Taxi Driver Online

[1918] 1 K.B. 228

[IN THE COURT OF APPEAL.]

KEMP v. ELISHA. [1917 K. 15.]

1917 Nov. 13, 14, 30.

PICKFORD, BANKES L.JJ. and SARGANT J.
Hackney Carriage - Negligence of Driver - Liability of Person registered as Proprietor - Managing Director of Company - Conclusiveness as to registered Proprietor being the Owner - London Hackney Carriage Act, 1831 (1 & 2 Will. 4, c. 22) - London Hackney Carriages Act, 1843 (6 & 7 Vict. c. 86) - Metropolitan Public Carriage Act, 1869 (32 & 33 Vict. c. 115), ss. 6, 11 - Hackney Carriage Order of December 30, 1907, r. 9.

By r. 9 of the Order of December 30, 1907, made by the Home Secretary under s. 6 of the Metropolitan Public Carriage Act, 1869, an application for a licence for a cab on behalf of any company shall be made by, and the licence shall be issued to, the secretary or manager of the company, and the person to whom a licence shall be so issued shall be responsible for the observance of the conditions under which the licence is granted.

A licence for a taxicab was applied for and issued to the defendant as the managing director of a limited company, and his name and address were entered in the register of licences of hackney carriages, kept at Scotland Yard, under the headings "Name of Proprietor" and "Address," with the addition of the words "Managing Director," and the name and address of the company. The plaintiff, a member of the public, was injured by, as he alleged, the negligent driving of the cab, and he brought an action against the defendant to recover damages. At the trial the plaintiff put in a certified copy of the entry in the register for the purpose of proving that the defendant, being registered as the proprietor of the cab, was liable for the acts of the driver. The defendant tendered evidence to show that he was not the owner or part-owner of the cab, and was therefore not liable. The judge rejected the evidence upon the ground that the entry in the register was conclusive as to the liability of the defendant as proprietor for the acts of the driver:-

Held, that the register was not conclusive, and that the evidence was wrongly rejected.

The definition of "proprietor" in s. 2 of the London Hackney Carriages Act, 1843, discussed.

APPLICATION for judgment or a new trial in an action tried before Salter J. and a jury.

The action was brought to recover damages for personal injuries occasioned to the plaintiff, one of the public, by the negligent driving of a taxicab. At the trial the plaintiff put in evidence a certified copy of the entry in respect of the cab in the register of licences of hackney carriages, kept at Scotland Yard, for the purpose of proving that the defendant was registered as the proprietor of the cab and was therefore liable for the act of the driver. The register contained two columns headed "Name of Proprietor" and "Address," which were filled in as follows:- "Elisha, Frederick Cornelius, 98 Barnsbury Road, N., Managing Director; The Holland Park Taxi Supply Co., Ltd., 68A De Beauvoir Road, Hackney." The defendant tendered evidence to prove that he was not the owner or part-owner of the cab and that the driver was not his servant; and that under the provisions of r. 9 of the Metropolitan Hackney Carriage Order, dated December 30, 1907, and made by the Home Secretary under s. 6 of the Metropolitan Public Carriage Act, 1869 (1), application was made on behalf of the Holland Park Taxi Supply Company, Limited (2), by the defendant, the managing director of the company, and the licence was issued to him.

The learned judge rejected the evidence upon the ground that the defendant was on the register as the proprietor of the cab and was liable as such to the public for the acts of the driver. The jury found for the plaintiff for 175l. damages, and judgment was entered for the plaintiff.

The defendant appealed.

J. B. Matthews, K.C., and Harold Brandon, for the defendant. Under the London Hackney Carriage Act, 1831 (1 & 2 Will. 4, c. 22), the Commissioners of Stamps were the persons empowered to grant

(1) The Order is set out in the Statutory Rules and Orders, 1907, p. 714, and r. 9 is as follows:- "An application for a licence on behalf of any co-partnership or company shall be made by, and such licence shall be issued to, the senior partner, or to the secretary or manager of the company, as the case may be; and the person to whom a licence shall be so issued shall be responsible for the observance of the conditions under which the licence is granted, and shall be liable to all penalties for breaches of such conditions as if he were the person solely interested in the licence."

(2) It was stated that the company consisted of cab-owning drivers, the company buying the cabs and letting each cab out to a driver who paid weekly contributions in respect thereof and who after paying a certain number of contributions became the owner of the cab. licences for hackney carriages.

