t 216 EXCHEQUER COURT REPORTS. [VOL. VIL 1901 IN THE MATTER OF THE PETITION OF RIGHT OF Nov. 2. JOHN McDONALD, ADMINISTRATOR OF THE ESTATE OF JOHN WILLIAM SUPPLIANT ; McDONALD AND HIS MAJESTY THE KING ...RESPONDENT. Government railway—Accident to the person- —Negligence of Crown's servants —Action by parent of deceased—Pecuniary benefit—Damages. In the case of death resulting from negligence, and an action taken by the party entitled to bring the same under the provisions of Revised Statutes of Nova Scotia, 1900 c. 178, s. 5, the damages should be calculated in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of the life. 2. Such party is not to be compensated for any pain or suffering arising from the loss of the deceased, or for the expenses of medical treatment of the deceased, or for his burial expenses, or for family mourning. Osborn v. Gillett (L. R. 8 Ex. 88) distinguished. PETITION OF RIGHT, under It. S. N. S. 1900 c.178, s. 5, for an injury to the person, resulting in death, on a Government railway, such action being alleged to have been caused by the negligence of the servants of the Crown. The facts of the case are stated in the reasons for judgment. May 28th, 1901, The case was heard at Halifax, N.S. H. McInnis, for the suppliant , contended that the suppliant in addition to damages for his reasonable expectation of benefit from the continuance of his son's life, should be allowed the funeral expenses in view of Lord Bramwell's dictum in Osborn y. Gillett (1). (1) L. R. 8 Ex. 88.
VOL. VII.] EXCHEQUER COURT REPORTS. 21T U. Mellish, for the Crown, pointed out that Osborn y. 1901 Gillett was not decided under Lord Campbell's Act (1). MCDONALD- He also contended that the offer of $ 100 by the Crown THE ° KI NG._ was ample compensation to the suppliant under the Reason* evidence. for Judgment. THE JUDGE OF THE EXCHEQUER COURT now (Novem-ber 2nd, 1901) delivered judgment. This action is brought by the suppliant as administrator of the estate of his son John William McDonald, to recover damages for the injury resulting from the death of the latter, who was killed on the 28th :of September, 1898, in a collision on the Intercolonial Railway, near Westville, in the County of Pictou and Province of Nova Scotia. The Crown has offered to suffer judgment by default for one hundred dollars, and the only question in controversy is as to whether or not that amount is sufficient. By the second section of chapter 116, Revised Statutes of Nova Scotia, Fifth Series (now R. S. N. S. 1900, c. 178, s. 5) it is, among other things, provided_ that in an action such as this the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom, and for whose benefit, such action shall be. brought. The language of the statute is copied ver- (1) The following are the pro- proportioned to the injury result-visions of sec. 5 of the Act of ing . from such death to the per-the Nova Scotia Legislature, R. S. . sons respectively for whose bene-N. S. 1900, s. 178, which reproduce fit such action was brought ; and the provisions of Lord Campbell's the amount so recovered. after-Act : "Every action brought under deducting the costs not recovered the provisions of this chapter, shall (if any) from the defendant, shall be for the benefit of the wife, hue- be divided among such persons, in band, parent or child of such de- such shares as the jury by their. ceased. person ; and the jury may verdict find and direct." give such damages. as they think
218 EXCHEQUER COrRT REPORTS. [VOL. VII. 1901 batim from that used in Lord Campbell's Act (1) under MCDONALD which it has been decided that the damages should V. THE KING. be calculated in reference to a reasonable expectation of pecuniary benefit, as of right, or otherwise, from the Reasons for -Judgment. continuance of the life (2). The parties for whose benefit the action is brought are not to be compensated for any pain or suffering arising from the loss of the deceased (3) ; or for the expenses of medical treatment of the deceased or for his burial expenses, or for family mourning (4). It was argued that the question of funeral expense's should be reconsidered in view of Lord Bramwell's expression of opinion in. Osborn v. Gillett (5) ; but that was not an action under Lord Campbell's Act, but one in which the father sought to recover for the loss of his