Montreal Tramways Co. v. Léveillé

, that there was sufficient evidence adduced at the trial to produce in the jury's minds a conviction that it was reasonably probable that the deformity of the child resulted as a consequence of the mother's injury, and, consequently, their verdict should not be disturbed. The fact that the appellant's fault caused the deformity of the child cannot, from the nature of things, be established by direct evidence.

It may, however, be established by a presumption or inference drawn from facts proved to the satisfaction of the jury. These facts must be consistent one with the other and must furnish data from which the presumption can be reasonably drawn.

It is not sufficient that the evidence affords material for a conjecture that the child's deformity may have been due to the consequences of the mother's accident. It must go further and be sufficient to justify a reasonable man in concluding, not as a mere guess or conjecture, but as a deduction from the evidence, that there is a reasonable probability that the deformity was due to such accident.

.- The evidence of the medical experts called on behalf of the respondent establishes that medical science has not yet discovered the cause of club feet and such evidence has merely put forward more or less plausible theories on that subject. Therefore, having regard to the scientific problem involved, there was no evidence sufficiently positive and definite upon which the jury could reasonably find as a fact that the child's club feet resulted from the injury to the mother.

, that under the civil law, a child, who suffers injury while in its mother's womb as the result of a wrongful act or default of another has the right after birth to maintain an action for damages for the injury received by it in its pre-natal state. Per Rinfret, Lamont and Crocket JJ.-The answer to the appellant's contention that an unborn child being merely a part of its mother had no separate existence and, therefore, could not maintain an action under article 1053 'C.C., is that, although the child was not actually born at the time the appellant by its fault created the conditions which brought about the deformity to its feet, yet, under the civil law, it is deemed to be so if for its advantage.

Therefore when it was subsequently born alive and viable it was clothed with all the rights of action which it would have had if actually in existence at the date of the accident.

The wrongful act of the appellant produced its damage on the birth of the child and the right of action was then complete.

Per Cannon J.-The action in damages, and consequently the possibility of exercising it, has its existence from the date the injured person has suffered prejudice. In this case, the right of the infant child to claim damages was not entire before its birth. The child, while in its mother's womb, was not suffering any prejudice nor inconvenience and no complete right of action then existed. Right to damages was born at the same time as the child when the deformity was revealed and therefore the respondent's action was well founded in law. Per Rinfret, Lamont, Smith and Crocket JJ.-The great weight of judicial opinion in the common law courts denies the right of a child when born to maintain an action for pre-natal injuries; per Rinfret, Bench, appeal side, province of Quebec, affirming the judgment of the Superior Court, Duclos J., sitting with a jury, and maintaining the respondent's action in damages. The material facts of the case and the questions at issue are stated in the above head-note and in the judgments now reported.

J.-On March 25, 1929, the respondent's wife, then seven months pregnant, was descending from a tram car belonging to the appellant (hereinafter called the Company) when, by reason of the negligence of the Company's motorman, she fell, or was thrown from the car to the street and was injured. Two months later she gave birth to a female child-now called Jeannine-who was born with club feet. The respondent had himself appointed tutor to the child and brought this action 6s-qualit6 against the Company, claiming that the deformity of the child was the direct consequence of the negligence of the Company by which its mother was injured. The action was tried with a jury who found for the respondent and awarded damages in the sum of $5,500, for which amount judgment was entered. This judgment was affirmed by the Court of King's Bench (appeal side), Dorion and Hall JJ. dissenting. From the judgment of the Court of King's Bench the Company appeals to this court.

The appeal presents three questions for determination: 1. Has a child, who suffers injury while in its mother's womb as the result of a wrongful act or default of another, the right after birth to maintain an action for damages for the injury received by it in its pre-natal state?

These questions fall to be determined by the civil law of the province of Quebec. The action is brought under article 1053 of the civil code, which reads:- LvaLA. For the Company it was contended that the first question should be answered in the negative, because- 1. A child en ventre sa mere is not an existing personin rerum naturk--but only a part of its mother and, therefore, does not come within the meaning of the term "another " in article 1053 C.C., and

In support of its contention the Company cited the case of Walker v. G.T.N. Rly. Co. of Ireland (1).

In that case the plaintiff's mother, while a passenger on the defendant's railway, was injured by the defendant's negligence, and the plaintiff, who was then en ventre, was subsequently born deformed.

After the child was born it brought an action for damages for the deformity which it alleged was caused by the company's negligence.

On demurrer, the court, which consisted of four judges, held that the child could not maintain the action. The decision was based largely on the ground that the company had only contracted to carry the mother to whom alone it owed a duty not to be negligent. The broader ground, namely, the legal right of an unborn child to personal security, was discussed at some length, but the views of the judges on that point were against the recognition of the right; the Chief Justice, however, expressly stated that he would leave the question open, and based his judgment on the single ground that there were no facts set out in the statement of claim which fixed the defendants with liability for breach of duty as carriers of passengers.

During the argument in that case it was pointed out that under English law a conceived but unborn child, for the purposes of succession to property on an intestacy and for many purposes in connection with wills and their construction, was deemed to be born at a particular time if it was for the child's benefit that it be so held, and that in The George and Richard (1), it was held that a child en ventre sa mere at the date of its father's death was cap- J. able, when born, of maintaining an action under Lord Campbell's Act. Reference was also made to the language of Mr. Justice Buller in Thellusson v. Woodford (2), who, when replying to an allegation that a child en ventre sa mare was a non-entity, at page 322, said:- The court, however, took the view that the doctrine which regards an unborn child as born, if for its benefit, was a fiction of the civil law which had been adopted in England by the Ecclesiastical and Admiralty courts, and to some extent by the Court of Chancery; but that the common law courts had never recognized the fiction as applying so as to permit a child to obtain damages for pre-natal injuries.

That pre-natal injury affords no foundation for an action for damages on the part of a child was held in the following American cases: Allaire v. St. Luke's Hospital (3); Gorman v. Budlong (4); Nugent v. Brooklyn Heights Rly. Co. (5); Drobner v. Peters (6); Stanford v. St. Louis-San Francisco Rly. (7).

The only case to the contrary cited to us was Kine v. Zukerman (8). These were all cases under the common law and it must be admitted that the great weight of judicial opinion in the common law courts denies the right of a child when born to maintain an action for pre-natal injuries.

The rights of an unborn child under the civil law are based on two passages found in the Digest of Justinian, lib. 1, tit. 5, ss. 7 and 26, as follows:- 7. Qui in utero est, perinde ac si in rebus humanis esset, custoditur, quoties de commodis ipsius partas quaeritur.

(An unborn child is taken care of just as much as if it were in existence in any case in which the child's own advantage comes in question.) 26. Qui in utero sunt in toto paene jure civili intelliguntur in rerum natura esse.

(Unborn children are in almost every branch of the civil law re- Lamont J. garded as already existing.)

The Civil Code of Quebec makes provision for the appointment of a curator to the person or to the property of children conceived but not yet born. Arts. 337 and 338 C.C.

Art. 345 reads as follows:- The curator to a child conceived but not yet born, is bound to act for such child whenever its interests require it; he has until its birth the administration of the property which is to belong to it, and afterwards he is bound to render an account of such administration.

This article practically embodies the Roman Law rule first above quoted.

