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.
[Page 279]
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
dismissing their appeal from the judgment of Rose, C.J.H.C.
dismissing, as against the defendant Canadian Pacific Railway Com-
[Page 280]
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
[Page 281]
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.
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
[Page 282]
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 and the
decision in Houldsworth v. City of Glasgow Bank.
The passage in the judgment of Blackburn J. as reported in McGowan & Co.
v. Dyer 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,
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, 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,
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.
[Page 283]
In Lloyd v. Grace, Smith & Co.,
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.
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).
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
[Page 284]
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.,
or in those of Collins M.R., which are to the same effect, in Cheshire v.
Bailey, “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., 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, in a
passage quoted by Lord Macnaghten in Lloyd v. Grace, Smith & Co.,
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.”
[Page 285]
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; Mitchell
v. Crassweller; Lloyd
v. Grace, Smith & Co.; Baker
v. Snell).
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.
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
[Page 286]
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.
[Page 287]
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
[Page 288]
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.
[Page 289]
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.
[Page 290]
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 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,
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,
Whitfield v. Turner23, as well as Bugge v. Brown,
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,
which was also a fire case. Decisions in fire cases
[Page 291]
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., 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. Goh
Choon Seng v. Lee Kim Soo,
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.:—
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. has
undermined the authority of Limpus v. The London General Omnibus Co.
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
[Page 292]
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,
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,
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,
already quoted, and for “exceeding his authority in matters incidental” to his
employment, in the words of Collins M.R., 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
[Page 293]
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 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.
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.
[Page 294]
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.
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
[Page 295]
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 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. 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.
Best C.J. and Park J. agreed that there was, on the admitted
facts, a prima facie case of implied assent by the defendant and that it
was for the jury to judge of the value of the evidence of Cocking and the owner
of the horse denying assent.
Best C.J. said:
It was proved, that Cocking was the servant of the
defendant; that the horse was in his stable; and that, on the day the accident happened,
Cocking was going on the defendant’s business or employment. The proof of these
three facts was sufficient to raise a strong presumption, that Cocking was
using the horse with the defendant’s consent; * * * and left the plaintiff a prima
facie case, and unanswered.
[Page 296]
Burrough and Gaselee JJ. agreed that the “case was properly left
to the jury.”
The servant in this case was employed as a messenger to take a
book from one place to another. Two features of the case should be noticed.
First: The servant was employed to do a single act of service and
was in no sense the general servant of the defendant. There could be no
question of a practice, and the learned Judges of the Common Pleas, obviously
taking the view that this service for the consideration of one shilling did not
in itself imply the use of a horse, thought, therefore, that the plaintiff was
obliged to prove assent by the defendant to the use of a horse, or to adduce
facts from which the jury might infer such assent.
Second: Such assent having been inferred by the jury,
notwithstanding the express denial of the servant, that was sufficient to
support a finding that the servant’s reckless riding was conduct in the
defendant’s service, for which the defendant was responsible.
The servant was employed as a messenger, but, given assent to the
use of the horse, the servant’s dangerous riding, being conduct in a matter
incidental to his employment, was that of the master. This seems to answer the
contention advanced by the respondents that even if Stinson’s car had been
insured his negligent driving would not be negligence in the service of the
respondents. The case admirably illustrates the function of a jury in such
cases as this.
Another question arises. It is argued that in this view the respondent,
the Canadian Pacific Railway Company, is jointly liable with Stinson and,
judgment having been entered against Stinson, the appellant’s cause of action
against the Railway Company has disappeared, because transit in rem
judicatam.
I am unable to agree that the doctrine of Brimsmead v.
Harrison
contemplates such a case as this. I think the rights of the parties in the
present situation must be the same as they would have been if judgment had been
given by the learned Chief Justice at the conclusion of the trial and judgment
had been entered in favour of the plaintiffs against Stinson and in favour of
the Railway Company as against the plaintiffs. As Willes J. said in
[Page 297]
the Court of Common Pleas, the
rule in that case is, in the broad sense, a rule of procedure, and I do not
think this rule of procedure can operate in such a way as to nullify the
plaintiff’s right of appeal.
In the result the appeal should be allowed and the appellant
should have judgment for the amount of the verdict against the Railway Company,
with costs throughout.
The judgment of Rinfret and Kerwin JJ. was delivered by
KERWIN J.—While on Marlborough Avenue in the City of Toronto,
Leonard Lockhart, a six‑year-old boy, was injured by a motor car owned
and driven by R. Stinson. An action was brought against Stinson and the
Canadian Pacific Railway Company by the boy, suing by his father, Joseph
Lockhart, as next friend, for damages for injuries sustained by the infant, and
by the father himself for the accompanying expenses. Stinson was a servant of
the Company and it was his duty, as stated by the trial judge, “to make repairs
of many kinds to the Company’s property, movable and immovable.” His
headquarters were at the Company’s shops in West Toronto where the Company kept,
for the use of its employees in connection with their work, a “speeder,” a
“track motor” and a “handcar,” all of which ran on the Company rails, and
sometimes an employee was instructed, or permitted, to travel by street-car. It
was also known to the Company that many employees owned automobiles which from
time to time were used by its employees on its business. This is made quite
clear by two notices which it issued under the signature of its Divisional
Superintendent wherein reference is found to this practice and to the
possibility of claims being made against the Company for damages occasioned by
the use of these automobiles in the Company’s business, and such use was
prohibited “unless the owner carries insurance against public liability and
property damage.” Stinson owned a car which was not insured but, according to
his evidence and the evidence of the foreman, he had used it on the Company’s
business once or twice before the time in question. Stinson knew of the notices
and on the prior occasion or occasions had
[Page 298]
been warned by the foreman not to use the car again unless the
terms of the notices were complied with, i.e., that he should carry the
coverage mentioned. No amount of insurance was prescribed either by notice or
warning.
