McGILL LAW JOURNAL
[Vol. 4
tablishing that he acted within the usual trade practices and so exercised all
reasonable means. In this respect the judgment indicates a valuable approach in
determining a somewhat more objective view of what constitutes all reasonable
means.
CLIvE V. ALLEN*
SAINT-PIERRE and ANOTHER v. McCARTHY
RESPONSIBILITY-
SHOOTING BY CHILDREN-THIRD PARTY WOUNDED BY
CARTRIDGES BOUGHT FROM TWO MERCHANTS –
SOLIDARITY –
BURDEN OF PROOF –
FAULT OF BOTH
ARTICLES 1053, 1106 C.C.
–
After ninety years of jurisprudence on the mysteries of art. 1053 of the Civil
Code of Quebec, it is of great interest to realize that once again the courts of
the province have been required to make an even closer study of the provisions
of that celebrated article, which reads:
Every person capable of discerning right from wrong
is responsible for the
damage caused by his fault to another, whether by positive act, imprudence, neglect
or want of skill.
The interest of the case under discussion’ arises from an extraordinary series
of events in which two persons committed similar faults which, though separate,
distinct, and different in point of time, depended on each other to set up the
situation from which the damage complained of could only have resulted. The
problem before the court was whether or not these individuals could be held
jointly and severally liable for the damages caused by their manifestly impru-
dent and negligent, but disassociated, acts under art. 11063
The defendants were merchants in the town of Princeville. In separate
transactions they sold to a group of boys, all under fourteen years of age, two
boxes of cartridges. The boys left the village to go into the country where they
spent some time in rifle practice; when they had nearly exhausted their supply
of shells, they returned to the town where they continued their shooting on the
property of the plaintiff’s neighbour. The last of these cartridges, when fired,
penetrated the fence and seriously wounded the plaintiff’s minor daughter.
The plaintiff urged in his action against the defendants that in selling the
cartridges to these boys, they had committed a gross imprudence which had
resulted in the accident. By way of answer the defendants argued against the
plaintiff that:
*Of the Board of Editors, McGill Law Journal; second year law student.
1[1957] Q.B. 421. Appeal from the judgment of the Superior Court (Athabaska)
rendered by Mr. Justice Edge (May 27, 1955) maintaining the action. Appeal dismissed.
2 Art. 1106 reads: “The obligations arising from the common offence or quasi-offence
of two or more persons is joint and several.”
No. 2]
CASE AND COMMENT
1) the action should be maintained against only one of the defendants; that is to say,
against that single merchant who had sold the box of shells which had contained
that one last fired;
2) while each of the defendants had committed an act which was in law a fault, their
acts, the two sales, were separate and distinct, and therefore only one, the sale of
the box which contained the last cartridge, led to the accident sued upon;
3) therefore art. 1106 does not apply in this case;
4) further, if the plaintiff wishes to succeed against the guilty defendant, he has the
burden of identifying that merchant who sold the box containing the shell which,
when fired, injured the plaintiff’s daughter.3
Mr. Justice Casey summed up the pith of these contentions when he said :4
This reasoning is based on an assumption of fact, that the only fault having any
causal relationship with the accident was that committed when this particular5
cartridge was sold, and if this premise be conceded
then the judgment a quo
cannot stand.
The problem divides itself easily into two parts: one of law: did each de-
fendant commit a fault? and one of fact: if each committed a fault, did it require
both faults to bring about the accident? With regard to the question of law it
must be determined whether the defendants committed a fault in selling the
cartridges to boys under fourteen years of age. We cannot but agree with Casey
J. when he says, “it is self-evident that defendants were grossly imprudent in
selling cartridges to these young boys”.6 Their fault is dearly established under
art. 1053:7 they could have imagined or should have been able to imagine the
sort of accident which did occur. As the Chief Justice said:
Les difendeurs n’ont pas W poursuivis pour avoir pris part aux exercices de tir
a la carabine auxquels participait un groupe de jeunes enfants. Il leur est reproch6
d’avoir, en vendant sans la moindre prtcaution on diligence a des enfants de moins
de quatorze ans, des cartouches i balles alors qu’ils ne pouvaient ignorer, ne pas
pr6voir, qu’elles serviraient i la charge d’armes
fen, a un tir A la carabine, 6t6
imprudents, n~gligents, pos6 d6lictueux… 8
It is clear, therefore, that rather than the burden being on the plaintiff to show
which merchant sold the box with the offending shell, the defendants, in order
to exculpate themselves, had to show that the accident could not have been
reasonably foreseen and that in selling the shells there had been no imprudence
or negligence.
