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FOWLER v LOCK

[COURT OF COMMON PLEAS]

[L R] 7 C P 272

HEARING-DATES: 4 May 1872

4 May 1872

Master and Servant - Relation of Cab-Proprietor and Driver - Bailor and Bailee.

HEADNOTE:
The plaintiff, a cab-driver, obtained from the defendant, a cab-proprietor, a horse and cab on the usual terms, which are that the driver shall at the end of the day hand over to the proprietor 18s., retaining for himself all the day's earnings over that sum, - the day's food for the horse being supplied by the owner, and the latter having no control over the driver after leaving the yard. The horse with which the driver was furnished, which was fresh from the country and had never before been harnessed to a cab, bolted and overturned the cab and injured the driver. The jury found that the horse was not reasonably fit to be driven in a cab:-

Held, by Byles and Grove, JJ., that the relation between the parties was that of bailor and bailee, and consequently that, upon this finding of the jury, the proprietor was responsible for the injury sustained by the driver.

Held, by Willes, J., that the relation was that of master and servant (or at most co-adventurers), and therefore that, in the absence of evidence of personal negligence or misconduct on his part, the owner was not responsible.

Powles v. Hider (6 E. & B. 207; 25 L. J. (Q.B.) 331) observed upon.

INTRODUCTION:
THE first count of the declaration stated that the defendant was a proprietor of cabs and horses, and was accustomed to let the same out for hire, and was possessed of a horse which was of a vicious and unmanageable disposition, dangerous, and not fit to be, and had never before been, driven in a cab; that the defendant, well knowing the premises, let the same out to hire to the plaintiff for the purpose of being harnessed to a cab and being therein driven by

the plaintiff in the way of his, the plaintiff's, occupation of a cab-driver, for reward to the defendant in that behalf, and fraudulently and wrongfully concealed from the plaintiff the fact of the horse being vicious, unmanageable, and dangerous, not fit to be, and that it had never before been, driven in a cab; that the plaintiff had no notice or knowledge of that fact; and that, by reason of the premises, the horse, whilst so hired as aforesaid, and after the same had been harnessed to a cab for the purpose of being, and whilst being, driven therein by the plaintiff in the way of his said occupation as aforesaid, kicked, plunged, reared, and became unmanageable, and bolted and ran away and up an embankment, and overturned the cab; whereby the plaintiff was injured and prevented from following his occupation, &c.

Second count, that, in consideration that the plaintiff would hire of the defendant a horse of the defendant for the purpose of being harnessed to a cab and being therein driven by the plaintiff in the way of his occupation as a cab-driver, for reward to the defendant in that behalf, the defendant promised to let the same to the plaintiff on hire for the purpose and on the terms aforesaid, and that the horse was reasonably fit and proper for the purpose of being driven by the plaintiff; that the plaintiff accordingly hired and the defendant let to hire to the plaintiff the said horse for the purpose and on the terms aforesaid; yet the horse was not then reasonably fit and proper for the purpose aforesaid, and after the same had been harnessed to a cab for the purpose of being driven, and whilst being driven therein by the plaintiff as aforesaid, kicked, &c., as in the first count.

Pleas, 1, to the first count, not guilty; 2, to the second count, that the defendant did not promise, as alleged; 3, to the second count, that the horse was at the time of the making of the supposed promise, reasonably fit and proper for the purpose in the second count alleged. Issue thereon.

The cause was tried before Byles, J., at the second sitting for Middlesex in last Michaelmas Term. The plaintiff is a cab-driver. The defendant is a cab-proprietor carrying on his business in Gray's Inn Road. On the 24th of June last the plaintiff, who had before driven cabs belonging to the defendant, applied to him for a cab and horse for the day, and the defendant agreed to supply them to

him upon the usual terms, viz. that the plaintiff should at the end of the day hand over to the defendant 18s. of the day's earnings, retaining all over that sum for himself, - the day's food for the horse being supplied by the defendant, and the owner having no control over the driver after leaving the yard. The first horse which was offered to the plaintiff refused to go beyond the gate of the stable-yard; the second lay down in the road three or four times before he had got a mile from home; and then the defendant, pointing to a grey mare, - a well-bred animal, rising five years, fresh from the country, having just been purchased at Horncastle Fair for 26l., - said: "That is a likely one; you may try her if you like." The grey was accordingly harnessed to the cab, and the plaintiff started with her; but in a short time she kicked and plunged and the plaintiff lost all control over her, and ultimately the cab was upset and the plaintiff injured. There was evidence that it was usual, before putting fresh horses to cab work, for the defendant, to try them in a gingle, which in this case had not been done.