Stinson made, at the West Toronto shops, a key for use in a lock
in the Company’s premises North Toronto and he was authorized, or instructed,
by the foreman to go to North Toronto to try the key in the lock. He was given
no directions as to the means of transportation that he should use in going
there. He was not told not to use a motor car; the foreman testified that he
thought Stinson would use the “track motor.” Stinson used his automobile to
take the key to the North Toronto station and it was while he was on his
journey there that the accident happened. He was entitled to be paid by the
Company as well for the time required in going from one place to another as for
the time spent by him in making the key.
The trial took place before Chief Justice Rose and a jury. In
answer to specific questions, the jury found that the boy’s injuries were
caused by Stinson’s negligence, which they itemized as
A. Stinson was not paying proper attention.
B. By driving too close to north curb.
C. We find that Stinson had ample room to 6ee anybody
crossing from north side to south side behind parked truck.
and they assessed the damages at $10,000 for the boy and $500 for
the father. The Chief Justice on these findings directed judgment to be entered
against Stinson for these amounts but reserved the question of the Company’s
liability. He considered that all the relevant circumstances upon that issue
were undisputed and therefore left no question to the jury with reference to
it. He decided against the plaintiffs and upon appeal the majority of the Court
of Appeal agreed with him. No appeal was taken by Stinson from the judgment at
the trial against him, and, the father’s damages being less than the statutory
amount and no leave to appeal having been granted, the dismissal of the father’s
claim against the Company by the trial judge, concurred in by the Court of
Appeal, stands.
The infant, however, appeals to this Court against the dismissal
of his claim against the Company, and I have come to the conclusion that his
appeal should be allowed.
[Page 299]
We have not to consider the point that was decided in Bright
v. Kerr,
because Stinson was undoubtedly a servant of the Company. Neither is it a
question whether he was acting within the scope of his authority, but was he
acting in the course of his employment. This was pointed out by Anglin J., as
he then was, in Curley v. Latreille. That
was a case which depended upon the application of article 1054 of the Quebec Civil
Code, but Mr. Justice Anglin considered the existing position of the common
law upon the problem that confronts us. At page 153 he says:—
Since the decision in Limpus v. The London General
Omnibus Co., as
pointed out by Fletcher Moulton L.J. in Smith v. Martin and
Kingston-upon-Hull Corporation:
“The real question is whether it was an act done in the
course of the (servant’s) employment and not whether it was within the scope of
the authority given to her.”
The question is not one of authority: Smith v. North
Metropolitan Tramways Co.
Nor is the difficulty that which arises in England under the Workmen’s
Compensation Act as to whether as between an employer and employee an
accident arose out of and in the course of the employment. Dallas v. Home
Oil Distributors Ltd. Once a
person is found to be a servant, the question whether the master is liable to a
third person, for injuries caused the latter by the servant’s negligence,
depends upon whether under all the circumstances the servant was acting in the
course of his employment, and liability attaches even though the servant may be
doing an act prohibited by the master. Limpus v. London General Omnibus Co.47
The master may protect himself by limiting the scope of his
servant’s employment but not merely by prescribing conduct within the sphere of
the employment. It has therefore been decided that a person employed as a
conductor cannot impose liability upon a master by his negligence in driving a
bus, Beard v. London General Omnibus Co.,
but an employer is responsible for damage caused by the negligent act of his
servant in carrying out work which he is employed to do, even if the act
incidentally involves a trespass which the employer has not authorized. Goh
Choon Seng v. Lee Kim Soo.
[Page 300]
While I do not know that the division there made by Lord
Phillimore, speaking for the Judicial Committee, is to be regarded as
exhaustive, I would, if obliged, place the present case under head 3 and, with respect, not under
head 2
as did Masten J.A. with the concurrence of Middleton J.A. Stinson was employed
not merely to make a key but to go to North Toronto to fit it in a lock,—one
was as much part of his functions as the other. He was entitled to be paid for
the time so spent. The use of automobiles was not prohibited,—in fact it was
impliedly, if not explicitly, approved. The only restriction upon that use was
that he should carry “insurance against public liability and property damage”
and even then, as I have already pointed out, the amount of coverage was not
prescribed. It is perhaps needless to add that Stinson had not placed himself
outside the scope of his employment by going off on a frolic of his own, as
happened in many well-known cases.
