Judgments of the Supreme Court of Canada

Supreme Court of Canada

Dozois v. Pure Spring Co. Ltd. and Ottawa Gas Co., [1935] S.C.R. 319

Date: 1934-06-06

George Dozois and Ida Dozois (Plaintiffs) Appellants;

and

The Pure Spring Company Limited and The Ottawa Gas Company (Defendants) Respondents.

1933: November 30; 1933: December 1; 1934: June 6.

Present: Duff C.J. and Rinfret, Smith, Cannon and Hughes JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence—Claim for damages for injury from alleged escape of gas—Evidence—Directions in charge to jury—Construction of jury’s findings—New trial—Absence of fume pipe on boiler—Liability of defendant which installed gas appliances on the other defendant’s premises.

Plaintiffs sued P. Co. and O. Co. for damages for injury to one of them (wife of the other) alleged to have been caused by escape of gas from P. Co.’s premises (which were in the same building as plaintiffs’

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premises). O. Co. had, five years before the alleged injury, installed gas appliances in P. Co.’s premises, and it supplied gas to P. Co. At the trial the jury found that plaintiff was injured by gas; that it escaped from gas appliances on P. Co.’s premises; that P. Co. had not satisfied the jury that it was not guilty of negligence causing or contributing to the escape; that O. Co. did not take the precautions it ought to have taken in installing and maintaining the gas appliances; that its failure to take such precautions caused or contributed to the causes of the injury; that O. Co. was guilty of negligence in the installation or maintenance, causing in whole or in part the injury, “in failing to install fume pipe on boiler when said boiler was installed”; that there was a verbal agreement between P. Co. and O. Co. “to install the aforementioned boiler and maintain same in good order”; and that the companies failed to observe the terms of such agreement “by not insisting on the installation of fume pipe on boiler at the time said boiler was installed”; that O. Co.’s failure to observe its agreement caused or contributed to the causes of the injury; and assessed damages. Judgment was given against both defendants. The Court of Appeal for Ontario reversed the judgment and dismissed the action. Plaintiffs appealed.

Held: There should be a new trial. Cannon and Hughes JJ., dissenting, would restore the judgment at trial.

Duff C.J. and Smith J., while not entirely satisfied to go as far as the Court of Appeal, held that on the record, including the evidence and the judge’s charge to the jury, the trial and its result were so unsatisfactory that the verdict should not stand and there should be a new trial. As to the jury’s finding that defendants were both negligent in not insisting upon setting up a fume pipe, they held that this finding meant that it was perfectly well understood on all sides that the installation was incomplete, in that the absence of a fume pipe might have the effect of allowing noxious gases to escape which might do harm; and that the negligence found occurred when the boiler was installed—five years before the alleged injury; and Duff C.J. and Smith J. held that in such circumstances O. Co. would not be responsible (M’Alister v. Stevenson, [1932] A.C. 562, at 578; Gregson v. Henderson Roller Bearing Co., 20 Ont. L.R. 584; Farr v. Butters, [1932] 2 K.B. 606, at 617; Caledonian Ry. Co. v. Mulholland, [1898] A.C. 216; and Bottomley v. Bannister, [1932] 1 K.B. 458, at 472-3, referred to).

Rinfret J., while otherwise concurring with Duff C.J. and Smith J., expressed an inclination to hold that the action as against O. Co. should be dismissed—that the effect of the verdict was that its negligence occurred at the time “when said boiler was installed,” five years before the alleged injury; and, applying to the verdict the principle laid down in Dominion Natural Gas Co. Ltd. v. Collins, [1909] A.C. 640, and having regard to the jury’s answers with respect to the full knowledge of P. Co. concerning the incomplete nature of the installation, the result was that O. Co. was not legally liable; but, in view of the opinions of the other members of the court, equally divided, he concurred in disposing of the case as proposed by Duff C.J. and Smith J.

Cannon and Hughes JJ., dissenting, were of opinion that there was reasonable support in the evidence for the jury’s findings; and that, applying the law to the facts as found by the jury, the judgment at trial

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against both defendants should be restored. (With regard to the liability of O. Co., reference was made to M’Alister v. Stevenson, [1932] A.C. 562, at 611-612, 580-581, 595-597; Dominion Natural Gas Co. Ltd. v. Collins, [1909] A.C. 640, at 646, 647.)

