[1937] EACA 207

## ORIGINAL CIVIL

#### Before LUCIE-SMITH, J.

### J. M. PATEL AND ANOTHER, Plaintiffs

#### v.

# T. K. TANDREE AND ANOTHER, Defendants C. C. 44/1935 (Mombasa)

Negligence-Master and Servant-Negligence of servant-Scope of authority—Liability of Master—Damages.

The first defendant was the registered owner of a motor truck and employed the second defendant (inter alia) to drive this truck on the first defendant's business. On a public holiday and out of business hours the second defendant without the knowledge or authority of his master drove the truck for his own purposes. There was an accident in which the second plaintiff, the wife of the first plaintiff, was seriously injured. The plaintiffs claimed damages.

Held (13-12-35).—That the second defendant was not acting in the course of his employment or within the scope of his authority; and that the first defendant was not liable.

The facts and arguments are stated in the judgment.

Budhdeo for the plaintiffs.

Atkinson for the defendants.

(Note.—Since this decision the case of Aitchison v. Page Motors, Ltd., has been reported in 52 T. L. R. p. 137).

JUDGMENT.—The plaintiffs herein are man and wife—the husband being employed in the Customs Department at Mombasa—they have three young children.

The first defendant is a provider of vegetables to ships visiting the Port and does a certain amount of business as a fruit importer. He is the owner of a motor car No. A $2536$ , a box body car.

The second defendant, Modley, is employed by the first defendant as a clerk and is also his nephew. Amongst the second defendant's duties as clerk was to see to the delivery at the various ships of vegetables ordered by them. For this purpose he used the car $\overline{A}$ 2536 but—so says the first defendant—he was not authorized to drive it and an authorized driver was employed by the first defendant for this purpose. The first defendant also has another car, a tourer, which he was in the habit of driving himself. The second defendant lives with the first defendant and the two cars are garaged on the same premises, the tourer in a lock-up garage, the box body in the compound. The keys of the garage and the switch keys would appear to be at the disposition of anyone in the house as they are kept hanging on the wall of the passage in the house.

There has been a certain amount of evidence that Modley has frequently been seen driving the box body car at various times by day and at night, apparently both on his uncle's business and for his own pleasure. Modley himself admits to having driven it, but only twice, or once or twice. Amoral, a witness for the defence, at page 32 of the record, states "Modley still lives with Tandree and I see him still driving the box body car .... Modley does not now drive Further on he states $(p. 33)$ "I can't remember when I himself." last saw Modley drive a car—it must be 6-8 months ago". Earlier at page 32, "Before this Modley sometimes gave me a lift from Kilindini, sometimes in box body sometimes in tourer... He used to give other people lifts. I can't say if Tandree knows of these lifts, he may know of them." Now let us see what Tandree has to say on this subject. Speaking of Tamby, Modley's brother, he says "he is known as Tamby. He drives my car ... he used to drive my car before he went to Durban. He drove both cars ... Modley came to relieve Tamby .... He (Modley) returned here in September, 1934, to relieve Tamby .... Tamby had my authority to drive either of the cars .... I did not give Modley as much authority as Tamby had ... I told Modley he was not to drive my cars." (Here I would interpose that it seems strange that Modley says nothing of this definite prohibition) "... I never knew before the 6th May that he was driving either of my cars" and again (p. 36) in reply to the Court, "Modley worked for me from 1930-32. During that period he had authority to drive my car."

From the evidence to which I have referred I have come to the conclusion that from the time of his return to Kenya in September, 1934, up to at any rate the date of the accident Modley was in the habit of driving the box body both on his uncle's business and for his own personal affairs. I have little or no doubt that his uncle Tandree was fully aware of this practice of his and tacitly, if not in so many words, authorized it.

