Frerker v. Nicholson

• Decision Date: 07 October 1907
• Citation: 92 P. 224,41 Colo. 12
• Parties: FRERKER v. NICHOLSON.
• Court: Colorado Supreme Court

92 P. 224

41 Colo. 12

FRERKER v. NICHOLSON.

Supreme Court of Colorado

October 7, 1907

Rehearing Denied Nov. 4, 1907.

Appeal from District Court, City and County of Denver; F. T Johnson, Judge.

Action by Jemima Nicholson against W. C. Frerker. From a judgment for plaintiff, defendant appeals. Affirmed.

F. D Taggart, for appellant.

R. D Rees, for appellee.

CAMPBELL, J.

The present appeal was argued and submitted in connection with the case of Nicholson v. McGovern Undertaking Co. et al. (the opinion in which is reported) 92 P. 225. This action is for the recovery of damages for the same personal injuries caused by the same act of negligence. The statement of facts set forth in that opinion is applicable to this case, so far as concerns the legal question involved.

A number of grounds are assigned for reversal, but none of them calls for discussion, except a question of law, which may thus be stated: In the ordinary hiring from a livery stable keeper of a carriage, horses, and driver, is the owner thereof, or the hirer, who exercises no control over the driver further than a general direction where to go, and, if either, which one is, liable in damages to a third person who receives injuries on account of the driver's negligence? Counsel for appellant, who is the owner of the horses and carriage and whose servant was the driver, in support of the proposition that the hirer, and not the owner, is liable in the circumstances which this case presents, relies, among other cases, upon Bush v. Steinman, 1 Bos. & P. 404. This case was commented upon by the judges in Laugher v. Pointer 5 B. & C. 579, and again in Quarman v. Burnett 6 M. & W. 497. Therein it and similar cases where occupiers of land or buildings were held responsible for acts of others than their servants done upon, or near, or with respect to their property, were clearly distinguished from the cases like the present one, commonly known as the carriage cases. In Quarman v. Burnett, Parke, B., thus states the principle applicable to the case at bar: 'Upon the principle that qui facit per alium facit per se, the master is responsible for the acts of his servant, and that person is undoubtedly liable who stood in the relation of master to the wrongdoer, he who had selected him as his servant, from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey, and whether such servant has been appointed by the master directly, or intermediately through the intervention of an agent authorized by him to appoint servants for him, can make no difference.' Another class of cases, like those where a railroad company is held not responsible for negligence in the operation of its engine, when, at the time of the accident, its engineer and the crew by which it was operated were rented to, and under the control of, another, is very clearly distinguished by Taft, Circuit Judge, in Byrne v. Kansas City, etc., R. R. Co., 61 F. 605, 9 C.C.A. 666, 24 L.R.A. 693. The learned judge quotes with approval the following language of Lord Justice Bowen in Donovan v. Construction Syndicate, 1 Q. B. 629: 'The principal part of the argument for the plaintiff was founded on what may be called the 'car...