Art. 608 C.C. reads as follows:- 608. In order to inherit it is necessary to be civilly in existence at the moment when the succession devolves; thus, the following are incapable of inheriting:- 1. Persons who are not yet conceived;

Under this article the right to inherit is made to depend upon civil existence. A conceived but unborn child, therefore, is deemed to have civil existence if subsequently born viable.

. Articles 771 and 838 C.C. deal with gifts inter vivos and by will. The former article reads:- 771. The capacity to give or to receive inter vivos is to be considered relatively to the time of the gift. It must exist at each period, with the donor and with the donee, when the gift and the acceptance are effected by different acts.

It suffices that the donee be conceived at the time of the gift or when it takes effect in his favour, provided he be afterwards born viable. Article 838 C.C. contains a similar provision in respect of a conceived but unborn child taking a benefit under a will. It was contended by the Company that as the civil code by express provision had declared that the conceived but unborn child should possess the rights and capacities of a born child in respect of the matters mentioned in articles 608, 771 and 838 C.C., it limited by implication the cases in which a child en ventre would be deemed to be born to those expressly mentioned. On the other hand the respondent contended that the matters referred to in these articles, though specially dealt with in the civil code, are merely illustrative instances of the rule that an unborn child shall be deemed to be born whenever its interests require it, but that they in no way limit the meaning of article 345 C.C., which is general in its terms.

Lamont, J.

The Code Napol6on of France contains articles similar to articles 608 and 771 of the Quebec civil code. The French authorities may, therefore, be helpful in determining whether or not, under the civil law, the rule is of general application.

In Baudry-Lacantinerie et Houques-Fourcad6's Droit Civil Frangais, 3rd ed., tome 1, at page 270, the learned authors say:- 289. L'homme constitue une personne ds le moment mime de sa naissance. Jusque-11 il n'est pas une personne distincte, il n'est encore que pars viscerum matris. Pourtant, en droit romain, on consid6rait, par une fiction de droit, l'enfant simplement conCu comme n6, lorsque son int6r~t 1'exigeait.

Ce principe, admis aussi dans notre ancien droit, a t6 en ces termes:

infans conceptus pro nato habetur, quoties de commodis ejus agitur. Le code civil en consacre lui-mime plusieurs applications, qui prouvent qu'il a 6t0 maintenu dans toute sa g6ndralit6. In Aubry et Rau, Droit Civil Frangais, 4th ed., tome 1, par. 53, page 262, the author says:- Dans le sein de sa mire, I'enfant n'a point encore d'existence qui lui soit propre, ni par cons6quent, h vrai dire, de personnalit6. Mais, par une fiction des lois civiles, il est consid6r6 comme 6tant d6jh n6, en tant du moins que son intrit l'exige. En vertu dc cette fiction, I'enfant simplement convu jouit d'une capacit6 juridique provisoire, subordonnie, quant h ses effets d6finitifs, a sa naissance en vie et avec viabilit6. And in Mignault's Droit Civil Canadien, we find the following:- Une vieille maxime dit que 1'enfant conqu est d6j& r6put6 n6 toutes les fois qu'il s'agit de ses intdrats.

Then, after referring to the nomination of the curator under article 345 C.C., the learned author continues:- Il n'est pas n6cessaire de citer les cas qui nicessitent cette nomination. Elle se fait dans tous les cas oii l'int6rit de 1'enfant 1'exige. In determining the generality of the application of the fiction reference may also be made to the opinions expressed by certain English judges familiar with that law.

In Burnet v. Mann (1), Lord Chancellor Hardwicke The general rule is that they (unborn children) are considered in esse for their benefit not for their prejudice.

(1) (1748) 1 Ves. Sen. 156.

and in Wallis v. Hudson (1), the same judge, at page 116, stated that a child en ventre sa mere " was a person in rerum naturd." Then, after referring to the Statute of Distributions which he said was to be construed by the civil law, he proceeded as follows:- This statement as to the civil law was referred to with approval by Lord Atkinson in Villar v. Gilby (2).

See also Schofield v. Orrel Colber (3).

In Doe v. Clark (4), Butler J. used this language:- In many of the English cases in which effect was given to the rule of the civil law it was applied simply as a rule of construction by which the term " child " or " children " was held to include a child en ventre sa mare. But in Doe v. Lancashire (5), the question was not one of construction but of the revocation of a will by the birth of a child, and Gross J., at page 63, said:- These learned judges undoubtedly considered the fiction to be of general application.

To the Company's contention that an unborn child being merely a part of its mother had no separate existence and, therefore, could not maintain an action under article 1053 C.C., the answer, in my opinion, is that, although the child was not actually born at the time the Company by its fault created the conditions which brought about the deformity of its feet, yet, under the civil law, it is deemed to be so if for its advantage. Therefore when it was subsequently born alive and viable it was clothed with all the rights of action which it would have had if actually in existence at the date of the accident. The wrongful act of the Company produced its damage on the birth of the child and the right of action was then complete. The separate existence of an unborn child is recognized even at common law, for it is well established that if a person wrongfully causes injury to a child before its birth which results in death after it has been born alive, such person will be guilty of a criminal offence although the wrongful act was directed solely against the mother. Rex v. Senior (1); Russell on J. Crimes, 8th ed., vol. 1, page 622. It was, however, urged that there is no true analogy between crime and tort, as the punishment of crime is for the public benefit, while the remedy in tort is for private redress. While in some cases there may be no analigy yet there are, in my opinion, many cases in which crime and tort are merely different aspects of the same set of facts and in which there is so close an analogy that something more than the bare denial of it is necessary to carry conviction.

The wrongful act which constitutes the crime may constitute also a tort, and, if the law recognizes the separate existence of the unborn child sufficiently to punish the crime, it is difficult to see why it should not also recognize its separate existence for the purpose of redressing the tort.

If a child after birth has no right of action for pre-natal injuries, we have a wrong inflicted for which there is no remedy, for, although the father may be entitled to compensation for the loss he has incurred and the mother for what she has suffered, yet there is a residuum of injury for which compensation cannot be had save at the suit of the child. If a right of action be denied to the child it will be compelled, without any fault on its part, to go through life carrying the seal of another's fault and bearing a very heavy burden of infirmity and inconvenience without any compensation therefor. To my mind it is but natural justice that a child, if born alive and viable, should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother.

The argument that the Company's liability is founded in contract cannot, in my opinion, be maintained. This is not the case of a person not a party to the contract suing for a breach of it. The respondent does not seek to recover from the Company on the ground that it failed to perform its contract with the mother, but on the ground that it committed an independent tort against the child. The fault which constitutes a wrong to the child may also constitute a breach by the Company of its contract with the mother, but, under article 1053 C.C. the existence or nonexistence of the mother's contract is entirely irrelevant in tort.

There were two other matters to which our attention was J. called; the first was that cases similar to the present one must have arisen many times in the past, but that no decided case (or at most only one) has been found in which the child's right of action for pre-natal injuries has been maintained. The paucity of decided cases is far from conclusive, and may be largely accounted for by the inevitable difficulty or impossibility of establishing the existence of a causal relation between the fault complained of and the injury to the child. With the advance in medical science, however, that which may have been an insuperable difficulty in the past may now be found susceptible of legal proof.