APPEAL by the plaintiffs from the judgment of the Court of Appeal for Ontario, which reversed the judgment of McEvoy J. (given upon the findings of the jury) in favour of the plaintiffs, and dismissed the plaintiffs’ action (Magee J.A. dissenting as to the judgment at trial against the defendant The Pure Spring Co. Ltd., which he would affirm). The action was brought by the plaintiffs, husband and wife, for damages for injury to the plaintiff, Mrs. Dozois, alleged to have been caused by gases escaping from the premises of the defendant The Pure Spring Co. Ltd. (which premises were in the same building as was the plaintiffs’ apartment), in which premises there were certain gas appliances which had been installed by the defendant The Ottawa Gas Co., which company supplied gas through a meter at the outer wall of the premises of The Pure Spring Co. Ltd. The plaintiffs alleged that the alleged escape of gases was caused by the negligence of the defendants, their servants or agents.

A.W. Beament and G.M. Bleakney for the appellants.

E.J. Murphy K.C. and A.F. Moore for the respondent The Pure Spring Co. Ltd.

G.F. Henderson K.C. and J.D. Watt for the respondent The Ottawa Gas Co.

The judgment of Duff C.J. and Smith J. was delivered by

DUFF C.J.—The Chief Justice of Appeals in Ontario (Latchford C.J.) and Mr. Justice Fisher, have unanimously held that, on the evidence as it stands, that is to say, upon the facts admitted or not disputed, or necessarily inferable, the plaintiffs’ action ought to be dismissed against both defendants. I should have no hesitation whatever in coming to that conclusion had it not been for the verdict of the jury and, although I think the case is very near the line, I cannot express myself as entirely convinced that the findings can properly be set aside upon these grounds. Other questions, however, arise when the Court of

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Appeal finds the evidence in such a state that, as said in effect by Lord Halsbury in Jones v. Spencer[1], the court may find the trial so unsatisfactory on various grounds as to make it a duty of justice to set aside the findings although granting the party affected the right to bring the matter before another jury; or the court may specifically find that matters, or a matter, or the matter, which the jury had to consider were not brought so clearly and so fairly to the minds of the jury as to justify them in allowing the verdict to stand. The court may think, on the whole record as it stands, that there has been grievous error amounting to injustice, and, consequently, that the verdict ought not to stand.

I am satisfied in this case that, regarding the case as a whole, the verdict ought not to be permitted to stand. The judgment of Mr. Justice Fisher develops the facts, though much might be added to what he has said, and I have no hesitation whatever in saying that, examining the evidence in the record, the result of this trial is to my mind entirely unsatisfactory; and so unsatisfactory and on such grounds that there should be a new trial. I am not, as I have said, entirely satisfied that we should go so far as the Appellate Division has gone but, at least, the respondent should have an opportunity to submit the issues to another jury.

There are one or two matters which would appear to require special attention. The questions submitted to the jury as affecting especially the liability of the Pure Spring Co. Ltd., respondents, were in these words:

1. Was the plaintiff Mrs. Dozois injured by inhaling poisonous gases or fumes?—Ans. Yes.

2. If so, did the said gases or fumes escape from or emanate from gas appliances upon the premises occupied by the defendant Pure Springs Company?—Ans. Yes.

3. If the said gases or fumes escaped from the said appliances on the premises occupied by the defendant Pure Springs Company, has the defendant Pure Springs Company satisfied you that the Pure Springs Company, or its servants or agents, were not guilty of any negligence causing or contributing to the said escape?—Ans. No.

It is too obvious for comment that, under questions one and two, the onus was on the appellants to establish that Mrs. Dozois was injured by inhaling poisonous gases or

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fumes and, further, that such gases and fumes escaped from or emanated from the gas appliances kept by the defendant Pure Spring Company. In addition to that, the onus was on them also to prove that the Pure Spring Co. was guilty of negligence causing or contributing to “such escape.”

Now, when one reads the charge of the trial judge as affecting the issues raised by these questions, one receives at once the impression that the respondents are burdened with an onus to rebut the charges which form the basis of these issues. The learned trial judge begins his charge by saying that the first thing that seems to him important is that the jury should get “into their minds” how the case came about and then he says:

From that point of view, the first thing is you must consider what is the nature of gas, and how does it diffuse itself, because that is at the very foundation of this action. You have had a number of gentlemen of experience who have given you an account how gas, not this gas, but how gas travels from place to place.

Though not in explicit terms, yet by implication, it would rather appear that the learned trial judge was asking the jury to assume that the illness from which Mrs. Dozois suffered was derived from the escape of gas. This, of course, was one of the most critical points of dispute in the action and the learned trial judge ought to have been most careful to call the jury’s attention to the fact that the onus was on the appellants and that they must be satisfied by reasonable evidence that such was the case.

Then, the learned trial judge goes on to point out that an attempt has been made by the Pure Spring Company to show that no gas fumes escaped at all and, therefore, he says:

* * * it appears to me that it would be well for you to commence your consideration of the matter by trying to determine upon this evidence whether or not there was any gas, any poison gas, escaping from the Pure Spring premises into the hall and up to the place where this woman lived. In weighing that evidence and looking at it, you will not forget the importance to the defendants of making it appear to the court and jury that there never was any gas escaping from that place up to the place where this woman says she was poisoned.

