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of employment" is susceptible of two separate and distinct meanings:

(a) The proper and lawful acts which a servant is employed to do or which are incidental to his employment; and

(b) The unlawful and tortious acts which a servant is supposed to have been empowered to do.

With regard to the first class of acts, it is universally recognized that the master is liable for the damages caused by the servant's negligence or want of skill in the performance thereof. It is the second class that gives rise to differences of opinion. Obviously, one does not normally employ a servant to commit offenses or quasi-offenses, but according to the modern English decisions (as well as to French doctrine and jurisprud. ence) the fact that the servant's act is unlawful does not, per se, exonerate the master. (Lloyd v. Grace, Smith & Co., 1912, A. C., 730). But it would seem that under the English law, the act, to implicate the master, must be one of the kind of acts for which the servant was engaged—as in the case just cited, where the defendant, a firm of solicitors, were held liable for the dishonest act of their chief clerk in a transaction of the kind he was authorized to carry on. The French authors, and some, at least, of the French courts interpret the rule more broadly as against the master. Sourdat, for instance, says (vol. 2, no. 889): “It is sufficient (sc. to render the 'commettant liable), if the act causing the damage be connected with the mandate given to the 'préposé' and be committed in the execution of the mandate. It is irrelevant that the act may constitute an abuse of the functions conferred upon him or that the orders of the commettant may have been disregarded.” In a famous French case, for instance, decided by the Tribunal de la Seine in 1856, the proprietor of a fiacre was condemned to pay damages to the widow of a man who was murdered by the driver while he was a passenger therein. It is to be supposed that an English court, in such circumstances, would have exonerated the employer. The case of Chesire v. Bailey, (1905, 1 K. B. 237), indeed, is closely analogous, the owners of a vehicle being absolved from liability for the theft by the driver of some samples of silverware which the passenger was taking with him to show to his customers.

As to the situation in the Province of Quebec, as has been frequently pointed out, English decisions are of no binding effect, and cannot be cited with propriety, unless it first be


shown that the legal principles involvert are exactly the same in both jurisdictions. French authorities are, naturally, more readily received, and are of great weight, ütless there be a difference, as not infrequently happens, in the provisions of our

And, indeed, a difference exists in the wording of the provision covering the principle of vicarious liability applicable to the case under discussion. The expression of the French Code is: "dans les fonctions auxquelles ils les ont employés,” while the Quebec Code reads: "dans l'execution des fonctions auxquelles ces derniers sont employés,” the English version being: "in the performance of the work for which they are employed.” It might well be argued that the Quebec provision is more restrictive than that of the French Code, the change in the wording having been made, according to the Codifiers, “to obviate certain objections raised,” as to the French text. Unfortunately, they do not specify the objections, but the mere fact of the change having been made is sufficient to justify hesitation in accepting the French authorities without question, and the late Mr. Justice Pelletier, in his notes of judgment in the case of Latreille v. Curley, (28 K. B., at p. 398), states specifically that the Quebec law on the point is the same as the English law. Το

revert to the case under discussion, Sir François Lemieux, C.J., sitting without a jury, held that the act causing the damage was committed in the course of the work for which

was employed, and that, this being so, the defendant's plea of the exercise of reasonable care in engaging him could only be of effect in possible mitigation of damages. But even on that point the Chief Justice decided against the company, holding that they had been negligent in placing Wilson in charge of a post of that kind, in view of the significant omission in the answer to their letter of enquiry of any reference to sobriety.

This judgment was upheld in appeal on both grounds: (a) that the act was committed in the course of the work—and (b) that the company was directly negligent in engaging Wilson in the first place, and in not exercising proper supervision after his engagement-particularly in view of the fact that complaints had been made to the district manager by third parties.

Howard J., dissenting, absolves the company under both heads. He adopts, as to the vicarious liability, the rule as expressed by Mr. Justice Mignault, (Dr. Civ., vol. V., p. 337): "es maitres et commettants sont responsables du dommage que



causent leurs employés- ou préposés exercant leur fonctions." As to direct negligence, the learned judge bases his holding on three points! (1) That, as a question of fact, the company was justified in engaging Wilson in view of the very commendatory wording af the letters of recommendation; and that no complaiat having been made by Wilson's subordinates in the post, the business of the post being well carried on, and their own inspector having made good reports thereon, they were justified in considering that all was as it should be. (2) That in any event the damage was too remote to give rise to liability under that head. (3) That the appellants being presumably a body corporate, they could only act through agents, and so could not be primarily liable under 1053 C. C.

Whatever be the correct view as to the direct liability, the decision as to vicarious liability certainly seems not to be in accordance with English decisions, and, what is more important, it is in direct conflict with the judgment of the Court of Appeal itself in Horner v. Lecours (28th June, 1920, not reported), where the circumstances were more favourable to the plaintiff. The facts were, in brief, as follows: Lecours, a traveller in the employ of F. W. Horner, Ltd., came to the office to turn in his samples and settle his accounts with the bookkeeper, having been dismissed for unsatisfactory conduct. The discussion between the two becoming rather heated, the bookkeeper suggested to Lecours that they withdraw to the shipping room, and on their way there, incensed by an insulting remark made by the latter, he hit him in the eye. Lecours lost his eye as a result, but the company was exonerated.

