The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-10-10

got load at the hotel ut 4 O'Clock,
and said You go home aud sleep
and come back at o'clock and you
can have your hack" (Testimony OF
Davis.) The foreman OF the stables,
Cavanaugh, testifies that he had or
ders 10 take away the team of any
one drunk and that he took away Lii
lis this day and restored it TO him
about o'clock Pm
Under these circumstances, was
Lillis the servant Of the defendant
A case in point is that of Powles VS..
Hider, 6 Ellis Il Blackburn, 20S. The
defendant was the owner OF cabs in
London. Drivers, who by act of
Parliament must be licensed. paid
defendant a sum each day for the
use of the cab and two horses for
fifteen hours, the driver depositing
his license with the owner of the
cab. Every cab was plainly marked
with the name of the owner, and was
licensed.
1t was held that the defendant
owner was liable as for the act of his
servant for the value Of baggage lost
through the negligence of the driver.
Lord Chief Justice Campbell said
that if the contention of the defend
ant was right that in point OF law
the cab and horses were let to hire
to the driver and that the driver be-
came the bailee, he could not render
the defendant liable, but, looking
to the position of the proprietor and
the driver of the cab under the cir
cumstances proved, and to the acts
of Parliament which regulate their
respective duties, we are of opinion
that the driver is to be considered
the servant or agent OF the proprie
tor. There can be no doubt that this
gagged at fixed wages, accounting to
the proprietor for all the earnings Of
the cab. But must not the actual
arrangement between them be
equally considered mode by which
the proprietor receives what may be
estimated as the average earnings of
the cab, minus reasonable compen-
sation for his labori"
The circumstances of this case and
the law bring the case at bar within
this reasoning. The defendant had
recommended" Lillis to be licensed
as driver Of one of their cabs, and
his license was valid only so long
as he drove for them. They had
selected him out of large number
making application. They had the
power to discharge him for miscon-
duct, or to suspend him for any time.
His hack proceeded from the defend
ants stand, and bore the number of
one of their licenses. He was not
directed by the defendants as to the
hours Of his service, or provided with
business by them, the terms of his
service imposing diligence on him,
and avoiding for the defendants the
risk of dishonest accounting. For
illustration, let it be that a person
had hired carriage and horses of
the defendants for hack business
of his own, procuring a license for
the hack, and for himself as driver.
Doubtless the hirer would be the
bailee of the property, and the de-
PENDANTS would not be liable for his
contracts or torts. Such case would
be materially different from this un-
der consideration, and the difference
would constitute the one person q
servant and the other bailee.
This conclusion may also be con-
sidered statute Interpretation or
condition, from the words, switch
license shall be used only and be
valid so long as the person receiving
the same shall remain in the employ
of and drive for the person or persons
making application for such license"
and our decision might be based on
this solely. Any other conclusion
would nullify the apparent purpose
and objects of the law requiring
licenses for hacks and licenses for
drivers, which are to place them un-
der police control, and to indemnity
the carriages and drivers.
The finding that the plaintiff was
not guilty of contributory negligence
in driving without lights in this par
ticular case, and the determination
of the value of the plaintiffs horse,
are upon matters of fact. Examining
the evidence we find no reason for
setting them aside; on the contrary,
they are we'll supported.
The exceptions are overruled.
A. z. Peterson for plaintiff; I. M.
Hatch for defendant.