Observe that there is no caution that the very basis of the case is, not merely that gas was escaping in some quantity, but that gas did escape and that the gas which did escape caused the illness complained of.

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Then,

You will begin by considering that question; was there any gas escaping up to that stairway at all, or was it, as has been boldly said, something that has been framed up? The evidence of the defence began and persisted largely upon the theory that there never was any gas came to this place, and this woman never was gassed, and there was no gas there to gas her anyway, and she could not be gassed. They seek to prove that in two ways at least. One way is by calling a number of people who were about the place, and who say, “We were there such and such a time and there was no gas.” Another way is by seeking to satisfy the jury that this woman was not suffering from gas poisoning at all * * *.

The trial judge seems, I think, to be conveying to the jury the impression that the ultimate onus is on the respondents. His language is not calculated to make the jury understand that the onus was plainly on the appellants to show, not merely that there was gas escaping but that the escaping gas did in fact injure the appellant. Then, later on, he puts the matter in a more explicit form. He says:

You will remember that the task of the defendants is to show that there was no gas escaping from their premises that was poisoning this woman.

That seems to be a very plain misdirection and it is very difficult indeed to think that the minds of the jury were not affected by it. Then he goes on to say that during the few days including the day on which Mrs. Dozois injury is alleged to have occurred the respondents were doing something with the gas appliances. That in itself might have been an innocuous observation, but, taken together with what immediately preceded it, viz., that the “task” of the appellants was to negative the escape of gas, it strikes one as being very far from innocuous. Then he proceeds to discuss what occurred in the Pure Spring Company’s plant on the Sunday on which the accident occurred. Three young men said they were playing cards there all day and that the plant as usual was closed down and there was no sign of escaping gas. The learned trial judge asked them to consider the likelihood of these three people playing cards, as he describes it, “on ginger beer,” and he suggests to them that they must consider very carefully whether something did not happen on that occasion which would cause an escape of gas. All this must be considered in relation to what the learned trial judge had already said as to the onus on the respondents. It cannot, I think, be regarded as harmless.

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Then, there is a suggestion, which appears to be based upon nothing, that this whole story of card playing is a pure myth because the other side have said Mrs. Dozois was not sick from gas poisoning but sick from something else, and that, therefore, her claim had no foundation. The learned trial judge thought it proper to suggest that the jury might consider, in the absence of any foundation in the evidence for such a suggestion, that these young men were engaged in a conspiracy to defeat by false evidence the appellants’ case.

Then, I find the learned trial judge, dealing with the evidence given on behalf of the defendants by the letter carrier, Mr. White, to the effect that he never smelt gas in the apartment, says:

But in that regard I have to say this to you, that under our law a man who swears he does see something is considered very much stronger, and a very much more important witness than a man who swears that he does not see anything.

Now, that, I think, was a misdirection and a dangerous misdirection. It is quite true that the jury may properly in the exercise of their commonsense say to themselves that, other things being equal, credibility, for example, being equal, etc., the evidence of a man who remembers that he has seen something is of greater weight than the evidence of the man who says, “I did not see it.” But, to lay down the broad proposition, laid down by the learned trial judge as a proposition of law, is wrong, and a misdirection, and, I think, in this case, was calculated to mislead the jury.

I shall not proceed further with the incidents of the conduct of the trial except to call attention to the fact that the learned trial judge, in effect, left the jury under the impression that if the respondents, the Pure Spring Company, in whose premises the machine was installed, were negligent in not insisting upon the installation of a fume pipe, that would not affect the responsibility of the Gas Company. It is quite true that the learned trial judge did not put the matter precisely in that way, but the jury found in most explicit terms that the defendants were both negligent in not insisting upon the setting up of a fume pipe. I do not think there can be any misconception whatever as to the meaning of that finding. I think it meant that it was perfectly well understood on all sides that the

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installation was incomplete, in that the absence of a fume pipe might have the effect of allowing noxious gases to escape which might do harm; and that the negligence found occurred when the boiler was installed, that is to say, five years before the alleged injury. Now, as I understand the law laid down in M’Alister v. Stevenson[2]; Gregson v. Henderson Roller Bearing Co.[3]; Farr v. Butters[4]; Caledonian Ry. Co. v. Mulholland[5]; and Bottomley v. Bannister[6]; in such circumstances, the Gas Company would not be responsible.

For these reasons I think the trial was most unsatisfactory, and that the verdict cannot stand. The costs, including the costs of both appeals, should be reserved to be disposed of by the trial judge.