The defendant and his foreman were called; the former stated that, before the horses were put to, he told the plaintiff that they were all fresh horses; and both of them swore that they considered the grey a reasonably fit horse for a cab: and it was submitted that there was no evidence to sustain either count of the declaration; that it was not shewn that the defendant was aware of the vicious disposition of the mare; and that the plaintiff, being the servant of the defendant, could not maintain an action against his master for an injury sustained by him whilst in his service, in the absence of evidence of some act of negligence of the master which conduced to it.

The learned judge directed a verdict to be entered for the defendant upon the first count; and upon the second he left it to the jury to say whether the horse was reasonably fit for a cab, and whether the accident was attributable to the vice of the horse or to the plaintiff's carelessness or want of skill.

The jury found that the horse was not reasonably fit to be driven in a cab, and that the accident was attributable to the horse; and they accordingly found for the plaintiff on the second count, damages 50l.

COUNSEL:
Francis, in Michaelmas Term last, pursuant to leave reserved at the trial, obtained a rule nisi to enter a verdict for the defendant or a nonsuit, on the ground that the plaintiff was the servant of the defendant, and there was no hiring or letting of the horse, as alleged in the second count; or that, if there were such hiring or letting, there was no implied promise that the horse was reasonably fit and proper for the purpose as alleged; or for a new trial, on the ground that the verdict was against the weight of evidence, - the plaintiff to be at liberty, on the argument of the rule, to contend that the judge was wrong in telling the jury that there was no evidence to support the first count.

Jan. 19. Collins shewed cause, and contended that, although the cab-owner is liable to the public for any negligence on the part of the driver, - Powles v. Hider n(1) , - it did not follow that the driver was his servant; that the true relation between them was that of bailor and bailee; that the owner could sue the driver for the stipulated hire; and that there was an implied warranty on the part of the owner, as in the case of any other bailment for hire, that the horses he let out were reasonably fit for the work. He cited Story on Bailments, ss 332; Addison on Contracts, 3rd ed. 431-2; Oliphant on Horses, 2nd ed. 54; Chew v. Jones. n(2) He also contended that there was some evidence to go to the jury on the first count, of the defendant having fraudulently concealed from the plaintiff the fact that the mare had never been tried in harness.

Jan. 20. Francis, in support of the rule, contended, upon the authority of Morley v. Dunscombe n(3) , Dynen v. Leach n(4) , and Powles v. Hider n(1) , that the relation between the defendant and the plaintiff, under the circumstances proved, was that of master and servant, and consequently that, in the absence of evidence of personal misconduct on the part of the owner, he was not liable for any injury which the driver might sustain whilst in his employ; that the arrangement as to the division of the day's earnings was

merely a mode of paying wages, resorted to for the purpose of guarding against the idleness or the fraud of the driver; and that the relation of the parties could not be different inter se and as between one of them and the public. He also relied upon the following sections of the Hackney Carriage Acts, as shewing that the legislature contemplated the relation of master and servant between the cab-proprietor and the driver:- 1 & 2 Wm. 4, c. 22, s. 20; 6 & 7 Vict. c. 86, ss. 21, 23, 24, 27, 28. He further cited Story on Bailments, ss 390, Chitty on Contracts, 9th ed. 418, Bigge v. Parkinson n(1) , and Sutton v. Temple n(2) , to shew that there was no implied warranty on the part of the master under the circumstances.

Cur. adv. vult.

May 4. The Court being divided in opinion, the following judgments were delivered:-

PANEL: GROVE, BYLES and WILLES, JJ

JUDGMENTBY-1: GROVE, J

JUDGMENT-1:
GROVE, J: In this case the two questions which remained to be decided were, - first, was the plaintiff the servant of the defendant in such sense that, within the decided cases on that subject, he, the plaintiff, could not recover in respect of injuries sustained in the ordinary course of his employment, - secondly, supposing the relation of master and servant in that sense did not exist, but that the relation was analogous to that of bailor and bailee, was there an implied contract by the former that the thing hired was reasonably fit for the purpose for which it was hired.