The learned trial judge relied to a considerable extent upon a
statement of Park J. in Goodman v. Kennell,
where the defendant occupied a house jointly with another, which latter kept a
horse in a stable behind a house where the defendant had previously kept one
but, according to the report, had not one at the relevant time. One day the
defendant sent one Corkin, an occasional servant, with a book into Holborn and
gave him a shilling for his trouble before he went. Corkin, who had been in the
habit of exercising the horse, went to the stable and took it (without any
orders from his master and without communicating either to him or to the owner
of the horse what he was about to do) and rode it to Holborn and was on his way
back when an accident occurred causing injury to the plaintiff. Upon Sergeant
Wilde, for the plaintiff, arguing, on the question as to whether Corkin was in
the course of his employment by the defendant, that the defendant was liable
whether Corkin chose to go on horseback or on foot, Park J. made the statement
relied on:—
[Page 301]
I cannot bring myself to go the length of supposing, that if
a man sends his servant on an errand, without providing him with a horse, and
he meets a friend who has one, who permits him to ride, and an injury happens
in consequence, the master is responsible for that act. If it were so, every
master might be ruined by acts done by his servant without his knowledge or
authority.
Park J. then left to the jury the contradictory evidence as to
the ownership of the horse and the question as to any implied authority from
the defendant to Corkin to use it, and the jury found a verdict for the plaintiff.
Upon motion to set aside the verdict on the ground that there was no evidence
to go to the jury as to the defendant’s ownership of the horse, or his assent
to his servant’s using it, the Court refused a rule, expressing their
concurrence with the summing up and that the whole of the case had been
properly put to the jury.
This case is also reported in 1 M. & P. 241, where the
judgments of the judges in the Common Pleas are noted. Mr. Justice Park
stated:—
A master would not, certainly, be liable for an act done by
his servant whilst riding the horse of another, without his knowledge, or
against his consent.
Lord Chief Justice Best remarked:—
It has been truly said, that a servant’s riding the horse of
another, without the assent or authority of his master, cannot render the
latter answerable for his acts.
However, each pointed out that the question was whether there was
sufficient evidence to show that Corkin (Cocking as he is called in 1 M. &
P.) was riding the horse with the defendant’s assent and on his business.
Considering the final result and the trend of modern authority, it is
unnecessary to express any opinion upon the remarks attributed to Mr. Justice
Park and Lord Chief Justice Best.
This case was referred to in Stretton v. City of Toronto,
and it in turn in Boyd v. Smith. These
decisions may be taken as correct under the circumstances that there existed.
While Chief Justice Rose considered these cases not “for the purpose of
narrowing or enlarging the limits of the rule” as to the master’s responsibility
but for their value as illustrations, I am, with respect, unable to agree that
they are of such a character as to place the present case beyond the pale.
[Page 302]
The difficulty of deciding in any particular case was clearly
envisaged by the Chief Justice, as he referred also to two other decisions that
are generally compared, Williams v. Jones,
and Jefferson v. Derbyshire Farmers Ltd..
In Salmond’s Law of Torts, 9th edition, page 105, it is stated that while in
the earlier case the servant was negligent during his performance of his
master’s business, he was not negligent in his performance thereof and
that “the distinction may be one which is sometimes difficult of application to
the fact, but it seems to be real and logical.” But in Pollock’s Law of Torts,
14th edition, page 72, in referring in a foot‑note to the Williams
case56, it is stated: “Diss. Mellor and Blackburn JJ., who thought,
perhaps rightly, that the course of employment included ordinary care not to
set the shed on fire.” And in The Governor and Company of Gentlemen
Adventurers of England v. Vaillancourt, Duff
J., as he then was, pointed out that “Blackburn J.’s difference with his
colleagues ‘was as to the proper inference as from the facts’ and his is the
view which in a similar case would probably now be accepted,” quoting Jefferson
v. Derbyshire.
I agree with the statement in Salmond (9th edition), page 99,
that the decision in Lloyd v. Grace, Smith & Co.,
“must be interpreted in the light of the facts.” Winfield in his text book on
the Law of Torts, in discussing the decision, suggests (p. 135), that “the
defendants were held liable because they had unwittingly put a rogue in their
place and clothed him with their authority.” He continues:—
But other decisions show that where the master has neither
been negligent in the selection or supervision of his servant, nor has
expressly or impliedly held out his servant as having authority to do the act,
he will not be responsible for the servant’s crime.
I mention the decision merely to show that it has not been
overlooked, but I think it has no relevancy to the matter presently under
discussion.
In an admirable judgment in Bugge v. Brown,
Isaacs J., at page 118, states the limit of the rule in terms that I believe
correctly set forth the modern view:—
when the servant so acts as to be in effect a stranger in
relation to his employer with respect to the act he has committed, so that the
act is in law the unauthorized act of a stranger,
[Page 303]
and this statement was quoted with approval by the present Chief
Justice of this Court in Port Coquitlam v. Wilson.
This also appears to be the conclusion reached in the fourth and subsequent
editions of Salmond oil Torts; see, for example, page 95 of the 9th edition:—
* * * if the unauthorized and wrongful act of the servant is
not so connected with the authorized act as to be a mode of doing it, but is an
independent act, the master is not responsible; for in such a case the servant
is not acting in the course of his employment, but has gone outside of it. He
can no longer be said to be doing, although in a wrong and unauthorized way,
what he was authorized to do; he is doing what he was not authorized to do at
all.
All the facts are before us as they were before the trial judge
and the Court of Appeal, and in view of the course of the proceedings
throughout, we are entitled to draw all proper inferences. One of these is that
Stinson had not severed his relations with his employer, the railway company.
