Trans-Canada Forest Products v. Heaps, Waterous Limited and Lipsett Engine & Mfg. Co.

Trans-Canada Forest Products v. Heaps, Waterous Limited and Lipsett Engine & Mfg. Co.
Collection
Supreme Court Judgments
Date
1954-01-04
Report
[1954] SCR 240
Judges
Rinfret, Thibaudeau; Taschereau, Robert; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert
On appeal from
British Columbia
Subjects
Torts
Decision Content
Supreme Court of Canada
Trans-Canada Forest Products v. Heaps, Waterous Limited and Lipsett Engine & Mfg. Co., [1954] S.C.R. 240
Date: 1954-01-04
Trans-Canada Forest Products Limited (Plaintiff) Appellant;
and
Heaps, Waterous Limited and Lipsett Engine and Manufacturing Company Limited (Defendants) Respondents.
and
Ada Flora Hoff, Executrix of Chris Bergvin Hoff, Deceased (Plaintiff) Appellant;
and
Heaps, Waterous Limited and Lipsett Engine and Manufacturing Company Limited (Defendants) Respondents.
1953: October 29, 30; November 2, 3, 4, 5, 6; 1954: April 1.
Present: Rinfret C.J. and Taschereau, Estey, Locke and Cartwright JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Negligence—Damages—Master and Servant—Fire started while mechanic was testing engine which he had repaired—Fire due to short circuit in cables leading from batteries to engine—Worn out insulation—Failure to make proper inspection of cables—Repair man in general employment of general distributor of engine—Repair contract given to local distributor—Repair man was servant of whom—Actions in contract and in tort—Indemnity right of local distributor from general distributor. When trouble developed in a diesel engine used to operate a planer mill, the property of the appellant Hoff and occupied by the appellant Trans-Canada Forest Products Ltd. as tenant, the respondent Heaps, Waterous Ltd. as the local agent who had sold the engine was asked by Trans-Canada to have the repairs made. Pursuant to an established practice between this local agent and Lipsett Engine and Manufacturing Co. Ltd. the general agent for the Province, the latter sent Martin, an experienced mechanic, and his helper, both in its general employment, to effect the repairs.
The mechanics found the engine, which was situate in a lean-to adjoining the mill, in a dirty condition, and so were the cables running from its starting mechanism to the two batteries required to start it. The cables and the batteries had not been purchased from either dealer.
After the men had completed the repairs, they replaced the cables and the batteries which they had removed to do their work. They wiped the cables in a casual manner and seeing no defect in them except for being covered with oil and sawdust, replaced and reconnected them. As at their first try to start the engine, it would not turn, they transposed the cables. On the fourth attempt, a fire, which eventually destroyed the mill, was seen to commence on the floor near the cables.
The appellants brought actions for damages against both respondents, and Heaps, Waterous Ltd. took third party proceedings against Lipsett Engine and Manufacturing Co. Ltd. The actions were consolidated and the trial judge, who found that Martin had been negligent, gave judgment to Trans-Canada against both respondents and allowed the third party proceedings. The appellant Hoff was awarded damages against the Lipsett company. The Court of Appeal held that Martin had not been negligent and dismissed the actions.
Held: (Locke J. dissenting), that the appeals should be allowed.
Per: Rinfret C.J., Taschereau, Estey and Cartwright JJ. The trial judges' finding that the fire was caused by a short circuit due to a defective insulation of the cables was fully justified upon the evidence.
2. It would be included in Martin's duty to test his work by starting the engine, and the evidence supported the view that he was negligent in not continuing to exercise reasonable care to see that the cables remained as he had replaced them separate and apart from each other: he permitted them to become crossed and inspected them only casually.
3. Even if the evidence did not affirmatively establish the negligence, this was a proper case for the application of the res ipsa loquitur rule. The repair men were given complete charge and control of the engine and room.
4. The contract for repairs having been given to the Heaps Company by Trans-Canada, the negligent performance of the work under this contract constituted a breach thereof.
