Supreme Court of Canada
Volkert v. Diamond Truck Co.,  S.C.R. 455
Ferdinand Volkert (Plaintiff) Appellant;
Diamond Truck Company (Defendant) Respondent.
1939: Nov. 2; 1940: Apr.23.
Present: Duff C.J. and Rinfret, Davis, Kerwin and Hudson JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Automobile—Negligence—Car left unattended on a public highway—Unauthorized use of the car by employee—Injury to person—Liability—of owner—Art. 1054 C.C.—Motor Vehicle Act, R.S.Q., 1925, c. 35, ss. 31 and 53.
The respondent, engaged in a trucking business, operated a warehouse in the city of Montreal which was also used as a garage for its trucks. In May, 1937, the appellant was struck by one of respondent's treks, operated by one of its employees and he sued the respondent for the damages resulting from the accident. This
employee was not employed as a truck driver, but was simply a helper; he had no operator's licence and took the truck without the respondent company's knowledge, permission or consent and in breach of the company's instructions and regulations.' The respondent had left the truck unattended on the street, with the key in the switch. The appellant sought to hold the respondent responsible both under Article 1054 C.C. and under sections 31 and 43 of the Quebec Motor Vehicle Act. The action, tried before a jury, was dismissed by the trial judge, which judgment was affirmed by the appellate court.
Held, affirming the judgment appealed from (Q.R. 66 KB. 385), that the respondent was not liable.
Held, also, that article 1054 C.C. had no application in the circumstances of this case. According to the evidence, the employee took the truck contrary to formal prohibition of his employer and exclusively for his own purposes and, therefore, could not be held to have been in the performance of the work for which he was employed. Moreover the respondent cannot be held to be liable on the ground that the injury was caused by a thing under his care, as the real cause of the accident was the employee's intervention; the latter, in acting as he did, was a stranger vis-à-vis the respondent.
Held, also, that section 53 of the Quebec Motor Vehicle Act, which places the onus on the owner of a car to establish that the loss or damage did not arise through his negligence or improper conduct, has no application under the circumstances of the case; the proximate cause of the appellant's injury was the independent act of the employee and not any conduct of the respondent. Moreover, the presumption of liability created by that enactment was amply rebutted by the evidence.
Held, further, that the respondent cannot be found guilty of negligence, for having left the truck unattended on the street in front of the garage with its key in the switch, in contravention of the provisions of section 31 of the Quebec Motor Vehicle Act. Prima facie, in view of the sanction by penalty, the owner of a motor vehicle guilty of an offence under that section by reason of which another person suffers harm is not responsible in a civil action. Such section is a police regulation and is not intended to attach a civil liability. But, assuming that an offence against that section may entail civil consequences, civil responsibility can only arise when the damage caused is the direct consequence of the offence. In this case, the damage was the direct consequence of the act of the employee and it was, moreover, the direct consequence of his independent wrongful act; there was no relation of cause and effect between the alleged negligence of the respondent and the accident which subsequently took place. Davis J. was of the opinion that it was unnecessary to decide the question whether, in a case of an alleged breach of a statutory duty, the imposition of a penalty leaves any room for an additional civil remedy, and held that, in all the circumstances of this particular case, the injuries sustained by the appellant were not the result of the respondent's breach of the statute in leaving the truck on a public highway unlocked; there was no causal relation.
APPEAL from a judgment of the Court of King's Bench, appeal side, province of Quebec, affirming the judgment of the trial judge, Duclos J., with a jury and dismissing the appellant'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.
Gordon D. McKay for the appellant.
L. E. Beaulieu K.C. and Réné Duguay for the respondent.
The Chief Justice.—I agree with the conclusion of my brother Rinfret. I add one or two observations to what he has said.
Dealing first with the question of liability apart from the enactments of the Motor Vehicles Act of 1925. The facts as he has stated them leave room for only one conclusion and that is that the cause, not only the immediate cause but the real cause of the appellant's injury was the conscious act of the volition of St. Germain in wrongfully possessing himself of the car and driving it negligently; in these acts St. Germain was a stranger vis-à-vis the respondent.
Under section 53 the onus was, no doubt, on the respondents in the strict sense. It was their duty to establish that the loss or damage did not arise through their negligence or improper conduct; but it is plain that on the facts as my brother Rinfret has stated them the proximate cause of the appellant's injury was the independent act of St. Germain and not any conduct of the respondents. There are no circumstances disclosed which, in point of law, could form the basis (apart from the statute) of an affirmation that the respondents were under any obligation to the appellant or the public generally to protect him or them against the acts of such wrongdoers as St. Germain by taking precautions in respect of the locking of the truck.
