Laura Littley, who were occupants of a motor car, the deaths resulting from a collision between the motor car and an (1) (1931) 40 Ont. W.N. 364.

electric train of the defendant company, which collision LiTTLEy the plaintiffs alleged was caused by the negligence of the defendant company, its servants or agents, and of the defendant Brooks, who was the motorman of the train. RJ oj.

On a previous appeal to this Court in the same case this - Court ordered a new trial (1).

The second trial came on before Raney J., with a jury. The following were the questions submitted to the jury, with their answers:

Answer fully. A. Speed of train was in excess of ten miles per hour.

A. Yes.

A. $20,000.

A. $2,000.

A. Defendants, twenty-five per cent. Driver of car, seventy-five per cent.

Both defendants and plaintiffs appealed to the Appellate Division, the defendants asking that the action be dismissed or, iii the alternative, that a new trial be had; and the plaintiffs asking that judgment be entered for the full amount of the damages found to have been suffered by them. The Appellate Division set aside the judgment and ordered a new trial (2).

The plaintiffs appealed to the Supreme Court of Canada, asking that the judgment (2) (1931) 40 Ont. W.N. 364. (1) [19301 Can. S.C.R. 416.

He dealt with that ground of appeal as follows:

The learned trial judge had said to the jury about the beginning of his charge,-after referring to the two claims-made, the one on behalf of Laura Littley, the widow and mother, and the other on behalf of her son Stanley, who was a minor, these two being the only survivors of the family,- In my opinion, this sufficed to put before the jury the essential fact that, in assessing damages, they must take into account all the claims as preferred by Laura Littley, i.e., her claim for the loss of her boy Leslie, then aged 19, and of her other two infant children, and also her claim for the loss of her husband. The order for a new trial against Laura Littley cannot, in my opinion, be supported on the sole ground for it assigned by the learned Chief Justice, viz., that the learned trial judge erred in requiring the jury to find one amount instead of separate amounts for damages in respect of the respective deaths of the husband and the three infant children. With the utmost respect for the Chief Justice, I find no difficulty in the case on this point. Its only possible materiality would arise from the fact that contributory negligence of the driver of the motor car found by the jury, and evidently, in their opinion, imputable to the mother, could not well be attributed to the two infant children (other than Leslie) on account of whose deaths, as well as that of her husband, she brought action.

In ordering a new trial as against Laura Littley on this ground even, as the learned Chief Justice appears to put it, limited to a new assessment of damages, the Appellate Division seems to me to have been clearly wrong, as it must be quite immaterial how much of the $20,000 pecuniary loss, found to have been occasioned to the widow by the accident, was attributable to the loss of her husband and how much of it to the loss of each of her three children. There is more to be said in favour of the order for a new trial as against Stanley Littley, if likewise limited, since, in my opinion, the learned Chief Justice is quite right when he says:

Here, the amount of damages alone is affected, and the new trial should, with respect, have been limited to that point. I agree that the assessment of damages at $20,000 in favour of the widow is considerably larger than I would have allowed and it is quite possible that the jury made some mistake in that respect, or took into account something which they should not have considered. With regard to contributory negligence, what the jury evidently meant was this: Taking the case in the by and large, they said to themselves: " We will allow $22,000 (apportioned, $20,000 to Laura Littley and $2,000 to Stanley Littley) as total damages, of which 75 per cent. should be borne by the plaintiffs and 25 per cent. by the company."

While the sums allowed as total damages may seem unreasonable, bearing in mind that the question of the amount of damages is usually exclusively for the jury, and having regard to their treatment of the case as a whole, I would, personally, be satisfied to allow the award to stand. I defer, however, to the views of my learned brothers who think it so grossly excessive that they cannot but assume that there was some error in the minds of the jury as to the proper basis of assessment.

On this ground alone, therefore, I would agree to a new trial-not at large, however, since the Appellate Division has expressly approved of the findings of the jury, excepting those as to the amount of damages,-and that is the only matter which my colleagues find unsatisfactory in the verdict already given.

As indicated above, one reason why I am not entirely satisfied with its findings was the failure on the part of the jury to determine how and to whom the contributory negligence of the driver of the Littley car was to be imputed. I would, therefore, since there must be a partial new trial, agree to the submission to the new jury of a question to cover this point.

For these reasons, I agree in the result of the judgment which I understand is to be delivered by my brother Rinfret.

LrrrLEY

RINFRET, J.-This action was brought under the provisions of the Fatal Accidents Act (c. 183 of R.S.O., 1927). The plaintiffs (appellants) are Laura Littley, widow of Walter Littley, and Stanley Littley, son of the said Walter Littley, an infant suing by his next friend, Laura Littley. They seek damages for the death of Walter Littley, their respective husband and father. Laura Littley personally also claims damages for the death of her two sons, Leslie and Edward, and her daughter, Ivy.

The present appeal brings this case before this court for the second time. In a former appeal, wherein the parties were identical, this court ordered a new trial and, in doing so, took occasion to state the facts (1).

