Lockhart v. Canadian Pacific Ry. Co.

If the order as it is expressed denies him relief in respect of these matters, then it ought to be made clear that such is not its effect and that they will be dealt with at a later stage of these proceedings.

I should dismiss the appeal, subject, however, to a variation of the order of the learned trial judge, making it clear that the suppliant's right to relief under section 19 of the Patent Act and his right to have his claim in that respect disposed of in this action are not prejudiced by the judgment appealed from, and that the remaining questions in controversy are reserved to be disposed of later. What I have said does not touch upon the rights of the Crown under section 46 of the Patent Act. In passing on the respondent's claim to relief, these rights, if any, will, of course, be taken into account.

The appeal should be dismissed with costs, subject to the reservation explained.

LEONARD LOCKHART,

JOSEPH

LOCKHART

' R. STINSON

CANADIAN

PACIFIC

RAILWAY

COMPANY

S., a general repair man in respondent's employ, and whose duties took him to various premises of respondent, had made a key in respondent's shops in West Toronto and was instructed by his foreman to take it to respondent's premises in North Toronto to try it in the lock for which it was intended. S. was entitled to be paid for the time occupied in such an errand. Means of transport were available for his use-vehicles which could be run on respondent's railway, and street-cars for which respondent would provide tickets. On the occasion in question no instruction was given by the foreman to S. as to mode of transportation.

Notices had been given by the respondent to its employees (and brought to S.'s attention) forbidding use of privately owned automobiles in connection with respondent's business unless the owner carried insurance against public liability and property damage risks. In taking the key as aforesaid, S. drove his own automobile, in respect of which he did not have insurance, and on his way he negligently (as found by the jury at trial) struck and injured appellant.

The chief question on the present appeal (treated by the trial judge as a question of law, and as to which no questions were referred to the jury) was as to respondent's liability to appellant.

Held: Respondent was liable.

The question whether a master is liable for injuries caused to third persons by his servant's negligence depends upon whether under all the circumstances the servant at the time of the negligence was acting in the course of his employment, and, if he was so acting, liability attaches to the master even though the servant was doing something forbidden by the master. Upon the circumstances and facts in evidence, it must be held that S. at the time of the negligence was acting in the course of his employment within the meaning and application of the above rule. Case. reviewed.

Judgment of the Court of Appeal for Ontario, [19401 O.R. 140 (affirming judgment of Rose, CJ.H.C., [1939] O.R. 517) reversed. Held, further, that the facts that judgment had been entered against S. on appellant's behalf, and on behalf of his father, by whom as next friend appellant, an infant, had sued, and that his father had, in his personal capacity, taken proceedings to secure by way of attachment part of his own damages awarded against S., did not operate to end appellant's cause of action against respondent so as to nullify appellant's right of appeal.

Held, further, that though the amount of damages claimed on appellant's behalf in the statement of claim was $5,000, and no amendment was applied for until after the jury's verdict, when the trial judge allowed an amendment to cover the sum awarded, namely, $10,000, the judgment for the sum awarded should not be disturbed.

APPEAL by the plaintiffs from the judgment of the Court of Appeal for Ontario (1) dismissing their appeal from the judgment of Rose, C.J.H.C. (2) dismissing, as against the defendant Canadian Pacific Railway Com- (1) [19401 O.R. 140; [1940] 1 D.L.R. 23.

(2) [1939] O.R. 517; [1939] 3 D.L.R. 596.

pany, their action for damages by reason of injuries caused to the infant plaintiff when he was struck by an automobile being driven by the defendant Stinson, who was an employee of the defendant company.

At trial, before Rose, C.J.H.C., and a jury, the jury, in answer to questions submitted to them, found that the infant plaintiff's injuries were caused by negligence of Stinson, and judgment was given against Stinson for the amounts of damages found by the jury. No appeal was taken by Stinson. No question as to liability of the defendant company was left to the jury, as the trial judge considered that the facts upon which the question turned were not in dispute and that the question was one of law. He later gave judgment dismissing the action as against the company. An appeal by the plaintiffs from this judgment was dismissed by the Court of Appeal (McTague J.A. dissenting). The plaintiffs appealed to this Court. The plaintiffs were Leonard Lockhart, an infant, suing by his next friend (his father) Joseph Lockhart, and the said Joseph Lockhart. The latter claimed on his own behalf for expenses incurred, and his damages found by the jury at the trial were $500.

As this was less than the statutory amount for appeal fo this Court, and as he had not obtained leave to appeal, the dismissal of his claim as against the defendant company by the trial judge, affirmed by the Court of Appeal, stands.

The material facts and circumstances of the case, with regard to the questions before this Court on the appeal, are sufficiently stated in the reasons for judgment now reported. The appeal was allowed and the infant plaintiff was given judgment against the defendant company for the amount of the jury's verdict (as of July 12, 1939, the date of the judgment of the trial judge dismissing the action as against the defendant company), with costs throughout.

THE CHIEF JUSTICE-This appeal raises a question concerning the application to the facts of the case of the principle governing the responsibility of a master for the negligence of his servant.

The servant was one Stinson who was an employee of 1y.Co. the Canadian Pacific Railway Company and who had been in the service of the Company for something like twentyfive years. He was a carpenter and his duties consisted mainly in doing repairs on the buildings and cars of the Company in Toronto and in its neighbourhood.

On the day when the accident happened he had a key which, on the instructions of McLeod, his immediate superior (who is described as a bridge and building foreman), he had made for use in a lock at the premises of the Company in North Toronto.

His usual place of work was at the Company's station in West Toronto and he had made the key in the shops there. He informed the foreman that it was necessary to take the key to North Toronto in order to try it in the lock, and the foreman instructed him to do so.

On his way to North Toronto, driving his own automobile, he ran down the infant plaintiff, and the action was instituted by the infant and the infant's father against Stinson and the Railway Company, charging Stinson with negligence.

In the course of his duties Stinson was obliged at times to go to places in and outside of Toronto.

Means of transport, it is said, were available for his use in such cases. There were vehicles which could be run on the respondent's railway and there were the street-cars by which he could travel when it was more convenient to do so. He was forbidden, it is said, to use his own car in the Company's business unless it was insured; and in any case, it is argued, he was not employed to drive an automobile and his negligence in the course of doing so was not negligence in the course of his employment.

The question is one of considerable difficulty. The best statement of the general principle is, I think, in the passages quoted from Story and adopted by Lord Macnaghten in Lloyd v. Grace, Smith & Co. (1).

Lord Macnaghten's opinion is expressely concurred in by Lords Atkinson and Shaw.

cited apparently with approval in the Court of Queen's Bench, consisting of Cockburn CJ., Blackburn, Mellor, and Lush JJ., by Blackburn J. himself in a case which occurred in the interval between the date of Barwick's case (1) and the decision in Houldsworth v. City of PAcIvIc

Glasgow Bank (2).

The passage in the judgment of Blackburn J. as reported in McGowan & Co. v. Dyer (3) is as follows: " In Story on Duff CJ. Agency, the learned author states, in s. 452, the general rule that the principal is liable to third persons in a civil suit 'for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances, and omissions of duty of his agent in the course of his employment, although the principal did not authorize, or justify, or participate in, or indeed know of such misconduct, or even if he forbade the acts, or disapproved of them.' He then proceeds, in s. 456: 'But although the principal is thus liable for the torts and negligences of his agent, yet we are to understand the doctrine with its just limitations, that the tort or negligence occurs in the course of the agency. For the principal is not liable for the torts or negligences of his agent in any matters beyond the scope of the agency, unless he has. expressly authorized them to be done, or he has subsequently adopted. them for his own use and benefit."'

It does not follow that the act of the servant which is. the subject of complaint is not within the class of acts. for which the master is responsible because, as between the master and the servant, it constitutes a breach of themaster's orders or is a "breach of authority" as defined by such orders. As Willes J. said in Bayley v. Manchester (4), the master "has his remedy against the servant for misconduct and breach of authority as between them," although a third person has his remedy against both of them. In Whitfield v. Turner (5), Knox C.J., in. a judgment in which the other members of the High Court of Australia concurred, said:

The fact that Spinney's authority to light a fire was only given tohim in case of a certain emergency happening is nothing to the point.. Lighting a fire was an act of a class which he had authority to do under certain circumstances.

