CHAPTER V.

PROCEDURE IN AN ACTION UNDER THE EMPLOYERS' LIABILITY ACT, 1880 (139).

THE PARTIES TO THE ACTION.

As a general rule, of course, the injured workman will be the plaintiff, and the employer, in whose service the injury was sustained, will be the defendant.

In the case where the injured workman is an infant (a), he must sue by his next friend (b). The mode provided by the County Court Rules, 1903-1906 (c), is for the next friend to attend at the office of the registrar of the county court, from which court the plaint is to issue, and to undertake the liability of the costs of the action. Upon such undertaking being given, the action proceeds

(a) An infant is a "workman" within the Employers' Liability Act. See. s. 10 of the Employers and Workmen Act, 1875.

(b) See County Court Rules, 1903-1906, Order III., r. 10, and notes. (c) Order V., r. 16.

Canadian Notes.

(139) It is impossible in footnotes to deal with the practice and procedure in the various courts of the several provinces, and for these reference is made to the provincial statutes and rules. In Ontario the action may be commenced either in the High Court, the County Court, or the Division Court. The jurisdiction of the Ontario County Court has been recently extended by 9 Edw. 7, c. 28, ss. 20, 21; and see note 177, infra, p. 196.

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The Ontario Workmen's Compensation for Injuries Act, 1899" (62 Vict. (2) c. 18, s. 4), provides that except where the claim is in respect of an injury resulting in death, all claims under the principal Act may be disposed of by arbitration as therein provided, and such arbitration is to be conducted in the county where the accident happened (ib., s. 5). But the court may on application direct an action in lieu of arbitration on the grounds that there are difficult questions of law or complicated questions of fact, etc. (ib., s. 7), or substitute arbitration for an action (ib., s. 8), and any party may appeal from the decision of the arbitrator as in the case of appeals from a county court (ib., s. 23).

in the name of the infant, by such next friend (d). The next friend then has the control of the general procedure in the action, and his consent given on matters of procedure is, unless otherwise ordered by the judge, to have the same force and effect as though the infant, being under no disability, had given such consent (e). But the next friend cannot compromise the action, unless in a case where it is clearly for the benefit of the infant (ƒ).

Infant as Employer. The question whether an infant could be made responsible as an employer, under the Employers' Liability Act, is one which presents some difficulty.

This question is a practical one which may require solving any day, having regard to the fact that there are numerous employers of labour who are infants in contemplation of the law. So far as the author is aware the question has never yet arisen.

After consideration the conclusion has been arrived at, that the Employers' Liability Act does not impose any fresh responsibility on such infant employer.

An infant is liable for his torts, although he cannot be sued for a wrong where the cause of action is in substance ex contractu, or so directly connected with the contract that the action would be an indirect way of enforcing the contract. "If the infant's wrongful act, though concerned with the subject-matter of the contract, and such that but for the contract there would have been no opportunity of committing it, is nevertheless independent of the contract, in the sense of not being an act of the kind contemplated by it, or being an act expressly forbidden by it, then the infant is liable..." (g). "A man who has made a contract with

(d) Who should be the plaintiff in an action arising out of a fatal injury is dealt with in Chapter VI., entitled "Action under Lord Campbell's Act."

(e) Order III., r. 13.

(f) Rhodes v. Swithenbank, 22 Q. B. D. 577; 58 L. J. Q. B. 287.

(g) Pollock on Contracts, 6th ed., 72

an infant cannot convert anything that arises out of that contract into a tort, and seek to enforce the contract through the medium of an action for tort" (h).

But if an infant employer is liable for personal negligence he was liable for it before the passing of the Employers' Liability Act, and the only further liability which the Act could impose upon him would be a liability for the negligence of his managers, or those to whom he has entrusted some authority.

As before stated, we do not think he incurs this further liability, for although the fact of the person injured being his workman may be of no importance, it appears to us impossible to hold him liable for the torts of one whose only connection with him is an agreement as to which he has a perfect right to say," So far as I am concerned this is no agreement at all."

In other words, we think this would be one of the cases where it would be impossible to enforce the tort without recognising the validity of the contract.

Married Woman as a Party to an Action under the Act.-A married woman can, by the Married Women's Property Act, 1882 (i), sue alone as though she were a feme sole, for torts done to her, and any damages recovered for such torts become her separate property. Although an action under the Employers' Liability Act can be brought by a married woman alone, yet it would not be wrong to join the husband, and this is often done where there have been special expenses incurred by the husband, necessitated by the wife's injury (k).