5. In the circumstances of this case, the repair men were the servants of the Lipsett company.
6. The evidence did not establish contributory negligence on the part of Trans-Canada in supplying the cables in the condition in which they were. Martin was an expert and the evidence showed that he was aware of the dangerous condition created by the defective cables. Moreover, the evidence did not establish that fire extinguishers would have controlled the fire. 7. Trans-Canada was entitled to recover damages against the Heaps company in contract and against the Lipsett company in tort, and the latter should indemnify the former. The appellant Hoff was entitled to recover from the Lipsett company.
8.Damages varied. A tenant having an option to purchase in the event of a fire can recover in damages only the value of the option.
Per Locke J. (dissenting): As the purpose of the work was to produce a satisfactorily operating engine, it could not be said that to test the effectiveness of the work by starting up the motor was not within the scope of the employment of Martin.
2.That the fire was commenced by a short circuit was the only proper inference to be drawn from the evidence, but it was not possible, on the evidence, to reach a sound conclusion as to how the short circuit was caused.
3. No actionable negligence on the part of Martin was disclosed by the evidence. The fact that the batteries and the cables had been apparently in effective use until a short time before the fire and the further fact that the batteries were connected to the engine when Martin arrived to do the repairs would undoubtedly lead him to believe that they were in a safe condition to be used. It would place the duty of Martin on too high a plane to say that he should have detected that the cables were in such a defective condition and that his failure to do so was actionable negligence.
4. Assuming that the principle res ipsa loquitur applied in the circumstances of this case, this would not impose upon the respondents the duty of showing how the fire was caused but simply to show that Martin was not negligent. (Woods v. Duncan [1946] A.C. 401).
5.The evidence did not disclose that Martin knew that the insulation of the cables was defective or that crossing them had anything to do with the starting of the fire.
6.There was no breach of any duty imposed upon the Heaps company by the contract.
APPEAL from the judgment of the Court of Appeal for British Columbia[1] , reversing, O'Halloran J.A. dissenting, the judgment at trial in consolidated actions and proceedings for indemnity arising out of a fire.
Alfred Bull Q.C. and C. C. I. Merritt for the appellants.
C. W. Tysoe Q.C. for Heaps, Waterous Limited.
J. W. de B. Farris Q.C. and F. A. Sheppard Q.C. for Lipsett Engine and Manufacturing Co. Ltd.
The judgment of Rinfret C.J. and Taschereau and Estey JJ. was delivered by:—
ESTEY J.:—The appellant Hoff as owner and appellant Trans-Canada Forest Products Limited as lessee of a planing mill at Prince George, B.C., respectively brought the above-named actions to recover damages suffered when the mill was largely destroyed by fire. The mill was operated by a Murphy diesel engine and, after certain repairs had been completed thereon, in the course of efforts to start and test the engine this fire occurred. The actions were brought against both respondents because Trans-Canada Forest Products Limited had requested Heaps, Waterous Limited to make the repairs which were, in fact, made by two men, Martin and Benson, while in the general employment of the respondent Lipsett Engine & Manufacturing Co. Ltd. In this action both respondents contend that these men were at the material times the servants of the other.
After the actions were commenced respondent Heaps, Waterous Limited initiated proceedings for, in the event of its being found liable, indemnity from respondent Lipsett Engine & Manufacturing Co. Ltd. These actions and the proceedings for indemnity were consolidated prior to trial.
The parties, for convenience, will be referred to hereafter as Hoff, Trans-Canada, Heaps and Lipsett.
The trial judge found the expert Martin negligent and gave judgment in favour of Trans-Canada against Heaps and Lipsett jointly and severally in the sum of $125,653.79. The trial judge dismissed Hoff's action against Heaps, but gave judgment in favour of Hoff against Lipsett in the sum of $23,180.91 and directed that Heaps was entitled to be indemnified by Lipsett in the sum of $125,653.79. In the Court of Appeal[2] the majority held that Martin was not negligent and, therefore, dismissed both actions and the proceedings for indemnity. Mr. Justice O'Halloran, dissenting, would have found both Martin and Trans-Canada negligent and varied the judgment to the extent of holding Trans-Canada 80 per cent responsible and Heaps 20 per cent responsible, with the right of Heaps to be indemnified by Lipsett.