The 6th May, 1935, was a gazetted public holiday—it being Jubilee Day-and there is evidence that on that day Tandree did no business other than deliver the usual standing order to Messrs. Smith Mackenzie's mess, which order was delivered early in the morning in the box body car driven by his Arab driver Ahamed. There is evidence that Tandree himself was sick at home on the 4th, 5th and 6th and only returned to work on the 7th May. At about 8 a.m. on the 6th Modley left his uncle's house in the box bodv. At about 11.30 he picked up the witness Amoral near the Motor Mart and proceeded with him and Collaco to Amoral's house. There he had lunch and rested until tea time. After tea it was suggested that a party of them should go and see a *ngoma* that was being held. They set off, the party consisting of Modley, Mr. and Mrs. Amoral and child and Mr. and Mrs. Collaco and two infants. The two ladies sat in front with Modley while the rest of the party sat on a cushion on the floor in the box part of the car. I would mention in passing that, with the knowledge of the advocates, I saw the car in question and then observed that the sides of the box part are some 2 feet high. Amoral sat on the left-hand side of the car with Collaco on his right. The party proceeded past the European Cemetery on to the sea front and so on to the Lighthouse. They then proceeded in the direction of the Post Office. On rounding the corner by the Health Office the car suddenly ran off the road to the left eventually striking a tree which stands 4 feet 6 inches from the

edge of the tarmac and then ran into a party consisting of two Indian ladies and a child who were at least 4 feet 2 inches off the tarmac. The whole Indian party seem to have been knocked down and one of the party, the second plaintiff, had her leg run over and broken and she must undoubtedly have suffered severe shock and pain. Modley who was still driving the car did not stop but regaining the tarmac drove as far as the Post Office, swung sharp left into the road which runs past where the old Railway Station used to be and so into Cliffe Road, Kilindini Road and back to Ganjoni Road from where he had started.

Learned Counsel for the plaintiffs pointed out that the road past the old station is not lighted and I have made a point of confirming this fact.

The plan put in in the Court of the Resident Magistrate has been put in in evidence in this case and is admitted to be substantially correct. The pencil line now on that plan was marked in by Assistant Inspector Potter and admittedly shows roughly where the car first left the road and how it proceeded up to the time of striking the tree. After striking the tree it would appear that the car travelled some 20 yards before regaining the tarmac, a total distance of some 40 yards not on the road. It is to be seen from the plan that the car left the road immediately after rounding the bend and before coming to the entrance to the Health Office. Modley was subsequently prosecuted as a result of this accident and pleaded guilty to charges of (1) driving a car to the common danger and (2) failing to stop after an accident. The plaint herein charges negligence on the following heads:—

- (1) Driving at excessive speed. - (2) Not giving warning of approach. - (3) Not keeping a proper look out. - (4) Improperly leaving the road and, in the alternative, driving recklessly and negligently and in a manner dangerous to the public contrary to the Traffic Ordinance and the Regulations made thereunder.

As regards the second head the defence admits not giving warning of approach but pleads that it was unnecessary, although Modley in the witness box swears that he sounded his horn on taking the corner.

As regards the excessive speed Modley states that he took the corner at 10-15 m.p.h. and Amoral confirms this speed. For the plaintiff Khimchand Rajshi an apparently disinterested and unbiased witness, who does not live in Mombasa, states, "I saw a motor car come round the corner by the Health Office travelling very fast ... I heard no hooting $\ldots$ . The car left the tarmac portion by the Health Office, it was zigzagging. It seemed to me that driver had no control of steering as if he might be drunk"; in cross-examination he said "On rounding the corner (the car) lurched from side to side which made me think the driver had no control of the steering. The whole thing happened within a second ... I think it was doing 60-65 m.p.h. I do not drive myself .... I have driven in a car with speedometer showing 35 m.p.h. . . . I have never seen a car driven faster than on the day of this accident."

