Scottish Court of Session Decisions

This was an action at the instance of Richard Ord, Sands Hall, Sedgefield, Durham, against Alexander Gemmell & Son, Limited, job and postmasters, Ayr, in which the pursuer concluded for decree ordaining the defenders to restore a portmanteau (containing various articles specified) which had been handed to a cab-driver in the defenders' employment for conveyance to the railway station, Ayr, or alternatively for payment of the sum of £53 sterling in name of damages.

The following summary of the facts is in substance taken from the opinion of the Lord Ordinary (Stormonth Darling):—There is no dispute as to the material facts. The pursuer, who had been living in lodgings at No. 12 Cathcart Street, Ayr, during the races, wished to leave by the 5.30 p.m. train on 17th September 1897, which was the last race day, and packed his luggage with that view. He went out personally for a cab, but had difficulty in finding one. At last, about 5.10 as he thought, he hailed a cab entering Cathcart Street, but was told by the driver that he was engaged. This cab stopped at No. 3 of that street, and a man got out. The cabman came up to the pursuer and said he had driven him from the station to his rooms two or three days before. The pursuer asked him if he could take his luggage to the station, in which case he would walk, the distance being about half-a-mile. The cabman said he would see, and went forward to the cab, in which the wife of his fare was sitting, and asked if she would object to his taking the pursuer's luggage. She said she had no objection if her husband had none. The cabman, after saving ‘all right’ to the pursuer, who immediately walked on, got the pursuer's portmanteau, which was only part of his luggage, at No. 12, and placed it on the top of the cab (which had a rail), when the original fare (a Mr Sims) came out, and seeing the cabman putting the pursuer's portmanteau on the cab, said—“What the hell are you going to do bothering with other people's luggage? I have little enough time. The cab was hired by me.” He also forbade the cabman to go back for the other articles, saying that he had no more than time to catch the train. He did not, however, order the portmanteau to be taken down. The cab then drove off to the station, and in High Street the portmanteau fell from the roof. The cabman's attention was immediately drawn to it by people on the street, and he pulled up. He says that Mr Sims swore at him, and told him to drive on, which he did.

Mr and Mrs Sims deponed that they did not hear anything about the portmanteau being lost. Mr Sims deponed that he did not remember the cab stopping on the way to the station, or the cabman saying that there was a bag off, and neither Mr nor Mrs Sims was asked whether the cabman had been told by Mr Sims to drive on at any time during the journey to the station. A witness deponed that he saw the portmanteau fall off, that then the cab stopped; that thereupon the occupant of the cab put his head out of the window, and the cab went on again leaving the portmanteau lying on the road; and that he saw two men lift it and put it in a waggonette which was driven towards the station. That is the last which has been seen or heard of it. After this point there is some conflict between the evidence of the pursuer and the cabman. But although curious I do not think that the conflict is very material. The cabman says he saw the pursuer when he drove up to the station with Mr and Mrs Sims a few minutes before 5.30; that he told him of the loss, and said he would go back to look for the portmanteau, and at the same time fetch the rest of his luggage. The pursuer, on the other hand, says that he never saw the cabman till past 6 o'clock, when he drove up with the smaller articles, and said that he had shouted to a driver behind him to pick up the portmanteau and bring it on. The pursuer adds that they waited at the station for ten minutes or so to see whether the portmanteau would turn up. But it is certain that they finally drove to the police office and the defenders' place of business to give information of what had occurred, and that the pursuer, before leaving by the 7.30 train, gave 2s. to the cabman, of which

Page: 18↓

the cabman says he handed 1s. to his employers—that sum being, as he deponed, the fare paid by the pursuer for the drive from the station to the police office and the defender's place of business.

The cabman was not a licensed cab driver.

