D. C. 1907 Nov. 30. 1908 March 2. [DIVISIONAL COURT.] NETTLETON V. THE MUNICIPAL CORPORATION OF THE TOWN OF PRESCOTT. Municipal Corporations-Negligence "Lock-up"-Lack of Proper HeatingDuties of Constable Caretaker-Acting in Governmental Capacity-Consolidated Municipal Act, 1903—3 Edw. VII. ch. 19, secs. 493, 495, 520, 578, (0.) A municipality which maintains a "lock-up" is not liable in relation to prisoners who complain of negligence on the part of those in charge thereof, as, for example, in this case, of causing illness through lack of proper heating. In maintaining such a "lock-up," a municipality is not exercising its corporate powers for the benefit of the inhabitants in their local and particular interests, but is performing a public service entrusted to it in the interests of general government. A constable in charge of such a "lock-up," though appointed by the municipality, is not to be regarded as the servant or agent of the corporation, but as a public official, for whose acts or decisions civil responsibility does not attach to the municipality. Per MAREE, J.-In this case the negligence complained of was that of one who, though a constable, was acting entirely as servant of the corporation, employed in taking care of the municipal buildings, of which the “lock-up was a part, and the defendants were therefore liable. An answer of a jury to a question submitted may be rejected as insensible or at unreasonable variance with the other answers. THIS was an appeal by the plaintiff from the following judgment of Mulock, C.J.Ex.D., in which the facts are sufficiently stated, at the trial of this action before him at the jury sittings at Brockville on October 20th, 1907. J. A. Hutcheson, K.C., for the plaintiff. J. B. Clarke, K.C., and J. K. Dowsley, for the defendants. November 30. MULOCK, C.J.:-The plaintiff was confined in the lock-up owned and established by the defendants, being the municipal corporation of the town of Prescott, and in his statement of claim alleges that whilst he was such inmate the defendants negligently omitted to keep the lock-up reasonably warm, and that such negligence occasioned to him a serious illness, and he brings this action to recover damages because of the injury which he thus sustained. Other causes of action are set forth in his statement of claim, but all except the one above mentioned were abandoned at the trial. The evidence of the plaintiff went to shew that at the time of his imprisonment he had Bright's disease; that during the night follow ing his arrest the cell was allowed to become very cold; that the next day he was found to be seriously ill, was removed to his home, and there suffered a protracted illness. The case was tried with a jury, and the following are the questions submitted to them and their answers: 1. Were the defendants guilty of any negligence or breach of duty in respect of the heating of the lock-up? A. Yes. 2. If so, in what did such negligence or breach of duty consist? A. In not looking after the heating of the lock-up from 12 o'clock Saturday night until 12 o'clock Sunday noon. 3. Was the illness of the plaintiff which immediately followed his imprisonment caused by such negligence or breach of duty? A. Yes. 4. Was the plaintiff at the time of such imprisonment in a reasonably good state of health? A. Yes. 5. If not, did he make known to Lee or Mooney the fact of his health being impaired and request that the cell be heated so as to meet all reasonable requirements because of his impaired state of health? A. No. 6. If the plaintiff at the time of his imprisonment had been in a reasonably good state of health would the conditions to which he was subject during his imprisonment have caused the sickness complained of? A. Yes. 7. Were the defendants in control of the heating system which supplied heat to the cell? A. Yes. 8. Was Lee, in managing the heating of the cell, the servant of the defendants? A. Yes. 9. What amount of damages, if any, do you award the plaintiff? A. Award $250. After the jury retired to consider the questions, the plaintiff's counsel asked that in lieu of question No. 6 the following question should be submitted: "If the plaintiff was not then in a reasonably good state of health, and did make the fact known to Lee or Mooney, did the defendants take reasonable precautions to prevent his suffering injury?" This question-numbered 6 a-I allowed to be submitted to the D. C. 1907 NETTLETON บ. CORPORA TION OF PRESCOTT. Mulock, C.J. D. C. 1907 NETTLETON V. CORPORA TION OF jury in addition to the nine above mentioned, and the jury's answer to it was "yes." This answer may be paraphrased to read as follows: "Having regard to the illness of the plaintiff at the time of his PRESCOTT. imprisonment the defendants took reasonable precautions to prevent his suffering injury." Mulock, C.J. If such precautions were sufficient, supposing the plaintiff, at the time of his imprisonment, to have been in an impaired state of health, a fortiori, they were sufficient if he was at that time in a good state of health, and this positive finding in answer to question No. 6 a thus negatives the previous findings of negligence or breach of duty. Thus there are two inconsistent and irreconcilable findings in regard to a matter which goes to the root of the action, rendering it impossible to base thereon any judgment in favour of either party, and the result is a mistrial. The appeal was argued before BOYD, C., and MABEE and MAGEE, JJ., on February 19th and 20th, 1908. J. A. Hutcheson, K.C., for the appellant, contended that where there were two inconsistent findings, one of them can be properly rejected, and that in this case the plaintiff was entitled to judgment. J. B. Clarke, K.C., for the defendants, was