Lockhart v. Canadian Pacific Ry. Co.

Lockhart v. Canadian Pacific Ry. Co.
Collection
Supreme Court Judgments
Date
1941-04-04
Report
[1941] SCR 278
Judges
Duff, Lyman Poore; Rinfret, Thibaudeau; Crocket, Oswald Smith; Davis, Henry Hague; Kerwin, Patrick
On appeal from
Ontario
Subjects
Labour law
Decision Content
Supreme Court of Canada
Lockhart v. Canadian Pacific Ry. Co., [1941] S.C.R. 278
Date: 1941-04-04
Leonard Lockhart, suing by his next friend, Joseph Lockhart, and the said Joseph Lockhart (Plaintiffs) Appellants;
and
R. Stinson (Defendant);
and
Canadian Pacific Railway Company (Defendant) Respondent.
1940: November 20, 21; 1941: April 4.
Present: Duff C.J. and Rinfret, Crocket, Davis and Kerwin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Master and servant—Negligence—Servant’s negligence causing injury to third person—Liability of master—Question whether servant at time of such negligence was acting in the course of his employment—Judgments—Judgment at trial for plaintiff against servant but not against master—Question whether entry of judgment and certain proceedings precluded plaintiff from recovering against master on appeal—Pleadings—Jury awarding damages exceeding amount claimed—Amendment of pleadings after verdict. S., a general repair man in respondent’s employ, and whose duties took him to various premises of respondent, had made a key in respondent’s shops in West Toronto and was instructed by his foreman to take it to respondent’s premises in North Toronto to try it in the lock for which it was intended. S. was entitled to be paid for the time occupied in such an errand. Means of transport were available for his use—vehicles which could be run on respondent’s railway, and street-cars for which respondent would provide tickets. On the occasion in question no instruction was given by the foreman to S. as to mode of transportation. Notices had been given by the respondent to its employees (and brought to S.’s attention) for bidding use of privately owned automobiles in connection with respondent’s business unless the owner carried insurance against public J liability and property damage risks. In taking the key as aforesaid, S. drove his own automobile, in respect of which he did not have insurance, and on his way he negligently (as found by the jury at trial) struck and injured appellant. The chief question on the present appeal (treated by the trial judge as a question of law, and as to which no questions were referred to the jury) was as to respondent’s liability to appellant.
Held: Respondent was liable. The question whether a master is liable for injuries caused to third persons by his servant’s negligence depends upon whether under all the circumstances the servant at the time of the negligence was acting in the course of his employment, and, if he was so acting, liability attaches to the master even though the servant was doing something forbidden by the master. Upon the circumstances and facts in evidence, it must be held that S. at the time of the negligence was acting in the course of his employment within the meaning and application of the above rule.
Cases reviewed.
Judgment of the Court of Appeal for Ontario, [1940] O.R. 140 (affirming judgment of Rose, C.J.H.C., [1939] O.R. 517) reversed.
Held, further, that the facts that judgment had been entered against S. on appellant’s behalf, and on behalf of his father, by whom as next friend appellant, an infant, had sued, and that his father had, in his personal capacity, taken proceedings to secure by way of attachment part of his own damages awarded against S., did not operate to end appellant’s cause of action against respondent so as to nullify appellant’s right of appeal.
Held, further, that though the amount of damages claimed on appellant’s behalf in the statement of claim was $5,000, and no amendment was applied for until after the jury’s verdict, when the trial judge allowed an amendment to cover the sum awarded, namely, $10,000, the judgment for the sum awarded should not be disturbed
APPEAL by the plaintiffs from the judgment of the Court of Appeal for Ontario[1] dismissing their appeal from the judgment of Rose, C.J.H.C.[2] dismissing, as against the defendant Canadian Pacific Railway Com- pany, their action for damages by reason of injuries caused to the infant plaintiff when he was struck by an automobile being driven by the defendant Stinson, who was an employee of the defendant company.