If the employer is a married woman carrying on a separate business under the Married Women's Property Act, 1882, then, whether she is separated from her husband or living with him, she can be sued alone.

(h) Addison on Torts, 7th ed., p. 121.

(i) 45 & 46 Vict. c. 75, s. 1 (2).

(k) The term "workman" in the Act includes women (Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 1 (1) ).

Although a husband is, notwithstanding the Married Women's Property Act, 1882, still liable for his wife's torts (1), it is doubtful whether he would be liable in an action brought under the Employers' Liability Act against the wife carrying on a separate trade under the Married Women's Property Act, 1882, at all events in the absence of any proof of personal negligence on her part.

Partners.-Partners are generally sued in the partnership name. Upon application the registrar may order a statement of the names of the persons who were, at the time the cause of action accrued, co-partners in any firm, to be furnished in such manner and verified on oath, or otherwise, as the registrar may direct (m) (140).

A person carrying on business in a name or style other than his own name, may be sued in such name or style, as if it were a firm name, and the procedure in such an action is the same as against firms (n).

Corporations.-Corporations must be sued in the name of the Corporation.

Death of Plaintiff.-If a plaintiff in an action under the Employers' Liability Act should die after the action is commenced, but before judgment, the action already commenced abates; and although the death may give a right of action under Lord Campbell's

(1) Seroka v. Kattenberg, 17 Q. B. D. 177; Earle v. Kingscote, 1900, W. N. 162.

(m) County Court Rules, 1903-1906, Order III., r. 14.

(n) Ibid., r. 17.

Canadian Notes.

(140) As to registration of partnerships in certain cases, see R. S. O., 1897, c. 152; R. S. M., 1902, c. 129; 6-7 Edw. 7 (Man.), c. 32; R. S. B. C., 1897, c. 150; 62 Vict. (B. C.), c. 57; R. S. N. S., 1900, c. 143; C. S. N. B., 1903, c. 144; 6 Edw. (N. B.), c. 7; Gen. Ord. N. W. T., 1905, p. 900; R. S. Q., 1888, Art. 5635 et seq., and 61 Vict. (Que.), c. 42.

E.L.

M

Act, this is a different action, and must be prosecuted separately (0) (141).

Action in Scotland.-Lord Campbell's Act does not apply to Scotland, where a common law action for solatium is given to certain relatives of a person whose death is occasioned by negligence.

In Scotland if an action is commenced by the injured person, and he dies before judgment obtained, the action may be continued by his personal representatives for the benefit of the relatives (p). Consequently, it is believed that an action brought in Scotland under the Employers' Liability Act will not abate owing to the death of the plaintiff before judgment. See post, Chap. VI.: Action under Lord Campbell's Act.

Death of Defendant.-If the defendant in an action under the Employers' Liability Act should die after the cause of action has accrued but before any judgment is given against him, the cause of action dies also. "Actio personalis moritur cum persona." This was decided in an action, under the Employers' Liability Act, of Gillett v. Firbank (q), which was brought against the executors of the deceased employer, and held by the Court of Queen's Bench to be not maintainable (142).

(0) This was decided in the Court of Appeal in a case (unreported) of M'Carthy v. Jacob and Nicholson.

(p) Wood v. Gray, 19 R. (4th series) H. L. 31.

(9) 3 T. L. R. 618.

Canadian Notes.

(141) In White v. Parker, 27 N. B. R. 442; 16 S. C. R. 699, a plaintiff having died between verdict and judgment ordering a new trial, it was held that the right of action conferred by the New Brunswick statute corresponding to Lord Campbell's Act was distinct from the original action, and that the latter was entirely gone and could not be revived. In Canadian Pacific Rail. v. Bryce, 13 B. C. R. 446, at p. 459 (note), where the plaintiff died after argument, the full court ante-dated the judgment; and see Broom's Legal Maxims: Actus curiæ neminem gravabit. And see Erdman v. Town of Walkerton, 22 O. R. 693; 20 Ont. A. R. 444; 23 S. C. R. 352.

(142) In the Ontario, British Columbia, Manitoba, Nova Scotia, and New Brunswick Acts (s. 2), " employer " is defined as including the representatives of a deceased employer, and all the acts mentioned, except