RINFRET J.—On the issue between the appellants and the respondent The Pure Spring Company Limited, I concur with my Lord the Chief Justice and with Mr. Justice Smith; and, for the reasons stated by the Chief Justice, I agree that there should be a new trial giving the appellants the opportunity to submit the issue to another jury.

On the issue in respect of The Ottawa Gas Company, I would have felt inclined to dismiss the appeal from the judgment of the Court of Appeal for Ontario, which was unanimous in holding that the verdict of the jury could not be upheld.

As I read the verdict, the negligence of the Gas Company was found to have consisted only in the installation—not the maintenance—of the appliances.

The jury did find the existence of a verbal agreement between The Pure Spring Company and the Gas Company both to install the boiler and to maintain it in good order. If, however, the other answers of the jury are looked at, although the jury says that the Gas Company did not “take the precautions it ought to have taken in installing and maintaining the gas appliances on The Pure Spring Company’s premises,” and although the jury did say that this failure caused in whole or in part the appellants’ injuries, it will be noticed that Question No. 6, to which they gave this affirmative answer, was put to them

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in the alternative, viz.: “Was the defendant gas company guilty of any negligence in the installation or maintenance of any of the gas appliances, etc.?” But the meaning of the answer to Question 6 is cleared up by the subsequent answer to Question 7, where the jury is asked to state fully in what such negligence consisted. The answer is: “In failing to install fume pipe on boiler when said boiler was installed.”

This was not an oversight on the part of the jury, for their attention was drawn to it by the presiding judge, who said: “That is originally you mean, when they put it in five years ago, or something? You are all agreed to that, are you?” And the jury assented.

This was again shown by the answer to Question 10.

10. In what respect, if any, did either party fail to observe the terms of such agreement?—A. By not insisting on the installation of fume pipe on boiler at the time said boiler was installed.

Again the attention of the jury was drawn by the trial judge to this feature of their answer. He said:

You mean that The Pure Spring people were the ones that neglected; that is, they did not insist on having it done? Is that what you mean?

The FOREMAN: Yes, both companies, Your Honour.

His LORDSHIP: You do not seem to lay any fault to the Gas Company for not doing it. The Pure Spring people did not insist on it, and you think they ought to have insisted?

The FOREMAN: Your Honour, the jury feels that both should have insisted—either one or both should have insisted on it.

His LORDSHIP: I think I must accept that explanation just the way they give it.

In my view, the effect of the verdict is that, so far as the Gas Company is concerned, its negligence occurred at the time “when said boiler was installed”. In fact, those are the precise words used by the jury after their attention was drawn to it by the presiding judge. Now, the installation was made five years before the accident.

It being so, my view would be that, applying to the verdict the principle laid down by the Privy Council in Dominion Natural Gas Company Limited v. Collins[7], and having regard to the answers of the jury with respect to the full knowledge of the other defendant, The Pure Spring Company Limited, concerning the incomplete nature of the installation, the result is that the Ottawa

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Gas Company is not legally liable and the action against that respondent ought to have been dismissed.

As matters stand, however, two of my learned brothers are of opinion that the appellants should succeed in toto and that the judgment of the trial judge should be restored, while my Lord the Chief Justice and Mr. Justice Smith think there should be a new trial against both respondents. Under the circumstances, I shall concur in disposing of the case as proposed by the Chief Justice (Carter v. Van Camp[8]; Littley v. Brooks & C.N.R.[9]).

The judgment of Cannon and Hughes JJ., dissenting, was delivered by

CANNON J.—The plaintiff and his wife complain by their action that they suffered damages because the defendant, The Pure Spring Company Limited, who occupied the basement and the ground floor of the building in which they resided, for some time prior to the 21st December, 1930, allowed dangerous and noxious gases to escape from their premises on to the premises of the plaintiffs. They also allege that, on the night of the 21st December, 1930, and all day the 22nd and in the morning of the 23rd, large quantities of gas escaped from the premises of the defendant and the plaintiff Ida Dozois was asphyxiated and poisoned.

The plaintiffs also aver that the Ottawa Gas Company distributed this poisonous gas to, and had installed, two large gas water heaters operated by The Pure Spring Company in the premises.

The plaintiffs further alleged that the escape of the said gas was caused by the negligence of the defendant companies and that the plaintiff’s wife, after being ill and confined to the hospital for sixteen days, had suffered a great destruction of nervous tissues with a paralysis of the lower extremities and consequent pain and suffering and great bodily weakness

The Ottawa Gas Company denied all liability and claimed that, although they delivered gas at the exterior of the premises of their co-defendant, they had no control over it or its use after it entered the said premises.

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The Pure Spring Company pleaded that no gas could escape, or had escaped, from their premises; and also that if plaintiff Ida Dozois had suffered illness, it was not from the effect of gases emanating from the defendant’s premises but due to other causes. They also pleaded, in the alternative, that if any gas emanated from their premises, injuring the plaintiff, the same was due to the negligence of the Ottawa Gas Company, which had sold and installed the gas equipment and fittings used in the said premises.

