Feldman (Pty) Ltd v Mall

• Jurisdiction: South Africa
• Citation: 1945 AD 733

Feldman (Pty) Ltd Appellant v Mall Respondent
1945 AD 733

1945 AD p733

Citation	1945 AD 733
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA, Greenberg JA, Davis AJA and Fischer AJA
Heard	March 27, 1945
Judgment	August 7, 1945

Flynote : Sleutelwoorde

Master and Servant — Liability of master for acts of servant — Generally — Driver of vehicle deviating from prescribed route for own purposes — When master nevertheless liable for negligent driving.

Headnote : Kopnota

A servant to whom a master has entrusted the driving and control of a vehicle may still be exercising the functions to which he has been appointed notwithstanding the fact that after taking out the vehicle on his master's business he has driven it for his own purposes on a separate journey. Whether in driving the vehicle for his own purposes he is still exercising such functions, resulting in his master being liable for his negligent driving of the vehicle, depends upon the circumstances of the case.

A servant of the defendant had been given the custody of a motor van and a number of parcels with instructions to drive the van and to deliver the parcels to various customers in a town. Having delivered the parcels he was to return the van to a certain garage. It appeared that after delivering the parcels he had driven the van to a place some miles away on his own business and there drank enough liquor to make him incapable of driving the van with safety. Shortly after his departure from such place on his way back to the garage he negligently collided with and killed the father of two minor children. A trial Court having held that, though in taking the van on a separate and independent journey the servant had departed from his master's work, inasmuch as he had at the time of the collision set out on his return journey he had resumed such work and that therefore his master was liable for his negligent driving.

1945 AD p734

Held, on appeal (Greenberg, J.A., dissenting), that under the circumstances the servant had never entirely abandoned his master's work as he had throughout. retained the custody and control of the van on behalf of his master and that the master was liable for the negligent driving of his servant.

The liability of a master for the acts of his servant where such servant has wholly or in part abandoned his master's work discussed and the American, English and South African decisions reviewed.

The case of Union Government v Hawkins (1944 AD 556), applied.

The decision of the Witwatersrand Local Division in Mall v Feldman (Pty.), Ltd., confirmed but reasons varied.

Case Information

Appeal from a decision of the Witwatersrand Local Division (SCHREINER, J.).

The facts appear from the judgment of Greenberg, J.A.

J. V, Brink, K.C. (with him A.F. Williamson), for the appellant: As to the onus on plaintiff to establish that defendant's servant was. at the time of the collision acting in the course of his employment, see Mkize v Martens (1914 AD 382 at 391). As to the general test of a master's liability for the wrongful acts of his servant, see Union Govt. v Hawkins (1944 AD 556, at 561), quoting Mkize v Martens (supra) and van der Byl v Swanepoel (1927 AD 141). As to the proper distinction between the servant's general duty and the duty arising out of his contract of employment, which distinction is decisive upon the question whether a servant has re-entered the course or scope of his employment, see Knowles v Southern Railway Co. (1937, 2 A.E.R. 406; 1937, A.C. 468, at 470).

Divergence in time, place and circumstance is also of paramount importance; see Restatement of the Law of Agency, Vol. 1, sec. 237;Rayner v Mitchell (1877, 2 CPD 357); Mitchell v Crassweller (138 E.R. R. 1189). Limason v Leyland Motors (S.A.) Ltd. (1929 CPD 348, at 356), which follows Venables v Smith (2 Q.B.D. 279) is perhaps distinguishable on a special finding of fact s as to the wide discretion allowed to the driver during the luncheon interval. Further on the facts.

A. Shacksnovis, K.C. (with him W. Oshry), for the respondent: This Court will not lightly interfere with the findings of fact of the, trial Court; Bitcon v Rosenberg (1936 AD 380, at 395-7). It was sufficient that the immediate object of the journey was to return the van to the garage, and irrelevant if there was a collateral independent object; Patten v Rex (140 E.R. 554). As to the general test of a master's liability for the wrongful acts of his servant, sec. Colonial Mutual Life Assurance Society v MacDonald (1931, A.D., at 440-441); Lorenz v Dorman Long (Africa) Ltd. (1943, E.D.L

1945 AD p735

169, at 176); Limason v Leyland Motors (1929 CPD 348, at 353-4, 356); Kruger v Divisional Council of Swellendam (1944, P.H. F. 72). If the English cases can be used as persuasive or logical authority, the following are in point: Joel v Morrison (172 E.R. 1338); Venables v Smith (2 Q.B.D. 279); Storey v Ashton (L.R. 4, Q.B. 476); Sleath v Wilson (173 E.R. 976); Patten v Rea. (supra); Aitchison v Page Motors Ltd. (154 L.T. 128). Further on the facts.

