Landlord and tenant-Loss
A steam sawmill was totally destroyed by fire, during the term of the lease, whilst in the possession of and being occupied by the lessees.
The lease contained a covenant by the lessees " to return the mill to the lessor at the close of the season in as good order as could be expected considering wear and tear of the mill and machinery."
The lessees, in defence to the lessor's action for damages, adduced evidence to show that necessary and usual precautions had been taken for the safety of the premises, a nightwatchman kept there making regular rounds, that buckets filled with water were kept ready and force-pumps provided for use in the event of fire, and they submitted that as the origin of the fire was mysterious and unknown it should be assumed to have occurred through natural and fortuitous causes for which they were not responsible. It appeared however that the night-watchman had been absent from the part of the mill where the fire was first discovered for a much longer time than was necessary or usual for the making of his rounds, that during his absence the furnaces were left burning without superintendence, that sawdust had been allowed to accumulate for some time in a heated spot close to the furnace where the fire was actually discovered, that on discovering the fire the watchman failed to make use of the waterbuckets to quench the incipient flames but lost time in an :-Taschereau, Gwynne, Sedgewick King and Girouard JJ. APPEAL by the defendants from the judgment of the Court of Queen's Bench for Lower Canada (appeal side), (1) which reversed the judgment of the Superior Court, District of Ottawa dismissing the plaintiff's action, and ordered a judgment to be entered in favour of the plaintiff for $10,000 damages and costs; and CROss-APPEAL by the plaintiff to have the assessment of the damages under the same judgment increased. The defendants leased a steam sawmill at Aylmer, Que., from the plaintiff, for the milling season of 1896, a written memorandum of lease being signed by both parties, containing the covenant recited in the head note. The mill was destroyed during the. month May, 1896, during the night time, by a fire which originated in some unknown and mysterious manner in a heap of sawdust which had accumulated near the furnaces, in which a slow fire was kept up during the night to facilitate getting up steam for starting the machinery in the morning. Fire buckets filled with water were kept on the premises in convenient positions and force pumps provided, to be worked by steam, in the event of fire. A night-watchman also was employed by the lessees, his duty being to make periodical rounds of the mill premises and lumber yard and attend to the furnaces while the mill was shut down for the night. From the evidence it appeared that after the night-watchman (1) Q. 7 Q.
(2) Q. 7 Q. B.
attended to the furnaces at a quarter past eleven on the night of the accident, he had not returned to them until the discovery of the fire about three and a half hours later, and that there was no person left in charge of the furnaces during the time the watchman was making Vs his rounds, which usually occupied about an hour and a half. On discovering the fire the watchman stated that he began to " fire up " for the purpose of increasing the steam pressure from 20 lbs., then showing on the gauge, to the 40 lbs. pressure necessary to work the force pumps, but that as the fire spread rapidly he raised the alarm. He stated that he began to call " fire" about ten or fifteen minutes after he first saw the flame.
Another witness, who saw the fire from some distance soon after it started, stated that it could have been extinguished then by throwing a pail of water upon it, but this was not done
In the trial court Mr. Justice Gill, dismissed the plaintiffs action with. costs, but on appeal this judgment was reversed and. damages awarded to the plaintiff with costs.
J. M. McDougall and Lafleur for the defendants, appellants and respondents on the cross-appeal. Geofrion Q.C. and Henry Aylen for the plaintiff, respondent and appellant on the cross-appeal.
J.-The lease in question contains a covenant " that the said Klock & Co. shall return mill to said Lindsay at close of season in as good order as can be expected considering usual wear and tear of mill and machinery."
Klock & Co. have failed, without any lawful justification, to so return the mill as they had covenanted to do. They are therefore liable. I would dismiss the appeal with costs.
As to the cross-appeal on the amount of damages, we do not see anything in the record which would justify us in interfering with the judgment of the Court of Appeal.
J. concurred in the judgment dismissing the appeal with costs for the reasons stated by His Lordship Mr. Justice Girouard, and was also of opinion that the cross-appeal should be dismissed with costs.
SEDGEWICK and KING JJ. were of opinion that the appeal and cross-appeal should both be dismissed with costs for the reasons stated in the judgments reported.
J.-The respondent, proprietor of a sawmill in Aylmer, Que., demands from the appellants the sum of $20,000, being the value of the mill machinery and other accessories, which were destroyed by fire on the 29th of May, 1896, while they were in the possession of the appellants as his lessees. The action was dismissed by the Superior Court (Gill, J.), the defendants having, in the opinion of the learned judge, rebutted the presumption of law created by article 1629 of the Civil Code, but this judgment was unanimously reversed in appeal, (Lacoste, C. J., and Boss6, Blanchet, Hall and Witrt6le, JJ.,) and the defendants were condemned to pay the sum of ten thousand dollars.
Hence the present appeal by the defendants, and also a cross-appeal by the plaintiff who asks for an increase of the amount awarded.
The rules of law governing a case like this have been laid down by this court in Murphy v. Labbd, (1) and we have nothing more say on the subject, and we simply refer to that decision.
As to the facts, we entirely agree with the Court of Appeal and fully concur in the elaborate review of the evidence made by Mr. Justice Boss6, and have no tS hesitation in adopting his conclusions
Le fait d'avoir laiss6 dans ces conditions et sans surveillance, pendant un si long temps les fourneaux allumbs constitue une grave KLOCK. imprudence. Un bon phre de famille n'aurait pas agi ainsi.
Le bran Girouard J. de scie accumul6 entre le fourneau et la cloison et que 1'on n'enlevait jamais avait dt s~cher it la chaleur du fourneau et constituait un danger shieux. En fait c'est 1 que le feu a origin4. Cette ndgligence n'est pas celle d'un bon phre de famille.
Le fait de ne pas jeter sur ee commencement de flamme 1'eau des sceaux qu'il avait sous la main, et de perdre un temps pr~cieux dans une tentative d6raisonnable pour obtenir une pression de vapeur additionnelle, quand il lui en fallait au moins 40 lbs., pour faire fonctionner la pompe, est une faute grave du prdpos6 dont le proposant est respon. sable.
Et de tout ceci, il r6sulte que, loin d'avoir repouss6 la pr6somption de faute 6tablie par notre texte, les d6fendeurs ont montr6 qu'ils avaient commis trois fautes distinctes qui, en dehors de cette disposition denotre code, suffiraient pour engager leur rdsponsabilit4.
(1.) We are. therefore of opinion that the judgment appealed from should be affirmed, and that the appeal of the appellants should be dismissed with. costs, and likewise that the cross-appeal of the respondent should be djsmissed with costs against him.
Appeal and cross-appeal dismissed with costs.