In November, 1948, when trouble developed in the Murphy diesel engine, Trans-Canada consulted Heaps. As a consequence, new piston rings were ordered from Heaps. These Heaps obtained from Lipsett and, pursuant to the agreement between Heaps and Lipsett, the latter sent its expert Martin and his helper Benson to install same. In the course of taking the engine apart to install the piston rings Martin found a cylinder lining cracked which he reported to Heaps. Then, after a further consultation between Heaps and Trans-Canada, the latter ordered from Heaps a complete new set of cylinder linings. While an order had been given on December 8 for the piston rings and the installation thereof, both the piston rings and the cylinder linings were included in a new order which was dated back to December 8, the material portion of which reads:
Supplying and installing set of piston rings and cyl. liners (6).
Martin and Benson had completed the installation of both the piston rings and the cylinder linings and, in order to test their work, were endeavouring to start the engine when the fire occurred.
The engine room, about ten feet in width and fifteen feet in length, was a lean-to adjoining the mill. Martin and Benson found the temperature very low and along two of the outer walls they placed tar paper in order to stop the wind from blowing through. They also installed a stove. This room had a dirt floor with two ten-inch planks, approximately two inches apart, placed parallel in front of the engine upon the operator's side and approximately two inches from the skids upon which the engine rested (these skids were embedded in and the tops thereof were even with the earth). There was nothing in the room except the stove, the engine and its accessories. Martin found the room and the engine in a rather dirty condition. The latter he brushed off before taking it apart, in order that dirt might not fall into the engine. The planks had a good deal of oil and grease on them. He complained of the dirt but nothing was done. He did not press his complaint as he says it was no different from other engine rooms in the area and that he concluded it was a safe place to work.
This engine started from two twelve-volt batteries, which would normally be placed in a case provided therefor in the lower part of the engine frame. However, these cables, three and one-half to four feet in length, were too short to permit of the batteries being kept in the case and they were placed, as Martin found them, on the planks with the cables running from the batteries over the planks to the starter and switch of the engine. The cables he estimated to be three quarters of an inch in diameter and he believed the copper strands to be "wrapped with rubber and some kind of asbestos coat on the outside." Martin, in order that these cables should not be tramped on, removed them before starting to work and placed them on a shelf in the room about four feet high and the batteries he placed outside of the engine room.
In order to clean parts of the engine they used diesel oil and gasoline. While much of the work of cleaning was done in another and warmer room, Martin admits that some oil and gasoline might have been splashed upon the walls or floor.
The learned trial judge found "that the fire was caused by a short circuit due to defective insulation of the cables leading from the batteries to the starting motor." Then, specifically referring to Martin, he stated:
I have come to the conclusion that Martin, who impressed me as being a competent workman and an honest witness, was, unfortunately, negligent:
(a) in endeavouring to start the engine when he knew the insulation of the battery cables was defective;
(b) in permitting the battery cables to become crossed;
(c) in making only a casual inspection of the battery cables;
(d) in failing to advise the plaintiff Trans-Canada that the batteries should be placed in their proper container and that new and longer cables should be procured;
(e) in failing to warn the plaintiff Trans-Canada of the danger of continuing to use cables, the insulation of which had deteriorated.
These actions raise a number of issues: (1) Was Martin negligent? (2) If he was negligent, was he, when working upon this engine, the servant of Heaps or Lipsett? (3) If Martin was negligent, was Trans-Canada negligent? (4) Against whom can Hoff as owner of the building claim damages? and finally, if Heaps is liable, can that company recover by contribution or indemnity from Lipsett?