This was followed by the London Hackney Carriages Act, 1843 (6 & 7 Vict. c. 86). By s. 6 of the Metropolitan Public Carriage Act, 1869 (32 & 33 Vict. c. 115), a Secretary of State is made the authority to license hackney carriages, and by s. 11 he may delegate this power to the Commissioner of Police; and by r. 1 of the Order of 1907 the Secretary of State authorized the Commissioner of Police to grant licences. It was held in Morley v. Dunscombe (1) and Powles v. Hider (2), that the relationship of master and servant existed between the registered proprietor of a hackney cab and the driver so far as the public were concerned; and those cases have been followed in Venables v. Smith (3), King v. London Improved Cab Co. (4), and Keen v. Henry (5), where King v. Spurr (6) was stated to have been overruled by King v. London Improved Cab Co. (4) In Gates v. Bill & Son (7) it was held that the liability imposed by the Acts on cab proprietors was not confined to the registered proprietor, but extended to all proprietors. In all those cases, however, the person sued was the actual proprietor of the cab.

The defendant was bound by r. 9 of the Home Secretary's Order of 1907 to apply for the licence and to get registered as he did on behalf of the company, but there is nothing in the Acts 8. or in any decision on the Acts to show that the defendant, though registered as the proprietor, cannot adduce evidence to prove that he is not the proprietor. A regulation made by the Home Secretary cannot make him liable as proprietor. The registration therefore is not conclusive as to the ownership of the cab, and the evidence was admissible. There ought to be a new trial. [Fowler v. Lock (9) and Playle v. Kew (10) were also referred to.]

Next, on the true construction of the entry in the register the company are registered as the owners of the cab, and not the defendant.

Schiller, K.C., and David White, for the plaintiff. The object of the London Hackney Carriage Acts is to have some one's name on the register of licences to whom the public can look as the person responsible as proprietor for the acts of the driver. Sect. 2 of the London Hackney Carriages Act, 1843, defines the word "proprietor" as including "every person who, either alone or in partnership with any other person, shall keep any hackney carriage or any metropolitan stage carriage, or who shall be concerned otherwise than as a driver or attendant in employing for hire any" such carriage. That exactly covers the case of the defendant. Moreover, the Acts do not consider who is the true owner; they are concerned with the registered owner. If a person is on the register as the managing director of a company, he is the proprietor within the meaning of the Acts. There is nothing, however, to prevent the real owner being liable though not registered: Gates v. Bill & Son. (1) Rule 9 of the Order of 1907 is not ultra vires. Sect. 6 of the Metropolitan Public Carriage Act, 1869, gives the Secretary of State power to grant licences on such conditions as he may by Order prescribe. The decisions in Powles v. Hider (2), Venables v. Smith (3), King v. London Improved Cab Co. (4), and Keen v. Henry (5) proceed upon the footing that the person who is registered as the proprietor of the cab is liable to the public as the real owner for the acts of the driver. The learned judge therefore rightly rejected the evidence.

The COURT intimated that if they wished to hear a reply they would let the defendant's counsel know.

Cur. adv. vult.

Nov. 30. PICKFORD L.J. read the following judgment:- This action was brought by the plaintiff to recover damages for personal injuries occasioned to him by reason of the negligent driving of a taxicab. The case was tried before Salter J. and a jury, and a verdict was found for the plaintiff for 175l. During the course of the trial the defendant's counsel tendered evidence to prove that, although the name of the defendant appeared upon the public register of licences of hackney carriages under the heading "proprietor," he was neither the owner nor part-owner of the cab, and that his name was only placed on the register as managing director of a limited company by reason of r. 9 of the Order of the Home Secretary made on December 30, 1907, under s. 6 of the Metropolitan Public Carriage Act, 1869 (32 & 33 Vict. c. 115). The learned judge rejected the evidence on the ground that such proof was immaterial, and that, as the defendant's name appeared on the register as proprietor, he was responsible for all the acts of the driver of the cab, although he might have no interest whatever in it. Judgment was therefore entered for the plaintiff for the amount found by the jury.

The question arising on this appeal is whether the evidence was properly rejected. In order to decide this point it must be assumed that the evidence established the facts in support of which it was tendered, and the question may be thus stated: Is a person who has no interest as owner or part-owner in a registered hackney carriage liable in damages for all the acts of the driver by reason merely of the fact that his name appears on the register as proprietor? I think it is well to consider the matter first apart from authority. The licence in this case, in respect of which the entry on the register was made, was granted to the defendant under the powers contained in s. 6 of the Metropolitan Public Carriage Act, 1869, before mentioned, but in considering the matter it is necessary to notice two earlier Acts, the London Hackney Carriage Act, 1831 (1 & 2 Will. 4, c. 22), and the London Hackney Carriages Act, 1843 (6 & 7 Vict. c. 86).