The evidence at the trial was that the plaintiff was the driver of a cab, and the defendant the cab-owner. The cabman in these cases pays 18s. a day, taking the risk of profit or loss upon himself. If he does not bring home or pay the 18s., he is not allowed to drive again; or, in the words of the defendant, "No money, no cabs." During the day the cabman is free to do what he likes with horse and cab, provided he does not in use them or misconduct himself to the public. On the occasion in question, the defendant, who supplied cab and horse, supplied first a horse which could not be made to go further than the exit of the stable-yard, secondly a horse which lay down three or four times, and

thirdly the horse which caused the injury to the driver in question by violent kicking and bolting.

There was evidence that the third horse was what is called "green," i.e. fresh from the country, and untried, and that it was usual in such cases to try the horse first in what is called a gingle.

The learned judge held that there was no evidence of knowledge to support the first count, and left the case to the jury reserving the question above mentioned. The jury found for the plaintiff, damages 50l. With this verdict the learned judge was not dissatisfied; and this Court held on the argument that he was right as to the want of evidence of scienter.

It was contended on behalf of the defendant, on the authority of the cases of Morley v. Dunscombe n(1) and Powles v. Hider n(2) , that the plaintiff was the servant of the defendant, and that, within the decisions on the subject, the master was not liable to the servant for injuries sustained in the ordinary course of service. On the other hand, it was argued on behalf of the plaintiff that those were cases where a third party, viz. one of the public, was injured; and that, although the cab-owner might, by reason of statutable provisions and responsibilities to the public, be liable to a person injured when riding in the cab, yet that they were not in point as to the relations of cab-owner and cab-driver; and that these were to each other as bailor and bailee on a contract of hiring. It was further contended for the defendant that, even if the latter relation was the true one, there was no implied promise by the cab-owner that the horse supplied was reasonably fit for the purpose for which it was used, and, if so, the defendant was not liable.

On both these reserved questions, I am of opinion that the judgment should be for the plaintiff.

The non-liability of master to servant in cases where a stranger would be liable, appears to be founded on the servant's undertaking or subjecting himself to the ordinary risk of his service, the "dangers" of which "he is just as likely to be acquainted with as the master." These latter words are used in the judgment of the Court of Exchequer delivered by Lord Abinger in the leading case

on the subject, Priestley v. Fowler n(1) , in which case the injury was occasioned by the breaking down of an overloaded van; and the judgment went on to say n(2) : "The plaintiff must have known as well as his master, and probably better, whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely. In fact, to allow this sort of action to prevail, would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, while they protect the master, are a much better security against any injury the servant may sustain by the negligence of others employed under the same master, than any recourse against his master for damages could possibly afford." In Dynen v. Leach n(3) , where the injury was by the slipping of a clip to which a sugar-mould was attached, Bramwell, B., says, - and similar expressions fell from other members of the Court, - "The workman is as well acquainted as the master with the nature of the machinery, and voluntarily uses it." These criteria, I do not think apply to the present case. The cabman could not know the qualities of the different horses he was or might be from day to day supplied with; nor was he the cab-owner's servant, in the sense of taking upon himself perils the nature or extent of which he had no reasonable means of ascertaining.

In Powles v. Hider n(4) , relied on for the defendant, where the question was more fully entered into than in Morley v. Dunscombe n(5) , the judgment proceeds on the relation to the public of the cab-owner. It says n(6) : "Looking to the position of the proprietor and the driver of a cab under the circumstances proved, and to the Acts of Parliament which regulate their respective duties, we are of opinion that the driver is to be considered the servant or agent of the proprietor, with authority to enter into contracts for the employment of the cab, on which the proprietor is liable." After discussing the question of wages, to which I shall

presently refer, the judgment proceeds to contrast that case with the hiring of a job-carriage, "where the hirer becomes bailee, and can in no sense be considered the servant of the proprietor." It then considers the provision of the statute 1 & 2 Wm. 4, c. 22, s. 20, viz. that every hackney-carriage shall at all times have upon it a plate with the Christian name and surname of the proprietor of such carriage. The Court goes on to say, "and the cab in question had upon it a plate with the name and surname of the defendant as the proprietor. The proprietor who applies for and accepts a licence to which such a condition is annexed, and employs his cab under it, must be considered to hold himself out to the world as the proprietor; and he must incur the liabilities of the proprietor to all who use the cab with the authority of the driver in the ordinary course of dealing." After referring to 6 & 7 Vict. c. 86, it says n(1) , "It would be most inconvenient and unjust towards the public if an action such as the present, brought against one who proclaimed himself to be the actual proprietor of the cab when it was engaged by the plaintiff, could be defeated by evidence of a secret agreement between the proprietor and the driver with respect to the remuneration of the driver and the proprietor, in which the earnings of the cab are to be divided between them."

