Taxi Driver Online

Back in 1919 the courts determined the status of a child under ten years of age for the purpose of an extra passenger fare. In this particular case the child under ten was an infant in arms and naturaly the court found that such a person was not a child under the interpretation of the relavent legislation.
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Kemp, Appellant v. Lubbock, Respondent.

King's Bench Division.

KBD

Earl of Reading C.J., Avoryand Sankey JJ.

1919 October 21.

London--Hackney Carriage--Motor Cab fitted with Taximeter--Fare payable-- Extra Person--"Child"--Infant in Arms--London Hackney Carriage Act, 1853 (16 & 17 Vict. c. 33)--Metropolitan Public Carriage Act, 1869 (32 & 33 Vict. c. 115)--London Cab and Stage Carriage Act, 1907 (7 Edw. 7, c. 55)-- Statutory Rules and Orders, 1917, No. 426, Sched. K.

An infant in arms is not a "child" within the meaning of Sched. K to the Statutory Order No. 426, dated May 1, 1917, made by the Secretary of State in pursuance of the Metropolitan Carriage Act, 1869, and the London Cab and Stage Carriage Act, 1907, and therefore need not be paid for as an extra person.

CASE stated by a metropolitan magistrate.

A complaint was preferred by the appellant, William Henry Kemp, under the London Hackney Carriage Act, 1853, against the respondent, Irene Lubbock, for having, on May 5, 1919, unlawfully refused to pay the fare provided under Sched. K of the Home Secretary's Order of May 1, 1917. [FN1]

Statutory Rules and Orders, 1917, No. 426. Order, dated May 1, 1917, made by the Secretary of State in pursuance of the Metropolitan Carriage Act, 1869 (32 & 33 Vict. c. 115), and the London Cab and Stage Carriage Act, 1907 (7 Edw. 7, c. 55): SCHEDULE K."The fare payable for the hiring of a motor cab, fitted with a taximeter recording the fare by a combination of time and distance, shall be according to the following scale:-- "(a) For a distance not exceeding one mile, or for time not exceeding ten minutes ... 8d. ..."In addition to the above, the driver may be entitled to charge the following extra payments:-- ..."(2.) Extra persons: When licensed to carry more than two persons - For each additional person beyond two for the whole journey ... 6d. "Provided that one child, or if there be more than one, two children under the age of ten years shall count as one person."

The appellant was a duly licensed Hackney carriage driver, and he drove the respondent, together with her nurse and child, from Maida Vale to Paddington, being a distance of less than one mile, in a motor-cab fitted with a taximeter. The child was an infant in arms, eighteen months old, and was carried throughout the journey in the arms of thenurse.

The taxi-meter registered 8d. at the end of the journey. The respondent paid to the appellant 1s. 6d., being 8d. for the fare, 6d. extra under an order of the Home Secretary made on October 23, 1917, and 4d. as a gratuity.

The appellant claimed 1s. 8d. - namely, 6d. for the child in addition to the 8d. and the 6d. above-mentioned. He contended that he was entitled to charge for the child as an additional person under Sched. K of the Home Secretary's order dated May 1, 1917, and that the word "child" in the order included an infant in arms, however young, as there was no provision in the Hackney Carriage Acts that children under three years of age should be carried free of charge as under the Railway Regulation Act, 1844 (7 & 8 Vict. c. 85), s. 6, and the Cheap Trains Act, 1883 (46 & 47 Vict. c. 34), s. 5.

The respondent contended that upon the facts the appellant was not entitled to recover the sum claimed, as there was a custom that infants in arms should not be charged for either in omnibuses, tramcars, or Hackney carriages.

The magistrate was of opinion that the custom existed, and that the appellant was not entitled to make a charge for the child as an additional person.

The question for the opinion of the Court was whether the magistrate came to a correct determination in point of law.

Turrell for the appellant. An infant in arms eighteen months old is an extra person within the meaning of the order of May 1, 1917. One child under ten years of age is to count as one person and two children each under that age are also to count as one person. An extra fare of 6d. must therefore be paid for the infant. Under the Act relating to Hackney Coaches passed in 1815 (55 Geo. 3, c. 159) it was expressly provided by s. 3 that children in arms should not be paid for; also in the Railway Passenger Duty Act, 1842 (5 & 6 Vict. c. 79), s. 13, the proviso expressly enacts that "no child under five years of age, sitting in the lap, shall be deemed a passenger within the meaning of this Act."

Those statutes show that when the Legislature intends that infants in arms shall not be paid for it expressly so enacts. The order divides humanity into two classes, one class over ten years of age and the other younger than ten years of age. The infant in arms is therefore included in the proviso in Sched. K relating to a child under ten years of age. An unborn child would not be a "person" within the meaning of the order, and would, therefore, not have to be paid for, but a living child is a "person."

Giveen for the respondent. A Hansom cab is licensed to carry two persons only, and therefore if an infant in arms is an "extra person" a married woman travelling with her husband in a Hansom and carrying an infant would commit an offence. [He was stopped.]

EARL OF READING C.J.

In my opinion the magistrate was right. The sole question is whether an infant in arms is to be paid for as a "person" under the order of May 1, 1917, issued by the Home Office. It is quite clear that the provision is with regard to a child or two children, and if the word "child" in the order is intended to cover and include an infant in arms, Mr. Turrell's argument on behalf of the appellant is right. If on the other hand it is not so intended, the argument fails. I think it is not.

Whether any particular child is properly described as an infant in arms is a question of fact for the magistrate. In the present case the magistrate has found that the child was an infant in arms, and consequently in my view, being an infant in arms, it is not a child to be reckoned as a person for whom the extra payment is to be made. It is a simple question of interpretation. It would lead to an absurdity if the word "child" in this order were construed as including an infant in arms.

It would have to receive the same construction in other regulations, and it would be absurd to say that a woman carrying an infant in arms in a Hansom cab must pay for two persons, and that if another child accompanied her there would be an infringement of the regulations. I am quite clear that the word "child" was not intended to cover an infant in arms, and therefore the appeal will be dismissed.

AVORY J.

I agree. The proper construction of the word "child" in this order is that it does not include an infant in arms, and when one looks at the object and purpose of the regulations it is to my mind clear that the object was to provide that a person who occupies an extra seat in the conveyance shall be paid for. The presumption is that an infant in arms does not occupy any seat or space in the conveyance. Therefore I agree that the magistrate was right.

SANKEY J.

I agree.

Representation

Solicitors for appellant: Gamlin & Thomas . Solicitors for respondent: Rubinstein, Nash & Co.

Appeal dismissed. (J. E. A. )
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