At trial, before Rose, C.J.H.C., and a jury, the jury, in answer to questions submitted to them, found that the infant plaintiff’s injuries were caused by negligence of Stinson, and judgment was given against Stinson for the amounts of damages found by the jury. No appeal was taken by Stinson. No question as to liability of the defendant company was left to the jury, as the trial judge considered that the facts upon which the question turned were not in dispute and that the question was one of law. He later gave judgment dismissing the action as against the company. An appeal by the plaintiffs from this judgment was dismissed by the Court of Appeal (McTague J.A. dissenting). The plaintiffs appealed to this Court.
The plaintiffs were Leonard Lockhart, an infant, suing by his next friend (his father) Joseph Lockhart, and the said Joseph Lockhart. The latter claimed on his own behalf for expenses incurred, and his damages found by the jury at the trial were $500. As this was less than the statutory amount for appeal to this Court, and as he had not obtained leave to appeal, the dismissal of his claim as against the defendant company by the trial judge, affirmed by the Court of Appeal, stands.
The material facts and circumstances of the case, with regard to the questions before this Court on the appeal, are sufficiently stated in the reasons for judgment now reported. The appeal was allowed and the infant plaintiff was given judgment against the defendant company for the amount of the jury’s verdict (as of July 12, 1939, the date of the judgment of the trial judge dismissing the action as against the defendant company), with costs throughout.
D.J. Walker and C.M. Milton for the appellants.
W.N. Tilley K.C. and J.Q. Maunsell K.C. for the respondent.
The judgment of the Chief Justice and Davis J. was delivered by THE CHIEF JUSTICE—This appeal raises a question concerning the application to the facts of the case of the principle governing the responsibility of a master for the negligence of his servant.
The servant was one Stinson who was an employee of the Canadian Pacific Railway Company and who had been in the service of the Company for something like twenty-five years. He was a carpenter and his duties consisted mainly in doing repairs on the buildings and cars of the Company in Toronto and in its neighbourhood. On the day when the accident happened he had a key which, on the instructions of McLeod, his immediate superior (who is described as a bridge and building foreman), he had made for use in a lock at the premises of the Company in North Toronto. His usual place of work was at the Company’s station in West Toronto and he had made the key in the shops there. He informed the foreman that it was necessary to take the key to North Toronto in order to try it in the lock, and the foreman instructed him to do so. On his way to North Toronto, driving his own automobile, he ran down the infant plaintiff, and the action was instituted by the infant and the infant’s father against Stinson and the Railway Company, charging Stinson with negligence.
In the course of his duties Stinson was obliged at times to go to places in and outside of Toronto. Means of transport, it is said, were available for his use in such cases. There were vehicles which could be run on the respondent’s railway and there were the street-cars by which he could travel when it was more convenient to do so. He was forbidden, it is said, to use his own car in the Company’s business unless it was insured; and in any case, it is argued, he was not employed to drive an automobile and his negligence in the course of doing so was not negligence in the course of his employment.
The question is one of considerable difficulty. The best statement of the general principle is, I think, in the passages quoted from Story and adopted by Lord Macnaghten in Lloyd v. Grace, Smith & Co.[3] Lord Macnaghten’s opinion is expressely concurred in by Lords Atkinson and Shaw.
I venture to quote Story’s opinion, not only because it is the considered opinion of a most distinguished lawyer, but also because it is cited apparently with approval in the Court of Queen’s Bench, consisting of Cockburn C.J., Blackburn, Mellor, and Lush JJ., by Blackburn J. himself in a case which occurred in the interval between the date of Barwick’s case[4] and the decision in Houldsworth v. City of Glasgow Bank[5]. The passage in the judgment of Blackburn J. as reported in McGowan & Co. v. Dyer[6] is as follows: “In Story on Agency, the learned author states, in s. 452, the general rule that the principal is liable to third persons in a civil suit ‘for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances, and omissions of duty of his agent in the course of his employment, although the principal did not authorize, or justify, or participate in, or indeed know of such misconduct, or even if he forbade the acts, or disapproved of them.’ He then proceeds, in. s. 456: ‘But although the principal is thus liable for the torts and negligences of his agent, yet we are to understand the doctrine with its just limitations, that the tort or negligence occurs in the course of the agency. For the principal is not liable for the torts or negligences of his agent in any matters beyond the scope of the agency, unless he has expressly authorized them to be done, or he has subsequently adopted them for his own use and benefit.’”