Mr. Justice McEvoy, who presided at the trial, after hearing the plaintiff’s evidence, refused the motions for non-suit submitted by the defendants; and the case went to the jury, who answered the questions as follows:

1. Was the plaintiff Mrs. Dozois injured by inhaling poisonous gases or fumes?—Ans. Yes.

2. If so, did the said gases or fumes escape from or emanate from gas appliances upon the premises occupied by the Defendant Pure Springs Company?—Ans. Yes.

3. If the said gases or fumes escaped from the said appliances on the premises occupied by the defendant Pure Springs Company, has the defendant Pure Springs Company satisfied you that the Pure Springs Company, its servants or agents, were not guilty of any negligence causing or contributing to the said escape?—Ans. No.

4. Did the defendant Gas Company take the precautions they ought to have taken in installing, and maintaining the gas appliances on the Pure Spring Company’s premises?—Ans. No.

5. If you answer Question 4 “no,” then did the failure of the gas company to take such precautions as they ought to have taken cause or contribute to the causes of the plaintiff’s injuries?—Ans. Yes.

6. Was the defendant gas company guilty of any negligence in the installation or maintenance of any of the gas appliances upon the premises of the defendant Pure Springs Company, or of any of the attachments thereto, which caused in whole or in part the plaintiff’s injuries?—Ans. Yes.

7. If you answer Question 6 “yes” state fully in what such negligence consisted?—Ans. In failing to install fume pipe on boiler when said boiler was installed.

That is originally you mean, when they put it in five years ago, or something? You are all agreed to that, are you? (Jury assent.)

8. Was there any agreement between the Pure Springs Company and the Gas Company in regard to the appliances in question?—Ans. Yes (verbal).

9. If so, what was the agreement?—Ans. To install the aforementioned boiler and maintain same in good order.

10. In what respect, if any, did either party fail to observe the terms of such agreement?—Ans. By not insisting on the installation of fume pipe on boiler at the time said boiler was installed.

You mean that the Pure Spring people were the ones that neglected; that is, they did not insist on having it done? Is that what you mean?

The FOREMAN: Yes, both companies, your Honour.

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His LORDSHIP: YOU do not seem to lay any fault to the Gas Company for not doing it. The Pure Spring people did not insist on it, and you think they ought to have insisted?

* * * * *

11. If you find (that the Gas Company failed to observe its agreement with the Pure Springs Company, did the failure of the gas company to observe its agreement cause or contribute to the causes of the plaintiff’s injuries?—Ans. Yes.

12. At what sum do you assess the damages to,—

(a) the plaintiff George Dozois $700.00.

(b) the plaintiff Ida Dozois $4,000.00

From the judgment rendered according to this verdict, an appeal was brought to the learned judges of the Court of Appeal who unanimously dismissed the action against the Ottawa Gas Company and by a majority against The Pure Spring Company. Mr. Justice Magee found that the verdict of the jury, as far as The Pure Spring Company Limited was concerned, could not be disturbed.

After reading with care all the evidence, I have reached the conclusion that there was abundant evidence for the jury to reach reasonably the conclusion that the plaintiffs and their witnesses did smell gas on the occasions in question; that such escape could come only from the premises of The Pure Spring Company. The jury had a right and were in duty bound after the way the trial was conducted by the respondents to believe or disbelieve the denials of their witnesses and to accept or reject the evidence in support of the action. Could they reasonably reach the conclusion that the plaintiffs had proven their case? It was admitted that if gas was diffused in the apartment, it could come exclusively from the Pure Springs’ plant, installed and served by the Ottawa Gas Company—in that building. There was no gas leak on the street or in the neighbourhood. The jury were duly warned by the learned trial judge that the plaintiffs and the members of the family or immediate friends were to be considered as interested witnesses, but they accepted as sufficient and acted upon the evidence they gave as to the presence of gas on several occasions and specially on the 20th, 21st and 22nd of December, 1930. They knew that on several prior occasions, Dozois complained to the landlord who passed the complaints to the Pure Spring Company. Louis Shapiro, one of the defendant’s witnesses, stated that on the Sunday night at 10.30 Dozois complained to him about the smell of gas.

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Moreover, several independent witnesses, Burgess, the bread salesman, Belisle, the bread-driver, and Léo Chartrand swore that from the 1st of October to the date of the accident they smelled cooking gas there.