The Burgh Police (Scotland) Act 1892 (55 and;56 Vict. cap. 55), Schedule V., “Regulations for Hackney Carriages,” enacts as follows:—Section (1) “Every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street, within the prescribed distance, and every carriage standing upon such street within such prescribed distance, having thereon any numbered plate required by this Act to be fixed upon a hackney carriage, or any plate resembling or intended to resemble any such plate as aforesaid, shall be deemed to be a hackney carriage within the meaning of the Act; and in all proceedings at law or otherwise the term ‘hackney carriage’ shall be sufficient to describe any such carriage; but no stage coach used for the purpose of standing or plying for passengers to be carried for hire at separate fares, and duly licensed, shall be deemed to be a hackney carriage.” Section (9) “Any driver of a hackney carriage standing on any of the stands for hackney carriages appointed by the magistrates, or in any street, public or private, who refuses or neglects, without reasonable excuse, to drive such carriage to any place within such prescribed distance, or any distance to be appointed by any byelaw of the magistrates, not exceeding such prescribed distance, to which he is directed to drive by the person hiring or wishing to hire such carriage, shall for every such offence be liable to a penalty not exceeding forty shillings.” Section (14)“Any licensee or driver of any hackney carriage which is hired who permits or suffers any person to be carried in or upon or about such hackney carriage during such hire, without the express consent of the person hiring the same, shall be liable to a penalty not exceeding twenty shillings.”

On 3rd June 1898 the Lord Ordinary decerned against the defenders conform to the conclusions of the summons.

Opinion.— [After stating the facts as narrated supra].—“If the pursuer had hired the cab in the ordinary way the defenders would have had no case. It is clear law that those who, for hire, undertake to carry the persons or property of others are liable in damages if through their negligence the persons are injured or the property is lost; and it is of course part of the master's responsibility on the contract that he is liable for the acts of his servant. The stricter decree of responsibility founded on the edict Nautæ Caupones has not been applied to hackney coachmen, but the English cases of Ross, 2 C. B. 877, and Powles, 6 Ell. & B1. 207, establish that the acceptance of luggage by a cabman implies a promise to carry safely, with a corresponding liability for negligence. The negligence here is plain, because, in the first place, the portmanteau ought to have been stowed on the top of a railed cab so as not to fall off, and when it did fall off, the driver ought not to have left it on the street.

“The only stateable defence, therefore, is that there was no contract of hiring at all between the pursuer and the defenders; and that is founded on the view either that the cabman was merely doing a personal favour to the pursuer, in the hope of a ‘tip’ to himself, or that he had no authority to hire the cab to different persons at the same time.

The first of these views is, I think, excluded by the evidence. The pursuer distinctly says that he intended to hire the cab, and he afterwards handed to the driver a sum which covered the fare, with a little over. The cabman's conduct in accounting to his employers for a part of this sum shows, I think, that he took the same view, because I cannot accept his statement that he did so in respect of the drive to the Police Office.

The second view is not supported by any rule that I know of, either in law or in common sense. It really comes to this, that after one man has hired a cab for a certain journey, it is a legal impossibility for anyone else to hire it for the same journey, even with the first hirer's consent. Of course that consent might be withheld, but if it is given, either expressly or tacitly, I fail to see why it should be impossible for the second man to make the journey under an obligation to pay the full fare. There is another kind of contract of hiring connected with a fashionable pastime in which it is not unheard of (when the supply falls short of the demand) that the same man should carry the clubs of two employers and receive full remuneration from each.

The only peculiarity of the contract which the pursuer made was that he thereby took the risks incidental to the double employment, including the risk of any lawful order which the first hirer (Mr Sims) might give to the cabman. Accordingly, if the carriage of the pursuer's portmanteau, in addition to Mr Sims' luggage, had so crowded the cab as to make it impossible to stow the former safely, or if a lawful order by Mr Sims, i.e. an order which the cabmen was bound to obey, had been the direct cause of the loss, the pursuer might have had no remedy. But neither of these things occurred. Mr Sims had only two articles of luggage, one of which was inside; and if Mr Sims did tell the cabman to drive on (which he does not himself admit) the cabman was not, in my opinion, bound to obey him, because Sims by his consent to the carriage of the pursuer's property, had to that extent qualified his own right of direction; and it was the cabman's duty, whatever Sims said, to take the simple and natural course of picking up the article which had fallen. I therefore hold the contract and the breach of it as proved.

