Joslin v. Grand Rapids Ice Co.

• Decision Date: 06 June 1883
• Citation: 15 N.W. 887,50 Mich. 516
• Court: Michigan Supreme Court
• Parties: JOSLIN v. GRAND RAPIDS ICE CO.

15 N.W. 887

50 Mich. 516

JOSLIN v. GRAND RAPIDS ICE CO.

Supreme Court of Michigan

June 6, 1883

A master is liable for the negligent driving of a servant, even while the latter is acting temporarily for a third person who has hired a team and its driver from the master; and it is immaterial that the person hiring expressly asked for the services of this particular driver.

In an action brought by a lawyer for a personal injury caused by defendant's negligent driving, the plaintiff's business was not stated and there was only a general allegation of injury. Held, that in the absence of any practice of citing the plaintiff to make his allegations more specific, this was hardly sufficient to warrant the admission of his testimony that the injury prevented his regular attention upon his legal business as before, and of his own sworn estimate as to the value of the time lost to such business.

Error to Kent.

Kennedy & Thompson, for plaintiff.

Taggart & Earle, for defendant and appellant.

COOLEY, J.

The plaintiff is a lawyer, residing at Grand Rapids, in this state. On the third day of April, 1882, he was driving his horse attached to a buggy in one of the public streets of that city, when he came in collision with a wagon driven by one Scott, and was thrown out of the buggy receiving personal injuries. The horse and buggy were also injured. Plaintiff claims that the collision was due exclusively to the negligent driving of Scott. It appears that Scott was at the time a servant in the general service of the defendant, and had been regularly in its employment for several months. On the day when the collision occurred one Collins, who was engaged in contract work on one of the streets, had hired of defendant one of its teams for his own business, as he had repeatedly done before, with the understanding that defendant was to send a driver with the team, and that Collins would pay to the defendant the charge for team and driver. On this occasion Collins had requested that Scott be sent as driver, and he was sent in compliance with that request. It was while Scott was driving the team in the business of Collins that the collision occurred. Plaintiff brings this suit to recover for the injury to himself, his horse, and vehicle, and in the court below has been awarded $600 damages.

The ground of the recovery is that Scott, the driver, was at the time of the injury in the service of the defendant, and that therefore the defendant was liable for his negligence on the doctrine of respondeat superior. The point of chief contention in the case is whether Collins or the defendant was in law, for the purposes of the application of this doctrine, to be regarded as the master. Defendant employed and paid Scott, and we are to suppose had the power to direct where and for whom his services should be given, and to discharge him for misconduct or incompetency. But, on the other hand, he was engaged in the business of Collins for the day, and Collins had the right to direct his actions, and must be assumed to have sent him with the team along the street where the collision occurred. The facts make the case unusual, and there is ample room for difference of opinion respecting the application of the general principle.

But the case is directly within Quarman v. Burnett, 6 Mees. &amp W. 499, which, whether correctly decided or not, has been too often and too generally recognized and followed to be questioned now. In that case it appeared that the owners of a carriage were in the habit of hiring horses from the same person to draw it for a day or drive; the owner of the horses providing a driver. This driver on one occasion causing injury by his negligence, the owners of the carriage were held not responsible for this injury. And it was further held to make no difference that the owners of the carriage had always been driven by the same driver, he being the only regular coachman in the employ of the owner of the horses; or that they had always paid him a fixed sum for each drive; or that they had provided him with a livery which he left at their house at the end of each drive; and that the injury in question was occasioned by his leaving the horses while so depositing the livery where he was accustomed to leave it. Baron PARKE in that case says: "Upon the principle that qui facit per alium facit per se the master is responsible for the acts of his servants; and that person is undoubtedly liable who stood in the relation of master to the wrong-doer; he who had selected him as his servant...