The defendant was the managing director of a limited company formed for the purpose of acquiring taxicabs upon terms not material to this case. It must be assumed that the defendant as such managing director had no property or direct personal interest in any cab acquired by the company. In these circumstances no relation of master and servant, and indeed no relation at all, was created at common law between the defendant as managing director and any individual driver. If, therefore, the fact of registration creates such a relation it must be by reason of some statutory provision to that effect.

In order to ascertain if there be any such statutory provision it is necessary to look at the enactments dealing with licensing and
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registration as concerned with hackney carriages. The first provisions as to licences and registration which it is necessary to consider are those of 1 & 2 Will. 4, c. 22, contained in ss. 7, 11, 12, 20, and 32. The effect of these provisions is broadly that upon the application of one or more of the proprietors of a hackney carriage a licence containing the name and address of every such proprietor or part-proprietor might be granted, and that the particulars of such licence should be entered in a book kept for that purpose. It was also provided that a plate bearing the name of one of the proprietors should be affixed in a conspicuous place on the hackney carriage.

The next Act I think it necessary to consider is the London Hackney Carriages Act, 1843, which contained provisions in s. 8 for the licensing of drivers, and by s. 3 applied such of the provisions of the Act of 1831 as were not repealed to hackney carriages within the meaning of the Act of 1843. The effect of this was to leave the regulation of licences granted to proprietors under the Act of 1831. The Act of 1843, however, contained provisions in ss. 23, 24, 27, 28, and 35 which imposed a liability upon proprietors for some of the acts of the drivers, and in one case a liability to pay compensation to a limited extent to persons injured by such acts. It also contained a definition of proprietor to this effect: "The word 'proprietor' shall include every person who, either alone or in partnership with any other person, shall keep any hackney carriage or any metropolitan stage carriage, or who shall be concerned otherwise than as a driver or attendant in employing for hire any hackney carriage or any metropolitan stage carriage." This definition seems to extend the meaning of the word "proprietor" for the purpose of the Act beyond that of owner or part-owner, and to subject persons coming within that definition to the provisions of the Act as to proprietors. This, however, is quite irrespective of the question of registration; the provisions apply to the proprietor whether registered or not. If, as was contended, this definition includes the managing director of a cab-owning company, it equally includes the manager of a private cab-owning firm who is not, and cannot under present legislation and regulations be, upon the register.

This state of things continued as to licensing and registration of proprietors the same for all purposes material to this case down to the
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year 1869, when two statutes were passed which made great alterations. By s. 39 of the Revenue Act, 1869 (32 & 33 Vict. c. 14), the provisions of the Act of 1831 as to licensing and registration were repealed, and by the Metropolitan Public Carriage Act, 1869 (32 & 33 Vict. c. 115), other provisions as to the grant of hackney carriage licences came into existence. Sect. 3 of the London Hackney Carriages Act of 1843 was not repealed, but it seems to me that, in spite of the provisions of that section, the repealed sections of the Act of 1831 ceased to be operative. It is not, however, necessary to decide this point, for, in my opinion, if they continue operative the result is the same so far as this case is concerned.

By s. 6 of the Act of 1869 (c. 115) it is provided that one of Her Majesty's Principal Secretaries of State may from time to time license to ply for hire within the limits of that Act hackney and stage carriages under certain conditions. The section is as follows: "One of Her Majesty's Principal Secretaries of State may from time to time license to ply for hire within the limits of this Act hackney and stage carriages, to be distinguished in such manner as he may by Order prescribe. Any licence in respect of a hackney or stage carriage under this section may be granted at such price, on such conditions, be in such form, be subject to revision or suspension in such events, and generally be dealt with in such manner as the said Secretary of State may by Order prescribe ...."

Under s. 11 the Secretary of State has delegated the duty of granting such licences to the Commissioner of the Metropolitan Police. This Act does not anywhere use the word "proprietor," but imposes certain penalties upon the owner of a hackney carriage (see s. 8.

Under the powers of this Act Orders have been made in 1871, 1897, 1907, and 1917 by the Home Secretary regulating the grant of licences, and that in force at the time of this case was made in 1907. The earlier Orders on this point were to the same effect. Rules 2, 8, and 9 of the Order of 1907 are in these words:-

Rule 2: "A person desirous of obtaining a licence for a cab or a stage carriage, shall make application at the office of the Commissioner. Such application, if for a cab licence, shall be in the form contained in Schedule A hereto; or, if for a stage carriage licence, shall be in the form contained in Schedule B hereto."

