Ord v Gemmell & Son, Ltd
| Jurisdiction | Scotland |
| Judgment Date | 20 October 1898 |
| Date | 20 October 1898 |
| Docket Number | No. 4. |
| Court | Court of Session |
Ld. Stormonth-Darling, Lord Justice-Clerk, Lord Young, Lord Moncreiff.
Master and Servant—Scope of Employment—Reparation—Negligence—Contract of carriage—Hackney Carriage.—
A engaged a cab to take him to a railway station. The cabdriver subsequently agreed with B to take a portmanteau for him at the same time. on the way to the station the portmanteau was lost.
Held (rev. judgment of Lord Stormonth-Darling) that the cabowner was not responsible for the loss of the portmanteau, in respect that the cabman, after his cab had been hired by A, had no power to bind his master in a second contract of hiring with the owner of the portmanteau.
Richard Ord, Sands Hall, Sedgefield, Durham, raised an action against Alexander Gemmell & Son, Limited, postmasters, Ayr, for delivery of a portmanteau ‘handed to a cabdriver in the employment of the defenders to be carried from No. 12 Cathcart Street, Ayr, to the railway station, Ayr, on 17th September 1897,’ or alternatively, for £53 as damages.
The pursuer averred that he hailed the defenders' cab, and that the driver, Archibald M'Kinlay, ‘at first said he was engaged, but eventually agreed and undertook to convey the pursuer's luggage from 12 Cathcart Street, Ayr, and deliver it to the pursuer at the station.’‘The pursuer accordingly hired the driver and cab for that purpose.’ He further averred that the driver failed to deliver it; that it was lost through the gross carelessness of the cabman in placing it insecurely on the top of the cab, with the result that it fell off, and in driving on after it fell off without stopping to recover it.
The pursuer pleaded, inter alia;—The defenders having through their duly authorised servant undertaken the carriage of the pursuer's portmanteau as condescended on, and received the same for that purpose, are bound either to restore the same to the pursuer or to pay damages as concluded for.
The defenders denied that the pursuer hired their cab, but ‘admitted that a portmanteau, believed to be the property of the pursuer, was, by the permission of the persons who had hired the said cab, and who were about to proceed to the railway station, placed upon the cab as a favour to the pursuer, who was himself not a passenger, and walked on foot to the railway station … Explained that the said Archibald M'Kinlay was in charge of the said cab solely for the purpose of conveying passengers with their personal luggage for hire, and that it was outwith the scope of his duty as the servant of the defenders to hire the cab to different persons at the same time, or to hire the cab for the conveyance or carriage of luggage which was not personal luggage of passengers using the said cab as a conveyance for themselves.
They pleaded, inter alia;—(3) There having been no contract of hiring between the pursuer and the defenders for the conveyance or carriage of the portmanteau in question, the defenders are entitled to absolvitor. (5) In any event the defenders' servant having acted outwith the scope of his authority, the defenders are entitled to absolvitor.
A proof was led, at which the following facts were disclosed:—On 17th of September, the last day of the Autumn Race Meeting at Ayr, about 5.10, the pursuer hailed a cab which was entering Cathcart Street. The cab belonged to the defenders and was driven by their servant M'Kinlay, who told him that he was engaged. He had in fact been engaged at the course by a man called Sims to take him and his wife to the station. Sims got out at 3 Cathcart Street, where he had lodged, leaving his wife in the cab. The cabman then came over to the pursuer and said he recognised him as a gentleman whom he had driven from the station to his lodgings 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...
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