1. This was a rule calling upon the Chief Presidency Magistrate to show cause why the conviction and sentence passed upon the petitioner, Mr. E. Thornton, should not be set aside on the ground that his statement was not recorded and there is no finding that he was in the car and there is clear finding in a subsequent case that he was not in the car.
2. As regards the first point we think it is to he regretted, considering that this is a case of first impression as to the interpretation of a rule which is not altogether free from difficulties, that a fuller record of the evidence and the plea of the petitioners was not made. It is, however, clear from the explanation of the Chief Presidency Magistrate that Mr. Thornton did not seek to impeach Mr. Watson's evidence and in the absence of the chauffeur merely denied all knowledge of the offence. The only question, therefore, to be considered is the responsibility of the owner under the bye-law No. 4 read with Rule 20 when the owner is not himself present in the car.
3. This is a mixed question of law and fact and we will first consider the question of law. It appears that Mr. Thornton was summoned under Rule 20 and not under Rule 4. The indictment was worded 'driving his motor car No. 545 so rashly and negligently and at an excessive speed as to endanger human life and property and thus committing an offence under Rule 20 of Act III of 1903.
4. Now, although this indictment does not meet the facts inasmuch as the petitioner was not driving, we have to see what the rule under which he was summoned requires, for it is clear that if the rule makes it an offence to allow the car to be drive at excessive speed, Mr. Thornton is amenable to that rule as owner and his responsibility is only limited by the terms of Rule 4. Rule 20 says: 'A motor car shall not be driven recklessly or negligently' and no personal responsibility is imputed to any one. When the owner, therefore, appears on a summons issued under that rule, it is no defence to say he was not driving himself if the responsibility for such driving is by law imputed to the owner by the rule which governs the person who is amenable to the law. Now Rule 4 is that rule and it appears on the face of that rule that the owner is responsible at law for the acts of his chauffeur. The wording of the rule is somewhat curious; it runs as follows: 'No person shall drive or have charge of or cause or permit to be used, any motor-car, motor cycle or trailer which does not in all respects conform to these rules, or which is so driven or used as to contravene any of these rules'.
5. It is evidently intended to import the doctrine of 'post hoc', 'propter hoc'' into the law, a doctrine which is ordinarily contrary to the spirit of the law. But that it is known to the law is clear from the case of presumptions under Section 114 of the Evidence Act and of certain decisions under the licensing laws in England which have been cited before us.
6. In this case the fact has to be proved that the petitioner permitted the car to be used, and then it follows under the rule that if it is so driven or used by any one whom the owner permitted to use it as to contravene Rule 20, the owner is liable to conviction. We have considered the cases of Somerset v. Wade (1894) 1 Q.B. 574 : 63 L.J.M.C. 128 : 10 R. 105 : 70 L.T. 452 : 42 W.R. 399 : 58 J.P. 231; Somerset v. Hart 12 Q.B.D. 360 : 53 L.I.M.C. 77 : 48 J.P. 327; Collman v. Mills 66 L.J.Q.B. 170 : (1897) 1 Q.B. 396 : 75 L.T. 590 : 18 Cox. C.C. 481 : 61 J.P. 102; Commissioner of Police v. Cartman (1896) 1 Q.B. 655 : 74 L.T. 726 : 44 W.R. 637 : 18 Cox. C.C. 341 : 60 J.P. 357. In the case of Collman v. Mills, 66 L.J.Q.B. 170 : (1897) 1 Q.B. 396 : 75 L.T. 590 : 18 Cox. C.C. 481 : 61 J.P. 102 the other three cases were cited and discussed at the Bar and we need only cite a passage from the judgment of Wills, J., where it is clearly laid down that a bye-law couched in the terms of Rule 20 is perfectly good.
7. Wills J., says: 'The bye-law must be generally consonant with the English law, otherwise it is bad. It must proceed to that extent upon principles which differ from those adopted in the construction of a statute, because a statute may go beyond the common law. Now the bye-laws before us are framed under a statute passed for regulating the conduct of the business of slaughterness of cattle. Section 4 provides that the local authority may from time to time make, alter and repeal bye-laws for regulating the conduct of any business specified in this Act', (This is the same as Section 3 of Act III of 1903, the words 'modify' and 'cancel' being used, instead of the words 'alter' and 'repeal' which are terms more applicable to laws than to rules). The learned Judge goes on to say there is, of course, a distinction between things criminal, in themselves morally wrong and wicked--and things merely made criminal because Parliament provides them.'
This bye-law has been made under statutory powers to regulate the conduct of the business. I agree with the Counsel for the appellant that had the Act contained the words no animal shall be slaughtered within public view or within the view of any other animal the bye-law, as it stands, would have been perfectly good; such a bye-law would, in my opinion, be within the authority to make bye-laws for regulating the conduct of business. Such a bye-law would impose upon the person carrying on the business the obligation to see that his servants did not do the thing forbidden. If it could be done directly by such language, why may it not be done in the manner in which it has been affected? And if so, there is no objection to construing this bye-law so as to make the master liable for the conduct of his servant.
8. It is clear from this dictum that it is Rule 20 which makes the owner liable for the acts of his servant in using the motor-car, and it is Rule 4 which, as we shall presently see, defines the extent of that responsibility. The owner registers his car and gets permission to use it on the streets on certain terms by which he must abide as a licensee. One of these, as Wright, J., points out, may be that he should be responsible for the acts of his servants. 'We, therefore, hold as a matter of law that the master is responsible for the act of his servant whom he permits to use his motor-car.
9. But the learned Chief Presidency Magistrate has very properly pointed out that it is not in every case of improper user by the servant that the master should be punished. There must be permission express or implied to use the car. The hired driver is not permitted to ply the car for hire or for his own purposes, nor is he permitted, when he is merely taking the car home after dropping his master or his master's friends, to drive the car recklessly merely for his own amusement or caprice.
10. But a general injunction to the chauffeur never to drive the car beyond the regulation speed is not sufficient to get rid of the owner's responsibility. It frequently happens, even when the owner is in the car, that the car is driven, often unwittingly, at an excessive speed. It requires an expert to estimate the actual speed at which a car is moving but every one is supposed to know when the car is being driven recklessly or without due care and caution, Want of such knowledge cannot be pleaded by the owner who is in the car at the time and the fact that he is unable to estimate the precise speed of the car is irrelevant. If, then, the owner who is in the car is liable to punishment for the conduct of his servant although he may not at the time have realised that the car was being recklessly driven, it seems to us that he is similarly liable if he has placed the car at the disposal of his friends. He has authorised and permitted his servant to use the car to convey his own friends. Once the permission express or implied is given any misuse of the car, while that permission lasts, is punishable and the owner is responsible, especially so as the Chief Presidency Magistrate points out, if, as in this case, the servant is not produced.
11. The Magistrates can, we think, be trusted not to strain the law so as to punish owners when the chauffeur is improperly using the car for his own purposes, but if the car is being used by the permission of the owner, he is, undoubtedly, liable to punishment, under Rule 4 and Section 4 of the Act.
12. We, therefore, discharge this rule.