Whether the circumstances did or did not exist might be very relevant as between Spinney and his employer, but is not. relevant as between his employer and the plaintiff.

In Hamlyn v. Houston (6), Collins M.R. said: The principal having delegated the performance of a certain class of acts to the agent, it is not unjust that he, being the person who has appointed the agent, and who will have the benefit of his efforts if successful, should bear the risk of his exceeding his authority in matters incidental to the doing of the acts the performance of which has been delegated to him.

(1) Barwick v. English Joint

(3) (1873) L.R. 8 Q.B. at Stock Bank, (1867)

L.R. 2 p. 145.

Ex. 259.

(4) (1872) L.R. 7 C.P. 415, at. (2) (1880) 5 App. Cas. 317.

(5) (1920) 28 C.L.R. 97, at 100.. (6) [1903] 1 K.B. 81, at 85-86.

In Lloyd v. Grace, Smith & Co. (1), the question to be determined was the responsibility of a solicitor for a clerk who was in charge of the conveyancing department of the solicitor's business.

It was held that the solicitor was responsible for frauds involving forgery and theft committed by the servant by professing as clerk of the firm to transact business for a client. It is, of course, the essence of a solicitor's duty to his clients not only to act honestly but to act diligently in protecting the interests of his clients in the business committed to him, and loyally and faithfully in the fulfilment of any trust reposed in him. was of the essence of the nature of the clerk's employment, who was the manager of the conveyancing branch of Mr. Smith's business and who was left by Mr. Smith in charge of that branch of the business, to observe these duties towards the clients of the firm, and this, of course, he well knew.

Instead of acting honestly and faithfully in the protection of the client's interest, he formed a design to steal the client's money and by a series of acts purporting to be in his capacity of representative of the firm as the client's solicitors he successfully executed that design. In these circumstances it was held by the learned trial judge, and his findings were affirmed by the House of Lords, that the clerk was, in the pertinent sense of the words, acting within the scope of his employment and in the course of his agency.

In point of fact the acts by which he wronged the client, although purporting to be in the course of his agency, were, as appears from what has been said, inconsistent and indeed incompatible with the essential nature of his employment; and, of course, as between himself and his principal a "breach of authority," in the phrase of Willes J.

Lloyd v. Grace, Smith & Co. (1) was applied by the Court of Appeal to a case in which the managing clerk dealt with persons who were not clients of the firm, with the same result.

The case was held to be "precisely covered" by the earlier decision.

(Uxbridge Permanent Benefit Building Society v. Pickard (2)).

If the servant commits the wrongful act, in respect of which the master is charged, within the scope and in the course of his agency (in the sense in which these words are used and understood in the law), then it is immaterial that he is acting, in fact, against his master's interests and for his own convenience and benefit.

This is the proposition settled by the decision of the House of Lords in Lloyd v. Grace, Smith & Co. (1).

is quite true that the servant while engaged in executing the duties of his employment may at the same time perform an act which has no relation to his employment, or to his master's business; an act of such a character that in doing it he divests " himself of his character as servant," to employ the words of Blackburn J. in Ward v. General Omnibus Co. (2), or in those of Collins M.R., which are to the same effect, in Cheshire v. Bailey (3), " in committing it he severed his connection with his master and became a stranger "; such acts, not purporting to be acts in furtherance of his employment, are not contemplated by the principle of responsibility now under consideration.

Of course, such phrases as those just quoted must be applied not as if embodied in a text of law but rather as indicating points of view from which the facts may usefully be considered.

As Lord Macnaghten observed in Lloyd v. Grace, Smith & Co. (4), what is meant by such expressions as " acting in the course of his employment," " acting within the scope of his agency," is not easy to define with exactitude; and Sir Montagu Smith, speaking for the Privy Council in Mackay v. The Commercial Bank of New Brunswick (5), in a passage quoted by Lord Macnaghten in Lloyd v. Grace, Smith & Co. (6), said "it is not easy to define with precision the extent to which this liability has been carried."

As Lord Macnaghten observes in the same judgment, whichever of the various expressions may be most suitable to the particular case it must be construed liberally; but as a rule where the servant purports to be acting in the course of his service it is immaterial that, to repeat Story's words, "the principal did not authorize or justify or participate in, or indeed know of such misconduct, or even if he forbade the acts, or disapproved of them."

I agree with Mr. Winfield who, in his book on Torts at p. 130, says that the question whether or not the servant's conduct is in the course of his employment . raises an issue of fact for the jury, subject to a proper direction by the judge as to general principles. He cites a number of cases (Whatman v. Pearson (1); Mitchell v. Crassweller (2); Lloyd v. Grace, Smith & Co. (3); Baker v. Snell (4)). These instances might be supplemented by scores of others.

Turning now to the facts.

It is admitted that the servant was, at the time he committed the negligent act, engaged in his master's business. He was in the execution of his duty taking a key he had made to fit in the lock for which it was intended. I think it is useful to consider the facts from the point of view suggested by the phrases quoted above from Blackburn J. and Collins M.R. This is one of those cases-it should be noticed-in which the facts pertinent to the issue of responsibility are peculiarly within the knowledge of the respondents and their servants.

The circumstance that such is commonly the case where responsibility is in issue is adverted to by Willes J. and Byles J. in Limpus v. London General Omnibus Co. (5) as one reason why " secret " instructions should be disregarded.

" The law is not so futile," says Willes J., " as to allow a master, by giving secret instructions to his servant, to discharge himself from liability." " Secret " instructions here seem to be instructions which in the ordinary course would be known only to the master and his employees.

Byles J. says:

-that that at "I it The onus in respect of this issue is, of course, on the plaintiff, but in such circumstances very little evidence may suffice for a prima facie case and to shift the burden of proof in the sense of going on with the evidence. The only witnesses possessing any knowledge on the point were two servants of the Company. They were Stinson, whose act of negligence was in question, and the foreman McLeod, to whose orders Stinson was subject.

McLeod identified two notices, the terms of which are important and I give them in full.

Bruce Division

December 28, 1937. The use by employees of their own cars in connection with the Company's business has been forcibly brought to our attention by possible heavy claims against the Company in recent accidents, and, after a check-up of the situation it develops that a large number of such employees do not carry public liability or property damage insurance. As a continuance of this practice is likely to seriously involve the Company, privately owned automobiles are not to be used in connection with the Company's business unless the owner carries insurance against public liability and property damage risks.

Please be governed accordingly.

S. W. CRABBE,

Superintendent. Bruce Division

March 21st, 1938. Referring to my circular letter of December 28th, 1937, regarding the use of privately owned automobiles not covered by insurance in the execution of Company's business.

Since then, several instances have come to notice where employees had used unprotected automobiles contrary to the instructions. In one case, a telegraph messenger undertook to use an automobile while his bicycle was undergoing repairs, and had the misfortune to strike and injure a prominent citizen. As a result, a heavy claim has been preferred against the Company on the grounds that the messenger was transacting Company's business at the time.

It is a serious matter to involve the Company in expenditures of this nature, and all concerned must clearly understand that automobiles not adequately protected by insurance must not be used in the execution of Company's business.

Will you kindly take whatever steps are necessary to see that the instructions in this regard are being adhered to.

S. W. CRABBE, Superintendent. These notices indicate that before the date of the first of them employees in the Bruce Division had been using their own cars (uninsured) when engaged in the business of the Company; and the circumstance should be emphasized that these notices do not require the discontinuance of this practice.

The order is that such cars shall not c. be used in the Company's business unless properly insured. The second notice shews clearly enough that the first had been disregarded to such an extent as to make necessary a second.

