Lord Sumner :-

The principal object of this appeal is to settle the true construction of Art. 1054 of the Civil Code of Lower Canada Special leave to appeal was given on the terms that the five actions brought in the courts below should be consolidated and that the appellants should raise only questions of law.

The appellant company generates and distributes electricity in the City of Quebec and its neighbourhood and along the St. Foye Road in which the respondents' houses are situated. The company had erected poles carrying two overhead cables a primary cable charged with electricity at 2200 volts and a secondary cable from which electricity was supplied to the houses at 108 volts. There were many trees along the road side and in the adjacent enclosures and at the time in question a violent wind had torn a branch coated with frozen rain from a poplar growing some distance within one of the enclosures and had driven it against these cables though many feet away. They broke down in consequence and thus the high tension electricity found its way along the secondary cable into the customers' houses and set them on fire. For the loss thus caused the actions now consolidated were brought against the appellant company.

Although no article of the Code is referred to by number in the declaration it is plain that both Arts. 1053 and 1054 were relied on, and so the cases were treated both at the trial by Dorion, J. and in the Court of King's Bench on appeal and in the Supreme Court of Canada. There was much difference of opinion among the judges, but the Supreme Court by a majority of one, restored the judgment of Dorion, J. in favour of the plaintiffs.

Two questions of law arise upon the Code (1) whether the plaintiffs can succeed without proving negligence or "faute" against the company; (2) whether even so the defendants would succeed if they proved that they could not have prevented the fire. In the Courts below it was argued for the defendants that they could not have foreseen the combination of bad weather overloading the branches with verglas and of wind breaking off the branch and driving it literally on to the cables and that they were accordingly the victims of force majeure. As to this the findings of fact are against them. It was also argued for the plaintiffs that if the defendants had installed suitable apparatus they would have received automatic warning at the central station of the breakdown of the cable in St. Foye Road in time to have cut off the current before any mischief was done, but as nothing was made of this below, it need not be pursued now.

The question whether and under what circumstances a defendant can be made liable in a case of quasi delict, unless actual faute is proved against him, has been much discussed in Quebec in recent years. The case of Shawinigan Carbide Co. v. Doucet's. 42. Can. S. C. R. 281. Brought the controversy to a head in 1909 and the Supreme Court was then divided in opinion. The present case renewed both the controversy and the division. In Doucet's case (1) which arose between employer and employee no definite cause could be discovered for the explosion by which Doucet, the plaintiff was injured. In the present case the cause of the occurrence is known. The issue, moreover, arises in the present case between contractor and customer. Accordingly Doucet's case might be no authority in the present case, but for the fact that in Quebec both cases depend on the language of the Code. Unfortunately this seems to have been imperfectly appreciated in the Canadian Courts and the question, "What do the words of Arts. 1053 and 1054 mean as a matter of construction?" was not in either case always kept in the forefront.

The opposing views may be summarised thus, without always referring them to the particular judgments in which they are stated. Faute it is said is the basis of all liability for quasi delict. To hold a man liable for either delict or quasi delict when he is not to blame is unjust. This