109, 115; Atlanta r. V. Kimberly, 87 Ga. 161, 168.

2 Read V. East Providence Fire Dist., 20 r. I. 574 ; Higgins V. W. U.

Tel. Co., 156 N. Y. 75.

280 Who is a sEliVant?

CHAPTER XYIII.

TRANSFER OP SERVICE.

В§ 228. General rule.

The general servant of one may be put tcmporarilj at the

service of another and the question then arises whether he is

for the time being the servant of that other. The cases upon

this are not entirely harmonious and it seems hardly possible

to extract from them a satisfactory test. In general it may

be said that if tlie transfer of service is complete so as to give

the transferee the unqualified control of the servant, the trans-

feree becomes for the time the master of the servant so as to

render him liable for the servant's wrongful acts and to give

him the benefit of the fellow-servant rule.^ While this rule

may fairly be regarded as stating the law of the decided

cases, it must be noted that in applying it, the courts have

reached divergent results upon essentially similar facts.

В§ 229. Hiring horses and driver.

Where one hires horses and carriage with a driver from a

livery-stable keeper, the driver is the servant of the livery-

stable keeper and not of the hirer.^ The hirer is not liable

for the driver's negligence, nor is the negligence of the driver

imputable to the hirer so as to bar the latter's recovery in

case he is injured by the combined negligence of the driver and

some third person. Neither is the driver a fellow-servant of

a servant of the hirer. The hirer may recover from the owner

for the negligent management of the vehicle resulting in

injury to liim.^

1 Rourke v. White Moss Colliery Co., L. R. 2 C. V. D. 205; Donovan

V. Laing, L. R. 1893, 1 Q. B. 62.0; Hasty v. Sears, 157 Mass. 123;

Hardy v. Shedden Co., 78 Fed. Rep. 610 ; Gagnon v. Uaua, 69 N. H.264.

2 Little V. Hackett, 116 U. S. 366; New York, L. E. & W. R. v. Stein-

brenner, 47 N. J. L. 161 ; Lewis v. Long Island R., 162 N. Y. 52, 66.

8 But where one hires a horse, carriage, and driver, to be used iu tak-

TRANSFER OF SERVICE. 281

From this typical case there are two variations.

First, the hirer may own his own carriage and hire horses

with a driver. This was the case of Laugher v. Pointer^ in

which the court was evenly divided. In the later case of

Quarman v. Burnett,^ where the hirer not only hired the

horses and a driver, but also furnished a special livery for

the driver, the doubts left open in the prior case were settled

In favor of the view that the coachman was not the servant of

the hirer. The doctrine of this case has been followed in

many subsequent English and American cases.^

In a recent case the hirer owned a hoisting tackle affixed to

his warehouse, and a truckman sent a horse and driver to do

some hoisting. Owing to the negligence of a servant of the

hirer the driver was injured. It was held that the driver was

the servant of the truckman and not a fellow-servant of the

negligent employee.* " The plaintiff represented his general

master, the truckman, and was all the time his servant, and

did not become in any legal sense the servant of the defend-

ant any more than he would if employed to move the goods to

a railway station on the truck, and if not such servant he

could not, of course, have become the co-servant of the de-

fendant's regular workman."

But where a truckman hired a truck and team and driver to

another, and the latter built upon the truck a superstructure

for seats which broke and injured the driver, it was held that

ing out goods for exhibition and sale, the owner of the carriage is not

liable for the loss of the goods which the hirer or his agent leaves un-

guarded in the carriage, even though the driver leave the carriage unat-

tended while the hirer is absent. Abrahams v. Bullock, 17 T. L. Rep.

557.

1 5 B. & C. 547. The case was afterwards heard by twelve judges,

but the decision is unreported. It is known that the judges were divided,

but whether equally is not clear. See remarks of Lord Russell of Killo-

wen in Jones v. ScuUard, 1S98, 2 Q. B. 565, 570.

2 6 M. & W. 499.

3 Jones V. Corporation of Liverpool, L. R. 14 Q. B. D. 890 ; Joslin v.

Grand Rapids Ice Co., 50 Mich. 516 ; Huff v. Ford, 126 Mass. 24; Rear

gan V. Casey, 160 Mass. 374; Burton v. G. H. & S. R., 61 Tex. 526.

4 Murray v. Dwight, 161 N. Y. 301.

282 WHO IS a servant?

the driver was the hirer's servant and that the truckman was

not liahle. The case was further put upon tlic ground that

the driver assumed the risk, so far as the truckman was in-

volved, of the increased danger resulting from tlie act of the

hirer in building the superstructure.^ Referring to the car-

riage cases cited above the court says : " But the present, we

think, is clearly distinguishable from such a case, because here

was not the ordinary hiring of a carriage for a trip, but it was

the hiring of a truck to be built upon, so that its nature as a

vehicle was changed, and then a separate hiring of the means

of locomotion."

Second, the hirer may own his own horses and carriage and

the livery-stable keeper may furnish a driver. Under these

circumstances, it was recently decided that the jury were

justified in finding that the driver was the servant of the

liirer.2 " The principle to be extracted from the cases is

that, if the hirer simply applies to the livery-stable keeper to

drive him between certain points or for a certain period of

time, and the latter supplies all necessary for that purpose,

the hirer is in no sense responsible for any negligence on the

part of the driver. But it seems to me to be altogether a dif-

ferent case where the brougham, the horse, the harness, and

the livery are the property of the person hiring the services

of the driver. And in such case, especially if, as here, the

driver has driven the hirer for a considerable period of time

and been approved by him, and the horse is one the charac-

teristics of which neither the livery-stable keeper nor the driver

has had any practical opportunity of becoming acquainted with,

there is, it seems to me, evidence upon which a jury would

be justified in coming to the conclusion that the driver was

upon the occasion in question acting as the servant, not

of the Every-stable keeper, but of the person who hired

him." 8