I turn now to section 31 of the statute. It is in these words:
31. (1) Every motor vehicle shall be provided with a lock or other device to prevent such vehicle from being set in motion.
(2) When a motor vehicle is left unattended on a public highway, it shall be locked or made fast in such a manner that it cannot be set in motion.
By section 49, anybody contravening this enactment is guilty of an offence against the Act and incurs certain penalties as set forth in that section.
Prima facie, in view of the sanction by penalty, the owner of a motor vehicle guilty of an offence under section 31 by reason of which another person suffers harm is not responsible in a civil action. Assuming, however, that an offence against this section may entail civil consequences, and I did not understand Mr. Beaulieu to dispute that, civil responsibility can only arise where the damage caused is the direct consequence of the offence. Here, I repeat, the damage was the direct consequence of the act of St. Germain; it was, moreover, the direct consequence of his independent wrongful act. The offence of the respondents furnished the opportunity, the occasion for the commission of St. Germain's wrong; and the respondents do not, by reason of this circumstance, incur civil responsibility in respect of that wrong unless it can be affirmed that it is the intention of the section to impose upon the owner of a motor vehicle a duty to the appellant or to the public generally to observe the enactments of the section for the purpose of protecting him or them against the acts of such independent wrongdoers as St. Germain. I am satisfied that the statute neither expresses nor evidences any such intention.
It should, perhaps, be noted that certain decisions of this court have been cited in the course of the proceedings as authoritative (Montreal Rolling Mills Co. v. Corcoran; Tooke v. Bergeron). These cases were cited by Mr. Justice Girouard in Dominion Cartridge Co. v. McArthur, in support of the proposition that the plaintiff must fail unless
* * * the latter proves, by positive testimony, or by presumptions weighty, precise and consistent, that there is fault on the part of the former, and that this fault is the immediate, necessary and direct cause of the injury he sustains.
The judgment of the Judicial Committee delivered on appeal in the Dominion Cartridge Co's case by Lord Macnaghten made it very clear that the principle of these
decisions resting upon a doctrine propounded by the French tribunals cannot be accepted as establishing a rule of general application in Quebec. The rule enunciated again and again by the judgments of this court since the Dominion Cartridge Co's case and now well established is that, in Quebec as elsewhere, where an issue of fact is to be tried by a jury, if the party on whom rests the burden of proof adduces reasonable evidence in support of his allegation he is entitled to have the issue submitted to and passed upon by the jury.
I should add a word of appreciation for the admirable argument contained in the factum for the appellants.
The appeal must be dismissed with costs.
The judgment of Rinfret, Kerwin and Hudson JJ. was delivered by
Rinfeet J.—The respondent is engaged in the trucking business and operates a warehouse on Argyle street, in the city of Montreal, which is also used as a garage for its trucks.
On the 30th day of May, 1937, the appellant was struck by one of respondent's trucks, operated by one of its employees and he sued the respondent for the damages resulting; from the accident.
The case came before a jury; and, at the conclusion of the appellant's evidence, the trial judge dismissed the action on the ground that the appellant had given no evidence upon which a jury could find a verdict.
This judgment was unanimously confirmed by the Court of King's Bench.
The employee, one St. Germain, was co-defendant in the action brought against the respondent; but in this appeal we are concerned only with the latter's responsibility.
It may be assumed, for the purpose of the discussion, that the. accident was due to the employee's negligence.
The appellant sought to hold the respondent responsible both under art. 1054 C.C. and under secs. 31 and 53 of the Motor 'Vehicle Act.
In the circumstances, art. 1054 C.C. does not help the appellant.
St. Germain was not employed as a truck driver; he was simply a helper. He had no licence and he had nothing
to do whatever with the driving of the truck. He took the truck without the company's knowledge, permission or consent, and in breach of the company's instructions and regulations. In fact, he took it contrary to formal prohibition and exclusively for his own purposes. He could not possibly be held to have been in the performance of the work for which he was employed.
Moreover, on the authority of Pérusse v. Stafford, the appellant could not succeed in this Court on the ground that the injury was caused by a thing under the care of the respondent. The real cause of the accident was St. Germain's intervention.