There being gas in and about that apartment from the 1st of October on, is it unreasonable to reach the conclusion that Mrs. Dozois was injured by it? The jury had the admission by the medical expert for the defence that it was quite possible that this woman, in the house almost all the time, had before the accident built up a certain amount of carbon monoxide poisoning which would make her more susceptible, especially after exertion, walking fast and running upstairs, to the obnoxious results of the inhaling of illuminating gas. This would reasonably explain why, of the whole family, she was the only one who suffered seriously from the combination of carbon monoxide with the blood.

The evidence of Dr. A. V. Kniewasser, who, previously unknown to the plaintiffs, was called in and diagnosed monoxide poisoning and swore that his diagnostic was correct, corroborated by Dr. Cairns, more than established the plaintiff’s case. This medical attendant is the only one who spoke from actual personal observation. The other medical witnesses gave only opinions to the effect that the paralysis, if genuine, could be caused by a hemorrhage. They could not give facts. The jury, amidst the obscurity which the expert testimony often brings to a case, chose the evidence of the practitioner who could and did swear to a constant positive fact—that his patient was suffering, when he was called, from gas poisoning, and that he himself had smelt the gas going upstairs to her apartment.

This is not a case where the jury had to infer from certain elements of proof a certain conclusion; there was no hiatus to be bridged, but, if they accepted the evidence of the plaintiffs, actual observations of facts which, in their mind, brought practical certainty—or at least reasonable probability, far above a mere guess or conjecture.

A court of appeal is not called upon to substitute its own views of the evidence to set aside the verdict of a jury. The Court of Appeal and ourselves have not to decide whether the jury were right or wrong in their views of

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the facts. We are merely to determine whether there was evidence on which reasonable men, properly instructed by the judge, could have come to the conclusion at which the jury arrived. Metropolitan Railway Co. v. Wright[10]; Laporte v. C.P.R.[11].

The judge’s instructions to the jury were acceptable to both parties; and, moreover, the case was eminently one in which the question of the credibility of the witnesses was specifically left to the jury, as all parties went on the basis that evidence was fabricated by the other party and the learned trial judge especially called the attention of the jury to this state of affairs in his address.

It is impossible to say that there was no evidence, as contended by the defendants, that Mrs. Dozois had been exposed to poisonous gases and that her injuries resulted from such exposure. Moreover, Mirsky, heard for the defendants, admitted that the appellants complained of gas. William Delorme, another witness for the defendants, was called on the 20th December because there had been a complaint of a gas leak. He admits that he smelled a slight odour of fumes. Prindiville, another employee of the Gas Company, went down to the premises and also smelled fumes, as a result of which he repeated his recommendation that a gas fume pipe be installed in the basement. Up to that time, the defendants’ installation was not complete. Mclntyre, the gas company’s superintendent, says:

Q. No job is complete without a fume pipe?—A. I would say no. No gas appliance is complete without a fume pipe.

Q. Suppose on the night of the 20th of December somebody had gone out of those premises and inadvertently left the gas on in this boiler and there had been a fume pipe—what would have happened?—A. The gas would have gone through the building.

Q. Would it have been carried off through the fume pipe?—A. Yes.

Q. If the fact was there was no fume pipe, and somebody left the gas turned on what would happen to the gas?—A. It would go through the building.

Q. It would go out of the apparatus into the atmosphere and through the building?—A. That is if it was turned on.

Mr. HENDERSON: That is all elementary.

In fact, this fume pipe was installed only on the day that the plaintiff Ida Dozois was taken to the hospital and was

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entered by her physician as suffering from carbon monoxide poisoning.

There was evidence, besides the smell of unburnt illuminating gas, of emanations of the product of the incomplete combustion of the said gas which contains a high percentage of carbon monoxide.

I therefore reach the conclusion that the plaintiffs’ appeal should be maintained against The Pure Spring Company Limited and the verdict against it restored.

Now, what about the Gas Company?

Mr. Justice Magee says in his judgment:

As regards the Gas Company different considerations arise. The Spring Company were not bound to use any defective appliances and thereby allow the others to be injured. The Gas Company cannot be brought within the principle of the so-called snail case of M’Alister (Donohue) v. Stevenson[12] where the manufacturer of ginger beer was held liable to the donee of a purchaser from his retailed customer for injury to the donee’s health from the concealed presence of a dead snail in the stone bottle nor is the Gas Company in the position of the manufacturers of the Ross rifle as in Ross v. Dunstall[13]. In Gregson v. Henderson Roller Bearing Co.[14] the defendant Company were tenants and the plaintiff was injured by the fall of a wooden platform insecurely placed on edge by the employees of the co-defendant Eckhardt who undertook to make some repairs and who happened to be landlord. It was held that Eckhardt was not liable to the plaintiff but the tenants alone were liable. I at least am bound by that decision and I think it applies to the present case and relieves the Gas Company so far as liability to the plaintiffs are concerned.