From the evidence of the map, from my observations on the spot, from the marks on the tree and from the evidence of Khimchand, which I find to be infinitely preferable to that of Amoral or Modley on this point, I have no difficulty whatever in finding that Modley took the Health Office corner at an excessive speed—at a speed so excessive that he lost control of the car and was unable to regain control until after hitting the tree and running into the Indian party. Modley has completely failed to satisfy me that he gave proper and audible warning of his approach or that he kept a proper look out. The learned advocate for the defence has suggested that the parties were hidden from each other by the trees and that Modley's not seeing the Indians was no more strange than the Indians not seeing Modley. That is specious but I would point out that there was a duty on Modley as the driver of a car on the road to keep an effectual look out while there was not a similar duty on the Indians as they were not on the road at all.

The story of the "small dog-brown" of Amoral and the "medium size-brownish coloured dog" of Modley I disbelieve entirely. From the position in which Amoral was sitting I think it highly improbable that he could have seen anything on his right over the side of the car. As one with a certain amount of experience. of cars it seems to me incredible that if that car was travelling at 10-15 m.p.h. the collision with the tree was not avoidable, and easily avoidable, by a gently application of the four-wheel brakes. I cannot help thinking that the explanation of what happened is contained in Modley's answer to the Court—"I was talking to the two ladies sitting in front with me most of the time. That may have accounted for my not seeing the Indian ladies." Another significant point to which I would refer is the sudden abandonment (immediately after the accident of which they say they knew nothing) of the whole object of the excursion, that is to see the *ngoma*, and I am inclined to draw the obvious inference from the choice of an unlighted stretch of road as Contributory negligence has been pleaded but soon as possible. there is to my mind no evidence whatever to support such a plea.

Tandree has admitted that Modley is his servant but says that the driving of the car was not within the scope of his authority, and it is suggested that even if driving the car was ordinarily within the scope of such authority, Modley was on the occasion of this accident not carrying out his master's business and was on this occasion acting outside the scope of his authority (if any).

It is laid down in *Barnard* $v$ . *Sulley* (47 T. L. R. 557) that where a plaintiff in an action for negligence proves that damage has been caused by the defendant's motor car, the fact of ownership of the motor car is prima facie evidence that the motor car, at the material time, was being driven by the owner or by his servant or agent. Scrutton L. J. who delivered the judgment of the Court said "No doubt. sometimes motor cars were being driven by persons who were not the owners, nor the servants' or agents of the owners. As illustrations of that there were the numerous prosecutions for joy-riding, and there were also the cases where chauffeurs drove their employers' motor cars. for their own private folly. But, apart from authority, the more usual fact was that a motor car was driven by the owner or the servant or agent of the owner, and therefore the fact of ownership

was some evidence fit to go to the jury that at the material time the motor car was being driven by the owner of it or by his servant or agent. But it was evidence which was liable to be rebutted by the proof of the actual facts." Greer and Slesser L. J. J. concurred-See also Beard v. London General Omnibus Co. (1900 2 Q. B. 530) judgment of Romer L. J. at page 534. It was held in Sleath v. Wilson (9 C. and P. 607) that if a servant without his master's knowledge takes his master's carriage out of the coach house and with it commits an injury, the master is not liable; because he has not in such case intrusted the servant with the carriage. But whenever the master has intrusted the servant with the control of the carriage, it is no answer that the servant acted improperly in the management of it; but the master in such a case will be liable, because he has put it in the servant's power to mismanage the carriage, by intrusting him with it. The view expressed in Sleath $v$ . Wilson was not adopted in Storey v. Ashton (4 Q. B. 476), where Cockburn C. J. says at page 479, "and we cannot adopt the view of Erskine, J. in Sleath v. Wilson that it is because the master has intrusted the servant with the control of the horse and cart that the master is responsible. The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant." Mellor, J. says, "Generally speaking the master is answerable for the negligent doing of what he employs his servant to do" and Lush, J., "The question in all such cases as the present is whether the servant was doing that which the master employed him to do". In the above case that of Mitchell v. Crassweller (138 E. R. 1189) was referred to with approval by the Court. In the course of his judgment in that case Jervis, C. J. at page 1193 observes, "Each case must depend upon its own particular circumstances. No doubt a master may be liable for injury done by his servant's negligence, where the servant, being about his master's business, makes a small deviation, or even where he so exceeds his duty as to justify his master in at once discharging him", and again, "I think, at all events, if the master is liable where the servant has deviated, it must be where the deviation occurs in a journey on which the servant has originally started on his master's business; in other words he must be in the employ of his master at Maule, Cresswell and the time of committing the grievance". Williams, JJ. agreed. The next case to which I would refer is that of Rayner v. Mitchell (2 C. P. D. 357), at page 359 Lord Coleridge, C. J. states, "It was laid down in Lord Holt's time, and repeatedly since, that, wherever the master intrusts a horse or carriage or anything which may readily be made an implement of mischief to his servant to be used by him in furtherance of his master's business, or for the execution of his orders, the master will be responsible for the negligent management of the thing intrusted to the servant, so long as the latter is using it or dealing with it in the ordinary course of his employment. That is undoubtedly a correct statement of the law."

