MILLIGAN. WEDGE (1). (12 Adol. & Ellis, 737-742; S. C. 4 P. & D. 714; 10 L. J. Q. B. 19.) The buyer of a bullock employed a licensed drover to drive it from Smithfield. By the bye-laws of London, no one but a licensed drover could be so employed. The drover employed a boy to drive the bullock (together with others, the property of different persons) to the owner's slaughterhouse. Mischief was occasioned by the bullock, through the careless driving of the boy: Held that the owner was not liable for the injury; the boy not being, in point of law, his servant; although the careless driving and accident took place after the boy had driven the bullock beyond the bounds of the city, towards defendant's house. Per COLERIDGE, J.: The owner would not have been liable if the drover himself had been driving at the time of the injury. CASE. The declaration stated that, before and at the time &c., to wit on &c., the plaintiff was lawfully possessed of a show-room, &c., adjoining a public street, and of divers marble chimney pieces &c., exposed for sale in the room; and that defendant was possessed of a bullock, and defendant, "by a certain person employed by him as his servant in that behalf," was driving the same along the street nevertheless defendant, "by his said servant," so carelessly, negligently &c., drove the bullock along the street, that the bullock, "by reason of the carelessness, negligence, and improper conduct of the defendant by his said servant," and for want of proper care in that behalf, with great violence ran into the show-room, and broke five chimney pieces &c. Pleas. 1. That, at the time &c., the said person driving the bullock "was not employed by him the said defendant as his servant in that behalf, in manner" &c. 2. Not guilty. On the trial, before Williams, J., at the Middlesex sittings in Easter Term, 1839, it appeared that the defendant was a butcher, and that, on the day in question, he bought a bullock in Smithfield market, which is within the city of London. By the bye-laws of the city, no person, not licensed, can drive cattle for hire from Smithfield, though the owner may drive them himself. The defendant employed a licensed drover to drive the bullock to the defendant's slaughter-house, which is without the city. The drover employed a boy to drive it to the slaughter-house, together with four other bullocks, which were not defendant's property, but were to be driven in the same direction as his bullock. As the boy (1) Cited and followed by ROLFE, B., in Reedie v. London and North Western Ry. Co., &c. (1849) 4 Ex. 244, 254, 20 L. J. Ex. 65, 66. And see Jones 1840. Nov. 18. [ 737 ] [ *738 ] MILLIGAN v. WEDGE. [ *739 ] was driving the bullocks by plaintiff's show-room, which is without the city, in the Portland Road, the defendant's bullock did the mischief complained of. The learned Judge was of opinion, upon the evidence, that the boy was not the defendant's servant; and, the jury having found neglect, a verdict was given for defendant on the first plea, and for plaintiff on the second, leave being reserved to move to enter a verdict for the plaintiff on the first plea. In the same Term, Humfrey obtained a rule nisi accordingly. Cresswell now showed cause: The bullock was not under the charge of the defendant or of his servant; and the defendant is therefore not liable. It may be argued that, as soon as the bullock was beyond the limits of the city, the employment of a licensed drover was not necessary but voluntary: that, however, should have been proved. But the distinction is not material; for, at all events, the defendant did not employ the boy. The Judges were equally divided, in Laugher v. Pointer (1), on the question whether the owner of a carriage was liable for injury caused by the negligence of a driver provided by a stablekeeper, from whom the owner of the carriage hired horses for the day. But now it is settled that the owner is not liable in such a case: Quarman v. Burnett (2), where the opinions of ABBOTT, Ch. J. and LITTLEDALE, J., in Laugher v. Pointer (1), were acceded to by the Court of Exchequer. And there it is pointed out that the decision is reconcileable with Bush v. Steinman (3) and Randleson v. Murray (4), where the parties held liable were owners of land or buildings, in respect of which the acts in question were done. Indeed, there is less pretence here for saying that the person who caused the injury was servant to the defendant, than there was in Quarman v. Burnett (2); for here the boy drove five bullocks, one only of which belonged to defendant; the defendant, if he had employed the boy, would not have allowed him to drive four additional bullocks belonging to others: and it is probable that this addition to the number produced the accident. Humfrey, contrà : It is true that no questions were put for the defendant as to the necessity of employing a city drover after the bullock was without the city. (1) 29 R. R. 319 (5 B. & C. 547). (2) 6 M. & W. 499. (3) 1 Bos. & P. 404 [overruled, see Reedie's case, note (1) last page]. (Cresswell said that he would not rely on the supposition of MILLIGAN such a necessity.) Randleson v. Murray (1) was not decided on the ground that the property was fixed. Nothing of the kind appears in the argument or judgment; nor is there any reason for the distinction. That being so, the case is a direct authority for the plaintiff. (LORD DENMAN, Ch. J.: In Laugher v. Pointer (2) my brother LITTLEDALE lays great stress on the fact that "the jobman was a person carrying on a distinct employment of his own, in which he furnished men and let out horses to hire to all such persons as chose to employ him." That may suggest a distinction between Laugher v. Pointer (2) and Randleson v. Murray (1); for it may be said that, in the latter case, the owner of the warehouse, who was held liable for the act of the porter's servant, was himself obliged to employ the *porter