The second trial came on before Raney J., with a jury, and the following were the questions submitted to the jury, with their answers:

Answer fully. A. Speed of train was in excess of 10 miles per hour.

A. Yes.

Answer fully. A. Excessive speed and lack of caution.

A. $20,000.

A. $2,000.

Driver of car, 75%.

(1) [1930] Can. S.C.R. 416.

From this judgment, both parties appealed to the Appellate Division of the Supreme Court of Ontario; and, on the

15th day of June, 1931, a new trial was again directed (1). The appellants, thereupon, appealed to the Supreme Court of Canada, praying that the order for a new trial be set aside, and again asking for the full amount of damages Rinfrot J. found by the jury. The respondents cross-appealed and gave notice of their intention to contend, on the hearing of the appeal, that the judgment of the Appellate Division ought to be varied and that the action ought to be dismissed with costs.

The judgment appealed from was unanimous. It was delivered by the Right Honourable the Chief Justice of Ontario, who went into a discussion of all the grounds of appeal and considered each of them very carefully.

He held that " there was ample evidence to support the findings of the jury," and expressed the " opinion that the charge of the learned (trial) judge was fair and sufficient."

The new trial was ordered for the reason that the jury was required " to find one amount instead of separate amounts in respect of the respective deaths of (the) husband and

(the) three children, and therefore the finding as to the amount of damages must be set aside and a new assessment had."

As regards the award made to the appellant Stanley

Littley, he thought " the amount awarded to him is excessive, and that that finding should be set aside."

The learned Chief Justice, on behalf of the Appellate

Division, further expressed the view that, at the new trial,

"the jury should be directed to find who was actually driving the car or in control of it at the time of the accident."

We now have before us the appeal and the cross-appeal from that judgment.

On the cross-appeal, subject to discussing the measure of damages, we have only to say that the questions raised were properly dealt with by the Appellate Division, and we do not think it should be entertained by this court.

On the main appeal, there are two questions to be considered: Whether the new trial was properly ordered for the reasons given by the Appellate Division; and, if not, whether judgment should be entered in favour of the appellants for the full amount of the damages assessed by the jury.

Walter Littley, the husband and father of the respective Rinfret J. appellants, was forty-two years old, and apparently in excellent health. He was operator of an electric shovel in a gravel pit. He was being paid sixty cents an hour for a ten-hour day and would average 5 days' work, or $30 a week throughout the year. The wife's evidence is that he gave her his wages.

Leslie Littley was nineteen years of age. He was a teamster, receiving $85 every two weeks for himself and his team. He was just commencing in business and was paying for his team; but, up to that time, he had been a market gardener and had given his money to his mother.

Edward was a boy of thirteen, still going to school, and Ivy was a girl of ten.

The appellant Laura Littley was thirty-eight in November, 1928, five months after the accident, and the appellant Stanley Littley was sixteen the following December. The evidence was that Laura Littley was in good health, but that Stanley had a more delicate health than the other children and had been kept away from school for some time before his father's death. They were left without resources and the mother has been going out to work by the day for a living.

In assessing damages under the Fatal Accidents Act, it is well settled law that the jury are confined to the pecuniary loss sustained by the family and cannot take into consideration the mental suffering of the survivors (Blake v. Midland Ry. Co. (1) ). It is the reasonable expectation of pecuniary advantage by the relatives remaining alive that may be taken into consideration (Mayne, On Damages, 10th ed., page 516).

The action exists solely " for the benefit of the wife, husband, parent and child of the person whose death was caused " (Fatal Accidents Act, section 3). Under the Act, there is no right of action for the benefit of the brother of the victim of the accident. It follows that the appellant Stanley Littley was entitled to damages only in respect of the death of his father. As for Laura Littley, the pecuniary benefit which she might expect from the continuation of the lives of Edward, aged thirteen, and Ivy, V.OOAND aged ten, are almost negligible, particularly in view of the fact that until they reached the age when they would be R.Co. earning their own living, they would have to be supported by their father and mother. Any pecuniary advantage which Laura Littley might expect must come substantially from her husband, and to a limited extent, from her son, Leslie. At the time of the accident, Leslie was using his money " to pay for his team." If we admit that he would later be able to look after himself, it would mean that the earnings of the father would go to maintain himself, his wife and the remaining three children. Assuming no contingencies whatever, such as interruption in work, illness, etc., these earnings would represent about $120 per month wherewith to provide for the whole family. It will be seen at once that the share of that sum available each month for both the mother and Stanley would fall far below $100. Notwithstanding these facts, the jury assessed the damages at an amount the interest of which would be sufficient to provide an income of $100 a month for the mother alone. In addition to that, on the assumption that the Contributory Negligence Act does not apply in mitigation of the damages, she would become the owner of the capital sum necessary to produce that income, and a further sum of $2,000 was assessed in favour of the son, Stanley. For, let it be observed that this is not a verdict for $20,000 only. The $2,000 going to Stanley must, of course, be taken into account. Although the possible loss, remote as it is from the monetary standpoint, arising out of the deaths of the three children, may not be disregarded, the fact remains that, in this case, the damages which stand to be assessed are, almost entirely in the case of the wife, and exclusively in the case of Stanley Littley, damages resulting from the death of their respective husband and father. So that the verdict of $22,000 must be held to represent practically the pecuniary benefits which both appellants might have reasonably expected from the continuation of the life of Walter Littley. The jury, as was explained by the foreman at the trial, " based that amount on what (they) felt the widow should get a month on the basis of six per cent., which would give her one hundred dollars a month, which LrTTLEY would be approximately $20,000."