As to the results of the second, one has only the evidence of the two witnesses mentioned, and they naturally speak only as to facts within their own limited observation; and I think there was sufficient evidence to cast upon the Company the burden of explanation. McLeod, a bridge and building foreman for a territory not defined, having his headquarters at West Toronto and a number (not stated) of men under his orders, received these orders for communication to these men. He says he read them to the men and posted them up and (a fact not to be overlooked) explained them. Both McLeod and Stinson say they understood the effect of them to be that an employee was permitted to use his car if it was insured. McLeod says explicitly he took no steps to see that the rule was observed, beyond reading the orders and explaining them to the men; and the effect of McLeod's evidence seems to be that he did not until after the date of the accident know that Stinson's car was not insured; and Stinson says explicitly that no inquiry was addressed to him to ascertain whether his car was insured.

The respondents adduced no evidence to show that a breach of the rule was in any way penalized, even in the case of repeated breaches of it, by dismissal or by deduction from the offending employee's wages in respect of the time spent in driving his car, or that any other disciplinary measure was taken.

McLeod says there were available to Stinson several permissible ways to get to the North Toronto Station. Two of these were by use of vehicles to be run on the railway, another was by the use of street-cars. There is no evidence that Stinson had ever used any of these methods of travelling from one part of Toronto to another on the Company's business.

Stinson, when asked whether he had used his automobile before the occasion in question on the Company's business, answered "once or twice." McLeod says that this had occurred "once and probably twice " before the occasion that gave rise to the litigation.

On the facts mentioned, in the absence of explanation, CJ. it was open to a jury to find that no steps were taken to ascertain whether or not the rule was being observed; in other words, that it was left to each employee himself to observe the rule as one of the duties of his employment and that in driving his car (though uninsured) he was regarded by the Company, in the words of the notice, as still using it (though improperly) "in the execution of the Company's business"; and that Stinson had no idea that he was severing his relationship with the Company in doing so.

There was evidence, therefore, upon which the jury might have found, in respect of this issue, a verdict in favour of the appellant; but I do not think it necessary to consider whether the appellant would be entitled to a new trial, or whether the Court in the exercise of its discretion ought to direct a new trial, in view of the course of proceedings at the trial, in the Court of Appeal, and before us.

The learned Chief Justice of the High Court of Justice, before whom the case was tried, took the view that there was no issue of fact for the jury and held that the question of responsibility was a question of law only and that the legal result, on the uncontradicted evidence as he interpreted it, was that the driver Stinson was not acting within the scope or in the course of his employment in driving his car. Their Lordships, the Judges of the Court of Appeal, seem to have treated the question as a mixed question of law and fact and the appeal was argued before us on that footing.

We cannot, I think, treat the conclusion of the trial judge and the Court of Appeal as relieving us from the responsibility of considering the effect of the evidence. The learned trial judge treated the question as one of law, as I have already observed; I think he did not reserve it to himself in the exercise of a discretion, but decided it as a point of law; the learned Judges of the Court of Appeal were largely influenced by their view of the effect of the decisions cited in their judgments, some of which will be discussed later.

My view of the result of the evidence is that Stinson, in using his automobile in the Company's service on the occasion in question, had no idea that he was not acting in the Company's service, and, moreover, when the terms of the notices are considered in light of the circumstances already mentioned, I think that such was not the Company's view of the effect of the use by an employee of his automobile in disobedience of the order. Some stress was laid upon an interview which is said to have taken place between Stinson and McLeod which, I shall assume, took place before the accident. As regards that incident, I think the effect of the evidence is that McLeod did not know that Stinson's automobile was uninsured and that in substance the incident amounted to little, if any more, than the fact that McLeod called Stinson's attention to the order. I have finished with the topic, discussed above, touching the sufficiency of the evidence to support a verdict on this issue in favour of the appellant, and I merely observe, in passing, that the appraisal of the testimony of McLeod and Stinson as to this incident was peculiarly matter for the jury. In any view of it, it adds nothing to the formal notices.

The evidence afforded by the formal notices of the use by employees of their cars uninsured in the Company's business, the explicit statement by McLeod that he took no steps to see that the directions were carried out beyond reading the notices to the men and explaining them to them, the explicit statement by Stinson that nobody on behalf of the Company did " check up " on him " to see " whether his car was insured, taken together with Stinson's conduct in disregarding the notices and the absence of any evidence that Stinson ever used any of the alternative methods of conveyance which are said to have been available to him, and the absence of any definite evidence as to the extent of the actual use of these alternative methods of conveyance. and the absence of any evidence by any officer of the Company but McLeod as to steps taken to see that the order was observed, all point to the conclusion that the Company's officers were indifferent to the observance of the order.

Having regard to the circumstances, I think it is a reasonable view of Stinson's conduct that in using his automobile for the purpose of transporting himself to North Toronto on the Company's business he was not doing an act which was, in the pertinent sense, wholly outside his employment.

The respondents indeed did not make any attempt to shew that the order was generally observed; which is not surprising, in view of Stinson's statement that no inquiry was addressed to him as to insurance.

The defence of the respondents was really rested upon the order; and it was upon this point-the intentional disregard of the order by Stinson's use of his automobile uninsured-that the judgments at the trial and in the Court of Appeal proceeded.

I have already mentioned the judgment of Knox C.J. in Whitfield v. Turner (1) in which it was held that where a servant has authority to do a given act in a state of circumstances or on conditions defined by his instructions, then, as between the master and a third person, it is, generally speaking, not material that the emergency defined in the instructions to the servant has not in fact arisen. In Goh Choon Seng v. Lee Kim Soo (2), it is said:and further,

Goh Choon Seng v. Lee Kim Soo (3), Whitfield v. Turner (4), as well as Bugge v. Brown (5), mentioned in the judgments in the Court of Appeal, were fire cases. Bugge v. Brown (5) was cited as an illustrative case in the judgment of this Court in Port Coquitlam v. Wilson (6), which was also a fire case.

Decisions in fire cases ought to be applied cautiously. If there is authority from the proprietor of land in prescribed conditions to set fires, the proprietor may be responsible where the fire has cVD escaped and caused damage through want of proper precautions, quite independently of respondeat superior. In Black v. Christchurch Finance Co. (1), the proprietor was held liable for the escape of a fire due to the negligence of an independent contractor.

There are some observations by Higgins J. upon this topic in Bugge v. Brown (2). Goh Choon Seng v. Lee Kim Soo (3), although a fire case in one sense, was not concerned with the responsibility of a proprietor for a fire kindled upon his own land. The fire in that case was kindled by the employees of the appellant on the land of the Crown and the application of the principle of respondeat superior consequently arose. The principle enunciated in the last paragraph quoted from Lord Phillimore's judgment is applicable here.

In the circumstances of this case the disregard of the order was immaterial because the servant's disobedience was an act in violation of one of the duties of his employment. As Willes J. said in Limpus v. The London General Omnibus Co. (4):- Stinson's disregard of the order in using his automobile to transport himself to North Toronto (which it was his duty by some means to do) was an act in the course of his employment in the sense of this observation.

It has been suggested that Lord Macnaghten's judgment in Lloyd v. Grace, Smith & Co. (5) has undermined the authority of Limpus v. The London General Omnibus Co. (6). But a careful reading of the judgment of Willes J. in the Law Journal report leaves the conviction that the first part of that judgment is not based upon the assumption that the servant might have been seeking to promote his master's interest.

" It was," says Willes J., " a case of improper driving," and the liability is put on the ground set forth in the two sentences just quoted, a ground upon which, I think, the appellant's claim can be supported here. It was left to him to see that his automobile was insured.

Neglect in this was neglect in the duties of his employment, for which the master is responsible. I repeat, neither he nor the respondents considered that he was thereby divesting himself of his character of servant, nor was he, in my view, doing so in fact.

It was argued that Stinson, by his improper use of his automobile, put himself beyond the control of his master and that, therefore, on general principles, the situation was not such as to attract responsibility to the respondents for his negligent act.