The other matter to which we were asked to give serious consideration was the practical inconvenience and possible injustice to which the Company might be exposed if it were held that this right of action could be maintained. It was urged that to so hold would open wide the door to extravagance of testimony and lead, in all probability, to perjury and fraud. I am not apprehensive on this point for, although in certain cases special care will be required on the part of the judge in instructing the jury, I feel quite confident that the rules of evidence are adequate to require satisfactory proof of responsibility and that the determination of the relation of cause and effect will not involve the court in any greater difficulty than now exists in many of our cases.

For these reasons I am of opinion that the fiction of the civil law must be held to be of general application. The child will, therefore, be deemed to have been born at the time of the accident to the mother. Being an existing person in the eyes of the law it comes within the meaning of

" another " in article 1053 C.C. and is, therefore, entitled through its tutor to maintain the action.

Support for this view is, I think, furnished by the fact that none of the judges below cast any doubt upon the right of the respondent to sue. The point, it is true, does pot appear to have been raised in either court but I cannot think a point so important and outstanding would have been passed without comment had not the judges below been satisfied as to the existence of the right.

The next question is, whether there was evidence on sMont,

. which the jury could reasonably find the existence of a causal relation between the accident to the mother and the deformity of the child's feet.

The general principle in accordance with which in cases like the present the sufficiency of the evidence is to be determined was stated by Lord Chancellor Loreburn in Richard Evans & Co., Limited v. Astley (1), as follows:- There was undoubtedly evidence to go to the jury that the mother's accident was caused by the fault of the Company, -and the jury's finding on that point cannot be disturbed. That such fault caused the deformity of the child cannot, from the nature of things, be established by direct evidence. It may, however, be established by a presumption or inference drawn from facts proved to the satisfaction of the jury. These facts must be consistent one with the other and must furnish data from which the presumption can be reasonably drawn. It is not sufficient that the evidence affords material for a conjecture that the child's deformity may have been due to the consequences of the mother's accident. It must go further and be sufficient to justify a reasonable man in concluding, not as a mere guess or conjecture, but as a deduction from the evidence, that there is a reasonable probability that the deformity was due to such accident.

The distinction, I think, is well brought out by a comparison between two cases of the province of Quebec: Boilard v. Citg de Montr6al (2), and Montreal Tramways Company v. Mulhern (3).

In the Boilard case (1), the young child of the plaintiff had been compulsorily vaccinated in compliance with a city by-law. Shortly after the vaccination, the child's arm became paralysed and permanently useless.

Contending that the condition of the arm had been brought about as a result of the vaccination, the plaintiff, as tutrix, sued the Lamant, J. city in damages on behalf of the child. At the trial, three different theories were advanced by the medical experts. One was that it was a clear case of infantile paralysis in no possible way to be attributed to the vaccination. Another theory ascribed the cause either to infected vaccine or to infantile paralysis. The third theory was that the use of infected vaccine was the sole possible explanation of the condition of the arm. There was, however, no positive evidence of the fact that the vaccine was actually infected. The jury held the city responsible on the ground that the vaccine used was infected. The Court of King's Bench set aside the verdict. Sir Horace Archambault, then Chief Justice of the province of Quebec, delivering the judgment of the court, said:- Une chose est claire, au milieu de cette obscurit6, c'est qu'il s'agit ici d'une question d'opinion, et non d'une question de fait constant, positif. Aucun timoin n'est venu jurer positivement que le vaccin 6tait infect6. Tout ce que certains d'entre eux ont pu dire, c'est que le r6sultat produit tendrait & 6tablir, on ferait prisumer, que le vaccin 6tait infect6. Les jur6s n'ont done pu que d6cider entre les diverses opinions 6mises, et 6mettre eux-m~mes une opinion. Ce n'est pas la d6cision d'un fait; et les jurbs n'ont pas d'autre juridiction que de d~cider les questions de fait. Sans doute, il faut s'en rapporter A l'opinion de m6decins, d'experts, pour connaitre les effets, les cons6quences d'un accident.

Ainsi, une maladie nerveuse se d6clare h la suite d'un accident; les m6decins seront admis A prouver que cette maladie a 6t6 produite par l'accident. De m~me, on entendra des m6decins pour savoir si la maladie est permanante ou temporaire.

Mais, dans ces cas, 1'accident lui-mime doit d'abord 6tre prouv6, ainsi que la faute de la partie que l'on veut tenir responsable des dommages qui ont r6sult6 de l'accident. En d'autre termes, le fait g6n6rateur de la responsabilit6 doit tre 6tabli par t6moins, qui en attestent I'existence. Les cons6quences de ce fait peuvent ensuite tre 6tablies par des experts.

In the Mulhern case (2), the question was whether the respondent had established that the death of her husband was due to the bodily injuries sustained by him in a collision several months previous to his death and which, at first, did not appear to be serious. The autopsy had shewn that the death was due to " thrombosis of the coronary (1) (1914) R.L.n.s. 58.

(2) (1917) Q.R. 26 K.B. 456. artery."

The question was whether the thrombosis had been caused by the accident. Three doctors testified that, in their opinion, the accident had either caused or aggravated the condition of the deceased. Other doctors, while ' admitting that possibility, said that it was not the cause Lamont J. in the particular circumstances. Yet another one declared that it was a scientific impossibility for the thrombosis to have been the result of the accident.

The jury found in favour of the plaintiff. The case came before the Court of King's Bench, in Quebec, which included four of the five judges who had sat in the Boilard case (1).

The court held that the finding of the jury should not be interfered with. It distinguished Boilard v. City of Montreal (1), as appears by the head-note:- In a jury trial where damages are claimed for (an accident), a verdict cannot be founded only on medical controverted opinions, but the case is different where the medical evidence is supported by a proof of non contested facts. The jurors may then render their verdict by appreciating the facts and opinion of medical men, which they have before them.

An affirmative verdict can be rendered upon facts and probabilities only if they establish presumptions; and if these presumptions are strong enough to bring about a reasonable conviction in the mind of a jury, the Court should not interfere.

Mr. Justice Carroll delivered the judgment of the court, and, referring to the Boilard case (1) (page 459) (2), he Dans cette dernibre cause, il s'agissait d'un enfant qui avait t6 vaccin6 et qui, h la suite de l'op~ration, avait perdu l'usage du bras vaccin6. Le jury avait d~clar6 que le vaccin 6tait infect6, mais cette r6ponse ne rdsultait pas des faits prouvis, elle r6sultait seulement d'opinions th6oriques controvers6es entre les m6decins entendus comme t6moins. Ici (meaning in the Mulhern case), nous avons bien des th6ories contradictoires, mais nous avons aussi des faits non contestis.

Le d6funt, avant cet accident, jouissait d'une bonne sant6 et n'avait manifest6 aucun sympt6me de la maladie dont il est mort. II s'est plaint imm6diatement apris l'accident de douleurs dans la r~gion du coeur. Les t6moins que Font connu nous disent qu'il n'6tait plus le mime homme d'affaires averti, consciencieux et travailleur, I'accident en a fait une ruine physique. Les jur~s pouvaient-ils, eu 6gard A, ces faits prouv6s devant eux, conclure que I'accident avait ou d6termin6 ou acc6l6r6 la mort? Sans doute que l'autopsie a riv6l6 des 16sions au coeur, plus anciennes que celles qu'auraient caus6es I'accident, mais si l'accident a fait 6voluer plus rapidement la maladie et abrig6 la vie de Holman, la compagnie est responsable. Les faits qui ont 6t tablis devant les jurds produisent des probabilitis, et cette cause ne peut Stre d~cid6 que sur des prisomptions bas6es sur ces probabilit6s. Si les pr6somptions ainsi cr66es sont assez fortes pour produire une conviction raisonnable chez douze jurds, est-ce qu'une cour doit intervenir?