It does not follow that the act of the servant which is the subject of complaint is not within the class of acts for which the master is responsible because, as between the master and the servant, it constitutes a breach of the master’s orders or is a “breach of authority” as defined by such orders. As Willes J. said in Bayley v. Manchester[7], the master “has his remedy against the servant for misconduct and breach of authority as between them,” although a third person has his remedy against: both of them. In Whitfield v. Turner[8], Knox C.J., in a judgment in which the other members of the High Court of Australia concurred, said:
The fact that Spinney’s authority to light a fire was only given to him in case of a certain emergency happening is nothing to the point. Lighting a fire was an act of a class which he had authority to do under-certain circumstances. Whether the circumstances did or did not exist might be very relevant as between Spinney and his employer, but is not relevant as between his employer and the plaintiff.
In Hamlyn v. Houston[9], Collins M.R. said:
The principal having delegated the performance of a certain class of acts to the agent, it is not unjust that he, being the person who has appointed the agent, and who will have the benefit of his efforts if successful, should bear the risk of his exceeding his authority in matters incidental to the doing of the acts the performance of which has been delegated to him. In Lloyd v. Grace, Smith & Co.[10], the question to be determined was the responsibility of a solicitor for a clerk who was in charge of the conveyancing department of the solicitor’s business. It was held that the solicitor was responsible for frauds involving forgery and theft committed by the servant by professing as clerk of the firm to transact business for a client. It is, of course, the essence of a solicitor’s duty to his clients not only to act honestly but to act diligently in protecting the interests of his clients in the business committed to him, and loyally and faithfully in the fulfilment of any trust reposed in him. It was of the essence of the nature of the clerk’s employment, who was the manager of the conveyancing branch of Mr. Smith’s business and who was left by Mr. Smith in charge of that branch of the business, to observe these duties towards the clients of the firm, and this, of course, he well knew.
Instead of acting honestly and faithfully in the protection of the client’s interest, he formed a design to steal the client’s money and by a series of acts purporting to be in his capacity of representative of the firm as the client’s solicitors he successfully executed that design.
In these circumstances it was held by the learned trial judge, and his findings were affirmed by the House of Lords, that the clerk was, in the pertinent sense of the words, acting within the scope of his employment and in the course of his agency. In point of fact the acts by which he wronged the client, although purporting to be in the course of his agency, were, as appears from what has been said, inconsistent and indeed incompatible with the essential nature of his employment; and, of course, as between himself and his principal a “breach of authority,” in the phrase of Willes J.
Lloyd v. Grace, Smith & Co.[11] was applied by the Court of Appeal to a case in which the managing clerk dealt with persons who were not clients of the firm, with the same result. The case was held to be “precisely covered” by the earlier decision. (Uxbridge Permanent Benefit Building Society v. Pickard[12]).
If the servant commits the wrongful act, in respect of which the master is charged, within the scope and in the course of his agency (in the sense in which these words are used and understood in the law), then it is immaterial that he is acting, in fact, against his master’s interests and for his own convenience and benefit. This is the proposition settled by the decision of the House of Lords in Lloyd v. Grace, Smith & Co.11
It is quite true that the servant while engaged in executing the duties of his employment may at the same time perform an act which has no relation to his employment, or to his master’s business; an act of such a character that in doing it he divests “himself of his character as servant,” to employ the words of Blackburn J. in Ward v. General Omnibus Co.[13], or in those of Collins M.R., which are to the same effect, in Cheshire v. Bailey[14], “in committing it he severed his connection with his master and became a stranger”; such acts, not purporting to be acts in furtherance of his employment) are not contemplated by the principle of responsibility now under consideration.