Rule 8: "A licence for a cab shall be in the form contained in Schedule D hereto; and for a stage carriage shall be in the form contained in Schedule E hereto."

Rule 9: "An application for a licence on behalf of any co-partnership or company shall be made by, and such licence shall be issued to, the senior partner, or to the secretary or manager of the company, as the case may be; and the person to whom a licence shall be so issued shall be responsible for the observance of the conditions under which the licence is granted, and shall be liable to all penalties for breaches of such conditions as if he were the person solely interested in the licence."

The forms referred to are as follows: [The Lord Justice read the forms, which are set out in the Statutory Rules and Orders, 1907, pp. 724, 725.] So far as I know these Orders contained the first provisions for issuing a licence to any one not the owner or part-owner of a hackney carriage, and before the Act of 1869 no licence was issued to such a person. It is to be noticed that the Order and forms recognize that the application for a licence is made, not on behalf of the person making it, but on behalf of the company of which he is a nominee, and he is described on the register as managing director of a limited company. The words of the register are: [The Lord Justice read them.] The Order imposes upon the person to whom a licence shall be issued the responsibility for the observance of the conditions under which it is granted and a liability for all penalties for breaches of such conditions. The conditions are set out in the Order. It is not necessary to consider whether the Secretary of State had power by this Order to subject the holder of the licence to penalties, but I notice that this part of the rule has been omitted in the latest Order made in 1917. Giving the rule its full effect, it only subjects the holder of the licence to certain obligations, and nowhere provides that because he appears upon the register as proprietor he is to be considered for all purposes a proprietor in the ordinary sense, i.e., an owner or part-owner. In the same way, assuming the defendant to be within the definition of a proprietor in the Act of 1843, he is subjected by that Act to certain liabilities for the acts of the driver, but is nowhere subjected to all the liabilities of an owner.

This liability imposed on him by the Act is, as I have already pointed out, independent of the fact of registration. The provisions as to registration so far as they concern proprietors are not very clear, and I do not think it necessary to examine them closely. It is enough to say that, assuming that there must be registration of proprietors, there is nothing contained in those provisions which by the mere fact of registration puts the person registered in the position for all purposes of a proprietor of the cab. There is, therefore, as it seems to me, nothing in any of the Acts or regulations to create the relation of master and servant between the defendant and the driver and render him liable for the driver's acts merely because he is on the register under the name proprietor, and at common law no such relation and no such liability exist.

It was, however, contended that we are bound by authority to hold the registered proprietor responsible for the acts of the driver, and there are expressions in the cases cited to us which, taken by themselves without relation to the questions and considerations before the Court, are to this effect. The strongest is that of Lord Esher M.R. in Keen v. Henry (1): "If, therefore, the driver of a hackney carriage does that which amounts to a breach of contract with a person who hires the carriage - for instance, if he loses his luggage - the owner of the luggage can maintain an action for damages against the registered proprietor of the carriage, although the driver was not his servant." If these expressions had been used after consideration of the question now before us, or if I could see that it had ever been brought under the notice of the learned judges who used them, I might feel that I ought to decide in accordance with them although they were not necessary for the actual decision of the cases. But in my opinion it would be wrong and misleading to consider them apart from the circumstances of the cases in which they were used. After an examination of those cases I am satisfied that the question in this case was never under consideration in any of the cases cited, and that there was no occasion in any of them to distinguish between the position of a registered proprietor, who was an owner or part-owner, and a registered owner, who was put on the register as a nominee of another as in this case. In every case the person held liable was an owner or part-owner of the hackney carriage, and in one, Gates v. Bill & Son (2), the person so held liable was not on the register at all.

