Who is the master of the servant doing the damage? passer, and contributed to the mischief by his own act; the jury having found that he merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse. The difficulty, however, which arises in cases of this sort is, not so much in ascertaining the law, as in applying it to the circumstances of each particular case, and ascertaining who is to be regarded as the master in each case, for it is obvious that the liability arising from the relationship of master and servant cannot exist, unless the relationship itself exist (i). In all cases, therefore, of injury by the act of a servant, it is most important to ascertain, in the first place, whose servant the person was who caused the injury. And this is an inquiry of greater difficulty than would at first be imagined, and frequently Coachman involves questions of considerable nicety. For instance, in the ordinary case of a person hiring a carriage, horses, and driver on a job, although it is now settled that if, in such a case, any accident or injury happen to a third person through the carelessness or misconduct of the driver, the hirer is not, in general (k), liable to make compensation for such injury, yet there was formerly considerable doubt upon the subject, and some of the Judges expressed opinions, that the hirer was responsible, as being the dominus pro tempore (1): and he certainly is, in some respects, the master, for he may order the carriage to be driven where he pleases. with car. riage or horses on job not servant of hirer. Laugher v. Pointer. The question was argued at great length in Laugher v. Pointer (m), where the owner of a carriage hired for (i) In Stables v. Eley, 1 C. & P. 614, a person who had formerly been in partnership with another man, was held liable to an action on the case for injury caused by the negligent driving of the carter of that other, after the dissolution of the partnership, as his name was on the cart that did the damage. (k) The hirer may make himself liable by ordering, sanctioning, or adopting the act of the driver; Mc Laughin v. Prior, 4 M. & G. 48; Burgess v. Gray, 1 C. B. 578. (1) See per Heath, J., in Bush v. Steinman, 1 B. & P. 409. (m) 5 B. & C. 545; and see Chilcot v. Bromley, 12 Ves. 114, where Sir W. Grant held, that a job coachman, supplied with carriage and horses, was not a servant of the person to whom they were supplied, although he paid the coachman board wages, as the contract was with the job master, and the coachman was a subject of the contract, not a party to it. the day, of a livery stable keeper, a pair of horses and a driver, through whose negligence an injury was done to the plaintiff's horse; and the question was, whether the owner of the carriage, or the livery stable keeper, who supplied the horses and driver, was liable to make compensation for the injury. The Judges before whom the case was argued, differing in opinion, they all gave separate and very elaborate judgments, which, as observed by Mr. Justice Story in his valuable work on Agency (n), "have exhausted the whole prior learning on the subject, and on that account should be attentively studied:" the Lord Chief Justice (afterwards Lord Tenterden), and Littledale, J., holding that the owner of the carriage was not liable; and Bayley, J., and Holroyd, J., holding that he was. The point was thus left unsettled, for not only the Court of Queen's Bench, but the twelve Judges, differed upon it (o). It again arose, and was definitively settled, in Quarman v. Bur- Quarman v. nett (p), in which the Court of Exchequer, after fully Burnett. considering the judgments given in Laugher v. Pointer, thought the weight of authority and legal principle was in favour of the view taken by Lord Tenterden and Mr. Justice Littledale, and decided accordingly that the hirer was not liable. And it was also held, that the facts,that the hirer always had the same driver, who was the only one his master kept, and always gave him a fixed (n) Sect. 453 b. (0) See per Parke, B., in Quarman v. Burnett, 6 M. & W. 507. In Brady v. Giles, 1 M. & Rob. 494, where a similar question arose in an action on the case, Lord Abinger, C. B., left it to the jury to say whether the postilions were acting as the servants of the owner of the chaise, or of the hirer,-and said, it always appeared to him that the Queen's Bench pursued an erroneous course in Laugher v. Pointer, when they allowed the question to be discussed as a question of law; and see McLaughlin v. Prior, 4 M. & G. 48. (p) 6 M. & W. 499; and see Persons contractor not liable for acts of his workmen. gratuity, and provided him with a livery, which he kept in the hirer's hall, and while he was hanging up which the accident happened,-made no difference in the hirer's liability. The principle upon which Quarman v. Burnett was employing decided, has been frequently applied to other cases, in which a man has employed a person carrying on a distinct trade, or calling, to perform certain works for him, and an injury has been caused through the unskilfulness, negligence, or default of the workmen employed by that person. In such a case, the workmen are selected and employed by the contractor, and it would be obviously unjust to hold his employer, who had nothing to do with the selection of the workmen, liable for the consequences of their unskilfulness or negligence. Butcher Smithfield drover. Milligan v. Wedge. Rapson v. Thus, where a butcher bought a bullock in Smithfield employing Market, and employed a licensed drover to drive it home, and the drover employed a boy, through whose negligence the bullock injured the plaintiff's property: it was held, that the butcher was not liable, as the drover exercised a distinct calling, and the boy who caused the mischief was his servant, not the servant of the butcher (9). And so where a builder was employed to make certain alterations at a club-house, including the preparation and fixing of certain gas fittings, to do which he