The explanation throws .oo light on what was in the minds of the jury. Having regard to the material circumstances of all concerned, $100 a Rv. Co.

month to the widow alone would not, in any event, be pinret j. warranted by the evidence; but the jury disregarded alto- gether the fact that, in addition to the income, they were giving the capital as well; and, besides that, they were awarding $2,000 to Stanley Littley.

We cannot escape the conclusion that the assessment of damages, both in favour of the wife and of the surviving child, was excessive and out of proportion to the total pecuniary loss occasioned by the deaths of the persons in respect of whom the damages were awarded.

Having regard to the evidence, we are clearly of the opinion that the assessment was unreasonably large and such as must have been occasioned by a misunderstanding of the basis upon which the amount ought to be determined. On that ground alone, therefore, there would have to be a new trial.

We may now deal with the question whether, in view of the finding that there was "negligence on the part of the driver of the Littley car contributing to the collision ", judgment should nevertheless, as the appellants contend, be entered in their favour for the full amount of the damages assessed by the jury.

By the Fatal Accidents Act of Ontario, it is provided that:

3. (1) Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and except as hereinafter provided shall be brought by and in the name of the executor or administrator of the deceased, and in every such action such damages may be awarded as are proportioned to the injury resulting from such death to the persons respectively for whom and for whose benefit such action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the beforementioned persons in such shares as may be determined at the trial. The Contributory Negligence Act (c. 103 of R.S.O., 1927) provides as follows:

The appellants submit that by section 2 of the Fatal Accidents Act a right of action in the deceased, had he survived, is made a condition precedent to a right of action accruing to certain of his dependents under the provisions of the Act. They further submit that, if such condition precedent be fulfilled, the survivors of the class named in section 3 of the same Act have a statutory right of action untainted and unaffected by anything which the deceased may have done or agreed to, so long as he, by such conduct or agreement, had not completely barred his own right of action, had he survived.

Therefore, while, before the Contributory Negligence Act, contributory negligence was a good defence to an action under the Fatal Accidents Act, this was the case because contributory negligence would have deprived the deceased of his right of action had he survived.

By the Contributory Negligence Act, his right of action is no longer barred, but his right to recover is limited proportionately to the percentage of negligence attributed to the defendant. It is therefore submitted that the condition precedent to a successful action under the Fatal Accidents Act is satisfied and the persons entitled to sue under that Act are given a new statutory right of action, which is unaffected by the conduct of the deceased.

In a recent case, Price v. B.C. Motor Transportation Ltd. (1), the Chief Justice of this Court had occasion to examine a similar question under the British Columbia statutes. Those statutes,. although not identical in terms, are substantially the same as the Ontario Acts. The Chief Justice said (2):

11932 The presence of the condition of the right of action, i.e., that it must be " such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof," has been held to require that the deceased would have had an enforceable cause or right of action for the injury had he survived. To this cause of action, contributory negligence on his part would, of course, have been a defence.

That being so, he could not have successfully maintained an Rinfret j. action where contributory negligence was established, had he survived, and his personal representative or widow, etc., could, accordingly, maintain no action for damages caused by his death.

The ground now taken by the plaintiff is that the defence of contributory negligence being done away with by the statute of 1925 leaves the right of action under Lord Campbell's Act absolute and unqualified. In other words, the other provisions of the Contributory Negligence Act would have no application to a case under Lord Campbell's Act. I find -nothing in the Contributory Negligence Act to exclude its application as a whole to cases under Lord Campbell's Act, which are so common. On the contrary, everything in the former statute indicates that such cases must have been present to the mind of the Legislature which enacted it.

Contributory negligence is a defence which the statute does away with, but only conditionally, the condition being that, " where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss shall be in proportion to the degree in which each person was at fault." I cannot conceive that the Legislature intended that this Act should apply for the purpose of enabling the plaintiff to maintain an action under Lord Campbell's Act, notwithstanding the establishment of contributory negligence imputable to her, and yet should not also apply for the purpose of providing for the apportionment of her damages under section 2.

That this case comes within section 2 is perfectly clear, the term or condition of its application thereby provided being that, where contributory negligence is shown, there shall be an apportionment of damages in proportion to the degree in which each person was at fault. Any person taking advantage of the Contributory Negligence Act must do so on the terms and conditions laid down by the Legislature."

In the British Columbia case (1), the view taken by the other members of the court made it unnecessary for them to pass upon that point. In the present case, the point has to be decided and the opinion thus enunciated by the Chief Justice may now be stated as being the opinion of the court on the question raised by the appellants.

