and makes any argument in favor of the respondent's conviction must, in and of itself, inform the jury that he believes the evidence sufficient to warrant such conviction." People v. McGuire, 89 Mich. 64, 50 N. W. 786. So in Fertig v. State, 100 Wis. 301, 75 N. W. 960, the court after stating the rule, said: "That does not mean that a prosecuting officer may express his opinion independent of the evidence that the accused is guilty, or his opinion of guilt, which may or may not be based on the evidence, but that he may state from the record, upon which the issue is to be submitted to the jury, that it establishes guilt. To do the latter is but to state the evidence, draw inferences therefrom, and proceed, reasoning naturally from step to step up to the logical conclusion, and state it, all being legitimate parts of legitimate argument; and if the introduction and discussion lead to such conclusion, though stated with great earnestness and with strong feeling and conviction, so long as the advocate keeps within the record, the accused has no legitimate ground of complaint." In People v. Smith, 147 Ill. App. 146, however, it was said: "It was not proper for the state's attorney in his argument to the jury to assert and press his belief in the defendants' guilt, though to do so was no more than to express, what may be inferred from an earnest argument to convince the jury, that guilt was the only reasonable conclusion from the evidence. That he should advocate conviction carries with it the necessary inference of his belief for he would fail in duty by prosecuting one whom he believed to be innocent of the charge."

4

Expression Not Based on Evidence.

For a prosecuting attorney to assert in argument a belief in the guilt of the accused, otherwise than as the result of the evidence in the case is improper and unless it is clear that no prejudice results such an argument constitutes a ground for a new trial. Hammock v. State, 7 Ala. App. 112, 61 So. 471, 8 Ala. App. 367, 62 So. 323; Jones v. State, 123 Ga. 129, 51 S. E. 312; People v. Smith, 147 IH. App. 146; Brow v. State, 103 Ind. 133, 2 N. E. 296; Howard v. Com. 110 Ky. 356, 61 S. W. 756, 22 Ky. L. Rep. 1845; State v. Iverson, 136 La. 982, 68 So. 98; People v. McGuire, 89 Mich. 64, 50 N. W. 786; State v. Clark, 114 Minn. 342, 131 N. W. 342; State v. Phillips, 233 Mo. 299, 135 S. W. 4; State v. Hess, 240 Mo. 147, 144 S. W. 489; State v. Webb, 254 Mo. 414, 162 S. W. 622. See also Fort v. State, 74 Ark. 210, 85 S. W. 236; People v. Weber, 149 Cal. 325, 86 Pac. 671; Adams v. State, 54 Fla. 1, 45 So. 494; Jackson v. State, 116 Ind. 464, 19 N. E. 330; Pierson v. State, 18 Tex. App. 524: Hardy v. State (Tex.) 13 S. W. 1008; Thompson v. State (Tex.) 150 S. W. 181; State v. Spenc er, 15 Utah 149, 49 Pac. 302. Thus where it appeared that a prosecuting attorney, in addressing the jury on behalf of the people, asserted to the jury that he knew that the defendant was the man who took the money, the court said: "It is the duty of the public prosecutor to see that the person charged

