Judgment of the Court
J.: -This is an appeal from an order of the Court of Appeal for Ontario setting aside a judgment pronounced by Aylen J. after trial of the action with a jury so far as that judgment relates to the assessment of damages and directing a new trial restricted to the assessment of damages.
The action was brought by the appellant, who is the widow of the late Christian Burkhardt and the administratrix of his estate, for damages pursuant to the provisions of The Fatal Accidents Act, R.S.O. 1960, c. 138.
None of the children of the late Christian Burkhardt were dependent on him and it is common ground that his widow alone is entitled to damages resulting from his death. Christian Burkhardt, while crossing O'Connor Drive in Toronto on foot, was instantly killed when struck by a motor-car driven by the respondent.
The statement of claim as originally delivered claimed general damages under The Fatal Accidents Act of $15,000 and $300 for funeral expenses. By an amendment made at the opening of the trial, in the absence of the jury, the claim for general damages was increased to $20,000.
The questions put to the jury and their answers are as follows:
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Answer: No.
Question No. 2:
Was the late Christian Burkhardt guilty of any negligence which caused or contributed to the accident?
Cartwright J.
Answer "Yes" or "No".
Answer: Yes.
Question No. 3: If your answer to question No. 2 is "yes", in what did such negligence consist?
Answer fully stating all acts of negligence;
(1) Misjudge the speed of the car;
(2) Subsequently failed to keep watch.
Question No. 4: If your answer to question No. 1 is "no" and your answer to question No. 2 is "yes" and you find it practicable to apportion the negligence as between the late Christian Burkhardt and the defendant, in what degrees do you apportion the negligence of:
(a) the defendant Horst Klaus Beder 50%;
(b) the late Christian Burkhardt 50%*
Total 100%
Regardless of your answers to the foregoing questions and without any apportionment, at what amount do you assess the total damages of the plaintiff Katherine Burkhardt?
Special damages ..................
$
300.00
General damages ...................
26,000.00
Total .....
...................
26,300.00
On these answers Mr. Curran, counsel for the plaintiff, moved for judgment and the transcript continues as follows: His LORDSHIP: That would mean judgment for the plaintiff for 813,150, is that right? In accordance with the verdict of the jury there will be judgment for the plaintiff for $13,150 and costs.
Thank you, my Lord.
HoLLAND: May it please Your Lordship, I wish to ask the judgment not be entered for this sum on the ground that the award, the total award of damages, is not supported in any way by the evidence.
His I don't agree with you at all. The motion will be denied. The learned trial judge endorsed the record accordingly and discharged the jury.
Three days later the learned trial judge recalled counsel; he informed them that when he endorsed the record he had overlooked the fact that the total claimed for general damages was $20,000 and expressed the opinion that he could not enter judgment for more than one-half of that amount. Mr. Curran asked for a further amendment but after some discussion this was refused and judgment was directed to be entered for $10,150 and costs.
The defendant appealed only as to the quantum of damages, on the grounds that the amount was excessive and that there had been misdirection and non-direction; he asked that the Court of Appeal re-assess the damages or direct a new trial limited to the assessment of damages.
The plaintiff cross-appealed against the finding of contributory negligence and against the refusal of the learned trial judge to grant the amendment which had been asked for after the jury had made their answers; she asked that judgment be entered for the full amount of the damages assessed by the jury, $26,300; alternatively she asked that if a new trial were ordered it should be at large.
At the conclusion of the argument the Court of Appeal gave judgment allowing the appeal, directing a new trial limited to the assessment of damages and dismissing the cross-appeal.
The Court of Appeal decided that "there was non-direction in the charge amounting to mis-direction upon the question of damages".
With respect, I am of opinion that the charge of the learned trial judge was adequate. He made it clear to the jury that they could give nothing for the injury to the plaintiff's feelings and that the damages were to be limited to a sum commensurate with the pecuniary benefits which she might reasonably have expected from the continuance of her husband's life. He warned them against giving too great weight to the figures given by the actuary who had testified as to the present value of annuities based on the life expectancy of the plaintiff and on the joint expectancy of the plaintiff and her husband. He told them to give consideration to the vicissitudes of life and urged them to reach a figure reasonable and proper having regard to all the facts of the case.
At the time of his death the deceased was 65 years of age and the plaintiff 64. They had been married for 38 years. The deceased was in good health. His earnings were $68 a week plus a Christmas bonus of $100. He had been steadily employed for 33 years with a long-established firm. He was a skilled and conscientious worker and the uncontradicted evidence of his employers was that "he had a job with us for as long as he wished to stay" and that they were having great difficulty in finding anyone to replace him.