The authorities cited to us are all founded upon the two cases of Powles v. Hider (1) and Venables v. Smith. (2) The question in these cases (apart from a question of estoppel in Powles v. Hider (1) with which I will deal later) is in my opinion this: Given an ownership or part-ownership in the hackney carriage which creates some relation between the owner or part-owner, who sends it out for hire, and the driver, is that relationship, so far as concerns the public, to be considered that of master and servant so as to make the owner or part-owner responsible for the driver's acts? The Courts held that owing to the effect of the provisions of the Act of 1843 that was the correct view. No mention is made of the Act of 1869 or of any Orders under it, and except under that Act and those Orders no person was on the register as a proprietor except an owner or part-owner. It is therefore not surprising that the expressions "proprietor" and "registered proprietor" are used indifferently by the learned judges, for there was no distinction between the two for the purpose of the cases before them. In Powles v. Hider (1) and in Venables v. Smith (2) I cannot find that the words "registered proprietor" were used at all, and this is also the case in King v. London Improved Cab Co. (3) The only reference to registration is in the judgment of Lindley L.J. (4) where he says: "I will only add that the regulations as to what has to be registered and accessible to the public seem to be based on the supposition that where a proprietor allows persons to drive his cabs in the public streets such persons so far as the public are concerned are to be deemed servants of the proprietor"; and in this passage it is obvious from the words "allows persons to drive his cabs" that the Lord Justice was considering the case of an owner of the cabs. Keen v. Henry (5), where the expression is used most frequently, was avowedly founded upon King v. London Improved Cab Co. (3), and the defendant was the owner of the cab and also the registered owner.

There was therefore no reason to distinguish between the one and the other and I think the last words of Lord Esher's judgment (6) - "The proprietors of hackney carriages cannot by letting their carriages escape from their liability under the statute" - show that he had not under his consideration the case of a person on the register who had no interest in the cab. Lopes L.J. (1) quotes from his own judgment in King v. London Improved Cab Co. (2), where he used the word "proprietor," and then immediately afterwards uses the expression "registered proprietor" as conveying the same meaning. Kay L.J. uses the expression "registered proprietor" once, and afterwards uses the word "proprietor" throughout. In the last case, Gates v. Bill & Son (3), the two expressions are used indifferently, and the last words of the judgment of Mathew L.J. (4) - "Lord Esher M.R. in the first of those cases (5) says that by virtue of the Act the relationship of master and servant must be deemed to exist; and the judgments of himself and his colleagues in that case and in Keen v. Henry (6) shew that, when a cab proprietor lets his cab upon the terms on which the cab was let in this case, the relation of a master to a servant must now be treated as imposed by law upon the cab proprietor with regard to the driver" - show that the only case the Court was considering was one where the proprietor or registered proprietor was the owner or part-owner.

I think there is nothing in these cases, when properly examined, to suggest that the learned judges who decided them meant by the use of the words "registered proprietor" to intimate that registration created any liability which did not otherwise exist, or that the relation of master and servant existed between a person with no interest in the cab as owner or part-owner and the driver. We are therefore, in my opinion, free to consider the matter on principle.

In Powles v. Hider (7), where the law required the proprietor's name to be upon the cab, estoppel was suggested as the ground of the defendant's liability. In this case no such question can arise. The plaintiff, of course, never saw the register and never heard of the defendant till after the accident; and if he had seen the register the information it would have conveyed to him would have been that the defendant's name was there as the nominee of the limited company.

I think, therefore, that if the defendant prove that he had no interest in this taxicab he is not liable in this action; but of course I cannot tell whether he will prove it till the evidence has been heard. I think the evidence was wrongly rejected, and that there must be a new trial. The appellant must have the costs of the appeal in any event, and the costs of the first trial will abide the event of the new trial.

BANKES L.J. read the following judgment:- In this action the plaintiff sought to recover damages for personal injuries sustained owing to the negligent driving of a taxicab by a person alleged to be the defendant's servant. The action was tried before Salter J. The defendant tendered evidence to show that he was not the owner of the taxicab, and that the driver was not his servant. The learned judge, upon the authority of certain decided cases which were cited to him, considered himself bound to exclude the evidence upon the ground that the fact that the defendant was on the register of licences of hackney carriages as the proprietor of the taxicab in question was conclusive on the question of whether the driver of the taxicab was the defendant's servant or not. Counsel for both the parties to this appeal have dealt very fully with the statutes, and with the decided cases which it is necessary to consider, much more fully probably than was done before the learned judge, and a somewhat curious state of things is disclosed.

The first statute which it is material to consider is the Act 1 & 2 Will. 4, c. 22 (1831), which repealed the then existing Acts relating to hackney carriages. It provided by s. 7 for the issue of licences by the Commissioners of Stamps for the keeping, using, employing, or letting for hire of any hackney carriage. Sect. 11 required the proprietor or one of the proprietors of the hackney carriage in respect of which a licence was applied for to sign a requisition in the prescribed form in which the name of every person who was proprietor or part-proprietor of such hackney carriage, or concerned either solely or in partnership with any other person in the keeping, using, employing or letting to hire of such hackney carriage, was to be entered. Sect. 12 provided that the licence should contain the full name and address of every such person. Sect. 20 provided that a plate should be affixed in a conspicuous place on each side of the
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hackney carriage bearing in black letters on a white ground the Christian name and surname of the proprietor or one of the proprietors of the hackney carriage. Sect. 32 required that the particulars of every licence should be entered in a book kept for the purpose at the head Office for Stamps.