daughter's services and for expenses incurred in respect of the injury that occasioned her death, and it was held that the action would not lie. Although the decision has been the subject of comment by text writers it has never been overruled or judicially questioned (6). John William McDonald at the time of his death was eighteen years old. His father, who then lived .at Pictou, was, at the time he was examined for discovery, sixty-five ; his mother about fifty. He had .four brothers and four sisters, whose ages ranged from .four to twenty-eight. One brother and one sister (1) 9 & 10 Vict. c. 93, s. 21. Hetherington v. The Great North (2) Franklin v. The South East- Eastern Railway Co., L. R. 9 Q. B. ern Railway Co , 3 H. & N. 211 ; D. 160. .Dalton y. The South Eastern Rail- (3) Per Watson, B. in Duckworth wuy Co., 4 C. B. N. S. 296 ; Duck- v. Johnson, 4 H. & N. 653. worth v. Johnson, 4 H. & N. 653 ; (4) Dalton y. The South Eastern Pym y. The Great Northern. Rail- Railway Co., 4 C. B. N. S. 296 ; .way Co., 2 B. & S. 759 ; Boulter Boulter y. Webster, 11 L. T. N. S. v. Webster, 11 L. T. N. S. 598 ; 598. Rowley v. London and North West- (5) L. R. 8 Ex. 88. .ern Railway Co., L. R. 8 Ex. 22] ; (6) Pollock on Torts, 5th ed. 63.
VOL: VII.] EXCHEQUER COURT REPORTS. 219 ,, were married. None of them appear in any way to 1901. have been dependent upon the deceased for support. McDx L D•' The father had been a rigger, but work for riggers THE Kzxa.. had fallen off and but little was to be had. He Reasons appears, however, to have had some means. The auarofr deceased had, after leaving school, lived at home and worked off and on, giving whatever he earned to his mother. His father says that he was very little idle, but he was unable to state how much the deceased had earned and given to his mother. At the time of the accident that resulted in his death he was on his way from Pictou to Providence, Rhode Island, to . become an apprentice with a silver-plating company.. His wages were to be three dollars a week at first, and every three months he was to get an advance, his wages to depend upon the amount of work he could do. In Franklin's case (1) it is stated by Pollock, C.B.,. delivering the judgment of the court,:‘ we do not say. " that it was necessary that actual henEefit should have. " been derived, a reasonable expectation is enough,. " and such reasonable expectation might. well exist, " though from the father not being in need the son " had never done anything for him. On the other -" hand a jury. certainly ought not to make a guess in the matter, but ought to be satisfied that there has:. " been a loss of sensible and appreciable pecuniary " benefit, which might have been reasonably expected " from the continuance of the life." But there is, I fancy, much greater difficulty in applying such a rule than in stating it. For after all can one do more than make a fair guess as to what in the particular case the reasonable expectation of pecuniary benefit may be?' In such a case as this' it depends more upon the. father's necessity than upon, the. son's power to: earn.. As long as the father is not in need the son may well, (1) 3 H. & N. at pp.. 214, 215..
220 EXCHEQUER COURT REPORTS. [VOL. VII. 1901 make the best use he can of his labour for his own Dox LD advancement in life. But if in the changing circum- V. THE KING. stances of life the father or the mother comes to need the son's help he or she is very sure of getting it. In Beaton. for Judgment. this case I understand counsel for the Crown to concede that there was some reasonable expectation of pecuniary benefit accruing to the father from the continuance of the son'-s life. The question is to appreciate that expectation and state it in money, and I am free to confess that I cannot give any very good reason why it should be stated at two hundred dollars rather than at one hundred dollars. All I can say is that granted that the father should recover something, the latter sum appears, as it seems to me, to be a small sum, and the former not by any means a large or excessive one. There will be judgment for the suppliant for two hundred dollars. Judgment accordingly. Solicitors for suppliant : Drysdale 4. McInnis. Solicitors for respondent : Ross, Mellish 4. Mathers.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.