On this point, the trial judge says:

As it seems to me upon the findings of the jury the Pure Spring Co. had gas upon its premises and allowed it to escape upon the premises to the damage of the plaintiffs and thereby were guilty of a breach of duty to take care of a dangerous substance which they had upon their premises to the purposes of their business; and the Gas Company is guilty of a breach of duty amounting to negligence by installing and maintaining this dangerous machine without a fume pipe whereby the gas was allowed to accumulate and enter the plaintiffs’ premises doing damage.

The following abstract from the discussion as to the questions to be submitted to the jury may explain, to a certain extent, the view taken by the trial judge:

His LORDSHIP: You mean there is evidence that might make me think, especially the evidence of Mclntyre, who says, supposing the cock had been left partly open and the fume pipe has been there, the fume pipe would have carried it out and it would not have circulated through the building.

Mr. BEAMENT: And Prindiville said the same thing.

Mr. HENDERSON: That is common sense anyway.

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His LORDSHIP: I thought Mclntyre’s evidence was that if somebody did kick the top of one of these machines and knock it partially open, and that raw gas began to circulate there, the fume pipe would carry it away.

Mr. HENDERSON: It is common ground between my friend and myself. I would not attempt to deny it for one moment, if that happened through carelessness or design, if you like. That is why a fume pipe is necessary, to make a job complete. A fume pipe makes the apparatus practically fool-proof. The fume pipe is unimportant as regards merely the fumes from burnt gas because they don’t hurt anybody.

Mr. BEAMENT: That is for the jury to decide.

The jury found the following against the Gas Company:

1st. That they did not take the precautions they ought to have taken in installing and maintaining the gas appliances on these premises;

2nd. That the failure of the Gas Company to take such precautions as they ought to have taken caused or contributed to the cause of the plaintiff’s injury;

3rd. That the Gas Company was guilty of negligence in the installation or maintenance of the appliances which caused the plaintiff’s injuries in failing to install a fume pipe on the boiler when the said boiler was installed;

4th. That there was a verbal agreement between the Pure Spring Company and the Gas Company in regard to the appliances in question to install the aforementioned boiler and maintain same in good order; and the jury found that both parties should have insisted on the installation of this fume pipe at that time.

In Dominion Natural Gas Co. v. Collins[15], Lord Dunedin, speaking for the Privy Council, said that the findings of the jury must be the basis of consideration, unless it can be said that these findings are incapable of support by the evidence.

In this case, it is shown and it is practically common ground that the Gas Company took special care in looking after its appliances and sent an inspector to look them over, even without being called upon to do so. It is also abundantly shown that Prindiville, their employee, insisted, at the time of the installation and after, and also on the day on which the female plaintiff went to the hospital, on the necessity of a fume pipe. As in the Collins case[16],

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The gas company were not occupiers of the premises on which the accident happened. Further, there being no relation of contract between the company and the plaintiffs, the plaintiffs cannot appeal to any defect in the machine supplied by the defendants which might constitute breach of contract. * * *.

On the other hand, if the proximate cause of the accident is not the negligence of the defendant, but the conscious act of another volition, then he will not be liable.

Can it be said in this case that the Gas Company owed a duty to all the occupiers of the building in which they introduced an admittedly dangerous thing? Were they bound to take all precautions to prevent its escape or to neutralize the danger to such occupiers in case of an accident causing such an escape? Therefore, were they not bound, as found by the jury, to insist and complete the installation and make it safe by installing the fume pipe which would have brought the noxious gas into the open air, instead of allowing its diffusion into the building? If so bound, did they satisfy the onus cast upon them of proving that the proximate cause of the accident was not their negligence, but the conscious act of another volition?

Very recently, after the trial of the present case, Lord MacMillan, in M’Alister v. Stevenson[17], says:

The exceptional case of things dangerous in themselves or known to be in a dangerous condition has been regarded as constituting a peculiar category outside the ordinary law both of contract and of tort. I may observe that it seems to me inaccurate to describe the case of dangerous things as an exception to the principle that no one but a party to a contract can sue on that contract. I rather regard this type of case as a special instance of negligence where the law exacts a degree of diligence so stringent as to amount practically to a guarantee of safety.

In the same case, Lord Atkin, speaking for the majority of the House of Lords, gave us the present state of the law of England as follows[18]:

At present I content myself with pointing out that in English law there must be and is some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of “culpa,” is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour?