Of course, such phrases as those just quoted must be applied not as if embodied in a text of law but rather as indicating points of view from which the facts may usefully be considered. As Lord Macnaghten observed in Lloyd v. Grace, Smith & Co.[15], what is meant by such expressions as “acting in the course of his employment,” “acting within the scope of his agency,” is not easy to define with exactitude; and Sir Montagu Smith, speaking for the Privy Council in Mackay v. The Commercial Bank of New Brunswick[16], in a passage quoted by Lord Macnaghten in Lloyd v. Grace, Smith & Co.[17], said “it is not easy to define with precision the extent to which this liability has been carried.” As Lord Macnaghten observes in the same judgment, whichever of the various expressions may be most suitable to the particular case it must be construed liberally; but as a rule where the servant purports to be acting in the course of his service it is immaterial that, to repeat Story’s words, “the principal did not authorize or justify or participate in, or indeed know of such misconduct, or even if he forbade the acts, or disapproved of them.” I agree with Mr. Winfield who, in his book on Torts at p. 130, says that the question whether or not the servant’s conduct is in the course of his employment raises an issue of fact for the jury, subject to a proper direction by the judge as to general principles. He cites a number of cases (Whatman v. Pearson[18]; Mitchell v. Crassweller[19]; Lloyd v. Grace, Smith & Co.[20]; Baker v. Snell[21]). These instances might be supplemented by scores of others.
Turning now to the facts. It is admitted that the servant was, at the time he committed the negligent act, engaged in his master’s business. He was in the execution of his duty taking a key he had made to fit in the lock for which it was intended. I think it is useful to consider the facts from the point of view suggested by the phrases quoted above from Blackburn J. and Collins M.R.
This is one of those cases—it should be noticed—in which the facts pertinent to the issue of responsibility are peculiarly within the knowledge of the respondents and their servants. The circumstance that such is commonly the case where responsibility is in issue is adverted to by Willes J. and Byles J. in Limpus v. London General Omnibus Co.[22] as one reason why “secret” instructions should be disregarded. “The law is not so futile,” says Willes J., “as to allow a master, by giving secret instructions to his servant, to discharge himself from liability.” “Secret” instructions here seem to be instructions which in the ordinary course would be known only to the master and his employees. Byles J. says:
And that this direction is right seems to me to be proved from another consideration. If we were to hold that this direction was wrong, a change, of course, at Nisi Prius would follow, and the consequence would be that in almost every case a driver would come forward and exaggerate his own negligence or misconduct, he not being worth one farthing, and say, “I did it wilfully and unnecessarily,” and so the master would be absolved.
The onus in respect of this issue is, of course, on the plaintiff, but in such circumstances very little evidence may suffice for a prima facie case and to shift the burden of proof in the sense of going on with the evidence. The only witnesses possessing any knowledge on the point were two servants of the Company. They were Stinson, whose act of negligence was in question, and the foreman McLeod, to whose orders Stinson was subject. McLeod, who describes himself as a bridge and building foreman, was called for the plaintiffs. It was upon the evidence of these two witnesses that the plaintiffs were compelled to rely.
McLeod identified two notices, the terms of which are important and I give them in full.
CANADIAN PACIFIC RAILWAY COMPANY
Bruce Division
TORONTO, December 28, 1937.
ALL CONCERNED:
The use by employees of their own cars in connection with the Company’s business has been forcibly brought to our attention by possible heavy claims against the Company in recent accidents, and, after a check-up of the situation it develops that a large number of such employees do not carry public liability or property damage insurance. As a continuance of this practice is likely to seriously involve the Company, privately owned automobiles are not to be used in connection with the Company’s business unless the owner carries insurance against public liability and property damage risks.
Please be governed accordingly.
S.W. CRABBE,
Superintendent.
CANADIAN PACIFIC RAILWAY COMPANY
Bruce Division
TORONTO, March 21st, 1938.
