Overton v. Brig towed by steamer. Sproul v. Hemmingway. Employer of unlawful act liable; requisite materials, and lamps, and other lights. The scaffold was erected upon the footway by C.'s workmen, and a portion of it improperly projected, and owing to that and the want of sufficient light, D. fell over it at night and was injured; but it was held, that D. could not maintain an action against B. for the injury thus occasioned; even though, after the accident, B. had caused other lights to be placed near the spot to prevent a recurrence of similar accidents. Again, where certain commissioners (0) had contracted with A. for all the paving required in a certain district, and A. contracted with B. to lay down a certain portion of it, and B.'s workmen left some paving stones at night in such a position as to constitute a public nuisance, and the plaintiff tumbled over them whilst on foot; it was held, that A. was not liable to an action at the suit of the plaintiff, as the injury was not caused by his workmen. And similar principles were acted upon in a case which occurred in America (p). A brig, which was towed at the stern of a steamboat employed in the business of towing vessels in the river Mississippi below New Orleans, was, through the negligence of the master and crew of the steamboat, over whom those in charge of the brig had no control, brought into collision with a schooner lying at anchor in the river. A suit was brought by the owners of the schooner against the owner of the brig for the damages sustained by the collision; and the question was whether the owner of the brig was liable therefor. It was held, upon full argument, that he was not, upon the ground that the master and crew of the steamboat were not the servants of the owner of the brig; were not appointed by him; did not receive their wages or salaries from him; had no power to order or control them in their movements, and had no contract with the master and crew of the steamboat, but only through the master with the owners of the steamboat for a participation in the power of the steamer, derived from the public use and employment thereof by the owners. But if the act contracted to be done be in itself unlawful the person doing original employers are responsible. As where the defendants, without having any power or authority to break up streets employed contractors to do it for the purpose of laying down gas pipes, and the plaintiff fell over a heap of stones left by the contractors and hurt herself, the defendants were held liable (q). If, however, the act may be done in a lawful manner, the employer is not responsible if it is done in an unlawful manner, or so as to be a public nuisance (r). unless act might be done in lawful manner. Person em And where a contractor is employed, his employer may, by personal interference with the workmen, adopt their acts, and (0) Overton v. Freeman, 21 L. J., C. P. 52; S. C. 11 C. B. 867. (p) Sproul v. Hemmingway, 14 Pick. R. 71; see Story on Ag. 453 c, in a note to which is a long extract from the judgment of Chief Justice Shaw. See Oakley v. Portsmouth and Ryde Steam Packet Company, 11 Exc. 618. (q) Ellis v. Sheffield Gas Company, 2 E. & B. 767; see Sadler v. Henlock, 4 E. & B. 570. (r) Peachey v. Rowland, 13 C. B. 182; S. C. 22 L. J., C. P. 81. for personal so render himself liable, where, ordinarily, he would not be so. ploying conAs in the case of Burgess v. Gray (s), in which it appeared tractor liable that the defendant was the proprietor of some newly-built interference. houses which he had employed P. to build for him, and P. in Burgess v. forming a drain from premises belonging to the defendant at the Gray. back of the new houses to the common sewer, had, by his servants, caused a quantity of gravel to be deposited by the roadside. The drain being finished, P. employed a person to carry away the gravel, and paid him so much a load, which he charged to the defendant, but the person so employed left some on the road, and the plaintiff, whilst driving in the evening along the road, ran upon the gravel left in the road, was upset, and injured. The defendant's attention had been called to the gravel left in the road by a policeman, and he had promised to remove it as soon as he could, and after the accident had said it was caused by the plaintiff's carelessness. On the part of the defendant it was, amongst other things, contended on the principle of Quarman v. Burnett, that he was not liable, as he had employed a contractor, but it was nevertheless held that under the circumstances of the case he was liable. with the And unless a person who employs a contractor to do work And unless for him has parted with the whole control of that work, he will he has parted still remain liable for the acts of that person and his workmen. whole conIn such case it must be assumed that he adopts all that is done trol. in carrying on the work (t). liable for servant's act liable if he This liability of the master for the act of his servant, however, Master not presupposes and is founded upon some obligation binding upon the master, either by contract or otherwise, to do or abstain when he from doing the act, the not doing or doing of which is