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receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. This appears to me to be the doctrine of Heaven v. Pender[19] as laid down by Lord Esher (then Brett M.R.) when it is limited by the notion of proximity introduced by Lord Esher himself and A.L. Smith, L.J., in LeLievre v. Gould[20]. Lord Esher says: “That case established that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.” So A.L. Smith, L.J.: “The decision of Heaven v. Pender¹⁹ was founded upon the principle, that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other.” I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act. * * * I do not find it necessary to discuss at length the cases dealing with duties where a thing is dangerous, or, in the narrower category, belongs to a class of things which are dangerous in themselves. I regard the distinction as an unnatural one so far as it is used to serve as a logical differentiation by which to distinguish the existence or non-existence of a legal right. In this respect I agree with what was said by Scrutton, L.J., in Hodge & Sons v. Anglo-American Oil Co.[21], a case which was ultimately decided on a question of fact. “Personally I do not understand the difference between a thing dangerous in itself, as poison, and a thing not dangerous as a class, but by negligent construction dangerous as a particular thing. The latter, if anything, seems the more dangerous of the two; it is a wolf in sheep’s clothing instead of an obvious wolf.” The nature of the thing may very well call for different degrees of care, and the person dealing with it may well contemplate persons as being within the sphere of his duty to take care who would not be sufficiently proximate with less dangerous goods; so that not only the degree of care but the range of persons to whom a duty is owed may be extended. But they all illustrate the general principle. In Dominion Natural Gas Co. Ltd. v. Collins and Perkins[22], the appellants had installed a gas apparatus and were supplying natural gas on the premises of a railway company. They had installed a regulator to control the pressure and their men negligently made an escape valve discharge into the building instead of into the open air. The railway workmen—the plaintiffs—were injured by an explosion in the premises. The defendants were held liable. Lord Dunedin, in giving the judgment of the Judicial Committee (consisting of himself, Lord Macnaghten, Lord Collins, and Sir Arthur Wilson), after stating that there was no relation of contract between the plaintiffs and the defendants, proceeded: “There

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may be, however, in the case of any one performing an operation, or setting up and installing a machine, a relationship of duty. What that duty is will vary according to the subject-matter of the things involved. It has, however, again and again been held that, in the case of articles dangerous in themselves, such as loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity.” This, with respect, exactly sums up the position. The duty may exist independently of contract. Whether it exists or not depends upon the subject matter involved; but clearly in the class of things enumerated there is a special duty to take precautions. This is the very opposite of creating a special category in which alone the duty exists. I may add, though it obviously would make no difference in the creation of a duty, that the installation of an apparatus to fee used for gas perhaps more closely resembles the manufacture of a gun than a dealing with a loaded gun. In both cases the actual work is innocuous; it is only when the gun is loaded or the apparatus charged with gas that the danger arises.

After the jury had retired and after taking up this matter and discussing the above quoted Collins case[23] with counsel for the Gas Company, the jury returned for further instruction and was told:

His LORDSHIP: Counsel for the gas company points out to me that I said to you that in installing and handling gas, it was a dangerous substance, and that they had a duty to exercise of precaution and care, which they ought to exercise in order to prevent somebody being hurt by their gas. I think I did say that to you and I ought to have said in that connection to you that if some independent person other than the gas company, somebody by his volition did something which caused the accident that is complained of, that would relieve the gas company so far as that duty was concerned. If the Pure Spring Company, for instance, did something that really caused the accident, and did it voluntarily by their own volition, then that would be a thing that would discharge the gas company from the liability from that doctrine of duty.

Mr. BEAMENT: And the gas company must prove that, my Lord.

His LORDSHIP: And before you can apply that rule you must be convinced from the evidence, not that the gas company must prove it, but from the whole evidence as you have it before you—if you conclude that the Pure Spring Company did do something in connection with that gas after the company had done their whole duty, and been as careful as they ought to have been, and did everything they ought to have done—if the Pure Spring people, or anybody else, did some act voluntarily intentionally, that really caused the harm that is complained of, then you would be right in acquitting the gas company from any liability on that branch of the case.

The answers of the jury show that they did not find that the accident was entirely caused, independently of the negligence of the Gas Company, by the conscious act of another volition against which no precaution could really avail; on the contrary, they found joint negligence; and in

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apportioning the blame, the jury considered that 60% of it should be assigned to the Gas Company for failing in their duty to protect the plaintiff’s wife, as one of the persons who were so closely and directly affected by the introduction of poisonous gas in the building that they (the company) ought reasonably to have had her in contemplation as being immediately affected by the acts or omissions called in question—and they evidently found that the Gas Company had not exculpated itself by establishing that the accident had been caused by the independent conscious act of another volition. The instructions of the learned trial judge to the jury have not been challenged and the latest authorities confirm his directions in law.

Applying the law to the facts as found by the jury, I reach the conclusion that the appeal should be allowed with costs throughout and the judgment of the trial court restored against both respondents.

Appeal allowed; new trial ordered.

Solicitor for the appellants: George M. Bleakney.

Solicitor for the respondent Pure Spring Co. Ltd.: Allan F. Moore.

Solicitors for the respondent Ottawa Gas Co.: Henderson, Herridge & Gowling.