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TMI Blog1920 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... down in consequence and thus the high tension electricity found its way along the secondary cable into the customers' houses and set them on fire. For the loss thus caused the actions now consolidated were brought against the appellant company. Although no article of the Code is referred to by number in the declaration it is plain that both Arts. 1053 and 1054 were relied on, and so the cases were treated both at the trial by Dorion, J. and in the Court of King's Bench on appeal and in the Supreme Court of Canada. There was much difference of opinion among the judges, but the Supreme Court by a majority of one, restored the judgment of Dorion, J. in favour of the plaintiffs. Two questions of law arise upon the Code (1) whether the plaintiffs can succeed without proving negligence or "faute" against the company; (2) whether even so the defendants would succeed if they proved that they could not have prevented the fire. In the Courts below it was argued for the defendants that they could not have foreseen the combination of bad weather overloading the branches with verglas and of wind breaking off the branch and driving it literally on to the cables and that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to these principles (1) by holding that Art. 1054 does but amplify and carry on Art. 1053 and impliedly therefore rests on faute as Art. 1053 does expressly or (2) by holding that para. 6 of Art. 1054 the "exculpatory" paragraph applies to the first paragraph of the article as well as to the others and implies that faute must be proved by the plaintiff before the defendant can be called upon for an excuse or (3) by holding that paragraph 1 of Art. 1054 really specifies circumstances from which faute may be presumed leaving the defendant to rebut it by any evidence that may be available. The contention on the other hand is that the Civil Code of Lower Canada was founded on the Code Napoleon from which it differed only in language, and that the reasoning of recent decisions of the French Courts on the corresponding Art. 1384 ought to be applied, the prior decisions of the Canadian Courts notwithstanding. The result is to apply a principle thus formulated by Fitzpatrick, C.J. in Doucet's case (1): "Celui quipercoit les emoluments procures par une machine susceptible de nuire autiers, dots' attendre a reparer la prejudice que cette machine causer a-ubi emolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om that hitherto accepted will always, even in a tribunal not bound by prior decisions be adopted with caution. Still the first step, the indispensable starting point is to take the Code itself and to examine its words and to ask whether their meaning is plain. Only if the enactment is not plain can light be usefully sought from exterior sources. Of course it must not be forgotten what the enactment is, namely a Code of systematized principles and rules, not a body of administrative directions or an institutional exposition. Of course also the Code or at least the cognate articles should be read as a whole forming a connected scheme; they are not a series of detached enactments. Of course again there is a point at which mere linguistic clearness only masks the obscurity of actual provisions or leads to such irrational or unjust results that however clear the actual expression may be, the conclusion is still clearer that no such meaning could have been intended by the Legislature. Whether particular words are plain or not is rarely susceptible of much argument. They must be read and passed upon. The conclusion must largely depend on the impression formed by the mind which has to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer at any rate to that part of the first paragraph which contains the words "and by things which he has under his care"; first because "the act which has caused the damage" cannot be applicable to a case of "damage caused by things which he has under his care" for the act of a thing would be meaningless expression; and secondly because "the above cases" means only the "cases" properly so called of parent and child and so forth, which figure as particular cases and even though taken together are far from exhausting the first paragraph. In the French text however the exculpatory clause is as follows : "La responsabilite ci dessus a lieu seulement lorsque la personne quily est assujettie ne peut prouver qu'ellen'a pu empecher lefait gui a cause le dommage". On these words it is pretty plain that the above comment founded only on the English text fails. "La responsabilite cidessus" refers to the whole preceding part of the article every paragraph of which contains expressly or by implication the word "responsable" and "lefair qui a cauee le dommage" is an expression not inapt to cover d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s burthen. First of all, Art. 1054 expressly goes beyond Art. 1053 in that, after saying "non-seulement du dommage qu'elle cause par sa propre faute a autrui which refers to Art. 1053 it takes up another's faute "mais encore de celui cause par la faute de ceux dont elle a la controle" that is to say not caused by the defendants own fault. Indeed, if faute must be proved against the defendant before he can be made liable under Art. 1054 it is difficult to see what efficacy attaches to the exculpatory clause at all. If the defendant is proved to have been guilty of faute how can he say that he could not have prevented its consequence? If he is not, he needs no exculpation. Secondly there is no reason why the usual rule should not apply to this as to other statutes namely that effect must be given if possible to all the words used, for the Legislature is deemed not to waste its words or to say anything in vain. Accordingly the observation at once applies that if the defendant must be guilty of faute before Art. 1054 can apply Art. 1054 is otiose for he might have been made liable for that faute under Art. 1053. There can be no answer to this argument unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions arising from what Art. 983 calls the operation of the law solely," but is confined by the title of this group of articles to "delicts and quasi-delicts"; that absolute liability for damage done for things under a man's care, whether those things be in themselves danger our or not, and whether or not they have been brought into the condition which makes them dangerous for purposes of the defendant's own, is a liability transcending the rule in Rylands v. Fletcher. L. R. 3 H.C. 330, and Nichols v. Marsland. [1876] 2 Ex. D.1, and might work great injustice; the Art. 1054 does not begin with the words "Toute personne est respansable", but with the words, 'Elle est response", "Elle referring to the words of Art. 1053 namely "Toute Personne capable de discerner le bien dumal", a reference which is pointless if the faute of such "personne" is immaterial and if all that is needed is that in fact the things should be under his care. To all this the plain words of the article, if they are plain as their Lordships conceive them to be, are a sufficient answer. In enacting the Code the Legislature may have foreseen cases o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps think there is no substance in the objection taken by the respondents that under Art. 10 of the Code private statutes must be pleaded, which implies proof, and that evidence was not given of the private statutes in this case. The article does not provide that if such evidence is not forthcoming, the same result may not be obtained by admissions and as all the statutes without distinction were the subject of discussion in the Courts below, as if the terms of both kinds of legislation had been duly brought before the Court and as the printed text was in fact readily available, their Lordships think that this objection is not now open to the respondents. The powers which these statutes give are of a very familiar type. The undertakers are authorized to carry and distribute high tension electricity over cables which may be either overhead or underground. Sec. 13 of 58 and 59 Vict. c. 58 expressly provides that the company may erect equip and maintain poles in the streets for the purpose of working and maintaining its lines for the conveyance of electric power upon along, across, over and under the same. It was contended by the respondents that sub. S. (c) of this section by the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the trial. The main contention is this. It was the result of voluminous evidence called at the trial and indeed in their Lordships' view the company's case that, if the wires of the transformers which are used at intervals along the line of cable had been grounded, the escaping high-tension electricity would have found its way innocuously to earth instead of entering the houses and setting them on a fire. The value of this precaution had been established by the experience of several years, but it was the view of some distributors of electricity and of the defendant company among them, that there was an offset to this advantage in the fact that, if the wiring of the customers' houses was defective, the grounding of the transformer wires would substitute new difficulties for the old. It was not, however, shown that the wiring of the plaintiffs' houses was defective to this extent, although it was "demode" nor did the evidence compare the one disadvantage with the other quantitatively. The company could have inspected the wiring and if it was not safe, could have declined to supply current. It is plain that the company was quite willing to have carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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