ALL CONCERNED:
Referring to my circular letter of December 28th, 1937, regarding the use of privately owned automobiles not covered by insurance in the execution of Company’s business.
Since then, several instances have come to notice where employees had used unprotected automobiles contrary to the instructions. In one case, a telegraph messenger undertook to use an automobile while his bicycle was undergoing repairs, and had the misfortune to strike and injure a prominent citizen. As a result, a heavy claim has been preferred against the Company on the grounds that the messenger was transacting Company’s business at the time.
It is a serious matter to involve the Company in expenditures of this nature, and all concerned must clearly understand that automobiles not adequately protected by insurance must not be used in the execution of Company’s business.
Will you kindly take whatever steps are necessary to see that the instructions in this regard are being adhered to.
S.W. CRABBE,
Superintendent. These notices indicate that before the date of the first of them employees in the Bruce Division had been using their own cars (uninsured) when engaged in the business of the Company; and the circumstance should be emphasized that these notices do not require the discontinuance of this practice. The order is that such cars shall not be used in the Company’s business unless properly insured. The second notice shews clearly enough that the first had been disregarded to such an extent as to make necessary a second. As to the results of the second, one has only the evidence of the two witnesses mentioned, and they naturally speak only as to facts within their own limited observation; and I think there was sufficient evidence to cast upon the Company the burden of explanation. McLeod, a bridge and building foreman for a territory not defined, having his headquarters at West Toronto and a number (not stated) of men under his orders, received these orders for communication to these men. He says he read them to the men and posted them up and (a fact not to be overlooked) explained them. Both McLeod and Stinson say they understood the effect of them to be that an employee was permitted to use his car if it was insured.
McLeod says explicitly he took no steps to see that the rule was observed, beyond reading the orders and explaining them to the men; and the effect of McLeod’s evidence seems to be that he did not until after the date of the accident know that Stinson’s car was not insured; and Stinson says explicitly that no inquiry was addressed to him to ascertain whether his car was insured.
The respondents adduced no evidence to show that a breach of the rule was in any way penalized, even in the case of repeated breaches of it, by dismissal or by deduction from the offending employee’s wages in respect of the time spent in driving his car, or that any other disciplinary measure was taken.
McLeod says there were available to Stinson several permissible ways to get to the North Toronto Station. Two of these were by use of vehicles to be run on the railway, another was by the use of street-cars. There is no evidence that Stinson had ever used any of these methods of travelling from one part of Toronto to another on the Company’s business. Stinson, when asked whether he had used his automobile before the occasion in question on the Company’s business, answered “once or twice.” McLeod says that this had occurred “once and probably twice” before the occasion that gave rise to the litigation.
On the facts mentioned, in the absence of explanation, it was open to a jury to find that no steps were taken to ascertain whether or not the rule was being observed; in other words, that it was left to each employee himself to observe the rule as one of the duties of his employment and that in driving his car (though uninsured) he was regarded by the Company, in the words of the notice, as still using it (though improperly) “in the execution of the Company’s business”; and that Stinson had no idea that he was severing his relationship with the Company in doing so.
There was evidence, therefore, upon which the jury might have found, in respect of this issue, a verdict in favour of the appellant; but I do not think it necessary to consider whether the appellant would be entitled to a new trial, or whether the Court in the exercise of its discretion ought to direct a new trial, in view of the course of proceedings at the trial, in the Court of Appeal, and before us.
The learned Chief Justice of the High Court of Justice, before whom the case was tried, took the view that there was no issue of fact for the jury and held that the question of responsibility was a question of law only and that the legal result, on the uncontradicted evidence as he interpreted it, was that the driver Stinson was not acting within the scope or in the course of his employment in driving his car. Their Lordships, the Judges of the Court of Appeal, seem to have treated the question as a mixed question of law and fact and the appeal was argued before us on that footing.