then called upon, and con ended that t ere was no evidence to go to the jury that the plaintiff's illness was caused by the absence of heat in the cell: Young v. Owen Sound D edge Co. (1900), 27 A.R. 649; Montreal Rolling Mills Co. v. Corcoran (1896), 26 S.C.R. 595; Canadian Coloured Cotton Mills Co. v. Kervin (1899), 29 S.C.R. 478; McQuay v. Eastwood (1886), 12 O.R. 402, App. 7 C.L.T. (Occ. N.) 47; that the defendants, in maintaining and caring for the lock-up, were acting in a governmental capacity and not in its corporate capacity: Eddy v. Village of Ellicottville (1898), 35 N.Y. App. Div. 256; Robertson v. City of Marion (1901), 97 Ill. App. 332; Levin v. Town of Burlington (1901), 129 N. Car. 184; Board of Commissioners of Greene County v. Boswell (1891), 4 Ind. App. 133; Lindley v. Polk County (1892), 84 Io. 308; Pfefferle v. Board of Commissioners of Lyon County (1888), 39 Kan. 432; Hite v. Whitley County Court (1891), 91 Ky. 168; Manuel v. Board of Commissioners of Cumber D. C. 1907 land County (1887), 98 N. Car. 9; and that the municipality was not liable for neglect of duty by a constable: McCleave v. City of Moncton (1902), 32 S.C.R. 106; Thomas v. Canadian Pacific R.W. NETTLETON Co. (1906), 8 O.W.R. 93, at p. 97. Hutcheson, in reply, contended that the establishment of a ock-up was a local undertaking, and that the municipality was lable: Crawford v. Beattie (1876), 39 U.C.R. 13; Foreman v. Mayor of Canterbury (1871), L.R. 6 Q.B. 214; Edwards v. Pocahontas (1891), 47 Fed. 268; Hesketh v. City of Toronto (1898), 25 A.R. 449; Pollock on Torts, Bl. ed., p. 39; Dillon on Municipal Corporations, 4th ed., secs. 965, 976, 980. March 2. BOYD, C.:-The material circumstances connected with the investigation of this cause of action may be summed up thus: An information charging the plaintiff with the crime of theft was laid before a justice of the peace at Cobalt, in Ontario, and a warrant for plaintiff's arrest issued thereon. The plaintiff having left for the town of Prescott, his usual place of abode, an official telegram was sent to Mr. Mooney, the chief of police at Prescott, requesting him to arrest and hold the plaintiff till the arrival of an officer from Cobalt. Pursuant to this requisition, and acting bonâ fide, the chief of police of the municipal corporation of the town of Prescott arrested the plaintiff about 8 o'clock on Saturday, April 6th, 1907. He was taken for detention to the "lock-up" house, which was established and maintained by the town council in the basement part of the defendants' municipal building. There he was confined till the evening of next day, Sunday, when, owing to the state of his health, he was released by the chief constable under the certificate of a physician. The gist of the complaint is that the defendants, through their servant, the chief constable, kept the plaintiff in the cell of the lock-up without any heat, bedding, or covering, through the night, which was bitterly cold, and that the exposure to this cold brought on an attack of disease to which the plaintiff had been subject. The action is, therefore, for ne ligence of the corporation in the management of the lock-up during the night in question. Upon the evidence for the plaintiff it appears that he may have first asked for more heat about midnight on Saturday night, because V. CORPORA TION OF PRESCOTT. D. C. 1908 (as he puts it) he had an overcoat on, and was walking up and down with pain. This conversation was with the chief constable, who NETTLETON did nothing, and that is the complaint. About 3 in the morning V. CORPORA- Boyd, C. (Sunday) he knocked with a stick to attract Mooney's attention, but with no result. Lee, the caretaker of the building, who was also a constable under Mooney, came round about 6 or 7 in the morning. The plaintiff requested him to send for his wife, and when she came about 11 o'clock a call was made for heat, which Lee endeavoured to supply. On Saturday afternoon the wife admits there was some talk about her bringing down bed-clothes, but the husband would not let her do it. On the side of the defendants it is in evidence that the steam heat was on all the time, night and day, in the cell, and that when the request was made for more heat on Sunday, Lee turned on other pipes which supplied additional heat from hot water. Lee affirms that no complaint was made about the heat to him on Saturday, and that when the wife wanted to bring some bedclothes, the husband said he was an old soldier, and did not want them. Mooney says he told the plaintiff on Saturday afternoon that he could have mattrass and bedding brought down to make him comfortable; that there was no complaint made about the want of heat that midnight, and that the pipes were then warm. Mooney knows nothing about the steam or heating department, and has no charge of it. Lee says his duty as caretaker and as to keeping the furnace has nothing to do with his duty as constable. The lack of heat during the night appears to have arisen from the fact that the hot water supply was turned off in the bank-in an upper part of the municipal building where the lock-up is-and this further source of heat was turned on by Lee on Sunday, when the cold was complained of by the plaintiff's wife. I doubt whether the lock-up was at any time in the freezing condition described by the plaintiff, and I doubt whether the recurrence of his attack (the kidney trouble) was occasioned by the cold of the cell; but, as the jury have passed upon these matters, I would not disturb the result on the ground of scanty evidence. It is evident that the whole transaction was managed by the chief of police-neither directed by the defendants nor having any communication with them. This police officer was in charge of the |