At the outset, it should be said that the whole case proceeded on the basis that the Contributory Negligence Act applied. Should we now come to the conclusion that it does not, the consequence would be that the verdict is the result of misdirection throughout and a new trial is inevitable, in any event. But, as there is to be a new trial any- (1) Ante, p. 310.

how, we think we should, under the circumstances, give a direction to the judge who shall preside at the trial. At common law, contributory negligence of the plaintiff is a complete defence to an action " founded upon fault or negligence ". The result was that in any such case, " if a plea of contributory fault or negligence (was) found to have been established ", the victim of the accident could not successfully maintain an action and recover damages in respect thereof.

As a consequence, under the Fatal Accidents Act, and under similar circumstances, if the death of the victim ensued, neither could an action be successfully maintained " for the benefit of the wife, husband, parent and child of the person whose death was so caused ". Contributory negligence of the deceased or imputable to him continued under the Act to be a complete defence against the action of the named relatives. The action could not be maintained, not on account of the contributory fault or negligence of the relatives who brought it, but on account of the contributory fault or negligence of the victim of the accident.

The Contributory Negligence Act, of Ontario, has not created a new right of action and it has not taken away the defence of contributory negligence.

It has only modified the effect of that defence. Where contributory negligence used to be an absolute answer to the action, the Act says that henceforth it shall not be so and it shall only mitigate the liability of the negligent party owing to the contributory fault of the victim.

(Compare The Napierville Junction Railway Company v. Dubois (1) ). What the jury is to find is "the degree in which each party was in fault ". " Party" here means " party to the accident ". Under the Act, the primary concern is to establish the degree of liability of each party to the accident. The apportionment of the amount of damages follows only as a matter of consequence.

When, therefore, we have a verdict such as we have here, and the jury finds that the fault of each party contributing to the accident should be apportioned in the ratio of twenty-five per cent. for the defendants and seventy-five per cent. for the other party, the meaning of the Act and the intention of the legislature is l1ss that, the defendants having been found guilty of fault or LnEY negligence contributing to the accident only in the proportion of twenty-five per cent., their liability for the consequences of that accident is limited to twenty-five per cent., and they are answerable only to that extent towards the j. person claiming damages resulting from the accident. In such a case, says the Act, " the plaintiff shall have judgment only for so much thereof as is proportionate to the degree of fault imputable to the defendant ". The injurious participation by the defendants in the wrongful acts which caused the accident having been in the proportion found by the jury, they are to contribute towards the compensation for the damages in that proportion. They are to pay only that proportion of the damages which they have caused,-and they are not responsible for more. The Act applies to " any action or counterclaim " (section 2) and, by definition (section 1), the plaintiff in any such action or the defendant in any counter-claim " shall have judgment only for so much (of the entire amount of damages) as is proportionate to the degree of fault imputable to the defendant ".

The cases cited by the appellants are not in point. In Mills v. Armstrong, commonly known as the Bernina case (1), three claims were made by the representatives of three of the victims for whose death action was brought. The accident consisted in a collision between two ships. Two of the victims were held to have had nothing to do with the negligent navigation, while the other (Owen) was found to have been connected with the wrongful acts' con- Before the Court of Appeal, the claim on behalf of the latter's representative was given up. The two other claims were maintained in full, on the ground that, in each case, the victims for whose deaths the actions were brought were not parties to the negligence and could in no way be connected therewith, and therefore the Admiralty rule as to half damages did not apply. In the House of Lords, the question upon that rule was mentioned, but not argued. Lord Herschell expressed thus the ground of the decision:

tile (1), the question was one of prescription and turned upon the construction of the Special Act of the electric Pifre j. railway company. It was decided that the particular enactment (whereby certain actions against the company had to be brought within six months of the event giving rise thereto) did not cover an action under the Families Compensation Act in British Columbia.

In Union Steamship Company of New Zealand v. Robin (2), the particular statutes therein involved and which had to be construed were quite different. The Workers' Compensation Act (1908) of New Zealand, sec. 62, gave to a servant who was injured by the negligence of a fellow-servant a right of action against his employer, it being provided by subs. 3 that

As will have been noticed, the limitation as to damages expressly applied to " an action brought under this Act " by the servant himself and there was " nothing to restrict the right " (covered by sec. 5 of the Deaths by Accident Compensation Act (1908) of New Zealand) " enabling the jury to give damages as they think proportioned to the injury resulting from the death."

Under the Ontario Contributory Negligence Act, the limitation as to damages is only consequential. The true purport of the Act is a limitation as to responsibility. The limitation applies " in any action or counterclaim for damages which is founded upon fault or negligence " and not, as in the New Zealand case, to " an action brought under this Act."

Moreover, the right of the jury to award damages is expressly limited to an amount " proportionate to the degree of fault imputable to the defendant."

In fact, the New Zealand statute appeared to be clear enough, and the discussion in the case centred not on the construction to be put upon the statute, but upon the effect LrrrY of an amendment made in 1911. The Act of 1908 contained the following provision:

In the amending statute, that provision was not repeated. The argument was that the removal of the provision must be assumed to have had some definite purpose; and it must follow that the limitation it was designed to avoid no longer applied (1).