It is said in the Company’s factum (and the point was elaborated
in argument), that “the manner in which the defendant Stinson chose to exercise
his right as a citizen to use a public highway was in no way subject to the
respondent’s control.” Now, in the first place, Stinson was not exercising his
right as a citizen but was performing his duty to his master in going to North
Toronto. He was using a conveyance of a kind at least impliedly authorized and
was acting within the scope of his employment. Counsel recognized that the test
was not the Company’s actual control but its right to control (see Dallas v.
Home Oil Distributors Ltd.), but
argued that the respondent had no right to dictate the speed of the car or the
distance from the curb at which Stinson should travel or otherwise to direct his
movements on the highway. Stinson being about his master’s business, the
Company possessed the very rights that its counsel disputes and this contention
fails.
It is contended that even should this result be reached, the
Company is not liable because, as between it and the infant, the trial judge’s
charge to the jury was defective on the question of Stinson’s negligence. As
regards Stinson himself, the owner and driver of the automobile, section 48 (1)
of the Ontario Highway Traffic Act, R.S.O., 1937, c. 288, clearly
applied and the onus was upon Stinson to
[Page 304]
show that the accident did not arise through his negligence or
improper conduct. The jury were so instructed. It had been previously held by
the Ontario Court of Appeal in Ross v. Gray Coach Lines Ltd.,
that in actions against the driver of an automobile, the jury should be asked
whether the defendant had satisfied the onus and that it was not proper to ask
the jury to describe the negligence. This principle was reaffirmed in Newell
v. Acme Farmers’ Dairy Ltd. No
doubt the learned Chief Justice was familiar with these decisions and, while
counsel were unable to agree as to what transpired in the Chief Justice’s
chambers in connection with the drafting of the questions to be submitted to
the jury, it is, I think, apparent that the point now raised was present to the
Chief Justice’s mind, because at one point in his charge, after referring to
the onus section, he says:—
That is the only importance of the statutory provision; it
is not applicable where you think, after hearing all the evidence, that you
know whose fault it was. If, after hearing all the evidence, you think that you
know that the fault was the fault of the driver, then of course you do not need
to invoke the statute. If, on the other hand, after hearing all the evidence,
you think that you know that the fault was not the fault of the driver, then
the statute has no application. But when you are left feeling that without the
aid of the statute you cannot decide one way or the other, then the statute
comes to your aid and tells you how you are to decide.
Later he told the jury:—
As in other cases of the sort, you are going to be asked not
to render a general verdict, but to answer written questions, and the first
question is: Were the injuries suffered by the plaintiff Leonard Lockhart
caused by the negligence of the defendant Stinson? Well, as I have-said to you,
the statute seems to require you to say Yes unless the evidence satisfies you
that you can say No.
The second question: If so, in what did such negligence
consist? Now, it is conceivable that you could answer the first question Yes
without being able to answer the second question at all but it is unlikely.
That is to say, if you were answering the first question Yes simply because of
the statute, without having made up your minds that in fact Stinson did
something that was wrong and that you knew what that was, then you could answer
the first question Yes and be unable to answer the second, but it is quite
unlikely. The probability is that if you answer the first question Yes it will
be because you think you know what Stinson did that was wrong, and, if you do,
then proceed to answer the second question, and answer it quite fully.
My own view is that, if a driver of a motor car on a highway is
found by a jury not to have satisfied the onus, liability attaches to the
driver’s master, if the driving
[Page 305]
occurred in the course of the servant’s employment. In the case
at bar, however, even if that be not so, no objection was taken by counsel for
the Company to the charge and it was too late to raise the point upon appeal.
It was also objected that, judgment having been taken out by the
infant against Stinson, and proceedings having been taken by the father in his
personal capacity to secure by way of attachment part of the damages awarded
him against Stinson, the Company’s liability was ended. In my opinion, the
point is not well taken. Whether or not in the case of a tort by a servant in
the course of his employment the liability of the master and servant be joint,
it is not alternative and the decision in Morel v. Westmoreland
has no application. A similar question arose in Bright v. Kerr
where it was not necessary for me to deal with it. In the present case, it is
necessary and, having given it some consideration, I approve the judgment of
the Ontario Divisional Court in Sheppard Publishing Co. Ltd. v. Press
Publishing Co. Ltd. This
was followed by Chief Justice Rowell in the Court of Appeal in Kerr v.
Bright, and
in that case, “in the special circumstances,” the Chief Justice of this Court
agreed with Chief Justice Rowell.
A question was raised as to the assessment of damages. The infant
claimed $5,000 in the statement of claim; the jury awarded $10,000. It does not
appear that the jury were told the amount of damages claimed, or that they had
the record with them. Chief Justice Rose considered that he had a discretion to
allow the amendment; McTague J.A. and Gillanders J.A. were of the same opinion,
and in a previous case an amendment had been permitted and allowed by the Court
of Appeal, White v. Proctor. I
agree that the Chief Justice had a discretion and that it has not been shown
that it was improperly exercised.
The appeal should be allowed, the judgment at the trial set aside
and in lieu thereof there should be judgment (1) for the appellant against the
Company for $10,000 and his costs of the action, (2) reserving to the Company
its right to apply to the Supreme Court of Ontario for judgment in the third
party issue between the Company and Stinson. In order to overcome any
difficulty as to
[Page 306]
interest, that judgment should be dated July 12th, 1939, the date
of the judgment of Chief Justice Rose dismissing the action as against the
Company. The appellant is entitled as against the Company to his costs of the
appeal to the Court of Appeal and of the appeal to this Court.