with crime receives a fair trial so far as it is in his power to afford him one, and it is likewise his duty to use his best endeavor to convict persons guilty of crime; and in the discharge of this duty an active zeal is commendable, yet his methods to procure conviction must be such as accord with the fair and impartial administration of justice; and it is improper for one occupying the position of the prosecuting officer to make a statement to the jury of a fact, as of his own knowledge, which has not been introduceed in evidence under the sanction of an oath, relating to the material issues in the case." People v. Dane. 59 Mich. 550, 26 N. W. 781. Likewise a statement by a prosecuting attorney practically advising the jury that he had made a separate and independent investigation of the case in his official capacity and found the accused guilty, has been held to be erroneous, State v. Accardo, 129 La. 666, 56 So. 631. In Moore v. State, 10 Ga. App. 805, 74 S. W. 315, the court said: "If the statement is an expression of the personal opinion of the prosecuting attorney in a criminal case that the defendant is guilty, this is error, and it must be presumed to be prejudicial error, because cases can be imagined where counsel might be engaged for the prosecution whose personal opinion would have such weight with the jury as to unduly affect their finding upon the facts." In Nixon v. State, 14 Ga. App. 261, 80 S. E. 513, the foregoing language was quoted with approval and the conviction set aside because of the argument complained of. In People v. Quick, 58 Mich. 321, 25 N. W. 302, it appeared that the prosecuting attor ney asserted "under the solemnity of my official oath" a belief in the guilt of the accused. "This language came from an officer whose sworn duty required him to act only in furtherance of justice, and who is bound by statutory requirements to stand entirely impartial between the complainant and the prisoner. When such an officer gives the jury to understand that what he says is under the sanction of his official oath, and the court, when applied to, declines to correct that statement, it cannot be supposed that jurors may not give credence to it and govern their decision more or less by it." In Reed v. State, 66 Neb. 184, 92 N. W. 321, the court said: "A more serious question arises out of an expression used by the public prosecutor in his closing argument to the jury. In the course of his remarks he avouched his faith in the state's case by declaring that he believed the defendants guilty and that he hoped God would send lightning from heaven and strike him dead if he did not so believe. Considerable allowance is made for professional enthusiasm even in criminal cases, but it is not permissible to ground an appeal for conviction upon facts not given in evidence at the trial. We do not attach much importance to the offer of counsel to test the truth of his statement by ordeal. What he said in that behalf had no real significance; it was a mere rhetorical flourish. Calling spirits from the 'vasty deep' or levin from the sky is, in this materialistic age, a perfectly harmless diversion, for however vehe

ment the call may be, no answer is expected. But an assertion by the public prosecutor of his personal belief that an accused person is guilty as charged, may, in a doubtful case, tell decisively in favor of the state, and, unless the belief is given as a deduction from the evidence, is, in the opinion of able courts, sufficient reason for reversing a conviction. In the present case, however, it does not affirmatively appear that counsel's assertion was not based entirely upon the evidence. From the record before us we are inclined to think it was. At any rate we are not able to say that the error alleged is established."

If the reviewing court is of the opinion that the expression by the prosecuting attorney of a personal belief in the guilt of the accused was not instrumental in producing the verdict, the misconduct will be disregarded. People v. Smith, 147 Ill. App. 146; Kennedy v. State, 19 Tex. App. 618: Young v. State, 19 Tex. App. 536; Hable v. State, 28 Tex. App. 588,.. 13 S. W. 1001; Thomas v. State, 33 Tex. Crim. 607, 28 S. W. 534; Miller v. State, 35 Tex. Crim. 209, 33 S. W. 227; Spangler v. State, 42 Tex. Crim. 233, 61 S. W. 314; Davis v. State, 57 Tex. Crim. 545, 124 S. W. 104; State v. George, 58 Wash. 681, 109 Pac. 114. See also People v. Foo, 112 Cal. 17, 44 Pac. 453; State v. Jefferson, 43 La. Ann. 995, 10 So. 199; State v. Mack, 45 La. Ann. 1155, 14 So. 141. Thus it has been held that a statement by a prosecuting attorney that he does not prosecute a case unless he believes that the defendant is guilty, does not constitute prejudicial error. Webb v. State, 135 Ala. 36, 33 So. 487; People v. Welch, 80 Mich. 616, 45 N. W. 482; Cross v. State, (Tex.) 91 S. W. 223; Hinton v. State (Tex.) 144 S. W. 617; Lee v. State (Tex.) 148. S. W. 706. See also Hawkins v. State (Tex.) 71 S. W. 756. Compare Broznack v. State, 109. Ga. 514, 35 S. E. 123; State v. Hess, 240. Mo. 147, 144 S. W. 489. And see the reported case. So an instruction that the improper argument is to be disregarded is ordinarily held to obviate any prejudice therefrom. People v. Ward, 134 Cal. 301, 66 Pac. 372; Kennedy v. People, 40 Ill. 489;. Com. v. Bubnis, 197 Pa. St. 542, 47 Atl. 748; Pierson v. State, 18 Tex. App. 524. Thus in People v. Ward,. supra, it was said: "In the opening argument on behalf of the people, counsel expressed his belief concerning the defendant, to the effect that he believed him to be a thief, an embezzler, and a scoundrel, and that he had not an honest hair in his head, or an honest bone in his body; and counsel for defendant excepted thereto. The counsel for. the people then stated that he was speaking from the facts in the case, and that his statements were deductions therefrom, Counsel have no right to indulge in extravagant expressions of their belief, or in the use of degrading epithets. But the judgment should not be reversed because counsel lose their temper and indulge in epithets, unless it clearly appears that it prejudiced the defendant. The remedy for such excesses should be administered in the trial court, at the moment of transgression. The principal offense in such cases is against the dignity of the court,