In Williams v. Jones (1), Blackburn J. (as he then was) says:- It is not the master's physical control over the conduct of his servant that gives rise to liability; it is the circumstance that he has selected the servant, who is bound to receive and obey his orders.

For disobedience either in misconduct or in "breach of authority," to use the words of Willes J. in Bayley's case (3), already quoted, and for "exceeding his authority in matters incidental" to his employment, in the words of Collins M.R. (4), also quoted above, the master, as between himself and the servant, has his remedy by dismissal or otherwise, while third persons wrongfully injured by the servant's act have their remedy against both master and servant.

I should like to say, with respect, that I entirely agree with Mr. Justice Masten in the caution he utters as to the cases decided under the Workmen's Compensation Acts. Under these Acts the question is always a question between the employee, or his representatives, and the master, and an order, the disregard of which in such a case might be an answer to any claim by the servant and might give the master a remedy against the servant by way of dismissal, or penalty, or by an action for damages, may, nevertheless, be immaterial in a question between a third person and the master; and I think it ought to be noticed that the observation of Lord Dunedin in Plumb's case (1) was not directed to any question of responsibility to third persons.

An order that might properly be held to define " the course of employment " for the purposes of the Workmen's Compensation Acts or generally as between the master and the servant, may, as between the master and the third person, merely impose upon the servant a duty, for default in the discharge of which the master is responsible to such persons.

Three cases were relied on, upon which some comment, I think, is advisable.

I shall refer first to Williams v. Jones (2). The plaintiff was the owner of a building which the defendant had the liberty of using with his servants as a carpentry shop.

One of the defendant's servants, while engaged in his duties as a carpenter and in the course of his master's business, in lighting his pipe carelessly set fire to some shavings and the shop was burned. The Court of Exchequer Chamber by a majority of three to two, Blackburn J. and Mellor J. constituting the minority, held that on the admitted facts the defendant was not responsible for the negligence of his servant, because the negligent conduct was not in a matter which had anything to do with his employment.

It is sought to apply that decision to the present case by the contention that Stinson was not employed to drive a motorcar, and that in view of the order and the fact that Stinson's car was uninsured his act in driving his car must be held to be something wholly unconnected with his employment. The analogy between Williams v. Jones (2) and the present case entirely fails in my view. The act of the offending carpenter in that case in negligently handling the light he was using was something which, in the view of the majority, was wholly unconnected with the performance of his service, or with any duty connected therewith or incidental thereto. Here Stinson was not only engaged in his master's service at the time he was driving his motorcar, he was performing a duty of the service in getting himself conveyed to the place where it was his duty to go. He was on his master's business in conveying himself there by his car, unless the respondent's contention is sound that by reason of the order and of the absence of insurance his act in driving his car on the Company's business was of such a character, as already' observed, as to sever the CJ. relationship of service. That I have dealt with.

Another case relied on is Rand v. Craig (1). The defendant was a carman and contractor and he was sued upon a charge of trespass committed by his servant who had removed certain refuse from the premises of a third party and deposited it upon the plaintiff's vacant land. The defendant employed certain men to act as carters. They were employed by the day and were paid at the end of the day for the day's work. They went in the morning with their carts to specified premises to load rubbish, which they took to some other premises that were defined and described, particulars of which were given to the carmen, and in respect of each load a ticket was given them which had cost the defendant 6d. They were to go with their load of rubbish and the ticket to the premises of the person who issued the ticket, and by virtue of the ticket they had a right to shoot their load of rubbish on the premises owned or occupied by that person. The learned trial judge held that the carters who tipped the rubbish on the plaintiff's land were not acting within the scope of their employment. Only a stray carter here and there, the learned trial judge found, did this unauthorized tipping.

The trial judge and the Court of Appeal treated the question as a question of fact and it was held the finding of the learned trial judge that the acts of the trespassing carters were not acts within the scope of their employment ought not to be disturbed.

Here again the analogy fails.

The employment, both ostensible and actual, was evidenced by the ticket placed in the carter's hands, as well as by the conduct pursued by the general body of carters who, as the learned trial judge found, with an odd exception here and there, followed their instructions. His employment so evidenced was not to get rid of rubbish generally. It was to take it to the designated place where it could rightfully be left. In dumping the rubbish on the plaintiff's premises the carter was not acting in pursuit of the course of employment indicated by his ticket and followed by the other carters engaged in the same business. On the con- C trary, his act constituted an abandonment of his service as that service was known and practised by those engaged in it. Again in Rand v. Craig (1) there was a finding DufICJ. by the proper tribunal of fact that in point of fact the servant was not, in committing the trespass, acting in the course of his employment.

The third case which was greatly relied upon by the respondents at the trial is Goodman v. Kennell (2).

The facts appear in the report in 1 Moore and Payne, at p. 241.

The plaintiff had been knocked down and run over by a horse ridden by one Cocking and he sued the defendant, alleging him to be liable for Cocking's negligence.

Cocking was not a regular servant of the defendant, but was occasionally employed by him and others in the neighbourhood. On the day mentioned in the declaration the defendant had sent Cocking to take a book from his house at Vauxhall to Furnival's Inn, for which he had given him a shilling. Cocking had taken the horse from a stable occupied jointly by the defendant and the owner of the horse, which he was in the habit of exercising and occasionally attending to. On the day in question Cocking had no order of either the defendant or the owner to take the horse. The owner stated in evidence that he had expressly ordered Cocking not to ride the horse to town.

Cocking in evidence stated that he had taken the horse without the knowledge or consent of the defendant or of the owner.

Best C.J. and Park J. agreed that there was, on the admitted facts, a prima facie case of implied assent by the defendant and that it was for the jury to judge of the value of the evidence of Cocking and the owner of the horse denying assent.

Best C.J. said:

facie

Burrough and Gaselee JJ. agreed that the "case was properly left to the jury."

The servant in this case was employed as a messenger to take a book from one place to another. Two features R.

of the case should be noticed.

CJ.

First: The servant was employed to do a single act of service and was in no sense the general servant of the defendant. There could be no question of a practice, and the learned Judges of the Common Pleas, obviously taking the view that this service for the consideration of one shilling did not in itself imply the use of a horse, thought, therefore, that the plaintiff was obliged to prove assent by the defendant to the use of a horse, or to adduce facts from which the jury might infer such assent. Second: Such assent having been inferred by the jury, notwithstanding the express denial of the servant, that was sufficient to support a finding that the servant's reckless riding was conduct in the defendant's service, for which the defendant was responsible.

The servant was employed as a messenger, but, given assent to the use of the horse, the servant's dangerous riding, being conduct in a matter incidental to his employment, was that of the master. This seems to answer the contention advanced by the respondents that even if Stinson's car had been insured his negligent driving would not be negligence in the service of the respondents. The case admirably illustrates the function of a jury in such cases as this.

Another question arises. It is argued that in this view the respondent, the Canadian Pacific Railway Company, is jointly liable with Stinson and, judgment having been entered against Stinson, the appellant's cause of action against the Railway Company has disappeared, because transit in rem judicatam.

I am unable to agree that the doctrine of Brimsmead v. Harrison (1) contemplates such a case as this. I think the rights of the parties in the present situation must be the same as they would have been if judgment had been given by the learned Chief Justice at the conclusion of the trial and judgment had been entered in favour of the plaintiffs against Stinson and in favour of the Railway Company as against the plaintiffs.

As Willes J. said in the Court of Common Pleas (1), the rule in that case is, in the broad sense, a rule of procedure, and I do not think this rule of procedure can operate in such a way as to nullify the plaintiff's right of appeal.

In the result the appeal should be allowed and the RCo. appellant should have judgment for the amount of the verdict against the Railway Company, with costs throughout.

J.-While on Marlborough Avenue in the City of Toronto, Leonard Lockhart, a six-year-old boy, was injured by a motor car owned and driven by R. Stinson. An action was brought against Stinson and the Canadian Pacific Railway Company by the boy, suing by his father, Joseph Lockhart, as next friend, for damages for injuries sustained by the infant, and by the father himself for' the accompanying expenses. Stinson was a servant of the Company and it was his duty, as stated by the trial judge, " to make repairs of many kinds to the Company's property, movable and immovable."