CROCKET J.—The principal question in this appeal concerns the
liability of the respondent railway for the serious injury of the infant
plaintiff by the negligence of its servant Stinson, with whom it was jointly
sued, while driving his uninsured automobile from the respondent’s railway
workshops at West Toronto to its station at North Toronto some four miles
distant, for the purpose of fitting a key he had made for a doorlock in the
North Toronto station building.
The accident happened on July 18th, 1938, and the action was
tried before Rose, C.J.H.C., and a jury, which found that the injury claimed
for was entirely caused by Stinson’s negligence, and assessed the damages at
$10,000. The learned Chief Justice directed the entry of judgment against
Stinson for this amount with costs, and reserved the question of the
respondent’s liability. Subsequently he directed the dismissal of the action
against the respondent on the ground that the driving of a privately owned and
uninsured motor car was not an act falling within the class of acts which
Stinson was authorized to perform, and therefore that his negligence in the
handling of such a car, even at a time when he was engaged in his master’s
business, does not bring his master under liability. On an appeal by the
plaintiffs the Court of Appeal affirmed this judgment, McTague, J.A.,
dissenting.
There is no dispute as to the facts upon which the majority in
the Court of Appeal obviously proceeded in affirming the trial judgment, so
that the question involved, as the learned trial judge himself distinctly held,
is purely a question of law.
Stinson had been regularly employed in the respondent’s bridge
and building department at its West Toronto workshops as a general repair man
for many years and as such was subject to the directions of the foreman of that
department. His duties necessarily included his travelling to the respondent’s
buildings in the Toronto district in connection with any repair work which
should be required
[Page 307]
and entrusted to him. On the day of the accident, which gave rise
to the plaintiff’s action, he had been instructed by the foreman at the West
Toronto works to make a key for a doorlock at the North Toronto station, and,
having made the key in the shop at West Toronto, told the foreman he would have
to take it to the North Toronto station to try it in the doorlock. For this
purpose Stinson used his private automobile, which at the time was uninsured,
though nothing was said by the foreman that he might do so or as to whether he
was to proceed there over the respondent’s railway track by a gasolene track
motor or handcar, which employees sometimes used to travel from the workshops
to this and other buildings of the respondent along the railway line in the
course of their employment, or by a street tramcar, for which it was the
practice of the railway to provide tram tickets when that means of
transportation was desired. The foreman swore he did not know that Stinson was
going in his own car, and thought he was going by the track motor. He admitted
that he knew of at least one previous occasion “or probably two,” when Stinson
had used his own car on similar jobs, and told the court that when he learned
this he told Stinson that he must not use his car on the company’s business in
the company’s working hours, to which he added the qualification, “unless it
was insured.” At this time he had received a circular letter from the district
superintendent, dated December 28th, 1937, prohibiting the use of privately
owned automobiles “in connection with the Company’s business unless the owner
carries insurance against public liability and property damage risks.” Later he
received a second circular letter under date of March 21st, 1938, from the
district superintendent, “referring to (his) circular letter of December 28th,
1937, regarding the use of privately owned automobiles not covered by insurance
in the execution of Company’s business,” advising him that several instances
had since come to notice “where employees had used unpro-protected automobiles
contrary to the instructions,” stating that “all concerned must clearly
understand that automobiles not adequately protected by insurance must not be
used in the execution of Company’s business,” and requesting him to take
“whatever steps are necessary to see that the instructions in this regard are
being adhered
[Page 308]
to.” The foreman testified that he read these circular letters to
Stinson and that they were posted up on the shop door at West Toronto.
It is not disputed that at the time of the accident Stinson was
using his automobile for the purpose of performing a duty appertaining to his
master’s business, viz: going to the North Toronto station for the purpose of
trying the key he had made in the doorlock there; nor is it disputed that in
using his car for this purpose he was disregarding his master’s instructions
and thus exceeding the limits of his authority as his master’s servant. We are,
therefore, squarely faced with the problem whether the former or the latter
fact determines the question of the respondent’s liability for the injury. The
learned trial judge in dismissing the action against the respondent plainly
proceeded on the latter consideration, and in this, as stated, he was upheld by
the Court of Appeal.
With great respect, I am of opinion that both courts were in
error in this regard. While they both apparently fully appreciated that the
true criterion of the liability of the master for injury or damage sustained by
third persons through the negligence of his servant is the scope or sphere of
the employment for which the servant is hired, their decisions are clearly
based on the ground that the district superintendent’s instructions regarding
the use of uninsured cars “in connection with” or, as the second circular
letter put it, “in the execution of” the company’s business, placed Stinson
beyond the scope of his employment at the time of the negligence claimed for,
or, in other words, that this restriction of his authority as to the use of his
own or any automobile in the performance of his work necessarily limited the
scope of his employment. None of the cases, to which we have been referred, to
my mind justify such a conclusion.
It is true, as was pointed out by Collins, L.J., in Whitehead
v. Reader, in
the English Court of Appeal, that in some cases it is necessary to get back to
the orders emanating from the master to see what is the sphere of employment of
the workman, and some of these cases were, no doubt, decided upon the workman’s
authority as determined from his master’s instructions, but Whitehead v.