Ann. Cas. 1916A.-28

and of that decorum which should always be observed by counsel in a court of justice. It never aids the prosecution, and usually creates sympathy for the defendant. The court, however, in charging the jury, called attention to this incident, and said: 'I want to charge you at this time, that the personal views and opinions of counsel, if any were expressed, must have no place in your deliberations. Counsel have no right to offer them to you, and you must not be swayed or guided in any way by such statements.' We cannot assume that the jury disregarded this instruction, any more than we could assume that it considered evidence that had been stricken out."

Pentland, Stuart, Gravel & Thompson, solicitors for appellant.

Morand & Savard, solicitors for respondent.

[238] THE CHIEF JUSTICE (dissenting).— This is an appeal from the Court of King's Bench, Quebec, [239] affirming the judgment of the Superior Court by which the widow and children of one Jos. Chalifour recovered $5,000 from the railway company for his death. The accident occurred at Chapleau, in the Province of Ontario. The deceased was travelling on a pass issued by the defendant company to the plaintiff's employer, the Gordon Ironsides Co. He was engaged in the shipment of cattle; the train upon which he was being carried met with an accident through the negligence of the company's servants which resulted in his death. The defence turns in large measure upon the effect of the contract between the Gordon Ironsides Co. and the railway company which provided that, where a pass was issued, the company should be freed from all liability whether caused by the negligence of its servants or otherwise.

The contract was made in Manitoba and the court below held that as no evidence was given respecting the law in Manitoba, it must be assumed to be the same as in the Province of Quebec and the case was, therefore, governed by the Quebec law.

In Quebec the wife and children have an independent cause of action (art. 1055 C.C.) But the death of the husband and father must be caused by an "offense or quasioffense" committed by the party proceeded against. In other words, delict is the foundation of the right of action.

It has been recently said that negligence, to be negligence, must be a breach of duty and unless there was a breach of duty to take care, there was no negligence. Here the deceased was, at the time of the accident, travelling on the railway on a pass issued by the company respondent under statutory authority, [240] and a condition of that pass was, that the deceased assumed "all risk of accident or damage to person or property and that the company should be free from all liability in respect of any damage, injury or loss caused by the negligence of the company, or its servants or employees or otherwise howsoever." This pass was issued by the company in connection with a "special live stock" contract approved of by the Board of Railway Commissioners and entered into by the employers of the deceased, containing this clause:

"In case of the company granting to the shipper or any nominee or nominees of the shipper, a pass or privilege less than full fare, to ride on the train in which the property is being carried, for the purpose of tak

ing care of the same while in transit, and at the owner's risk as aforesaid, then as to every person so travelling on such pass, or privilege less than full fare, the company is to be entirely free from liability in respect of his death, injury or damage, and whether it be caused by the negligence of the company, or its servants or employees or otherwise howsoever."

The legislation giving the Board of Railway Commissioners power to order and approve of such a contract was fully referred to and discussed in the case of Robinson v. Grand Trunk R. Co. 47 Can. Sup. Ct. 622, disposed of by this court a short time ago and in which I had the misfortune to differ from the majority of my colleagues (vide secs. 26, 30, 31, 284, 340, R. S. C. ch. 37). The following sections of the same chapter should also be considered: 55, 322, 327, 339.

The order of the Board authorizing the railway companies to use the form of "live stock contract" above referred to was duly published as required by the "Railway Act" (sec. 339), and thereafter had a like effect as if enacted in that Act (sec. 31).

[241] The terms of the pass on which the deceased was travelling were binding on all the parties who presumed to avail themselves of the privileges which that pass conferred.

This case is, in my opinion, distinguishable on other grounds from such cases as Henderson v. Stevenson, L. R. 2 H. L. Sc. (Eng.) 470, and Parker v. South Eastern R. Co. 2 C. P. D. 416, to which we were referred by respondent at the argument. In those cases the conditions relied upon were contained in an ordinary transportation ticket in common form, and it did not appear that the party receiving the ticket knew or had any reason to suspect that there were any special or exceptional conditions attached to it.