In Powles v. Hider (1), decided in the year 1856, the defendant sought to set up that the driver of a hackney carriage of which he was the registered proprietor was not his servant, but was a bailee of the cab from him. In giving judgment in favour of the plaintiff Lord Campbell C.J. (2), after referring to the provisions of the statute, says that "the proprietor who applies for and accepts a licence to which" the condition of placing a plate upon the hackney carriage with his name upon it "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 proprietor to all who use the cab with the authority of the driver in the ordinary course of dealing." In this case, as in all the other cases to which we were referred, the person sought to be charged was in fact the owner or part-owner of the hackney carriage, and, so long as the statute of 1831 remained in force, the person who was registered as the proprietor of the hackney carriage was so registered, because he either was or represented himself to be the proprietor. All the sections of the Act of 1831 to which I have referred were repealed by s. 39 of the Revenue Act, 1869.

Meanwhile the two statutes of 1838 and 1843 (1 & 2 Vict. c. 79 and 6 & 7 Vict. c. 86) had been passed. Both of these statutes, so far as the question of licences is concerned, dealt, and dealt only, with the licences to be granted to the drivers and conductors of hackney carriages and to watermen, and did not deal with licences to be granted to proprietors of hackney carriages or the registration of such persons, both of which continued to be regulated by the Act of 1831. The statutes of 1838 and 1843, however, imposed considerable obligations upon the class of persons included in the definition of "proprietor" under those Acts, namely, "every person who, either alone or in partnership with any other person, shall keep any hackney carriage .... or who shall be concerned otherwise than as a driver or attendant in employing for hire any hackney carriage ...." It will be noticed that this definition follows to some extent the language used in ss. 11 and 12 of the Act of 1831, though it includes a class of persons such as a managing director of a cab-owning company, who was certainly not within the contemplation of the Legislature when the Act of 1831 was passed. In the same year that the provisions of the Act of 1831 to which I have referred were repealed the Metropolitan Public Carriage Act, 1869, was substituted for them.

This Act (32 & 33 Vict. c. 115) made a very considerable change in regard to licences in respect of hackney carriages. The authority to issue the licence is no longer the Commissioners of Stamps. One of His Majesty's Principal Secretaries of State becomes the authority to issue the licence. The licence itself is no longer described as a licence to an individual. It is treated as being a licence of the hackney carriage itself. The expression "proprietor" is not used in the later Act, and the provision with regard to the name-plate on the hackney carriage is not continued. There is no longer any express provision for the registration of the proprietors of hackney carriages. Sect. 6 of the Act of 1869 provides that any licence in respect of a hackney carriage may be granted on such conditions and in such form as the Secretary of State may prescribe. By an Order dated March 10, 1871, the Home Secretary prescribed certain conditions in relation to the granting of licences. These conditions, unlike the provisions of the Act of 1831, make no provision requiring the person who applies for the licence to be in any way interested either in the ownership or the working of the hackney carriage. Rule 11 deals with a case where a co-partnership or a company is making application for a licence, and in such a case it provides that the application shall be made by, and the licence issued to, the senior partner or manager of the company as the case may be, and that the person to whom such a licence is issued shall be responsible for the observance of the conditions under which the licence was granted, and shall be liable to all penalties for breaches of such conditions as if he were the person solely interested in the licence. A number of the rules refer to the "proprietor" of the hackney carriage, and impose certain duties and obligations upon him, but the expression "proprietor" is nowhere defined. Presumably, having regard to the provisions of s. 15 of the Act of 1869, the same meaning must be given to the expression as in the Act of 1843. By regulations made at the same time under s. 9 of the Act of 1869 the driver by reg. 28 is required to deliver to the hirer on entering the hackney carriage a ticket containing a list of fares on one side, and on the other the proprietor's name and address, and a footnote is appended, "Reference in case of complaints, or of property being left in the carriage, to be made either to the proprietor, at the above address, or to a police station."

