turner v Thorne

1. Ryan Robb
Turner v. Thorne (c.o.b. Speedit Delivery Service)
Ontario Judgments
Ontario Supreme Court - High Court of Justice
McRuer C.J.O.
November 13, 1959.
[1959] O.J. No. 416
Between George Turner, and Robert N. Thorne, carrying on business under the style and name of "Speedit
Delivery Service" and George Thorne
(12 pp.)
Counsel
W.E. Bird, Q.C., for the plaintiff. G.J. Sullivan, Q.C., for the defendants.
McRUER C.J.O.
1 This is an action brought to recover damages sustained by the plaintiff on the 5th of September, 1958. The facts
are simple. The defendant Robert N. Thorne operates a business known as the Speedit Delivery Service, and the
defendant George Thorne was a driver employed by his co-defendant.
2 The business of the Speedit Delivery Service is to pick up parcels on request for delivery to designated persons.
On the day in question a call was received from a customer of the defendant to pick up 14 cartons of material for
delivery to The Gas Machinery Co. (Canada) Limited, Lime Ridge Road, on the outskirts of the city of Hamilton. Lime
Ridge Road runs east and west with rural mail delivery boxes on the north side of the street, erected on the highway
allowance. The place of business of The Gas Machinery Co. (Canada) Limited was situated in the rear of houses on
the south side of the highway and reached by a passageway between two houses almost directly opposite the
plaintiffs home. One Trankner who lived on the south side of the street, gave permission to the Gas Machinery Co.
(Canada) Limited to erect a sign over the Trankner rural mail delivery box which reads: "The Gas Machinery Co.
(Canada) Limited, Hamilton, Ontario". The sign was placed on a somewhat elaborate scrollwork that supported the
mail box and on the bottom of it was a projection which in Exhibit No. 6 appears to be an arrow pointing in the direction
of the passageway leading to The Gas Machinery Co. (Canada) Limited. In fact, this is not an arrow but is merely a
part of the scrollwork and I think it has no bearing on the case.
3 The Gas Machinery Co. (Canada) Limited had done business before in a garage in the rear of some private
property and the defendant George Thorne had made deliveries to that garage. On the day in question, on arriving
at Lime Ridge Road, Mr. Thorne without further information assumed that The Gas Machinery Co. was located on
the plaintiff's property. He went to the plaintiff's house and rapped on the door but got no answer. In fact, both the
plaintiff and his wife were at work. Without making further inquiries Mr. Thorne went to the plaintiff's double garage,
which is shown in Exhibit No. 14 and found it unlocked. The garage has two sets of doors; to open the doors, the
west door is pulled east and the east door is pulled west. On leaving the premises in the morning the plaintiff had
taken his automobile from the west section of the garage, leaving a half-ton truck in the east section. There was a