Brink, K.C., replied.

Cur adv vult.

Postea (August 7th).

Judgment

Watermeyer, C.J.:

This is an appeal from a decision of SCHREINER, J. The plaintiffs in her capacity as mother and natural guardian of her minor children, sued the defendant on their behalf in the Witwatersrand Local Division for a sum of £2,500 damages, alleged to have been suffered by them in consequence of the death off their father Mohamed Manack. She alleged that Manack was killed by a motor car negligently driven by one Balovi, defendant's servant, who was driving the car in the curse of his employment.

Baloyi's negligence was admitted and the question which the trial Court was asked to decide was whether the defendant was legally responsible for Manack's death. The learned Judge held that the defendant was legally responsible and made a declaration that the plaintiff was entitled to recover on behalf of her children any loss they might have suffered.

The facts of the case are fully set out in a passage from the reasons of the learned Judge, which is quoted in the judgment of my brother GREENBERG, and it is unnecessary for me to repeat them.

It is clear that the relationship between the defendant and Baloyi was that of a master and servant and the defendant's liability depends upon the extent of a master's vicarious responsibility for the acts of his servants. In several decisions of this Court (e g., Mkize v Martens (1914 AD 382); Estate of van der Byl v Swanepoel (1927 AD 1.41); Colonial Mutual Life Assurance Society v Macdonald (1931 AD 412) and Union Government v Hawkins (1944 AD 556) the general principle has been accepted that a master is liable for harm caused to third parties by the

1945 AD p736

Watermeyer, C.J.

wrongful acts of an agent if such agent is a servant and if such acts are done in the exercise of the functions to which the servant has been appointed. It is, therefore unnecessary to discuss the question whether this principle applies in Roman-Dutch Law to masters and servants in general or whether it should have been limited, as some writers contend, to certain specific cases of masters and servants. But, accepting the general principle, the difficulty remains of deciding in each particular case whether the act causing harm was or was not an act which the servant performed in the exercise of the functions to which he was appointed.

In English law a master is legally responsible for the wrongful act of his servant if such act is done "in the course of his employment" or, as the principle is sometimes expressed, if such act is "within the scope of his employment". There are passages in the reasons of all the learned Judges who gave judgment in the case of Mkize v Martens (supra) which, either expressly or impliedly, state that our law on the subject of a master's legal responsibility for the wrongful act of his servant is the same as the English law; but the expression "scope of employment" is apt to be misleading, unless one is alive to the fact that the words "scope of employment" are not equivalent to "scope of authority". One is apt, when using the expression "scope of employment" in relation to the work of a servant, to picture to oneself a particular task or undertaking or piece of work assigned to a servant, which is limited in scope by the express instructions of the master, and, to think that all acts done by the servant outside of or contrary to his master's instructions are outside the scope of his employment; but such a conception of the meaning of "scope of employment" is too narrow. Instructions vary in character, some may define the work to be done by the servant, others may prescribe the manner in which it is to be accomplished; some may indicate the end to be attained and others the means by which it is to be attained. Provided the servant is doing his master's work or pursuing his master's ends he is acting within the scope of his employment even if he disobeys his master's instructions as to the manner of doing the work or as to the means by which the end is to be attained. A servant may even omit to do his master's work, and if such omission constitutes a negligent or improper performance of his master's work and causes damage, the master will be legally responsible for such damage.

Consequently, a servant can act in disobedience of his master's instructions and yet render his master liable for his acts.

1945 AD p737

Watermeyer, C.J.

In the case of Estate van der Byl v Swanepoel (1927 AD 141, at p. 151) DE VILLIERS, J.A., pointed this out when he said:

"The English cases are, however, not easy to reconcile, chiefly, I venture to think, because it has not always been clearly realised that no authority, express or implied, for the act complained of is necessary to render the principal liable, provided the agent was acting in the service...