In the problem of fact causality had to be proved by the plaintiff. Had the
sale of the box with that last cartridge in it been an isolated event in the series
of actions which took place that day (which it was not), then the situation, on
3it is almost needless to add that this onus was not, indeed could not, be discharged.
4p. 422.
5Italics supplied.
Op. 423.
7Reference was made, however, to art. 88 of the Criminal Code (art. 126 in the
former code) which reads: ‘Everyone who sells, barters, gives, lends, transfers or
delivers a firearm, air-gun, or air-pistol or ammunition therefor to a person under the
age of fourteen years who does not have a valid permit in Form 45 is guilty of an
offence punishable on summary conviction.” This section supports the contention that
the sale of the cartridges to persons under the age of fourteen is prima facie an
imprudence.
8P. 424.
McGILL LAW IOURNAL
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the rest of the facts, as they otherwise are, would have been quite different:
the boys would have exhausted their supply of shells in the country and re-
turned to the town with empty, harmless rifles. But two boxes of shells were
sold; it required these two sales to make the accident possible. In short, the
relationship of cause and effect is established. Therefore one cannot say that the
merchant who sold the box with the last cartridge in it should be responsible
alone; rather, we must ask whether “either or both of the defendants had made
it possible for this particular boy to wound the victim.” 9 And upon the facts as
they were, then, the two separate sales were necessary to place the boys in a
position where the accident was possible and the damage done. In other words,
if each defendant committed a fault, which contention has been established, then
both faults were, cumulatively, required to bring about the damages suffered.
The faults of the defendants were equivalent.
…
the shot fired was not a detached incident; it was one of many related acts
which, linked in an unbroken chain, culminated in the wounding of the little girl. O
The alternative burden of the defendants, therefore, was to show that the same
accident would have occurred had only one box of shells been sold.
In a dissenting judgment, Mr. Justice Martineau took exception with the
reasoning on the facts and the conclusion drawn from them. The learned judge
maintained that the uncertain fact in issue-
that is to say, “par quel mar-
chand fat vendue la cartouche dont la balle blessa la jeune McCarthy”” – was
sufficient to destroy the chain of causality and lead him to the conclusion that
the faults of the defendants were entirely distinct from each other. At page 428
he says:
… il me semble impossible de d~duire de la preuve que les d6fendeurs ont commis
“des fautes communes et indivisibles” parce qu’elle d&aontre sans contradiction
possible qu’une boite de cartouches a t achetie au magasin d’un d6fendeur et une,
i celui de l’autre, que chacun d’eux ignorait la vente faite par l’autre et que ces ventes
n’6taient nullement le risultat d’une entreprise commune aux deux…
Je ne crois
pas non plus qu’il soit possible de dire que la faute commise par chacun des d6fen-
deurs “a concouru A produire l’entier dommage”, parce que ]a preuve n’6tablissant
pas la provenance de la seule balle qui blessa la jeune McCarthy, le lien de casua-
lit6 entre la vente de cartouches faite par chacun des d~fendeurs et le prejudice subi
par celle-ci fait d6faut.
If this hypothesis were accepted, one could say, as Mr. Justice Casey points
out,12 that Mazeaud’s thought was applicable:
Condanner deux ou plusieurs personnes dont l’une seulement est responsable, sans
qu’il soit possible de d6terminer laquelle, aurait bien pour r~sultat d’atteindre sure-
ment le coupable, mais aussi de condanmer sfrement un innocent.13
is considering another situation: where one of a group
But here Mazeaud
commits a fault that leads to damage or where each of the group commits a
fault of which only one leads to the damage. In this case, on the other hand,
9P. 423.
1OAnte.
IIP. 427.
12p. 422.
‘3 Mazeaud, L., Les fautes collectives (1956), 16 R. du B. 405, at 410.