If, on the other hand, the rule laid down in paragraph 2 of sec. 53 of the Motor Vehicle Act be urged as being applicable to the respondent, the presumption of liability created by this enactment was amply rebutted by the evidence.
Under that paragraph,
Whenever loss or damage is sustained by any person by reason of a motor vehicle on a public highway, the burden of proof that such loss or damage did not arise through the negligence or improper conduct of the owner or driver of such motor vehicle shall be upon such owner or driver.
In this case, the truck was taken surreptitiously by St. Germain. The respondent had done everything that it could reasonably be expected to do. With all the precautions taken by the respondent, the theft of the car by one of the employees was not a circumstance which might have been anticipated. The fact of the theft in itself acted in exoneration of the respondent as owner or master, both under sec. 53 of the Motor Vehicle Act and art. 1054 C.C.
I fully agree with the statement of the law made by Savatier: "Traité de la responsabilité civile," 1939, vol. 1, p. 533:
Le propriétaire de la voiture ne saurait done répondre en cette seule qualité d'un risque qui ne s'est réalisé que par la faute d'un tiers et qui doit done peser exclusivement sur la personne en faute. Il n'en est autrement que si lui-même vient à être prouvé auteur d'une faute dommageable.
In this case, under the circumstances proven, St. Germain was in no way the " préposé " of the respondent.
He was to all intents "un tiers"; and the general rules concerning the exoneration of the owner through the fault of a third party must apply.
The appellant, however, contends that there was some negligence on the part of the respondent because it left the truck unattended on the street in front of the garage; and, in support of that contention, the appellant refers to sec. 31 of the Motor Vehicle Act, which reads as follows:
31. 1. Every motor vehicle shall be provided with a lock or other device to prevent such vehicle from being set in motion.
2. When a motor vehicle is left unattended on a public highway, it shall be locked or made fast in such a manner that it cannot be set in motion.
In our view, this section does not pretend to deal with the liability for actionable negligence. It is a police regulation; and the sanction is the penalty provided by the statute. It is not intended to attach a civil liability.
Dealing with the matter, however, as a question of common law independently of the statute, we agree with the Court of King's Bench that, even if the facts were assumed, there is no relation of cause and effect between the alleged negligence of the respondent and the accident which subsequently took place. The accident was caused exclusively through the human agency of St. Germain; and the supposed link between that and the respondent in this particular case is too remote to be of any legal consequence on the question of responsibility. The cause of the accident was St. Germain's fault; and there was no direct relation between leaving the truck on the street and the injury caused to the appellant.
While we do not wish to be understood to say that the truck was left unattended within the meaning of the statute, we think the statute in itself does not create any civil liability and that, as a matter of common law, no link existed between the act of leaving the truck as it was and the subsequent accident.
Savatier, in the recent work already referred to, in vol. 2nd, parag. 473, examines precisely the responsibility of the owner of an "automobile laissée sans precaution dans un lieu public " and he states that in cases such as these it is impossible to speak of " un dommage normalement
prévisible." He follows up the discussion in the. light of the jurisprudence in France and comes to the following conclusion (no. 478):
Nous croyons pourtant que la negligence du propriétaire de l'automobile volée ne doit pas être considérée comme la cause directe, au sens général de la jurisprudence, de l'accident causé à un tiers par le voleur.
This conclusion agrees with the unanimous judgment of the Court of King's Bench and the reasons given by each of the judges composing that Court; and it also expresses our view of the law which should be applied in the premises.
We have, therefore, come to the conclusion that the appeal should be dismissed with costs.
Davis J.—The appellant took action to recover damages for personal injuries sustained on the night of May 30, 1937, when he was struck by a motor vehicle owned by the respondent which was being driven at the time by St. Germain, one of its employees. The facts are very simple. The respondent carries on a trucking business with headquarters in the city of Montreal and owns and operates some forty motor trucks. The warehouse premises in Montreal are used for loading and unloading and when several of the respondent's trucks are not on the road, they are parked for convenience on the public street in front of the warehouse, leaving the ground floor of the building available for such trucks as are, at the time, being loaded or unloaded. The trucks are driven by licensed chauffeurs but there are other employees who are engaged solely on what may be called the inside work, that is, the loading or unloading of the trucks. St. Germain was one of the latter class of employees; he did not even have a licence to operate a motor vehicle.