No serious question was raised as to the pursuer's estimate of the damage. It was made at the time, and the evidence of the pursuer's servant as well as the accounts produced tend, I think to show at least all

Page: 19↓

the articles named were in the portmanteau, and that the estimate is moderate. I shall accordingly give decree for the sum claimed, with expenses.”

The defenders reclaimed, and argued—The cabman was not entitled after he had hired his cab to one person to enter into a second engagement of hiring with another. Such an engagement was illegal, and consequently without authority from his employers, and therefore not binding upon them. A cab could only be hired as a whole to one person at a time, and was distinguished from a vehicle in which “separate fares” were charged.—Burgh Police (Scotland) Act 1892, Schedule V., section 1. A cabman was bound to drive where he was told to drive by the person who had hired him.—Burgh Police (Scotland) Act 1892, Schedule V., section 9. If he engaged himself to two persons at the same time he was acting in a manner inconsistent with his duty in this respect, for he might receive contradictory orders from his employers, or his duty to one employer might conflict with his duty to the other, and he might come to be in such a position that he could not avoid failing to perform his duty to one or other of those with whom he had contracted. In the present case the result of what the cabman did was that when the portmanteau fell off the cab he had either to leave it lying in the road, or he had to delay the original hirer with the probable result of making him too late for his train. It was not within the scope of his employment to put himself, as acting on behalf of his employers, into such .a position, and consequently in entering into any arrangement with a second person after his cab was already engaged to some-one else, he was not entering into a contract of hiring on behalf of his employers. The true nature of the transaction between him and the pursuer was that he was to take the pursuer's portmanteau to the station as a matter of favour to the pursuer, and with a view to a tip for himself. Such a transaction did not confer any rights, or impose any liabilities upon the defenders. The shilling handed to the defenders by the cabman was for the drive from the railway station to the Police Office.

Argued for the pursuer and respondent—The portmanteau was lost while in the custody of the defenders' servant, and it was so lost owing to his negligence. For such negligence the defenders were responsible.— Ross v. Hill (1846), 2 C.B. 877; Powles v. Hider (1856), 6 Ell. & Bl. 207. The presumption was that the arrangement between the pursuer and the cabman was of the nature of hiring, and the onus of showing that nothing more than a favour was intended, or that the cab could not legally be hired by the pursuer at the time, lay upon the defenders, and they had not discharged it. That this was not a mere favour appeared from the fact that a fare was paid by the pursuer, and handed over as a fare by the cabman to the defenders. The shilling which the defenders received was not for the drive from the railway station to the Police Office, because the cabman was bound to drive there for nothing when it was discovered that the portmanteau was lost. The hiring in this case by the pursuer took place in the ordinary way, with this exception, that the cab was already hired to someone else. That peculiarity was nullified by the fact that the previous hirer consented to the portmanteau being taken on the cab. He knew that it was there, and he did not order it to be taken off, but allowed the cab to start with it on the roof, Having done so he was bound to wait while it was picked up. He was not entitled to go back upon his previous consent and insist upon the cabman driving on regardless of his obligation to the pursuer. If he ordered the cabman to drive on and leave the portmanteau on the road, the cabman was not bound to obey such an order, and indeed was bound not to obey it. If by obeying it he caused the loss of the portmanteau the defenders were liable. There was here either (1) a double hiring, each defender being liable for the full fare, or (2) there was a joint hiring, each being liable for half the fare. Either of these contracts was a perfectly legal and binding contract of hiring, provided the cab was hired by the two hirers either (1) at the same time or (2) by one of them first and then by the other with the consent of the first. As regards the bye-laws—(1) they did not apply here, for this cabman was not licensed, but further (2) this contract was quite legal under them. By the terms of the Burgh Police (Scotland) Act 1892, Schedule V., section 14, it was implied that with consent of the first hirer other passengers, or other persons' luggage, could be carried for hire. If this contract was legal under the bye-laws, then, as no other evidence was led to show what contracts were and were not within the scope of the cabman's employment, it lay within the scope of his employment to make this contract with the pursuer, and the defenders were consequently liable, for if there was a contract at all there could be no doubt there was a breach of that contract.

At advising—