Je ne le crois pas.

(2) (1917) Q.R. 26 K.B. 456. (1) R.L.ns. 58.

The judgment was affirmed by this court (1).

In Jones v. G.W. Rly. Co. (2), the House of Lords had to consider whether there was evidence on which a jury could properly find negligence on the part of the defendant's servants which caused or contributed to the death of the husband of the first plaintiff. In stating the principles which should govern in such a case, Lord MacMillan, at page 45, said:

An instance of a case where this court "bridged the hiatus " is that of Shawinigan Engineering Co. v. Naud (3). It is sufficient to refer to the judgment of the court (Duff, Mignault, Newcombe, Rinfret and Smith JJ.), more particularly to the passage from the foot of page 344 to the end of page 345, to realize how strikingly similar the problem of the relation of cause and effect happened to be both in that case and in the present case.

By article 1242 C.C. presumptions not established by law are left to the discretion and judgment of the court. The corresponding article in the Code Napoleon (art. 1353) is to the same effect but with the limitation that the court will admit only such presumptions as are " graves, pr6cises et concordantes," by which is meant presumptions in which the connection between the facts established in evidence and the fact to be proved is such that the existence of the known facts establishes by inference or deduction the fact in dispute.

Article 1242 of the Quebec Civil Code does not contain the limitation of the Code Napol6on but as a presumption to be admitted as legal proof is necessarily a deduction from proven facts, there is, perhaps, but little if any difference between the meaning to be ascribed to the two articles. See the Montreal Rolling Mills v. Corcoran (1).

In the present case there was evidence from which the jury could find that the mother fell on her stomach and that the fall produced ecchymosis on the right side thereof; J. that, after the accident, she suffered abnormal pains in her abdomen which continued until after her confinement, and for the first time she had a leakage of fluid from the uterus which, though slight and intermittent, continued until the birth of the child. These leakages Dr. Benoit, the family physician, explained as coming from the amniotic fluid. The doctor's view was that the three membranes of the sac had been slightly fissured, sufficiently to permit the fluid to slowly filter through, but not sufficiently to bring about a premature confinement.

The jury had also before them the further testimony of Dr. Benoit, who was present at the confinement, and who stated that in delivering the mother he had to break the sac-that the water therein had partly escaped and " l'accouchement a 6t6 presque a sec."

He examined the child immediately after its birth and found that each foot was bent inwards. Witnesses also testified that the child was born with a black mark on its heel. There was also evidence that no members on either side of the family had ever had club feet; that Madame LIveill6's first child had been perfect in health and form; that her carriage of Jeanine had been normal and that up to the 25th of March, 1929, she had not suffered any accident or fright. This evidence was uncontradicted. It was, therefore, for the jury to determine, in the light of that evidence and the medical testimony, whether a causal relation existed between Madame LIveill6's fall and the child's club feet.

Nine medical witnesses were examined at the trial, three testifying for the respondent and six for the appellant. For the respondent Dr. Langevin, a gynaecologist and obstetrician professor at the University of Montreal, testified that in its mother's womb the child's members were in a flexed position and their malformation would be promoted by the absence of liquid in the uterine cavity which would cause the walls thereof to contract and the flexing to increase. He further said that in the last months of pregnancy, particularly from the seventh to the ninth month, the calcification of a child's bones greatly increases;

that during this period it requires twenty-two times more lime than during the first months, and that with the extra pressure caused by the contraction of the uterine cavity LVEIL. the chances of the bones calcifying in their flexed position become greater.

He also said that when the pressure is found in the uterine cavity the probability is that a deformity will Tesult. Dr. Langevin's conclusion was that while club feet may result from various causes, the only satisfactory explanation, in the circumstances of this case, was that the deformity resulted as a consequence of the mother's fall. In fact he said that scientifically there was no other explanation.

Dr. Letondal, professor of children's clinic of the faculty of medicine, and specialist in children's diseases, testified to the same effect as Dr. Langevin.

He admitted that his conclusion was simply a theory incapable of scientific demonstration but he expressed the opinion that it was the most probable theory and there was no other that he could suggest.

Dr. Benoit also testified as follows:- Q.

Q.

On the other hand the medical witnesses called on behalf of the appellant stated that the cause of club feet in children is not known to the medical profession.

They did not agree with the conclusion reached by the respondent's witnesses, some because they thought that if there had been a rupture of the uterine cavity sufficient to permit leakage from the amiotic sac it would have produced a premature confinement. Others thought the fall of the mother would not cause club feet in the child she was carrying at the time, and one added: that at seven months the feet of a child have become so ossified that a fall which would injure them would be likely to break the bones. The testimony given by these witnesses was largely of a nega- J. tive character and they could not suggest any reasonable hypothesis to account for the deformity.

Does the evidence in this case take us beyond the region of pure conjecture and into the domain of reasonable inference? It was contended on behalf of the Company that, even if the accident to the mother was the result of the Company's fault, there was no evidence whatever to connect the deformity of the child's feet with the mother's accident; that it was just as reasonable to attribute the club feet to an unknown cause as to attribute it to the consequences of the mother's fall. I do not think this is so. Ascribing the club feet to an unknown cause does not eliminate uterine contraction as a probable cause. The Company's medical witnesses by saying that they do not know the cause of club feet do not negative the testimony of those who find uterine contraction a very probable cause. In this case the cause which produced club feet cannot be demonstrated to a certainty and the law does not require that it should be. It is simply a question of drawing an inference. Three medical witnesses for the respondent gave it as their opinion that the contraction caused by the escape of amiotic fluid was not only sufficient to account for the deformity in this case but that they could see no other probable cause. The jury were entitled to accept the conclusion of these witnesses and to infer from the whole evidence the existence of a causal relation.

The argument advanced on behalf of the Company in this case was advanced in the case of Craig v. Glasgow Corporation (1).

In that case a farmer was found lying beside the track of a tramway company with his head so badly injured that he had no recollection of what had taken place. He remembered that he had been driving two cows along the track, but had no recollection of having seen the tram car. The questions were whether he had been struck by the car and, if so, could it reasonably be inferred that the accident was due to the negligence of the company's driver? The driver testified that he would have been proceeding more slowly if he had seen the man and the cows. He did not see the man at all, nor did he see the cows until TRAYS he was within three feet of them. The Lord Ordinary found that the man had been knocked down by the car as a consequence of the driver's failure to keep a proper lookout. This judgment was reversed on appeal but was restored by the House of Lords.

In his judgment in the

House of Lords Lord Findley, at page 9, said:- The data furnished by the evidence which the jury accepted and from which they deduced a presumption of causal relation, were, in my opinion, more convincing in the case before us than those found in the following cases in which the inferences drawn by the jury were upheld.

McArthur v. Dominion Cartridge Company (1); Jones v.

G.W. Rly. Co. (2); Grand Trunk Rly. Co. v. Griffith (3).

I am, therefore, of opinion that the evidence here does take us beyond the realm of conjecture and into the domain of reasonable inference, in which case it was for the jury to say if the evidence produced in their minds a conviction that it was reasonably probable that the deformity of the child resulted as a consequence of its mother's injury. They, having said it was, their verdict should not be disturbed.

