itself to render the defendant liable, Taylor must in the very act of driving have been acting as his servant, and not upon his own account. A man may be the servant of another at the time of doing the act which causes the injury, without that other being responsible for the mode of doing the act. The question is, not whether the servant was engaged on his master's *business, but whether he was going in the particular manner, with the horse and chaise, as his servant. The mere fact of the master seeing him about to start in the chaise, and making no objection, is not enough. (COCKBURN, Ch. J.: That is only one circumstance. The facts seem to be these: Taylor is employed in the general management of the defendant's business. He possesses a horse and gig; and it is mutually agreed, that, in consideration of the use of the horse and gig by Taylor for the purpose of the defendant's business, they shall be kept upon the defendant's premises without charge. Upon the occasion in question, Taylor was going out upon his master's business; the master saw him start upon the journey, and thereby assented to that mode of performing the service. The knowledge of the master was only one circumstance, in addition to the other and more material ones. I think it was a question for the jury, and that there was abundant evidence for them.) There was no evidence of any agreement or arrangement to the effect just stated. There was no bargain that the use of the horse and gig for the purposes of the defendant's business should be deemed an equivalent for the horse's keep. (COCKBURN, Ch. J.: It was a tacit arrangement. That seems to have been assumed on all hands.) Suppose a master desires his servant to go to a certain place, and the servant of his own accord borrows a friend's horse for the purpose of riding there, and his master meets him by accident on the way, and says nothing,-could it be contended, that, in riding that horse, the man was acting in the service of his master, so as to make him responsible for any misadventure of the servant on the road? (CROWDER, J.: You must not lose sight of the other facts. Taylor was manager at the defendant's establishment; and his horse and gig were kept there without charge, and were used by him from time to time upon his *master's business.) There was no evidence of any contract which made it his duty to use the horse and chaise in his master's service. It clearly was PATTEN v. REA. [ *613] a misdirection not to leave it to the jury to say whether the horse and gig were used by Taylor on his master's business, at the instance and request, express or implied, of the defendant. (COCKBURN, Ch. J.: I think the master would have been liable if Taylor had taken the horse and chaise without his knowledge. I think there was abundant evidence for the jury, independently of that fact.) To justify the verdict, it should have been found as a fact that there was some obligation, some binding contract, on the part of Taylor to find a horse and gig for the service of his master. COCKBURN, Ch. J.: I am clearly of opinion that this rule must be discharged. I concur in the argument urged by the defendant's counsel, to this extent, that, to render the master liable, it is not enough to show that the person driving the vehicle which causes the damage is his servant, but that it must be shown that the servant was driving with his master's authority and upon his business. Now, I think there was abundant evidence here that Taylor was driving, at the time the accident occurred, with the defendant's authority and in the course of business as his servant. Taylor, it appears, was the general manager of the defendant's establishment; and, being so, he, either by express agreement or by some tacit arrangement, was in the habit of using in transacting the defendant's business a horse and gig, his own property, which, in consideration of that arrangement, were kept for him upon the defendant's premises free of charge. Looking at these circumstances, and considering the nature of the business, I think Taylor must be assumed to have had authority to exercise his discretion *as to the mode of performing his duty to his master. Adding to this the fact that the master knew that his servant was using the horse and gig on the particular occasion, I think the evidence was ample to show that what was done had the sanction and authority of the master. That question was not at all withdrawn from the jury. The contention on the part of the defendant at the trial was, that he was not responsible for the damage, because the horse and gig were the property of Taylor, and because there was no evidence of any express command from the defendant to Taylor to use the horse and gig upon the occasion in question. I think the former part of the argument is met by the fact that the horse and gig were kept by the defendant free of charge to Taylor, and was ordinarily used by him in the performance of journeys about his master's business, and the latter by the fact that the master was cognizant of the course which his servant was pursuing at the time, and did not dissent. I think the case was properly presented to the jury, and that there is no ground for saying that the verdict was not well warranted by the evidence. WILLIAMS, J.: I am entirely of the same opinion. I agree with Mr. Atherton, that, in cases of this sort, the real question is, whether the servant while doing the negligent act complained of was acting as the agent of the defendant. That is demonstrated by the consideration that the plaintiff in declaring in such an action has the option of alleging the negligent act to be the act of the servant, or of relying upon the legal effect, and alleging it to be the act of the master. Thus, in Brucker v. Fromont (1), it was held that a declaration which charges the defendant with having negligently driven his cart against the plaintiff's horse, is supported by evidence that the defendant's servant *drove the cart. I think there was ample evidence here that Taylor, at the time of the accident, was acting as the servant and by the authority of the defendant. It was incumbent on the plaintiff, no doubt, to show that Taylor acted as the defendant's agent in the employment of the horse and gig upon the particular occasion. I think there was evidence enough of that for the jury, and that that question was properly left to them. The rule does not