I think it sufficiently appears from the above that what the Court had under its consideration in that case was the relation and responsibility of the cab-proprietor to the public; and that it had not in view the nature of the contract between the cab-owner and the driver or cabman. Indeed, this seems to be excluded by the part of the judgment last quoted. The Court, it is true, considered the payment of a fixed sum as a mode of compensation for the cabman's labour: and no doubt this may be so; but the payment by the person who uses the horse and carriage to the proprietor of it, though not inconsistent with such a view, cannot, I think, be regarded as evidence of a contract of service, but rather (prima facie, at least,) as more consistent with that of a contract of hiring.

In this case, therefore, - where the cabman is under no control as to his movements by the cab-owner, where he may make special bargains with the public, where he does not and cannot reasonably

be expected to know the risks he encounters, where he prima facie pays instead of receives, where he is not carrying out his master's orders, where the perils are unknown to him and change from day to day, where there is no notice of dismissal, but only a refusal to supply cab and horse on non-payment, and where there are no correlative duties beyond those of bailor and bailee, and statutable duties of each respectively to the public, - I feel obliged to come to the conclusion that the cabman is not the servant of the cab-owner in the sense (to use the term above quoted) of rendering the latter exempt from liability to the former in cases where a party not bearing the relation of master to servant would be liable.

It remains for me to consider the second point, i.e. assuming the relation of the parties to be in the nature of that of bailor and bailee, is there an implied contract by the former that the thing supplied is reasonably fit for the purpose for which it is hired. I am of opinion that there is.

Even in the case of master and servant, the House of Lords has held, in appeals from Scotland, that the master is bound to take all reasonable precautions for the safety of his workmen, and is liable for accidents occasioned by his neglect towards those whom he employs: and the law of England is there stated (obiter) to be the same as that of Scotland: Paterson v. Wallace n(1) ; Brydon v. Stuart. n(2)

In Chew v. Jones n(3) , it is laid down at nisi prius, by Pollock, C.B., that, "if a horse or carriage be let out for hire for the purpose of performing a particular journey, the parties letting warrant that the horse or carriage, as it may be, is fit and proper and competent for such journey." He says, however, further on: "It is not the case of a bailee, but of a contract in which the plaintiff impliedly warrants that his horse is fit to do a certain journey."

In the judgment of Lord Abinger in Sutton v. Temple n(4) , it is said n(5) : "If a carriage be let for hire, and it breaks down on the journey, the letter of it is liable and not the party who hired it. So, if a party hire anything else of the nature of goods and chattels,

can it be said that he is not to be furnished with the proper goods, - such as are fit to be used for the purpose intended? Undoubtedly, the party furnishing the goods is bound to furnish that which is fit to be used. In every point of view the nature of the contract is such that an obligation is imposed on the party letting for hire to furnish that which is proper for the hirer's accommodation." Smith v. Marrable n(1) , which was the case of letting a house infested with bugs, and where the Court said that there was an implied condition in letting a house that it was reasonably fit to be inhabited, was distinguished from the case then under consideration, and therefore so far upheld. The words first quoted from this judgment seem exactly to meet the present case: and I am consequently of opinion that, where there is a hiring of goods, not agreed to as specific chattels, and where, as here, the person hiring has no reasonable means of ascertaining their quality, the hirer is bound to supply such as are reasonably fit for the purpose.

My judgment is therefore on both points for the plaintiff, an that the rule should be discharged.

JUDGMENTBY-2: BYLES, J

JUDGMENT-2:
BYLES, J: I also am of opinion that the rule to enter a nonsuit should be discharged.

It may be useful to consider in what relation the parties would have stood to each other before the Hackney Carriage Acts were passed, or in places where they do not apply. Suppose that in a country town, in the time of Charles I., the owner of a horse and cart contracted to allow another man to have the entire and exclusive personal use and control of them, at so much a week or so much a day, for the purpose of carrying, for the driver's profit, passengers or goods within the limits of the town, but without reserving to himself (the owner) any right to direct where the horse and cart should go, provided they were used within the prescribed limits and were returned within the agreed time, - what in that case would have been the nature of the relation between the parties? I should have thought it would not have been that of master and servant, but would have been that of bailor and bailee. The contract would fall within that class of bailments called "Locatio, i.e. contractus quo de re fruenda vel facienda pro



n(1) 11 M. & W. 5.

certo pretio convenit." It may not be necessary to the existence of a bailment of this sort that the possession of the chattel should vest in the bailee; it is enough if he have only the use and enjoyment of it. It would in either view still be a bailment, though he should be obliged to use it within the prescribed limits, and to drive it himself personally, and not to allow any one else to do so.