as his own servant at his warehouse; but here the butcher does not, as a regular part of his business, employ the drover: the case is like that of a man who sends a parcel by a person carrying on the business of carrier.) The carrier, according to PATTESON, J. in Randleson v. Murray (1), is a bailee. (LORD DENMAN, Ch. J.: Is not the drover here equally a bailee ?) The defendant might have driven his bullock home himself and, if he did not choose to do that, he might select any city drover to do it. The employment of the boy by the drover makes no difference, as is pointed out by LITTLEDALE, J. in Randleson v. Murray (1). The master porters at Liverpool may be said to have a distinct employment of their own as much as the city drovers in London. A master of a ship is liable for injury occasioned by negligent navigation, though a pilot be on board, unless the master was compellable to take a pilot: Huggett v. Montgomery (3), M'Intosh v. Slade (4). This rule must be made absolute, or Bush v. Steinman (5) overruled. LORD DENMAN, Ch. J.: I think we are bound by the late decision in Quarman v. Burnett (6), which was pronounced after full consideration. (1) 47 R. R. 513 (8 Ad. & El. 109). It may (4) 30 R. R. 494 (6 B. & C. 657). (6) 6 M. & W. 499; see 55 R. R. ተ. WEDGE. [740] be another question, whether I should agree in all the remarks delivered from the Bench in that case if I felt any doubt, it would be, whether the distinction as to the law in the cases of fixed and of moveable property can be relied upon. But the doctrine of my brother LITTLEDALE in Laugher v. Pointer (1) is applicable here. The party sued has not done the act complained of, but has employed *another who is recognized by the law as exercising a distinct calling. The butcher was not bound to drive the beast to the slaughter-house himself: he might not know how to drive it. He employs a drover, who employs a servant, who does the mischief. The drover, therefore, is liable, and not the owner of the beast. I may remark that one might perhaps be reconciled to the distinction between cases of fixed and of moveable property by considering that, to hold the owner of a land or building liable for injury done in respect of that property, will enable the party injured to know more readily from whom he is to seek redress. In Randleson v. Murray (2) the work was, in effect, done by the defendant himself, at his own warehouse: if he chose, instead of keeping a porter, to hire one by the day, he did not thereby cease to be liable for injury done by the porter while under his control. So as to the decisions upon the Pilot Acts: when it is not necessary to employ a pilot, the master who has voluntarily employed one is liable for his act. Here it does not appear that the defen dant attended the drover or his servant; and the mischief was done in the course, not of the butcher's business, but of the drover's. LITTLEDALE, J.: As I gave my opinion very fully in Laugher v. Pointer (1) which has since been confirmed by the Court of Exchequer in Quarman v. Burnett (3), I need say no more now than that I retain the opinion. WILLIAMS, J.: The difficulty always is, to say whose servant the person is that does the injury: when you decide that, the question is solved. To say that that party is liable from whom the act ultimately originates, is, indeed, a rule of great generality, and one which will solve the greater number of questions: but its applicability fails in one case. For, where the person who does the injury exercises (1) 29 R. R. 319 (5 B. & C. 547). (3) 6 M. & W. 499; see 55 R. R. an independent employment, the party employing him is clearly not liable. I agree in the decision of Randleson v. Murray (1); for the warehouseman's servant, whether daily or weekly, is equally under the control of the warehouseman. And that is the way in which Mr. Justice STORY (2) puts this point; he brings it to the question, Who employed the person that did the injury? The butcher here, whom we cannot assume to be acquainted with driving, deputes a person to drive, who understands the business, and whose servant is guilty of the negligence that produces the injury. That person therefore is the party liable. COLERIDGE, J.: The true test is, to ascertain the relation between the party charged and the party actually doing the injury. Unless the relation of master and servant exist between them, the act of the one creates no liability in the other. Apply that here. I make no distinction between the licensed drover and the boy: suppose the drover to have committed the injury himself. The thing done is the driving. The owner makes a contract with the drover that he shall drive the beast, and leaves it under his charge; and then the drover does the act. The relation, therefore, of master and servant does not exist between them. MIILIGAN v. WEDGE. Rule discharged. BULT AND OTHERS v. ROBERT MORRELL AND OTHERS (3). (12 Adol. & Ellis, 745–753; S. C. 10 L. J. Q. B. 52.) Declaration on a bill of exchange made by R. P., directed to A., B., C., D., E., and F., and accepted by them. Pleas, by A., B., and C.: 1. That R. P. did not make the bill in manner and form &c. 2. That A., B., and C. did not accept in manner and form &c. Issues thereon. Judgment by default against D., E., and F. The bill, produced at the trial, was drawn upon the directors of the I. S. Company, and accepted "for the Company" by D. and E., signing as directors. F. signed his name with theirs as 'manager." All the defendants were shareholders; and all but F. were directors. The jury found that F., as manager, was not an acceptor of the bill. It was not put to them to say (nor did counsel desire that they should be asked), whether (1) 47 R. R. 513 (8 Ad. & El. 109). (2) On Agency, ch. xvii. s. 452, &c. (p. 403, &c., London, 1839. See note 5, at p. 405). (3) See Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), s. 17 (1).R. C. 1840. Nor. 20. 745] |