1. This is a revision preferred by the third defendant against the decree passed against him in S.C.S. No, 668 of 1960 on the file of the District Munsif Court, Pudukottai, filed by the first respondent for damages caused to the first respondent's Plymouth Car by a lorry belonging to the first and third defendants.
2. The short facts in this case are the following: Defendants 1 and 3 are brothers. They own a motor lorry bearing No. MDY. 2477. The lorry is registered In the name of the third: defendant. On 10-2-1959, the first respondent had parked his Plymouth car MDC 7783 at Kulipirai to the south of P. R. R. M.SP. Chettiar's house on the left side margin of the Kulipirai-Ponamaravathi road, The car was parked in such a way as not to be a hindrance to the traffic and there was plenty of space on the right side of the car for the lorry to pass. The second defendant who was driving the lorry In the course of his employment under defendants 1 and 3 drove the lorry in a rash and negligent manner and dashed the lorry against the first respondent's (plaintiff's) car which was stationed as aforesaid and caused damage to the head light on the right side, bonnet and radiator grill of the car. Soon after, the accident the second defendant admitted to the plaintiff that he was responsible for this negligent act and also requested the plaintiff to have the car repaired in Messrs. T. V. S. and Company Limited, and agreed to pay the cost of the repairs. He also executed a letter on 10-2-1959 to that effect. After effecting the repairs the plaintiff presented the bill to defendants 1 and 3, the owners of the lorry, but the, latter disowned liability end refused to pay the money. Therefore the plaintiff had to file the present suit not only against the owners of the lorry, defendants 1 and 3, but also against the driver, defendant 2, for damages.
3. The first defendant contended that he was not the owner of the lorry, but only the third defendant and that the lorry having been taken on hire at the time of the accident by one Subramaniam Chettiar for transporting articles in connection with a marriage in his house the: hirer will be liable for any damages and not the owner of the lorry.
4. The third defendant while admitting that he is the owner of the lorry contended that he could not be made liable because he had lent the lorry and the driver temporarily to one Subramaniam Chettiar and the driver was for the time being under the control of Subrahmaniam Chettiar and the driver must be deemed to be the servant of the man to whom he was lent, although he remained the general servant of the third defendant, and that for any acts done by the second defendant during the course of the particular employment under Subramaniam Chettiar, the third defendant would not be liable. The third defendant also raised the plea of contributors negligence and other defences.
5. The second defendant driver remained ex parte.
6. The learned District Munsif found that the third defendant is the owner of the lorry, that the damage was caused due to the negligence of the second defendant, the driver of the lorry, and that the owner of the lorry is responsible for the tortious acts in his driver. He accordingly passed a decree against the defendants 2 and 3 for a sum of Rs. 220-40 nP. It is against this decree that the third defendant, the owner of the lorry, has preferred this revision petition.
7. The only point that has to be considered in this revision petition is whether the third defendant is liable for the damage caused by his driver to the plaintiff's car. It is the admitted case that the lorry belongs to the third defendant and the second defendant was in his employment at the time of hiring the lorry to one Subramaniam Chettiar for marriage purposes. Since the lorry was lent to some person for marriage purposes, can we say that the driver, second defendant, continued to be 'the servant of the owner of the lorry; or did he become the servant of the person to whom the lorry was lent on hire' It is true that a person can in fact and in law be a servant of more masters than one. In Salmond on Torts, 11th Edn. while discussing the effect of landing a servant, the learned author says at page 102:
'When a servant is sent by his employer to do work for another, it is a question of fact, depending on the nature of the arrangement and the degree of control exercised over the servant, whether he becomes 'quoad hoc' the servant of the person for whom he is working or remains in all respects the servant of his ordinary employer When a servant has thus two masters, the responsibility for a tort committed by him lies exclusively upon the master for whom he was working when he did the act complained of.'
One of the most frequently quoted judgments in this connection is that of McCardie, J. in Performing Right Society Ltd. v. Mitchell and Booker, 1924-1 KB 762, where it was observed at page 767:
'The nature of the task undertaken, the; freedom of action given, the magnitude of the contract amount, the manner in which it is to be paid, the powers of dismissal and the circumstances under which payment of the reward may be withheld, all these tear on the solution of the question.......It seems, however, reasonably clear that the final test, if there be a final test, and certainly the test to be generally applied, lies in the nature and degree of detailed control over the person alleged to be a servant.'
Therefore the principle seems to be that whenever it is necessary to discover whether or not one man is the servant of another the chief enquiry must be directed to wards finding who has the power to control and it is also essential to know how and by whom a person is paid, by whom and in what circumstances he may be dismissed. It is in this connection that a distinction 's drawn between a contract of service and contract for ser vice. This distinction had been recognised in two cases, namely, in Quarman v. Burnett, (1840) 6 M & W 499 and Jones v. Scullard, 1898 2 QB 565. In the former case, the defendants, two ladies, who kept a carriage, had for a period of about three years been in the habit of hiring for the day or for the drive horses and a coachman for a particular job-mistress. Owing to the negligence of the coachman in leaving the horses unattended while the carriage was standing at the door of the defendants' house the horses started off and came into collusion with the plaintiff's chaise.