The sum fixed by the jury may be somewhat more than this Court would have awarded if it had been our responsibility to decide upon the amount; but I am unable to say that it was so inordinately high as to constitute a totally erroneous estimate of the plaintiff's loss. In my opinion, the Court of Appeal erred in setting aside the assessment made by the jury.
At the conclusion of Mr. Curran's argument urging that the jury's findings as to contributory negligence should be set aside we were all of the opinion that there was evidence to support those findings and Mr. Holland was not called upon to deal with this point.
I do not find it necessary to deal with the arguments addressed to us by both counsel on the question whether the learned trial judge or the Court of Appeal should have allowed the amendment to the statement of claim which was refused as I have reached the conclusion that on the pleadings as they stood, without amendment, the plaintiff was entitled to judgment for $13,150.
In deciding that unless he granted the amendment he could not enter judgment for more than 50 per cent of the amount claimed, it would seem that Aylen J. regarded himself as bound by the decision of McRuer C.J.H.C. in Grant v. Hare'.
That case was an action for damages for negligence tried with a jury. The plaintiff claimed $5,000. The jury apportioned 70 per cent of the blame to the plaintiff and 30 per cent to the defendant and assessed the plaintiff's total damages at $9,000. Counsel for the plaintiff asked leave to amend the statement of claim by increasing the claim to $9,000. This amendment was refused. Alternatively counsel for the plaintiff argued that judgment should be entered for $2,700 on the pleading as it stood since that amount was less than the sum claimed in the statement of claim. McRuer C.J. held that judgment should be entered for only $1,500. In so holding he purported to follow the decision of the Court of Appeal for Ontario in Kong et al. v. Toronto Transportation Commission'.
In Kong's case, the plaintiff claimed, inter alia, $1,500 damages under The Fatal Accidents Act for the death of his son who was nine years old. The jury attributed 86 per cent of the blame to the defendant and assessed the damages at $3,500. The trial judge endorsed the record directing judgment to be entered for $3,010. Some three weeks later the plaintiff moved for leave to amend the prayer for relief by increasing the amount claimed under this head to $3,010.
The trial judge granted the amendment. On appeal the
Court of Appeal reversed the order granting the amendment and directed that judgment be entered for $1,500, although had the principle acted upon in Grant v. Hare been applied the judgment would have been for only $1,290. This can scarcely have been done through inadvertence for in argument (as appears at p. 434 of the report) counsel for the defendant had submitted that "the plaintiff was entitled only to 86 per cent of the amount claimed" and had cited
Parker v. Hughes'.
The judgment in Parker v. Hughes is founded on that in
Anderson v. Parney . It may be that both of these cases are distinguishable from the case at bar as the judgments turn to some extent on the wording of The Division Courts
Act, R.-S.O. 1927, 95. If, however, they are not distinguishable I would decline to follow them as they were not applied by the Court of Appeal in Kong's case and as I prefer the reasoning of Orde J.A. in his dissenting judgment to that of the majority in Anderson v. Parney. In particular I wish to adopt the following passage from the reasons of Orde J.A.
at pp. 120 and 121:
upon
Rule 147 of the Ontario Rules of Practice requires that when damages are claimed the amount shall be named in the statement of claim, and the authorities are clear that judgment cannot be given for an amount greater than that claimed unless an amendment is allowed.
Adapting the words of Orde J.A. to the circumstances of the case at bar I would say: "The limit of $20,000 placed upon the general damages claimed by the plaintiff in this action is a limit upon the amount recoverable by the judgment of the Court. It is immaterial by what steps the
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amount due the plaintiff in respect of her cause of action is ascertained and fixed. When so ascertained, judgment may be given thereon but not in excess of the limit fixed by the j. amount claimed in the prayer for relief".
It may be observed that in Parker v. Hughes the Court was composed of Latchford C.J. and Riddell and Masten JJ.A. While all three held that they were bound by Anderson v. Parney both Riddell J.A. and Masten J.A. appear to have regretted that this was so.
It follows from what I have said above that, in my opinion, even if no amendment to the statement of claim had been granted the plaintiff would have been entitled to judgment for $13,000 general damages, this being less than the $15,000 originally claimed in the prayer for relief. No question arises as to the claim for funeral expenses. I would allow the appeal, set aside the order of the Court of Appeal and direct that the formal judgment of the learned trial judge be varied by striking out paragraph 1 thereof and substituting the following:
and that subject to this variation the judgment at the trial be restored.
The appellant is entitled to her costs of the appeal to the Court of Appeal and of the appeal to this Court. There should be no order as to the costs of the cross-appeal to the Court of Appeal.
Appeal allowed, order of Court of Appeal set aside and judgment at trial restored subject to variation.