Poland v Parr (J.) & Sons
| Jurisdiction | England & Wales |
| Date | 1927 |
| Court | Court of Appeal |
Negligence - Master and Servant - Liability of Master for Act of Servant - Implied Authority - Emergency - Suspicion of Theft - Reasonable Belief - Servant's Duty with Respect to Master's Property.
A servant has implied authority to make reasonable efforts to protect and preserve his master's property in cases of emergency endangering it. For acts done by the servant within the scope of that authority the master is responsible. The servant's acts may exceed the authority. Whether they do or not is a question of degree.
A carter in the employment of the defendants on his way home in the middle of the day was following close behind a waggon laden with sugar in bags and being driven by one of his employers. He saw a boy walking beside the waggon with his hand upon one of the bags. Honestly and reasonably thinking that the boy was stealing sugar from the bag, he gave him a blow with his hand on the back of the neck. The boy fell and the wheel of the waggon injured his foot:—
Held, that in the circumstances the carter had implied authority to make reasonable efforts to protect and preserve the defendant's property; that the violence exerted was not so excessive as to take his act outside the scope of the authority, and that the defendants were liable.
APPEAL from the judgment of the Court of Passage of the City of Liverpool in an action tried before the judge of the said Court (Sir W. F. K. Taylor) sitting without a jury.
The plaintiff was a boy of twelve years old suing by his father as next friend. The action was for damages caused by the negligence of the defendants' servant.
The defendants were cartage contractors carrying on business at 4 and 6 Fowler Street in the city of Liverpool. The firm consisted of John Parr and Henry Parr, his son. On June 30, 1925, Henry Parr was conveying in a waggon five tons of sugar in fifty bags of 2 cwt. each from Tate's warehouse in Love Lane to Everton. He started with two horses, but required a third to draw the waggon up Sleepers Hill. At the bottom of Netley Street Arthur Hall, a carter in the defendants' employment, brought the third horse, and Henry Parr then proceeded with the third horse harnessed to the waggon. He was leading the middle horse by the head and the front horse by a side rein. From thenceforth the waggon and horses were in the sole control of Henry Parr, but Arthur Hall on his way to his own home to get his dinner continued walking close to the waggon. About twenty minutes later, a little after twelve noon, the waggon, with Hall still following close behind, was proceeding along Walton Lane, which also led to the defendants' place of business, where Henry Parr intended to call on the way to Everton.
The plaintiff with two other boys having just left a neighbouring school, was walking home along Walton Lane in the same direction as the defendants' waggon, which was being driven at a walking pace with its near wheels close to the edging stones of a tramway running along and slightly raised above the general level of the lane. There was no footpath at the near side of the waggon, but the tramway forms a sort of kerb. Arthur Hall noticed the plaintiff walking along the tramway with his hand upon one of the bags of sugar. The learned judge found that the plaintiff was not stealing the sugar; but Hall, honestly believing that the plaintiff was tampering with the sugar, and with the sole object of protecting his masters' interest, struck the plaintiff with his open hand on the back of the neck. The plaintiff fell forward and the back wheel on the near side of the waggon went over his right foot. As a result his leg had to be amputated.
The learned judge in the course of his judgment said “It is quite clear that Hall was at that time in the employment of the defendants, but he was in their employment as a carter, and I think the failure in this case, the point on which the plaintiff must fail, is that Hall's employment being that of a carter, he was not at that time acting in the course of that which he was employed to do, nor was he doing any act which can be said to be incidental to that employment.” He distinguished Limpus v. London General Omnibus Co.F1; Ward v. London General Omnibus Co.F2; and Lloyd v. Grace, Smith & Co.F3 on the ground that in those cases the servants or agents were at the time of the wrongful act discharging duties connected with their employment, and continued: “The servant Hall in this case in his ordinary employment was a carter. [His duty was] to drive horses, to control the waggons and conduct them from place to place and load and discharge them, or help in something of that kind. The last act he had done incidental to his employment was done some considerable [number of] minutes before, when he handed over the third horse to one of the defendants. He did not then cease to be in the defendants' employment, but he was not then discharging any duties as a carter. …. The blot, the failure in this case is that he was not then in fact acting in the course of his employment …. nor was he doing an act incidental to it. It is true he did the act in the interests of his masters, and in that sense for their benefit. I do not think that was enough, and I think that the real foundation of liability in all these cases is absent.” He therefore gave judgment for the defendants. He was then asked to assess the damages in the event of an appeal, and he assessed them at 500l.
The plaintiff appealed.
Merriman K.C. and Goldie for the appellant. The learned judge was wrong in holding that...
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