Medeiros v. Honolulu Motor Coach Co.

  The appellant petitions for a rehearing alleging the following
grounds: (1) That the court inadvertently erred in holding that
there was not a fatal variance between the allegation of the
complaint and the proof; (2) that the court inadvertently erred
in holding that the question of whether or not defendant's
servant, Carvalho, was guilty of negligence in permitting Kaipo
to drive or in failing to so supervise his driving as to avoid
the collision which ensued, and whether or not such negligence,
if found, was a proximate cause of the accident, were questions
of fact for the jury under proper instructions.
  Both of the conclusions which the appellant terms inadvertent
were arrived at after a very careful consideration of the
authorities which are fully reviewed in our opinion and adopted
as correctly setting forth the common law rule for testing the
liability of a master for harm caused by the negligent management
of an instrumentality by one

to whom his servant has entrusted it to serve the purpose of the
master. Our conclusions were not, therefore, inadvertently
arrived at.
  However, in view of the brevity with which we disposed of the
appellant's argument that there was a fatal variance between the
allegations of the complaint and the proof, we shall now set
forth the considerations which prompted our conclusion.
  Nothing said by us was intended to convey the idea that the
defendant's motor coach necessarily ceased to be operated by its
servant merely because one other than the servant was, with the
consent of the servant and in his presence, driving at the time
of the accident. In fact his continuing obligation to keep
control of its operation is the basis of the master's liability
for the damage caused by its negligent use.
  In Booth v. Mister, 7 Car.  P. 66, one of the English
cases reviewed by us and cited with approval in many of the
American cases, upon which our opinion is founded, the only issue
was whether or not a declaration which stated that the cart of
the defendant was negligently driven by his servant was sustained
by proof that the defendant's servant was riding in the cart but
that another person not in defendant's service was driving the
cart, the servant having given him the reins. The ruling that the
proof sustained the declaration is not based on the theory of
constructive identity and many of the American courts which
adhere to the rule adopted by us have cited it as authority for
their conclusion, evidently regarding the holding as not
inconsistent with their conclusion that the liability of the
master must be based on the negligence of his servant even though
the substitute's negligence, in combination with his negligence,
contributed proximately to the accident. Chief Judge Cardozo
cited Booth v. Mister in Grant v. Knepper, 245 N.Y. 158,
remarking that "the inference is legitimate,

first, that the substitute was incompetent, and again that
supervision, if vigilant, would also have been effective."
  All of the English cases which have come to our attention, in
which the basis of the master's liability is discussed,
unmistakably hold that the liability of the master must be
predicated upon the negligence of his servant and in none of them
do we find any adverse criticism of Booth v. Mister, supra.
  In our original opinion we have quoted from the opinion of
Buckley, L.J., in Ricketts v. Tilling, 1 K.B. (1915) 644.
Phillimore, L.J., author of one of the concurring opinions in
that case, said: "It is not only for acts of omission but also
for some acts of commission that the employer may be liable. The
question here really is, Was the driver still in charge of this
omnibus, and did the accident happen because he neglected his
duty?" He then refers to a similar case which he tried at nisi
prius in which he left to the jury the question of whether the
motor omnibus was still under the control of the driver. The
allegation must have been that it was.
  In Engelhart v. Farrant  Co., 1 Q.B. (1897) 240, Lord
Esher, M.R., says: "Now, for what is the defendant liable? He is
liable for the negligence of Mears [defendant's servant] if that
negligence was ``an effective cause' of the subsequent damage to
the plaintiff. Now, was it or was it not ``an effective cause'? In
this case, if there had been any doubt of its being an effective
cause and the matter had been tried by a jury, the question must
have been left to them." Again the declaration must have
predicated the master's liability upon the fact that the servant,
though not manipulating the mechanism, was operating the
instrumentality.
  We are of the opinion that good pleading in such a case as this
requires the plaintiff to allege that the master's automobile was
being operated by his servant and that proof that the servant
remained upon it while a substitute

performed the physical act of driving does not constitute a
variance. As said by Chief Judge Cardozo in Grant v. Knepper,
supra, "``Co-operation may be inferred from acquiescence where
there is power to restrain' (Dowler v. Johnson, supra). The
duty rests upon the servant with continuing obligation to ``keep
control and exclude incompetent meddling' (Pollock, supra)
while he remains upon the car."
  The authorities above also dispose of the second ground of the
petition for rehearing. The matter involved in that ground was
carefully considered and our conclusion was reached after
consulting the authorities and nothing called to our attention
has convinced us that our conclusion was wrong.
  The petition is denied without argument under the rule.