The only other question is as to the sufficiency of the charge of the trial judge. Several objections were taken to the charge but the only one requiring consideration is that the judge misdirected the jury in respect of the law applicable -to presumptions. The chief objection was that he failed to instruct the jury that a presumption was admissible as legal proof only when it was " grave, pr6cise et concordante " or " weighty and serious "; that instead he instructed them that they were entitled to accept presumptions that rendered only simply probable or likely the existence of a causal relation between the deformity of the child and the accident to the mother. As required in the case of mixed juries the judge charged them in both the French and English languages.

The following passages TRAmWAYS were referred to as errors in law:

wrreerdtasembodying err nlw

Quand on examine les faits dans cette cause, ceux qui rendent mime simplement probable le r6sultat, c'est que 1'accident rend probable que Lamont J. les pieds bots soit la cons6quence de la chute.

It is left to your discretion to find out and decide whether from all the circumstances there is sufficient for you to presume to create in your minds a likely presumption that the injury was caused as a direct result of the accident.

In this case you could not have direct proof. You must go by inference or presumption.

More often the contested point is not demonstrated, but is simply rendered possible, vraisemblable to a more or less degree.

In this latter passage I take it the learned judge having used the word "possible," immediately substituted therefor, the word "vraisemblable," for he has not elsewhere instructed the jury that the mere possibility of a causal relation was sufficient.

In support of his instructions the trial judge quoted to the jury the following passages dealing with presumptions of fact from well known French authors.

Planiol-9th ed., no. 36:

la preuve proprement dite, directe et absolue n'existe presque jamais; le plus souvent il n'y a que des prisomptions qui pourront non pas d6montrer mais simplement rendre la chose probable h un degr6 plus ou moins fort.

Marcadg-vol. 5, art. 1353 C. N.:

Cette disposition de la loi est de la plus haute importance; elle est 1'une de celles qu'il faut se graver profond6ment dans l'exprit, pour ne les jamais perdre de vue.

Sa port6e est, en effet, immense puisqu'elle 6rige en preuves l6gales pour tous les cas le t6moignage est admissible, les simples conjectures du magistrat, les simples probabilitis que les d6positions des t6moins ou les diverses circonstances de la cause peuvent faire naitre dans son esprit. Does the law as stated by these authorities differ from that laid down in the above mentioned cases? In my opinion there is practically no difference for, under either the French or English jurisprudence, the presumptions or inferences to be receivable as proof must be a deduction from established facts which produces a reasonable conviction in the mind that the allegation of which proof is required is probably true. That conviction may vary in degree between " practical certainty " and " reasonable probability " or, as Planiol puts it, may render " la chose probable h un degr6 plus ou moins fort."

In the Jones case (1) Lord MacMillan points out that a conjecture is of no legal value " for its essence is that of a guess," while Marcad6 would accept as proof " les simples conjectures du magistrat." In my opinion these are not inconsistent views for as I read Marcad6 he was not using

LVEILL the word conjecture" in the sense of "guess."

In Littr--Dictionnaire de la Langue Frangaise, the first meaning given for " conjecture " is " opinion 6tablie sur des probabilitis"; and in Larousse pour tous, the meaning given is: " prisomption, supposition, opinion fondge sur des probabilit6s." This appears to me to be the sense in which Marcad6 used the word " conjecture." It, therefore, is simply a conviction founded on probabilities.

For all practical purposes I see no reason why the principle stated by Lord MacMillan in the Jones case (1) is not just as applicable to Quebec law as to English law. The objection, therefore, that the trial judge misdirected the jury in the observations referred to cannot be maintained.

The question, however, is whether he instructed the jury sufficiently? In a case such as this it is, in my opinion, essential that the judge should instruct the jury that the presumption which they are entitled to admit as proof must not be a mere guess on their part, but must be a reasonable deduction from such facts as they shall find to be established by the evidence. The learned trial judge did not in so many words give the jury this instruction but

I think, in effect, he conveyed it to their minds. He called their attention to the uncontradicted evidence of the respondent's witnesses-to the reasoning and conclusions drawn from that evidence by Dr. Langevin, and then he

Dr. Langevin had stated the inferences which he drew and the reasons why he drew them. In leaving it to the jury to say if they drew the same inferences the trial judge was practically instructing them that the presumption to be admitted as proof must be a deduction and not a guess.

After considering the charge as a whole I agree with the majority of the court below that there was nothing in the charge to mislead the jury.

I would dismiss the appeal with costs.

J.-Le demandeur, en sa qualit6 de tuteur h sa fille Jeannine, n6e le 25 mai 1929, r~clame les dommages soufferts par cette enfant, venue au monde avec des pieds bots, et poursuit la d6fenderesse parce que la n6gligence d'un de ses pr6pos6s, en causant la chute, le 25 mars 1929, de la mare de 1'enfant, alors enceinte de sept mois, serait la cause de cette infirmit6 dont l'enfant souffre pr6judice depuis sa naissance. La faute de la compagnie a 6t affirm6e par le jury et n'a pas t6 mise en doute devant nous. Trois points seulement sont soulev6s, dont le premier n'a pas t6 invoqu6 devant les autres juridictions:

Il est a remarquer que devant la Cour Sup6rieure et devant la Cour du Banc du Roi l'on n'a pas soulev6 le point qui nous a 6t6 soumis quantA 1'existence du droit d'action dans les circonstances r6vilies en d6tail dans les notes de mon colligue, l'honorable juge Lamont.

Apris avoir examin6 avec soin les raisons que 'on a fait valoir de part et d'autre, il me semble qu'il n'est pas n6cessaire en 1'esphce de discuter les droits de l'enfant dans le sein de sa mare, entre sa conception et sa naissance. L'action en responsabilite, et partant la possibilit6 de 1'exercer devant la juridiction comp6tente, nait, en principe, du jour oil la victime a subi le dommage; et une faute ne suffit pas pour agir. Le pr6judice est 'un des trois 616ments essentiels de la responsabilit6.

Sans lui, pas d'action en responsabilite possible. Quelle r6paration pourrait r6clamer un demandeur s'il n'avait subi encore aucun dommage? Si, en principe, le demandeur ne peut agir dis l'instant oi la faute a 6t6 commise mais seulement h 1'instant oi cette faute lui a caus6 un dommage, il me semble que le droit A r6paration de Jeannine Liveill6 n'a commenc6 h exister qu'apris sa naissance, lorsque l'infirmit6 corporelle dont J. elle souffre s'est r6v616e. Avant cette date, aussi longtemps qu'elle 6tait dans le sein de sa mere, il est 6vident qu'elle ne souffrait aucun dommage, aucun inconvenient et aucun pr6judice. Aucune action en responsabilit6 n'6tait ouverte. Ce n'est que lorsque le pr6judice certain a t6 souffert que ses droits ont t6 l6s6s, qu'elle est devenue une victime ayant des droits h r6paration. C'est de ce moment, apris sa naissance, que son droit a commenc6.

On peut dire que son droit est n6 en mime temps qu'elle. Elle pouvait donc, assist6e de son tuteur, intenter la pr6sente action pour essayer de d6montrer que le prejudice dont elle souffre a 6t caus6 antirieurement A sa naissance par la faute de la d~fenderesse et de son employ6.