I agree with Mr. Justice Anglin that the deceased had notice of the conditions subject to which the pass was issued to him, or at least had reasonable notice and opportunity to have these conditions explained to him, and he did not choose to take advantage of that opportunity. It should not be lightly assumed that any man in this country is so ignorant as to believe that he may travel on a railway without a contract of some sort.

It is quite true, as Lord Watson pointed out in Robinson v. Canadian Pac. R. Co. [1892] A. C. (Eng.) 481, that the provision as to duelling in article 1056 shews, that cases were intended to be comprised in which there could be no right of action in the deceased. But the death must have been caused by the commission of an offence or quasi-offence, and if there was no duty owing to the deceased by the company there could be [242] no breach of duty and, therefore,

DAVIES, J.-This appeal is from the judg ment of the Court of King's Bench (appeal side) of Quebec, affirming a judgment of the Superior Court holding the appellant liable in damages for the death of one Joseph Chalifour, the husband and father of the widow and children bringing the action.

Chalifour's death occurred in the Province of Ontario in a collision between a locomotive of appellants' railway and a car of appellants in which deceased was travelling in charge of cattle belonging to his employers, the shippers of the cattle,

The contract to carry the cattle from Winnipeg, Manitoba, to Montreal, Quebec, was made in the former city, and the accident occurred in the Province of Ontario.

Both courts below held that the rights of the parties under the contract were to be determined by the law of Quebec, where the carriage of the cattle ended, and that the rights of the widow and children to recover damages for the death of the deceased caused by the admitted fault of the company was under that law an independent right and could not be barred or destroyed by a contract or covenant made with the company by Chalifour before his death.

As establishing such a covenant, the ap pellant relied upon a contract between itself and the shippers of the cattle, the form of which had the approval of the Board of Railway Commissioners and also upon a condition printed upon the back of what was called a [243] pass, under which the deceased, as one of the men in charge of the cattle, was travelling.

These conditions were signed by one Addshead, who appeared to be the principal man in charge of the cattle, and also by Chalifour, the deceased.

The contentions of the company were first that the law of Ontario, where the accident occurred and of Manitoba where the contract was made were the same and that the rights of the plaintiffs and the company's liabilities were to be determined by that law and not by the law of Quebec; and, secondly, that the conditions of the contract or pass absolved them from all liability for damages arising out of the accident causing Chalifour's death, whether in the words of the condition, "such accident, injury, damage or loss is caused by the negligence of the company or of its servants or employees or otherwise howsoever."

In other words, the company contended that it had with the sanction of the Railway Board, contracted itself out of any liability

whatever, even if caused by gross negligence or otherwise arising out of the carriage of Chalifour as man in charge of the cattle from Winnipeg to Montreal.

In the view I take of the proved facts and the liability of the company under them, it is not necessary that I should express any opinion upon the important question as to whether the law of Quebec or that of Ontario or Manitoba is to be the governing law in this case.

Mr. Smith contended for the respondents that while the Railway Board had sanctioned the form of contract between the shippers of the cattle and the company exempting the latter from liability in respect [244] of the death, injury or damage of the men in charge of the cattle whether caused by negligence or otherwise, it had not expressly sanctioned the form of pass or contract which the company had made or contended it had made with the man himself and that such latter contract was still within the provisions of section 340 of the "Railway Act" prohibiting contracts impairing carriers' liabilities unless authorized or approved of by the Board.

I am of opinion that the class of contract to be made between the railway company and its shippers approved of by the Board is quite sufficient to cover the pass or contract made with Chalifour, if that is binding, and the omission of the word "death" in this latter contract or pass does not affect its real meaning or limit that meaning.

The question, however, remains to be determined whether any binding contract with conditions as those contended for, was made between Chalifour and the company, and that must be determined upon a consideration of all the facts and circumstances.

Chalifour was a French Canadian who resided with his family in the Province of Quebec. He could neither read nor write French or English, but he could write his name. He was quite an illiterate man and as proved could not even read the newspapers in his own language. He spoke and understood a little English, enough to enable him to understand orders or instructions respecting his duties or employment as a cattle drover or caretaker. He is one of a large class in Quebec well known in Canada.