The decision was that

The decision in that case cannot affect the present case. We hold, therefore, that the provisions of the Contributory Negligence Act (c. 103 of R.S.O., 1927) are applicable to an action brought under the Fatal Accidents Act (c. 183 of R.S.O., 1927).

It may not be without interest to point out that such is also. the solution invariably given to similar cases in the province of Quebec, where the rule has always formed part of the law of the province.

This, however, does not end the matter. In order to affect the amount of damages recoverable by the appellants, it must be shown, in the words of Lord Herschell, It follows that, in this case, the jury ought to have been asked who was actually driving the car and, further, whether any of the other occupants of the car stood in such a relation to the driver (the actual wrongdoer) as to imply his responsibility for the contributory fault or neglect of the driver. The appellants urge that the onus was upon the respondents, in order to establish their plea of contributory negligence. But there was evidence from which the facts might at least be inferred and the point is that the jury made no finding upon those facts. We know that the car belonged to the son, Leslie Littley. If he was not the actual driver, he may be responsible as owner. We know that the trip was on the father's mission. We know also that the owner of the car, Leslie, was not of age, and even if the father was not driving, he might yet be found to have been in control or to have been in a position to give orders or to interfere with the conduct of the driver. At the new trial, further evidence may be called. Mrs. Littley saw the car start and presumably could say who was driving it at that time. Other evidence may be adduced of a similar character.

Another consequence of the application of the Contributory Negligence Act is that it is necessary to have a separate finding of the damages suffered through the death of each of the four victims of the accident, for it might well be that all may not be held responsible for the driver's contributory negligence.

For all these reasons, we agree with the Appellate Division that there must be a new trial, but we think the order ought to be varied so as to limit it to the issues wherein the present trial is found to have been defective. The case having already been tried twice, the issue of negligence on both sides and the degree of fault imputable to the defendant respondents ought now to be taken as concluded. Leaving those findings to stand, the new trial should be ordered only as to the following questions and matters: 1. The entire amount of damages suffered by each plaintiff.

J. (dissenting).-The first question we have to determine in this appeal is: Can the plaintiff, who is the widow of the deceased, maintain an action under the Fatal Accidents Act where the deceased has been found guilty of negligence contributing to his death?

BRooKS

without a jury, shall find:- Lamont J.

First: The entire amount of damages to which the plaintiff would have been entitled had there been no such contributory fault or neglect; Secondly: The degree in which each party was in fault and the manner in which the amount of damages found should be apportioned so that the plaintiff shall have judgment only for so much thereof as is proportionate to the degree of fault imputable to the defendant.

Section 2 shews that the application of this Act is limited to an action or counter-claim for damages which is founded upon fault or negligence.

By that language, the Legislature, in my opinion, meant that the Act applies only where the claim is for damages for loss or injury occasioned by the fault or negligence of the other party to the action or counter-claim. It applies where the purpose of the action is to determine as between the parties thereto the amount of damage which should be attributed to their respective faults. The section directs the judge or jury to find the degree in which " each party was in fault ".

" Each party " here must mean each party to the action, for they are the only persons who could be before the court. The total damage suffered by the plaintiff is to be so apportioned that he will receive from the defendant only that portion of his loss which is proportionate to the degree of fault imputable to the defendant.

If the defendant has also suffered loss and counter-claims for damages for the loss he has suffered, his claim is dealt with in exactly the same way and he is entitled to damage against the plaintiff in proportion to the degree of fault imputable to the plaintiff. The Act, therefore, applies only to cases where the damages sought to be recovered in the action resulted partly from the fault of the defendant and partly from the plaintiff's own fault.

Turning now to the Fatal Accidents Act, R.S.O., 1927, ch. 183, we find that sections 2 and 3 (1) thereof read as follows:

3. (1) Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and except as hereinafter provided shall be brought by and in the name of the executor Lamont J. or administrator of the deceased, and in every such action such damages may be awarded, as are proportioned to the injury resulting from such death to the persons respectively for whom and for whose benefit such action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the beforementioned persons in such shares as may be determined at the trial. This Act, with certain immaterial exceptions, is identical with the English Act, known as Lord Campbell's Act. Apart, therefore, from the Contributory Negligence Act, which does not exist in England, the English decisions as to the meaning and effect of Lord Campbell's Act are applicable to the case before us.

At common law no civil action could be maintained for an injury to a human being which resulted in death. It was not until a right of action was given by statute that a wrongful act causing death subjected the wrongdoer to liability for loss occasioned by the death, and then only to such persons and on such conditions as the statute prescribed. Section 2, above quoted, prescribes two conditions precedent which must be fulfilled before an action can be maintained:

(2) The act, negligence or default must be of such a kind that if death had not ensued the person injured would have been entitled to maintain an action and recover damages in respect thereof. That both these conditions must be fulfilled before the right of action exists is established by the judgment of the Privy Council in British Electric Ry. Co. v. Gentile (1), where, at page 1041, their Lordships say:- Although the action under Lord Campbell's Act or the Families Compensation Act (British Columbia) is not an action of indemnity for negligence, yet nevertheless it is an action which can only exist if certain conditions precedent are fulfilled. The first is that the death shall have been caused by wrongful act, neglect, or default of the defendants. That has in this case been affirmed by the verdict of the jury. The second is that the default is such "as would if death had not ensued have entitled the (1) [1914] A.C. 1034.