Such I should have thought would have been the relation existing between the parties in this case, but for some expressions used by Lord Campbell in the case of Powles v. Hider n(1) , which expressions, however, not being necessary to the decision of the case, are perhaps extrajudicial; for, it must be recollected that the case of Powles v. Hider n(1) was decided on the Hackney Carriage Acts there cited, and on the relation created by those Acts as between the proprietor and the public. Here, on the contrary, we are dealing with the rights and liabilities of the proprietor and driver inter se. The driver, as between the cab-owner and himself, seems to me to have the complete and exclusive control and disposition of the vehicle within a certain district, and not to be a servant of the proprietor, and therefore by the terms of the contract entitled to be furnished with a suitable, at least with a quiet or manageable, horse.

But, even on the supposition that the relation existing between these parties inter se was not analogous to that of bailor and bailee, but was that of master and servant, I think, nevertheless, that there was evidence of the defendant's liability; for, in this case, there was the personal interference and superintendence of the master, the now defendant, in the supply of the horse, and therefore evidence of his personal negligence causing injury to his servant, by sending the servant out with an untried, vicious, and dangerous horse, not reasonably fit and proper for the work; the master having had the means of knowing the horse's character, and the servant having had no such opportunity.

In Ormond v. Holland n(2) Lord Campbell and Crompton, J., both state, as a qualification to the general rule laid down in Priestley v. Fowler n(3) , that the master is liable if there be personal negligence on his part.

Moreover, it has been held, and very recently in this Court in Warren v. Wildee n(1) , that a master is liable to his servant if he expose the servant to unreasonable risk, and the servant be thereby injured, and that this is a question which ought to be left to the jury.

JUDGMENTBY-3: WILLES, J

JUDGMENT-3:
WILLES, J: In this case the plaintiff, who was a cabman driving a horse and cab provided by the defendant, a cab-master, the cabman keeping the earnings of the cab, and paying so much a day to the cab-master, upon the terms usual in the trade, and which were of the same character as those commented upon in Powles v. Hider n(2) , was hurt in consequence of the horse running away; and he brought his action for damages.

The declaration contained two counts. One count alleged that the defendant knowingly supplied an unfit horse: this, however, was rightly negatived at the trial, and the verdict thereupon is for the defendant. The other count was upon an alleged implied contract by the defendant with the plaintiff, upon an alleged bailment of hire of the cab and horse, that the horse was fit for the purpose, which in fact he was not. Upon this count the plaintiff had a verdict, subject to the opinion of the Court upon a point reserved; and the question which we have to determine is, whether this contract was to be implied from the employment.

The character of the relation between the parties was much considered in Powles v. Hider n(2) , which decided that the cab-master was answerable to third persons for the acts of the cab-driver, as his servant or agent, and that the cabman was not the bailee or hirer of the cab, in which case he, and not the cab-master, would have been liable. In delivering the judgment of the Court, Lord Campbell distinctly stated this to be the opinion at which they had arrived; and in deciding this case against the defendant we should seem directly to overrule the reasoning of the Court of Queen's Bench. The passage in Lord Campbell's judgment runs as follows: n(3) - "If the defendant be right in his contention that, in point of law, the cab and horses must be considered as let to hire to Young, the driver, for fifteen hours, in

consideration of the sum of 14s. 6d., and that Young must be considered the bailee and entitled to make what use he pleased of them during that time, Young could not render the defendant liable on any contract into which he entered for the use of the cab, and the plaintiff, being without remedy against the proprietor, could only sue Young, the driver and bailee. But, looking to the position of the proprietor and the driver of a cab under the circumstances proved, and to the Acts of Parliament which regulate their respective duties, we are of opinion that the driver is to be considered the servant or agent of the proprietor, with authority to enter into contracts for the employment of the cab, on which the proprietor is liable. There can be no doubt that this would be so if the driver were engaged at fixed wages, accounting to the proprietor for all the earnings of the cab. But, must not the actual arrangement between them be equally considered a mode by which the proprietor receives what may be estimated as the average earnings of the cab, minus a reasonable compensation to the driver for his labour? To stimulate the industry and zeal of the driver, he is allowed to pocket all the earnings of the cab above a given sum; but it is from the earnings of the cab that this sum is paid; and it is evidently calculated on both sides that the earnings of the cab will exceed this sum, which varies, according to the season of the year. This is quite different from hiring a job-carriage or a carriage and horses to be driven by the hirer or his servant, where the hirer becomes bailee, and can in no sense be considered the servant of the proprietor."