made a sub-contract with a gas fitter, through the negligence of whom, or his servants, the gas exploded and injured the plaintiff, the builder was held not liable, as the relation of master and servant did not exist between him and the party causing the injury (r). So the commissioners of a navigation, who had entered into a contract with a person to do certain works, were held not liable for an injury arising from the imperfect performance of part of those works, as the contractor Allen V. (q) Milligan v. Wedge, 12 A. & E. 737. In this case Littledale, J., stated, that he retained the opinion he had expressed in Laugher v. Pointer, See Martin v. Temperley, 4 Q. B. 298, post, p. 170; and see also Reg. v. Hey, 2 Carr. & K. 983, where it was held, that a drover was a bailee and not a mere servant of the person who employed him, and, therefore, that having sold some pigs entrusted to him, and absconded with the money, he could not be convicted of larceny, as he had no original intention of stealing the pigs. (r) Rapson v. Cubitt, 9 M. & W. 710. was not their servant (s). So where a viaduct was Reedie v. L. & N. W. being built by contractors for a railway company, under Railway a deed, by which, amongst other things, it was provided Company. that the contractors were to do the work, but the company had a general right of watching the progress, and if the contractors employed incompetent workmen, the company had the power of dismissing them: the company were held not liable for injuries sustained by a workman who was killed by a heavy stone which fell from a travelling truck, through the negligence of some of the contractor's workmen whilst building the viaduct; as the workmen who caused the injury were not the servants of the company, and the power reserved to them, of dismissing incompetent workmen, did not make them responsible for the consequences of the contractors' employing such. And it was also held, that the defendants being the owners of the land on which the accident happened made no difference (t). Fox. So in another case (u), where a railway company Knight v. entered into a contract with A. to construct a portion of their line. A. contracted with B., who resided in the country, to erect a bridge on the line. B. had in his employment C., who acted as his general servant and as a surveyor, and had the management of B.'s business in London, for which he received an annual salary. B. entered into a contract with C., by which C. agreed for 40l. to erect a scaffold which had become necessary in building the bridge; but it was agreed that B. was to provide the requisite materials, and lamps, and other lights. The scaffold was erected upon the footway by C.'s workmen, and a portion of it improperly projected, and owing to that and the want of sufficient light, D. fell over it at night and was injured; but it was held, that D. could not maintain an action against B. for the injury thus occasioned, even though, after the accident, B. had caused other lights to be placed near the spot to prevent a recurrence of similar accidents. Freeman. Again, where certain commissioners (v) had contracted Overton v. (s) Allen v. Hayward, 7 ants were held not liable in Q. B. 960. See Clayards v. trover for the acts of a conDethick, 12 Q. B. 439. tractor's workmen. (t) Reedie v. The London and North Western Railway Company, 4 Exc. 244; and see Glover v. The same Company, 5 Exc. 56, where the defend (u) Knight v. Fox, 5 Exc. 721. (v) Overton v. Freeman, 21 L. J., N. S., C. P. 52. Brig towed Hemming way. with A. for all the paving required in a certain district, and A. contracted with B. to lay down a certain portion of it, and B.'s workmen left some paving stones at night in such a position as to constitute à public nuisance, and the plaintiff tumbled over them whilst on foot: it was held, that A. was not liable to an action at the suit of the plaintiff, as the injury was not caused by his work men. And similar principles were acted upon in a case by steamer. which recently occurred in America (w). A brig which Sproul v. was towed at the stern of a steamboat employed in the business of towing vessels in the River Mississippi below New Orleans, was, through the negligence of the master and crew of the steamboat, over whom those in charge of the brig had no control, brought into collision with a schooner lying at anchor in the river. A suit was brought by the owners of the schooner against the owner of the brig for the damages sustained by the collision; and the question was, whether the owner of the brig was liable therefor. It was held, upon full argument, that he was not, upon the ground that the master and crew of the steamboat were not the servants of the owner of the brig; were not appointed by him; did not receive their wages or salaries from him; had no power to order or control them in their movements; and had no contract with the master and crew of the steamboat, but only through the master with the owners of the steamboat for a participation in the power of the steamer, derived from the public use and employment thereof by the owners. Persons employing contractor liable for But where a contractor is employed, his employer may, by personal interference with the workmen, adopt their acts, and so render himself liable where, ordinarily, personal in- he would not be so. As in the case of Burgess v. Gray (x), in which it appeared that the defendant was terference. Burgess v. Gray. (w) Sproul v. Hemming way, 14 Pick. R. 71. See Story on Ag. sect. 453 c, in a note to which is a long extract from the judgment of Chief Justice Shaw. (x) 1 C. B. 578. The defendant in this case was held liable, partly on the ground that it did not appear that he had parted with the whole control of the work; and partly on the ground that he had sanctioned and adopted the act of the person who placed the gravel in the road. It is on the latter account that it is cited in the text. See, however, Knight v. Fox, 5 Exc. 721, ante, p. 167; and |