037-NLR-NLR-V-29-LAZARUS-v.-SIMON-DE-SILVA.pdf
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Present: Maartensz A.J.
LAZARUS v. SIMON DE SILVA.55—C. B. Qampola, 7,586
Matter and servant—Act of servant—Scope of employment—Master*liability.
The driver of a motor omnibus belonging to the defendanthalted the omnibus in a street behind the plaintiff's omnibus andproceeded to remove a stone, which was placed before the frontwheel of the plaintiff’s omnibhs, at the same time releasing Habrakes. The plaintiff's omnibus went down” the street and wasdamaged.
In an action for damages brought by the plaintiff againstthe defendant,—
Held that the act of the defendant’s driver was done for a purposeof his own and that the defendant was not liable.
A
PPEAL from a judgment of the Commissioner of Requests,Gampola.
Garvin, for plaintiff, appellant.
Navaratnam, for defendant, respondent.
July 11, 1927. Maartensz A.J.—
In this case the plaintiff sued the defendant for the recovery ofa sum of Rs. 800 on account of damages to his motor bus resultingfrom the wrongful and negligent act of the defendant’s servant.
The facts are as follows:—On the day in .question plaintiff’smotor"bus No. C 5667 was halted in Kandy street, where therewas a downward slope. To prevent the bus from moving and asadditional security to the brake, a stone was placed in front of thefront wheel. Manuel, who was at the trial was admitted to be thedriver of defendant’s bus No. D 1114, halted defendant’s busabout 5 feet behind plaintiff’s bus. Manuel then got down,removed the stone that had been placed in front of plaintiff’s bus:and released the brakes with the result that plaintiff’s bus wentdown the hill towards Kandy and was damaged.
The learned Commissioner held that the act committed by thedefendant’s driver did not fall within the scope of his employmentand dismissed plaintiff’s action.
It was contended in appeal that, although the act of the defend-ant’s driver was not incidental to the driving of the bus, yet ifeshould be deemed within the scope of his employment, as it wasdone for the benefit of the defendant in that the object of the driver
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1927,
Maaktensz
A.J.
£omv.Simon de
SiJi*a
was to pass plaintiff's bus and pick up passengers who mightotherwise travel by the plaintiff’s bus and complete the journeyto Kandy as quickly as possible.
No doubt the fact that the act was for the benefit of his employeris one^of the tests employed in ascertaining whether the servantwas acting within the scope of his employment or not. But themere fact that the act was for the benefit of the owner does not ofitself conclude the question whether the act fell within the scopeof the servant’s employment.
'* In the course of the argument I was referred by appellant’scounsel to the case of Smith v. Martin and the Corporation ofKingston-upon-HulU In this case a teacher employed by theCorporation asked the plaintiff, a pupil, during school hours to pokethe fire in the teachers* common room. While the plaintiff wascarrying out the order her pinafore caught fire and she was seriouslyinjured. It was held that the act of the teacher was within thescope of her employment which was not strictly confined to teachingalone and that the Corporation was liable to the plaintiff for theteacher’s negligent act. The ratio decidendi in this case was thatthe teacher was put in a position in which it was intended thather commands should be obeyed by the children and the educationalauthority was responsible for orders given by her in that position. This case is no doubt an authority as to the scope of a schoolteacher’s employment, but I cannot see its applicability to thecase under consideration where the act in question was not incidentalto the driving of the bus.
Another case referred to was that of Limpus v. London GeneralOmnihue Go.2. In this case the driver of defendants’ omnibus•drove it across the road in front of a rival omnibus belonging tothe plaintiff and was thereby overturned. The defendants' driver«aid that he pulled across the rival omnibus to prevent it frompassing him. The clefendants lmd given instructions to the driver-not to obstruct any bus. The judge directed the jury “ that themaster was responsible for the reckless and improper conduct ofthe servant in the course of the service; and that if the jury believedthat the real truth of the matter was that the defendants* driverbeing dissatisfied and irritated with the plaintiff’s driver, whetherjustly or unjustly, by reason of what had occurred, and in thatstate of mind acted recklessly, wantonly, and improperly, but inthe course of his service and employment-, and in doing that whichlie believed to be for the interest of the clefendants. then the-defendants were responsible for the act of their servant; thatj if-the act of the defendant’s driver, in driving as he did across thee*oad .to obstruct the plaintiff's omnibus, although a reckless driving•1 {1911) 2 K. B. 175.* (186$) Hurletone & Column 525.
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on his part, wns nevertheless an act clone by him in the course of 192T-his service, and to do that which he thought best to suit the interest maabtrws*of his employers and so to interfere with the .trade and business AJ-of the other omnibus, the defendants were responsible; that the Latanuv.liability of the master depended upon the acts and conduct of theservant in the course of the service and employment; and theinstructions given to the defendants’ driver, and read in evidenceto the jury, were immaterial if the defendants' driver did notpursue them; but that if the truel character of .the act of thedefendants’ servant was, that it was an act of his own and in orderto effect a purpose of hie own, the defendants were not responsible.”
It was held that the direction was right.
The last of the directions appear to me to be peculiarly applicableto this case.Assumingthat the act wasdone in the course of the
employment,it appearstome that .^heact of defendant’s driver
was an act of his own and in order to give effect to a purpose ofhis own, foraccordingtothe evidencethe defendant’s bus was
full and it was thereforenot necessaryto halt the bus for the
purpose of picking up passengers. It is also in evidence thatthe bus was halted 5 feet behind the plaintiff’s bus. This appearsto me sufficient space to allow defendant’s driver to move his buspast plaintiff’s bus. Nor is there any evidence that there wasanything behind the defendant’s bus to prevent the driver backinghis bus if the space was insufficient to enable him to pass theplaintiff’s bus.
The facts appear to me to show very clearly that the removalof the stone and the releasing of the brakes were acts of the driver’sown and in order to effect a purpose of his own, and the defendantis therefore not liable.
am also of opinion that the act of the defendant’s driver wasnot an act done in the course of the driver’s employment. Thedriver was employed to drive the bus, and if lie caused damage bynegligent or reckless driving no doubt the defendant would ordinarilybe liable. I cannot conceive how it can be said that the removalof the stone and the releasing of the brakes were acts done in thecourse of the driver’s employment.
I affirm the judgment of the learned Commissioner and dismissthe appeal with cqsts.
Appeal dismissed.