Reader71 itself decided that the disobedience
[Page 309]
of the master’s order did not of itself prevent the act of the workman
from being an act done “in the course of his employment,” and was therefore not
conclusive upon the question of the sphere or scope of the servant’s employment
or the master’s responsibility. Collins, L.J., himself said:
I agree * * * that it is not every breach of a master’s
orders that would have the effect of terminating the servant’s employment
so as to excuse the master from the consequences of the breach of his orders.
A. L. Smith, M.R., put it in this way:
Does disobedience to this order cause the man not to have
been injured in the course of his employment? I think not. It cannot be said
that every disobedience of an order terminates a man’s employment.
Romer, L.J., used these words:
At the time of the accident the workman was employed on his
master’s business. He was not idling or doing something which was clearly
beyond the scope of his employment.
The dictum of Collins, L.J., in this case was adopted by Lord
Dunedin as President of the Scottish Court of Sessions in Conway v.
Pumpherston Oil Co., and
affirmed again by him in delivering his judgment in the House of Lords in Plumb
v. Cobden Flour Mills Co., with
the concurrence of Viscount Haldane, L.C., and Lords Kinnear and Atkinson. In
the last mentioned case Lord Dunedin said:
There are prohibitions which limit the sphere of employment
and prohibitions which only deal with conduct within the sphere of employment.
A transgression of a prohibition of the latter class leaves the sphere of
employment where it was, and consequently will not prevent recovery of
compensation. A transgression of the former class carries with it the result
that the man has gone outside the sphere.
These cases accord precisely with the principle enunciated in
1862 by Willes, Byles and Blackburn JJ., in the leading case of Limpus v.
London General Omnibus Co., and,
in my opinion, show the irrelevancy of a servant’s disobedience of his master’s
orders in the prosecution of his master’s business unless the prohibitive
orders are of such a character as to place him entirely beyond the scope of his
employment.
As far back as 1869, Cockburn, C.J., in Storey v. Ashton,
laid it down that
[Page 310]
the true rule [for determining the liability of the master
for the negligence of his servant] is that the master is only responsible so
long as the servant can be said to be doing the act, in the doing of which he
is guilty of negligence, in the course of his employment as servant.
This is the fundamental principle, which has been consistently
recognized by this Court in many cases. See Halparin v. Bulling;
Curley v. Latreille; Battistoni
v. Thomas; Moreau
v. Labette; and Jarry
v. Pelletier.
In Halparin v. Bulling,
although the court held that the master there was not liable for the negligence
of his chauffeur, Davies J. based his judgment on the fact that the chauffeur
was using his master’s automobile “on his own business and pleasure and not
on any business of his master.” Duff J., with whom Anglin J. concurred,
expressly adopted the dictum of Cockburn, C.J., in Storey v. Ashton,
already quoted, and held that the Court of Appeal of Manitoba was right in
finding on the evidence in that case that the chauffeur was not “engaged in the
doing of anything appertaining to the course of his employment as the
respondent’s servant.” The decisive question, he said, was “Was the chauffeur about
his master’s business when he ran down the unfortunate victim of his
carelessness or was he making use of the respondent’s car in an independent
excursion of his own?” Brodeur J. said that the jurisprudence under the
English common law is that the master is not liable for the negligence of his
servant while the latter is engaged in some act “beyond the scope of his
employment for his own purpose.”
In the Latreille case Anglin
J. reviewed all the important English and French cases regarding the master’s
liability for the negligence of his servant, in the course of which he pointed
out that the decisive question in such cases was, not whether the servant’s act
was within the authority given by the master, but whether it was within the
course of his employment, quoting the dictum of Fletcher-Moulton, L.J., in Smith
v. Martin and Kingston-upon-Hull Corporation,
and citing Smith v. North Metropolitan Tramways Co.
[Page 311]
In Battistoni v. Thomas, Lamont
J., who delivered the judgment of the court, said:
In cases of this kind the law is well settled. A master is
responsible for the consequences of his servant’s negligent act only while the
servant is on his master’s business.
He quoted the dicta of Jervis, C.J., and Maule J., in Mitchell
v. Crassweller, as
well as the dictum of Lord Atkinson in St. Helen’s Colliery v. Hewitson,
to that effect, and approved the following statement of the law by Salmond on
Torts, 7th ed., p. 115:
On the other hand, if the unauthorized and wrongful act of
the servant is not so connected with the authorized act as to be a mode of
doing it, but is an independent act, the master is not responsible; for in such
a case the servant is not acting in the course of his employment, but has gone
outside of it. He can no longer be said to be doing, although in a wrong and
unauthorized way, what he was authorized to do; he is doing what he was not
authorized to do at all.
In Moreau v. Labelle,
Rinfret, J., speaking for the Court, quoted the passage already reproduced from
Lord Dunedin’s speech in delivering judgment in the House of Lords in Plumb
v. Cobden Flour Mills Co., as
laying down the proper test for determining whether a master’s instructions to
his servant do or do not limit the sphere of his servant’s employment.
In Jarry v. Pelletier,
Cannon, J., also delivering the unanimous judgment of the court, repeated Lord
Dunedin’s dictum as laying down the true test.
The result of the cases in this Court, I think, is to make it clear
that the recognized criterion of the liability of a master for the negligence
of his servant is, not whether the servant’s act was within the authority given
by the master, but whether it was within the sphere or scope of his employment
as servant.