We cannot, I think, treat the conclusion of the trial judge and the Court of Appeal as relieving us from the responsibility of considering the effect of the evidence. The learned trial judge treated the question as one of law, as I have already observed; I think he did not reserve it to himself in the exercise of a discretion, but decided it as a point of law; the learned Judges of the Court of Appeal were largely influenced by their view of the effect of the decisions cited in their judgments, some of which will be discussed later. I repeat that in my judgment there was, on the facts outlined above, evidence constituting a prima facie case for the appellant. My view of the result of the evidence is that Stinson, in using his automobile in the Company’s service on the occasion in question, had no idea that he was not acting in the Company’s service, and, moreover, when the terms of the notices are considered in light of the circumstances already mentioned, I think that such was not the Company’s view of the effect of the use by an employee of his automobile in disobedience of the order.
Some stress was laid upon an interview which is said to have taken place between Stinson and McLeod which, I shall assume, took place before the accident. As regards that incident, I think the effect of the evidence is that McLeod did not know that Stinson’s automobile was uninsured and that in substance the incident amounted to little, if any more, than the fact that McLeod called Stinson’s attention to the order. I have finished with the topic, discussed above, touching the sufficiency of the evidence to support a verdict on this issue in favour of the appellant, and I merely observe, in passing, that the appraisal of the testimony of McLeod and Stinson as to this incident was peculiarly matter for the jury. In any view of it, it adds nothing to the formal notices.
The evidence afforded by the formal notices of the use by employees of their cars uninsured in the Company’s business, the explicit statement by McLeod that he took no steps to see that the directions were carried out beyond reading the notices to the men and explaining them to them, the explicit statement by Stinson that nobody on behalf of the Company did “check up” on him “to see” whether his car was insured, taken together with Stinson’s conduct in disregarding the notices and the absence of any evidence that Stinson ever used any of the alternative methods of conveyance which are said to have been available to him, and the absence of any definite evidence as to the extent of the actual use of these alternative methods of conveyance and the absence of any evidence by any officer of the Company but McLeod as to steps taken to see that the order was observed, all point to the conclusion that the Company’s officers were indifferent to the observance of the order. Having regard to the circumstances, I think it is a reasonable view of Stinson’s conduct that in using his automobile for the purpose of transporting himself to North Toronto on the Company’s business he was not doing an act which was, in the pertinent sense, wholly outside his employment.
The respondents indeed did not make any attempt to shew that the order was generally observed; which is not surprising, in view of Stinson’s statement that no inquiry was addressed to him as to insurance. The defence of the respondents was really rested upon the order; and it was upon this point—the intentional disregard of the order by Stinson’s use of his automobile uninsured—that the judgments at the trial and in the Court of Appeal proceeded.
I have already mentioned the judgment of Knox C.J. in Whitfield v. Turner[23] in which it was held that where a servant has authority to do a given act in a state of circumstances or on conditions defined by his instructions, then, as between the master and a third person, it is, generally speaking, not material that the emergency defined in the instructions to the servant has not in fact arisen. In Goh Choon Seng v. Lee Kim Soo[24], it is said:—
The principle is well laid down in some of the cases cited by the Chief Justice, which decide that “when a, servant does an act which he is authorized by his employment to do under certain circumstances and under certain conditions, and he does them under circumstances or in a manner which are unauthorized and improper, in such cases the employer is liable for the wrongful act.”
and further,
Under head (3) come cases like the present, where the servant is doing some work which he is appointed to do, but does it in a way which his master has not authorized and would not have authorized, had he known of it. In these cases the master is, nevertheless, responsible.