The case of Patten v. Rea (140 E. R. 554 )is perhaps of little interest in this case except the dictum of Cockburn, C. J. at page 556, "I concur in the argument urged by the defendant's counsel, to this extent, that, to render the master liable, it is not enough to show that the person driving the vehicle which causes the damage is his servant, but that it must be shown that the servant was driving with his master's authority and upon his business."

In Ruddiman and Co., v. Smith and others (60 L. T. R. 708) Lord Coleridge at page 710 says, "I agree that it is not for every act of negligence by a servant that a master is liable; but the master is liable if the act of negligence was done by the servant, either within the scope of his authority or as an incident to his employment."

Joel v. Morison (6 C. & P. 501) was quoted for the defence. There Parke, B. in reply to a submission by counsel said, "He is not liable if, as you suggest, these young men took the cart without leave; he is liable if they were going extra viam in going from Burton Crescent Mews to Finchley; but if they chose to go of their own accord to see a friend, when they were not on their master's business, he is not liable" and in his summing up, "Or if you think that the young man who was driving took the cart surreptitiously, and was not at the time employed on his master's business, the defendant will not be liable. The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master's implied commands, when driving on his master's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable." See also Britt v. Galmoye (44 T. L. R. 294). I would also refer to Sanderson v. Collins (1904 1 K. B. 628) which although a case of bailment appears to be apposite. I would particularly refer to the example of a burglar given by Collins, M. R. at p. 631.

I have come to the conclusion that *Reichardt v. Shard* (31 T. L. R. 24) is on the facts distinguishable from this case.

Having gone into the law on the subject at some length I now have to ask myself as a jury whether I am satisfied that Modley was at the time of the accident acting in his capacity as Tandree's servant and about his business and within the scope of his (Modley's) authority and in the course of his employment. From the evidence I find that he was not so acting but that he took the car surreptitiously and was going on a frolic of his own without being at all on his master's business. I do not think that Mr. Budhdeo's contention as regards costs can be entertained. There will therefore be judgment for the defendant Tandree with costs.

As regards the defendant Modley I have already found that he was negligent and there are to my mind various things which tend to aggravate his negligence. I think however that the conduct of the first plaintiff in removing his wife from hospital at so early a date and her conduct in so leaving must be taken into consideration in view of the medical evidence, see Jones v. Watney, Combe, Reid and Co. (28 T. L. R. 399). I also consider that the first plaintiff is not entitled to the same measure of damage as the second plaintiff who was the actual physical sufferer. In this connexion it would appear from the report in Powell v. Streatham Manor Nursing Home (1935 A. C. 243), which was a claim by husband and wife for injuries to the wife, that the husband was awarded substantially less damages than his wife.

In the result I assess damages for the male plaintiff at Sh. 2,000 and for the female plaintiff at Sh. 6,000. There will be judgment against the defendant Modley for the first plaintiff for Sh. 2,000 and for the second plaintiff for Sh. 6,000. Modley to pay the plaintiffs' costs.