There is another Canadian case, that of Read v. McGivney,
which, though not cited before us, I think I should mention, inasmuch as it
illustrates and actually applies the principle referred to in circumstances
which seem to me to more closely resemble in their effect those of the present
case than do those in the majority of the numerous cases to which we have been
referred. In that
[Page 312]
case an action had been brought to recover damages for the
destruction of a portion of the plaintiff’s woodland lot by the spreading of a
fire set by the defendant’s servant to a pile of brush and refuse in connection
with land clearing work on the defendant’s land, contrary to the defendant’s
express instructions that he must not do so that day. The cases of Limpus v.
London General Omnibus Co.; Bayley
v. Manchester, etc., Ry. Co.; Dyer
v. Munday; Storey
v. Ashton, and Mitchell
v. Crassweller, all
of which were relied upon in the present appeal, were among the cases cited in
the argument before the New Brunswick court. Hannington J., in delivering the
judgment of the court (Tuck, C.J., Hannington, Landry, Barker, McLeod and
Gregory, JJ.) said:
I need not refer to the cases cited; but the authorities are
perfectly clear that such instructions will not save the employer from
responsibility from the careless or illegal act of his servant within the scope
of his employment. The principle is well illustrated by the case of Limpus
v. London General Omnibus Co.93The principle that governs is
this: If a person sends another to do his work, or to work for him, and in
pursuance of the work the other, within the scope of his employment, does an
act whereby an injury is caused to a third party, then the employer is liable.
The Judicial Committee of the Privy Council in Goh Choon Seng
v. Lee Kim Soo,
distinctly recognized the principle that the fact of a servant doing an
unauthorized act does not excuse the master from responsibility if the
unauthorized act be committed in the performance of the master’s business. That
was an appeal from the judgment of the Court of Appeal of The Straits
Settlements (Singapore), affirming the judgment of the trial judge in an action
brought to recover damages caused by the negligence of the defendant’s servants
in kindling fires for the purpose of burning branches, jungle trees and other
rubbish. The evidence proved that the fires were kindled, not on the
defendant’s land, but on adjacent Crown land, from which the flames spread to
the plaintiff’s land and destroyed his pottery works, and the trial judge so
found and directed a reference for the assessment of damages. Counsel for the
appellant, founding on Storey v. Ashton,
argued that the kindling of the fires beyond the appel-
[Page 313]
lant’s boundary was an act done by his servants for their own convenience
and benefit, and was therefore outside the scope of their employment. Lord
Phillimore, in delivering the judgment of the Board, dismissing the appeal,
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.”
As the learned Chief Justice says, the manager of the
plantation was authorized by his employment to burn the weeds, and that he did
it in a manner and at a place which were not authorized by his employer, makes
no difference. Time and place are only circumstances or incidents.
His Lordship then pointed out that all the cases, which had been
brought to the Board’s notice in the course of the argument, fell under one or
other of three heads: (1) the servant was using his master’s time or his
master’s place or his master’s horses, vehicles, machinery or tools for his own
purposes; (2) cases where the servant is employed only to do a particular work
or a particular class of work, and he does something out of the scope of his
employment; (3) “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 the first
two classes of cases, he said, the master is not responsible, but under head
(3) he is.
In their reasons for judgment in the Appeal Court, Masten, Fisher
and Gillanders, JJ.A., all referred to the Goh Choon Seng case
and sought to distinguish it from the case at bar. Middleton, J.A., I should
state, concurred with Masten, J.A., on this branch of the appeal, though his
reasons indicate that he would have dismissed the plaintiff’s appeal on the
ground that garnishee proceedings taken by the plaintiff against Stinson after
the entry of judgment against him and the recovery thereby of a portion of the
damages precluded his right to proceed further against Stinson’s co-defendant.
Masten, J.A., simply said that that case seemed to be distinguishable in its
facts and that he referred to it only for the purpose of quoting Lord
Phillimore’s dictum as to the classification of cases bearing on the
responsibility of the master under the three heads above mentioned. He thought
the
[Page 314]
present case fell under head 2, and not under head 3, “because
when Stinson entered on his journey on the day of the accident in his
prohibited uninsured car, he stepped outside the limit which bounded the sphere
of his employment.” Fisher, J.A., thought the general law laid down in the Goh
Choon Seng case was
not applicable because the injury here did not occur “in the actual performance
of his particular duties by doing his work in a manner the master had not
authorized.” “It is here,” he said, “that the facts in the case at bar differ
from the facts and the general law laid down in Goh Choon Seng v. Lee Kim
Soo101.” Gillanders, J.A., said that the servant in the Goh
Choon Seng case101 was, in lighting fires, and burning rubbish,
doing what he was authorized to do, and “it was immaterial to the master’s
liability that it was done on Crown lands, adjacent to those of the defendant,
and at an unauthorized time.”
With the utmost deference, I am unable to follow these
distinctions. It seems to me that the clear effect of the Privy Council’s
decision was that, while the defendant appellant’s servants in that case were
authorized to light fires and burn brush on their master’s land in the course
of their employment, they were not authorized to light fires and burn brush on
the adjacent Crown land, and that the fact of their having made use of the
Crown land for the purpose of and in connection with the work they were
authorized to do for their master was immaterial to the master’s liability for
the reason that it did not place the servants’ unauthorized and improper act
beyond the scope of their employment. In other words, the Privy Council
decision strikingly reaffirms the fundamental principle laid down in the Limpus
case that
a master is responsible for his servant’s negligence while engaged in his
master’s business, and that the fact that the negligent act of the servant was
committed while he was doing something he was not authorized to do as such
servant cannot avail to free the master from liability therefor.