Goh Choon Seng v. Lee Kim Soo[25], Whitfield v. Turner23, as well as Bugge v. Brown[26], mentioned in the judgments in the Court of Appeal, were fire cases. Bugge v. Brown26 was cited as an illustrative case in the judgment of this Court in Port Coquitlam v. Wilson[27], which was also a fire case. Decisions in fire cases ought to be applied cautiously. If there is authority from the proprietor of land in prescribed conditions to set fires, the proprietor may be responsible where the fire has escaped and caused damage through want of proper precautions, quite independently of respondeat superior. In Black v. Christchurch Finance Co.[28], the proprietor was held liable for the escape of a fire due to the negligence of an independent contractor. There are some observations by Higgins J. upon this topic in Bugge v. Brown[29]. Goh Choon Seng v. Lee Kim Soo[30], although a fire case in one sense, was not concerned with the responsibility of a proprietor for a fire kindled upon his own land. The fire in that case was kindled by the employees of the appellant on the land of the Crown and the application of the principle of respondeat superior consequently arose.
The principle enunciated in the last paragraph quoted from Lord Phillimore’s judgment is applicable here.
In the circumstances of this case the disregard of the order was immaterial because the servant’s disobedience was an act in violation of one of the duties of his employment. As Willes J. said in Limpus v. The London General Omnibus Co.[31]:—
I beg to say, in my opinion, those instructions were perfectly immaterial. If they were disregarded, the law casts upon the master the liability for the acts of his servants in the course of his employment.
Stinson’s disregard of the order in using his automobile to transport himself to North Toronto (which it was his duty by some means to do) was an act in the course of his employment in the sense of this observation.
It has been suggested that Lord Macnaghten’s judgment in Lloyd v. Grace, Smith & Co.[32] has undermined the authority of Limpus v. The London General Omnibus Co.[33] But a careful reading of the judgment of Willes J. in the Law Journal report leaves the conviction that the first part of that judgment is not based upon the assumption that the servant might have been seeking to promote his master’s interest. “It was,” says Willes J., “a case of improper driving,” and the liability is put on the ground set forth in the two sentences just quoted, a ground upon which, I think, the appellant’s claim can be supported here. It was left to him to see that his automobile was insured. Neglect in this was neglect in the duties of his employment, for which the master is responsible. I repeat, neither he nor the respondents considered that he was thereby divesting himself of his character of servant, nor was he, in my view, doing so in fact.
It was argued that Stinson, by his improper use of his automobile, put himself beyond the control of his master and that, therefore, on general principles, the situation was not such as to attract responsibility to the respondents for his negligent act.
In Williams v. Jones[34], Blackburn J. (as he then was) says:—
In such a case it may seem hard that the master should be responsible, yet he no doubt is if he be his master within the definition stated by Parke B. in Quarman v. Barnett[35], that the person is liable “who stood in the relation of master to the wrongdoer—he 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.”
It is not the master’s physical control over the conduct of his servant that gives rise to liability; it is the circumstance that he has selected the servant, who is bound to receive and obey his orders. For disobedience either in misconduct or in “breach of authority,” to use the words of Willes J. in Bayley’s case[36], already quoted, and for “exceeding his authority in matters incidental” to his employment, in the words of Collins M.R.[37], also quoted above, the master, as between himself and the servant, has his remedy by dismissal or otherwise, while third persons wrongfully injured by the servant’s act have their remedy against both master and servant.
I should like to say, with respect, that I entirely agree with Mr. Justice Masten in the caution he utters as to the cases decided under the Workmen’s Compensation Acts. Under these Acts the question is always a question between the employee, or his representatives, and the master, and an order, the disregard of which in such a case might be an answer to any claim by the servant and might give the master a remedy against the servant by way of dismissal, or penalty, or by an action for damages, may, nevertheless, be immaterial in a question between a third person and the master; and I think it ought to be noticed that the observation of Lord Dunedin in Plumb’s case[38] was not directed to any question of responsibility to third persons. An order that might properly be held to define “the course of employment” for the purposes of the Workmen’s Compensation Acts or generally as between the master and the servant, may, as between the master and the third person, merely impose upon the servant a duty, for default in the discharge of which the master is responsible to such persons.