Unless, therefore, these two conditions precedent were found to exist in the present case, or their requirement annulled, the plaintiff has no right of action.

Was the death of the deceased occasioned by the wrongful act, negligence or default of the defendants? The jury have found that it was not. They have found that the death was occasioned by the joint negligence of the defendants and the deceased, of which only 25 per cent. could be imputed to the defendants. The first condition precedent, therefore, is not fulfilled.

It is, however, argued that the fulfilment of this condition is rendered unnecessary by the Contributory Negligence Act, and that, since the passing of that Act, it is no longer necessary to prove that the death of the deceased was occasioned by the wrongful act or negligence of the defendant, but that a cause of action is established if it is shewn that the wrongful act contributed, whether much or little, to the death of the deceased.

Let us consider this contention: Prior to the passing of the Contributory Negligence Act, contributory negligence on the part of a deceased person was a complete defence to an action under the Fatal Accidents Act. It was an answer to the first condition because, where the death was due to the fault of the deceased and the defendant jointly, it could not be said to have been caused by the defendant. It was also an answer to the second condition because, being guilty of negligence himself, the deceased, if he had remained alive, could not, at law, have maintained an action for damages against the defendant.

Since the passing of the Act the person killed, had he survived, could have maintained an action against the defendant for injuries caused by the defendant's fault even although himself guilty of contributory negligence.

The Act does give the right of action required by the second condition precedent of the Fatal Accidents Act, but I fail to see that it in any way affects the first. The language setting forth the first requirement of section 2 is clear and explicit, and I can find nothing in the Contributory Negligence Act which, by express language or necessary implication, indicates in any way an intention on the part of the Legislature to modify or alter the first condition required by the section.

Let us test the application of the Act in another way: Let us assume that the above conclusion is wrong and that the Contributory Negligence Act is an answer to both conditions required by section 2. What is the result? The right of action given to the statutory beneficiaries by the Fatal Accidents Act is an entirely different right from that which the deceased, if living, would have had. As early as 1852, Coleridge J., in giving the judgment of the court in Blake v. Midland Ry. Co. (1), said:- And in Seward v. " Vera Cruz" (Owners of) (2), Lord Blackburn said:- Not only does the Act give the deceased's dependants a new cause of action but the measure of their damages is based on a principle entirely different from that which would apply if the deceased were living and suing. The damages which may be recovered under the Act are such " as are proportioned to the injury resulting from such death to the persons respectively for whom and for whose benefit such action is brought ". The basis of the claim is compensation for the loss of the actual pecuniary benefit which the beneficiaries might reasonably have expected to enjoy had the deceased not been killed.

This loss would be exactly the same whether the defendants' wrongful act or negligence was the sole cause of the death or whether it contributed thereto only to a very small extent. It was, however, argued that the contributory negligence of the deceased must be imputed to the plaintiff and the measure of her damages determined by the degree of fault imputable to the defendants.

In my opinion, it is impossible to give effect to this argument in view of the express provision of the statute that the damages are to be such as are propor- Lrm tioned to the injury resulting to each dependant from such death. To do so would be to amend the statute, which is the function of the legislature and not of the court. That any limitation affecting the measure of damages which the deceased, if living, could recover does not apply to the plaintiff is, I think, established by the authorities.

In Union Steamship Company of New Zealand v. Robin (1), the death of the deceased was caused by the negligent act of a fellow servant and an action for damages was brought against the employer, the steamship company, under the Deaths by Accident Compensation Act, 1908, of New Zealand, which was, in all material particulars, identical with Lord Campbell's Act.

The contention of the company was that prior to the enactment of the Workers' Compensation Act, 1908, a servant had no right of action for damages against his employer where his injuries were caused by the negligence of a fellow servant, as the doctrine of common employment was an absolute defence; that the Workers' Compensation Act took away from an employer this defence and gave a right of action to a servant injured by the negligence of a fellow servant, but it provided that the damages recoverable, in an action under the Act, should not exceed 500 pounds, and that, as the plaintiff must depend on the Workers 'Compensation Act for her right of action, the limitation imposed by that Act was binding on her. The Privy Council, however, held that the measure of damages was not limited to 500 pounds, as the cause of action and the measure of damages were different from those which the deceased person would have had if he had survived.

In his judgment Lord Buckmaster, at page 660, said:

have been a limitation as to damage, there is nothing to restrict the right expressly conferred by s. 5 of the Deaths by Accident Compensation Act enabling the jury to give damages as they think proportioned to the LrrnLEY injury resulting from the death.

and at page 661, he said:

The damages which the dependants are entitled to recover are such oo damages as the jury think proportional to the injury, and on this right no statutory limitations have been imposed.