com- would not be plained of. A master cannot be liable for his servant omitting did it himto do an act unless he himself was bound to do it. Nor again, self. can a master be liable for his servant doing an act which he himself was at liberty to perform, except, of course, in the case of a trust or license personal to the master. Where the plaintiff, who was an officer in the army, being Finucane v. about to leave London, sent his trunk to the house of the de- Small. fendant (who was an upholsterer) for safe custody, and agreed to pay one shilling per week for house-room, and when the plaintiff returned he received the trunk, but the whole of the contents had been taken out and stolen, and the plaintiff brought an action against the defendant, charging him as bailee; Lord Kenyon held that the action could not be supported when it appeared that he had taken as much care of the plaintiff's goods as he had of his own, and said: "To support an action of this nature positive negligence must be proved. It has ap (s) 1 C. B. 578. The defendant in this case was held liable partly on the ground that it did not appear that he had parted with the whole control of the work, and partly on the ground that he had sanctioned and adopted the act of the person who placed the gravel in the (t) Per Cresswell, J., in Bur- Clarke v. Dansey v. Richardson. Liability of boarding house keeper for negli gence of servants. peared in evidence in this case that the goods were lodged in a But where A. intrusted B. (a chronometer maker) with a chronometer to be repaired, and B. suffered his servant to sleep in the shop in which the chronometer was deposited, and B.'s servant stole it, and it appeared that B. at the time when the theft was committed had deposited his own watches in a more secure place, B. was held liable to A. for its value (☛). In the following case (y), the judges were equally divided in opinion as to whether or not the master was liable:-The defendant was a boarding-house keeper, and the plaintiff was received, with her luggage, as a guest for reward, paying, in fact, between 27. and 31. a week. She had the use of sitting, drawing and dining rooms in common with others, her own bedroom, her board and the attendance of the servants, among whom were a butler and page; and these, when required, went on errands for the guests, and carried their luggage to and from their rooms when they arrived and departed. On the 10th of December, in the evening, the plaintiff was to leave the house and to dine before she went. About half-past five, being in her bedroom, she was told dinner was ready by one of the menservants, to whom she gave part of her luggage to take down stairs, and the other servant afterwards carried down the remainder all were placed in the hall near the fore-door. Shortly before her departure, she sent the butler out, to a shop near, for biscuits; and it was not seriously contested by the defendant's witnesses that this servant going out left the foredoor ajar, and a thief, profiting by the opportunity, entered and carried off a box of the plaintiff's containing valuable property. There was no evidence whether the defendant had received a character for carefulness with the butler when he entered her service. There was conflicting evidence whether he had on former occasions left the door ajar, and, if so, whether that was within the knowledge of the defendant; and also, whether any former robberies, attributable to the same cause, had occurred. At the trial, Erle, J., told the jury that a boarding-house keeper was bound to take due and reasonable care about the safe keeping of the guests' goods, which he explained to be, such care as a prudent housekeeper would take of the house for the purpose of protecting her own goods; that leaving the door ajar might be a want of such care, but that the defendant was not answerable for such negligence in the servant unless she had herself been guilty of some negligence, as in keeping such a servant with notice of his habits. The jury found for the defendant. On a rule for a new trial, it was held by the whole (u) Finucane v. Small, 1 Esp. 30. 315. (y) Dansey v. Richardson, 3 E. & B. 144. court that a boarding-house keeper is not bound to keep a guest's luggage safely to the same extent as an innkeeper, but that she undertakes by implication of law, although nothing is expressed, to take due and proper care of a guest's baggage, and that neglecting to take due care of the outer door might be a breach of such duty, and that, so far, the direction was right. And Erle, J., and Wightman, J., held, that unless the defendant herself was guilty of negligence, the act of the servant in leaving the door ajar was not one for which the defendant was responsible, it not being a neglect of any public duty which was owing to plaintiff, nor a breach of contract between plaintiff and defendant, but merely negligence of the servant towards his mistress, and that therefore the direction was right. Whilst Lord Campbell, C. J., and Coleridge, J., held that the act of the servant was, under the circumstances, the act of the defendant: and that there was no distinction between the personal negligence of the defendant and that