His headquarters were at the Company's shops in West Toronto where the Company kept, for the use of its employees in connection with their work, a " speeder," a " track motor " and a " handcar," all of which ran on the Company rails, and sometimes an employee was instructed, or permitted, to travel by street-car. It was also known to the Company that many employees owned automobiles which from time to time were used by its employees on its business. This is made quite clear by two notices which it issued under the signature of its Divisional Superintendent wherein reference is found to this practice and to the possibility of claims being made against the Company for damages occasioned by the use of these automobiles in the Company's business, and such use was prohibited " unless the owner carries insurance against public liability and property damage." Stinson owned a car which was not insured but, according to his evidence and the evidence of the foreman, he had used it on the Company's business once or twice before the time in question.

Stinson knew of the notices and on the prior occasion or occasions had been warned by the foreman not to use the car again unless the terms of the notices were complied with, i.e., that he should carry the coverage mentioned. No amount of insurance was prescribed either by notice or warning.

Stinson made, at the West Toronto shops, a key for use J. in a lock in the Company's premises at North Toronto and he was authorized, or instructed, by the foreman to go to North Toronto to try the key in the lock. He was given no directions as to the means of transportation that he should use in going there. He was not told not to use a motor car; the foreman testified that he thought Stinson would use the " track motor."

Stinson used his automobile to take the key to the North Toronto station and it was while he was on his journey there that the accident happened. He was entitled to be paid by the Company as well for the time required in going from one place to another as for the time spent by him in making the key. The trial took place before Chief Justice Rose and- a jury. In answer to specific questions, the jury found that the boy's injuries were caused by Stinson's negligence, which they itemized as and they assessed the damages at $10,000 for the boy and $500 for the father. The Chief Justice on these findings directed judgment to be entered against Stinson for these amounts but reserved the question of the Company's liability. He considered that all the relevant circumstances upon that issue were undisputed and therefore left no question to the jury with reference to it.

He decided against the plaintiffs and upon appeal the majority of the Court of Appeal agreed with him.

No appeal was taken by Stinson from the judgment at the trial against him, and, the father's damages being less than the statutory amount and no leave to appeal having been granted, the dismissal of the father's claim against the Company by the trial judge, concurred in by the Court of Appeal, stands.

The infant, however, appeals to this Court against the dismissal of his claim against the Company, and I have come to the conclusion that his appeal should be allowed. We have not to consider the point that was decided in Bright v. Kerr (1), because Stinson was undoubtedly a servant of the Company. Neither is it a question whether he was acting within the scope of his authority, but was he acting in the course of his employment.

This was a pointed out by Anglin J., as he then was, in Curley v. Latreille (2). That was a case which depended upon the application of article 1054 of the Quebec Civil Code, but Mr. Justice Anglin considered the existing position of the common law upon the problem that confronts us. At page 153 he says:- Nor is the difficulty that which arises in England under the Workmen's Compensation Act as to whether as between an employer and employee an accident arose out of and in the course of the employment. Dallas v. Home Oil Distributors Ltd. (6).

Once a person is found to be a servant, the question whether the master is liable to a third person, for injuries caused the latter by the servant's negligence, depends upon whether under all the circumstances the servant was acting in the course of his employment, and liability attaches even though the servant may be doing an act prohibited by the master. Limpus v. London General Omnibus Co. (3).

The master may protect himself by limiting the scope of his servant's employment but not merely by prescribing conduct within the sphere of the employment. It has therefore been decided that a person employed as a conductor cannot impose liability upon a master by his negligence in driving a bus, Beard v. London General Omnibus Co. (7), but an employer is responsible for damage caused by the negligent act of his servant in carrying out work which he is employed to do, even if the act incidentally involves a trespass which the employer has not authorized. Goh Choon Seng v. Lee Kim Soo (8).

While I do not know that the division there made by Lord Phillimore, speaking for the Judicial Committee, is to be regarded as exhaustive, I would, if obliged, place the present case under head * and, with respect, not under head 2 * as did Masten J.A. with the concurrence J. of Middleton J.A.

Stinson was employed not merely to make a key but to go to North Toronto to fit it in a lock,one was as much part of his functions as the other. He was entitled to be paid for the time so spent. The use of automobiles was not prohibited,-in fact it was impliedly, if not explicitly, approved. The only restriction upon that use was that he should carry " insurance against public liability and property damage " and even then, as I have already pointed out, the amount of coverage was not prescribed.

It is perhaps needless to add that Stinson had not placed himself outside the scope of his employment by going off on a frolic of his own, as happened in many well-known cases.

The learned trial judge relied to a considerable extent upon a statement of Park J. in Goodman v. Kennell (1), where the defendant occupied a house jointly with another, which latter kept a horse in a stable behind a house where the defendant had previously kept one but, according to the report, had not one at the relevant time.

One day the defendant sent one Corkin, an occasional servant, with a book into Holborn and gave him a shilling for his trouble before he went.

Corkin, who had been in the habit of exercising the horse, went to the stable and took it (without any orders from his master and without communicating either to him or to the owner of the horse what he was about to do) and rode it to Holborn and was on his way back when an accident occurred causing injury to the plaintiff. Upon Sergeant Wilde, for the plaintiff, arguing, on the question as to whether Corkin was in the course of his employment by the defendant, that the defendant was liable whether Corkin chose to go on horseback or on foot, Park J. made the statement relied on:- Park J. then left to the jury the contradictory evidence as to the ownership of the horse and the question as to any implied authority from the defendant to Corkin to use it, and the jury found a verdict for the plaintiff. Upon motion to set aside the verdict on the ground that there was no evidence to go to the jury as to the defendant's ownership of the horse, or his assent to his servant's using it, the Court refused a rule, expressing their concurrence with the summing up and that the whole of the case had been properly put to the jury.

This case is also reported in 1 M. & P. 241, where the judgments of the judges in the Common Pleas are noted. Mr. Justice Park stated:- Lord Chief Justice Best remarked:- However, each pointed out that the question was whether there was sufficient evidence to show that Corkin (Cocking as he is called in 1 M. & P.) was riding the horse with the defendant's assent and on his business. Considering the final result and the trend of modern authority, it is unnecessary to express any opinion upon the remarks attributed to Mr. Justice Park and Lord Chief Justice Best.

This case was referred to in Stretton v. City of Toronto (1), and it in turn in Boyd v. Smith (2).

These decisions may be taken as correct under the circumstances that there existed. While Chief Justice Rose considered these cases not " for the purpose of narrowing or enlarging the limits of the rule " as to the master's responsibility but for their value as illustrations, I am, with respect, unable to agree that they are of such a character as to place the present case beyond the pale.

The difficulty of deciding in any particular case was clearly envisaged by the Chief Justice, as he referred also to two other decisions that are generally compared, Williams v. Jones (1), and Jefferson v. Derbyshire Farmers Ltd. (2).

In Salmond's Law of Torts, 9th edition, page 105, it is stated that while in the earlier case the servant was negligent during his performance of his master's business, he was not negligent in his performance thereof and that " the distinction may be one which is sometimes difficult of application to the fact, but it seems to be real and logical." But in Pollock's Law of Torts, 14th edition, page 72, in referring in a foot-note to the Williams case (1), it is stated: " Diss. Mellor and Blackburn JJ., who thought, perhaps rightly, that the course of employment included ordinary care not to set the shed on fire." And in The Governor and Company of Gentlemen Adventurers of England v. Vaillancourt (3), Duff J., as he then was, pointed out that " Blackburn J.'s difference with his colleagues 'was as to the proper inference as from the facts' and his is the view which in a similar case would probably now be accepted," quoting Jefferson v. Derbyshire (4). I agree with the statement in Salmond (9th edition), page 99, that the decision in Lloyd v. Grace, Smith & Co. (5), "must be interpreted in the light of the facts." Winfield in his text book on the Law of Torts, in discussing the decision, suggests (p. 135), that "the defendants were held liable because they had unwittingly put a rogue in their place and clothed him with their authority." He continues:- I mention the decision merely to show that it has not been overlooked, but I think it has no relevancy to the matter presently under discussion.