The Goh Choon Seng case101 bears a striking
resemblance to that of Read v. McGivney,
from which it differs in its material features only in the fact that the fire
which destroyed the plaintiff’s property was kindled
[Page 315]
beyond the boundary of the defendant’s land, and that there was
no definite instruction not to set any fire that day in connection with the
work the servant was doing. The reasons for the Privy Council decision make it
clear that these circumstances would make no difference.
The question before the Court of Appeal and before this Court,
however, is, as already pointed out, not whether Stinson, in making use of his
uninsured car for the purpose of his master’s business, contrary to the
instructions of the respondent’s district superintendent, was doing an
unauthorized and improper act—that, as I say, is undisputed and plainly implied
by the learned trial judge’s finding—but whether the fact of his disobeying
those instructions placed Stinson outside the scope of his employment
altogether while making use of his car for the purpose mentioned. The very
statement of the problem seems to me to embody a manifest contradiction and to
furnish its own inevitable answer. For how can it possibly be said, if Stinson
was engaged in his master’s business while driving his motor car, as admittedly
he was, that his act in doing so contrary to his master’s instructions, was of
such a nature as to completely dissociate him during that particular journey
from his employment as his respondent master’s servant? He was either engaged
in the business of his master or he was not. That is the governing factor.
This, of course, does not mean that it is not competent to a master at any time
to limit the scope of the particular employment for which the servant was
hired, as clearly appears from some of the cases above mentioned, but it does
mean that, once it is determined that a servant is doing something for his
master in the course of his employment as his master’s servant, the master
cannot escape responsibility for the consequences of the servant’s negligence
while so acting upon the ground that he has prohibited him from doing any
particular act unless the prohibition is such as to sever the relation of
master and servant during the critical time.
If the question were not concluded by the undisputed and indeed
the admitted fact that Stinson was using his car in journeying to the North
Toronto station in connection with and in furtherance of his master’s business,
I should have thought that the only possible inference from the district
superintendent’s circular letters, on which the judgment a quo is
entirely based, was that he and all
[Page 316]
other employees in the Toronto district were thereby authorized
to use their own or any other privately owned cars in connection with their
master’s business, provided that they were insured against public liability and
property damage. It was thus in no sense a definite prohibition against the use
of motor cars in connection with the respondent’s business, but a purely
conditional or contingent prohibition, apparently made for no other purpose
that that of transferring from the master to the automobile insurance companies
the obligation of paying for injuries resulting to third persons from the
negligence of its servants while engaged in the prosecution of its business,
and one which clearly recognized the right of the respondent’s employees to use
motor cars so insured for that purpose. I should have had no hesitation in
holding that a prohibition of such a character could not, under the law as
recognized by this court in accordance with the principles laid down by the
House of Lords and the Judicial Committee of the Privy Council, have the effect
of so curtailing the scope of Stinson’s employment, in the capacity of a
permanent general repairs man, as to transform his act in using his uninsured
car solely for the purpose of his master’s business on the occasion in question
into an act undertaken wholly for his own personal gratification (1) the
servant was using his master’s time or his master’s servant. As McTague, J.A.,
concisely put it in his dissenting judgment,
it seems perfectly clear that in transporting the key from
West Toronto to North Toronto Stinson was about his master’s business. Did he,
because of the mode of transportation which he used, divest himself of the character
of servant and become a stranger to his employer? I do not think so. If in the
course of his trip he had gone off on a venture of his own and injured someone,
it might well be said that in doing that he had lost his character of servant.
As to Mr. Tilley’s objection that the appellants had lost their
right to proceed further against the respondent by the garnishee proceedings
they had instituted against Stinson, I also agree with McTague, J.A. There is
one other objection, viz.: that the statement of claim fixed the damages asked
on behalf of the infant plaintiff at $5,000 and that no amendment was applied
for till after the jury had returned its verdict, when the learned Chief
Justice allowed an amendment to cover the amount awarded. It was contended that
he had no right to order the amendment after the jury had announced its
verdict.
[Page 317]
The learned Chief Justice overruled the objection and expressed
the opinion that in view of the circumstances disclosed by the evidence, the
assessment was not excessive. In the Appeal Court, Gillanders and McTague,
JJ.A., were of the opinion that in the circumstances the jury’s assessment of
damages should not be disturbed. I am of the same opinion.
For these reasons, I would allow the appeal with costs here and
in the Court of Appeal and direct that the judgment be entered against both
defendants alike for the amount assessed by the jury, in favour of the infant
plaintiff, viz.: $10,000; this amount to be paid into court to the latter’s
credit and to be paid out to him on attaining the age of twenty-one years and
subject to further order meanwhile, as directed in the formal judgment of the
trial court against Stinson, with a further order that both defendants pay to
the plaintiff in his capacity as next friend of the infant plaintiff, his costs
of action in that behalf.
Appeal of the infant plaintiff allowed with costs.
Solicitor for the appellants: David J. Walker.
Solicitor for the respondent: John D. Spence.
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