Before the train started from Winnipeg he and his co-employee, Addshead, signed a paper or rather certain "conditions" on the back of a paper on the front [245] of which headed in large capitals were the words "Live Stock Transportation Pass."

It was signed in the presence of two employees of the company, one Devillers, who witnessed it and was an interpreter of foreign languages and understood French, and one

Anderson, another employee, who did not understand or speak French.

The evidence they gave is somewhat meagre. Anderson says he does not understand French, but stood beside Devillers while he filled in the pass, that there was some conversation between Devillers and Chalifour in French, but he did not understand it. All he seemed to be clear about was that if any questions were asked with respect to the conditions they were explained. Devillers does not remember what the circumstances were or if he had any conversation with Chalifour or whether he explained the conditions.

It seems quite certain that the live stock contract itself was not shewn to Addshead or Chalifour and that the only paper they saw at all was one on which was printed on the front in large type, "Live Stock Transportation Pass," and on the back "conditions" which they signed. My conclusion is that all they saw was the back of this paper headed "conditions" and that they asked no questions, received no explanations and really did not have any idea what the paper was, except that it had something to do with the cattle which they were in charge of and their carriage, and that they as men in charge had to sign it.

To draw an inference that this illiterate French Canadian, who only spoke or knew enough English to take and carry out orders connected with his work in taking care of cattle and tending them; who could not read in either language nor write anything beyond [246] his own name, knew or could have known the nature of the document he was signing, is something I must decline to do.

Whether he did so know or must be held to have known is more an inference of fact to be drawn from all the circumstances than a presumption of law.

Chalifour's signature under the facts and circumstances proved, if it carries us as far certainly does not carry us any further than his acceptance of the pass if handed to him would have done without his signature.

All he knew was that he was one of the men in charge of the cattle to take care of them and tend them to Montreal: If the heading of the pass itself "Live Stock Transportation Pass," had been read to him it would not have conveyed the slightest idea to his mind, in my humble judgment, that he was agreeing with the company to take all the chances of the trip and that in case he was injured the company were not to be liable to him even for the grossest negligence.

I think the cases clearly establish that there is no rule or presumption of law that a person is necessarily bound by the conditions contained in a document delivered to him as a transportation ticket, and I do not

think that the mere signature itself under the circumstances and facts proved in this case changes the law with respect to such rule or presumption. Henderson v. Stevenson, L. R. 2 H. L. Sc. 470; VanToll v. South Eastern R. Co. 12 C. B. N. S. 75, 104 E. C. L. 75.

My position is that Chalifour did not know it was a ticket or pass at all he was signing. It was not handed to him, but to Addshead, his co-worker, and, [247] after the accident, was produced by Addshead, who evidently had retained possession of it all along. It does not appear ever to have been in the hands or possession of Chalifour.

In the case of Parker v. South Eastern R. Co. 2 C. P. D. (Eng.) 416, Mellish L.J., after reviewing several of the cases, at page 422, says:

"Now, I am of opinion that we cannot lay down, as a matter of law, either that the plaintiff was bound or that he was not bound by the conditions printed on the ticket, from the mere fact that he knew there was writing on the ticket, but did not know that the writing contained conditions."

And at page 423:

"I am of opinion, therefore, that the proper direction to leave to the jury in these cases is, that if the person receiving the ticket did not see or know that there was any writing on the ticket, he is not bound by the conditions; that if he knew there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions; that if he knew there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he would be bound, if the delivering of the ticket to him in such a manner that he could see there was writing upon it, was, in the opinion of the jury, reasonable notice that the writing contained conditions."

The real and proper question seems to be whether the company did that which was reasonably sufficient to give the plaintiff notice of the condition under which they seek to be released from liability.

The well known case of Watkins v. Rymill, 10 Q. B. D. (Eng.) 178, in 1883, may seem somewhat at variance with that statement. It was there held that "if a document in a common form is delivered by one of two contracting parties to and accepted without objection by the other, it is binding upon him, whether he informs himself of its contents or not."

This decision made no allowance for the special circumstances under which the document was delivered [248] or the capacities or experience and knowledge of the parties.

The later decision of 'the House of Lords, however, in Richardson v. Rowntree [1894] A. C. (Eng.) 217, is that the question is