In an admirable judgment in Bugge v. Brown (6), Isaacs J., at page 118, states the limit of the rule in terms that I believe correctly set forth the modern view:and this statement was quoted with approval by the present Chief Justice of this Court in Port Coquitlam v. Wilson

This also appears to be the conclusion reached in the fourth and subsequent editions of Salmond on Torts; see, for example, page 95 of the 9th edition:- All the facts are before us as they were before the trial judge and the Court of Appeal, and in view of the course of the proceedings throughout, we are entitled to draw all proper inferences.

One of these is that Stinson had not severed his relations with his employer, the railway company.

It is said in the Company's factum (and the point was elaborated in argument), that " the manner in which the defendant Stinson chose to exercise his right as a citizen to use a public highway was in no way subject to the respondent's control." Now, in the first place, Stinson was not exercising his right as a citizen but was performing his duty to his master in going to North Toronto. He was using a conveyance of a kind at least impliedly authorized and was acting within the scope of his employment. Counsel recognized that the test was not the Company's actual control but its right to control (see Dallas v. Home Oil Distributors Ltd. (2)), but argued that the respondent had no right to dictate the speed of the car or the distance from the curb at which Stinson should travel or otherwise to direct his movements on the highway. Stinson being about his master's business, the Company possessed the very rights that its counsel disputes and this contention fails.

It is contended that even should this result be reached, the Company is not liable because, as between it and the infant, the trial judge's charge to the jury was defective on the question of Stinson's negligence. As regards Stinson himself, the owner and driver of the automobile, section 48 (1) of the Ontario Highway Traffic Act, R.S.O., 1937, c. 288, clearly applied and the onus was upon Stinson to show that the accident did not arise through his negligence or improper conduct.

The jury were so instructed. had been previously held by the Ontario Court of Appeal in Ross v. Gray Coach Lines Ltd. (1), that in actions R o against the driver of an automobile, the jury should be Kerwin J. asked whether the defendant had satisfied the onus and that it was not proper to ask the jury to describe the negligence.

This principle was reaffirmed in Newell v. Acme Farmers' Dairy Ltd. (2).

No doubt the learned Chief Justice was familiar with these decisions and, while counsel were unable to agree as to what transpired in the Chief Justice's chambers in connection with the drafting of the questions to be submitted to the jury, it is, I think, apparent that the point now raised was present to the Chief Justice's mind, because at one point in his charge, after referring to the onus section, he says:- That is the only importance of the statutory provision; it is not applicable where you think, after hearing all the evidence, that you know whose fault it was. If, after hearing all the evidence, you think that you know that the fault was the fault of the driver, then of course you do not need to invoke the statute. If, on the other hand, after hearing all the evidence, you think that you know that the fault was not the fault of the driver, then the statute has no application. But when you are left feeling that without the aid of the statute you cannot decide one way or the other, then the statute comes to your aid and tells you how you are to decide.

Later he told the jury:- As in other cases of the sort, you are going to be asked not to render a general verdict, but to answer written questions, and the first question is: Were the injuries suffered by the plaintiff Leonard Lockhart caused by the negligence of the defendant Stinson? Well, as I have said to you, the statute seems to require you to say Yes unless theevidence satisfies you that you can say No.

The second question: If so, in what did such negligence consist? Now, it is conceivable that you could answer the first question Yes. without being able to answer the second question at all but it is unlikely.. That is to say, if you were answering the first question Yes simply because of the statute, without having msade up your minds that in fact Stinson did something that was wrong and that you knew what that was, then you could answer the first question Yes and be unableto answer the second, but it is quite unlikely.

The probability is that if you answer the first question Yes it will be because you think you know what Stinson did that was wrong, and, if you do, then proceed to answer the second question, and answer it quite fully.

My own view is that, if a driver of a motor car on a highway is found by a jury not to have satisfied the onus, liability attaches to the driver's master, if the driving: (1) (1929) 64 Ont. L.R. 178.

occurred in the course of the servant's employment. In the case at bar, however, even if that be not so, no objection was taken by counsel for the Company to the charge and it was too late to raise the point upon appeal. It was also objected that, judgment having been taken out by the infant against Stinson, and proceedings having J. been taken by the father in his personal capacity to secure by way of attachment part of the damages awarded him against Stinson, the Company's liability was ended. In my opinion, the point is not well taken. Whether or not in the case of a tort by a servant in the course of his employment the liability of the master and servant be joint, it is not alternative and the decision in Morel v. Westmoreland (1) has no application.

A similar question arose in Bright v. Kerr (2) where it was not necessary for me to deal with it. In the present case, it is necessary and, having given it some consideration, I approve the judgment of the Ontario Divisional Court in Sheppard Publishing Co. Ltd. v. Press Publishing Co. Ltd. (3). This was followed by Chief Justice Rowell in the Court of Appeal in Kerr v. Bright (4), and in that case, "in the special circumstances," the Chief Justice of this Court agreed with Chief Justice Rowell.

A question was raised as to the assessment of damages. The infant claimed $5,000 in the statement of claim; the jury awarded $10,000.

It does not appear that the jury were told the amount of damages claimed, or that they had the record with them. Chief Justice Rose considered that he had a discretion to allow the amendment; McTague J.A. and Gillanders J.A. were of the same opinion, and in a previous case an amendment had been permitted and allowed by the Court of Appeal, White v. Proctor (5). agree that the Chief Justice had a discretion and that it has not been shown that it was improperly exercised. The appeal should be allowed, the judgment at the trial set aside and in lieu thereof there should be judgment (1) for the appellant against the Company for $10,000 and his costs of the action, (2) reserving to the Company its right to apply to. the Supreme Court of Ontario for judgment in the third party issue between the Company and Stinson. In order to overcome any difficulty as to interest, that judgment should be dated July 12th, 1939, the date of the judgment of Chief Justice Rose dismissing the action as against the Company.

The appellant is entitled as against the Company to his costs of the appeal to the Court of Appeal and of the appeal to this Court. J.-The principal question in this appeal concerns the liability of the respondent railway for the serious injury of the infant plaintiff by the negligence of its servant Stinson, with whom it was jointly sued, while driving his uninsured automobile from the respondent's railway workshops at West Toronto to its station at North Toronto some four miles distant, for the purpose of fitting a key he had made for a doorlock in the North Toronto station building.

The accident happened on July 18th, 1938, and the action was tried before Rose, C.J.H.C., and a jury, which found that the injury claimed for was entirely caused by Stinson's negligence, and assessed the damages at $10,000. The learned Chief Justice directed the entry of judgment against Stinson for this amount with costs, and reserved the question of the respondent's liability.

Subsequently he directed the dismissal of the action against the respondent on the ground that the driving of a privately owned and uninsured motor car was not an act falling within the class of acts which Stinson was authorized to perform, and therefore that his negligence in the handling of such a car, even at a time when he was engaged in his master's business, does not bring his master under liability. On an appeal by the plaintiffs the Court of Appeal affirmed this judgment, MeTague, J.A., dissenting.

There is no dispute as to the facts upon which the majority in the Court of Appeal obviously proceeded in affirming the trial judgment, so that the question involved, as the learned trial judge himself distinctly held, is purely a question of law.

Stinson had been regularly employed in the respondent's bridge and building department at its West Toronto workshops as a general repair man for many years and as such was subject to the directions of the foreman of that department.