complain that it was not so left: the complaint is, that my brother CROWDER misdirected the jury in not leaving to them the question whether the horse and gig driven by Taylor were used by him on his master's business, at the instance and express request of the defendant. Now, it clearly is not necessary in cases of this sort that there should be any express request: the jury may imply a request or assent from the general nature of the servant's duty and employment. There was ample evidence of such implied request or assent here. The only other complaint made of the direction was not relied on by Mr. Atherton in his argument in support of the rule: nor could it have been with any hope of success. Upon neither ground, therefore, can this rule be sustained. WILLES, J.: I am clearly of the same opinion. The argument urged on the part of the defendant amounts in substance to a denial of the general rule laid down by Lord HOLT in Tuberville v. Stampe (2) that "a master is responsible for all acts done by his servant in the course of his employment, though without particular direc (1) 3 R. R. 303 (6 T. R. 659). (2) 1 Ld. Ray. 266; Carth. 425; Com. 32; Salk. 13; Skinn. 681; 12 Mod. 151; Holt, 9; Comb. 459; 1 Vin. PATTEN v. REA. [ *614 ] tions." Was Taylor at the time the accident complained of happened acting in the *course of his employment? It appears that part of the terms of his employment was that he should have the benefit of the keep of his horse and the standing of his gig upon his master's premises, in consideration of his using them when going about his master's business; and that he was actually engaged on his master's business, viz. going to collect a debt due to him, at the time. And it further appears that his master knew that he was going, and in what manner he was going. The master is clearly responsible. CROWDER, J., said nothing. Rule discharged. 1857. May 25 1857. May 25. [ 620 ] [622] [ *623 ] JONES v. MARSHALL. (2 C. B. N. S. 615-620; S. C. 26 L. J. C. P. 229; 3 Jur. N. S. 916: 5 W. R. 623; 29 L. T. O. S. 161.) An attorney, not engaged for either of the parties in a cause, but merely attending as the professional adviser of bail put in in the Lord Mayor's Court for the purpose of dissolving an attachment, is not privileged from arrest upon a ca. sa. while going to or returning from the registrar's office for that purpose. [This point is now of so little practical importance that it is thought sufficient to retain the head-note.] SIMONS v. THE GREAT WESTERN RAILWAY (2 C. B. N. S. 620—626.) In an action against a Railway Company, for damage to goods entrusted to them to carry, the defendants relied on a special contract exempting them from liability for any loss or damage, however caused. At the time the goods were delivered at the Company's warehouse the plaintiff, being asked by a clerk of the defendants to sign a paper containing the condition relied on, expressed his unwillingness to do so, inasmuch as he could not see to read it, whereupon the clerk said that it was of no consequence, and that the signature was a mere matter of form. The plaintiff, relying upon that assurance, signed the paper: Held, that, upon this evidence, the jury were warranted in finding that the goods were not delivered to the Company to be carried under the special contract. THIS was an action against the Great Western Railway Company for the loss of certain goods entrusted to them to carry. [The defendants pleaded that the goods were received by them to be carried subject to a special contract whereby they were declared not to be answerable for any loss or damage however caused.] The cause was tried before Crowder, J., at the sittings in London after the last Term. The facts were as follows: The plaintiff, having certain packages of furniture to send from London to Taunton, in October, 1854, went to the office of the Great Western Railway Company at Paddington to inquire the terms upon which they would be carried. Being told the terms, he again went to the office with the goods on the 8th of November, and, after they were loaded into the Company's trucks, he paid the sum demanded, viz. 77. 16s. After the plaintiff had paid the money, a clerk of the Company produced a paper, and asked the plaintiff to sign it. The plaintiff told the clerk that he had not his spectacles with him, and that he very much objected to sign a paper which he could not read. The clerk said it was of no consequence, and that the signature was a mere matter of form: and, upon the faith of that representation, the plaintiff signed it. The paper so signed was put in. It was an acknowledgment that the goods were received by the Company upon the conditions [on the back, the 15th of which was as follows: "Goods conveyed at special or mileage rate must be loaded and unloaded by the owners or their agents; and the Company will not be responsible for any risk of stowage, loss, or damage, however caused, nor for discrepancy in the delivery, as to either quantity, number, or weight, nor for the condition of articles so carried, nor for detention or delay in the conveying or delivery of them, however caused"], and was relied on by the defendants as showing that the goods were not received by them on the terms stated in the declaration, viz. as common carriers, but under the special contract. The clerk who wrote the receipt was called as a witness; but he stated that he had no recollection of the transaction, and could not tell whether or not the sum charged for the carriage was a special or mileage rate. On the part of the plaintiff, it was insisted that it was not competent to the defendants to avail themselves of a contract the signature to which had been thus fraudulently obtained by their servant. It was agreed that the goods were damaged to the extent of 211. The learned Judge left it to the jury to say whether or not the goods were delivered to and received by the defendants to be carried under a special contract,-telling *them, that, if they were not, the plaintiff was entitled to the verdict. The jury found for the plaintiff. Knowles, Q.C., pursuant to leave reserved, moved for a rule nisi to enter a verdict for the defendants, or for a new trial on the ground that the verdict was against the evidence. (COCKBURN, Ch. J.: The whole question was, whether the plaintiff signed the receipt knowing what he was about: and that the jury found against the Company.) |