The learned trial judge's finding that the fire was caused by a short circuit due to defective insulation of the cables is fully justified upon the evidence and, as I followed the argument, not contested by any of the parties. Martin had been a diesel engine mechanic for thirteen years and with Lipsett since 1946. Though not an electrician, he had started many of these engines with this equipment and his evidence indicates that he had some knowledge as to composition of the cables, the effect of oil and sawdust upon the insulation and the possibility of the copper strands penetrating the weakened insulation and causing a short circuit. On the morning of Tuesday, December 14, when the engine had been assembled and filled with oil and antifreeze, Martin and Benson brought in the batteries and cables and replaced them as before—the batteries on the end of the planks and the cables running along the top of them and crossing to the engine. Martin described the planks as "saturated in oil." He described the cables as "very badly soaked in oil and covered in sawdust" which, he said, "would deteriorate the insulation." He deposed:
When we disconnected them from the engine we put them on the shelf so that they wouldn't be stepped on and when ready to use them I took them down and wiped them over with a clean rag, looking for any breaks in the insulation. I saw none. So I connected them back to the engine and the batteries.
and further:
Q. Did you get all the sawdust and oil off them, so that you were able to examine all the insulation?—A. No sir, I just wiped, pulled the rag over the cable once.
Then again:
Q. What examination did you make of the cable—just while you pulled the rag across and looked at them, is that all?—A. Yes.
Q. It wasn't a very minute examination?—A. No.
Q. A very casual one, wasn't it?—A. Yes.
Q. And there might have been defects in the insulation which you didn't notice?—A. It would be a fairly small defect.
Q. But my question is there might have been defects there that you didn't notice on that casual inspection?—A. There could have been.
Notwithstanding that Martin realized these cables had been saturated with oil for a long time and were covered with sawdust, he, upon this casual examination, concluded "it was safe to use them in that condition." Such an examination by one who appreciated the possibility of a short circuit cannot be accepted as that of a reasonable man with Martin's knowledge and experience in order to found such a conclusion. However, his conclusion that it was safe to use the cables, when considered in relation to the other relevant portions of his evidence, means no more than that it was safe so long as he exercised that degree of care which would prevent these cables from coming in contact one with the other or some other metallic substance which might cause a short circuit. In considering the circumstances here present, it is important to remember that not only were the cables weakened, but the presence of oil and grease made it a place where a fire might easily start and spread quickly. Martin appreciated all this and replaced the cables, using care to see that they were at a distance of one and one-half to two inches from each other as they passed from the terminals to the switch and starter.
When attaching the cables Martin could not find any mark indicating the negative or positive terminals on the battery. He, therefore, after connecting them, tested them by endeavouring to start his generator. When it failed to start he transposed the cables on the battery terminals. This of necessity, as Martin says, would cross the cables. He, having regard to the fact that in the low temperature of twenty to thirty degrees below zero the cables were hard and stiff, concluded that they would cross on the ground beside the battery. He did not say they were, nor would it necessarily follow that they were touching.