A new Order was made by the Secretary of State dated August 18, 1897, but it does not contain any alterations material to be noted. It is a curious fact that in the many cases decided under the Hackney Carriage Acts, and to which our attention has been called, in not a single instance was any reference made in the judgments to the Metropolitan Public Carriage Act, 1869, or to the Orders made under it. I can only assume that this was because the person who was sought to be made liable for the act of the driver of the hackney carriage was either the owner or the part-owner of the hackney carriage, and it was therefore immaterial to point out that since the repeal of the Act of 1831 the fact of being upon the register as the licensed proprietor of a hackney carriage not only no longer involves the conclusion that the person who had been so placed upon the register either was, or had represented himself to be, either owner or part-owner or concerned either solely or in partnership with some other person in the keeping, using, employing, or letting to hire of such hackney carriage, but that the provisions of the Orders with reference to the managers of companies made it impossible that with regard to those particular persons they could be the proprietors in the sense of being owners or part-owners of the hackney carriages in respect of which their names appeared on the register. The decisions to which reference was made in their order of date were as follows: Venables v. Smith (1877) (1); King v. Spurr (1881)(2); King v. London Improved Cab Co. (1889) (3); Keen v. Henry (1893)(4), and Gates v. Bill & Son. (5) The effect of these decisions is summarized by Buckley L.J. in Doggett v. Waterloo Taxi-Cab Co. (6), and by Lord Atkinson in Smith v. General Motor Cab Co. (7) Buckley L.J. treats these cases as being decisions as to the relation between "owner" and driver of a hackney carriage. Lord Atkinson puts the result of the cases in this way. He says: "It may well be that though the relation between the taxicab owner and his driver inter se be that of bailor and bailee, the driver may still quoad third parties be treated as the agent of the proprietor authorized to ply for hire in the streets for reward to the latter; and the proprietor be thereby rendered liable for those acts of the driver which were within the scope of the latter's authority. The general result of the cases of Fowler v. Lock (1), Venables v. Smith (2), King v. London Improved Cab Co. (3), Smith v. Bailey (4), and Gates v. Bill & Son (5), cited in Doggett's Case (6), is that in the case of horse-drawn cabs, where drivers were given them in charge under terms resembling those admitted to exist in the present case, the relation between the proprietor and driver was that of bailor and bailee, but that quoad third parties the drivers were, under the provisions of the Metropolitan Hackney Carriage Act, 1843 (admittedly applicable to taxicabs), deemed to be the servants of the proprietors." In this passage the expressions "proprietor" and "owner" are used as having the same meaning. The cases to which Lord Atkinson refers are binding upon this Court, but in no case has the question which is raised by the present appeal been either raised or decided.

The question which we have to decide is whether a managing director of a company to whom a licence in respect of a hackney carriage has been issued under r. 9 of the Order of the Home Secretary made under the Act of 1869, and dated December 30, 1907, is estopped from alleging that he is not the proprietor of the hackney carriage in the sense of being an owner or part-owner of the carriage or an employer of the driver. In my opinion he is not. There is nothing either in the statutes or in the decided cases which compels us to so hold, and I can see no reason why he should not be entitled to prove what the real fact is. As I have already pointed out, the statute of 1869 imposes no condition as to ownership upon the person applying for a licence.

The Order of the Home Secretary imposes no such condition. The Order, on the contrary, in the case of companies makes it plain that the person to whom the licence is to be issued is not an owner or part-owner. The managing director of a cab company no doubt comes within the definition of proprietor contained in the Act of 1843 as a person "concerned otherwise than as a driver or attendant in employing for hire" the cabs of the company, and as such is liable for the penalties prescribed by the Act. The Order of the Home Secretary cannot, I think, be read as requiring the registration of a managing director in any other capacity than the one I have indicated. Under these circumstances I read the entry in the register literally - namely, that the defendant, who is there described as the managing director, is correctly entered under the heading of proprietor as defined by the Act of 1843, but the entry does not carry with it the same inference as the entry would have done had it been made under the Act of 1831, or estop the defendant from proving if he can that he has no property or interest in the taxicab and that the driver is under no agreement at all with him. I agree that the appeal must be allowed.

SARGANT J. read the following judgment:- The ruling of Salter J. here involves two propositions - namely, first, that the proprietor of a metropolitan hackney cab or taxicab is responsible for the acts of the driver on the footing of master and servant, and, secondly, that the registration of a person as proprietor is conclusive to establish his proprietorship for this purpose, and does not leave it open to him to dispute the fact that he is the actual proprietor. The question to be determined on this appeal is whether that ruling, and particularly the proposition secondly involved in it, is right.

