Quarman v Burnett

[499] quarman v. burnett and another. Exch. of Fleas. 1840. - Where the owners of a carriage were in the habit of hiring horses from the same person, to draw it for a day or drive, and the owner of the horses provided a driver, through whose negligence an injury was done to a third party, it was held that the owners of the carriage were not liable to be sued for such injury. - And it was held to make no difference, that the owners of the carriage had always been driven by the same driver, he being the only regular coachman in the employ of the owner of the horses; or that they had always paid him a fixed sum for each drive ; or that they had provided him with a livery, which he left at their house at the end of each drive, and that the injury in question was occasioned by his lea-ving the horses while so depositing the livery in their house. [S. C. J L. J. Ex. 308 ; 4 Jur. 969. Discussed and referred to in numerous cases. Hee Reedie v. London and North Western Railway, 1849, 20 L. J. Ex. 65 ; Mersey Docks Trustees v. Gibbs, 1866, L. R. 1 H. L. 114; River (Pear Commissioners v. Adamson, 1877, 2 A. C. 768; SpaigU v. Tedcastte, 1881, 6 A. C. 222; Dalian v. Angus, 1881, 6 A. C. 829; Hughes v. Perdval, 188:5, 8 A. C. 447; The Eumpe.an, 1885, 10 P. D. 102; Jones v. Liverpool Corporation, 1885, 14 Q. B. 1). 890; The Bernina (2), 1887, 12 P. D. 62 ; The Niobe, 188S, 13 P. D. 56 ; The Quickstep, 1890, 15 P. D. 200; Donovan v. Lang, [1893] 1 Q. B. 6^9 ; Hurdakerv. Idle District Council, [189(5] 1 Q. B. 335; Jones v. Scullanl, [1898] 2 Q. B. 565; Powdl v. M'Ghjnn, [1902 1 2Ir. R. 154.] Case. The declaration stated, that the plaintiff, on the 21st December, 1838, was possessed of a carriage, to wit, a chaise, of great value &c., and of a horse then drawing the same, in which said carriage the plaintiff was then riding : and that the defendants were also possessed of a carriage, to wit, a chariot, to which said carriage of the defendants were harnessed two horses, and which said carriage and horses were then under the care of the defendants. Nevertheless the defendants so carelessly &e. conducted themselves in the premises, that by and through the mere carelessness, negligence, want of proper caution, and improper conduct of the defendants in that behalf, the said horses so harnessed to the carriage of the defendants 510 QUAHMAN V.BURNETT 6M. &W. 800. started oft' with the said carriage, without a driver or other person to manage, govern, or direct the same, whereby the said carriage of the defendants then ran and struck with great force against the said carriage of the plaintiff, and thereby greatly crushed and injured the same, and the plaintiff was thrown with great force and violence out of his carriage upon the ground, &c. &c. Pleas, first, not guilty; secondly, that the said carriage and horses in the declaration mentioned, or either of them, were not under the care of the defendants, or either of them, in manner and form, &c.; upon which issues were joined. At the trial before Maule, B., at the Middlesex Sittings in last Michaelmas Term, the following appeared to he the material facts of the case:- The defendants are elderly ladies resident in Moore Place, Lambeth, keeping a carriage of their own, but hiring horses and a coachman from a job-mistress of the name of Mortlock. They generally had the same horses, [500] and always the same coachman, a man of the name of Kemp, (the only regular coachman in Miss Mortlock's employ), to whom they paid 2s. for each drive, having told him when they first set up their own carriage, three years ago, that they would pay him that sum. He received regular weekly wages from Miss Mortlock. The defendiints sometimes took the coachman and horses into the country for several weeks, when they paid him a certain sum per week. They had a plain coachman's coat and a livery hat, for which Kemp was measured, and which he wore when driving the defendants, and took off on his return to their house, where the coat and hat were hung up in the passage. On the 21st December, 1838, he went into the defendant's house to pull off the hat, (he did not wear the coat that day, having his own box coat on), and left no one in charge of the horses: they started off, ran against the plaintiff's chaise, which was drawn up on the side of the footpath, threw him out, and seriously injured him, and damaged the chaise. This being the state of facts, it was contended for the defendants that Kemp was, under'the circumstances, the servant, not of the defendants, but of the job-mistress, and that the defendants were not responsible. The following cases were referred to; Laugher v. Pointer (5 B. & C. 547), &nith v...