After so transposing the cable ends Martin "released the compression of the engine and turned it over with the starter several times" and, finding everything in order, he advised Benson they were ready to start the engine. He then directed Benson to go to the manifold side and "hold the governor control," while he himself, on the operating side, handled "the throttle and starting lever." When they attempted to start the engine it turned over freely, the starter functioned properly and everything seemed to be working as it should be, but the engine would not start. There was no ignition or combustion. They then examined the fuel pump, the valves and the injectors and found them in order. They made a second attempt, but with the same result. Martin then instructed Benson to get a blow torch from the office. In a few minutes Benson returned, saying that they had not found one, but would bring it down. In another five or ten minutes the mill superintendent came in and stated it could not be found. A third attempt and then a fourth was made, but still the engine would not start. After the fourth attempt Benson, seeing smoke arising beside Martin, called to him. Martin then saw fire behind and to his right "on the planks between the battery cables…" approximately "eight to ten inches from the side of the engine" and ten to twelve inches from the batteries. He estimated the fire to be four inches in diameter and the flame about ten to twelve inches in height. The learned trial judge described Martin as a competent workman and an honest witness. He, therefore, accepted his evidence. However, upon his own evidence, Martin makes it clear that in replacing the cables he was, as already stated, careful to keep these cables one and one-half to two inches apart. Thereafter he makes no mention of the cables except to say that they were not crossed at the point of the fire. What, therefore, may have occurred with respect to these cables between the replacing thereof and the fire is not covered by the evidence. A summary of what happened within that time would include motoring the generator, transposing the cables on the battery terminals, an attempt to start the engine, an examination of the fuel, valves and injectors, a second attempt, Benson's going for a blow torch, a third and a fourth attempt. All this would cover some considerable time. The delay incident to the effort to obtain a blow torch would be, upon the record, approximately twenty to thirty minutes. It may be that, frustrated in his efforts and concentrating upon what might be the reason of his failure, he neglected the cables. In any event, apart from the fact that he says they were not crossed at the point of the fire, he makes no reference to them in all that happened after he had replaced them. Even in transposing the cables it is not that he saw but that he surmised he had crossed them. Then as a short circuit did not develop until after the fourth attempt there was no contact as the cables were originally placed and, therefore, the cables must have been disturbed or moved thereafter in order to cause a short circuit.
It was emphasized on behalf of the respondents that there was no proof that where the cables crossed at or near the base of the batteries they touched and no proof that they were crossed at the point of the fire. It is clear, upon the evidence, that unless there was an actual contact of copper to copper or copper to some other metal a short circuit would not, in the circumstances, have been caused. The possibility is suggested of a short circuit caused by a nail or other piece of metal. There is no suggestion that any such material was present either in or on the planks. Then as to the possibility that the short circuit might have been caused by a contact with the frame of the engine, it would seem rather improbable, having regard to the time that elapsed between the affixing of the cables to the starter and switch and the time of the fire. The transposition of the cables, while it might well disturb the cables for some distance along the boards, would not be so likely, having regard to their condition, to move those parts beside the engine. Moreover, whatever movement there might have been in the cables beside the engine would more probably be a sliding from one side to the other rather than a turning of the cables and, therefore, not likely to effect any additional contact between the cables and the frame of the engine. Apart from all of these considerations, and possibly even more pertinent, is the fact that the fire occurred on the planks eight or ten inches from the engine and points directly to a short circuit occurring at or very near that point. The evidence does not support a view that the fire spread prior to Martin's seeing it. In so far as it might be suggested that gasoline fumes would be present, that possibility was, for all practical purposes, negatived by the fact that all the gasoline had been removed from the engine room some time before any attempt was made to start the engine.
It is true that neither Martin nor Benson saw a spark or a flash, or heard any sound that would suggest a short circuit, nor, indeed, did Martin observe any interruption in the operation of the starter that would suggest a short had been caused. However, the experts indicate that in this type of equipment a short might be caused without those indices and, as the fire was observed only after the fourth attempt, it is not surprising that an interruption in the operation of the starter was not observed.
Martin was under a duty not only to install the piston rings and cylinder linings but to execute that work in such a manner that the engine would the better perform the work for which it was intended. It would, therefore, be included in his duty that he should test his work by starting the engine. It was in appreciation of this part of his duty that he attempted to start the engine, in the usual and normal manner, by using the batteries and the cables. In doing so he would not be outside the scope of his employment. The fact that Lipsett did not supply the batteries and cables with the engine would not affect Martin's position at this time. He was in the course of performing the work he was employed to do and pursuing the only course that was open to him in the circumstances. The evidence, with great respect to the opinion of those learned judges who hold a contrary opinion, supports the view that Martin was negligent in not continuing to exercise reasonable care to see that these cables remained as he had replaced them separate and apart from each other. The learned trial judge when he used the word "crossed" had in mind, I think, contact between the cables, more particularly as he would fully appreciate that mere crossing alone would not, without contact, effect a short circuit. I, with great respect to those who hold a contrary opinion, agree with the learned trial judge's finding under both headings (b) and (c).