Il n'est pas n6cessaire de discuter la maxime: "Infans conceptus pro nato habetur quoties de commodis ejus agitur," ni 1'application des articles 345, 608, 771, 838 et 945 du Code civil. Il ne s'agit pas d'un droit que l'enfant avait d~s sa conception, mais d'un droit h r6paration qui a commenc6 A sa naissance.

Le demandeur &s-qualit6 avait h 6tablir en fait que la chute de la mbre, deux mois avant la naissance de 1'enfant, a caus6 l'infirmit6 de cette dernibre, c'est-h-dire 6tablir un lien de causalit6 entre la faute et le pr6judice.

Si le pr&judice est la cons6quence de 1'acte illicite, 1'auteur du quasid6lit doit rdparer, m~me si cette consiquence 6tait impr6visible au moment de la faute.

La Cour de cassation, en France, pose en principe que l'appr6ciation du rapport de causalit6 est une question de fait; mais nous pourrions intervenir et mettre de c~t6 la d6cision du fait par le jury si nous en arrivions A la conclusion qu'elle est d6raisonnable.

Dans l'espice, la faute n'aurait atteint la victime qui se plaint devant nous que par ricochet.

Sans doute, peut-on dire que l'analyse du lien de causalit6 ne n6cessite pas une distinction entre les causes prochaines et les causes lointaines; toutes sont 6quivalentes au point de vue de la responsabilit6. Mais devonsnous dire que les principes de la causalit6 conduisent A ordonner la r6paration de dommages indirects?

Je ne le crois pas; car dans la s6rie des pr6judices, il y a un moment Cannon J. o~i nul ne peut plus affirmer avec certitude que sans la faute le dommage ne se serait pas produit. A partir de ce moment, l'existence du lien de causalit6 n'est plus 6tablie; la faute initiale ne peut done plus 6tre tenue comme cause du pr6judice.

Comme le disent MM. Henri et L6on Mazeaud, dans leur Traitg de Responsabilit Civile, 1931, no. 1673, * * * 1'auteur de la faute initiale ne rdpond dans la chaine des pr6judices que de ceux qui sont la cons6quence certaine, n6cessaire de son acte.

L'expression de "dommage n~cessaire ", ou de "suite n~cessaire ", qu'employait ddji Pothier, est pr6f6rable A celle de "dommage direct" ou de "suite imm6diate"; elle marque plus exactement la nature du lien de causalit6 qui est exig4 et le point oji s'arrite le responsabilit6 du difendeur. Elle ne laisse pas en effet supposer que seul le premier pr&judice doit Stre r6par6: le deuxibme, le troisibme, le quatribme, etc., sont susceptibles d'engager la responsabilit6 de 1'auteur de la faute initiale: il en est ainsi chaque fois qu'ils ont un lien certain de causalit6 avee cette faute; mais, plus ils s'6loignent dans la chaine des cons6quences, plus la certitude diminue.

Ces mimes auteurs soulignent le fait que la jurisprudence en France, avec raison, ne voit dans la nicessit6 d'un pr6judice direct que 1'application du principe d'apris lequel la relation de cause h effet doit exister avec certitude entre la faute et le dommage.

Dis que cette relation existe, le pr6judice doit 6tre r6par6, si lointain soit-il; et cela montre assez que les expressions " dommage indirect" et "suite immidiate" exprimaient fort mal l'id6e gindrale qu'elles recouvrent. II n'est pas question de proximit6 dans le temps ou dans d'espace, mais seulement de l'existence d'un lien de causalit6.

Dans la cause actuelle, avons-nous r6unis les trois 616ments de la responsabilit6: pr6judice, faute, rapport de causalit6, de fagon a 6tablir un lien de droit entre la victime du pr6judice et l'auteur de la faute?

Ici, 1'on a dGi n6cessairement, pour 6tablir ce rapport de causalit6, avoir recours aux pr6somptions d6coulant des circonstances prouv6es: chute de la mire, sympt6mes anormaux avant et pendant la naissance, qui ne s'6taient pas produits chez elle auparavant; marques de l'enfant; constations du m6decin traitant et t6moignages m6dicaux. Les pr6somptions que le jury a tir6es des faits l6galement 6tablis devant lui sont, en principe, suffisantes dans le procks en responsabilit6. Le juge du fait est souverain quant h leur appriciation (arts 474-475 C.P.C.); mais il a le devoir de conscience de n'admettre que des pr6somptions graves, pr6cises et concordantes.

II faut donc, dans chaque espice, LV. scruter les faits invoqus par le demandeur en responsa- L bilit6 pour 6tablir la faute, le dommage et le lien de cause h effet; et une fois que le juge de premibre instance, assist6 d'un jury, a constat6 les faits, a 6tabli cette relation comme certaine et non probl6matique, un tribunal d'appel ne peut, en vertu du code de proc6dure civile, intervenir que si le verdict est contraire au poids de la preuve; et Particle 501

C.C. nous dit que le ou, suivant P'article 508 C.C., un jugement different peut

6tre rendu

La Cour du Banc du Roi a refus6 d'en venir h cette conclusion; et je ne vois aucune raison valable pour mettre de c6t6 cette d6cision. Les conclusions des docteurs Langevin et Letondal h 1'effet que les circonstances de cette cause indiquaient cornme seule explication satisfaisante, que la chute de la mbre et ses cons6quences avaient amen6 la difformit6 de son enfant, ont 6t6 accepties par le jury. Est-ce un verdict d6raisonnable?

Il n'aurait peut-6tre pas

& celui d'un jury de m6decins ou de sp~cialistes; mais il a regu l'approbation du tribunal choisi et d6sign6 par le loi pour decider souverainement du fait suivant sa conscience;

et rien au dossier ne d6montre que ce tribunal a err6.

Le verdict du jury ne riglera pas la controverse m6dicale engag~e devant lui. Mais la loi ne peut attendre que les m6decins soient unanimes pour d6cider la question de fait soulevie en cette cause. L'on n'a pas 6tabli que 1'infirmit6 de l'enfant provenait d'une autre cause que 1'accident caus6

A sa mare pendant la p6riode de gestation par la faute maintenant admise du pr6pos6 de la d6fenderesse. Je ne crois pas qu'en pr6sence d'un verdict du jury, approuv6 par le juge de premibre instance et par le tribunal d'appel, nous puissions, sur une question de fait, mettre de c8t6 ces jugements concordants, h moins que l'on puisse nous indiquer une erreur manifeste qu'il serait de notre devoir de corriger. On ne 1'a pas fait.

Comme dans Shawinigan Engineering Co. v. Naud (1), le fait que les m6decins de la compagnie, tout en soutenant LEEL- que l'infirmit6 de l'intim6e n'est pas le r6sultat de la chute J. de la mire, se d6clarent incapables d'en d6couvrir une autre cause, affaiblit la valeur probante de leur opinion, et 1'affirmation contraire me parait mieux s'accorder avec l'enchainement logique des circonstances et la succession des symptimes qui se sont manifest6s. Ces circonstances et ces symptimes sont suffisamment graves, pr6cis et concordants pour nous permettre de d6cider que l'intim6e a fait la preuve qui lui incombait, de la relation entre Pinfirmit6 dont elle souffre et l'accident que sa mire a subi par suite de la n6gligence de 1'appelante.

