[.19561 LA COMPAGNIE DE TRANSPORT
APPELLANT *Nov.17
PROVINCIAL (Defendant) .........
' AND
*Feb. 10
CLEMENT FORTIER (Plaintiff) ....... '.RESPONDENT. ON APPEAL FROM THE COURT OF QUEEN'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
The respondent and a companion boarded the appellant's bus at Montreal. Both were under the influence of alcoholic liquors.
During the voyage, they spoke almost continuously in loud voices, making insulting remarks about the driver who did not speak to them during that time.
At Ste-Th&se, the destination of the bus, all the passengers disembarked, including the respondent and his companion who were the.last to do so. They crossed in front of the bus and were half-way between the left side of, the bus and the opposite sidewalk when they were violently assaulted from behind by the driver.
The respondent sued the driver and the appellant for damages. The action was maintained jointly and severally against both defendants by the trial judge. This judgment was affirmed by a majority in the Court of Appeal. The driver did not appeal -in the Court of Appeal nor in this Court.
Held: The appeal should be allowed and the action dismissed.
There was nothing in the alternative plea of the appellant which constituted an approbation or ratification of the action of its employee, the driver (Roy v. City of Thetford Mines [19541 S:C.R. 395 applied). A delict caused "a l'occasion des fonctions" is a delict caused "pendant le temps des fonctions" and, consequently, is not the one contemplated by Art. 1054 C.C. where the responsibility of the master is engaged by a delict caused in "the performance of the work for which the servant is employed". The assault here was committed when the voyage had terminated and the contract with the passengers had come to an end. The appellant was at that time relieved of its duties towards the passengers. There was no relation between the work and the assault. The relations between the passengers and the driver were purely personal and foreign to the driver's functions. The latter was not, therefore, within Art. 1054 C.C.
APPEAL from the judgment of the Court of Queen's Bench, appeal side, province of Quebec (1), affirming, Barclay and McDougall JJ.A. dissenting, the judgment at trial in an action for assault.
Taschereau, Locke, Cartwright, Fauteux and Abbott JJ. (1) Q.R. [1954] Q.B. 755.