of her servant in her employment, the defendant being equally answerable for both, and therefore they held the direction wrong (2). law to em not liable for But where a master is obliged, by Act of Parliament, to Master employ a particular person, and all power of selection is taken obliged by from him, it would be unjust to render him responsible for the ploy a partiwrongful acts of that person. Accordingly, the Pilot Act (a), cular person, which compels shipowners, &c., wanting a pilot, to employ the his acts. first duly licensed pilot who shall offer himself, enacts (b), that Pilot Acts. no owner of any ship shall be answerable for any damage which shall happen to any person by reason of the neglect or incapacity of any licensed pilot, acting in the charge of such ship, under any of the provisions of that act. The books contain numerous instances in which shipowners have been held not to be responsible for injuries caused by their vessel, whilst under the command of a licensed pilot (c). And it has even Lucey v. been held (d), upon the construction of the Act of Parliament, that a shipowner was not liable for injury caused by the negligent navigation of his ship whilst under the care of a pilot, although it was not compulsory upon him, under the circumstances, to employ a pilot; as it was compulsory upon the pilot to serve if called upon, and he having been called upon had taken the control of the ship. However, the decision in Bennet v. Moita has, to a certain extent, been modified by a case before the Privy Council (e), in which it was laid down, that the presence of a pilot on board a vessel by compulsion does not primâ facie exonerate the owners from the responsibility of an act of negligence in the manage (z) The court being equally divided, no new trial was granted. (a) 6 Geo. 4, c. 125, s. 19; see now 16 & 17 Vict. c. 129; 17 & 18 Vict. c. 104, s. 353; c. 120. (b) 6 Geo. 4, c. 125, s. 55. (c) Bennet v. Moita, 7 Taunt. 258; and see cases cited in Lucey v. Ingram, 6 M. & W. 302. The W. 302. (e) Hammond v. Rogers, 7 Moore P. C. 160. Ingram. But where master has power of selection, he is liable, Martin v. ment of the vessel: but that they are bound to show that the act of negligence was exclusively that of the pilot. And before that question can arise, it must be established that, under the circumstances of the case, the vessel was obliged by Act of Parliament to have a pilot on board at the time of the accident (f). And where a master has a power of selection, it makes no difference in his liability for the acts of the person selected, that he is bound to select from a particular class of persons, however numerous or limited that class may be. Thus, although by the statute for regulating watermen and lightermen on the Thames (y), and the bye-laws ordained in pursuance thereof, no one besides freemen, or apprentices to freemen or to widows of freemen, of the Watermen and Lightermen's Company (with certain exceptions), may navigate craft on the river for hire, within the limits of the act, under a penalty; but any persons may keep and use craft for carrying their own goods, by their servants being such freemen or apprentices; and on board of every barge, &c., there must be at least one able and skilful man authorized by law to navigate: yet the owner of a barge, who hired two qualified persons to navigate it within the limits, was held liable for injury caused to another vessel by their negligence. And it was held to make no difference whether the navigators were hired for the job or by time (h). On that occasion Patteson, J., said, "On the part of the defendant it is argued that this is the case, not of master and servant, but of an independent contract to perform the work, as in Milligan v. Wedge (i), and Quarman v. Burnett (h). But that is clearly erroneous. Independently of the act, the men navigating the barges would clearly be the defendant's servants. If the defendant, being at liberty to employ whom he pleased, engaged persons to manage his barges on the Thames, I cannot see how it is possible to contend that they were not his servants, as much as a man whom he might employ to drive his carriage. Where, indeed, a man hires another man's servant from him, though such servant be employed to drive where the person hiring pleases, it has been held, in Quarman v. Burnett, that the servant so hired is not the servant of the person so hiring. That case certainly carried the exception a great way, but there the servant hired was ordinarily in the employment of the person from whom he was hired, and who let horses along with the driver. That case is not like the present. The second question then is as to the effect of stat. 7 & 8 Geo. 4, c. lxxv. That indeed confined the defendant to employing as his servants only individuals of a particular class. It narrowed the number of persons from whom he could select. But that is very different from the state of things created by the Pilot Act, where (f) Rodrigues v. Melhuish, 10 Exc. 110. In an action against the pilot, he is not entitled to notice of action as for a thing done in pursuance of the Pilot Act, Lawson v. Dumlin, 9 C. B. 54. (g) 7 & 8 Geo. 4, c. lxxv. See (i) 12 A. & E. 737. |