The Hawaiian gazette., 1890-10-14

IL LIS hd5 oil oOllOL " HNANS "a
the case, arising out of collision OF
horses in which the plaintiffs horse
received a fatal injury. It was tried
before Bickerton, j., without jury
who ordered judgment for the plain
tiff. The defendant took the follow
ing exceptions, viz:
To the finding that Frank Lillis,
the driver of the express (hack)
which collided with the plaintiffs
team was defendants servant.
(2) To the refusal of the trial JUS
tice to find that the plaintiff was
guilty of contributory negligence in
driving without lights.
81 That the damages are excess
sive.
The evidence as taken by the Court
Stenographer is appended to the Bill
Of Exceptions; such parts of 1t as are
necessary will be found in the
opinion.
The defendants are D. II. Davis
and II. r. Macfarlane, doing livery
and hack business as The Pantheon
Stables. They have several hacks for
each of which they take license and
pay fee to the Government. This is
distinct from the license paid for
their general livery business. The
hacks are numbered and the license
applies to the hack by its number.
The drivers are Individually licensed
by numbered licenses as drivers.
Frank Lillis, who drove the hack
III the collision, Lad the use of a hack
with two horses Of the defendant at
$50 per week. The carriage and
horses were maintained and stabbed
by the defendant. The driver took
them out whenever he pleased and
piled them as public hackman, get
ting what fares he could. His re-
enumeration would be what he made
above the $50 per week. He was
licensed under the following request
from the defendant, addressed to the
Inspector of Drivers and Hacks,
Please give Frank Lillis license for
driving No. 40" This is done by
the provisions Of Chapter q of the
Acts of 1854, viz: " Any person or
firm having one or more licensed
vehicles may make application to the
Marshal or his Deputy fer certif
cate to enable person to obtain
license to drive; and the Marshal or
his Deputy on being satisfied that
the person recommended by the ap-
plicant is a competent driver, shall
grant him a certificate TO that effect,
upon presentation of which to the
Minister of the Interior the person
applying shall receive a license,
which license shall be used only and
be valid so long as the person re-
ceiviDg the same shall remain in the
employ of and drive for the person
or persons making the application
for such license. The fee for which
shall be the sum of one dollar and
which license shall remain in force
for one year"
The stables did not prescribe the
hours or direct the efforts of the
drivers in obtaining business. It
maintained a stand where hacks in
waiting might stand, and a tele-
phone and service of it through
which their hacks might receive or
ders. There were more applicants
for the position of hack drivers than
they had carriages to let. 1--WE have
quite number of applications, we
could not accept them all as we have
not hacks enough. We have appli-
cations that we turn away frequently
because we know they are unfit"
(Testimony of Davis, Def't)
The stables claimed the right to
take away the carriage of any driver
who was drinking or intoxicated, al
together or for such time az it
judged fit +" If any of our hack
drivers misbehave sufficiently to war
rant it. 1 discharge them" Tbid.)
This right had been exercised
towards Frank Lillis on the day
of the collision. His hack had
been taken away from him and put
UP in the stable on account of his
intoxication. about l or 2 o'clock"
he asked Mr.. Davis for it, who an
swered: No, you can't have your
hack-I saw ne had been drinking
something. Well, be says, I have
got load at the hotel at 4 O'Clock,
and 1 said you go home and sleep
and come back at 4 o'clock and you
can have your hack" Testimony of |
Davis.l The foreman of the stables,
Cavanaugh, testiies that he had or
ders TO take away the team of any
one drunk,and that he took away Lii |
lis this day and restored it to him
about 4 O'Clock P. NJ.
Under these circumstances, was
Lillis the servant of the defendant?
A case in point is that of PowIes vs..
Hider, 6 Ellis & Blackburn. 208. The
defendant was the owner of cabs in