Three cases were relied on, upon which some comment, I think, is advisable. I shall refer first to Williams v. Jones[39]. The plaintiff was the owner of a building which the defendant had the liberty of using with his servants as a carpentry shop. One of the defendant’s servants, while engaged in his duties as a carpenter and in the course of his master’s business, in lighting his pipe carelessly set fire to some shavings and the shop was burned. The Court of Exchequer Chamber by a majority of three to two, Blackburn J. and Mellor J. constituting the minority, held that on the admitted facts the defendant was not responsible for the negligence of his servant, because the negligent conduct was not in a matter which had anything to do with his employment. It is sought to apply that decision to the present case by the contention that Stinson was not employed to drive a motorcar, and that in view of the order and the fact that Stinson’s car was uninsured his act in driving his car must be held to be something wholly unconnected with his employment.
The analogy between Williams v. Jones39 and the present case entirely fails in my view. The act of the offending carpenter in that case in negligently handling the light he was using was something which, in the view of the majority, was wholly unconnected with the performance of his service, or with any duty connected therewith or incidental thereto. Here Stinson was not only engaged in his master’s service at the time he was driving his motorcar, he was performing a duty of the service in getting himself conveyed to the place where it was his duty to go. He was on his master’s business in conveying himself there by his car, unless the respondent’s contention is sound that by reason of the order and of the absence of insurance his act in driving his car on the Company’s business was of such a character, as already observed, as to sever the relationship of service. That I have dealt with.
Another case relied on is Rand v. Craig[40]. The defendant was a carman and contractor and he was sued upon a charge of trespass committed by his servant who had removed certain refuse from the premises of a third party and deposited it upon the plaintiff’s vacant land. The defendant employed certain men to act as carters. They were employed by the day and were paid at the end of the day for the day’s work. They went in the morning with their carts to specified premises to load rubbish, which they took to some other premises that were defined and described, particulars of which were given to the carmen, and in respect of each load a ticket was given them which had cost the defendant 6d. They were to go with their load of rubbish and the ticket to the premises of the person who issued the ticket, and by virtue of the ticket they had a right to shoot their load of rubbish on the premises owned or occupied by that person. The learned trial judge held that the carters who tipped the rubbish on the plaintiff’s land were not acting within the scope of their employment. Only a stray carter here and there, the learned trial judge found, did this unauthorized tipping.
The trial judge and the Court of Appeal treated the question as a question of fact and it was held the finding of the learned trial judge that the acts of the trespassing carters were not acts within the scope of their employment ought not to be disturbed.
Here again the analogy fails. The employment, both ostensible and actual, was evidenced by the ticket placed in the carter’s hands, as well as by the conduct pursued by the general body of carters who, as the learned trial judge found, with an odd exception here and there, followed their instructions. His employment so evidenced was not to get rid of rubbish generally. It was to take it to the designated place where it could rightfully be left. In dumping the rubbish on the plaintiff’s premises the carter was not acting in pursuit of the course of employment indicated by his ticket and followed by the other carters engaged in the same business. On the contrary, his act constituted an abandonment of his service as that service was known and practised by those engaged in it. Again in Rand v. Craig[41] there was a finding by the proper tribunal of fact that in point of fact the servant was not, in committing the trespass, acting in the course of his employment.
The third case which was greatly relied upon by the respondents at the trial is Goodman v. Kennell[42]. The facts appear in the report in 1 Moore and Payne, at p. 241. The plaintiff had been knocked down and run over by a horse ridden by one Cocking and he sued the defendant, alleging him to be liable for Cocking’s negligence.
Cocking was not a regular servant of the defendant, but was occasionally employed by him and others in the neighbourhood. On the day mentioned in the declaration the defendant had sent Cocking to take a book from his house at Vauxhall to Furnival’s Inn, for which he had given him a shilling. Cocking had taken the horse from a stable occupied jointly by the defendant and the owner of the horse, which he was in the habit of exercising and occasionally attending to. On the day in question Cocking had no order of either the defendant or the owner to take the horse. The owner stated in evidence that he had expressly ordered Cocking not to ride the horse to town. Cocking in evidence stated that he had taken the horse without the knowledge or consent of the defendant or of the owner