Even if the evidence does not affirmatively establish that Martin was negligent, it would seem that this is a proper case for the application of the res ipsa loquitur rule. The fire started because of a short circuit due to the deteriorated and weakened condition of the insulation of the cables. Exception is taken to the finding of the learned trial judge that "He" (Martin) "and Benson were in sole control not only of the engine but of the building in which it was situated when the fire occurred." The evidence fully supports this finding when construed, not in the sense that Trans-Canada had surrendered possession, but that its employees had withdrawn, and, while Martin and Benson were working upon the engine, they were given complete charge and control of the engine and the room. Martin admitted such to have been the position and, further, that he was not at any time interfered with.
In United Motors Service, Inc. v. Hutson[3] , the lessees of a garage were cleaning a cement floor, using gasoline, scrubbing it with a stiff brush and using a metal scraper when necessary, and finally washing it with a preparation known as oakite. A workman had requested that gasoline be poured on the floor in front of him and immediately the fire followed. Kerwin J., with whom my Lord the Chief Justice (then Rinfret J.) and Crocket J. concurred, stated at p. 303:
The operations being under the control of the appellant and the accident being such 'as in the ordinary course of things does not happen if those who have the management use proper care,' the doctrine res ipsa loquitur serves to make these circumstances 'reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.' Scott v. London & St. Katherine Docks Co., (1865) 3 H. & C. 596.
Duff C.J., with whom Davis J. concurred, stated at p. 296:
I am satisfied that the circumstances established in evidence afford reasonable evidence of negligence in the sense that, in the absence of explanation, the proper inference is that the damage caused was the result of the negligence of the appellants; and that the explanations advanced are not of sufficient weight either to overturn or to neutralize the force of the inference arising from the facts proved.
Martin, throughout his evidence, does not indicate that he observed the cables with the care that the circumstances required in that interval of time between the placing of them one and one-half to two inches apart and the time of the fire. He admits that a short must have occurred, but he does not know just where or why there was a short circuit. His evidence does not deal with the cables throughout the critical period in a manner that offsets or neutralizes the inference of want of care on his part that the circumstances justify.
The learned trial judge found that Heaps was employed by Trans-Canada to do the work in question. Prior to the negotiations relative to this work it was understood between Trans-Canada and Heaps that orders must be in writing and, as already stated, the order here in question was in writing and covered both the supplying and installation of the piston rings and the cylinder linings. Indeed, apart from some evidence which Wall, the local manager of Heaps at Prince George, gave and which was not accepted by the learned trial judge, all the evidence supports the finding that Trans-Canada contracted with Heaps that this work should be done. As the learned trial judge states: "I accept Lymburner's statement that he did not know of Lipsett's connection with the work until after the fire." In the circumstances here present the negligent performance of the work under this contract constituted a breach thereof for which Heaps is liable in damages to Trans-Canada.
It does not follow that because Heaps contracted with Trans-Canada to do the work that Martin and Benson, in doing same, were, particularly as between Heaps and Lipsett, the servants of the former. This was not an isolated engagement. It was one arising out of the relationship between Lipsett as general and Heaps as local agent for these engines and, in particular, the agreement which these parties made with regard to servicing and repairing the engines. The learned trial judge found:
I find that the arrangement which was made was that if a customer of Heaps required repair work to be done which was beyond the capabilities of Wall, Lipsett would supply the labour and charge Heaps for it.