I will assume for this purpose against the defendant that the provisions of the London Hackney Carriage Act, 1831, as to the registration of proprietors of hackney cabs were continued by s. 3 of the London Hackney Carriages Act, 1843; that there was introduced into these provisions the definition of proprietor in s. 2 of the latter Act; and even that, notwithstanding the repeal of the greater portion of the earlier Act by s. 39 of the Revenue Act, 1869, these provisions, as continued in the Act of 1843, were again continued or re-enacted by s. 15 of the Metropolitan Public Carriage Act, 1869. If the matter were res integra there might be doubt as to these assumptions, particularly as to the last assumption, and I do not find that in any of the decided cases since 1869 the exact course of the legislation in question has been considered either in the reported arguments or in the decisions, though s. 39 of the Revenue Act, 1869, is referred to in the argument in King v. London Improved Cab Co. (1) But in all probability these points were considered by those who argued and decided the cases, and some or all of the assumptions were deliberately though tacitly made. And it is unnecessary to say more on this point, because there are, in my judgment, other sufficient reasons for deciding this appeal in the defendant's favour.

Now, on this footing there are undoubtedly cases, one or more of which are binding on this Court, such as Powles v. Hider (2), Venables v. Smith (3), and King v. London Improved Cab Co. (4), which establish the first branch of the ruling of Salter J., namely, that the proprietor of a hackney cab is liable to the public for the acts of the driver as if the relationship of master and servant existed between them, although the actual relationship may be different. But I can find nothing in the cases to warrant the second branch of the ruling, namely, that registration is conclusive in all cases to establish actual proprietorship, so as to saddle the person registered as proprietor with the liabilities of an actual proprietor. In all the cases cited the person held responsible was the actual proprietor or one of the actual proprietors, though he was not always a registered proprietor. And the fact that non-registration was not sufficient to enable a real proprietor to escape liability (Gates v. Bill & Son (5) militates against the conclusiveness of the register, and suggests, though it does not establish, that registration would not make the registered proprietor liable if he were not the actual proprietor. The only indication of a possible estoppel in consequence of registration, or of the effect of registration, is to be found in the second ground given for the decision in Powles v. Hider. (2) But there the action was brought by a hirer of the cab and was based on contract, and, further, the hirer was deemed to have known and acted on the faith of a plate on the cab stating that the defendant was the proprietor. The case is quite different when, as here, the action is one in tort by a person who could not have relied on any plate or other outward sign, even if, which was not the case, there had been any such sign to rely on.

It may be true that the Acts aim in general at the registration of one or more of the real proprietors so that in the ordinary case of a single owner the person who is the real proprietor will also be the registered proprietor. And there are obvious reasons why this should in general be so. But this does not necessarily or naturally involve making the registered proprietor liable as the real proprietor whatever the real facts may be. And when regulations made under subsequent amending legislation provide, as here, that in the case of cabs belonging to companies the manager or secretary is to be registered as such, I think they amount to a deliberate abandonment in such cases of the attempt to identify the real proprietor with the registered proprietor, and cannot properly be construed as operating to cast additional general liability for the acts of drivers on persons who are and are described as servants or nominees of owning companies. To effect so startling a result, or indeed to make the register in general conclusive to negative the real facts, it would be necessary to find much clearer language than any present here. A statutory estoppel of the kind suggested is not to be implied lightly.

It has however, been suggested that, even if the defendant is not liable by virtue merely of his registration, he is within the definition of proprietor in the Act of 1843 by reason of his being the managing director of the company, and so necessarily concerned in the employment of the cab. To this there are in my opinion two answers. In the first place I am by no means satisfied that the intention found in the Acts to create the relation of master and servant in all cases between the proprietor and the driver can be extended so as to create that relation also between the driver and any person who, although concerned in the employment of the cab, is so concerned merely as the agent for and on behalf of the real proprietor. And in the next place I do not think that it must be assumed that when the true facts in relation to the proprietorship of this cab come to be known it will necessarily appear that the defendant, or even perhaps the company itself, was a proprietor within the meaning of the Act of 1843. It is suggested, and it may turn out to be the fact, that the real proprietor was an altogether different person, namely, one who was buying the cab by means of financial assistance from the company, and who was in a position to drive the cab himself or allow it to be driven by others without any interference by the company, except such as was necessary to protect their financial interest.

For these reasons I agree that the appeal should be allowed and a new trial granted.

New trial ordered.

Solicitors for plaintiff: S. A. Clench & Co.

Solicitors for defendant: Watson, Sons & Room.
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