Quant au troisibme point, je crois, comme mon colligue, l'honorable juge Lamont, et pour les mimes raisons, que le juge avait suffisamment indiqu6 au jury les r~gles A suivre pour tirer des d6ductions des faits 6tablis devant lui. Je crois done que l'appel devrait 6tre renvoye avec d6pens.

J. (dissenting).-The respondent sues on behalf of his infant child for injuries alleged to have been sustained by the child by reason of the mother having fallen in alighting from the appellant's car at a time when she was seven months pregnant of the child. The child was born two months later, with club feet. The allegation is that the club feet were the result of the fall, which the jury has found was caused by the appellant's negligence. The first question to be determined upon the appeal is whether or not any action lies on behalf of the child. My brother Lamont has reviewed authorities on this point at length, and concludes that the great weight of judicial opinion in the common law courts denies the right of a child, when born, to maintain an action for prenatal injuries, but that such right of action exists under the Civil Code of Quebec.

In my view, the provisions of the Civil Code in reference to appointment of curators to unborn children or as to the right of such children to inherit or take, by gift or will, do not help to distinguish the law under this code from the common law, as all these rights exist also under the common law, and are entirely different in character Smith J. from the right of action in tort set up in this case.

It seems to me that in the various citations made by my brother Lamont as to the civil law, the reference is to rights concerning property, and not to rights such as here claimed.

Neither under the common law nor under the

Civil Code of Quebec does the law on this point seem to have been definitely settled by authority; but, while admitting that the point is a doubtful one, my view is that the action does not lie.

I am further of opinion that, having regard to the scientific problem involved, there was not evidence upon which the jury could reasonably find as a fact that the child's club feet resulted from the injury to the mother.

The medical evidence offered by the respondent to shew that the deformity of the child's feet resulted from the accident is that of Doctors Langevin, Letondal and Benoit.

The two latter do not pretend to have formed any independent opinion of their own. Dr. Letondal says:

Dr. Benoit attended the mother from the time of the accident until after the birth of the child, two months later, and says:

It may be noted here that he learned of no causes from

Dr. Langevin except the one, as that witness mentioned no others. These two doctors therefore add nothing to the testimony of Dr. Langevin, but merely accept what he says, but both, on the strength of what Dr. Langevin has said, proceed to confirm his opinion.

Dr. Langevin is a " gynicologiste," and " m6decin en chef de la Maternitg," professor at the University of Montreal, and has charge of the obstetrical course. He is asked if there is a relation between the accident and the club feet of the child, and answers:- Smith J.

C'est une possibilit6. D'ailleurs, dans l'analyse du processus psychologique, ce qu'il faut se rappeler, c'est que naturellement I'enfant a les membres fl~chis dans la cavit6 ut6rine. Deux causes peuvent favoriser surtout la difformation des membres normalement, I'absence de liquide dans la cavit6 de l'utbrus venant contracter l'enfant, le fl6chissement s'accentue.

Then the following question is asked:- Q. Docteur, au cas oa vous auries un enfant, et la preuve d~montre ceci que la femme 6tait parfaitement bien jusqu'au moment oa elle est tomb6e sur le ventre alors qu'elle portait depuis sept mois, qu'elle est arriv6e chez elle imm6diatement apris 8tre tomb6e presque sans connaissance, et qu'elle s'est sentie imm6diatement des douleurs dans l'abdomen, qu'en arrivant chez elle sa mhre a constat6 que ses habits 6taient souillis, qu'il y avait des marques rouges; que depuis elle a continu6 de perdre un peu et de tacher son linge jusqu'au moment de l'accouchement et que ces pertes qui arrivaient chez elle c'6tait des eaux et que . part de cela elle 6tait parfaitement bien; et maintenant j'ajouterai, par la preuve que nous allons faire, que l'accouchement s'est fait comme 1'on dit, A peu pris A see; et que l'enfant, A6 sa naissance, portait des marques noires, comme des contusions A 1'endroit ou ce traumatisme ce serait produit A 'extirieur; ces faits 6tant donn6s, dites-moi donc, docteur, si vous trouvez qu'il y a relation entre l'accident et puis 1'6tat de l'enfant A sa naissance. -R. Je le crois.

Asked if there might be any other cause, he answers:- II peut y avoir un nombre de causes, mais du moment qu'il y aurait eu pression dans la cavit6 ut6rine il est probable qu'il y a eu difformation. peut y avoir d'autres causes que cet accident, mais cet accident, dans le moment, qui s'est produit, par suite du traumatisme, peut expliquer le cas.

The doctor is not a specialist on club feet, and does not pretend to have made any special study on their cause. He says there may be many causes, but tells us nothing of what these other causes are, or of what medical science has discovered about the causes that lead to club feet.

Dr. Letondal, one of the respondent's witnesses, says that it is not exactly known in medicine what leads to club feet and, so far as he is concerned, it is not determined what is the cause of club feet.

According to the last answer of Dr. Langevin, quoted, if the mother was well before the accident, and not well after it, it is a satisfactory conclusion to say that any defect in the child when born is the result of the accident.

One of the basic facts submitted in the question is that the child, at its birth, carried black marks like contusions at the place where this " traumatisme " would be produced at the exterior. The only evidence of any marks on the exterior of the woman's body after the accident is that given by her mother, Justine Therrien. She is asked:- The injured woman gave evidence, and makes no mention of any marks; and Dr. Benoit, who was called in to see her the next day, and presumably examined her, although he does not say so, makes no mention of any such marks.

When the child was born, Madame Beaulieu, a sister of the injured woman and an attendant at childbirth, discovered that the child had club feet, and called the doctor's attention to it; and then the mother and the doctor examined the child; and all three gave evidence as to what they saw. Madame Beaulieu says:- The mother of the child says:- Dr. Benoit examined the child, and found that it had club feet but says not a word about marks, either black or blue, on the back or on the feet. I have quoted every word of evidence that there is in reference to marks on the mother and on the child, and, as will be seen, there is nothing connecting these blue marks on the feet, or these black marks en arribre (perhaps meaning on the back of the feet-that is, on the heels-with the petit peu red marks on the body of the mother referred to in the evidence of Justine Therrien quoted, either as to position or otherwise.

The marks mentioned in the question are black marks, and the only black marks mentioned in the evidence are those en arribre.

One of these facts, therefore, upon which Dr. Langevin's theory is built, is not established by evidence.

Another of the basic facts, submitted in the question, is that on arriving home, the mother of the injured woman discovered that her clothes were soiled, that from that time she continued to lose a little, and to stain her linen, up o the moment of the birth; and that this loss, which' happened with her, was of water; that is, fluid. In addition to what is stated in the question, Dr. Langevin states, J. that he has heard the evidence giving the description of the symptoms which were present in consequence of the accident.

The description, as given in the evidence, is entirely different from what is stated in the question. As to the loss of fluid, the mother of the child says she had no loss up to the time of the accident, and, being asked if she had any such loss immediately after, answers that she cannot tell, as she was too nervous, and that they might ask Dr. Benoit. Two months passed from the date of the accident until the birth, during which time these alleged losses continued, saturating the woman's clothes; but she says not a word about it.

There is the evidence of Justine Therrien, mother of the child's mother, who undressed her on her arrival home after the accident, and who says she discovered that the patient was wetted, that she was very nervous, and had a headache. Asked if these losses of fluid lasted a long time, she answers: " Non, monsieur, pas trop longtemps." Then asked if she remarked, following this, losses of fluid, she answers, " Plusieurs jours." To the question, " Elle 6gouttait?" she responded, " Oui, monsieur."