This finding is supported by the evidence. Under date of September 27 Lipsett, writing to Heaps, included the following: "where the job is too much for you to handle that you call upon us to have the work done." Then under date of January 25, 1949, Lipsett, in writing to Heaps, dealing with the matter of service, recommended that they should keep in stock "a fair amount of fast moving parts" and stated: "In order to do 100 per cent justice to those who have purchased Murphy Diesels from you, adequate service should also be maintained, and, here the services of a qualified mechanic are required." The letter then suggested that it would be desirable that Heaps should employ a qualified mechanic. As that was not a term of the contract it was, in fact, no more than a suggestion which emphasized the necessity of prompt and efficient service which the letter of January 25 further stressed in the statement: "The very important question always is to maintain proper service."
At the trial a portion of the evidence called on behalf of Lipsett rather emphasized that Lipsett was supplying only the men and Van Snellenberg, Manager of Lipsett, stated:
It was also arranged that the service work, which Mr. Wall couldn't handle, because he didn't have the technical ability to handle them he could call upon us and we would gladly supply him with the men experienced with the engines, to do the work.
Then, in reply to the question "Did you undertake to do anything, besides making these men available?" the answer was "No, we didn't. We just supplied labour." When, however, these statements are read and construed with the other portions of his evidence and the fact that it was in the interests both of Lipsett and Heaps that the servicing and repairing of customers' engines should be both prompt and efficient, it cannot be concluded that Lipsett was to supply only the men. On the contrary, it was to supply men competent to do the servicing of the engines for which purpose Lipsett had selected them or instructed them and over whom, so far as that work was concerned, Lipsett retained complete control. Heaps directed Martin and Benson to the engines and indicated, as specified by the order of December 8, the nature and extent of the work to be done, but it was not its duty nor was it expected that it would direct or control how the particular work was to be done. In fact it was common knowledge between Lipsett and Heaps that neither Wall nor any other of the employees of Heaps at Prince George was qualified to instruct or direct these men. Martin and Benson were at all times in the general employment of Lipsett from whom they received their pay and by whom such deductions from their wages as required by law or stipulated by the employees were made. Lipsett charged Heaps, as all other local agents, at a rate per hour and Heaps billed the customers. Apart from the guarantee that went with these engines, which had no relevancy in this case, it was the understanding that the customer would pay for servicing and repairing.
Quarman v. Burnett[4] , decided in 1840, is referred to by Viscount Simon in the Mersey Docks case[5] , as one that "has always been treated as a guiding authority." In that case the defendants, two elderly ladies, owned a carriage, but hired horses and a coachman from one Mortlock. The ladies directed the coachman where to drive and provided him with a livery. On the day in question, when he had returned to the house of the ladies and they had left the carriage, he, in replacing the hat in the house, left the horses unattended, when they ran away, causing injury to a third party who claimed damages therefor. Baron Parke, delivering the judgment of the Court, stated:
The immediate cause of the injury is the personal neglect of the coachman, in leaving the horses, which were at the time in his immediate care.
It was held that the ladies were not liable, as the driver remained the servant of Mortlock,
who had selected him as his servant, from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey;… In Century Insurance Co., Ltd., v. Northern Road Transport Board[6] , respondents, owners of petrol tankers, contracted with Holmes & Co. to deliver petrol to garages. Through negligence of the driver of a tanker a loss was suffered and the appellant, who had insured the respondent, refused to make payment under the policy, as in its view the driver was, at the time of the loss, acting as agent of Holmes & Co. and not of the respondent. Under its contract with Holmes & Co. respondent agreed to insure against fire and spillage in transit, dress all employees as Holmes & Co. might direct, carry workmen's compensation insurance and obey orders of Holmes & Co. respecting delivery and the payment of accounts, and that respondent should dismiss employees failing to obey orders of Holmes & Co. The contract also contained a proviso that the drivers were not servants of Holmes & Co. Lord Wright stated at p. 497:
Davison (the driver) was subject to the control of Holmes Mullin & Dunn, Ltd., only so far as was necessary to enable the respondents to carry out their contract. In doing so he remained the respondent's servant. They paid him and alone could dismiss him. Even in acting on the directions of Holmes Mullin & Dunn, Ltd., he was bound to have regard to paramount directions given by the respondents and was to safeguard their paramount interests.