That case has remained ever since to the present day the unquestioned guide of the Courts, both as to the decision and as to the reasoning upon which it was founded; and the relation between the parties as thereby established was, that the cabman drove the cab for the cab master as a person employed by him at his risk, and that the payment of the fixed sum was part of a mode of paying wages out of the earnings of the cab, arranged so as to secure to the master a fair return and to the driver a fair rate of wages dependent upon his diligence. The possibility that the cabman might become liable to pay the fixed sum though he did not use the cab, or though he made less than the stipulated sum, was looked upon as a remote possibility not contemplated by

the parties, who were considered to have bargained with reference to the average earnings. In such an engagement the cabman himself is to drive, which is a confirmatory fact to shew that the engagement is personal with him for his service; and it is anticipated that he will, in return for such service, make as much as will pay him fair wages over and above what is secured for the master.

The question is somewhat like that which has arisen in case of servants of a partnership receiving a share of the profits, with this distinction, that, whether in the case of a servant or in the case of a partner contributing his labour as against capital advanced by another to the earning of joint profit, whether fixed or not, an agency is created in respect of which the contributor of the capital is a principal or co-adventurer, and the contributor of the labour is a servant or other co-adventurer, each taking his share in profit and risk. A person standing in such a position as employer or co-adventurer is, according to a well-known rule, only answerable for fraud or misconduct, and the person employed by him takes the ordinary risks of the employment.

It would be a remarkable hardship to hold that the cab-master is not a letter out of the cab, but a principal, and liable for the cab-driver as his servant or agent as regards third persons, and yet that he is not an employer, but an independent letter to an independent hirer, as between him and the cabman, so as to be liable to the latter as upon a warranty which is not implied between master and servant or agent, or between co-adventurers.

The legislation upon the subject of hackney cabs,has been relied upon as justifying us in putting this double face upon the transaction; but the effect of that legislation is, to recognize and stamp upon the transaction the character of an employment in which the cabman is a servant, and to make the proprietor liable for him as such. The cabman is aware, or ought to be, that he enters into such a bargain as makes him in point of law the driver of the cab-master; and, in acting upon that employment, he acquires no greater right against his employer than if he were the coachman of a private gentleman, whose claim under like circumstances would at once have been rejected: Priestley v Fowler. n(1)

The class of exceptional cases in which a master has been held liable for injuries caused to his servant by improper and dangerous implements or materials used in his service, is limited to those in which the master has known of the defect (the servant being ignorant of it) and has shewn a reckless disregard of the safety of the servant, as in Williams v. Clough n(1) , Roberts v. Smith n(2) , where there was proof that the master knew of the dangerous character of the materials. To say that such a liability existed in this case, would be to depart from the declaration, which contains no count to raise the question, and to import a question not submitted to the jury, and to overrule Hammack v. White n(3) , where it was held that trying a newly-purchased horse in the street was not evidence of negligence even as against an ordinary passer-by.

It is unnecessary to give an opinion, and I offer none, upon the question whether there is an absolute warranty of fitness as between letter and hirer, in the case of an ordinary bailment of hire. It is enough to say that in the present case there can be no such warranty, because there was no such bailment.

If the cab-owner had been guilty of knowingly sending out an unfit horse with a driver who was not aware of the fact, there would have been a case of liability; but this state of facts was negatived at the trial. The remaining alleged ground of liability is therefore within the ordinary risk of the employment which the plaintiff undertook.

My learned Brothers Byles and Grove are of a different opinion, and therefore these scruples of mine are of small weight; but I have not been able to get rid of them. In accordance with the judgment of the majority of the Court, the rule to enter a nonsuit or a verdict for the defendant must be discharged.

DISPOSITION:
Rule discharged.

SOLICITORS:
Attorney for plaintiff: F. Scarth.

Attorney for defendant: W. H. Orchard.