The question arose whether the defendants were liable to pay compensation'. It was held that the defendants were not liable as the coachman was entirely under the control of the job-mistress. But in 1898 2 QB 565, the defendant owned horses, harness and a brougham which he kept at a livery stable. Whenever the defendant wished to use the carriage the owner of the stables supplied one of his men to drive. During such drives there was an accident causing damages to a jeweller who was carrying on business. The question arose as to who was responsible for the damage and incidentally the question whether the driver of the brougham was the servant of the defendant or the servant of the person who supplied the cabman to drive the carriages. Lord Russell of Killowen, C. J. observed at pages 574-575:
'The principle.....is that if the hirer simply applies to the livery stable keeper to drive him between certain points or for a certain period of time, and the latter supplies all, necessary for that purpose, the hirer is in no sense responsible for any negligence on the part of the driver. But it seems to me to be altogether a different case where the broughman, the horse, the harness, and the livery are the property of the person hiring the services of the driver. And in such a case, especially if, as here, the driver has driven the hirer for a considerable period of time and been approved by him, and the. horse is one the characteristics or peculiarities of which neither the livery stable keeper nor his driver have had any practical opportunity of becoming acquainted with, there is, it seems to me, evidence upon which a Jury would be justified in coming to the conclusion that the driver was upon the occasion in question acting as the servant, not of the livery-stable Keeper, but of the person who hired him.'
The Court of Appeal in Century Insurance Co v. N. I. Road Transport Board, 1942 1 All ER 491, agreed that the test to be applied in deciding whether a man is the servant of another is the one formulated by Bowen L. J. in Donovan v. Laing Etc. Syndicate Ltd., 1893 1 QB 629:
'......in whose employment the man was at the time when the acts complained of were done, in this sense, that by the employer is meant the person who has the right at the moment to control the doing of the act.'
In another case Moore v. Palmer, 1886 2 T L R 781, Bowen, L. J. laid down the important test at page 782 that 'the great test was this - whether the servant was transferred, or only the use and benefit of his work.'
8. In the present case, the driver was not transferred but only the use of his services.
9. The principles which should guide the Court in deciding the question whether there was a transfer of a servant from his general employer to another were also laid down in Chowdhary v. Gillot, 1947 2 All E R 541. The plaintiff in that case took his motor car to the manufacturers for repairs and after handing it over to the company with instructions regarding the repairs required, he asked for a lift to the nearest railway station. An employee, of the company was instructed to drive him to the station in his (the plaintiffs) own car. On the way owing to the negligence of the person who was deputed to drive the car, the car collided with a lorry and that plaintiff was injured. The plaintiff filed the suit for damages against the manufacturing company and the person who was deputed to drive the car. The company contended that they were not liable for the negligence of the person who drove the car because the relationship of master and servant did not exist between the company and their general servant at the time of the accident, as the plaintiff was in control of his own car and the servant himself, and not merely the benefit of his services had been transferred to the plaintiff. It was held that the company had lent the plaintiff the service's of their servant and had not transferred the servant himself to the plaintiff and the driver did not become' the servant of the plaintiff. In that case Streat field, I. laid down certain principles which I think would apply to th3 facts of the present case. They are:
1. A general servant remains the servant of the master who Days him and there is a presumption against the transfer of that servant as distinct from his services, and the presumption is all against there being such a transfer.
2. The burden of proof of such a transfer is a heavy one.
3. It must be proved that there was such a transference of the servant as to pass the right or authority to control him in the manner of the execution of the act in question.
4. It is a question of fact involving the whole circumstances of the case whether there has been such a transference of the right or authority to control. In deciding the question the following things have to be kept in mind; who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employee.
In the instant case, the 3rd defendant who is the owner of the lorry lent the lorry and the driver, second defendant, to one Subramaniam Chettiar for marriage purposes and at the time of the accident the 2nd defendant continued to be the servant of the third defendant and the person who hired the lorry and the driver had no control over the second defendant. If the tests laid down in the above said cases are applied to the facts of this case the third defendant, the owner of the lorry, will also be certainly liable for the damages caused to the plaintiff's car.
10. The learned counsel for the petitioner further contended that though the second defendant is the servant of the third defendant, since he has taken the work of the hirer the is in the eye of the law the servant of there latter and the latter is in the eye of the law the employer. In support of this contention' he relied on the decision in A. H. Bull Co. v. West African Shipping Co., AIR 1927 PC 173. But the facts in that case are entirely different from those of the present case.
11. It will 'be useful to refer to the decision of a Bench of the Calcutta High Court in National Shipping Co. v. Haripada, : AIR1958Cal597 . In that case the owner of a motor launch Uma (defendant-2) lent the launch to defendant 1 with all its crew on hire on certain, conditions, the important among them being that the hirer would meet the running expenses of the) launch and would; effect the repairs in' the event of any breakdown, that the hirer would operate the vessel in navigable waters and that he would repair at his cost if any damage was caused to the vessel while it was with him. The hirer also reserved the right to dismiss, penalise or change any crew when deemed necessary but agreed to inform the owner of the launch about the same for approval. The plaintiff in that case sent several bags of some perishable goods in four country boats. In the course of the journey the motor launch dashed against one of the country boats with the result that the said country boat with the entire merchandise want down and was lost in deep waters. The plaintiff filed a suit for damages against the owner of the motor launch and the hirer. The Subordinate Judge held that defendant 2, the owner of the motor launch, was liable for the plaintiff's loss. On appeal by the owner of the motor launch, the matter came up before the Calcutta High Court. Mookerjee, J. while dealing with the appeal, reviewed the entire case-law on the subject and concluded thus:
'......there can be little doubt that, in the present case, the general master, the appellant (the owner of the motor launch), would be liable. There is nothing here to indicate that the control of the manner in which the motor launch Uma was to be driven was with the temporary employer, respondent No. 2 (hirer), and this was plainly a ease where the services of the Serang - and not the Serang as or qua servant - were transferred.......On the. facts, therefore, It is well established that the requisite control over the Sprang was with the appellant company so as to make it his master for purpose of the maxim 'respondent superior' and the liability for his tort must, accordingly, rest with it.'
In this case also the driver, second defendant, continued to be under the control of the third defendant for all purposes and as such the third defendant will be liable for the damages.
12. The civil revision petition therefore fails and it is dismissed. No costs.