Lord Wright, after further emphasizing that the employee in the position of Martin receives instructions from Heaps "so far as is necessary or convenient for the purpose of carrying out the contract" with Lipsett on behalf of and as servant for Lipsett, uses language particularly appropriate to the present circumstances:
Where the contract is a running contract, for the rendering of certain services over a period of time, the places where, and the times at which, the services are to be performed being left to the discretion (subject to any contractual limitations) of the other contracting party, there must be someone who is to receive the directions as to performance from the other party, and they are given to the employer, whether he receives them personally or by a clerk or by the servant who is actually sent to do the work.
In Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Limited[7] , the appellant board owned certain cranes and employed skilled workmen to operate them. The Board leased a crane and driver to respondent company as stevedores to load cargo on a ship. Owing to the negligence of the driver, one MacFarlane was injured. The sole question before the House of Lords was whether the driver was the servant of the Board or the stevedores. Viscount Simon, at p. 10, refers to the heavy burden resting upon an employer in the position of Lipsett:
It is not disputed that the burden of proof rests on the general or permanent employer—in this case the appellant board—to shift the prima facie responsibility for the negligence of servants engaged and paid by such employer so that this burden in a particular case may come to rest on the hirer who for the time being has the advantage of the service rendered. And, in my opinion, this burden is a heavy one and can only be discharged in quite exceptional circumstances. It is not easy to find a precise formula by which to determine what these circumstances must be.
Lord Macmillan, after pointing out, at p. 13, that the stevedores, who were in a position comparable to that of Heaps, "were entitled to tell him where to go, what parcels to lift and where to take them, that is to say, they could direct him as to what they wanted him to do," then pointed out "they had no authority to tell him how he was to handle the crane," and concluded: "In driving the crane, which was the appellant board's property confided to his charge, he was acting as the servant of the appellant board, not as the servant of the stevedores."
Lord Simonds, at p. 18, states the consequences that flow from the negligence of one in the position of Martin:
Here the fault, if any, lay with the appellants who, though they were not present to dictate how directions given by another should be carried out, yet had vested in their servant a discretion in the manner of carrying out such directions. If an accident then occurred through his negligence that was because they had chosen him for the task, and they cannot escape liability by saying that they were careful in their choice.
It is a question of fact in a particular case whether, at the relevant time, an employee is a servant of his general employer or that of another party. An illustration of where he was not in the employment of his general employer is Bain v. Central Vermont Railway Co.[8] , where Lord Dunedin stressed the essential time when the relationship of master and servant must be determined.
Their Lordships think that this is leaving out of view the point of time at which the position must be determined. In the words of the judgment reported by Sirey and quoted by Brodeur J. you are to look to the 'patron momentané qui avait ce préposé sous ses ordres et sur lequel il avait une autorité exclusive au moment de l'accident.' It is nothing to the purpose that there may be at the same time a sort of residuary and dormant control of the 'patron habituel.' The foregoing authorities emphasize that the onus is upon Lipsett to establish that Martin, as he worked upon and endeavoured to start this engine, was subject to the control and direction of Heaps. That Heaps directed him to the engine and indicated the nature and character of the repairs required, as disclosed by the order of Trans-Canada, does not make him the servant of Heaps. In receiving these directions Martin did so on behalf of Lipsett in order that the arrangement made between the latter and Heaps might be carried out. Throughout, how and in what manner Martin would make the repairs and start the engine was for him to decide, as an expert in the employ of Lipsett. As Lord Porter stated:
It is true that in most cases no orders as to how a job should be done are given or required: the man is left to do his own work in his own way. But the ultimate question is not what specific orders, or whether any specific orders, were given but who is entitled to give the orders as to how the work should be done.
Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Limited, supra, at p. 17.
It, therefore, follows that the finding of the learned trial judge that Martin and Benson were the servants of Lipsett must be affirmed.
It is contended that Trans-Canada was negligent in two respects:
(a) in supplying to Martin cables which i