Lamont J. The same principle is enunciated in the later case of Nunan v. Southern Ry. Co. (1).

There the deceased, a passenger by railway, had agreed with the railway company that its liability for personal injuries should not exceed 100 pounds. He was killed by the negligence of the company's servants. In an action under Lord Campbell's Act, by his dependants, it was held that the damages recoverable were not limited to such sum. In his judgment Scrutten L.J., at page 228, said:

Then it is argued that if that is so his dependants must equally be bound if he has made an agreement which, while leaving him a cause of action, limits the amount which he can recover. I agree that it looks odd that he should be able to bar his dependants entirely, and yet should not be able to bar them in part, but one must be guided by the words of the statute.

and further on he says:

Under these circumstances we must follow the language of the statute, and that language compels us to say that as the dead man could at the time of his death have brought an action for some damages his dependants can bring an action for their own and quite different damages.

-and Atkin, L.J., at page 230, said:

The deceased person could, if he were alive, only bring an action to recover compensation for his personal injuries, which ex hypothesi fall short of the consequences of his death; and it may well be that the sum -of 100 pounds might more than cover the damages to which he would be entitled. On the other hand, the dependants bring their action substantially for the loss of the breadwinner of the family; and that is a very -different matter.

Another illuminative case is that of McColl v. Canadian Pacific Ry. Co. (2), where, at page 133, my brother Duff, in giving the judgment of the Privy Council, summed up -what Lord Dunedin had said in the Gentile case (3), as follows:

In other words, an action under Lord Campbell's Act is not an action -for " damage sustained by the plaintiff by reason of the wrongful act which .- caused the death in respect of which the claim is made."

If the plaintiff's claim is not for damages for loss sus- -lained by the defendant's wrongful act, I fail to see how (1) [1924] 1 KB. 223.

(2) [19231 A.C. 126.

(3) [19141 A.C. 1034.

the degree of fault attributable to the defendant can be made the yardstick by which to measure her damages. is In view of the above authorities the result, in my opinion, is that, on the assumption that the Contributory Negligence Act enables the plaintiff to maintain the action, the S of damages which she is entitled to recover for herself and her infant son is not in any way limited by the fact that the damages which her deceased husband if living could have recovered would be only such as were proportioned to the degree of negligence imputable to the defendants. The measure of her damage is that fixed by the statute and, in my opinion, that measure has not been in any way limited or altered by the Contributory Negligence Act. If the damages recoverable by the beneficiaries under the statute are the same both when the fault of the defendant is the sole cause of the death and when it merely contributes thereto in a small degree, we have to ask ourselves this question: Can the Legislature have intended to impose upon the defendant liability for the whole loss occasioned by the death, irrespective of the degree of fault imputable to him? I cannot conceive of the Legislature doing so, as the imposition of such a liability would be unfair and unjust. The fact, however, that the imposition would be unfair does not, in my opinion, justify the inference of a legislative intention to alter the measure of damages awarded to the dependants by the statute, but rather that the Legislature had no intention of making the provisions of the Contributory Negligence Act apply to the Fatal Accidents Act, beyond this, that the right of action given by the former Act to a plaintiff guilty of contributory negligence was sufficient in an action brought by his dependants, in a case where he was killed, to satisfy the second condition precedent required by the latter Act. In order that the plaintiff should succeed in this action with only such damages as would be proportioned to the defendants' fault we must, in my opinion, hold that the Contributory Negligence Act, by inference, has amended the Fatal Accidents Act in two very important particulars, namely, (1) so as to give a right of action to the dependants where the death is caused or contributed to by the wrongful act, neglect or default of the defendant, and (2) so as to restrict the dependants' measure of damages to an amount proportioned to the degree of fault attributable to the defendant. The first would give a right of action where none existed before, and the La second would deprive the dependants of full compensation VA for the loss they had sustained by the death. But the statutory provisions which would be thus amended are of the very essence of the Fatal Accidents Act. The amendments would Lamt alter not only the purpose of the Act but also the extent of its application, and that without the slightest reference thereto in the Contributory Negligence Act. Amendments so important and far reaching in their operation, cannot, in my opinion, be implied simply from a statutory provision giving a right of action to a person injured, where he himself has been guilty of contributory negligence. In In re Cuno; Mansfield v. Mansfield (1), Bowen L.J. said:and in Craies on Statute Law (3rd ed.), the same principle is enunciated. At page 105 the author says:and at page 109 he uses this language:- In enacting the Contributory Negligence Act the Legislature gave a right of action to a plaintiff guilty of contributory negligence, but gave it in express and unambiguous language. It does not expressly give any other right; nor does it take away any right except the right of a defendant to set up the contributory negligence of the plaintiff as a defence which results from the right given. I can see nothing in the exercise of the right given which is inconsistent with the continuance of the right of the dependants of a deceased person, killed by the fault of another, to recover the damages awarded to them by the Fatal Accidents Act. Nor can I see how the granting of that right can, by any implication, take away the immunity from liability which the defendant theretofore enjoyed unless his wrongful act or negligence caused (not simply contributed to) the Lmwrr death of the deceased. Full effect can be given to the language of the Contributory Negligence Act without interfering with the rights or immunities enjoyed under the Fatal R.