His duties necessarily included his travelling to the respondent's buildings in the Toronto district in connection with any repair work which should be required and entrusted to him. On the day of the accident, which gave rise to the plaintiff's action, he had been instructed by the foreman at the West Toronto works to make a key for a doorlock at the North Toronto station, and, having made the key in the shop at West Toronto, told the foreman he would have to take it to the North Toronto station to try it in the doorlock. For this purpose Stinson used his private automobile, which at the time was uninsured, though nothing was said by the foreman that he might do so or as to whether he was to proceed there over the respondent's railway track by a gasolene track motor or handcar, which employees sometimes used to travel from the workshops to this and other buildings of the respondent along the railway line in the course of their employment, or by a street tramcar, for which it was the practice of the railway to provide tram tickets when that means of transportation was desired. The foreman swore he did not know that Stinson was going in his own car, and thought he was going by the track motor. He admitted that he knew of at least one previous occasion " or probably two," when Stinson had used his own car on similar jobs, and told the court that when he learned this he told Stinson that he must not use his car on the company's business in the company's working hours, to which he added the qualification, " unless it was insured." At this time he had received a circular letter from the district superintendent, dated December 28th, 1937, prohibiting the use of privately owned automobiles " in connection with the Company's business unless the owner carries insurance against public liability and property damage risks."

Later he received a second circular letter under date of March 21st, 1938, from the district superintendent, "referring to (his) circular letter of December 28th, 1937, regarding the use of privately owned automobiles not covered by insurance in the execution of Company's business," advising him that several instances had since come to notice "where employees had used unproprotected automobiles contrary to the instructions," stating that " all concerned must clearly understand that automobiles not adequately protected by insurance must not be used in the execution of Company's business," and requesting him to take " whatever steps are necessary to see that the instructions in this regard are being adhered to."

The foreman testified that he read these circular letters to Stinson and that they were posted up on the shop door at West Toronto.

It is not disputed that at the time of the accident Stinson using his automobile the purpose per- J formig a duty appertaining to his master's business, viz: going to the North Toronto station for the purpose of trying the key he had made in the doorlock there; nor is it disputed that in using his car for this purpose he was disregarding his master's instructions and thus exceeding the limits of his authority as his master's servant. We are, therefore, squarely faced with the problem whether the former or the latter fact determines the question of the respondent's liability for the injury. The learned trial judge in dismissing the action against the respondent plainly proceeded on the latter consideration, and in this, as stated, he was upheld by the Court of Appeal. With great respect, I am of opinion that both courts were in error in this regard. While they both apparently fully appreciated that the true criterion of the liability of the master for injury or damage sustained by third persons through the negligence of his servant is the scope or sphere of the employment for which the servant is hired, their decisions are clearly based on the ground that the district superintendent's instructions regarding the use of uninsured cars "in connection with" or, as the second circular letter put it, "in the execution of" the company's business, placed Stinson beyond the scope of his employment at the time of the negligence claimed for, or, in other words, that this restriction of his authority as to the use of his own or any automobile in the performance of his work necessarily limited the scope of his employment. None of the cases, to which we have been referred, to my mind justify such a conclusion.

It is true, as was pointed out by Collins, L.J., in Whitehead v. Reader (1), in the English Court of Appeal, that in some cases it is necessary to get back to the orders emanating from the master to see what is the sphere of employment of the workman, and some of these cases were, no doubt, decided upon the workman's authority as determined from his master's instructions, but Whitehead v. Reader (1) itself decided that the disobedience of the master's order did not of itself prevent the act of the workman from being an act done " in the course of his employment," and was therefore not conclusive upon .AN the question of the sphere or scope of the servant's employment or the master's responsibility. Collins, L.J., himself said:

Crocket J. I agree *

* * that it is not every breach of a master's orders that would have the effect of terminating the servant's employment so as to excuse the master from the consequences of the breach of his orders.

A. L. Smith, M.R., put it in this way:

Does disobedience to this order cause the man not to have been injured in the course of his employment? I think not. It cannot be said that every disobedience of an order terminates a man's employment. Romer, L.J., used these words:

At the time of the accident the workman was employed on his master's business.

He was not idling or doing something which was clearly beyond the scope of his employment.

The dictum of Collins, L.J., in this case was adopted by Lord Dunedin as President of the Scottish Court of Sessions in Conway v. Pumpherston Oil Co. (1), and affirmed again by him in delivering his judgment in the House of Lords in Plumb v. Cobden Flour Mills Co. (2), with the concurrence of Viscount Haldane, L.C., and Lords Kinnear and Atkinson. In the last mentioned case Lord Dunedin said:

There are prohibitions which limit the sphere of employment and prohibitions which only deal with conduct within the sphere of employment. A transgression of a prohibition of the latter class leaves the sphere of employment where it was, and consequently will not prevent recovery of compensation. A transgression of the former class carries with it the result -that the man has gone outside the sphere.

These cases accord precisely with the principle enunciated in 1862 by Willes, Byles and Blackburn JJ., in the leading case of Limpus v. London General Omnibus Co. (3), and, in my opinion, show the irrelevancy of a servant's disobedience of his master's orders in the prosecution of his master's business unless the prohibitive orders are of such a character as to place him entirely beyond the scope of his employment.

As far back as 1869, Cockburn, C.J., in Storey v. Ashton (4), laid it down that

(2) [19141 A.C. 62.

(3) (1862) 1 H. & C. 526. (4) (1869) L.R. 4 QB. 476. This is the fundamental principle, which has been consistently recognized by this Court in many cases. See Halparin v. Bulling (1); Curley v. Latreille (2); Battistoni v. Thomas (3); Moreau v. Labelle (4); and Jarry v. Pelletier (5).

In Halparin v. Bulling (1), although the court held that the master there was not liable for the negligence of his chauffeur, Davies J. based his judgment on the fact that the chauffeur was using his master's automobile " on his own business and pleasure and not on any business of his master." Duff J., with whom Anglin J. concurred, expressly adopted the dictum of Cockburn, C.J., in Storey v. Ashton (6), already quoted, and held that the Court of Appeal of Manitoba was right in finding on the evidence in that case that the chauffeur was not " engaged in the doing of anything appertaining to the course of his employment as the respondent's servant." The decisive question, he said, was " Was the chauffeur about his master's business when he ran down the unfortunate victim of his carelessness or was he making use of the respondent's car in an independent excursion of his own?" Brodeur J. said that the jurisprudence under the English common law is that the master is not liable for the negligence of his servant while the latter is engaged in some act " beyond the scope of his employment for his own purpose." In the Latreille case (7) Anglin J. reviewed all the important English and French cases regarding the master's liability for the negligence of his servant, in the course of which he pointed out that the decisive question in such cases was, not whether the servant's act was within the authority given by the master, but whether it was within the course of his employment, quoting the dictum of Fletcher-Moulton, L.J., in Smith v. Martin and Kingstonupon-Hull Corporation (8), and citing Smith v. North Metropolitan Tramways Co. (9).

In Battistoni v. Thomas (1), Lamont J., who delivered the judgment of the court, said:

He quoted the dicta of Jervis, C.J., and Maule J., in Mitchell v. Crassweller (2), as well as the dictum of Lord Atkinson in St. Helen's Colliery v. Hewitson (3), to that effect, and approved the following statement of the law by Salmond on Torts, 7th ed., p. 115:

In Moreau v. Labelle (4), Rinfret, J., speaking for the Court, quoted the passage already reproduced from Lord Dunedin's speech in delivering judgment in the House of Lords in Plumb v. Cobden Flour Mills Co. (5), as laying down the proper test for determining whether a master's instructions to his servant do or do not limit the sphere of his servant's employment.

In Jarry v. Pelletier (6), Cannon, J., also delivering the unanimous judgment of the court, repeated Lord Dunedin's dictum as laying down the true test.

The result of the cases in this Court, I think, is to make it clear that the recognized criterion of the liability of a master for the negligence of his servant is, not whether the servant's act was within the authority given by the master, but whether it was within the sphere or scope of his employment as servant.