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Turner v. Thorne (c.o.b. Speedit Delivery Service)
Ryan Robb
space of about three feet between the rear of the half-ton truck and the door. The plaintiff closed the west door and
went out of the garage by way of the east door and closed it after him. It is said in evidence that the west door was
left a few inches open but, be that as it may, I do not think that has any real bearing on the result of the case.
4 Finding no one at home on the plaintiff's property, Mr. Thorne backed his truck into the driveway and opened the
west door and unloaded the cartons which were about 24 inches long and 9 inches square, and piled them in the
centre of the garage where they would be between the truck and the automobile if the automobile was in the west
section of the garage. There is some dispute as to whether the cartons were piled so as to project southerly past the
end of the truck. I am satisfied that they were. When the plaintiff came home that evening he and his wife went
shopping and returned after dark. The garage was not equipped with any artificial light. For the purpose of opening
the west door the plaintiff entered the east door of the garage and walked past the rear of the truck and fell over the
cartons which had been deposited in the garage, sustaining serious injuries which were assessed by the jury at
$9,626.00, including out-of-pocket expenses.
5 In view of some rather difficult questions of law on which I required argument, I allowed the jury to assess the
damages but reserved the question of liability for my own decision.
6 Considering the case first independently of the claim founded on negligence, I think the defendant George Thorne
is undoubtedly liable in damages. He was a trespasser on the plaintiff's property and it was a trespass to leave the
packages in the garage.
"Trespass to land consists in any unjustifiable intrusion by one person upon land in the possession of
another."
" It is also a trespass to place anything on or in land in the possession of another, ... "
Clerk & Lindsell, 11th edn., p. 516.
" Trespass being an Invasion of a legal right is independent of intention or negligence."
Clerk & Lindsell, 11th edn., p. 519.
7 Liability for incidental damage resulting from trespass is most concisely dealt with in the Restatement of the law of
Torts, Vol. I, commencing at p. 359. At p. 375 it is stated:
" A trespass, actionable under the rule stated in sec. 158, may be committed by the continued presence on
the land of a structure, chattel or other thing which the actor has tortiously placed thereon, whether or not
the actor has the ability to remove it."
8 A most useful discussion of the relevant law is contained in Kopka v. Bell Telephone Co. of Pennsylvania, 91
Atlantic Rep. (2nd) p. 232. Although this is a case in the United States Courts I think it accurately states the common
law applicable in Ontario. The case arose out of injuries sustained by the owner of land when he fell into a hole dug
on his land by servants of the defendant. At p. 235 Mr. Justice Stern, giving the judgment of the Court of Appeal of
the State of Pennsylvania, stated:
" Before considering the question of the liability of a trespasser for personal injuries suffered by the
possessor of land as an indirect result of the trespass, there are two relevant legal principles to be borne in
mind. The first is that the fact that a trespass results from an innocent mistake and, in that sense, is not
deliberate or wilful, does not relieve the trespasser of liability therefor or for any of the results thereof."
And on the same page:
" The liability of defendant Company for the trespass involved in the digging of the hole on plaintiff's land
without his knowledge or consent being thus established, does such liability extend to the personal injuries
sustained by him as the result of his falling into the hole? The authorities are clear to the effect that where
the complaint is for trespass to land the trespasser becomes liable not only for personal injuries resulting
directly and proximately from the trespass but also for those which are indirect and consequential."

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Turner v. Thorne (c.o.b. Speedit Delivery Service)
Ryan Robb
At p. 236 the learned Judge quoted from sec. 163 of the Restatement of the law of Torts as follows:
"So too, he (a trespasser) is liable for any harm to the possessor ... if such harm is caused by the actor's
presence on the land, irrespective of whether it was caused by conduct which, were the actor not a
trespasser, would have subjected him to liability."
9 Confining the plaintiff's right of action to relief in trespass the question then arises whether Robert N. Thorne, the
employer, is vicariously liable for the trespass of his servant where the servant was not acting under the express
direction of the employers. No difficulty arises where the servant in doing the particular act in a particular manner is
acting under the direction of the Master. It is a different question when the servant acts in the general course of his
duty without particular orders from the master.
10 However, in Halsbury's laws of England, 2nd edn., Vol. 33, p. 4, it is stated:
" A person is liable for a trespass, as for any other tort, committed by himself, or by another for whose act
he is responsible; ... "
Halsbury, 2nd ed., Vol. 22, p. 221-2:
"The liability of the master extends to all torts committed by the servant when purporting to act in the course
of the business such as he was authorized ... to transact on account of his master .... The master has put
the servant into a position to do a particular class of acts on his behalf, and he must therefore accept
responsibility for the manner in which the servant conducts himself in the performance of any such act."
11 My conclusion is that in this case the servant was acting within the general scope of his employment in effecting
the delivery of the parcels in question and believing that he was carrying out his duty to his master, he left them on
the plaintiff's premises. I think, therefore, the master must take responsibility for his servant's act and is liable for the
damages sustained by the plaintiff.
12 Apart altogether from the question of trespass, I have come to the conclusion that the plaintiff should succeed on
the action as originally laid in negligence. In delivering the goods in question, the servant owed a duty to the plaintiff
not to place them on his premises and in addition owed a duty to him not to place the goods in the garage where they
would create a trap for anyone moving from one door to the other in the darkness. Although the position of the sign
in question led the defendant George Thorne astray, the plaintiff was in no way responsible for the sign being placed
where it was and in fact, more careful investigation would have directed the defendant George Thorne to the proper
premises. It was suggested in argument that the cartons had been moved after Mr. Thorne left them. There is no
evidence to support this suggestion and the fact that the invoice was found on top of the cartons where it had been
left is evidence to the contrary.
13 The defendants plead contributory negligence. I can not find any contributory negligence on the part of the plaintiff.
14 The plaintiff is therefore entitled to judgment in the sum of $9,626.00, the damages as assessed by the jury.
McRUER C.J.O.
End of Document