Shortly after midnight St. Germain, being engaged on the night shift and desirous of going down town to get something to eat, took without permission one of his employer's motor trucks that was standing on the street and drove it down town for his personal purposes. The key was in the lock in the car. In the course of St. Germain's journey the appellant, walking across a downtown street, was struck by the motor truck and suffered personal injuries for which he has sued in damages the respondent company.
The case against the respondent was first put upon the ground of negligence but in his answer to plea the appellant set up against the respondent a further cause of action by asserting a breach of a statutory duty which required that the truck should not have been left unattended on the public street without it being locked or made fast in such a manner that it could not be set in motion. The action came on for trial in the Superior Court, District of Montreal, before Duclos, J. with a jury. At the close of the appellant's case, on motion of counsel for the respondent, the trial judge took the case from the jury and dismissed the action without costs upon the ground that St. Germain had taken the truck without the respondent's permission and that he was not at the time of the accident acting in the performance of the work for which he was employed, and that there was no evidence of any negligence on the part of the respondent. Upon appeal being taken by the appellant to the Court of King's Bench, appeal side, that Court by a unanimous judgment found that there was no error in the judgment of the trial judge and affirmed the said judgment with costs to the respondent. The appellant then appealed further to this Court.
Counsel for the appellant before us limited his grounds of appeal to what he alleged was a breach of a statutory duty. He was content for the purpose of the appeal to treat St. Germain as if he were a stranger or even a thief. The case was put this way to us: The respondent in breach of a statutory duty allowed its truck to be left standing in the public street without being locked (or at least with the key in the lock) and as a result of that St. Germain was able to take the car and the appellant's injuries were due directly to that breach of statutory duty.
The relevant sections of the Quebec Motor Vehicle Act, R.S.Q. 1925, ch. 35, are these:
31. (1) Every motor vehicle shall be provided with a lock or other device to prevent such vehicle from being set in motion.
(2) When a motor vehicle is left unattended on a public highway, it shall be looked or made fast in such a manner that it cannot be set in motion.
53. (1) The owner of a motor vehicle shall be held responsible for any violation of this Act committed with such motor vehicle, or of any regulation made thereunder by the Lieutenant-Governor in Council.
(2) Whenever loss or damage is sustained by any person by reason of a motor vehicle on a public highway, the burden of proof that such
loss or damage did not arise through the negligence or improper conduct of the owner or driver of such motor vehicle shall be upon such owner or driver.
Sec. 49 provides penalties for anyone who contravenes any of the provisions of the Act (other than those of sec. 48 with which we are not concerned).
Counsel for the respondent contends that it is not open to the appellant to raise the alleged breach of statutory duty in that this cause of action was not stated in the writ or in the declaration annexed to it but was only brought in by the appellant's answer to plea. But that is a matter of practice and procedure and we should not interfere with the disposition of that question by the provincial court.
Although it was contended that the evidence did not strictly establish a breach of the statutory duty referred to, I think the evidence shows that the statutory provision was not complied with. The difficult question of law which so often arises where you have a breach of statutory duty, whether the imposition of a penalty leaves any room for an additional civil remedy, may not arise upon the interpretation of this statute because sec. 53 (1) has expressly made the owner of the motor vehicle responsible for any violation of the Act committed with such motor vehicle and this provision follows after the penalty clauses. See Square v. Model Farm Dairies. But it is unnecessary to express any opinion in this case upon that question because, assuming there is a civil remedy, the underlying problem is always whether the damage done or the personal injuries sustained are the direct result of the act complained of, in this case the breach of the particular statutory duty. In many cases it is a difficult problem. Where the consequence complained of is the ordinary consequence of the original negligence, the interference of another, however wrongfully or even criminally that other may have acted, may not affect the liability of the original wrongdoer. See Haynes v. Harwood. It is safe to say, I think, that in all the circumstances of this particular case the injuries sustained by the appellant were not the result of the respondent's breach of the statute in leaving the truck on the public highway unlocked. There is no causal relation.
The Quebec statute, sec. 53 (2), puts the onus of proof upon the owner of the motor vehicle but that does not mean that a, plaintiff may not be non-suited in a non-jury trial where at the conclusion of the case all the available facts have been brought out in examination and cross-examination of the witnesses and the evidence plainly discloses that the loss or damage did not arise through the negligence or improper conduct of the defendant.
The appeal should be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Genser & McKay.
Solicitors for the respondent: Duguay, Carignan & Lalande.