There is another Canadian case, that of Read v. McGivney (7), which, though not cited before us, I think I should mention, inasmuch as it illustrates and actually applies the principle referred to in circumstances which seem to me to more closely resemble in their effect those of the present case than do those in the majority of the numerous cases to which we have been referred. In that case an action had been brought to recover damages for the destruction of a portion of the plaintiff's woodland lot by the spreading of a fire set by the defendant's servant to a pile of brush and refuse in connection with land R~o. clearing work on the defendant's land, contrary to the defendant's express instructions that he must not do so that day. The cases of Limpus v. London General Omnibus Co. (1); Bayley v. Manchester, etc., Ry. Co. (2); Dyer v. Munday (3); Storey v. Ashton (4), and Mitchell v. Crassweller (5), all of which were relied upon in the present appeal, were among the cases cited in the argument before the New Brunswick court. Hannington J., in delivering the judgment of the court (Tuck, C.J., Hannington, Landry, Barker, McLeod and Gregory, JJ.) said: The Judicial Committee of the Privy Council in Goh Choon Seng v. Lee Kim Soo (6), distinctly recognized the principle that the fact of a servant doing an unauthorized act does not excuse the master from responsibility if the unauthorized act be committed in the performance of the master's business. That was an appeal from the judgment of the Court of Appeal of The Straits Settlements (Singapore), affirming the judgment of the trial judge in an action brought to recover damages caused by the negligence of the defendant's servants in kindling fires for the purpose of burning branches, jungle trees and other rubbish. The evidence proved that the fires were kindled, not on the defendant's land, but on adjacent Crown land, from which the flames spread to the plaintiff's land and destroyed his pottery works, and the trial judge so found and directed a reference for the assessment of damages. Counsel for the appellant, founding on Storey v. Ashton (7), argued that the kindling of the fires beyond the appellant's boundary was an act done by his servants for their own convenience and benefit, and was therefore outside the scope of their employment.

Lord Phillimore, in delivering the judgment of the Board, dismissing the appeal, said:

His Lordship then pointed out that all the cases, which had been brought to the Board's notice in the course of the argument, fell under one or other of three heads: (1) the servant was using his master's time or his master's place or his master's horses, vehicles, machinery or tools for his own purposes; (2) cases where the servant is employed only to do a particular work or a particular class of work, and he does something out of the scope of his employment; (3) " cases like the present, where the servant is doing some work which he is appointed to do, but does it in a way which his master has not authorized and would not have authorized had he known of it." In the first two classes of cases, he said, the master is not responsible, but under head (3) he is.

In their reasons for judgment in the Appeal Court, Masten, Fisher and Gillanders, JJ.A., all referred to the Goh Choon Seng case (1) and sought to distinguish it from the case at bar.

Middleton, J.A., I should state, concurred with Masten, J.A., on this branch of the appeal, though his reasons indicate that he would have dismissed the plaintiff's appeal on the ground that garnishee proceedings taken by the plaintiff against Stinson after the entry of judgment against him and the recovery thereby of a portion of the damages precluded his right to proceed further against Stinson's co-defendant. Masten, J.A., simply said that that case seemed to be distinguishable in its facts and that he referred to it only for the purpose of quoting Lord Phillimore's dictum as to the classification of cases bearing on the responsibility of the master under the three heads above mentioned. He thought the present case fell under head 2, and not under head 3, " because when Stinson entered on his journey on the day of the accident in his prohibited uninsured car, he stepped outside the limit which bounded the sphere of his employment."

Fisher, J.A., thought the general law laid down in the Goh Choon Seng case (1) was not applicable because the injury here did not occur " in the actual performance of his particular duties by doing his work in a manner the master had not authorized." is here," he said, " that the facts in the case at bar differ from the facts and the general law laid down in Goh Choon Seng v. Lee Kim Soo (1)."

Gillanders, J.A., said that the servant in the Goh Choon Seng case (1) was, in lighting fires, and burning rubbish, doing what he was authorized to do, and " it was immaterial to the master's liability that it was done on Crown lands, adjacent to those of the defendant, and at an unauthorized time." With the utmost deference, I am unable to follow these distinctions. It seems to me that the clear effect of the Privy Council's decision was that, while the defendant appellant's servants in that case were authorized to light fires and burn brush on their master's land in the course of their employment, they were not authorized to light fires and burn brush on the adjacent Crown land, and that the fact of their having made use of the Crown land for the purpose of and in connection with the work they were authorized to do for their master was immaterial to the master's liability for the reason that it did not place the servants' unauthorized and improper act beyond the scope of their employment.

In other words, the Privy Council decision strikingly reaffirms the fundamental principle laid down in the Limpus case (2) that a master is responsible for his servant's negligence while engaged in his master's business, and that the fact that the negligent act of the servant was committed while he was doing something he was not authorized to do as such servant cannot avail to free the master from liability therefor. The Goh Choon Seng case (3) bears a striking resemblance to that of Read v. McGivney (4), from which it differs in its material features only in the fact that the fire which destroyed the plaintiff's property was kindled beyond the boundary of the defendant's land, and that there was no definite instruction not to set any fire that day in connection with the work the servant was doing. The reasons for the Privy Council decision make it clear that these circumstances would make no difference.

The question before the Court of Appeal and before this Court, however, is, as already pointed out, not whether Stinson, in making use of his uninsured car for the purpose of his master's business, contrary to the instructions of the respondent's district superintendent, was doing an unauthorized and improper act-that, as I say, is undisputed and plainly implied by the learned trial judge's finding-but whether the fact of his disobeying those instructions placed Stinson outside the scope of his employment altogether while making use of his car for the purpose mentioned. The very statement of the problem seems to me to embody a manifest contradiction and to furnish its own inevitable answer.

For how can it possibly be said, if Stinson was engaged in his master's business while driving his motor car, as admittedly he was, that his act in doing so contrary to his master's instructions, was of such a nature as to completely dissociate him during that particular journey from his employment as his respondent master's servant? He was either engaged in the business of his master or he was not. That is the governing factor. This, of course, does not mean that it is not competent to a master at any time to limit the scope of the particular employment for which the servant was hired, as clearly appears from some of the cases above mentioned, but it does mean that, once it is determined that a servant is doing something for his master in the course of his employment as his master's servant, the master cannot escape responsibility for the consequences of the servant's negligence while so acting upon the ground that he has prohibited him from doing any particular act unless the prohibition is such as to sever the relation of master and servant during the critical time. If the question were not concluded by the undisputed and indeed the admitted fact that Stinson was using his car in journeying to the North Toronto station in connection with and in furtherance of his master's business, I should have thought that the only possible inference from the district superintendent's circular letters, on which the judgment a quo is entirely based, was that he and all other employees in the Toronto district were thereby authorized to use their own or any other privately owned MI cars in connection with their master's business, provided that they were insured against public liability and prop- Rmo. erty damage. It was thus in no sense a definite pro- J. hibition against the use of motor cars in connection with the respondent's business, but a purely conditional or contingent prohibition, apparently made for no other purpose that that of transferring from the master to the automobile insurance companies the obligation of paying for injuries resulting to third persons from the negligence of its servants while engaged in the prosecution of its business, and one which clearly recognized the right of the respondent's employees to use motor cars so insured for that purpose. I should have had no hesitation in holding that a prohibition of such a character could not, under the law as recognized by this court in accordance with the principles laid down by the House of Lords and the Judicial Committee of the Privy Council, have the effect of so curtailing the scope of Stinson's employment, in the capacity of a permanent general repairs man, as to transform his act in using his uninsured car solely for the purpose of his master's business on the occasion in question into an act undertaken wholly for his own personal gratification (1) the servant was using his master's time or his master's servant.

As McTague, J.A., concisely put it in his dissenting judgment,

As to Mr. Tilley's objection that the appellants had lost their right to proceed further against the respondent by the garnishee proceedings they had instituted against Stinson, I also agree with McTague, J.A.

There is one other objection, viz.: that the statement of claim fixed the damages asked on behalf of the infant plaintiff at $5,000 and that no amendment was applied for till after the jury had returned its verdict, when the learned Chief Justice allowed an amendment to cover the amount awarded. It was contended that he had no right to order the amendment after the jury had announced its verdict.