Accidents Act beyond what is necessary to give effect to the cause of action expressly given by the former Act. Had the Legislature intended to amend the latter Act in these respects, it would, I feel sure, have done so in express language. For this court to amend it would, in my opinion, be legislation and not interpretation.

If the Legislature thinks the cause of action given to the dependants by the Fatal Accidents Act should be available to them but with reduced damages where the death has been caused by the joint negligence of the defendant and the deceased, it has only to say so. It not having said so, the plaintiff in this case, in my opinion, has been unable to establish the conditions upon which her right to sue depends. Her action should, therefore, be dismissed.

Order of the Appellate Division varied, and the new trial to be limited to certain questions and matters.

THE ROYAL BANK OF CANADA

WILLIAM MACK two cheques, one payable to cash or bearer, and the other payable to self or bearer and endorsed by plaintiff. R. used the money for his RY own purposes. Plaintiff sought to recover the amount from the bank. BAK W This Court found on the evidence: that plaintiff believed, and R. intended him to believe, that R., in making the proposal, was acting as agent of the bank; that plaintiff believed he was placing his money at the disposal of the bank, and R. was fully aware of this; that unrestricted discretion was committed by plaintiff to R. as to the nature of the investment.

Held: The bank was not liable.

In this transaction R. was not doing something of a kind that, as agent of the bank, he was authorized to do, in the sense that such a transaction would fall within the general scope of his employment. It could not be said that an undertaking of the duty to invest a customer's money for him at the bank's discretion falls within the scope of the business of a bank, according to the intendment of the Bank Act. There was no evidence justifying or even pointing to the conclusion that the business of an investment agent or trustee is one which " appertains to the business of banking " (s. 75 (1) (d) ); nor did the transaction in question fall under any class of transactions comprehended within the dealings authorized by s. 75 (1) (c) of the Act.

Judgment of the Court of Appeal for British Columbia, 44 B.C.R. reversed.

APPEAL by the defendant from the judgment of the Court of Appeal for British Columbia (1), dismissing (Macdonald C.J.B.C., and McPhillips J.A., dissenting) its appeal from the judgment of W. A. Macdonald J. (2), holding that the plaintiff was entitled to recover from the defendant the sum of $2,500, as claimed.

The material facts of the case (as found by this Court) are sufficiently stated in the judgment now reported, and are indicated in the above head-note. The appeal was allowed and the plaintiff's action dismissed, with costs throughout.

DUFF J.-The agent of the appellant bank at Kelowna, one H. F. Rees, obtained from the respondent, who was a customer of the bank, the sum of $2,500, which he used for his own purposes; and, in the action upon which this appeal arises, the respondent seeks to recover that sum (1) 44 B.C.R. 81; [1931] 2 W.W.R.

(2) 43B.C.R.371; [1931] 1 W.W.R. 417; [1931] 3 DL.R. 237.

198; [1931] 2 D.L.R. 538. from the bank. There is no real controversy as to the facts. Rees suggested to the respondent that some part of a sum of $3,000, which the respondent had on deposit with the bank, should be invested. The respondent was told that an investment could be found which would return interest J.

at eight per cent. There is no dispute that the respondent believed, nor do I in the least doubt that Rees intended him to believe, that in making this proposal, he (Rees) was acting as the agent of the bank. It is equally clear that in handing over the sum of $2,500, for which he gave two cheques (one payable to cash or bearer, and the other payable to self or bearer and endorsed by him), the respondent believed he was placing his money at the disposal of the bank, and that Rees was fully aware of this. should have had no difficulty in holding the bank liable if there were grounds upon which it could be affirmed that, in this transaction, Rees was doing something of a kind that, as agent of the bank, he was authorized to do, in the sense that such a transaction would fall within the general scope of his employment.

I am constrained to the conclusion that the agent had no such authority, and for this reason. As I understand the evidence of the respondent, he was entrusting his money to Rees to invest it for him, at Rees' discretion, in some security of some description which would yield interest at eight per cent. It is plain, I think, that unrestricted discretion was committed to Rees as to the nature of the investment. I find myself in disagreement with the view expressed by one of the judges in the court below, that there was an implied representation by Rees that the subject matter of the undertaking was something within the bank's powers under the Bank Act. I have no doubt whatever that the respondent never thought of the Bank Act or of the powers of the bank. Fairly interpreting the language and conduct of the parties, as disclosed in the evidence, the discretion committed to Rees cannot be held to be limited in such a way as to bring the transaction within the scope of the Bank Act, unless an undertaking of the duty to invest for a customer, the customer's money, at the discretion of the bank, is something which falls within the scope of the business of a bank, according to the intendment of the provisions of the Act. There is no