With this case as a precedent, it is difficult to understand how the Hudson's Bay Company can properly be held vicariously liable for the act of Wilson, which was certainly less within the scope of his employment than that of Horner's bookkeeper.

Life InsuranceBeneficiary-Acceptance .or signification of

assent-Proof thereof-Revocation.

Under the Civil Law, the assured being at liberty to revoke the benefit conferred and change the beneficiary so long as the first named beneficiary has not, in the words of 1029 C.C. “signified his assent to it,” the question of what constitutes such signification of assent is of the first importance. It is well

settled that this article applies to contracts of life insurance, and that the signification required may be either express or tacit. Hitherto the chief difficulty seems to have been to decide what constitutes a tacit signification or acceptance. The leading case on the point is Baron v. Lemieux (17 K. B., 177), in which the Quebec Court of Appeal, confirming, by a majority judgment of four to one, the decision of the court of first instance, upheld the right of the second beneficiary to the proceeds of the policy. The dissenting judge, nevertheless, vigorously expressed the opinion that the circumstances as proved constituted clearly a tacit acceptance by the first beneficiary, and it must be admitted that there was room for a divergence of opinion. The point came up for consideration again, though complicated by other issues, in De Demers v. Raby et al. (26, R. L. N. S. 66), and in Roy v. l'Ordre indépendant des Forestiers (58 s. C. 338). In the latter case the Court of Review held that the first beneficiary had accepted.

But this question of fact, difficult enough in itself, may be further complicated by the rules of evidence, as is well exemplified in the case of St. Aubin v. Gravel, in which judgment was rendered by the Quebec Court of Appeal, Oct. 25th last (not yet reported). The relevant facts were as follows: 1914, Armand St. Aubin effected insurance with two mutual benefit associations, naming his mother as beneficiary. In the presence of several members of his family, he informed his mother of what he had done. She replied (in effect), “Thanks very much, that's very nice of you.” In 1918, young St. Aubin, after marrying Agnès Lamarre, made a will by which he expressly bequeathed to his wife the two policies in question. He died shortly afterwards. The claim of his widow to the proceeds of the insurance was contested by the assured's father on the mother's behalf (the parents being under the matrimonial régime of community of property), on the ground, inter alia, that the bequest to the wife was without effect by reason of the fact that the mother had signified her acceptance prior to the alleged revocation. The case was decided in favour of the widow on a point of evidence. The proof of the mother's statement on being informed by her son of what he had done was made by oral testimony, under reserve of an objection by counsel for defendant. The judge of the first court held that, in the circumstances, this proof was illegal, and should be disregarded ; that in its absence there was no proof of acceptance or significa

tion of assent by the first beneficiary; and that, consequently, the assured was at liberty to change the beneficiary. This decision was upheld in appeal, Greenshields, J. dissenting. Letourneau, J., rendering the judgment of the court, intimated that the words used by the mother would, if legally in the record, have constituted a valid acceptance, but concurred with the trial judge in excluding the evidence relating thereto, on the ground that they constituted not a tacit but an express acceptance.not a “fait matériel pur et simple” from which the intention to accept might be presumed, but a "fait juridique,” i.e. one whose immediate effect is to "create transfer, acknowledge, confirm, modify or extend obligations or rights." (Beauchamp, Code civ. ann. art., 1233, no. 35: Dorion, De l'Admissibilité de la preuve," no. 25). Proof of a "fait simple” may be made orally, but the "fait juridique" is subject to the rules of art. 1233, C.C. (Fuzier-Herman, art. 1341, nos. 38, 52, 60: Planiol, vol. 2, no. 1109: Laurent, vol. 19, nos. 406, 407, 419: Gagnon v. Gagnon, 30 K. B. 503).

Greenshields J., in dissenting, held that the evidence should have been admitted; the signification of assent is not necessary to the validity of the contract as between the insurer and the assured, its only effect being to deprive the assured of the right to revoke the benefit conferred. This appears to be unassailable so far as it goes, but even so, while the signification of the assent is not essential to make the policy a valid contract, there can be no doubt but that once it is made it constitutes "a confirmation, modification or extension of a right, and so a 'fait juridique'."

The result of this decision (which is final so far as this particular case is concerned, the amount involved not permitting a further appeal) would appear to be that the beneficiary, in order to protect himself, should either keep discreetly silent while acting in such a manner as clearly to signify his assent, or else write a note of thanks, and send a copy to the insurer.

Lord Campbell's Act and art. 1056, C. C.-Death of Child

Solatium Doloris-Reasonable Expectation of Future Benefit.

For some time in the Province of Quebec there was diversity of opinion as to whether pecuniary damages could be awarded by way of solatium doloris, but the question was apparently settled in the negative by the judgment of the Supreme Court

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