J.-The appellant, Aga Heat (Canada) Limited, accepted an order dated May 12th, 1941, from the respondent, Brockville Hotel Company Limited, which so far as material to this action reads as follows:
This action is brought by respondents to recover damages caused by a fire which occurred while the appellant was in the course of effecting the "removal of range and canopy." Two ducts lead from the canopy over the kitchen range to a main duct, and to remove the canopy it was necessary to sever these two ducts.
On the evening in question, and about the time these ducts were to be severed, Mr. Duby, the hotel manager, came into the kitchen where the appellants were carrying on their work of removing the range and canopy, when he and Mr. Craig, who was in charge for the appellant, had a conversation as a consequence of which these two ducts were to be severed close to the main duct. At once a workman using an oxy-acetylene torch proceeded to sever the first duct. "It was a boxlike affair, and he cut along the bottom," and as he started making a vertical cut up the side, Mr. Craig deposes, "We heard a roaring in the duct which indicated trouble-fire." It is contended that this fire was a result of the instructions given by Mr. Duby, manager of the hotel company, as otherwise the ducts would have been severed where Mr. Craig had in mind nearer the canopy.
Upon this point Mr. Craig deposed:
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- Q. Then what was the next step that you contemplated in the operation of this work?
I/ro.
A. To disconnect the duct from the canopy.
Q. And where in your judgment was the disconnection going to be Co. made?
A. Right at the canopy.
Estey J.
*o
Mr. Duby remarked he thought the appearance would not be very good to have that duct hanging down there in that condition and he wished the cut to be made at a point nearer-which he indicated of course with his finger-at a point nearer the main duct.
Q. Yes, and what did you say to that?
Q. Having told Mr. Duby to go ahead what occurred between him and Henry's men?
A. Well, we were all standing together and it was, I guess, implied- Mr. I am objecting, my Lord.
Mr.
Q.
Don't guess what was implied; just tell us what Mr. Duby said when you told him to "go ahead, sir." What was said? A. He indicated what he wished.
Mr.
object.
He indicated where he wished the cut to be made. Mr. Q. And that you have already said was in the lead duct adjacent to the main duct?
A. That is right, sir.
Mr. Duby deposed:
Q. Instead of cutting them off at the canopy and leaving these two unsightly ducts projecting into the room you say they were cut off flush with the main duct?
A. Yes. sir.
His Q. Under whose instructions?
A. Under my instructions, sir.
Mr. Duby went out of the kitchen at once and was actually in his room in another part of the hotel by the time the fire started.
The learned trial judge has found:
On the evidence, I find that the cutting which caused the fire was directed by the servant of the plaintiff, Mr. Duby, the manager of the hotel, who, in giving such direction, was, in my view, acting within the scope of his authority as manager.
In the present instance, on the evidence, Mr. Duby, the general manager of the plaintiff company's hotel, undertook to interfere, with the acquiescence of Mr. Craig, the defendant's employee, and did interfere, in the work of severing the lead ducts by the use of oxy-acetylene torch. He directed that the ducts should be severed flush with the main duct and not at the point where Mr. Craig intended to sever them, viz. immediately at the point where they were connected with the canopy. With deference to the learned trial judge, I do not think Mr. Duby "undertook to interfere."
The duct had to be severed, and the agreement did not specify at what point. These lead ducts were of the same material and dimensions throughout and there is no suggestion that the cutting at one point involved more labour or inconvenience than at any other point. Mr. Craig had in mind cutting these ducts near the canopy, but Mr. Duby suggested the cutting near the main duct. Mr. Craig immediately acquiesced, and gave Mr. Duby permission to instruct Mr. Henry, who was actually doing the cutting, and Mr. Duby gave his instructions there in the presence of Mr. Craig, and immediately went out.
This is neither a variation, alteration nor something outside of the contract. It is rather an item within the terms of the contract which came up necessarily and incidentally during the course of the work. It had not been specifically dealt with and when now mentioned the parties, in the language of Brett J. (as he then was) in Plevins v. Downing (1), made an "arrangement as to the mode of performing" the original contract.
Under the terms of the contract the Aga Heat (Canada) Limited had expressly agreed to complete the removal of "range and canopy" and to install the equipment they had sold. In all this they were pursuing their usual course of business. Mr. Craig on behalf of the appellants inspected the premises, examining particularly the canopy as to the presence of grease because he appreciated the possibility of fire. Mr. Craig employed Henry & Company who in their business use oxy-acetylene torches. Mr. Henry discussed the fire hazard, and as a result fire extinguishers were obtained.
Moreover the company, in its letter of January 6th, 1939, described the canopy as "a harbour for dirt and grease", and referred to the ventilator fan.
The evidence refers to the cleaning of the ducts from time to time.
Here and there throughout the ducts dirt and grease would be expected particularly by those familiar with the equipment. Notwithstanding all this, when it was decided to cut the Irn.
asked and no precautions were taken and they proceeded forthwith to use the oxy-acetylene torch.
Viscount Finlay in H. & C. Grayson Ltd. v. Ellerman Line Ltd. (1).
In the doing of this work the appellants must be treated as experts, and while it is true that Mr. Duby may have been the only one present at this work who knew when the main or any duct had been cleaned, there is no evidence that he had knowledge of the risk, and it was for the appellants to prove that the respondents "knew the dangers attending the use of their machines." The Nautilus Steamship Co. Ltd. v. David and William Henderson & Co. Ltd. (2).
The appellant, as was its right under the contract, had selected this oxy-acetylene torch, which in operation generates a heat of over 6,000 degrees and sends out quantities of sparks. The operation of this torch in such circumstances as we have in this case creates a possibility of fire and requires on the part of those operating it that reasonable precautions should -be taken to avoid fire. In this case there were no precautions taken at or near the point of severance and, in my opinion, the duty to do so rested upon the appellants who had undertaken the work, provided the equipment, and employed the men. The respondents on their part had a right to regard the appellants as competent both to do their work and to take reasonable precautions that the premises would not be injured as a consequence of their failure to do so. The Nautilus Steamship Co. Ltd. v. David and William Henderson & Co. Ltd. (2); H. & C. Grayson Ltd. v. Ellerman Line Ltd. (3); The Pass of Ballater (4); Honeywill & Stein Ltd. v. Larkin Bros. Ltd. (5).
Counsel for the appellant pressed that the finding of damages should be reduced. The learned trial judge found the