Supreme Court of Canada
Consolidated Plate Glass Co. of Canada v. Caston, (1899) 29 S.C.R. 624
Date: 1899-06-06
The Consolidated Plate Glass Company of Canada (Defendant) Appellant;
and
Harry E. Caston (Plaintiff) Respondent.
1899: June 6.
Present: Sir Henry Strong C.J. and Taschereau, Gwynne, King and Girouard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Master and servant—Hiring of servant by third party—Control over service—Negligence.
A Plate Glass Co. hired by the day the general servant and horse and wagon of another company for use in its business, and while so hired the servant in carrying a load of glass knocked a man down and seriously injured him.
Held, reversing the judgment of the Court of Appeal (26 Ont. App. R. 63) that the Plate Glass Co. was not liable in damages for the injury; that the driver remained the general servant of the company from which he was hired and not that of the Plate Glass Co.
APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment of the Chancery Division of the High Court of Justice in favour of the plaintiff.
On the 13th of February, 1895, the plaintiff was injured by colliding with a vehicle while crossing from the curbstone to the railway track on Church Street, in the City of Toronto, to board a street car going north on said street. The vehicle with which he collided was a waggon belonging to The Cobban Manufacturing Company, and the horse attached thereto was owned by said company and driven by one of its servants.
For the purpose of doing its cartage business in the City of Toronto, the defendants had entered into an
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agreement with The Cobban Manufacturing Co. by which The Cobban Company agreed to supply a horse, wagon and driver to the defendant whenever required for the use of their business, at $3 a day. On the day in question the defendant had procured a horse, waggon and driver from The Cobban Company, under the above arrangement, and had requested the driver to deliver some glass at the office of Scott & Walmsley on the west side of Church Street, in the said city. Upon the glass being delivered it was discovered that the windows in which the glass was to be placed were so high that it would be impossible to do the work without procuring a ladder, and accordingly the defendant’s foreman asked the driver to take him to the shop of one Phillips, on Church Street, above King Street, where he could procure a ladder and place it on said waggon and have it delivered at said office of Scott & Walmsley, and it was whilst going for such ladder that the accident occurred.
The plaintiff brought an action for damages in consequence of said injury, and on the trial before Mr. Justice MacMahon said action was dismissed. This decision was reversed by the Chancery Division whose judgment was sustained by the Court of Appeal. The defendants then appealed to this court.
C.J. Ritchie Q.C. for the appellant.
J.W. McCullough and Roche for the respondent.
The judgment of the court was delivered by
THE CHIEF JUSTICE (Oral).—We are of opinion that this appeal must be allowed and the judgment of MacMahon J. restored. The cause does not turn upon any nice distinction between the facts of this case and those upon which previous authorities have proceeded. It depends upon well settled principles con-
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cerning the responsibility of masters for the acts of their servants. The leading case is Quarman v. Burnett, and the facts proved in that case do not make it an exception to the principle of that decision in which the Court of Exchequer adopted the opinions of Lord Tenterden C.J. and Littledale J. in Laugher v. Pointer.
This case of Quarman v. Burnett2 has been recognized as an authority and acted on as such in several subsequent cases. Rapson v. Cubitt; Dalyell v. Tyrer; Jones v. Corporation of Liverpool; Little v. Hackett.
The two cases relied on in support of the judgment under appeal are not in point. In Rourke v. White Moss Colliery Co. the engineer was held not to be the servant of the defendants inasmuch as it had been expressly stipulated by the parties for whom the work was being done that they should have entire control of the engine and engineer.
In Jones v. Scullard the facts were different; the whole control of the driver was in the defendant who was the owner of the carriage, horse and harness, and the Lord Chief Justice so far from indicating any intention to overrule Quarman v. Burnett, expressly adopts it, for he cites approvingly a passage from the Judgment of Bowen L.J. in Donovan v. Laing Syndicate to that effect and then proceeds as follows:
The principle then to be extracted from the cases is that if the hirer simply applies to the livery stable keeper to drive him between certain points or for a certain period of time and the latter supplies all necessary for that purpose, the hirer is in no sense responsible for any negligence on the part of the driver.
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A fair and reasonable test to apply, is this: Could the hirer have himself taken absolute control of the vehicle, horse and harness, taking it altogether out of the possession of the driver? In the present case the appellants clearly had no right to do so; under the facts proved in Jones v. Scullard the defendant could undoubtedly have done so.
The appeal is allowed and the action dismissed with costs to the appellants in all the courts below as well as the costs of this appeal.
Appeal allowed with costs.
Solicitors for the appellant: Ritchie, Ludwig & Ballantyne.
Solicitor for the respondent: J.W. McCullough.
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