Next we have the evidence of Madame Beaulieu, already mentioned.

She saw her sister the second day after the accident. She saw fluid on her sister's clothes and her linen soiled, and this condition continued; and at the birth there was no fluid at all. She is asked if, before the birth, her sister " 6tait avec un gros ventre?" to which she replied, " Pas du tout." She is asked if this was due to the loss of fluid, and answers that, before the accident her sister was very big, but after, this diminished. She was so big before the accident as not to be able to button her coat, and after the accident " ca tout diminu6."

At the birth, she says, there was no fluid at all, that it was " un accouchement h see, dans le sang."

Dr. Benoit, who was called in to see the patient the day after the accident, and who attended her regularly, as he says, for the following two months, is asked if he discovered that she lost fluid, and answers, " I did not discover it myself." Asked if the patient spoke to him on the subject, he says, " Frankly, I do not remember that." He says not a word about the bigness of the patient having diminished; and this sister of the child's mother, who went to see her every day, and who must have come in contact ,with the doctor very frequently, never mentioned either the loss .of fluid that she was observing nor the diminution of bigness to the doctor; and the doctor himself never heard of these conditions until some time after the birth, never was told of them by anybody; but he does say that he observed at the time of the birth that there was very little fluid.

He builds up, however, in his own mind a theory and says the fluid flowed away gradually by an opening very slight, and even, he believes, that it was some membranes of the sac which were torn. There are three of them, and he believes that one of the membranes had an opening lengthwise in one tissue and probably there was also an opening a little further away; and the fluid would run like that between the membranes, but the sac was not much open. Then he says that this is an anomaly, on which he would not rely if there had been no accident.

It will be noticed that all this is not founded on anything that he observed. He never knew, until the birth, that there was any loss of fluid; he then discovered, he says, that there was very little fluid, which did not even draw from.him a remark about its loss at the time, nor a little later, when he discovered the club feet. If he had thought at the time that the small quantity of fluid had -anything to do with the club feet, surely he would not have left all this theory about small openings in different plies of the walls of the sac to conjecture afterwards; but would have examined the sac there and then, when it was before him, to ascertain if there was any rupture at all. This was the sure method of determining the fact, but, instead of adopting this very obvious method, he waits until he gets into the witness box, and then propounds a conjecture about it, which has no basis whatever in fact, and which is entirely improbable. If a blow from the outside tore these membranes, why should it tear only one ply at one place, and another ply -at some distance off?

The doctor was not accepting the evidence of this sister of the patient, because, on his theory, there could have been no diminution of the bigness from the time of the accident. ,VE.

If such a thing occurred, it could only occur gradually, in accordance with the gradual loss that the doctor speaks of, J. and would be most significant at the time of the birth; and at that time the doctor noticed nothing of the kind. What, then, under all these circumstances, was the state of fact upon which Dr. Langevin's answer is based? He heard the evidence of the three women; then he heard what was stated in the question. We have it in evidence by Drs. Gray and Dub6, called for the defence, that if there had been a loss of fluid as described, causing the pressure assumed, there would have been a miscarriage, and matters could not have gone on for two months, to the completion of the birth in the natural way in the natural time.

The conditions spoken of did not hasten the birth by a day, the child was born without any complications, and in perfect health.

Did Dr. Langevin, in his answer, assume that there was such a great loss of fluid that the largeness disappeared almost immediately after the accident, and brought about the pressure that he speaks of from that time? If he did, he is not basing his answer upon what is stated in the question, as he was bound to do. If he did not accept that as the condition, but accepted the statement in the question as indicating a gradual loss of fluid, then when does he think the pressure that he relies on commenced? It must have been, on that view of the case, a very considerable time, probably at least a month, before pressure, to any practical extent, would commence. The doctor's theory, of course, is utterly denied by a number of doctors as prominent as himself, called by the defence; but if the doctor's opinion, under the circumstances mentioned, is sufficient evidence to sustain a verdict, it is useless to place the contrary opinion of other doctors against his, because it is the province of the jury to decide as to the weight to be attached to a number of conflicting opinions; and, in order to discard Dr. Langevin's evidence, and the verdict founded on it, one must go further. As already stated, Dr. Langevin is not a specialist in the matter of club feet. His specialty in obstetrics has no more to do with club feet than it has to do with insanity. If this child had been born an idiot, Dr. Langevin could just as well have said that he believed it was caused by pressure on the skull, and, knowing no other reason, he would consider that one sufficient. He does not pretend to have formed his opinion on anything of the kind that he had observed in his own experience, does not pretend that he had made any special study as to the causes of club feet, or that he formed his opinion on anything that he learned from medical science. He does not say that.he ever heard of such a case.

What force or probability, then, is there in Dr. Langevin's opinion?

As already stated, it is not based on anything that he has observed, on any study of the matter that he has made, or on anything that has been discovered by medical science.

Such an opinion, to be worth anything, must be based on a definite state of facts of which there is evidence, and here it is impossible to tell what particular state of facts he had in mind as the basis of his opinion. Did he, from the statement in the question, conclude that the black marks mentioned indicated that the feet, perfectly formed, were subjected to violence at the time of the fall, that twisted or distorted them, and that they were subsequently held in that position by pressure? Perhaps he discarded all statements about marks, and relied only on the pressure. The greatest pressure would be suggested by the evidence of the sister, who discovered the mother's bigness practically gone when she saw her, a little after the accident, and which was never recovered. Did Dr. Langevin take his theory of pressure from this testimony, which he says he heard? If so, his answer is not based on the statements in the question, and he must have rejected Dr. Benoit's theory of gradual leakage between the plies of tissue of the walls of the sac.

Again, did the doctor disregard the evidence of Dame Beaulieu about great loss of fluid, causing at once the loss of bigness, which he had heard, and which Dr. Benoit also heard and evidently disbelieved? If so, with the gradual leakage that otherwise took place, such as described by Dr. Benoit, when did pressure begin sufficient to twist the bones of the feet already formed at seven months? The pressure necessarily would come gradually, following the gradual loss of fluid that extended over the whole two months. On this supposition there would be for some time the rapid calcification of the bones of the feet that the doctor dwells upon as going on so rapidly during the last two months, before the pressure could become sufficiently great to have effect. I wonder at what time the doctor settled in his mind as the basis of his theory that pressure -sufficient to twist the bones of the feet commenced? He was at liberty to choose in his mind any one of many different conditions as the basis of his theory, and no one can tell what the basic conditions on which he built were. Then there is the evidence of the two doctors called for the respondent, and the other doctors already referred to and not controverted by Dr. Langevin's evidence, that medical science has not discovered the cause of club feet, and has merely put forward more or less plausible theories, of which Dr. Langevin's does not seem to be one.

For the reasons indicated, I think that there was no evidence sufficiently positive and definite to warrant the jury in finding that the club feet resulted from the accident. Dr. Langevin's theory is a mere guess.

In coming to this conclusion, it is a satisfaction to me to feel that I am doing no injustice to this unfortunate child, because on the evidence, including that of Dr. Langevin, I am fully convinced that there is not the slightest probability that his theory is correct.

The appeal should be allowed, and the action dismissed, with costs throughout.

Appeal dismissed with costs.